Miracle Tenney Ex Rel. Desirae B. v. Daniel Paul Bullington

Citation: Not availableDocket: M2020-01432-COA-R3-CV

Court: Court of Appeals of Tennessee; November 28, 2021; Tennessee; State Appellate Court

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An appeal was filed by Daniel Paul Bullington regarding two orders of protection issued in favor of his fourteen-year-old daughter, Desirae, following a petition from her mother, Miracle Tenney. The orders were granted after an incident on August 28, 2020, where Bullington applied corporal punishment during an emotional episode involving Desirae. The trial court initially issued a temporary order of protection on September 10, 2020, which was later followed by a one-year order after an evidentiary hearing. The orders required Bullington to have no contact with Desirae outside of therapy and mandated that he cover all related court costs.

By the time of the appeal's oral arguments, the last order of protection had expired, leading the court to dismiss Bullington's challenges as moot and deny his request for attorney’s fees. However, the mother sought to recover her attorney’s fees incurred during the appeal, referencing the Tennessee Supreme Court's ruling in New v. Dumitrache, which affirms that victims of domestic abuse can receive reasonable attorney's fees even when the respondent’s appeal is moot. The court affirmed the mother's entitlement to attorney’s fees and remanded the case for the trial court to determine the appropriate amount. The opinion was delivered by Judge Frank G. Clement Jr., joined by Judges W. Neal McBrayer and Kristi M. Davis.

Father challenges the trial court's issuance of both an ex parte temporary order of protection and a one-year order of protection, both of which have since expired— the temporary order on September 17, 2020, and the one-year order on September 17, 2021. As a result, neither order is currently effective, rendering the appeal moot. Legal precedent indicates that cases must remain justiciable throughout litigation, and appeals are routinely dismissed as moot when the orders in question expire prior to consideration.

Father also seeks to recover attorney's fees incurred during the trial court proceedings and the appeal, citing Tenn. Code Ann. § 36-3-617(a)(2). However, the court disagrees, noting that Father did not properly raise the public interest exception to the mootness doctrine in his principal brief, but rather attempted to introduce it in his reply brief, which is not permissible under Tenn. R. App. P. 27. Even if properly raised, the court asserts that the case does not meet the requirements for invoking the public interest exception.

Additionally, in order of protection cases, if a trial court does not extend or issue an order, the respondent may recover costs and fees from the petitioner, provided there is clear and convincing evidence that the petitioner was not a victim of domestic abuse, stalking, or sexual assault, and that the petitioner knew the allegations were false at the time of filing. If the court were to overturn the order of protection on appeal, it would fulfill the statutory criteria for Father to recover his attorney's fees.

Father is not entitled to recover attorney’s fees incurred during the trial court proceedings or in challenging the issuance of two orders of protection, as the court has not found grounds to overturn the protection order. Although Father argued that his claim for fees is not moot, the court disagrees, stating that while the expiration of the protection order does not moot previously incurred fees, it does not revive a moot case. Since Father was not ordered to pay Mother’s fees (as she represented herself), he cannot claim entitlement to fees based on the narrow exception established in Honeycutt. Consequently, the court concludes that Father is not eligible for any attorney's fees or costs from the trial court or from this appeal.

On the other hand, Mother is entitled to recover reasonable costs and attorney’s fees incurred in defending against Father’s appeal, as the trial court had granted her ex parte petition for a temporary order and later extended the order after a hearing. Thus, her fees will be assessed against Father.

Tennessee Code Annotated 36-3-617(a)(1) stipulates that domestic abuse victims are not responsible for costs associated with the appeal or enforcement of protective orders, including court costs and attorney fees, which shall be borne by the respondent. The law emphasizes legislative intent to provide victims with enhanced protection. In the case of Stewart v. Stewart, the court recognized that denying attorney's fees to a victim defending against an appeal would undermine this intent. The Supreme Court upheld that requests for attorney’s fees are collateral and can be addressed independently, even if the court lacks subject matter jurisdiction for the underlying case. The court affirmed the chancery court's decision to award attorney’s fees to the ex-wife based on Tennessee Code Annotated 36-3-617 and 36-3-618, which aim to treat domestic abuse seriously and ensure victims receive appropriate protection, highlighting a commitment to uniform enforcement of laws against domestic violence.

The General Assembly enacted Tennessee Code Annotated section 36-3-617 to ensure that victims of domestic abuse are not financially burdened by legal actions necessitated by their abusers. This statute explicitly states that domestic abuse, stalking, or sexual assault victims are exempt from any costs related to filing, issuing, or enforcing protection orders, including court costs and attorney fees. The court agrees with the Court of Appeals that the statute allows for the awarding of attorney's fees incurred in obtaining or defending protection orders, reinforcing that victims should not incur costs as a result of the abuser's actions. The court supports the chancery court's decision to award the Mother attorney's fees for defending against the Father's pleadings, stating that failing to do so would contradict the legislative intent behind the statute. The court emphasizes that interpreting the statute to impose costs on the victim would be illogical and contrary to the intent of the legislature. The statute also extends to reasonable attorney's fees incurred during appeals, even when the respondent's challenge to the order is no longer justiciable. Consequently, the court holds that the Mother is entitled to recover her reasonable attorney’s fees related to the appeal and remands the case to the trial court for the appropriate award. The Father's issues are dismissed as moot, and the costs of the appeal are assessed against him.