{ "id": 6137550, "name": "John CLARK v. Tara HENDRIX", "name_abbreviation": "Clark v. Hendrix", "decision_date": "2003-12-03", "docket_number": "CA 03-326", "first_page": "106", "last_page": "114", "citations": [ { "type": "official", "cite": "84 Ark. App. 106" }, { "type": "parallel", "cite": "134 S.W.3d 551" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "70 S.W.2d 563", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 3, "year": 1934, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "189 Ark. 117", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425453 ], "weight": 2, "year": 1934, "pin_cites": [ { "page": "121-22" } ], "opinion_index": 0, "case_paths": [ "/ark/189/0117-01" ] }, { "cite": "244 Ark. 252", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719067 ], "weight": 9, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/244/0252-01" ] }, { "cite": "242 S.W. 826", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1922, "opinion_index": 0 }, { "cite": "154 Ark. 528", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1361222 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/ark/154/0528-01" ] }, { "cite": "324 Ark. 128", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9158810 ], "weight": 3, "year": 1996, "pin_cites": [ { "parenthetical": "citing in support, inter alia, Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826 (1922); Doss v. Taylor, 244 Ark. 252, 424 S.W.2d 541 (1968)" }, { "parenthetical": "citing in support, inter alia, Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826 (1922); Doss v. Taylor, 244 Ark. 252, 424 S.W.2d 541 (1968)" } ], "opinion_index": 0, "case_paths": [ "/ark/324/0128-01" ] }, { "cite": "70 Ark. App. 88", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137772 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/70/0088-01" ] } ], "analysis": { "cardinality": 724, "char_count": 15643, "ocr_confidence": 0.754, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.47242831531876955 }, "sha256": "9a27b08c37421c952dfc7a158468db340600c2e6bf12a1a0fcd4f857dc5a58fd", "simhash": "1:5571e65a12327c11", "word_count": 2553 }, "last_updated": "2023-07-14T22:52:08.452411+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman and Hart, JJ., agree." ], "parties": [ "John CLARK v. Tara HENDRIX" ], "opinions": [ { "text": "Wendell L. Griffen, Judge.\nThis case arises from a no-contact order issued by the White County Circuit Court, preventing appellant, John Clark, from exercising filial visitation rights granted by the Pulaski County Circuit Court. Appellant now argues that the White County Circuit Court (1) did not possess subject-matter jurisdiction to issue the order of protection; (2) erred in examining appellant concerning testimony that that trial court had previously ruled inadmissible; and (3) erred by making a finding that was clearly erroneous and unsupported by substantial evidence. Ap-pellee, Tara Hendrix, did not file a response. We reverse and dismiss for lack of subject-matter jurisdiction.\nAppellant and appellee were married and divorced in the early 1990s. They have one daughter from that marriage who was ten years of age at the time of the incident involved in this case. Appellant is a resident of the State of Texas; appellee is a resident of Pulaski County, Arkansas. On October 22, 2002, appellee filed a petition for an order of protection against appellant in the White County Circuit Court. In that petition, she alleged that on May 27, 2002, appellant had been seen at a restaurant in Searcy, White County, Arkansas, while on visitation with their ten-year-old daughter, severely berating her, beating her on the buttocks and legs while holding her in the air, and getting involved in verbal fights with intervening restaurant patrons. The local police intervened but did not pursue an investigation. The Arkansas Department of Human Services (ADHS) also investigated, but concluded that evidence of child abuse was insubstantial. Several witnesses submitted notarized affidavits of what they had seen at that restaurant.\nUpon appellee\u2019s petition, the White County Circuit Court issued an ex parte temporary order of protection on October 22, 2002. That order restrained appellant from committing any acts of domestic abuse and excluded him from the dwelling of appellee and her child in Little Rock as well as from the places of appellee\u2019s employment and the child\u2019s school, both in Little Rock. Specifically, the order restrained appellant \u201cfrom harassing, assaulting, threatening, physically abusing, mentally abusing, molesting,\u201d or otherwise bothering either- petitioner or the child. The order commanded, appellant to appear at the White County Circuit Court on November 20, 2002, for a show-cause hearing.\nOn November 20, 2002, the parties convened at the White County Circuit Court. Appellee, acting pro se, tried to testify about the alleged child abuse incident of May 27, 2002. When she repeatedly tried to refer to letters and affidavits from potential witnesses, counsel for appellant objected and the trial court sustained the objection on the basis of hearsay. The trial court also instructed appellee that she must have those witnesses present in court to get their statements into evidence.\nAppellee then continued to testify that they have been \u201cin and out of court in Pulaski County maybe three times now.\u201d She stated that she was trying to obtain supervised visitation at the Pulaski County Circuit Court because she was afraid that appellant might harm the child during visitation.\nIn subsequent testimony, appellee referred to e-mails from appellant, in which he acknowledged that he had spanked the child. -She stated further that she had waited until October 22, 2002, to file a petition for a protective order because she did not know that such a step was available to her. She admitted that she had not told the White County Circuit Court that she had been scheduled for a contempt hearing in the Pulaski County Circuit Court on October 24, 2002, two days after filing the petition in White County.\nAppellee testified about the contempt hearing in Pulaski County. The trial judge in Pulaski County granted a continuance', but also ordered that visitation resume on October 24, 2002, or thereabout. Appellee also stated that \u201call of the witnesses\u201d concerning the Searcy restaurant incident had come to Pulaski County Circuit Court to testify. The Pulaski County Circuit Court subsequently referred appellant and appellee into mediation, during which time visitation had to continue as originally ordered \u2014 which involved dropping off the child at appellant\u2019s mother\u2019s residence in Searcy.\nAppellee next testified that the ADHS investigated the Searcy incident and that she received a notification that the evidence did not support an allegation of child mistreatment. Appellee admitted that she did not notify the White County Circuit Court of the ADHS notification because she was \u201cfighting them and I think what the [ADHS] did was wrong.\u201d She stated that she was \u201clooking for some kind of supervised visitation.\u201d\nCounsel for appellant moved to dismiss the case in White County Circuit Court. He stated:\nI move to dismiss for two reasons. Jurisdiction is one. I believe the proof has shown, this matter and these facts are before the Court in Pulaski County. Not only is the Court dealing with the contempt and the ongoing battle between these parties, but the Court is dealing specifically with the incident specified in this Order of Protection, and after hearing that entire evidence, the Court continued visitation, so that is the jurisdiction objection for, or jurisdictional basis for this.\nThe trial court denied the motion with the following statement:\nI believe any Court can hear a domestic abuse case at the same time another Court is hearing all the same issues in a divorce case or in the aftermath of the divorce case, so as a jurisdictional thing I think this court has a right to hear the case if it wants to. Now, I could easily defer to that Court if I chose to do so, but I don\u2019t believe that I\u2019m required to defer. That is my understanding of this new law.\nCounsel for appellant then argued, as an alternate reason to dismiss the case, that the timing of the petition for a protective order was suspicious in that it occurred two days before a contempt hearing in another court, five months after the alleged incident. Again, the trial court denied the motion to dismiss.\nAppellant then presented his case to the White County Circuit Court. During his testimony appellant repeatedly accused appellee of failing to cooperate with him in visitation and child-rearing matters and generally cast a negative light on appellee. He mentioned that appellee had not informed him of a new medication for their daughter until shortly before the alleged incident and that he may have erred in his judgment by withholding that medication because he did not then believe that their daughter truly needed it. Appellant, too, referred to testimony in Pulaski County Circuit Court, where he admitted that he probably should have continued the medication.\nSpecifically, appellant testified about the Searcy restaurant incident. According to him, the child became very unruly during the restaurant visit. Appellant testified that he took the child outside because of her conduct. When a little \u201cscuffle\u201d ensued, he spanked her \u201cthree times.\u201d He expressed understanding for other restaurant guests becoming upset, even to the point of intervening, but he also admitted that at the time he felt very agitated by the circumstances. He denied throwing objects inside the restaurant, as some of the witness affidavits had stated. He also denied lifting the child into the air.\nThe White County Circuit Court then continued the case until November 27, 2002, to afford appellee time to present witnesses instead of affidavits. The first witness was Greg Harnden, the Director of Athletics at Harding University, Searcy. He stated that appellant was yelling at the child inside the restaurant. He testified that he saw appellant\u2019s shoes \u201ccome flying over the table on the floor,\u201d followed by a bill-holder. According to Harnden, appellant picked up the child and carried her out. Harnden followed appellant outside and saw appellant \u201cholding her kind of like you\u2019d hold a log and he was whaling on her.\u201d Harnden agreed with appellant, however, that his fist was not closed and that he was hitting her from her waist down. Harnden stated that he and two other men then intervened. He testified that appellant was particularly upset with one younger man who tried to stop the beating. According to him, appellant used profanity.\nRodney Rains had also been eating lunch at the Searcy restaurant. He testified that he observed appellant \u201cfussing at his daughter first,\u201d then yelling at the two women who also sat at appellant\u2019s table \u2014 his mother and his fiancee. Rains explained that he and his party left early to get away from the noise, but that they saw appellant \u201cdragging\u201d the girl as they were getting ready to drive off, \u201cpulling her by the arm,\u201d and having her in a \u201cheadlock\u201d at one point. During that time, appellant was trying \u201cto swat at her and hit her several times,\u201d using \u201csome awful bad language.\u201d Rains called the police and intervened along with the others.\nAfter that, Robert Edison testified. He was a police officer with the North Little Rock Police Department. He testified that he was ordered to serve an order of protection on appellant, on October 23, 2002. Edison further testified that he saw that appellant was agitated about it, but that appellant by and large kept his temper. Edison stated that, at that point in time, he had not been aware of the fact that appellant and appellee were at the location where he served the order of protection in order to undergo court-ordered mediation.\nAnother witness, Denise Cobb, a friend of appellee, testified that the child at one point told her that appellant sometimes does not allow her to wear eyeglasses because he does not think she needs them.\nEvelyn Clark, the mother of appellant, also testified. Her testimony concurred with appellant\u2019s in that they had not known about the child\u2019s new medication until shortly before the Searcy restaurant incident. Evelyn Clark also confirmed that the child acted very abnormally in the restaurant and was extremely agitated. She stated that she never saw any spanking because she had stayed inside.\nDuring his final remarks, the trial judge specifically stated that appellant had done \u201cnothing but vilify [appellee] by the other evidence.\u201d The trial court continued to state that it does not \u201cknow whether those things are true or not, but she hasn\u2019t responded in kind, and it really doesn\u2019t matter because I believe that you are a threat to this child and I don\u2019t think you ought to be around this child.\u201d The trial court entered an order of protection valid for one year. Appellant then brought this appeal.\nSubject-Matter Jurisdiction\nAppellant first and foremost argues that the White County \u25a0Circuit Court was without subject matter jurisdiction to decide the order for protection because the order pertained to an ongoing matter in Pulaski County Circuit Court. We agree.\nIt is well settled in Arkansas that a trial court presiding over visitation issues maintains continuing jurisdiction over visitation, modification, or vacation of such orders. Stellpflug v. Stellpflug, 70 Ark. App. 88, 14 S.W.3d 536 (2000). Specifically, our supreme court has held that when a case is brought in a court of competent jurisdiction, the authority and control of that court over the case continues until the matter is disposed of in the appellate court. Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996) (citing in support, inter alia, Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826 (1922); Doss v. Taylor, 244 Ark. 252, 424 S.W.2d 541 (1968)). In the Tortorich case, a wife obtained a limited divorce in Pulaski County, for which an appeal was still pending. Id. The Pulaski County Circuit Court, at that time still the Chancery Court, specifically had retained jurisdiction for further orders. See id. Her husband then moved to Saline County and filed for an absolute divorce there, before the appellate revision had become available. Id. The wife moved to dismiss the action in Saline County because of pendency of the Pulaski County action between the same parties arising out of the same occurrence. Id. The trial court in Saline County denied dismissal and- granted the husband an absolute divorce, with terms differing from the order from the Pulaski County trial court. Id.\nThe Tortorich court based its decision in part on Ark. R. Civ. P. 12(b)(8), which provides that a cause may be dismissed because of \u201cpendency of another action between the same parties arising out of the same transaction or occurrence.\u201d Id. In addition, the Tortorich court referred to another case in which one party had brought a suit to foreclose on property in chancery court, while at the same time bringing an action in replevin in circuit court, as two separate causes of action on the same subject matter. Id. (citing Moore v. Price, 189 Ark. 117, 70 S.W.2d 563 (1934)). The Moore court held that the chancery court, being the first to acquire jurisdiction, had jurisdiction to bring adequate and complete relief, and that the party could not bring an action for replevin in circuit court as well. Id. Relevant for the analysis of the instant case, the 1934 reasoning-employed by our supreme court was:\nThis rule rests upon comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results.\nId. at 131, 919 S.W.2d at 214 (citing Moore v. Price, 189 Ark. at 121-22, 70 S.W.2d at 565) (emphasis ours).\nHere, the Pulaski County Circuit Court had ongoing jurisdiction over the visitation dispute between the parties. Even though appellant did not include any documentation of the Pulaski County Circuit Court proceedings in the addendum of his brief and even though none of the Pulaski County proceedings became part of the record of the White County proceedings, the record makes it abundantly clear, by testimony of both appellant and appellee, that the Pulaski County Circuit Court had a proceeding ongoing concerning their visitation dispute. It also becomes clear that the Pulaski County court had available the same testimony concerning the Searcy restaurant incident. Notably, the record reflects that the trial judge in White County was on notice that the Pulaski County court either had dealt with the matter or was in the process of dealing with it.\nConsequently, we hold that the trial judge erred when he assumed jurisdiction over the matter. It is true that, strictly speaking, the Pulaski County Circuit Court did not have before it a protective order. However, it had before it appellee\u2019s continuous desire to have visitation modified. The protective order from November 2002, while certainly going to the heart of an incident that occurred within the jurisdiction of the White County Circuit Court, primarily dealt with the issue of whether appellant could exercise his right to visitation for another year. In light of the fact that the Pulaski County court dealt with anything that might affect the valid and ongoing Pulaski County Circuit Court visitation order in the parties\u2019 case, the White County Circuit Court should have refrained from exercising its jurisdiction. Therefore, we reverse and dismiss. As such, it becomes unnecessary to discuss appellant\u2019s remaining points on appeal.\nReversed and dismissed.\nPittman and Hart, JJ., agree.", "type": "majority", "author": "Wendell L. Griffen, Judge." } ], "attorneys": [ "Therese M. Free, for appellant.", "No response." ], "corrections": "", "head_matter": "John CLARK v. Tara HENDRIX\nCA 03-326\n134 S.W.3d 551\nCourt of Appeals of Arkansas Division I\nOpinion delivered December 3, 2003\nTherese M. Free, for appellant.\nNo response." }, "file_name": "0106-01", "first_page_order": 130, "last_page_order": 138 }