Tambra Jo Swonger v. James Henry Swonger ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 11, 2016 Session
TAMBRA JO SWONGER v. JAMES HENRY SWONGER
Appeal from the Circuit Court for Knox County
Nos. 128217, 129498 Gregory S. McMillan, Judge
No. E2015-01130-COA-R3-CV-FILED-APRIL 28, 2016
This appeal arises from a default judgment entered in a divorce action, wherein the wife
was granted, inter alia, a permanent order of protection against the husband. The
husband sought to have the permanent order of protection provision contained in the
parties‟ divorce decree set aside, asserting that the statutory scheme pertaining to orders
of protection did not provide authority for entry of a permanent, open-ended order of
protection. The trial court entered an order denying relief to the husband and affirming
its entry of a permanent order of protection. Husband timely appealed. Determining that
the trial court was without statutory authority to enter a permanent order of protection
with no time limitation, we vacate that portion of the trial court‟s order. We reinstate the
court‟s temporary injunction prohibiting the husband from “harassing, threatening,
assaulting, or abusing” the wife. We remand to the trial court for entry of a written order
containing findings of fact and conclusions of law constituting grounds for a permanent
injunction, if granted, and for satisfaction of any other requirements pursuant to
Tennessee Rule of Civil Procedure 65 regarding injunctions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated in Part, Affirmed in Part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
Lin Phillips, Knoxville, Tennessee, for the appellant, James Henry Swonger.
Robert Downs, Legal Aid Society of East Tennessee, Knoxville, Tennessee, for the
appellee, Tambra Jo Swonger.
OPINION
I. Factual and Procedural Background
The respondent, James Henry Swonger (“Husband”) appeals the trial court‟s order
modifying an existing one-year order of protection against Husband to a permanent order
on behalf of the petitioner, Tambra Jo Swonger (“Wife”). The parties were married at the
time Wife filed a petition for an order of protection on June 4, 2013. In her petition, Wife
alleged years of abuse on the part of Husband, as well as a specific incident of abuse
occurring on May 21, 2013, which caused Wife to be hospitalized for several days with
grave injuries.
The trial court granted an ex parte order of protection on June 6, 2013. The court
subsequently entered two bridging ex parte orders of protection on June 20, 2013, and
July 25, 2013, respectively. On August 1, 2013, the court entered an agreed one-year
order of protection, restraining Husband from any contact with Wife. Husband was also
ordered to attend forty-five weekly meetings of the Domestic Violence Intervention
Group and to obtain a substance abuse assessment.
On September 25, 2013, the trial court issued a notice of attachment against
Husband for noncompliance with the order of protection. Husband appeared before
Magistrate Brenda Lindsay-McDaniel on October 24, 2013, submitting an affidavit of
indigency. Finding Husband to be indigent, the magistrate appointed Husband‟s current
counsel to represent Husband on that same date. The magistrate set the case for hearing
on the contempt charge and compliance review on October 28, 2013. It is undisputed
that during the October 28, 2013 hearing, Husband was personally served with a
complaint for divorce, which Wife had filed that day under a new docket number.
Although Husband‟s counsel was present for the compliance hearing, counsel was
apparently not served with the complaint.
In her complaint, Wife requested a divorce based upon the ground of inappropriate
marital conduct. See Tenn. Code Ann. § 36-4-101(a)(11). She also requested that the
court modify the existing one-year order of protection to a permanent order of protection.
Husband did not file an answer to the complaint. On January 9, 2014, Wife filed a
motion for default judgment and a notice of hearing, serving both upon Husband at the
Knox County Detention Center, where he was incarcerated. Meanwhile, regarding the
question of Husband‟s compliance with the order of protection, the court entered an order
on January 16, 2014, stating: “[Husband] has been in continuous incarceration and is
expected to remain such indefinitely and has been unable to comply with the order and
compliance will be reviewed on 4/1/2014.”
2
Following a hearing conducted on January 22, 2014, the trial court entered an
“Order of Permanency of Order of Protection,” modifying the one-year order of
protection to a permanent one with no expiration date. A judgment of default was also
entered on that date, in which the court noted that Husband had failed to enter an
appearance or defend himself in the divorce action. The court subsequently granted Wife
a divorce via final decree entered February 5, 2014, upon the ground of inappropriate
marital conduct. In the final decree, the court again stated that “Wife‟s Order of
Protection in Knox County, Fourth Circuit Court, Docket No. 13-128217 is made
permanent.” No appeal was filed from this decree.
On March 11, 2014, the trial court entered a second order regarding compliance
with the order of protection, stating, inter alia, “[Husband] has been in continuous
incarceration and has been bound by the grand jury . . . . His compliance will be
reviewed on 9/9/14.” On January 21, 2015, Husband, acting through counsel, filed a
Tennessee Rule of Civil Procedure 55.02 motion to dismiss the permanent order of
protection. Wife filed a “Memorandum of Authorities” in response on February 9, 2015.
Husband subsequently responded with a memorandum on February 12, 2015.
The trial court entered an order on May 20, 2015, denying Husband‟s motion to
dismiss and reaffirming entry of a permanent order of protection within the divorce
judgment. Husband timely appealed.
II. Issues Presented
Husband presents the following issues for our review, which we have restated
slightly:
1. Whether the trial court erred by interpreting Tennessee Code
Annotated § 36-3-603(a) as relieving the court of time constraints
imposed on orders of protection pursuant to Tennessee Code
Annotated §§ 36-3-605 and -608.
2. Whether the trial court erred by permanently extending the order of
protection upon insufficient evidence.
3. Whether the trial court erred by declining to overturn the permanent
order of protection due to a lack of notice to Husband‟s counsel of
record.
3
III. Standard of Review
Husband seeks review of the trial court‟s entry of a default judgment against him,
which provided, inter alia, that the one-year order of protection entered against Husband
in a separate action would be modified to a permanent order of protection with no
expiration date. Regarding review of a default judgment, this Court has previously
elucidated that “motions to set aside default judgments are addressed to the trial court‟s
discretion.” State ex rel. Jones v. Looper, 86 S.W.3d 189, 193-94 (Tenn. Ct. App. 2000).
Our Supreme Court has addressed the proper scope of review for an abuse of discretion
as follows:
Discretionary decisions must take the applicable law and the relevant
facts into account. Konvalinka v. Chattanooga–Hamilton County Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d
652, 661 (Tenn. 1996). An abuse of discretion occurs when a court strays
beyond the applicable legal standards or when it fails to properly consider
the factors customarily used to guide the particular discretionary decision.
State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its
discretion when it causes an injustice to the party challenging the decision
by (1) applying an incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526 (Tenn.
2009); Konvalinka v. Chattanooga–Hamilton County Hosp. Auth., 249
S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of
Nashville, 154 S.W.3d [22,] 42 [(Tenn. 2005)].
To avoid result-oriented decisions or seemingly irreconcilable
precedents, reviewing courts should review a lower court‟s discretionary
decision to determine (1) whether the factual basis for the decision is
properly supported by evidence in the record, (2) whether the lower court
properly identified and applied the most appropriate legal principles
applicable to the decision, and (3) whether the lower court‟s decision was
within the range of acceptable alternative dispositions. Flautt & Mann v.
Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008)
(quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co.,
No. 87-136-II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988) (No
Tenn. R. App. P. 11 application filed)). When called upon to review a
lower court‟s discretionary decision, the reviewing court should review the
underlying factual findings using the preponderance of the evidence
standard contained in Tenn. R. App. P. 13(d) and should review the lower
4
court‟s legal determinations de novo without any presumption of
correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn.
Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d [203,] 212
[(Tenn. Ct. App. 2002)].
Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010). This Court has further
explained that “[t]rial courts should grant relief whenever any reasonable doubt exists
concerning whether the default judgment should be set aside.” Nelson v. Simpson, 826
S.W.2d 483, 485-86 (Tenn. Ct. App. 1991).
IV. Propriety of Default Judgment Granting Permanent Order of Protection
Husband asserts that the trial court erred in granting a default divorce judgment
modifying the existing one-year order of protection by extending it indefinitely. Motions
seeking to set aside a default judgment are controlled by Tennessee Rule of Civil
Procedure 55.02, which provides:
For good cause shown the court may set aside a judgment by default in
accordance with Rule 60.02.
Tennessee Rule of Civil Procedure 60.02 provides for relief “upon such terms as are
just” from final judgments, orders, or proceedings based on the following grounds:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether
heretofore denominated intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (3) the judgment is void; (4) the judgment
has been satisfied, released, or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it is no longer
equitable that a judgment should have prospective application; or (5) any
other reason justifying relief from the operation of the judgment.
Husband contends that the provision contained within the default judgment
indefinitely extending the existing order of protection was void because the trial court
was constrained to grant only those remedies available pursuant to Tennessee Code
Annotated §§ 36-3-601, et seq., the statutes concerning orders of protection. Therefore,
according to Husband, an order of protection must be issued for a definite time period not
to exceed one year (or five or ten years if violations are proven). See Tenn. Code Ann.
§§ 36-3-605 and -608. Wife posits, however, that Tennessee Code Annotated § 36-3-
603 allows for an order of protection to be extended indefinitely if a divorce action is
filed. We agree with Husband.
5
Tennessee Code Annotated § 36-3-603 provides:
(a) If an order of protection is ordered by a court and either the petitioner
or respondent files a complaint for divorce, the order of protection shall
remain in effect until the court in which the divorce action lies modifies or
dissolves the order.
(b) Nothing in this section shall prohibit a petitioner from requesting relief
under this section in a divorce action.
The trial court relied in part upon this statutory section in its order denying Husband‟s
motion seeking to set aside the permanent order of protection. The court specifically held
that “[u]nder Tennessee Code Annotated § 36-3-603, Plaintiff was not limited to seeking
a modification of the one year order of protection within the order of protection matter.”
The court further stated in pertinent part:
[T]his Court was not provided with any authority that would establish that a
divorce court, exercising jurisdiction over a pending order of protection
case, is so limited as Plaintiff asserts. Rule 65.07 of the Tennessee Rules of
Civil Procedure specifically provides that “[i]n domestic relations cases
restraining orders or injunctions may be issued upon such terms and
conditions and remain in force for such time as shall seem just and proper
to the judge to whom application therefor is made, . . . .”
In this case, the divorce court and the court hearing the Order of
Protection were one and the same. The Court heard testimony in both
matters [and] was authorized based upon the proof heard, to make the Order
of Protection between the parties permanent as prayed for within the
Complaint for Divorce. See, Thomas R. Jones, Jr. v. Heather L. Rusch
Jones, 2007 Tenn. App. Lexis 452 at *6,7.
(Paragraph numbering omitted.)
Based upon our thorough review of the entire statutory scheme regarding orders of
protection, however, we disagree with the trial court‟s analysis. As our Supreme Court
has previously explained regarding issues involving statutory construction:
Statutory construction is a question of law that is reviewable on a de novo
basis without any presumption of correctness. Gleaves v. Checker Cab
Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins. Co.,
6
970 S.W.2d 920, 924 (Tenn. 1998). When dealing with statutory
interpretation, well-defined precepts apply. Our primary objective is to
carry out legislative intent without broadening or restricting the statute
beyond its intended scope. Houghton v. Aramark Educ. Res., Inc., 90
S.W.3d 676, 678 (Tenn. 2002). In construing legislative enactments, we
presume that every word in a statute has meaning and purpose and should
be given full effect if the obvious intention of the General Assembly is not
violated by so doing. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005).
When a statute is clear, we apply the plain meaning without complicating
the task. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn.
2004). Our obligation is simply to enforce the written language. Abels ex
rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only
when a statute is ambiguous that we may reference the broader statutory
scheme, the history of the legislation, or other sources. Parks v. Tenn.
Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998).
Further, the language of a statute cannot be considered in a vacuum, but
“should be construed, if practicable, so that its component parts are
consistent and reasonable.” Marsh v. Henderson, 221 Tenn. 42, 424
S.W.2d 193, 196 (1968). Any interpretation of the statute that “would
render one section of the act repugnant to another” should be avoided.
Tenn. Elec. Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d
441, 444 (1937). We also must presume that the General Assembly was
aware of any prior enactments at the time the legislation passed. Owens v.
State, 908 S.W.2d 923, 926 (Tenn. 1995).
In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009). Construing the statutory
scheme concerning orders of protection so that its component parts “are consistent and
reasonable” and avoiding an interpretation of the statute that “would render one section
of the act repugnant to another,” see id. at 614, we determine that no authority provides
for the issuance of a permanent, open-ended order of protection.
Tennessee Code Annotated § 36-3-601, et seq., provides the statutory framework
pertaining to orders of protection. This statutory scheme contains sections mandating
that a definite time frame be specified for such orders. For example, Tennessee Code
Annotated § 36-3-605 provides that upon the filing of a petition, an ex parte order of
protection may be issued immediately (for good cause shown). The statute further
provides:
(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
7
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. If no ex parte order of protection
has been issued as of the time of the hearing, and the petitioner has proven
the allegation of domestic abuse, stalking or sexual assault by a
preponderance of the evidence, the court may, at that time, issue an order of
protection for a definite period of time, not to exceed one (1) year.
***
(d) Within the time the order of protection is in effect, any court of
competent jurisdiction may modify the order of protection, either upon the
court‟s own motion or upon motion of the petitioner. If a respondent is
properly served and afforded the opportunity for a hearing pursuant to § 36-
3-612, and is found to be in violation of the order, the court may extend the
order of protection up to five (5) years. If a respondent is properly served
and afforded the opportunity for a hearing pursuant to § 36-3-612, and is
found to be in a second or subsequent violation of the order, the court may
extend the order of protection up to ten (10) years. No new petition is
required to be filed in order for a court to modify an order or extend an
order pursuant to this subsection (d).
Tenn. Code Ann. § 36-3-605 (emphasis added). Pursuant to this Court‟s construction of
this statutory section, at 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).
Likewise, Tennessee Code Annotated § 36-3-608 provides:
(a) All orders of protection shall be effective for a fixed period of time, not
to exceed one (1) year.
8
(b) The court may modify its order at any time upon subsequent motion
filed by either party together with an affidavit showing a change in
circumstances sufficient to warrant the modification.
(Emphasis added.) This Court has also construed this statutory section to mean that an
order of protection is effective “for a determinate period of time.” See Aibangbee v.
Aibangbee, No. M2005-02598-COA-R3-CV, 2007 WL 1202409 at *2 (Tenn. Ct. App.
Apr. 20, 2007).
We emphasize that “when a statute is clear, we apply the plain meaning without
complicating the task. Our obligation is simply to enforce the written language.” In re
Estate of Tanner, 295 S.W.3d at 613 (internal citations omitted). Furthermore, a statute
should be construed so that its component parts “are consistent and reasonable,”
avoiding an interpretation of the statute that “would render one section of the act
repugnant to another.” See id. at 614. Therefore, we cannot conclude, as Wife suggests,
that Tennessee Code Annotated § 36-3-603 is not subject to the time-period restrictions
set forth in Tennessee Code Annotated §§ 36-3-605 and -608. Based upon these statutory
provisions, we conclude that the trial court lacked statutory authority to issue a
permanent, open-ended order of protection in this case.1
The trial court also relied upon Tennessee Rule of Civil Procedure 65.07 as
authority for its ability to issue a permanent order of protection for an indefinite time
period. Rule 65 concerns injunctive relief in general, setting forth the requisites for
obtaining such relief and the parameters of restraining orders and injunctions. Tennessee
Rule of Civil Procedure 65.07 provides:
The provisions of this Rule shall be subject to any contrary statutory
provisions governing restraining orders or injunctions. In domestic
relations cases, restraining orders or injunctions may be issued upon such
terms and conditions and remain in force for such time as shall seem just
and proper to the judge to whom application therefor is made, and the
provisions of this Rule shall be followed only insofar as deemed
appropriate by such judge.
1
We note that the trial court relied upon this Court‟s opinion in Jones v. Rusch-Jones, No. E2006-01998-
COA-R3-CV, 2007 WL 2067758 at *2 (Tenn. Ct. App. July 19, 2007), as authority for the issuance of a
permanent order of protection. In the Jones opinion, however, no issue was raised regarding whether the
statutory scheme provided authority for such action by the trial court. We therefore determine that the
Jones opinion is not controlling in the case at bar.
9
With regard to the construction of such rules, our Supreme Court has explained:
Interpretation of the Tennessee Rules of Civil Procedure is a question of
law, which we review de novo with no presumption of correctness. Lacy v.
Cox, 152 S.W.3d 480, 483 (Tenn. 2004). The rules of statutory
construction guide our interpretation of these rules. Thomas v. Oldfield,
279 S.W.3d 259, 261 (Tenn. 2009) (holding that “[a]lthough the rules of
civil procedure are not statutes, the same rules of statutory construction
apply”). Our primary interpretive objective is to effectuate the drafters‟
intent without broadening or restricting the intended scope of the rule. See
Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). We achieve this
objective by examining the text, and if the language is unambiguous, we
simply apply the plain meaning of the words used. Garrison v. Bickford,
377 S.W.3d 659, 663 (Tenn. 2012). Our duty is to enforce the rule as
written. See Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173,
176 (Tenn. 2008).
Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013). The plain language of Tennessee
Rule of Civil Procedure 65.07 provides that “[t]he provisions of this Rule shall be subject
to any contrary statutory provisions governing restraining orders or injunctions.”
Therefore, by its own terms, Rule 65.07 is subordinate to the above statutory scheme
establishing the time periods of orders of protection.2 As such, the trial court erred in
relying on Rule 65.07 as authorizing the issuance of an order of protection without
consideration of the time restraints set forth in the statute.
Based upon the foregoing authority, we conclude that the permanent and unlimited
order of protection issued by the trial court exceeded the authority granted by Tennessee
Code Annotated § 36-3-601, et seq. We note, however, that Wife also requested in her
divorce complaint that the trial court issue an injunction restraining both parties from,
inter alia, “harassing, threatening, assaulting, or abusing the other . . . .” The trial court
granted such an injunction on a temporary basis upon the filing of the complaint pursuant
to Tennessee Code Annotated § 36-4-106, which provides that such injunction can be
modified by the court. Because Wife sought a permanent order of protection in her
complaint, which remedy is outside the authority granted by the order of protection
statute, we will construe her request as one for a permanent injunction pursuant to
Tennessee Rule of Civil Procedure 65. See, e.g., Willcutts v. Willcutts, No. W2002-
2
We note also that the “Tennessee Rules of Civil Procedure . . . are „laws‟ of this state, in full force and
effect, until such time as they are superseded by legislative enactment or inconsistent rules promulgated
by this Court and adopted by the General Assembly.” State v. Hodges, 815 S.W.2d 151, 155 (Tenn.
1991).
10
02636-COA-R3-CV, 2004 WL 404497 at *15 (Tenn. Ct. App. Mar. 4, 2004). We
therefore reverse the trial court‟s grant of a permanent order of protection as void, such
remedy being unavailable pursuant to Tennessee Code Annotated § 36-3-601, et seq. We
modify the provision contained in the final decree to instead grant an injunction to Wife,
which restrains Husband from “harassing, threatening, assaulting, or abusing” Wife.3 We
affirm the trial court‟s judgment in all other respects.
We note, however, that Tennessee Rule of Civil Procedure 65.04 requires that a
court “set forth findings of fact and conclusions of law which constitute the grounds of its
action as required by Rule 52.01” when modifying a temporary injunction. Such findings
and conclusions were not set out in the trial court‟s order in this case. As we have
previously explained, when a trial court‟s order fails to meet the requirements of Rule
52.01, “the appropriate remedy 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.‟” See Hardin
v. Hardin, No. W2012-00273-COA-R3-CV, 2012 WL 6727533 at *5 (Tenn. Ct. App.
Dec. 27, 2012) (quoting Lake v. Haynes, No. W2010-00294-COA-R3-CV, 2011 WL
2361563 at *1 (Tenn. Ct. App. June 9, 2011)). We therefore vacate the “permanent”
order of protection granted by the final decree. We reinstate the court‟s temporary
injunction prohibiting Husband from “harassing, threatening, assaulting, or abusing”
Wife. We remand the case to the trial court for entry of a written order containing
findings of fact and conclusions of law constituting grounds for any permanent injunction
and for satisfaction of any other requirements pursuant to Tennessee Rule of Civil
Procedure 65 regarding injunctions. Based upon this ruling, we determine that the other
issues raised by Husband regarding the order of protection are pretermitted as moot.4
V. Conclusion
For the foregoing reasons, we vacate the trial court‟s issuance of a permanent,
open-ended order of protection. We modify the trial court‟s judgment to reinstate the
temporary injunction prohibiting Husband from “harassing, threatening, assaulting, or
abusing” Wife. We further remand the case to the trial court for entry of a written order
containing findings of fact and conclusions of law constituting grounds for any
permanent injunction and for satisfaction of any other requirements pursuant to
3
We note that nothing in this opinion would prevent Wife from obtaining an order of protection against
Husband, upon a proper showing of proof, in addition to the injunction specified herein. See Wiser v.
Wiser, No. M2010-02222-COA-R3-CV, 2011 WL 4729870 at *4 (Tenn. Ct. App. Oct. 7, 2011) (“Orders
of Protection can co-exist with other injunctive relief granted pursuant to divorce.”).
4
Inasmuch as the permanent order of protection has been vacated, there is no need to address Husband‟s
issues regarding the sufficiency of the evidence for entry of such an order or whether his appointed
counsel in the order of protection matter should have been served with the motion seeking permanency.
Any injunction granted is pursuant to the divorce action, and no dispute exists regarding whether
Husband was properly served with the divorce complaint.
11
Tennessee Rule of Civil Procedure 65 regarding injunctions. We affirm the trial court‟s
judgment in all other respects. Costs on appeal are assessed against the appellant, James
Henry Swonger.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
12