                                                                                           02/27/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                              September 13, 2017 Session

 REGINA MONTANNA MARIE MULLINS V. AMY PAIGE HERNANDEZ

                 Appeal from the Circuit Court for Hawkins County
                  No. 37CC1-2017-CV-16      Alex Pearson, Judge


                             No. E2017-00356-COA-R3-CV



Regina Mullins (petitioner) sought an order of protection against Amy Hernandez
(respondent), the grandmother of one of petitioner’s children. The parties were living
together in an apartment when respondent allegedly threatened petitioner and her mother
with a handgun. After a hearing, the trial court found that respondent did threaten
petitioner, and that “there was a gun involved,” but held that these facts did not constitute
“legally sufficient proof for an order of protection to be issued.” We hold that the facts
found by the trial court provide a legal basis for the issuance of an order of protection
under the statutes governing such orders, Tenn. Code Ann. § 36-3-601 et seq. (2017).
Consequently, we reverse the judgment of the trial court and remand for the issuance of a
protective order.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                             Reversed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Elizabeth R. McClellan, Johnson City, Tennessee, for the appellant, Regina Montanna
Marie Mullins.

Lesley A. Tiller, Jonesborough, Tennessee, for the appellee, Amy Paige Hernandez.


                                        OPINION



                                            -1-
                                             I.

       Petitioner filed her petition for an order of protection on January 19, 2017. She
alleged that during an argument with the respondent in their shared apartment, the
respondent

              pulled out a gun as I was in the room and I heard her threaten
              to shoot my mom as she was leaving with my daughter. . . .
              [Respondent] then started cocking the gun at my door and
              yelled it was fully loaded. I felt terrified. I told my
              grandmother [to] pick me up the next morning because
              [respondent] threatened to shoot me and my family (I had on
              video, she took my phone.)

The court issued a temporary order of protection that same day. Ten days later, a hearing
took place before the trial court. Respondent represented herself at the hearing.

        Four people testified: petitioner, her mother, respondent, and respondent’s
husband. Petitioner and her mother testified that respondent threatened them while
brandishing a cocked and loaded nine-millimeter handgun. Respondent admitted getting
the firearm out of a safe in her bedroom. She argued that she feared for her own safety.
Respondent attempted to enter into evidence a statement or statements allegedly made by
petitioner’s father to respondent’s husband. The trial court excluded this testimony as
hearsay. Respondent testified that she made her threat after petitioner accidentally
injured respondent’s granddaughter by shutting petitioner’s bedroom door on the
granddaughter’s foot.

        After the argument began, petitioner called her mother and asked her to come and
pick up petitioner’s infant daughter. Petitioner thus removed her daughter from the
situation. Petitioner and her mother testified that petitioner was unable to leave the
apartment herself because there was not room in her mother’s vehicle. Early the next
morning, petitioner called her grandmother to come get her and her things. Petitioner
moved out of the apartment.

       The trial court delivered its findings of fact orally from the bench at the end of the
hearing:

              To me it’s a close case, and I can understand how reasonable
              minds could differ with regard to it based on the fact that
              there was a gun involved. I find that there was legally
              insufficient proof to establish that Ms. Mullins was in fear of
                                            -2-
              physical harm. It’s a close call, and there was a gun involved,
              but based on the testimony here, the police were called out.
              The mother came and picked up a child and left with the
              child. It seems to me that a lot of this is based on ‒ and I
              think I heard the word “drama,” and, of course, I don’t mean
              to characterize a firearm ‒ any time a firearm comes into a
              case as being drama because that’s a potentially dangerous
              situation, but from the testimony I heard and the facts that
              were introduced here today, I don’t feel that there is legally
              sufficient proof for an order of protection to be issued. There
              was no restriction of Ms. Mullins about the home. She could
              come and go.

                                    *         *         *

              My job is not easy because I don’t, I don’t disbelieve what
              you [petitioner] told me. I just have to make sure and comply
              it with the law, and under these facts, I just can’t find that
              there’s a basis for an order of protection.

Despite the trial court’s above-stated interpretation of the protective order statutes, it
further stated:

              [A]ll this needs to stop because it’s obvious to me that you all
              don’t need to be living together.

                                    *         *         *

              [B]ased on the fact there was no restriction, there was back-
              and-forth between ‒ in the house, the child left, I’m not going
              to issue an order of protection. But I can tell [respondent]
              that you don’t really need to have any contact with this lady
              because if you can’t get along any better than that ‒ but
              Juvenile Court can handle it. . . . [J]ust friendly advice is, is
              don’t have any contact[.]

Petitioner timely filed a notice of appeal.




                                                  -3-
                                              II.

       Petitioner raises the issue of whether the trial court erred in declining to extend the
order of protection. Respondent argues her own issue, whether the trial court erred in
excluding as hearsay her husband’s testimony as to what petitioner’s father told him.

                                              III.

       In this non-jury case, our review is de novo upon the record, with a presumption of
correctness as to the trial court’s factual determinations, unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); Murfreesboro Med. Clinic, P.A. v.
Udom, 166 S.W.3d 674, 678 (Tenn. 2005). The trial court’s conclusions of law are not
accorded a presumption of correctness. Udom, 166 S.W.3d at 678; Campbell v. Florida
Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). Our de novo review is subject to the well-
established principle that the trial court is in the best position to assess the credibility of
the witnesses; accordingly, such determinations are entitled to great weight on appeal.
Columbus Med. Servs., LLC v. Thomas, 308 S.W.3d 368, 383 (Tenn. Ct. App. 2009);
Vantage Tech., LLC v. Cross, 17 S.W.3d 637, 644 (Tenn. Ct. App. 1999).

                                              IV.

       As this Court has recently observed,

              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. 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).



                                              -4-
             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).

Honeycutt ex rel. Alexander H. v. Honeycutt, No. M2015-00645-COA-R3-CV, 2016
WL 3662166, at *3-4 (Tenn. Ct. App., filed June 30, 2016) (footnote omitted). In order
to establish domestic abuse qualifying as a legal ground to extend an order of protection,
a petitioner “merely ha[s] to show fear of physical harm . . . Proof of actual physical
abuse is not required.” Id. at *4; see also Long v. Brown, No. E2013-00802-COA-R3-
CV, 2014 WL 295713, at *5 (Tenn. Ct. App., filed Jan. 28, 2014).

        At the time of the incident, petitioner was living with her seven-month-old
daughter in the same apartment as respondent, who is the paternal grandmother of the
child. Also present in the apartment was another of respondent’s granddaughters, named
Keeley, who was then eleven years old. Petitioner testified as follows regarding the start
of the argument:

             As my daughter had started crying, I told Keeley to move
             once. She didn’t listen, and she was in the only path for me
             to pick up my daughter. So I raised my voice and told her to
             move, and she moved. I picked up my daughter, and
             [respondent] came in the room and threatened me, told me
             she was pretty much going to hurt me. I had my child in my
             arms at the time, and . . .

             Q. What exactly did she say to you?

             A. Her exact words is, “If you raise your voice at my
             granddaughter again, I will kick your ass.”

             Q. Okay. And did you feel that that was a, kind of a vague
             and empty threat, or did you feel like that was a real threat?

                                           -5-
             A. I felt like it was a real threat.

Petitioner testified that she shut herself in her bedroom with her infant daughter and
called her mother to come pick up the child. She testified, “I felt it was very unsafe
because at the time I heard [respondent] go to her back bedroom and open her safe and
get her gun out.”

       Petitioner’s mother arrived and took the child. Petitioner testified that she saw
respondent walking behind them with her firearm in her hand. In the meantime,
respondent had called the police. They arrived and advised everyone to calm down.
Petitioner stated that after the police left, respondent “went up and down the hallway
cocking the gun and said that the next time she seen me or my family, she was going to
shoot us.” She recorded respondent’s actions on her cell phone, but respondent
admittedly took the phone from her and kept it. Petitioner further testified:

             I just locked myself in the room. [Respondent] called the
             cops again, and they came in again and pretty much said the
             same thing to me again and walked out. And the [next]
             morning, I had had my grandmother come and get all my
             stuff about 8:00 in the morning while she was asleep to avoid
             confrontation.

Petitioner moved out of the apartment and found a new place to live.

       The night of the incident, a Facebook post was entered on respondent’s Facebook
webpage. It was a picture of respondent’s handgun, bearing the caption “Whenever
anyone feels froggy please jump I’m dying to try this out.” Petitioner testified that she
saw the post before she blocked respondent on her Facebook account. She felt that it was
a threat aimed at her. A screenshot of the Facebook post was entered as an exhibit at
trial. Respondent denied posting the picture, stating “There’s so many photo shopping
availabilities today.” She was not otherwise asked for an explanation of how the picture
and statement were posted to her account.

        Petitioner’s mother testified that petitioner called her that evening and reported
respondent was threatening her, and asked her mother to pick up her daughter because
she didn’t feel safe. The mother drove to the apartment with a friend. She further
testified:

             And once I got all [the child’s] things together, I was going
             out the door. [Respondent] was following behind me. She
             was calling me names, cursing at me, and once I got outside, I
                                              -6-
             kept walking. I had my granddaughter, seven months old ‒
             well, six months then, and had her in my arms carrying her,
             and she was calling me names, cussing at me. I turned
             around and faced her. I said, “You know, you just need to
             shut up,” and that’s when I saw her gun in her hand. She
             said, “That’s okay. I’m not afraid of you, and I’m not afraid
             to use the gun.” So I just turned my back to her to keep my
             granddaughter safe and kept walking.

      Respondent testified that the argument began when petitioner screamed at
respondent’s granddaughter Keeley. Respondent testified as follows:

             I said, “Who are you screaming at like that?”, and [petitioner]
             said, “Keeley. She’s in my way, and I told her to move.” I
             said, “No.” I said, “You don’t even scream at my kids like
             that.”

                                  *      *         *

             I will not allow my kids to be abused. So then I go to walk
             out, and when I walked out, Keeley walked out behind me,
             and she slammed the door again and bruised the back of
             Keeley’s foot, and Keeley said, “Ow.” I said, “What
             happened?” She said, “Regina just shut the door on my foot.”
             That’s when I reached the door, but I said, “Let me tell you
             something. If you injure one of my kids, me and you will go
             at it,” and that’s what ‒ the words I used. I have a job to
             protect my grandkids. If she wants to be angry and childish
             and immature, you do it somewhere else, not with my
             grandkids.

Respondent admitted getting her gun out of the safe.      She denied threatening anyone
with it.

       Respondent attempted several times to get into evidence a statement or statements
that petitioner’s father allegedly made to respondent’s husband. Petitioner’s father was
not called to testify. The trial court ruled that his statements would constitute hearsay.
Respondent did not object to these rulings at the hearing. Neither did she ask to make an
offer of proof, so the substance of the statements is not in the record. Respondent’s
husband testified that petitioner’s father called him, and that what was said caused him to
have concern for respondent’s safety. On appeal, respondent argues that the trial court
                                             -7-
erred in ruling that the statements were hearsay because they were not offered to establish
the truth of the matter asserted, but rather to establish respondent’s state of mind in
response to them, i.e., that she was concerned for her safety and acted with the intent to
protect herself. However, respondent did not present this argument to the trial court. She
cannot raise it for the first time on appeal. City of Cookeville ex rel. Cookeville Regional
Med. Ctr. v. Humphrey, 126 S.W.3d 897, 905-06 (Tenn. 2004) (“As a general rule,
questions not raised in the trial court will not be entertained on appeal”), quoting
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983) (internal quotation marks
omitted). Moreover, the fact that the content and substance of the statements ruled to be
hearsay are not in the record makes it most difficult to assess the question of whether they
were asserted for their truth, or for another purpose.

       The trial court credited petitioner’s testimony. We have observed that “[t]he
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. At the close of the hearing, the trial court stated to
petitioner, “I don’t disbelieve what you told me.” The facts thus established in the record
include that respondent threatened petitioner and her mother while brandishing a cocked
and loaded handgun. Petitioner testified several times that respondent’s actions placed
her in fear of physical harm. Regarding the Facebook post depicting the firearm and
stating “I’m dying to try this out,” the context of the trial court’s statements in its ruling
clearly imply that the trial court disbelieved respondent’s assertion that she did not post it
to her own account. The trial court said:

              Ma’am, posting stuff like this on the Internet is foolish. It
              could be read two ways. It could be read that I’m prepared to
              defend myself.

              [Respondent]: And this is how . . .

              THE COURT: I don’t want to hear from you. I’m telling you
              it can be read that way, or it can be read that you’re out
              looking for a fight. There is a big difference between those
              two.

The trial court ruled that “under these facts, I just can’t find that there’s a basis for an
order of protection.” We disagree with the trial court’s legal interpretation of Tenn. Code
Ann. § 36-3-601 and -602. We hold that the facts found by the trial court provide a legal
basis for the extension of the order of protection in petitioner’s favor.



                                             -8-
                                            V.

       The judgment of the trial court is reversed. The case is remanded to the trial court
with instructions to enter an order of protection in accordance with the provisions of
Tenn. Code Ann. § 36-3-601 et seq. Costs on appeal are assessed to the appellee, Amy
Paige Hernandez.


                                         ________________________________
                                         CHARLES D. SUSANO, JR., JUDGE




                                           -9-
