Tennessee Divorce Attorney Blog

In Jarrell v. Jarrell, No. W2011-00578-COA-R3-CV (Tenn. App. Ct., March 28, 2012), the Tennessee Court of Appeals ("CoA") reversed the decision holding the Mother in civil contempt and awarding attorney's fees. Also, the CoA reversed the dismissal of the criminal contempt charge against Mother. This case highlights for Tennessee divorce attorneys how to utilize civil versus criminal contempt.

The parties married in 2003 and had two children. In 2009, Mother filed for divorce and in 2010 a Final Decree, Marital Dissolution Agreement and PPP (Permanent Parenting Plan) were entered. In the PPP, the major decisions concerning religious upbringing were to be made jointly and if a disagreement arose, the parties agreed to have the dispute settled by a mediator. Father and Mother attended a Methodist church and Mother felt the children should be baptized at an early age while Father did not. Following the divorce, Mother began attending a new church which required infant baptism. In 2010, Mother had the children baptized without Father's knowledge or consent. Father filed a Petition for Contempt and the trial court held the Mother in civil contempt but dismissed the criminal contempt charge. The trial court further awarded attorney's fees to Father.

Father argued on appeal that the trial court erred in dismissing the criminal contempt petition against Mother. Mother argued that the trial court erred in finding her in civil contempt and in awarding attorney's fees to Father.
Mother argued the trial court lacked authority to hold her in civil contempt because her actions did not substantially harm the children. The CoA dismissed this argument and stated the trial court was only asked to determine whether Mother's conduct violated the terms of the PPP.

T.C.A. §29-9-102(3) authorizes a court to exercise its contempt powers for willful disobedience of a court order and it may be civil or criminal. Criminal contempt is intended to punish the wrongdoer and the contempt cannot be purged by compliance with the court order. Civil contempt is used when a person fails to comply with a court order and is designed to bring the party into compliance. Mother, on appeal, claims the trial court's finding of civil contempt against her is erroneous because her single act cannot be cured and the PPP did not specifically forbid her action. The CoA disagreed that the PPP was ambiguous charge but found the trial court was attempting to punish her for her actions rather than compel her compliance. Therefore, the CoA found the trial court's civil contempt holding in error and reversed (also reversing the award of attorney's fees).

Regarding the dismissal of the criminal contempt charges, the guidelines for contempt proceedings must comply with Tenn. R. Crim. P. 42(b). A defendant must be given notice that they are charged with criminal contempt, notice of time and place of hearing, notice of essential facts, and allowed a reasonable time to prepare. Father's petition to the Mother and its accompanying fiat meets the criteria laid out Tenn. R. Crim. P. 42(b). The CoA found that the trial court erred and should not have dismissed the criminal contempt petition for lack of notice and remanded the case so the trial court may hear the petition.

The Tennessee Court of Appeals has defined for Tennessee divorce attorneys when a trial court has jurisdiction to modify child support under the Uniform Interstate Family Support Act (UIFSA) when neither the parents nor the children still reside in Tennessee.

In Earls v. Mendoza, No. W2010-01878-COA-R3-CV, the parties filed for divorce in Jackson, TN. They had two children together. During the divorce proceedings, the father accepted a promotion in Buffalo, NY. He, the mother, and the two children all moved there. Once the divorce was finalized in Jackson, the mother accepted a job offer in Denver, CO. The mother subsequently filed a motion with the Jackson trial court to relocate with the children to Denver. She also filed contempt against the father for not paying child support. The trial court granted the mother's motion to relocate with the children to Denver and also found the father to be in contempt. The trial court then modified the father's child support obligation.

The Tennessee Court of Appeals reversed the trial court's decision, finding that the trial court lacked jurisdiction due to none of the parties living in Tennessee at the time the motions were made. While this issue was not raised by either party, Tennessee appellate courts are able to decide jurisdictional issues on their own under Tenn. R. App. P. 13(b).

Regarding whether the court had jurisdiction to modify the father's child support obligation, the court looked to UIFSA (T.C.A. § 36-5-2201 et seq.). This Act governs interstate jurisdiction questions involving child support. Under T.C.A. § 36-5-2101, in order for a Tennessee trial court to have jurisdiction, the parties and the children have to live in Tennessee for at least six consecutive months immediately preceding the time of filing a petition. A trial court can also only have continuing, exclusive jurisdiction under certain situations. According to T.C.A. § 36-5-2205, a Tennessee Court has continuing, exclusive jurisdiction over a child support order: "(1)As long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or (2) Until all of the parties who are individuals have filed written consents with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction." Looking to courts of other states as well as previous appellate cases in Tennessee, the court noted that "virtually all have concluded that, once the parents and their minor children have left the issuing state, that state no longer has jurisdiction to modify its order."

Even though the mother argued that the parties consented to have the Tennessee trial court hear their case, the Appellate Court disagreed. No indication existed in the record showing that the parties "consent[ed] in a record or open court" to the Tennessee trial court below exercising jurisdiction to modify its order. In essence, silent acquiescence is not enough to show consent.

In the case of Davis v. Davis, No. E2010-00958-COA-R3-CV (Tenn. Ct. App. Aug. 30, 2011), the Wife appealed the trial court's classification of Husband's agreement to carry Wife's insurance as alimony in futuro. The original agreement was as follows: Wife was given a paid position on the board of Husband's company, CBM, which allowed her to be on the company's health insurance plan. Wife was then to reimburse CBM for all costs they incurred from her coverage. Husband eventually sold CBM to his son, who continued Wife's position and coverage. Then in 2005, CBM ended its group coverage for all employees and ceased paying Wife as a board member. Wife sued CBM and Husband. The Chancery Court for McMinn County held that the CBM payments were alimony in futuro, deemed Husband liable for CBM's lack of coverage and required him to cover Wife going forward. Husband appealed.

Interestingly, both parties disagreed with the trial court's classification of the insurance provision as alimony. Wife argued the payments could not be modified (and therefore cannot be alimony in futuro, which is modifiable) and did not cease upon death or remarriage. Husband argued that the agreement was a good-faith compromise allowing Wife to obtain insurance in return for her services as a board member.

The Court of Appeals noted that the original agreement stated that neither party would owe the other any spousal support. Also, the trial court, under T.C.A. §36-5-121(k) may require either party to pay health insurance costs for any appropriate length of time. However, this was an agreement of the parties, which the Appeals Court stated was terminable by Wife at any time or by Husband upon the extinguishing of his interest in the company, which he retained the right to do. Accordingly, the Appeals Court agreed with Husband that this was a good faith concession to allow Wife to easily obtain coverage, and therefore is properly classified as property division. Therefore, when Husband sold his interest in CBM, his obligation to carry Wife's insurance ended and Husband should not be held liable for prior unmade payments or future payments related to Wife's health insurance. The Court also ruled that the Wife could not recover payments from CBM either, because this was not an employment contract but an agreement between Husband and Wife. The Court further stated that neither the Husband nor CBM would be tasked with providing coverage for Wife indefinitely. The option for Wife to be covered by insurance in this manner was just that - an option, which the parties' agreement allowed to terminate at any time. Therefore the decision of the trial court was reversed and costs taxed to the Wife.

When a couple with children divorce, typically the most important consideration is how to provide for and support their children. The responsibilities of each parent for child support are included in the all Tennessee divorce agreements. This agreement is essentially a contract between the parties that becomes a court order when signed by a judge. Because a divorce agreement becomes a court order, if one of the parents fails to perform all of their obligations for child support, the court may hold that parent in contempt.

Contempt is simply a means for a court to coerce a party to comply with an order by imposing penalties on the non-performing party. The court may impose fines or even imprisonment on the party that willfully fails to comply with the order. The non-performing party can purge himself or herself of the contempt by following the order.

In Brumit v. Brumit, No. E2010-01999-COA-R3-CV, the Tennessee Court of Appeals had to decide which parent should be responsible for the attorney's fees incurred in enforcing a child support order through contempt proceedings. In this case, the Father was ordered to pay Mother $1,500 per month in child support following their divorce. From that amount, Mother was ordered to put $300 in an educational trust account for the benefit of their child. In 2008, Father filed a Motion for Contempt, alleging that he had fulfilled all his obligations to pay child support, but Mother was $6,600 behind in payments into the trust account. Mother brought all the payments up-to-date prior to the hearing on the contempt. The trial court found Mother in contempt for failing to obey the court order, and ordered that Mother pay half of Father's attorney's costs. Father appealed, arguing Mother is obligated to pay all his attorney's fees.

The Court of Appeals noted that even though Mother fully repaid the amount she owed to the trust account before the contempt citation was entered, Father could still be entitled to additional relief. The appeals court affirmed the trial court's finding of contempt against Mother since Father had to initiate contempt proceedings before she fully paid into the account. Additionally, the appeals court noted the Marital Dissolution Agreement itself stated that if one of the parties had to institute a legal action to force the other party to fully perform, "the party commencing such action shall be entitled not only to performance, but the costs of the proceeding, reasonable interest on all sums recovered, and reasonable attorneys' fees."

The Court of Appeals found that because of this provision, there was no doubt that Father was entitled to an award of attorney's fees. Yet the appeals court also affirmed the trial court's decision to order Mother to pay only half the fees Father incurred because "determining the reasonableness of the amount of an attorney's fee is a discretionary inquiry by the trial court . . . to which appellate courts will defer, absent an abuse of discretion." Therefore, even though the parties agreed that attorney's fees would have to be paid by the party breaching the Marital Dissolution Agreement, the Agreement did not specify what was "reasonable." This case illustrates the importance of being specific when drafting a Marital Dissolution Agreement (or any contract). If the parties intended for attorney's fees to be paid in full by the parent who failed to fulfill his or her obligations under the Agreement, they should have written it exactly that way. As it was, that decision was left to the trial court which may exercise considerable discretion in determining what is "reasonable."

In a recent Court of Appeals case entitled Moss v. Moss, 2011 WL 1459170
(Tenn.Ct.App., Apr. 15, 2011), post-judgment interest in a Tennessee divorce is explored.

The divorce finalized at end of 2008 and Husband was awarded marital residence and farm worth $580,000 plus equipment worth $200,000. Wife was awarded a chalet in Gatlinburg and a cash award of $250,000 to be paid upon Husband's receipt of his expected inheritance, to be paid within 30 days of the estate closing. If this did not happen within 12 months, Wife was given the option to petition the Court for relief, which she did, asking for immediate payment. The trial court denied her request and denied awarding her interest but ordered Husband to pay $417.00 per month until the estate closed, credited toward the $250,000. Wife appealed.

The Court of Appeals held that by denying the Wife any benefit of the martial estate along with denying post-judgment interest was not fair to the Wife, because of her financial circumstances and the Husband's farm produced income for him. Therefore, the Court remanded the case to the trial court with instructions to lift the stay regarding payment of the $250,000 and allow her to execute upon that judgment. The Court also held that interest should be awarded to the Wife as of December 2009 when she petitioned for relief. The Court reversed the $417.00 payment in light of the fact that the Wife can now execute on the judgment.

The Court noted that cash awarded in divorces are money judgments, meaning that post-judgment interest is allowed to accrue under T.C.A. §47-14-121, a mandatory statute requiring that interest in the amount of 10% per year shall accrue unless specified otherwise by statute or contract. Here, Wife is only entitled to interest beginning after the 12-month stay, because the rule in Tennessee is that interest doesn't accrue until the party is actually entitled to the funds.

The recent Tennessee Court of Appeals Case Warren v. Warren, No. M2009-02255-COA-R3-CV (Tenn. Ct. App. Apr. 29, 2011) highlights the importance of quickly filing for relief once a judgment has entered by the court.

Wife filed for divorce in Tennessee in May 2007 alleging irreconcilable differences. In April 2008, Husband filed an Answer but no Counter-Claim. Husband then filed a summons, served on Wife, stating failure to respond would result in a default judgment, even though no counterclaim or other document was filed. Husband then filed a Notice of Hearing for Default Divorce. The trial court entered a Final Decree of Divorce against Wife at the noticed hearing based on inappropriate marital conduct. That day the court also awarded each party the property in their separate possession and entered a parenting plan waiving child support.

One year later, Wife filed a Petition to Modify Child Custody and Support, Motion to Set Aside Default judgment and Motion to Compel Mediation under T.R.C.P. 60, arguing that the default was void since a counter-claim was never filed. The trial court denied Wife's request for the following reasons: the Notice of Hearing had a certificate of service indicating that Wife was served with a copy of the Notice of Entry of Default and the court took testimony from witnesses at a prior default hearing before granting the judgment.

The Appeals Court noted that "void" under Rule 60 means the court lacked jurisdiction or violated due process, regardless of whether procedural flaws exist. Here, the judgment was found not to be void even though the default failed to comply with the rules of procedure (T.R.C.P. 55), because this was an appeal from a Rule 60 denial and not a direct appeal from the entry of the default (an argument that would have been meritorious if made immediately).
The Wife next argued that the default judgment should have been set aside based upon two additional grounds. The first is based upon mistake, inadvertence, surprise or excusable neglect, determined by looking at all relevant circumstances including prejudice, good or bad faith, impact on proceedings and principles of equity. Here, the Appellate Court determined the default judgment to be equitable and refused to set it aside. Second, Wife argued that default judgment did not comply with the requisite laws and rules. The Appellate Court looked at whether the failure to respond was willful, whether the default had a meritorious defense, and the extent of prejudice caused. Because Wife failed to produce proof at the Rule 60 hearing that she could have established a defense or that the court erred in the Final Decree, and instead only addressed argument to parenting and support provisions, her argument fails. Moreover, Wife waited eleven months to file her Rule 60 Motion.

The Court noted that had Wife filed to have the default set aside immediately, the procedural errors would have resulted in the judgment being set aside, but because of her delay and due to the T.R.C.P. 60 standards, the Final Decree stands.