S.A.M.D. v. J.P.D. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 22, 2013 Session
S. A. M. D. v. J. P. D.
Appeal from the Circuit Court for Shelby County
No. CT00543806 Donna M. Fields, Judge
No. W2013-00314-COA-R3-CV - Filed September 30, 2013
Appellant/Mother appeals the trial court’s post-divorce modification of Appellee/Father’s
child support obligation, and its finding that Appellant was guilty of various acts of criminal
contempt. Appellant/Mother also appeals the trial court’s admission of certain evidence. We
conclude that the trial court erred in addressing, sua sponte, the issue of modification of
Appellee/Father’s child support obligation in the absence of a petition for modification as
required by Tennessee Code Annotated Section 36-5-101(f)(1). Accordingly, we reverse
the modification of child support. The order of the trial court is otherwise affirmed. Father’s
request for attorney’s fees incurred in defense of this appeal is granted based upon provisions
in the parenting plan and marital dissolution agreement. Affirmed in part; reversed in part;
and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in
Part; Reversed in Part; and Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
AND H OLLY M. K IRBY, J., joined.
Drayton Durell Berkley, Memphis, Tennessee, for the Appellant, S. A. M. D.
Vickie Hardy Jones, Memphis, Tennessee, for the Appellee, J. P. D.
OPINION
Issues of post-divorce modification of the primary residential parent and charges of
criminal contempt were previously appealed to this Court in the case of S.A.M.D. v. J.P.D.,
No. W2011-01256-COA-R3-CV, 2012 WL 5266194 (Tenn. Ct. App. Oct. 25, 2012), perm.
app. denied (Tenn. June 19, 2013) (“S.A.M.D. I”).1 In the interests of consistency and
judicial economy, we review the relevant factual and procedural history as set out in
S.A.M.D. I. Plaintiff/Appellant S. A. M. D. (“Mother”) and Defendant/Appellee J. P. D.
(“Father”) were married in 2001 and had one child during the marriage, a son (“Son” or “the
child”) born in July 2003. S.A.M.D. I, 2012 WL 5266194 at *1. The parties were divorced
by order of February 19, 2010. The final decree of divorce incorporated an agreed marital
dissolution agreement (“MDA”) and a permanent parenting plan (“Parenting Plan”). Id.
Under the Parenting Plan, Mother was designated as the child's primary residential parent.
Id. Because Father travels extensively for work, the Parenting Plan provided he would have
flexible parenting time, six days each month when his work permitted, so long as Mother was
properly notified. Id. On June 7, 2010, Father filed a contempt petition against Mother; the
petition also sought injunctive relief and attorney fees (“June Contempt Petition”). Id. Father
asserted in the petition that Mother had violated the provisions of the Parenting Plan
concerning Father's parenting time. Id. Father also alleged that Mother had violated the
provisions in the MDA that prohibited harassment and threats and prohibited the parties from
placing telephone calls or sending text messages to the other party after 10:00 p.m. except
in the event of an emergency involving the child. Id. Father asked the trial court to hold
Mother in civil and criminal contempt for violating the Parenting Plan and the MDA, as
incorporated into the final decree. Id. He also requested that Mother be required to pay his
attorney fees in connection with the motion. Id.
The trial court held a preliminary hearing on Father's June Contempt Petition on the
day that it was filed. S.A.M.D. I, 2012 WL 5266194 at *2. On June 18, 2010, the trial court
entered a preliminary order, which granted Father's request to exercise parenting time the
week of June 7, 2010. Id. (footnote omitted). To curtail Mother's harassment, the trial court
enjoined her from coming within 500 feet of Father “at any time or any place pending further
orders of the Court.” Id. The trial court noted in the order that it had not prohibited Father's
girlfriend from being around Son, and so specifically permitted her to be present during
Father's parenting time. Id. The order stated that based on Father's petition and the trial
judge's own observations, “Mother's mental condition is in controversy,” and so, sua sponte,
the trial court ordered Mother to undergo a psychiatric evaluation pursuant to Rule 35 of the
Tennessee Rules of Civil Procedure “within 30 days of June 7, 2010.” Id. The order stated:
“The Court requests that the evaluation be completed and a report prepared thereon prior to
1
The trial court entered an order sealing the entire record in this case. For this reason, we refer to
the parties by initials only.
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the hearing on Father's petition.” Id. The trial court set Father's contempt petition for full
hearing on July 2, 2010. Id.
On July 2, 2010, the trial court conducted the hearing as scheduled. S.A.M.D. I, 2012
WL 5266194 at *2. On July 15, 2010, the trial court entered a detailed order on Father’s
June Contempt Petition, which states, in relevant part:
The Court has found Mother in criminal contempt and sentenced
her to a total of 50 days in jail. Based on the fact that Mother
allowed Father to exercise eleven additional days of parenting
time in the month of June 2010, following the filing of Father’s
petition, the Court will suspend Mother’s sentence. However,
if Mother violates any order of the Court in the future, she will
have to serve the sentence imposed on her by this order.
The July 15, 2010 order also further delineated the parties' parenting rights and
obligations. S.A.M.D. I, 2012 WL 5266194 at *2. Specifically, the order permitted Father
to have parenting time for half of the child's summer vacation in 2010 and 2011, with proper
notice to Mother, and specified that the child could travel with Father during his parenting
time, including trips out of the country. Id. It found that Mother had “interfered with Father's
ability to communicate with the child by telephone.” Id. For this reason, the trial court
ordered that Father “shall be allowed to speak with the child by telephone daily,” without
Mother present in the room during the call. Id. Mother was admonished not to coach the
child. Id. The order enjoined both parties from sending text messages or making telephone
calls to the other after 9:30 p.m. Central Standard Time, except if there was an emergency
concerning the child. Id.
The July 15, 2010 order noted that Mother had provided documentation showing that
she had undergone the psychiatric evaluation ordered on June 18, 2010. S.A.M.D. I, 2012
WL 5266194 at *3. It stated that Mother had indicated that a report of the evaluation would
be completed within a week of the hearing. Id. In light of this, the hearing on the results of
Mother's psychiatric evaluation was reset to allow Mother time to obtain and produce a copy
of the report. Id. (footnote omitted). Furthermore, in the July 15, 2010 order, the trial court
noted that Son was in need of speech therapy, and it found that the two days per week that
the child attended such therapy at school was insufficient. Id. The trial court ordered the
parties to “cooperate in scheduling speech therapy for the child” and to “promptly report to
the trial court on the status of the speech therapy.” Id. (footnote omitted). Finally, Mother
was ordered to pay $2,000 of the attorney fees Father incurred in connection with his June
Contempt Petition to be paid “at a rate of $200 per month, commencing August 2, 2010, and
due on or before the second day of each month thereafter.” Id.
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On September 22, 2010, Father filed another contempt petition (“September Contempt
Petition”), alleging that Mother had continued to disregard the trial court's orders. S.A.M.D.
I, 2012 WL 5266194 at *3. Father claimed that Mother had violated the trial court's orders
by: (1) failing to cooperate in scheduling his summer parenting time; (2) interfering with his
daily telephone access to the child on specified dates during the summer; (3) failing to
provide him with a copy of the results of Mother's psychological evaluation; (4) failing to
take the child to speech therapy and failing to communicate with Father regarding the speech
therapy; and (5) failing to pay Father attorney fees as set out in the July 15, 2010 order. Id.
Based on Mother's continued defiance of the trial court's orders, Father asked the trial court
to lift the suspension on Mother's 50-day sentence, and to require Mother to serve that
sentence as stated in the July 15, 2010 order. Id. Father asked the trial court to place Son in
his primary care during Mother's incarceration. Id. Father's September Contempt Petition
also included concerns regarding Son's safety and welfare while in Mother's care. Id. Father
claimed that Mother had been leaving Son, then seven years old, in the care of her son from
a previous relationship, who was 11 years old at the time. Id. He asked the trial court to
enter an order requiring that Son be supervised by an adult until he turns 12 years old. Id.
Father also requested an award of attorney fees incurred in filing the petition. Id.
On November 16, 2010, Father filed another pleading, amending and supplementing
the September Contempt Petition (“Supplemental Contempt Petition”). S.A.M.D. I, 2012 WL
5266194 at *3. This pleading recounted more incidents in which Mother had allegedly
refused to cooperate in scheduling Father's parenting time and had used the child to harass
Father. Id. For example, Father alleged that Mother used Son to call Father at 12:54 a.m.
while Father was working at an out-of-town event with a very early start time the next
morning. Id. Father's Supplemental Contempt Petition noted that there was no emergency
pertaining to the child and asserted that the purpose of the call was simply to harass Father.
Id. The Supplemental Contempt Petition included other concerns about Mother's care of
Son. Id. It alleged that during the 2010–2011 school year, Son had been tardy to school ten
times, had been absent four days, and had missed portions of three additional school days.
Id. All of this, Father argued, demonstrated that Mother was both disregarding the orders of
the trial court and failing to meet her responsibilities to the child. Id.
On December 16 and 17, 2010, the trial court conducted an evidentiary hearing on
Father's September and Supplemental Contempt Petitions. S.A.M.D. I, 2012 WL 5266194at *4. At the hearing, Father admitted that Mother had recently gotten into compliance with
the trial court's orders, but asserted that she refused to do so until he filed his contempt
petitions. Id. For this reason, Father insisted that Mother was guilty of criminal contempt.
Id.
On December 17, 2010, the trial court issued an oral ruling on the pending matters.
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S.A.M.D. I, 2012 WL 5266194 at *8. It first found that Mother was again in criminal
contempt of court for violating the trial court's orders. Id. On the issues related to contempt,
the trial court credited Father's testimony and concluded that Mother's defiance of the court's
prior orders was willful. Id. Contrary to Mother's explanations of her behavior, the trial court
found that Mother did not merely “slip” on some of her obligations: “She didn't comply with
any of [her obligations] in that order. There was compliance after the petition was filed and
when she was facing jail. And that is [Mother's] MO. She only complies when she has to.”
Id. Consequently, the trial court partially lifted the suspension of the 50-day jail sentence for
Mother meted out in the July 15, 2010 order, and it ordered Mother to serve three days in jail
beginning that afternoon. Id.
The trial court next addressed the larger issue of the designation of Son's primary
residential parent. It found that a substantial and material change in circumstances had
occurred, and that designating Father as Son's primary residential parent was in the child's
best interest. S.A.M.D. I, 2012 WL 5266194 at *8. The trial court explained its original
decision to designate Mother as Son's primary residential parent: “This Court did not want
to take this 7-year-old and put him in the custody of a father who travels the world regularly.”
Id. However, after hearing the proof, the trial court concluded that Mother's failure to
cooperate with Father, her failure to follow the trial court's orders, and her failure to
adequately parent the child demonstrated that the change in designation of the primary
residential parent was in the best interest of the child. Id. On the same day, the trial court
entered a preliminary written order incorporating its oral ruling by reference, designating
Father as Son's primary residential parent and awarding Mother liberal alternate parenting
time to be agreed upon by the parties. Id.
On January 18, 2011, the trial court issued a comprehensive order on both of Father's
contempt petitions. S.A.M.D. I, 2012 WL 5266194 at *8. The order states, in pertinent part,
that:
The Court finds that Mother has violated the orders of the Court
and that, pursuant to the terms of this Court’s July 15, 2010
Order, the suspension of the sentence previously imposed on
Mother should be lifted. However, the Court declines to lift the
suspension of the entire sentence and declines to sentence
Mother to further jail time for her subsequent violations of the
Court’s orders, which the Court finds total twenty to thirty
counts. Rather, the Court orders that Mother shall serve three
days in the Shelby County jail, commencing December 17,
2010.
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The order set forth the factual findings underlying the trial court's conclusion that Mother
was in criminal contempt of its prior orders. Id. The trial court found that Mother had: (1)
failed to transport the child to school in a timely manner; (2) failed to timely secure speech
therapy for the child; (3) failed to allow Father to exercise parenting time for half of the
remaining part of the summer of 2010; (4) sent Father harassing text messages; (5)
telephoned Father after hours for non-emergency reasons on September 20, 2010; (6)
interfered with Father's telephone communication with Son; (7) failed to provide Father with
a report of her psychiatric evaluation in a timely manner; and (8) failed to pay Father's
attorney fees in the manner described in the order. Id. Although the order required Mother
to serve three days of her 50-day suspended sentence, by the time the written order was
entered, that sentence had been served. Id.
The order also addressed the change in the designation of primary residential parent.
S.A.M.D. I, 2012 WL 5266194 at *8. The order found that there had been a substantial and
material change in circumstances, and that those changes necessitated a change in the
designation of the child's primary residential parent to Father. Id. The material changes listed
in the order included Mother's interference with Father's relationship with the child, Mother's
failure to get the child to school on time, and Mother's failure to secure speech therapy for
the child in a timely manner following the trial court's June 18 and July 15 orders. Id. The
order stated: “Mother has not lived up to her responsibilities as a parent,” that she “has failed
to place the child's best interests first,” and that “there has been a total failure in parenting
by Mother.” Id. These same findings were the basis for the trial court's ruling that the child's
best interest would be served by designating Father as the primary residential parent. Id.
Finally, the order required Mother to pay Father $10,000 in partial payment of the attorney
fees Father incurred in filing the contempt petitions. Id.
On February 17, 2011, Mother filed a motion to alter or amend or for a new trial
pursuant to Rule 59.04 or Rule 59.02 of the Tennessee Rules of Civil Procedure. Mother
argued in the motion that the trial court erred in finding that Mother had willfully interfered
with Father's summer parenting time, and in finding that she willfully failed to obtain speech
therapy for Son in a timely fashion. S.A.M.D. I, 2012 WL 5266194 at *8. She contended
that there had been no material change in circumstances warranting the designation of Father
as Son's primary residential parent. Id. On February 28, 2011, Mother filed an amended
motion to alter or amend. She submitted new evidence showing that Mother had scheduled
a speech therapy appointment for Son as early as July 21, 2010. Id. Mother also asserted that
Son's circumstances had deteriorated since Father was designated the child's primary
residential parent. Id. Specifically, Mother alleged that Father had enrolled the child in an
unaccredited homeschool program, that he did not send the child's school books to Mother
during her parenting time, and that the environment that Father and his girlfriend provided
the child was a cause of concern for Mother. Id. In a separate motion, Mother asked the trial
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court to stay execution of the January 18, 2011 order pending resolution of her post-trial
motions. Id.
On March 29, 2011, the trial court held a hearing on Mother's motion to alter or
amend or for a new trial. S.A.M.D. I, 2012 WL 5266194 at *8. At the hearing, the trial court
indicated that the allegations by Mother that involved post-judgment facts were not an
appropriate basis for altering its previous decision, but that they would be relevant to a new
change in circumstances, going forward. Id. Thus, the trial court declined to alter or amend
its previous ruling. Id. On April 25, 2011, the trial court entered an order denying Mother's
motion to alter or amend or for a new trial. Id. Mother appealed this order in S.A.M.D. I.
Therein, this Court affirmed both the findings of contempt against Mother and also affirmed
the trial court’s designation of Father as primary residential parent. On June 19, 2011, the
Tennessee Supreme Court denied Mother’s application for permission to appeal this Court’s
ruling in S.A.M.D. I. Thereafter, on July 14, 2011, Mother filed a petition in the trial court
to change custody from Father back to her, for civil and criminal contempt, and for attorney’s
fees against Father. This petition (and Father’s counter-petition, discussed below) give rise
to the instant appeal. In support of her petition to change primary residential custody,
Mother’s petition alleged a material change in circumstances based upon the following
factual averments: (1) although Son had been “performing well” at his private school, Father
had enrolled Son in an “unaccredited home school program;” (2) Father had failed to return
the child’s school books when the child went to Mother’s for visitation, thus precluding
Mother from helping Son with his studies; (3) Father sent harassing text messages to Mother
in violation of the court’s orders; (4) Father delayed seeking medical attention for the child’s
ear infection, and then administered medication to which the child was allergic; (5) Father
made publically defamatory statements against Mother.
On December 2, 2011, Father filed a response to Mother’s petition, denying the
material allegations contained therein. Concurrent with his response, Father filed a counter-
petition for civil and criminal contempt and attorney’s fees against Mother. In his counter-
petition, Father alleged that Mother was in contempt of court based upon the following
factual averments: (1) although Father alleged that he provided Mother with all information
necessary to access the on-line components of Son’s home schooling program and speech
therapy, Mother had consistently failed and refused to ensure that the child completed his
homework and speech therapy during her visitation time (Father’s counter-petition specified
ten incidents where Mother allegedly failed to ensure completion of the child’s school work
and speech therapy); (2) Mother had made harassing phone calls and had sent harassing text
messages (Father’s counter-petition specified seventeen incidents where Mother allegedly
harassed Father via text message or phone); (3) Mother had not been attentive to the child’s
medical needs in that she had failed to ensure that the child was properly immunized, and had
also failed to ensure that the child received regular dental visits; (5) Mother had failed to pay
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Father’s attorney fees as previously ordered by the court; (6) Mother had failed to cooperate
with the child’s transportation (Father’s counter-petition specified three incidents where the
Mother failed to ensure transportation for Son); (7) Mother had failed to consult with Father
regarding decisions concerning the child; (8) Mother had made disparaging comments about
Father in the child’s presence; (9) Mother had interfered with Father’s telephone time with
the child.
On January 11, 12, and 17, 2012, the trial court heard Mother’s petition and Father’s
counter-petition. Following the hearing, the trial court orally ruled that: (1) there had not
been a material change in circumstances so as to necessitate a change in primary residential
custody from Father to Mother; (2) Mother had failed to prove that Father was in contempt
of court; (3) Father had proved that Mother was in contempt of court on several grounds (as
discussed infra); (4) Father’s child support obligation should be reduced from $3,000 per
month to $100 per each day of Mother’s parenting time; and (5) Mother was ordered to pay
Father’s attorney fees in the amount of $15,000. The trial court’s judgment was reduced to
an order, which was entered on June 4, 2012. Concerning the finding of contempt and
Mother’s punishment for the acts of contempt, the order states, in relevant part:
3. The Court finds that Mother has demonstrated a continued
and perpetual disregard for the orders of the Court, to the
detriment of the child. The Court does not find Mother’s
explanations of her behavior credible. . . .
* * *
The Court finds that Mother has violated the orders of the Court
and that, pursuant to the terms of this Court’s July 15, 2010
Order and January 18, 2011 [Order], the suspension of the
remaining 47 days of the sentence previously imposed on
Mother should be lifted. In addition, the Court finds that
Mother has been guilty of an additional 75 counts [of contempt],
but elects to sentence Mother for only one-half of that amount
or 37 counts of criminal contempt. The Court sentences Mother
for ten days for each count for a total of 370 additional days.
Mother shall be sentenced as follows: (1) Mother shall
serve thirty consecutive days in the Shelby County jail; and (2)
thereafter, Mother shall serve 52 days, on twenty six consecutive
weekends. The balance of Mother’s sentence, 335 days, shall be
suspended. However, if Mother violates any order of the Court
in the future, she will have to serve the full sentence imposed on
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her by this order.
Concurrent with the entry of its order, the trial court also entered an amended Permanent
Parenting Plan.
Before the foregoing order was entered, on January 19, 2012, Mother filed an
emergency motion for bond or release on her own recognizance. On January 29, 2012, the
trial court entered an order granting Mother’s motion. After entry of the June 4, 2012 order,
on July 3, 2012, Mother filed a Tennessee Rule of Civil Procedure 59 motion to alter or
amend the judgment, alleging, inter alia, that: (1) there was insufficient evidence to support
the trial court’s finding of contempt on the part of Mother; (2) the trial court erred in
modifying Father’s child support obligation when he had not filed a petition to modify, nor
proferred any evidence of his earnings; and (3) the trial court lacked subject matter
jurisdiction to modify the January 18, 2011 order concerning attorney fees. On November
1, 2012, Mother filed a supplement to her Rule 59 motion, which added a double jeopardy
argument and an argument concerning due process. Father responded to Mother’s Rule 59
motion, denying the material allegations contained therein. By order of December 4, 2012,
the trial court denied Mother’s Rule 59 motion in its entirety.
Mother appeals. She raises sixteen issues in her brief, which we restate and condense
into the following seven issues:
I. Whether the trial court erred in finding Mother in criminal
contempt regarding:
A. The child’s school work;
B. The child’s school books;
C. Mother taking the child to speech therapy and counseling;
D. Father’s telephone contact with the child; and
E. Mother’s failure to maintain life insurance. Mother also
asserts that the trial court’s consideration of her failure to obtain
life insurance was a violation of Mother’s due process.
II. Whether the trial court imposed an excessive sentence upon
Mother for her contempt?
III. Whether the trial court erred in modifying Father’s child
support obligation?
IV. Whether the trial court lacked subject matter jurisdiction to
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amend the January 18, 2011 Order regarding payment of
attorney fees? Whether the award of attorney fees in the June 4,
2012 order was erroneous.
V. Whether the trial court lacked subject matter jurisdiction to
enter a protective order for subpoenas issued and served in
Mississippi?
VI. Whether the trial court erred in admitting certain public
records through the testimony of Anna Cladakis?
VII. Whether the trial court erred in admitting the opinion
testimony of Dr. Amy Beebe in both the field of educational
assessment and speech therapy?
In the posture of Appellee, Father asks this Court to award his attorney fees and
expenses incurred in defending this appeal.
I. Criminal Contempt
Mother argues that the trial court erred in holding her in criminal contempt of court
on the five counts listed above. We will first outline the legal standard on this issue, and then
analyze Mother's arguments.
As discussed in Gibson's Suits in Chancery, the importance of the court's contempt
authority cannot be understated:
The power to punish for contempt is one of the most significant
prerogatives of the Court of Justice. Upon its bold and prudent
exercise depend the respect, the dignity, and efficiency of Courts
as arbiters of human rights. The mandates of a Court . . . must in
all cases be obeyed promptly, faithfully and without question or
evasion. The party upon whom the order or command of the
Court operates is not allowed to speculate upon the equity of the
complaint, or the legality or regularity of the order, or decree, or
of the writ issued thereon. His simple duty is to obey, and when
he disobeys it is a duty the Court owes to itself and to the public
to impose appropriate sanctions.
Gibson's Suits in Chancery, Eighth Ed., § 25.01 at 25–1; see also In re Lineweaver, 343
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S.W.3d 401, 413–14 (Tenn. Ct. App. 2010). Tennessee statutes governing the courts'
contempt powers provide that Tennessee courts may “inflict punishments for contempts of
court” in cases involving “[t]he willful disobedience or resistance of any . . . party . . . to any
lawful writ, process, order, rule, decree, or command of such courts.” Tenn. Code Ann. § 29-
9-102(3) (2012). This statutory provision “enables the courts to maintain the integrity of their
orders.” Konvalinka v. Chattanooga–Hamilton County Hosp. Auth., 249 S.W.3d 346, 354
(Tenn. 2008).2
A finding of criminal contempt must be based on the following four elements: (1) the
order that was allegedly violated must be lawful; (2) the order must be clear, specific, and
unambiguous, (3) the order must actually be disobeyed or otherwise resisted; and (4) the
2
In the very recent case of Baker v. State, No. M2011-01381-SC-R11-PC, ---- S.W.3d -----, 2013
WL 4768309 (Tenn. Sept. 6, 2013), our Supreme Court explained:
The power of courts to punish contempts can be traced back to
twelfth century English common law and was incorporated into American
common law by the colonists. See Ronald L. Goldfarb, The Contempt
Power 9, 19 (1963). The inherent power of courts to punish contemptuous
conduct has long been regarded as essential to the protection and existence
of the courts. State v. Galloway, 45 Tenn. 326, 331 (1868).
The power of courts to punish for contempt is of
immemorial antiquity, and is inherent in all courts as a
necessary power belonging to them in order to enable them
to accomplish the purposes for which they were designed;
that is, the orderly trial and decision of causes, the
enforcement of public order, the prevention of
interferences with their proceedings, and the enforcement
of the due respect belonging to them as institutions of the
country.
Graham v. Williamson, 128 Tenn. 720, 164 S.W. 781, 782 (1914).
However, at common law, the power of courts to punish contempts
was vast and undefined, and with such unlimited and undefined
discretionary power came the potential for abuse. Accordingly, in 1831, the
Tennessee General Assembly enacted legislation to curb the contempt
power of state judges. See Act of Dec. 19, 1831, ch. 19, 1831 Tenn. Pub.
Acts 34; see also State v. Beeler, 387 S.W.3d 511, 519 (Tenn. 2012). The
contempt power of Tennessee courts remains circumscribed by statute.
Tennessee Code Annotated [S]ection 29-9-102. . . .
Baker, 2013 WL 4768309, at *4.
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violation of the order must be willful. Konvalinka, 249 S.W.3d, at 354–55. A person
accused of criminal contempt is presumed innocent, and the four elements must be proven
beyond a reasonable doubt. Cottingham v. Cottingham, 193 S.W.3d 531, 538 (Tenn. 2006);
Black v. Blount, 938 S.W.2d 394, 399 (Tenn. 1996).
Once a guilty verdict is entered, the contemnor's presumption of innocence is removed
and is replaced by a presumption of guilt. See Cottingham, 193 S.W.3d at 538. Therefore,
when the sufficiency of the evidence to support a criminal contempt finding is challenged on
appeal, the defendant bears the burden of demonstrating why the evidence is insufficient to
support the guilty verdict. Id. In conducting our appellate review, “the prosecution is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which
may be drawn from it.” Id. Additionally, “[q]uestions regarding the credibility of witnesses,
the weight and value of the evidence, and any factual issues raised by the evidence are
resolved by the trier of fact.” Id. Thus, “this court must review the record to determine if the
evidence in the record supports the finding of fact of guilt beyond a reasonable doubt, and
‘if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt’ we are to set aside the finding of guilt.” Eastman v. Eastman, No. M2007-
01797-COA-R3-CV, 2008 WL 2600695, at *2 (Tenn. Ct. App. June 30, 2008) (quoting
Tenn. R. App. P. 13(e)). Stated another way:
On appeal, individuals convicted of criminal contempt lose their
presumption of innocence and must overcome the presumption
of guilt. Therefore, “[a]ppellate courts do not review the
evidence in a light favorable to the accused and will reverse
criminal contempt convictions only when the evidence is
insufficient to support the trier-of-fact's finding of contempt
beyond a reasonable doubt.” Moody v. Hutchison, 159 S.W.3d
15, 25 (Tenn. Ct. App. 2004). See also Tenn. R. App. P. 13(e);
Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App.1993).
Appellate courts review a trial court's decision of whether to
impose contempt sanctions using the more relaxed abuse of
discretion standard of review. Hawk v. Hawk, 855 S.W.2d 573,
583 (Tenn. 1993); Freeman v. Freeman, 147 S.W.3d 234, 242
(Tenn. Ct. App. 2003).
Wilkinson v. Wilkinson, No. M2010-00026-COA-R3-CV, 2011 WL 5986405, at *4 (Tenn.
Ct. App. Nov. 29, 2011) (perm. app. denied Tenn. April 11, 2012) (citing Brooks v. Brooks,
No. M2007-00351-COA-R3-CV, 2009 WL 928283, at *8 (Tenn. Ct. App. April 6, 2009)
(internal footnote omitted)).
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Under the abuse of discretion standard, the trial court's decision “will be upheld so
long as reasonable minds can disagree as to the propriety of the decision made.” Camp v.
Camp, No. W2010-01037-COA-R3-CV, 2011 WL 2567542, at *5 (Tenn. Ct. App. June 29,
2011) (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). The abuse of
discretion standard involves “a less rigorous review of the lower court's decision and a
decreased likelihood that the decision will be reversed on appeal.” Lee Medical, Inc. v.
Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citing Beard v. Bd. of Prof'l Responsibility,
288 S.W.3d 838, 860 (Tenn. 2009)). The standard “reflects an awareness that the decision
being reviewed involved a choice among several acceptable alternatives.” Lee Medical, Inc.,
312 S.W.3d at 524 (citing Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 708 (Tenn. Ct.
App.1999)). Accordingly, appellate courts are not permitted to “second guess” the trial
court's determinations or to substitute their judgment for that of the trial court. Lee Medical,
Inc., 312 S.W.3d at 524 (citing White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.
App.1999)). “The abuse of discretion standard of review does not, however, immunize a
lower court's decision from any meaningful appellate scrutiny.” Lee Medical, Inc., 312
S.W.3d at 524 (citing Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App.
2002)).
To summarize, in order to prevail on her criminal contempt issues, Mother bears the
burden of overcoming the presumption of guilt. Wilkinson, 2011 WL 5986405, at *4.
Accordingly, in reviewing the criminal contempt convictions in this case, we do not review
the evidence in light most favorable to Mother, but will reverse the trial court’s findings of
contempt beyond a reasonable doubt only there is an abuse of discretion. It is Mother’s
burden to demonstrate that the relevant facts contained in the record are insufficient, as a
matter of law, for a rationale trier of fact to find that she was guilty of the contempt citations
beyond a reasonable doubt. Furthermore, as set out in full context above, the trial court made
a specific finding that Mother was not a credible witness: “The Court does not find Mother’s
explanations of her behavior credible.” Accordingly, any issues of credibility must be
resolved in favor of Father: “On an issue which hinges on witness credibility, [the trial court]
will not be reversed unless, other than the oral testimony of the witnesses, there is found in
the record clear, concrete and convincing evidence to the contrary.” Tennessee Valley
Kaolin v. Perry, 526 S.W.2d 488, 290 (Tenn. Ct. App. 1974).
With the foregoing principles in mind, we turn to address the specific contempt
findings that Mother appeals.
A. School Work
Regarding its finding that Mother was guilty of criminal contempt relating to the
child’s school work, the trial court’s June 4, 2012 order states, in pertinent part:
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(A) Section I.J. (3) of the January 18, 2011 Permanent Parenting
Plan [] provides in pertinent part as follows:
Each of the parties will ensure that the child has
completed his school work and/or homework
during that parent’s parenting time. . . [.]
The proof established that Mother had parenting time for 86
days during the 2011 calendar year and that the child completed
13 home schooling lessons during Mother’s parenting time.
Thus, Mother did not ensure that the child had completed any
home schooling lessons on 73 days. Of the 73 days, Father
testified that he did not send the books on the following periods:
03/29/11—04/03/11 (6 days); 05/06/11—05/09/11 (4 days); and
07/01/11—07/05/11 (5 days).
Thus, Mother failed to ensure that the child completed
home schooling lessons on 58 days of her parenting time. Each
day represents a separate count of contempt, of which the Court
finds Mother guilty.
Turning to the record, the undisputed proof was that Son was enrolled in the A Beka
home schooling program. Father testified that he sent Mother “all of the information relating
to user names, passcodes and how to communicate with A Beka and how to retrieve from A
Beka.” During cross-examination, Mother was asked whether she was “aware that [the]
Permanent Parenting Plan provide[d] that [Mother] ha[d] an obligation to ensure that your
son complete[d] his schoolwork during your parenting time?” She answered “Yes.” To this
end, Mother hired Kelly Long, a teacher with what was then the Memphis City School
system, to assist Son with his home schooling lessons.
The record indicates that Mother had eighty-six days of parenting time in 2011.
According to Ms. Long, the child completed only thirteen lessons during Mother’s visitation
time. The A Beka curriculum requires one lesson per day. Accordingly, there were
approximately seventy-three days when Mother had parenting time that she did not ensure
that the child completed his lesson. However, Father did admit, as found by the trial court
supra, that there were approximately fifteen days where his failure to tender the child’s book
precluded Mother from ensuring that his lessons were complete. However, the record clearly
establishes that, for fifty-eight of her seventy-three days of parenting time, Mother (through
no fault of Father) failed to see that the child’s studies were completed.
According to the record, the home schooling curriculum continues throughout the
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year and there is no “summer break;” however, when asked why she had not ensured that the
child completed his lessons, Mother testified that she thought the child needed a break during
the summer. In its January 17, 2012 statements from the bench, the trial court stated:
Summertime. Lots of children go to summer school in the
summertime, ma’am. Even the little ones if they have to be
taught to catch up. Whether you call it working with a tutor all
summer or whether you call it school.
I mean, this is not hard school. This child finishes it one
or two lessons a week even that. But instead, you said
repeatedly on this stand, it’s summertime. He shouldn’t be in
school. He should be playing with all the other kids.
So you make it be a negative thing. You make [the child’
hear all it’s a negative thing . . . . And all the other kids are out
playing but you[‘ve] got to work, so you’re being punished and
you’re being punished by your father. All that negativity is
soaked up by your child . . . .
From the record as a whole, and in light of the number of days (58) that Mother failed
to ensure that the child completed his school work and her lack of any valid excuse, we
conclude that there was sufficient evidence presented to support the trial court’s finding that
Mother was guilty, beyond a reasonable doubt, of fifty-eight counts of criminal contempt in
willfully failing to ensure that the child completed his school work. Accordingly, the trial
court did not abuse its discretion in this finding.
B. School Books
The trial court’s June 4, 2012 order states, in relevant part:
Section I.J.(3) of the January 18, 2011 Permanent Parenting
Plan, further provides in pertinent part as follows:
At the end of Mother’s parenting time, Mother
shall return to Father any and all of the child’s
school work, books and materials.
The Court finds that following Mother’s parenting time from
February 19, 2011 to March 1, 2011, Mother failed to return one
of the child’s school books. As a result, Father paid $10.75 to
replace the book. Exhibit 35. Mother’s failure to return the
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book is a direct violation of the above-quoted provision in the
Permanent Parenting Plan.
Father’s undisputed testimony indicates that, following her parenting time from
February 19 to March 1, 2011, Mother failed to return one of the child’s books. Father
provided a receipt (Trial Exhibit 35) that he had paid for a replacement book.
From the record, we cannot conclude that there was insufficient proof to support the
trial court’s finding that Mother was guilty of criminal contempt, beyond a reasonable doubt,
for failure to return the child’s school book. Accordingly, the trial court did not abuse its
discretion in so finding.
C. Speech Therapy and Counseling
Mother was found in criminal contempt both for her failure to ensure that the child
attended his scheduled speech therapy sessions, and also for failure to consult with Father
regarding a change in the child’s speech therapist and counseling for the child.
Concerning Mother’s failure to ensure that the child attended his speech therapy, the
trial court’s June 4, 2012 order states, in relevant part, that:
Section I.J.(3) of the January 18, 2011 Permanent Parenting
Plan, also provides in pertinent part as follows:
[ ] In addition, each parent shall ensure that the
child participates in speech therapy as scheduled.
Mother has failed to ensure that the child has participated in
speech therapy during her parenting time. The records from
Tiny Eye Speech Therapy reflect that the speech therapist was
“unable to schedule speech therapy. [Son] @ his mother’s house
in Memphis” on the following dates: 3/29/11, 6/5/11, 7/1/11,
8/29/11, 9/5/11. In addition, the . . .[s]peech therapy records
reflect that on 4/1/11, “BILL FOR NO SHOW. [Son] was with
mom . . . this week. I have had to reschedule multiple sessions
with [Mother] due to no-shows. I was unable to reschedule this
session as it was on a Friday and [Son] is not with [Mother] next
week.” [This information was admitted as part of Trial Exhibit
15].
Mother’s failure to ensure that the child participated in
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speech therapy, as outlined herein, represents seven additional
counts of contempt.
The foregoing findings are supported by sufficient evidence in the record.
Accordingly, we cannot conclude that the trial court erred in finding that Mother was guilty,
beyond a reasonable doubt, of criminal contempt in failing to ensure that the child
participated in scheduled speech therapy during her parenting time. The record supports a
finding that Mother’s was guilty of contempt in this regard on the occasions outlined in the
trial court’s findings, supra. Accordingly, we cannot conclude that the trial court abused its
discretion in finding seven counts of contempt for failure to ensure participation in speech
therapy.
Concerning Mother’s unilateral decision to take the child to a different speech
therapist and to have him participate in counseling, the June 4, 2012 order states, in relevant
part:
The decision making provisions of the January 18, 2011
Permanent Parenting Plan provide that the parties must confer
with one another in good faith concerning major decisions for
the child and, in the event the parties cannot agree, they shall
participate in mediation as required by Section V of this plan.
Mother has willfully failed and refused to consult with Father as
required by the plan by taking the child to Janna Hacker, a
speech therapist, on two separate occasions after she was aware
that the child was participating in speech therapy through the
Tiny Eye program, without consultation with or the agreement
of Father. Mother further willfully failed and refused to consult
with Father prior to taking the child to see Andrea Nichols, a
psychologist. The Court finds that Mother’s actions in taking
the child to a psychologist were not justified by any legitimate
risk or threat of harm to the child. The Court finds Mother
guilty of three additional counts of contempt for the violations
outlined in this subsection.
Turning to the record, Mother admitted that she took the child to see speech therapist
Jenna Hacker:
Q [to Mother]: With respect to speech therapy, you did not
consult with [Father] before you began taking [the child] to
Janna Hacker again; is that correct?
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A. I did what the Judge said. I got him as much speech therapy
as possible.
Q. That wasn’t my question. You didn’t consult with [Father]
when you began taking [Son] to Janna Hacker after the
December 17th ruling of the Court, did you?
A. I think I did tell him we were going there. I told him we
were going there. I told him we were doing all of–I said we’re
doing all three [i.e., the speech therapy that Father knew about,
the speech therapy with Ms. Hacker, and counseling with
Andrea Nichols].
Concerning the child’s visits with Ms. Nichols, Mother admitted that Father did not
learn that she had taken the child to see the psychologist until Mother filed her Rule 59
motion to alter or amend the trial court’s judgment, supra:
Q [to Mother]. And, in fact, [Father] did not learn that you had
taken the child to see this psychologist until you attached notes
from her or a letter from her to the Motion to Alter or Amend
that you filed in this Court; isn’t that true?
A. That’s true . . . [.]
Mother’s testimony that she consulted with Father prior to taking the child to Janna
Hacker was unsupported by any evidence, e.g., text messages, phone records. Furthermore,
Mother’s testimony was disputed by Father, who stated that Mother did not, as she claims,
consult with him prior to enrolling the child with Ms. Hacker, or prior to taking the child to
counseling. Specifically, Father testified that he did not know that the child had seen either
Ms. Hacker or Ms. Nichols until he received their billings. As noted above, in this case, the
trial court made a specific finding that Mother was not a credible witness. Accordingly, in
the case of conflicting testimony, and in the absence of any non-parol evidence or other
evidence that calls into question Father’s credibility, the testimony of the Father must be
credited: “On an issue which hinges on witness credibility, [the trial court] will not be
reversed unless, other than the oral testimony of the witnesses, there is found in the record
clear, concrete and convincing evidence to the contrary.” Tennessee Valley Kaolin v. Perry,
526 S.W.2d 488, 290 (Tenn. Ct. App. 1974).
From the entire record, we conclude that there was sufficient evidence from which the
trial court could conclude that Mother was in criminal contempt, beyond a reasonable doubt,
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based upon both her failure to ensure that the child attended his scheduled speech therapy
sessions, and also for taking the child to another speech therapist and to a psychologist
without first consulting with Father as required by the Parenting Plan. Accordingly, we
conclude that the trial court did not abuse its discretion in charging Mother with ten
additional counts of criminal contempt for these actions.
D. Telephone Contact
In its June 4, 2012 Order, the trial court states:
The Court’s July 15, 2010 Order provides in Paragraph 8 as
follows:
The Court finds that Mother has interfered with
Father’s ability to communicate with the child by
telephone. Father shall be allowed to speak with
the child by telephone daily. Mother shall not be
in the room with the child when he is speaking to
Father. If there is any clear indication that the
child is being coached by Mother as to what he
should say during his conversations with Father,
whether or not she is in the room during those
conversations, the Court will take further action.
Mother has been ordered not to interfere with Father’s telephone
contact during her parenting time. In spite of this, the proof has
shown that Father has had continued difficulty reaching the
child by telephone when he is with Mother. The dates on which
this occurred include January 27, February 3, and February 28.
The Court finds that each date represents a separate count of
contempt for which the Court finds Mother guilty.
Turning to the record, Father testified that he had difficulty, on many occasions, trying
to speak with the child by telephone. On January 27, 2011, Father’s attorney sent a letter to
Mother’s attorney in an effort to resolve the telephone contact issues. This did not resolve
the problems and, on February 3, 2011, Father sent an email to Mother, expressing his
concern at not being able to speak to the child. When the problem persisted, Father’s
attorney sent another letter to Mother’s attorney on February 28, 2011, which appears to have
also been of no avail. The record indicates that, when Father called to speak with Son,
Mother would often initiate discussions on other subjects. Although Mother asserts, in her
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brief, that the trial court’s orders do not require her to put the child on the phone
“immediately or within hours or minutes of [Father] calling or otherwise,” this argument is
spurious at best. Furthermore, from the trial court’s order, it does not appear that Mother was
held in contempt based upon the timing of any of the child’s return calls to Father. Rather,
she was held in contempt for those instances where Father was not allowed to speak to the
child at all.
From the record as a whole, we conclude that there is sufficient proof to support the
trial court’s finding that Mother was in criminal contempt, beyond a reasonable doubt, for
failure to allow the child telephone contact with Father.
E. Life Insurance
It is well settled that a court speaks through its orders. Palmer v. Palmer, 562
S.W.2d 833, 837 (Tenn. Ct. App.1977). Concerning life insurance, the trial court’s June 4,
2012 order states:
The Court finds that Mother has failed to secure or maintain life
insurance required of her pursuant to the Permanent Parenting
Plan. The Court is not sentencing Mother to jail based on this
violation, as it was not alleged in Father’s Petition.
Despite Mother’s argument that the trial court erred in finding her in criminal contempt for
failure to maintain life insurance, the foregoing language indicates that the trial court did not,
in fact, base any findings of contempt on her failure to procure life insurance.
Concerning an alleged violation of her right to due process, Mother argues, in her
brief that:
In Turner v. Rodgers . . . the United States Supreme Court held
that notice [of] ability to pay is required prior to proceeding to
any issue of contempt regarding payments. The proponent of
civil contempt charges must provide specific notice that ability
to pay would be a critical issue in the contempt trial and there
must be express findings in the record of ability to pay. Id. The
same requirement should be extended to criminal contempt
charges and retroactively applied. Davis v. US. . . [.]
Here, this notice was not presented in the petition and the
Court should not have ruled upon it.
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Again, as noted above, Mother’s failure to provide life insurance did not form the
basis for any of the findings of contempt. Accordingly, we need not reach the question of
whether notice was given, nor do we need to reach the question of whether there was
sufficient evidence in the record to support such finding on the ground of failure to maintain
life insurance. Even if we assume, arguendo, that the trial court erred in considering the
issue of life insurance, this would be harmless error based upon the fact that the trial court
did not base any of the contempt charges on the life insurance question. Accordingly, the
trial court’s consideration of Mother’s failure to provide life insurance does not constitute
reversible error. Tenn. R. App. P. 36(b) (“Effect of Error. A final judgment from which
relief is available and otherwise appropriate shall not be set aside unless, considering the
whole record, error involving a substantial right more probably than not affected the
judgment or would result in prejudice to the judicial process . . . .”).
II. Excessive Sentence
In its June 4, 2012 order, the trial court states, in relevant part:
By order entered July 15, 2010, the Court stated as follows:
The Court has found Mother in criminal contempt
and sentenced her to a total of 50 days in jail.
Based on the fact that Mother allowed Father to
exercise eleven additional days of parenting time
in the month of June 2010, following the filing of
Father’s petition, the Court will suspend Mother’s
sentence. However, if Mother violates any order
of the Court in the future, she will have to serve
the sentence imposed on her by this order.
By order entered January 18, 2011, the Court stated as follows:
The Court finds that Mother has violated the
orders of the Court and that, pursuant to the terms
of this Court’s July 15, 2010 Order, the
suspension of the sentence previously imposed on
Mother should be lifted. However, the Court
declines to lift the suspension of the entire
sentence and declines to sentence Mother to
additional jail time for her subsequent violations
of the Court’s orders, which the Court finds total
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twenty to thirty counts. Rather, the Court orders
that Mother shall serve three days in the Shelby
County jail, commencing December 17, 2010.
The Court finds that Mother has violated the order of the Court
and that, pursuant to the terms of this Court’s July 15, 2010
Order and January 18, 2011 [Order], the suspension of the
remaining 47 days of the sentence previously imposed on
Mother should be lifted. In addition, the Court finds that
Mother has been guilty of an additional 75 counts, but elects to
sentence Mother for only one-half of that amount or 37 counts
of criminal contempt. The Court sentences Mother for ten days
for each count for a total of 370 additional days.
Mother shall be sentenced as follows: (1) Mother shall
serve thirty consecutive days in the Shelby County jail; and (2)
thereafter, Mother shall serve 52 days, on twenty six consecutive
weekends. The balance of Mother’s sentence, 335 days, shall be
suspended. . . .
As discussed in the recent case of Baker v. Baker, M2010–01806–COA–R3–CV,
2012 WL 764918 (Tenn. Ct. App. March 9, 2012):
As we begin our analysis of the sentence imposed it is important
to recognize that criminal contempt is used to “preserve the
power and vindicate the dignity and authority of the law” as well
as to preserve the court “as an organ of society.” Black v.
Blount, 938 S.W.2d 394, 398 (Tenn.1996); see also Thigpen v.
Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App.1993). Criminal
contempt proceedings “‘in a very true sense raise an issue
between the public and the accused.’” Id. Conversely, criminal
contempt is not to be used to benefit the contemnor's adversary
in a civil proceeding; that is the purpose and function of civil
contempt. Overnite Transp. Co. v. Teamsters Local Union No.
480, 172 S.W.3d 507, 510 (Tenn. 2005)(stating that a civil
contempt action is generally brought to enforce private rights).
Id. at *11.
The Tennessee Supreme Court has described criminal contempt proceedings as sui
generis[, i.e., a class unto itself]—neither a civil nor a criminal prosecution as ordinarily
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understood, not a criminal prosecution within the Sixth Amendment of the United States
Constitution.” Bowdon v. Bowdon, 278 S.W.2d 670, 672 (Tenn. 1955). As noted by this
Court in the recent case of Coffey v. Coffey, No. E2012-00143-COA-R3-CV, 2013 WL
1279410 (Tenn. Ct. App. March 28, 2013):
Unlike a typical criminal prosecution, which stands or falls on
its own set of circumstances, a criminal contempt proceeding is
necessarily based on a preexisting court order and is an offense
against the court itself. See Doe v. Board of Professional
Responsibility of the Supreme Court of Tennessee, 104 S.W.3d
465, 474 (Tenn.2003) (contempt proceeding is sui generis and
is incidental to the case from which it arises). . . .
Criminal contempt statutes are not like other criminal
statutes that prohibit certain activities, such as driving without
a license or selling alcohol to a minor. Rather, they are “punitive
in character, and their primary purpose is to vindicate the court's
authority.” [Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct.
App. 1993] ( citing Gunn v. Souther[n] Bell Tel. & Tel. Co.,
201 Tenn. 38, 296 S.W.2d 843, 844 (1956) and Garrett v.
Forest Lawn Memorial Gardens, 588 S.W.2d 309, 315 (Tenn.
Ct. App.1979)); see Long, 221 S.W.3d at 12–13 (criminal
contempt sanctions imposed simply as punishment).
Id. at *8.
In Sloan v. Poff, No. M2009-01839-COA-R3-JV, 2011 WL 1166845, at *10 (Tenn.
Ct. App. March 29, 2011), this Court addressed Appellant’s question of whether Tennessee
Code Annotated Section 40-25-303(c)(1) allowed the trial court to suspend Appellant’s
sentence for criminal contempt only “up to and including the statutory maximum time for the
class of convicted offenses.” Sloan, 2011 WL 1166945, at *8. In Sloan, Appellant
specifically argued that because the “criminal contempt statute prevents a court from
incarcerating an individual for more than ten days, see Tenn. Code Ann. §29-9-103, section
40-35-303(c)(1) precludes a court from suspending the sentence for longer than ten days
because ten days is the ‘statutory maximum time for the class of the convicted offense.” Id.
In Sloan, this Court specifically rejected Appellant’s argument, stating that:
[Appellant’s] argument would be persuasive if criminal
contempt constituted a violation of the criminal law and if a
suspension of a criminal contempt sentence constituted
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“probation” as that term is used in Tenn. Code Ann. §40-35-
303(c)(1). However, criminal contempt is not considered a
violation of the criminal law, and a suspension of a criminal
contempt sentence does not constitute probation. As a result, we
conclude that the [trial court] did not err when it suspended
[Appellant’s] ten-day sentence . . . .
Sloan, 2011 WL 1166845 at *8. Relying upon this holding in Sloan, in Coffey, we
specifically addressed the question of whether Tennessee Code Annotated Section 40-35-
310(a) (2010) precluded the trial court from “unsuspending” a sentence for criminal
contempt beyond the maximum term to which defendant could have been sentenced. Id. In
affirming the trial court’s decision to suspend Appellant’s sentence in Coffey, we noted that:
When the trial court found Mother in criminal contempt, it did
not find Mother guilty of a crime. Rather, it found Mother had
willfully violated its orders dated January 7, 2009 and July 30,
2009. We conclude Tennessee Code Annotated § 40-35-
303(c)(1) does not come into play when criminal contempt is at
issue and, therefore, it does not affect the court's ability to
suspend its ten-day sentence imposed pursuant to Tenn. Code
Ann. § 29-9-103.
Coffey, 2013 WL 1279410, at *8. The Coffey Court specifically noted that:
It is not unusual for a court that has found an individual in
criminal contempt for violating its order to suspend a sentence
imposed as a sanction for that contempt. See Cansler v.
Cansler, 2010 WL 342652, at *10 (Tenn. Ct. App. 2010)
(holding § 29-9-103 does not mandate a sentence be imposed,
and trial court can suspend any sentence it gives); Thigpen, 874
S.W.3d at 54 (trial court should have suspended all but one day
of sentence imposed for criminal contempt).
Coffey, 2013 WL 1279410, at *8. Although Sloan and Coffey stand for the proposition that
certain requirements of the Criminal Sentencing Reform Act of 1989 are not applicable to
a trial court’s decision of how to sentence for criminal contempt, in State v. Wood, 91
S.W.3d 769 (Tenn. Ct. App. 2002), this Court noted that:
There is, however, a principle embodied in the criminal
statutes that we think applies wherever punitive incarceration is
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considered. Tenn. Code Ann. § 40-35-103(4) requires that the
sentence be the least severe measure necessary to achieve the
purpose for which the sentence is imposed. In this country,
where freedom is highly valued and the fundamental laws (both
state and federal) restrict the power of the government to
infringe on that freedom, that principle should guide courts in
the imposition of any prison sentence imposed for punishment.
In the criminal law the courts exercise some control over
punishment by subjecting sentencing statutes and orders of
confinement to a proportionality test under the Eighth
Amendment to the United States Constitution and Article I
Section 16 of the Tennessee Constitution. See State v. Harris,
844 S.W.2d 601 (Tenn. 1992). In contempt the courts have said
that in order to safeguard constitutional procedures courts
should employ “the least possible power adequate to the end
proposed.” In Re Michael, 326 U.S. 224 at 227, 66 S. Ct. 78, 90
L. Ed. 30 (1945). Because the right to a trial by jury historically
did not attach to a charge of contempt, see Ahern v. Ahern, 15
S.W.3d 73 (Tenn. 2000) and Green v. United States, 356 U.S.
165, 78 S. Ct. 632, 2 L. Ed. 2d 672 (1958), appellate courts are
charged with a special responsibility to see that the contempt
power is not abused.
State v. Wood, 91 S.W.3d at 776.
In Baker v. Baker, Judge Clement, writing for the Court, succinctly stated the
applicable standard of review for questions involving the length of a sentence imposed for
criminal contempt:
When the defendant is found guilty of criminal contempt,
the trial court has the discretion to impose a sentence and to
require that the defendant serve the sentence imposed or,
alternatively, to place the contemnor on probation subject to
reasonable terms and conditions. If the defendant was placed on
probation and thereafter violates conditions of his or her
probation, the trial court has the authority to revoke the
suspension of the sentence and, among other alternatives, order
the execution of the original sentence. State v. Beard, 189
S.W.3d 730, 735 (Tenn. Crim. App. 2005). Alternatively, the
court has “the discretionary authority upon the revocation of
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probation to impose something less than the original sentence,
depending upon the circumstances of the case. ” Id. (citing State
v. Troy McLemore, No. 03C01-9709-CC-00406, 1998 WL
422339 (Tenn .Crim. App. July 28, 1998); State v. Marty Miller,
No. 03C01-9602-CC-00056, 1997 WL 90638 (Tenn. Crim. App.
Mar. 4, 1997); State v. Melvin Griffin, No. 01C01-9503-CC-
00090, 1995 WL 679112 (Tenn. Crim. App. Nov. 16, 1995)).
The determination of the appropriate consequence of
such a violation embodies a separate exercise of discretion.
State v. McCoy, No. M2011-00006-CCA-R3-CD, 2011 WL
6916227 (Tenn. Crim. App. Dec. 28, 2011) (citing State v.
Hunter, 1 S.W.3d 643, 647 (Tenn.1999); State v. Reams, 265
S.W.3d 423, 430 (Tenn. Crim. App. 2007)).
* * *
The overall length of Mother’s sentence must be “justly
deserved in relation to the seriousness of the offense[s],” and
“no greater than that deserved” under the circumstances,” In re
Sneed, 302 S.W.3d 825, 828 (Tenn. 2010), and if we determine
that a sentence is excessive, it is incumbent upon this court to
reduce or otherwise modify an excessive sentence for contempt.
See Robinson v. Air Draulics Engineering Company, 377
S.W.2d 908, (Tenn. 1964); Barrowman v. State ex rel. Evans,
381 S.W.2d 251, 253–54 (Tenn. 1964); Thompson v. State, 241
S.W.2d 404 (Tenn. 1951); Metcalf v. Eastman, 228 S.W.2d 490(Tenn. 1950); see also Hundhausen v. U.S. Marine Fire Ins.
Co., 52 Tenn. 702 (Tenn. 1871) (wherein the court held that “if
the punishment seems to be excessive this Court on appeal has
jurisdiction to revise and reduce the sentence[]”).
Baker, 2012 WL 764918, at *10–*12; see also State v. Bise, 380 S.W.3d 682 (Tenn. 2012)
(adopting the abuse of discretion standard in place of the de novo standard of review as to
the length of the sentence imposed).
In addition to the foregoing authority, the United States Supreme Court has also set
out some of the factors that should be considered in reviewing a contempt sentence:
[T]he trial judge may properly take into consideration the extent
of the willful and deliberate defiance of the court's order, the
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seriousness of the consequences of the contumacious behavior,
the necessity of effectively terminating the defendant's defiance
as required by the public interest, and the importance of
deterring such acts in the future.
United States v. United Mine Workers of America, 330 U.S. 258 at 303, 67 S. Ct. 677, 91
L. Ed. 884 (1947).
From the record, the trial court’s reasoning concerning the sentence imposed for
Mother’s contempt is the result of the court’s frustration with Mother’s continued disregard
for its orders. For example, the court states:
What has she complied with, anything? Not that I can find. So,
I have no choice. What I have a choice in is how long she’s
going to jail . . . [.] But I don’t have any choice. I’m not
respecting this bench and the law of this state if I do not send
this lady to jail. . . . I tried to make it easier for you and you
refused to do it, so I have no choice. I’m not going to continue
to punish [Father] because you refuse to follow the court’s
orders. It’s as simple as that. I have no choice.
The court further states that, “[t]he bottom line is, you haven’t followed any of this Court’s
orders . . . . I find, in fact, that there is a continuing circumstance of perpetual disregard for
this Court’s order[s] to the detriment of the minor child.”
In addition, the court noted the fact that Mother showed a lack of respect for the court.
When the court expressed concern about Mother’s failure to recognize that the child should
not be on Facebook, Mother reacted such that the court stated:
And [Mother] is rolling her eyes at me right now like she
doesn’t believe that that carries weight. All the more reason for
me to question her ability to parent at all. . . .
From the record, we agree that Mother has engaged in a continuing pattern of
disregard for the court’s orders. Mother's conduct indicates that she believes that the court
orders simply do not apply to her. This is exactly the type of behavior and thinking that
punishment for contempt is designed to address. Despite its rightful frustration with
Mother’s continued disregard for its orders, the court in this case nonetheless showed her
leniency:
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With regard to [Mother’s] counts of contempt, it’s alleged that
you have 58 counts where you had failure to do education for
[the child]. There was testimony that some of those, just a few,
one or two times, the books were not sent.
But I’m going to give you a break there. I’m going to divide
that in two. And just assume that hopefully she was working on
it and give her credit for the 29. But that leaves 29.
The court also showed Mother leniency concerning her interference with Father’s telephone
contact with Son:
So what I’m going to do is, that’s 20–22, that’s 25 times when
you could not reach, seven times when she was interrupting, 15
counts of contempt of telephone calls. I’m going to reduce that
to one. . . .
I’ve got—the argument was seven times that he could not reach
her . . . .
[Mother], I am finding you guilty of 37 counts of contempt and
violation—contempt of violation of this prior court’s order of
December 2010. You, at this point, owe the court 47 days. . . .
The total is 370 days from the 37 and 47—417 days, I’m not
sentencing you to that, because I’m hoping this will make an
impression on you. You are going to serve the 47 days, plus 37
days from today’s contempt. So that would leave 390—390
days. You’ve got a year in jail hanging out there. And you’re
going to serve 30 days in the Shelby County jail. The balance
will be served on the weekend, every weekend until the time is
fulfilled. So you will have an additional 54 days to serve on the
weekend.
As correctly noted by Father in his brief, from the date of the parties divorce in
February 2012 through January 2013, the trial court has conducted three separate hearings
on Father’s contempt petitions against Mother. In each of those hearings, the trial court
determined that Mother had violated the court’s orders. Mother has been given leniency in
the form of suspended sentences, but she has not availed herself of the opportunity to cure
her contempt and to follow the orders of the court. Rather, as discussed in detail above, she
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has continued to violate the court’s orders and has, in fact, committed additional acts of
contempt while operating under the largess of the court’s suspended sentence. We agree with
the trial court’s comment that it has exhausted its options other than jail to motivate Mother
to comply with its orders. Given Mother’s excessive and continual violations of the trial
court’s orders over the relevant period of less than two years, we cannot conclude that the
trial court imposed an excessive sentence in this case, or that it otherwise abused its
discretion.
III. Modification of Father’s Child Support
In its June 4, 2012 order, the trial court states, in pertinent part:
On June 4, Mother posted to her Facebook page, “oh my
goodness . . . my body is so fit and firm . . . I just ate 2 sausage
egg mayonnaise sandwiches from CKS! Ok and half a bacon
egg and mayo . . . I am so happy . . . life is good . . . child
support well spent.”
The Court finds that Father has continued to pay $3,000
per month as child support, in spite of the fact that he has been
the child’s primary residential parent since December 2010.
Based on Mother’s testimony, she earned $112,500 in the year
2010. The Court finds that Mother has an earning capacity
which she is not attaining and that Father should not be required
to support the entirety of Mother’s household which includes
Mother, her son from a previous relationship, and her sister’s
two children.
Based on all the factors to be considered, the Court finds
that $100 per day that Mother has parenting time is a reasonable
amount of child support. As Mother has 86 days of parenting
time in the year 2011, the Court hereby modifies Father’s child
support obligation to $717 per month, commencing January 17,
2012, and calculated as follows: $100 / day x 86 days / 12
months. It is contemplated that the child support may be
adjusted on an annual basis, based on the number of days of
parenting time exercised by Mother. This is an upward
deviation from the Tennessee Child Support Guidelines. If
Father’s child support were calculated strictly in accordance
with the Tennessee Child Support Guidelines, Father would not
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pay child support directly to Mother in any amount.
On January 12, 2012, in making its initial decision to reduce Father’s child support,
the trial court stated:
Well, [Mother] needs to get a job. The guidelines are the
guidelines. I am not going to allow [Mother] to be enabled by
[Father] paying child support to a lady who is living on child
support. She may say that comment [on Facebook, see supra],
a good expenditure of child support, was a joke. This Court
doesn’t take it as a joke.
The trial court went on to state:
I want another Parenting Plan done. Child support stops from
this day forward. Well, no, let me—let me think about his
because the days the child is with her, I want a reasonable
amount of child support to be paid, $50 per day. That will feed
the child, that will clothe the child, and the mother has an equal
responsibility with [Father] to provide for that child.
So $50 a day right not times 86 days, and in the future it will be
adjusted. [Father] does not have a responsibility to support
[Mother] for her other children or the children who are in [her]
custody. . . .
On January 17, 2012, the trial court modified this oral ruling, stating that it was ordering
$100 per day as child support. At this point, counsel for Mother stated that Mother “would
like an opportunity to review that issue and see if that’s compliant with the statute as well.”
Father argues that Mother failed to preserve any objection to the issue of child support and,
as such, the issue was tried by consent. While we concede that “[i]ssues not raised in the trial
court cannot be raised for the first time on appeal,” Sparks v. Metro. Gov't of Nashville, 771
S.W.2d 430, 434 (Tenn. Ct. App. 1989)(citing Irvin v. Binkley, 577 S.W.2d 677 (Tenn. Ct.
App. 1978)), as set out above, Mother’s attorney did, in fact, object to the child support
ruling.
As stated in 19 W. Walton Garrett Tennessee Practice: Divorce, Alimony & Child
Custody § 20:1 (2013):
Tennessee retains jurisdiction in the trial court, by statute, for
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the modification of future . . . child support . . . . The pleadings
and proof must show permanent change in the circumstances of
the parties since the last decree. . . .
Criteria for modification of child support include the
noncustodial parent's ability to provide for the child or children's
needs, the resources and needs of the custodial parent,
remarriage of a parent, conduct of the custodial spouse after
decree, provision of services in kind, and emancipation.
Id. (footnotes omitted). Although it is clear to this court that there has been a change in
circumstances in that the Father is now the child’s primary residential parent, it is well settled
that “[a]ny order for child support shall be a judgment entitled to be enforced as any other
judgment of a court of this state, and . . . shall not be subject to modification as to any time
period or any amounts due prior to the date that an action for modification is filed and notice
of the action has been mailed to the last known address of the opposing parties.” Tenn. Code
Ann. § 36-5-101(f)(1); Brown v. Heggie, 876 S.W.2d 98, 101 (Tenn. Ct. App. 1993).
Prospective modifications of child support are also subject to the notice requirement
contained in Tennessee Code Annotated Section 36-5-101(f)(1). See State ex rel. Shaver v.
Shaver, No. 01A01-9610-CV-00474, 1997 WL 401827 (Tenn. Ct. App. July 18, 1997)
(perm. app. denied Tenn. Dec. 29, 1997).
One of the reasons for the notice requirement is that the purpose of an action can only
be determined from the pleadings. Pierce v. Tharp, 461 S.W.2d 950, 953 (Tenn. 1970).
Although we have previously recognized that trial courts have the ability to treat any
pleading according to the type of relief sought, regardless of its title, Estate of Doyle v.
Hunt, 60 S.W.3d 838 (Tenn. Ct. App. 2001), even if we construe Father’s petition as
liberally as possible, it simply does not constitute “an action for modification” of his child
support obligation. “A trial court has no authority, sua sponte, to modify its child support
decrees.” Long v. Long, No. 01A01-9406-CV-00270, 1995 WL 33741 (Tenn. Ct. App. Jan.
27, 1995). In its December 4, 2012 order, denying Mother’s motion to alter or amend the
June 4, 2012 order, the trial court explained its reasoning for addressing the issue of Father’s
child support:
Mother challenges the Court’s authority to modify child support.
The Court raised the issue of modification of child support sua
sponte, based on equitable principles. The Court found that
Mother is able-bodied, but was choosing not to work. The Court
found that it was unjust and inappropriate for Father to continue
to pay the same amount of child support that he paid prior to
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being designated as the child’s primary residential parent, as
Mother was utilizing these funds to support her household,
including her son from a prior relationship and her sister’s two
children.
The trial court’s order also notes Mother’s Facebook post, supra, in which she writes “child
support well spent.” Although the trial court’s statements may be true, the problem with the
trial court’s ruling is that it was not precipitated by a petition for modification. Thus, Mother
did not receive notice of any probability that child support was an issue at the hearing as
required by statute. Tenn. Code Ann. § 36-5-10(f)(1). Accordingly, we must reverse the trial
court’s order concerning modification of Father’s child support obligation. However, our
holding does not preclude Father from filing a petition for modification of child support on
remand should he choose to pursue such relief.
IV. Attorney Fees
In its June 4, 2012 Order, the trial court states, in relevant part:
Paragraph 10 of the Court’s January 18, 2011 Order provides as
follows:
Mother shall pay to Father the sum of $10,000 in
partial payment of the attorney fees that [Father]
has incurred incident to the filing and prosecution
of his petition. Father shall be, and is hereby,
awarded a judgment against Mother in said
amount, which shall be paid no later than the date
that Mother receives the next payment relating to
the book that she has or is writing.
Following the entry of the January 18, 2011 Order, Mother filed
a “Motion for Stay of Execution Pending Post Trial Motions” in
which she sought to stay the Court’s order, including the order
requiring her to pay $10,000 toward Father’s attorney fees. This
Court ordered Mother to pay the sum due into her attorney’s
escrow account. As of January 17, 2012, Mother had not done
so.
The Court’s January 18, 2011 Order included the
provision that this judgment would be paid no later than the date
that Mother receives the next payment relating to the book that
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she has or is writing based on Mother’s testimony offered in
December 2010 in which she testified that she expected to
receive a substantial sum related to her book within a few days
of the hearing. On January 17, 2012, Mother testified that she
had not received any funds from the book since prior to the
December 2010 hearing and that she did not expect to receive
further sums from the book. Accordingly that portion of the
Court’s January 18, 2011 Order stating that the $10,000 attorney
fee would be “paid no later than the date that Mother receives
the next payment relating to the book that she has or is writing”
is vacated and the judgment is due and owing from Mother to
Father.
On appeal, Mother argues that the trial court lacked subject matter jurisdiction to
modify the January 18, 2011 order regarding payment of attorney fees. We respectfully
disagree. We read the trial court’s order, supra, not as a modification of the original
judgment of $10,000, but rather as a means of enforcing that judgment. In other words, the
foregoing order does not reduce or increase the judgment against Mother. Based upon a
change in circumstances, i.e., Mother not receiving anticipated payments from her book, the
trial court merely lifted that criterion so as to enforce its previous order.
The very case that Mother relies upon in this section of her argument, Born Again
Church & Christian Outreach Ministries, Inc. v. Myler Church Building Systems of the
Midsouth, Inc., 266 S.W.3d 421 (Tenn. Ct. App. 2007), expressly states that, “[t]he filing
of a notice of appeal does not prevent the trial court from ruling on ancillary matters relating
to the enforcement or collection of its judgment.” Id. at 425, n.3 (citing First American
Trust Co. v. Franklin-Murray Development Co., L.P., 59 S.W.3d 135, 141 n.8 (Tenn. Ct.
App. 2001). It is well settled that a “trial court has the power and discretion to enforce its
orders in the way it deems best.” Wilkinson v. Wilkinson, No. W2012-00509-COA-R3-CV,
2013 WL 614708 (Tenn. Ct. App. Feb. 19, 2013).
At the hearing in this case, Mother testified that, since December 17, 2010, she had
not received any monies from her book; she further stated that she did not expect to receive
further payment. If, as Mother suggests in her brief, the trial court is precluded from lifting
the suspension of the $10,000 judgment until such time as Mother receives additional funds
from her book, then (based on Mother’s own testimony that she does not expect to receive
additional funds), the judgment would never be enforced. In addition, as set out above, the
trial court ordered Mother to pay the $10,000 into her attorney’s escrow account. There is
no dispute that she failed to comply with this order. Accordingly, we cannot conclude that
the trial court erred in removing the book payment criterion from its order so that the
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judgment could be enforced against Mother.
In her brief, Mother also contests the trial court’s June 4, 2012 order, wherein it ruled
that:
Mother shall pay to Father the sum of $15,000 in partial
payment of the attorney fees that he has incurred incident to his
defense of Mother’s petition and the filing and prosecution of
his counter-petition. Father shall be, and is hereby, awarded a
judgment against Mother in said amount. The Court finds this
judgment to be necessary for the financial care and support of
the minor child.
On appeal, Mother asserts that the fees and expenses awarded in the trial court’s June
4, 2012 order were not reasonable. In the first instance, our review of the record indicates
that Mother did not object to the reasonableness of the award at the trial level. As noted
above, “[i]ssues not raised in the trial court cannot be raised for the first time on appeal,”
Sparks v. Metro. Gov't of Nashville, 771 S.W.2d 430, 434 (Tenn. Ct. App. 1989)(citing Irvin
v. Binkley, 577 S.W.2d 677 (Tenn. Ct. App. 1978)). However, even if we allow the question,
the amount of the fees awarded is supported by Father’s attorney’s affidavit.
Mother further argues that the trial court’s award of attorney fees in its June 4 order
was based upon its findings of criminal contempt, arguing that “[c]riminal contempt citations
cannot be utilized for custody, visitation or attorney fees.” We need not address whether
Mother correctly states the law because it is clear from the record that the trial court based
its award of attorney fees on the fact that Mother had committed numerous breaches of both
the MDA and the Parenting Plan. As discussed below, both of these documents include
provisions requiring the trial court, in the event of breach, to award fees to the non-breaching
party.
V. Protective Order
On December 16, 2011, Mother caused to be issued Subpoenas Duces Tecum to
Horseshoe Hotel & Casino, Harrah’s Hotel and Casino, Goldstrike Casino Resort,
Fitzgerald’s Casino, Sam’s Town Hotel and Gambling Hall, and Hollywood Casino & RV
Park, pursuant to which she requested that the casinos produce the following:
[A]ny and all of the following documents: any and all invoices,
receipts, gambling statements, alcohol purchases, room receipts,
videotape, photographs or other documentation regarding the
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patronage of [Father] from January 1, 2010 thru the return date
of this subpoena.
The response date set forth in the subpoenas was December 27, 2011. The record shows that
although the subpoenas were issued on December 16, 2011, they were not sent to Father or
his attorney on that date. Rather, the subpoenas were placed in the United States mail on
December 20, 2011, and were accompanied by a transmittal letter from Mother’s attorney
dated December 19, 2011.
Father moved to quash the subpoenas and for a protective order, alleging that certain
of the requested documents had already been produced. In his motion, Father argues that
Mother’s subpoenas were overly broad in that they sought records that preceded the date of
the last hearing in the case, and that some of the documents sought were not relevant to any
issue currently before the court. Due to the holidays, a hearing on Father’s motion to quash
was not held before the casinos had responded to the subpoenas.
At trial, Mother attempted to admit the records that were received pursuant to the
subpoenas, including those records that pre-dated the trial court’s December 17, 2010 order.
Father objected on the ground of relevance and on the specific grounds set forth in his motion
to quash. Mother countered that the contents of the subpoenaed documents were relevant,
despite the fact that they pre-dated the December 2010 hearing, because they allegedly
demonstrated that Father had testified inconsistently at that hearing. The asserted
“inconsistency” was that Father had testified, in December 2010, that Mother had denied him
parenting time during the second half of the summer of 2010 while casino records reflected
that Father was at the casino for twelve days of the disputed period. The trial court ruled in
favor of Father.
On appeal, Mother argues that the trial court lacked subject-matter jurisdiction to enter
a protective order “regarding foreign subpoenas served within the State of Mississippi.” At
trial, Father moved the court to include, in any order from the proceedings, that Mother is not
to disseminate any of the documents that she procured from the casinos. Mother’s counsel
responded that he “did not have a problem with that.”
In her appellate brief, the entirety of Mother’s argument on this issue reads:
MissRCivP45(d) and Miss. Code Ann. Sec 11-59-11 govern
protective orders regarding foreign subpoenas served with the
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State of Mississippi.3 The rule and statute commit this
jurisdiction to the Mississippi circuit court for the Mississippi
county of issuance. In the instant case, the Circuit Court of
Tunica County, Mississippi would be the appropriate court for
the Father to seek the type of protective order issued by this
Court at paragraph 12 of the June 4, 2012 Judgment. Mother
only agreed to not disseminate the documents.
We glean from this “argument” that the issue pursued by Mother rests upon the portion of
the trial court’s order requiring Mother “to deliver all copies (with the exception of that
contained within the record in this case) to counsel for Father.” The trial court’s June 4 order
states:
During the pendency of these proceedings, counsel for Mother
caused to be issued subpoenas to various casinos in the state of
Mississippi seeking documents and things relating to Father.
The Court declined to admit these records (marked for
identification only as Exhibit 40) into evidence, finding that they
were not relevant to any issue before the Court and did not bear
on Father’s credibility. Counsel for Mother is instructed not to
disseminate the records and to deliver all copies (with the
exception of that contained within the record in this case) to
counsel for Father.
Mother points to no authority, nor do we find any in our research, which would
preclude the trial court from instructing Mother to deliver copies of the subpoenaed
documents to Father. Furthermore, from the trial court’s order, it appears that it did not
actually consider the documents as grounds for any substantive ruling. Moreover, Mother’s
argument that Father should be made to litigate this issue in the Circuit Court of Tunica
County, Mississippi is not supported by any argument in the brief and appears to overlook
the fact that Tunica County Mississippi is a forum that has no legitimate interest in the issues
raised in this case, nor do the parties appear to have any significant contact with that State.
From the record and the lack of argument in Mother’s appellate brief, we cannot conclude
3
Mississippi Code Annotated Section 11-59-11 provides:
An application to the court for a protective order or to enforce, quash or
modify a subpoena issued by a clerk of court under Section 11-59-5 must
comply with the rules or statutes of this state and be submitted to the court
in the county in which discovery is to be conducted.
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that the trial court committed reversible error in instructing Mother’s attorney to profer the
subpoenaed documents to Father’s counsel. Additionally, because the subpoenaed
documents did not form the basis for any substantive ruling, if there was error, it was
harmless. Tenn. R. App. P. 36(b).
VI. Evidence Admitted through the Testimony of Anna Cladakis
Ms. Cladakis was Father’s girlfriend at the time of the hearing in this case. The
disputed evidence, which was admitted through her testimony were “screen shots” from the
Tennessee Department of Transportation (“TDOT”) and Arkansas Department of
Transportation (“ADOT”) websites for road conditions on December 30, 2011. On that date,
Father had asked his brother to meet Mother at the McDonald’s in Brinkley, Arkansas to
exchange the child. According to the testimony, Mother did not arrived at the scheduled
meeting time of 6:00 p.m.; rather, she showed up at approximately 6:58 p.m. In response to
questions concerning her time of arrival, Mother testified in relevant part that:
A. I’m not exactly sure what time. We [Mother and her sister,
who was in the car with her] were in direct communication with
my brother-in-law. And if you can pull up records, there was a
tractor-trailer on fire on 40. It was blocked up to one lane. We
had been sitting there [for] a while.
Q. Okay. Well, interesting that you would say that because I
did actually have some records pulled up—
A. Okay.
Q. –on what traffic conditions were at the time.
A. I may can get my sister-in-law to send a picture, because I
told her to take a picture of it, too, when we went by.
Q. Let me pass to you—what I’ve handed to you is a —the first
one is a TDOT screenshot showing what the traffic conditions
were at 6:46 p.m. on December 30 th . Do you see that in the
lower right-hand corner?
A. Yes, and I do not know what TDOT is. And I’m not sure
that it’s even accurate. I know nothing about TDOT.
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Q. Okay. So you don’t know that that’s the Tennessee
Department of Transportation.
A. We weren’t in Tennessee. We were in Arkansas.
Q. Okay. Now, let’s go to the next page. Okay. Now, on the
second page, do you see the time at the bottom right-hand screen
that says December 30 th of 2011?
A. Yes.
Q. Okay. And do you see that that—the map that’s on there is
the state of Arkansas?
A. As far as I can tell.
Q. And do you see that red line going from West Memphis
down to Brinkley?
A. Sure.
In her testimony, Ms. Cladakis stated that on December 30, 2011, at Father’s request,
she had researched highway conditions in Tennessee and Arkansas by viewing the TDOT
and ADOT websites:
A. [Father] asked me to look up some traffic. . . . And I said,
oh, that’s easy, you go to the Department of Transportation. We
have that local here. Every state has it available to you. And
it’s real time.
Q. Okay.
COUNSEL FOR FATHER: Your Honor, if I may pass this to
Ms. Cladakis the exhibit that has been previously marked [i.e.,
containing the screenshots from TDOT and ADOT].
COUNSEL FOR MOTHER: Objection—
COUNSEL FOR FATHER: —for identification only.
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THE COURT: What are we doing, to show that there wasn’t
traffic?
COUNSEL FOR FATHER: The roads were clear from
Memphis to Brinkley, Arkansas is what we’re showing.
COUNSEL FOR MOTHER: It’s still hearsay. She has no
personal knowledge of what was the accurate—
THE COURT: Are these Department of Transportation
documents that you received—
COUNSEL FOR FATHER: No, they—what happened, as she
just explained so I’m not offering testimony, you can log on at
any given time to the DOC website in certain—
* * *
THE WITNESS: I printed it and sent it to [Father] . . . on the
email . . .
THE COURT: You know, those are self-authenticating
documents but I’m not sure about pulling them off the Internet.
But if you want—I’m going to let her tell us whether she relied
on those for traffic, and I need a date and time.
* * *
Q. Now, Ms. Cladakis, does the first page reflect what was
available on the [TDOT] website?
A. Yes, it does.
Q. And what was the date and time of the screenshot?
A. At the time that we—that I sent this, it was December 30 th at
6:47 p.m.
Q. Now, is the second page a screenshot from the [ADOT] site?
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A. Yes.
Q. And what is the date and time of the screenshot?
A. It is now December 30 th at 7:00 p.m..
COUNSEL FOR FATHER: Your Honor, I would move for
those to be admitted into evidence.
COUNSEL FOR MOTHER: Your Honor, same objection.
They’re still hearsay.
THE COURT: They are hearsay, but I’m going to let her testify
whether she found there was any congestion or not.
Q. Now, based on your review of those documents, did it
appear that there had been an accident that was impeding traffic
flow on Interstate 40 between Memphis and Brinkley,
Arkansas?
COUNSEL FOR MOTHER: Objection on personal knowledge,
as well, Your Honor. She wasn’t out there.
THE COURT: I’m going—you know, I—this is the way I drive.
Any responsible driver does it. And I want her to testify to it.
Q. Ms. Cladakis, based on your review of the Department of
Transportation websites, were you able to ascertain whether
there was a traffic delay on I-40 between Memphis and
Brinkley?
A. It was wide open.
On appeal, Mother argues that the screenshots were improperly admitted. Father
argues that Mother’s objection to the admission was based solely on hearsay, and that the
trial court sustained that objection, stating “[t]hey are hearsay.” Although Father contends
that Mother did not object to Ms. Cladakis’ lack of personal knowledge concerning traffic
conditions on December 30th, it appears from the foregoing that she did make that objection.
Regardless, we have reviewed the record and it does not appear that the trial court actually
admitted the screenshots into evidence; rather, they were marked for identification only.
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Furthermore, from our review, it does not appear that either Ms. Cladakis’ testimony, or the
Department of Transportation screenshots formed the basis for any of the trial court’s
substantive rulings. At most, these documents provided additional support for a finding that
Mother was late for the drop-off—a fact that Mother had already admitted in her testimony.
Accordingly, if there was error surrounding the handling of the TDOT or ADOT screenshots,
it was harmless error. Tenn. R. App. P. 36(b).
VII. Dr. Amy Beebe’s Testimony
The record reveals that Amy Beebe is a psychologist, licensed to practice in the State
of Tennessee. The referring questions that Dr. Beebe was asked to examine were whether
the child appeared to be on grade level, and whether the A Beka curriculum was on par with
the local public school curriculum. At trial, she submitted her Curriculum Vitae, which sets
forth her education and work experience. In relevant part, Dr. Beebe testified that she has
been licensed since 1992 to do “therapy as well as [] testing and evaluation for learning
disabilities, school placement.” In addition, Dr. Beebe stated that she has done “gifted
assessments for Shelby County Schools.” Dr. Beebe is on the board of the Bodine School,
and has worked with other schools in and around the Memphis area. Based upon this
testimony, Father tendered Dr. Beebe as an expert in the areas of psychology and educational
assessment:
COUNSEL FOR FATHER: And, Your Honor, I tender Dr.
Beebe as a witness in the areas of child psychology and
educational assessment.
Mother’s attorney then asked for permission to voir dire the witness, which permission was
granted. Following voir dire, Mother’s attorney objected to Dr. Beebe’s being admitted as
an expert on the following grounds:
COUNSEL FOR MOTHER: Okay. Your Honor, I think we
would object to this witness testifying in the area of
psycholog[y]. She has not examined any medical records or
clinical records of [the child].
We would also object to her testifying as an expert in
regard to educational assessment. We think a 90-minute time
frame to examine [the child] and the records not being there
before he was being examined makes her opinion—makes her
opinion very questionable in this matter.
The transcript continues:
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THE COURT: Okay. Do you [Mother’s attorney] want to
address the question of [Dr. Beebe’s] qualifications or do you
want me to just rule?
COUNSEL FOR FATHER: Your Honor, to the extent that
[Father’s] objection was with respect to Dr. Beebe being
tendered as a child psychologist expert, we do not anticipate
offering testimony from her about [the child’s] psychological
state.
Now, [Father’s] objection suggested that there were
psychological records for this child that should have been
reviewed, which is not the case.
THE COURT: I have a question [about] that. Clinical records,
are there clinical records somewhere?
COUNSEL FOR FATHER: There are not, Your Honor. . . . But
Dr. Beebe’s psychological background certainly comes into play
with all the educational assessments and the interpretation of
the—
THE COURT: Let me stop you. Dr. Beebe’s had—you may not
know Dr. Beebe. She’s testified many times in this courthouse
including in this courtroom. You are correct that it’s primarily
on a psychological basis.
But her testimony just now that she does assessment for
the city schools, county schools, private schools shows that she
has extensive experience and sort of testing that she says she
does, and I don’t know whether she did it on this child. But I
think she has the expertise and she’s been an expert for many
years around here. She’s one of the few who will still come to
court and testify, as we all know. So I’m willing to declare her
an expert.
A trial court's decision concerning the competency of an expert witness is reviewed
by this Court under an abuse of discretion standard. As discussed by this Court in Carpenter
v. Klepper, 205 S.W.3d 474 (Tenn. Ct. App. 2006):
A trial court has broad discretion in determining the
“admissibility, qualifications, relevancy and competency of
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expert testimony.” McDaniel v. CSX Transp., 955 S.W.2d 257,
263 (Tenn.1997). Questions regarding the qualifications of
expert witnesses are left to the trial court's discretion and may be
overturned only if that discretion is abused. McDaniel, 955
S.W.2d at 263. The Tennessee Supreme Court has defined an
abuse of discretion to mean “an erroneous conclusion or
judgment on the part of the trial judge-a conclusion that was
clearly against logic (or reason) and not justified.” Foster v.
Amcon Int'l, Inc., 621 S.W.2d 142, 145 (Tenn. 1981).
Carpenter, 205 S.W.3d at 477. Based upon Dr. Bebee’s educational background and specific
experience with local schools, we cannot conclude that the trial court’s overruling of
Mother’s objection was error. From the record, Dr. Bebee appears to be well qualified to
testify as an expert in this case.
After being admitted as an expert, Dr. Beebe testified, concerning the child, that she:
(1) had reviewed the child’s records from his elementary school; (2) had spent approximately
one and one-half hours with the child; (3) she was familiar with the A Beka home schooling
program prior to being consulted on this case; (4) she works with many children who are
home schooled; (5) performed an educational screening of the child; (6) discerned that the
child was average to above average in all areas according to standard scores; (7) discerned
that the child tested exceptionally well in math and phonics; (8) discerned that the child likely
had an above average IQ. The foregoing testimony was made relevant to this case by
Mother’s allegation that “[s]ince the change in custody, [Son’s] circumstances have
deteriorated due to the actions of Father. Father enrolled the child in an unaccredited home
school program.” Dr. Beebe testified that A Beka was, in fact, accredited: “[The A Beka
Program] is nationally recognized and accredited. It’s also used in many . . .private Christian
school settings.” Dr. Beebe was able to give some history of the A Beka Program, and stated
that it was thirty-years old, and had been “researched and tested.” Dr. Bebee also testified
that she had worked with other children who were enrolled in the A Beka Program.
The fact that Dr. Beebe spent ninety minutes with the child is not dispositive of the
question of her qualification to testify as to the A Beka curriculum, or as to Son’s grade level.
Furthermore, Mother’s argument that Dr. Beebe failed to review any medical or clinical
records in this case is disingenuous given the fact that none exist.
Mother further argues that the trial court erred “in authorizing Dr. Beebe to testify
regarding speech therapy pursuant to Rule 702 and 703 of Evidence.” It is clear from the
record that, contrary to Mother’s position, Dr. Beebe was not proferred as an expert in the
area of speech therapy. In fact, her testimony concerning the child’s speech therapy was
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limited to the way that speech and language problems “dovetail” (in Dr. Beebe’s words) with
the child’s educational needs. Dr. Beebe testified broadly that she had experience with
children who have speech and language issues, and that she often refers children with these
issues to speech therapists. In short, her experience with speech therapy is based mostly on
the referrals she makes; Dr. Beebe specifically testified that she does not diagnose speech
disorders, but only recognizes when there is a possibility that a child may need extra help in
this area. At that point, she simply refers the child to a qualified speech therapist.
Concerning Son, the extent of Dr. Beebe’s testimony regarding speech therapy was that,
during her evaluation, she noticed that he stutters, and thus concluded that he was in need of
therapy. She noted broadly that “[w]hen you have speech and language problems, it can
impact your ability to function in the classroom, especially with reading and following
directions. There is a dovetail.” Dr. Beebe’s observation that a child with speech and
language problems might have difficulty in the classroom is an opinion based in logic, not
expertise. Accordingly, we cannot conclude that Dr. Beebe was allowed to testify outside
the parameters of her qualifications as set by the trial court.
VIII. Father’s Attorney Fees on Appeal
Father has asked this Court to award his attorney fees and expenses incurred in
defense of this appeal. As briefly noted above, the parties’ MDA, which was incorporated
into the Final Decree of Divorce, provides, in relevant part that:
19. In the event that it should be determined, either by this
Court or by any other court of competent jurisdiction, that either
party has willfully breached any provision of this Agreement,
then the breaching party shall pay the other party all reasonable
attorneys’ fees and costs incurred in the enforcement of any such
provision or provisions as such are adjudged by the Court upon
full hearing.
Likewise, the Parenting Plan, which was also incorporated into the Final Decree
of Divorce provides:
In the event that it should be determined, either by this Court or
by any other court of competent jurisdiction, that either party has
breached any provision of this Plan, then the breaching party
shall pay to the other party all reasonable attorneys’ fees and
costs incurred in the enforcement of any such provision or
provisions as such are adjudged by the Court upon full hearing.
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Based upon the foregoing provisions, and the fact that we have affirmed the trial
court’s findings concerning various acts of contempt on the part of Mother for violation of
the mandates of the Parenting Plan and the MDA, we are of the opinion that Father is entitled
to his fees and expenses incurred in defense of this appeal. Accordingly, we grant Father’s
request for his attorney fees and expenses and remand for a determination of the amount
thereof.
For the foregoing reasons, we reverse the order of the trial court concerning
modification of Father’s child support obligation. The order of the trial court is affirmed in
all other respects. The case is remanded to the trial court for further proceedings as may be
necessary and are consistent with this Opinion, including, but not limited to, calculation of
the amount of attorney’s fees and expenses incurred by Father in defense of this appeal and
entry of judgment for same. Costs of the appeal are taxed against the Appellant Mother, and
her surety.
_________________________________
J. Steven Stafford, Judge
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