                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   April 26, 2012 Session

               SANDI D. JACKSON v. MITCHELL B. LANPHERE

                 Appeal from the Chancery Court for Sumner County
                    No. 2010D184     John Thomas Gwin, Judge


                  No. M2011-02009-COA-R3-CV - Filed June 15, 2012


In a previous appeal, this court vacated and remanded the trial court’s order dismissing a
petition for an order of protection based upon the trial court’s failure to make findings of fact
and conclusions of law as required by Tenn. R. Civ. P. 41.02. On remand, the trial court
issued an order making the requisite findings of fact and conclusions of law and again
dismissed the petition. On appeal, the petitioner argues that the trial court applied an
incorrect standard of proof and thereby abused its discretion. We find no merit in this
argument. Therefore, we affirm the decision of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which R ICHARD H. D INKINS, J.,
and B EN H. C ANTRELL, S P. J., joined.

Phillip Leon Davidson, Nashville, Tennessee, for the appellant, Sandi D. Jackson.

Debra L. Dishmon, Lebanon, Tennessee, for the appellee, Mitchell B. Lanphere.

                                          OPINION

                          F ACTUAL AND P ROCEDURAL B ACKGROUND
        This case, at its genesis, is best described as a visitation dispute. Sandi D. Jackson
filed a petition for orders of protection against Mitchell Lanphere in Sumner County
Chancery Court on June 4, 2010. Ms. Jackson filed the petition on behalf of herself and the
parties’ minor child, Keely. Ms. Jackson’s petition alleged that, on May 30, 2010, Mr.
Lanphere sent threatening text messages and caused Ms. Jackson and the child to fear for
their safety. This occurred after Mr. Lanphere allegedly failed to pick Keely up on May 29,
2010, for his court-ordered weekend parenting time.
       A hearing was held on June 24, 2010, in the Chancery Court of Sumner County.
Following Ms. Jackson’s proof, including testimony from Ms. Jackson and officer Connie
Cassidy from the Hendersonville Police Department, the court dismissed the petition for an
order of protection. On July 6, 2010, the court entered its order and held that Ms. Jackson
“failed to prove by a preponderance of the evidence the allegations contained in the Petition
for Orders of Protection.” Costs were taxed against Ms. Jackson.

       An appeal initiated by Ms. Jackson followed, and on August 12, 2011, this Court
concluded that the trial court erred in failing to make specific findings of fact and
conclusions of law as required by Tenn. R. Civ. P. 41.02 and 52.01. We vacated the trial
court’s determination regarding the order of protection and remanded the matter for entry of
findings of fact and conclusions of law. See Jackson v. Lanphere, No. M2010-01401-COA-
R3-CV, 2011 WL 3566978 (Tenn. Ct. App. April 18, 2011).

       Upon remand, by order entered August 19, 2011, the trial court made the following
findings of fact:

              1.     Petitioner Sandi D. Jackson was not a credible witness.

              2.     Petitioner Sandi D. Jackson was never in fear of any real or imaginary
                     harm for herself, or for the parties’ minor child, from any alleged act or
                     omission by Mitchell B. Lanphere. Instead, she was “aggravated.”

              3.     Petitioner Sandi D. Jackson took out the Order of Protection in a last
                     ditch attempt to thwart Respondent’s court ordered visitation time with
                     the minor child (See, M2010-01703-COA-R3-JV), and as retribution
                     because “he got me harassed by the police.”

              [4.]   The investigating Hendersonville Police Department officer testified
                     that Petitioner did not act or appear scared; the Petitioner misled the
                     Officer in her statements made to the Officer on the scene during the
                     investigation; that the Officer examined all of the text messages and
                     responsive messages between the parties, and discerned no threats from
                     the Respondent of any nature; and that Petitioner primarily appeared to
                     be aggravated with the Officer. Petitioner told the Officer “I hope you
                     sleep well.” The Court accredits the Officer’s testimony in full.

              [5.]   Respondent neither committed nor threatened to commit any act which
                     could, by any standard, be considered domestic violence or a threat to
                     Petitioner or the minor child, or the basis for an Order of Protection.

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              [6.]   By clear and convincing evidence, Petitioner knew that the allegations
                     were false at the time she made them.

       Based upon these findings, the trial court made the following conclusions of law:

              1.     Petitioner failed to prove by a preponderance of the evidence the
                     allegations contained in the Petition for Orders of Protection.

              2.     Petitioner was never a “victim” of domestic abuse in the events which
                     were the basis for her claim, as the distinction between a “petitioner”
                     and a “victim” has been described by the Court of Appeals in this
                     cause.

              3.     Accordingly, Petitioner’s Order of Protection was, and is, dismissed, at
                     her cost.

       This appeal followed. Ms. Jackson now argues that the trial court judge erred “in
applying an incorrect standard of proof, thereby abus[ing] his discretion as a matter of law.”

                                   S TANDARD OF R EVIEW

        We review a trial court’s findings of fact de novo with a presumption of correctness
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). We review
questions of law de novo with no presumption of correctness. Nelson v. Wal-Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                                           A NALYSIS

       On appeal, Ms. Jackson argues that the trial court erred in the standard of proof it
applied in dismissing the petition for orders of protection. Ms. Jackson bases this argument
solely on the language in the trial court’s order that “[b]y clear and convincing evidence,
Petitioner knew that the allegations were false at the time she made them.” Ms. Jackson
interprets this language to mean that the trial court incorrectly applied the more demanding
clear and convincing standard of proof instead of requiring Ms. Jackson to prove the
allegations in the petition for orders of protection by a preponderance of the evidence. We
cannot agree.

       The trial court finding relied upon by Ms. Jackson relates solely to the assessment of
costs under Tennessee Code Annotated § 36-3-617(a). It is not in reference to Ms. Jackson’s
allegations as they are set out in the petition for orders of protection.

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        Under Tennessee Code Annotated § 36-3-617(a), the court adjudicating a petition for
an order of protection has some discretion as to which party shall pay court costs. If an order
of protection is issued or extended, costs must be assessed against the respondent. Tenn.
Code Ann. § 36-3-617(a)(1). However, if an order of protection is not issued or extended,
costs may be assessed against the petitioner if the court determines by clear and convincing
evidence that the petitioner is not a domestic abuse victim, and such determination is not
based on one of the following: the petitioner’s request for the dismissal of the petition, the
petitioner’s failure to attend the hearing, or the petitioner’s failure to correctly fill out the
petition. Tenn. Code Ann. § 36-3-617(a)(2)(A). The court must also determine by clear and
convincing evidence that the petitioner knew the allegations of domestic abuse to be false
at the time the petition was filed. Tenn. Code Ann. § 36-3-617(a)(2)(B).

       Therefore, when the trial court stated that “[b]y clear and convincing evidence,
Petitioner knew that the allegations were false at the time she made them,” it was making a
finding a fact related to Ms. Jackson’s state of mind as is required under Tennessee Code
Annotated § 36-3-617(a) for a determination on whether Ms. Jackson abused the process
associated with petitioning for an order of protection. The trial court was not making a
finding related to the strength of the allegations in the petition for orders of protection.

       The trial court expressly stated in its order that “Petitioner failed to prove by a
preponderance of the evidence the allegations contained in the Petition for Orders of
Protection.” The trial court applied the proper standard of proof in making its determination
regarding Ms. Jackson’s petition. Moreover, after reviewing the entire record, we find that
the proof supports the trial court’s decision to dismiss Ms. Jackson’s petition for orders of
protection. The trial court carefully considered the testimony and properly concluded that
Ms. Jackson failed to prove by a preponderance of the evidence the allegations contained in
the petition.

                                         C ONCLUSION

       The judgment of the trial court is affirmed. Costs of appeal are assessed against the
appellant, Sandi D. Jackson, and execution may issue if necessary.

                                                               _________________________
                                                               ANDY D. BENNETT, JUDGE




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