Order of Protection Reversed for Lack of Discovery in Franklin, Tennessee: Luker v. Luker

FactsAlthough Husband and Wife were in divorce proceedings, they continued to reside together in the marital residence, albeit in separate rooms.

After they signed a marital dissolution agreement, they continued to have consensual sex occasionally.

During one sexual encounter, Wife said she told Husband she did not want to have sex with him but he raped her. Husband said they had consensual sex but Wife flew into a rage and accused him of rape after he denied her request for money.

Wife petitioned for an order of protection and received a temporary, ex parte order.

Husband moved to continue the 15-day hearing so he could request discovery.

discovery in TennesseeThe trial court briefly continued the hearing but ruled that Husband does not have the right to conduct discovery. The trial court prohibited Husband from issuing interrogatories, requests for production, or requests for admission to Wife. The trial court allowed Husband to issue subpoenas, however, including a subpoena requiring Wife to bring certain documents with her to the hearing.

Three days before the hearing, Wife filed a motion to quash Husband’s subpoena duces tecum because a subpoena is an improper means for obtaining documentary evidence from a party.

The trial court denied Wife’s motion to quash. Husband had a limited opportunity to review the materials Wife produced before the hearing. Even though Husband alleged that Wife failed to produce all the subpoenaed material, the hearing went forward.

The trial court found by a preponderance of the evidence that Husband sexually assaulted Wife. The temporary, ex parte order of protection was converted into a one-year order of protection. Wife was also awarded attorney’s fees of $9,450.

Husband appealed.

On AppealThe Court of Appeals reversed the trial court.

Tennessee Code Annotated § 36-3-605 provides that a trial court may issue an ex parte order of protection but requires that a hearing on the merits be held within 15 days.

The Court held the trial court erred by prohibiting discovery under the rules of civil procedure:

The end result, unfortunately, was a rushed hearing. Perhaps the most illustrative problem with this case is that [Husband’s] counsel had two hours before the hearing to review a 1 ½ hour recording, along with all call logs produced pursuant to the subpoena duces tecum. We believe it impractical to expect a lawyer to review call logs and listen to a 1 ½ hour recording two hours before hearing and be adequately prepared for that hearing. What if the recording or call logs opens additional lines of inquiry? What if there is a problem with the audio, requiring multiple attempts to hear? This simply was not meaningful discovery. . . .

The 15-day limit for ex parte orders of protection . . . is, in our judgment, designed to protect a respondent and not a petitioner. . . . We see no barrier . . . to a respondent, such as in this case, requesting that the hearing be put off for some definite and limited period of time so he or she can request reasonable discovery, subject to the trial court’s management, with the proviso that the ex parte order of protection remains in place until that hearing. In other words, the 15-day limit to an ex parte order of protection may not be used offensively to ambush a respondent, the very party the 15-day limit is intended to protect. What cannot be forgotten is that prior to the hearing to determine whether the ex parte order is to be dissolved or extended, a respondent is accused of being but is not yet found to be an abuser. . . . [I]t is only a respondent who has the ability to request that the hearing be postponed to allow for discovery with the ex parte order of protection remaining in effect. A petitioner cannot extend the ex parte order of protection beyond the 15-day limit by requesting discovery. However, if the 15-day period is extended and the ex parte order remains in effect because of a request for discovery by a respondent, the petitioner likewise is allowed reasonable discovery as determined by a trial court in its discretion.

Nothing in our research supports the proposition that discovery under the Tennessee Rules of Civil Procedure is prohibited in order of protection cases. The trial court has the discretion to manage discovery but did not exercise its discretion. Rather, the trial court concluded summarily that [Husband] had no right to conduct discovery pursuant to the Tennessee Rules of Civil Procedure, which we hold was error. Our holding . . . ensures continuity of enhanced protection for the alleged victim while also preventing the kind of frantic case disposition seen here. While not a criminal matter, an order of protection exposes a respondent to an array of restrictions, including severe limitations on his or her Second Amendment rights. A respondent deserves a meaningful due process opportunity to present his or her case.

The trial court was reversed, and the case remanded for a new hearing where the trial court will determine the parameters of discovery. Meanwhile, the ex parte order of protection remains in effect.

Luker v. Luker (Tennessee Court of Appeals, Middle Section, August 30, 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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