Mary Susan Rehrer v. Mark Elwyn Rehrer

Citation: Not availableDocket: E2010-01907-COA-R3-CV

Court: Court of Appeals of Tennessee; September 15, 2011; Tennessee; State Appellate Court

Original Court Document: View Document

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Petitioner Mary Susan Rehrer obtained an Order of Protection against her husband, Mark Elwyn Rehrer, after alleging that he attempted to break into her bedroom on February 8, 2010, attacked her, and verbally abused her, causing her to fear for her life. Following a trial, Mark Rehrer filed a Motion to reopen the proof with affidavits contradicting Mary’s evidence, which the Trial Court denied. He appealed this decision, but the Court of Appeals affirmed the Trial Court’s judgment.

During the trial, Mary testified about the escalating verbal abuse from Mark, their separation date of February 9, 2010, and her efforts to create a safe space by moving his belongings. She described the incident on February 8, where Mark lunged at her from behind, causing an injury to her arm. Despite calling the police, who did not arrest Mark due to the nature of her injury, Mary felt unsafe and remained in her bedroom with her children. She later reported that Mark took important business documents from their home, which led to his arrest. Mary also mentioned her reluctance to seek medical attention for her injury due to fear and personal grief over her father's death.

The wife testified that after visiting the doctor, she was diagnosed with a fractured clavicle. She expressed fear of her husband and sought an Order of Protection (OP), stating she didn't leave the house for days except to obtain the OP and close their bank account. Prior to a heated altercation on February 8, the husband confronted her aggressively, yelling profanities and causing her to fear for her safety, believing he might throw her from the balcony. She mentioned not owning a gun but noted her father had previously kept a pistol at their home.

Garrett Cody, a high school junior, testified about being present at the Rehrer home on February 8. He described seeing the wife moving the husband's belongings to create a "safe spot" and leaving for practice before the husband arrived. Upon returning after hearing police were called, he found the wife speaking with an officer and noted she had a cut on her arm that was not there earlier. He observed the husband attempting to break into the bedroom and trying to look through the window.

Officer Jason Wood from the Chattanooga Police Department responded to the call on February 8. He stated he followed protocol, speaking first with the husband, who claimed the wife was moving his things out. After talking to the wife, who expressed fear of her husband, Wood informed both parties that, as they were married, he could not force anyone to leave. The wife indicated past assaults but asserted nothing had transpired that day, and the officer did not observe any injuries. Wood later returned to the house after the husband called, reiterating that the home belonged to both parties.

Sonya Naulta, the husband's ex-wife and a Licensed Clinical Social Worker, testified that she received a distressing text from the wife about needing to pick up their daughter, Gabby, due to ongoing issues. While she noted that the husband had never been violent towards her, she did mention an incident where he assaulted her boyfriend. The husband maintained he had never harmed or threatened his wife or children and described a conversation with his wife on the 8th, during which she inquired about the deposit of his pay.

The husband testified that he refused the wife's request, leading to her becoming upset and forcing him to leave their home, whereupon he found his belongings outside and some in a motorhome. He intended to call the police but was contacted by one of the wife's sons and met an officer in the driveway. After informing the wife of their pastor's presence, she initially declined to speak with him but later allowed him in the bedroom. The husband later saw a son named Cody in the house, asked him to leave due to a 'family situation,' and called the police again when Cody refused. He noted that another son, Chuck, was mostly occupied in his room.

The husband denied the wife's allegations in her petition, asserting he did not put a ladder to the window, which had been there due to previous cleaning. He acknowledged having previously been violent toward the wife’s boyfriend, whom he described negatively, and the wife knew of this incident when filing her petition. The Court, after evaluating the credibility of both parties, determined there was enough evidence of abuse to issue an Order of Protection (OP) against the husband for one year, which included a directive to relinquish his firearm.

The husband subsequently filed a motion to alter or amend the judgment, arguing there was no evidence of abuse or fear and contesting the firearm restriction. He submitted several affidavits to support his position. Affidavit testimony included Shannon Lucas and Harry Bickel, both of whom observed the wife acting normally prior to her injury. Helena Johnson recounted that the wife claimed the husband had severely injured her during an altercation, despite having prior shoulder issues. Bic Pedeville testified to seeing the wife behaving normally and using her arms without complaint shortly before she reported the injury.

The husband submitted an Affidavit indicating his attendance at a criminal court hearing on May 13, 2010, related to assault charges filed by the wife, which were dismissed due to her absence. He also provided an Affidavit from Garrett Cody, who admitted to testifying falsely at the hearing under pressure from the wife, who threatened to evict him if he did not support her claims. Cody confirmed the wife had a 'scratch' on her wrist after an altercation on February 8 but disputed his earlier testimony regarding the husband's alleged actions, including banging on the door and attempting to look inside the window. Post-hearing, the wife sent Cody suggestive text messages. The husband filed a Motion to Strike to dismiss the affidavits submitted by the wife and others, which the Trial Court denied, prompting his appeal. 

Key issues on appeal include: 1) whether the Trial Court erred in granting an Order of Protection based on insufficient evidence; 2) whether the Court should have reopened proof based on new contradicting affidavits; and 3) whether the wife should be awarded fees for the appeal. The husband contends that the Court erred by not reopening the case under Tenn. R. Civ. P. 59, emphasizing the affidavits that contradict the wife's claims. The husband also claims the Court relied on perjured testimony and did not consider the affidavits he provided. The standard for reviewing the trial court's discretion is established, indicating that a decision will not be overturned unless an incorrect legal standard was applied or the decision was illogical, which the husband argues occurred in this case.

To obtain an Order of Protection, the wife needed to demonstrate a fear of physical harm rather than actual injury, as per Tenn. Code Ann. 36-3-601. Even if the court disregarded her injury testimony and that of a witness, her assertion of fear was sufficient. The trial court, having assessed the credibility of both parties, determined there was enough evidence to issue the Order of Protection. Testimony from Officer Wood corroborated the wife's fear and suggested a possible past assault. The husband failed to show an abuse of discretion regarding the trial court's refusal to reopen the case based on new affidavits. The court's past rulings, particularly in Harris v. Chern, outline the factors for revising summary judgments, which also apply to Rule 59.04 motions to alter or amend judgments. Such motions are designed to allow the correction of errors before a judgment becomes final and should not introduce new arguments or relitigate settled matters. The husband's submission of new evidence was an attempt to relitigate, which the trial court rightly denied. The husband did not demonstrate that the court applied an incorrect legal standard or that its decision was illogical or unjust. The trial court's credibility determinations are highly deferred, and any evidence must significantly counter its findings to prevail.

In Brown v. Vaughn, the Tennessee Court of Appeals upheld the Trial Court's issuance of an Order of Protection, confirming there was sufficient evidence to support this decision. The court emphasized the importance of deference to the Trial Court’s findings on witness credibility. The wife sought reimbursement for attorney's fees and costs associated with her appeal, citing Tenn. Code Ann. § 36-3-617(a)(1), which prohibits domestic abuse victims from bearing costs related to protective orders. Since the Trial Court found 'abuse' as defined by the statute, and the appellate court affirmed the Order of Protection, the wife is entitled to recover her attorney's fees and costs. The judgment of the Trial Court is affirmed and the case is remanded for the establishment of the fee award. The costs of the appeal are assigned to Mark Elwyn Rehrer.