FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04DR-17-37]
HONORABLE XOLLIE DUNCAN, JUDGE
Miller, Butler, Schneider & Pawlik, PLLC, by: Mason L.
Boling, for appellant.
Harrison and Glover, JJ., agree.
D. VAUGHT, JUDGE
Nicole Stahl appeals a final order of protection based on a
finding of domestic abuse that was entered against her by the
Benton County Circuit Court. Stahl argues that the evidence
is insufficient to establish that she committed domestic
abuse. We agree and reverse and dismiss.
January 10, 2017, Jacob Lee Smith filed a petition for an
order of protection, alleging that he and Stahl were former
spouses, they had formerly resided together, and they have
one child together, K.S. (born December 21, 2012). Smith
further alleged Stahl had committed domestic abuse against
K.S. "by the acts described in the attached
affidavit." Smith's affidavit stated that he was
seeking an order of protection against Stahl because she
failed to do "anything to respond to the [sexual-abuse]
allegations made against her [live-in] boyfriend [Trent
Holcombe]" by K.S. Smith's affidavit stated that
K.S. had reported that Holcombe touched "her pee pee,
" showed her his penis, and penetrated her. In the
affidavit, Smith also stated that Stahl was "not
thinking of the well-being of [K.S.], " "refused to
make [Holcombe] leave, " and was "choosing to stay
with [Holcombe] over leaving him to protect [K.S.]."
parte order of protection was entered by the circuit court on
January 10, 2017. A hearing was held on January 24, 2017,
during which Smith testified that on August 24, 2016, he
spoke with Stahl on the phone to report allegations that
K.S., who was three years old at the time, had made against
Holcombe. Smith stated that in response, Stahl aggressively
spoke to K.S. over the speakerphone, asking her why she would
lie about the abuse. Smith said that later, he, his wife
(Ashley), Stahl, and Holcombe met with K.S. about the
allegations, but K.S. did not want to talk about it.
According to Smith, he did not know whether Holcombe had
abused K.S., so Smith did not pursue the matter.
said that on January 5, 2017, K.S. made additional
allegations against Holcombe. Smith again contacted Stahl,
and Smith testified that she continued to say that K.S. was
lying. Smith then went to the police department to report the
allegations, and an investigation proceeded. Smith stated
that he did not believe that Holcombe should be around K.S.
and that he did not think it was appropriate for Stahl to
accuse K.S. of lying. Because he feared that Stahl would not
keep K.S. from Holcombe, Smith filed a petition for an order
of protection against Stahl. In the petition, he requested
that Stahl's visitation with K.S. be supervised.
testified that she had been living with Holcombe for nine or
ten months and that K.S. was lying about the allegations of
sexual abuse. Stahl stated that K.S. is never alone with
Holcombe. Stahl also stated that she and Smith had
communicated about lies K.S. had told them about the other
conclusion of the hearing, the circuit court approved the
final order of protection, stating
Considering the evidence, the order of protection will stay
in place. Ms. Stahl has a firm and adamant belief the child
is lying, and I cannot leave the child in a situation where
Ms. Stahl will be attempting to convince [K.S.]that this is a
lie. Her first reaction was to call the child a liar on the
phone, and I do not think her mind has changed. The only way
to make sure the child is protected is to maintain the order
of protection against Ms. Stahl . . . .
court extended the order of protection to April 7,
2017. The final order of protection
memorializing the court's oral findings was entered on
January 24, 2017. The order found that K.S. was "in
immediate and present danger of domestic abuse." This
standard of review following a bench trial is whether the
circuit court's findings are clearly erroneous or clearly
against the preponderance of the evidence. Wornkey v.
Dean, 2017 Ark.App. 176, at 4, 517 S.W.3d 438, 441. A
finding is clearly erroneous when, although there is evidence
to support it, the reviewing court on the entire evidence is
left with a definite and firm conviction that a mistake has
been made. Id., 517 S.W.3d at 441. Disputed facts
and determinations of the credibility of witnesses are within
the province of the fact-finder. Id., 517 S.W.3d at
challenges the sufficiency of the evidence to support the
final order of protection, contending that the circuit court
erred in finding evidence of domestic abuse. She argues that
the circuit court made no specific findings that she
committed domestic abuse against K.S.- only that she failed
to protect K.S. from Holcombe and that she insisted that K.S.
was lying- and that this evidence is insufficient. Stahl
further argues that while the circuit court may have been