IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 7, 2010 Session
JULIE ANN KENDLE v. MATTHEW DAVIS KENDLE
Appeal from the Circuit Court for Wilson County
No. 5774DVC Clara Byrd, Judge
No. M2010-00757-COA-R3-CV - Filed April 28, 2011
In this post-divorce proceeding, the father of the parties’ child seeks to reduce his child
support obligation due to a decrease in his income, and each parent alleges the other is in
contempt for various reasons. The trial court denied Father’s petition to reduce child support
upon finding that Father was voluntarily underemployed. The trial court granted Mother’s
petition to hold Father in contempt for failing to comply with the parenting plan and denied
Father’s petition against Mother. Mother was awarded one-half of her attorney fees. Father
appealed. We reverse the finding that Father was voluntarily underemployed and remand
with instructions for the trial court to determine whether a significant variance exists in
Father’s child support obligation based on his actual income without additional imputed
income. If a significant variance exists, the trial court is to set Father’s child support
obligation pursuant to the Guidelines. We also reverse the court’s finding that Father was in
contempt, because the trial court did not specify a provision of the parenting plan Father
allegedly violated and the evidence is insufficient to establish that any violation was willful.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed in Part, Reversed in Part, and Remanded
F RANK G. C LEMENT, JR., J., delivered the opinion of the Court, in which P ATRICIA J.
C OTTRELL, P.J., M.S., and A NDY D. B ENNETT, J., joined.
Tim W. Smith, Murfreesboro, Tennessee, for the appellant, Matthew Davis Kendle.
Gloria Jean Evins, Lebanon, Tennessee, for the appellee, Julie Ann Kendle.
OPINION
Julie Ann Kendle (“Mother”) and Matthew Davis Kendle (“Father”) were married on
November 13, 2004. During their marriage, they lived in Mount Juliet, Tennessee, and had
one minor child, Abigail Rose, who was born in June 2006.
The parties divorced on August 8, 2007. The Final Decree of Divorce included a
parenting plan wherein Mother was designated the primary residential parent, and Father was
given 110 days of visitation annually. The visitation schedule was complex due to the fact
Father is a fireman with the Wilson County Fire Department and his work schedule varies
greatly. The parties were given joint decision-making authority over the child.
Father was required to pay $398 in child support per month, which was calculated
using Mother’s income as a graphic designer and Father’s salary from the Wilson County
Fire Department as well as supplemental income he earned from his lawn mowing business.
Father was required to provide health insurance for the child, and the parties equally shared
uncovered medical expenses. Both parties were also required to maintain a $250,000 life
insurance policy for the benefit of the child that named the other party as the beneficiary
trustee of the death benefits.
The parenting plan also provided that, “Neither party shall have overnight guests of
the opposite sex to whom he or she is not married while the child is in his or her custody,”
and that the parties would resolve any disputes through mediation.
Following the divorce, Mother continued to live in Mount Juliet, and Father resided
with his parents in Franklin, Tennessee. Because Father did not yet have a permanent
residence, the parenting plan required Father to provide transportation for the child to and
from visitation at his parents’ home. The parenting plan also provided that when Father
established a residence, Mother would begin picking the child up after Father’s visits.
In January 2008, Father moved to Murfreesboro, Tennessee where he rented an
apartment with his girlfriend, Julie Ashe. On January 8, 2008, Mother filed a motion in the
Wilson County Circuit Court, asking the court to order Father to participate in mediation as
required by the parenting plan to resolve transportation issues which arose after Father
moved to Murfreesboro. Following mediation, the parties entered an agreed order on
February 19, 2008, which provided that Mother would drop the child off for Father’s visits
at Father’s apartment in Murfreesboro.
On March 24, 2009, Father filed a petition requesting additional visitation and a
reduction in his child support obligations. He alleged that he was entitled to the reduction of
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child support because his income from the lawn care business had greatly diminished. He
also alleged that Mother was “co-habitating with a member of the opposite sex to which she
is not married” and refusing to cooperate with him in carrying out the parenting plan. He then
filed a motion seeking to find Mother in criminal contempt based on these same allegations.
Mother responded by filing her own Petition for Contempt against Father on August
21, 2009, alleging that he failed to comply with the parenting plan. Specifically, she alleged
that Father violated the prohibition against overnight guests when he purchased a home with
Ms. Ashe and lived with her out of wedlock. Mother also alleged that he was in contempt for
failing to maintain the required life insurance coverage, that he only had insurance for death
occurring on the job, and by failing to reimburse Mother $153.00 for his share of the child’s
medical expenses.
Mother also petitioned the court to make several modifications to the parenting plan,
including that the court designate a public place where the parties would meet to exchange
the child for visitation, that Mother be given sole decision-making authority over the child,
and that Mother be awarded retroactive and future payments for child care expenses incurred
from the child’s participation in Mother’s Day Out and preschool. She also requested a
reduction in Father’s visitation, an increase in his child support payments, and that she be
allowed to provide health insurance for the child to eliminate the problem of Father failing
to reimburse her for medical expenses. Mother later requested that her maiden name be
restored and that her maiden name be added to the child’s last name.
A bench trial was held on February 4, 2010. Three witnesses testified: Mother, Father,
and Julie Ashe, whom Father had married three months earlier, on November 5, 2009. The
trial court found that Father was not entitled to a reduction in his child support obligations
because he was “voluntarily underemployed” and came to court with “unclean hands.” The
court attributed the diminished income from Father’s lawncare business to the fact that he
moved away from Mount Juliet, where his client base was primarily located. The court also
found Father’s contempt petition against Mother was frivolous, because he did not produce
any proof for his allegations.
As for Mother’s claims, the trial court found Father in civil contempt for violating
the prohibition on overnight guests of the opposite sex while the child was in his custody.
The court granted Mother’s requests to designate a public place for the parties to exchange
the child for visitation, allowed Mother to provide health insurance for the child, and gave
Mother sole decision-making authority over the major decisions in the child’s life. The court
granted Mother’s request to restore her maiden name, but denied her request to change the
child’s last name. The court also awarded Mother a judgment against Father for one-half of
her attorney fees.
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Last, the court simplified the visitation schedule so that each party would have four
non-consecutive weeks of uninterrupted visitation in addition to the regular weekly visitation,
but did not alter the total number of Father’s visitation days. The final order was entered
March 1, 2010, and Father filed a timely appeal.
ISSUES
This appeal concerns three major issues: 1) Whether the trial court erred by denying
Father’s Petition to Modify Child Support; 2) Whether there is a sufficient basis to support
the trial court’s finding that Father was in contempt of court for violating the parenting plan;
and 3) Whether the trial court erred by awarding Mother one-half of her attorney fees.
ANALYSIS
I. Modification of Child Support
Father contends that the trial court erred in finding that he was voluntarily
underemployed and in denying his petition to modify child support without completing a
child support worksheet to determine whether there was a “significant variance” between the
amount of child support he was required to pay under the parenting plan and the amount set
by the Child Support Guidelines. See Tenn. Code Ann. § 36-5-101(g).
A.
As a threshold matter, we must determine whether Father was voluntarily
underemployed, as the trial court found. If Father was voluntarily underemployed, then it
would be proper to impute additional income to him pursuant to Tenn. Comp. R. & Regs.
1240-2-4-.04(3)(a)(2)(i)(I), which could result in a finding that Father is not entitled to a
reduction because a significant variance in Father’s child support obligation is not present.
The Child Support Guidelines, which govern the determination of child support
obligations, “do not presume that any parent is willfully and/or voluntarily under or
unemployed.” Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(ii). The determination of
whether a parent is voluntary underemployed is a question of fact which “requires careful
consideration of all the attendant circumstances.” Richardson v. Spanos, 189 S.W.3d 720,
726 (Tenn. Ct. App. 2005) (citing Eldridge v. Eldridge, 137 S.W.3d 1, 21 (Tenn. Ct. App.
2002); Willis v. Willis, 62 S.W.3d 735, 738-39 (Tenn. Ct. App. 2001)). Such a determination
“may be based on any intentional choice or act that adversely affects a parent’s income.”
Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(ii)(I). As this Court has stated:
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When called upon to determine whether a parent is willfully and voluntarily
unemployed or underemployed, the courts will consider the factors in Tenn.
Comp. R. & Regs. 1240-2-4-.04(3)(d)(2), as well as the reasons for the party’s
change in employment. Demers v. Demers, 149 S.W.3d 61, 69 (Tenn. Ct. App.
2003); Eldridge v. Eldridge, 137 S.W.3d 1, 21 (Tenn. Ct. App. 2002). If a
parent’s reasons for working in a lower paying job are reasonable and in good
faith, the court will not find him or her to be willfully and voluntarily
underemployed. Willis v. Willis, 62 S.W.3d at 738. The courts are particularly
interested in whether a parent’s change in employment [or amount of income]
is voluntary or involuntary, Eldridge v. Eldridge, 137 S.W.3d at 21, and are
more inclined to find willful and voluntary underemployment when a decision
to accept a lower paying job is voluntary. Demers v. Demers, 149 S.W.3d at
69.
Richardson, 189 S.W.3d at 726.
In this case, the trial court found that Father was voluntarily underemployed based on
the fact that his income from his lawncare business diminished after he moved from Mount
Juliet, where his client base was primarily located. The trial court stated, “his income went
down, but it was voluntary. He’s the one that moved. He is the one that agreed to this and
then he moved off.” Father insists other facts, which are not disputed, preponderate against
this finding. We agree.
Father’s main source of income, currently and at the time of the divorce, is from his
employment as a full-time firefighter for Wilson County. His income as a firefighter has not
declined. At the time of the divorce, Father earned additional income from his lawn mowing
business; that income has declined dramatically since the divorce, and Father insists the
decline was not due to any voluntary actions on his part. Father testified that the decline in
this income was due to several factors: (1) the economic recession caused several of his
clients to begin mowing their own lawns; (2) the summer drought inhibited grass growth; and
(3) the divorce caused him to lose several clients who were friends of Mother’s family.
Father also testified that he attempted to solicit new clients using fliers and word of mouth
but was unsuccessful. Mother presented no proof to refute this testimony; thus, Father’s
testimony is undisputed. Father’s explanations for the demise of his lawn mowing business
are reasonable and there is no affirmative evidence, direct or circumstantial, that Father
voluntarily surrendered his clients.
We review the record de novo with a presumption that the court’s factual findings are
correct, absent a showing that the evidence preponderates to the contrary. Tenn. R. App. P.
13(d); see Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). Considering the record
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before us, we have determined the evidence preponderates against the finding that Father was
voluntarily underemployed, and additional income may not be imputed to him for that reason.
See Owensby v. Davis, No. M2007-01262-COA-R3-JV, 2008 WL 3069777, at *4-*5 (July
31, 2008).
The record similarly lacks evidence showing that additional income should be imputed
due to Father’s “education, training, and ability to work,” because he had an “extravagant
lifestyle, including ownership of valuable assets and resources . . . , that appears
inappropriate or unreasonable for the income claimed by [Father],” or for any other reason.
See Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(iii)(II), (IV), & (VII) (listing situations,
in addition to a finding of voluntary underemployment, in which a court may impute income
to a parent for the purposes of calculating child support).
We therefore reverse the trial court’s finding that Father was voluntarily
underemployed and the trial court’s decision to impute additional income to Father.
B.
Having determined that Father was not voluntarily underemployed and that additional
income may not be imputed, we must next determine whether the trial court erred by denying
Father’s petition to modify child support. At the outset we note the trial court did not
calculate Father’s child support obligation using the Child Support Guidelines. When
denying Father’s petition, the court simply stated its ruling from the bench as follows:
I’m denying the decrease. That was what they agreed to . . . . I’m just denying
it. There is not a substantial variance. He’s voluntarily underemployed as far
as his agreement is concerned, and he’s not entitled to a decrease because he
decided to leave his wife and child and move in with a girlfriend and quit his
lawnmowing business.
The court also stated from the bench that it was denying Father’s petition to modify
child support because, “I just find it unconscionable to come in here and agree to pay a
certain amount of child support, everything be set on it, then totally quit the business that you
agreed upon, and . . . say you’ve had a decrease.” In its Order entered on March 1, 2010, the
court held: “The Court finds Father’s request for a reduction in child support to be unjust.
Father comes into court with unclean hands. Therefore, Father’s Petition for a reduction of
child support is denied.”
We have determined the foregoing findings are not supported by the facts of this case;
furthermore, even if these findings were supported by the record, they do not provide a
proper basis for the trial court to deny Father’s petition. The process and criteria for
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determining a parent’s child support obligation are governed by the Child Support Guidelines
promulgated by the Tennessee Department of Human Services in accordance with Tenn.
Code Ann. § 36-5-101(e). Subsequent, post-divorce modifications are governed by Tenn.
Code Ann. § 36-5-101(g), which provides that “[u]pon application of either party, the court
shall decree an increase or decrease of support when there is found to be a significant
variance, as defined in the child support guidelines established by subsection (e), between
the guidelines and the amount of support currently ordered . . . .” See also Kaplan v. Bugalla,
188 S.W.3d 632, 636 (Tenn. 2006). A “significant variance” is defined as at least a fifteen
percent difference “between the amount of the existing support obligation and the amount
that the obligation would be if it were based on the obligor parent’s current income.” Turner
v. Turner, 919 S.W.2d 340, 344 (Tenn. Ct. App. 1995). The burden rests upon the petitioner
to prove a significant variance. See id. at 345.
The record before us does not contain a child support worksheet showing a calculation
of Father’s obligation under the Child Support Guidelines using his current income as a
firefighter only. Without the benefit of such a calculation, we cannot state with certainty
whether a substantial variance exists between the amount that would be owed under the Child
Support Guidelines using the parties’ current financial information as compared with the
amount set forth in the divorce decree in 2007, $398.00 per month. See Tenn. Code Ann. §
36-5-101(g); see also Turner, 919 S.W.2d at 344. (“The current guidelines require that
decisions to modify existing child support orders must be based on a comparison of the
amount of the existing support obligation and the amount that the obligation would be if it
were based on the obligor parent’s current income.”).
Accordingly, on remand, the trial court is instructed to apply the Guidelines to
determine whether a significant variance is present using Father’s income as an employee of
the Wilson County Fire Department, Tenn. Code Ann. § 36-5-101(g); and, if such a variance
is present, to set child support in the amount required by the Guidelines. Tenn. Code Ann.
§ 36-5-101(e).
C.
In the interest of judicial economy, we must address one additional issue relating to
the calculation of child support. Both parents’ respective incomes are to be considered when
calculating the amount of the obligor parent’s child support payment. Mother is a self-
employed graphic designer who works out of her home. At trial, she asserted that she should
be allowed to deduct her home office expenses from her income when calculating Father’s
child support obligation.1 Father insisted she was not entitled to such a deduction. The trial
1
Tenn. Comp. R. & Regs. 1240-2-4-.04-(3)(a)(3)(i) defines “Self-Employment Income” as “income
(continued...)
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court heard arguments on the issue but did not make a formal ruling. Nevertheless, because
we are remanding the case to calculate Father’s obligation, we wish to clarify that a self-
employed parent who works from home is not entitled to deduct home office expenses from
his or her income for the purpose of calculating the obligor parent’s child support payment.
The Guidelines provide that reasonable expenses may be deducted from a self-employed
parent’s income when calculating child support. Tenn. Comp. R. & Regs. 1240-2-4-.04-
(3)(a)(3)(i). However, the Guidelines also expressly state that “the cost of operation of home
offices . . . shall not be considered [a] reasonable expense.” Tenn. Comp. R. & Regs. 1240-2-
4-.04-(3)(a)(3)(ii); see Beem v. Beem, No. 02A01-9511-CV-00252, 1996 WL 636491, at *4
(Tenn. Ct. App. Nov. 5, 1996) (holding that the operation of a consultant’s home office, even
where he did not maintain an additional office outside his home, may not be deducted from
his income to calculate child support). Accordingly, on remand the trial court shall not afford
Mother a deduction for her home office expenses. See Tenn. Comp. R. & Regs. 1240-2-4-
.04-(3)(a)(3)(ii).
II. Contempt
Father contends the trial court committed reversible error when it found him to be in
contempt of court. He alleges the finding of contempt was defective because, other than
generally stating that “Father is found to be in contempt for his failure to comply with
provisions of the Parenting plan,” the court failed to identify what Father did, or did not do,
that justified a finding of contempt. Father also contends the court erred by failing to state
whether he was in civil or criminal contempt, failing to impose a sentence, and, if he was
meant to be in civil contempt, failing to assert what he must do to cure the alleged
contemptuous conduct.
Although the type of contempt was not specified, it is apparent that Mother was
seeking to hold Father in civil contempt rather than criminal contempt.2 The purpose of civil
contempt is to enforce private rights. See Overnite Transp. Co. v. Teamsters Local Union No.
480, 172 S.W.3d 507, 510 (Tenn. 2005); see also Robinson v. Air Draulics Eng’g Co., 377
1
(...continued)
from, but not limited to, business operations, work as an independent contractor or consultant, sales of goods
or services, and rental properties, etc., less ordinary and reasonable expenses necessary to produce such
income.”
2
As distinguished from civil contempt, “criminal contempt is used to ‘preserve the power and
vindicate the dignity and authority of the law’ as well as to preserve the court ‘as an organ of society.’”
Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 510 (Tenn. 2005) (quoting Black
v. Blount, 938 S.W.2d 394, 398 (Tenn.1996)). Sanctions for criminal contempt are “designed to punish the
contemnor.” Id.
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S.W.2d 908, 912 (Tenn. 1964). Four essential elements must be established in order to make
a finding of civil contempt. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249
S.W.3d 346, 354 (Tenn. 2008). They are:
First, the order alleged to have been violated must be “lawful.” Second, the
order alleged to have been violated must be clear, specific, and unambiguous.
Third, the person alleged to have violated the order must have actually
disobeyed or otherwise resisted the order. Fourth, the person’s violation of the
order must be “willful.”
Id. at 354-55 (footnotes omitted).
The only finding of contempt by the trial court is stated in paragraph 5 of the Order
entered on March 1, 2010. The paragraph reads as follows:
5) Father is found to be in contempt for his failure to comply with provisions
of the Parenting plan. Further Father’s allegation that Mother was cohabitating
when he co-owned a home with his paramour makes a mockery of the court
system. In addition to statutory provisions, the parties[’] Marital Dissolution
Agreement provided for attorney fees in the event of future legal action to
enforce the Agreement. Further Father is found to have unclean hands and his
Petition is found to be frivolous and therefore Mother is granted a judgement
against Father in the amount of $5,286.13 representing one half of Mother’s
attorney fees. Said Judgment shall draw interest at the statutory interest rate for
Judgments until paid in full.
(Emphasis added).
While the court gives some indication of the reason it found Father in contempt, the
order does not clearly specify which act or omission constituted contemptuous conduct;
moreover, as Father asserts, no curative action was specified to remedy civil contempt.
Immediately following the finding of contempt, the order provides that, “Father’s allegation
that Mother was cohabitating when he co-owned a home with his paramour makes a mockery
of the court system.” Perhaps leveling allegations at an opposing party that are unsupported
by proof makes a “mockery of the court system;” nevertheless, by simply making the
allegation, Father did not violate a direct order of the court. Thus, making the allegation
cannot be the contemptuous act.
In the same paragraph, the court stated, “[i]n addition to statutory provisions, the
parties[’] Marital Dissolution Agreement provided for attorney fees in the event of future
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legal action to enforce the Agreement.” Clearly, this statement is not a finding of contempt.
The court also stated, “Father is found to have unclean hands and his Petition is found to be
frivolous . . . .” Having “unclean hands” similarly cannot sustain a finding of contempt,
because it does not constitute a violation of any provision of the parenting plan.
In her Petition for Contempt, Mother makes numerous allegations of contemptuous
conduct by Father. The Petition reads as follows:
PETITION FOR CONTEMPT AND TO MODIFY PARENTING PLAN
COMES NOW the Mother, JULIE ANN KENDLE, (hereinafter
referred to as “Mother”) and would ask this Honorable Court to find Father,
MATTHEW DAVIS KENDLE, (hereinafter referred to as “Father”) in
willful contempt of Court for his failure to comply with the provisions of the
Parenting plan incorporated into a Final Decree of Divorce entered in the
above matter. . . . In support of said Petition, Mother would show unto this
Honorable Court that:
1. A Final Decree of Divorce was entered August 8, 2007 which
incorporated a Permanent Parenting Plan executed by the parties;
2. Section I (J)(1) of the Permanent Parenting Plan provides: “Neither
party shall have overnight guests of the opposite sex to whom he/she is not
married while the child is in his/her custody.”
3. Upon information and belief, Father jointly owns a home and resides
with one Julie Ashe. Further, upon information and belief and contrary to
statement of Father, the minor child of the parties has spent the night at the
residence while both her father and Ms. Julie Ashe were present;
4. If in the alternative, the minor child is in fact staying at the paternal
grandmother’s home, then Father’s requirement that Mother make a two hour
round trip every few days to pick up the minor child is a violation of the
transportation provisions in Section I(H) of the Permanent Parenting Plan;
5. Section III(D) of the Permanent Parenting Plan requires Father to
reimburse Mother his pro rata share of uncovered medical expenses. Currently
Father owes Mother $153.00;
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6. Section III(E) requires Mother and Father to maintain a minimum of
$250,000 in life insurance naming the other parent as trustee for the benefit of
the minor child. Upon information and belief, Father does not have the
required insurance coverage. He has insurance through his employer, but this
insurance only covers death occurring “on the job”;
7. Mother continues to be uncomfortable at the exchange of the minor
child unless in a public place or unless accompanied by a witness. Having a
witness readily available is very inconvenient at times. Therefore Mother
prefers that all exchanges be made at the Dunkin Donut which is near her
home;
8. Soon after the divorce, Father was residing in an apartment in
Murfreesboro, Tennessee. Mother was required to meet at the club house and
not at Father’s residence;
9. Father has since relocated some fifty five (55) miles from where the
minor child resides and from where he works, but expects Mother to incur the
extra expense of transportation resulting from his relocation;
10. On or about June 3, 2008 Father attended a medical appointment
for the minor child. During the visit, Father monopolized over an hour of the
pediatrician’s time discussing his own general medical knowledge and
opinions to the extent that none of the questions pertaining directly to the
child’s illness were addressed. Mother had to call the doctor later that day to
address her concerns about the child and get information as to the care to be
provided;
11. Father has demonstrated repeatedly that when it comes to the basic
parental care of the parties’ minor child when sick, he defers to Mother. He
either forgoes or shortens his visits so that Mother can provide the necessary
care;
12. Father refused Mother uninterrupted vacation time with the minor
child. Father sent Mother an e-mail saying that summer break was for him and
she didn’t get any time for a vacation;
13. Mother has grave concerns about the fact that Father resides with
Julie Ashe who professes to be a witch.
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Because the Petition raises many allegations, and the order did not specify which
provision(s) of the parenting plan Father willfully violated, we can only speculate as to what
act, or failure to act, the trial court based its finding of contempt upon. Was it purchasing a
home with a woman to whom Father was not married? Failing to reimburse Mother $153 for
his pro rata share of the child’s medical expenses? Failing to provide proof of suitable life
insurance? Relocating 55 miles from where the minor child resides, thus forcing Mother to
incur extra transportation expenses? Monopolizing an hour of the pediatrician’s time at the
child’s doctor’s appointment discussing matters that did not pertain directly to the child’s
illness? Causing Mother grave concern by residing with a woman “who professes to be a
witch”?
As noted earlier, four elements must be established in order for a person to be held in
civil contempt for violation of a court’s order: the order must be lawful as well as clear,
specific, and unambiguous; the person must have actually disobeyed or otherwise resisted
the order; and the violation must be willful. Konvalinka, 249 S.W.3d at 354-55. The
lawfulness of the parenting plan or a specific provision of the plan is not at issue in this case;
the issue is whether Father disobeyed a specific and unambiguous provision of the parenting
plan and, if so, whether he disobeyed it willfully. Two of the four essential elements are not
present; the record before us fails to establish either that a specific and unambiguous
provision of an order was violated, or that the violation was willful. Thus, there is no basis
for this court to affirm a finding of civil contempt against Father.
The foregoing notwithstanding, we understand the trial court was very upset with
Father for accusing Mother of cohabiting with a man to whom she was not married without
having any proof to support that accusation. However, as we noted earlier, making an
allegation in a petition for which one does not yet have proof does not constitute
contemptuous conduct if it does not violate a court order. See Konvalinka, 249 S.W.3d at
354-58; see also Robinson, 377 S.W.2d at 912.
The trial court might also have based its finding of contempt upon the fact that Father
resided and co-owned a home with Ms. Ashe before they were married. This is evident from
the court’s statement from the bench that, “I find it a mockery of the court system to accuse
her of quote, ‘cohabitating’ under a provision of the parenting plan at a time when he co-
owns a home with his paramour.” However, the parenting plan did not prohibit Father from
owning a home with Ms. Ashe, nor did it prohibit him from residing with her when the child
was not present. Thus, these actions cannot properly be considered contemptuous. The
parenting plan merely provided that, “[n]either party shall have overnight guests of the
opposite sex to whom he/she is not married while the child is in his/her custody.” (emphasis
added). There is no evidence in the record to support a finding that Father violated this
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provision; in fact, Mother admitted that she had no proof that Ms. Ashe or any other woman
stayed overnight with Father when the child was in Father’s custody.
The last of Father’s acts or omissions addressed in the March 1 order relates to the
provision in the parenting plan requiring both Mother and Father to “insure his/her own life
in the minimum amount of $250,000 by whole life or term insurance. Until the child support
obligation has been completed, each policy shall name . . . the other parent, as trustee for the
benefit of the child, to serve without bond or accounting.” The order provided that “[c]ounsel
for Father shall supply counsel for Mother an ‘un redacted’ copy of his life insurance policy
showing all required information.”
In her contempt petition, Mother alleged that, “[u]pon information and belief, Father
does not have the required insurance coverage. He has insurance through his employer, but
this insurance only covers death occurring ‘on the job.’”
At trial, Father testified that he had two policies, one provided by his employer and
a separate policy with Ohio National Life Assurance Corporation with an issue date of March
30, 2009. He insisted the latter policy satisfied the requirements of the parenting plan. Father
also presented written proof of life insurance at the hearing, but the trial court justifiably
found Father’s proof – a copy of two pages of the Ohio National policy with essential
information redacted3 – was insufficient to establish that he had obtained the required
insurance. Thus, in order to ensure Mother had all the necessary information to collect on the
policy for the child, the trial court ordered “counsel for Father [to] supply counsel for Mother
an ‘un redacted’ copy of his life insurance policy showing all required information.” Based
upon the above facts – that Mother never alleged Father was actually without life insurance,
that Father produced proof he had the required insurance through testimony as well as some
documentation, and that the trial court apparently did find that Father had the insurance, but
simply failed to produce a complete copy of the policy – we do not infer that the trial court
found Father in contempt for violating the life insurance requirement; moreover, it if had, we
find the evidence insufficient to establish that Father’s failure to obey the requirement that
he obtain the required insurance was willful.
For the reasons stated above, we reverse the finding by the trial court that Father was
in contempt of court for failing to comply with provisions of the parenting plan.
3
During the hearing, Father presented two pages of a life insurance policy with Ohio National Life
Assurance Corporation with an issue date of March 30, 2009. The pages state, “[w]e will pay the Death
Proceeds of this policy to the Beneficiary subject to its terms after we receive due proof that the insured died
while the policy was in force.”
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III. Attorney Fees
The parties’ marital dissolution agreement, which incorporates the parenting plan,
provides:
In the event it becomes reasonably necessary for either party to engage in legal
proceedings to procure enforcement of any provision of this Property
Settlement Agreement, he or she shall be entitled to a judgment for reasonable
expenses incurred in prosecuting such action including, but not limited to,
attorney fees and court costs.
The trial court awarded Mother a judgment for $5,286.13, representing one-half of her
attorney fees because she prevailed on several issues at trial, namely that Father was found
in contempt, Father’s petition to reduce his child support payments was denied, several of
Mother’s requests for modifications to the parenting plan were granted, and the court found
that Father’s petition to find Mother in civil contempt was frivolous.
The trial court also found authority to award Mother attorney fees in Tenn. Code Ann.
§ 36-5-103(c), which expressly authorizes trial courts, in their discretion, to award
“reasonable attorney fees incurred in enforcing any decree of alimony and/or child support”
to the plaintiff spouse.
We have reversed the trial court’s ruling on the issue of child support and remanded
that issue for the trial court to determine whether Father is entitled to a reduction based upon
his actual income, without imputing income from his now-defunct lawn mowing service.
Therefore, we reverse that part of the award of attorney’s fees pertaining to the modification
of child support, pending disposition of that issue in accordance with the instructions in this
opinion. We have also reversed the trial court’s holding that Father was in contempt for
“failing to comply with provisions of the parenting plan,” and therefore also reverse the part
of the award related to Father’s alleged contempt.
Therefore, on remand, the trial court shall determine whether either party is entitled
to recover her or his attorneys’ fees, and if so, to make the appropriate award.
Mother additionally requested attorney fees she has incurred on appeal under Tenn.
Code Ann. § 36-5-103(c). See Scofield v. Scofield, No. M2006-00350-COA-R3-CV, 2007
WL 624351, at *8 (citing Toms v. Toms, 98 S.W.3d 140, 145 (Tenn. 2003)) (construing the
statute to allow attorney fees on appeal). We consider several factors when determining
whether Mother is entitled to attorney’s fees on appeal including the parties’ success on
appeal and whether the appeal was in good faith. Folk v. Folk, 357 S.W.2d 828, 828 (Tenn.
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1962). Father’s appeal was in good faith because he prevailed on important issues. Thus, we
respectfully deny Mother’s request for attorney fees on appeal.
CONCLUSION
Based on the foregoing analysis, we reverse the trial court’s decision to deny Father’s
petition to modify child support and remand with instructions that the trial court complete
a Child Support Worksheet, which shall be completed using Father’s income without
imputing additional income, and Mother’s income without deducting her home office
expenses, to determine whether there is a significant variance and, if so, to set child support
as required under the Guidelines. We also reverse the trial court’s decision finding Father in
contempt.
The judgment of the trial court is affirmed in part, reversed in part, and remanded.
Each party is responsible for his and her attorney’s fees on appeal and costs of appeal are
assessed equally against each party.
______________________________
FRANK G. CLEMENT, JR., JUDGE
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