Swonger v. Swonger

• Decision Date: 28 April 2016
• Docket Number: No. E2015-01130-COA-R3-CV,E2015-01130-COA-R3-CV
• Parties: TAMBRA JO SWONGER v. JAMES HENRY SWONGER
• Court: Tennessee Court of Appeals

TAMBRA JO SWONGER v. JAMES HENRY SWONGER

No. E2015-01130-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

February 11, 2016 Session

APRIL 28, 2016

Appeal from the Circuit Court for Knox County

Nos. 128217, 129498

Gregory S. McMillan, Judge

This appeal arises from a default judgment entered in a divorce action, wherein the wife was granted, inter alia, a permanent order of protection against the husband. The husband sought to have the permanent order of protection provision contained in the parties' divorce decree set aside, asserting that the statutory scheme pertaining to orders of protection did not provide authority for entry of a permanent, open-ended order of protection. The trial court entered an order denying relief to the husband and affirming its entry of a permanent order of protection. Husband timely appealed. Determining that the trial court was without statutory authority to enter a permanent order of protection with no time limitation, we vacate that portion of the trial court's order. We reinstate the court's temporary injunction prohibiting the husband from "harassing, threatening, assaulting, or abusing" the wife. We remand to the trial court for entry of a written order containing findings of fact and conclusions of law constituting grounds for a permanent injunction, if granted, and for satisfaction of any other requirements pursuant to Tennessee Rule of Civil Procedure 65 regarding injunctions.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in Part, Affirmed in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Lin Phillips, Knoxville, Tennessee, for the appellant, James Henry Swonger.

Robert Downs, Legal Aid Society of East Tennessee, Knoxville, Tennessee, for the appellee, Tambra Jo Swonger.

OPINION

I. Factual and Procedural Background

The respondent, James Henry Swonger ("Husband") appeals the trial court's order modifying an existing one-year order of protection against Husband to a permanent order on behalf of the petitioner, Tambra Jo Swonger ("Wife"). The parties were married at the time Wife filed a petition for an order of protection on June 4, 2013. In her petition, Wife alleged years of abuse on the part of Husband, as well as a specific incident of abuse occurring on May 21, 2013, which caused Wife to be hospitalized for several days with grave injuries.

The trial court granted an ex parte order of protection on June 6, 2013. The court subsequently entered two bridging ex parte orders of protection on June 20, 2013, and July 25, 2013, respectively. On August 1, 2013, the court entered an agreed one-year order of protection, restraining Husband from any contact with Wife. Husband was also ordered to attend forty-five weekly meetings of the Domestic Violence Intervention Group and to obtain a substance abuse assessment.

On September 25, 2013, the trial court issued a notice of attachment against Husband for noncompliance with the order of protection. Husband appeared before Magistrate Brenda Lindsay-McDaniel on October 24, 2013, submitting an affidavit of indigency. Finding Husband to be indigent, the magistrate appointed Husband's current counsel to represent Husband on that same date. The magistrate set the case for hearing on the contempt charge and compliance review on October 28, 2013. It is undisputed that during the October 28, 2013 hearing, Husband was personally served with a complaint for divorce, which Wife had filed that day under a new docket number. Although Husband's counsel was present for the compliance hearing, counsel was apparently not served with the complaint.

In her complaint, Wife requested a divorce based upon the ground of inappropriate marital conduct. See Tenn. Code Ann. § 36-4-101(a)(11). She also requested that the court modify the existing one-year order of protection to a permanent order of protection. Husband did not file an answer to the complaint. On January 9, 2014, Wife filed a motion for default judgment and a notice of hearing, serving both upon Husband at the Knox County Detention Center, where he was incarcerated. Meanwhile, regarding the question of Husband's compliance with the order of protection, the court entered an order on January 16, 2014, stating: "[Husband] has been in continuous incarceration and is expected to remain such indefinitely and has been unable to comply with the order and compliance will be reviewed on 4/1/2014."

Following a hearing conducted on January 22, 2014, the trial court entered an "Order of Permanency of Order of Protection," modifying the one-year order of protection to a permanent one with no expiration date. A judgment of default was also entered on that date, in which the court noted that Husband had failed to enter an appearance or defend himself in the divorce action. The court subsequently granted Wife a divorce via final decree entered February 5, 2014, upon the ground of inappropriate marital conduct. In the final decree, the court again stated that "Wife's Order of Protection in Knox County, Fourth Circuit Court, Docket No. 13-128217 is made permanent." No appeal was filed from this decree.

On March 11, 2014, the trial court entered a second order regarding compliance with the order of protection, stating, inter alia, "[Husband] has been in continuous incarceration and has been bound by the grand jury . . . . His compliance will be reviewed on 9/9/14." On January 21, 2015, Husband, acting through counsel, filed a Tennessee Rule of Civil Procedure 55.02 motion to dismiss the permanent order of protection. Wife filed a "Memorandum of Authorities" in response on February 9, 2015. Husband subsequently responded with a memorandum on February 12, 2015.

The trial court entered an order on May 20, 2015, denying Husband's motion to dismiss and reaffirming entry of a permanent order of protection within the divorce judgment. Husband timely appealed.

II. Issues Presented

Husband presents the following issues for our review, which we have restated slightly:

1. Whether the trial court erred by interpreting Tennessee Code Annotated § 36-3-603(a) as relieving the court of time constraints imposed on orders of protection pursuant to Tennessee Code Annotated §§ 36-3-605 and -608.

2. Whether the trial court erred by permanently extending the order of protection upon insufficient evidence.

3. Whether the trial court erred by declining to overturn the permanent order of protection due to a lack of notice to Husband's counsel of record.

III. Standard of Review

Husband seeks review of the trial court's entry of a default judgment against him, which provided, inter alia, that the one-year order of protection entered against Husband in a separate action would be modified to a permanent order of protection with no expiration date. Regarding review of a default judgment, this Court has previously elucidated that "motions to set aside default judgments are addressed to the trial court's discretion." State ex rel. Jones v. Looper, 86 S.W.3d 189, 193-94 (Tenn. Ct. App. 2000). Our Supreme Court has addressed the proper scope of review for an abuse of discretion as follows:

Discretionary decisions must take the applicable law and the relevant facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). An abuse of discretion occurs when a court strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision. State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its discretion when it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526 (Tenn. 2009); Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d [22,] 42 [(Tenn. 2005)].

To avoid result-oriented decisions or seemingly irreconcilable precedents, reviewing courts should review a lower court's discretionary decision to determine (1) whether the factual basis for the decision is properly supported by evidence in the record, (2) whether the lower court properly identified and applied the most appropriate legal principles applicable to the decision, and (3) whether the lower court's decision was within the range of acceptable alternative dispositions. Flautt & Mann v. Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008) (quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application filed)). When called upon to review a lower court's discretionary decision, the reviewing court should review the underlying factual findings using the preponderance of the evidence standard contained in Tenn. R. App. P. 13(d) and should review the lowercourt's legal determinations de novo without any presumption of correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn. Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d [203,] 212 [(Tenn. Ct. App. 2002)].

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010). This Court has further explained that "[t]rial courts should grant relief whenever any reasonable doubt exists concerning whether the default judgment should be set aside." Nelson v. Simpson, 826 S.W.2d 483, 485-86 (Tenn. Ct. App. 1991).

IV. Propriety of Default Judgment Granting Permanent Order of Protection

Husband asserts that the trial court erred in granting a default divorce judgment modifying the existing one-year order of protection by extending it indefinitely. Motions seeking to set aside a default judgment...