An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-774
                       NORTH CAROLINA COURT OF APPEALS
                               Filed:    17 June 2014
NICOLE HARTFORD SHACKLEY,
     Plaintiff

                                              Pitt County
      v.
                                              No. 13 CvD 537

NORMAN HENRY SHACKLEY,
     Defendant


      Appeal by defendant from order entered 15 March 2013 by

Judge Ericka Y. James in Pitt County District Court.                     Heard in

the Court of Appeals 6 January 2014.


      Nicole Shackley, pro se.          No brief filed.

      David C. Sutton for Defendant.


      ERVIN, Judge.


      Defendant      Norman    Henry    Shackley,      Jr.,    appeals     from    a

domestic violence protective order entered against him as the

result of acts of domestic violence that he was alleged to have

committed    against     his   former    wife,    Plaintiff     Nicole    Hartford

Shackley.      On appeal, Defendant argues that the trial court’s

findings that he committed acts of domestic violence against

Plaintiff lack adequate evidentiary support and that the trial
                                            -2-
court was biased against him.                    After careful consideration of

Defendant’s challenges to the trial court’s order in light of

the record and the applicable law, we conclude that the trial

court’s order should remain undisturbed.

                              I. Factual Background

                                A. Substantive Facts

       Plaintiff and Defendant were married from 2006 to 2009 and

were       living    together    as    of    4    March    2013.   According     to

Plaintiff, Defendant threatened to kill her during the course of

numerous phone conversations that occurred between 28 February

and    3    March    2013.1     At    the   time    that   Defendant   made   these

threatening phone calls, Plaintiff was in Raleigh and Defendant

was in Greenville and wearing an electronic monitoring bracelet

that would have notified law enforcement officers if he changed

locations.          Even so, Plaintiff testified that she was terrified

by Defendant’s threats because she believed that Defendant would

cut off the bracelet and “hunt [her] down and kill [her].”2

       1
      As a result of the fact that none of these conversations
were recorded, the only evidence of the threats that Defendant
allegedly made against Plaintiff was contained in Plaintiff’s
testimony.
       2
      On   cross-examination,  Defendant   questioned   Plaintiff
concerning the existence of certain recorded phone conversations
between Plaintiff and Defendant and argues on appeal that the
trial court violated the “best evidence” rule by refusing to
require   the   production  of  these   recordings  and   related
transcripts.    However, Plaintiff testified that the calls in
                                         -3-
      According to Plaintiff, Defendant’s threats were motivated

by a number of factors.            For example, Plaintiff testified that

Defendant had been charged with impersonating a police officer

and   threatened      to    kill   her     if     she   did   not   present       false

testimony     in   his     favor    in     that    criminal    proceeding.             In

addition, Plaintiff testified that Defendant had told her that,

in the event that she failed to repay $35,000 that he claimed

she owed him in connection with a plastic surgery-related bill

by the time that he was ready to move to South Carolina, he

would kill her or force her to move with him and work off the

debt.    As    a   result    of    these    threats,     Plaintiff        was    “really

scared, because [she] believe[d] he [would] do it.”

      In addition, Plaintiff described other incidents in which

Defendant engaged in acts of domestic violence against her that

had occurred prior to the incidents upon which Plaintiff relied

in support of her effort to obtain the issuance of a DVPO.                             In

2012, while Plaintiff and Defendant were having an argument,

Defendant     threw   Plaintiff      against       a    closet,     put    her    in   a

headlock, twisted her neck, threw her on a bed, jumped on top of


question did not contain Defendant’s threats to kill her and had
not led to her request for the issuance of a DVPO. As a result,
since these recordings and transcripts do not relate to the
conversations that underlie Plaintiff’s request for the issuance
of a DVPO, we need not address the validity of Defendant’s
challenge to the trial court’s refusal to require the production
of these items.
                                      -4-
her, and threatened to kill her.            On another occasion, Defendant

jumped on top of Plaintiff and threatened to kill her while

holding    her   by   the     neck.     As    a    result    of      these   prior

experiences, Plaintiff testified that she believed that, in the

event that Defendant were to find her, he would kill her.

                            B. Procedural History

      On 5 March 2013, Plaintiff filed a complaint seeking the

entry of a domestic violence protective order against Defendant.

On the same day, Judge David Leech entered an ex parte domestic

violence   protective       order   against    Defendant     and     scheduled   a

hearing concerning the issues raised by Plaintiff’s complaint

for 15 March 2013.           At the conclusion of the 15 March 2013

hearing, the trial court determined that Defendant had committed

acts of domestic violence against Plaintiff and entered an order

prohibiting Defendant from committing or threatening to commit

any   further    acts   of     domestic      violence      against     Plaintiff,

ordering   Defendant    to    refrain     from    having    any    contact   with

Plaintiff and to avoid being present at Plaintiff’s residence

and workplace, and requiring Defendant to surrender any firearms

in his possession.      Defendant noted an appeal to this Court from

the trial court’s order.3

      3
      Although the domestic violence protective order from which
Defendant has appealed expired on 14 March 2014, this Court has
held that, since a “protective order could have collateral legal
                                           -5-
                         II. Substantive Legal Analysis

   A. Validity of Trial Court’s Findings of Domestic Violence

       In   his    first       challenge    to    the   trial    court’s    order,

Defendant contends that the trial court erred on the ground that

its determination to the effect that Defendant had committed

acts   of   domestic       violence    against     Plaintiff    lacked     adequate

record support.          More specifically, Defendant asserts that the

record does not support the trial court’s determination that he

engaged     in    acts    of    domestic    violence    against       Plaintiff   as

alleged     in     Plaintiff’s        complaint     given      that     Plaintiff’s

complaint alleged that the acts of domestic violence that he

allegedly committed against Plaintiff occurred on a single date

rather than over a period of time and given that the trial court

denied Plaintiff’s request to amend her complaint to conform to

the evidence.        Defendant is not entitled to any relief on the

basis of this argument.

                               1. Standard of Review

             When the trial court sits without a jury
             regarding a [domestic violence protective
             order], the standard of review on appeal is
             whether there was competent evidence to
             support the trial court’s findings of fact
             and whether its conclusions of law were
             proper in light of such facts.  Where there

and non-legal consequences—including the stigma of judicial
determination of domestic violence—this appeal [of an expired
domestic violence protective order] is not moot.”       Eagle v.
Johnson, 159 N.C. App. 701, 703, 583 S.E.2d 346, 347 (2003).
                                           -6-
              is competent evidence to support the trial
              court’s findings of fact, those findings are
              binding on appeal.

Kennedy v. Morgan, __ N.C. App. __, __, 726 S.E.2d 193, 195

(2012) (quoting Hensey v. Hennessy, 201 N.C. App. 56, 59, 685

S.E.2d    541,    544    (2009)).          In    the    event     that     “‘different

reasonable     inferences      can    be    drawn      from     the     evidence,    the

determination of which reasonable inferences shall be drawn is

for the trial [court],’” since “‘the trial judge is present for

the full sensual effect of the spoken word, with the nuances of

meaning revealed in pitch, mimicry and gestures, appearances and

postures, shrillness and stridency, calmness and composure, all

of which add to or detract from the force of spoken words.’”

Brandon v. Brandon, 132 N.C. App. 646, 651-52, 513 S.E.2d 589,

593   (1999)     (quoting   Elec.     Motor      &     Repair     Co.    v.   Morris   &

Associates, 2 N.C. App. 72, 75, 162 S.E.2d 611, 613 (1968), and

State    v.   Sessoms,   119   N.C.    App.      1,    6,   458    S.E.2d     200,   203

(1995), aff’d, 342 N.C. 892, 467 S.E.2d 243, cert. denied, 519

U.S. 873, 117 S. Ct. 191, 136 L. Ed. 2d 129 (1996)) (alteration

in original).       As a result, “[t]he trial court’s findings turn

in large part on the credibility of the witnesses, [and] must be

given great deference by this Court.”                  Brandon, 132 N.C. App. at

652, 513 S.E.2d at 593 (quotation omitted).                     To support entry of

a domestic violence protective order, the trial court must also
                                              -7-
make a conclusion of law “‘that an act of domestic violence has

occurred.’”        Kennedy, __ N.C. App. at __, 726 S.E.2d at 196

(quoting    N.C.      Gen.    Stat.      §   50B–3(a)).         An    act    of    domestic

violence    is     defined,        in    pertinent      part,    as     “[p]lacing        the

aggrieved party or a member of the aggrieved party’s family or

household in fear of imminent serious bodily injury.”                             N.C. Gen.

Stat. § 50B-1(a)(2).           “The test for whether the aggrieved party

has been placed ‘in fear of imminent serious bodily injury’ is

subjective;      thus,       the    trial      court    must     find       as    fact     the

aggrieved     party      ‘actually           feared’    imminent        serious      bodily

injury.”    Smith ex rel. Smith v. Smith, 145 N.C. App. 434, 437,

549 S.E.2d 912, 914 (2001) (quoting Brandon, 132 N.C. App. at

654, 513 S.E.2d at 595).                  In the event that the trial court

determines “that an act of domestic violence has occurred, the

court shall grant a protective order restraining the defendant

from further acts of domestic violence.”                     N.C. Gen. Stat. § 50B-

3(a).   We will now utilize this standard of review to evaluate

Defendant’s challenge to the trial court’s order.

        2. Adequacy of Support for Trial Court’s Findings

     In this case, the trial court found that Defendant placed

Plaintiff     in      fear    of        imminent      serious    bodily          injury    by

threatening      to   kill     her.          The    trial   court     also       found    that

Defendant possessed, owned, or had access to several firearms;
                                            -8-
that    Defendant       made     threats       to    seriously         injure     or     kill

Plaintiff; and that “Defendant has [engaged in] a pattern of

prior       conduct     involving        the        use     of        violence     against

[P]laintiff.”         These findings are clearly sufficient to support

the issuance of a domestic violence protective order.

       According to the evidence that Plaintiff presented before

the trial court, Defendant threatened to kill Plaintiff over the

phone on multiple occasions.                The threats that Plaintiff claimed

that Defendant had made against her stemmed from Defendant’s

demand that she perjure herself in a criminal proceeding in

which Defendant was charged with impersonating a police officer.

In addition, Defendant threatened to kill Plaintiff if she did

not pay the $35,000 that he claimed she owed him in connection

with    a   plastic    surgery-related         bill.        As    a    result     of   these

threats,     Plaintiff       testified       that    she     feared      for     her   life,

asserting that she was “really scared,” and “terrified” that

Defendant was going to kill her.                    As a result of the fact that

trial court findings “turn in large part on the credibility of

the    witnesses”      and     “must   be    given        great   deference       by     this

Court,” Brandon, 132 N.C. App. at 652, 513 S.E.2d at 593, we

hold    that   Plaintiff’s        testimony         supports      the     trial    court’s

determination         that     Defendant      placed       Plaintiff       in     fear    of

imminent serious bodily injury.                     Moreover, given that, “where
                                               -9-
the trial court finds that a plaintiff is actually subjectively

in fear of imminent serious bodily injury, an act of domestic

violence         has    occurred       pursuant      to    [N.C.     Gen.    Stat.     §]    50B-

1(a)(2),” Id. at 654-55, 513 S.E.2d at 595, we further hold that

the trial court’s finding of fact that Plaintiff was “placed in

fear       of    imminent    serious       bodily         injury”    supports        the    trial

court’s         conclusion       that    Defendant        committed     acts    of    domestic

violence         against         Plaintiff     so         that   a     domestic       violence

protective order should be entered.

       In seeking to             persuade us to reach a different                      result,

Defendant argues that the trial court’s findings lack adequate

evidentiary            support    on     the   grounds       that,     while    Plaintiff’s

complaint alleges that the relevant acts of domestic violence

occurred on 4 March 2013, Plaintiff testified that the phone

calls in question actually took place between 28 February and 3

March 2013 and notes that the trial court denied Plaintiff’s

request         to   amend   her        complaint     to     conform    to     the    evidence

concerning the dates upon which these acts of domestic violence

occurred.4           Defendant has not, however, cited any authority in

       4
      Admittedly, the only date mentioned in the complaint is 4
March 2013. However, Plaintiff testified that the reference in
the complaint to 4 March 2013 related to the date upon which she
wrote the factual statement that she submitted in support of her
request for the issuance of a DVPO rather than to the dates upon
which the acts of domestic violence upon which her complaint
rested actually occurred.
                                           -10-
support of his contention that the discrepancy between the date-

related allegations contained in the complaint and the dates

specified    in     Plaintiff’s           testimony    deprives       the    domestic

violence protective order at issue here of adequate evidentiary

support.     According to well-established North Carolina law, an

argument    in    support    of    which    no    authority    is    cited    will   be

deemed abandoned.        State v. Sinnott, 163 N.C. App. 268, 273, 593

S.E.2d 439, 442-43, appeal dismissed, 358 N.C. 738, 602 S.E.2d

678 (2004), cert. denied, 544 U.S. 962, 125 S. Ct. 1740, 161 L.

Ed. 2d 604 (2005).          As a result, given that the record evidence

supports    the     trial      court’s        determination         that     Defendant

committed acts of domestic violence against Plaintiff and given

that Defendant has failed to cite any authority in support of

his   challenge     to   the      trial    court’s    findings      based    upon    the

difference between the date specified in the complaint and the

dates set out in Plaintiff’s testimony, we decline to address

this argument, State v. Latham, 157 N.C. App. 480, 486, 579

S.E.2d 443, 448, disc. review denied, 357 N.C. 509, 588 S.E.2d

376 (2003); N.C. R. App. P. 28(b)(6), and conclude that the

record contains sufficient evidence to support the trial court’s

finding    that    Defendant       placed    Plaintiff    in   fear    of    imminent

serious bodily injury by threatening to kill her and had, by

doing that, committed an act of domestic violence against her.
                                      -11-
                                B. Judicial Bias

      Secondly,   Defendant       argues       that   he    was   deprived    of    his

right to a fair hearing in connection with Plaintiff’s request

for the issuance of a domestic violence protective order on the

grounds that the trial court was biased against him.                     In support

of   this   contention,     Defendant      argues       that    the   trial   judge’s

statement to the effect that “[b]lood is not going to be on my

hands” demonstrates that the trial court was biased against him.

Defendant is not entitled to relief from the trial court’s order

on the basis of this contention either.

      “On   motion    of    any    party,        a    judge     should   disqualify

himself/herself       in    a     proceeding          in    which     the     judge’s

impartiality    may   reasonably     be        questioned,      including     but   not

limited to instances where . . . [t]he judge has a personal bias

or prejudice concerning a party[.]”                   Code of Judicial Conduct

Canon 3C(1)a.     Canon 3 does not, however, impose an affirmative

duty upon members of the trial bench to disqualify themselves on

their own motion.       In re Key, 182 N.C. App. 714, 719, 643 S.E.2d

452, 456, disc. review denied, 361 N.C. 428, 648 S.E.2d 506

(2007) (stating that, “[w]hile [Canon 3 of the Code of Judicial

Conduct]    certainly      encourages      a    judge      to   recuse   himself    or

herself in cases where his or her ‘impartiality may reasonably

be questioned’ upon [his or her] own motion, [he or she is] not
                                          -12-
required to do so in the absence of a motion by a party”).                                In

the event that a party fails to move to disqualify the trial

judge during the course of the proceedings in the court below,

the issue of whether the trial judge should have disqualified

himself or herself is not properly preserved for purposes of

appellate review.           Id. (citing State v. Love, 177 N.C. App. 614,

627–28, 630 S.E.2d 234, 243, disc. review denied, 360 N.C. 580,

636    S.E.2d       193   (2006)).        A    careful      review    of    the     record

presented for our review in this case indicates that Defendant

never moved to disqualify the trial court or raised the issue of

the trial court’s alleged bias in the court below in any other

manner.        As a result, given Defendant’s failure “to move that

the trial judge recuse h[er]self,” he is not entitled to “raise

on    appeal       the    judge’s    alleged     bias    based       on    an   undesired

outcome.”       Sood v. Sood, __ N.C. App. __, __, 732 S.E.2d 603,

608, disc. review denied, 366 N.C. 417, 735 S.E.2d 336 (2012).

As a result, we hold that Defendant is not entitled to an award

of appellate relief based upon the trial court’s alleged bias in

favor of Plaintiff.

                                    III. Conclusion

       Thus, for the reasons set forth above, we conclude that

none    of    Defendant’s      challenges        to   the    trial        court’s    order

provide      any    basis    for    an   award   of     appellate     relief.        As   a
                                  -13-
result,   the   trial   court’s   order   should   be,   and   hereby   is,

affirmed.

    AFFIRMED.

    Chief Judge MARTIN and Judge McCULLOUGH concur.

    Report per Rule 30(e).
