IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
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JULIE ANN BARNETT, Davidson Circuit No. 83D-173
C.A. No. 01A01-9704-CV-00187
Plaintiff,
Hon. Muriel Robinson, Judge
v.
STANLEY EARL BARNETT,
FILED
Defendant.
December 30, 1997
W. H. STEPHENSON, II, Nashville, Attorney for plaintiff. Cecil W. Crowson
Appellate Court Clerk
LOUISE R. FONTECCHIO, Nashville, Attorney for defendant.
AFFIRMED and REMANDED
Opinion Filed:
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TOMLIN, Sr. J.
Julie Ann Barnett (“mother”) filed a petition in the Circuit Court of Davidson County
against Stanley Barnett (“father”) seeking to have custody of the parties’ three minor children
vested in her rather than father. Father filed a counter complaint alleging that mother was in
contempt of court for violating earlier court orders regarding visitation and alienation of affections
of the children. Following a hearing, the trial court denied the petition, finding that mother had
failed to prove a material change of circumstances to justify change of custody. The trial court
also denied father’s petition to have mother cited for contempt of court. On appeal, mother raises
the single issue of the trial court’s denial of her petition to change custody. Father contends that
the trial court was in error in not finding mother in contempt and in addition seeks to have
mother’s appeal declared to be frivolous.
Some two and one-half months prior to the time this case was scheduled for argument
before this court, for reasons that are not in the record, mother filed a motion to dismiss her appeal.
Father opposed the motion on the grounds that he wished his issues to be considered by this court.
The motion to dismiss was denied by the middle section of this court. During oral argument,
counsel for mother waived oral argument as to her issue and waived appellate review of her issue
as well. As a result, this court has considered only the issues raised by father. For the reasons
hereinafter stated, we affirm the judgment of the trial court and find mother’s appeal to be
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frivolous.
We will review only the aspects of this case that relate to issues of father on his cross
appeal. At the time mother was granted a divorce in April 1983, she was given custody of the
parties’ three minor children. Approximately one year after the divorce, mother took the children
and secretly moved to another state without advising father where they were going or when they
would return. Approximately ten years elapsed before mother returned with the children to
Tennessee. Father had not seen his children during this period. He filed a petition seeking change
of custody in the Davidson County court that had jurisdiction over the divorce. On September 15,
1994, the trial court granted father’s petition for custody and at the same time enjoined mother
from attempting to alienate the affections of the children from father. No appeal was taken by
mother from this judgment.
Some eight months later in May 1995, mother filed a petition seeking to regain custody of
the parties’ two minor children, the third child having attained the age of majority. Father’s
answer contained a counter complaint seeking to have mother cited for contempt, alleging that
mother had violated the court’s orders against attempting to alienate the affection of the parties’
children from their father. Following a hearing, the trial court denied mother’s petition to change
custody, stating in part: “The Petition to change custody is without merit. There has been
absolutely no sufficient change of circumstances to award a change of custody. The Court finds
that the children are typical teenagers, and it is very apparent that they are caught in the middle
between warring parents.” Later in the trial court judgment the court stated: “This Court has
decided this custody case twice and based on the proof presented, that decision is not going to
change.” The trial court also found that mother was not in willful contempt of the court’s order
and dismissed father’s petition.
I. The Contempt Issue.
The determination of whether a party is guilty of contempt and the decision of the trial
court whether to assess a punishment for contempt is squarely within the discretion of the trial
court. Sherrod v. Wix, 849 S.W.2d 780, 786 (Tenn. Ct. App. 1992). The decision of the trial court
regarding contempt is final unless there is plain abuse of discretion. Herrera v. Herrera, 944
S.W.2d 379, 393 (Tenn. Ct. App. 1996). In presenting this issue to this court, father’s counsel
contends that the trial court actually found the mother in contempt in essence by finding that
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mother had violated its earlier order, but that the court improperly refused to assess any
punishment against her. Father has clearly misread what the trial court did. At the conclusion of
the hearing the trial court made the following statement from the bench.
I’m not going to make a finding of contempt because while I’ve made the statement
I think she is continuing to disrupt this Court’s order, she’s been egged on a little
bit by Mr. Barnett’s controlling attitude during the time she’s supposed to have
uninterrupted visitation with the children. So, the contempt petition will be
dismissed with no finding of contempt at this time. (emphasis added).
The court addressed the contempt issue in its final judgment as follows:
The Court further finds that the mother is continuing to disrupt the Court’s order.
However, this behavior is, in part, due to Mr. Barnett’s controlling attitude during
her visitation period. Therefore, the Court does not find her to be in willful
contempt and the father’s contempt petition will be dismissed with no finding of
contempt at this time.
We review this record and find that the trial court did not abuse its discretion in dismissing father’s
petition for contempt.
II. Frivolous Appeal.
In his brief and in oral argument before this court, father contends that mother’s appeal of
the trial court’s decision regarding custody was frivolous. While father would have in essence
prevailed by default on the major issue, that of custody, should he have acquiesced to mother’s
motion to dismiss her appeal, it seems to this court that the only way he could have presented his
issues to this court for consideration was to object to mother’s motion to dismiss the appeal, which
he did. Father contends that mother’s brief on appeal pertaining to this issue failed to address the
appropriate legal principles governing modification of custody and their corresponding application
to the facts of this case. Father’s contention is well made. Mother’s brief on more than one
occasion cites cases from this state as well as a Tennessee statute asserting that the comparative
fitness test should be applied, and that when applied mother should be awarded custody. These
authorities have been construed by this court to apply only to the initial determination of custody,
not to the modification of custody thereafter. Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn.
Ct. App. 1991).
Our courts have held that “[a] frivolous appeal is one that is ‘devoid of merit,’ or one in
which there is little prospect that it can ever succeed.” Industrial Dev. Bd. of Tullahoma v.
Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995) (citation omitted). A reading by this court
of the trial court’s combined comments as to the issue of change of custody clearly stated to
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mother that she had completely failed to make out a case in accordance with the law of this state.
In denying mother’s petition to modify custody, the trial court applied the proper standard
and reached the correct result. Under these circumstances we are of the opinion that this is a
frivolous appeal and that father is entitled to reasonable attorney fees and costs in connection with
this appeal. This cause is remanded to the trial court for the determination of these items.
We are constrained to note that during oral argument counsel for father asked for attorney
fees only up to the date of the filing of the motion to dismiss the appeal by mother. It appears that
father was insisting upon the appeal proceeding as contemplated in order for him to place before
this court the issue of mother’s alleged contempt. Therefore, so it would not appear to be the
desire of this court to punish mother economically, we grant the request of father’s counsel and
limit the attorney fee award in accordance with counsel’s recommendation.
In conclusion, this court cannot help but note the rancor and bitterness reflected by the
words and actions of both parties, and although some of it might be justified, it does appear that
in the past the parties have attempted to use the children to get back at one another. The main
accomplishment of actions of this type is to inflict even more damage upon the parties’ innocent
children. These children have suffered significantly as a result of the inability of their mother and
father to live harmoniously together as husband and wife and separately as divorced parents. If
the parties cannot conduct themselves in an honorable, decent manner so as to protect their
children from further harm, this court would remind them that the trial court has in its possession
a third alternative--that is, to place custody of these children under the jurisdiction of the
Department of Human Services. Perhaps it is time for the parties to clean up their respective acts.
The judgment of the trial court is affirmed and this cause is remanded for further
proceedings not inconsistent with this opinion and judgment. Costs on this
cause on appeal are taxed one-half to mother and one-half to father, for which execution may issue
if necessary.
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TOMLIN, SR. J.
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HIGHERS, J. (CONCURS)
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FARMER, J. (CONCURS)
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