Wills v. Lacefield
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Janet Jacefield sought an order of protection against Martin Wills. The circuit court entered an order of protection and scheduled a hearing on the petition. At the hearing, the circuit court denied Wills's motion for a continuance and entered a permanent order of protection. Wills later filed a motion and brief to set aside the order of protection, asserting that he was served only seven days prior to the hearing, which deprived him of enough time to respond under Ark. R. Civ. P. 6(c). The court of appeals dismissed the motion. At issue on appeal was whether the proceedings in the lower courts were special proceedings within the meaning of Ark. R. of Civ. P. 81. The Supreme Court concluded that the proceedings filed under the Domestic Abuse Act were special proceedings, so that to the extent the statutes creating the special proceedings provide for a procedure that is different from the state's rules of civil procedure, the rules of civil procedure do not apply. The Court affirmed, holding Wills was timely served before the hearing.
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Cite as 2011 Ark. 262
SUPREME COURT OF ARKANSAS
No.
10-568
Opinion Delivered
MARTIN DONALD WILLS,
APPELLANT,
VS.
June 16, 2011
APPEA L FR O M TH E BAX TER
COUNTY CIRCUIT COURT,
NO. DR-08-388-3,
HON. JOHNNY PUTMAN, JUDGE,
JANET F. LACEFIELD,
APPELLEE,
AFFIRMED.
KAREN R. BAKER, Associate Justice
This case raises the issue whether the Arkansas Rules of Civil Procedure apply to
proceedings under the Arkansas Domestic Abuse Act, codified at Arkansas Code Annotated
sections 9-15-101 through -217 (Repl. 2009). We accepted certification of this case from the
court of appeals. Jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1-2(b)(6)
(2011), as an interpretation of the Domestic Abuse Act and the Arkansas Rules of Civil
Procedure. We hold that the proceedings under the Domestic Abuse Act are special
proceedings and affirm the circuit court’s order dismissing the motion to set aside the order
of protection and applying the notice provision under the Domestic Abuse Act rather than
the Arkansas Rules of Civil Procedure.
Appellee Janet Lacefield filed a petition and corresponding affidavit on December 11,
2009, seeking an order of protection against appellant Martin Wills. Lacefield was a resident
of Baxter County, Arkansas, and Wills was a resident of Shelby County, Tennessee. The
Cite as 2011 Ark. 262
circuit court of Baxter County entered an ex parte order of protection on December 14,
2009, and scheduled a hearing on the petition for January 12, 2010. Wills was served with the
petition and ex parte order on January 6, 2010, six days before the scheduled hearing. On
January 8, 2010, Wills filed an application for continuance by facsimile, as well as a request
for production of documents and witnesses. Wills requested a continuance of at least sixty days
to give him time to review and investigate the allegations contained in the petition and
affidavit and to give sufficient advance notice of his absence to his employer. At the January
12, 2010 hearing, which Wills did not attend, the circuit court denied Wills’s motion for a
continuance and entered a permanent order of protection for a five-year period. The circuit
court entered the final order of protection on January 15, 2010.
On January 19, 2010, Wills filed an answer to Lacefield’s petition and counterclaimed,
alleging abuse of process and fraud and requesting compensation for various damages. In his
first amended answer and counterclaim also filed on January 19, 2010, Wills addressed specific
statements from Lacefield’s petition more particularly, added a defense based on double
jeopardy, and argued that none of his actions were tantamount to “domestic abuse” as it is
defined under the Domestic Abuse Act.
On January 25, 2010, Wills filed a motion and brief to set aside the order of protection.
Wills asserted that he was served seven days prior to the hearing, depriving him of enough
time to respond under Arkansas Rule of Civil Procedure 6(c); that he did not have access to
an Arkansas law library; that the circuit court should have granted his request for continuance
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because he needed additional time to respond; and that his answer, motion to dismiss, and
counterclaim filed on January 13, 2010, were within the ten-day-response time permitted
under Arkansas Rule of Civil Procedure 6(c). In the motion to set aside the protective order,
Wills did not make any of the arguments on the merits that he now makes on appeal. On
February 8, 2010, the circuit court entered an order dismissing Wills’s motion to set aside the
protective order, finding that Wills was timely served at least five days prior to the hearing,
as required under Arkansas Code Annotated section 9-15-204(b)(1)(A).
Wills filed separate motions to set aside, dismiss, or stay the default judgment. Wills also
filed a notice of appeal on March 9, 2010, bringing an appeal from the February 8, 2010 order
dismissing Wills’s motion to set aside the January 15, 2010 protective order.
Wills raises many points in his pro se appellate brief. He asserts that the order of
protection was erroneous and unsupported by the record, that it was void because it failed to
state facts sufficient to state a cause of action, and that the trial court abused its discretion in
granting Lacefield an order of protection even though Wills attempted to defend with his
application for continuance. However, our initial query is whether the proceedings below
were “special proceedings” within the meaning of Arkansas Rule of Civil Procedure 81.
The rules of civil procedure “shall govern the procedure in the circuit courts in all suits
or actions of a civil nature with the exceptions stated in Rule 81.” Ark. R. Civ. P. 1. Rule
81 states that the rules of civil procedure “shall apply to all civil proceedings cognizable in the
circuit courts of this state except in those instances where a statute which creates a right,
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remedy or proceeding specifically provides a different procedure in which event the procedure
so specified shall apply.” Ark. R. Civ. P. 81(a). This Rule 81(a) exception “is limited to
special proceedings created exclusively by statute where a special proceeding is appropriate
and warranted.” In re Adoption of Baby Boy Martindale, 327 Ark. 685, 689, 940 S.W.2d 491,
493 (1997) (quoting Sosebee v. Cnty. Line Sch. Dist., 320 Ark. 412, 416, 897 S.W.2d 556, 559
(1995)).
This court has determined that other actions were special proceedings, see, e.g.,
Martindale, supra (adoption proceedings are special proceedings); Screeton v. Crumpler, 273 Ark.
167, 617 S.W.2d 847 (1981) (will contests are special proceedings); and Baker v. Rogers, 368
Ark. 124, 243 S.W.3d 911 (2006) (election contests are special proceedings); however, we
have never addressed the nature of proceedings under the Domestic Abuse Act. A civil action
is “an ordinary proceeding in a court of justice by one party against another for the
enforcement or protection of a private right or the redress or prevention of a private wrong.”
Martindale, 327 Ark. at 689, 940 S.W.2d at 493. Any proceedings that “are not ordinary
proceedings are ‘special proceedings’ created exclusively by statute.” Id.
Like adoption and election-contest proceedings, the procedure for securing a
protective order pursuant to the Domestic Abuse Act is purely statutory. The purpose of the
Domestic Abuse Act is set forth in the act, which provides in pertinent part that the “General
Assembly hereby finds that this chapter is necessary to secure important governmental interests
in the protection of victims of abuse and the prevention of further abuse through the removal
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of offenders from the household and other injunctive relief for which there is no adequate
remedy in current law.” Ark. Code Ann. § 9-15-101. Based on the elucidated purpose of the
act, the act affords protection for certain victims of abuse that is not available outside of the
act. The remedies available under the Domestic Abuse Act are unknown to the common law
and are completely governed by statute. We conclude that proceedings filed under the
Domestic Abuse Act are special proceedings, so that to the extent the statutes creating the
special proceedings provide for a procedure that is different from our rules of civil procedure,
the rules of civil procedure do not apply. See Ark. R. Civ. P. 81(c); Norton v. Hinson, 337
Ark. 487, 989 S.W.2d 535 (1999).
The expedited nature of the procedure to petition for a protective order is apparent
from the statute. Once a petition for protective order is filed under the Domestic Abuse Act,
the court must order a hearing to be held not less than thirty days from the date the petition
is filed or the next court date, whichever is later. Ark. Code Ann. § 9-15-204(a)(1). The
statute requires service of the petition, any ex parte temporary order, and notice of the hearing
to be made upon the respondent at least five days before the hearing date. Ark. Code Ann.
§ 9-15-204(b)(1).
Here, Wills was timely served six days before the hearing. Because this is a special
proceeding, the rule regarding service that is provided in the Domestic Abuse Act, and not
the conflicting rule of civil procedure, applies. Service was clearly timely under section 9-15204(b)(1). Because the rules of civil procedure would not apply to the hearing-notice
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provisions, any objections, claims, or arguments that Wills desired to make should have been
made at, or prior to, the hearing. Wills failed to make any of the objections, claims, or
arguments he now makes on appeal at, or prior to, the hearing; therefore, these issues are not
preserved for our review. We will not address an issue that is fully developed for the first time
on appeal. See Davis v. Davis, 360 Ark. 233, 200 S.W.3d 886 (2005).
Affirmed.
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