Facts: While their divorce was pending in another court, Wife petitioned the trial court for an order of protection. She alleged being in fear of abuse from Husband based on an incident that occurred nine days earlier and what she claims was Husband’s history of controlling and abusive behavior.
After hearing, the trial court granted an order of protection ordering Husband not to abuse or stalk or threaten to abuse or stock Wife or their children. The court also ordered Husband have no contact with and stay away from Wife and their son. The trial court set the order to expire after 45 days.
On Appeal: The Court of Appeals dismissed Husband’s appeal as moot.
A domestic abuse victim may file a sworn petition seeking an order of protection from the court. Once a petition is filed, the court is authorized to issue an ex parte order of protection upon a showing of good cause. Within 15 days, the court must hold a hearing on whether to dissolve or extend the ex parte order. At the hearing, the petitioner must establish domestic abuse by a preponderance of the evidence. If the ex parte order is extended, it must be for a definite time, not to exceed one year.
For the Court of Appeals to render an opinion in any case, it must be faced with a live controversy. Cases must remain justiciable from the time they are filed until the moment of final appellate review. A case ceases to be justiciable when it no longer serves as a means to provide some sort of judicial relief to the prevailing party. A moot case has lost its justiciability either by court decision, acts of the parties, or some other reason occurring after commencement of the case.
Tennessee courts can choose to hear a moot case (1) when the issue is of great public importance or affects the administration of justice, (2) when the challenged conduct is capable of repetition and of such short duration that it will even paid judicial review, (3) when the primary subject of the dispute has become moot but collateral consequences to one of the parties remain, and (4) when the defendant voluntarily stops engaging in the challenged conduct.
After reviewing the record, the Court concluded:
We conclude this case is moot. Because the order of protection from which [Husband] appeals has expired, we can provide no relief to [Husband]. Generally, appellate courts should dismiss appeals that have become moot. Only under exceptional circumstances do we consider an appeal when it is no longer justiciable. This case does not present one of those exceptional circumstances. At the time of this appeal, [Husband and Wife] were parties to a pending divorce proceeding. An injunction restraining both parties from abusing the other is automatically in force until the divorce petition is dismissed, the parties reach an agreement, or the divorce court modifies or dissolve the injunction.
The Court went on to find Husband’s appeal “frivolous” because it was lacking in justiciable issues after the order of protection expired. In an exercise of its discretion, the Court awarded Wife her reasonable attorney’s fees.
K.O.’s Comment: (1) Was Husband’s appeal frivolous? After all, the appellate courts can hear a moot case when the primary subject of the dispute has become moot but collateral consequences to one of the parties remain. Having an order of protection entered against someone can affect that person long after the order of protection has expired, e.g., when applying for certain jobs, government security clearances, etc. Under the circumstances, not only do I question whether Husband’s appeal was frivolous, but I question the Court’s decision not to review the trial court’s findings at all. In effect, Husband has been denied any appellate review of the trial court’s findings and and may forever be haunted by the trial court’s finding that he committed domestic abuse.
(2) This is a memorandum opinion. As such, it “shall not be cited or relied on for any reason in any unrelated case” pursuant to Tennessee Court of Appeals Rule 10.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.