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Hall v. Hall

Court of Appeals of Tennessee, Knoxville

September 15, 2014


Session June 17, 2014

Appeal from the Circuit Court for Knox County, Fourth Circuit No. 101264 William K. Swann, Judge

J. Terry Holland, Knoxville, Tennessee, for the appellant, Hillary Hudgens Hall.

Hilary Williams Burgin, Maryville, Tennessee, for the appellee, William Gregory Hall, Jr.

Thomas R. Frierson, II, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and John W. McClarty, J., joined.



I. Factual and Procedural Background

The petitioner, William Gregory Hall, Jr. ("Father"), first petitioned for and obtained an ex parte order of protection against the respondent, Hillary Hudgens Hall ("Mother"), on August 29, 2005, during the pendency of their divorce proceedings. Both the order of protection and the divorce actions were initiated in the Knox County Fourth Circuit Court but filed under separate docket numbers. The parties' two minor daughters ("the Children") were ages six years and eighteen months, respectively, when the initial ex parte order of protection was entered. Father is a practicing attorney, and Mother is a former elementary school teacher, although testimony demonstrated that she had not been regularly employed outside the home since before the Children were born.

The 2005 ex parte order of protection was extended once through an agreed bridging order entered on September 15, 2005, with an agreed hearing date set for November 17, 2005. The record contains no indication of a November 17, 2005 hearing, and by statute, the 2005 ex parte order would have expired on that hearing date without further agreement by the parties or demonstrated proof of Father's allegations. See Tenn. Code Ann. § 36-3-605(b) (providing that upon issuance of an ex parte order of protection, a hearing shall be held within fifteen days of service on the respondent to determine whether the order should be dissolved or extended upon proof of the allegation of domestic abuse, stalking, or sexual assault by a preponderance of the evidence). It is undisputed that regarding the divorce action, the trial court eventually entered an agreed permanent parenting plan order with the final divorce decree on January 10, 2007, awarding both parties equal co-parenting time with the Children.[1]

The instant action was initiated by Father on August 8, 2012, when he filed a petition alleging that on the previous day, Mother had become verbally and physically abusive to the parties' oldest daughter and to him when he attempted to settle the conflict. Father also alleged that Mother had driven while intoxicated with the Children in her vehicle; Mother's behavior made him fear for the safety of his family; and the Children, then thirteen and eight years of age, had reported Mother's behavior toward the oldest daughter as repeatedly abusive. The trial court granted Father an ex parte Order of Protection on August 9, 2012.[2]On August 30, 2012, the date set for hearing on Father's petition, the parties reached an agreement, and the trial court entered an agreed one-year order of protection without conducting a hearing. The order provided, inter alia, that Mother would have contact with the Children only through fifteen-minute telephone calls scheduled on Sundays at 8:00 p.m. and Wednesdays and Fridays at 7:30 a.m. Pursuant to the order, Mother could attend the Children's extracurricular functions and sporting events, but she was prohibited from approaching the Children or Father at these events. See Tenn. Code Ann. § 36-3-606 (2014) (providing for the establishment of temporary custody or temporary visitation rights in regard to the minor children of parties within an order of protection). This order of protection was set to expire on August 29, 2013.

On September 20, 2012, utilizing the docket number of the divorce action, Father filed a petition to modify the permanent parenting plan, attaching a proposed temporary parenting plan that incorporated the co-parenting arrangement under which the parties and Children had been living pursuant to the order of protection. On July 25, 2013, approximately one month before the order of protection was to expire, Father filed within the divorce action a "Motion to Consolidate Order of Protection and For Additional Relief, " seeking to consolidate the two actions and to extend the order of protection pending the conclusion of the proceedings regarding the permanent parenting plan.

Following a hearing conducted on September 4, 2013, the trial court granted Father a one-year extension of the order of protection against Mother and entered a written order that same day, incorporating essentially the same provisions included in the 2012 order of protection. Pursuant to this order, the parties were to have "social contact" within "specific parameters, " delineated as follows:

[T]he parties and the Respondent and the children shall have no contact except: Respondent shall have three (3) telephone calls with the minor children on Sundays at 8:00 p.m. and Wednesdays and Fridays at 7:30 a.m., with each call to have a maximum duration of 15 minutes. The Respondent may attend the children's school, sporting and extracurricular activities, but shall not approach the Petitioner or minor children. All other communication shall occur and/or be facilitated through Our Family Wizard, with the renewal fee to be paid by the Petitioner. The Respondent shall only have telephone contact with children and no other contact, electronically or otherwise. Other contact between the children and Respondent shall be pursuant to the Temporary Parenting Plan in Docket #99970.

The order of protection further referenced the divorce action in a notation that co-parenting would be supervised "as provided by any parenting plan adopted by this Court in Hall vs. Hall, 4th Circuit, #99970."

The trial court considered but did not specifically grant or deny Father's motion to consolidate the order of protection and divorce actions. Wife, represented by different counsel than at trial, timely appealed the extended order of protection granted in the September 4, 2013 order. As a point of practice, we note that the appellate record contains several extraneous documents from the divorce case file that were improperly included in the record for the instant appeal of the extended order of protection. See Tenn. R. App. P. 24(g).[3] On October 7, 2013, the trial court entered an order in the divorce action, incorporating the transcript of its ruling at the close of the September 4, 2013 hearing as a memorandum opinion. Because the trial court heard evidence and ruled upon Father's request for an extension of the order of protection during the September 4, 2013 hearing, Mother properly submitted the transcript of the hearing to the trial court clerk for inclusion in the instant appellate record, despite its originally reflecting only the docket number of the divorce case. However, upon Mother's designation of the record and in the absence of objection by Father, the trial court clerk improperly included several documents from the divorce action in the record for this appeal. The order extending the order of protection, which upon review we determine to be an appealable final judgment, references only Father's temporary parenting plan from the divorce action. This temporary parenting plan, therefore, should have been attached to the order, but additional documents from the divorce proceedings are extraneous and will not be considered in our review.

On October 29, 2013, the trial court, Judge William K. Swann, entered sua sponte an Order of Recusal inclusive of both actions, citing an ex parte communication initiated personally by Mother as the cause of his recusal. On November 23, 2013, Sixth Judicial District, Division II, Presiding Judge Bob R. McGee entered an order assigning Chancellor Michael W. Moyers of the Knox County Chancery Court to hear by interchange any further proceedings in both this action and the divorce action.

II. Issue Presented

Although couched as five sub-issues citing various portions of the applicable statute, Mother presents one issue on appeal, which we have restated as follows:

Whether the trial court erred by granting Father an extension of the ...

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