Luker v. Luker, (Tenn.Ct.App., filed August 30, 2018)
TRIAL COURT: In November 2017, Petitioner and Respondent were in the midst of divorce proceedings. The two continued to reside together in the marital residence, albeit in different rooms. Following the signing of the marital dissolution agreement, the divorcing couple had consensual sexual relations some number of times.
The event giving rise to this appeal occurred on November 14, 2017, when Petitioner alleges she was raped by Respondent. The two parties put forward contrasting accounts of what happened. Respondent’s theory of the case throughout has been that there was no rape and that Petitioner and her sister conspired to set him up. In Respondent’s account, he and Petitioner had consensual sex and afterward, when Respondent denied Petitioner’s request for money, she flew into a rage and accused him of rape. According to Petitioner, she did not want to have sex with Respondent on this occasion and expressed this to him, but he proceeded to rape her.
On November 16, 2017, Petitioner filed a petition for order of protection in the Trial Court. A temporary, ex parte order of protection was entered against Respondent. The case was set for December 1. On November 30, 2017, Respondent filed a motion to continue in order to request discovery
The Trial Court permitted Respondent to subpoena certain records but otherwise ruled he had no right to conduct discovery under the Tennessee Rules of Civil Procedure. After a hearing, the Trial Court ruled in favor of Petitioner and extended the order of protection. Respondent appealed, arguing principally that the Trial Court erred in blocking discovery and in excluding Respondent’s proposed witnesses. The Court of Appeals held that the Trial Court erred in determining categorically that Respondent had no right to conduct discovery. The Court of Appeals vacated and remanded for a new hearing. On remand, the parties shall state specifically what discovery if any they want and the Trial Court is to exercise its discretion in deciding what limited discovery to allow and the time frame.
COURT OF APPEALS:
Nothing in our research supports the proposition that discovery under the Tennessee Rules of Civil Procedure is prohibited in order of protection cases. The Trial Court had the discretion to manage discovery but did not exercise its discretion. Rather, the Trial Court concluded summarily that Respondent had no right to conduct discovery pursuant to the Tennessee Rules of Civil Procedure, which we hold was error. Our holding comports with Kite and the Domestic Abuse Act in that it ensures continuity of enhanced protection for the alleged victim while also preventing the kind of frantic case disposition seen here. While not a criminal matter, an order of protection exposes a respondent to an array of restrictions, including severe limitations on his or her Second Amendment rights. A respondent deserves a meaningful due process opportunity to present his or her case.
We, therefore, vacate the judgment of the Trial Court extending the order of protection against Respondent. We remand for a new hearing. On remand, the Trial Court is to exercise its discretion to determine the parameters of discovery. The parties must state what discovery, if any, they want. The Trial Court then must exercise its discretion as to what discovery to allow and the time frame. In the meantime, the ex parte order of protection shall remain in effect through the new hearing, at which point it will be dissolved or extended.
http://www.tncourts.gov/sites/default/files/luker.amy_.opn_.pdf