Yolanda Uria v. Steve Uria ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 15, 2012
YOLANDA URIA v. STEVE URIA
Direct Appeal from the Circuit Court for Davidson County
No. 03D-253 Carol Soloman, Judge
No. M2011-02751-COA-R3-CV - Filed February 6, 2013
This appeal involves post-trial motions in a divorce case. Several years after the divorce
decree was entered, the father filed a petition to modify the parenting plan to seek more
parenting time, and he filed a petition for contempt, alleging that the mother had prevented
him from exercising his parenting time. The father later filed a motion asking the trial court
to alter or amend the original divorce decree’s child support provision in order to reduce his
child support obligation retroactive to the date of the decree, and the arrearage that he had
accrued over the years. The trial court modified the parenting plan, found the mother in
contempt, and altered the portion of the original divorce decree pertaining to child support,
thereby reducing the father’s child support arrearage. The mother appeals. We affirm in part
and reverse in part and remand for further proceedings.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in
Part, Reversed in Part and Remanded
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.
Geoffrey Coston, Franklin, Tennessee, for the appellant, Yolanda Uria
D. Scott Parsley, Joshua G. Strickland, , Tennessee, for the appellee, Steve Uria
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
Yolanda Uria (“Mother”) and Steve Uria (“Father”) were married for five years and
had two children. On February 4, 2003, Mother filed a complaint for divorce, which alleged
as grounds: irreconcilable differences, adultery, abandonment, and inappropriate marital
conduct. At some point, the trial court ordered Father to pay child support, and Father was
later ordered to appear and show cause why he should not be adjudged in contempt for
failure to pay child support as ordered.1 Mother and Father appeared at a hearing on the
matter on June 2, 2004. Thereafter, on July 2, 2004, the trial court entered an order
approving an agreement reached by the parties whereby Father would pay $667 per month
in child support, and Mother was awarded a $4000 judgment on the child support arrearage
owed by Father. The trial court’s order stated that the issue of the payments to be made by
Father toward the arrearage would be reserved until the final hearing in the matter, and at that
time, Father’s income would be reviewed, and child support would be adjusted if necessary.
The trial court also reserved the issue of the criminal contempt allegations against Father
until the final hearing.
On November 1, 2004, an agreed permanent parenting plan was filed with the court,
which had been signed by both parties following mediation on October 25, 2004. The plan
provided that the children would primarily reside with Mother, but they would reside with
Father every other weekend. The mediated parenting plan also provided that Father would
pay $667 per month in child support.2 However, the mediated parenting plan was never
signed by the judge or adopted as an order of the court.
On December 3, 2004, Mother filed a petition for contempt “and for other additional
relief.” Mother pointed out that the trial court’s July order had required Father to begin
paying $667 per month in child support, and she alleged that Father had not paid such
1
In July 2003, Father married another woman in Mexico. Father's attorney filed a motion to
withdraw in August 2003, stating that he had had no communication with Father and that Father had been
reported missing. Another attorney was substituted as counsel for Father, but that attorney also filed a
motion to withdraw, in March 2004, stating that Father had failed to communicate with her. In April 2004,
the trial court entered an order allowing Father's attorney to withdraw and providing that Father would have
fifteen days to either retain counsel or proceed pro se. It appears that Father was unrepresented for the
remainder of the divorce proceedings. Mother was represented by an attorney from a local legal aid society.
2
The trial court’s previous order of July 2, 2004 likewise required Father to pay $667 per month
in child support, pending the final hearing, at which proof of his income would be considered and the amount
of child support was to be adjusted if necessary.
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support in accordance with the order. The motion also noted that the July order reserved
until the final hearing the issues regarding Mother’s previous allegations of contempt against
Father and the amount he would pay toward his $4000 child support arrearage. Mother asked
that Father be required to: appear at the hearing with proof of his income, pay all
accumulated arrearages, pay future child support by wage assignment, and serve time in jail
for his failure to abide by the court’s orders. In accordance with Mother’s request, the trial
court entered an order in December 2004 directing Father to appear at a hearing before the
court with evidence of his income since January 1, 2004, including salary check stubs and
receipts, W-2 forms, income tax returns, bank statements, and canceled checks.
Following a hearing, the trial court entered a final decree of divorce on February 24,
2005. The order stated that Father was duly notified of the date of the final hearing but yet
he failed to appear. The trial court heard sworn testimony from Mother at the final hearing
and based its decision upon that testimony and “the entire record.” The trial court found
Father guilty of adultery, inappropriate marital conduct, and “abandonment and failure to
provide for the wife and the children,” and it awarded a divorce to Mother. The court found
that Father had failed to visit the children as agreed by the parties during mediation. The
court further found that Father had failed to pay child support as previously ordered and that
Father had a total arrearage of $9,669.50. The court awarded “exclusive” custody to Mother
according to a new permanent parenting plan that she had proposed, and which the court
signed and adopted.3 Pursuant to the parenting plan, Father was to have parenting time with
the children every Sunday from 10 a.m. to 6 p.m., and he was ordered to pay child support
in the amount of $1,126 per month beginning in February 2005.4 Finally, the court ordered
that a body attachment issue for Father and that he be arrested and required to appear before
the trial judge for a hearing on the issue of his criminal contempt. The final decree contained
a certificate of service indicating that the court clerk mailed a copy to Father at his Nashville
address.
Father and Mother both appeared at a hearing before the trial court on June 29, 2005,
on the petition for contempt. Thereafter, the trial court entered an order providing that the
issue of contempt was dismissed, and that Father would pay $1,126 per month as current
3
Although the previous, mediated parenting plan had never been signed by the trial judge, the
parenting plan attached to the final decree of divorce stated that it “modifie[d] an existing Parenting Plan or
prior Court Order, dated 1st day of November, 2004,” which is the date the mediated parenting plan was filed.
4
The parenting plan attached to the February 24, 2005 final decree also included child support
worksheets. The income shares guidelines became effective January 18, 2005. Thus, it appears that the
previous calculations of Father’s child support obligation were likely based on a flat percentage of his
income.
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support and $400 per month toward his arrearage. The certificate of service attached to the
order states that it was hand delivered to Mother and Father.
More than five years later, on October 26, 2010, the State of Tennessee filed, on
behalf of Father, a petition for modification of Father’s child support obligation. The petition
noted that Father was ordered to pay $1,126 in child support pursuant to the final decree of
divorce, and it alleged that a significant variance existed between the amount of child support
currently being paid and the amount required by the child support guidelines. Thus, the
petition sought a modification of current child support and a determination of any arrearage
owed. A child support worksheet was filed on the same day as the petition for modification,
and it calculated Father’s child support obligation at $737. The trial court issued a show
cause order requiring Mother to appear and show cause why child support should not be
modified. Apparently, no action was taken on the petition to modify at this time.
A few months later, on March 2, 2011, Father filed, through counsel, a petition for
criminal contempt and to modify the parenting plan. Father’s petition noted that the final
decree of divorce awarded him parenting time with the children every Sunday, and the
petition alleged that Mother had “blocked all communications and attempts by Father to
maintain a relationship with the parties’ minor children.” Father alleged that Mother would
not return his telephone calls and changed her telephone number. Father’s petition alleged
that he had not had parenting time with the children on eighteen dates, which were Sundays,
between October 31, 2010, and February 27, 2011. He asked that Mother be found guilty of
willful criminal contempt for each of the eighteen separate occasions and sentenced to a total
of 180 days in jail. Father asked for a modification of the parenting plan’s provisions
regarding parenting time, and he sought attorney’s fees and costs.
A hearing on Father’s petition for modification was held by a special master. The
special master found that a significant variance existed between the amount of child support
currently ordered and the amount owed according to the guidelines, and accordingly, the
special master decided that Father’s child support obligation should be reduced to $543. The
special master found that Father should pay $150 per month toward his arrearage. However,
the special master found that the amount of arrearage owed and the “begin date of
modification” should be determined at a later hearing. These findings were later confirmed
and approved by the circuit court judge.
At the next hearing before the special master, it was determined that the reduction in
Father’s current child support obligation should be effective as of November 1, 2010, due
to the fact that the State filed the petition to modify child support near the end of October
2010. The special master calculated Father’s child support arrearage at $57,938.37. The
order entered by the special master stated, “Counsel for [Father] concedes that there is no
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legal basis to modify support prior to the filing of the State’s petition.” This order was also
approved and adopted by the circuit court judge.
A hearing was held before the circuit court judge on June 7, 2011. We have no
transcript or statement of the evidence from the hearing, but the trial court’s order states that
it heard the matters of Father’s petition for criminal contempt against Mother, and his petition
to modify the parenting plan.5 The order also states that the trial court heard testimony “of
the parties and witnesses.” Based on this evidence, the court found Mother guilty of 18
counts of willful criminal contempt “for not allowing Father to have parenting time” on the
eighteen dates designated in Father’s petition, as required by the divorce decree. The court
sentenced Mother to 180 days in jail (10 days for each of the 18 acts), but it suspended all
but 48 hours of Mother’s sentence upon her strict compliance with “all” of the trial court’s
orders. The court went on to find that Father had “done everything in his power to exercise
his parenting time with the minor children,” while Mother had changed telephone numbers,
moved, and changed schools without notifying Father. The court also found that Mother had
returned Christmas gifts sent by Father in 2010, with no valid or excusable reason for doing
so. The court found that Mother willfully and intentionally deprived Father of court ordered
parenting time and that a modification of the parenting plan was appropriate. The court
adopted a new parenting plan that allowed Father, who now lived in Memphis, to have
parenting time with the children one long weekend per month, in addition to alternating
holidays and four weeks during summer vacation. The parenting plan left Father’s child
support obligation at the amount set previously by the court: $543 per month for his current
obligation, and $150 per month toward his arrearage. The court ordered Mother to pay
$3,000 of Father’s attorney’s fee “for his representation of Father in securing Father’s
parenting time in this matter[.]”
Following the hearing by the circuit judge, on June 20, 2011, Father filed a “Motion”
in which he asked the trial court “to modify and/or alter or amend” the final divorce decree
that had been entered by the court on February 24, 2005. The Motion stated that, during the
June 7, 2011 hearing on Father’s petition for contempt and to modify the parenting plan, “it
was discovered by the Court and counsel for the parties that the mediated parenting time and
settlement agreement and child support calculations had not been attached to the Parenting
5
We note that Mother had filed another petition for criminal contempt against Father, alleging that
he had failed to pay the newly ordered amount of child support due in March, April, and May of 2011, since
the hearing before the special master, and failed to pay his share of the children's orthodontic expenses.
When this matter came up on appeal, there was no order in the record addressing or resolving Mother’s
petition for contempt. This Court entered a series of orders directing the appellant to obtain entry of a final
judgment and directing the trial court clerk to transmit a supplemental record to this Court. After some delay,
a final appealable order was received by the Court of Appeals in January 2013. The contempt petition filed
against Father is not at issue on appeal.
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Plan submitted by Mother’s counsel at the time of the divorce, but a separate, different, non-
negotiated child support work sheet and Parenting Plan had been attached which were not
the agreement as reached by the parties in mediation.” Again, the mediated parenting plan
submitted by the parties prior to the final divorce hearing in 2005 had provided that Father
would pay $667 per month in child support, while the parenting plan adopted by the court
and incorporated into the divorce decree required him to pay $1,126 in child support.
Father’s motion asked the court to amend the 2005 divorce decree and to “properly calculate”
his child support obligation so that “new judgments” could issue as to the amount of his child
support obligation.
Mother filed a response in which she contended that Father’s “Motion” was not a
timely motion to alter or amend, as it was filed more than six years after the divorce decree,
and she argued that it was not “made within a reasonable time” to the extent that the motion
was construed as one for relief under Rule 60.02 of the Tennessee Rules of Civil Procedure.
Thus, Mother argued that Father’s Motion should be denied.
The trial court held a hearing on Father’s “Motion” on November 21, 2011. The court
heard arguments from counsel but did not allow the presentation of additional evidence.
Thereafter, the court entered an order on December 9, 2011, finding that Father’s Motion was
well-taken. Specifically, the Court found that “pursuant to Rule 60.02(5), this is an
appropriate case wherein justice requires that the Court modify its Order of February 24,
2005.” However, the court only modified the portion of the divorce decree pertaining to
child support. The court explained:
The Court does not make this decision lightly; however, it finds that the safety
valve provisions of Rule 60.02(5) apply in this matter in order to prevent the
continuation of an injustice in this matter. The Court finds that during the
hearing that took place on June 7, 2011, as encompassed in the Order filed
June 23, 2011, that at the hearing of the original divorce hearing, information
that was submitted as relates to Father’s income was inaccurate. The Court
does not cast any aspersions on counsel that were involved, but finds that it is
clear from the record in this matter that the parties had previously mediated a
Parenting Plan which also set child support pursuant to the Child Support
Guidelines. The Court finds that this signed and mediated Parenting Plan is
contained in the file. The Court finds after the mediated agreement had been
filed that on February, 24, 2005, this Court entered another Parenting Plan with
a different child support figure based apparently solely on the testimony of
Mother. The Court finds that the income alleged in the attached child support
worksheet was not the income that Mr. Uria earned at the time and Mr. Uria
was not present, harboring the belief that the matter had been concluded as a
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result of the mediated Parenting Plan and child support. The Court therefore
finds that the interest of justice demands that the child support be modified
from that which was set pursuant to the Order of February 8, 2005 to reflect
that which was agreed upon by the parties in the mediated Parenting Plan
which set child support, which is contained within the Court’s file, but was not
submitted to the Court at the time of the final hearing in this matter and the
Court did not see the mediated agreement in the file and such was not brought
to the Court’s attention.
The Court further finds that the only complaint before it at the time was
a complaint for divorce based upon the grounds of irreconcilable differences
and that the matter was not appropriately before the Court on a contested basis.
Therefore, Mr. Uria had no notice that relief would be sought other than that
which was contained within the mediated Parenting Plan which contained the
child support calculation based on his actual income. The Court finds that the
Final Decree of Divorce entered on February 28th [2005] set child support in
the amount of $1,126.00 per month. However, pursuant to the Parenting Plan
which contained the correct child support figure signed by the parties on
October 25, 2004, the child support was set in the amount of $667.00 per
month. The Court finds the difference therein to be in the amount of $459.00
per month.
The court recalculated the child support owed by Father during the 73 months that had
elapsed since 2005, and it reduced the arrearage owed by Father to $15,962.37. Mother
timely filed a notice of appeal.
II. I SSUES P RESENTED
On appeal, the issues presented by Mother are basically:
1. Whether it was improper for the court to retroactively modify child support six years
after it was set;
2. Whether the court erred by utilizing Rule 60.02(5) to set aside the judgment when the
basis for relief was a “mistake” that would be governed by Rule 60.02(1);
3. Whether the court erred by setting aside a judgment under Rule 60.02(5) more than
six years after the judgment was entered, when the petitioner knew of the judgment
shortly after it was entered;
4. Whether the court erred by entering an order changing the amount of child support
due without proof of Father’s income or proof regarding the number of days of
parenting time he exercised during that time period;
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5. Whether the court erred by finding Mother in contempt for failure to permit parenting
time when Father had not exercised his parenting time in three years and gave no
notice of his intent to resume parenting time;
6. Whether the court erred by finding Mother in contempt for changing phone numbers,
moving and changing schools without notice, not communicating with Father, and
returning Christmas gifts, when the contempt petition did not allege such acts;
7. Whether the court erred by ordering Mother to pay Father’s attorney’s fees for a
criminal contempt action based on her interference with his parenting time.
For the following reasons, we affirm the trial court’s decision in part, and we reverse in part,
and we remand this matter for further proceedings consistent with this opinion.
III. D ISCUSSION
A. Modification of the 2005 Divorce Decree
“Tennessee law is clear that the disposition of motions under Rule 60.02 is best left
to the discretion of the trial judge.” Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn.
2010) (citing Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993); Banks v.
Dement Constr. Co., 817 S.W.2d 16, 18 (Tenn. 1991); McCracken v. Brentwood United
Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App. 1997)). Therefore, we review such
decisions using the abuse of discretion standard. Id. “A trial court abuses its discretion when
it causes an injustice by applying an incorrect legal standard, reaching an illogical decision,
or by resolving the case ‘on a clearly erroneous assessment of the evidence.’” Id. (quoting
Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).
Rule 60.02 provides that “[o]n motion and upon such terms as are just,” a court may
relieve a party from a final order for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) fraud . . . 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.
Tenn. R. Civ. P. 60.02. “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.” Tenn. R. Civ. P. 60.02. The party seeking relief under Rule 60.02 has the burden of
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proving that it is entitled to relief by clear and convincing evidence. Henderson, 318 S.W.3d
at 336.
In this case, during the hearing on Father’s “Motion,” his attorney suggested that relief
was appropriate in this case due to “mistake, fraud, or whatever you want to call it,” which
would fall under Rule 60.02(1) or (2). The trial judge expressed her belief that a “mistake”
had occurred, but she also stated that relief was appropriate because the 2005 judgment was
voidable, which would implicate Rule 60.02(3). However, the trial court’s order granting
Father’s Motion stated that the court was proceeding under Rule 60.02(5). In any event, we
find that the trial court’s explanation of its decision in its written order indicates that the
decision was based upon erroneous information, and therefore, Rule 60.02 relief was
improvidently granted.
The trial court’s order granting Rule 60.02 relief describes this case as one that began
with a complaint for divorce solely alleging irreconcilable differences, and one which took
a different course, without notice to Father, after the parties had reached a mediated parenting
plan. The trial court’s order granting Rule 60 relief states that “the only complaint before
[the court] at the time was a complaint for divorce based upon the grounds of irreconcilable
differences and that the matter was not appropriately before the Court on a contested basis.”
“Therefore,” the court found, “[Father] had no notice that relief would be sought [at the final
hearing] other than that which was contained within the mediated Parenting Plan which
contained the child support calculation based on his actual income.” Father chose not to
attend the final hearing, “harboring the belief that the matter had been concluded as a result
of the mediated Parenting Plan and child support,” according to the trial court. Then, at the
final hearing, the mediated parenting plan was not brought to the trial court’s attention, and
Mother pursued relief on other grounds that were not alleged in her complaint, at least
according to the trial court.
The record of the proceedings in this case paints a very different picture. First of all,
the complaint for divorce filed by Mother alleged as grounds irreconcilable differences in
addition to adultery, abandonment, and inappropriate marital conduct.6 Therefore, the
divorce decree granted a divorce on grounds that were actually alleged in the complaint, and
it did not grant relief that was wholly outside the pleadings in a manner that would render it
void or voidable. Next, we address the trial court’s statement that Father had no notice that
relief would be sought at the final hearing other than that which was contained within the
mediated Parenting Plan. Contrary to this finding, the record reveals that the mediated
parenting plan had not been approved by the court, and in fact, the most recent order entered
6
According to the final decree of divorce, Father also filed a counter-complaint for divorce, but that
document was not included in the record before us.
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by the trial court provided that Father’s income would be reviewed at the final hearing, and
child support would be adjusted if necessary. Father had been ordered to bring specific
documentation regarding his income to the final hearing, as the issue of contempt was to be
considered then as well. The trial court made a specific finding in the divorce decree that
Father was duly notified of the date of the final hearing and yet failed to appear. Finally, we
note the trial court’s statement that the mediated parenting plan was not brought to the court’s
attention at the final hearing. In the final divorce decree, the trial court indicated its
awareness of the recent mediation by specifically finding that Father was not visiting the
children as agreed by the parties at mediation. In addition, the parenting plan adopted by the
trial court and incorporated into the final decree states that it modifies the parenting plan
dated November 1, 2004, which was the one reached by the parties at mediation. As
discussed during the hearing on Father’s Rule 60 Motion, it is likely that the change in
Father’s child support obligation was due, at least in part, to the fact that the income shares
child support guidelines became effective January 18, 2005, just prior to the February 8, 2005
final hearing, and subsequent to the October 2004 mediation. The mediated parenting plan
did not include child support worksheets, but worksheets were attached to the parenting plan
submitted with the divorce decree. In addition, the parenting plan adopted by the trial court
gave Father less parenting time than the mediated parenting plan, and an increase in his child
support obligation would have been appropriate on that basis as well.
We note that the trial court’s order explaining the basis for its decision to grant Rule
60 relief also stated that “inaccurate” information was presented at the final divorce hearing
regarding Father’s income. There is nothing in the record to support this statement, as the
trial court did not allow the presentation of evidence at the hearing on Father’s Motion.
Nevertheless, even assuming that the evidence presented at the final divorce hearing was
inaccurate, at most, it would constitute a mistake, and this fact alone would not justify setting
aside the order more than six years later, considering the circumstances of this case.7 Father
knew, shortly after the entry of the February 2005 divorce decree, that he was ordered to pay
$1,126 per month in child support rather than $667, as the parties had agreed during
mediation. Besides the fact that Father was mailed a copy of the divorce decree, the record
reveals that Father and Mother both appeared at a hearing before the trial court on June 29,
2005, on Mother’s petition for contempt, and thereafter, the trial court entered an order
dismissing the issue of contempt and providing that Father would pay $1,126 per month as
current support and $400 per month toward his arrearage, as provided in the divorce decree.
Father’s attorney also acknowledged at the hearing on the Rule 60 Motion that Father had
notice of the amount of his child support obligation because of a wage assignment in the
7
Here, the trial judge was careful to point out that she was “not cast[ing] any aspersions on counsel
that were involved,” and she suggested at the final hearing that the mistake was likely accidental and due to
the heavy caseload of Mother’s attorney from the legal aid society.
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amount of $1,126. Yet he did not seek to set aside the 2005 order until June 20, 2011. In the
case of a mistake, and, even in cases involving fraud or misconduct of an adverse party, a
motion to set aside must be filed not more than one year after the judgment in question was
entered. Henderson, 318 S.W.3d at 335. Clearly, Father’s motion to set aside was not made
within a reasonable time under the circumstances of this case. And, a claim cannot be
asserted under Rule 60.02(5) simply because relief under another provision is time-barred.
Wallace v. Aetna Life & Cas. Co., 666 S.W.2d 66, 67 (Tenn. 1984).
For all of these reasons, we find that the record in this case does not support the trial
court’s decision to set aside and modify the portion of the 2005 divorce decree relating to
child support. The trial court resolved this issue based on a “clearly erroneous assessment
of the evidence,” Henderson, 318 S.W.3d at 335, which resulted in an abuse of discretion.
We therefore reverse the trial court’s decision to modify the portion of the 2005 divorce
decree regarding child support, and its recalculation and reduction of the arrearage owed by
Father. The original provisions of the divorce decree are accordingly reinstated.
B. Contempt
On appeal, Mother also raises several issues regarding the trial court’s decision to find
her in contempt. Mother contends that the trial court erred in finding her in contempt for
interfering with Father’s parenting time “when the Father gave no notice of his intent to
exercise parenting time on those days, had not exercised parenting time in three (3) years and
did not appear for the exchange.” However, the trial court made its decision to hold Mother
in contempt based upon the evidence presented at the June 7, 2011 hearing, and Mother has
failed to provide us with either a transcript or a statement of the evidence from that hearing
prepared in accordance with Tennessee Rule of Appellate Procedure 24(c). The appellant
has a duty to prepare a record that conveys a fair, accurate, and complete account of what
transpired in the trial court regarding the issues that form the basis of his or her appeal. In
re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005). “A recitation of facts and argument
in an appellate brief does not constitute evidence and cannot be considered in lieu of a
verbatim transcript or statement of the evidence and proceedings.” In re M.R., No. M2007-
02532-COA-R3-JV, 2008 WL 2331030, at *3 (Tenn. Ct. App. W.S. June 3, 2008) (citing
State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990)). We cannot simply assume
that the facts recited are true. In re Conservatorship of Chadwick, No. E2006-02544-COA-
R3-CV, 2008 WL 803133, at *1 (Tenn. Ct. App. Mar. 27, 2008). “The law is clear that
statements of fact made in or attached to pleadings, briefs, and oral arguments are not
evidence and may not be considered by an appellate court unless they are properly made part
of the record.” Threadgill v. Bd. of Prof'l Responsibility of Supreme Court, 299 S.W.3d
792, 812 (Tenn. 2009).
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“It is well settled that, in the absence of a transcript or statement of the evidence, there
is a conclusive presumption that there was sufficient evidence before the trial court to support
its judgment, and this Court must therefore affirm the judgment.” Outdoor Mgmt., LLC v.
Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007) (citing McKinney v. Educator &
Executive Insurers, Inc., 569 S.W.2d 829, 832 (Tenn. Ct. App. 1977)). We may only reverse
the trial court's decision if we find, based on the “technical” record before us, that the trial
court committed an error of law. In re M.R., 2008 WL 2331030, at *3 (citing In re
Conservatorship of Chadwick, 2008 WL 803133, at *2). Because there is no evidence in the
record before us to support Mother’s assertion that Father did not attempt to exercise his
parenting time, she is not entitled to relief based upon this issue.
Mother also argues that the trial court erred by finding her in contempt for changing
telephone numbers, moving and changing schools without notice, failing to communicate
with Father, and returning Christmas gifts, when the contempt petition did not allege such
acts. However, the trial court’s order did not find Mother in contempt for these actions and
inactions. The order states that Mother was found “guilty of eighteen (18) counts of willful
criminal contempt of this Court’s Order for not allowing Father to have parenting time on
the dates designated pursuant to the [divorce decree],” and, based upon Mother’s “failure to
allow Father his court ordered parenting time,” she was sentenced to 180 days in jail, or “10
days for each of the eighteen separate act[s] of criminal contempt.” Due to the fact that the
trial court considered Father’s petition to modify the parenting plan at the same hearing, the
order went on to address that matter as well. The court did find that Mother had changed
telephone numbers and schools without informing Father, and returned Christmas gifts, with
no justifiable excuse for doing so, before concluding that a modification of the parenting plan
was in order. However, these findings were not discussed by the trial court in the section of
the order pertaining to contempt, and we find nothing to suggest that Mother was held in
contempt based upon these actions. Therefore, we find no merit in Mother’s argument with
regard to this issue on appeal.
C. Attorney’s Fees
Finally, Mother argues that the trial court erred in ordering her to pay Father’s
attorney’s fees for the criminal contempt action. Again, the record does not support Mother’s
characterization of the trial court’s order. The order entered by the trial court states that
Mother was ordered to pay $3,000 of Father’s attorney’s fees “for his representation of
Father in securing Father’s Parenting time in this matter.” (emphasis added). There is
specific statutory authority for an award of attorney’s fees to the prevailing party in cases
involving the custody of children. In re Jonathan S. C-B, No. M2010-02536-COA-R3-JV,
2012 WL 3112897, at *25 (Tenn. Ct. App. July 31, 2012) (citing Tenn. Code Ann. § 36-5-
103(c)). It appears that the trial court’s award of attorney’s fees was due to the fact that
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Father also pursued a petition to modify the parenting plan in conjunction with his petition
for contempt. But, in any event, a court’s statutory authority to award fees in proceedings
to enforce or defend custody and support orders pursuant to section 36-5-103(c) “extends to
criminal contempt proceedings which involve custody or support.” Wilkinson v. Wilkinson,
No. M2010-00026-COA-R3-CV, 2011 WL 5986405, at *4 (Tenn. Ct. App. Nov. 29, 2011)
(citing Dhillon v. Dhillon, No. M2009-02018-COA-R3-CV, 2010 WL 3025193, at *8 (Tenn.
Ct. App. Aug. 2, 2010)). “[A]n award of attorney's fees to a prevailing party in a criminal
contempt proceeding is not authorized by Tennessee law, except for those discretionary
awards based on Tenn. Code Ann. § 36-5-103 in cases involving alimony, child support, or
custody.” Clarkson v. Clarkson, No. M2006-02239-COA-R3-CV, 2007 WL 3072772, at
*8 n.2 (Tenn. Ct. App. W.S. Oct. 22, 2007) (citing Butler v. Butler, No. 02A01-9409-CH-
00218, 1995 WL 695123, at *2 (Tenn. Ct. App. W.S. Nov. 21, 1995); Cooner v. Cooner, No.
01-A-01-9701-CV00021, 1997 WL 625277, at *7 (Tenn. Ct. App. M.S. Oct. 10, 1997))
(emphasis added). As such, we find no error in the trial court’s award of attorney’s fees to
Father.
IV. C ONCLUSION
For the aforementioned reasons, the decision of the circuit court is hereby affirmed
in part and reversed in part and remanded for further proceedings. Costs of this appeal are
taxed equally to the appellant, Yolanda Uria, and her surety, and to the appellee, Steve Uria,
for which execution may issue if necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
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