Andrea Kay Honeycutt Ex Rel. Minor Child, Alexander H. v. Jonathan Honeycutt

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 14, 2015

ANDREA KAY HONEYCUTT EX REL. MINOR CHILD, ALEXANDER H. v.

JONATHAN HONEYCUTT

Appeal from the Circuit Court for Davidson County

No. 15X259 Hamilton V. Gayden, Jr., Judge

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No. M2015-00645-COA-R3-CV – Filed June 30, 2016

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In this case, a wife, on behalf of herself and her children, obtained an ex parte temporary

order of protection against her husband as permitted by Tennessee Code Annotated § 36-3-

605(a). After a hearing, the circuit court extended the order of protection for forty-five days

and assessed costs and attorneys‟ fees against the husband. The husband appeals, arguing

that the wife failed to prove her allegations of domestic abuse by a preponderance of the

evidence. After reviewing the record, we affirm the decision of the circuit court.

Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the Court, in which THOMAS R. FRIERSON,

II and BRANDON O. GIBSON, JJ., joined.

Venus Niner and Adrian H. Alshuler, Franklin, Tennessee, for the appellant, Jonathan Allen

Honeycutt.

Jeffrey L. Levy, Nashville, Tennessee, for the appellee, Andrea Kay Honeycutt.

OPINION

I. PROCEDURAL BACKGROUND

On March 17, 2015, Andrea Kay Honeycutt (“Wife”) filed a Petition for an Order of

Protection on behalf of herself and her two children, a son and a daughter. She requested

protection from the children‟s father, Jonathan Honeycutt (“Husband”), claiming she was in

fear of physical harm. In her petition, Wife disclosed the parties‟ pending divorce action in

the Fourth Circuit Court for Davidson County, Tennessee. Finding good cause, a judicial

commissioner issued an ex parte temporary order of protection. The matter was set for a

hearing on March 30, 2015, in the First Circuit Court for Davidson County, Tennessee.

At the March 30 hearing, the circuit court heard the testimony of Husband and Wife,

as well as testimony from Wife‟s brother. After hearing the testimony, the court extended the

temporary order of protection and made the following statement:

The Court approaches this case from the standpoint that this is

really something that should have been heard by [the divorce

court] in the terms of a restraining order with -- with certain

qualifications. Therefore, the Court is going to grant an order of

protection, but only for a very short period of time enabling the

parties to get to the [divorce] courts down the hall where the

judge has jurisdiction over all these matters. First of all, the

Court, ironically, finds all the parties in this case [credible] in an

incredible condition. One thing is for sure, the [parents] need a

divorce. The second thing is for sure, they need counseling, a

boatload of counseling in between themselves and with this

child of nine years in this very critical period in this time of his

life. Ironically, the Court finds the most significant danger here

would be the possibility the nine year old -- and you see it in the

newspaper -- could actually take the life of one of his parents

just as much as something could happen from one of the parents

to him. So the Court feels like it‟s the only thing now is to give

an order of protection for 45 days. Since this [divorce] is

pending in Fourth Circuit Court, it can only be modified or

extended or dismissed by [the divorce court]. That will give the

parties an opportunity to get to the [divorce] court down at the

end of the hall as quickly as possible.

By its terms, the order of protection expired on May 13, 2015. The court specifically limited

the order of protection to Wife and the parties‟ son, not the parties‟ daughter. The court also

assessed attorneys‟ fees and costs to Husband. See Tenn. Code Ann. § 36-3-617(a)(1) (2014)

(“If the court, after the hearing on the petition, issues or extends an order of protection, all

court costs, filing fees, litigation taxes and attorney fees shall be assessed against the

respondent.”).

Husband filed a notice of appeal on April 2, 2015. His sole issue on appeal is whether

Wife proved her allegations of domestic abuse by a preponderance of the evidence. For her

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part, Wife requests an award of attorneys‟ fees in defending this appeal.

II. PROOF AT THE HEARING

Wife testified she filed her petition for an order of protection based on an incident that

occurred during the afternoon of March 8, 2015 and similar previous incidents. On March 8,

Wife‟s nephew was visiting for the afternoon, and the parties‟ son wanted to play with his

cousin rather than finish his homework. When the son refused to do his homework, Husband

intervened.

Wife described a violent confrontation between Husband and son. After the son

“smarted off,” according to Wife, Husband grabbed their son, dragged him approximately ten

feet across the floor, and forcibly placed him on the stairs in an attempt to put him in “time

out,” the parties‟ favored discipline technique. Wife claimed that Husband placed their son

on the stair with such force that he hit his head on the back of the staircase. During this time,

Wife stated their son was screaming, crying, and trying to hit Husband. Wife attempted to

intervene but was ignored.

According to Wife, their son did not stay on the stairs as directed, but ran upstairs.

Husband caught him and “put [him] in a bear hug.” Wife testified that, at some point, their

son returned downstairs and grabbed a knife from the kitchen. After Wife took the knife

from him, the son hid in the downstairs bathroom, and Husband went outside into the back

yard.

When Husband returned to the house, Wife claimed that Husband began screaming at

her that the son‟s behavior was her fault. Wife called her brother to pick up her nephew

because of the volatile situation. Wife testified that Husband went into the bathroom where

the son was hiding and continued yelling. After Wife called her brother back to tell him to

hurry, Husband went outside again and began to talk on his cell phone. While Husband was

outside, Wife‟s brother arrived and took the nephew home. Wife described their son as

“hysterical,” “crying,” “upset,” and “not himself.” According to Wife, the parties‟ daughter

was upstairs in her room and only emerged once during this incident.

Wife‟s brother confirmed he received three phone calls from Wife during this

incident, although he missed one of her calls. He stated he could hear the son, screaming in

the background “like he was being attacked.” He characterized Wife as upset and frantic.

Husband testified that he calmly attempted to discipline his son after his refusal to do

his homework. He denied dragging his son to time out. Husband testified that instead he led

their son to the staircase by his arm. Husband claimed their son was not cooperative and hit

him in the face with his fist. He did not see his son hit his head. After he placed the son on

the staircase, Husband claimed that he returned to the kitchen to make dinner.

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According to Husband, he made a plate of food for their daughter and carried it

upstairs to her room. Husband claimed that his son chased after him, shouting. After he

directed his son into a bedroom to talk, Husband stated his daughter ran in and hit her

brother. Husband testified that the son reacted so violently that Husband wrapped his arms

around his son to calm him. Husband related that, after a few minutes, he released the son

and went to talk to his daughter. When Husband came downstairs, he claimed he found his

Wife attempting to cajole their son out of the bathroom. Husband then went outside and

spoke to a family member on his cell phone.

Husband claimed that life returned to normal after this incident. He continued to pick

up the children from school and even took his son to Tullahoma for a birthday party with the

consent of Wife on March 14.

Wife testified that she did not call the police after the March 8 incident because she

was scared. The police investigated the incident the next day, however, based on a report

from Wife‟s sister-in-law. The police spoke to both parents together and separately to the

children. The police did not make any arrests or issue any citations. Wife did not ask the

police for help or inform them she was afraid of Husband.

Despite this, Wife told the court that both she and her son were afraid of Husband.

She testified to difficulties sleeping and described their son as angry and suffering from

nightmares. She attributed her fear to the March 8 incident and previous incidents involving

Husband. She described a prior incident during a family vacation when Husband ordered her

not to interfere with his discipline of the son. When asked why she did not take the children

somewhere safe when her husband was away from home, Wife testified: “I was scared of

what would happen when he would come home, and he‟s threated to call the police on me if I

took the children.”

Both parties agreed that their son has behavior problems. Husband testified he had

tried to arrange for counseling for his son, but Wife cancelled the appointment. Husband

agreed that, since March, his son is easily startled and screams in his sleep. Husband

attributed the son‟s reaction to the police investigation, not the events of March 8. Wife

testified that their son had been talking to his school counselor, and Wife stated that she was

also looking for an outside counselor for him.

III. DISCUSSION

A. STANDARD OF REVIEW

We review the trial court‟s findings of fact de novo on the record, with a presumption

of correctness, unless the evidence preponderates otherwise. See, e.g., Armbrister v.

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Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). In weighing the preponderance of the

evidence, determinations of witness credibility are given great weight, and they will not be

overturned without clear and convincing evidence to the contrary. In re Adoption of A.M.H.,

215 S.W.3d 793, 809 (Tenn. 2007). We review the trial court‟s conclusions of law de novo,

with no presumption of correctness. Armbrister, 414 S.W.3d at 692.

B. ORDER OF PROTECTION

In Tennessee, victims of domestic violence may petition for an order of protection.

Tenn. Code Ann. § 36-3-602(a) (2014). Our General Assembly created the current statutory

scheme to enhance the protection of domestic abuse victims. Id. § 36-3-618.1 By statute,

“[a]ny domestic abuse victim, . . . who has been subjected to, threatened with, or placed in

fear of, domestic abuse, . . . may seek relief under this part by filing a sworn petition alleging

domestic abuse . . . by the respondent.” Id. § 36-3-602(a). The statute defines “abuse” to

include “placing an adult or minor in fear of physical harm.” Id. § 36-3-601(1). “Domestic

abuse” means committing abuse against a domestic abuse victim, another statutorily defined

term. Id. § 36-3-601(4). Persons within the category of “domestic abuse victim” include

“[a]dults or minors . . . who live together or who have lived together.” Id. § 36-3-601(5)(B),

(C).

If the petitioner shows good cause, the court may issue an ex parte temporary order of

protection. Id. § 36-3-605(a). Within fifteen days after the respondent is served with the ex

parte order, the court must hold a hearing to determine whether to dissolve or extend the ex

parte order for a definite period of time, not to exceed one year. Id. § 36-3-605(b). A

petitioner seeking an extension of an ex parte order must establish domestic abuse by a

preponderance of the evidence. Id.; see also Collins v. Pharris, No. M1999-00588-COA-R3-

CV, 2001 WL 219652, at *4 (Tenn. Ct. App. Mar. 7, 2001).

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The domestic abuse statutes include the following statement of legislative intent:

The purpose of this part is to recognize the seriousness of domestic abuse as

a crime and to assure that the law provides a victim of domestic abuse with

enhanced protection from domestic abuse. A further purpose of this chapter

is to recognize that in the past law enforcement agencies have treated

domestic abuse crimes differently than crimes resulting in the same harm but

occurring between strangers. Thus, the general assembly intends that the

official response to domestic abuse shall stress enforcing the laws to protect

the victim and prevent further harm to the victim, and the official response

shall communicate the attitude that violent behavior is not excused or

tolerated.

Tenn. Code Ann. § 36-3-618.

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Husband contends Wife did not prove her allegation of domestic abuse by a

preponderance of the evidence. Husband characterizes the March 8 incident as a permissible

example of a father disciplining a son for unacceptable behavior. Thus, according to

Husband, even if Wife‟s version of events is to be believed, she did not prove he committed

domestic abuse.

We find Husband‟s argument unavailing. Husband fails to recognize that Wife merely

had to show fear of physical harm. Tenn. Code Ann. § 36-3-601(1). Proof of actual physical

abuse is not required. This court rejected a similar argument in Long v. Brown, No. E2013-

00802-COA-R3-CV, 2014 WL 295713 (Tenn. Ct. App. Jan. 28, 2014). In that case, the

respondent argued that because having a glass of ice water thrown in one‟s face is unlikely to

cause serious physical harm, the alleged incident could not constitute domestic abuse as a

matter of law. Id. at *5. We held that petitioner‟s testimony that she feared respondent

would hurt her met the statutory definition of domestic abuse. Id. See also Murphy v.

Janowitz, No. E2005-00736-COA-R3-CV, 2005 WL 2386945, at *1 (Tenn. Ct. App. Sept.

29, 2005) (holding evidence of fear of physical harm and restraint was sufficient to meet

statutory definition of abuse); Wadhwani v. White, No. M2005-02655-COA-R3-CV, 2007

WL 27329, at *3 (Tenn. Ct. App. Jan. 3, 2007) (agreeing the definition of domestic abuse

“includes placing an adult in fear of physical harm”).

We recognize “the determination of the preponderance of the evidence regarding

allegations of abuse is largely fact-driven, and dependent on credibility including demeanor

assessments.” Long, 2014 WL 295713, at *5. Here, the trial court credited Wife‟s testimony

that she and her son were afraid of Husband based on the March incident and his past

behavior. We give great weight to a trial court‟s factual findings based on witness credibility

because the trial court observed the witnesses. Estate of Walton v. Young, 950 S.W.2d 956,

959 (Tenn. 1997).

After hearing all the testimony, the court ruled there was sufficient evidence to justify

including Wife and her son within the order of protection, but not the daughter. Both parents

agreed the son was exhibiting signs of fear, and Wife testified she was losing sleep. The

court determined the relationship between Husband, Wife, and their son was so volatile that

the son could harm the parents “as much as something could happen from one of the parents

to him.” Under these circumstances, we cannot say the evidence preponderates against the

judgment of the trial court. See Davis v. Davis, No. 03A01-9901-CH-00015, 1998 WL

208850, at *2 (Tenn. Ct. App. Apr. 30, 1998) (“While we agree with the trial court‟s

observation that this is a „close case‟ we are persuaded that the evidence does not

preponderate against the judgment of the court and the findings that are necessarily made by

implication by issuing the order of protection.”).

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C. ATTORNEYS‟ FEES

Wife seeks an award of her attorneys‟ fees on appeal under Tennessee Code

Annotated § 36-3-617(a)(1). The statute provides for an award of court costs, including

attorneys‟ fees, to a victim of domestic abuse:

Notwithstanding any other law to the contrary, no domestic

abuse victim, stalking victim or sexual assault 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 on the

petition, issues or extends an order of protection, all court costs,

filing fees, litigation taxes and attorney fees shall be assessed

against the respondent.

Id. Because we affirm the trial court‟s extension of the order of protection, Wife is entitled

to her attorneys‟ fees on appeal. Land v. Casteel, No. E2010-00593-COA-R3-CV, 2011 WL

808784, at *3 (Tenn. Ct. App. Mar. 8, 2011); Long, 2014 WL 295713, at *4; Brown v.

Vaughn, No. E2010-00373-COA-R3-CV, 2010 WL 3767123, at *7 (Tenn. Ct. App. Sept. 28,

2010).

IV. CONCLUSION

For the foregoing reasons, the decision of the circuit court is affirmed, and this case is

remanded for a determination of Wife‟s attorneys‟ fees incurred in defending this appeal.

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W. NEAL MCBRAYER, JUDGE

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