Lisa E. Burris v. James Morton Burris , 512 S.W.3d 239 ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 17, 2016 Session
LISA E. BURRIS v. JAMES MORTON BURRIS
Appeal from the Chancery Court for Rutherford County
No. 060346DR Mitchell Keith Siskin, Judge
___________________________________
No. M2015-01969-COA-R3-CV – Filed September 20, 2016
___________________________________
Appellant appeals from the denial of her motion to alter or amend the trial court‟s judgment
finding her guilty of thirty-seven counts of criminal contempt and sentencing her to 403 days
incarceration. We affirm the trial court‟s denial of Appellant‟s post-trial motion on the
ground that the trial court erred in finding her non-payment of child support willful. We also
affirm the denial of Appellant‟s post-trial motion based upon evidence that Appellant
obtained a loan to pay her support obligation after the contempt hearing. We vacate the trial
court‟s denial of Appellant‟s post-trial motion, however, on the ground that trial court failed
to consider whether Appellant‟s sentence was excessive. We therefore remand to the trial
court to make appropriate findings of fact and conclusions of law to support its ruling and to
consider whether Appellant‟s sentence is excessive. Affirmed in part; vacated in part and
remanded.
Tenn. R. App. P. 3 Appeal as of Right: Judgment of the Chancery Court Affirmed in
Part; Vacated in Part; and Remanded
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which RICHARD H.
DINKINS and W. NEAL MCBRAYER, JJ., joined.
Chelsea Nicholson, Nashville, Tennessee, for the appellant, Lisa E. Burris.
Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellee, James Morton Burris.
OPINION
The parties, James Morton Burris (“Father”) and Lisa E. Burris (“Mother), were
divorced by order of the Rutherford County Chancery Court on December 11, 2008. On the
same day, the trial court entered a parenting plan related to the parties‟ three children.1 Father
was named the children‟s primary residential parent, and Mother was awarded every-other-
weekend parenting time with the children. Mother was ordered to pay $525.00 per month to
Father in child support and one-half of all uncovered reasonable and necessary medical
expenses incurred on behalf of the children. Father was also awarded a judgment for a child
support arrearage in the amount of $18,882.00. Finally, Mother was ordered to obtain a life
insurance policy in the amount of $300,000.00 and to name Father as beneficiary.
The parties engaged in extensive post-divorce litigation, and the trial court eventually
entered an amended parenting plan on December 4, 2009. Under this plan, Mother‟s
parenting time was increased, and her child support obligation was reduced to $484.00 per
month. Mother was also ordered to pay $100.00 per month toward her outstanding child
support arrearage. On November 27, 2012, the parties entered into an agreed order again
modifying Mother‟s child support obligation. Under this order, her child support obligation
was increased to $563.00 per month based upon the Rutherford County Child Support
Office‟s calculation. Mother‟s arrearage was set at $2,425.61, which was to be reduced by an
income tax refund intercept in the amount of $1,300.00. The parties further agreed that
Mother owed Father $1,733.53 for her portion of the uncovered medical expenses incurred
by the children through November 8, 2012. The order further indicated that Mother would
pay the total amount due to Father immediately after the entry of the order.
The parties‟ acrimonious relationship with regard to parenting time and child support
continued unabated. Eventually, Mother filed a petition to modify the parties‟ parenting plan,
which she amended on March 21, 2013. One year later, on March 21, 2014, Father filed a
motion to find Mother in criminal contempt for her “habitual[]” failure to pay one-half of the
children‟s medical expenses and child support. Father alleged that despite having the present
ability to pay for uncovered medical expenses and child support, Mother failed to pay
$2,277.00 in child support and $544.74 in uncovered medical expenses as ordered by the trial
court.
The trial court held a hearing on Mother‟s amended petition to modify the parenting
plan and Father‟s petition for criminal contempt on May 16, 2014. The trial court partially
granted Mother‟s modification petition and found Mother guilty of four counts of criminal
contempt. Mother was ordered to serve forty days in jail, with twenty of those days
suspended. Although an order on the criminal contempt petition was not entered until June 2,
2014, Mother began serving her jail sentence immediately on May 16, 2014. On May 21,
2014, Mother filed an emergency ex parte motion to alter or amend the trial court‟s
judgment. Mother alleged that her incarceration threatened her newly acquired employment,
making it impossible for her to pay support and that the trial court was required to consider a
less drastic alternative. Although no order was entered on Mother‟s motion, it appears from
1
One of the children has now reached majority.
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the record that Mother was released from incarceration on May 23, 2014, after serving only
seven days of her twenty-day suspended sentence. On August 15, 2014, a child support
magistrate entered a temporary order reducing Mother‟s child support obligation to $457.00
per month. The trial court confirmed the order of the child support magistrate on April 24,
2015, more than eight months after the child support magistrate entered its order.
Father filed another criminal contempt petition on September 25, 2014. Therein,
Father alleged that Mother refused to return one of the children to his custody pursuant to the
parenting plan. Father asked that Mother be found in criminal contempt, that her previously
suspended sentence be reinstated, and that she be ordered to serve the remainder of the
sentence. On October 28, 2014, Mother filed a second petition to modify the parties‟
parenting plan and her child support obligation, asserting that her employment had recently
been terminated. Mother therefore asked that her child support obligation be modified to take
into account her lack of income and that uncovered medical expenses be divided pro rata,
rather than equally.
Mother filed her own criminal contempt petition on November 3, 2014, alleging that
Father violated the parties‟ parenting plan by making harassing and derogatory comments to
Mother regarding her failure to pay uncovered medical expenses. On March 30, 2015, Father
filed an amended petition for criminal contempt against Mother, raising additional allegations
that Mother had failed to pay child support and uncovered medical expenses.
The trial court conducted a hearing on Father‟s amended petition for criminal
contempt on May 26, 2015, wherein the trial court found mother guilty of several counts of
criminal contempt and sentenced Mother to incarceration. Mother began serving her sentence
immediately on May 26, 2015. On June 18, 2015, the trial court entered an order finding
Mother in contempt for seventeen counts of willful failure to pay certain medical bills from
2014, twelve counts of willful failure to pay certain medical bills from 2015, one count for
willful failure to allow Father visitation, and seven counts of willful failure to pay child
support from November 2014 until May 2015. Mother was ordered to serve ten days per
count, “consecutive to each other and consecutive to the suspended sentence hereby revoked”
for a total of 403 days.
Mother filed a motion to vacate the order on July 8, 2015. Mother submitted that, prior
to the hearing on Father‟s petition, she had made arrangements to bring her child support
current by securing a loan from her sister. Mother attached exhibits including loan documents
and a promissory note to her sister. The trial court conducted a hearing on the motion to
vacate on August 7, 2015, and denied the motion by order entered on August 28, 2015. The
trial court also ordered Mother to pay Father‟s attorney‟s fees.
Mother appealed this decision on September 23, 2015. Mother did not file a motion in
the trial court to stay the judgment pending appeal. Instead, on November 16, 2015, Mother
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filed a motion in this Court to set an appeal bond or to be released on her own recognizance
pending appeal. On November 18, 2015, this Court granted Mother‟s motion and stayed the
remainder of Mother‟s sentence pending appeal. At the time Mother was released, she had
served approximately 176 days in jail.
Issues Presented
Mother raises one issue on appeal, namely: Whether the trial court erred in denying
her motion to vacate its order finding Mother in contempt. Additionally, Father asks that he
be awarded attorney‟s fees incurred in defending a frivolous appeal.
Discussion
Mother raises only a single issue in this appeal: whether the trial court erred in
refusing to grant her “motion to vacate” pursuant to Rule 60.02 of the Tennessee Rules of
Civil Procedure.2 Here, Mother filed her motion to set aside the trial court‟s judgment less
than thirty days after it was entered. Accordingly, her motion was properly brought under
Rule 59.04,3 rather than Rule 60.02. See Discover Bank v. Morgan, 363 S.W.3d 479, 489
2
Rule 60.02 provides:
On motion and upon such terms as are just, the court may relieve a
party or the party's legal representative from a final judgment, order or
proceeding for the following reasons: (1) mistake, inadvertence, surprise or
excusable neglect; (2) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the
judgment is void; (4) the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that a judgment should have
prospective application; or (5) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a reasonable
time, and for reasons (1) and (2) not more than one year after the judgment,
order or proceeding was entered or taken. A motion under this Rule 60.02
does not affect the finality of a judgment or suspend its operation, but the
court may enter an order suspending the operation of the judgment upon
such terms as to bond and notice as to it shall seem proper pending the
hearing of such motion. This rule does not limit the power of a court to
entertain an independent action to relieve a party from a judgment, order or
proceeding, or to set aside a judgment for fraud upon the court. Writs of
error coram nobis, bills of review and bills in the nature of a bill of review
are abolished, and the procedure for obtaining relief from a judgment shall
be by motion as prescribed in these rules or by an independent action.
3
Rule 59.04 provides that “[a] motion to alter or amend a judgment shall be filed and served within
thirty (30) days after the entry of the judgment.”
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(Tenn. 2012) (characterizing a Rule 60.02 motion as one where a party “seek[s] relief [] more
than thirty days after entry of a final judgment”); Campbell v. Archer, 555 S.W.2d 110, 112
(Tenn. 1977) (“The function of [Rule 60] is to give relief from final judgments; Rule 59 . . .
is the appropriate remedy for asserting alleged errors affecting a judgment which has not yet
become final.”); Stricklin v. Stricklin, 490 S.W.3d 8, 18 (Tenn. Ct. App. 2015) (“Because
[father‟s] motion was filed within thirty days from the entry of the June 3 order, we regard
his motion as a request for relief under Rule 59.”) (citing Campbell, 555 S.W.2d at 112); see
also Ferguson v. Brown, 291 S.W.3d 381, 387 (Tenn. Ct. App. 2008) (“Rule 60.02 affords a
party a means to seek relief from a final, non-appealable judgment.”). But see Smith v.
Haley, No. E2000-001203-COA-R3-CV, 2001 WL 208515, at *5 (Tenn. Ct. App. Mar. 2,
2001) (“[Rule 59.04] applies to final judgments.”). Indeed, in her reply brief to this Court,
Mother admits that her motion to vacate was, in substance, a Rule 59.04 motion to alter or
amend. We will therefore consider whether Mother was entitled to relief under Rule 59.04.
As we explained in In re M.L.D., 182 S.W.3d 890 (Tenn. Ct. App. 2005):
The purpose of a Rule 59.04 motion to alter or amend a
judgment is to provide the trial court with an opportunity to
correct errors before the judgment becomes final. Bradley v.
McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998) (overruled
in part on other grounds by Harris v. Chern, 33 S.W.3d 741
(Tenn. 2000)). The motion should be granted when the
controlling law changes before the judgment becomes final;
when previously unavailable evidence becomes available; or to
correct a clear error of law or to prevent injustice. Id. A Rule 59
motion should not be used to raise or present new, previously
untried or unasserted theories or legal arguments. Local Union
760 of Intern. Broth. of Elec. Workers v. City of Harriman,
No. E2000-00367-COA-R3-CV, 2000 WL 1801856, at *4
(Tenn. Ct. App. Dec. 8, 2000) perm. app. denied (Tenn. May 14,
2001), see Bradley, 984 S.W.2d at 933 (holding: a Rule 59
motion should not be used to raise new legal theories where
motion for summary judgment is pending).
M.L.D., 182 S.W.3d at 895. We review a trial court‟s decision on whether to grant a Rule
59.04 motion to alter or amend a judgment under an abuse of discretion standard. Stovall v.
Clarke, 113 S.W.3d 715, 721 (Tenn. 2003).
As we perceive it, Mother raised three grounds for relief in her motion to alter or
amend the trial court‟s judgment and on appeal to this Court: (1) that the trial court erred in
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finding that Mother‟s failure to pay child support and uncovered medical expenses was
willful; (2) that the trial court should have considered Mother‟s newly presented evidence
that she could become current on all of her child support obligations due to renewed
employment and a loan from a family member; and (3) that the trial court‟s judgment was
excessive and therefore caused an injustice or constituted a clear error of law. We will
consider each ground in turn.
I.
We first consider Mother‟s argument that the trial court erred in finding her failure to
pay child support willful. As an initial matter, we note that despite the clear directive of Rule
27 of the Tennessee Rules of Appellate Procedure that arguments be accompanied by
citations to relevant legal authority, Mother‟s brief contains no legal authority regarding this
particular issue. See Tenn. R. App. P. 27(a)(7)(A) (requiring that arguments contain
“citations to the authorities”). Despite this omission, we agree with Mother that in order for
the trial court to have found Mother in criminal contempt, her failure to follow the court‟s
directives must have been willful. See Ahern v. Ahern, 15 S.W.3d 73, 78 (Tenn. 2000) (“An
act of contempt is a wilful[4] or intentional act that offends the court and its administration of
justice.”) (citing Tenn. Code Ann. § 29-9-102).5 In the context of a failure to pay child
support or uncovered medical expenses, in order for Mother‟s failure to be willful, she must
4
According to Garner’s Dictionary of Legal Usage: “Willful is the preferred spelling in [American
English].” Bryan Garner, Garner’s Dictionary of Legal Usage 948 (3d ed. 2011). In contrast, the spelling
“wilful” is preferred in British English. Id. Accordingly, we will use the term “willful” throughout this
Opinion.
5
Tennessee Code Annotated Section 29-9-102 provides:
The power of the several courts to issue attachments, and inflict punishments
for contempts of court, shall not be construed to extend to any except the
following cases:
(1) The willful misbehavior of any person in the presence of the court, or so
near thereto as to obstruct the administration of justice;
(2) The willful misbehavior of any of the officers of such courts, in their
official transactions;
(3) The willful disobedience or resistance of any officer of the such courts,
party, juror, witness, or any other person, to any lawful writ, process, order,
rule, decree, or command of such courts;
(4) Abuse of, or unlawful interference with, the process or proceedings of
the court;
(5) Willfully conversing with jurors in relation to the merits of the cause in
the trial of which they are engaged, or otherwise tampering with them; or
(6) Any other act or omission declared a contempt by law.
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have had “the ability to pay child support at the time it was due.” Cottingham v. Cottingham,
193 S.W.3d 531, 538 (Tenn. 2006).
In her motion to alter or amend, Mother cites several facts meant to show that her non-
payment of child support was not willful.6 The trial court, however, specifically found that
Mother‟s failure to pay child support and uncovered medical expenses was willful, citing her
$4,000.00 payment shortly before the contempt trial. As an initial matter, we first note that
Rule 59.04 motions are not opportunities to re-litigate the issues previously adjudicated at
trial. Vaccarella v. Vaccarella, 49 S.W.3d 307, 312 (Tenn. Ct. App. 2001) (citing Bradley,
984 S.W.2d at 933). Thus, this issue was not a proper ground for relief under Rule 59.04. See
M.L.D., 182 S.W.3d at 895 (discussing the grounds for relief under Rule 59.04).
Even assuming arguendo that Mother raised a proper ground to alter or amend the trial
court‟s judgment under Rule 59.04, we nevertheless conclude that she is not entitled to relief
on this issue. Whether Mother had the ability to pay support and whether her failure to do so
was willful are both issues of fact. State ex rel. Murray v. Neiswinter, No. M2005-01983-
COA-R3-CV, 2007 WL 565823, at *6 (Tenn. Ct. App. Feb. 23, 2007) (“The „ability to pay‟
and „willful failure to pay‟ elements are distinct findings of fact and both must be proven in
order to find a person in criminal contempt.”). Under Rule 13(e) of the Tennessee Rules of
Appellate Procedure: “Findings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the finding by the trier of fact of
guilt beyond a reasonable doubt.” See also Cottingham v. Cottingham, 193 S.W.3d 531, 538
(Tenn. 2006) (applying Rule 13(e) to a criminal contempt conviction arising out of a civil
action). In order to meet this burden, Rule 24 of the Tennessee Rules of Appellate Procedure
places on the appellant the duty to prepare a record which conveys a fair, accurate, and
complete account of what transpired in the trial court regarding the issues which form the
basis of the appeal. The appellant also has the burden to provide this Court with a transcript
6
It is not entirely clear from Mother‟s motion to alter or amend or the record on appeal whether the
facts Mother cites in support of this particular argument were presented to the trial court in the contempt
hearing. Mother does not expressly state in her motion, however, that these facts were newly discovered and
could not have been discovered through due diligence prior to trial. Further, Mother filed no affidavit or
exhibits to support these alleged facts or to show that the evidence contained in her motion was newly
discovered. In Seay v. City of Knoxville, 654 S.W.2d 397 (Tenn. Ct. App. 1983), this Court held that when a
party seeks a new trial on the basis of newly discovered evidence, the moving party must file affidavits that
“the evidence has been discovered since trial and that it could not have been discovered prior to trial through
the exercise of due diligence.” Id. at 399. This Court has applied the Seay holding to motions to alter or amend
that likewise rely on newly discovered evidence. See Pittman v. Williamson Cty., No. M2003-02860-COA-
R3-CV, 2005 WL 1886891, at *6 (Tenn. Ct. App. Aug. 9, 2005). Because Mother filed no affidavits regarding
her ability to present this evidence at trial and, indeed, does not assert in her motion that this evidence is newly
discovered, we will simply treat this evidence as having been in existence at the time of trial and, presumably,
presented to the trial court. As discussed in detail, infra, however, the lack of transcript or statement of the
evidence contained the record on appeal hinders our ability to determine if this evidence was actually presented
to the trial court.
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of the evidence or a statement of the evidence from which we can determine whether the
evidence preponderates for or against the findings of the trial court. Coakley v. Daniels, 840
S.W.2d 367, 370 (Tenn. Ct. App. 1992). In the absence of a transcript or statement of the
evidence, we conclusively presume that the findings of fact made by the trial court are
supported by the evidence and are correct. J.C. Bradford & Co. v. Martin Constr. Co., 576
S.W.2d 586, 587 (Tenn. 1979).
Here, Mother filed no transcript or statement of the evidence from the trial court
proceedings. In her reply brief, Mother asserts that this omission stems from her trial
counsel‟s failure to retain a court reporter. Mother further asserts that no statement of the
evidence was available because “none of the attorneys representing [Mother] participated in
any of the proceedings below.” Mother therefore asserts that at the time of the preparation of
the appeal, she was unable to comply with Rule 24(c)‟s requirement that the statement of the
evidence be certified by Mother‟s counsel. Respectfully, we cannot agree.
First, we note that Mother‟s decision to change counsel was a voluntary decision made
by her or her former counsel. Indeed, it appears from the oral argument in this cause that the
decision to obtain different counsel on appeal was a strategic decision. Regardless of the
reason for the change in counsel, Rule 24(c) clearly allows either an appellant‟s counsel or
the appellant herself to certify that the statement of the evidence is “an accurate account of
the proceedings.” Mother asserts that this is an unrealistic requirement, but offers no
explanation as to why Mother could not attempt, with the assistance of her new counsel, to
create a statement of the evidence regarding a hearing that she personally attended. Even if
Mother‟s attempt proved inadequate, it would then be Father‟s or the trial court‟s duty to
object and attempt to correct the statement of the evidence to create an accurate
representation of the proceedings. See Tenn. R. App. P. 24(c) (“If the appellee has objections
to the statement as filed, the appellee shall file objections thereto with the clerk of the trial
court within fifteen days after service of the declaration and notice of the filing of the
statement.”), (e) (“Any differences regarding whether the record accurately discloses what
occurred in the trial court shall be submitted to and settled by the trial court regardless of
whether the record has been transmitted to the appellate court.”); see also Lacy v. HCA
Tristar Hendersonville Hosp., No. M2015-02217-COA-R3-CV, 2016 WL 4497953, at *3
(Tenn. Ct. App. Aug. 25, 2016) (holding that when the parties submit inaccurate or
insufficient statements of the evidence, the obligation is on the trial court to either give the
parties an opportunity to correct the inaccuracies or to prepare its own statement of the
evidence) (citing Bellamy v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281
(Tenn. 2009) (directing the trial court to resolve conflicts in competing statements of the
evidence and to transmit a supplemental record to the Court of Appeals)). Mother made no
such attempt. Accordingly, we will not excuse Mother‟s failure to comply with the clear
mandates of Rule 24. Because the trial court‟s findings of fact are presumed to be correct in
the absence of a transcript or statement of the evidence, we affirm the trial court‟s denial of
Mother‟s motion to alter or amend on the issue of whether her failure to pay child support
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and uncovered medical expenses was willful. The trial court‟s underlying judgment finding
Mother guilty of thirty-seven separate counts of criminal contempt is therefore affirmed.
II.
Mother next asserts that the trial court should have considered new evidence
submitted with her motion to alter or amend that established that Mother could pay all of her
outstanding obligations. According to this Court:
In order to sustain a motion to alter or amend under Rule 59.04
based on newly discovered evidence, “it must be shown that the
new evidence was not known to the moving party prior to or
during trial and that it could not have been known to him
through exercise of reasonable diligence.”
Kirk v. Kirk, 447 S.W.3d 861, 869 (Tenn. Ct. App. 2013) (quoting Seay v. City of Knoxville,
654 S.W.2d 397, 399 (Tenn. Ct. App. 1983) (citations omitted)). Furthermore, “„[f]acts
arising after the trial do not come within the rule of newly discovered evidence.‟” Barnhill v.
Barnhill, No. 86-101-II, 1986 WL 8280, at *3 (Tenn. Ct. App. July 30, 1986) (quoting 58
Am.Jur.2d New Trial § 167 (1971)). Instead, “„[n]ewly discovered evidence must be of facts
existing at the time of trial.‟” Barnhill, 1986 WL 8280, at *3 (quoting Wright & Miller,
Federal Practice and Procedure § 2808 (1973)). “„If it were grounds for a new trial that facts
occurring subsequent to the trial have shown an inaccurate prophecy, litigation would never
come to an end.‟” Barnhill, 1986 WL 8280, at *3 (quoting Nordin Construction Co. v. City
of Nome, 489 P.2d 455, 473 (Alaska 1971)). As this Court clearly explained:
[E]vidence that came into existence after the trial is not to be
considered when deciding a [Rule] 59 motion. The purpose of a
[Rule] 59 post-trial motion is to prevent unnecessary appeals by
giving the trial court the opportunity to correct errors which
occur before the entry of a judgment.
Smith v. Smith, No. W2002-00477-COA-R3-CV, 2003 WL 135056, at *7 (Tenn. Ct. App.
Jan. 15, 2003) (“Newly discovered evidence . . . is that evidence which is in existence at the
time of trial but is not ascertained at that time.”).
Here, Mother‟s motion to alter or amend clearly references events that occurred after
the May 26, 2015 hearing on Father‟s contempt petition. For example, Mother asserts that
“since her incarceration,” she has learned that she can return to her previous employment.
Further, Mother‟s motion alleges that Mother signed a promissory note to obtain a loan from
her sister to pay her child support obligation on July 8, 2015, over a month after the contempt
hearing. Under these circumstances, the trial court did not abuse its discretion in denying
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Mother‟s motion to alter or amend because the facts alleged by Mother are not a proper basis
for the alteration of the trial court‟s judgment.
Furthermore, even assuming arguendo that some of the facts that Mother alleges in her
motion were in existence at the time of the contempt hearing, nothing in Mother‟s motion
alleges that these facts “could not have been known to [Mother] through exercise of
reasonable diligence.” Kirk, 447 S.W.3d at 869. Likewise, Mother did not attach to her
motion an affidavit to establish this fact. See In re Estate of Ross, No. M2014-02252-COA-
R3-CV, 2015 WL 4557058, at *6 (Tenn. Ct. App. July 28, 2015) (“In order to sustain a
motion to alter or amend under Rule 59.04 based on newly discovered evidence, „it must be
shown that the new evidence was not known to the moving party prior to or during trial and
that it could not have been known to him through exercise of reasonable diligence.‟”)
(quoting Seay, 654 S.W.2d at 399 (Tenn. Ct. App. 1983) (internal citations omitted)
(requiring an affidavit to show this fact)). Thus, the trial court‟s denial of Mother‟s motion to
alter or amend on this issue is affirmed.
III.
Finally, Mother asserts that the trial court‟s judgment sentencing her to 403 days
incarceration, to be served concurrently, was excessive in light of the circumstances. This
Court described Tennessee court‟s criminal contempt power as follows:
The power of courts to punish a party for contempt is
delineated in Tenn. Code Ann. § 29-9-102. The power to inflict
punishments for contempt of court extends to the willful
disobedience or resistance of any party to any lawful order,
decree or command of the court. Tenn. Code Ann. § 29-9-
102(3).7 Contempt may be either criminal or civil. 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, 938 S.W.2d [394,] 398 [(Tenn.
7
Tennessee Code Annotated Section 29-9-102(3) provides:
The power of the several courts to issue attachments, and inflict punishments
for contempts of court, shall not be construed to extend to any except the
following cases:
* * *
(3) The willful disobedience or resistance of any officer of the such courts,
party, juror, witness, or any other person, to any lawful writ, process, order,
rule, decree, or command of such courts . . . .
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1996)]; see also State ex rel. Anderson v. Daugherty, 137 Tenn.
125, 191 S.W. 974 (1917). Generally, sanctions for criminal
contempt are designed to punish the contemnor and are
unconditional in nature. Black, 938 S.W.2d at 398. It is issued
as punishment and is unconditional. Ahern, 15 S.W.3d [73,] 79
[(Tenn. 2000)].
State ex rel. Flowers v. Tennessee Trucking Ass’n Self Ins. Grp. Trust, 209 S.W.3d 602,
613 (Tenn. Ct. App. 2006). Unless otherwise specifically provided, the circuit, chancery, and
appellate courts are limited to imposing a fine of $50.00 and to imprisoning an individual for
not more than ten days. Tenn. Code Ann. § 29-9-103.8 Despite this limitation, the Tennessee
Supreme Court has previously approved of the practice of imposing “the maximum ten-day
sentence upon a single instance of criminal contempt,” depending on the seriousness of the
offense. In re Sneed, 302 S.W.3d 825, 828 (Tenn. 2010) (citing Frye v. Frye, 80 S.W.3d 15,
17, 19 (Tenn. Ct. App. 2002)). Thus, the Tennessee Supreme Court has upheld a trial court‟s
ruling that the defendant was guilty of multiple counts of criminal contempt, each count
punishable by ten days in jail. Sneed, 302 S.W.3d at 828 (affirming trial court‟s finding that
defendant was guilty of fifty separate counts of criminal contempt). Where “a defendant is
convicted of more than one offense,” however, “the sentencing court must determine
whether the sentences run consecutively or concurrently to one another.” Sneed, 302 S.W.3d
at 828 (emphasis added) (reducing total effective sentence based upon fifty separate counts
of criminal contempt).
Here, the trial court found Mother guilty of thirty-seven separate counts of criminal
contempt and sentenced her to the maximum ten days per count. Combined with the
suspended sentence previously imposed that the trial court revoked, Mother‟s total sentence
was 403 days. Mother first asserts that her sentence inappropriately exceeds the maximum
sentence set forth in Tennessee Code Annotated Section 36-5-104. Tennessee Code
Annotated Section 36-5-104 provides:
(a) Any person, ordered to provide support and maintenance for
a minor child or children, who fails to comply with the order or
decree, may, in the discretion of the court, be punished by
8
Tennessee Code Annotated Section 29-9-103 provides:
(a) The punishment for contempt may be by fine or by imprisonment, or
both.
(b) Where not otherwise specially provided, the circuit, chancery, and
appellate courts are limited to a fine of fifty dollars ($50.00), and
imprisonment not exceeding ten (10) days, and, except as provided in § 29-
9-108, all other courts are limited to a fine of ten dollars ($10.00).
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imprisonment in the county workhouse or county jail for a
period not to exceed six (6) months.
(b) No arrest warrant shall issue for the violation of any court
order of support if such violation occurred during a period of
time in which the obligor was incarcerated in any penal
institution and was otherwise unable to comply with the order.
(c) In addition to the sanction provided in subsection (a), the
court shall have the discretion to require an individual who fails
to comply with the order or decree of support and maintenance
to remove litter from the state highway system, public
playgrounds, public parks, or other appropriate locations for any
prescribed period or to work in a recycling center or other
appropriate location for any prescribed period of time in lieu of
or in addition to any of the penalties otherwise provided;
provided, however, that any person sentenced to remove litter
from the state highway system, public playgrounds, public
parks, or other appropriate locations or to work in a recycling
center shall be allowed to do so at a time other than such
person‟s regular hours of employment.
(d) In any proceeding to enforce child support, the court may
apply an inference that the obligor had the ability to pay the
ordered child support as set forth in § 36-5-101(a)(8).
In support of her argument, Mother cites the Tennessee Supreme Court‟s holding in
Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000), for the proposition that six months is the
maximum sentence that may be imposed for criminal contempt involving issues of child
support. Respectfully, we do not agree that Ahern stands for the proposition put forth by
Mother.
In Ahern, mother filed a petition for criminal and civil contempt against father for
failure to pay child support and alimony. Id. at 76. In a later amendment to the petition,
mother noted that she was proceeding under both criminal and civil contempt. Id. The parties
were first set to try the contempt petition in Division 5 of the Shelby County Circuit Court.
Id. After the trial court heard testimony from the first witness and learned that the matters at
issue involved a divorce previously heard in Division 8, the trial court sua sponte transferred
the case to Division 8. Id. Once the case was transferred to Division 8, father objected on
double jeopardy grounds and, alternatively, requested a jury trial. Id. The trial court ruled that
both the objection and jury trial request were waived. Id. Eventually, the Division 8 trial
court held a hearing on the contempt petition and found father guilty of criminal contempt.
Id. at 77. Specifically, the trial court found that father had committed twenty-eight separate
counts of criminal contempt for failure to pay alimony and sentenced him to five days for
each count for a total sentence of 140 days. Id. The trial court further found that father failed
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to pay school tuition and medical costs as required by the parties‟ parenting plan, sentencing
father to 180 days for this failure, to run concurrently with the 140-day sentence. Id.
On appeal, father argued that the trial court erred in overruling his double jeopardy
objection, or in the alternative, erred in denying his request for a jury trial. Id. Although the
Ahern Court noted that father did not appeal the length of his sentence, the Tennessee
Supreme Court nevertheless indicated that “the legislature has provided a specific statute to
address the situation in which an obligor fails to comply with a child support order.” Id. at
79. In the instant case, Mother asserts that this language indicates that the penalty provided
by Tennessee Code Annotated Section 36-5-104 is the exclusive penalty for contemptuous
acts related to the failure to pay child support. Respectfully, we cannot agree.
First, we note that the language in Ahern does not support Mother‟s contention.
Indeed, the very sentence cited by Mother expressly states that the remedy contained in
Section 36-5-104 is “[i]n addition to the contempt provisions in Title 29[.]” As previously
discussed, Title 29 provides that circuit, chancery, and appellate courts may impose a fine of
$50.00 and imprisonment of up to ten days for separate counts of criminal contempt, unless
“otherwise specially provided” by another statute. Nothing in Tennessee Code Annotated
Section 36-5-104 specifically limits a court‟s contempt power under Title 29. Indeed, the
General Assembly does not expressly characterize Section 36-5-104 as a contempt statute.
Moreover, the Ahern decision cannot be fairly characterized as holding that trial
courts are not entitled to sentence contemnors to more than six months in jail for violations of
child support orders, as Ahern simply did not address this issue. In fact, in Ahern, the
sentence imposed by the trial court was 180 days, or the equivalent of six months. Ahern, 15
S.W.3d at 77. Accordingly, the issue of whether a parent could be punished for more than six
months for violations of child support orders under Title 29 was simply not at issue in Ahern.
Finally, we note that Tennessee courts have consistently characterized Sections 29-9-
103 and 36-5-104 as separate and distinct concepts, which require discrete procedures and
entail different rights. Indeed, in Brown v. Latham, 914 S.W.2d 887 (Tenn. 1996), the
Tennessee Supreme Court held that:
Section 36-5-104(a) defines a criminal offense and the
respondents are entitled to jury trials. The statute states the
essential indicia of a criminal offense. Its violation is not
declared to be a contempt as contemplated by Tenn. Code Ann.
§ 29-9-102 (1980). Its stated purpose is not to compel
performance but to punish for non-performance by
imprisonment for a definite period of time. The language of
subsection (b), “[n]o arrest warrant shall issue” under certain
conditions, indicates a criminal proceeding. The penalty
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imposed, imprisonment for a period of time not to exceed six
months, conforms with the definition of a misdemeanor stated in
Tenn. Code Ann. § 39-11-110 (1991), which provides, “. . . all
violations of law punishable by fine or confinement for less than
one (1) year, or both, are denominated misdemeanors.” The
punishment authorized far exceeds the $50[.00] fine and ten
days imprisonment provided in Tenn. Code Ann. §§ 29-9-102,
103, which are the sanctions traditionally utilized to vindicate
the authority of the courts. Therefore, the violation of Tenn.
Code Ann. § 36-5-104(a) is a criminal offense, in a proceeding
in which the respondent upon a finding of guilty may be
imprisoned for a definite period not exceeding six months.
Id. at 188. A few years later, the Tennessee Supreme Court held that unlike Section 36-5-
104, which is “the equivalent of punishment for committing a misdemeanor offense[,]” a
person “charged with criminal contempt under Tenn. Code Ann. § 29-9-102 is not entitled to
a jury trial.” Ahern, 15 S.W.3d at 82.9 Consequently, it is well-settled that Sections 29-9-103
and 36-5-104 are separate and distinct. This principle has been reaffirmed by this Court. See
State, ex rel. Creighton v. Creighton, No. M2010-01171-COA-R3-CV, 2011 WL 1344638,
at *8 (Tenn. Ct. App. Apr. 7, 2011) (“We adhere to the principle stated in the foregoing cases
and hold that the violation of a court order, punishable by a fifty dollar fine and/or ten days in
jail under Tennessee Code Annotated Section 29-9-101, is not a „criminal case,‟ unlike
violations of Section 36-5-104.”); see also State v. Hill, No. M2011-02233-CCA-R3-CD,
2012 WL 3834066 (Tenn. Crim. App. Sept. 5, 2012) (no perm. app. filed) (holding that
because Section 36-5-104 is a “general criminal statute,” defendants are entitled to grand jury
indictments, and appeals from convictions under Section 36-5-104 are properly before the
Court of Criminal Appeals). As such, our Courts have continued to enforce child support
orders through the contempt power authorized under Tennessee Code Annotated Section 29-
9-101 et seq., regardless of the enactment of Section 36-5-104. See e.g., Norfleet v. Norfleet,
No. M2013-00652-COA-R3-CV, 2014 WL 1408146, at *4 (Tenn. Ct. App. Apr. 9, 2014),
perm. app. denied (Tenn. Aug. 27, 2014) (affirming the trial court‟s ruling finding mother
guilty of contempt for failing to pay child support and imposing punishment under Section
29-9-103); Rutledge v. Kelly, No. M2011-02065-COA-R3-CV, 2012 WL 3711750, at *4
9
We note that in Baker v. State, 417 S.W.3d 428 (Tenn. 2013), the Tennessee Supreme Court
indicated, in dicta, that the right to a jury may be implicated in a criminal contempt action if the contempt is
“„serious‟ enough[.]” Id. at 437. The Baker Court, however, declined to define what constitutes a serious
contempt other than to mention that other courts have concluded that punishment of less than six months is not
“serious contempt[.]” Id. (quoting Bloom v. Illinois, 391 U.S. 194, 198, 88 S. Ct. 1477, 20 L. Ed. 2d 522
(1968). Mother does not assert in her appellate brief, nor did she argue in her motion to alter or amend, that the
trial court erred in finding her in criminal contempt and sentencing her to more than six months imprisonment
without affording her notice and an opportunity to have her case decided by a jury. Accordingly, we need not
consider this issue.
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(Tenn. Ct. App. Aug. 28, 2012) (affirming the trial court‟s ruling finding father guilty of
contempt for failing to pay child support and imposing punishment under Section 29-9-103).
Indeed, we have previously described Section 36-5-104 as follows:
In addition to the general contempt statute, the General
Assembly has provided a specific statute, Tenn. Code Ann[.] §
36-5-104, to address obligors who fail to pay ordered child
support. That statute creates a separate criminal offense
punishable by up to six months‟ imprisonment. Brown v.
Latham, 914 S.W.2d 887, 888 (Tenn.1996). It does not affect
the sanctions available for contempt.
Bryan v. Leach, 85 S.W.3d 136, 160 (Tenn. Ct. App. 2001), perm. app. denied (Tenn. Dec.
17, 2001) (emphasis added). Simply put, Tennessee Code Annotated Section 36-5-104 “is not
a contempt statute.” Mays v. Mays, No. M2010-02479-COA-R3-CV, 2012 WL 1424970, at
*8 (Tenn. Ct. App. Apr. 23, 2012) (holding that Section 36-5-104 is instead a criminal
offense). As such, the trial court‟s power to punish under Section 29-9-103 is unaffected by
Section 36-5-104. The trial court was, therefore, not required to limit its sentence to merely
six months in compliance with Section 36-5-104, if it instead relied upon Section 29-9-103.
We next turn to consider that question.
In this case, none of Father‟s three pending criminal contempt petitions specifically
cite any statutory authority in their support. Accompanying every petition, however, Father
filed a document entitled Notice of Constitutional Rights. This notice specifically states that
Mother
is being charged with at least one count of criminal contempt of
court pursuant to Tennessee Code Annotated Section 29-9-102
et seq., for violation of the previous Orders of the Court, which
could result in . . . incarceration for a period of at least ten (10)
days for each act of criminal contempt in the Rutherford County
Jail, or at least ten (10) days, plus a fine.[10]
None of the petitions or notices filed by Father in the record in any way cite Tennessee Code
Annotated Section 36-5-5-104 as a basis for Father‟s allegations of contempt.
Mother argues in her brief, however, that the despite this notice, the trial court was not
authorized to rely upon Tennessee Code Annotated Section 29-9-103 in its order because the
10
These notices contain an incorrect statement of the law. As previously discussed, Tennessee Code
Annotated Section 29-9-103 authorizes a punishment of at most ten days in jail for each count of criminal
contempt, not “at least” ten days.
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trial court‟s order does not specifically cite any statutory authority for the punishment that is
imposed. Because this case was tried as a bench trial, Rule 52.01 of the Tennessee Rules of
Civil Procedure mandates that the trial court make findings of fact and conclusions of law to
support its decision. See Tenn. R. Civ. P. 52.01 (“In all actions tried upon the facts without a
jury, the court shall find the facts specially and shall state separately its conclusions of law
and direct the entry of the appropriate judgment.”). Rule 52.01‟s requirement that the trial
court make findings of fact and conclusions of law “is mandatory regardless of whether a
party requests these findings.” Irvin v. Irvin, No. M2010-01962-COA-R3-CV, 2011 WL
2436507, at *11 (Tenn. Ct. App. June 15, 2011); see also Lake v. Haynes, No. W2010-
00294-COA-R3-CV, 2011 WL 2361563, at *5 (Tenn. Ct. App. June 9, 2011) (describing
Rule 52.01 as “making the issuance of findings of fact and conclusions of law mandatory”).
As an initial matter, we note that this issue was not raised in Mother‟s motion to alter
or amend the trial court‟s judgment. Typically, however, an appellant may question the
sufficiency of the evidence to support the trial court‟s findings “whether or not the party
raising the question has made in the trial court an objection to such findings or has made a
motion to amend them or a motion for judgment.” Tenn. R. Civ. P. 52.02. Moreover, this
Court has often raised the insufficiency of a trial court‟s findings of fact or conclusions of
law sua sponte as a ground to vacate the trial court‟s judgment where a party appealed that
judgment. See, e.g., Kirby v. Kirby, No. M2015-01408-COA-R3-CV, 2016 WL 4045035, at
*7 (Tenn. Ct. App. July 25, 2016) (vacating the trial court‟s judgment due to insufficient
findings of fact and conclusions of law despite the fact that neither party raised the
sufficiency of the trial court‟s compliance with Rule 52.01 as an issue on appeal); In re
Conservatorship for Ayers, No. M2014-01522-COA-R3-CV, 2015 WL 3899406, at *4
(Tenn. Ct. App. June 24, 2015) (same); In re Connor S.L., No. W2012-00587-COA-R3-JV,
2012 WL 5462839, at *5 (Tenn. Ct. App. Nov. 8, 2012) (same); Irvin, 2011 WL 2436507, at
*11(same); Lake, 2011 WL 2361563, at *5 (same).
The issue is complicated in this case, however, because Mother does not directly
appeal the trial court‟s ruling; rather, Mother only appeals the trial court‟s denial of her
motion to alter or amend.11 Generally, only those issues that are specifically presented for
11
Mother‟s choice to confine her appeal only to the question of whether the trial court denied her
motion to alter or amend is somewhat puzzling. Because Mother‟s Rule 59.04 motion was filed timely, that is
within thirty days after the entry of the trial court‟s judgment, the time for filing a notice of appeal of the trial
court‟s underlying judgment was tolled until the entry of the order granting or denying Mother‟s post-trial
motion. See Tenn. R. App. P. 4(b) (“In a civil action, if a timely motion under the Tennessee Rules of Civil
Procedure is filed in the trial court by any party: . . . (4) under Rule 59.04 to alter or amend the judgment; the
time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying
any other such motion.”); see also Tennessee Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453, 455 (Tenn.
1998) (holding that, for purposes of the time for filing a notice of appeal, a post-trial motion will be considered
a Rule 59.04 motion based upon the motion‟s substance rather than form). Because Mother filed a timely Rule
59.04 motion and filed her notice of appeal within thirty days of the trial court‟s denial of that motion, she was
entitled to appeal both the underlying judgment and the denial of her post-trial motion. Mother chose, however,
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review and included in a statement of the issues section of the appellant‟s brief will be
considered by this Court. Tenn. R. App. P. 13(b) (“Review generally will extend only to
those issues presented for review.”); Champion v. CLC of Dyersburg, LLC, 359 S.W.3d
161, 163 (Tenn. Ct. App. 2011) (“An issue not raised in an appellant‟s statement of the issues
may be considered waived.”). Mother‟s motion to alter or amend the trial court‟s judgment
did not raise the trial court‟s failure to comply with Rule 52.01 by making findings of fact or
conclusions of law. Likewise, Mother did not assert that the judgment was flawed by the trial
court‟s failure to cite to the specific statutory authority under which Mother‟s punishment
was imposed, as she now argues.
Then again, Mother did expressly assert in her motion that the trial court‟s decision to
impose a sentence of 403 days incarceration was “excessive” in light of the circumstances.
Furthermore, on appeal, Mother argues that the trial court erred in failing to consider whether
part of the sentence should run concurrently or be suspended. As previously discussed, when
a party is found guilty of more than one contemptuous act, “the sentencing court must
determine whether the sentences run consecutively or concurrently to one another.” Sneed,
302 S.W.3d at 828. Furthermore,
[a]lthough statutory criteria may support the imposition of
consecutive sentences, the overall length of the sentence must be
“justly deserved in relation to the seriousness of the offense[s],”
Tenn. Code Ann. § 40-35-102(1), and “no greater than that
deserved” under the circumstances, id. at § 40-35-103(2). See
also State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999). The
decision to impose concurrent or consecutive sentences is a
matter entrusted to the sound discretion of the sentencing court.
State v. Nelson, 275 S.W.3d 851, 870 (Tenn. Crim. App. 2008).
Sneed, 302 S.W.3d at 828–29. Where a trial court fails to appropriately consider whether a
sentence imposed is excessive, this Court is authorized to modify and reduce the sentence.
Thigpen v. Thigpen, 874 S.W.2d 51, 54 (Tenn. Ct. App. 1993). Mother asks this Court to
utilize its power to modify her purportedly excessive sentence.
The question of when a sentence of criminal contempt is excessive was thoroughly
considered by this Court in Simpkins v. Simpkins, 374 S.W.3d 413 (Tenn. Ct. App. 2012). In
Simpkins, the trial court found husband guilty of fourteen willful violations of the parties‟
marital dissolution agreement and sentenced husband to the maximum sentence under
Tennessee Code Annotated Section 29-9-103, which totaled 140 days in jail. Id. at 422. On
appeal, husband argued that the trial court‟s sentence was excessive.
to limit the issue on appeal only to the denial of her motion to alter or amend.
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“Although the record clearly established [h]usband‟s guilt of all fourteen counts of
criminal contempt,” the Court of Appeals nevertheless agreed that husband‟s sentence was
excessive based upon the holding in Sneed. Id. at 425 (citing Sneed, 302 S.W.3d at 828–29).
According to the Court “not every contemptuous act, or combination of contemptuous acts,
justifies the imposition of a maximum sentence, particularly when consecutive sentencing is
in play.” Simpkins, 374 S.W.3d at 422. In reaching this result, the Simpkins Court noted that
courts considering this issue should “look to the sentencing considerations set forth in
Tennessee Code Annotated § 40-35-103 for guidance[.]” Id. at 424. Section 40-35-103
states:
(1) Sentences involving confinement should be based on the
following considerations:
(A) Confinement is necessary to protect society by
restraining a defendant who has a long history of
criminal conduct;
(B) Confinement is necessary to avoid depreciating the
seriousness of the offense or confinement is particularly
suited to provide an effective deterrence to others likely
to commit similar offenses; or
(C) Measures less restrictive than confinement have
frequently or recently been applied unsuccessfully to the
defendant;
(2) The sentence imposed should be no greater than that
deserved for the offense committed;
(3) Inequalities in sentences that are unrelated to a purpose of
this chapter should be avoided;
(4) The sentence imposed should be the least severe measure
necessary to achieve the purposes for which the sentence is
imposed;
(5) The potential or lack of potential for the rehabilitation or
treatment of the defendant should be considered in determining
the sentence alternative or length of a term to be imposed. The
length of a term of probation may reflect the length of a
treatment or rehabilitation program in which participation is a
condition of the sentence; and
(6) Trial judges are encouraged to use alternatives to
incarceration that include requirements of reparation, victim
compensation, community service or all of these.
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The Simpkins Court further noted that “there is a presumption in favor of concurrent
sentencing as distinguished from consecutive sentencing.” Simpkins, 374 S.W.3d at 424
(citing State v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987)). Finally, the Court explained that
trial courts should “consider the statutory criteria [under Tennessee Code Annotated Section
40-35-115(a)] when determining whether . . . multiple sentences should be served
concurrently or consecutively.” Under Section 40-35-115(a), the court may only order
sentences to run consecutively if the court finds by a preponderance of the evidence that:
(1) The defendant is a professional criminal who has knowingly
devoted the defendant‟s life to criminal acts as a major source of
livelihood;
(2) The defendant is an offender whose record of criminal
activity is extensive;
(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a result
of an investigation prior to sentencing that the defendant‟s
criminal conduct has been characterized by a pattern of
repetitive or compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life and no hesitation
about committing a crime in which the risk to human life is
high;
(5) The defendant is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration of
the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of
defendant‟s undetected sexual activity, the nature and scope of
the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while
on probation; or
(7) The defendant is sentenced for criminal contempt.
Because the only factor under Section 40-35-115(a) that was applicable to the husband
in Simpkins was the fact that he was sentenced for criminal contempt, the Court of Appeals
ruled that “this factor alone does not justify the imposition of the absolute maximum sentence
of 140 days.” Simpkins, 374 S.W.3d at 425. The Simpkins Court thereafter considered each
contemptuous act that the trial court found husband had committed, the timing of each act,
and the seriousness of each act in light of the circumstances shown at trial. Id. Based upon
these factors, the Court of Appeals ordered that his sentence be reduced for a total effective
sentence of forty-nine days‟ incarceration.
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In this case, the trial court found Mother guilty of: (1) seventeen counts of criminal
contempt for her failure to pay medical bills in 2014; (2) twelve counts of criminal contempt
for her failure to pay medical bills in 2015; (3) one count of criminal contempt relating to
visitation on a school holiday; and (4) seven counts of criminal contempt for failing to pay
child support from November 2014 to May 2015. The trial court sentenced Mother to the
maximum of ten days for each violation. See Tenn. Code Ann. § 29-9-103. Including the
thirty-three days remaining on Mother‟s previously suspended sentence, Mother‟s effective
sentence totaled 403 days of incarceration.
For an order sentencing Mother to more than one year in jail in multiple ten-day
increments, however, the trial court‟s order is surprisingly sparse. First, we note that nothing
in the trial court‟s order indicates that it considered whether Mother‟s sentence should be
served consecutively or concurrently, as required by Sneed. Further, the trial court
completely omits any discussion of the factors contained in Sections 40-35-103 and 40-35-
115(a). Moreover, the trial court‟s order here does not contain any factual findings
underlying its contempt finding from which this Court could make an independent review of
those factors. As noted by Mother, the trial court‟s order fails to even indicate the statutory
provision it is relying upon in finding Mother in contempt and imposing the sentence of
incarceration.
In Simpkins, this Court was able to independently review the trial court‟s order and
record in order to determine the nature of the contemptuous acts husband had committed and
their specific timing. In this case, however, given the lack of a transcript or statement of the
evidence coupled with the paucity of the trial court‟s order, we are unable to render such a
review. While we agree with Father that Mother‟s own failure to comply with Rule 24 by
filing a transcript or statement of the evidence is partially to blame for this failure, we simply
cannot overlook the utter lack of findings in the trial court‟s order, given the seriousness of
the deprivation that was ordered.
Under these circumstances, we conclude that the trial court‟s failure to make specific
findings of fact and conclusions of law in its order, together with its apparent failure to even
consider the excessiveness of the sentence imposed, creates an injustice or error of law
sufficient to justify reconsideration under Rule 59.04. We therefore vacate the denial of
Mother‟s motion to alter or amend and remand to the trial court with instructions to consider
whether Mother‟s sentence was excessive under the circumstances.
On remand, the trial court shall make written findings of fact and conclusions of law
to support its ruling finding Mother guilty of thirty-seven counts of criminal contempt.
Furthermore, the trial court shall consider the factors set forth above in determining whether
the sentence imposed is excessive. While we decline to definitely state that Mother‟s
sentence was excessive, we encourage the trial court to fully consider the implications of its
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decision to incarcerate Mother for more than one year in reaching its ultimate decision. Such
implications may include the best interest of the children and Mother‟s ability to pay any
future child support or arrearages.
Given that we have ruled on some issues in Mother‟s favor, we deny Father‟s request
for attorney‟s fees incurred in defending this appeal.
Conclusion
The judgment of the Rutherford County Chancery Court is affirmed in part, vacated in
part, and remanded for consideration of whether the sentence imposed was excessive in light
of Simpkins v. Simpkins, 374 S.W.3d 413 (Tenn. Ct. App. 2012). Costs of this appeal are
taxed one-half to Appellant Lisa E. Burris, and her surety, and one-half to Appellee James
Morton Burris, for all of which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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