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Smith v. Murphy

Court of Appeals of Arkansas

March 29, 2017



          Baker Schulze Murphy & Patterson, by: J.G. "Gerry" Schulze, for appellant.

          Kristin Riggan, for appellee.

          BRANDON J. HARRISON, Judge

         The 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 affirm.

         I. Background

         The 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.

         A "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.

         Smith 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."

          II. Jurisdiction

         An 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).

         Administrative 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 Civil Procedure.

         There 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.

         A final 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.

         III. Sufficiency of the Evidence

         Because 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.

         According 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.

         E.S. 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 ...

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