IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 7, 2011

ELIZABETH DIANE CARR v. GREGORY F. ALLEN

Appeal from the Circuit Court for Jefferson County

No. 22,476 O. Duane Slone, Judge

No. E2010-00817-COA-R3-CV - Filed February 16, 2011

Elizabeth Diane Carr (“Petitioner”) filed for and obtained an ex parte order of protection

against her cousin, Gregory F. Allen (“Respondent”). Pursuant to statute, a hearing was

conducted on whether to dissolve or to extend the order of protection. In accordance with

Tenn. Code Ann. § 36-3-605(b), a trial court has two options at such a hearing: (1) to

dissolve the order of protection; or (2) to extend the order of protection for a definite period

of time not to exceed one year. With respect to taxing costs, Tenn. Code Ann. § 36-3-617(a)

expressly prohibits taxing costs against a victim, even if the order of protection is dissolved.

If the order of protection is extended, the costs must be taxed against the respondent. In the

present case, following the hearing on whether to extend or dissolve the order of protection,

the Trial Court instead entered a mutual restraining order and taxed costs equally to both

parties. Because neither action was authorized by statute, we vacate the judgment of the

Trial Court and remand for further proceedings consistent with this Opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the

Circuit Court Vacated; Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS,

P.J., and JOHN W. MCCLARTY, J., joined.

Deborah A. Yeomans, Johnson City, Tennessee, for the Appellant, Elizabeth Diane Carr.

No brief filed by the Appellee, Gregory F. Allen.
OPINION

Background

On March 19, 2010, Petitioner filed a petition for ex parte order of protection

against Respondent. An ex parte order of protection was entered by the Trial Court and a

hearing was scheduled for April 5, 2010. Following that hearing, the Trial Court entered an

order stating as follows:

This cause came to be heard on the 5[th] day of April,

2010, upon the Petition of Elizabeth Carr for an order of

protection against Defendant Gregory France Allen.

Upon hearing the proof in the cause, the Court finds as

follows: that the parties have been physically violent towards

each other in the past.

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that both parties are enjoined and restrained from

any threats or acts of violence. The costs of the cause are taxed

against each party equally for which execution shall issue if

necessary.

Petitioner filed a timely appeal and raises two issues, which we quote verbatim

from her brief:

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I. Whether the [Trial Court] erred in issuing a mutual

restraining order instead of an Order of Protection?

II. Whether the [Trial Court] erred in taxing the costs of the

mutual restraining order equally?

Discussion

The factual findings of the Trial Court are accorded a presumption of

correctness, and we will not overturn those factual findings unless the evidence

preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721,

727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de

 The Respondent neither filed a brief nor otherwise participated in this appeal.

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novo standard of review, according no deference to the conclusions of law made by the lower

courts.” Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710

(Tenn. 2001).

This Court was presented with the exact same issues in the case of Merriman

v. Merriman, E2010-00013-COA-R3-CV, 2010 WL 3767116 (Tenn. Ct. App. Sept. 28,

2010), no appl. perm. appeal filed. Rather than reinvent the wheel, we quote from our

Opinion in Merriman:

As relevant to this appeal, Tenn. Code Ann. § 36-3-605(a) & (b)

provide as follows:

(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 abuse to the

petitioner shall constitute good cause for purposes of this

section.

(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. Any ex parte order of protection

shall be in effect until the time of the hearing, and, if the hearing

is held within fifteen (15) days of service of such order, the ex

parte order shall continue in effect until the entry of any

subsequent order of protection issued pursuant to

§ 36-3-609. . . .

Tenn. Code Ann. § 36-3-605(a) & (b) (Supp. 2009).

Petitioner correctly points out that pursuant to the above statute,

at a hearing following entry of an ex parte order of protection, a trial court has

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two options: (1) to dissolve the ex parte order of protection; or (2) extend the

order of protection for a definite period not to exceed one year. Entering a

mutual restraining order, as was done in the present case, is not one of the

statutory options available to a trial court.

* * *

Petitioner’s second issue is her claim that the Trial Court erred

when it taxed the costs equally against both parties. As relevant to this appeal,

Tenn. Code Ann. § 36-3-617 provides as follows:

(a) Notwithstanding any other law to the contrary, no victim

shall be required to bear the costs, including any court costs,

filing fees, litigation taxes or any other costs associated with the

filing, issuance, registration, service, dismissal or nonsuit,

appeal or enforcement of an ex parte order of protection, order

of protection, or a petition for either such order, whether issued

inside or outside the state. If the court, after the hearing, issues

or extends an order of protection, all court costs, filing fees,

litigation taxes and attorney fees shall be assessed against the

respondent.

Tenn. Code Ann. § 36-3-617(a) (Supp. 2009).

Again, the relevant statute leaves a trial court little maneuvering room.

The statute indicates that no victim shall be required to pay the costs, even if

the order of protection is dissolved.

Merriman, 2010 WL 3767116 at **1-2.

We find nothing to distinguish Merriman from this case. Therefore, we vacate

the judgment of the Trial Court and remand this case for further proceedings, as the Trial

Court deems necessary, at which time the Trial Court must either dissolve the ex parte order

of protection or extend the order of protection for a period of time not to exceed one year.

The ex parte order of protection remains in effect until the further hearing by the Trial Court

on the continuation of the order. Further, if an order of protection is extended, then the

statute requires the respondent be assessed with the costs. Accordingly, on remand, the Trial

Court shall not tax any of the costs to Petitioner. If the ex parte order of protection is

extended, then the costs shall be taxed to the Respondent.

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Conclusion

The judgment of the Trial Court is vacated, and this cause is remanded to the

Circuit Court for Jefferson County for further proceedings consistent with this Opinion and

for collection of the costs below. Costs on appeal are taxed to the Appellee, Gregory F.

Allen, for which execution may issue, if necessary.

_________________________________

D. MICHAEL SWINEY, JUDGE

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