Sara Marie Poe Mossbeck v. John Pollard Hoover, Jr. ( 2021 )

04/30/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 27, 2021 Session
SARA MARIE POE MOSSBECK v. JOHN POLLARD HOOVER, JR.
Appeal from the Circuit Court for Hamilton County
No. 99D247 W. Jeffrey Hollingsworth, Judge
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No. E2020-00311-COA-R3-CV
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This case involves a post-divorce action, in which the father filed a petition for contempt
against the mother, alleging that the mother failed to pay her portion of the child’s medical
expenses pursuant to the permanent parenting plan. The Trial Court denied the father’s
request that the mother be held in contempt but awarded the father a judgment for the
mother’s portion of the child’s medical expenses. The Trial Court declined to award
attorney’s fees to the father and ordered that the mother be permitted to make installment
payments to the father. We vacate the Trial Court’s order permitting the installment
payments as being premature. We further modify the judgment against Mother to
$38,759.11 upon our determination that the amount paid by the father to Mountain
Management and Denials Management was only $1,781.76. We affirm the Trial Court’s
judgment in all other aspects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated in Part, Modified in Part, Affirmed as Modified; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
John P. Konvalinka and Jillyn O’Shaughnessy, Chattanooga, Tennessee, for the appellant,
John Pollard Hoover, Jr.
Harold L. North, Jr., and Nathan L. Kinard, Chattanooga, Tennessee, for the appellee, Sara
Marie Poe Mossbeck.
OPINION
Background
Sara Marie Poe Mossbeck (“Mother”) and John Pollard Hoover, Jr., (“Father”) were
married in October 1997 and divorced in June 2000. During the marriage, the parties had
one child (“the Child”). At the time of the divorce, the Trial Court entered a final divorce
decree adopting a permanent parenting plan that both Mother and Father signed as being
proposed in good faith and in the Child’s best interest. The permanent parenting plan stated
that the parties would share parenting responsibilities for the Child but that Mother’s
residence was the Child’s primary residence. The permanent parenting plan provided that
Father would maintain medical insurance for the Child with a deductible not to exceed the
current amount of $200. If the deductible increased beyond $200, Father was to be
responsible for the excess deductible. Any uncovered medical expense, including any
deductible up to $200, is to be divided equally by the parties. The permanent parenting
plan states that Father will pay any increase in the amount of the co-pay or unreimbursed
expenses as a result of changing health insurance carriers. Concerning health care
decisions, the permanent parenting plan further stated as follows:
3.2 MAJOR DECISIONS. Major decisions regarding each child will be
made as follows: The mother will send a written decision to the father on all
major educational, health care and religious upbringing issues and the father
will respond in writing within fifteen (15) days. Mother will consider
objectively the father’s input and respond within fifteen (15) days with her
decision. Any dispute will be resolved by mediation with Mary Ann Zaha.
In the event discord continues between the parties, either party may request
family counseling to facilitate communication.
3.2.1 HEALTH CARE. The child(ren) will continue under the medical
insurance plan of the Father. In the event there are medical expenses not
covered by medical insurance, the parents will share those costs equally.
Mother and Father will consult with respect to major, non-emergency
medical decisions, and either Father or Mother will be entitled to seek a
second opinion with respect to the necessity and wisdom of any medical
decision. If a second opinion differs in any material respect with the first
opinion, a third opinion will be obtained, and the majority opinions will
control. The parties have agreed that either parent may make emergency
decisions affecting the health and safety of the child(ren). To the extent that
the following medical services are not covered by medical insurance, they
are approved: eyeglasses or contact lenses, braces, routine annual physical
(with the results available to both parents), and periodic dental cleaning with
any cavities filled. Decisions not covered hereunder will be made as set forth
above.
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In April 2012, Father filed a “Verified Petition to Modify and for Emergency
Change of Primary Residential Placement.” As a result of this petition, Father was given
temporary custody of the Child. According to Father, the Child “was getting out of control”
and the Department of Children’s Services was involved. Father subsequently consulted
with an “education consultant,” who provided recommendations of placement for the
Child. At the recommendation of the consultant, Father subsequently placed the Child in
residential programs, including Trails Carolina, Solstice East, and Northwest Passage, due
to her behavioral and psychiatric issues. Significant expenses were incurred from these
programs that were not covered by medical insurance. Mother signed the treatment consent
form for the Trails Carolina program but did not sign the promise to pay for the treatment.
Mother claims she informed Father at that time that she was unable to pay for the inpatient
treatment programs and did not sign the payment agreements concerning the treatment.
Mother testified at trial that Father had informed her that he would “take care of [the cost].”
Father, however, did not recall discussing payment to the facility with Mother before the
Child went to the facility.
Father filed a petition for contempt against Mother in April 2016 due to Mother’s
failure to pay her portion of the Child’s uncovered medical expenses. In his petition, Father
requested that Mother be held in contempt and that Mother be required to pay half the
Child’s uncovered medical expenses and Father’s attorney’s fees incurred as a result of the
contempt action.
The Trial Court conducted a trial concerning Father’s contempt motion over three
nonconsecutive days from December 2016 through June 2019, in which three witnesses
testified: (1) Father; (2) Matthew Stelzman, an accountant; and (3) Mother. The record
also included portions of deposition testimony of Mother, Father, and Rhonda Arnold,
Father’s sister. On the first day of trial, the Trial Court heard evidence submitted by Father.
Father testified and admitted as one of his exhibits a collective exhibit of medical expenses
incurred on behalf of the Child.
The Trial Court ended the first day of trial upon its determination that this was more
an accounting issue rather than a legal issue. For this reason, the Trial Court referred the
case to an accountant to serve as special master in order to sort through the payment and
invoice records concerning the medical expenses. The Trial Court memorialized its
decision in a written order in which it stated that the matter would reconvene after the
accountant had completed his or her analysis of the information. The Trial Court ordered
the parties to designate an accountant to review all documentation and make a
determination on four specific issues. The Trial Court further ordered Mother to deposit
with the clerk of the court the proceeds for medical expenses for the Child she had received
from her insurance company.
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An accountant, Matthew Stelzman, was engaged to develop an independent analysis
and opinion concerning the medical expenses related to the Child. Mr. Stelzman was
requested to determine (1) the total amount of medical expenses incurred for the Child; (2)
which charges were submitted to the Child’s health insurance providers for payment; (3)
what charges were paid by each of the health insurance providers and by Father; and (4) if
a submitted expense was not paid by the health insurance provider, the reasoning provided
for such nonpayment, including whether the expenses were subject to a deductible or co-
pay, were out-of-network, or lacked a pre-authorization. Mr. Stelzman submitted a report
to the Trial Court providing his opinion on these matters and testified at trial.
Following the conclusion of the trial in this matter, the Trial Court entered an order
in August 20191 finding as follows in relevant part:
For the reasons set forth below, the Court holds that the Mother is not in
willful contempt of this Court’s order. However, under the provisions of the
Permanent Parenting Plan, the Mother does owe the Father $37,206.34 for
reimbursement of medical bills he paid which were not covered by medical
insurance.
These parties were divorced June 14, 2000. An Agreed Parenting Plan
stated the Father would provide medical insurance for the parties’ daughter.
Section 1.4 of the Plan also provides that any medical expenses not covered
by insurance would be divided equally by the parties. The lone exception to
that provision was that the Father would be solely responsible for any annual
deductibles exceeding $200.00.
The parties’ daughter suffered significant emotional and
psychological problems. Custody was given to the Father. Counseling was
ordered. Eventually, the Father determined that the daughter needed to
participate in some residential treatment programs. The three (3) main
programs were Northwest Passage, Solstice East and Trails Carolina. Those
programs alone accounted for $161,335.00. The Father wrote checks or
submitted his credit card to pay most of these costs. He seeks reimbursement
from the Mother for 50% of these and other medical expenses.
Contempt
The Court finds that Sara Marie Mossbeck, the Mother, is not in
willful contempt of this Court’s order. First, although the Mother knew of
the daughter’s enrollment in the residential programs, she expressly told the
Father she could not afford to pay for them. In addition, the Father admitted
1
The Trial Court initially entered an order in April 2018 but later vacated its judgment as being premature.
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that he did not submit the bills to the Mother because he was trying to get the
insurance company to pay. Finally, it is undisputed that when the bills were
submitted to the Mother, she submitted them to Blue Cross, her insurer, and
recovered $40,281.05, which has been on deposit with the Clerk for over two
(2) years. The Mother did not have the capacity to pay and she did what she
could to recover money spent for the daughter’s care. Therefore, her failure
to pay 50% of the medical expenses was not willful and she cannot be held
in contempt.
Reimbursement
Although the Mother is not held in contempt she still has an obligation
to pay under the Parenting Plan. As noted in the Court’s previous order,
which has been set aside, Mathew Stelzman, a CPA, was hired to analyze the
records and determine the total amount paid, the amount paid by insurance
and the amount attributable to deductibles for which the Father is
responsible. Mr. Stelzman submitted a report and testified at trial. The Court
found Mr. Stelzman to be a credible witness.
Mr. Stelzman determined that the Father spent $179,295.62 on
medical expenses for the daughter. As noted previously, the Parenting Plan
requires that the parties pay 50% each of all annual deductibles up to
$200.00. Anything over $200.00 per year is the sole responsibility to the
Father. Mr. Stelzman’s report stated that the total amount of deductibles
exceeding $200.00 per year for 2014-2017 was $13,038.04. That is the
Father’s responsibility and will be subtracted from the $179,295.62 he
spent. The remainder is $165.857.62.
A previous order of the Court stated that the counseling fees for Dr.
Beth Cappecci would be prorated 75% to the Father and 25% to the Mother.
The Father paid the entire bill. His portion of Dr. Cappecci’s bill is
$3,046.50. That amount is deducted from any reimbursement by the Mother.
The amount is now $162,811.12. The Mother’s portion, which she did not
pay, is $1,015.50. That is added back and the sum is $163,826.62.
At the hearings on this matter, the Mother argues that expenses the
Father paid to companies he hired to fight with the insurance companies are
not medical expenses and, therefore, are not subject to reimbursement. She
is correct. Mr. Stelzman’s report shows $133.68 paid to Mountain
Management; However, evidence was produced that the Father spent a total
of $8,167.06 for Mountain Management and Denials, Inc. That amount is
deducted from the amount subject to reimbursement. The remainder is now
$155,659.56.
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The Mother argues that there were “double payments,” i.e. duplicate
payments to medical providers by the Father and the insurance companies.
The Court has reviewed the exhibits and the Stelzman report and does not
find support for that argument.
The amount of uncovered medical bills, as set forth above, is
$155,659.56. One-half of that is $77,829.78. As noted previously,
$40,623.44, which was recovered by the efforts of the Mother, is on deposit
with the Clerk. If that sum is released to the Father, the remainder of the
Mother’s liability is $37,206.34.
The Mother argues that she is not able to make those payments. That
is why she refused to sign the payment agreements for the residential
programs. While the Mother may be correct about her ability to pay, that
does not affect the fact that the Permanent Parenting Plan requires that she
pay 50% of all uncovered medical expenses. That provision of the Parenting
Plan, to which she agreed, has not changed. She owes the Father $37,206.34.
Also, it has come to the Court’s attention that Mathew Stelzman has
not been paid for the work he did in this case. His bill is $29,500.00, which
appears to be reasonable. For the reasons set forth below, the Father, John
P. Hoover, is Ordered to pay that bill.
The reason Mr. Stelzman had to be hired was that it would have been
impossible for the Court to make any sense out of the evidence produced.
While it is understandable that the Father felt rushed to get services for his
daughter, he admits he acted, to a great extent on his own. Some bills may
have been submitted to insurance, some not submitted. It appears from the
Stelzman report that some bills were refused by the insurance company
because of lack of authorization. The Father did not submit the issue to the
insurance company before agreeing to pay for the services rendered. The
tangled situation Mr. Stelzman had to straighten out was created by the
Father.
(Internal citations omitted.)
In September 2019, Mother filed a motion to alter or amend arguing that the Trial
Court erred by determining that Mother was responsible for a portion of the medical
expenses despite her inability to pay. She further averred that the inpatient treatment was
not emergent care and she should not be responsible for the medical bills that were denied
because Father did not get pre-authorization for them. Additionally, Mother argued that
she should not be required to pay the medical charges that were not paid by insurance
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because they were deemed to be not medically necessary and Father had done “little or
nothing to contest that determination.” Mother further argued that Father should be
responsible for the amount of medical expenses that were unreimbursed out-of-network
charges and that Father had failed to account for reimbursements he had received from the
insurance provider. According to Mother, she had repeatedly indicated to Father that she
was unable to afford the charges and requested the Trial Court set aside its judgment against
her “to eliminate any liability” she owes to Father.
Father subsequently filed a motion to alter or amend, requesting the Trial Court to
relieve Father of the requirement to pay Mr. Stelzman’s fee arguing that Mother had
requested his services and his report “essentially confirmed the figures that [Father]
provided to the Court.” Father further asked the Trial Court to deduct the funds Mother
received from her insurance company from the total amount of medical expenses instead
of from Mother’s portion of the expenses. Father additionally requested an award of his
attorney’s fees.
In January 2020, the Trial Court entered an order concerning the parties’ motions to
alter or amend and ruled as follows in pertinent part:
Father’s Motion
The Father’s motion argues that the money the Mother received from
Blue Cross should have been deducted from the total medical expenses paid
and not from the Mother’s share of those expenses. That is correct. In its
original Order, the Court determined that, after certain adjustments, the total
amount of medical bills paid was $155,659.56. The Court then divided that
in half, which equals $77,829.78. The $40,623.44 the Mother recovered
from Blue Cross was deducted from that sum, which left the judgment
amount of $37,206.34.
The Parenting Plan entered in 2000 says that any medical expense not
covered by insurance would be divided equally. The money the Mother
recovered on her Blue Cross policy is obviously for expenses covered by
insurance. Therefore, it should have been deducted from the total amount
spent to determine the amount that is not covered.
Therefore, the Order of August 13, 2019, is amended to read as
follows:
“The Father spent $179,295.62 on medical expenses for the
daughter. The $13,038.04 of deductibles for which the Father
is responsible is deducted, leaving a sum of $165,857.62.
-7-
The Father paid the entire bill to Beth Cappecci. The Mother’s
share, which she did not pay, was $1,015.50. That is added
back to the sum, leaving a total of $166,872.50.
The Father spent $8,167.00 on a company known as Mountain
Denials, which was to contest the denial of payment by the
Father’s insurance company. Those bills were not medical
expenses and are not reimbursable. That sum of $8,167.00 is
deducted, leaving a total of $158,705.50.
The Mother recovered $40,623.44 on her Blue Cross policy.
Those are obviously covered medical expenses. On December
19, 2019, a check for $41,222.52 was issued to the father by
the clerk. Deducting that from the total of $158,705.50 leaves
a total of $117,482.98. One half of that amount is $58,741.49.
In his motion, the Father also asks that he be relieved of the obligation
to pay the entire bill of Mathew Stelzman, a CPA brought into the case to
examine these issues. For the reasons set forth below, that part of his motion
is Denied. Based upon the evidence produced at trial, it was clear that the
Father was the primary residential parent and that the daughter was suffering
from psychological and emotional issues. The Father justifiably sought
professional help in dealing with the daughter’s issues. However, at least
from a financial standpoint, the Father’s approach to obtaining that help can
politely be described as haphazard. He contacted medical providers,
including in house therapy providers such as Trails Carolina and Solstice
East. When he filed this action to recover some of the expenses not covered
by insurance, he did not know how much he had spent. It turned out that he
sent the daughter to the inpatient facilities without even checking with the
insurance companies as to whether they would pay. He just assumed it would
be covered. The Father’s sister tried to help and was able to put together
some figures to be submitted. However, there was a great deal the sister
could not do. It was necessary to have an expert untangle and explain the
mess the Father had created. It was his fault that the records necessitated an
expert. Therefore, he should pay the fees generated by the expert. Mr.
Stelzman’s report is referenced later.
The Mother’s Motion
The amount of $58,741.49 would appear to be the one half of
uncovered medical expenses the Mother owes the Father. However, she has
also filed a Motion to Alter and Amend raising several arguments.
-8-
The Mother’s motion raises questions that are more difficult to
answer. In effect, she argues that the Father created the mess and that his
actions resulted in unnecessary and avoidable uncovered medical costs. In
addition she argues that she cannot afford to pay one half of the bills. In
effect, the Mother argued that the Father did not act in good faith in incurring
these costs.
The Court asked counsel to submit briefs on two (2) issues. The first
was whether the doctrine of good faith and fair dealing applied to this case.
If so, the Court asked how the application of that doctrine affected the
outcome. Counsel submitted the requested briefs. The Father . . . correctly
argued that this is not a contract action. As such, the doctrine of good
faith and fair dealing does not apply. The law is clear that when parties
submit an agreed parenting plan, as happened in this case, the court should
treat most terms in the parenting plan as a contract. However, issues of child
support lose their contractual nature when the court adopts the parenting plan
and incorporates it into its Final Decree. That is because child support, unlike
a contract provision, can be changed by the court if there is a change in
circumstances. The Child Support Guidelines require the court to make
provision for uncovered medical costs. Therefore, it is part of child support.
By way of example, a party who willfully fails to pay uncovered
medicals can be held in contempt of court and punished, including
incarceration. It is difficult to conceive of a party going to jail for breach of
contract.
So, it is clear to this Court that this is not a contract action. However,
the question of whether the Father must act in good faith remains. Just
because he has a court order, the Father cannot go out and incur whatever
costs he wants and expect the Mother to be forced to pay half of those costs.
The Parenting Plan in this case provides a mechanism to resolve
dispute as to medical treatment for the daughter. Paragraph 3.2.1 of the Plan
says:
“Mother and Father will consult with respect to major, non-
emergency medical decisions, and either Father or Mother will
be entitled to seek a second opinion with respect to the
necessity or wisdom of any medical decision.”
The Father admitted that sending the daughter to Trails Carolina and Solstice
East were not emergencies. There was time before the daughter entered those
programs for the Father to check with the insurance companies and get pre-
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approval. There was also time for the mother to request a second opinion.
She did not do so. In fact, the evidence was that the Mother agreed it was
beneficial for the daughter to go. She signed consent of treatment forms.
What the Mother refused to sign was a promise to pay for that treatment. She
argued then and argues now that she simply could not afford the cost of the
programs.
The Stelzman report states on page 4 that a total of $161,335.00 was
spent on Trails Carolina, Solstice East and Northwest Passage. Of that
amount, it appears from the Stelzman report that $46,350.00 of that amount
was refused because the Father did not seek authorization before sending the
daughter to the facilities. Those uncovered costs could have been avoided.
One half of that amount, or $23,175.00 will be deducted from the total owed
by the Mother. The total is now $35,566.49.
A significant portion of the charges, $99,239.00, were declined by the
insurance companies because they were deemed “not medically necessary.”
That is something the Mother could possibly have avoided. As noted
previously, the Parenting Plan allowed her to get a second opinion to
determine whether the treatment sought was medically necessary. She
declined to pursue a second opinion. None of those costs will be deducted.
Father timely appealed to this Court.
Discussion
Although not stated exactly as such, Father raises the following issues for our review
on appeal: (1) whether the Trial Court erred by declining to find Mother’s actions
contemptuous upon its finding that Mother’s violation was not willful; (2) whether the Trial
Court erred by declining to award Father his attorney’s fees related to the petition for
contempt; (3) whether Father is entitled to an award of attorney’s fees on appeal; (4)
whether the Trial Court erred by ordering Father to pay the entire cost of the accountant
appointed by the Trial Court; (5) whether the Trial Court erred by ordering Mother to make
installment payments to Father without post-judgment interest, pursuant to Tennessee
Code Annotated § 47-14-122; (6) whether the Trial Court erred by deducting $46,350 from
the total amount of medical expenses due to Father’s failure to obtain pre-authorization;
(7) whether the Trial Court erred by deducting $8,167.062 that Father related to “Denials
and Mountain Management” when Father and the accountant agreed that Father asked for
only $1,781.76 for purposes of reimbursement by Mother.
2
Although Father argues in his appellate brief that the Trial Court deducted $8,176.06, we note that the
Trial Court deducted $8,167.06 for Denials Management and Mountain Management.
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Mother raises the following additional issues for our review: (1) whether the Trial
Court erred by finding Mother responsible for expenses that were unilaterally incurred by
Father; (2) whether the Trial Court erred by crediting the insurance benefit received by
Mother to the total medical expenses, instead of applying it to Mother’s obligation; and (3)
whether Mother is entitled to an award of attorney’s fees incurred on appeal.
With regard to civil contempt, our Supreme Court has instructed:
Civil contempt claims based upon an alleged disobedience of a court
order have four essential elements. First, the order alleged to have been
violated must be “lawful.” Second, the order alleged to have been violated
must be clear, specific, and unambiguous. Third, the person alleged to have
violated the order must have actually disobeyed or otherwise resisted the
order. Fourth, the person’s violation of the order must be “willful.”
***
The fourth issue focuses on the willfulness of the person alleged to
have violated the order. The word “willfully” has been characterized as a
word of many meanings whose construction depends on the context in which
it appears. Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 87 L.Ed.
418 (1943); United States v. Phillips, 19 F.3d 1565, 1576-77 (11th Cir.
1994). Most obviously, it differentiates between deliberate and unintended
conduct. State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust,
209 S.W.3d [602,] 612 [(Tenn. Ct. App. 2006)]. However, in criminal law,
“willfully” connotes a culpable state of mind. In the criminal context, a
willful act is one undertaken for a bad purpose. Bryan v. United States, 524
U.S. 184, 191, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998); State v. Braden, 867
S.W.2d 750, 761 (Tenn. Crim. App. 1993) (upholding an instruction stating
that “[a]n act is done willfully if done voluntarily and intentionally and with
the specific intent to do something the law forbids”).
In the context of a civil contempt proceeding under Tenn. Code Ann.
§ 29-2-102(3), acting willfully does not require the same standard of
culpability that is required in the criminal context. State ex rel. Flowers v.
Tenn. Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d at 612. Rather,
willful conduct
consists of acts or failures to act that are intentional or
voluntary rather than accidental or inadvertent. Conduct is
‘willful’ if it is the product of free will rather than coercion.
Thus, a person acts ‘willfully’ if he or she is a free agent, knows
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what he or she is doing, and intends to do what he or she is
doing.
State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust, 209
S.W.3d at 612 (citations omitted). Thus, acting contrary to a known duty
may constitute willfulness for the purpose of a civil contempt proceeding.
United States v. Ray, 683 F.2d 1116, 1127 (7th Cir. 1982); City of Dubuque
v. Iowa Dist. Ct. for Dubuque County, 725 N.W.2d 449, 452 (Iowa 2006);
Utah Farm Prod. Credit Ass’n v. Labrum, 762 P.2d 1070, 1074 (Utah 1988).
Determining whether the violation of a court order was willful is a factual
issue that is uniquely within the province of the finder-of-fact who will be
able to view the witnesses and assess their credibility. Thus, findings
regarding “willfulness” should be reviewed in accordance with the Tenn. R.
App. P. 13(d) standards.
After determining that a person has willfully violated a lawful and
sufficiently clear and precise order, the court may, in its discretion, decide to
hold the person in civil contempt. See Robinson v. Air Draulics Eng’g Co.,
214 Tenn. 30, 37, 377 S.W.2d 908, 912 (1964). The court’s decision is
entitled to great weight. Hooks v. Hooks, 8 Tenn.Civ.App. (Higgins) 507,
508 (1918), Hooks v. Hooks, 8 Tenn.Civ.App. (Higgins) 507, 508 (1918).
Accordingly, decisions to hold a person in civil contempt are reviewed using
the abuse of discretion standard of review. Hawk v. Hawk, 855 S.W.2d 573,
583 (Tenn. 1993); Moody v. Hutchison, 159 S.W.3d 15, 25-26 (Tenn. Ct.
App. 2004). This review-constraining standard does not permit reviewing
courts to substitute their own judgment for that of the court whose decision
is being reviewed. Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551
(Tenn. 2006); Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
An abuse of discretion occurs when a court strays beyond the
framework of the applicable legal standards or when it fails to properly
consider the factors customarily used to guide that discretionary decision.
State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). Discretionary decisions
must take the applicable law and relevant facts into account. Ballard v.
Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). Thus, reviewing courts will set
aside a discretionary decision only when the court that made the decision
applied incorrect legal standards, reached an illogical conclusion, based its
decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the complaining party. Mercer v.
Vanderbilt Univ., 134 S.W.3d 121, 131 (Tenn. 2004); Perry v. Perry, 114
S.W.3d 465, 467 (Tenn. 2003).
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Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 354-58 (Tenn.
2008) (internal footnotes omitted).
We first address Father’s issue concerning contempt. According to Father, the Trial
Court erred by declining to find that Mother was in contempt of court. The Trial Court’s
decision was based on its finding that Mother’s failure to pay half the uncovered medical
expenses for the Child was not willful due to her inability to pay. Concerning willfulness,
this Court has stated:
“A finding of willful conduct must precede a judgment for contempt.”
Reeder v. Reeder, 375 S.W.3d 268, 280 (Tenn. Ct. App. 2012), perm. app.
denied (Tenn. June 20, 2012) (quoting Haynes v. Haynes, 904 S.W.2d 118,
120 (Tenn. Ct. App. 1995)); see also Konvalinka, 249 S.W.3d at 357-58. In
the context of a civil contempt finding for violation of a child support order,
this Court has explained that in addition to a finding of willful conduct:
Additionally, to hold a party in contempt for failure to pay child
support, the court must also determine that the obligor had the ability
to pay at the time the support was due. [Ahern v.] Ahern, 15 S.W.3d
[73,] 79 [(Tenn. 2000)]. Although the party to be held in civil
contempt must have the ability to perform the act it is ordered to
perform, Leonard v. Leonard, [207 Tenn. 609] 341 S.W.2d 740, 743
(Tenn. 1971), the burden of proof is on the contemnor to show the
inability to pay. Pirrie v. Pirrie, 831 S.W.2d 296, 298 (Tenn. Ct. App.
1992); Leonard, 341 S.W.2d at 743-44; Gossett v. Gossett, [34
Tenn.App. 654] 241 S.W.2d 934, 936 (Tenn. Ct. App. 1951).
The ability to pay means precisely what it seems to
mean. The individual must have the income or financial
resources to pay the obligation at the time it is due.
Spending money on other bills or obligations does not
absolve the failure to pay court-ordered child support.
In fact, having the means to meet other financial
obligations evidences an ability to pay child support.
Buttrey v. Buttrey, No. M2007-00772-COA-R3-CV, 2008 WL 45525,
at *2 (Tenn. Ct. App. Jan. 2, 2008).
Cisneros v. Cisneros, No. M2013-00213-COA-R3-CV, 2015 WL 7720274,
at *10 (Tenn. Ct. App. Nov. 25, 2015). Moreover, “[h]olding an individual
in contempt is an available remedy ‘only when the individual has the ability
to comply with the order at the time of the contempt hearing.’” Moore v.
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Moore, No. M2004-00394-COA-R3-CV, 2007 WL 2456694, at *3 (Tenn.
Ct. App. Aug. 29, 2007) (quoting Ahern, 15 S.W.3d at 79).
State ex rel. Groesse v. Sumner, 582 S.W.3d 241, 262-63 (Tenn. Ct. App. 2019), perm.
app. denied (Tenn. June 20, 2019).
In this case, the Trial Court found that Mother’s failure to pay one-half of the
medical expenses was not willful because she did not have the ability to pay one-half of
the uncovered medical expenses. As instructed by our Supreme Court, we review findings
concerning willfulness pursuant to Tennessee Rule of Appellate Procedure 13(d), which
states that our “review of findings of fact by the trial court in civil actions shall be de novo
upon the record of the trial court, accompanied by a presumption of the correctness of the
finding, unless the preponderance of the evidence is otherwise.”
According to Father, there was no evidence in the record that Mother did not have
the capacity to pay her share of the uncovered medical expenses. However, Mother
testified that during 2014 and 2015 when the medical expenses were incurred, Mother was
not employed and only received approximately $26,000 a year from rental income. The
Trial Court found that Mother had informed Father that she could not afford to pay for the
inpatient treatment. The Trial Court found that Father had not initially provided the
medical bills to Mother but that he did eventually provide her with copies of the bills.
Additionally, the Trial Court found that Mother had been able to recover over $40,000 in
proceeds for the Child’s benefit from her insurance provider. Mother testified during trial
that she had to file a grievance with the insurance company in order to obtain the proceeds.
The Trial Court essentially found that Mother had done what she could to obtain this money
for the Child’s care. Father argues on appeal that the evidence presented contradicts the
Trial Court’s finding regarding the insurance proceeds because Mother kept the insurance
proceeds without providing them to Father to reimburse him for the medical expenses.
While we acknowledge our concern that Mother had not provided these proceeds to pay
for the Child’s medical expenses, these insurance proceeds were not enough to satisfy
Mother’s portion of the medical expenses even if she had immediately given them to
Father. With the Trial Court’s findings that Mother “did not have the capacity to pay and
she did what she could to recover money spent for the daughter’s care,” the Trial Court
denied Father’s petition for contempt. The evidence presented does not preponderate
against the Trial Court’s finding that Mother’s failure to comply with the permanent
parenting plan was not willful. Therefore, we find and hold that the Trial Court did not err
by declining to find that Mother was in contempt of court.
We next address whether the Trial Court erred by ordering Father to be responsible
for the entire expense of the court-appointed accountant that had reviewed the records and
reported his findings to the Trial Court. The accountant’s fee totaled $29,500, which the
Trial Court found to be reasonable. As part of his argument, Father contends that Mr.
Stelzman was not properly appointed as either a special master, pursuant to Tennessee Rule
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of Civil Procedure 53, or an expert witness, pursuant to Tennessee Rule of Evidence 706.
Following the first day of trial, the Trial Court found that it was necessary to obtain an
expert to assist the court with the accounting matters at issue. Tennessee Rule of Evidence
706 provides a trial court with the authority to appoint an expert in a bench trial upon the
trial court’s own motion and order allowing the parties to show cause why such expert
should not be appointed. Rule 706(a) requires that the expert witness be notified in writing
of his or her duties in being appointed as an expert witness, which the Trial Court did in its
order appointing the accountant, and that the parties be permitted to cross-examine the
witness, which both parties were permitted to do on the second day of trial.
We note that Father failed to object to the appointment of Mr. Stelzman during the
Trial Court proceedings. Father argues that the Trial Court “did not make a motion to
appoint an expert and did not give Father the opportunity to object.” We disagree that
Father was not provided with an opportunity to object. Although it appears that the Trial
Court spoke to the attorneys concerning the appointment off the record, the Trial Court
subsequently announced its decision to appoint an accountant in court on the same day
without an objection from Father. The Trial Court subsequently filed its order
memorializing its appointment of an accountant in this matter and specifying the specific
issues the accountant should address. Father did not file anything in response to the Trial
Court’s oral ruling or its written order that would reflect any objection by Father to the
appointment of an accountant. Father was given ample opportunity to object to the
appointment of an accountant, provided with notice of the specific issues the Trial Court
had appointed the expert to address, and allowed the opportunity to question Mr. Stelzman
regarding his report during trial. Additionally, Father does not provide any authority in his
principal brief to support his argument that he should be relieved of the financial
responsibility of the expert’s fee due to an alleged error by the Trial Court in its procedure
of appointing Mr. Stelzman when no objection to the appointment was made. We find no
merit to Father’s argument in this regard.
Father further argues that even if the accountant was properly appointed, the Trial
Court erred in taxing all costs of the expert witness to Father. The Trial Court found that
the accountant was necessary in order for the Court to interpret the information provided
by Father and that Mr. Stelzman’s requested fee was reasonable. The Trial Court found as
follows concerning this issue:
Based upon the evidence produced at trial, it was clear that the Father was
the primary residential parent and that the daughter was suffering from
psychological and emotional issues. The Father justifiably sought
professional help in dealing with the daughter’s issues. However, at least
from a financial standpoint, the Father’s approach to obtaining that help can
politely be described as haphazard. He contacted medical providers,
including in house therapy providers such as Trails Carolina and Solstice
East. When he filed this action to recover some of the expenses not covered
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by insurance, he did not know how much he had spent. It turned out that he
sent the daughter to the inpatient facilities without even checking with the
insurance companies as to whether they would pay. He just assumed it would
be covered. The Father’s sister tried to help and was able to put together
some figures to be submitted. However, there was a great deal the sister
could not do. It was necessary to have an expert untangle and explain the
mess the Father had created. It was his fault that the records necessitated an
expert. Therefore, he should pay the fees generated by the expert.
Father also argues on appeal that he should not have to pay for the accountant
because the accountant was not necessary. However, we note that the decision whether or
not to appoint an expert witness or a special master is “within the discretion of the trial
court.” Blackwood v. Martin, No. W2000-01573-COA-R3-CV, 2002 WL 1751238, at *2
(Tenn. Ct. App. Jan. 16, 2002). Considering the amount of records and medical bills before
the Trial Court, we do not find that the Trial Court abused its discretion in appointing Mr.
Stelzman to review the information before the Trial Court. Tennessee Rule of Evidence
706(b) states that “the compensation shall be paid by the parties in such proportion and at
such time as the court directs and thereafter charged in like manner as other costs.” We
find no abuse in the Trial Court’s discretion in requiring Father to pay for the entire fee of
Mr. Stelzman upon its finding that Father’s actions had necessitated the expert.
We next address whether the Trial Court erred by finding that Father was
responsible for $46,350 of the amount of total medical bills because he had failed to seek
authorization from the insurance company prior to treatment, which caused the insurance
company to deny the claims. The Trial Court found that these uncovered medical expenses
could have been avoided by Father. According to Father, the Trial Court erred by
deducting these uncovered medical expenses from the total amount of medical bills. We
disagree. Father acknowledged during trial that he had not obtained preapproval for many
of the medical services. The Trial Court found in its order that Father had acknowledged
the inpatient treatment was not emergent and that he could have attempted to obtain
approval from the health insurance provider prior to treatment. Upon the Trial Court’s
finding that these uncovered expenses could have been avoided by Father, the Trial Court
deducted one-half of this amount from Mother’s financial obligation, leaving financial
responsibility for those expenses with Father. We do not find that the Trial Court erred in
this regard and, therefore, affirm its finding that one-half of these uncovered medical
expenses be deducted from the amount Mother was required to pay toward the medical
expenses.
Father, however, also argues on appeal that if this Court determines that the Trial
Court did not err by deducting the amount of medical expenses that he could have avoided,
then the amount of the deduction by the Trial Court was incorrect. According to Father,
he only paid $29,685, not the $46,350 that was billed by Trails Carolina and that only the
$29,685 should be deducted from the amount of medical expenses as that was the amount
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he was asking for as to reimbursement. The Trial Court relied on Mr. Stelzman’s figure of
a total of $179,295.62 of total medical expenses paid by Father, which included a total of
$58,860 paid to Trails Carolina.
We agree with Father that only the amount he actually paid and is included in the
amount he seeks reimbursement for should be deducted from the amount of medical
expenses owed. However, Father’s figure of $29,685 appears to include only payments
made for services rendered from December 18, 2014 through February 12, 2015. Mr.
Stelzman’s report included $46,350 to Trails Carolina that had been denied by insurance
due to Father’s failure to obtain pre-authorization for services that had been rendered from
November 1, 2014 through November 16, 2014 and from December 1, 2014 through
February 11, 2015. The Trial Court found Father to be responsible for this amount.
Father’s figure of $29,685 appears to be leaving out expenses accrued from services
rendered by Trails Carolina from November 1, 2014 until December 17, 2014 that are
included on Mr. Stelzman’s report. The evidence presented, including Mr. Stelzman’s
report and exhibits, does not preponderate against the Trial Court’s finding that the $46,350
was included in the amount Father paid toward the Child’s medical expenses and for which
he is requesting reimbursement. We find this issue not well taken and affirm the Trial
Court in this regard.
We next address Father’s argument concerning the amount the Trial Court deducted
from the total amount of medical expenses upon its finding that the expenses for Denials
Management and Mountain Management were not medical expenses. In its order, the Trial
Court found that evidence had been presented demonstrating that $8,167.06 in expenses
accrued from these companies. However, Father argues that only $1,781.76 should have
been deducted as that is all he is asking for to be reimbursed. It is unclear how the Trial
Court calculated the figure of $8,167.06. According to Mother, that figure is close to the
total amount of bills from not only Denials Management and Mountain Management, but
also charges from an educational consultant and expenses for the Child’s travel that Mother
had previously argued were not medical. According to Mother, these amounts totaled
$8,161.06 and the Trial Court made a “slight calculation mistake” but that it intended to
exclude these amounts as being non-medical expenses. However, the Trial Court did not
include those additional expenses in its order as being excluded, leaving only the expenses
related to “Mountain Management and Denials, Inc,” the companies which Father had
hired to “fight with the insurance companies.” We find that the amount related to payments
made to Mountain Management and Denials Management was only $1,781.76 in Mr.
Stelzman’s report, and the Trial Court’s deduction from the total medical expenses should
be modified to reflect only a deduction for these expenses. When reducing the amount of
medical expenses by $1,781.76 instead of $8,167.06, the Trial Court’s judgment against
Mother would increase to $38,759.11. We therefore, modify the Trial Court’s judgment to
reflect a monetary judgment against Mother of $38,759.11 owed to Father for her portion
of the Child’s medical expenses.
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We next address whether the Trial Court erred by ordering that Mother could make
installment payments to Father. In its January 2020 order, the Trial Court found that
Mother owed Father $35,566.49 in unpaid uncovered medical expenses, which she should
pay to Father “at the rate of $100.00 per month.” Tennessee Code Annotated § 26-2-216
(2017) provides as follows in pertinent part:
(a)(1) After any judgment has been rendered in any court and the time
to appeal therefrom has elapsed without such an appeal having been
made, the judge of the court which rendered the judgment may, either before
or after the issuance and service of garnishment, upon written consent of the
parties or upon written motion of the judgment debtor, after due notice and
after full hearing of such motion, enter an order requiring such judgment
debtor to pay to the clerk of the court a certain sum of money weekly,
biweekly or monthly to apply upon such judgment. The filing of such motion
by the debtor shall stay the issuance, execution or return of any writ of
garnishment against wages or salary due the judgment debtor or any other
funds belonging to the judgment debtor sought to be substituted to the
satisfaction or payment of or upon such judgment during the period that such
judgment debtor complies with the order of the court. Such motion of the
judgment debtor shall be supported by an affidavit stating the debtor’s
inability to pay such debt with funds other than those earned by the debtor as
wages or salary, or received from other sources in such amounts as to
necessitate or make equitable installment payments, the name and address of
the debtor's employer, or other source of funds and amount of such wages or
salary, and the date of payment thereof.
(2) Notwithstanding subdivision (a)(1), upon written consent of the
parties, the hearing of the judgment debtor’s motion to pay the judgment in
installments may be held on the same date that such judgment is entered.
(Emphasis added.)
In this case, when the Trial Court ordered the installment payments, the judgment
had not become final with the appeal period elapsing without an appeal being initiated and
no motion or affidavit had been filed requesting such installment payments by Mother.
Although subsection (2) allows a hearing to be held on a motion to allow installment
payments on the same date the judgment is entered, there was no such written consent of
the parties. The Trial Court’s order allowing Mother to make installment payments toward
the judgment was premature. We, therefore, vacate the Trial Court’s order concerning
installment payments to be addressed by the Trial Court when its order has become final
and upon proper motion by Mother.
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We next address Mother’s issue on appeal concerning whether the Trial Court erred
by finding that Mother was responsible for half the uncovered medical expenses
unilaterally incurred by Father. As part of her argument, Mother states that agreed
parenting plans should be interpreted according to contract principles. We agree that
agreed parenting plans generally should be interpreted as other written agreements. See
Pierce v. Pierce, No. W2017-02447-COA-R3-CV, 2018 WL 6070025, at *7 (Tenn. Ct.
App. Nov. 19, 2018); see also Sharp v. Stevenson, No. W2009-00096-COA-R3-CV, 2010
WL 786006, at *6 (Tenn. Ct. App. Mar. 10, 2010) (“[O]ur holding reflects the intention of
the legislature that parenting plans be interpreted as binding agreements between two
parents who, although divorced, continue in their roles of parents.”). However, as our
Supreme Court has stated, “[w]hen the husband and wife contract with respect to the legal
duty of child support, upon approval of that contract, the agreement of the parties becomes
merged into the decree and loses its contractual nature.” Penland v. Penland, 521 S.W.2d
222, 224 (Tenn. 1975). In Penland, the Court held that “it is clear that the reason for
stripping the agreement of the parties of its contractual nature is the continuing statutory
power of the Court to modify its terms when changed circumstances justify.” Id. Upon
approval of the permanent parenting plan by the Trial Court, the agreed parenting plan
became a judgment of the Trial Court, and the Trial Court retained the authority to modify
the terms of the child support obligation. See Eberbach v. Eberbach, 535 S.W.3d 467, 474
(Tenn. 2017). In this case, Mother’s statement to Father that she could not afford to pay
the treatment did not modify her obligation under the permanent parenting plan that had
been approved and adopted by the Trial Court without further action to modify the plan in
court.
Although the Trial Court declined to hold Mother in contempt for not paying half
of the Child’s uncovered medical expenses, the Trial Court found that Mother was
responsible under the parties’ permanent parenting plan for half of the expenses. We agree.
Mother argues that Father could not unilaterally incur major medical expenses on behalf
of the Child and require Mother to pay for half of the expenses. In support of her argument,
Mother cites to Hilman v. Hilman, No. M2002-00898-COA-R3-CV, 2003 WL 21766254,
at *3 (Tenn. Ct. App. July 31, 2003). However, Hilman is distinguishable because the
parent in Hilman had not been provided with notice of the treatment, an opportunity to
provide input on the medical treatment, or the option of involving the court in the treatment
decision. In the present case, Mother was provided with prior notice of the treatment at
Trails Carolina and Solstice East, had conversations with treatment providers at those
facilities, and had signed the consent form for the Child to attend treatment at Trails
Carolina. Furthermore, Mother testified that she had no problem with the Child receiving
treatment at the facilities, just her financial obligation from such facilities. According to
the Trial Court, if Mother disagreed with the treatment proposed for the Child, Mother
could have requested a second opinion. Mother did not request a second opinion under the
plan. Mother also argues that if Father had wanted Mother to contribute to the Child’s
treatment, the plan provided that the parties could mediate the issue. We note, however,
that either party could have requested mediation under the plan, but neither did.
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Mother further argues that Father had failed to prove that the expenses were
“reasonable and necessary medical expenses.” As previously pointed out, Mother had
notice that the Child was going to residential treatment and signed paperwork consenting
to the treatment at Trails Carolina. As the Trial Court found, Mother may have been able
to avoid these medical expenses if she had gotten a second opinion as she was allowed
under the permanent parenting plan. If Mother believed the medical expenses were
unreasonable and unnecessary or disagreed with the treatment plan, she could have
requested a second opinion or mediation to resolve the conflict, but she did neither.
As part of this argument, Mother argues that a portion of the residential treatment
programs were not considered “medical expenses.” In her brief, Mother argues that
“[w]hile undoubtedly the Child’s experiences at the three therapeutic wilderness programs
were beneficial, that does not make all of the charges from those programs ‘medical
expenses.’” In his expert report, Mr. Stelzman concluded that Father had paid a total of
$179,295.62 in medical expenses. The Trial Court found Mr. Stelzman to be a credible
witness at trial. In calculating Mother’s portion of the expenses, the Trial Court deducted
certain expenses upon its determination that they were not medical expenses and not
subject to reimbursement. The remaining expenses were clearly determined by the Trial
Court to be medical expenses.
Furthermore, Mother never raised the specific issue of whether a portion of the
expenses from the three residential programs were considered non-medical in nature during
the trial or in her motion to alter or amend. During trial, Mother argued only that the
expenses for the educational consultant, Right Direction Crisis Intervention, Denials
Management, and Mountain Management were non-medical expenses. Mother only
mentioned that a portion of the expenses for the residential programs were non-medical in
a brief she filed while the parties’ motions to alter or amend were pending, upon request
from the Trial Court concerning the issue of whether there was a duty of good faith and
fair dealing. In this brief, she states that Father requested reimbursement for charges not
considered therapeutic and that Father made “no effort to differentiate between educational
and therapeutic treatment.” Mother provided the Trial Court with no further detail
concerning the alleged educational nature of portions of the program expenses.
We generally will not consider issues on appeal that have not been properly raised
in the proceedings below. See Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (citing
In re M.L.P., 281 S.W.3d 387, 394 (Tenn. 2009)). This Court has held that an issue raised
in the trial court for the first time in a post-judgment motion to alter or amend and
supplement to such motion was waived on appeal when the argument advanced a new legal
theory, rather than simply correcting an error of law. See Cent. Parking Sys. of Tennessee,
Inc. v. Nashville Downtown Platinum, LLC, No. M2010-01990-COA-R3-CV, 2011 WL
1344633, at *4 (Tenn. Ct. App. Apr. 7, 2011) (“A Rule 59 motion should not be used to
raise or present new, previously untried or unasserted theories or legal arguments.”).
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Mother’s argument that a portion of these residential program expenses were not medical
in nature was a new legal theory that she had not argued during trial. We find that Mother’s
minimally-addressed argument concerning whether a portion of the medical expenses are
educational in nature was not properly raised in the proceedings below, and is, therefore,
waived on appeal.
Additionally, Mother claims that Father had not done all he could to obtain “the
maximum amount possible” from the insurance company in violation of good faith and fair
dealing. We note, however, that Father had hired companies to work with the insurance
companies in order to receive as much as possible from the insurance company. There is
no evidence to support Mother’s argument that Father had not attempted to obtain the
maximum amount possible from his insurance provider. We find this argument to be
without merit. The Trial Court found that Mother was required to pay half of the Child’s
uncovered medical expenses pursuant to the agreed permanent parenting plan, and we
agree. We, therefore, affirm the Trial Court’s judgment in this regard.
We next address whether the Trial Court erred by crediting the proceeds from the
insurance policy obtained by Mother to the entire amount of medical expenses instead of
only to Mother’s obligation specifically. The permanent parenting plan agreed to by the
parties in the divorce action, and subsequently approved by the Trial Court, stated the
following: “In the event there are medical expenses not covered by medical insurance, the
parents will share those costs equally.” Mother argues that because she was not required
to maintain health insurance for the Child, the proceeds from the policy she maintained
should go to her benefit and not the overall total of medical expenses. This is not consistent
with the wording of the provision at issue in the agreed permanent parenting plan which
states that the parents will share equally any medical expenses not covered by medical
insurance. The plan could have easily provided that Mother would receive credit for the
proceeds from any insurance policy she maintained for the Child. However, the provision
did not provide as such. Therefore, we affirm the Trial Court’s decision applying the
proceeds of Mother’s insurance policy to the total amount of medical expenses prior to
dividing them between the parties.
We next address whether the Trial Court erred by declining to award Father
attorney’s fees. Tennessee Code Annotated § 36-5-103(c) (Supp. 2020) provides as
follows:
A prevailing party may recover reasonable attorney’s fees, which may be
fixed and allowed in the court’s discretion, from the non-prevailing party in
any criminal or civil contempt action or other proceeding to enforce, alter,
change, or modify any decree of alimony, child support, or provision of a
permanent parenting plan order, or in any suit or action concerning the
adjudication of the custody or change of custody of any children, both upon
the original divorce hearing and at any subsequent hearing.
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(Emphasis added.)
An award of attorney’s fees pursuant to the above statute is discretionary, and we
will not reverse a trial court’s decision concerning attorney’s fees except with an abuse of
that discretion. See Tenn. Code Ann. § 36-5-103(c) (Supp. 2020). We note that the Trial
Court did not specifically deny Father’s request for attorney’s fees, but it did not provide
in its order an award of attorney’s fees to Father. We will not substitute our judgment for
that of the Trial Court, and we find no abuse of discretion in the Trial Court’s decision not
to award attorney’s fees to Father, especially considering the Trial Court declined to find
that Mother’s actions were contemptuous as requested by Father’s petition.
Despite not including it in his statement of the issues on appeal, Father takes issue
with how the Trial Court divided court costs of the proceedings below. At trial, the Trial
Court assessed seventy-five percent of the court costs to Father and twenty-five percent to
Mother. This Court has held that a trial court’s assessment of court costs, pursuant to
Tennessee Rule of Civil Procedure 54.04, is “within the sound discretion of the trial judge.”
See Noland Co. v. Crye, 726 S.W.2d 531, 532 (Tenn. Ct. App. 1986). We see no abuse of
that discretion in this case, particularly in light of the Trial Court’s decision not to hold
Mother in contempt as Father had requested. We therefore, affirm the Trial Court’s
assessment of costs in the proceedings below.
Additionally, both Mother and Father have requested an award of attorney’s fees
incurred during this appeal. An award of attorney’s fees based on Tennessee Code
Annotated § 36-5-103(c) is at our discretion. See Eberbach, 535 S.W.3d at 477 (“[W]hen
appellate attorney’s fees are requested pursuant to statutes . . . which expressly permit the
court to exercise its discretion, the Court of Appeals should analyze any such request by
exercising its discretion to determine whether an award to the prevailing party is
appropriate.”). In light of all relevant considerations, including that each party was
partially successful on appeal, we exercise our discretion and decline to award attorney’s
fees to either party on appeal.
Conclusion
Based on the foregoing, we vacate the portion of Trial Court’s judgment allowing
installment payments as being premature. We modify the judgment against Mother to
$38,759.11 upon our determination that the amount paid by Father to Mountain
Management and Denials Management was only $1,781.76. We affirm the Trial Court’s
judgment in all other respects. We deny both parties’ requests for attorney’s fees incurred
during this appeal. This cause is remanded to the Trial Court for collection of the costs
assessed below. The costs on appeal are assessed one-half against the appellant, John
Pollard Hoover, Jr., and his surety, if any, and one-half against the appellee, Sara Marie
Poe Mossbeck.
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s/ D. Michael Swiney
D. MICHAEL SWINEY, CHIEF JUDGE
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