Amy Elizabeth Luker v. Terry Eugene Luker ( 2021 )

12/22/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 10, 2021 Session
AMY ELIZABETH LUKER v. TERRY EUGENE LUKER
Appeal from the Chancery Court for Williamson County
No. 46595 Robert E. Lee Davies, Senior Judge
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No. M2021-00758-COA-R3-CV
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This appeal involves a finding of civil contempt pursuant to Tennessee Code Annotated
section 29-9-104 for Husband’s failure to adhere to an alimony provision in a marital
dissolution agreement incorporated in a final decree of divorce. The trial court awarded
Wife attorney’s fees and expenses associated with the enforcement of the alimony
provision in the marital dissolution agreement and finding of civil contempt pursuant to
Tennessee Code Annotated sections 29-9-104 and 36-5-103(c). Husband appeals. We
affirm and remand for further proceedings consistent with this opinion.
Tenn. R. App. R. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
and Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Adrian Altshuler and Venus Niner, Franklin, Tennessee, for the appellant, Terry Eugene
Luker.
Sean R. Aiello, Franklin, Tennessee, for the appellee, Amy Elizabeth Luker.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall
be designated “MEMORANDUM OPINION”, shall not be published, and shall not be
cited or relied on for any reason in any unrelated case.
I. FACTS & PROCEDURAL HISTORY
On October 23, 2017, the parties executed a marital dissolution agreement (“MDA”)
and permanent parenting plan (“PPP”). On January 5, 2018, the trial court entered a final
decree of divorce approving the MDA and PPP. The MDA required Terry Eugene Luker
(“Husband”) to secure his alimony obligation with a life insurance policy on his life in the
amount of $1,260,000 with Amy Elizabeth Luker (“Wife”) designated as beneficiary
thereon for the duration of the alimony obligation. Additionally, Husband was allowed to
reduce the face value of the policy by $60,000 each year. Husband was required to provide
Wife with a copy of this policy within thirty days of entry of the final decree, and every
year thereafter on the anniversary of the final decree.
On July 13, 2020, Wife filed a petition against Husband seeking enforcement of the
MDA, mandatory injunctive relief, and findings of civil contempt pursuant to Tennessee
Code Annotated section 29-9-104. Husband filed an answer on August 26, 2020. On
March 16, 2021, Husband’s attorney emailed a copy of an unsigned application for
insurance to Wife’s attorney. The proposed policy was to be held in Wife’s name through
Ohio National Financial Services with a policy issue date of October 28, 2020. On March
19, 2021, Husband’s attorney emailed a copy of the signature page for the life insurance
policy to Wife’s attorney. On March 31, 2021, Husband’s attorney emailed to Wife’s
attorney a copy of an additional signature page confirming Wife as a designated
beneficiary, thereby satisfying the MDA’s alimony provision.
On April 30, 2021, a hearing on the petition took place. On May 27, 2021, the trial
court entered an order granting Wife’s request for an award of attorney’s fees and expenses
associated with the enforcement of the alimony provision in the MDA and finding of civil
contempt pursuant to Tennessee Code Annotated sections 29-9-104 and 36-5-103(c).
Therefore, the trial court predicated its award of attorney’s fees and expenses on two
independent legal theories. Furthermore, the trial court specifically found that:
[A]lthough Husband had the ability to, he did not maintain the requisite life
insurance policy designating Wife as beneficiary for either 2019 or 2020 and
did not obtain the same until October 28, 2020 after the filing of this present
Petition. It is further undisputed that Husband did not provide complete
proof of this coverage until March 31, 2021. The Court finds that Husband
by act of omission, violated the Court’s January 5, 2018 order.
As such, the trial court found Husband to be in civil contempt pursuant to Tennessee Code
Annotated section 29-9-104 for his “willful and actual failure to adhere to the clear, lawful,
and unambiguous” alimony provision in the MDA by not obtaining life insurance naming
Wife as beneficiary to secure his alimony obligation until October 28, 2020, and not
providing Wife proof of such continuing coverage until March 31, 2021. Husband filed a
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motion to alter or amend the judgment, which the trial court denied. Husband then filed a
motion to vacate the final order and set the motion to alter or amend for a hearing which
was denied by the trial court by order entered on July 6, 2021. That same day, Husband
timely filed his notice of appeal.
II. ISSUES PRESENTED
Husband presents the following issues for review on appeal, which we have slightly
restated:
1. Whether the trial court erred by entering a written opinion that contradicts the trial
court’s ruling from the bench; and
2. Whether the trial court erred when it found Husband in contempt.
Wife presents the following issues for review on appeal, which we have slightly
restated:
1. Whether Wife is entitled to an award of attorney’s fees associated with the cost of
defending against this appeal.
For the following reasons, we affirm the decision of the trial court and remand for further
proceedings consistent with this opinion.
III. STANDARD OF REVIEW
In non-jury cases we review the trial court’s findings of fact de novo with a
presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App.
P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review
questions of law de novo with no presumption of correctness. Eberbach v. Eberbach, 535
S.W.3d 467, 473 (Tenn. 2017).
When a trial court makes findings of civil contempt, “the factual issues of whether
a party violated an order and whether a particular violation was willful, are reviewed de
novo, with a presumption of correctness afforded to the trial court’s findings.” Lovlace v.
Copley, 418 S.W.3d 1, 17 (Tenn. 2013) (citing Konvalinka v. Chattanooga-Hamilton Cty.
Hosp. Auth., 249 S.W.3d 346, 356-57 (Tenn. 2008)). “A trial court’s decision to hold a
person in civil contempt is reviewed using the abuse of discretion standard.” Id. “A court
abuses its discretion when it causes an injustice to the party challenging the decision by (1)
applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or
(3) basing its decision on a clearly erroneous assessment of the evidence.” Lee Med., Inc.
v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citing State v. Ostein, 293 S.W.3d 519, 526
(Tenn. 2009); Konvalinka, 249 S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic
Diocese of Nashville, 154 S.W.3d 22, 42 (Tenn. 2005)).
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IV. DISCUSSION
A. Contradiction
Husband first argues that the trial court erred by entering a written opinion that
contradicts the trial court’s ruling from the bench. As Wife recognized in her brief,
Husband’s brief lacked any legal argument on the first issue presented.2 Husband’s brief
was devoid of material discussion as to the issue presented and did not comply with the
brief requirements of Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure. Tenn.
R. App. P. 27(a)(7). “Courts have routinely held that the failure to . . . cite relevant
authority in the argument section of the brief as required by Rule 27(a)(7) constitutes a
waiver of the issue.” Burton v. Barna, No. M2015-00132-COA-R3-CV, 2016 WL 769545,
at *2 (Tenn. Ct. App. Feb. 26, 2016) (citing Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct.
App. 2000)). Because the appellant’s brief did not comply with Rule 27 of the Tennessee
Rules of Appellate Procedure, we held in Burton that we were unable to consider the issues
he raised on appeal. Id. at *2-3. Likewise, we are unable to consider the first issue
presented by Husband on appeal.
B. Civil Contempt
Husband’s only remaining issue is whether the trial court erred when it found him
in contempt. At the outset, we note that Husband challenges only the finding of civil
contempt, and not the trial court’s award of attorney’s fees under Tennessee Code
Annotated sections 29-9-104 and 36-5-103(c). As such, regardless of our finding on the
civil contempt matter, the outcome of this appeal would in no way impact the relief granted
by the trial court. Wife characterizes this appeal as only seeking to remove the mere label
of civil contempt. In response, Husband argues that a finding of civil contempt is more
than a mere label. Husband states that he is a businessman who relies on his goodwill and
good reputation, and court records are public records. He further argues that if he was not
in contempt at the time of the hearing, the trial court’s ruling should reflect that fact.
“Contempt proceedings are traditionally classified as either ‘civil’ or [‘]criminal’;
however, our Supreme Court has noted that ‘contempt proceedings are neither wholly civil
or criminal in nature and may partake of the characteristics of both.’” Cremeens v.
Cremeens, No. M2014-01186-COA-R3-CV, 2015 WL 4511921, at *6 (Tenn. Ct. App. July
24, 2015) (quoting Baker v. State, 417 S.W.3d 428, 435 (Tenn. 2013)). “Although both
civil and criminal contempt involve punishment, ‘[i]t is not the fact of punishment, but
2
Husband addressed this issue in his reply brief, but we have held “that deficiencies in initial briefs
may not be corrected in reply briefs.” Shaw v. Gross, No. W2017-00441-COA-R3-CV, 2018 WL 801536,
at *4 n.5 (Tenn. Ct. App. Feb. 9, 2018) (citing Withers v. Withers, No. W2016-01663-COA-R3-CV, 2018
WL 625119, at *2 n.2 (Tenn. Ct. App. Jan. 30, 2018)).
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rather its character and purpose, that often serve to distinguish between the two classes of
cases.’” Id. (quoting Baker, 417 S.W.3d at 435). “Civil contempt occurs when a person
does not comply with a court order and an action is brought by a private party to enforce
rights under the order that has been violated.” Doe v. Bd. of Prof. Resp. of Sup. Ct. of
Tenn., 104 S.W.3d 465, 473 (Tenn. 2003); see Black v. Blount, 938 S.W.2d 394, 398 (Tenn.
1996); Robinson v. Air Draulics Eng’g Co., 377 S.W.2d 908, 912 (Tenn. 1964); State v.
Turner, 914 S.W.2d 951, 955 (Tenn. Crim. App. 1995). In Cremeens, this Court
thoroughly detailed the character and purpose of civil contempt:
Civil contempt proceedings may serve two purposes. One purpose is to
coerce future compliance with a trial court’s order. When the goal of
punishing a party for civil contempt is to obtain his or her compliance in the
future, civil contempt is only available if the party has the present ability to
comply with the trial court’s order.
Civil contempt may also serve a compensatory function, providing “relief to
a party who has suffered unnecessarily as a result of contemptuous conduct.”
When the contempt at issue is the performance of a forbidden act, “the person
may be imprisoned until the act is rectified by placing matters and person in
status quo, or by the payment of damages.” In cases of compensatory civil
contempt, even when the conduct at issue has ceased, the disobedience of the
court’s order is not “rectified” until the offending party pays damages to
make the other party whole.
In the context of civil contempt, an award of attorney’s fees is appropriate
because it serves to compensate the prevailing party for the expenses incurred
to obtain compliance with a court order.
Cremeens, 2015 WL 4511921, at *7 (citations and footnote omitted).
As the trial court in this case stated, civil contempt may consist of the failure to
perform an act or the performance of a forbidden act. Compare Tenn. Code Ann. § 29-9-
104, with Tenn. Code Ann. § 29-9-105. The trial court found Husband to be in civil
contempt pursuant to Tennessee Code Annotated section 29-9-104 for his “willful and
actual failure to adhere to the clear, lawful, and unambiguous” alimony provisions in the
MDA by not obtaining life insurance naming Wife as beneficiary to secure his alimony
obligation until October 28, 2020, and not providing her proof of such continuing coverage
until March 31, 2021. Under Tennessee Code Annotated section 29-9-104, the statutory
language regarding omissions in a contempt of court action states:
(a) If the contempt consists in an omission to perform an act which it is yet
in the power of the person to perform, the person may be imprisoned until
such person performs it.
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(b) The person or if same be a corporation, then such person or corporation
can be separately fined, as authorized by law, for each day it is in contempt
until it performs the act or pays the damages ordered by the court.
Tenn. Code Ann. § 29-9-104.
We find Stark v. Stark, No. W2019-00650-COA-R3-CV, 2020 WL 507644 (Tenn.
Ct. App. Jan. 31, 2020), to be instructive in this case. In that case, the appellant was held
in civil contempt and incarcerated for four hours until she purged herself of the contempt.
Id. at 4. On appeal, the appellant argued that the issue of contempt was not moot for three
reasons: “(1) the contempt finding was a ‘blight’ on her record, (2) the contempt finding
might be used against her in the divorce trial, and (3) an issue of attorney’s fees had been
reserved in the court.” Id. at *6. We explained:
This Court has repeatedly held that issues raised on appeal regarding civil
contempt findings are moot if the contemnor has already purged himself or
herself of contempt by the time the issue reaches this Court. “A case, or an
issue in a case, becomes moot when the parties no longer have a continuing,
real, live, and substantial interest in the outcome.” Hooker v. Haslam, 437
S.W.3d 409, 417 (Tenn. 2014). For instance, in Simpkins v. Simpkins, 374
S.W.3d 413, 417 (Tenn. Ct. App. 2012), a husband was found in civil
contempt for failure to pay health insurance premiums and failure to provide
proof of life insurance. On appeal to this Court, the husband argued that the
trial court erred by finding him in civil contempt without finding that he had
the ability to comply with the orders he allegedly violated. Id. Because the
husband had already “cured his contemptuous conduct” by paying the
premiums and providing proof of insurance, we held that “the issue of civil
contempt is moot.” Id. at 418.
In Pfister v. Searle, No. M2000-01921-COA-R3-JV, 2001 WL 329535, at *2
(Tenn. Ct. App. Mar. 28, 2001), the trial court found a mother in civil
contempt and ordered her jailed until she delivered the parties’ child for
visitation. The mother was released when the child was produced the next
day. Id. at *4. On appeal, the mother argued that the evidence did not support
a finding that she willfully violated the order because it was
confusing. Id. We held that “because the [mother] complied with the court's
order to produce her child, thereby purging her civil contempt, that judgment
is now moot, and we decline to address it.” Id. at *1. “The validity of the
trial court's order finding her in civil contempt [was] moot.” Id. at *4. See
also In re A.G., No. M2007-0799-COA-R3-JV, 2009 WL 3103843, at *5
(Tenn. Ct. App. Sept. 28, 2009) (concluding that a mother's challenge to her
sentence for criminal contempt was moot when she had already served the
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sentence and it was “unclear what meaningful relief lies within the power of
this court to give her at this point”); Boggs v. Boggs, No. M2006-00810-
COA-R3-CV, 2007 WL 2353156, at *5 (Tenn. Ct. App. Aug. 17,
2007) (deeming the appellant's arguments regarding two civil contempt
findings moot where the appellant paid the amount ordered and was released
from custody).
Id. at *5.
Although a case may be moot, we noted that there are “exceptional circumstances”
when it is appropriate to address the merits of an issue:
(1) when the issue is of great public importance or affects the administration
of justice; (2) when the challenged conduct is capable of repetition and
evades judicial review; (3) when the primary dispute is moot but collateral
consequences persist; and (4) when a litigant has voluntarily ceased the
challenged conduct.
Stark, 2020 WL 507644, at *5 (quoting City of Memphis v. Hargett, 414 S.W.3d 88, 96
(Tenn. 2013)). We explained that “[t]he only exception arguably relevant in this case is
‘when the primary subject of the dispute has become moot but collateral consequences to
one of the parties remain.’” Id. (citing Hooker, 437 S.W.3d at 417-18). Ultimately, in
considering the appellant’s arguments, this Court declined to apply the collateral
consequences exception to the mootness doctrine absent a showing by the appellant of
specific prejudicial collateral consequences resulting from the trial court’s finding of
contempt. Id. at *7; see Hudson v. Hudson, 328 S.W.3d 863, 865-66 (Tenn. 2010)
(dismissing an appeal as moot because the father “ha[d] not shown that we should refrain
from dismissing his appeal as moot” by describing “prejudicial collateral consequences
necessary to invoke this exception to the mootness doctrine”).
As stated previously, the appellant in Stark argued that the finding of contempt
would be a “blight” on her record and would possibly be used against her in her divorce
trial. Id. at *6. We found those arguments to be unconvincing. Id. We cited Bradford v.
Bradford, No. 86-262-II, 1986 WL 2874, at *2 (Tenn. Ct. App. Mar. 7, 1986), and State v.
Jenkins, No. C/A 157, 1989 WL 124950, at *1 (Tenn. Ct. App. Sept. 13, 1989), holding
that “Tennessee courts have not recognized the type of vague and speculative interests
asserted by [the appellant] as sufficient ‘prejudicial collateral consequences.’” Id. In
Bradford, this Court rejected a similar argument to the one raised in Stark. Bradford, 1986
WL 2874, at *2. The appellant in Bradford argued that the issues raised on appeal were
not moot because he “may continue to suffer consequences as a result” of the finding of
contempt. Bradford, 1986 WL 2874, at *2. This Court found that argument “highly
speculative,” and was “not persuaded that the finding of contempt may still have ‘some
practical effect’ in the future which would keep defendant’s case from being moot.” Id.-7-
Additionally, in Jenkins, “an individual was held in contempt for failure to submit to a
paternity blood testing but purged himself of contempt by submitting to the blood test.”
Stark, 2020 WL 507644, at *6 (citing Jenkins, 1989 WL 124950, at *1). On appeal, we
held in Jenkins that the “challenges to the contempt order [were] moot since no meaningful
relief [could] be rendered.” Jenkins, 1989 WL 124950, at *1.
Similarly, Husband argues that he is a businessman who relies on his goodwill and
good reputation, and court records are public records. We find this argument unpersuasive.
Our holding here is consistent with Stark and the case law cited therein, in that Tennessee
courts have not recognized these vague and speculative interests under the collateral
consequences exception to the mootness doctrine. See Stark, 2020 WL 507644, at *6-7;
Jenkins, 1989 WL 124950, at *1; Bradford, 1986 WL 2874, at *2. Therefore, we find this
issue to be moot.3
C. Attorney’s Fees on Appeal
Wife raises one issue on appeal. We reiterate that Husband challenges only the
finding of civil contempt, and not the trial court’s award of attorney’s fees under Tennessee
Code Annotated sections 29-9-104 and 36-5-103(c). Thus, regardless of our finding on the
civil contempt matter above, the outcome of this appeal in no way impacts the relief granted
by the trial court. Wife characterizes this appeal as only seeking to remove the mere label
of civil contempt. For this reason, Wife argues that this appeal is frivolous, and she
presents the issue of whether she is entitled to an award of attorney fees associated with
the cost of defending this appeal. Under Tennessee Code Annotated section 27-1-122, the
statutory language regarding a frivolous appeal reads as follows:
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
3
We note that in Stark, this Court recognized that an entire appeal may not be moot if the trial court
had awarded attorney’s fees in connection with the finding of contempt. Stark, 2020 WL 507644, at *6;
see Dockery v. Dockery, No. E2009-01059-COA-R3-CV, 2009 WL 3486662, at *2 (Tenn. Ct. App. Oct.
29, 2009). It may be necessary to address a contempt finding on appeal due to an outstanding issue
regarding attorney’s fees in relation to the contempt finding. Stark, 2020 WL 507644, at *6.
However, in our case, the trial court predicated its award of attorney’s fees and expenses on two
independent legal theories. The trial court granted Wife’s request for an award of attorney’s fees and
expenses associated with the enforcement of the alimony provision in the MDA and finding of civil
contempt pursuant to both Tennessee Code Annotated sections 29-9-104 and 36-5-103(c). Moreover,
Husband does not challenge the trial court’s award of attorney’s fees under either Tennessee Code
Annotated section 29-9-104 or section 36-5-103(c). As such, we find that it is not necessary to address the
contempt finding on appeal due to any outstanding issue regarding attorney’s fees. See Stark, 2020 WL
507644, at *6; Sykes v. Sykes, No. M2020-00261-COA-R3-CV, 2021 WL 4948061, at *10 (Tenn. Ct. App.
Oct. 25, 2021) (“[B]ecause the trial court predicated its award of fees on two independent legal theories and
Husband challenges only one of those theories, we affirm the award of fees in light of Husband’s waiver.”).
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appellant, which may include, but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the appeal.
Tenn. Code Ann. § 27-1-122. “The award of damages for the filing of a frivolous appeal
lies within the sound discretion of this Court.” GSB Contractors, Inc. v. Hess, 179 S.W.3d
535, 547-48 (Tenn. Ct. App. 2005) (citing Banks v. St. Francis Hosp., 697 S.W.2d 340,
341 (Tenn. 1985)). When considering whether an appeal is frivolous under Tennessee
Code Annotated section 27-1-122, “[w]e must apply this statute strictly so that we do not
discourage legitimate appeals.” Id. at 547 (citing Davis v. Gulf Ins. Grp., 546 S.W.2d 583,
586 (Tenn. 1977)). “Consequently, imposing a penalty for a frivolous appeal is a remedy
which is to be used only in obvious cases of frivolity and should not be asserted lightly or
granted unless clearly applicable—which is rare.” Henderson v. SAIA, Inc., 318 S.W.3d
328, 342 (Tenn. 2010); see, e.g., Wells v. Sentry Ins. Co., 834 S.W.2d 935, 938-39 (Tenn.
1992); Davis, 546 S.W.2d at 586.
The Tennessee Supreme Court has explained that “[a]n appeal is deemed frivolous
if it is devoid of merit or if it has no reasonable chance of success.” GSB Contractors, Inc.,
179 S.W.3d at 547 (citing Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App.
2001)). As previously discussed, Husband’s brief on appeal lacked any legal argument on
the first issue presented. His brief was devoid of material discussion as to the issue
presented and does not comply with the brief requirements of Rule 27(a)(7) of the
Tennessee Rules of Appellate Procedure. Tenn. R. App. P. 27(a)(7). As for the second
issue, we concluded that the issue was moot. Because Husband did not challenge the trial
court’s award of attorney’s fees under either Tennessee Code Annotated section 29-9-104
or section 36-5-103(c), this appeal sought only the removal of the label of civil contempt.
Therefore, we conclude that this appeal is frivolous. We therefore award Wife damages
against Husband, including reasonable attorney’s fees, the amount of which shall be
determined by the trial court upon remand.
V. CONCLUSION
For the aforementioned reasons, we affirm the decision of the trial court. The case
is remanded for further proceedings consistent with this opinion. Costs of this appeal are
taxed to the appellant, Terry Eugene Luker, for which execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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