Attempted Compliance Can Thwart Contempt Allegations

March 6, 2013
By The McKellar Law Firm, PLLC on March 6, 2013 2:53 PM |

In the case of Gaddes v. Gaddes, No. M2011-02656-COA-R3-CV, 2013 WL 26842 (Tenn. Ct. App. Feb. 1, 2013) Tennessee divorce attorneys learn (1) criminal contempt is not warranted when attempted compliance is proven; and (2) parties cannot claim inconsistent positions about the intent of contractual language in order to avoid obligations.

Facts: The parties divorced in January 2001. In the Final Decree Mother was named the custodian from September through May, for which time period Father was to pay $1,622.00 per month in child support. From June through August, Father was named the children's custodian for which time period Mother was ordered to pay $290.00 per month in child support. After the Final Decree, Mother and Father verbally agreed to subtract Mother's child support obligation from Father's leaving Father to pay $1,174.00 per month in support over a twelve month period. The Final decree also stipulated that Father maintain health insurance for the two minor children and "the parties shall each pay one-half of any expenses not covered by insurance."

In December 2010 Mother filed a Petition for Criminal Contempt alleging Father was $2,059.00 in child support arrears, and that he had not yet paid the December payment. She also alleged that Father had not been paying in a timely manner and not paying his half of the out-of-pocket optical and/or dental expenses. Mother requested Father be incarcerated for ten days, become current on his child support, and that his visitation with the children be restricted pending mandatory counseling. Father filed a Counter Petition to Modify Final Decree and for Criminal Contempt requesting a reduction of his child support due to his decreased income and to hold Mother in contempt for interfering with his parenting time. The trial court held Father in contempt for his failure to pay the December 2010 child support payment before December 1st. However, the trial court declined Mother's request to incarcerate Father citing he was attempting to pay his child support obligation and prior to being served the Petition for Contempt he sent Mother a check for his December 2010 child support payment.

In August, 2011 a hearing was held on the competing motions. Mother was awarded $7,583.10 for unpaid child support through May 2011 to be paid at $500.00 per month and $1,200.00 for attorneys' fees. The trial court found Father was not obligated to pay half of any out-of-pocket optical and/or dental expenses for the children and reduced his child support obligation to $789.00 due by the 1st day of every month. Mother appealed.

Analysis: On appeal, the Appellate court decided two issues: (1) whether the trial court erred in declining to incarcerate Father for contempt; and (2) whether the trial court erred in not ordering Father to pay half of any out-of-pocket medical expenses.

On the contempt issue, Mother asserted a decade long issue with Father paying his child support obligation on time. The Appellate Court cited there was "scant evidence" to support Mother's allegations of decade-long non-compliance. The Court cited that Mother admitted to the trial court that her calculation of Father's arrearage was incorrect as she had failed to take into account two $600.00 payments made by Father. The Appellate Court pointed out that Father was $1,174.00 (one month) in arrears at the time Mother filed her Petition, and prior to being served Father paid the amount in full.

In regards to medical expenses, Mother argued that "medical expenses" referenced in the Final Decree should have been "reasonably interpreted" to include both optical and dental expenses. Mother contended that Father should be judicially estopped from claiming such expenses are not "medical expenses" due to Father's previous assertion in a contempt claim against Mother for her failure to pay a portion of non-covered medical and dental expenses. On appeal, Father asserted that "health insurance" did not cover optical and dental expenses. The Appellate Court cited Father's previous petition against Mother for dental expenses and ordered Father judicially estopped from claiming that the parties did not intend to split dental expenses, and found no reason to treat optical expenses differently from dental expenses. It also stated that both Mother and Father admitted that they had been splitting optical and dental expenses for "quite some time." The Appellate Court averred that when interpreting a contract, the parties' declarations and conduct are evidence to the interpretation of said contract.

Conclusion: The Appellate Court affirmed the trial court's ruling not to incarcerate Father. It reversed the trial court's ruling that Father did not have to pay half of optical and dental expenses and awarded Mother $2,889.70 for said expenses.