Session May 23, 2017
from the Circuit Court for Hamilton County No. 11D1072W. Neil
Thomas, III, Judge
appeal involves a post-divorce order of protection. Mother
obtained an ex-parte order of protection on behalf of the
parties' thirteen-year-old son alleging that Father had
punched the child in the mouth while drunk on a family
vacation. After an evidentiary hearing, the trial court
dismissed Mother's petition for order of protection
finding that she had not met her burden of proof. Mother
appealed. Discerning no error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court is Affirmed and Remanded.
Z. Bowman, Chattanooga, Tennessee, for the appellant, Lisa
M. Ramer, Chattanooga, Tennessee, for the appellee, James
William Sherrell, Jr.
Armstrong, J., delivered the opinion of the court, in which
Charles D. Susano, Jr. and John W. McClarty, JJ., joined
James William Sherrell, Jr. ("Father") and
Appellant Lisa Schnur ("Mother") are the divorced
parents of James William Sherrell, III ("Will"). On
May 23, 2011, Mother filed a petition for order of
protection, which was dismissed. On June 1, 2016, Mother
filed a second petition for order of protection, which is the
subject of the instant appeal. In her petition, Mother
alleged that, while on vacation with Will, Father's
parents, Father's sister, her husband, and their two
children, Father punched Will, who was 13 at the time, in the
mouth. Mother also alleged that Father was drunk at the time.
1, 2016, the trial court entered a temporary order of
protection against Father pending a hearing. Mother's
petition was heard on June 13 and 14, 2016. Will's
paternal grandmother, Lenda Sherrell, testified that she
babysat the four grandchildren, including Will, while the
other adults went out on the night of the alleged incident.
Ms. Sherrell stated that Father returned to the rental house
as the children were going to bed. She stated that Father
gave each child a good night hug and kiss in her presence.
Mrs. Sherrell and Father then went downstairs, and Ms.
Sherrell testified that Father did not return to the
children's rooms. Ms. Sherrell further testified that
Friday, the day after the alleged incident was Will's
birthday. She stated that Will had requested steak for
dinner, and that he ate all of his steak as well as some of
his Father's steak, without complaining about any mouth
pain. On Saturday morning, Mrs. Sherrell noticed that Will
was not talking, so she asked him what was wrong. Will then
pointed to his mouth and pulled down his lip. Mrs. Sherrell
testified that she saw what looked like a cold sore.
trial court found that Will's testimony was
"inconsistent with almost every witness who testified in
this case, including his mother." In contrast to the
testimony from other witnesses, Will testified that his
grandmother did not babysit her grandchildren and that she
was lying if she said that she did. Will further testified
that Father hit him in the mouth with a clenched fist for no
reason; and that he told no one of the incident because he
was afraid of being hit again. He also testified that
although he had requested steak for his birthday dinner, he
was unable to eat it. Although he spoke to his Mother daily
on the phone, he did not tell his Mother of the alleged
incident until he returned home on Sunday morning. By order
of June 14, 2016, the trial court dismissed Mother's
petition for order of protection, finding that she had not
met her burden of proof in the case. The trial court used a
form order, but made findings from the bench. Mother appeals.