Laura Nicole Harbin v. Casey Parker Jones

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 23, 2013 Session
LAURA NICOLE HARBIN
v.
CASEY PARKER JONES
Appeal from the Shelby County Chancery Court
No. CH-120308 Kenny W. Armstrong, Chancellor
No. W2012-01474-COA-R3-CV - Filed March 28, 2013
This appeal involves a post-divorce order of protection. Several years after the parties’
divorce in another state, the appellant mother obtained an order of protection against the
appellee father in a Tennessee general sessions court, to restrict his contact with her and the
parties’ minor child. The parties’ out-of-state divorce decree was enrolled in the Tennessee
chancery court, where the mother also sought a continued order of protection, contempt
relief, and modification of the parties’ parenting arrangement. All matters, including the
general sessions order of protection, were consolidated in the Tennessee chancery court. The
chancery court held a hearing on the order of protection. It declined to extend the order of
protection and dissolved it. All other matters before the chancery court remained pending.
The mother filed a notice of appeal to this Court. We hold that the dissolution of the order
of protection, with other matters still pending, is not a final and appealable judgment. We
dismiss the appeal for lack of appellate jurisdiction, and remand to the chancery court.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and J. S TEVEN S TAFFORD, J., joined.
Jason D. Nowlin and Rachael E. Putnam,1 Memphis, Tennessee for Petitioner/Appellant,
Laura Nicole Harbin
Brice M. Timmons, Memphis, Tennessee for Respondent/Appellee, Casey Parker Jones
OPINION
F ACTS AND P ROCEEDINGS B ELOW
Petitioner/Appellant Laura Nicole Harbin (“Mother”) and Respondent/Appellee Casey Parker
Jones (“Father”) divorced in Mississippi in July 2007, after approximately two and half years
of marriage. They had one child, a son in 2005. The Mississippi decree of divorce awarded
Mother and Father joint legal custody, with Mother designated as the primary residential
parent. It awarded Father alternate residential parenting time and ordered him to pay child
support.
At some point after the parties’ divorce, both apparently moved to Tennessee; Mother to
Shelby County and Father to Fayette County. In December 2011, Mother and Father had a
physical altercation. This incident prompted Mother to seek an ex parte order of protection
against Father in the Shelby County General Sessions Court (“General Sessions”). The
General Sessions court issued the requested order of protection, enjoining Father from
contact with Mother or the parties’ son.
In February 2012, Mother filed an amended petition for an order of protection in the General
Sessions court, citing threatening text messages from Father. The General Sessions court
granted a temporary order of protection and scheduled a hearing.
Approximately a week after filing the amended petition and prior to the scheduled General
Sessions court hearings, Mother filed a petition to enroll and modify the parties’ Mississippi
divorce decree in the Chancery Court for Shelby County, Tennessee, and also asked the
Chancery Court to cite Father for criminal and civil contempt. Mother’s Chancery Court
petition also sought a modification of the parties’ parenting arrangement, based on an alleged
substantial and material change of circumstances, and modification of Father’s child support
obligation.
1
Mother changed counsel during the pendency of this appeal. Attorney Rachael Putnam represented Mother
in some of the trial court proceedings and filed Mother’s initial appellate brief. Ms. Putnam thereafter
withdrew from representing Mother. Attorney Jason D. Nowlin filed Mother’s reply brief and appeared on
behalf of Mother at oral argument.
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Subsequently, the parties agreed by consent order to dissolve the orders of protection that
were in place, and the Chancery Court issued a new temporary order of protection,
effectively consolidating all pending matters. The new temporary protective order enjoined
Father from abusing, threatening, hurting, or frightening either Mother or the parties’ son,
but permitted Father to have alternate residential parenting time, subject to the conditions in
the parties’ consent order.
In March 2012, the parties’ Mississippi divorce decree was enrolled in the Chancery Court
by consent. Thus the Chancery Court acquired jurisdiction over all matters between the
parties.2
The Chancery Court scheduled a hearing on Mother’s charge of criminal contempt against
Father and her request for a review of the order of protection in place at that time. However,
prior to the scheduled hearing, the parties agreed to extend the existing order of protection
for 60 days while they engaged in mediation on all issues, with the proviso that Father was
permitted to visit with the parties’ son.
Prior to the parties’ mediation, Mother filed a motion in the Chancery Court to set aside the
consent order and reinstate the prior order of protection, which enjoined Father from contact
with the parties’ son. She contended that she had not agreed for Father to have unsupervised
visitation with their son. Father opposed Mother’s motion to set aside and sought attorney
fees. Discovery ensued.
On June 11 and 12, 2012, the Chancery Court conducted a two-day evidentiary hearing, in
which the Court heard testimony from the parties and other witnesses as well. The hearing
focused only on the issue of the order of protection against Father.3
At the conclusion of the hearing, the Chancellor told the parties that he “can’t really say . .
. from the body of evidence that’s been presented, that there is a sufficient basis for the Court
to issue an [o]rder of [p]rotection. . . .” For that reason, the Chancellor denied Mother’s
request to extend the orders of protection.
2
The consent order enrolling the foreign divorce degree inadvertently states that the “decree of divorce
should therefore be enrolled in the Circuit Court of Shelby County,” but it is undisputed that all matters were
consolidated in the Shelby County Chancery Court.
3
In the interval between the filing of Mother’s motion and the hearing, it appears that the parties made an
unsuccessful attempt to mediate their differences.
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A few days later, on June 20, 2012, the Chancery Court entered an order dissolving all of the
ex parte orders of protection, specifically, those resulting from Mother’s December 2011
petition and February 2012 amended petition, as well as the April 2, 2012 consent order. The
Chancery Court also denied Father’s request for attorney fees.
On June 26, 2012, Mother filed a notice of appeal, appealing the trial court’s June 20, 2012
order on the orders of protection. The notice of appeal cited Rule 4(a) of the Tennessee
Rules of Appellate Procedure.4 Discovery continued on the matters that remained pending
before the trial court.
I SSUES ON A PPEAL AND S TANDARD OF R EVIEW
On appeal, Mother presents two issues for review:
Whether the decision not to grant an order of protection is a separate and
distinct matter which is a final decision appealable to the Court of Appeals?
Did the trial court err in finding that the original and amended petitions for
orders of protection should be denied and the ex parte order of protection
dissolved?
In response, Father contends that Mother’s appeal is frivolous and argues that the trial court
erred in declining to grant him an award of attorney fees.
Our review of this non-jury case is de novo upon the record of the proceedings below with
a presumption of correctness as to the trial court’s factual findings, “unless the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d); Sliger v. Sliger, 181
S.W.3d 684, 687 (Tenn. Ct. App. 2005); Collins v. Pharris, No. M1999-00588-COA-R3CV,
4
Rule 4(a) of the Tennessee Rules of Appellate Procedure states as follows:
In an appeal as of right to the Supreme Court, Court of Appeals or Court of Criminal
Appeals, the notice of appeal required by Rule 3 shall be filed with and received by the clerk
of the trial court within 30 days after the date of entry of the judgment appealed from;
however, in all criminal cases the “notice of appeal”document is not jurisdictional and the
filing of such document may be waived in the interest of justice. The appropriate appellate
court shall be the court that determines whether such a waiver is in the interest of justice.
Any party may serve notice of entry of an appealable judgment in the manner provided in
Rule 20 for the service of papers.
Tenn. R. App. P. 4(a) (2012).
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2001 WL 219652, at *4; 2001 Tenn. App. LEXIS 138, at *14 (Tenn. Ct. App. Mar. 7,
2001). We review questions of law de novo with no presumption of correctness. Nelson v.
Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
A NALYSIS
In order to consider the substantive issues raised on appeal, we must first address the
threshold issue of whether this Court has subject matter jurisdiction to adjudicate this appeal.
Tenn. R. App. P. 13(b). “Subject matter jurisdiction concerns the authority of a particular
court to hear a particular controversy.” Meighan v. U.S. Sprint Commc’ns Co., 924 S.W.2d
632, 639 (Tenn. 1996) (citing Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994)).
Rule 3(a) of the Tennessee Rules of Appellate Procedure provides that, except as otherwise
permitted by Rules 9 and 10 of the Tennessee Rules of Appellate Procedure or Rule 54.02
of the Tennessee Rules of Civil Procedure, when multiple parties or multiple claims are
involved, an order that adjudicates fewer than all of the claims or the rights and liabilities of
the parties is not a final, appealable order. See Tenn. R. App. P. 3(a). In this case, there was
no application for permission to appeal under Rules 9 or 10 of the Tennessee Rules of
Appellate Procedure and the order from which Mother appeals was not certified as final
under Rule 54.02 of the Tennessee Rules of Civil Procedure. The Tennessee Supreme Court
has held that “[u]nless an appeal from an interlocutory order is provided by the rules or by
statute, appellate courts have jurisdiction over final judgments only.” Boykin v. Casher (In
re Estate of Boykin), 295 S.W.3d 632, 635 (Tenn. Ct. App. 2008) (quoting Bayberry Assocs.
v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990)).
A final judgment “fully and completely defines the parties’ rights with regard to the issue[s],
leaving nothing else for the trial court to do.” State ex rel. McAllister v. Goode, 968 S.W.2d
834, 840 (Tenn. Ct. App. 1997) (citations omitted). An order that “adjudicates fewer than
all the claims or the rights and liabilities of fewer than all the parties” is not a final judgment
and is not appealable as of right. Tenn. R. App. P. 3(a); In re Estate of Henderson, 121
S.W.3d 643, 645 (Tenn. 2003); In re Estate of Boykin, 295 S.W.3d at 635-36; King v. Spain,
No. M2006-02178-COA-R3-CV, 2007 WL 3202757 at *8; 2007 Tenn. App. LEXIS 667,
at *22 (Tenn. Ct. App. Oct. 31, 2007). “If there are matters pending before the trial court,
and the provisions of [Tennessee Rule of Civil Procedure] 54.02 are not implicated and not
invoked in the judgment or order appealed from, a direct appeal pursuant to [Tennessee Rule
of Appellate Procedure] 3(a) is not appropriate.” King, 2007 WL 3202757, at *9; 2007 Tenn.
App. LEXIS 667, at *22-23 (citing Hutchison v. ARO Corp., 653 S.W.2d 738, 740 (Tenn.
Ct. App. 1983)). See also In re Estate of Henderson, 121 S.W.3d at 645; City of Jackson
v. Hersh, No. W2008-02360-COA-R3-CV, 2009 WL 2601380, at *3; 2009 Tenn. App.
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LEXIS 591, at *9 (Tenn. Ct. App. Aug. 25, 2009) (citing Bayberry Assocs. v. Jones, 783
S.W.2d 553, 559 (Tenn. 1990)).
Mother argues that the trial court’s order dissolving the orders of protection against Father
is appealable because Rule 3 of the Tennessee Rules of Appellate Procedure operates
differently when the appeal involves a ruling on a petition for an order of protection. In
support of this contention, Mother points to the statutes governing orders of protection and
domestic violence. See Tenn. Code Ann. § 36-3-601, et seq. (2012). She cites in particular
Tennessee Code Annotated § 36-3-603, arguing that the legislature intended for an existing
order of protection to co-exist with other injunctive relief granted in connection with a
divorce. Tenn. Code Ann. § 36-3-603 (2012). In addition, in support of her position, Mother
cites two Tennessee cases, Collins v. Pharris, No. M1999-00588-COA-R3-CV, 2001 WL
219652, at *4; 2001 Tenn. App. LEXIS 138, at *13-14 (Tenn. Ct. App. Mar. 7, 2001) and
Autry v. Autry, 83 S.W.3d 785, 787-88 (Tenn. Ct. App. 2002), as well as caselaw from other
jurisdictions holding that an order of protection is a “claim separate from, and not ancillary
to, related proceedings” and as such, is immediately appealable.
The statutory provision cited by Mother, Tennessee Code Annotated § 36-3-603, is part of
the statutes addressing domestic abuse. It provides:
If an order of protection is ordered by a court and either the petitioner or
respondent files a complaint for divorce, the order of protection shall remain
in effect until the court in which the divorce action lies modifies or dissolves
the order.
Tenn. Code Ann. § 36-3-603(a); State v. Gray, 46 S.W.3d 749, 751 (Tenn. Ct. App. 2000).
Respectfully, nothing in this statute indicates legislative intent to give the appellate court
jurisdiction to review a trial court’s denial of a request for an order of protection unless it is
a final judgment or otherwise permitted in the Court rules. A statute should be read naturally
and reasonably, presuming that the legislature says what it means and means what it says.
See In re Samaria S., 347 S.W.3d 188, 203 (Tenn. Ct. App. 2011). Reading the statute
naturally and reasonably, we must hold that Section 36-3-603 does not indicate that the order
of the trial court below, dissolving the outstanding orders of protection against Father, is
immediately appealable as of right when other issues between the parties remain outstanding.
Mother cites two Tennessee cases in support of her argument, Collins v. Pharris, No.
M1999-00588-COA-R3-CV, 2001 WL 219652, at *4; 2001 Tenn. App. LEXIS 138, at *13-
14 (Tenn. Ct. App. Mar. 7, 2001) and Autry v. Autry, 83 S.W.3d 785 (Tenn. Ct. App. 2002).
Collins holds that the denial of a petition in General Sessions Court for an order of protection
is appealed directly to this Court, and does not undergo a de novo review in circuit or
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chancery court. Collins, 2001 WL 219652, at *4; 2001 Tenn. App. LEXIS 138, at *13-14.
Autry affirms the grant of an order of protection issued in the course of divorce proceedings,
but does not indicate that other matters remained pending at the time of the appeal. We note
that the Autry Court simply referred to the trial court’s order as a “final order.” Autry, 83
S.W.3d at 788. Neither case indicates that the denial of an order of protection is immediately
appealable when other claims in the same action remain pending.
Mother also cites several Illinois cases, arguing that they show why the trial court’s
dissolution of the existing orders of protection in this case should be immediately appealable.
See People v. L.S. (In re T.H.), 820 N.E.2d 977, 983-84 (Ill. App. Ct. 2004); In re Marriage
of Blitstein, 569 N.E.2d 1357 (Ill. App. Ct. 1991). These Illinois cases rely on Illinois
Supreme Court Rule 307, which expressly provides that an order on a request for injunctive
relief is immediately appealable as of right.5 At oral argument, counsel for Mother argued
persuasively regarding the policy reasons to permit the denial of a request for an order of
protection to be immediately appealable even if other matters remained pending in the trial
court. These arguments, considered with the Illinois cases cited by Mother, show valid
reasons for the adoption of a court rule or a statute permitting such an appeal. At this time,
however, there is no such court rule or statute in Tennessee.
In the alternative, Mother cites Rule 2 of the Tennessee Rules of Appellate Procedure, and
asks this Court to exercise its discretion under Rule 2 to hear this appeal, despite the lack of
a final judgment.6 See Ruff v. Raleigh Assembly of God Church, Inc., No. W2001-20578-
COA-R3-CV, 2003 WL 21729442, at *5; 2003 Tenn. App. LEXIS 496, at *14 (Tenn. Ct.
App. July 14, 2003). We note that the Court’s discretion under Rule 2 to suspend the Rules
5
Subsection (a)(1) of Illinois Supreme Court Rule 307 entitled “Interlocutory Appeals as of Right,” states
as follows: “(a) Orders Appealable; Time. An appeal may be taken to the Appellate Court from an
interlocutory order of court: (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify
an injunction; . . .” Ill. Sup. Ct. R. 307(a)(1) (2012).
6
Rule 2 of the Tennessee Rules of Appellate Procedure provides as follows:
For good cause, including the interest of expediting decision upon any matter, the Supreme
Court, Court of Appeals, or Court of Criminal Appeals may suspend the requirements or
provisions of any of these rules in a particular case on motion of a party or on its motion and
may order proceedings in accordance with its discretion, except that this rule shall not
permit the extension of time for filing a notice of appeal prescribed in Rule 4, an application
for permission to appeal to the Supreme Court from the denial of an application for
interlocutory appeal by an intermediate appellate court prescribed in Rule 9(c), an
application for permission to appeal to the Supreme Court from an intermediate appellate
court's denial of an extraordinary appeal prescribed in Rule 10(b), an application for
permission to appeal prescribed in Rule 11, or a petition for review prescribed in Rule 12.
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of Appellate Procedure is to be exercised “very sparingly, only in extraordinary
circumstances.” Morgan Keegan & Co. v. Smythe, No.W2010-01339-COA-R3-CV, 2011
WL 5517036, at *18; 2011 Tenn. App. LEXIS 613, at *59 (Tenn. Ct. App. Nov. 14, 2011).
We decline in this case to exercise our discretion to hear the appeal despite the lack of a final
judgment.
On appeal, Father argues that Mother’s appeal is frivolous and requests an award of attorney
fees. See Tenn. Code Ann. § 27-1-122 (2012). This Court will not exercise its discretion to
award attorney fees for the filing of a frivolous appeal unless the appeal has “no reasonable
chance of success” or is “so utterly devoid of merit as to justify imposing a penalty.”
Chiozza v. Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009) (quoting Whalum v.
Marshall, 224 S.W.3d 169, 180-81 (Tenn. Ct. App. 2006)). After due consideration, we
respectfully decline to grant Father’s request for attorney fees for this appeal.
C ONCLUSION
This appeal is dismissed and the matter is remanded to the trial court. Costs on appeal are
assessed against Respondent/Appellee Casey Parker Jones,7 for which execution may issue
if necessary.
___________________________
HOLLY M. KIRBY, JUDGE
7
Tennessee Code Annotated § 36-3-617(a)(1) provides that “no domestic abuse victim, stalking victim or
sexual assault victim shall be required to bear the costs, including any court costs, filing fees, litigation taxes
or any other costs associated with the filing, issuance, registration, service, dismissal or nonsuit, appeal or
enforcement of an ex parte order of protection, order of protection, or a petition for either such order,
whether issued inside or outside the state.” Tenn. Code Ann. § 36-3-617(a)(1); Merriman v. Merriman, No.
E2010-00013-COA-R3-CV, 2010 WL 3767116, at *2; 2010 Tenn. App. LEXIS 598, at *6 (Tenn. Ct. App.
Sept. 28, 2010). In 2011, Section 36-3-617(a)(2) was added, providing that a petitioner may be required to
pay the costs of an appeal when a protection order is dissolved, under certain limited circumstances, namely,
where the record contains “clear and convincing evidence . . . [t]he petitioner knew that the allegation of
domestic abuse, . . . was false at the time the petition was filed.” Tenn. Code Ann. § 36-6-617(a)(2)(2012).
Furlong v. Furlong, 370 S.W.3d 329, 341 (Tenn. Ct. App. 2011). We find no such evidence in this case, and
so assess the costs against Father.
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