18 May 2013

The Burden of Proof for a Tennessee Order of Protection

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Tennessee law case summary on order of protection law in Tennessee divorce and family law from the Tennessee Court of Appeals.  Note: this is the second article on this case in this Blog.

Sandi D. Jackson v Mitchell B. Lanphere – Standard for Granting Tennessee Orders of Protection

Ms. Sandi D. Jackson (the mother) initially filed a petition for orders of protections against Mitchell Lanphere (the father), on behalf of herself and their minor child.  The mother claimed that the father sent her threatening text messages and caused her to fear for herself and her child.  The mother said this occurred after the father did not pick up the child at the appointed time for his parenting time.  In June 2010, a hearing was held and included testimony from the mother and from a police officer.  In July the court dismissed the petition and found that the mother had not proven “by a preponderance of the evidence” the allegations in the petition against the father.

The mother appealed this decision and the Court of Appeals found that the lower court had erred regarding both findings of facts and legal conclusions.  The petition was sent back to the lower court.  In July 2011, the lower court made a number of findings of fact.

The findings of fact in the Tennessee trial court

The lower court concluded that the mother was not a credible witness.   The court also held that the mother was never in fear for herself or for her child but rather was aggravated.   The court based this finding on the police officer’s testimony.  The officer said the mother did not act or appear afraid and that she misled the officer during the investigation at the scene.  Additionally, the officer examined all of the text messages sent between the mother and father and found nothing threatening.  The officer found the mother to be aggravated with her.

The lower court found that the father did not commit or threaten to commit any act which might be considered domestic violence, a threat to the mother or the child, or a reason for an Order of Protection.

The court held that the evidence proved the mother knew she made false allegations at the time they were made.  The mother took out the petition to get back at the husband because he caused the police to harass her and because she wanted to limit his parenting time with the child.

Legal conclusions analyzed

Based on these facts, the lower court concluded that the wife had failed to prove by a preponderance of the evidence the allegations she made in the petition for an Order of Protection.  The court also found that the wife was not a victim of domestic abuse.  Accordingly, her petition was dismissed.

The appeal to the Tennessee Court of Appeals

The mother argued that the lower court used an incorrect standard of proof.  In its decision, the lower court said that there was “clear and convincing evidence” that the mother knew that her allegations were false when she made them.   The wife argued that this is a higher standard of proof than “a preponderance of the evidence,” which is what was required for a protection order.

The court of appeals explained that the reference to clear and convincing evidence referred to the court costs and not to the proof needed for the petition.  If an order of protection is granted, the respondent (or father, in this case) pays the costs.  If the order is denied, the court may require the petitioner (here, the mother) to pay court costs.  The court may order the petitioner to pay these costs  if it determines by “clear and convincing evidence” that the petitioner is not a domestic abuse victim and that the petitioner knew the allegations of domestic abuse were false at the time the petition was filed.   The higher standard was used only to determine only whether or not the mother abused the process and not to determine the strength of the allegations made in the petition.  The court clearly stated that the level of proof for the allegations was a lower one of the “preponderance of the evidence.”  The appeals court upheld the decision of the lower court.

No. M2011-02009-COA-R3-CV (Tenn. Ct. App. June 15, 2012).

See original opinion for exact language.  Legal citations omitted.

Memphis divorce lawyer, Miles Mason, Sr., JD, CPA practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC, which handles Tennessee family law matters including divorce, child support, alimony, prenuptial agreements, child custody, parental relocation, child support modification, alimony modification, and divorces including business valuation and forensic accounting issues.  A Memphis divorce attorney from the Miles Mason Family Law Group can help. Contact the Miles Mason Family Law Group, PLC at 901-683-1850.

Miles Mason


Memphis divorce and family lawyer, Miles Mason, Sr. is the founder of Miles Mason Family Law Group, PLC. For more information about our professional staff, see our Meet the Team page.


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