                                                                                           06/27/2017
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  May 23, 2017 Session

             LISA SCHNUR v. JAMES WILLIAM SHERRELL, III

                 Appeal from the Circuit Court for Hamilton County
                      No. 11D1072 W. Neil Thomas, III, Judge
                     ___________________________________

                           No. E2016-01338-COA-R3-CV
                       ___________________________________


This appeal involves a post-divorce order of protection. Mother obtained an ex-parte
order of protection on behalf of the parties’ thirteen-year-old son alleging that Father had
punched the child in the mouth while drunk on a family vacation. After an evidentiary
hearing, the trial court dismissed Mother’s petition for order of protection finding that she
had not met her burden of proof. Mother appealed. Discerning no error, we affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
                                  and Remanded.

KENNY ARMSTRONG, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and JOHN W. MCCLARTY, JJ., joined

Lisa Z. Bowman, Chattanooga, Tennessee, for the appellant, Lisa Schnur.

Glenna M. Ramer, Chattanooga, Tennessee, for the appellee, James William Sherrell, Jr.


                                         OPINION

                                    I.     Background

       Appellee James William Sherrell, Jr. (“Father”) and Appellant Lisa Schnur
(“Mother”) are the divorced parents of James William Sherrell, III (“Will”). On May 23,
2011, Mother filed a petition for order of protection, which was dismissed. On June 1,
2016, Mother filed a second petition for order of protection, which is the subject of the
instant appeal. In her petition, Mother alleged that, while on vacation with Will, Father’s
parents, Father’s sister, her husband, and their two children, Father punched Will, who
was 13 at the time, in the mouth. Mother also alleged that Father was drunk at the time.
       On June 1, 2016, the trial court entered a temporary order of protection against
Father pending a hearing. Mother’s petition was heard on June 13 and 14, 2016. Will’s
paternal grandmother, Lenda Sherrell, testified that she babysat the four grandchildren,
including Will, while the other adults went out on the night of the alleged incident. Ms.
Sherrell stated that Father returned to the rental house as the children were going to bed.
She stated that Father gave each child a good night hug and kiss in her presence. Mrs.
Sherrell and Father then went downstairs, and Ms. Sherrell testified that Father did not
return to the children’s rooms. Ms. Sherrell further testified that Friday, the day after the
alleged incident was Will’s birthday. She stated that Will had requested steak for dinner,
and that he ate all of his steak as well as some of his Father’s steak, without complaining
about any mouth pain. On Saturday morning, Mrs. Sherrell noticed that Will was not
talking, so she asked him what was wrong. Will then pointed to his mouth and pulled
down his lip. Mrs. Sherrell testified that she saw what looked like a cold sore.

        The trial court found that Will’s testimony was “inconsistent with almost every
witness who testified in this case, including his mother.” In contrast to the testimony
from other witnesses, Will testified that his grandmother did not babysit her
grandchildren and that she was lying if she said that she did. Will further testified that
Father hit him in the mouth with a clenched fist for no reason; and that he told no one of
the incident because he was afraid of being hit again. He also testified that although he
had requested steak for his birthday dinner, he was unable to eat it. Although he spoke to
his Mother daily on the phone, he did not tell his Mother of the alleged incident until he
returned home on Sunday morning. By order of June 14, 2016, the trial court dismissed
Mother’s petition for order of protection, finding that she had not met her burden of proof
in the case. The trial court used a form order, but made findings from the bench. Mother
appeals.
                                         II. Issues

       Appellant raises the following issues for review:

       1.     The trial court erred in failing to make written findings of fact in its
              dismissal of the order of protection.

       2.     The weight of the evidence presented at trial preponderates against
              the trial court’s findings of fact and conclusions of law supporting
              the trial court’s dismissal of the Appellant’s petition for order of
              protection.

       In response, Father contends that Mother’s appeal is frivolous and requests
       that he be awarded attorney’s fees and costs on appeal.

                                 III. Standard of Review
                                           -2-
        Our review of this non-jury case is de novo upon the record of the proceedings
below with a presumption of correctness as to the trial court's factual findings, “unless the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d); Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review questions of law de novo
with no presumption of correctness. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014)
(citing Armbrister, 414 S.W. 3d at 692).

                                       IV. Analysis

                           A.     Subject Matter Jurisdiction

       In his brief, Father argues that this Court does not have subject matter jurisdiction
to hear this appeal because the order dismissing Mother’s petition for order of protection
is not a final order. Father contends that the order on appeal is part of an on-going
custody dispute between the parties that is still pending. Before we consider the
substantive issues raised by Mother on appeal, we must first address the threshold issue
of whether this Court has subject matter jurisdiction to adjudicate this appeal. Tenn. R.
App. P. 13(b). Subject matter jurisdiction relates to a court’s authority to adjudicate a
particular type of case or controversy brought before it. In re Estate of Trigg, 368
S.W.3d 483, 489 (Tenn. 2012) (citing Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn.
2004)); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). Rule 3 (a) of the
Tennessee Rules of Appellate Procedure provides that, except as otherwise permitted in
rule 9 of the Tennessee Rules of Appellate Procedure and in Rule 54.02 of the Tennessee
Rules of Civil Procedure, when multiple parties or multiple claims are involved in an
action, any order that adjudicates fewer than all the claims or the rights and liabilities of
the parties is not final or appealable. Tenn. R. App. P. 3(a). Except where otherwise
provided, this Court only has subject matter jurisdiction over final orders. Bayberry
Assoc. v. Jones, 783 S.W.2d 553 (Tenn. 1990) (citing Aetna Cas. & Sur. Co. v. Miller,
491 S.W.2d 85 (Tenn. 1973)); Ruff v. Raleigh Assembly of God Church, Inc., 241
S.W.3d 876, 877 (Tenn. Ct. App. 2007).

        Father relies on Harbin v. Jones, No. W2012-01474-COA-R3CV, 2013 WL
1249050, at *4 (Tenn. Ct. App. Mar. 28, 2013) to support his position that the order
dismissing the petition for order of protection is not final because the order on appeal
does not address any of the underlying custody issues. In Harbin, we concluded that the
trial court’s order dissolving the orders of protection against Father was not immediately
appealable when other issues between the parties remain outstanding. Id. Here, it is
undisputed that these parties have been involved in an ongoing custody dispute since
2012. According to the statements made by counsel at oral argument before this Court,
the trial court entered an order on the custody issues on March 31, 2017. The custody
case stemmed from Hamilton County Circuit Court, docket number 12D1406. Promptly
after the entry of the March 31, 2017 order, Mother filed a notice of appeal in the overall
                                             -3-
custody case, which is currently pending before this Court as James William Sherrell, Jr.
v. Lisa Daniela Schnur, No. E2017-00744-COA-R3-CV. The case currently at issue
stems from Lisa Schnur v. James William Sherrell, Jr., Hamilton County Circuit Court,
docket number 11D1072. There is no indication that a motion to consolidate the two
cases was filed, or that an order consolidating the two cases was ever entered. Based on
the record, we conclude that the custody dispute is a separate action and that the order
dismissing Mother’s petition for order of protection was a final order pursuant to Rule
3(a) of the Tennessee Rules of Appellate Procedure.

                                   B.     Findings of Fact

        Mother argues that the trial court erred in failing to make findings of fact in
dismissing the order of protection. Tennessee Rule of Civil Procedure 52.01 states that
“[i]n all actions tried upon the facts without a jury, the court shall find the facts specially
and shall state separately its conclusions of law and direct the entry of the appropriate
judgment.” Tenn. R. App. P. 52.01. Generally, the appropriate remedy when a trial court
fails to make appropriate findings of fact and conclusions of law pursuant to Tennessee
Rule of Civil Procedure 52.01 is to “vacate the trial court’s judgment and remand the
cause to the trial court for written findings and conclusions of law.” Lake v. Haynes, No.
W2010-00294-COA-R3-CV, 2011 WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011).
However, in certain limited circumstances, this Court has previously concluded that we
may “soldier on” with our review despite the trial court’s failure to comply with Rule
52.01. “[W]hen a trial judge fails to make findings of fact and conclusions of law, the
appellate court “may soldier on when the case involves only a clear legal issue, or when
the court’s decision is readily ascertainable.” Douglas v. Caruthers & Associates, Inc.,
No. W2013-02676-COA-R3-CV, 2015 WL 1881374, at *10 (Tenn. Ct. App. Apr. 24,
2015); Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799, *5
(Tenn. Ct. App. Feb. 22, 2013); Hanson v. J.C. Hobbs Co., Inc., No. W2011-02523-
COA-R3-CV, 2012 WL 5873582, at *10 (Tenn. Ct. App. Nov. 21, 2012).

       In dismissing Mother’s petition for order of protection, the trial court used a form
order that did not include specific findings. However, the trial court clearly articulated its
reasoning from the bench. The trial court found as a matter of fact that “Will’s
testimony. . . was not only internally inconsistent, it was inconsistent with almost every
witness who testified in this case, including his mother. . . . I find that to be very serious.”
“I would simply say that I did not find Will’s version of the facts believable. . . . it was
not consistent in terms of who was present, when people were present, why they were
present, and even to the point of what time of the day it was.” “[E]very piece of
testimony, including Will’s testimony, there was nothing wrong Monday. Tuesday,
Wednesday, Thursday until Thursday night, there was nothing wrong. Friday, the
pictures don’t support what Will said.” “Will I issue the order of protection? No. I don’t
find that there’s a credible basis for it to be issued.”

                                             -4-
        When it comes to live, in-court witnesses, appellate courts should afford trial
courts considerable deference when reviewing issues that hinge on the witnesses’
credibility because trial courts are “uniquely positioned to observe the demeanor and
conduct of witnesses.” State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000). “[A]ppellate
courts will not re-evaluate a trial judge's assessment of witness credibility absent clear
and convincing evidence to the contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d
779, 783 (Tenn.1999); see also Hughes v. Metro. Gov't of Nashville & Davidson Cnty.,
340 S.W.3d 352, 360 (Tenn. 2011). In order for evidence to be clear and convincing, it
must eliminate any “serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.” State v. Sexton, 368 S.W.3d 371, 404 (Tenn. 2012) (quoting
Grindstaff v. State, 297 S.W.3d 208, 221 (Tenn. 2009)). Whether the evidence is clear
and convincing is a question of law that appellate courts review de novo without a
presumption of correctness. Kelly v. Kelly, 445 S.W.3d 685, 692-93 (Tenn. 2014); Reid
ex rel. Martiniano v. State, 396 S.W.3d 478, 515 (Tenn. 2013). Based on the findings of
fact as stated from the bench, we are easily able to ascertain the trial court’s rationale.
Here, the trial court did not find the party’s son to be a credible witness, and the record
does not contain any evidence that creates doubt about the correctness of the trial court’s
conclusions. Consequently, absent any clear and convincing evidence, we will not re-
evaluate the trial court’s assessment of Will’s credibility and we will not vacate the trial
court’s judgment.

        Mother also contends that the weight of the evidence presented at trial
preponderates against the trial court’s dismissal of her petition. Like the analysis used in
determining witness credibility, the weight, faith, and credit to be given witnesses’
testimony lies in the first instance with the trial court. Roberts v. Roberts, 827 S.W.2d
788, 795 (Tenn. Ct. App. 1991). Accordingly, where issues of credibility and weight of
testimony are involved, this Court will accord considerable deference to the trial court's
factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007) (citing Seals
v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)). Here, the
trial court did not find Will’s testimony to be credible, and, therefore, gave it no weight,
faith, or credit. Absent any evidence to the contrary, we conclude that the trial court was
correct in dismissing Mother’s petition.

                                  C.     Attorney Fees

       Father contends that Mother’s appeal is frivolous and requests that he be awarded
attorney’s fees and costs on appeal. Tennessee Code Annotated section 27-1-122 states
that:

       When it appears to any reviewing court that the appeal from any court of
       record was frivolous or taken solely for delay, the court may, either upon
       motion of a party or of its own motion, award just damages against the
       appellant, which may include but need not be limited to, costs, interest on
                                          -5-
       the judgment, and expenses incurred by the appellee as a result of the
       appeal.

Tenn. Code Ann. § 27-1-122. “In considering a request for attorney’s fees on appeal, we
consider the requesting party’s ability to pay such fees, the requesting party’s success on
appeal, whether the appeal was taken in good faith, and any other equitable factors
relevant in a given case.” Moran v. Wilensky, 339 S.W.3d 651, 666 (Tenn. Ct. App.
2010)(citing Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995)). The record
before us relates solely to Mother’s most recent petition for order of protection. From our
overview of the record, we cannot conclude that the appeal was frivolous, or that the
appeal was taken for any subversive purpose. Accordingly, we exercise our discretion
and deny Father’s request for attorneys’ fees.

      With regard to costs associated with this appeal, Tennessee Code Annotated § 36-
3-617(a)(1) provides:

       [N]o domestic abuse victim, stalking victim or sexual assault victim shall
       be required to bear the costs, including any court costs, filing fees, litigation
       taxes or any other costs associated with the filing, issuance, registration,
       service, dismissal or nonsuit, appeal or enforcement of an ex parte order of
       protection, order of protection, or a petition for either such order, whether
       issued inside or outside the state.

Tenn. Code Ann. § 36-3-617(a)(1); Merriman v. Merriman, No. E2010-00013-COA-R3-
CV, 2010 WL 3767116, at *2. The statute was later amended to include Section 36-3-
617(a)(2), which provides that a petitioner may be required to pay the costs of an appeal
when a protection order is dissolved where the record contains “clear and convincing
evidence ... [t]he petitioner knew that the allegation of domestic abuse, ... was false at the
time the petition was filed.” Tenn. Code Ann. § 36-6-617(a)(2). Furlong v. Furlong,
370 S.W.3d 329, 341 (Tenn. Ct. App. 2011). Under the statute, before we could tax the
costs on appeal to Mother, we would have to conclude that there is “clear and convincing
evidence ... [t]he petitioner knew that the allegation of domestic abuse, ... was false at the
time the petition was filed.” Furlong v. Furlong, 370 S.W.3d 329, 341 (Tenn. Ct. App.
2011). Here, the trial court used the state’s form order dismissing the order of protection.
The form order has a check box for costs if the court finds by clear and convincing
evidence that the parties’ son was not a domestic abuse victim; and that Mother knew the
allegations were false at the time she filed the petition. The trial court chose not to check
that box regarding costs. We find no evidence in the record that preponderates against
the trial court’s decision. Because we cannot make this required finding with respect to
Mother’s conduct, we must assess the costs against Father.



                                             -6-
                                    V. Conclusion

      For the foregoing reasons, we affirm the order of the trial court. We remand the
case for such further proceedings as may be necessary and are consistent with this
opinion. Costs on appeal are assessed against Appellee, James William Sherrell, III, for
which execution may issue if necessary.


                                               _________________________________
                                               KENNY ARMSTRONG, JUDGE




                                         -7-
