Posted by: koherston | May 23, 2016

Permanent Order of Protection Reversed in Knoxville, TN Divorce: Swonger v. Swonger

Facts: After being hospitalized from Husband’s physical abuse, Wife obtained an order of protection prohibiting Husband from contacting Wife for one year.

Wife later filed for divorce, requesting, in part, that the one-year order of protection be modified to a permanent order of protection.

Husband never filed an answer to the complaint for divorce.

Wife obtained a default judgment. The trial court made permanent the order of protection. No appeal was taken.

Eleven months later, Husband filed a Rule 55.02 motion to dismiss the permanent order of protection.

The trial court denied Husband’s motion.

Husband appealed.

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

Tennessee Code Annotated § 36-3-601, et seq., provides the statutory framework governing orders of protection. This statutory scheme contains sections mandating that a definite time frame be specified for such orders. For example, Tennessee Code Annotated § 36-3-605 provides that upon the filing of a petition, an ex parte order of protection may be issued immediately (for good cause shown). The statute further provides:

(b) Within fifteen (15) days of service of such order on the respondent under this part, a hearing shall be held, at which time the court shall either dissolve any ex parte order that has been issued, or shall, if the petitioner has proved the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, extend the order of protection for a definite period of time, not to exceed one (1) year, unless a further hearing on the continuation of such order is requested by the respondent or the petitioner; in which case, on proper showing of cause, such order may be continued for a further definite period of one (1) year, after which time a further hearing must be held for any subsequent one-year period. Any ex parte order of protection shall be in effect until the time of the hearing, and, if the hearing is held within fifteen (15) days of service of such order, the ex parte order shall continue in effect until the entry of any subsequent order of protection issued pursuant to § 36-3-609. If no ex parte order of protection has been issued as of the time of the hearing, and the petitioner has proven the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, the court may, at that time, issue an order of protection for a definite period of time, not to exceed one (1) year.
* * *
(d) Within the time the order of protection is in effect, any court of competent jurisdiction may modify the order of protection, either upon the court’s own motion or upon motion of the petitioner. If a respondent is properly served and afforded the opportunity for a hearing pursuant to § 36-3-612, and is found to be in violation of the order, the court may extend the order of protection up to five (5) years. If a respondent is properly served and afforded the opportunity for a hearing pursuant to § 36-3-612, and is found to be in a second or subsequent violation of the order, the court may extend the order of protection up to ten (10) years. No new petition is required to be filed in order for a court to modify an order or extend an order pursuant to this subsection (d).

Thus, at a hearing following entry of an ex parte order of protection, a trial court has only two options: (1) dissolve the ex parte order of protection; or (2) extend the order of protection for a definite period not to exceed one year.

Likewise, Tennessee Code Annotated § 36-3-608(a) provides “all orders of protection shall be effective for a fixed period of time, not to exceed one (1) year.”

After reviewing the record, the Court explained:

Construing the statutory scheme concerning orders of protection so that its component parts “are consistent and reasonable” and avoiding an interpretation of the statute that “would render one section of the act repugnant to another,” we determine that no authority provides for the issuance of a permanent, open-ended order of protection….

[W]e conclude that the permanent and unlimited order of protection issued by the trial court exceeded the authority granted by Tennessee Code Annotated § 36-3-601, et seq. We note, however, that Wife also requested in her divorce complaint that the trial court issue an injunction restraining both parties from, inter alia, “harassing, threatening, assaulting, or abusing the other. . . .” The trial court granted such an injunction on a temporary basis upon the filing of the complaint pursuant to Tennessee Code Annotated § 36-4-106, which provides that such injunction can be modified by the court. Because Wife sought a permanent order of protection in her complaint, which remedy is outside the authority granted by the order of protection statute, we will construe her request as one for a permanent injunction pursuant to Tennessee Rule of Civil Procedure 65. We therefore reverse the trial court’s grant of a permanent order of protection as void, such remedy being unavailable pursuant to Tennessee Code Annotated § 36-3-601, et seq. We modify the provision contained in the final decree to instead grant an injunction to Wife, which restrains Husband from “harassing, threatening, assaulting, or abusing” Wife.

Accordingly, the trial court’s ruling was reversed and the permanent order of protection was converted into a permanent restraining order.

Swonger v. Swonger (Tennessee Court of Appeals, Eastern Section, April 28, 2016).

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


Responses

  1. What do you think will happen to all those divorce decrees where we extended the OP permanently based on 36-3-603?


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