Fortson v. Fortson

IN THE COURT OF APPEALS OF TENNESSEE

FILED
NICHOLAS HOMER FORTSON, ) C/A NO. 03A01-9611-CV-00363
) August 28, 1997
Plaintiff-Appellee, )
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
) APPEAL AS OF RIGHT FROM THE
v. ) McMINN COUNTY CIRCUIT COURT
)
)
)
ELIZABETH GWENDOLYN FORTSON, )
) HONORABLE JOHN B. HAGLER,
Defendant-Appellant. ) JUDGE

For Appellant For Appellee

SUZANNE MASTERS H. CHRIS TREW
Knoxville, Tennessee Higgins, Biddle, Chester &
Trew, L.L.P.
Athens, Tennessee

OPINION

AFFIRMED IN PART
REVERSED IN PART
REMANDED WITH INSTRUCTIONS Susano, J.

1
 In this post-divorce proceeding, the trial court denied

the petition of Elizabeth Gwendolyn Fortson (Mother) for an

increase in child support and other relief against her former

husband, Nicholas Homer Fortson (Father). The trial court

granted Father’s counter-petition for contempt and sentenced

Mother to seven days in jail for interfering with Father’s

visitation with his minor child, who was 13 years old at the time

of the hearing below. Mother appealed, raising six issues which

present the following questions for our review:

1. Did the trial court err in failing to
conduct the criminal contempt proceeding
against Mother as though she had been
indicted for a criminal offense, thereby
violating her federal and state
constitutional rights?

2. Does the evidence support the trial
court’s finding that Mother was guilty of
criminal contempt beyond a reasonable doubt?

3. Does the evidence preponderate against
the trial court’s finding that no material
change in circumstances occurred so as to
warrant an increase in child support prior to
December 14, 1994?

4. Does the evidence preponderate against
the trial court’s denial of a judgment
against Father for a medical expense
arrearage owed to the minor child’s
psychologist?

5. Does the evidence preponderate against
the trial court’s denial of Mother’s request
for attorney’s fees?

6. Is Mother entitled to attorney’s fees and
court costs for the prosecution of this
appeal?

2
 I

The parties were divorced in 1989. Mother was granted

sole custody of the parties’ minor child, Nicholas Brock Fortson

(Brock)1, with specific visitation awarded to Father.

In October, 1989, Father filed a petition for contempt,

alleging that Mother had interfered with his visitation rights.

Mother was found to be in contempt and was sentenced to

incarceration for two days; however, that sentence was suspended

“provided there [was] no future showing of disobedience of the

orders of [the] court by her.”

In August, 1990, Mother filed a motion addressing

educational and medical expenses for the minor child. Father

responded to the motion and also petitioned the court to change

custody. The court denied both petitions. Father’s appeal of

the trial court’s refusal to change custody was subsequently

affirmed by this court.2

In the current dispute, Mother filed a petition in

December, 1992, to increase child support, and also requested

that the court find Father in contempt for his refusal to pay a

certain medical bill for Brock’s psychological counseling.

Father filed a counter-petition asking the court to hold his

former wife in contempt for again interfering with his visitation

rights. Among other things, Father’s petition alleged that

1
The child’s date of birth is May 7, 1980.
2
See Fortson v. Fortson, C/A No. 03A01-9104-CV-00123, 1991 WL 170567
(Court of Appeals at Knoxville, September 6, 1991).

3
Mother had denied him Christmas visitation in 1992. On October

18, 1993, the trial court heard proof on the parties’ petitions.

At the conclusion of all the proof, the court took the matter

under advisement and reviewed the entire record in this case,

including the record of the earlier proceedings. Some 19 months

later, the trial court issued a memorandum opinion denying

Mother’s petition for an increase in child support and holding

her in contempt for interfering with Father’s visitation rights.

It sentenced her to serve the original two days of incarceration

that previously had been suspended, as well as five additional

days in jail. The trial court subsequently amended its judgment

to provide for an increase in child support from $450 a month to

$668 per month, retroactive to December 14, 1994. Mother’s

appeal followed.

II

Mother’s first two issues address the trial court’s

finding that she was guilty of contempt for interfering with

Father’s visitation. Mother contends that since the trial court

held her in criminal -- rather than civil -- contempt3, she was

entitled to various procedural safeguards, e.g., notice of the

charges, the opportunity to put on witnesses, the right to

require proof beyond a reasonable doubt, and the right against

self-incrimination. She argues that she was not afforded these

protections, that, consequently, her federal and state

constitutional rights were violated, and that her conviction

3
Mr. Fortson concedes, and we agree, that the contempt proceedings
against Ms. Fortson were criminal in nature.

4
should therefore be reversed. She also contends that the

evidence does not support a finding that she was guilty of

contempt beyond a reasonable doubt.

Determinations regarding contempt lie within the

court’s sound discretion and are final, absent any plain abuse of

that discretion. Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993);

Robinson v. Air Draulics Engineering Co., 377 S.W.2d 908, 912

(Tenn. 1964); Sherrod v. Wix, 849 S.W.2d 780, 786 (Tenn.App.

1992). Criminal contempt proceedings are governed by Rule 42(b)

of the Tennessee Rules of Criminal Procedure, which provides, in

pertinent part:

A criminal contempt except as provided in
subdivision (a) of this rule shall be
prosecuted on notice. The notice shall state
the time and place of hearing, allowing a
reasonable time for the preparation of the
defense, and shall state the essential facts
constituting the criminal contempt charged
and describe it as such....

Rule 42(b), Tenn.R.Crim.P.4 Tennessee courts have overturned

criminal contempt convictions where proper notice was not given.

See, e.g., Storey v. Storey, 835 S.W.2d 593, 599-600 (Tenn.App.

1992). Thus, it is well-established that a defendant may be

punished for indirect criminal contempt only after he or she has

been given notice and the opportunity to respond to the charges.

State v. Maddux, 571 S.W.2d 819, 821 (Tenn. 1978)(citing Johnson

4
Such notice is not required in cases of direct criminal contempt, i.e.,
where the conduct constituting the contempt occurs “in the actual presence of
the court” and is witnessed by the judge. Rule 42(a), Tenn.R.Crim.P. In the
instant case, the alleged contempt was indirect, in that it occurred outside
of the presence of the court.

5
v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423

(1971); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69

L.Ed. 767 (1925)).

In addition to notice and a hearing, a defendant in a

criminal contempt proceeding is entitled to other constitutional

protections, including the presumption of innocence, the right to

require proof of guilt beyond a reasonable doubt, and the right

against self-incrimination. Gompers v. Buck’s Stove and Range

Co., 221 U.S. 418, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911);

Storey, 835 S.W.2d at 599. In short, the contempt proceeding

“must be tried as if the party were under indictment.” Kornik v.

Kornik, 3 Tenn.Civ.App. (Higgins) 41, 44 (1913). Accordingly,

the accused must be allowed a “chance to testify and call other

witnesses in his behalf, either by way of defense or by

explanation.” In re Green’s Petition, 369 U.S. 689, 82 S.Ct.

1114, 1116, 8 L.Ed.2d 198 (1962); see also Robinson, 377 S.W.2d

at 913 (“the freest opportunity should always be given [the

accused] to produce his defense.”).

III

On the notice issue, Father’s counter-petition set

forth his allegations of criminal contempt. He charged that

Mother had interfered with his visitation in the past. He prayed

that she be held in contempt “for violating his visitation

privileges,” and specifically

6
 [t]hat the Court punish [Mother] by having
her serve the two (2) days in the McMinn
County Jail as required by the [earlier]
Judgment, and [that the Court] provide
further punishment for her other violations
of the Orders in this case.

It is clear that Father was not seeking his former wife’s

incarceration regarding a transgression which was within her

ability to rectify. He asked that she be jailed for past conduct

which had produced a result, i.e., missed visitation, that could

not be undone. The counter-petition clearly put Mother on notice

that she was charged with criminal contempt.

Mother also argues that she was required to put on her

proof before Father offered his proof, thus violating her right

to require proof beyond a reasonable doubt and her right against

self-incrimination. Mother mischaracterizes what happened below.

Both of the parties in this case were seeking

affirmative relief. Mother filed her petition first and was the

first to call her witnesses. After putting on proof with respect

to her various requests for relief, counsel for Mother engaged

the court in the following colloquy:

MS. LEE: Ms. Fortson -- Your Honor, in the
countersuit filed regarding visitation would
it be all right if I went ahead and got into
that here or do you want to hear from him?

THE COURT: No, I think you ought to go into
everything that both offensively and
defensively and Mr. Trew do the same.

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 We find that Mother sought the permission of the court

to proceed in the manner now being criticized by her. If the

procedure utilized by the trial court was in error, Mother is

partially responsible for that error and will not be heard to

complain now. Rule 36(b), T.R.A.P.

Mother argues that she was precluded from calling some

witnesses she had available to testify regarding her alleged

interference with Father’s visitation. The record does not

reflect that the trial court refused to hear Mother’s witnesses.

After the parties had testified, the following exchange

took place among counsel and the court:

THE COURT: What other witnesses do you all
have and what are they?

MS. LEE: I have Cliff Willard, Your Honor,
who is an expert in dealing with children
with learning disabilities and will testify
as to Brock Fortson’s learning disability and
as to what he needs in terms of adaptive
material.

He is a specialist in this area dealing with
learning disabled children and is in fact is
a learning disability person himself and has
personal experience in this area.

I also have a witness, two witnesses as to
the events that transpired on December 18,
regarding this Christmas visitation. I don’t
know whether the Court needs additional
testimony on that issue or not, but we have
that available.

THE COURT: I think you have a witness on that
December 18 visit?

MR. TREW: Yes, if the Court wants to hear --

THE COURT: I think I want to just hear Mr.
Willard since he’s here to testify. Let’s
try to keep it brief.

8
At no time were the witnesses in question called by Mother to

testify. At no time did the court refuse to let the witnesses

testify. The record simply does not support Mother’s contention

that the court refused to let her witnesses testify.

Mother also complains that the court reviewed the

entire court file, as it pertained to the earlier proceedings

between these parties, in making its decision in this case. We

find nothing wrong with this. A trial court may take judicial

notice in a post-divorce proceeding of earlier proceedings

between the same parties in the same divorce case. See Rule

201(b)(2), Tenn.R.Evid. (“A judicially noticed fact must be one

not subject to reasonable dispute, in that it is either (1)

generally known . . . or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot

reasonably be questioned.”); see also Mandela v. Reynolds, C/A

No. 01A01-9303-CH-00126, 1993 WL 236607 at *2-3 (Tenn.App., M.S.,

filed June 30, 1993, Todd, J.) (records of prior proceedings

between the same parties in the same case are subject to judicial

notice since they constitute unquestionably accurate sources

under Rule 201(b)(2), Tenn.R.Evid.). This was particularly

necessary in this case since Father was asking that Mother serve

the two days of incarceration that had earlier been suspended.

Mother’s argument is without merit.

As her last argument on the criminal contempt issue,

Mother complains that her guilt was not shown beyond a reasonable

doubt. Again, we disagree.

9
 On this particular point, it is important to note the

trial court’s explicit finding regarding Mother’s credibility:

In all matters relating to custody and
visitation, this Court, both from the record
and from observing her demeanor in Court,
cannot accredit any testimony by mother.

“[O]n an issue which hinges on witness credibility, [the trial

court] will not be reversed unless, other than the oral testimony

of the witnesses, there is found in the record clear, concrete

and convincing evidence to the contrary.” Tennessee Valley

Kaolin v. Perry, 526 S.W.2d 488, 490 (Tenn.App. 1974).

There was an abundance of evidence that Mother denied

Father his visitation rights. The trial court found as follows:

The purpose here then is to show a now clear
pattern of conduct and lies by a troubled and
disturbed parent designed to prevent a normal
relationship between the child and the other
parent.

* * *

Typical of the manner in which she has
interfered with visitation, she offered the
father visitation dates for Christmas, 1992,
which he accepted. She then reneged by
“correspondence” which he never received,
eventually requiring the intervention of
attorneys for last-minute scheduling of
Christmas vacation. Moreover, this is the
first time the Court has even seen a laudable
activity like the Boy Scouts used to impede a
parent/child relationship.

Our review of the record convinces us that Mother intentionally

set out to interfere with Father’s visitation. We find in the

record proof of this beyond a reasonable doubt.

10
 We have reviewed all of Mother’s arguments supporting

her contention that the trial court’s criminal contempt decree

should be vacated. We find that all of her arguments are without

merit.

IV

Mother next argues that the trial court erred in

failing to make the increase in child support decreed by the

court retroactive to the date of filing of her petition seeking

an increase. We disagree.

The trial court initially refused to grant Mother any

increase in child support. In its memorandum opinion of October

18, 1993, the court noted that there had been no showing of a

material change of circumstances, stating that

[Mother] has proven only that the father’s
income has increased and that her own
financial needs, as opposed to those of her
son, have increased, primarily because of her
inability to remain employed.

After obtaining new counsel, Mother timely filed a “Motion for

New Trial/Motion to Modify Judgment” in which she argued that

there had been a “significant variance” between the child support

previously being paid by Father and the amount due under the

Guidelines, given Father’s present level of income. See T.C.A. §

36-5-101(a)(1); see also Tenn.Comp.R. & Regs., ch. 1240-2-4-

.02(3). She also argued that even prior to the advent of the

“significant variance” test, which was effective December 14,

11
1994, she was entitled to an increase in child support based upon

the old test, which required a showing of a material change of

circumstances. Accordingly, she sought an increase in support

from $450 per month to $668 per month, retroactive to the date of

filing of her petition.

The trial court, after hearing argument on Mother’s

motion, ruled that Mother was entitled to the requested increase

in support, but only retroactive to December 14, 1994. In doing

so, the trial court opined that it was only decreeing such an

increase because it felt that such an increase was mandated by

the new “significant variance” test. The court adhered to its

original decision that there was no basis for awarding an

increase in child support prior to the effective date of the

adoption of the new test.

We do not find that the evidence preponderates against

the trial court’s determination that Mother had failed to show a

material change of circumstances warranting an increase in child

support prior to December 14, 1994. In this case, there was

evidence that Mother’s financial situation was severely impacted

by the fact that she was no longer employed full-time. She

claimed that she needed additional support in order to purchase a

computer for her son, who suffers from a learning disability; but

the evidence was clear that he had access to a computer at

school; that he had been permitted, on occasions, to take it

home; and that he was being served by specialists at school for

his learning disability.

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 Applying the standard set forth in Rule 13(d),

T.R.A.P., we cannot say that the evidence preponderates against

the trial court’s child support decree. We find no abuse of

discretion.

V

Mother contends that the trial court should have

awarded her a judgment for a bill owed to one of the minor

child’s psychologists, Dr. Terry Molnar. The simple answer to

this issue is that Mother did not seek a money judgment. Her

prayer for relief on this matter asked only that Father “be held

in contempt for his willful refusal to pay the counseling bill as

set forth herein.”

In denying Mother’s request for relief as to Dr.

Molnar’s bill, the trial court noted that she had taken the child

to Dr. Molnar, only after “remov[ing] [him] from the psychologist

who, by background, training and experience, was best able to

assist the parties’ son.”

We find no error in the trial court’s refusal to award

Mother any relief pertaining to Dr. Molnar’s bill. In effect,

the trial court found that it was not reasonable and necessary.

We cannot say that the evidence preponderates against this

finding. There was evidence that despite his learning

disability, the parties’ child had been on the honor roll for the

last two years and was one rank from being a Eagle scout. The

evidence supports a finding that this is a fine young man who

13
needs less psychological help, and more support from his mother

in developing a relationship with his father.

Mother’s issue with respect to Dr. Molnar’s bill is

without merit.

VI

In her next issue, Mother argues that the trial court

erred in refusing to award her attorney fees, citing her success

in securing an increase in child support. The issue of attorney

fees addresses itself to the sound discretion of the trial court,

and an appellate court will not interfere absent a showing of an

abuse of that discretion. Elliot v. Elliot, 825 S.W.2d 87, 92

(Tenn.App. 1991); Threadgill v. Threadgill, 740 S.W.2d 419, 426

(Tenn.App. 1987). In this case, Wife was partially successful in

her efforts on behalf of her minor child. Therefore, we find

that she is entitled to an award of attorney’s fees, but only to

the extent her attorney’s charges and expenses are related to the

increase in child support decreed by the court. This case will

be remanded to the trial court for a hearing to determine the

fees and expenses to which Mother is entitled. See Folk v. Folk,

357 S.W.2d 828, 829 (Tenn. 1962). The trial court’s holding that

she is not entitled to an award of attorney’s fees and costs is

reversed.

VII

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 Finally, Mother seeks fees and costs incurred in

connection with this appeal. Since the vast majority of the

issues on this appeal have been found adverse to her, she is not

entitled to such fees and costs.

The trial court’s judgment denying Mother any attorney

fees and expenses at the trial level is reversed. In all other

respects, the judgment of the trial court is affirmed. Costs on

appeal are taxed against the appellant and her surety. This case

is remanded to the trial court for a hearing on the issue of

attorney’s fees and expenses. In all other respects, this case

is remanded for enforcement of the trial court’s judgment and

collection of costs assessed below, all pursuant to applicable

law.

___________________________
Charles D. Susano, Jr., J.

CONCUR:

________________________
Houston M. Goddard, P.J.

________________________
Herschel P. Franks, J.

15