Bunting v. Bunting

266 N.C.App. 243

832 S.E.2d 183

Christy King BUNTING, Plaintiff,

v.Michael Joe BUNTING, Defendant.

No. COA18-839

Court of Appeals of North Carolina.

Filed: July 16, 2019

No brief filed by Plaintiff-Appellee

The Duke Law Firm NC, Greenville, by W. Gregory Duke, for Defendant-Appellant.

COLLINS, Judge.

Defendant appeals from entry of a Domestic Violence Protective Order. Defendant contends that the trial court erred by entering the Domestic Violence Protective Order because (1) text messages he sent to Plaintiff did not constitute harassment as the messages served a legitimate purpose; (2) there was no evidence that Plaintiff suffered from substantial emotional distress; and (3) the trial court's conclusion of law that Defendant committed acts of domestic violence was erroneous and not supported by adequate findings of fact. Defendant's arguments lack merit and we affirm.

I. Background and Procedural History

Plaintiff Christy King Bunting and Defendant Michael Joe Bunting were divorced in 2008 after ten years of marriage. Two children were born of the marriage.

There is a long and detailed history of domestic violence by Defendant against Plaintiff, with entry of multiple domestic violence protective orders ("DVPO") against Defendant, dating back to 2008. On 29 May 2008, the court entered an ex parte DVPO against Defendant which remained in effect until 9 June 2008. The court found that Defendant threatened to kill Plaintiff if she tried to take their children from him after Plaintiff told Defendant that she wanted a divorce. This DVPO allowed communications between Defendant and Plaintiff only if the communications concerned the welfare of their children and were communicated through a third party.

On 8 July 2008, the court entered a DVPO against Defendant which remained in effect until 29 May 2009. The court found that Defendant threatened to kill Plaintiff. This DVPO allowed communications between Defendant and Plaintiff only if the communications concerned the welfare of their children and were communicated through a third party. On or about 16 December 2008, Defendant and Plaintiff entered into a Consent Order which included provisions for custody of the children.

Plaintiff filed a Motion for Contempt Against Defendant for violating the 8 July 2008 DVPO,¹ which was heard on or about 23 June 2009. On or about 1 July 2009, Defendant was arrested and charged with violating the 8 July 2008 DVPO. Defendant's violations took place over the course of three days, from 5 May 2009 through 7 May 2009, during which time Defendant threatened Plaintiff and told Plaintiff, "I will kill you;" refused to return the oldest child to Plaintiff after Plaintiff allowed Defendant extra visitation with the child; called Plaintiff between 15-20 times and left voice messages for Plaintiff, cursing her and telling her that the children hated her; and kidnapped the youngest child, hid from the police for three days, and told Plaintiff she would not get the child back. On 2 July 2009, the court entered an Order for Contempt, granting Plaintiff's 23 June 2009 motion for contempt and advising Defendant that he could purge his contempt by, inter alia , "ceas[ing] and desist[ing] any and all future behavior that would constitute a violation of the Domestic Violence Protective Order."

On 26 August 2009, Defendant was found guilty of violating the 8 July 2008 DVPO which was in place at the date and time of his offenses on 5 May 2009 through 7 May 2009. The court again ordered Defendant to comply with the DVPO and not to assault or threaten Plaintiff. On 25 September 2009, the court issued an order denying Defendant's motion to return weapons surrendered under a domestic violence protective order.²

On 15 October 2009, the court entered a second Order for Contempt against Defendant. The court ordered Defendant to refrain from making derogatory comments about Plaintiff in the presence of the children and "to cease engaging in behaviors that have a negative impact on the emotional health of the children ...." The order further required Defendant to "immediately engage the services of a medical or psychological professional[,] ... [and] to obtain counseling to aid him in dealing with [his] anger and frustration issues and in controlling his impulsive behavior."

On 27 January 2010, the court entered an ex parte DVPO against Defendant which remained in effect until 6 February 2010. The court found that Defendant "repeatedly sent voicemails to the [P]laintiff containing threatening language" and "threatened to shoot the [P]laintiff." The court also found that Defendant was "previously involuntarily committed ... for threatening suicide." The court ordered Defendant to stay away from "any place the [P]laintiff is" and to stay away from the children's school. This order allowed communications between Defendant and Plaintiff only if the communications concerned the welfare of their children and were communicated through a third party.

On 20 May 2010, the court entered a DVPO against Defendant which remained in effect until 26 January 2011. The court found that Defendant threatened to seriously injure or kill Plaintiff, and concluded that there was a danger of serious and immediate injury to Plaintiff. The court ordered Defendant to "comply fully with all prior custody orders between the parties." The court included an attachment which stated,

Email or Text communication between the parties for the sole purposes of facilitating the exchange of the minor children, to share necessary information about the minor children, or in case of an emergency involving the minor children DOES NOT VIOLATE THE "NO CONTACT" PROVISION OF THE [DVPO]. Communication between the parties on any subject other than that of the minor children SHALL BE PROHIBITED AND DOES CONSTITUTE A VIOLATION OF THE "NO CONTACT" PROVISION.

The court further ordered the parties to communicate exclusively via email or text message, and banned the use of third parties, with the exception of their respective attorneys, to communicate with one another.

On 3 June 2010, Defendant was arrested and charged with violating the 20 May 2010 DVPO. On 16 June 2010, after Defendant committed another violation of the 20 May 2010 DVPO, a third Order for Contempt was entered against Defendant. The court found that Defendant "has continued to make derogatory comments about the Plaintiff or the Plaintiff's parenting skills in the presence of the minor children[,] ... [and] has engaged in such harassment and behaviors that have caused the Plaintiff to fear for her personal safety and that of the children ...." On 15 September 2010, Defendant pled guilty to two violations of the DVPO and received an 18-month suspended sentence. Defendant was again ordered to comply with all terms and conditions of the DVPO then in place.

On 1 February 2011, the court renewed the DVPO against Defendant until 26 January 2012. The court added a provision which allowed Defendant to attend the children's school activities; however, the court reaffirmed the prohibition against Defendant having contact with Plaintiff at a school activity, and barred Defendant from speaking with or approaching the children at a school activity.

On 18 August 2011, Plaintiff filed a Motion to Modify Custody to Terminate or Require Defendant's Visitation to be Supervised. This motion was based on "Defendant's continued violation of this Court's orders and because of the ongoing psychological and emotional damage to the minor children caused by the Defendant's behavior." Defendant, who was incarcerated at this time, requested two continuances and the court granted both. The court continued the hearing until 15 November 2011 and ordered Defendant to have no written or verbal contact with the children or with Plaintiff until the 15 November 2011 hearing. While incarcerated for violating the 1 February 2011 DVPO, Defendant continued to contact Plaintiff and the children. Defendant made phone calls to the children, and also sent numerous letters to the oldest child which referenced Plaintiff in a derogatory manner.

On 20 January 2012, the court entered an order renewing the DVPO against Defendant until 26 January 2013, finding that there was a felony DVPO violation pending in Superior Court.

On 31 January 2012, the court entered an Order Modifying Custody ("Custody Order") which contained 20 detailed findings of fact. The court found an extensive history of domestic violence by Defendant against Plaintiff. The court also found that "Defendant's behavior had caused the minor children to experience stress and anxiety[;]" that Defendant admitted that he talks to the children about their mother because "he thinks they need to know the truth about her[;]" and that Defendant thinks the children do not need therapy because therapy "just makes things worse."

The court further found that Defendant has acted in ways "to harass the Plaintiff, causing her significant emotional stress, and to negatively impact her relationship with the minor children and has engaged in a lengthy and persistent campaign to alienate the minor children from the Plaintiff." The court found that "Defendant has been repeatedly ordered by this Court to refrain from [his] actions and behavior[,] ... he has completely ignored said orders and warnings[,] ... and instead appears to have escalated said behavior and has on more than one occasion expressed his disdain for the orders of this court." The Custody Order required Defendant to complete a psychological evaluation and provide the results to the court; enroll in and complete counseling with a licensed therapist; and remain in therapy until such time as the therapist releases him from therapy and recommends that Defendant should be allowed to resume unsupervised visitation with the children.

The Custody Order granted Plaintiff sole legal and physical custody of the children, and allowed Defendant to have one, two-hour supervised visit per month with the children at...