Claver v. Wilbur

280 S.W.3d 570, 102 Ark. App. 53, 2008 Ark. App. LEXIS 262
CourtCourt of Appeals of Arkansas
DecidedMarch 19, 2008
DocketCA 07-871
StatusPublished
Cited by8 cases

This text of 280 S.W.3d 570 (Claver v. Wilbur) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Claver v. Wilbur, 280 S.W.3d 570, 102 Ark. App. 53, 2008 Ark. App. LEXIS 262 (Ark. Ct. App. 2008).

Opinion

Robert J. Gladwin, Judge.

Appellant Brian Claver appeals the two-year order of protection entered against him on April 26, 2007, which directed him to refrain from contact with appellee Misty Wilbur’s minor daughter, S.W., until April 27, 2009, or face a penalty of one-year imprisonment in the county jail or a fine of $1,000, or both. On appeal, he argues that the entry of the protective order was erroneous and unsupported by the evidence. We agree; accordingly, we reverse and dismiss.

On April 4, 2007, appellee filed a petition and accompanying affidavit on behalf of her then sixteen-year-old daughter, S.W., seeking an order of protection against appellant, who was then twenty years old. The petition alleged that, over the preceding six years, appellant had physically, emotionally, and sexually abused and manipulated S.W. Appellee asserted in the petition that appellant had picked S.W. up from school on two occasions without parental permission. She further alleged that appellant aided S.W. in obtaining an abortion and that, some forty-two days subsequent to the initial abortion, he purchased the morning-after pill and gave it to S.W. for the purpose of terminating a second pregnancy. Appellee detailed in her affidavit how appellant had called S.W. names including “slut,” “whore,” and “b***h” and encouraged S.W. to sneak out of the family’s house. Based upon the petition and affidavit, an ex parte order of protection was issued on April 4, 2007, and a hearing was scheduled for April 26, 2007.

At the hearing on the petition, the circuit judge asked each of the parties a brief series of questions from the bench. Appellee specifically testified that appellant was seeing S.W., her sixteen-year-old daughter, and encouraging S.W. to sneak out because appellee tried to stop contact between them. Appellee also testified that S.W. had become pregnant and that she believed appellant bought S.W. the morning-after pill.

The circuit judge then questioned appellant, who admitted that, even after appellee and her husband prohibited contact, he continued to see S.W. when she initiated the contact. He acknowledged that he was twenty years old and that S.W. was sixteen years old. Upon appellant’s admitting that he bought the morning-after pill for S.W., the circuit judge abruptly concluded the questioning, stating, “[a]ll right that’s enough for me.”

The circuit judge then allowed counsel for the parties to make closing statements. Appellee’s attorney declined, but appellant’s attorney argued that, as it related to the requested protection order, domestic abuse is defined as physical harm, bodily injury, or assault. He contended that the mere purchase of the morning-after pill failed to rise to that level of abuse, and requested that the circuit court refrain from issuing the order of protection.

The circuit court granted the request for the order of protection and asked appellee how long she wanted the order to be in effect. Appellee stated, “[t]wo years,” and the circuit court immediately issued the order for that length of time without further comment or discussion. The order was filed the same day, on April 26, 2007, and appellant filed a timely notice of appeal on May 21, 2007. This appeal followed.

Standard of Review

Our 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. Newton v. Tidd, 94 Ark. App. 368, 231 S.W.3d 84 (2006). 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. Simmons v. Dixon, 96 Ark. App. 260, 240 S.W.3d 608 (2006). Disputed facts and determinations of credibility of witnesses are both within the province of the fact finder. Pablo v. Crowder, 95 Ark. App. 268, 236 S.W.3d 559 (2006).

Additionally, this court reviews issues of statutory interpretation de novo, as it is for the appellate court to determine the meaning of a statute. See Miss. River Transmission Corp. v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002). We are not bound by the circuit court’s interpretation, but in the absence of showing that the circuit court erred in its interpretation, that decision will be accepted as correct on appeal. Id. The first rule in considering the meaning and effect of a statute is to construe it as it reads, using the ordinary and usually accepted meaning in common language. Id. We need not resort to the rules of statutory construction when the language of a statute is plain and unambiguous. Id. However, when the meaning is not clear, we look to the language of the statute, the subject matter, the objective to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. The basic rule of statutory construction is to give effect to the intent of the legislature. Id.

Discussion

The purpose of the Domestic Abuse Act is specifically set out in Ark. Code Ann. § 9-15-101 (Repl. 2008), and states:

The purpose of this chapter is to provide an adequate mechanism whereby the State of Arkansas can protect the general health, welfare, and safety of its citizens by intervening when abuse of a member of a household by another member of a household occurs or is threatened to occur, thus preventing further violence. The General Assembly has assessed domestic abuse in Arkansas and believes that the relief contemplated under this chapter is injunctive and therefore equitable in nature. The General Assembly of the State of Arkansas hereby finds that this chapter is necessary to secure important governmental interests in the protection of victims of abuse and the prevention of further abuse through the removal of offenders from the household and other injunctive relief for which there is no adequate remedy in current law. The General Assembly hereby finds that this chapter shall meet a compelling societal need and is necessary to correct the acute and pervasive problem of violence and abuse within households in this state. The equitable nature of this remedy requires the legislature to place proceedings contemplated by this chapter under the jurisdiction of the circuit courts.

Domestic abuse, as covered in the act, is defined in Ark. Code Ann. § 9-15-103(3) (Repl. 2008), which states:

(3) “Domestic abuse” means:
(A) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members; or
(B) Any sexual conduct between family or household members, whether minors or adults, which constitutes a crime under the laws of this state ....

Appellant and S.W. are considered family members under the act pursuant to subsections (3) and (4) which provide:

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Cite This Page — Counsel Stack

Bluebook (online)
280 S.W.3d 570, 102 Ark. App. 53, 2008 Ark. App. LEXIS 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claver-v-wilbur-arkctapp-2008.