dissenting. Judy Davis filed a 1 petition pro se for an order of protection against domestic abuse based on her husband’s actions which included specific threats, a choking incident, an attempt to set her on fire, and ramming her car with another car. The circuit judge dismissed her petition and ruled as follows after referring to a mutual restraining order which had been entered in a separate divorce action filed by the husband:
The Court: ... [the mutual restraining order is] better than this domestic abuse order. And the reason it’s better is because it protects you wherever you are. This domestic abuse order only pertains to your residence, which, one, is not disclosed, and you don’t work. And so it’s really not what you need. What you need is the mutual restraining order. It binds both you and Mr. Davis, and it’s anywhere. You can be at Wal-Mart, wherever. So it’s actually better. So what I’ll probably do is fold this case into the other — into the divorce.
It is this ruling and the subsequent dismissal of her petition that Mrs. Davis contests on appeal.
After the ruling, a question was raised by Mr. Davis’s attorney about visiting the children, and this colloquy ensued:
Ms. McKeel: But if I may inquire, Mr. Davis has not seen the children since October and —
The Court: That’s why you just need to get it set for a temporary hearing. You’re going to need an attorney
Ms. Davis: Okay.
The Court: —Ms.Davis. Butyoujustneedto getitset
Ms. McKeel: Just set it for a temporary hearing?
The Court: It’s not —
Ms. McKeel: Okay.
The Court: Yeah, it’s not that — not in the scope of domestic abuse petitions to try to get that set, for the obvious reason. You get competing Orders out there with different situations....
This discussion and the setting of the temporary hearing in the divorce action dealt with the children and visitation, not with the protection order against domestic abuse. Though the majority opinion suggests this, at no point do I see where Mrs. Davis agreed that a protection order was not necessary or where she forfeited her right to pursue the issue on appeal.
Because of this, I cannot agree with the majority that Mrs. Davis in any way waived her right to appeal the issue of whether the protection order was improperly denied her. She had certainly made her position known to the circuit judge by filing a petition for a protection order in the first place and then testifying at the hearing. The circuit judge, however, concluded that a mutual restraining order was “better” and gave her reasons for that decision.
The majority seems to suggest that Mrs. Davis needed to object further after the judge’s decision. But why? Surely, the majority is not suggesting that this court revert to the days where an attorney was required to “save his or her exceptions” after an adverse ruling. That requirement was abolished by legislative act in 1953. See Act 555 of 1953.
Moreover, the issue raised in this appeal is an important one. The circuit judge ruled that a mutual restraining order in a divorce case affords more protection to a battered spouse than an order of protection issued pursuant to the Domestic Abuse Act of 1991, now codified at Arkansas Code Annotated §§ 9-15-101 — 9 — 15— 303 (Repl. 2002 & Supp. 2003). Mrs. Davis contends that this is simply wrong and urges that the circuit judge erred as a matter of law. She asserts, for example, that a protection order is enforced by law enforcement, and violation of such an order is a misdemeanor, all of which is statutory. See Ark. Code Ann. § 9-15-207 (Repl. 2002). She also underscores the point that our General Assembly passed the Domestic Abuse Act to assure the safety and protection of victims of domestic violence. See Ark. Code Ann. § 9-15-101 (Repl. 2002).
In short, I disagree that Mrs. Davis needed to take the additional step of “objecting” to the dismissal of her petition, as the majority would require, or that she “agreed to” abandon her quest for a protection order, thereby waiving her right to appeal the issue. Such reasoning unduly hampers a petitioner like Mrs. Davis in having a vital issue heard on appeal. Finally, I disagree that Mrs. Davis is raising new issues on appeal. Surely, the circuit judge knew the Domestic Abuse Act is enforced by law enforcement and carries a misdemeanor sanction. In my opinion, Mrs. Davis has every right to appeal the circuit judge’s ruling and the dismissal of her petition.
For these reasons, I respectfully dissent.