Opinion
CV-22-763
02-07-2024
DAVID OWEN APPELLANT v. CAMI OWEN APPELLEE
David Owen, pro se appellant.
APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03DR-19-376] HONORABLE JOHNNIE A. COPELAND, JUDGE
David Owen, pro se appellant.
One brief only.
RITA W. GRUBER, JUDGE
In this one-brief case, David Owen, pro se, appeals a temporary order of protection entered by the Baxter County Circuit Court on September 13, 2022. He asserts that the circuit court erred by disregarding appellee Cami Owen's and her mother's "regular practice" of filing for "frivolous protection orders," not considering the "deficiency of evidence," "converting a protection order filing into a custody matter," and disregarding hearsay objections, "which prejudiced the case." We dismiss.
Both parties appeared pro se in front of the circuit court, and Cami filed no brief with this court.
On August 22, 2022, Cami filed a petition for an order of protection on her behalf as well as that of her two children, MC1 (female) and MC2 (male), in which she made the following allegations. She was awoken very early in the morning by her mother, Maria McDaniel, who explained that David (Cami's ex-husband) had been incarcerated for a second assault charge against his current wife, Shasta. Cami further alleged that she spoke to David while he was at the jail, and he yelled at her to go pick up their son-MC2-from Shasta. Cami and Maria then went to Little Rock to pick up MC2. Since David was released from "Pulaski County," he has shown "worrisome behavior" along with "severe aggression." He has commented that he was going to kill Maria, which was reported to the "Sheriff's office." Cami is worried for her, the children's, and Maria's safety. She is afraid to stay at her house, and the children are scared when they think David is coming.
On August 23, David responded to the petition, stating that Maria's allegations were made to gain guardianship of the children, and Cami's allegations are an effort to gain custody of the children. He claimed they have filed numerous false affidavits and reports in the past, which should be considered harassment. He requested that the petition be denied.
On August 24, an ex parte order of protection was entered, finding that there was sufficient evidence to show that David presented a credible threat and that the stated victims were in immediate and present danger of domestic abuse. The order was effective until a September 13 hearing and covered both children and Cami. It prohibited all forms of contact as well as David's presence at Cami's home, Cami's workplace, and the children's school.
Cami replied to David's response that same day. She stated that she heard David threaten to kill her mother because her mother had him on speakerphone, and there is an order of protection in place for her mother due to those threats. She denied that her allegations were false or an attempt to gain custody of the children, stating that she was only trying to protect them. She expressed concern regarding David's "alcoholism," his increasing anger since he has remarried, and the children's witnessing "physical fights."
A hearing was held on September 13 at which Cami, Maria, David, and his fourteen-year-old stepdaughter, MC3, were initially identified as witnesses. Cami testified as follows. She and David had been married but are now divorced. David is the biological father of their son, MC2, and the adoptive father of her daughter MC1. David was granted sole custody of both MC1 and MC2, and she was given no visitation. However, David has since said Cami may keep MC1 because MC1 is old enough to choose where she wants to live, MC1 wants to live with Cami, and David has respected MC1's choice. She testified further regarding MC1's mental-health issues, which her doctor believed had been due to her living "situation." Both David and Shasta are currently being investigated by child protective services; Cami is not. Cami explained that the ex parte order of protection had granted her temporary custody of both MC1 and MC2. She testified to the allegations contained in her petition, adding that after she and her mother picked up MC2, David demanded that MC2 be returned to him, and she and her mother were going to return MC2, but then David made a statement that he hated Cami's mother and was going to "f**king kill her." She further testified that David had assaulted Shasta twice and had been arrested both times.
Cami's mother, Maria, then testified as follows. David called and spoke aggressively to Maria, demanding MC2 be returned to him. David said he "f**king hated her" and was going to kill her. She filed a report with the Baxter County Sheriff's Department over the allegations. Marie further testified regarding the children's behavior, at several points drawing a hearsay objection from David when it appeared as though she was going to testify regarding something one of the children said. The court did not specifically rule on the objection, but instructed Maria more than once that she could not testify as to what someone else said, including the children. She did testify that MC1 absolutely refused to go back to David's house and that MC2 has been very aggressive but is getting better. She also testified that MC2 screamed at her that he was going to do to her what David did to Shasta; and when she asked what that was, MC2 showed her that David pushed Shasta and put his hands on her throat choking her. The children and Cami currently live with Maria.
David testified next and as follows. He was arrested for second-degree misdemeanor assault, and he did call and request that Cami and Maria pick up MC2, but Maria was due to pick up MC2 that morning anyway. He does not remember much from the day he was arrested. He had recently been prescribed a medication for weight loss, and he had "extreme side effects" when he took it the first time. The children were not involved in the recent incident-MC2 was asleep in his bedroom. David stated he has "fully cooperated with DHS," which has been in his home and spoken with his stepchildren and the other daughter over whom he has custody. There was a full investigation, including one by the police. He has sole custody of all his children, and he has been raising them by himself for the last three years while Cami was incarcerated. This was protection order "number eighteen" filed in the last two years by either Maria or Cami across two different counties, and David believes that it is an improper effort to obtain custody of the children. He was recently charged, but he will be found innocent. David believes that this is a campaign of malicious litigation with multiple instances of false allegations. David opted not to call his stepdaughter as a witness.
The court ruled from the bench that based on everything it had heard, it believed the proper place to "flesh everything out" was in a custody-modification proceeding. However, the court stated it was going to issue an amended temporary order of protection for eighty-nine days, noting that the children had been exposed to some domestic violence. The court suggested the parties retain counsel and file any "proper paperwork" in their divorce case. The amended ex parte temporary order of protection was entered on September 13. It applied to Cami, MC1, and MC2. It reflected that the court had found "that the victims are in immediate and present danger of domestic abuse," and Cami had "presented sufficient evidence to show that [David] presents a credible threat to the physical safety of a person named in the order of protection as a family member or household member, a child of the family or household member, or a child of the respondent or enjoined party." It prohibited David from Cami's home and workplace and the children's school, as well as all forms of contact. The portion of the form order that permits the court to award temporary custody is blank. The temporary order of protection expired under its own terms on December 11, 2022. It is from this order that David timely appealed on September 16, abandoning any pending but unresolved claims.
The standard of review after an order of protection is granted is whether the circuit court's findings are clearly erroneous. Morales v. Morales, 2023 Ark.App. 582, at 5. 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 committed. Id. Disputed facts and determinations of the credibility of the witnesses are within the province of the fact-finder. Id.
As a threshold matter, we must determine whether the issue before us is moot. The issue of mootness was not raised by the parties; rather, it is a jurisdictional issue that may be raised by the court on its own motion. Gee v. Harris, 94 Ark.App. 32, at 33, 223 S.W.3d 88, 88 (2006). Generally, an issue is moot if any judgment or opinion issued by a court would have no practical effect upon a then existing legal controversy. James v. Walchli, 2017 Ark.App. 645, at 6, 535 S.W.3d 679, 683. A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal. Id. An opinion rendered on an issue that is moot would be advisory, and we do not render advisory opinions. Id. We have recognized three exceptions to the mootness doctrine: (1) issues that are capable of repetition yet evade review; (2) issues that raise considerations of substantial public interest, which if addressed would prevent future litigation; and (3) issues that have collateral consequences, as in those that attend felony convictions, misdemeanor convictions, criminal contempt, and orders of protection. Id.
For years, an appeal from an expired order of protection was dismissed as moot. See Gee, supra. This was so because the order had expired, neither the first nor the second exception to the mootness doctrine was applicable, and even if the circuit court had erred, the damage had already been done and could not be undone; thus, any judgment rendered by this court would have no practical effect upon an existing legal controversy. Id.
However, in 2017 there was a sea change. In a 5-4 opinion, we held for the first time that an appeal from an expired final order of protection was not moot because of "the collateral consequences that attend a finding of domestic abuse," recognizing a third exception to the mootness doctrine. Poland v. Poland, 2017 Ark.App. 178, at 5, 518 S.W.3d 98, 101. Some of the "ongoing collateral consequences" with which Poland was concerned included the impact on a subsequent petition for an order of protection, ongoing childcustody disputes, and potential employment as well as the "dissemination of the information to governmental and police agencies, harm to the defendant's reputation, and the stigma and opprobrium associated with domestic abuse." Id. at 8-9, 518 S.W.3d at 103. The Poland majority determined that under the circumstances of the case, the ongoing-collateralconsequences exception was met and addressed the merits, affirming the final order of protection, which had been entered for one year. Id.
Since Poland, it appears as though nearly every single appeal-if not every single appeal-that has come to this court from an expired order of protection has been addressed on the merits "due to the adverse collateral-consequences exception that attend a finding of domestic abuse." Kankey v. Quimby, 2020 Ark.App. 471, at 3, 611 S.W.3d 671, 672-73 (citing Poland, supra); see also Parsons v. Parsons, 2022 Ark.App. 493, at 5, 656 S.W.3d 188, 192. However, Poland explicitly states that the "issue of mootness must be decided in each case based on its facts." Poland, 2017 Ark.App. 178, at 9, 518 S.W.3d at 104.
Poland was concerned with the collateral consequences of a "finding of domestic abuse" contained within a final order of protection. Here, the circuit court found at the hearing that the children had been "exposed to some domestic violence." David testified that he had been arrested for, and charged with, second-degree misdemeanor assault over one of the incidents that gave rise to the filing of the petition; he has already been the subject of a "full investigation," by DHS and the police; and this has been protection order "number eighteen" in the last two years between two different counties, involving these same individuals.
Most importantly, the circuit court here declined to enter a final order of protection. The Domestic Abuse Act provides that at a hearing on a petition filed under it, "upon a finding of domestic abuse as defined in § 9-15-103(4)(A) and (B), the court may provide" relief "for a fixed period of time not less than ninety (90) days nor more than ten (10) years in duration." Ark. Code Ann. § 9-15-205(a), (b) (Repl. 2020) (emphasis added). However, an "ex parte temporary order of protection is effective until the date of the hearing" required by section 9-15-204. Ark. Code Ann. § 9-15-206 (Repl. 2020) (emphasis added). The order at issue here is clearly a temporary order of protection. The court refers to it as such; it was docketed as such; it is not titled a "final" order; and it was issued for eighty-nine days. Thus, this case is distinguishable from Poland and its progeny. Accordingly, on the facts of this case, an opinion from our court would not have any practical effect upon the legal controversy and would only be advisory. As such, the issue is moot, and we dismiss.
Dismissed.
THYER and BROWN, JJ., agree.