Posted by: koherston | November 10, 2011

Order of Protection versus Restraining Order in Tennessee: Wiser v. Wiser

Facts: Husband and Wife separated. Wife then obtained an Order of Protection against Husband and later filed for divorce. When they divorced, the trial court approved their Marital Dissolution Agreement that contained a mutual restraining order prohibiting both parties from coming about, harassing, threatening, assaulting, or abusing each other. After the divorce, Wife requested a five-year extension of the Order of Protection, as allowed by statute. After an evidentiary hearing, the trial court granted the extension. Husband appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Husband argued the trial court’s approval of the mutual restraining order contained in the Marital Dissolution Agreement served to vacate the previous Order of Protection, thereby rendering the subsequent extension of the Order of Protection null and void. Husband contended that when a court enters an order that contradicts an earlier order on the same subject matter, the latter order operates to implicitly vacate the earlier order.

The Court rejected this argument, noting that Orders of Protection provide greater protection for victims of domestic abuse than a basic restraining order, even though both can prohibit the abusive behavior. The most important difference is if one violates an Order of Protection, he or she can be arrested immediately, with or without a warrant.

We have previously held that once an Ex Parte Order of Protection has been entered, the trial court, after hearing, has only two options: 1) to dissolve the OP, or 2) to extend the Order of Protection. Entering a mutual restraining order is not an option for the trial court, and has been held to be reversible error. In this record, the mutual restraining order entered in the divorce case did not and could not modify or vacate the Order of Protection, and nothing in the Divorce Decree indicates that Decree nullified the Order of Protection.

Trial courts regularly issue mutual preliminary injunctions at the beginning of divorce cases, as was done in this case, which prohibit the parties from harassing or threatening one another. The Order of Protection statute provides that if a complaint for divorce is filed, the Order of Protection remains in effect until it is modified or dissolved, and a petitioner is not prohibited from requesting relief pursuant to the Order of Protection statute as part of a divorce action. The legislature recognized and intended that Orders of Protection can co-exist with other injunctive relief granted pursuant to a divorce.

[Husband] was not able to show that the Trial Court intended nor had the power to vacate the prior Order of Protection by issuing a mutual restraining order. The same trial Judge issued both orders, and obviously was aware when issuing the mutual restraining order that an Order of Protection was in place. Moreover, she knew at the time the Order of Protection was extended that there was a mutual restraining order in the Marital Dissolution Agreement, because [Husband’s] attorney pointed out that fact.

The trial court was affirmed. In addition, Wife was awarded her attorney’s fees on appeal, as required by Tennessee Code Ann. § 36-3-617(a)(1).

Wiser v. Wiser (Tennessee Court of Appeals, Eastern Section, October 7, 2011).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


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