Paige Wininger v. Jarred Wininger

09/14/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 10, 2022 Session

PAIGE WININGER v. JARRED WININGER

Appeal from the Chancery Court for Washington County

No. 21-DM-0601 John C. Rambo, Chancellor

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No. E2021-01296-COA-R3-CV

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The appellant challenges the trial court’s dismissal of her petition for order of protection

against her husband. Following a hearing where both parties testified, the trial court did

not find appellant’s testimony credible and dismissed her petition. We affirm.

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

Case Remanded

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,

C.J., and THOMAS R. FRIERSON, II, J., joined.

Jessica McAfee, Greeneville, Tennessee, for the appellant, Paige Wininger.

Suzanne S. Cook and Jason A. Creech, Johnson City, Tennessee, for the appellee, Jarred

Wininger.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

Paige Wininger (“Wife”) and Jarred Wininger (“Husband”) were married on

December 22, 2017, in Sullivan County, Tennessee. A daughter was born to the couple

approximately a year later. The family relocated to South Carolina in July 2019 and

remained there together until May 7, 2021, when Wife left the marital home with their

daughter and returned to Tennessee. Within days, Husband also moved back to Tennessee.

After Husband visited with their daughter sometime in early September 2021, Wife

told him that she was moving to Georgia with the child and stopped communicating with

Husband. Father filed a motion for custody in the Washington County Chancery Court

(the “trial court”) and obtained an ex parte order for temporary custody of the child. On

October 6, 2021, Wife surrendered the child to Husband. She then filed a motion for

visitation on October 11, 2021, stating that she resided in Jonesborough, Tennessee.

On October 12, 2021, Wife filed a petition for order of protection (the “Petition”)

in the trial court, alleging that Husband physically and sexually abused her throughout their

marriage and describing various episodes of alleged abuse dating back to December 2018

when Wife was pregnant. The Petition included another seven incidents involving physical

and/or sexual violence occurring in 2019 and 2020. Wife alleged that in May 2021, in the

presence of their daughter, Husband punched Wife in the face and shoved her into a wall.

According to the Petition, after their daughter “ran to another room to watch TV,” Husband

threw at her a tray of silverware and clean dishes, screamed about how Wife “make[s]

everything happen,” and stormed off, slamming doors. The Petition also stated that in

September 2021, while at a Texas Roadhouse restaurant in Johnson City for Husband’s

visitation time with their daughter, Husband “picked up his knife and twirled it in his hand,

and said ‘I could slit your throat right now’ and laughed as he pointed it at [Wife].” The

trial court did not issue a temporary order of protection and instead scheduled the hearing

on the Petition for October 26, 2021.

At the outset of the hearing, counsel for Husband averred that two days after the

trial court declined to issue a temporary order of protection, Wife filed a petition for order

of protection in a South Carolina court. Counsel for Wife responded that “[a]ll the actions

that [Wife] would testify to arose in South Carolina[,]” except for “one isolated incident

that occurred in Johnson City, Tennessee, during the separation while they were present

here.” The trial court asked Wife’s counsel whether Wife was ready to proceed or was

dismissing the petition for order of protection.1 After conferring with Wife, counsel told

the court they would proceed.

On direct examination, Wife testified that Husband forced her to have sex without

her consent and physically abused her on multiple occasions in the presence of their

daughter. She introduced several photographs of injuries allegedly suffered in March 2018,

January through May 2019, January 2020, August 2020, December 2020, and January

2021. According to Wife, the incidents in 2018 and 2019 occurred “[p]artially in

Tennessee,” while the ones in 2020 occurred in South Carolina. She did not seek medical

treatment for any of her injuries. Wife related an incident on October 17, 2020, when

Husband hit her with a phone, and she offered into evidence a South Carolina police report

concerning the incident. The police report makes no mention of any physical abuse by

1

The trial court noted that Wife’s address “on file” for the petition for order of protection was a

Georgia address—a third jurisdiction.

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Husband; it focuses instead on allegations of stalking and harassment by Husband’s family.

Wife attempted to introduce an audio recording allegedly depicting an incident of domestic

violence between her and Husband. Husband objected, and the court did not admit the

audio recording into evidence because it had not been previously provided to Husband.

During cross examination, Wife admitted that during arguments with Husband, she

has raised her voice, called him names, slapped, punched, and kicked him in self-defense,

and spit on him. On one occasion, Wife kicked a hole in a door when Husband restrained

her and pinned her against the wall. Counsel for Husband played an audio recording of an

incident in March 2019 during which Wife can be heard yelling at Husband because he did

not come out to greet her family and because Husband’s father had not visited Wife and

Husband’s daughter enough. She can also be heard threatening to slit her own throat.

Concerning the October 17, 2020 incident in South Carolina, Wife admitted that she had

voluntarily dismissed the order of protection against Husband’s parents prior to the incident

and denied telling the police officers who responded to the incident that the order was

active.

Wife acknowledged that on August 22, 2021, she drove from her parents’ home to

a hotel in Johnson City, Tennessee, stopped to pick up a pizza, had “marital relations” with

Husband, and then drove him to a store to purchase lottery tickets. Husband’s counsel

entered into evidence a string of texts obtained from Wife’s cell phone, spanning from May

6 through August 6, 2021, which displayed pleasant exchanges between the parties. Wife

admitted that the texts contain nothing of a threatening nature from Husband. In addition,

Husband introduced a series of Snapchat messages from Wife’s cell phone, spanning from

May 2 through September 20, 2021, which showed exchanges of an affable nature. Wife

stated that she had these type of exchanges with her Husband “so he doesn’t carry out his

threats.” She also acknowledged sending Husband “flirty pictures of [her]self wearing

nothing but an apron” and previously telling him that she likes rough sex and that it would

be fine to use “S and M” toys during sexual encounters.2 Finally, counsel for Husband

questioned Wife about inconsistencies in pleadings she had filed in several jurisdictions.

Wife acknowledged that she filed a pleading in the trial court on October 11, 2021, averring

that she was residing in Jonesborough, Tennessee; that the instant Petition, which she filed

the next day, stated her address was in Georgia; and that she filed a pleading in South

Carolina two days later, swearing that she was a South Carolina resident.

Husband testified that Wife was often unpredictable and violent. He said that on

the day Wife claimed he had pushed her against a TV, she actually punched the TV and

threw a glass at him, cutting his head. Husband denied ever physically or sexually abusing

Wife or having non-consensual sexual relations with her. He stated that Wife has a temper,

becomes irrational, and makes threats of self-harm; as an example, he pointed to the threat

to slit her throat heard in the audio recording admitted into evidence. Husband said that he

2

The parties defined “S and M” as sadism and masochism.

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had to physically restrain Wife at times to prevent her from harming herself and that Wife

has slapped him, punched him, and spit at him. He described an incident when Wife

showed up at his workplace the day after they had had a fight: Wife was yelling, slapping

him, and throwing objects around the office. As to their intimacy, Husband corroborated

that they used sex toys but said that nothing non-consensual ever happened. He stated that

during their marriage, Wife repeatedly accused him of lying and having affairs, insulted

his family and demanded he cut off contact with them, and did not want their daughter to

spend time with his family. He stated that he temporarily cut off his family and friends

because Wife threatened to take their daughter away if he did not comply and that after

their separation, she threatened to cancel visitation because of a disagreement as to the

proceeds from selling their home in South Carolina. Husband also testified Wife told him

that her parents had put her “in a mental institution or mental hospital” when she was a

teenager but that she had “faked her way out of it.”

During cross examination, Husband maintained that his sexual relations with Wife

were always consensual. He recalled that once, while they were dating, Wife got upset

with him and threatened to tell the police that he had raped her. On redirect, Husband said

that there was nothing unusual about their Texas Road House dinner in September 2021

and that Wife had made up the incident with the knife. He also testified that a former

girlfriend alerted his family that Wife had created a fake Facebook page impersonating

Husband in interactions with the former girlfriend.

On October 26, 2021, the trial court entered an order dismissing the Petition with

prejudice, ruling that Wife did not prove the allegations in the Petition by a preponderance

of the evidence. The trial court found that Wife had “uncontrolled rage” directed toward

Husband, that she attacked Husband verbally and isolated him from his family, and that

she threatened to hurt herself. Concerning Wife’s claims of rape during marriage, the trial

court noted that in a “recording of her nagging against [Husband], she listed every

imaginable grievance against him during the argument but made no mention of sexual

abuse.” In addition, the trial court concluded that Wife “tried to seduce” Husband in

August 2021 when “she traveled alone to see him from her mother’s home to have dinner

and sexual relations at the Johnson City Red Roof Inn.” The trial court further stated that

Husband did not control Wife during the marriage and that she “has no fear of him.” Wife

timely filed a Notice of Appeal in this Court on November 2, 2021.

On January 11, 2022, the trial court denied Wife’s post-judgment motion to include

in the record, for appeal purposes, the filing of the audio recording excluded during the

hearing.3 The trial court reasoned that the Tennessee Rules of Evidence do not allow

supplementation of the record where an offer of proof was not requested at the hearing.

3

The record does not contain the post-judgment motion. We presume that the motion was filed

and that a hearing concerning the same was held, as indicated by the trial court’s January 11, 2022 order

denying the motion. In their appellate briefs, the parties agree the motion was filed.

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ISSUES

Wife raises multiple issues on appeal, which we articulate as follows:

1. Whether the trial court had personal jurisdiction over Wife and subject matter

jurisdiction to adjudicate her Petition.

2. Whether the trial court erred by refusing to admit into evidence Wife’s audio

recording and by denying her post-judgment motion to add the recording to the

record for appeal purposes.

3. Whether the trial court erred by admitting into evidence the audio recording

submitted by Husband.

4. Whether the evidence preponderates against the trial court’s decision to dismiss the

Petition.4

STANDARD OF REVIEW

As stated by our Supreme Court,

In a non-jury case such as this one, appellate courts review the trial court’s

factual findings de novo upon the record, accompanied by a presumption of

the correctness of the findings, unless the preponderance of the evidence is

otherwise. See Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d

685, 692 (Tenn. 2013). We review the trial court’s resolution of questions

of law de novo, with no presumption of correctness.

Kelly v. Kelly, 445 S.W.3d 685, 691-92 (Tenn. 2014). 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). This

is “[b]ecause the trial court is in the best position to judge the parties’ credibility during

live testimony at trial.” Larsen-Ball v. Ball, No. E2020-00297-COA-R3-CV, 2021 WL

3854802, at *12 (Tenn. Ct. App. Aug. 30, 2021), perm. app. denied (Tenn. Dec. 8, 2021).

4

In the very last line of her appellate brief, Wife states that she “seeks reasonable attorney’s fees

of appeal.” This issue is waived, and we will not consider it, inasmuch as Wife did not list it on her

statement of issues presented for review and did not provide any argument in support of her request. See

Blue v. Church of God Sanctified, Inc., No. M2021-00244-COA-R3-CV, 2022 WL 2302263, at *10 (Tenn.

Ct. App. June 27, 2022) (“[T]his Court has repeatedly held that an issue may be waived if it is not included

in the statement of the issues”); Forbess v. Forbess, 370 S.W.3d 347, 355 (Tenn. Ct. App. 2011) (“This

court has repeatedly held that a party’s failure to cite authority for its arguments or to argue the issues in

the body of its brief constitute a waiver on appeal.”).

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With respect to issues regarding the admission or exclusion of evidence, appellate

courts review the trial court’s determinations under an abuse of discretion standard. Brown

v. Crown Equip. Corp., 181 S.W.3d 268, 273 (Tenn. 2005); Mercer v. Vanderbilt Univ.,

Inc., 134 S.W.3d 121, 131 (Tenn. 2004). As we have previously explained:

Under this standard, we are required to uphold the trial court’s ruling “as long

as reasonable minds could disagree about its correctness.” Caldwell v. Hill,

250 S .W.3d 865, 869 (Tenn. Ct. App. 2007). So, “we are not permitted to

substitute our judgment for that of the trial court.” Id. An appellate court

“will set aside a discretionary decision only when the trial court has

misconstrued or misapplied the controlling legal principles or has acted

inconsistently with the substantial weight of the evidence.” White v.

Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). We review a

trial court’s discretionary decision to determine: “(1) whether the factual

basis for the decision is supported by the evidence, (2) whether the trial court

identified and applied the applicable legal principles, and (3) whether the trial

court’s decision is within the range of acceptable alternatives.” Id.

Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *2 (Tenn.

Ct. App. Aug. 12, 2011).

ANALYSIS

Jurisdictional Issues

We begin by addressing the threshold issues of the trial court’s personal jurisdiction

over Wife and subject matter jurisdiction to adjudicate the Petition. Concerning the former,

it is plain to us not only that Wife waived any challenges to the trial court’s personal

jurisdiction, but also that she is estopped from asserting them. Wife did not object to the

trial court’s jurisdiction over her person; instead, she invoked it by the filing of the Petition

and, therefore, submitted herself to it. See Landers v. Jones, 872 S.W.2d 674, 675 (Tenn.

1994) (holding that personal jurisdiction can be waived by the express or implied consent

of the parties); Bell v. Bell, No. M2004-01975-COA-R3-CV, 2007 WL 2095422, at *3

(Tenn. Ct. App. July 18, 2007) (holding that wife was estopped from questioning personal

jurisdiction where she had sued for divorce in the trial court); Cothron v. Scott, 446 S.W.2d

533, 535 (Tenn. Ct. App.1969) (holding that a party who invokes the jurisdiction of the

court is estopped from reversing her position). Moreover, in a pleading filed in the trial

court the day before Wife filed the Petition, she declared she was a resident of Washington

County. Under these circumstances, the trial court clearly had personal jurisdiction over

this plaintiff.

“Subject matter jurisdiction concerns a court’s ‘lawful authority to adjudicate a

controversy brought before it’ and is conferred on a court by statute or the constitution.”

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Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 902 (Tenn. 2014) (quoting Johnson v.

Hopkins, 432 S.W.3d 840, 843 (Tenn. 2013)). Tennessee Code Annotated section 36-3-

601 confers authority to adjudicate petitions for order of protection on “any court of record

with jurisdiction over domestic relation matters or the general sessions court.” Tenn. Code

Ann. § 36-3-601(3)(C). The trial court, as a chancery court, is a court of record with

jurisdiction over domestic relation matters. See Tenn. Code Ann. § 16-11-110 (“The

chancery court has jurisdiction, concurrent with the circuit court, of all proceedings for

divorce and for the adoption of children.”); see also Collins v. Pharris, No. M1999-00588-

COA-R3-CV, 2001 WL 219652, at *2 (Tenn. Ct. App. Mar. 7, 2001) (quoting Tenn. Op.

Att’y Gen. No. 98-043) (“In Tennessee, orders of protection may be issued by both the

circuit court and the chancery court in each county.”). Wife argues that the trial court

lacked subject matter jurisdiction because “most of the acts giving rise to the request for

Order of Protection occurred in South Carolina” and because the trial court “did not find

that there was a threat made by Husband at the Texas Roadhouse Restaurant on September

8, 2021.” Here, Wife alleged in her Petition that Husband threatened her with a knife at

the Texas Roadhouse in Johnson City; the fact that the trial court determined Wife failed

to prove her allegation is inapposite for purposes of jurisdiction. In addition, Wife testified

that in August 2021, she had intercourse twice with Husband when they met at a Red Roof

Inn also in Johnson City, even though she “told him [she] was not comfortable and wanted

to stop.” Notably, these two incidents were the closest in time to the filing of the Petition.

The trial court clearly had subject matter jurisdiction over these alleged offenses, and Wife

herself elected to file the Petition in the trial court. This issue is without merit.

Evidentiary Issues

Wife argues that the trial court erred in disallowing an audio recording she sought

to admit into evidence, which allegedly captured a domestic violence incident between her

and Husband on January 6, 2020. Husband’s counsel objected to introduction of the

recording on the basis that Wife had not previously produced it. Upon inquiry from the

trial court, counsel for Wife stated that the “only reason” the recording had not been

provided was that she “didn’t anticipate using it today because [she] wasn’t going to move

forward on this [Petition] today.” The trial court sustained the objection but allowed Wife

to testify about the alleged incident. Wife’s counsel asked only one question about the

incident before moving on to another topic. Counsel did not make an offer of proof as to

the contents of the recording. We review the trial court’s decision to exclude the recording

under an abuse of discretion standard. Brown, 181 S.W.3d at 273.

At the outset, we note that the audio recording was “irrelevant under the issues

drawn by the pleadings.” Memphis Bd. of Realtors v. Cohen, 786 S.W.2d 951, 953-54

(Tenn. Ct. App. 1989). Wife testified that the recording captured an altercation between

her and Husband on January 6, 2020. None of the various incidents alleged in her Petition

occurred on this date. After the trial court sustained Husband’s objection, Wife neither

took the opportunity to develop her testimony about the alleged incident nor made an offer

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of proof to preserve a challenge to the trial court’s ruling.5 This Court is therefore unable

to ascertain what proof would have been introduced by admitting the recording into

evidence. Home Ins. Co. v. Glens Falls Ins. Co., 675 S.W.2d 486, 488 (Tenn. Ct. App.

1984) (concluding the Court was unable to address a challenge to exclusion of evidence

where no offer of proof was made for the record); Patterson v. Hunt, 682 S.W.2d 508, 518

(Tenn. Ct. App. 1984) (same). Wife waived review of the trial court’s ruling on this issue.

Memphis Bd. of Realtors, 786 S.W.2d at 953-54.

Wife also challenges the trial court’s denial of her post-judgment motion seeking to

add the audio recording to the record for appeal purposes. The trial court denied the

motion, concluding that supplementation of the record was not proper under the Rules of

Evidence, where “[a]n offer of proof was not requested or performed in the trial of this

Order of Protection.” For the reasons stated above, review of this ruling is likewise waived.

Wife next takes issue with the trial court’s decision to admit into evidence an audio

recording offered by Husband, arguing that the recording was not relevant to adjudicating

her Petition because “three years” had elapsed since the recording was made.6 Contrary to

Wife’s assertion in her appellate brief, the record establishes that she did not object to the

introduction of the audio recording at the hearing. Consequently, this issue is also waived.

Welch v. Bd. of Pro. Resp., 193 S.W.3d 457, 464 (Tenn. 2006) (citations omitted)

(“Generally, failure to make a timely, specific objection in a trial court prevents a litigant

from challenging the introduction of inadmissible evidence for the first time on appeal.”);

Lobertini v. Brown, No. M2006-01485-COA-R3-JV, 2008 WL 275883, at *3 (Tenn. Ct.

App. Jan. 31, 2008) (“Mother did not object at trial to the admission of any evidence, and

her failure to object to the evidence at issue constitutes a waiver of the issue for purposes

of appeal.”); see also Tenn. R. Evid. 103(a)(1).7

5

Concerning an offer of proof, our Rules of Evidence provide, in relevant part:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits

or excludes evidence unless a substantial right of the party is affected, and

....

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the

evidence and the specific evidentiary basis supporting admission were made known to the

court by offer or were apparent from the context.

Tenn. R. Evid. 103(a)(2).

6

At the hearing, Wife testified that the incident took place in March 2019. Husband agreed that it

took place sometime in 2019.

7

Concerning objections, the Rule states:

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits

or excludes evidence unless a substantial right of the party is affected, and

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Wife further argues that the trial court improperly considered the audio recording

submitted by Husband because the recording was three years old. The trial court order

states: “She claimed he repeatedly raped her during marriage, but in recording of her

nagging against him, she listed every imaginable grievance against him during the

argument but made no mention of sexual abuse.” It is apparent that the trial court relied

on Husband’s audio recording to make a credibility determination as to Wife as a witness

and not to establish any specific incident included by Wife in her Petition, which alleged

incidents of domestic violence dating back to December 2018. Against this background,

we perceive no error in the trial court’s consideration of the audio recording.

Dismissal of the Petition

Wife’s final contention is that the trial court erred in determining that she was not a

victim of domestic abuse. Husband responds that the evidence does not preponderate

against the trial court’s decision to dismiss the Petition. We agree with Husband.

The focus of Wife’s challenge is two-fold. First, she “urges the appellate court to

consider the photos alone, with no testimony from Wife.” She then points to her extensive

testimony during the hearing concerning various incidents of alleged physical and sexual

violence by Husband. In its order dismissing the Petition, the trial court acknowledged that

it had considered both Wife’s “testimony and evidence” in determining that “she is not a

domestic abuse victim.” Although the trial court’s order does not so state explicitly, its

findings of fact leave no doubt that it found Wife’s testimony not credible. For instance,

concerning the Wife’s allegation that Husband threatened her with a knife, the trial court

expressly found that Husband “did not threaten her at Texas Roadhouse.” Likewise, the

order states that “despite claims of fear and wanting to avoid sex with [Husband] . . . she

traveled alone to see him . . . to have dinner and sexual relations at the Johnson City Red

Roof Inn.” Put differently, as is often the case in domestic relations cases, the trial court

was presented with a “he said, she said” scenario, and it credited Husband’s testimony over

Wife’s. We will not second-guess the trial court’s credibility determinations absent clear

and convincing evidence to the contrary. Morrison, 338 S.W.3d at 42. Here, we see none.

This credibility determination by the trial court is especially pertinent to the

numerous photographs showing bruises on Wife. She contends that the photographs alone

establish domestic violence. But—in and of themselves—these photographs establish only

that Wife suffered injuries; they do not provide evidence as to the cause of the injuries.

Wife testified that Husband was violent towards her throughout the marriage. Husband

testified that he would shield himself from Wife and sometimes hold her to keep her from

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to

strike appears of record, stating the specific ground of objection if the specific ground was

not apparent from the context[.]

Tenn. R. Evid. 103(a)(1).

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hurting herself and others. The trial court concluded that Wife “had uncontrolled rage

directed toward [Husband], she attacked him verbally, isolated him from his family,

threatened to hurt herself” and that “[s]he has no fear of him.” The evidence in the record

does not preponderate against the trial court’s ruling that Wife was not a victim of domestic

abuse. We affirm.

CONCLUSION

The trial court had personal and subject matter jurisdiction to adjudicate the Petition

filed by Wife, and Wife failed to prove she is a victim of domestic abuse. We affirm the

dismissal of the Petition. Costs of this appeal are taxed to the Appellant, Paige Wininger,

for which execution may issue if necessary.

_________________________________

KRISTI M. DAVIS, JUDGE

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