FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63DR-15-861]
HONORABLE STEPHANIE CASADY, DISTRICT JUDGE
Schulze Murphy & Patterson, by: J.G. "Gerry"
Schulze, for appellant.
Kristin Riggan, for appellee.
BRANDON J. HARRISON, Judge
issue here is whether one instance of corporal punishment of
a four-year-old child with a leather belt, that spanned from
the child's upper-back to his knees and caused some
bruising and mental anxiety, was sufficient evidence to
support the entry of an order of protection against the
child's father, for five years. We hold that it was and
case started when Michelle Murphy filed a verified petition
in the Saline County Circuit Court alleging that Timothy
Smith had injured one of their children, S.S., while S.S. was
visiting Smith in Texas. In the petition Murphy stated that
Smith "had a very abusive past" and that he had
been charged in Texas in 2008 for child endangerment and
domestic violence. Murphy further alleged that when she
picked up the three children from Smith after his summer
visitation, S.S. "had bruises half way up his back
across his buttocks and down his right leg, from a
belt." Murphy stated that S.S. had been admitted to
Pinnacle Pointe Hospital "because of the mental and
physical abuse his father put him through" and because
S.S. "threatened to kill himself, because he didn't
want to be part of a family anymore, because all families do
is hurt each other." Murphy asked the court to prohibit
Smith from contacting her and the children and to award
temporary custody or establish temporary visitation rights.
An ex parte order of protection was filed the same day as the
petition, on 10 August 2015. The order awarded custody of the
children to Murphy.
"Final Order of Protection" was entered on 16
November 2015 following a hearing that same day. The order
states that it is effective until 16 November 2018 and
prohibits Smith from having visitation with the children
"unless and until modified by the judge on the
divorce." It was signed by a district court judge. Smith
filed a timely motion for a new trial on 30 November 2015,
alleging that the recording device present during the hearing
was not fully operational and that the court erred in
granting a protective order because "child abuse does
not include physical discipline of a child when it is
reasonable and moderate and is inflicted by a parent or
guardian for purposes of restraining or correcting a
child." The district court granted the motion for new
trial, and a second trial was held on 24 May 2016.
appeals the final order of protection that was entered on 25
May 2016. His notice of appeal states that the "Order
was entered by the District Court pursuant to Administrative
Order 18(b)(2) and is therefore a final order of the Circuit
Court. . . . Appellant takes this Appeal to the Arkansas
Court of Appeals."
appellate court must raise jurisdictional issues even when
the parties do not. See Barclay v. Farm Credit
Servs., 340 Ark. 65, 8 S.W.3d 517 (2000). In this case,
a district judge signed the order of protection; the order
was then filed with the circuit court clerk. District
courts' subject-matter jurisdiction is established by
supreme court rule. Ark. Const. amend. 80, § 7(B); Ark.
Code Ann. § 16-17-704 (Repl. 2010). Arkansas
Administrative Order Number 18(6)(b) provides that a state
district court judge may be referred matters pending in the
circuit court: "A state district court judge presiding
over any referred matter shall be subject at all times to the
superintending control of the administrative judge of the
judicial circuit." Ark. Sup. Ct. Admin. Order No.
18(6)(b). Referred matters can include any case in the civil,
probate, or domestic relations division in which the parties
have agreed in writing to proceed in the district court,
"protective orders, " forcible entry and detainers
and unlawful detainers, and other matters. Ark. Sup. Ct.
Admin. Order No. 18(6)(b)(1)-(4). If there is an appeal, the
court reporter assigned to the circuit judge who referred the
case to the state district court is charged with transcribing
the audio tape and certifying the transcript. Ark. Sup. Ct.
Admin. Order No. 4(e)(1)-(2).
Order No. 18(6)(c) states that
[e]xcept for the exercise of consent jurisdiction which is
governed by subsection (d), with the concurrence of a
majority of the circuit judges of a judicial circuit, the
administrative judge of a judicial circuit may refer matters
pending in the circuit court to a state district court judge,
with the judge's consent, which shall not be unreasonably
withheld. A final judgment although ordered by a state
district court judge, is deemed a final judgment of the
circuit court and will be entered by the circuit clerk under
Rule 58 of the Arkansas Rules of Civil Procedure. Any appeal
shall be taken to the Arkansas Supreme Court or Court of
Appeals in the same manner as an appeal from any other
judgment of the circuit court. An order that does not
constitute a final appealable order may be modified or
vacated by the circuit judge to whom the case has been
assigned as permitted by Rule 60 of the Arkansas Rules of
is no evidence in this record that the parties consented to
the district court's jurisdiction; nor is there evidence
of a referral from the circuit court to the district court.
But there is no objection to the fact that a district-court
judge decided the case, and the 22nd Judicial District of
Arkansas Administration Case Allocation plan provides that
the Saline County District Courts shall have all authority
permitted under the Arkansas Supreme Court's
Administrative Rule No. 18 and that the Bryant division shall
hear all final orders of protection cases. District Judge
Casady is the only judge in the Bryant division. So pursuant
to Administrative Order No. 18(6)(c), the final order of
protection may be appealed directly to our court as could be
done from circuit court, and the appeal procedures embodied
in Arkansas District Court Rule 9 do not apply.
order of protection entered in circuit court pursuant to
section 9-15-205 is appealable under Ark. R. App. P.-Civ.
2(a)(1). See Steele v. Lyon, 2015 Ark.App. 251, 460
S.W.3d 827; Hancock v. Hancock, 2013 Ark.App. 79.
Smith filed a timely notice of appeal to this court from the
final order of protection. We therefore conclude that we have
jurisdiction to decide his appeal.
Sufficiency of the Evidence
Smith essentially raises a sufficiency-of-the-evidence point,
we will provide a more detailed factual background before
addressing his argument. During the May 2016 trial, licensed
counselor Sunnie Butcher Keller testified that Smith's
child, S.S., was referred to her care from the Sheridan
School District around the last week of August 2015. Sunnie
was also a counselor for E.S., S.S.'s older sister. In
the fall of 2015, Sunnie transcribed E.S.'s version of
the leather-belt incident. The transcript was admitted as
Petitioner's Exhibit 2.
to E.S. the incident happened in July. She recalled eating
breakfast and then going outside to play. S.S. wanted to play
on his tablet in the kitchen, but Dad would not let him. E.S.
said that S.S. became upset and kept asking Dad, who threw
the tablet to the ground and it shattered. Dad walked away to
his bedroom, and E.S. gave crying S.S. a hug and told him
everything was fine. Dad returned to the living room and
began to play a video game that S.S. wanted to also play.
S.S. kept asking to play and Dad became "aggravated,
" dropped the video-game controller, and went back to
his bedroom, slamming the door. S.S. was upset and crying and
E.S. gave him another hug. E.S. asked Dad if they could play
outside and he said "Yes but stay out of trouble."
E.S. said that the spanking occurred in the living room with
a plain leather belt, that S.S. was crying, that Dad hit him
"a bunch, " that Dad screamed "Go to your
room, " and that she saw bruises on S.S.'s back.
also testified during the trial that she wrote the document
that Sunnie had typed. She said that Dad had spanked S.S.
with a black leather belt and that S.S. cried "for like
an hour." According to E.S., Dad gets mad
"often" when she and her brothers are with him. She
said that she misses her dad but she is scared that
"he'll do that to me, [my brother], or [S.S.]
again." When asked on cross-examination if Dad said,
"I promise to not use spankings at all, I promise not to