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Westfall v. Westfall

Court of Appeals of Tennessee, Knoxville

May 2, 2018

TERRA JOY MARIE WESTFALL
v.
ERIC JAMES WESTFALL

          Assigned on Briefs March 1, 2018

          Appeal from the Circuit Court for Jefferson County No. 25152 Ben W. Hooper, II, Judge

         This case involves an order of protection sought by the petitioner against the respondent, who is the petitioner's husband, on behalf of the petitioner and her three minor children. The trial court initially granted an ex parte order of protection and scheduled the matter for hearing. Following a subsequent bench trial, the trial court extended the ex parte order of protection for a period of one year, but it made no findings of fact or conclusions of law regarding the allegations in the petition or whether the petitioner had met her burden of proof. The petitioner timely appealed. Because the trial court failed to make adequate findings of fact and conclusions of law, we hereby vacate the trial court's order and remand for entry of sufficient findings of fact and conclusions of law regarding whether the ex parte order of protection should be dissolved or an order of protection, not to exceed one year, be entered pursuant to Tennessee Code Annotated § 36-3-605 (2017).

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

          Elizabeth R. McClellan, Johnson City, Tennessee, for the appellant, Terra Joy Marie Westfall. [1]

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Andy D. Bennett, J. and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE.

         I. Factual and Procedural Background

         On May 11, 2017, Terra Joy Marie Westfall ("Wife") filed a petition for an order of protection against her husband, Eric James Westfall ("Husband") on behalf of herself and her three minor children ("the Children"). Husband is the father of two of the minor children. In her petition, Wife alleged, inter alia, that on January 9, 2017, Husband yelled at her six-year-old daughter and pushed her daughter to the floor. She further averred that Husband grabbed Wife by the neck and injured her foot. According to Wife's petition, although Husband was sentenced to probation following the incident and required to complete domestic abuse classes, he had subsequently stopped attending the required classes. Wife also alleged that on May 11, 2017, Husband became angry with her and "smashed a case of Pepsi on the floor."

         Based on Wife's allegations, the trial court, determining that good cause existed, issued a temporary ex parte order of protection prohibiting Husband from contacting Wife or the Children. The trial court scheduled a hearing for June 5, 2017, regarding Wife's petition. On June 5, 2017, Wife was unable to appear, and the matter was continued until July 6, 2017. Concomitantly, the trial court extended the ex parte order of protection until the July 6, 2017 hearing date.

         The trial court conducted a bench trial on July 6, 2017, regarding the order of protection petition. The record contains no transcript or statement of the evidence memorializing this proceeding. In its resultant order, the trial court again extended the ex parte order of protection until July 5, 2018. The order contains no findings of fact or conclusions of law regarding the order of protection extension.

         On July 27, 2017, Wife filed a motion to alter or amend the trial court's judgment, requesting that the trial court "enter a final order of protection against [Husband], based on her proof by a preponderance of the evidence at trial that [Husband] had committed domestic abuse." Following a hearing conducted on August 13, 2017, the trial court entered an order denying Wife's motion to alter or amend on August 28, 2017. Wife timely appealed.

         II. Issue Presented

         Wife presents one issue for appeal, which we have ...


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