                                                                                       01/03/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               October 17, 2018 Session

            AUSTIN DAUGHERTY EX REL CHLOE V. SALLY DAUGHERTY

               Appeal from the Fourth Circuit Court for Knox County
                     No. 142748 Gregory S. McMillan, Judge
                      ___________________________________

                           No. E2018-01013-COA-R3-CV
                       ___________________________________

Austin Daugherty petitioned the trial court for an order of protection against his former
wife, Sally Daugherty, on behalf of their minor child, Chloe. Mr. Daugherty alleged that
Ms. Daugherty engaged in domestic violence. The order granting the petition and the
amended order were entered against Ms. Daugherty by apparent default. She appeals
arguing that she did not receive notice of the petition and any subsequent proceedings.
We vacate the order of protection and remand for further proceedings.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Fourth Circuit Court
               Vacated: Case Remanded for Further Proceedings

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

Sally Daugherty, Lewisburg, Tennessee, Pro Se appellant.

No brief filed by or on behalf of appellee, Austin Daugherty.

                                       OPINION

                                            I.

       Mr. and Ms. Daugherty are engaged in Davidson County in an ongoing child
custody dispute. On March 28, 2018, Mr. Daugherty filed a petition in Knox County for
an order of protection against Ms. Daugherty on behalf of their daughter, Chloe. Therein,
he alleges that, on March 25, 2018, Ms. Daugherty engaged in domestic violence that
affected him and Chloe. On March 29, 2018, a temporary ex parte order of protection was
entered.
       The next item in the record is an order of protection entered April 12, 2018. The
April order indicates a “default” decision was entered against Ms. Daugherty. The April
order indicates that Ms. Daugherty was served by “mailing a copy to the respondent by
U.S. mail postage prepaid to the respondent’s last known address.” A month later, on
May 22, 2018, an amended order of protection was entered against Ms. Daugherty. The
amended order also indicates a “default” decision. It notes under the section designating
the means of service that “respondent’s last known address is unknown and cannot be
ascertained upon diligent inquiry.”

       On June 1, 2018, Ms. Daugherty filed her notice of appeal. She argues that the
address listed on the various trial court documents is not her correct address and that she
did not receive notice of any of the proceedings.

                                            II.

                                            A.

        Ms. Daugherty filed a pro se brief in this appeal. Mr. Daugherty did not file a
brief. We are mindful of the fact that Ms. Daugherty presents as a pro se litigant. Parties
who represent themselves are entitled to fair and equal treatment by the courts;
nevertheless, “the courts must also be mindful of the boundary between fairness to a pro
se litigant and unfairness to the pro se litigant's adversary.” Young v. Barrow, 130
S.W.3d 59, 63 (Tenn. Ct. App. 2003).

       We acknowledge that Ms. Daugherty’s brief is deficient in several aspects; Mr.
Daugherty did not raise any objections. The issue Ms. Daugherty primarily raises in her
brief has to do with whether or not she received notice of the relevant proceedings, as
required by law. The record before us is sufficient for review of this procedural issue.
Therefore, given the substantial interests implicated in this matter, we find good cause to
exercise our discretion to suspend and/or relax some of the Rules in this matter to see that
the Rules of Appellate Procedure are construed to afford a hearing on the merits. See
Tenn. R. App. P. 1 and 2; Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. App.
1988).

                                            B.

        As to protection orders, Tenn. Code Ann. § 36-3-605 provides, in pertinent part,
that:

              (a) Upon the filing of a petition under this part, the courts
              may immediately, for good cause shown, issue an ex parte
              order of protection. An immediate and present danger of


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              abuse to the petitioner shall constitute good cause for
              purposes of this section.

              (b) Within fifteen (15) days of service of such order on the
              respondent under this part, a hearing shall be held...

              (c) The court shall cause a copy of the petition and notice of
              the date set for the hearing on such petition, as well as a copy
              of any ex parte order of protection, to be served upon the
              respondent at least five (5) days prior to such hearing. An ex
              parte order issued pursuant to this part shall be personally
              served upon the respondent...

Tenn. Code Ann. § 36–3–605 (emphasis added).

        The record before us does not indicate Ms. Daugherty received sufficient notice of
the petition, of the ex parte order of protection, or of any hearing, prior to the entry of the
final order of protection. Therefore, we vacate the order of protection and remand to the
trial court for further proceedings consistent with this opinion.

                                             III.

      The judgment of the trial court is vacated. This matter is remanded for further
proceedings. Costs on appeal are taxed to the appellee, Austin Daugherty.




                                                      _______________________________
                                                      CHARLES D. SUSANO, JR., JUDGE




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