Suzanne Gibson v. James Prokell ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
SUZANNE W. GIBSON, )
)
FILED
Petitioner/Appellee, ) Shelby Chancery No. 103880-1 R.D.
) December 10, 1997
VS. ) Appeal No. 02A01-9701-CH-00006
) Cecil Crowson, Jr.
Appellate C ourt Clerk
JAMES E. PROKELL, )
)
Respondent/Appellant. )
APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
AT MEMPHIS, TENNESSEE
THE HONORABLE NEAL SMALL, CHANCELLOR
KEITH V. MOORE
Memphis, Tennessee
Attorney for Appellant
DANTON ASHER BERUBE
EVERETT B. GIBSON LAW FIRM
Memphis, Tennessee
Attorney for Appellee
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
James E. Prokell (“Prokell”) appeals the trial court’s order denying Prokell’s motion
to dismiss, denying his motion to set aside and rescind the trial court’s order setting child
support, and denying his motion for a new trial. Prokell also appeals the trial court’s order
of contempt for his failure to pay the ordered child support. For reasons hereinafter stated,
we affirm the judgment of the trial court.
FACTS
The parties to this appeal were divorced by a Pennsylvania decree in September,
1993, wherein, the court awarded custody and child support to Suzanne W. Gibson
(“Gibson”). There is one child of the marriage, Maxfield Prokell, born March 31, 1987. On
March 31, 1995, Gibson filed a petition for registration and modification of the child support
order granted by the Court of Common Pleas of Allegheny County, Pennsylvania. That
same day, the summons and petition were personally served upon Prokell in Shelby
County, Tennessee by Gibson’s counsel. Thereafter, on August 7, 1995, Prokell filed a
response wherein he admitted that Gibson was entitled to registration of the of the
Pennsylvania child support order pursuant to T.C.A § 36-5-229. Additionally, Prokell failed
to raise any objections to the trial court’s jurisdiction over his person.
On April 17, 1995, Gibson filed a request for production of documents in order to
determine the correct amount of child support owed by Prokell; thereafter, the trial court
entered an order compelling discovery. Because Prokell complied with the request for
production of documents only to the extent that such documents were in his actual
possession, Prokell’s responses to Gibson’s request for production of documents were
considered to be inadequate by the trial court. On September 29, 1995, the trial court
ordered Prokell to turn over all documents requested within his possession, custody, or
control no later than October 27, 1995. Further, the trial court ordered Prokell to file a
written response to the court declaring that all documents responsive to each request for
production of documents within Prokell’s possession, custody, or control had been
provided to Gibson. The trial court defined “control” as including, but not limited to the legal
right to obtain the documents requested on demand, notwithstanding a fee or cost
2
incidental thereto. Additionally, if Prokell were unable to obtain certain documents, the trial
court’s order mandated that Prokell notify Gibson by October 27, 1995, of his inability to
obtain certain documents, the identity of the documents, the custodian of the documents,
the reason for his delay in producing the documents, and the expected date of providing
said documents.
On October 27, 1995, counsel for Prokell withdrew from this cause because of
Prokell’s failure and refusal to cooperate with her on several occasions. Prokell secured
new representation. That same day, Gibson filed a motion for sanctions for Prokell’s
refusal to comply with the September 29, 1995, order compelling discovery. The trial court
awarded said sanctions on December 22, 1995, requiring Prokell to file a formal response
to the request for production of documents no later than January 17, 1996. Further, the
trial court, pursuant to T.C.A. § 36-5-229 (URESA), registered the January 4, 1994, order
of the Court of Common Pleas of Allegheny County, Pennsylvania, and accepted
jurisdiction over matters of child support. The trial court entered an interim child support
modification increasing Prokell’s child support payment from $250 per month to $500 per
month and ordered Prokell to pay Gibson’s attorney $2,000.
Prokell, in non-compliance with the December 22, 1995, order, filed his formal
response on February 15, 1996. This formal written response was considered inadequate
in that it did not state that Prokell had provided Gibson with all requested documents in his
possession, custody or control as required by the September 29, 1995, and the December
22, 1995, orders. Gibson’s counsel drafted and provided a formal written response for
Prokell’s counsel to file, but Prokell’s counsel did not file it.
On February 1, 1996, Gibson filed a motion for sanctions for refusal to comply with
the December 22, 1995, order awarding sanctions and for failure to comply with the
September 29, 1995, order compelling discovery, granting an interim increase in child
support pending a full hearing, and accepting jurisdiction over child support issues. The
trial court awarded such sanctions on February 23, 1996, inter alia, for Prokell’s failure to
3
timely pay the $500 child support ordered for January and February of 1996.
On February 28, 1996, Gibson filed her first set of interrogatories, her second
request for production of documents and her first request for admissions propounded to
Prokell requiring that each be accompanied by a formal written response with 30 days of
service. Prokell formally responded to Gibson’s request for admissions within the 30 day
period, but failed to respond to her interrogatories or her request for production of
documents within this time period.
Thereafter, on April 10, 1996, Gibson filed a notice to take Prokell’s deposition.
Prokell refused to attend the deposition in Memphis, Tennessee, and requested that the
deposition be taken via telephone. Counsel for Gibson responded that given the number
of documents to be produced, it would be unduly burdensome, if not impossible, to conduct
the deposition over the telephone.
On May 6, 1996, Gibson filed a motion with the trial court to set permanent child
support, or in the alternative to increase interim support. Additionally, Gibson made a
motion to the court for further sanctions to be imposed upon Prokell for his failure to
comply with court orders, specifically, the trial court’s September 29, 1995, order
compelling discovery, the December 22, 1995, order awarding sanctions and the February
23, 1996, order awarding sanctions. Gibson contended that Prokell had failed to produce
his 1995 tax return or request for extension, his 1993 and 1994 cumulative ledgers, his
petty cash receipts for 1996, and numerous other documents necessary to calculate child
support under the child support guidelines. In particular, Gibson contended that Prokell
had failed to provide complete discovery responses which, in return, hindered her from
determining the precise nature of Prokell’s claimed expenses. Thus, Gibson was unable
to accurately ascertain what items could be deducted from Prokell’s gross income for child
support purposes. Prokell, at all times, contended that virtually all documents requested
of him were provided to Gibson’s counsel. However, the trial court determined that
Prokell’s responses were inadequate.
4
On June 6, 1996, the trial court entered an order setting permanent child support
of $1,591.76 per month, retroactive to March, 1995, based on 21% of the gross income
of Prokell less a deduction for taxes only. Furthermore, the trial court reduced child
support arrearages to $20,879.77. In making its decision, the trial court specifically found
that Prokell had willfully and deliberately failed to comply with the court’s orders compelling
discovery and granting sanctions. The trial court found that Prokell’s non-compliance was
evidenced by his failure to file a correct formal response to Gibson‘s first request for
production of documents, by his failure to produce numerous documents necessary to
calculate child support, and by his refusal to appear at his deposition.
Thereafter, on July 8, 1996, Prokell filed a motion to dismiss, a motion to set aside
and rescind the trial court’s order setting child support, and a motion for a new trial. On
August 13, 1996, the trial court denied Prokell’s motions and found him to be in contempt
for his failure to pay child support at the newly ordered rate. The trial court stated that it
had subject matter jurisdiction over the cause, via T.C.A. § 36-5-229, and personal
jurisdiction based on the fact that Prokell was personally served with a copy of the
summons and petition for registration and modification of child support in Shelby County,
Tennessee on March 31, 1995. Prokell has appealed contending that the trial court had
no personal jurisdiction over him and no subject matter jurisdiction over the cause under
T.C.A. § 36-5-229. Further, Prokell asserts that the trial court abused its discretion in
making the child support award and in failing to transfer the cause to another court.
LAW AND DISCUSSION
Personal Jurisdiction
Tennessee courts recognize that parties who fail to raise the issue of lack of
personal jurisdiction in their original pleading or motion to dismiss are deemed to have
5
waived the defense and to have submitted themselves to the court’s jurisdiction. Biogen
Distributors, Inc. v. Tanner, 842 S.W.2d 253, 256-57 (Tenn. Ct. App. 1992); Wright v.
Universal Tire, Inc., 577 S.W.2d 194, 195-96 (Tenn. Ct. App. 1978). In the case at bar, it
is undisputed that Prokell was personally served with the summons and petition to register
and modify the child support order. Moreover, on August 7, 1995, Prokell filed his first
response without raising the issue of lack of personal jurisdiction or, in the alternative,
without filing a motion to dismiss for lack of personal jurisdiction. As a result, Prokell
waived his defense of lack of personal jurisdiction and submitted himself to the jurisdiction
of the trial court. Therefore, we find that the trial court’s exercise of personal jurisdiction
over Prokell was proper.
Subject Matter Jurisdiction under T.C.A. §§ 36-5-201-229
Prokell argues that “nothing under URESA gives Tennessee the right to transfer a
Pennsylvania decree to Tennessee for retrial of the issues of whether the Pennsylvania
Court should have ordered life insurance, school tuition or additional support.” We
disagree. This Court in Mann v. Grist held that under T.C.A. § 36-5-229 a trial court in
Tennessee is empowered to modify a sister state’s child support order if that order is
properly registered in a Tennessee court and the court has jurisdiction over the person.
Mann v. Grist, 1990 WL 120723, at 1, 3 (Tenn. Ct. App. 1990).
The material facts of Mann are very similar to the case at bar. In Mann, the parties
were divorced in Mississippi in 1984, and child support was set by a marital dissolution
agreement. Mann v. Grist, Shelby Law No. 28, at 1 (Tenn. Ct. App. August 22, 1990).
Said agreement set child support at $150 per month. Subsequent to the divorce, Mann
and her daughter moved to Memphis, Tennessee. On November 29, 1988, wife filed a
petition to register the foreign decree of divorce, property settlement and custody
agreement (including child support) in accordance with T.C.A. § 36-5-229. An order
enrolling the foreign judgment was entered on February 15, 1989. On February 22, 1989,
wife filed a petition to modify the final decree of divorce and to increase child support on
the grounds that there had been a permanent and unforeseeable change of circumstances
6
subsequent to the entry of the aforementioned divorce decree. The trial court dismissed
the cause for lack of subject matter jurisdiction to modify the foreign decree. This Court
reversed and remanded for a hearing on the merits stating that a court of this state can
modify a child support decree of a sister state if that decree is registered in a Tennessee
court with personal jurisdiction.
Except for the Mann decision, we do not have the benefit of other cases discussing
the issue of modification under the parameters of T.C.A. § 36-5-229. We acknowledged
in Mann that there are other cases such as Hoyle v. Wilson, 746 S.W.2d 665 (Tenn. 1988)
discussing the issue of modification under URESA. However, Hoyle and the cases cited
therein discuss a separate type of URESA remedy and make no mention of the remedies
provided for in T.C.A. § 36-5-229. Mann, SHELBY LAW NO. 28, at 3. T.C.A. § 36-5-229
explicitly provides for “additional remedies.”
Like the husband in Mann, Prokell relies on the Hoyle case in discussing the issue
of modification under URESA. We believe Prokell’s reliance on Hoyle is in error. Unlike
the instant case, Hoyle did not involve the issue of whether a Tennessee trial court was
empowered to modify a foreign support order because the parties were divorced in the
Circuit Court of Davidson County, Tennessee. Hoyle v. Wilson, 746 S.W.2d 665,666
(Tenn. 1988). As stated above, the Hoyle court did not address a foreign decree nor did
it discuss or apply T.C.A. § 36-5-229. Therefore, it is inapplicable to the case at bar.
When construing a statute, we must give effect to the legislative intent. Mann,
Shelby Law No. 28, at 3; (quoting Tidwell v. Collins, 522 S.W.2d 674 (Tenn. 1975)). In
ascertaining this intent, we look to the general purpose accomplished by the legislature.
Id. This Court, in Scales v. Winston, 760 S.W.2d 952, 953 (Tenn. Ct. App. 1988), stated
by way of dicta that URESA was “designed for the purpose of enforcing orders of foreign
courts relating to the support of dependent children and for the modification of support
orders rendered in a court of a foreign state.” We observe and emphasize the language
in T.C.A. § 36-5-229 which provides that a registered foreign decree “shall have the same
7
effect and may be enforced as if originally entered in the court of this state.” As this Court
stated in Mann, “we cannot ignore that our General Assembly included the language ‘shall
have the same effect and may be enforced as if originally entered in the court of this
state.’” Without question, if the support order had been entered in a court of this state, it
could be modified by that court upon sufficient showing of changed circumstances.” Id. at
3.
Undoubtedly, this is true in the instant case. The Pennsylvania trial court issued the
divorce, custody and support decree. Under the clear direction of Mann and the language
of T.C.A. § 36-5-229, once the Pennsylvania child support decree was registered in
Tennessee, this state could treat the Pennsylvania decree as if it were originally entered
in Tennessee and modify accordingly.1 Therefore, when the trial court registered the
Pennsylvania decree on December 22, 1995, it could modify the decree as long as it
obtained personal jurisdiction over Prokell. As mentioned above, the trial court obtained
personal jurisdiction on two grounds. First, Prokell was served with process within the
state of Tennessee, and second, he failed to raise a timely objection to the trial court’s
jurisdiction over him in his first responsive pleading.
In light of our decision in Mann and the legislative intent as evidenced in the
pertinent language mentioned above in T.C.A. § 36-5-229, we find that under T.C.A. § 36-
5-229 the trial court possessed subject matter jurisdiction to modify the child support order
of the Court of Common Pleas of Allegheny County, Pennsylvania, once that support order
was registered in a Tennessee court with proper jurisdiction over the parties involved.
Additionally, Prokell contends that the trial court, being a chancery court, does not
have jurisdiction under URESA. He argues that the chancery court is conspicuously
absent from the definition of “court” in T.C.A. § 36-5-202(2)(A)(B)(C)(D). True, the
chancery court is not mentioned in the definition of “court” within T.C.A. § 36-5-202;
1
W . W alton Garrett in Tennessee Divorce, Alimony and Child Custody provides that “[w]hen a foreign
or interstate decree has been registered in a Tennessee court having jurisdiction, the court where the decree
is registered ha s ju risdic tion to m odify . . [t]hus, suc h a decree b eco m es d om esticated .” Ga rrett, Tenn.
Divorce, Alimony & Child Custody (1996 ed.), § 20-2.
8
however, we find that T.C.A § 16-11-102 provides that “[t]he chancery court has concurrent
jurisdiction, with the circuit court, of all civil causes of action, triable in the circuit court, . .
.” Furthermore, the Tennessee Supreme Court stated in Barrow v. Barrow, 419 S.W.2d
164, 165 (Tenn. 1967) that both circuit and chancery court have concurrent jurisdiction in
the field of domestic relations. Clearly, child support registry and modification fall within
the gambit of domestic relations. Following the express language and legislative intent of
T.C.A. § 16-11-102 and the judicial precedent set forth in Barrow, we find that chancery
courts possess proper subject matter jurisdiction over causes concerning the registration
and modification of foreign child support decrees under URESA. Therefore, the trial court
had subject matter jurisdiction to hear this cause.
Abuse of Discretion in Assessment of Child Support and Other Sanctions
Tenn. R. Civ. P. 37.02 provides that if a party fails to obey an order to provide or
permit discovery, the court in which the action is pending may make such orders in regard
to the failure as are just, and among others are the following:
(A) An order that the matters regarding which the order was made or any
other designated facts shall be taken to be established for the purposes of
the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting that party from introducing
designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding
or any part thereof, or rendering a judgment by default against the
disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order
treating as a contempt of court the failure to obey any orders except an order
to submit to a physical or mental examination.
In the instant case, Prokell was given considerable opportunity to comply with the
trial court’s orders. Yet, we find nothing in the record showing any reason for his failure to
respond timely and completely to the orders of the trial court. We acknowledge that Prokell
contends that he has turned over virtually everything in his possession, custody or control.
However, the trial court, in its discretion, chose to believe counsel for Gibson that he had
not received certain documents from Prokell over Prokell’s sworn statements to the
9
contrary. It is well settled in Tennessee that the trier of fact may believe all or part or none
of the testimony of any witness and, even if the testimony is uncontradicted, the trial court
in its discretion may disbelieve it. Blackmon v. Estate of Wilson, 709 S.W.2d 596, 603
(Tenn. Ct. App. 1986). Clearly, the trial court was justified in its disbelief of Prokell,
considering his extensive history of non-compliance with the trial court’s orders as
manifested in the record.
On September 29, 1995, the trial court sanctioned Prokell for his failure to cooperate
in discovery by an order compelling discovery. The trial court denied Prokell’s objections
to producing documents and ordered that all documents in his possession, custody, or
control be produced by October 27, 1997. Moreover, the trial court ordered Prokell to file
a formal written response to Gibson’s request for production of documents. After an
exhaustive examination of the record in this cause, we find no evidence that Prokell
complied with the court’s order by producing all documents within his possession, custody,
or control no later than October 27, 1995, nor do we find any evidence that Prokell filed a
formal written response in the trial court concerning what items he had turned over to
Gibson until his untimely February 15, 1996 filing.
Because of his failure to comply with the September 29, 1995, order, Prokell was
sanctioned a second time by the trial court on December 22, 1995. Once again, we find
nothing in the record to indicate that Prokell produced all the documents in his possession,
custody, or control by October 27, 1995, as required by the trial court’s order compelling
discovery. Additionally, no formal written response denoting what documents had and had
not been produced was filed with the trial court as of December 22, 1995.
On February 23, 1996, the trial court sanctioned Prokell in the court’s second order
awarding sanctions for his willful and deliberate refusal to comply with the first order
awarding sanctions. Prokell failed to pay his January and February child support on the
first of each month as required by the court’s order. Also, he failed to reimburse Gibson’s
attorney for court reporter fees. We fail to find anything in the record that indicates
10
Prokell’s compliance with the trial court’s December 22, 1995, order.
On May 6, 1996, Gibson filed a motion with the trial court to set permanent child
support and reduce arrearages to judgment. Thereafter, on June 6, 1996, the trial court
entered an order setting permanent child support at $1,591.76 per month and reduced
arrearages to $20,879.77 based on Prokell’s gross income minus taxes paid. In ordering
the award of permanent child support and in reducing the arrearages to judgment, the trial
court stated:
[T]he Court finds that Respondent has willfully and deliberately failed to
comply with the Court’s Order Compelling Discovery and the Court’s
subsequent orders sanctioning Respondent for failing to comply with the
Court’s Order Compelling Discovery by failing to file a correct formal
response to Petitioner’s First Request for Production of Documents filed
April 17, 1995; by failing to produce, inter alia, his business bank statements
and cancelled checks since November 1995, his personal bank statements
and cancelled checks since December 1995, certain tax filings such as
1099's and quarterly estimated tax payments, his 1994 cumulative ledger
and loan documents for loans upon which he claims a substantial amount of
interest deductions; by refusing to attend his deposition; and by failing to
provide good faith responses to Petitioner’s First Request for Admissions
and First Set of Interrogatories Propounded to Respondent and Second
Request for Production of Documents, which responses violate Rules 11, 33,
34, 36, and 37 of the Tennessee Rules of Civil Procedure.
We believe that the court was justified in awarding child support based on Prokell’s gross
income minus taxes paid. Without complete information, the trial court would be forced to
piece together the puzzle of child support using fragments of information. Most assuredly,
this would not be in the best interest of the child.
In considering the entirety of the sanctions imposed against Prokell, including the
permanent award of child support and reducing arrearages to judgment, we are reminded
of the language adopted by this court in Holt v. Webster, 638 S.W.2d 391, 394 (Tenn. Ct.
App. 1982) which provides:
But here, as in other areas of the law, the most severe in the spectrum of
sanctions provided by statute or rule must be available to the district court
in appropriate cases, not merely to penalize those whose conduct may be
deemed to warrant such a sanction, but to deter those who might be tempted
to such conduct in the absence of such a deterrent.
That the trial court is expressly authorized to impose sanctions upon a party failing to
comply with discovery orders is without question. When the trial court exercises its
11
discretion in sanctioning a party, the exercise of such discretion will not be disturbed by this
Court in the absence of an affirmative showing that the trial judge abused his or her
discretion. Holt v. Webster, 638 S.W.2d 391, 394 (Tenn. Ct. App. 1982)(quoting Hemmer
v. Tennessee Electric Power Co., 139 S.W.2d 698 (Tenn. Ct. App. 1940). The Holt court
went on to add that “[t]he trial courts of Tennessee must and do have the discretion to
impose sanctions such as dismissal in order to penalize those who fail to comply with the
Rules and, further, to deter others from flouting or disregarding discovery orders.” Id.
Prokell has failed to carry his burden to show affirmatively that the trial court abused its
discretion. To the contrary, the record is quite clear. Prokell has consistently refused to
comply timely and completely with the trial court’s orders. Orders of the trial court cannot
be taken lightly as evidenced by the full sanctioning power bestowed upon the courts of
this state. This Court stated in Kirchner v. Pritchett, No. 01-A-01-9503-JV00092, at 3
(Tenn. Ct. App. December 6, 1995):
The risk of failure or inability to produce evidence of the noncustodial
parent’s income and expenses should not fall on the custodial parent. This
information is within the noncustodial parent’s control. Thus, if the
noncustodial parent has failed or refused to produce evidence of his or her
income prior to the hearing, the burden of producing satisfactory evidence
of income and expenses should be placed on the noncustodial parent--the
party most able to provide it.
Undoubtedly, Prokell is the noncustodial parent and is in a much better position to obtain
the information requested. Therefore, he bears the risks of his failure or refusal to produce
evidence of his income and expenses, and he suffers the consequences when these risks
materialize in the form of penalties for his non-compliance. In this cause, that risk of non-
compliance manifested itself in the form of court ordered sanctions, orders of contempt,
and a permanent award of child support coupled with a reducing of arrearages to
judgment. As shown above, the trial court is provided with the most severe spectrum of
sanctions to carry out its discovery orders. Finding no abuse of discretion, we affirm the
trial court’s sanctions imposed upon Prokell including the granting of permanent child
support and reducing of arrearages to judgment.
Transfer of Cause of Action
In light of our total affirmance of the trial court’s judgment, the issue of transfer by
12
this Court is moot. We acknowledge, however, that this cause may reach the trial level
again at some time in the future. Prokell may submit to the trial court a properly supported
motion for recusal at that time, if necessary.
Based on the reasons stated herein, we affirm the trial court’s order denying
Prokell’s motion to dismiss and motion to set aside and rescind order setting child support
and/or for a new trial. Costs are adjudged against appellant for which execution may issue,
if necessary.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.
13