When is a Modification or Extension of an Order of Protection Warranted?

October 10, 2012
By The McKellar Law Firm, PLLC on October 10, 2012 10:39 AM |

In Rodgers v. Rodgers, No. E-2011-02190-COA-R3-CV (Tenn. Ct. App. July 9, 2012), Tennessee divorce attorneys learn what criteria courts assess when determining whether to grant an extension or modification of an existing Order of Protection.

The facts of the case are as follows: After a forty-year marriage, Wife accused Husband of irreconcilable differences and inappropriate marital conduct. At trial, Wife stated that Husband owned guns, "sometimes hit her", and displayed a "violent temper." Wife had previously obtained a no communication Order of Protection against Husband that also prohibited him from owning firearms; however, Husband called Wife and left her a message regarding the divorce. Furthermore, a woman with whom Husband had engaged in an extramarital affair testified that during the time when the Order of Protection was in effect, Husband had owned a gun. Wife was ultimately granted her divorce and also received an extension of her Order of Protection.

The appellate court had to decide "whether the trial court erred in extending the Order of Protection in favor of Wife against Husband." Tenn. Code Ann. § 36-3-605(b) provides that when a party initially obtains an Order of Protection, it can be granted for one year, maximum. The court stated that Tenn. Code Ann. § 36-3-608(b) allows a modification or extension of a one-year Order of Protection when either party files an affidavit and motion that evidences a "change in circumstances." After notifying Respondent, courts with proper jurisdiction can modify an existing Order of Protection. Courts may also extend an Order for up to five years if a hearing reveals that a violation occurred. T.C.A. § 36-3-605(d). Proof of stalking, sexual assault, or domestic abuse (under a preponderance of the evidence standard) will justify a modification or extension of the Order. T.C.A. § 36-3-605(b). Since Husband had called Wife in violation of the no communication Order of Protection and also possessed a pistol in violation of the Order. The appellate court upheld the trial court's extension of the Order. Also, the court held that Wife was entitled to attorney's fees on appeal pertaining to her Order of Protection extension.