Wiser v. Wiser, No. M2010-02222-COA-R3-CV, demonstrates to Tennessee divorce attorneys that if you intend for a divorce settlement to modify or vacate an Order of Protection, then you must include specific language in the divorce decree or obtain a separate order regarding the OP, if two separate courts are involved (one for the divorce and one for the OP).
The trial court in this case first granted a wife's Order of Protection against her husband while they were separated after he came to her house and threatened to kill her. The wife subsequently filed for divorce. While the original Protection Order was extended for an additional year after a hearing, the husband and wife executed a Marriage Dissolution Agreement (MDA) that contained a mutual restraining order. A year after the divorce, a hearing was held to extend the original Order of Protection again. The trial court found that the husband violated the Order after testimony was given that he indirectly contacted his wife when he sent a letter to her attorney to give to her and had her granddaughter call her while he was in the same room. The trial court therefore extended the Order of Protection for 5 years due to the violation.
The husband appealed the trial court's decision, claiming that the mutual restraining order executed in the MDA vacated the original Order of Protection. Orders of Protection are governed by T.C.A. § 36-3-601 et seq. Under T.C.A. § 36-3-606, victims of domestic abuse can prohibit any contact between the abuser and the victim, direct or indirect. The statute also prohibits stalking, can set financial support, seize firearms, and direct the abuser to attend counseling. Most importantly, T.C.A. § 36-3-611 allows a violator of an Order of Protection to be arrested immediately. There does not have to be a warrant issued before the arrest. Once an Order of Protection has been entered, T.C.A. § 36-3-605 only allows a court to either dissolve the order or extend it. Lastly, T.C.A. § 36-3-603 provides that an Order of Protection remain in effect once a divorce is filed for the pendency of the divorce, or until it is either modified or dissolved by the divorce court.
Using the above statutes as guidance, the Tennessee Court of Appeals held that there was nothing in the evidence to show that the trial court intended or even had the power to vacate the prior Order of Protection when the mutual restraining order was issued as part of the MDA. Also, there was nothing in the Divorce Decree that even indicated that the Decree nullified the Order of Protection. Accordingly, the wife was also able to collect attorney fees from the husband. Under T.C.A. § 36-3-617(a)(1), no sexual abuse victim, stalking victim, or sexual assault victim is required to bear any court costs associated with filing, issuance, registration, service, dismissal or nonsuit, appeal or enforcement of an ex parte order of protection, order of protection, or even a petition for a new order of protection.
