Levenhagen v. Levenhagen

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 1999 Session
LISA LEE LEVENHAGEN v. DARBY LON LEVENHAGEN
Appeal from the Circuit Court for Lincoln County
No.C9800050 Lee Russell, Judge
No. M1998-00967-COA-R3-CV - Filed September 14, 2000
Husband appeals the trial court’s refusal to vacate its order divorcing the parties, claiming the order
is void because it failed to include an affirmative finding that the parties made adequate provision
by written agreement for the custody and maintenance of their children. In addition, Husband
contends that the trial court violated his due process rights by suspending his visitation with the
couple's children until he received counseling, and then ordering supervised visitation. He also
maintains that the trial court improperly based its finding that he was guilty of criminal contempt for
failure to pay child support on insufficient evidence. Husband claims he was entitled to a jury trial
on the contempt issue. We affirm the trial court in all respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J.,M.S.
and W. FRANK CRAWFORD , J., joined.
Billy K. Tollinson, McMinnville, Tennessee, for the appellant, Darby Lon Levenhagen.
Neil Morholt, Fayetteville, Tennessee, for the appellee Lisa Lee Levenhagen.
OPINION
The parties, Darby Lon Levenhagen (“Husband") and Lisa Lee Levenhagen (“Wife”) were
married in March 1989. They have two minor children. The couple’s daughter was born in 1992
and their son was born in 1993. Wife filed her petition for divorce on March 4, 1998, alleging
inappropriate marital conduct and irreconcilable differences. The petition “refrain[ed] from alleging
any specific details constituting grounds for divorce” unless Husband made proper application under
Tenn. Code Ann. § 36-4-106.1 According to Husband’s counsel, Wife did not wish to explain the
details of her allegations “for the sake of the children.” Husband counterclaimed on the same
grounds and denied that he had been guilty of inappropriate marital conduct. In her response to the
counterclaim, Wife agreed that irreconcilable differences existed, but denied engaging in
inappropriate marital conduct.
After discovery and a hearing which is not a part of the record on appeal, the trial court
entered a detailed divorce decree on July 6, 1998. In the decree the trial court found that the parties
should be divorced pursuant to Tenn. Code Ann. §36-4-129(a), but did not specify the grounds. The
decree granted Wife sole custody of the children with liberal visitation to Husband on specific days
and times. The decree also granted the parties, inter alia, the right to send mail to the children
without the other opening or censoring it and the right to be free from unwarranted derogatory
remarks made about the other parent or that parent's family. The decree ordered Husband to pay the
monthly sum of $410.55, which included a 5% clerk's fee, to the clerk's office on "the first day of
each and every month, beginning September 1, 1998." It divided the parties' property and debts and
restrained them from "coming around, about, or near" each other at their respective residences except
as necessary to comply with the visitation order. In addition, Husband was specifically “enjoined
from taking the minor children to any mental health care facility while they are in his physical
custody.” Both parties were prohibited from “having a person to whom he or she is not married,
unrelated, stay overnight wherever said minor children are also present.”
Just weeks after entry of the decree, Wife filed a notice for a hearing requiring Husband to
show cause why he should not be held in contempt. Two of the issues raised in this appeal stem from
the post-divorce proceedings following this petition. One issue, however, addresses the validity of
the divorce decree itself, and we will address that issue before proceeding with the procedural history
related to the post-decree issues.
I.
In September of 1998, after hiring new counsel and in the midst of post-divorce disputes,
Husband filed a motion to vacate the divorce decree pursuant to Tenn. R. Civ. P. 60.02. He argued
that the decree, which was approved by Husband’s counsel, was void because the trial court failed
to affirmatively find that the parties made adequate and sufficient provision by written agreement
for the custody and maintenance of the children and for the equitable settlement of any property
rights as required by Tenn. Code Ann. § 36-4-103(b) (1996). After a hearing the trial court denied
the motion to vacate. In this appeal, Father asserts that this denial was error.
1
Tenn. C ode Ann . § 36-4-10 6(a) pro vides, in pertine nt part, as follow s:
In cases wherein an answ er is filed, the court shall, on motion of the defendant, require the
complainant to file a bill of particulars, setting forth the facts relied on as ground s for the divor ce, with
reasonab le certainty as to tim e and plac e.
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To set aside a judgment under rule 60.02 the burden is upon the movant to prove that
he is entitled to relief, and there must be proof of the basis on which relief is sought.
Brumlow v. Brumlow, 729 S.W.2d 103, 106 (Tenn. Ct. App. 1986); Jefferson v.
Pneumo Services Corp., 699 S.W.2d 181, 186 (Tenn. Ct. App. 1985). A motion for
relief from a judgment pursuant to Rule 60.02 addresses the sound discretion of the
trial judge; the scope of review on appeal is limited to whether the trial judge abused
his discretion. Toney v. Mueller Co., 810 S.W.2d 145 (Tenn. 1991); Travis v. City of
Murfreesboro, 686 S.W.2d 68, 70 (Tenn. 1985).
Rule 60.02 "was designed to strike a proper balance between the competing
principles of finality and justice." Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn.
197 ).Withr g r tot epurposeo t er l ,thisCo r recentlysat d, "Rule60.02actsasanes val efrompossibleinequityt atmghtotherwis arisefromthe
6 e ad h fh ue ut te cape v h i e
unrelenting imposition of the principle of finality imbedded in our procedural rules." Thompson v.
Firemen's Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990). Because of the importance of this
"principle of finality," the "escape valve" should not be easily opened.
Banks v. Dement Constr. Co., Inc., 817 S.W.2d 16, 18 (Tenn. 1991) (citing Toney, 810 S.W.2d at
146).
Father argues that the divorce decree must be set aside as invalid because it did not meet the
statutory requirements for a divorce on grounds of irreconcilable differences, as provided in Tenn.
Code Ann. § 36-4-103(b). That statute requires, among other things, that the trial court affirmatively
find in its decree “that the parties have made adequate and sufficient provision by written agreement
for the custody and maintenance of any children of that marriage and for the equitable settlement of
any property rights between the parties.” Tenn. Code Ann. § 36-4-103(b). While Father is correct
that the decree includes no such finding, that requirement only applies to a divorce on the ground of
irreconcilable differences. The record herein does not indicate that the parties' divorce was granted
on those grounds, making the statutory requirements inapplicable.
The final decree of divorce stated:
It . . . satisfactorily appearing to the Court that a decree of divorcement should be
entered pursuant to Tennessee Code Annotated, Section 36-4-129(a) granting a
decree of divorcement to the plaintiff, Lisa Lee Levenhagen, and the defendant,
Darby Lon Levenhagen . . . It is therefore, ordered, adjudged and decreed by the
Court that the bonds of matrimony uniting . . . [the parties] be and hereby are
absolutely and perpetually dissolved. . . .
Thus, the decree was entered pursuant to Tenn. Code Ann. § 36-4-129(a), which provides:
(a) In all actions for divorce from the bonds of matrimony or legal separation, the
parties may stipulate as to grounds and/or defenses.
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Both parties herein alleged the other was guilty of inappropriate marital conduct, and the
court had authority to declare the parties divorced upon either proof of or stipulation to those
grounds. See Tenn. Code Ann. § 36-4-129(b).
At the hearing on the motion to vacate, Father agreed with the court that the divorce had been
granted on stipulated grounds, but contended that those grounds were irreconcilable differences.
Father argues that the parties’ pleadings reflect that each contested the allegation of inappropriate
marital conduct against him or her but each agreed that they had irreconcilable differences.
However, Father has provided no evidentiary support showing that the parties did not ultimately
stipulate to inappropriate marital conduct as grounds for the divorce. No transcript of the divorce
hearing has been filed. Further, the trial court’s remarks at the hearing on the motion to vacate
indicate that it interpreted the divorce decree as based on stipulations as to fault grounds.
The decree on its face establishes that the divorce was not granted on the ground of
irreconcilable differences. First, the trial court specifically referenced Tenn. Code Ann. § 36-4-
129(a). Second, the trial court explicitly and painstakingly divided the parties’ property and debts
in the decree, a process not required when the parties agree to such division in a marital dissolution
agreement required in an irreconcilable differences divorce. Similarly, the trial court made an award
of custody and visitation of the parties’ children. The decree does not mention a marital dissolution
agreement, again a requirement of an irreconcilable differences divorce.
Without any record supporting his contention, Father would have us presume that the trial
court ignored the statutory requirements for granting an irreconcilable differences divorce when the
more logical conclusion, and that supported by the decree, is that the court declared the parties
divorced on the basis of stipulations to the grounds of inappropriate marital conduct. On the record
before us we must assume, as we did in Mackie v. Mackie, No. 01A01-9810-CV-00536, 1999 WL
675134 at * 1 (Tenn. Ct. App. Sept. 1, 1999) (no Tenn. R. App. P. 11 application filed), that the trial
court's decree of divorce was supported by the facts, i.e., that the parties stipulated to fault-based
grounds. See also Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.1992). This precludes us
from finding that the trial court exceeded its discretion in denying Husband’s Rule 60.02 motion.
II.
As stated above, less than three weeks after entry of the final decree, Wife filed a notice for
a hearing requesting that Husband's rights to unsupervised visitation be suspended, that the children
be returned to Wife's custody, and for an order to show cause why Husband should not be held in
contempt of court. Wife alleged that Husband had: (1) falsely reported to the Department of
Children's Services that Wife had committed child abuse against the youngest child; (2) refused to
allow Wife unimpeded telephone conversations with the children during visitation; (3) made
repeated derogatory remarks about Wife and her family in the children's presence; (4) made a
concerted effort during visitation to sway the children against Wife; (5) repeatedly took the children
to a mental health care facility during visitation; and (6) allowed a member of the opposite sex to
stay overnight while the children were visiting.
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A hearing on Wife's petition was held August 3, and a transcript of that hearing is not a part
of the appellate record.2 It is clear, however, that the August 3 hearing resulted in an immediate
suspension of Husband's visitation and an order that the children be evaluated. In an August 4 letter
discussing the events of the previous day, the court notified counsel for the parties that Mr. Kent
Lewis, M.S. D.Min., was designated to meet with and counsel the children. The court noted that Mr.
Lewis was to assist the children in coping with the divorce and "the enormous friction between the
parents." In addition, the court wanted the counselor to determine, if he could, whether the children
had been coached to relate stories about their mother's treatment of them. The court stated, "I want
advice on how quickly to recommence visitation by the father and with what restrictions. Obviously
the father will need to have visitation again, but I need to know how much harm is being done by
the father." The court observed that "the children have been the ropes in a psychological tug of war
between the parties. This must be stopped. After we have heard from the counselor, I suggest that
the three of us attempt to craft a visitation agreement that will minimize the problem." The letter
also stated:
If the father wants to communicate information to the counselor, I have no problem
with that. I assume that the mother will do so. If the counselor wants to meet with
the parents, together or separately, I will require that the parties do so. If the
counselor prefers to receive information from the parents only through their
attorneys, that is also fine.
As you both know, I was uncertain after the daughter testified whether she was
testifying honestly or had been coached. After the testimony of both parties, I began
to believe that in fact the daughter had been coached. On the other hand, I want the
input of a counselor on that, and as soon as possible. If you can agree to submit a
report, that would be great, but if you cannot, I understand, and the counselor's
deposition should be taken. I think you should be allowed to talk to him if you want.
The trial court ultimately found that, "the defendant [Husband] is actively seeking to
undermine the relationship between the plaintiff [Wife] and the parties' minor children, that these
efforts by the defendant have created a threat to the psychological health of the children and to the
relationship between the plaintiff and the children . . . " The trial court then suspended all Husband's
visitation or contact with the children until Husband "enter[ed] into ongoing psychological
counseling." The court held that supervised visitation would be permitted only upon written proof
by a licensed therapist that Husband had entered into regular counseling. The court indicated that
supervised visits could be considered transitional, the ultimate goal being resumption of
unsupervised visitation.
2
Our knowledge of the unrecorded August 3 hearing comes from the court’s order entered September 10
regarding the issues he ard Au gust 3 and from the transcrip t of a Septe mber 1 0 hearing , both of w hich indic ate that oral
testimony w as taken at the Au gust 3 hearing in open cou rt and in cham bers.
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The designated counselor, Mr. Lewis, interviewed both parents and the children and
forwarded a report to the trial court. Both parties received copies. Although discussed in subsequent
hearings, the report was never included in the record on appeal.
A hearing was set for September 10 on Husband's motion for an order to set visitation. That
issue was deferred, however, at the request of Husband's new attorney who appeared on September
10 for approval of substitution of counsel and to request a continuance. At the September 10
hearing, Husband's new counsel informed the court he would be filing several motions. The court
remarked that the hearing had originally been set "in order to get visitation reinitiated because it was
cut off until we could have the evaluation." The court expressed a willingness to set up visitation for
Husband upon proof he had entered counseling. Through counsel, Husband asserted he was
disputing the need for supervision of his visitation. After this argument was presented, the court
remarked to Husband’s attorney:
The practical effect of what you are going to do is give him no visitation at a time
when I would give him supervised visitation . . . But that’s your call, if you want to
do that.
Rather than responding to this point, Husband's counsel simply reiterated his grounds for
challenging the proceedings in order to create a record for appeal. The hearing concluded without
a lifting of the suspension of visitation. However, the court scheduled a hearing for September 22
to address the issue.
Husband then filed a motion to vacate or amend the September 10 order3 because he had not
had the opportunity to provide evidence contradictory to Mr. Lewis's report or to object to the report.
A hearing was held on this motion on September 22, along with Husband's motion requesting an
independent evaluation of the children, claiming the court appointed counselor was biased toward
Wife. The trial court denied the motion to vacate the September 10 order and granted the motion
for an evaluation of the children by a qualified counselor chosen by Husband for limited purposes.
The court reaffirmed its order allowing Husband supervised visitation upon proof he had entered into
counseling, amended the order to allow supervision by Wife's mother and Husband's mother, set
specific times for the visitations, and ordered that unsupervised visitation proceed in accordance with
the divorce decree after eight weeks of supervised visitation. Because Husband had still not
presented evidence that he had begun counseling, the court did not order visitation reinstated at the
time. At the hearing, Husband first resisted a proposal by the court that supervised visitation could
resume upon Husband's supplying written proof he had started counseling, obviating the necessity
for another hearing and its attendant delay. Husband eventually agreed to that procedure.
On appeal, Husband argues that the trial court erred by refusing to vacate its September 10
order suspending visitation because the failure to provide him with the opportunity to cross-examine
3
The motion was styled “Motion to Vacate or Amend Order Entered on Sep tember 9, 1998 Regard ing the
Hearing o n August 3, 1 998.”
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or provide witnesses to counter the opinion of the court appointed counselor violated his due process
rights. He asserts that "the due process violation occurred at the point in time where the court relied
upon the reports and recommendations of . . . [the counselor] as indicated by the September 10, 1998
order when deciding to suspend Mr. Levenhagen's visitation rights with his children without first
giving Mr. Levenhagen the opportunity to cross-examine . . . [the counselor] and to provide evidence
of his own that it was in the best interest of the children not to suspend visitation with their daddy
especially in light of the fact that . . . [the counselor's] reports appear on their face to be bias [sic]."
Thus, Husband objects to the suspension of his visitation to the extent that suspension resulted from
Mr. Lewis’s report and recommendation.
Husband's argument suffers from the fatal flaw that he has not demonstrated that the
suspension of visitation resulted in any degree from Mr. Lewis’s report. To the contrary, the record
is clear that the trial court suspended visitation immediately on August 3 as a result of evidence at
the hearing. The court's August 4 letter stated it wanted advice from the counselor on "how quickly
to recommence visitation by the father," noted the father obviously needed to have visitation again,
and suggested that the attorneys and judge, after hearing from the counselor, attempt to draft a
visitation agreement that would minimize the effects on the children of their parents' "tug of war"
over them. In addition, statements made by counsel and the court at the various subsequent hearings
clearly establish that Husband's visitation was suspended as a result of evidence taken at the August
3 hearing.
Based on that evidence, the court found that Husband was seeking to undermine the
children's relationship with their mother, thereby creating a threat to their psychological health.
On appeal, Husband does not challenge these findings. Further, no transcript or statement of the
evidence from the August 3 hearing is included in the record. Therefore, we are required to presume
that the trial court's findings are supported by the evidence. See J. C. Bradford & Co. v. Martin
Constr. Co., 576 S.W.2d 586, 587 (Tenn. 1979). Presuming these findings to be accurate, we find
no error in the trial court's suspension of Husband's visitation pending counseling. See In Re
Rockwell, 673 S.W.2d 512, 516 (Tenn. Ct. App. 1983).
In fact, Husband does not now complain of the initial suspension of visitation. His complaint
appears to arise from the requirement that the initial visits be supervised, even though the court made
clear its intention that the supervised visits be a temporary transition to resumption of unsupervised
visits pursuant to the divorce decree. He asserts the requirement of supervised visits resulted from
Mr. Lewis’s report and recommendation and that Mr. Lewis’s report was favorable to Wife and
biased against Husband. Husband has not provided us with a copy of Mr. Lewis’s report;
consequently he has failed to provide any support for these allegations.
Trial courts are vested with wide discretion in matters of visitation. See Edwards v. Edwards,
501 S.W.2d 283, 291 (Tenn. Ct. App. 1973). Precedent precludes us from disturbing a lower court's
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determination on this issue absent a showing that the court below abused its discretion.4 See Suttles
v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). In light of the trial court’s expressed concerns that
the children were the objects of a psychological tug of war between the parents and the findings that
Husband had tried to undermine Wife’s relationship with the children, we cannot say that the trial
court abused its discretion by ordering that Husband’s visitation temporarily be supervised.
Husband’s argument that his due process rights were violated because he was not permitted
to cross examine the court appointed counselor or present witnesses to oppose him lacks merit.
Husband’s request for an independent evaluation to counter the court appointed counselor’s opinion
was granted. Nothing in the record indicates that Husband sought any relief based on the
independent examination. Although the trial court’s August 4 letter invites counsel to depose the
court appointed counselor or voice objections to his report, nothing in the record indicates that
Husband did so.
Moreover, "[a]n essential principle of due process is that a deprivation of life, liberty, or
property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case.'"
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494,
503 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct.
652, 656, 94 L. Ed. 865, 873 (1950)); Gay v. City of Somerville, 878 S.W.2d 124, 129 (Tenn. Ct.
App. 1994). We are unpersuaded by Husband’s due process argument because we see no evidence
that Husband was deprived of adequate notice or the opportunity to be heard. He participated with
counsel in the August 3 hearing, he was given the opportunity to question the counselor, and he was
allowed to choose his own counselor to evaluate the children.
III.
On November 12, the trial court heard Wife's request that Husband be held in contempt and
found him guilty of criminal contempt for failure to timely pay child support. Husband argues that
this was error because the evidence of willfulness was insufficient. He also claims that the fact that
he was current on his support payments at the time of the hearing shows his failure to pay was not
willful. At the contempt hearing, in fact, Husband solely relied on the fact he had paid all support
owed, as of the day of the hearing.
4
In Foster v. Amcon Int'l, Inc., 621 S.W.2d 142, 145 (Tenn. 1981), the Supreme Court defined "abuse of
discretion" as follows:
The term has too often implied intentional wrong, bad faith or misconduct on the part of a trial judge.
In our view, "abuse of discretion" was never intended to carry such a meaning, nor to reflect upon the
trial judge in any disparaging manner. To us the phrase simply meant an erroneous conclusion or
judgment on the part of the trial judge--a conclusion that was clearly against logic (or reason) and not
justified.
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When the sufficiency of the evidence in a criminal contempt case is raised on appeal, this
Court must review the record to determine if the proof adduced at trial supports the finding of the
trier of fact of guilt beyond a reasonable doubt. See Tenn. R. App. P. 13(e).
We do not reweigh the proof. The defendant has the burden of illustrating to this
Court why the evidence is insufficient to support the verdict. A guilty verdict
removes the presumption of innocence and it is replaced with a presumption of guilt.
We will not disturb a verdict of guilt for lack of sufficient evidence unless the facts
contained in the record and any inferences which may be drawn from the facts are
insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty
beyond a reasonable doubt. [State ex rel. Anderson v.] Daugherty, 137 Tenn. [125]
at 127, 191 S.W. at 974 [(1917)]; State v. Creasy, 885 S.W.2d 829, 831.
Black v. Blount, 938 S.W.2d 394, 399 (Tenn. 1996).
Applying that standard to the facts in this case, we find that the evidence was clearly
sufficient to support the trial court’s decision. The trial court was authorized to impose punishment
for criminal contempt upon a finding beyond a reasonable doubt of willful disobedience or resistance
to its decree. See id.; Tenn. Code Ann. § 29-9-102(3).
On July 6, 1998 Husband was ordered to pay $410.55 in child support. By court order, this
amount was:
due and payable by the defendant to the plaintiff through the Circuit Court Clerk’s
office the first day of each and every month, beginning September 1, 1998, with each
party supplying to the other party continuing wage statements.
The evidence at the contempt hearing showed that on September 4, 10, and 23, 1998,
Husband paid $80 to the Clerk’s office. He paid $194.24 on October 28 and $221.26 on November
4. On the day of the hearing, November 12, Husband brought his arrearage current for the first time
since the support order was imposed with a payment of more than $596. On appeal, Husband does
not contest his ability to pay. Husband did not even raise the issue in the trial court, and presented
no evidence that he had been unable to timely pay the amounts ordered. The evidence showed that
he did not make the payments as ordered. The fact that he brought his arrearage current on the day
of the hearing speaks to his ability to pay and to his culpability in not timely paying, and Husband
can point to no evidence in the record of his inability to pay. Having considered the evidence, we
are satisfied that the record supports the trial court’s finding that Husband acted willfully when he
disobeyed the trial court’s order to pay child support on the dates and in the amounts ordered. See
Haynes v. Haynes, 904 S.W.2d 118, 120 (Tenn. Ct. App. 1995).
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IV.
Husband maintains that he was entitled to a jury trial on the contempt issue. He argues that
prosecution under Tenn. Code Ann. § 36-5-104 for failure to pay child support entitles him to a jury
trial under Brown v. Latham, 914 S.W.2d 887 (Tenn. 1996). Husband is correct in his reading of
Brown v. Latham, and had he been prosecuted for the criminal offense set out in Tenn. Code Ann.
§ 36-5-104, he would have been entitled to a jury. However, the record clearly shows he was found
in contempt of court under Tenn. Code Ann. §29-9-102.
Our Supreme Court recently considered the same argument presented by Husband herein.
In Ahern v. Ahern, 15 S.W.3d 73, 82 (Tenn. 2000), the Court stated:
In Brown v. Latham, this Court distinguished the contempt provisions in Tenn. Code
Ann. § 29-9-102 from Tenn. Code Ann. § 36-5-104(a). Brown, 914 S.W.2d at 889.
Tennessee Code Annotated § 36-5-104 addresses only the failure to pay child
support. The punishment for violation of this statutory provision is the equivalent
of punishment for committing a misdemeanor offense. Brown, 914 S.W.2d at 888.
Unlike Tenn. Code Ann § 36-5-104(a), contempt provisions of Tenn. Code Ann. §
29-9-102 are used to vindicate the authority of the courts either by punishment or by
forcing compliance. Brown, 914 S.W.2d at 888. The “offenses” enumerated in Tenn.
Code Ann. § 29-9-102 are wilful affronts to the court and include the wilful
misbehavior of an individual in the court’s presence, the wilful disobedience of an
individual to a court order, abuse of or unlawful interference with the court
proceedings, and jury tampering. Regardless of the form of the remedy or
punishment, it is the court and its administration of justice that are offended by an act
of contempt.
Nothing in the record indicates that Husband was charged with or convicted of the criminal
offense of failure to comply with a child support order under Tenn. Code Ann. § 36-5-104. To the
contrary, the record shows: (1) The petition requested that Husband be required to show cause why
he should not be held in criminal contempt for failing to pay child support as ordered; (2) an order
issued for Husband to appear "to show cause why he should not be held in contempt of court for
failure to pay child support as ordered by this Honorable Court;" (3) in its final order the trial court
found Husband in criminal contempt. From the bench, the trial court stated:
It is abundantly clear that Mr. Levenhagen is in contempt of this court - - willful
contempt of this court. He did not pay his child support payments when he was
ordered to pay them. When a court order tells you that you are to pay something at
a particular time, it does not give you the option of selecting when you are going to
pay; it does not give you the option of waiting to see whether a contempt action is
filed against you before you do pay. And I do find him to be in willful contempt of
court.
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In addition, while arguing that the contempt action against Husband should be dismissed on
ground not relevant to this appeal, counsel for Husband repeatedly referred to the proceeding as “a
criminal contempt.” The sentence imposed, ten days in jail with all but 48 hours suspended long as
timely payments were made, is a sanction “traditionally utilized to vindicate the authority of the
courts,” rather than a punishment. State ex rel. Richardson v. Richardson, No 01A01-9706-CV-
00274, 1998 WL 652579 at * 6 (Tenn. Ct. App. Sept 23, 1998) (no Tenn. R. App. P. 11 application
filed).
In Ahern, the Supreme Court held that "one charged with criminal contempt under Tenn. Code
Ann. § 29-9-102 is not entitled to a jury." Ahern, 15 S.W.3d at 82. The Court explained:
The general rule is that a constitutional guaranty of jury trial does not apply to
proceedings to punish for contempt of court whether in a court of law, a court of
equity, a court having criminal jurisdiction, or other court. Punishment for contempt
may be summary whether the contempt is direct or indirect, civil or criminal, whether
the contempt consists in disobedience of an order of the court, insult, or in other
conduct or omission, whether the acts constituting the contempt constitute also
infractions of the criminal law, although of the grade of felony and whether
imprisonment or fine is imposed or indemnity of an adverse party is decreed. Due
process does not require a jury trial in such a proceeding.
Id. at 81 (quoting Pass v. State, 181 Tenn. 613, 184 S.W.2d 1, 3 (1944)). Ahern requires us to reject
Husband's argument that he is entitled to a jury trial in this situation.
V.
Accordingly, we affirm the decision of the trial court in its entirety. This case is remanded
for such proceedings as may be necessary. Costs of this appeal are to be taxed to Mr. Levenhagen,
for which execution may issue if necessary.
____________________________________
PATRICIA J. COTTRELL, JUDGE
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