IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned On Brief August 5, 2008
STATE OF TENNESSEE, EX REL. TERESA GARRISON
v. LARRY L. SCOBEY
Direct Appeal from the Juvenile Court for Dyer County
No. 4714 Tony Childress, Judge
No. W2007-02367-COA-R3-JV - Filed October 22, 2008
This is a child support case. The trial court determined Respondent Father had the ability to earn
minimum wage and entered a temporary order of support ordering him to pay child support based
upon a minimum wage income. Father filed a motion to set aside the order and failed to pay the
ordered support. The State, acting ex rel. Mother, filed a petition for contempt, a petition for
retroactive child support, and a petition to set permanent child support. Following a hearing, the trial
court denied Father’s motion to set aside the temporary support order, affirmed the finding that
Father was capable of earning minimum wage, and held Father in criminal contempt. The trial court
also ordered Father to pay retroactive child support. The trial court stayed its order sentencing Father
to jail for criminal contempt pending appeal to this Court. Father appeals the order finding him in
contempt, the denial of his motion to set aside the temporary order of support, and the order of
retroactive child support. We reverse the order on contempt and dismiss the remainder of Father’s
appeal for failure to appeal a final judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in part;
Dismissed and Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which HOLLY M. KIRBY , J., joined.
J. STEVEN STAFFORD , J., not participating.
Kenneth Greg Alford, Dyersburg, Tennessee, for the appellant, Larry Scobey.
Robert E. Cooper, Jr., Attorney General and Reporter and Warren Jasper, Assistant Attorney
General, for the appellee, State of Tennessee, ex rel. Teresa Garrison.
OPINION
Teresa G. Garrison (“Mother”) and Larry L. Scobey (“Father”) are the unmarried parents of
two minor children, born in April 1989 and July 1992. Until 1997, they shared the children, both
caring and providing for them. It is undisputed that Father has not contributed to the support of the
children since early 1997.
This long and rather convoluted child support dispute began in October 2005, when the State
of Tennessee, ex rel. Teresa G. Garrison, filed a “Petition To Set Support Based on Voluntary
Acknowledgment” against Larry L. Scobey in the Juvenile Court for Dyer County. In its petition,
the State sought prospective and retroactive child support. The State also sought an order requiring
Father to provide medical insurance for the children, and to pay for the children’s medical, dental
and optical expenses. The matter came before the court in December 2005 and was continued until
February 7, 2006. The order continuing the matter advised Father to have his attorney with him at
the February hearing should he choose to hire one. Father and his attorney appeared at the February
7, 2006, hearing and requested an additional continuance until April 4, 2006. Mother, counsel for
the State, and Father appeared before the trial court on April 4. Following a hearing, the trial court
entered a temporary order ordering Father to pay child support in the amount of $219 per month and
reserving all other matters. The trial court entered its temporary order on May 2, 2006.
Between the April 4 hearing and the entry of the trial court’s order on May 2, on April 12,
2006, Father filed a motion to set aside the order setting temporary support. In his motion, Father
asserted that his legal counsel was unable to attend the April 4 hearing because counsel was a
member of a chainsaw team assisting with relief efforts following a tornado in Dyer County on April
2. He further asserted that he had not received a signed order from the February 7 hearing. Father’s
petition also asserted that counsel had left a message for the trial court’s secretary that he was unable
to appear at the April 4 hearing, and that he had also faxed Mother’s attorney asking her to
reschedule the matter. The petition further stated that Father had not worked since early 1997 due
to injuries and that he should be allowed to put on proof of disability.
On April 13, 2006, Father also filed an answer and counter-petition seeking full legal and
physical custody. In his petition, Father asserted he had supported the children until 1997, that
Mother had intentionally injured him and then left with the children in early 1997, and that he did
not know where the children were after that time. The certificate of service attached to Father’s
counter-complaint indicates that it was served upon Christy Cooper (Ms. Cooper), who represented
the State in the child support matter.
No further action was taken by Father, and Father did not pay the temporary support ordered
by the trial court. In August 2006, the State filed a petition for contempt and to obtain judgment on
arrears. In its petition, the State asserted that Father owed at least $438 in child support arrears and
that Father was guilty of criminal contempt for the willful failure to abide by the court’s May 2006
order. The State prayed the trial court to find Father in criminal contempt and to sentence Father to
the Dyer County Jail for a period of ten days per violation of the court’s order. The State also prayed
for a judgment against Father in the amount of the child support arrears. The matter came to be
heard on September 19, 2006, and the trial court continued the matter indefinitely upon determining
that Father had not been served.
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In November 2006, the State filed a petition seeking an order setting permanent and
retroactive child support. In its petition, the State also sought an order requiring Father to provide
medical insurance for the children and to pay their medical and dental expenses. In December 2006,
Father filed his response to the State’s November petition. In his response, Father alleged that
Mother had failed to respond to the interrogatories, requests for production, and requests for
admissions that were served upon Ms. Cooper in conjunction with his counter-complaint for full
legal and physical custody. Father asserted that matter should be dismissed for Mother’s willful
failure to respond. He also asserted that, notwithstanding his April 12 motion to set aside, he was
not served with the trial court’s April 4 order. Father reiterated his assertion that he had not worked
since early 1997 and stated that he was seeking Social Security disability and/or SSI. Father also
filed a motion to deem requests for admissions admitted and a notice that the matter was set for
hearing on January 16, 2007. The parties came before the trial court on January 16, 2007; the trial
court appointed Father legal counsel on the contempt matter; and the matter was continued until
February 20, 2007. In February, the matter was again continued until March 20, 2007. On March
20, 2007, Mother, by and through counsel Barbara A. Deere (Ms. Deere), filed her answer to Father’s
counter-petition and denied Father’s allegations. The trial court finally heard the entire matter on
March 20, 2007.
Upon review of the record, we observe that the proceedings before the trial court became
somewhat complex in light of the several issues pending before the court. The trial court held a
multi-phase hearing, first addressing Father’s motion to set aside the May 2006 order on temporary
support. Finding Father had failed to move for a continuance and that a telephone message
informing the court that counsel would be unavailable on the date of the hearing did not constitute
such a motion, the trial court denied the motion to set aside. The trial court’s order, entered July 17,
2007, denied Father’s motion to set aside and stated that the order entered in May 2006 would
“remain in force pending final hearing in this cause.”
The trial court next addressed Father’s motion to deem the requests for admissions admitted.
During the course of this portion of the hearing, Ms. Cooper advised the trial court that she was not
before the court on behalf of Mother but on behalf of the State, and that she was not the proper
attorney for service with respect to Father’s counter-petition. Ms. Cooper further advised the court
that Mother had not been served with the counter-petition, interrogatories and requests for
admissions until February 20, and that the time for her to respond had therefore not passed.
Considerable discussion ensued with respect to whether the State’s attorney was properly served with
the requests for admissions and as to whether the requests were, therefore, properly deemed
admitted. Ms. Deere advised the court that Mother would “absolutely deny every one of them.” The
trial court determined that the hearing would be confined to the child support matters and would not
adjudicate Father’s counter-petition. Apparently, Ms. Cooper had responded to the interrogatories
that dealt with child support, but not the requests for production. Upon review of the requests for
admissions, the trial court admitted those relevant to the issue of child support, deemed them
admitted for the purposes of child support, and denied Father’s motion to dismiss for failure to
respond to discovery requests. The trial court entered its order on request for admissions on July 17,
2007.
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The trial court next addressed the State’s petition for contempt and to obtain a judgment on
arrears. Although Father did not deny that he had failed to pay child support as ordered in May 2006,
he asserted that he had been unable to work since 1993 and was, therefore, unable to pay child
support. The trial court found Father to be in contempt and entered its order of contempt on July 17,
2007. In its July order, the trial court granted the State’s petition for contempt, finding Father had
willfully failed to pay child support for June, July and August 2006. The trial court sentenced Father
to ten days in jail for each of the three violations.
The trial court next addressed the State’s petition for retroactive child support. The trial court
imputed a minimum wage income to Father. By order entered July 18, 2007, the trial court ordered
Father to pay retroactive child support in the amount of $20,292 for the period January 1, 1997 until
April 2006, excepting a period of 35 months during which Father was incarcerated. In August 2007,
the parties entered a consent order on Father’s counter-petition, providing that Mother would be
named primary residential parent and setting Father’s visitation. Father filed a motion for new trial
or petition to modify and/or vacate the order on criminal contempt in August 2007. Father also filed
a petition to modify and/or vacate the order on retroactive child support, asserting that the trial court
erred in setting retroactive child support and asserting Mother owed Father child support for the
period April 1989 to January 1997. The trial court denied the motion following a hearing in
September 2007. Final judgment was entered in the matter on September 19, 2007, and Father filed
a notice of appeal to this Court on October 18, 2007. The matter was assigned to this judge on
August 5, 2008.
Issues Presented
Father presents ten issues for our review. As we perceive them, the issues raised are:
(1) Whether the trial court erred in finding Father in willful contempt.
(2) Whether the trial court erred in hearing Father’s motion to set aside the
temporary order of support and the State’s petition for contempt on the same
day.
(3) Whether the trial court erred in denying Father’s motion to set aside the April
4, 2006, temporary child support order and in refusing Father’s request for
medical evaluation.
(4) Whether the trial court erred by determining Father was capable of earning
minimum wage and in setting child support based on this finding and a
finding that Father had not visited the children since early 1997.
(5) Whether the trial court erred in failing to admit all of Father’s requests for
admissions and in allowing Mother to testify regarding matters related to the
request for admissions.
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(6) Whether the trial court erred in finding that Mother was the primary
residential parent during the period prior to 1997, when the parties shared the
children.
Analysis
We begin our analysis by noting that a judgment on contempt becomes final upon entry of
the judgment imposing a punishment therefore. State v. Green, 689 S.W.2d 189, 190 (Tenn. Cr.
App. 1984)(citing17 C.J.S. Contempt § 114 (1963)). Under Rule 3 of the Tennessee Rules of
Appellate Procedure, it is appealable as of right regardless of whether the underlying proceedings
out of which the contempt arose are complete. Id. Accordingly, like the trial court, we will review
the contempt issues presented in this case separately, treating Father’s notice of appeal of the trial
court’s order on contempt as distinct from the remainder of the appeal.
“[S]anctions for criminal contempt are generally both punitive and unconditional in nature.”
Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996)(citations omitted). Although a criminal
contempt proceeding may arise during the course of civil litigation, such proceedings “in a very true
sense raise an issue between the public and the accused.” Id. (quoting State ex rel. Anderson v.
Daugherty, 191 S.W. 974 (Tenn. 1917) (internal citations and quotations omitted)). Accordingly,
guilt of criminal contempt must be established by proof beyond a reasonable doubt. Id.
In its brief to this Court, the State asserts that it “cannot in good faith urge affirmance of the
trial court’s judgment finding criminal contempt.” Accordingly, we reverse the trial court’s July 17,
2007, order finding Father in criminal contempt.
Jurisdiction
We next turn to the remainder of Father’s appeal. Before turning to the issues raised on
appeal, however, under Rule 13(b) of the Tennessee Rules of Appellate Procedure we must first
determine whether this Court has subject matter jurisdiction to adjudicate this appeal. Subject matter
jurisdiction concerns the authority of the court to hear a matter and cannot be waived. Meighan v.
U.S. Sprint Commc'ns Co., 924 S.W.2d 632, 639 (Tenn. 1996). This Court may consider subject
matter jurisdiction sua sponte. Tenn. R. App. P. 13(b); Ruff v. State, 978 S.W.2d 95, 98 (Tenn.
1998). The Tennessee Supreme Court has held that “[u]nless an appeal from an interlocutory order
is provided by the rules or by statute, appellate courts have jurisdiction over final judgments only.”
Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990).
Rule 3(a) of the Tennessee Rules of Appellate Procedure provides, in relevant part:
In civil actions every final judgment entered by a trial court from which an appeal lies
to the Supreme Court or Court of Appeals is appealable as of right. Except as
otherwise permitted in rule 9 and in Rule 54.02 Tennessee Rules of Civil Procedure,
if multiple parties or multiple claims for relief are involved in an action, any order
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that adjudicates fewer than all the claims or the rights and liabilities of fewer than all
the parties is not enforceable or appealable and is subject to revision at any time
before entry of a final judgment adjudicating all the claims, rights, and liabilities of
all parties.
In an action involving multiple parties or multiple claims, any trial court order that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties is not final or appealable
as of right. Accordingly, the subject matter jurisdiction of this Court is limited to final orders, except
as otherwise provided. Bayberry Assocs., 783 S.W.2d at 559.
Upon review of the record in this case, we have determined that, excepting the order of
contempt addressed above, Father has failed to appeal a final judgment. As noted above, the trial
court’s July 17, 2007, order on Father’s motion to set aside the order of temporary support provides
that the court’s April 2006 temporary order “shall remain in force pending final hearing in this
cause.” We note that the temporary order reserved the issues of retroactive child support and
medical insurance. Although the issue of retroactive child support was adjudicated and judgment
thereon entered in July 2007, the issue of medical insurance has not been adjudicated in the trial
court. Further, as the trial court noted during the March 2007 hearing, the State’s November 2006
petition to set permanent child support was not adjudicated at that hearing, and the order on
temporary support is not an appealable final order. Finally, we find no order denying the State’s
claim for arrears for the period June, July and August 2006, or awarding the State a judgment
thereon. Therefore, the judgment in this case is not final and we are without jurisdiction to address
the issues raised on appeal.
Holding
In light of the foregoing, the trial court’s order holding Father in contempt and sentencing
him to jail is reversed. The remainder of this matter is dismissed and remanded to the trial court.
Costs of this appeal are taxed one-half to the Appellee, the State of Tennessee, ex rel. Teresa G.
Garrison, and one-half to the Appellant, Larry L. Scobey.
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DAVID R. FARMER, JUDGE
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