Husband Accused of Abuse Entitled to Discovery Before Order of Protection Hearing

Tennessee case summary on discovery prior to order of protection hearing.

Amy Elizabeth Luker v. Terry Eugene Luker

The husband and wife in this Tennessee case were in the midst of divorce proceedings, but continued to reside together in the marital residence, but in different rooms.  Even after the signing of the marital dissolution agreement, they had consensual sexual relations a number of times.

The wife requested an order for protection regarding an incident where she alleged that she was raped.  The wife alleged that she had not consented.  The husband, on the other hand, claimed that he had been “set up,” in that the sexual relations were consensual, and that the wife claimed rape after he refused to give her money.

The trial court granted a temporary order and set the matter for hearing.    The husband made a request to conduct discovery under the Tennessee Rules of Civil Procedure, but the trial court held that he had no right to take depositions, interrogatories, or requests for production or admission.  The trial court did, however, allow the husband to subpoena various documents such as messages and phone call logs.  After hearing, the court found that the wife had not consented, and granted the order for protection.  The husband then appealed to the Tennessee Court of Appeals.

One of the husband’s arguments on appeal was that he was rushed into hearing without adequate time or opportunity to prepare, and that specifically he should have been allowed to conduct discovery.  The appeals court examined the order for protection statute, which calls for expedited hearings.  But it agreed that in this case, the result of the procedure followed was a rushed hearing.  For example, it noted that the husband’s lawyer had only two hours before the hearing to review a one and a half hour recording, in addition to various call logs.

The statute does provide a time limit for the hearing, but the appeals court ruled that this time limit was primarily to protect the respondent, in that he could have the temporary order removed quickly.  It held that this time limitation did not mean that a respondent would not be allowed to conduct any discovery.  It pointed out that a respondent has the right to a meaningful due process opportunity to present his case.

For this reason, the Court of Appeals vacated the lower court’s order and remanded the case.  It directed the lower court to use its discretion in setting discovery.

No. M2018-00138-COA-R3-CV  (Tenn. Ct. App. Aug. 30, 2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Domestic Violence in Tennessee.