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Schnur v. Sherrell

Court of Appeals of Tennessee, Knoxville

June 27, 2017

LISA SCHNUR
v.
JAMES WILLIAM SHERRELL, III

          Session May 23, 2017

         Appeal from the Circuit Court for Hamilton County No. 11D1072W. Neil Thomas, III, Judge

         This 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed and Remanded.

          Lisa Z. Bowman, Chattanooga, Tennessee, for the appellant, Lisa Schnur.

          Glenna M. Ramer, Chattanooga, Tennessee, for the appellee, James William Sherrell, Jr.

          Kenny Armstrong, J., delivered the opinion of the court, in which Charles D. Susano, Jr. and John W. McClarty, JJ., joined

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         Appellee 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.

         On June 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.

         The 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.

         II. ...


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