### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 7, 2002 Session CHERYL DIANE AUTRY v. JAMES TRAVIS AUTRY Appeal from the Circuit Court for Davidson County No. 01D-1496 Muriel Robinson, Judge

No. M2001-01807-COA-R3-CV - Filed January 28, 2002
This appeal involves the issuance of an order of protection. The parties were married on May 18, 1999. One minor daughter was born to the marria ge. On Ju ne 10, 200 1, there was a str

uggle betweenthe parties over the child. The appellee soug ht an order of protection. A hearing wa s held on June 28, 2001, on Mrs. Autry’s petition. Both par ties were present at the hearing . After hearing the testimony , the tria

l court g ranted M rs. Autry an order of prote ction, se

t child sup port, and ordered the minor child removed from TennCare insurance c overage. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med W ILLI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S. and J ANE W HEATC RAFT , S P . J., joined. Thomas Edward Nelson, Nashville, Tennessee, for the a ppellant, James Travis Autry. Cheryl Diane Autry, Nashville, Tennessee, Pro Se. OPINION On June 12, 200 1, Mr s. Au tr y filed an Ex Parte Order of Protection against Mr. Autry stemming fr om even ts that occurred on June 10, 2001. A hearing was held on June 28, 2001 regarding Mrs. Autry’s petition for a n order of protection. At the time of the hearing on the order of protection, a complaint for divorce on grounds of irreconcilable differences w as pending. The parties t

estified to two different versions of the events that occurred on June 10, 2001. Mrs. Autry testified that she planned to visit her father and take the minor child with her. Mr. Autry and a friend, Jason Anderson, were at the marital residence. Mrs. Autry stated that she picked the child up to leav e and Mr. Autry tried to pull the child out of her arms. Further, Mrs. Autry testified that she was struck in the head suffering injuries a s a result of the struggle over the c hild. Mr. Autry testified to a diffe rent scenario of events than Mrs. Autry

. He s tated tha t Mrs. Autry loaded her car and attempt ed to take the minor child out of his hands by pulling he r. Mr.-2-

Autry testified that

he was not aggressive toward Mr s. Autry. The appe llant’s witness, Mr. Anderson, testified that Mr. Autry was holding the child when Mrs. Autry tried to take he

r from him

. Both parties t oldthe trial

court tha t they each re leased t heir grip on the child. Both parties called 911 emergency . Two officers responded to the scene but did not arr est either party

. At the time of the hearing, Mr. Autry worked for his father, Mr. Autry, Senior, as a mechanic at Autry Auto Service . The trial court inquired as to the a

ppellant ’s income . He was u nable to s tate his annual income. Mr. Autry, Sr. testified that the a ppellant had only worke d a few weeks of the year a t the time. Mrs. Autry was also e mployed. The trial court inquired as to the child’s medical insurance cover age. The minor

child was on TennCare. The trial court stated: The Court : Your

child should not be on Tenn Care. So I want y ou to work regular, get this child some insurance because y ou’re goingto furnish this child insurance not through TennCare by the time I sign this final decree . Do y ou under stand tha t? Mr . A ut ry: Yes, Your Honor. The Court : All right. Yo u will pay all medic al bills n ot covered by this insurance. I’m going

to grant this order of protection for six months because I don’t know who’s lying a nd who’s n ot. I’ m not rea lly impressed with anybody who’s te st if

ie d t od ay e xc ep t M r. Au tr y, Senior. The trial court set the appellant’s child support obligation at $52.33 per week. We now turn to whether the trial court erred in issuing theorder of protection. The appellant argues that the appellee failed to carry the statutory burden of pr oof. To be ent

itled to an

ex parte order of protection, a petitioner must show that “good cause” f or the protective order

exists. Tenn. Code Ann. § 36-3-60 5(a). Te nnessee Code Anno tated se ction 36- 3-605 pro vides: (a) Upon the filing of a petition under this part, the courts may immediately, for good cause shown, issue an ex parte order of protection. An immediate and present danger of domestic a

buse to the petiti oner sha

ll constitu te good cause for purposes of this section. (b) Withinfifteen (15) days of ser vice of suchorder on

the resp ondent un der this part, a hearing shall be

held, at which time the court shall either dissolve any ex parte order which has been issued, or shall, if the petitioner has proved the allegationof

domestic abuse 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 suc h order is requestedby the r espondent

or the complainant in which case, on proper showing of cause , such order may

be continued for a further definite period of one (1) ye ar after which time a furthe r heari ng must be held for any subsequent one-ye ar-3- period. Any ex parte orde r of protection shall be in effect until the time of the hearing. I

f no ex parte order of protection has been issued asof the time of the hearing, and the petitioner has proven the allegation of

domestic abuse by a preponderance of the evidence , the court may, a t that time, issue an order of protection for a definite period of time, not to exceed one (1) y ear. Tenn. Code Ann. §36-3-605 (a)-(b) (2001). “A cc or di ng ly, an order

of prote ction is ap

propria te only where the

re is sufficient evidence that the victim needs the protection available.” Collins v. P harris , No. M1999-00588-COA-R3-CV, 2001 WL 219652, at *5 (March 7, 2001 Tenn. Ct. App.). T he appellant arg ues that the appellee failed to prove the allegations of domestic abuse by a preponderance of the evidenc e. We are pre sented w ith a less t han satis facto r y substantially verbatim transcript of the evidence heard by the

trial court on June 28, 2001. A registered professional court re porter and notary public ha s transcribed, to the best of her ability, a

tape recordingof the proceedings. At ten places in the fifteen page transcript appe ars the word “inaudible”. This transcript is certifiedby the court reporte r under d ate of July 6, 2001 and filed with the clerk of the c ourt on July 12, 2001. On the face of the transcript is a certifica tion by the clerk that as of July 30, 2001, no objections to the transcript had been filed. As the appellee is without counsel on appeal the effort to perfect the r ecord of testimony of the June 28, 2001 hearing under T.R.A.P. 24(b) is probably done as well as th e appellant could do. The trial judge was not impressed with either of the parties but in assessing credibility found that “the petitioner has proved the allegations of abuse by a preponde

rance of the evidence.” In reviewing the evide nce under T.R.A.P. 13(d) and with deference to the trial court on questions of credibility we c annot say that the e vidence prepond erates agains tthe action of the trial court. Gillock v. Board of P rofession al Respon sibility , 656 S.W.2d 365, 367 (Tenn. 1983). In further support of the appellant’s argume nt, the appellant maintains that becau se th e appellant was not arrested by

the police, t

here is a presumption that the appellee did not suffer any injuries because the officers determined an arrest was not an appropria te response. Tenn. Code Ann. §36-3-619 (d)(2)(A), (B). Appe llant cites no authority for such a presumption. The final issue presented by appellant is whether thetrial court erred in ordering the minor child to be rem oved fro m TennCar

e. The tr ial cour t did not inc lude in

the fina l order th at the ch

ild be removed from TennCare. However, it is evident fr om the transcript that the trial court made it clear to the parties that the appellant was to provide private health insurance for the minor

child and that the child was to be removed from TennCare. Eligibili ty f or TennCa

re insur ance co verag e is in the first instance not a subject for judicial determination. Determination of eligibility f or medical assistance under Te

nnCare isby s tatute ve sted in th e execu tive bra nch of g overnme

nt subjec t to approval by named co mmittees of the legislative branch. Tenn. Code Ann. § 71-5-106. The-4-

judiciary becomesin volved o nly in review of he arings held under the Uniform Administrative Procedures Act. Tenn. Code Ann. § 71-5-112. The erroneous action of the trial court relative to TennCare coverage is not re flected in the order from which the appeal is perfected, nor is it reflected in any other order of the court. A court speaks through

its writte n judgme nts and not by oral

pronouncements. Sparkle La undry & Cleaners v. Kelt o n , 59 5 S .W .2d 88, 93 ( Ten n. C t. App . 19 79) . Th e is sue is not bef ore us f or r evi ew. It suffices to say that

any suc h order of the court would be ineffective in de termining eligibility f

or TennCare. The judgm ent o f the trial court is affirmed and the case is re manded for such further pr oc ee di ng s a s m ay b e n ec es sa ry. Costs of the appeal are assessed to James Tr a vis Autry for which executio n may issue if ne ce ss ar y.



### _________________ _____________ WILLIAM B. CAIN, JUDGE