                                 Cite as 2017 Ark. App. 603


                   ARKANSAS COURT OF APPEALS
                                       DIVISION III
                                       No. CV-17-415


                                                  Opinion Delivered   November 8, 2017

ANDREA NICOLE STAHL                               APPEAL FROM THE BENTON
                              APPELLANT           COUNTY CIRCUIT COURT
                                                  [NO. 04DR-17-37]
V.
                                                  HONORABLE XOLLIE DUNCAN,
                                                  JUDGE
JACOB LEE SMITH
                                APPELLEE          REVERSED AND DISMISSED


                               LARRY D. VAUGHT, Judge

       Andrea 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.

       On 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,
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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.].”

       An ex 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.

       Smith 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. 1 In the petition, he requested that Stahl’s visitation with K.S. be

supervised.

       Stahl 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


       1Smith   also filed for an order of protection against Holcombe.
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Holcombe. Stahl also stated that she and Smith had communicated about lies K.S. had told

them about the other parent.

       At the 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 . . . .

The court extended the order of protection to April 7, 2017. 2 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 appeal followed.

       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. 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 441.

       Stahl 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


       2The  final order of protection has expired; however, pursuant to Poland v. Poland, 2017
Ark. App. 178, at 9, 518 S.W.3d 98, 103–04, Stahl’s appeal of the expired final order of
protection is not moot due to the exception for adverse collateral consequences that attend a
finding of domestic abuse.
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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 doing what it felt was necessary to protect K.S., there was simply no evidence that she

committed domestic abuse against K.S.

       A petition for an order of protection shall allege, among other things, the existence of

domestic abuse. Ark. Code Ann. § 9-15-201(e)(1)(A) (Repl. 2015). The petition shall be

accompanied by an affidavit made under oath that states the specific facts and circumstances

of the domestic abuse and the specific relief sought. Ark. Code Ann. § 9-15-201(e)(2).

“Domestic abuse” is defined as “[p]hysical harm, bodily injury, assault, or the infliction of fear

of imminent physical harm, bodily injury, or assault between family or household members.”

Ark. Code Ann. § 9-15-103(3)(A).

       Smith accuses Holcombe of sexually abusing K.S. Smith does not allege that Stahl

perpetrated physical harm, bodily injury, or assault on K.S., and there is no evidence on this

record that Stahl committed such harm, injury, or assault on her daughter. Therefore, the

circuit court must have relied on the second portion of the domestic-abuse definition—that

Stahl inflicted fear of imminent physical harm, bodily injury, or assault on K.S. The following

is the only evidence to arguably support such a finding: Smith testified that Stahl failed to

protect K.S. from Holcombe; Smith stated that he did not think it was appropriate that Stahl

accused K.S. of lying about the abuse allegations; Smith (and his wife) testified that Stahl was

aggressive and angry when she spoke with K.S. about the allegations; and Smith did not believe




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that Stahl should allow Holcombe to be around K.S. after the sexual-abuse allegations had

been made.

       We hold that this evidence is insufficient to support the domestic-abuse finding.

Assuming Smith’s testimony is true, there is absolutely no evidence in this case that Stahl in

any way caused the infliction of fear of imminent physical harm, bodily injury, or assault on

K.S. Further, we have found no Arkansas cases that support the circuit court’s finding.

Therefore, we hold that the circuit court clearly erred in entering the final order of protection

based on a finding that Stahl had committed domestic abuse against K.S. Accordingly, we

reverse and dismiss.

       Reversed and dismissed.

       HARRISON and GLOVER, JJ., agree.

       Keith, Miller, Butler, Schneider & Pawlik, PLLC, by: Mason L. Boling, for appellant.

       One brief only.




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