Tennessee Divorce Attorney Blog

The Tennessee Court of Appeals recently held that a husband had engaged in separate counts of contempt for every week that he violated his order of protection by not paying his weekly child support. This totaled 69 violations, leading the husband to be found in contempt. The only reason that he was not found to be in criminal contempt was because the trial court failed to give the husband proper notice. This case shows Tennessee Order of Protection Attorneys that each violation may subject their clients to additional jail time.

In Sosebee v. Sosebee, No. E2011-00682-COA-R3-CV (Tenn. Ct. App. May 4, 2012), the trial court entered an Agreed No Contact Order of Protection against the husband. The order of protection also required the husband pay the wife $25.00 a week in child support for their minor child. After failing to pay the weekly child support, the wife filed a petition against the husband for violating the order of protection. The trial court held that the husband had committed 69 violations of the order of protection for each week that he failed to pay and was therefore found to be in criminal contempt. Husband was then sentenced to 690 days in prison (10 days per violation).

On appeal, the husband first argued that he did not receive the proper notice required before he could be found in criminal contempt. Under Tenn. R. Crim. P. 42, a judge maygive notice of criminal contempt to a defendant orally in open court. The appellate court agreed with the husband that proper notice was not given here because the husband only received notice in a prior, separate, unrelated proceeding that violating the order of protection would subject him to criminal contempt. Wife's current petition did not pray for criminal contempt- only for civil contempt. Therefore, Husband was given no notice that this particular contempt proceeding could subject him to criminal contempt. Accordingly, husband should not have been found in criminal contempt and that ruling is modified to a finding of civil contempt.

Next, husband argued that his failure to pay child support should only be considered as one and not multiple violations. Because the husband was ordered to pay $25.00 per week in child support, each and every week that the husband failed to pay constituted its own separate violation of the order of protection. The appellate court noted that if it accepted the husband's argument, it "would be nothing short of absurd, forcing a payee parent to file a separate action for each missed payment or risk giving the violating payor parent a huge and unwarranted advantage with regard to potential punishment for contempt."

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.

The case of Brooks v. Brooks, No. E2010-02614-COA-R3-CV, (Tenn. Ct. App. Sept. 9, 2011) shows that respondents to Orders of Protection in Tennessee must be given notice and served properly in order to be held in contempt.

In the spring of 2007, Wife filed her first Petition for an Order of Protection (hereinafter "OP"), alleging an assault by Husband, and an ex parte order was issued. After a hearing, an OP was put into place requiring no contact and payment of $400 per month by Husband to the parties' mortgage. Three weeks later, Wife filed a show cause, alleging Husband was in contempt for approaching her. Then Wife filed a second OP Petition in August 2007, prior to the show cause hearing. At that hearing, Husband was found in contempt of the first OP and given a sentence that was held in abeyance but required his compliance with the second August OP which included the mortgage payment provision.

Wife then filed a second show cause alleging Husband contacted her again. Prior to that hearing, Wife filed a third show cause alleging failure to pay the mortgage payment. After a hearing in April 2008, the trial court found Husband violated the August OP by attempted communication with Wife and ordered him to serve 20 days in jail. A new OP (the third, at this point) was entered in April 2008 which did not include the mortgage provision. Another hearing was held regarding the third show cause filed by Wife, alleging nonpayment of the mortgage payment, and the court entered an order in May 2008 that Husband would continue paying the $400 per month.

Two years later, Wife filed a fourth show cause, again over the mortgage payment. A hearing (now in 2010) resulted in a holding that because the April 2008 OP failed to include a provision regarding the mortgage, the court did not have the requisite jurisdiction to enter the May 2008 order requiring him to pay the mortgage. Accordingly, the show cause was dismissed.

The Court of Appeals explained that the May 2008 order seems to be an agreement announced by the parties and not the result of a hearing and court ruling. The problem with this is Husband was not present that day in court and had not been served with process. Accordingly, Husband cannot be held in contempt for disobeying an order that he never received notice of, or was present at a hearing for (because of no notice) and apparently did not agree to in open court. Importantly, the Appeals Court also noted that Husband's payments after this order could not be used to presume he had knowledge of the order and was only making the payment to avoid contempt. Further, the April 2008 OP did not contain the mortgage provision. Therefore, the trial court was correct in dismissing the Wife's fourth show cause.

The Court of Appeals case Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, (Tenn. Ct. App. August 12, 2011) addresses two distinct issues - Tennessee Orders of Protection and judicial interchange.

Petitioner filed for an Order of Protection ("OP") in June of 2010, and included her children under her request, alleging threats via text message. The Chancery Court of Sumner County entered an ex parte OP. The Respondent filed a motion to dismiss based on jurisdiction. At the hearing, no proof was taken but the Court refused to dismiss the petition and the OP stayed in place. The Court then put down an order that the Sumner County Juvenile Court (where the parties had a trial set) would hear the OP, specifically Judge Gwin, who was actually a Wilson County General Sessions Judge who was sitting by interchange in the parties' Sumner County Juvenile Court matter.

At that hearing, proof was taken and the OP was dismissed. Petitioner filed a T.R.C.P. 60.02 motion to reconsider in Sumner County Chancery Court, asking for the OP to be put back into place and alleged fraud on Respondent's behalf. That motion was denied. An appeal followed.

The first issue raised was whether the Court erred in failing to hold a hearing within fifteen (15) days of service of the ex-parte order under T.C.A. 36-3-605(b). The Court of Appeals held that the statutory language limiting the duration of an ex parte order to 15 days does not bar a court from holding a hearing past the 15 day period, because both parties were present when the court reset the matter and expended the OP past the fifteen days.

Second, the Court of Appeals ruled that the General Sessions Judge did not have jurisdiction to hear the OP by interchange with a Chancellor. But, because no objection was made at the initial court date or at the subsequent hearing, his acting as judge de facto was waived.

Next, Petitioner argues the judge failed to make specific factual findings required under T.R.C.P. 41.02(2) and 52.01, which requires a court, when sitting without a jury, to find and state it facts and conclusions of law when ruling on an involuntary dismissal. The trial court here stated the relevant considerations under the law and then went to say that the proof failed and no OP was warranted, which is neither a finding of fact or a conclusion of law (just an "outline of legal principles"). Therefore, the judgment of the court was vacated and remanded to allow the trial court enter those necessary findings of fact and conclusions of law, to be done by a trial court judge (not a General Sessions Court judge).

Finally, the Appeals Court held that the statutory language found in T.C.A. 36-3-617 which states that "no victim" shall pay costs associated with the dismissal or nonsuit of an OP, allows the Petitioner to have cost assessed to them if they are found to not have been a victim of domestic abuse.

Currently, there are several proposed legislation changes that could impact the way that Tennessee courts deal with domestic violence. These changes could affect divorce, order of protection and criminal litigation throughout the State. I have summarized a few below:

• HB0541 and SB0124 would transition to the burden of court costs in order of protection matters. Currently, T.C.A. §36-6-617 requires that the costs of any order of protection, whether dismissed or issued, be paid by the respondent to the action. This proposed bill would require that the petitioner pay the respondent's court costs and attorneys' fees should the matter be dismissed.

• HB0747 and companion SB0863 seek to extend the time period that an ex parte restraining may remain in effect prior to a hearing. Currently, T.C.A. §36-3-605 requires a hearing to be held on an ex parte order of protection within fifteen (15) days of service. The proposed change would allow twenty-right (28) days to pass prior to that hearing.

• HB0826 and SB1922 would allow a domestic violence, sexual assault or stalking victim to terminate their residential lease by giving notice and proof to the landlord.

• HB0214 seeks to require those who have violated an order of protection for the first time to attend counseling at their own expense and to pay the victim's counseling (if requested) as well. This bill would also put into place a $3,000.00 fine for any additional violations.

A Tennessee Court of Appeals decision issued earlier this week, Carr v. Allen (No. E2010-00817-COA-R3-CV), highlights the exceptionally small amount of discretion that our courts have when faced with Orders of Protection ("OPs"). This is important to be aware of because these types of orders affect more people than one might think. Although many parties to a divorce in Tennessee will also request an OP from the divorce court, they extend beyond the realm of just divorce.

The OP statute found at T.C.A. §36-3-601 authorizes these orders for a wide-ranging category of people: adults or minors who are current or former spouses; adults or minors who live together or who have lived together; adults or minors who are dating or who have dated or who have or had a sexual relationship (as used herein, "dating" and "dated" do not include fraternization between two (2) individuals in a business or social context); adults or minors related by blood or adoption; adults or minors who are related or were formerly related by marriage; or adult or minor children of a person in a relationship that is described above.

Upon receiving a petition for an OP, a Judge will either sign an ex parte order giving the petitioner a temporary order or simply set the case for hearing without any accompanying temporary order. Within fifteen (15) days of the issuance of an ex parte order, a hearing must be held. In the case of Carr v. Allen, the Court held a hearing after issuing an ex parte order and as a result issued a mutual restraining order and taxed the costs equally to both parties involved.

The Petitioner then appealed, alleging that the trial court was not allowed to issue such an order and erred in taxing the costs. The Court of Appeals agreed, explaining that trial courts have only two options under T.C.A. §36-3-605(a) & (b) - to dissolve the ex parte order or extend the order for a specific period not to exceed one year. The trial court's mutual restraining order, although seemingly a prudent option, is not allowed under the statute. The Court further explained that under T.C.A. §36-3-617, the costs of any OP proceeding, whether extended or dismissed, must be taxed to the Respondent and can never be assessed to the victim. Accordingly, the trial court's decision was vacated and sent back for additional adjudication consistent with the statute.