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Shepherd v. Tate

Court of Appeals of Arkansas, Division II

February 27, 2019

RAY SHEPHERD APPELLANT
v.
CASSANDRA TATE APPELLEE

          APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43DR-18-212] HONORABLE JASON ASHLEY PARKER, JUDGE

          Ryan C. Allen, for appellant.

          One brief only.

          WAYMOND M. BROWN, JUDGE

         This is a one-brief appeal from the circuit court's denial of appellant's motion to set aside its permanent order of protection. On appeal, appellant argues that the circuit court erred in (1) determining that service of the notice of hearing was sufficient and (2) finding that there was sufficient evidence to grant the order of protection.[1] We affirm.

         On March 19, 2018, appellee filed a petition for order of protection from appellant. In her accompanying affidavit, appellee asserted that two weeks prior, appellant had drugged and raped her, that she had filed a police report, and she was "scare [sic] for [her] life [appellant] [sic] said he would kill [her] if [she] told any one [sic]." The circuit court entered an ex parte order of protection that same date, effective until April 16, 2018, the date upon which a hearing had been set.

         Appellant's counsel entered an appearance on April 12, 2018. He also filed a motion for continuance on that date, asserting a scheduling conflict with a previously scheduled matter in another county. In granting the continuance motion, the circuit court entered an amended ex parte order of protection effective until the new hearing date on May 14, 2018. The amended order was electronically filed on April 13, 2018.

         Neither appellant nor his counsel appeared at the May 14, 2018 hearing. The circuit court made these findings at the hearing:

COURT: Okay. Well, let me just take care of -- it was originally set for April 16th. Mr. Shepard hired an attorney. He was -- it conflicted with his schedule. I believe we got a hold of you and let you know it was reset.
COURT: -- to today's date. His attorney was Mr. Allen who filed that motion. I entered a new order resetting that matter for today's date. He and his attorney have not appeared so I will let you proceed. The hallway has been sounded. Was there an answer for Mr. Shepard?
THE BAILIFF: No response.
THE COURT: All right. He was served. His attorney filed the continuance by eFiling. The Court filed an -- a order by eFiling granting the continuance.

         The circuit court then allowed appellee to testify regarding what appellant had "done to make [her] fearful for [her] life or what he's done to make threats against [her] or acts of violence that he's committed against [her]." In its entirety, appellee's testimony was as follows:

He raped me and he stuck a gun to my head and I -- just other threats and stuff. He hasn't bothered me since the order of protection though, but I'd like to keep it. Because I'm fixing to have a real major surgery after today. And I see like a red truck, because he drives a red truck, and I panic all of the time and I have to see therapy about it. This has been turned over to the ...

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