Denial of Order of Protection Reversed in Rogersville, Tennessee: Mullins v. Hernandez

Facts: Mother petitioned for an order of protection against Paternal Grandmother after an incident in their shared apartment.

When Mother’s infant daughter cried, she told her older daughter to move out of the way so she could get to her infant daughter. When her older daughter didn’t move, Mother raised her voice and told her to move. Paternal Grandmother said, “if you raise your voice at my granddaughter again, I will kick your ass.”

Mother took the children to her bedroom and locked the door. From her bedroom, she heard Paternal Grandmother open her gun safe and remove her gun.

Mother also called her mother, Maternal Grandmother, and asked her to come pick up the infant daughter. Mother testified she could not leave the apartment because there was no room in Paternal Grandmother’s vehicle. While she was removing the infant from the apartment, Paternal Grandmother was calling her names and cussing at her. Mother told her, “You know, you just need to shut up,” that’s when she saw the gun in Paternal Grandmother’s hand. Paternal Grandmother responded, “That’s okay. I’m not afraid of you, am not afraid to use the gun.”

tennessee order of protectionThe police came and advised everyone to calm down. After the police left, Paternal Grandmother walked up and down the hallway cocking the gun stating that the next time she saw a Mother or her family, she would shoot them.

Paternal Grandmother also posted a photograph of her gun on Facebook that night with the caption: “Whenever anyone feels froggy, please jump. I’m dying to try this out.”

Early the next morning, however, Mother moved out of the apartment.

Paternal Grandmother admitted getting the gun out of a safe in her bedroom. She also admitted to threatening to “kick [Mother’s] ass” after Mother shut her bedroom door on her granddaughter’s foot. She denied threatening anyone with the gun.

The trial court stated that while it believed Mother’s account, there was no basis for an order of protection. Mother’s petition was denied.

Mother appealed.

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

In Tennessee, victims of domestic violence may petition for an order of protection. The law applies to anyone who has been subjected to, threatened with, or placed in fear of domestic abuse, including the fear of physical harm. A petitioner merely must show a fear of physical harm by a preponderance of the evidence; proof of actual physical abuse is not required.

The statute applies to adults who live together or have lived together, among others.

The Court held that the proof satisfy the standard for an order of protection:

At the close of the hearing, the trial court stated to [Mother], “I don’t disbelieve what you told me.” The facts thus established in the record include that [Paternal Grandmother] threatened [Mother] and her mother while brandishing a cocked and loaded handgun. [Mother] testified several times that [Paternal Grandmother’s] actions placed her in fear of physical harm. Regarding the Facebook post[,] . . . The trial court said:

Ma’am, posting stuff like this on the Internet is foolish. It could be read two ways. It could be read that I’m prepared to defend myself.

[Paternal Grandmother]: And this is how . . .

The Court: I don’t want to hear from you. I’m telling you it can be read that way, or it can be read that you’re out looking for a fight. There is a big difference between those two.

The trial court ruled that “under these facts, I just can’t find that there’s a basis for an order of protection.” We disagree with the trial court’s legal interpretation . . . . We hold that the facts found by the trial court provide a legal basis for [an] order of protection in [Mother’s] favor.

The case was remanded to the trial court with instructions to enter an order of protection.

K.O.’s Comment: As the Court notes, determining the preponderance of the evidence regarding allegations of abuse is largely fact-driven and dependent on credibility, including assessments of a witness’s demeanor. It comes down to the specific facts in each individual case.

Mullins v. Hernandez (Tennessee Court of Appeals, Eastern Section, February 27, 2018).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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