Hocut v. Hocut
| Decision Date | 09 November 2022 |
| Docket Number | CV-21-564 |
| Citation | 2022 Ark. App. 452,655 S.W.3d 527 |
| Parties | Timothy HOCUT, Appellant v. Hilary HOCUT, Appellee |
| Court | Arkansas Court of Appeals |
Miller | Butler | Schneider | Pawlik | Rozzell | PLLC, by: Alicia M. Canfield, for appellant.
Hillary Hocut, pro se appellee.
Timothy Hocut appeals the August 20, 2021 order of protection entered by the Boone County Circuit Court. He argues that (1) provisions of the Domestic Abuse Act, specifically Ark. Code Ann. § 9-15-205(b) (Repl. 2020) and § 9-15-207 (Repl. 2020), lack sufficient definiteness to provide proper notice and, therefore, are void for vagueness; (2) the circuit court committed clear error when it granted Hilary Hocut's order of protection because there was insufficient evidence that a present and immediate threat of domestic abuse existed; and (3) the circuit court committed clear error in allowing Hilary to relitigate issues supporting an expired order of protection rather than requiring new evidence to support the current petition. We affirm.
In November 2019, Timothy committed acts of domestic violence against Hilary that included hitting her numerous times, holding a loaded gun to her head, and not allowing Hilary to leave the residence with the parties’ children for over two hours. He was arrested for false imprisonment in the first degree, a Class C felony; aggravated assault on a family or household member, a Class D felony; terroristic threatening, a Class D felony; and domestic battery in the third degree, a Class A misdemeanor. Hilary was the primary witness to these charges.
In December 2019, Hilary was granted a one-year order of protection against Timothy that expired in December 2020. Although Hilary did not seek an extension of this order of protection prior to its expiration because Timothy's pending criminal trial was originally set for May 1, 2020, both counsel agreed that a new order would be issued at that time if the circuit court found it necessary.
Timothy's trial was moved from May 1 to August 28 because of the COVID pandemic. His attorney moved for a mental examination on May 27. On August 28, Timothy requested and was granted a continuance for a hearing on the forensic evaluation. The circuit court rescheduled the trial for September 28. Due to ongoing COVID issues, the trial was again moved from September 28 to May 24, 2021.
The circuit court ordered that Timothy have no contact with Hilary except as provided in the agreed visitation transfer for child visitation. The burden was placed on Timothy to avoid negative interaction, and he was informed that he must comply with the restrictions of the divorce and visitation agreement.
Pending trial, Timothy was required to wear an ankle monitor, but at some point, he successfully moved to have it removed because it was a financial hardship. On the same day that his ankle monitor was removed, Timothy violated the circuit court's order and went to Hilary's residence.
Timothy's criminal trial was subsequently delayed from May 24 to November 8 and then again to February 28, 2022. Timothy's lawyer moved for yet another continuance on February 14.
In the meantime, on July 14, 2021, Hilary filed a new petition for an order of protection against Timothy. On August 5, a hearing was held, and both parties presented evidence. Hilary appeared pro se and presented only her own testimony as evidence to support the new order of protection. During her testimony, Hilary alleged an event that occurred on July 2 at the Harrison, Arkansas, Walmart store involving Timothy and her. She alleged that Timothy was parked in the Walmart parking lot near her friends in an attempt to videotape her. Hilary also testified that Timothy is violent and aggressive such that the circuit court had ordered supervised visitation with their children pending his criminal trial. She also noted that he has previous law enforcement and military training. Timothy presented the testimony of two witnesses, his own and that of his mother, Tammy Hocut, in opposition to the order of protection.
At the conclusion of the hearing, the circuit court took the matter under advisement. Subsequently, the circuit court held a hearing via phone conference between the parties and Timothy's counsel; Hilary again represented herself. During this hearing, the circuit court clarified that Hilary's petition was for a new order of protection, not a request for an extension of the previous order of protection, and again took the matter under advisement.
On August 20, 2021, a one-year order of protection was entered against Timothy pursuant to section 9-15-207 of the Domestic Abuse Act. Timothy timely filed a notice of appeal on September 16.
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. Borland v. Borland , 2021 Ark. App. 448, at 3, 638 S.W.3d 308, 311. 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 the credibility of witnesses are within the province of the fact-finder. Id. We review issues of statutory interpretation de novo. Id.
A statute is unconstitutionally vague under due-process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited, and in addition, it is so vague and standardless that it allows for arbitrary and discriminatory enforcement. Smith v. Ark. Midstream Gas Servs. Corp. , 2010 Ark. 256, at 11, 377 S.W.3d 199, 206. In contrast, a statute is constitutional if its language conveys sufficient warning when measured by common understanding and practice. Id. A constitutional challenge of a statute on grounds of vagueness must be made by one of the entrapped innocents who has not received a fair warning. Bynum v. State , 2018 Ark. App. 201, at 9–10, 546 S.W.3d 533, 540–41. This court has held that, as a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the facts at issue. Anderson v. State , 2017 Ark. 357, at 4, 533 S.W.3d 64, 67.
On appeal, Timothy raises an "as applied" constitutional challenge to Ark. Code Ann. § 9-15-205(b). Specifically, he argues that the statute is so "vague as to lack sufficient definiteness that any penalty prescribed for its violation constitutes a denial of due process." Timothy acknowledges his awareness of the first order of protection and that it was subject to modification before its expiration. However, he maintains that he was not aware that, following its expiration, Hilary could use the same previously litigated issues that supported the expired order of protection to obtain a new order of protection.
Our review of the record reveals that Timothy failed to properly develop and support this argument to the extent that it could be reasonably construed as a constitutional challenge before the circuit court. Rather, during a phone conference, the closest thing to an objection made by his counsel about the statute was that regarding "the ability to extend the previous order of protection," "I didn't know one or another." Timothy's position at trial was that "a new petition was filed." No constitutional challenge was asserted as to the admission of the existence of—or evidence relating to—the prior petition. Timothy's counsel did state that granting an "extension" of the prior petition would implicate due process because no "extension" had been requested, but that was the extent of the discussion. Because Timothy failed to properly raise the void-for-vagueness issue at trial, we hold it is waived on appeal. Langston v. Ark. Dep't of Hum. Servs. , 2019 Ark. 152, 574 S.W.3d 138 (); accord Hill v. Kelley , 2022 Ark. 3, 2022 WL 178154.
Timothy next argues that the circuit court committed clear error when granting Hilary's order of protection because there was no new evidence that a present and immediate threat of domestic abuse still existed sufficient to support a new order of protection.
To obtain an order of protection, the petitioner must produce sufficient evidence to show that the victims are in imminent and present danger of domestic abuse. Ark. Code Ann. § 9-15-206(a) (Repl. 2020); Hancock v. Hancock , 2013 Ark. App. 79, at 3, 2013 WL 543901. The Arkansas legislature has defined "domestic abuse" to mean "physical harm, bodily injury, assault, or the infliction of imminent physical harm, bodily injury, or assault between family or household members." Ark. Code Ann. § 9-15-103(4) (Repl. 2020). The legislative definition of domestic abuse does not include the terms harassing or controlling.
Paschal v. Paschal , 2011 Ark. App. 515, at 7, 2011 WL 3925381. The court has defined "imminent" to mean "likely to occur at any moment" or "impending" at the time of the alleged abuse. See Hancock , 2013 Ark. App. 79, at 3.
Timothy argues that Hilary failed to establish a present and immediate threat of domestic abuse because her only allegation of present abuse was the alleged incident that took place in the Walmart parking lot on July 2. He maintains that Hilary's concerns about this incident—that Timothy made her "uncomfortable" and "scared," and she just felt "like that's not okay"—were insufficient to support the new order of protection. He notes that Hilary's only other evidence offered to support the allegation that a threat of domestic abuse was imminent was based on the 2019 incidents that undisputedly supported the expired order...
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