Opinion
No. CA12-516
02-13-2013
TRAVIS L. HANCOCK APPELLANT v. AMANDA HANCOCK APPELLEE
Tripcony, May & Associates, by: Stephanie A. Linam, for appellant. No response.
APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT [NO. DR-2012-9-1]
HONORABLE CHRIS E WILLIAMS, JUDGE
AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Appellant Travis Lee Hancock files this one-brief appeal from the final order of protection entered by the Hot Spring County Circuit Court. He argues that appellee Amanda Hancock failed to provide sufficient evidence to show that the victims listed in her petition were in immediate and present danger of domestic violence. He maintains that the evidence she presented was inconsistent, not only with that presented by the other witnesses, but also with her own testimony—indicating that the veracity of her testimony is subject to scrutiny and question. We affirm.
A petition for an order of protection was filed on January 9, 2012, at 3:43 p.m., by appellee on behalf of herself and her three minor children, C.H., born July 14, 2006; S.H., born August 10, 2009; and K.H., born September 7, 2011. Her petition stated as follows:
For a week or so up to 1-6-12, I noticed change in kids. I recently went back to work[,] and he [Travis Hancock] stays w/kids. 1-6-12 approx. 10:00 to 10:20 p.m.Appellee listed the domestic-abuse acts appellant allegedly committed and checked that she was afraid of appellant because there was an imminent and present danger of domestic abuse. An ex parte order of protection was filed on the same date and time that the petition was filed.
I asked [C.H.] how it was staying with [D]addy. She said, "He whipped" them daily. Her not much. [G.H.] a lot all day. Said it hurt worse than a belt. I don't know how she knows what a belt feels like. She says he leaves 4 mo. old [K.H.] in swing all day crying. He makes (us) then wait till his movie or game is over b4 he will get them drink and/or food they ask for.
10:30 p.m. [H]e was mad got in my face[,] maybe an inch from my face[, and] said I am a bitch. Then [he] slapped my face amazingly hard, head flew right, spine made [a] pop noise[,and a] couple [of] teeth were chipped. When he hit me, I had my 4 month old in my left arm. After the slap [,] he took off running. My 5 yr and 2 yr old were just behind me to right. . . . I am afraid for my life and the lives of my 3 children.
The hearing on the ex parte order of protection was held on February 7, 2012, after which, the trial court issued a final order of protection effective until February 7, 2014. The order, which covers appellee and the parties' three minor children, states that appellant is restrained from committing any criminal acts against the victims, that he is prohibited from initiating any contact with the victims including, but not limited to, physical, telephonic, electronic, oral, written, visual, or video contact, and that he is prohibited from using a third party to contact the victim except by legal counsel as authorized by law or court order. The trial court made no provision for any visitation between appellant and the children. Following the entry of the final order of protection, appellant filed a motion for reconsideration on February 22, 2012, and a subsequent notice of appeal on March 28, 2012.
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. Paschal v. Paschal, 2011 Ark. App. 515. 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. Disputed facts and determinations of credibility of witnesses are both within the province of the fact-finder. Id.
In order to obtain an order of protection, a petitioner must produce sufficient evidence to show that the victims listed in the petition for an ex parte order of protection are in imminent and present danger of domestic abuse. Ark. Code Ann. § 9-15-206(a) (Repl. 2009). This court, in Simmons v. Dixon, 96 Ark. App. 260, 240 S.W.3d 608 (2006), defined "imminent" to mean likely to occur at any moment.
In concluding that a final order of protection was necessary in this case, the trial court found as follows:
The Court finds that there was domestic violence occurred [sic] upon [appellee] on January the 6th. At the time Chaney appeared and did an investigation. Court finds that there has been past conduct of the same or similar nature based on [appellant's] admissions concerning letters he has written to them. Also based upon what law enforcement has testified about the numerous incidents being involved and the Department of Human Services being involved in investigations involving these two parties. It appears that there has been a substantial amount over a period of time of abuse that has culminated to the need of an Order of Protection to be entered. Court enters an Order of Protection in this case against the defendant, Mr. Hancock. That Order of Protection will be effective until February the 7th of 201[4].
The best thing that this Court can do is hope that you two will stay away from each other. Why? It seems like that there is enough attitude and enough problems between the two of you that at some point in time it's going to culminate in death.
Although listed as a separate point on appeal, appellant's undeveloped argument regarding the sufficiency of the evidence supporting the allegation that the victims listed in the petition were in imminent and present danger of domestic abuse is merely an introduction into his request that this court reweigh the disputed testimony and credibility of the witnesses in this matter. Appellant submits that the testimony of all witnesses, including appellee, is key in this case because the testimony indicates that appellee has been repeatedly inconsistent, indicating that the veracity of her testimony is subject to scrutiny and questioning. He also argues that appellee's memory of key events differs from the memories of the sworn officers of the court, namely, Corporal Bryan Chaney, Private Johnny Nicklaus, and DCFS worker Patrice White.
This court gives due regard to the opportunity of the trial court to judge the credibility of the witnesses and the weight to be given to their testimony, Paschal, supra, and disputed facts and determinations of credibility of witnesses are both within the province of the fact-finder. Id. Based upon our review of the entirety of the evidence, we are not left with a definite and firm conviction that a mistake has been made.
Appellant complains that the trial court did not address the issue of visitation in the final order of protection. Arkansas Code Annotated section 9-15-205(a)(3) provides that the award of visitation is discretionary. Additionally, appellant failed to raise this issue with the trial court at the time the trial court announced its ruling. Richardson v. Brown, 2012 Ark. App. 535, ___ S.W.3d ____. Accordingly, we decline to address the issue.
Affirmed.
PITTMAN and WALMSLEY, JJ., agree.
Tripcony, May & Associates, by: Stephanie A. Linam, for appellant.
No response.