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Tennessee Court Vacates Permanent Order of Protection in Divorce Case
Posted by Martin Heller Potempa & Sheppard, PLLC on May 18, 2016
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In a recent divorce case, the Tennessee Court of Appeals reviewed whether a trial court had the authority to enter a permanent, open-ended order of protection in the parties’ divorce decree. In Swonger v. Swonger (Tenn. Ct. App. Apr. 28, 2016), the wife was initially granted an ex parte order of protection against the husband while the parties were married. The trial court subsequently entered an agreed one-year order of protection, restraining the husband from having any contact with the wife. Shortly thereafter, the wife filed a complaint for divorce against the husband, including a request to modify the existing one-year order of protection to a permanent order of protection. When the husband, who was incarcerated at the time of the divorce filing, failed to respond to the complaint or make an appearance, the trial court entered a judgment of default granting the divorce and making the order of protection permanent. The husband moved to dismiss the permanent order of protection, which was denied by the court, and the husband filed the current appeal.
On appeal, the husband argued that the statutes governing orders of protection require that they are issued for a definite period of time not to exceed one year (or five or 10 years if violations are proven). The appeals court agreed, holding that the statutory framework does not provide for the issuance of a permanent, open-ended order of protection. The court explained that, pursuant to Tennessee Code Annotated § 36-3-605, at a hearing following the entry of an ex parte order of protection, a trial court has only two options: (1) to dissolve the ex parte order of protection; or (2) to extend the order of protection for a definite period not to exceed one year. In addition, the court construed Tennessee Code Annotated § 36–3–608 to mean that an order of protection is effective only for a determinate period of time.
Based on its interpretation of the Tennessee Code Annotated § 36-3-601, et seq, the court found that the permanent and unlimited order of protection issued by the trial court exceeded the authority granted by law. However, the court noted that although the permanent order of protection was outside the authority of the protection statute, the wife’s request for a permanent injunction may be construed pursuant to Tennessee Rule of Civil Procedure 65. As a result, the appeals court vacated the permanent, open-ended order of protection and reinstated the temporary injunction. The court also remanded the case back to the lower court for the entry of an order satisfying the requirements regarding permanent injunctions.
If you are involved in divorce proceedings, enlisting the services of an experienced lawyer may help in obtaining a favorable outcome. At the Nashville firm of Martin Heller Potempa & Sheppard, our family law attorneys can represent individuals in a wide range of domestic legal issues, including divorce and child custody, spousal support, property distribution, and more. To discuss your case with a compassionate divorce attorney, call Martin Heller Potempa & Sheppard at (615) 800-7096 or contact us online.
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