               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA17-565

                                Filed: 5 December 2017

Davidson County, Nos. 16 CVD 1729-30

SHIRLEY G. McKINNEY and ROBERT J. McKINNEY, Plaintiffs,

              v.

MARK JEFFREY DUNCAN, Defendant.


        Appeal by defendant from orders dated 12 December 2016 by Judge Mary F.

Paul in Davidson County District Court. Heard in the Court of Appeals 19 October

2017.


        David S. Doherty for plaintiffs-appellees.

        Richard Croutharmel for defendant-appellant.


        ZACHARY, Judge.


        Mark Duncan (defendant) appeals from orders finding him in contempt of

earlier orders that had directed him to have no contact with Shirley McKinney or

Robert McKinney (plaintiffs). On appeal, defendant argues that the trial court erred

by “failing to specify a deadline” within which defendant could purge himself of civil

contempt, with the result that the court’s order was “impermissibly vague in that it

effectively held the defendant in civil contempt indefinitely.” Defendant also argues

that the trial court erred by failing to find that he had the present ability to comply

with the purge condition that he obtain a psychological examination within 60 days
                                MCKINNEY V. DUNCAN

                                   Opinion of the Court



of the entry of the order. For the reasons discussed below, we conclude that defendant

has attempted to appeal from orders that were not entered. An order cannot be

enforced or appealed until it is entered, and we are without jurisdiction to consider

defendant’s appeal, which must be dismissed.

                            Factual and Procedural Background

      On 30 June 2016, plaintiffs filed complaints seeking entry of no-contact orders

barring defendant from harassing or threatening them. A hearing was conducted on

plaintiffs’ complaints in domestic violence court on 5 July 2016, before the Honorable

B. Carlton Terry, Jr. Ms. McKinney testified that defendant and his wife had moved

into a house across the street from plaintiffs’ house about a year earlier. After moving

into the neighborhood, defendant had engaged in threatening and upsetting behavior,

including shouting at Ms. McKinney and making “pig noises” in her direction,

displaying a banner that disparaged the condition of plaintiffs’ yard, and sending

letters to Ms. McKinney that she found frightening. On one occasion, defendant

displayed a firearm and pointed it at plaintiffs’ house, before firing it in a different

direction. Mr. McKinney testified that he was 28 years old and lived with his mother,

Ms. McKinney. His testimony generally corroborated that of Ms. McKinney; in

addition, Mr. McKinney testified that defendant stalked and harassed him as Mr.

McKinney walked from his home to his employment at a Walmart store a few minutes




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                                      Opinion of the Court



away. Defendant testified that he was a “62 year old grandfather, disabled veteran”

and that he had not committed the acts to which plaintiffs testified.

       At the conclusion of the hearing, the trial court ruled that plaintiffs had proven

by the preponderance of the evidence that on one or more occasions defendant had

harassed or tormented plaintiffs. The court informed defendant that it was entering

no-contact orders and that for the following year defendant would be subject to

restrictions:

                So for both of these cases for the next year, sir, I’m ordering
                that you should not visit, assault, molest or otherwise
                interfere with either of these Plaintiffs. Cease stalking of
                them is a term of art. Cease harassment. Do not abuse or
                injure them. Do not contact them by telephone, written
                communication, or electronic means, or in person. Do not
                enter or remain present at their residence, place of
                employment for the next year.

       On 5 July 2016, Judge Terry entered no-contact orders barring defendant from

having any contact with either plaintiff. Defendant did not appeal these orders.

       Upon plaintiffs’ motions filed on 22 August 2016, the assistant clerk of court

issued orders that required defendant to appear and show cause why he should not

be held in contempt of court for violating the terms of the no-contact orders entered

on 5 July 2016. Plaintiffs’ motions alleged that defendant had failed to comply with

the no-contact orders and had continued to engage in harassing and threatening

behavior. The parties subsequently reached an agreement resolving the issues raised

by plaintiffs’ motions. At a hearing conducted on 10 October 2016 by the Honorable


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                                   Opinion of the Court



Mary F. Paul, the judge reviewed the terms of each of the memoranda of agreement,

which were then signed by the parties, defense counsel, and the court. The judgments

specified ways in which the parties agreed to respect one another’s privacy and avoid

contact, and provided that the judgments could be enforced by contempt proceedings.

      Upon plaintiffs’ motions filed on 8 November 2016, the assistant clerk of court

issued orders that required defendant to appear and show cause why he should not

be held in contempt of court for violation of the terms of the no-contact orders entered

5 July 2016 and of the consent judgments entered 10 October 2016 in response to

plaintiffs’ earlier motions for contempt. Plaintiffs alleged that defendant continued

to engage in threatening and harassing behavior directed at plaintiffs. Judge Paul

conducted a hearing on plaintiffs’ motions on 12 December 2016. Ms. McKinney

testified that defendant had continued to violate the terms of the original no-contact

orders and the consent judgments. Defendant testified that he had abided by the

orders.

      On 12 December 2016, Judge Paul signed orders with respect to each plaintiff,

finding defendant in contempt of both the no-contact orders and both of the

judgments. The orders stated that defendant was to be incarcerated until he was no

longer in contempt, but that the incarceration was stayed and that defendant could

purge himself of contempt by committing “no further violations of the orders entered

on 7/5/16 and 10/10/16” and by obtaining a psychological evaluation within 60 days.



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                                  Opinion of the Court



Defendant appealed to this Court from the orders finding him in civil contempt and

setting out the means by which he could purge himself of contempt.

                              Jurisdiction over Appeal

      Proceedings for civil contempt are governed by N.C. Gen. Stat. § 5A-23 (2016).

N.C. Gen. Stat. § 5A-23(e) requires that if, at the conclusion of a hearing, the trial

court finds the alleged contemnor to be in contempt, “the judicial official must enter

an order finding the facts constituting contempt and specifying the action which the

contemnor must take to purge himself or herself of the contempt.” In the present

case, the record fails to establish that the orders holding defendant in contempt were

entered.

      A “judgment is entered when it is reduced to writing, signed by the judge, and

filed with the clerk of court.” N.C. Gen. Stat. § 1A-1, Rule 58 (2016). “This Court has

previously held that Rule 58 applies to orders, as well as judgments, such that an

order is likewise entered when it is reduced to writing, signed by the judge, and filed

with the clerk of court.” Watson v. Price, 211 N.C. App. 369, 370, 712 S.E.2d 154, 155

(2011) (citing Abels v. Renfro Corp., 126 N.C. App. 800, 803, 486 S.E.2d 735, 737-38

(1997)). “[A] judgment that has merely been [orally] rendered, but which has not

been entered, is not enforceable until entry.” Watson, 211 N.C. App. at 371, 712 S.E.2d

at 155. An order “cannot be modified or enforced or appealed before it is entered.”

Spears v. Spears, __ N.C. App. __, __, 784 S.E.2d 485, 502 (2016) (citing Carland v.



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                                         Opinion of the Court



Branch, 164 N.C. App. 403, 405, 595 S.E.2d 742, 744 (2004) (“Since there was no order

‘entered’ when defendant filed her motion to modify, there was nothing to modify.”)).

        In the present case, the trial court orally rendered judgment at the conclusion

of the hearing.

                THE COURT: Now, I’m going to hold him in Civil
                Contempt. . . . The only way he can purge himself of this
                Contempt, is I want to see a full psychological evaluation.
                That is to be done within the next, I’ll give him 60 days to
                complete it.

                                                  ...

                So the Order is that he gets 30 days in custody, that is
                suspended on the condition that he get a full
                psychological[] evaluation. And that he not violate any
                other portions of this Order. So the suspension is, is that if
                they file this and there’s a problem and he hasn’t done that
                psychological. It’s not much of a hearing to be done. It’s
                already there. I’m staying the execution of my judgment to
                give him that opportunity.

        Defendant has attempted to appeal from orders that were signed by the trial

court on 12 December 2016. 1 These orders do not bear a file stamp or other indication

that they were ever filed with the clerk of court. As a result, the record fails to

establish that the orders were entered:

                Clerk Hinshaw orally rendered her decision . . . on 26 April
                2007 in open court. Thereafter, she reduced the order to
                writing and dated it. However, nothing in the record
                indicates that the order was filed with the clerk of court.

        1These orders differ from the court’s orally rendered judgment in that they order defendant to
be “committed to the county jail for an indefinite period” rather than for 30 days. The orders otherwise
track the language used by the court in its orally rendered judgment.

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                                   Opinion of the Court



             The order is devoid of any stamp-file or other marking
             necessary to indicate a filing date, and therefore it was not
             entered. See Huebner v. Triangle Research Collaborative,
             193 N.C. App. 420, 422, 667 S.E.2d 309, 310 (2008)
             (asserting that a filing date is to be determined by the date
             indicated on the file-stamp); see also Watson, 211 N.C. App.
             at 373, 712 S.E.2d at 157 (standing for the proposition that
             a signed and dated order is insufficient to be considered
             filed).

In re Thompson, 232 N.C. App. 224, 228, 754 S.E.2d 168, 171 (2014). A properly

entered order is essential to vest this Court with subject matter jurisdiction over an

appeal:

             Entry of judgment by the trial court is the event which
             vests jurisdiction in this Court, and the judgment is not
             complete for the purpose of appeal until its entry. Since
             entry of judgment is jurisdictional, this Court has no
             authority to hear an appeal where there has been no entry
             of judgment. . . . [We] must dismiss this appeal since we
             lack jurisdiction. See Mason v. Moore County Bd. of
             Comm’rs, 229 N.C. 626, 629, 51 S.E.2d 6, 8 (1948) (“If [the
             record] fails to disclose the necessary jurisdictional facts we
             have no authority to do more than dismiss the appeal.”)

In re Estate of Walker, 113 N.C. App. 419, 420-21, 438 S.E.2d 426, 427 (1994) (citing

Searles v. Searles, 100 N.C. App. 723, 725-26, 398 S.E.2d 55, 57 (1990)). We conclude

that the orders from which defendant has attempted to appeal were never entered,

and we have no subject matter jurisdiction to review their contents. Accordingly,

defendant’s appeal is

      DISMISSED.

      Judges DAVIS and BERGER concur.


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