Stacy Christina Knellinger v. Mark Steven Knellinger and Becki Knellinger

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 10, 2013 Session
STACY CHRISTINA KNELLINGER v. MARK STEVEN KNELLINGER
AND BECKI KNELLINGER
Appeal from the Chancery Court for Williamson County
No. 34418 Robbie T. Beal, Judge
No. M2012-02343-COA-R3-CV - Filed August 29, 2013
In this post-divorce action, Father filed two petitions asserting several counts of criminal
contempt against Mother based on alleged violations of the Parenting Plan. Father also
petitioned the court to modify the Parenting Plan to name him the primary residential parent
and grant him sole decision-making authority over the children’s educations, non-emergency
healthcare, and extracurricular activities. Mother then filed a petition seeking to permanently
enjoin Father’s new wife (“Step-mother”) from participating in certain activities with the
children, such as signing their school report cards, volunteering at the school, and sending
home notes in their lunch boxes. After a three-day hearing, the trial court found Mother
guilty on three counts of criminal contempt, and assessed a $150 fine (fifty dollars per count),
which the court required her to pay toward counseling with Father. The trial court denied
Father’s Petition to Modify the Parenting Plan, finding there was no material change of
circumstances affecting the children’s interest, a finding which Father does not appeal. The
trial court also denied Mother’s petition for a permanent injunction against Step-mother,
finding it was unnecessary. Both parties were required to pay their own attorney’s fees. We
affirm the trial court’s decision to deny Mother’s request for a permanent restraining order
against Step-mother. However, we have determined the trial court erred in finding Mother
guilty of criminal contempt, and we reverse all three convictions. Finally, we find Mother is
entitled to her reasonable and necessary attorney’s fees incurred in the trial court in defense
of Father’s Petition to Modify the Parenting Plan, pursuant to Tennessee Code Annotated §
36-5-103(c), and remand for a determination and award thereof.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed in part, Affirmed in part, and Remanded.
F RANK G. C LEMENT, J R. delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S. and R ICHARD H. D INKINS, J.J., joined.
Robert E. Lee Davies, Joshua Lee Rogers, Franklin, Tennessee, for the appellant, Stacy
Christina Knellinger.
Elizabeth A. Garrett, Jessica Hooper, Nashville, Tennessee, for the appellees, Mark Steven
Knellinger and Becki Knellinger.
OPINION
Stacy C. Knellinger (“Mother”) was granted a divorce from Mark S. Knellinger
(“Father”) on the grounds of adultery on February 10, 2010. Mother was designated the
primary residential parent for the parties’ two minor children, Zachary and Timothy, then
aged seven and three. Father was granted visitation with the children every other Wednesday
through Sunday during the school year, and alternating weeks in the summer. The parties
alternated Thanksgiving break, and Father was given the first half of Christmas break in odd-
numbered years, and the second half in even-numbered years. Father was ordered to pay
$1,193 per week in child support.
The parties’ Permanent Parenting Plan provides that decisions regarding the children’s
religious upbringing will be made jointly, and that Mother shall have sole decision-making
authority over the children’s educations and non-emergency health care, after consultation
with Father. Mother was also granted sole decision-making authority over the children’s
extracurricular activities, but the Parenting Plan further provides that: “Father will be able
to choose one (1) extracurricular activity per child at a time at Father’s expense, and Mother
will have to take the children to these events.”
Shortly after the parties divorced, Father married Becki Knellinger (“Step-mother”),
with whom he had been romantically involved during the parties’ marriage. Mother and Step-
mother have never been on good terms with one another, and Mother often expressed that
she felt Step-mother was attempting to usurp Mother’s authority with the children and
interfering with Mother’s parenting time, and furthermore that Father was allowing and
encouraging Step-mother to do so. Mother, Father, and Step-mother live in the same
neighborhood and are all three very involved in the children’s school, church, and extra-
curricular activities. As a consequence, opportunities for confrontations among the three of
them occurred frequently.
Despite Mother’s request that Father and Step-mother not take cupcakes to school for
Zachary’s birthday, because Mother was, Father and Step-mother nevertheless took cupcakes
to school for Zachary’s birthday. On occasion, Step-mother signed the children’s daily school
report cards, and often sent notes in the children’s lunch boxes, which Mother saw when the
children brought their report cards and lunch boxes home. Step-mother once took Timothy
-2-
to a doctor’s appointment without Father, and did not tell Mother about it until several days
later. Father and Step-mother also showed up to a Halloween event for the children at
Mother’s church during Mother’s parenting time, without telling Mother ahead of time they
would be there.
As for Mother, after she noticed Step-mother taking photographs of the children
during school and sporting events, Mother started taking photographs of Step-mother at these
events, without explanation. She frequently refused to respond to Father’s emails or texts,
even when they were about the children, and ignored Step-mother when Step-mother
attempts to speak to her.
The children’s sporting events have been particularly difficult for the parties to
navigate. Father coaches both children’s baseball and soccer teams, and Step-mother usually
serves as his assistant. She emails team schedules and other information to the parents of
other children on the team, organizes equipment and uniforms, and keeps the children on task
during practices and games. During the 2010 baseball season, Step-mother also wore a tee-
shirt to Zachary’s games, which Mother usually attended, that read “Team Mom” across the
front. To Step-mother’s credit, she stopped wearing the shirt after Mother expressed that it
was hurtful and embarrassing to Mother. However, more than once, Step-mother approached
Mother to offer Mother unsolicited – and unwelcome – parenting advice. On one occasion,
at one of Timothy’s baseball games, Mother and her mother (the children’s maternal
grandmother) entered the dugout to sit with Timothy. Step-mother asked them to leave, at
Father’s request, but they refused until they were asked to do so by the umpire of the game.
These are just a few examples of the kinds of passive-aggressive, and aggressive, behavior
the parties have engaged in after the divorce that have made co-parenting difficult.
The tension between the parties culminated with Father filing a Petition for Criminal
Contempt and for Other Relief against Mother, on December 3, 2010, just eight months after
the final divorce decree was entered. He alleged six counts of criminal contempt; however,
only Counts Three and Four are at issue in this appeal.1 Both counts involved encounters
1
Counts One and Two involved an incident at Mother’s church. Father and Step-mother decided to
begin attending Mother’s church, where Father had also attended during his marriage to Mother, without
telling Mother. After an encounter outside the children’s Sunday School classroom, Mother asked to be
escorted to her car, and was escorted by a police officer, which the children observed. Count Five involved
the incident where Mother and the maternal grandmother would not leave the baseball dugout during
Timothy’s game. Finally, in Count Six, Father alleged Mother refused to let Zachary telephone Father during
Mother’s parenting time. The trial court found there was not sufficient evidence that Mother was guilty of
contempt for Counts One, Two and Five. Father voluntarily withdrew Count Six prior to trial.
(continued...)
-3-
between Mother and Step-mother at the children’s soccer events. In Count Three, Father
alleged that Mother “became infuriated with [Step-mother] because [Step-mother] attempted
to give Zachary a piece of chocolate,” at Zachary’s soccer practice on October 26, 2010,
which was during Mother’s parenting time. The encounter ended with Mother stating, “Give
me your best shot,” to Step-mother, before the parties separated. Mother was holding
Timothy at the time, who was three years old. As for Count Four, Father alleged that at
Timothy’s soccer game on September 18, 2010, Mother “continuously picked up Timothy
and tried to distract him from playing in his game,” and “took off his cleats and began
feeding him yogurt.”
For both counts, Father alleged Mother was in violation of the preamble to the
Parenting Plan, which provides:
The Mother and Father will behave with each other and each child so as to
provide a loving, stable, consistent and nurturing relationship with the child
even though they are divorced. They will not speak badly of each other or the
members of the family of the other parent. They will encourage each child to
continue to love the other parent and be comfortable in both families.
Father further alleged Mother’s conduct was in violation of Father’s “right to be free of
unwarranted derogatory remarks made about the parent or his or her family by the other
parent to the child or in the presence of the child,” as provided in Section VI of the Parenting
Plan, and Tennessee Code Annotated § 36-6-101(a)(3). Father requested that Mother be
incarcerated for ten days on each count.
Mother denied Father’s allegations, and on July 28, 2011, filed her own Petition for
Relief, seeking a permanent injunction “restraining Father and [Step-mother] from asking the
parties’ minor children to refer to [Step-mother] as ‘mom.’” Mother also requested that the
court permanently restrain Step-mother from “the activities she has been participating in
which have undermined or interfered with Mother’s role as the children’s parent,” including
“attending school parties or volunteer[ing] as a room parent, signing report cards and other
school assignments, sending notes home with the children, volunteering as the children’s
‘team mom’ if there are other volunteers, or any other disruptive activity found by the Court.”
Mother also requested that Father be restrained from allowing Step-mother to engage in any
of these activities while she is in his presence.
1
(...continued)
Father also requested a reduction in his alimony in solido payment; however, he voluntarily withdrew
that request prior to trial as well.
-4-
On April 18, 2012, Father filed an Amended and Supplemental Petition for Criminal
Contempt and for Other Relief and Petition to Modify Permanent Parenting Plan. Father
alleged four new counts of contempt, but only Count Four is at issue in this appeal.2 For
Count Four, Father alleged Mother is in criminal contempt of court for her alleged “refusal
to support Zachary’s participation in baseball,” in violation of section II(B) of the Parenting
Plan. The Section provides that Mother shall have sole decision-making authority regarding
the children’s extracurricular activities, but that “Father will be able to choose one (1)
extracurricular activity per child at Father’s expense, and Mother will have to take the
children to these events.” Father alleged that Mother “frequently brings Zachary to games
and practices late which results in Zachary feeling rushed and embarrassed.” Finally, Father
sought several major amendments to the Parenting Plan, including that he be named primary
residential parent and be given sole decision-making authority over the children’s education,
non-emergency healthcare, and extracurricular activities. As the basis for his requested
modifications, Father asserted that a material change of circumstances had occurred because
Mother “has shown no desire to co-parent” and “has been overtly hostile and demeaning”
toward Father.
A hearing on all three petitions took place on April 18, 19, and 20, 2012. At the start
of the hearing, Father informed the court that he was no longer seeking jail time for Mother’s
allegedly contemptuous behavior. Step-mother was also joined as a party to the action. The
only witnesses who testified were Mother, Father, and Step-mother.
At the close of the hearing, the trial court found Mother guilty of Counts Three and
Four of Father’s original Petition and Count Four of the Amended Petition, fined Mother $50
for each count and ordered Mother to pay toward family counseling with Father. The trial
court denied Father’s request to modify the Parenting Plan, finding that the proof “didn’t
even come close” to establishing the “material change of circumstances affecting the
child[ren]’s best interest” that is required by Tennessee Code Annotated § 36-6-101(a)(2)(C).
The trial court also denied Mother’s Petition for Relief, finding that while Step-mother had
overstepped her bounds on occasion, a restraining order was unnecessary, and some of the
activities Mother sought to enjoin – such as assisting Father in coaching the children’s sports
teams – were positive for the children and helpful for Father. The trial court denied both
parties’ requests for attorney’s fees.
2
In Count One, Father alleged that Mother denied Father’s parenting time on August 9, 2011. The
trial court determined the parenting plan was ambiguous as to whose parenting time it was, and thus, Mother
was not in contempt for not allowing the children to go with Father. Father does not appeal that finding. In
Counts Two and Three, Father alleged Mother refused to consult Father on Education and Non-Emergency
Healthcare Issues, respectively. The trial court determined the evidence was insufficient to support a finding
of contempt against Mother on either of these counts.
-5-
I SSUES
Mother argues the trial court erred in holding her in contempt of the Parenting Plan
because the preamble is impermissibly vague and ambiguous as to whether her conduct was
prohibited. She also argues the trial court erred in denying her request for an injunction
against Step-mother, and in denying her request for attorney’s fees. Father raises no issues
on appeal.3 We will consider each issue in turn.
I. Criminal Contempt
The purpose of criminal contempt is to “preserve the power and vindicate the dignity
and authority of the law” as well as to preserve the court “as an organ of society.” Black v.
Blount, 938 S.W.2d 394, 398 (Tenn. 1996); see also Thigpen v. Thigpen, 874 S.W.2d 51, 53
(Tenn. Ct. App. 1993). Criminal contempt is generally regarded as a crime.4 Id. at 402.
Therefore, a criminal contempt proceeding “in a very true sense raises an issue between the
public and the accused.” Id. at 398. Accordingly, criminal contempt is not to be used to
benefit the contemnor’s adversary; that is the office of civil contempt. See Overnite Transp.
Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 510 (Tenn. 2005) (stating that a
civil contempt action is generally brought to enforce private rights). “[C]ivil contempt is
designed to coerce compliance with the court’s order and is imposed at the insistence and for
the benefit of the private party who has suffered a violation of rights.” Doe v. Bd. of Prof’l
Responsibility of Supreme Court of Tenn., 104 S.W.3d 465, 473-474 (Tenn. 2003).
3
Father is barred from appealing Mother’s acquittal of Counts One, Two and Five of his original
Petition for Contempt, and Counts One, Two and Three of his Amended and Supplemental Petition. See
Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 510 (citing Ahern v. Ahern, 15
S.W.3d 73, 80-82 (Tenn. 2000); State v. Wood, 91 S.W.3d 769, 773 (Tenn. Ct. App. 2002)) (“Criminal
contempt cases are subject to the double jeopardy provisions in the federal and state constitutions. Thus, an
appeal from an acquittal of criminal contempt is barred.”).
4
While we agree that criminal contempt is generally regarded as a crime, see Bloom v. Illinois, 391
U.S. 194, 201 (1968), prosecutions of criminal contempt
are not intended to punish conduct proscribed as harmful by the general criminal laws.
Rather, they are designed to serve the limited purpose of vindicating the authority of the
court. In punishing contempt, the Judiciary is sanctioning conduct that violates specific
duties imposed by the court itself, arising directly from the parties’ participation in judicial
proceedings.
Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996) (quoting Young v. United States ex rel. Vuitton et Fils
S.A., 481 U.S. 787, 800 (1987)).
-6-
The power of courts to punish a party for contempt is delineated in Tennessee Code
Annotated § 29-9-102. “Unless the contemptuous act was committed in the presence of the
court, proceedings for criminal contempt must comply with Tenn. R. Crim. P. 42(b).” 5 Long
v. McAllister-Long, 221 S.W.3d 1, 12 (Tenn. Ct. App. 2006). Rule 42(b) reads:
(b) Disposition on Notice and Hearing. A criminal contempt shall be
prosecuted on notice, except as provided in subdivision (a) of this rule.
(1) Content of Notice. The criminal contempt notice shall:
(A) state the time and place of the hearing;
(B) allow the defendant a reasonable time to
prepare a defense; and
(C) state the essential facts constituting the
criminal contempt charged and describe it as such.
(2) Form of Notice. The judge shall give the notice orally in
open court in the presence of the defendant or, on application of
the district attorney general or of an attorney appointed by the
court for that purpose, by a show cause or arrest order.
Tenn. R. Crim. P. 42(b).
Tennessee Rule of Criminal Procedure 42(b) mandates that a party facing a criminal
contempt charge be given “explicit notice that they are charged with criminal contempt and
must also be informed of the facts giving rise to the charge.” 6 Long, 221 S.W.3d at 12.
Although the party seeking to hold another in indirect criminal contempt should draft the
petition as 42(b) requires, it is the duty of the court in which a petition for indirect criminal
contempt is filed to assure that the accused receives adequate notice of the charges. Id. at 13
(citing McPherson v. McPherson, No. M2003–02677–COA–R3–CV, 2005 WL 3479630 at
*5 (Tenn. Ct. App. Dec.19, 2005); Tenn. R. Crim. P. 42(b)).
5
“Criminal contempt is either direct or indirect. Disruptive or disobedient acts committed in the
court’s presence constitute direct criminal contempt.” Long v. McAllister-Long, 221 S.W.3d 1, 12 n.11
(Tenn. Ct. App. 2006) (citing Tenn. Code Ann. § 29-9-102(1) (2000); Black v. Blount, 938 S.W.2d at 398;
State v. Maddux, 571 S.W.2d 819, 821 (Tenn. 1978)). “Contemptuous acts committed outside the court’s
presence constitute indirect criminal contempt.” Id (citing State v. Maddux, 571 S.W.2d at 821).
6
Notice of a charge of indirect criminal contempt may specify multiple violations so long as they are
sufficiently distinct to support separate convictions. State v. Wood, 2002, 91 S.W.3d 769, 775 (Tenn. 2002)
(citing Tenn. R. Crim. Proc. Rule 42(b)).
-7-
To convict a person of criminal contempt of a court order, four essential elements
must be established:
First, the order alleged to have been violated must be “lawful.” Second, the
order alleged to have been violated must be clear, specific, and unambiguous.
Third, the person alleged to have violated the order must have actually
disobeyed or otherwise resisted the order. Fourth, the person’s violation of the
order must be “willful.”
Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 354-55 (Tenn.
2008) (internal citations omitted). Specifically regarding the second element, the Konvalinka
court went on to explain:
A person may not be held in . . . contempt for violating an order unless
the order expressly and precisely spells out the details of compliance in a way
that will enable reasonable persons to know exactly what actions are required
or forbidden. The order must, therefore, be clear, specific, and unambiguous.
Vague or ambiguous orders that are susceptible to more than one
reasonable interpretation cannot support a finding of . . . contempt. Orders
need not be “full of superfluous terms and specifications adequate to counter
any flight of fancy a contemnor may imagine in order to declare it vague.”
They must, however, leave no reasonable basis for doubt regarding their
meaning.
Orders alleged to have been violated should be construed using an
objective standard that takes into account both the language of the order and
the circumstances surrounding the issuance of the order, including the
audience to whom the order is addressed. Ambiguities in an order alleged to
have been violated should be interpreted in favor of the person facing the
contempt charge.
Id. at 355-356. While appellate courts review the substance of contempt judgments under an
abuse of discretion standard, the question of whether an order is sufficiently clear to support
a conviction for contempt is a question of law, which we review de novo. Id. at 356.
The court order Mother was convicted of willfully violating on three occasions was
the preamble to the parties Parenting Plan, which states:
The Mother and Father will behave with each other and each child so as to
-8-
provide a loving, stable, consistent and nurturing relationship with the child
even though they are divorced. They will not speak badly of each other or the
members of the family of the other parent. They will encourage each child to
continue to love the other parent and be comfortable in both families.
A. INCIDENT O CCURRING ON O CTOBER 26, 2010
One of Mother’s three convictions stems from the October 26, 2010, incident at
Zachary’s soccer practice, when Mother allegedly failed to “de-escalate” an argument by
responding to Step-mother’s layperson pediatric dental hygiene advice by saying “let’s have
it, let me hear what you’ve got, just give me your best shot” during an argument between the
two women. The confrontation began because Step-mother approached Zachary, during
Mother’s parenting time, and offered him candy. Mother, who was standing near Zachary,
asked Step-mother not to give him candy because Zachary had been to the dentist that day,
and an argument ensued over what constituted appropriate pediatric dental care and why
Mother did not want Step-mother contacting the children’s dentist. After Mother told Step-
mother to “let’s have it, let me hear what you’ve got, just give me your best shot,” the parties
separated and the confrontation ended. The trial court found that “neither party legitimately
believed that there was going to be a first fight between the parties,” but that Mother should
nevertheless be convicted of criminal contempt because, “Mother was not trying to de-
escalate the situation.”
An ordinary person reading a court’s order “should be able to ascertain from the
document itself exactly what conduct is prescribed.” Hogue v. Hogue, 147 S.W.3d 245, 248
(Tenn. Ct. App. 2004) (quoting Wright, Miller & Kane, Federal Practice and Procedure
Civil 2d § 2955)). There is no order in this case that clearly, specifically, and unambiguously
places Mother under an affirmative duty to “de-escalate” a confrontation that was instigated,
and worsened, by Step-mother’s intrusive and provocative acts. To put it simply, Step-mother
started it, and in concert with Mother, escalated the situation. Further, Mother had repeatedly,
and justifiably, asked Step-mother to “give her space,” especially during Mother’s parenting
time. Moreover, while inappropriate in the presence of the child, Mother’s comment was
relatively innocuous considering the circumstances, and if anyone in that situation
jeopardized the “loving, stable, consistent and nurturing relationship” the parents share with
the children it was Step-mother.
Mother’s action, or more accurately stated, Mother’s reaction to Step-mother pushing
herself upon Mother and the child in this situation does not constitute a willful violation of
a clear, specific, and unambiguous order of the court; therefore, it cannot be a basis for
criminal contempt. See Tenn. Code Ann. § 29-9-103.
-9-
B. INCIDENT O CCURRING ON S EPTEMBER 18, 2010
The second of Mother’s convictions stems from the incident at Timothy’s soccer game
on September 18, 2010, when Mother helped Timothy, who was only three-years-old, off of
the soccer field because he was throwing a tantrum lying on the field in an emotional
meltdown. After helping him off the soccer field, she removed his cleats and fed him yogurt,
because, as Mother explained, Timothy was very upset and did not want to play. Father’s
account of the incident was that, “at one point [Mother] came out on the field, which is pretty
unusual in a 28-minute game . . . , and she said that ‘I think that if you would take this
approach with him it would be more successful.’” Father claimed that Mother’s actions
“interrupted the flow of the game,” which he felt “was inappropriate.” The trial court found
that Mother’s behavior at the game “was overreaching,” and it “undermined” Father’s
authority as Timothy’s coach and parent. Based upon these findings, the trial court held
Mother in criminal contempt.7
We find it unnecessary to say much about the facts that allegedly constituted willful
contempt of the preamble other than the fact that Timothy was only three years old, he was
obviously very upset as he sat or laid on the soccer field as the participants ran back and forth
chasing the ball, and his Mother was justifiably concerned for his welfare. Considering these
facts in light of the order at issue – the aspirational preamble to the Parenting Plan, the
evidence in this record falls well below proving beyond a reasonable doubt that Mother’s
actions at Timothy’s soccer game on September 19, 2010 constituted a willful violation of
the preamble or any order of the court. Stated another way, it is unlikely that a reasonable
person in Mother’s position would expect to be held in criminal contempt – and possibly be
sentenced to jail time – for simply attending to the immediate needs of her very young child.
See Furlong v. Furlong, 270 S.W.3d 329, 339 (Tenn. Ct. App. 2011).
Father testified that Timothy “didn’t like people taking the ball away from him,”
which is typical of a three-year-old child, but Father felt strongly that Timothy needed to
understand that, “well, that’s what soccer is.” We respect Father’s desire to teach his children
appropriate life lessons and to exhibit good sportsmanship; however, it is not a contemptuous
crime for a mother to escort her three-year-old off of a soccer field when in distress. Father
coaches Timothy in soccer and in baseball, which is admirable of him, and he will have many
7
In the original Petition, Father alleged that this incident constituted a violation of the preamble to
the Parenting Plan; however, when ruling from the bench, the trial court found the proof was insufficient to
establish beyond a reasonable doubt that Mother’s actions on that day violated the preamble, but that
Mother’s actions on that day did violate the provision of the Parenting Plan providing that allowed Father
to choose one extra-curricular activity for each child, and “Mother will have to take the children to these
events.” The trial court’s written final Order does not specify which provision Mother was held in criminal
contempt for violating; however, we find Mother’s actions on that day do not violate either provision.
-10-
more opportunities to teach Timothy important life lessons. We can only hope that other
authority figures can teach Father the gravity of filing petitions accusing his children’s
mother of criminal offenses that carry the possibility of jail time, and which require each
parent to exhaust financial resources that could best be used for the benefit of the children.
We have determined that the Parenting Plan did not clearly and unambiguously
prohibit Mother’s conduct on these two occasions. This finding requires that Mother’s
convictions for Counts Three and Four of Father’s original Petition for Contempt be
reversed. See Konvalinka, 249 S.W.3d at 359; Furlong, 370 S.W.3d at 340; Hogue, 147
S.W.3d at 249.
C. A RRIVING L ATE FOR P RE-GAME A CTIVITIES
In Count Four of the Amended Petition, Father alleged Mother violated the provision
of the Parenting Plan that requires Mother, during her parenting time, to bring the children
to an extra-curricular activity of Father’s choosing. Father chose baseball for Zachary, the
older son, and Father was the coach of the team.
As coach, Father required all of his players arrive thirty minutes prior to the game for
stretching and pre-game orientation. The allegation was that Mother was in willful violation
of the court’s order by failing to always get the child to the game thirty minutes prior to
commencement of the game. The trial court held Mother in criminal contempt for violating
the aspirational preamble upon the finding that “Mother did not get [Zachary] to some of his
[baseball] games 30 minutes prior to their start as was Father’s request.”
A condition precedent to a trial court imposing punishment for indirect criminal
contempt is that the contempt defendant be provided formal notice as required by Tenn. R.
Crim. P. 42(b). Bailey v. Crum, 183 S.W.3d 383, 388 (Tenn. Ct. App. 2005). “[N]otification
under Rule 42(b) is insufficient unless it provides a description of the particular actions
alleged to be contemptuous and sets forth the dates and location of such actions.” Id. at 389
(emphasis added). Father’s petition did not identify a specific date that Mother was late in
bringing Zachary to his baseball game nor was there any evidence of a specific date for
which she was tardy. These deficiencies, without more, would require that we reverse this
conviction. Moreover, the record contains no competent evidence to establish that Mother’s
tardiness for any pre-game stretching exercise and orientation constituted a willful intent to
violate any order by the court, which is an essential element of criminal contempt. See Tenn.
Code Ann. § 29-9-102(3). Thus, this deficiency would also require reversal of this
conviction.
For the above reasons, all three convictions for criminal contempt are reversed.
-11-
D. Alternatives to Petitions for Contempt
As noted earlier, criminal contempt is only to be used to preserve the power and
vindicate the authority of the court and the law, Black, 938 S.W.2d at 397, it is not to be
brandished as a weapon to torment former spouses in order to benefit the adversary. As the
trial court correctly noted, Mother, Father, and Step-mother, are having problems “that will
effect the children,” and if they “don’t get on the same page, . . . the kids [will] suffer.” The
children are involved in multiple school, church, and extra-curricular activities, which are
important and beneficial to the children, nevertheless, there will be occasions that one parent
or the other is late. Moreover, there will be times the parents differ on parenting issues. When
such occur in the future, the parties should consider whether a continuance of the recent
Rambo style litigation is more likely to benefit or harm the children and their relationships
with the parents. Mediation, if necessary and appropriate, would likely be more beneficial
and less costly.
II. The Restraining Order against Step-Mother
Mother argues the trial court erred in denying her Petition for a restraining order
prohibiting Step-mother from attending the children’s school parties or volunteering as a
room parent, signing the children’s report cards and other school assignments, sending notes
home with the children, volunteering with the children’s sports teams, or “any other”
activities that are “disruptive” Mother’s role as a parent.8
The purpose of restraints on parental conduct is to protect the child. Hogue, 147
S.W.3d at 751. “The restraints to be placed on a parent should be well-defined and ‘must
involve conduct that competent evidence shows could cause harm to the child.’” Marlow v.
Parkinson, 236 S.W.3d 744, 751 (Tenn. Ct. App. 2007) (quoting Bates v. Bates, No. 03A01-
9412-CH-00426, 1995 WL 134907, at *3 (Tenn. Ct. App. March 30, 1995)).
Trial courts are given broad discretion in matters of child custody, visitation and
related issues. Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999). These decisions often
hinge on subtle factors, such as the parents’ demeanor and credibility during the proceedings.
Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). Accordingly, trial
8
In her Petition for Relief, Mother also requested the trial court “enter a permanent injunction
enjoining and restraining Father from allowing [Step-mother] to engage in any of the above activities while
she is in his presence.” On appeal Mother only seeks a reversal of the trial court’s decision only as to Step-
mother; thus, pursuant to Tennessee Rule of Civil Procedure 65.01, the order Mother seeks is properly
classified as a restraining order. Tenn. R. Civ. P. 65.01 (“A restraining order shall only restrict the doing of
an act. An injunction may restrict or mandatorily direct the doing of an act.”).
-12-
courts have discretion to fashion custody and visitation arrangements that best suit the unique
circumstances of each case. Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999). Step-
mother is married to Father, resides in Father’s home and has a close relationship with the
children; thus, the trial court’s decision to deny the restraining order is entitled to the same
deference. See also Medtronic, Inc. v. NuVasive, Inc., No. W2002-01642-COA-R3-CV, 2003
WL 21998480, at *10 (Tenn. Ct. App. Aug. 20, 2003) (“The standard of respective injunctive
relief is whether the trial court erred in exercising its discretion in the issuance or
nonissuance of the injunction.”) (citing Bd. Of Comm’rs of Roane Cnty. v. Parker, 88 S.W.3d
916, 919 (Tenn. Ct. App. 2002)).
The trial court’s determination that a restraining order against Step-mother is
unnecessary at this time is supported by the evidence presented to the trial court. Despite her
past transgressions, Step-mother has voluntarily changed her behavior, and as the trial court
found, she “is figuring it out.” Although Mother understandably found some of Step-
mother’s behavior offensive and intrusive, the best interest of Mother is not the operative
issue; the best interest of the children is the operative issue. See Bates, 1995 WL 134907, at
*3 (“To the extent that the trial court imposed the restriction because it felt that Wife would
be offended or hurt by the mere fact that the child is in the company of a woman whose
conduct arguably caused or substantially contributed to the break-up of the marriage, it
incorrectly substituted the best interest of Wife for the appropriate standard, the best interest
of the child.”). Furthermore, Mother’s request to enjoin Step-mother from “any other
disruptive activities,” does not meet the requirements of Tennessee Rule of Civil Procedure
65.02(1), because it “does not ‘describe in reasonable detail, . . . the act restrained or
enjoined.’” Marlow, 236 S.W.3d 744, 753 (Tenn. Ct. App. 2007) (quoting Hogue, 147
S.W.3d at 255).
For these reasons, we affirm the trial court’s decision to deny Mother’s Petition for
a permanent restraining order against Step-mother.
III. Attorney’s Fees
For her last issue, Mother argues the trial court erred in denying her request for
attorney’s fees. She also asks this Court to award her attorney’s fees on appeal.
Tennessee Code Annotated § 36-5-103(c) provides:
The plaintiff spouse may recover from the defendant spouse, and the spouse
or other person to whom the custody of the child, or children, is awarded may
recover from the other spouse reasonable attorney fees incurred in . . . any suit
or action concerning the adjudication of the custody or the change of custody
-13-
of any child, or children, of the parties, both upon the original divorce hearing
and at any subsequent hearing, which fees may be fixed and allowed by the
court, before whom such action or proceeding is pending, in the discretion of
such court.
(Emphasis added).
In his Amended Petition, Father alleged that a material change of circumstances occurred due
to Mother’s inability to co-parent after the divorce, and he requested that the Parenting Plan
be modified to designate him as the primary residential parent. The trial court denied the
petition to modify upon the finding that Father’s allegation of a material change in
circumstances affecting the children was without merit:
And as far as the petition to modify, the complaints you [Father] have
are legitimate complaints perhaps. I found a few contemptuous even. But on
the same token, do they represent a material change of circumstances . . . Do
they represent a material change of circumstance in the relationship of the
parties that would necessitate a change of custody, a fairly big step? No, not
even close, didn’t even come close.
Are you all having a problem? Yes. Is it going to affect the kids? Yes.
If you all don’t get on the same page, will the kids suffer? Yes. Is she standing
in the way of your ability to parent the children to such a degree that you
should have custody? Oh, no, no, not even.
Petition to modify the parenting plan in any way is denied for a lack of
material change of circumstances.
Nevertheless, the trial court denied Mother’s request for attorney’s fees. It is clear
from the trial court’s explanation of its decision that the court relied, in part, on its finding
that Mother was guilty of three counts of criminal contempt:
The Petition to Modify has failed. The majority of the contempt petitions have
failed. A few contempt petitions have been sustained. [Mother], in response,
filed a request for a restraining order. It has failed.
Considering . . . [the] legal victories on behalf of [Father], the denial of
[Mother’s] claim, but the fact that we wouldn’t be here at all if [Father] hadn’t
filed the claim, the fact is that the Court is not willing to assess attorney’s fees
against either party.
-14-
Because we have reversed all three of Mother’s convictions for criminal contempt,
we find that Mother is entitled to her reasonable attorney’s fees incurred in successfully
defending Father’s Petition to Modify the Parenting Plan in the trial court pursuant to
Tennessee Code Annotated § 36-5-103(c), but only to that extent. Mother is not entitled to
recover attorney’s fees and expenses incurred in relation to the other claims and issues
addressed in the trial court.
Father did not appeal the trial court’s decision to deny his Petition to Modify the
Parenting Plan. The issues Mother has prevailed upon in this Court – the reversal of her
convictions for contempt – do not involve custody questions. Other than the above-quoted
statute, Mother presents no basis upon which we may award her attorney’s fees; thus, her
request for attorney’s fees incurred in this appeal is respectfully denied.
I N C ONCLUSION
The judgment of the trial court is affirmed in part, reversed in part, and remanded for
a determination and award of Mother’s reasonable and necessary attorney’s fees incurred in
defending Father’s Petition to Modify the Parenting Plan. Costs of appeal are assessed
against Father and Mother equally.
____________________________
FRANK G. CLEMENT, JR., JUDGE
-15-