IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 1, 2018

TERRA JOY MARIE WESTFALL v. ERIC JAMES WESTFALL

Appeal from the Circuit Court for Jefferson County

No. 25152 Ben W. Hooper, II, Judge

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No. E2017-01819-COA-R3-CV

___________________________________

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

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.

Elizabeth R. McClellan, Johnson City, Tennessee, for the appellant, Terra Joy Marie 

Westfall.1

 

1

The appellee, Eric James Westfall, did not file an appellate brief and is not participating in this 

appeal.

05/02/2018
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OPINION

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 restated slightly:

Whether the trial court erred by declining to enter a one-year order of 

protection, pursuant to Tennessee Code Annotated § 36-3-605, following a 

bench trial.
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III. Standard of Review

We review a non-jury case de novo upon the record, with a presumption of 

correctness as to the findings of fact unless the preponderance of the evidence is 

otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 

2000). We review questions of law, including those of statutory construction, de novo 

with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate 

Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins, 224 

S.W.3d 675, 678 (Tenn. Ct. App. 2006). The trial court’s determinations regarding 

witness credibility are entitled to great weight on appeal and shall not be disturbed absent 

clear and convincing evidence to the contrary. See Morrison v. Allen, 338 S.W.3d 417,

426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

IV. Order of Protection

Wife contends that the trial court erred by extending the ex parte order of 

protection past the date of the hearing instead of entering a one-year order of protection 

in compliance with Tennessee Code Annotated § 36-3-605. Upon our thorough review of 

the record, we are unable to conduct a proper analysis of the trial court’s proceedings due 

to an inadequate record and the trial court’s failure to make sufficient findings of fact and 

conclusions of law pursuant to Tennessee Rule of Civil Procedure 52.01. 

Tennessee Code Annotated § 36-3-605 provides that upon the filing of a petition, 

the trial court may immediately issue an ex parte order of protection for good cause 

shown. The statute further provides, inter alia:

(b) Within fifteen (15) days of service of such order on the respondent 

under this part, a hearing shall be held, at which time the court shall either 

dissolve any ex parte order that has been issued, or shall, if the petitioner 

has proved the allegation of domestic abuse, stalking or sexual assault by a 

preponderance of the evidence, extend the order of protection for a definite 

period of time, not to exceed one (1) year, unless a further hearing on the 

continuation of such order is requested by the respondent or the petitioner; 

in which case, on proper showing of cause, such order may be continued 

for a further definite period of one (1) year, after which time a further 

hearing must be held for any subsequent one-year period.

Tenn. Code Ann. § 36-3-605. 

In the instant action, the trial court conducted a bench trial on July 6, 2017, 

regarding the order of protection petition. As previously noted, the record contains no 
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transcript or statement of the evidence memorializing this proceeding. In its resultant 

order, the trial court extended the ex parte order of protection, directing as follows: 

For the foregoing reasons, the COURT HEREBY ORDERS:

That the Ex Parte Order of Protection heretofore issued in this cause 

be and is hereby extended until such time as this Court may hear the 

same. The date for such hearing will be set by the Clerk of the Court 

and the parties, or their attorneys of record, will be notified of such 

hearing date. 

The above provision is incorporated in typed format as part of a form order.2 

Immediately following this provision, the trial court included a handwritten notation that 

provides, “extended for 1 year till 7/5/18.” The trial court made no findings of fact or 

conclusions of law regarding the order of protection other than an introductory statement 

reflecting the date of the petition’s filing and the date of hearing. The trial court included 

no reasoning concerning its decision to extend the ex parte order of protection. 

Prior to extending an order of protection, the trial court must determine that the 

petitioner proved the allegations of domestic abuse by a preponderance of the evidence. 

See Tenn. Code Ann. § 36-3-605(b). In this case, the trial court made no such finding in 

its judgment. Furthermore, this Court has previously interpreted this statutory section to 

require that at the close of a hearing following entry of an ex parte order of protection, a 

trial court has only two options: (1) to dissolve the ex parte order of protection; or (2) to 

extend the order of protection for a definite period not to exceed one year. See Merriman 

v. Merriman, No. E2010-00013-COA-R3-CV, 2010 WL 3767116, at *2 (Tenn. Ct. App. 

Sept. 28, 2010). As this Court explained:

Obviously, the dissolution of a temporary ex parte order is warranted when 

the trial court concludes that the petitioner did not prove the allegation of 

domestic abuse, stalking, or sexual assault by a preponderance of the 

evidence. See Collins v. Pharris, No. M1999-00588-COA-R3-CV, 2001 

WL 219652 at *5 (Tenn. Ct. App. M.S., filed Mar. 7, 2001) (“[A]n order of 

protection is appropriate only where there is sufficient evidence that the 

victim needs the protection available.”). Conversely, “if the petitioner has 

proved the allegation of domestic abuse, stalking or sexual assault by a 

preponderance of the evidence,” then the court “shall . . . extend the order 

of protection for a definite period of time, not to exceed one (1) year.” 

Tenn. Code Ann. § 36-3-605(b).

 

2

This form does not appear to have been developed through the Administrative Office of the 

Courts pursuant to Tennessee Code Annotated § 36-3-604 (2017).
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Long v. Brown, No. E2013-00802-COA-R3-CV, 2014 WL 295713, at *4 (Tenn. Ct. App. 

Jan. 28, 2014).

Regarding an ex parte order, the term “ex parte” when applied as an adjective is 

defined as “[d]one or made at the instance and for the benefit of one party only, and 

without notice to, or argument by, any person adversely interested; of or relating to court 

action taken by one party without notice to the other, [usually] for temporary or 

emergency relief.” BLACK’S LAW DICTIONARY 616 (8th ed. 2004). An ex parte order 

inherently reflects that a trial has not occurred regarding the merits of the case. 

Following a trial regarding the allegations in the petition, the trial court may extend an 

order of protection for a definite period of time not to exceed one year, pursuant to 

Tennessee Code Annotated § 36-3-605. However, the resultant order should not be 

considered an “ex parte” order and must be based upon findings of fact and conclusions 

of law to support the trial court’s decision. Ergo, a trial court cannot continue to identify 

a post-trial order of protection as ex parte. 

Complicating this Court’s appellate review is the trial court’s failure to make

findings of fact and conclusions of law in its judgment. Tennessee Rule of Civil 

Procedure 52.01 requires that following a bench trial, a trial court shall make appropriate 

findings of fact and separate conclusions of law. With reference to Rule 52.01, this Court 

has explained:

[T]he requirement to make findings of fact and conclusions of law is “not a 

mere technicality.” In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 

1362314, at *8 (Tenn. Ct. App. May 15, 2009). Instead, the requirement 

serves the important purpose of “facilitat[ing] appellate review and 

promot[ing] the just and speedy resolution of appeals.” Id.; White v. 

Moody, 171 S.W.3d 187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce, 801 

S.W.2d 102, 104 (Tenn. Ct. App. 1990). “Without such findings and 

conclusions, this court is left to wonder on what basis the court reached its 

ultimate decision.” In re K.H., 2009 WL 1362314, at *8 (quoting In re 

M.E.W. No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn. 

Ct. App. Apr. 21, 2004)). Generally, the appropriate remedy when a trial 

court fails to make appropriate findings of fact and conclusions of law is to 

“vacate the trial court’s judgment and remand the cause to the trial court for 

written findings of fact and conclusions of law,” unless the trial court’s 

decision involves only a clear legal issue or the trial court’s decision is 

readily ascertainable. Lake v. Haynes, No. W2010-00294-COA-R3-CV, 

2011 WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011); Burgess v. Kone, 

Inc., No. M2007-02529-COA-R3-CV, 2008 WL 2796409, at *2 (Tenn. Ct. 

App. July 18, 2008). 
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Babcock v. Babcock, No. E2014-01670-COA-R3-CV, 2015 WL 1059003, at *6 (Tenn. 

Ct. App. Mar. 9, 2015).

This Court has concluded that the appellate court may “soldier on” with its review 

despite the trial court’s failure to comply with Tennessee Rule of Civil Procedure 52.01 

when the case involves a clear issue of law or the trial court’s decision is readily

ascertainable. See Schnur v. Sherrell, No. E2016-01338-COA-R3-CV, 2017 WL 

2791711, at *3 (Tenn. Ct. App. June 27, 2017) (affirming the trial court’s judgment 

despite a lack of findings of fact when the trial court orally articulated its reasoning); but 

see Douglas v. Caruthers & Associates, Inc., No. W2013-02676-COA-R3-CV, 2015 WL 

1881374, at *10 (Tenn. Ct. App. Apr. 24, 2015) (remanding to the trial court for entry of 

findings of fact in compliance with Rule 52.01 when the case presented complicated 

questions of law that required a fact-intensive inquiry and the trial court’s decision was 

not readily ascertainable).

In the case at bar, the issue on appeal does not involve a clear issue of law, nor is 

the trial court’s decision “readily ascertainable.” The appellate record lacks a transcript 

or statement of the evidence reflecting the trial court’s proceedings that occurred on July 

6, 2017. The inadequate record combined with the trial court’s failure to make findings 

of fact and conclusions of law pursuant to Tennessee Rule of Civil Procedure 52.01 

renders this court unable to “soldier on” and properly perform an appellate review of the 

trial court’s proceedings. Because the trial court failed to make findings of fact and 

conclusions of law, we hereby vacate the trial court’s judgment and remand for sufficient 

findings of fact and conclusions of law regarding whether the ex parte order of protection

should be dissolved or an extended order of protection entered, pursuant to Tennessee 

Code Annotated § 36-3-605, if the trial court determines that Wife has proven domestic 

abuse by a preponderance of the evidence. Until further hearing, the trial court’s ex parte

order of protection shall remain in effect. See, e.g., Merriman, 2010 WL 3767116, at *2.

V. Conclusion

For the foregoing reasons, we vacate the trial court’s judgment and remand this 

matter to the trial court for further proceedings consistent with this opinion and for 

collection of costs assessed below. Costs on appeal are taxed to the appellee, Eric James 

Westfall. 

_________________________________

THOMAS R. FRIERSON, II, JUDGE