                                                                                                  05/02/2018
                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                             Assigned on Briefs March 1, 2018

       TERRA JOY MARIE WESTFALL v. ERIC JAMES WESTFALL

                   Appeal from the Circuit Court for Jefferson County
                        No. 25152 Ben W. Hooper, II, Judge
                       ___________________________________

                             No. E2017-01819-COA-R3-CV
                         ___________________________________


This case involves an order of protection sought by the petitioner against the respondent,
who is the petitioner’s husband, on behalf of the petitioner and her three minor children.
The trial court initially granted an ex parte order of protection and scheduled the matter
for hearing. Following a subsequent bench trial, the trial court extended the ex parte
order of protection for a period of one year, but it made no findings of fact or conclusions
of law regarding the allegations in the petition or whether the petitioner had met her
burden of proof. The petitioner timely appealed. Because the trial court failed to make
adequate findings of fact and conclusions of law, we hereby vacate the trial court’s order
and remand for entry of sufficient findings of fact and conclusions of law regarding
whether the ex parte order of protection should be dissolved or an order of protection, not
to exceed one year, be entered pursuant to Tennessee Code Annotated § 36-3-605 (2017).

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.
BENNETT, J. and J. STEVEN STAFFORD, P.J., W.S., joined.

Elizabeth R. McClellan, Johnson City, Tennessee, for the appellant, Terra Joy Marie
Westfall.1




1
 The appellee, Eric James Westfall, did not file an appellate brief and is not participating in this
appeal.
                                        OPINION

                          I. Factual and Procedural Background

       On May 11, 2017, Terra Joy Marie Westfall (“Wife”) filed a petition for an order
of protection against her husband, Eric James Westfall (“Husband”) on behalf of herself
and her three minor children (“the Children”). Husband is the father of two of the minor
children. In her petition, Wife alleged, inter alia, that on January 9, 2017, Husband
yelled at her six-year-old daughter and pushed her daughter to the floor. She further
averred that Husband grabbed Wife by the neck and injured her foot. According to
Wife’s petition, although Husband was sentenced to probation following the incident and
required to complete domestic abuse classes, he had subsequently stopped attending the
required classes. Wife also alleged that on May 11, 2017, Husband became angry with
her and “smashed a case of Pepsi on the floor.”

       Based on Wife’s allegations, the trial court, determining that good cause existed,
issued a temporary ex parte order of protection prohibiting Husband from contacting
Wife or the Children. The trial court scheduled a hearing for June 5, 2017, regarding
Wife’s petition. On June 5, 2017, Wife was unable to appear, and the matter was
continued until July 6, 2017. Concomitantly, the trial court extended the ex parte order
of protection until the July 6, 2017 hearing date.

       The trial court conducted a bench trial on July 6, 2017, regarding the order of
protection petition. The record contains no transcript or statement of the evidence
memorializing this proceeding. In its resultant order, the trial court again extended the ex
parte order of protection until July 5, 2018. The order contains no findings of fact or
conclusions of law regarding the order of protection extension.

       On July 27, 2017, Wife filed a motion to alter or amend the trial court’s judgment,
requesting that the trial court “enter a final order of protection against [Husband], based
on her proof by a preponderance of the evidence at trial that [Husband] had committed
domestic abuse.” Following a hearing conducted on August 13, 2017, the trial court
entered an order denying Wife’s motion to alter or amend on August 28, 2017. Wife
timely appealed.

                                    II. Issue Presented

       Wife presents one issue for appeal, which we have restated slightly:

       Whether the trial court erred by declining to enter a one-year order of
       protection, pursuant to Tennessee Code Annotated § 36-3-605, following a
       bench trial.

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                                 III. Standard of Review

       We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). We review questions of law, including those of statutory construction, de novo
with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate
Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins, 224
S.W.3d 675, 678 (Tenn. Ct. App. 2006). The trial court’s determinations regarding
witness credibility are entitled to great weight on appeal and shall not be disturbed absent
clear and convincing evidence to the contrary. See Morrison v. Allen, 338 S.W.3d 417,
426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

                                  IV. Order of Protection

        Wife contends that the trial court erred by extending the ex parte order of
protection past the date of the hearing instead of entering a one-year order of protection
in compliance with Tennessee Code Annotated § 36-3-605. Upon our thorough review of
the record, we are unable to conduct a proper analysis of the trial court’s proceedings due
to an inadequate record and the trial court’s failure to make sufficient findings of fact and
conclusions of law pursuant to Tennessee Rule of Civil Procedure 52.01.

        Tennessee Code Annotated § 36-3-605 provides that upon the filing of a petition,
the trial court may immediately issue an ex parte order of protection for good cause
shown. The statute further provides, inter alia:

       (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
       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.

Tenn. Code Ann. § 36-3-605.

       In the instant action, the trial court conducted a bench trial on July 6, 2017,
regarding the order of protection petition. As previously noted, the record contains no

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transcript or statement of the evidence memorializing this proceeding. In its resultant
order, the trial court extended the ex parte order of protection, directing as follows:

       For the foregoing reasons, the COURT HEREBY ORDERS:

              That the Ex Parte Order of Protection heretofore issued in this cause
              be and is hereby extended until such time as this Court may hear the
              same. The date for such hearing will be set by the Clerk of the Court
              and the parties, or their attorneys of record, will be notified of such
              hearing date.

The above provision is incorporated in typed format as part of a form order.2
Immediately following this provision, the trial court included a handwritten notation that
provides, “extended for 1 year till 7/5/18.” The trial court made no findings of fact or
conclusions of law regarding the order of protection other than an introductory statement
reflecting the date of the petition’s filing and the date of hearing. The trial court included
no reasoning concerning its decision to extend the ex parte order of protection.

        Prior to extending an order of protection, the trial court must determine that the
petitioner proved the allegations of domestic abuse by a preponderance of the evidence.
See Tenn. Code Ann. § 36-3-605(b). In this case, the trial court made no such finding in
its judgment. Furthermore, this Court has previously interpreted this statutory section to
require that at the close of 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). As this Court explained:

       Obviously, the dissolution of a temporary ex parte order is warranted when
       the trial court concludes that the petitioner did not prove the allegation of
       domestic abuse, stalking, or sexual assault by a preponderance of the
       evidence. See Collins v. Pharris, No. M1999-00588-COA-R3-CV, 2001
       WL 219652 at *5 (Tenn. Ct. App. M.S., filed Mar. 7, 2001) (“[A]n order of
       protection is appropriate only where there is sufficient evidence that the
       victim needs the protection available.”). Conversely, “if the petitioner has
       proved the allegation of domestic abuse, stalking or sexual assault by a
       preponderance of the evidence,” then the court “shall . . . extend the order
       of protection for a definite period of time, not to exceed one (1) year.”
       Tenn. Code Ann. § 36-3-605(b).

2
 This form does not appear to have been developed through the Administrative Office of the
Courts pursuant to Tennessee Code Annotated § 36-3-604 (2017).

                                            -4-
Long v. Brown, No. E2013-00802-COA-R3-CV, 2014 WL 295713, at *4 (Tenn. Ct. App.
Jan. 28, 2014).

       Regarding an ex parte order, the term “ex parte” when applied as an adjective is
defined as “[d]one or made at the instance and for the benefit of one party only, and
without notice to, or argument by, any person adversely interested; of or relating to court
action taken by one party without notice to the other, [usually] for temporary or
emergency relief.” BLACK’S LAW DICTIONARY 616 (8th ed. 2004). An ex parte order
inherently reflects that a trial has not occurred regarding the merits of the case.
Following a trial regarding the allegations in the petition, the trial court may extend an
order of protection for a definite period of time not to exceed one year, pursuant to
Tennessee Code Annotated § 36-3-605. However, the resultant order should not be
considered an “ex parte” order and must be based upon findings of fact and conclusions
of law to support the trial court’s decision. Ergo, a trial court cannot continue to identify
a post-trial order of protection as ex parte.

       Complicating this Court’s appellate review is the trial court’s failure to make
findings of fact and conclusions of law in its judgment. Tennessee Rule of Civil
Procedure 52.01 requires that following a bench trial, a trial court shall make appropriate
findings of fact and separate conclusions of law. With reference to Rule 52.01, this Court
has explained:

       [T]he requirement to make findings of fact and conclusions of law is “not a
       mere technicality.” In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL
       1362314, at *8 (Tenn. Ct. App. May 15, 2009). Instead, the requirement
       serves the important purpose of “facilitat[ing] appellate review and
       promot[ing] the just and speedy resolution of appeals.” Id.; White v.
       Moody, 171 S.W.3d 187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce, 801
       S.W.2d 102, 104 (Tenn. Ct. App. 1990). “Without such findings and
       conclusions, this court is left to wonder on what basis the court reached its
       ultimate decision.” In re K.H., 2009 WL 1362314, at *8 (quoting In re
       M.E.W. No. M2003-01739-COA-R3-PT, 2004 WL 865840, at *19 (Tenn.
       Ct. App. Apr. 21, 2004)). Generally, the appropriate remedy when a trial
       court fails to make appropriate findings of fact and conclusions of law 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,” unless the trial court’s
       decision involves only a clear legal issue or the trial court’s decision is
       readily ascertainable. Lake v. Haynes, No. W2010-00294-COA-R3-CV,
       2011 WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011); Burgess v. Kone,
       Inc., No. M2007-02529-COA-R3-CV, 2008 WL 2796409, at *2 (Tenn. Ct.
       App. July 18, 2008).

                                            -5-
Babcock v. Babcock, No. E2014-01670-COA-R3-CV, 2015 WL 1059003, at *6 (Tenn.
Ct. App. Mar. 9, 2015).

       This Court has concluded that the appellate court may “soldier on” with its review
despite the trial court’s failure to comply with Tennessee Rule of Civil Procedure 52.01
when the case involves a clear issue of law or the trial court’s decision is readily
ascertainable. See Schnur v. Sherrell, No. E2016-01338-COA-R3-CV, 2017 WL
2791711, at *3 (Tenn. Ct. App. June 27, 2017) (affirming the trial court’s judgment
despite a lack of findings of fact when the trial court orally articulated its reasoning); but
see Douglas v. Caruthers & Associates, Inc., No. W2013-02676-COA-R3-CV, 2015 WL
1881374, at *10 (Tenn. Ct. App. Apr. 24, 2015) (remanding to the trial court for entry of
findings of fact in compliance with Rule 52.01 when the case presented complicated
questions of law that required a fact-intensive inquiry and the trial court’s decision was
not readily ascertainable).

        In the case at bar, the issue on appeal does not involve a clear issue of law, nor is
the trial court’s decision “readily ascertainable.” The appellate record lacks a transcript
or statement of the evidence reflecting the trial court’s proceedings that occurred on July
6, 2017. The inadequate record combined with the trial court’s failure to make findings
of fact and conclusions of law pursuant to Tennessee Rule of Civil Procedure 52.01
renders this court unable to “soldier on” and properly perform an appellate review of the
trial court’s proceedings. Because the trial court failed to make findings of fact and
conclusions of law, we hereby vacate the trial court’s judgment and remand for sufficient
findings of fact and conclusions of law regarding whether the ex parte order of protection
should be dissolved or an extended order of protection entered, pursuant to Tennessee
Code Annotated § 36-3-605, if the trial court determines that Wife has proven domestic
abuse by a preponderance of the evidence. Until further hearing, the trial court’s ex parte
order of protection shall remain in effect. See, e.g., Merriman, 2010 WL 3767116, at *2.

                                       V. Conclusion

       For the foregoing reasons, we vacate the trial court’s judgment and remand this
matter to the trial court for further proceedings consistent with this opinion and for
collection of costs assessed below. Costs on appeal are taxed to the appellee, Eric James
Westfall.



                                                  _________________________________
                                                  THOMAS R. FRIERSON, II, JUDGE


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