07/09/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 17, 2019 Session
ROBIN DREWRY LUTTRELL (WASSENBERG) v. SAMUEL RICHARD
WASSENBERG
Appeal from the Chancery Court for Fayette County
No. 15654-PP Martha B. Brasfield, Chancellor
___________________________________
No. W2017-02443-COA-R3-CV
___________________________________
Five years after the parties’ divorce, the father relocated to another state. Both parents
moved for modification of the joint parenting plan, seeking to be named primary
residential parent. Finding that the father’s move was a material change in
circumstances, the court entered a temporary plan that designated the mother as primary
residential parent. Before trial, the court sanctioned the father for his complete failure to
respond to the mother’s Rule 34 requests. After a trial, the court found that modification
of the parenting plan was in the child’s best interest. The modified plan named the
mother the primary residential parent and substantially reduced the father’s parenting
time. The court also modified child support retroactive to the date of the mother’s
petition and found the father in both civil and criminal contempt. Because the court’s
final order lacks sufficient findings of fact and conclusions of law to explain its
modification decision, we vacate that part of the court’s order and remand for entry of an
order in compliance with Rule 52.01 of the Tennessee Rules of Civil Procedure. We also
vacate the post-trial civil contempt sanctions imposed by the court for the father’s
violation of the modified plan. In all other respects, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in
Part; Affirmed in Part; and Case Remanded
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which KENNY
ARMSTRONG and CARMA DENNIS MCGEE, JJ., joined.
Rachael E. Putnam and Nelson T. Rainey, Memphis, Tennessee, for the appellant,
Samuel Richard Wassenberg.
Laura D. Rogers, Memphis, Tennessee, for the appellee, Robin Drewry Luttrell
(Wassenberg).
OPINION
I.
A.
Robin Drewry Luttrell (“Mother”) and Samuel Richard Wassenberg (“Father”)
divorced in 2011. As part of the divorce decree, the Fayette County Chancery Court
adopted the parents’ agreed permanent parenting plan for their minor child. The agreed
plan provided for equal parenting time and designated both parents as primary residential
parent. All parenting decisions were to be made jointly. In lieu of child support, the plan
required the parents to divide all expenses for the child equally, “including tuition,
clothing, uniforms, tutoring, health insurance, school supplies/books, extracurricular
[activities, and] uninsured medical and orthodontic expenses.”
Father moved to Georgia when the child was twelve. For the next sixty days, the
child lived exclusively with Mother while the parents discussed changes to the existing
parenting plan. Unable to reach an agreement, in May 2016, Mother petitioned to modify
the parenting plan and to hold Father in civil contempt. Mother alleged that Father’s
move was a material change in circumstances warranting a change in custody. She asked
to be named primary residential parent with sole decision-making authority. Her
proposed parenting plan reduced Father’s parenting time to 50 days and required him to
pay $561 per month in child support in addition to paying half of the child’s educational
and uninsured medical expenses.
Mother’s civil contempt petition was based primarily on Father’s alleged failure to
pay his share of the child’s expenses as required by the existing plan. According to
Mother’s petition, Father owed her over $4,000 dating back to 2013.
Mother also claimed that Father was pressuring the child to agree to live with him
in Georgia. Mother requested an injunction forbidding either parent from discussing the
litigation with the child. And in July 2016, the court entered a consent order forbidding
the parties from discussing the litigation or the issues being litigated with the child.
Father agreed that a material change had occurred. In his counterpetition, Father
asked to be named primary residential parent based on his belief that the child preferred
to live with him. Father’s proposed plan gave him 285 days of residential parenting time
and Mother, 80.
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B.
The child had significant learning disabilities. At the end of her most recent
school year, the administrators at her school recommended that the child transfer to a
school better suited to her needs. They suggested two local schools with programs for
children with learning disabilities. After researching the schools, Mother decided that a
private school in Memphis (the “Memphis School”) was the better choice. Father
disagreed. With the new school year fast approaching, Mother asked the court to decide.
After hearing testimony from both parents, the court entered an interim order
allowing Mother to enroll the child in the Memphis School and establishing a temporary
parenting plan. The court found that the child’s educational needs could not be met at her
current school and it was in her best interest to enroll at the Memphis School. But the
court recognized that the Memphis School was significantly more expensive. So rather
than requiring Father to pay half of the higher tuition, the court ordered Father to pay
$6,700, the amount he was willing to pay for the child’s former school.
The court also found that Father’s move was a material change in circumstances
warranting modification of the existing plan. The court named Mother the primary
residential parent and modified the parenting schedule to allow Father to exercise
parenting time “as close to every other weekend as possible.” The court directed Father
to review the school schedule and notify Mother which weekends he would exercise.
Other than these modifications, the existing parenting plan remained in effect pending a
final hearing.
Father had tried, albeit unsuccessfully, to compel Mother to bring the child to the
hearing. The court explained that, if it desired to hear from the child, it would do so in
chambers in the presence of the attorneys, but not the parents. And it reminded the
parents of its previous order forbidding discussion of the litigation with the child. The
court reiterated that the parents were not to “discuss with the child where she want[ed] to
live or ask her which parent she want[ed] to live with.”
C.
Multiple disputes arose between the parties before the final hearing, only some of
which are relevant to this appeal. Mother complained that Father continued to avoid
paying his share of the child’s expenses. Father persisted in his efforts to have the court
hear from the child. And both parents filed motions to compel and requests for sanctions
alleging the other parent failed to comply with discovery.
In early 2017, Father brought the child to his attorney’s office to discuss the
child’s preference. At Father’s request, his attorney drafted an affidavit, which the child
signed. A month later, Father’s attorney provided Mother with a copy of the affidavit
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and indicated she had been asked to file it. Mother objected. Unbeknownst to Mother,
the affidavit had been filed in January, presumably by Father. Styled as the child’s
“election,” the affidavit lacked both the signature of an attorney and a certificate of
service. When she discovered the affidavit had been filed, Mother moved for Rule 11
sanctions.
Mother also filed a petition to hold Father in criminal and civil contempt. Her
criminal contempt petition alleged Father had violated the court’s injunction forbidding
the parents from talking to the child about the litigation. The petition described several
instances in which Father had violated the order, the most egregious example being
Father’s meeting with the child in his attorney’s office. Mother also asked the court to
hold Father in civil contempt for his continuing failure to pay his share of the child’s
expenses and the Memphis School tuition.
D.
The court addressed the pending matters at the pretrial conference. The court
granted Mother’s Rule 11 motion and ordered the child’s affidavit stricken from the
record. And the court ordered Father to pay the attorney’s fees associated with the Rule
11 motion and hearing.
The court scheduled Mother’s criminal and civil contempt petitions to be heard in
conjunction with the trial. The criminal contempt hearing would take place on the
morning of June 8, before the trial. And at the conclusion of the criminal contempt
proceeding, the court would hear proof on the modification petitions and Mother’s
petition for civil contempt
The court granted Mother’s motion for discovery sanctions and denied Father’s
motion. Mother’s discovery requests had been pending since July 2016. Although
Father’s attorney had misplaced the requests at some point, she had received new copies
in February. Three months later, Father had still not responded to Mother’s requests for
production of documents. The court was unimpressed by Father’s arguments that his
attorney was busy and that the requests were overly broad. Father never filed an
objection or sought a protective order. The court noted that both parents were aware of
the urgent need to finalize a modified plan before the start of another school year. With
the trial only a month away, the court denied Father’s request for another week to
respond.
The court denied Mother’s motion to dismiss Father’s counterpetition as a
sanction for discovery abuse. Choosing to impose a lesser sanction, the court directed the
attorneys to prepare for trial based on the information that had been provided. “Father
[was] not . . . permitted to testify about information that was sought in discovery and not
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answered . . . [or] to produce documents or other tangible evidence at trial if it was
requested in discovery and not produced.”
The court also denied Father’s most recent motion to hear the child’s testimony.
The court acknowledged that it was required to consider the child’s preference because of
her age. See Tenn. Code Ann. § 36-6-106(a)(13) (2017). But both parents agreed that
the child would testify that her preference was to live with Father. Under the
circumstances, the court ruled that “there’s no point in her coming to court because we
already know what she is going to say.” And while Father had listed the child in his
interrogatory responses as a fact witness, the court found that he had not disclosed the
substance of her anticipated testimony as requested. So the child was precluded from
testifying as a fact witness.
E.
As agreed, the first order of business on June 8 was the criminal contempt hearing.
Mother testified in support of her petition, but Father chose to remain silent. After the
criminal contempt hearing concluded, the court directed the parties to attempt to resolve
the remaining issues. Court recessed. When court reconvened, the attorneys announced
the terms of an agreement. Most importantly, the parents agreed that Mother would be
the primary residential parent. Then the court heard evidence on the remaining
modification issues and on Mother’s petition for civil contempt. Only Mother and Father
testified.
After the trial, the court entered a partial order pending “calculation of attorney’s
fees and [Father’s] child support arrearage.” The court found Father in criminal contempt
for violating the July 2016 consent order. Father knowingly and willfully violated the
order when he discussed litigation issues with the child at his attorney’s office. The court
sentenced him to ten days in jail. Nine days were suspended for one year provided that
he did not violate any further orders of the court.
Based on the parties’ stipulation, the court designated Mother primary residential
parent. In a subsequent order, the court noted that the proof at trial supported a finding
that it was in the child’s best interest to name Mother the primary residential parent even
without the stipulation. The court recognized that the child had expressed a preference to
live with Father, but the court believed that the child’s preference had been tainted by
Father’s actions. The court also found it was in the child’s best interest to award Mother
sole decision-making authority after consultation with Father.
The court granted Mother’s request to modify child support. Child support was set
at $513 per month effective June 1, 2016. The court ordered Father to begin paying the
new child support amount on July 1, 2017. The court reserved ruling on when Father
would begin payment on his $6,669 arrearage.
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The court also found Father had willfully failed to pay his share of the child’s
expenses under the original plan and his share of the Memphis School tuition as ordered.
The court held Father in civil contempt, but reserved ruling on any punishment.
Mother’s request to calculate the amount Father owed for his share of the child’s
expenses under the original plan was granted. At trial, Mother had submitted a detailed
accounting of the expenses she had incurred on behalf of the child since May 2013. The
court advised the parties that it would “review the documents provided by Mother to
determine the amount of past due support Father owe[d] through May 2017.”
F.
Father retained new counsel after the trial. The new attorney requested additional
time to respond to Mother’s proposed final order. Mother objected, arguing that the
delay would allow Father to continue avoiding his obligations. The court granted the
request for a continuance but ordered Father to begin payment pending entry of a final
order. The court’s interim order set a schedule for payment of the Memphis School
tuition for the new school year, awarded a judgment for the attorney’s fees associated
with Mother’s Rule 11 motion, and ordered Father to begin monthly payments toward his
$6,669 arrearage on September 1.
On November 16, 2017, the court entered a final order. The court expressly found
Mother’s proposed plan to be in the child’s best interest. The court adopted a slightly
altered version of Mother’s proposed plan. The court’s plan named Mother primary
residential parent and awarded Father 70 days of parenting time. Proof at trial
established that Father was uncooperative and had a history of making decisions that
were not in child’s best interest. So the court gave Mother sole decision-making
authority after consultation with Father.
The court awarded Mother a $4,482.54 judgment for Father’s outstanding share of
the child’s expenses under the original plan. It was undisputed that Father had not paid
his share of the child’s expenses under the original plan. And he was unable to prove at
trial that he was entitled to an offset. Based on Father’s stipulation “that he had the
ability to pay his court-ordered obligations,” the court found that “his failure to pay
support was clearly willful.” The court sentenced him to five days in jail for civil
contempt but allowed for a $3,000 purge payment.
The modified plan required Father to pay $513 in monthly child support plus half
of the child’s educational and medical expenses, including half of the Memphis School
tuition. The court had previously calculated that Father owed $6,669 for retroactive
monthly child support. And in the final order, the court awarded Mother a $1,436.63
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judgment for Father’s unpaid portion of the child’s educational and uninsured medical
expenses for the same period.
The court also found that Mother was entitled to an award of attorney’s fees for
Father’s egregious behavior throughout the litigation. Father was not honest with the
court. He opposed simple requests and engaged in conduct that caused unnecessary
litigation. He refused to withdraw an inappropriate document filed with the court. He
did not comply with discovery. Finding Mother’s attorney’s fees to be reasonable, the
court ordered Father to pay a portion of those fees, or $13,000, plus $195 in expenses.
G.
Father deposited a $23,792 cash bond with the court clerk and requested a stay of
judgment pending his appeal to this Court. The cash bond was equivalent to the
remaining balance owed under the final order. Mother filed a third motion for contempt
alleging that Father was in violation of both the court’s final order and the modified
parenting plan.
Both parents testified at the hearing on the competing motions. Mother agreed
that, since the entry of the court’s final order, Father had paid his monthly child support
and his half of the Memphis School tuition. But he was not making the required monthly
payments on his arrearages or the attorney’s fee awards. And he had ignored her requests
that he pay $1,792 for his share of the child’s educational and medical expenses since the
trial.
For his part, Father argued that not all of the expenses included in Mother’s
invoice were legitimate. But he admitted that he never voiced any objections to Mother.
He also submitted a recent pay stub as evidence of his inability to make the payments
specified in the final order. He claimed to have no other resources. But when questioned
about his cash bond, he conceded that he posted the bond with a portion of the proceeds
he received from selling some real property for $70,000.
The court denied Father’s request for a stay pending appeal and ordered the cash
bond released to Mother. The court also granted Mother’s petition for civil contempt.
The court questioned Father’s credibility, noting his evasiveness during questioning. The
court found that Father knew he was responsible for paying his share of the child’s
expenses. He failed to do so even though he had the ability to pay. The court set a
deadline for Father to pay his share of the child’s expenses. The court also ordered
Father to serve his remaining nine days in jail and to pay Mother’s attorney’s fees.
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II.
Father raises numerous issues on appeal. He contends that the court erred in: (1)
imposing discovery sanctions; (2) excluding the child’s testimony; (3) finding the parties
had stipulated to Mother being the primary residential parent; (4) failing to consider the
statutory best interest factors; (5) finding him in civil and criminal contempt; and (6)
awarding Mother attorney’s fees.
We review most of Father’s issues under the deferential abuse of discretion
standard of review. See White v. Beeks, 469 S.W.3d 517, 527 (Tenn. 2015), as revised on
denial of reh’g, (Aug. 26, 2015) (decision to admit or exclude evidence); Mercer v.
Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn. 2004) (discovery sanctions); Hawk v.
Hawk, 855 S.W.2d 573, 583 (Tenn. 1993) (civil contempt); Massey-Holt v. Holt, 255
S.W.3d 603, 607 (Tenn. Ct. App. 2007) (custody determination); Sherrod v. Wix, 849
S.W.2d 780, 785 (Tenn. Ct. App. 1992) (attorney’s fees). Our review of discretionary
decisions is limited. Beard v. Bd. of Prof’l Responsibility, 288 S.W.3d 838, 860 (Tenn.
2009). We do not “second-guess the court below” or “substitute [our] discretion for the
lower court’s.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). In
reviewing discretionary decisions, we consider “(1) whether the factual basis for the
decision is properly supported by evidence in the record, (2) whether the lower court
properly identified and applied the most appropriate legal principles applicable to the
decision, and (3) whether the lower court’s decision was within the range of acceptable
alternative dispositions.” Id. We “review the underlying factual findings using the
preponderance of the evidence standard contained in Tenn. R. App. P. 13(d) and . . . the
lower court’s legal determinations de novo without any presumption of correctness.” Id.
at 525.
A.
Father contends that the trial court erred in imposing such draconian discovery
sanctions. Initially, he points out that Rule 37.02 only authorizes sanctions for violation
of a court order. See Tenn. R. Civ. P. 37.02. And the trial court never issued an order
compelling him to respond to Mother’s discovery. But Father cites the wrong rule. The
applicable rule is Rule 37.04, which provides that “[i]f a party . . . fails . . . to serve a
written response to a request . . . submitted under rule 34, the court in which the action is
pending on motion may make such orders in regard to the failure as are just.” Id. 37.04.
Father never responded to Mother’s Rule 34 requests. So the court was authorized to
take immediate action.
Even so, Father complains that the court’s sanction was unjust because it
effectively prevented him “from offering any evidence of any kind.” We disagree. The
court only restricted him from testifying or offering into evidence matters that were
requested in discovery and not produced. This type of sanction is specifically permitted
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in our rules. See id. 37.02(B) (authorizing a court to issue an “order refusing to allow the
disobedient party to support or oppose designated claims or defenses, or prohibiting that
party from introducing designated matters in evidence”).
Finally, Father argues that a lesser sanction would have been more appropriate
because his former attorney was to blame for his failure to respond. But the trial court
took the attorney’s conduct into consideration. See Mansfield v. Mansfield, No.
01A019412CH0058, 1995 WL 643329, at *6 (Tenn. Ct. App. Nov. 3, 1995) (explaining
that a court should take into account whether the failure to act is more attributable to the
attorney or the client). Still, the court found fault with Father.
We cannot say that the court abused its discretion in imposing these sanctions.
The discovery requests had been pending for almost ten months. Father never objected to
the requests or moved for a protective order. And only a limited time remained for the
parties to prepare for trial.
B.
Father also challenges the trial court’s decision to exclude the child’s testimony at
trial, arguing that the court failed to consider the child’s preference in fashioning the
parenting plan. Statute requires a court to consider the “reasonable preference of the
child if twelve (12) years of age or older.” See Tenn. Code Ann. § 36-6-106(a)(13).
Generally, a child’s preference must be established through proof. Roberts v. Roberts,
No. W2016-01810-COA-R3-CV, 2017 WL 5634247, at *6 (Tenn. Ct. App. Nov. 22,
2017) (finding the trial court abused its discretion by not allowing evidence of the child’s
preference into evidence “in any manner or method”). But the decision to exclude the
child’s testimony does not necessarily violate the statutory mandate. We have affirmed a
court’s modification decision even though the court excluded an older child’s testimony
when the record indicated that the court knew and considered the child’s preference. See
Hill v. Hill, No. M2006-01792-COA-R3-CV, 2008 WL 110101, at *6 (Tenn. Ct. App.
Jan. 9, 2008).
Here, contrary to Father’s assertion, the court did consider the child’s preference.
In its oral ruling excluding the child’s testimony, which was incorporated by reference in
its order, the court stated that Mother would “agree that the child wants to live with the
father.”
C.
Father argues that the record does not support the court’s finding of a stipulation at
trial for the designation of the primary residential parent. “A stipulation is an agreement
between counsel regarding business before the court, . . . which is entered into mutually
and voluntarily by the parties.” Overstreet v. Shoney’s Inc., 4 S.W.3d 694, 701 (Tenn.
9
Ct. App. 1999) (citations omitted). Stipulations bind the parties and prevent them from
asserting a contrary position, even on appeal. Bearman v. Camatsos, 385 S.W.2d 91, 93
(Tenn. 1964); Rutherford Builders v. Sec. Fed. Sav. & Loan Ass’n of Murfreesboro,
Tenn., No. 87-114-II, 1987 WL 18958, at *5 (Tenn. Ct. App. Oct. 28, 1987). While
“parties may not stipulate to questions of law, . . . stipulations within the range of
possibly true facts and valid legal strategies are allowed.” Overstreet, 4 S.W.3d at 701.
“A stipulation should discuss the who, what, where and why of the contested
matter.” Stumpenhorst v. Blurton, No. W2000-02977-COA-R3-CV, 2002 WL 1751380,
at *4 (Tenn. Ct. App. Feb. 27, 2002) (quoting 83 C.J.S. Stipulations § 13 (2000)). In
determining whether a stipulation is valid, courts look at a variety of factors such as
“whether the party had competent representation of counsel, whether extensive and
detailed negotiations occurred, whether the party agreed to the stipulation in open court,
and whether, when questioned by the judge, the party acknowledged understanding the
terms and that they were fair and equitable.” Id.
The parties’ announcement at trial bears the hallmarks of a stipulation. Mother
had previously been named primary residential parent on a temporary basis. So which
parent would be named primary residential parent in the final order remained in dispute.
The parties, along with their respective counsel, participated in a period of court-ordered
negotiation. And they announced their agreement in open court. Our courts recognize
“the validity of an oral stipulation made during the course of a trial.” Bearman, 385
S.W.2d at 93; Envtl. Abatement, Inc. v. Astrum R.E. Corp., 27 S.W.3d 530, 539 (Tenn.
Ct. App. 2000). We find no indication in this record that Father did not understand the
agreement or objected to it.
We are unpersuaded by Father’s contention that the stipulation lacked sufficient
detail. “[A] stipulation need not follow any particular form[;] its terms must be definite
and certain in order to afford a proper basis for judicial decision.” 83 C.J.S. Stipulations
§ 13, Westlaw (database updated June 2020) (footnotes omitted), quoted in
Stumpenhorst, 2002 WL 1751380 at *4. There is nothing ambiguous about the parties’
agreement that Mother would be primary residential parent.
D.
Father’s next issue focuses on the trial court’s best interest analysis. The parties’
stipulation did not relieve the court of its obligation to conduct a best interest analysis.
See Tuetken v. Tuetken, 320 S.W.3d 262, 272 (Tenn. 2010) (“[I]t is well established that
parents cannot bind the court with an agreement affecting the best interest of their
children.”). The trial court is “the ultimate arbiter of the best interest of the children
within its purview.” Fletcher v. Fletcher, No. M2010-01777-COA-R3-CV, 2011 WL
4447903, at *8 (Tenn. Ct. App. Sept. 26, 2011). In determining best interest, courts must
10
consider a non-exclusive list of factors found at Tennessee Code Annotated § 36-6-
106(a). Tenn. Code Ann. §§ 36-6-404(b), -405(a) (2017).
Father contends that the trial court failed to consider the applicable best interest
factors in reaching its modification decision. A court is not required to “list and discuss
each factor.” Keisling v. Keisling, 196 S.W.3d 703, 723 (Tenn. Ct. App. 2005). But the
court’s findings should demonstrate consideration of the relevant factors. Id.
Unfortunately, our review is hampered by the lack of factual findings in the court’s post-
trial orders.
Tennessee Rule of Civil Procedure 52.01 requires trial courts to make specific
findings of fact and conclusions of law, even if neither party requests them. Tenn. R.
Civ. P. 52.01; see, e.g., Ward v. Ward, No. M2012-01184-COA-R3-CV, 2013 WL
3198157, at *14 (Tenn. Ct. App. June 20, 2013). A trial court’s order should indicate
why and how it reached a decision, and which factual findings led the court to rule as it
did. Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *4
(Tenn. Ct. App. Feb. 22, 2013). “Simply stating the trial court’s decision, without more,
does not fulfill this mandate.” Barnes v. Barnes, No. M2011-01824-COA-R3-CV, 2012
WL 5266382, at *8 (Tenn. Ct. App. Oct. 24, 2012). “[F]indings of fact are particularly
important in cases involving the custody and parenting schedule of children . . . .” In re
Connor S.L., No. W2012-00587-COA-R3-JV, 2012 WL 5462839, at *4 (Tenn. Ct. App.
Nov. 8, 2012).
Where findings of fact are insufficient, the appellate court may remand to the trial
court or “conduct its own independent review of the record to determine where the
preponderance of the evidence lies, without presuming the trial court’s decision to be
correct.” Williams v. Singler, No. W2012-01253-COA-R3-JV, 2013 WL 3927934, at
*10 (Tenn. Ct. App. July 31, 2013); see also Lovlace v. Copley, 418 S.W.3d 1, 36 (Tenn.
2013). In determining whether to perform a de novo review, we consider the adequacy of
the record, the fact-intensive nature of the case, and whether witness credibility
determinations must be made. See Lovlace, 418 S.W.3d at 36 (declining to conduct a de
novo review because credibility determinations were necessary to resolve factual
disputes); Town of Middleton v. City of Bolivar, No. W2011-01592-COA-R3-CV, 2012
WL 2865960, *26 (Tenn. Ct. App. July 13, 2012) (stating that independent review is
appropriate when the case involves a legal issue or the court’s decision is “readily
ascertainable”); see also State v. King, 432 S.W.3d 316, 328 (Tenn. 2014) (considering
the adequacy of the record, the fact-intensive nature of the case, and the ability to request
supplementation of the record in determining whether to conduct a de novo review in the
context of a criminal case).
We decline to conduct our own review. The best interest analysis is a
“particularly fact-intensive process” requiring careful consideration of the relevant
statutory factors. McEvoy v. Brewer, No. M2001-02054-COA-R3-CV, 2003 WL
11
22794521, at *5 (Tenn. Ct. App. Nov. 25, 2003). The court heard testimony at multiple
hearings. We only have a limited statement of the evidence from the trial and no record
of the parties’ testimony at previous hearings. And the court made crucial credibility
findings. So we vacate the court’s modification decision and remand for entry of an
order compliant with Rule 52.01. The modified plan will remain in effect as a temporary
plan until entry of a final order. The court may, on remand, choose to hear additional
proof of the parties’ current circumstances before adopting a custody arrangement in the
best interest of the child.
III.
Under Tennessee Code Annotated § 29-9-102(3) (2012), courts have the power to
“issue attachments, and inflict punishments for contempts of court” for “[t]he willful
disobedience or resistance of any officer of such courts, party, juror, witness, or any other
person, to any lawful writ, process, order, rule, decree, or command of such courts.” A
finding of contempt may be either civil or criminal in nature. Doe v. Bd. of Prof’l
Responsibility, 104 S.W.3d 465, 473 (Tenn. 2003). Civil contempt is intended to benefit
a private party who has suffered a violation of rights, and “the quantum of proof
necessary to convict is a preponderance of the evidence.” Id. at 473-74. But criminal
contempt “is punishment for an offense against the authority of the court.” Sherrod, 849
S.W.2d at 786 n.4 (citations omitted). “In criminal contempt proceedings, the defendant
is presumed to be innocent and must be proven guilty beyond a reasonable doubt.” Doe,
104 S.W.3d at 474.
Once convicted of criminal contempt, a person loses his presumption of
innocence. Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993). On appeal,
the person convicted “bear[s] the burden of overcoming their presumption of guilt on
appeal.” Id. We only reverse a criminal contempt finding “if the evidence is insufficient
to support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R.
App. P. 13(e).
A.
Father contends that he never received proper notice that he was charged with
criminal contempt. “[P]arties facing a criminal contempt charge [must] be given explicit
notice that they are charged with criminal contempt and must also be informed of the
facts giving rise to the charge.” Long v. McAllister-Long, 221 S.W.3d 1, 13 (Tenn. Ct.
App. 2006) (citing Tenn. R. Crim. P. 42(b)). At a minimum, the “notice [must] state the
time and place of the hearing, allow the defendant reasonable time to prepare a defense,
and state succinctly for the accused the ‘essential facts’ constituting the charge.” Id.
We conclude that Father received sufficient notice. Mother’s petition clearly
stated that it was for criminal contempt and included the essential facts. The petition
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alleged that Father had violated the court’s July 2016 consent order by taking the child to
his attorney’s office on January 13, 2017, to discuss her preference and sign an affidavit.
The court’s fiat informed Father that he faced possible incarceration if convicted. And
Father was informed in open court on May 1 that the criminal contempt hearing would
take place when court convened on June 8, giving Father ample time to prepare a
defense.
Civil or criminal contempt requires four elements: (1) the order allegedly violated
must be lawful; (2) the order must be clear and unambiguous; (3) the individual charged
must have violated the order; and (4) the individual must have acted willfully in violating
the order. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 354-
55 (Tenn. 2008); Furlong v. Furlong, 370 S.W.3d 329, 336 (Tenn. Ct. App. 2011)
(stating that the four-element analysis outlined in Konvalinka applies to criminal and civil
contempt actions). Father argues that that the consent order was illegal because it
violated the statutory mandate to consider the child’s preference. We find Father’s
argument unavailing. “A lawful order is one issued by a court with jurisdiction over both
the subject matter of the case and the parties.” Konvalinka, 249 S.W.3d at 355. The trial
court had both.
Father concedes that he violated a clear and unambiguous order, but maintains that
he had no other choice. Good intentions do not preclude a willfulness finding. See
Thigpen, 874 S.W.2d at 53-54 (finding criminal contempt even though Mother was
“following her maternal desire to help her son avoid a disturbing situation.”). In the
context of criminal contempt, willfulness has two elements: (1) intentional conduct; and
(2) a culpable state of mind. See State v. Beeler, 387 S.W.3d 511, 523 (Tenn. 2012);
Konvalinka, 249 S.W.3d at 357. Father acted willfully if he intended to “engage in the
conduct” and “to do something the law forbids.” See Tenn. Code Ann. § 39-11-302(a)
(2018); Konvalinka, 249 S.W.3d at 357 (citing with approval this definition of willful
from State v. Braden, 867 S.W.2d 750, 761 (Tenn. Crim. App. 1993)). This record
supports a finding that Father’s conduct was willful. He deliberately took the child to his
attorney’s office to discuss her preference knowing his actions violated the court’s orders.
B.
The court twice found Father in civil contempt. At trial, the court found Father in
civil contempt for his failure to pay his share of the child’s expenses and the Memphis
School tuition. And post-trial, the trial court found Father in civil contempt for failing to
comply with the modified parenting plan.
Turning to the first civil contempt finding, Father again argues lack of notice. But
he was served with Mother’s petition, which notified him of the allegations, and he had
an opportunity to respond. That is all that was required in the context of civil contempt.
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State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Grp. Tr., 209 S.W.3d 602, 611
(Tenn. Ct. App. 2006).
Father also complains that the court found him in contempt at the same time the
court ordered him to pay. We disagree. Father was found in contempt at trial for
violating the original parenting plan, entered in 2011.
Finally, Father argues that he lacked the ability to pay. Father had the burden of
proving his inability to pay. See id. at 612. The trial court found that Father had agreed
that he had the ability to pay all of his court-ordered obligations. The evidence in the
record does not preponderate against this finding.
Post-trial, the court found that Father had willfully violated the modified parenting
plan by not paying half of the child’s educational and uninsured medical expenses. As
punishment, the court ordered Father to serve the previously suspended nine days in jail
and to pay Mother’s attorney’s fees.
Father again argues inability to pay. The evidence does not preponderate against
the court’s finding that he had the ability to pay. But in light of our decision to vacate the
court’s entry of the modified parenting plan, we also vacate the sanctions for violation of
the modified plan. See Tenn. Dep’t of Health v. Boyle, No. M2001-01738-COA-R3-CV,
2002 WL 31840685, at *8 (Tenn. Ct. App. Dec. 19, 2002) (explaining that civil contempt
sanctions based on an order reversed on appeal must be reversed as well). So we vacate
the court’s order that Father serve nine days in jail and the award of attorney’s fees.
Because the modified plan will remain in place as a temporary plan until a new plan is
entered, Father remains obligated to pay his share of the child’s educational and
uninsured medical expenses.
IV.
Father’s final issue concerns the attorney’s fees awards. Father asks us to set aside
these awards based on unspecified “underlying errors.” In the lone paragraph devoted to
this argument, Father failed to cite any legal authority in support of his position or
provide any references to the record. See Tenn. R. App. P. 27(a)(7). These failings are
more than procedural technicalities. Our role is not “to research or construct a litigant’s
case or arguments for him . . . , and where a party fails to develop an argument in support
of his . . . contention or merely constructs a skeletal argument, the issue is waived.”
Sneed v. Bd. of Prof’l Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010).
V.
Finally, both Mother and Father ask for an award of attorney’s fees on appeal.
Under Tennessee Code Annotated § 36-5-103(c) (Supp. 2019), we have discretion to
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award attorney’s fees incurred on appeal. Pippin v. Pippin, 277 S.W.3d 398, 407 (Tenn.
Ct. App. 2008); Shofner v. Shofner, 181 S.W.3d 703, 719 (Tenn. Ct. App. 2004). We
consider the following factors in our decision to award fees: (1) the requesting party’s
ability to pay the accrued fees; (2) the requesting party’s success in the appeal; (3)
whether the requesting party sought the appeal in good faith; and (4) any other relevant
equitable factors. Hill v. Hill, No. M2006-02753-COA-R3-CV, 2007 WL 4404097, at *6
(Tenn. Ct. App. Dec. 17, 2007). In light of these factors, we decline to award either party
attorney’s fees on appeal.
As an additional ground for an award of attorney’s fees, Mother claims that
Father’s appeal is frivolous. See Tenn. Code Ann. § 27-1-122 (2017). The statute
authorizing an award of damages for a frivolous appeal “must be interpreted and applied
strictly so as not to discourage legitimate appeals.” See Davis v. Gulf Ins. Grp., 546
S.W.2d 583, 586 (Tenn. 1977) (citing the predecessor to Tennessee Code Annotated
§ 27-1-122). A frivolous appeal is one “utterly devoid of merit,” Combustion Eng’g, Inc.
v. Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978), “or taken solely for delay.” Chiozza v.
Chiozza, 315 S.W.3d 482, 493 (Tenn. Ct. App. 2009). We do not find this appeal devoid
of merit or perceive that it was taken solely for delay. Thus, we also decline to award
attorney’s fees on this basis.
VI.
In the absence of sufficient findings of fact and conclusions of law, we vacate the
court’s order modifying the parenting plan and remand with instructions for the court to
enter an order compliant with Rule 52.01. To avoid disruption for the child, the current,
modified plan shall remain in effect as a temporary parenting plan until the court renders
its decision on remand.
We affirm the court’s finding of criminal contempt. Father had sufficient notice,
and he willfully violated a lawful court order. The trial court did not abuse its discretion
in finding Father in civil contempt. But we vacate the sanctions imposed for violation of
the modified plan. We remand this case for further proceedings in accordance with this
opinion.
_________________________________
W. NEAL MCBRAYER, JUDGE
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