S.A.M.D. v. J.P.D.

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

August 22, 2013 Session

S. A. M. D. v. J. P. D.

Appeal from the Circuit Court for Shelby County

No. CT00543806 Donna M. Fields, Judge

No. W2013-00314-COA-R3-CV - Filed September 30, 2013

Appellant/Mother appeals the trial court’s post-divorce modification of Appellee/Father’s

child support obligation, and its finding that Appellant was guilty of various acts of criminal

contempt. Appellant/Mother also appeals the trial court’s admission of certain evidence. We

conclude that the trial court erred in addressing, sua sponte, the issue of modification of

Appellee/Father’s child support obligation in the absence of a petition for modification as

required by Tennessee Code Annotated Section 36-5-101(f)(1). Accordingly, we reverse

the modification of child support. The order of the trial court is otherwise affirmed. Father’s

request for attorney’s fees incurred in defense of this appeal is granted based upon provisions

in the parenting plan and marital dissolution agreement. Affirmed in part; reversed in part;

and remanded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in

Part; Reversed in Part; and Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,

AND H OLLY M. K IRBY, J., joined.

Drayton Durell Berkley, Memphis, Tennessee, for the Appellant, S. A. M. D.

Vickie Hardy Jones, Memphis, Tennessee, for the Appellee, J. P. D.

OPINION

Issues of post-divorce modification of the primary residential parent and charges of

criminal contempt were previously appealed to this Court in the case of S.A.M.D. v. J.P.D.,

No. W2011-01256-COA-R3-CV, 2012 WL 5266194 (Tenn. Ct. App. Oct. 25, 2012), perm.

app. denied (Tenn. June 19, 2013) (“S.A.M.D. I”).1 In the interests of consistency and

judicial economy, we review the relevant factual and procedural history as set out in

S.A.M.D. I. Plaintiff/Appellant S. A. M. D. (“Mother”) and Defendant/Appellee J. P. D.

(“Father”) were married in 2001 and had one child during the marriage, a son (“Son” or “the

child”) born in July 2003. S.A.M.D. I, 2012 WL 5266194 at *1. The parties were divorced

by order of February 19, 2010. The final decree of divorce incorporated an agreed marital

dissolution agreement (“MDA”) and a permanent parenting plan (“Parenting Plan”). Id.

Under the Parenting Plan, Mother was designated as the child's primary residential parent.

Id. Because Father travels extensively for work, the Parenting Plan provided he would have

flexible parenting time, six days each month when his work permitted, so long as Mother was

properly notified. Id. On June 7, 2010, Father filed a contempt petition against Mother; the

petition also sought injunctive relief and attorney fees (“June Contempt Petition”). Id. Father

asserted in the petition that Mother had violated the provisions of the Parenting Plan

concerning Father's parenting time. Id. Father also alleged that Mother had violated the

provisions in the MDA that prohibited harassment and threats and prohibited the parties from

placing telephone calls or sending text messages to the other party after 10:00 p.m. except

in the event of an emergency involving the child. Id. Father asked the trial court to hold

Mother in civil and criminal contempt for violating the Parenting Plan and the MDA, as

incorporated into the final decree. Id. He also requested that Mother be required to pay his

attorney fees in connection with the motion. Id.

The trial court held a preliminary hearing on Father's June Contempt Petition on the

day that it was filed. S.A.M.D. I, 2012 WL 5266194 at *2. On June 18, 2010, the trial court

entered a preliminary order, which granted Father's request to exercise parenting time the

week of June 7, 2010. Id. (footnote omitted). To curtail Mother's harassment, the trial court

enjoined her from coming within 500 feet of Father “at any time or any place pending further

orders of the Court.” Id. The trial court noted in the order that it had not prohibited Father's

girlfriend from being around Son, and so specifically permitted her to be present during

Father's parenting time. Id. The order stated that based on Father's petition and the trial

judge's own observations, “Mother's mental condition is in controversy,” and so, sua sponte,

the trial court ordered Mother to undergo a psychiatric evaluation pursuant to Rule 35 of the

Tennessee Rules of Civil Procedure “within 30 days of June 7, 2010.” Id. The order stated:

“The Court requests that the evaluation be completed and a report prepared thereon prior to

1

The trial court entered an order sealing the entire record in this case. For this reason, we refer to

the parties by initials only.

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the hearing on Father's petition.” Id. The trial court set Father's contempt petition for full

hearing on July 2, 2010. Id.

On July 2, 2010, the trial court conducted the hearing as scheduled. S.A.M.D. I, 2012

WL 5266194 at *2. On July 15, 2010, the trial court entered a detailed order on Father’s

June Contempt Petition, which states, in relevant part:

The Court has found Mother in criminal contempt and sentenced

her to a total of 50 days in jail. Based on the fact that Mother

allowed Father to exercise eleven additional days of parenting

time in the month of June 2010, following the filing of Father’s

petition, the Court will suspend Mother’s sentence. However,

if Mother violates any order of the Court in the future, she will

have to serve the sentence imposed on her by this order.

The July 15, 2010 order also further delineated the parties' parenting rights and

obligations. S.A.M.D. I, 2012 WL 5266194 at *2. Specifically, the order permitted Father

to have parenting time for half of the child's summer vacation in 2010 and 2011, with proper

notice to Mother, and specified that the child could travel with Father during his parenting

time, including trips out of the country. Id. It found that Mother had “interfered with Father's

ability to communicate with the child by telephone.” Id. For this reason, the trial court

ordered that Father “shall be allowed to speak with the child by telephone daily,” without

Mother present in the room during the call. Id. Mother was admonished not to coach the

child. Id. The order enjoined both parties from sending text messages or making telephone

calls to the other after 9:30 p.m. Central Standard Time, except if there was an emergency

concerning the child. Id.

The July 15, 2010 order noted that Mother had provided documentation showing that

she had undergone the psychiatric evaluation ordered on June 18, 2010. S.A.M.D. I, 2012

WL 5266194 at *3. It stated that Mother had indicated that a report of the evaluation would

be completed within a week of the hearing. Id. In light of this, the hearing on the results of

Mother's psychiatric evaluation was reset to allow Mother time to obtain and produce a copy

of the report. Id. (footnote omitted). Furthermore, in the July 15, 2010 order, the trial court

noted that Son was in need of speech therapy, and it found that the two days per week that

the child attended such therapy at school was insufficient. Id. The trial court ordered the

parties to “cooperate in scheduling speech therapy for the child” and to “promptly report to

the trial court on the status of the speech therapy.” Id. (footnote omitted). Finally, Mother

was ordered to pay $2,000 of the attorney fees Father incurred in connection with his June

Contempt Petition to be paid “at a rate of $200 per month, commencing August 2, 2010, and

due on or before the second day of each month thereafter.” Id.

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On September 22, 2010, Father filed another contempt petition (“September Contempt

Petition”), alleging that Mother had continued to disregard the trial court's orders. S.A.M.D.

I, 2012 WL 5266194 at *3. Father claimed that Mother had violated the trial court's orders

by: (1) failing to cooperate in scheduling his summer parenting time; (2) interfering with his

daily telephone access to the child on specified dates during the summer; (3) failing to

provide him with a copy of the results of Mother's psychological evaluation; (4) failing to

take the child to speech therapy and failing to communicate with Father regarding the speech

therapy; and (5) failing to pay Father attorney fees as set out in the July 15, 2010 order. Id.

Based on Mother's continued defiance of the trial court's orders, Father asked the trial court

to lift the suspension on Mother's 50-day sentence, and to require Mother to serve that

sentence as stated in the July 15, 2010 order. Id. Father asked the trial court to place Son in

his primary care during Mother's incarceration. Id. Father's September Contempt Petition

also included concerns regarding Son's safety and welfare while in Mother's care. Id. Father

claimed that Mother had been leaving Son, then seven years old, in the care of her son from

a previous relationship, who was 11 years old at the time. Id. He asked the trial court to

enter an order requiring that Son be supervised by an adult until he turns 12 years old. Id.

Father also requested an award of attorney fees incurred in filing the petition. Id.

On November 16, 2010, Father filed another pleading, amending and supplementing

the September Contempt Petition (“Supplemental Contempt Petition”). S.A.M.D. I, 2012 WL

5266194 at *3. This pleading recounted more incidents in which Mother had allegedly

refused to cooperate in scheduling Father's parenting time and had used the child to harass

Father. Id. For example, Father alleged that Mother used Son to call Father at 12:54 a.m.

while Father was working at an out-of-town event with a very early start time the next

morning. Id. Father's Supplemental Contempt Petition noted that there was no emergency

pertaining to the child and asserted that the purpose of the call was simply to harass Father.

Id. The Supplemental Contempt Petition included other concerns about Mother's care of

Son. Id. It alleged that during the 2010–2011 school year, Son had been tardy to school ten

times, had been absent four days, and had missed portions of three additional school days.

Id. All of this, Father argued, demonstrated that Mother was both disregarding the orders of

the trial court and failing to meet her responsibilities to the child. Id.

On December 16 and 17, 2010, the trial court conducted an evidentiary hearing on

Father's September and Supplemental Contempt Petitions. S.A.M.D. I, 2012 WL 5266194

at *4. At the hearing, Father admitted that Mother had recently gotten into compliance with

the trial court's orders, but asserted that she refused to do so until he filed his contempt

petitions. Id. For this reason, Father insisted that Mother was guilty of criminal contempt.

Id.

On December 17, 2010, the trial court issued an oral ruling on the pending matters.

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S.A.M.D. I, 2012 WL 5266194 at *8. It first found that Mother was again in criminal

contempt of court for violating the trial court's orders. Id. On the issues related to contempt,

the trial court credited Father's testimony and concluded that Mother's defiance of the court's

prior orders was willful. Id. Contrary to Mother's explanations of her behavior, the trial court

found that Mother did not merely “slip” on some of her obligations: “She didn't comply with

any of [her obligations] in that order. There was compliance after the petition was filed and

when she was facing jail. And that is [Mother's] MO. She only complies when she has to.”

Id. Consequently, the trial court partially lifted the suspension of the 50-day jail sentence for

Mother meted out in the July 15, 2010 order, and it ordered Mother to serve three days in jail

beginning that afternoon. Id.

The trial court next addressed the larger issue of the designation of Son's primary

residential parent. It found that a substantial and material change in circumstances had

occurred, and that designating Father as Son's primary residential parent was in the child's

best interest. S.A.M.D. I, 2012 WL 5266194 at *8. The trial court explained its original

decision to designate Mother as Son's primary residential parent: “This Court did not want

to take this 7-year-old and put him in the custody of a father who travels the world regularly.”

Id. However, after hearing the proof, the trial court concluded that Mother's failure to

cooperate with Father, her failure to follow the trial court's orders, and her failure to

adequately parent the child demonstrated that the change in designation of the primary

residential parent was in the best interest of the child. Id. On the same day, the trial court

entered a preliminary written order incorporating its oral ruling by reference, designating

Father as Son's primary residential parent and awarding Mother liberal alternate parenting

time to be agreed upon by the parties. Id.

On January 18, 2011, the trial court issued a comprehensive order on both of Father's

contempt petitions. S.A.M.D. I, 2012 WL 5266194 at *8. The order states, in pertinent part,

that:

The Court finds that Mother has violated the orders of the Court

and that, pursuant to the terms of this Court’s July 15, 2010

Order, the suspension of the sentence previously imposed on

Mother should be lifted. However, the Court declines to lift the

suspension of the entire sentence and declines to sentence

Mother to further jail time for her subsequent violations of the

Court’s orders, which the Court finds total twenty to thirty

counts. Rather, the Court orders that Mother shall serve three

days in the Shelby County jail, commencing December 17,

2010.

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The order set forth the factual findings underlying the trial court's conclusion that Mother

was in criminal contempt of its prior orders. Id. The trial court found that Mother had: (1)

failed to transport the child to school in a timely manner; (2) failed to timely secure speech

therapy for the child; (3) failed to allow Father to exercise parenting time for half of the

remaining part of the summer of 2010; (4) sent Father harassing text messages; (5)

telephoned Father after hours for non-emergency reasons on September 20, 2010; (6)

interfered with Father's telephone communication with Son; (7) failed to provide Father with

a report of her psychiatric evaluation in a timely manner; and (8) failed to pay Father's

attorney fees in the manner described in the order. Id. Although the order required Mother

to serve three days of her 50-day suspended sentence, by the time the written order was

entered, that sentence had been served. Id.

The order also addressed the change in the designation of primary residential parent.

S.A.M.D. I, 2012 WL 5266194 at *8. The order found that there had been a substantial and

material change in circumstances, and that those changes necessitated a change in the

designation of the child's primary residential parent to Father. Id. The material changes listed

in the order included Mother's interference with Father's relationship with the child, Mother's

failure to get the child to school on time, and Mother's failure to secure speech therapy for

the child in a timely manner following the trial court's June 18 and July 15 orders. Id. The

order stated: “Mother has not lived up to her responsibilities as a parent,” that she “has failed

to place the child's best interests first,” and that “there has been a total failure in parenting

by Mother.” Id. These same findings were the basis for the trial court's ruling that the child's

best interest would be served by designating Father as the primary residential parent. Id.

Finally, the order required Mother to pay Father $10,000 in partial payment of the attorney

fees Father incurred in filing the contempt petitions. Id.

On February 17, 2011, Mother filed a motion to alter or amend or for a new trial

pursuant to Rule 59.04 or Rule 59.02 of the Tennessee Rules of Civil Procedure. Mother

argued in the motion that the trial court erred in finding that Mother had willfully interfered

with Father's summer parenting time, and in finding that she willfully failed to obtain speech

therapy for Son in a timely fashion. S.A.M.D. I, 2012 WL 5266194 at *8. She contended

that there had been no material change in circumstances warranting the designation of Father

as Son's primary residential parent. Id. On February 28, 2011, Mother filed an amended

motion to alter or amend. She submitted new evidence showing that Mother had scheduled

a speech therapy appointment for Son as early as July 21, 2010. Id. Mother also asserted that

Son's circumstances had deteriorated since Father was designated the child's primary

residential parent. Id. Specifically, Mother alleged that Father had enrolled the child in an

unaccredited homeschool program, that he did not send the child's school books to Mother

during her parenting time, and that the environment that Father and his girlfriend provided

the child was a cause of concern for Mother. Id. In a separate motion, Mother asked the trial

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court to stay execution of the January 18, 2011 order pending resolution of her post-trial

motions. Id.

On March 29, 2011, the trial court held a hearing on Mother's motion to alter or

amend or for a new trial. S.A.M.D. I, 2012 WL 5266194 at *8. At the hearing, the trial court

indicated that the allegations by Mother that involved post-judgment facts were not an

appropriate basis for altering its previous decision, but that they would be relevant to a new

change in circumstances, going forward. Id. Thus, the trial court declined to alter or amend

its previous ruling. Id. On April 25, 2011, the trial court entered an order denying Mother's

motion to alter or amend or for a new trial. Id. Mother appealed this order in S.A.M.D. I.

Therein, this Court affirmed both the findings of contempt against Mother and also affirmed

the trial court’s designation of Father as primary residential parent. On June 19, 2011, the

Tennessee Supreme Court denied Mother’s application for permission to appeal this Court’s

ruling in S.A.M.D. I. Thereafter, on July 14, 2011, Mother filed a petition in the trial court

to change custody from Father back to her, for civil and criminal contempt, and for attorney’s

fees against Father. This petition (and Father’s counter-petition, discussed below) give rise

to the instant appeal. In support of her petition to change primary residential custody,

Mother’s petition alleged a material change in circumstances based upon the following

factual averments: (1) although Son had been “performing well” at his private school, Father

had enrolled Son in an “unaccredited home school program;” (2) Father had failed to return

the child’s school books when the child went to Mother’s for visitation, thus precluding

Mother from helping Son with his studies; (3) Father sent harassing text messages to Mother

in violation of the court’s orders; (4) Father delayed seeking medical attention for the child’s

ear infection, and then administered medication to which the child was allergic; (5) Father

made publically defamatory statements against Mother.

On December 2, 2011, Father filed a response to Mother’s petition, denying the

material allegations contained therein. Concurrent with his response, Father filed a counter-

petition for civil and criminal contempt and attorney’s fees against Mother. In his counter-

petition, Father alleged that Mother was in contempt of court based upon the following

factual averments: (1) although Father alleged that he provided Mother with all information

necessary to access the on-line components of Son’s home schooling program and speech

therapy, Mother had consistently failed and refused to ensure that the child completed his

homework and speech therapy during her visitation time (Father’s counter-petition specified

ten incidents where Mother allegedly failed to ensure completion of the child’s school work

and speech therapy); (2) Mother had made harassing phone calls and had sent harassing text

messages (Father’s counter-petition specified seventeen incidents where Mother allegedly

harassed Father via text message or phone); (3) Mother had not been attentive to the child’s

medical needs in that she had failed to ensure that the child was properly immunized, and had

also failed to ensure that the child received regular dental visits; (5) Mother had failed to pay

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Father’s attorney fees as previously ordered by the court; (6) Mother had failed to cooperate

with the child’s transportation (Father’s counter-petition specified three incidents where the

Mother failed to ensure transportation for Son); (7) Mother had failed to consult with Father

regarding decisions concerning the child; (8) Mother had made disparaging comments about

Father in the child’s presence; (9) Mother had interfered with Father’s telephone time with

the child.

On January 11, 12, and 17, 2012, the trial court heard Mother’s petition and Father’s

counter-petition. Following the hearing, the trial court orally ruled that: (1) there had not

been a material change in circumstances so as to necessitate a change in primary residential

custody from Father to Mother; (2) Mother had failed to prove that Father was in contempt

of court; (3) Father had proved that Mother was in contempt of court on several grounds (as

discussed infra); (4) Father’s child support obligation should be reduced from $3,000 per

month to $100 per each day of Mother’s parenting time; and (5) Mother was ordered to pay

Father’s attorney fees in the amount of $15,000. The trial court’s judgment was reduced to

an order, which was entered on June 4, 2012. Concerning the finding of contempt and

Mother’s punishment for the acts of contempt, the order states, in relevant part:

3. The Court finds that Mother has demonstrated a continued

and perpetual disregard for the orders of the Court, to the

detriment of the child. The Court does not find Mother’s

explanations of her behavior credible. . . .

* * *

The Court finds that Mother has violated the orders of the Court

and that, pursuant to the terms of this Court’s July 15, 2010

Order and January 18, 2011 [Order], the suspension of the

remaining 47 days of the sentence previously imposed on

Mother should be lifted. In addition, the Court finds that

Mother has been guilty of an additional 75 counts [of contempt],

but elects to sentence Mother for only one-half of that amount

or 37 counts of criminal contempt. The Court sentences Mother

for ten days for each count for a total of 370 additional days.

Mother shall be sentenced as follows: (1) Mother shall

serve thirty consecutive days in the Shelby County jail; and (2)

thereafter, Mother shall serve 52 days, on twenty six consecutive

weekends. The balance of Mother’s sentence, 335 days, shall be

suspended. However, if Mother violates any order of the Court

in the future, she will have to serve the full sentence imposed on

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her by this order.

Concurrent with the entry of its order, the trial court also entered an amended Permanent

Parenting Plan.

Before the foregoing order was entered, on January 19, 2012, Mother filed an

emergency motion for bond or release on her own recognizance. On January 29, 2012, the

trial court entered an order granting Mother’s motion. After entry of the June 4, 2012 order,

on July 3, 2012, Mother filed a Tennessee Rule of Civil Procedure 59 motion to alter or

amend the judgment, alleging, inter alia, that: (1) there was insufficient evidence to support

the trial court’s finding of contempt on the part of Mother; (2) the trial court erred in

modifying Father’s child support obligation when he had not filed a petition to modify, nor

proferred any evidence of his earnings; and (3) the trial court lacked subject matter

jurisdiction to modify the January 18, 2011 order concerning attorney fees. On November

1, 2012, Mother filed a supplement to her Rule 59 motion, which added a double jeopardy

argument and an argument concerning due process. Father responded to Mother’s Rule 59

motion, denying the material allegations contained therein. By order of December 4, 2012,

the trial court denied Mother’s Rule 59 motion in its entirety.

Mother appeals. She raises sixteen issues in her brief, which we restate and condense

into the following seven issues:

I. Whether the trial court erred in finding Mother in criminal

contempt regarding:

A. The child’s school work;

B. The child’s school books;

C. Mother taking the child to speech therapy and counseling;

D. Father’s telephone contact with the child; and

E. Mother’s failure to maintain life insurance. Mother also

asserts that the trial court’s consideration of her failure to obtain

life insurance was a violation of Mother’s due process.

II. Whether the trial court imposed an excessive sentence upon

Mother for her contempt?

III. Whether the trial court erred in modifying Father’s child

support obligation?

IV. Whether the trial court lacked subject matter jurisdiction to

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amend the January 18, 2011 Order regarding payment of

attorney fees? Whether the award of attorney fees in the June 4,

2012 order was erroneous.

V. Whether the trial court lacked subject matter jurisdiction to

enter a protective order for subpoenas issued and served in

Mississippi?

VI. Whether the trial court erred in admitting certain public

records through the testimony of Anna Cladakis?

VII. Whether the trial court erred in admitting the opinion

testimony of Dr. Amy Beebe in both the field of educational

assessment and speech therapy?

In the posture of Appellee, Father asks this Court to award his attorney fees and

expenses incurred in defending this appeal.

I. Criminal Contempt

Mother argues that the trial court erred in holding her in criminal contempt of court

on the five counts listed above. We will first outline the legal standard on this issue, and then

analyze Mother's arguments.

As discussed in Gibson's Suits in Chancery, the importance of the court's contempt

authority cannot be understated:

The power to punish for contempt is one of the most significant

prerogatives of the Court of Justice. Upon its bold and prudent

exercise depend the respect, the dignity, and efficiency of Courts

as arbiters of human rights. The mandates of a Court . . . must in

all cases be obeyed promptly, faithfully and without question or

evasion. The party upon whom the order or command of the

Court operates is not allowed to speculate upon the equity of the

complaint, or the legality or regularity of the order, or decree, or

of the writ issued thereon. His simple duty is to obey, and when

he disobeys it is a duty the Court owes to itself and to the public

to impose appropriate sanctions.

Gibson's Suits in Chancery, Eighth Ed., § 25.01 at 25–1; see also In re Lineweaver, 343

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S.W.3d 401, 413–14 (Tenn. Ct. App. 2010). Tennessee statutes governing the courts'

contempt powers provide that Tennessee courts may “inflict punishments for contempts of

court” in cases involving “[t]he willful disobedience or resistance of any . . . party . . . to any

lawful writ, process, order, rule, decree, or command of such courts.” Tenn. Code Ann. § 29-

9-102(3) (2012). This statutory provision “enables the courts to maintain the integrity of their

orders.” Konvalinka v. Chattanooga–Hamilton County Hosp. Auth., 249 S.W.3d 346, 354

(Tenn. 2008).2

A finding of criminal contempt must be based on the following four elements: (1) the

order that was allegedly violated must be lawful; (2) the order must be clear, specific, and

unambiguous, (3) the order must actually be disobeyed or otherwise resisted; and (4) the

2

In the very recent case of Baker v. State, No. M2011-01381-SC-R11-PC, ---- S.W.3d -----, 2013

WL 4768309 (Tenn. Sept. 6, 2013), our Supreme Court explained:

The power of courts to punish contempts can be traced back to

twelfth century English common law and was incorporated into American

common law by the colonists. See Ronald L. Goldfarb, The Contempt

Power 9, 19 (1963). The inherent power of courts to punish contemptuous

conduct has long been regarded as essential to the protection and existence

of the courts. State v. Galloway, 45 Tenn. 326, 331 (1868).

The power of courts to punish for contempt is of

immemorial antiquity, and is inherent in all courts as a

necessary power belonging to them in order to enable them

to accomplish the purposes for which they were designed;

that is, the orderly trial and decision of causes, the

enforcement of public order, the prevention of

interferences with their proceedings, and the enforcement

of the due respect belonging to them as institutions of the

country.

Graham v. Williamson, 128 Tenn. 720, 164 S.W. 781, 782 (1914).

However, at common law, the power of courts to punish contempts

was vast and undefined, and with such unlimited and undefined

discretionary power came the potential for abuse. Accordingly, in 1831, the

Tennessee General Assembly enacted legislation to curb the contempt

power of state judges. See Act of Dec. 19, 1831, ch. 19, 1831 Tenn. Pub.

Acts 34; see also State v. Beeler, 387 S.W.3d 511, 519 (Tenn. 2012). The

contempt power of Tennessee courts remains circumscribed by statute.

Tennessee Code Annotated [S]ection 29-9-102. . . .

Baker, 2013 WL 4768309, at *4.

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violation of the order must be willful. Konvalinka, 249 S.W.3d, at 354–55. A person

accused of criminal contempt is presumed innocent, and the four elements must be proven

beyond a reasonable doubt. Cottingham v. Cottingham, 193 S.W.3d 531, 538 (Tenn. 2006);

Black v. Blount, 938 S.W.2d 394, 399 (Tenn. 1996).

Once a guilty verdict is entered, the contemnor's presumption of innocence is removed

and is replaced by a presumption of guilt. See Cottingham, 193 S.W.3d at 538. Therefore,

when the sufficiency of the evidence to support a criminal contempt finding is challenged on

appeal, the defendant bears the burden of demonstrating why the evidence is insufficient to

support the guilty verdict. Id. In conducting our appellate review, “the prosecution is

entitled to the strongest legitimate view of the evidence and all reasonable inferences which

may be drawn from it.” Id. Additionally, “[q]uestions regarding the credibility of witnesses,

the weight and value of the evidence, and any factual issues raised by the evidence are

resolved by the trier of fact.” Id. Thus, “this court must review the record to determine if the

evidence in the record supports the finding of fact of guilt beyond a reasonable doubt, and

‘if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a

reasonable doubt’ we are to set aside the finding of guilt.” Eastman v. Eastman, No. M2007-

01797-COA-R3-CV, 2008 WL 2600695, at *2 (Tenn. Ct. App. June 30, 2008) (quoting

Tenn. R. App. P. 13(e)). Stated another way:

On appeal, individuals convicted of criminal contempt lose their

presumption of innocence and must overcome the presumption

of guilt. Therefore, “[a]ppellate courts do not review the

evidence in a light favorable to the accused and will reverse

criminal contempt convictions only when the evidence is

insufficient to support the trier-of-fact's finding of contempt

beyond a reasonable doubt.” Moody v. Hutchison, 159 S.W.3d

15, 25 (Tenn. Ct. App. 2004). See also Tenn. R. App. P. 13(e);

Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App.1993).

Appellate courts review a trial court's decision of whether to

impose contempt sanctions using the more relaxed abuse of

discretion standard of review. Hawk v. Hawk, 855 S.W.2d 573,

583 (Tenn. 1993); Freeman v. Freeman, 147 S.W.3d 234, 242

(Tenn. Ct. App. 2003).

Wilkinson v. Wilkinson, No. M2010-00026-COA-R3-CV, 2011 WL 5986405, at *4 (Tenn.

Ct. App. Nov. 29, 2011) (perm. app. denied Tenn. April 11, 2012) (citing Brooks v. Brooks,

No. M2007-00351-COA-R3-CV, 2009 WL 928283, at *8 (Tenn. Ct. App. April 6, 2009)

(internal footnote omitted)).

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Under the abuse of discretion standard, the trial court's decision “will be upheld so

long as reasonable minds can disagree as to the propriety of the decision made.” Camp v.

Camp, No. W2010-01037-COA-R3-CV, 2011 WL 2567542, at *5 (Tenn. Ct. App. June 29,

2011) (quoting Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). The abuse of

discretion standard involves “a less rigorous review of the lower court's decision and a

decreased likelihood that the decision will be reversed on appeal.” Lee Medical, Inc. v.

Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (citing Beard v. Bd. of Prof'l Responsibility,

288 S.W.3d 838, 860 (Tenn. 2009)). The standard “reflects an awareness that the decision

being reviewed involved a choice among several acceptable alternatives.” Lee Medical, Inc.,

312 S.W.3d at 524 (citing Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 708 (Tenn. Ct.

App.1999)). Accordingly, appellate courts are not permitted to “second guess” the trial

court's determinations or to substitute their judgment for that of the trial court. Lee Medical,

Inc., 312 S.W.3d at 524 (citing White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.

App.1999)). “The abuse of discretion standard of review does not, however, immunize a

lower court's decision from any meaningful appellate scrutiny.” Lee Medical, Inc., 312

S.W.3d at 524 (citing Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App.

2002)).

To summarize, in order to prevail on her criminal contempt issues, Mother bears the

burden of overcoming the presumption of guilt. Wilkinson, 2011 WL 5986405, at *4.

Accordingly, in reviewing the criminal contempt convictions in this case, we do not review

the evidence in light most favorable to Mother, but will reverse the trial court’s findings of

contempt beyond a reasonable doubt only there is an abuse of discretion. It is Mother’s

burden to demonstrate that the relevant facts contained in the record are insufficient, as a

matter of law, for a rationale trier of fact to find that she was guilty of the contempt citations

beyond a reasonable doubt. Furthermore, as set out in full context above, the trial court made

a specific finding that Mother was not a credible witness: “The Court does not find Mother’s

explanations of her behavior credible.” Accordingly, any issues of credibility must be

resolved in favor of Father: “On 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, 290 (Tenn. Ct. App. 1974).

With the foregoing principles in mind, we turn to address the specific contempt

findings that Mother appeals.

A. School Work

Regarding its finding that Mother was guilty of criminal contempt relating to the

child’s school work, the trial court’s June 4, 2012 order states, in pertinent part:

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(A) Section I.J. (3) of the January 18, 2011 Permanent Parenting

Plan [] provides in pertinent part as follows:

Each of the parties will ensure that the child has

completed his school work and/or homework

during that parent’s parenting time. . . [.]

The proof established that Mother had parenting time for 86

days during the 2011 calendar year and that the child completed

13 home schooling lessons during Mother’s parenting time.

Thus, Mother did not ensure that the child had completed any

home schooling lessons on 73 days. Of the 73 days, Father

testified that he did not send the books on the following periods:

03/29/11—04/03/11 (6 days); 05/06/11—05/09/11 (4 days); and

07/01/11—07/05/11 (5 days).

Thus, Mother failed to ensure that the child completed

home schooling lessons on 58 days of her parenting time. Each

day represents a separate count of contempt, of which the Court

finds Mother guilty.

Turning to the record, the undisputed proof was that Son was enrolled in the A Beka

home schooling program. Father testified that he sent Mother “all of the information relating

to user names, passcodes and how to communicate with A Beka and how to retrieve from A

Beka.” During cross-examination, Mother was asked whether she was “aware that [the]

Permanent Parenting Plan provide[d] that [Mother] ha[d] an obligation to ensure that your

son complete[d] his schoolwork during your parenting time?” She answered “Yes.” To this

end, Mother hired Kelly Long, a teacher with what was then the Memphis City School

system, to assist Son with his home schooling lessons.

The record indicates that Mother had eighty-six days of parenting time in 2011.

According to Ms. Long, the child completed only thirteen lessons during Mother’s visitation

time. The A Beka curriculum requires one lesson per day. Accordingly, there were

approximately seventy-three days when Mother had parenting time that she did not ensure

that the child completed his lesson. However, Father did admit, as found by the trial court

supra, that there were approximately fifteen days where his failure to tender the child’s book

precluded Mother from ensuring that his lessons were complete. However, the record clearly

establishes that, for fifty-eight of her seventy-three days of parenting time, Mother (through

no fault of Father) failed to see that the child’s studies were completed.

According to the record, the home schooling curriculum continues throughout the

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year and there is no “summer break;” however, when asked why she had not ensured that the

child completed his lessons, Mother testified that she thought the child needed a break during

the summer. In its January 17, 2012 statements from the bench, the trial court stated:

Summertime. Lots of children go to summer school in the

summertime, ma’am. Even the little ones if they have to be

taught to catch up. Whether you call it working with a tutor all

summer or whether you call it school.

I mean, this is not hard school. This child finishes it one

or two lessons a week even that. But instead, you said

repeatedly on this stand, it’s summertime. He shouldn’t be in

school. He should be playing with all the other kids.

So you make it be a negative thing. You make [the child’

hear all it’s a negative thing . . . . And all the other kids are out

playing but you[‘ve] got to work, so you’re being punished and

you’re being punished by your father. All that negativity is

soaked up by your child . . . .

From the record as a whole, and in light of the number of days (58) that Mother failed

to ensure that the child completed his school work and her lack of any valid excuse, we

conclude that there was sufficient evidence presented to support the trial court’s finding that

Mother was guilty, beyond a reasonable doubt, of fifty-eight counts of criminal contempt in

willfully failing to ensure that the child completed his school work. Accordingly, the trial

court did not abuse its discretion in this finding.

B. School Books

The trial court’s June 4, 2012 order states, in relevant part:

Section I.J.(3) of the January 18, 2011 Permanent Parenting

Plan, further provides in pertinent part as follows:

At the end of Mother’s parenting time, Mother

shall return to Father any and all of the child’s

school work, books and materials.

The Court finds that following Mother’s parenting time from

February 19, 2011 to March 1, 2011, Mother failed to return one

of the child’s school books. As a result, Father paid $10.75 to

replace the book. Exhibit 35. Mother’s failure to return the

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book is a direct violation of the above-quoted provision in the

Permanent Parenting Plan.

Father’s undisputed testimony indicates that, following her parenting time from

February 19 to March 1, 2011, Mother failed to return one of the child’s books. Father

provided a receipt (Trial Exhibit 35) that he had paid for a replacement book.

From the record, we cannot conclude that there was insufficient proof to support the

trial court’s finding that Mother was guilty of criminal contempt, beyond a reasonable doubt,

for failure to return the child’s school book. Accordingly, the trial court did not abuse its

discretion in so finding.

C. Speech Therapy and Counseling

Mother was found in criminal contempt both for her failure to ensure that the child

attended his scheduled speech therapy sessions, and also for failure to consult with Father

regarding a change in the child’s speech therapist and counseling for the child.

Concerning Mother’s failure to ensure that the child attended his speech therapy, the

trial court’s June 4, 2012 order states, in relevant part, that:

Section I.J.(3) of the January 18, 2011 Permanent Parenting

Plan, also provides in pertinent part as follows:

[ ] In addition, each parent shall ensure that the

child participates in speech therapy as scheduled.

Mother has failed to ensure that the child has participated in

speech therapy during her parenting time. The records from

Tiny Eye Speech Therapy reflect that the speech therapist was

“unable to schedule speech therapy. [Son] @ his mother’s house

in Memphis” on the following dates: 3/29/11, 6/5/11, 7/1/11,

8/29/11, 9/5/11. In addition, the . . .[s]peech therapy records

reflect that on 4/1/11, “BILL FOR NO SHOW. [Son] was with

mom . . . this week. I have had to reschedule multiple sessions

with [Mother] due to no-shows. I was unable to reschedule this

session as it was on a Friday and [Son] is not with [Mother] next

week.” [This information was admitted as part of Trial Exhibit

15].

Mother’s failure to ensure that the child participated in

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speech therapy, as outlined herein, represents seven additional

counts of contempt.

The foregoing findings are supported by sufficient evidence in the record.

Accordingly, we cannot conclude that the trial court erred in finding that Mother was guilty,

beyond a reasonable doubt, of criminal contempt in failing to ensure that the child

participated in scheduled speech therapy during her parenting time. The record supports a

finding that Mother’s was guilty of contempt in this regard on the occasions outlined in the

trial court’s findings, supra. Accordingly, we cannot conclude that the trial court abused its

discretion in finding seven counts of contempt for failure to ensure participation in speech

therapy.

Concerning Mother’s unilateral decision to take the child to a different speech

therapist and to have him participate in counseling, the June 4, 2012 order states, in relevant

part:

The decision making provisions of the January 18, 2011

Permanent Parenting Plan provide that the parties must confer

with one another in good faith concerning major decisions for

the child and, in the event the parties cannot agree, they shall

participate in mediation as required by Section V of this plan.

Mother has willfully failed and refused to consult with Father as

required by the plan by taking the child to Janna Hacker, a

speech therapist, on two separate occasions after she was aware

that the child was participating in speech therapy through the

Tiny Eye program, without consultation with or the agreement

of Father. Mother further willfully failed and refused to consult

with Father prior to taking the child to see Andrea Nichols, a

psychologist. The Court finds that Mother’s actions in taking

the child to a psychologist were not justified by any legitimate

risk or threat of harm to the child. The Court finds Mother

guilty of three additional counts of contempt for the violations

outlined in this subsection.

Turning to the record, Mother admitted that she took the child to see speech therapist

Jenna Hacker:

Q [to Mother]: With respect to speech therapy, you did not

consult with [Father] before you began taking [the child] to

Janna Hacker again; is that correct?

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A. I did what the Judge said. I got him as much speech therapy

as possible.

Q. That wasn’t my question. You didn’t consult with [Father]

when you began taking [Son] to Janna Hacker after the

December 17th ruling of the Court, did you?

A. I think I did tell him we were going there. I told him we

were going there. I told him we were doing all of–I said we’re

doing all three [i.e., the speech therapy that Father knew about,

the speech therapy with Ms. Hacker, and counseling with

Andrea Nichols].

Concerning the child’s visits with Ms. Nichols, Mother admitted that Father did not

learn that she had taken the child to see the psychologist until Mother filed her Rule 59

motion to alter or amend the trial court’s judgment, supra:

Q [to Mother]. And, in fact, [Father] did not learn that you had

taken the child to see this psychologist until you attached notes

from her or a letter from her to the Motion to Alter or Amend

that you filed in this Court; isn’t that true?

A. That’s true . . . [.]

Mother’s testimony that she consulted with Father prior to taking the child to Janna

Hacker was unsupported by any evidence, e.g., text messages, phone records. Furthermore,

Mother’s testimony was disputed by Father, who stated that Mother did not, as she claims,

consult with him prior to enrolling the child with Ms. Hacker, or prior to taking the child to

counseling. Specifically, Father testified that he did not know that the child had seen either

Ms. Hacker or Ms. Nichols until he received their billings. As noted above, in this case, the

trial court made a specific finding that Mother was not a credible witness. Accordingly, in

the case of conflicting testimony, and in the absence of any non-parol evidence or other

evidence that calls into question Father’s credibility, the testimony of the Father must be

credited: “On 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, 290 (Tenn. Ct. App. 1974).

From the entire record, we conclude that there was sufficient evidence from which the

trial court could conclude that Mother was in criminal contempt, beyond a reasonable doubt,

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based upon both her failure to ensure that the child attended his scheduled speech therapy

sessions, and also for taking the child to another speech therapist and to a psychologist

without first consulting with Father as required by the Parenting Plan. Accordingly, we

conclude that the trial court did not abuse its discretion in charging Mother with ten

additional counts of criminal contempt for these actions.

D. Telephone Contact

In its June 4, 2012 Order, the trial court states:

The Court’s July 15, 2010 Order provides in Paragraph 8 as

follows:

The Court finds that Mother has interfered with

Father’s ability to communicate with the child by

telephone. Father shall be allowed to speak with

the child by telephone daily. Mother shall not be

in the room with the child when he is speaking to

Father. If there is any clear indication that the

child is being coached by Mother as to what he

should say during his conversations with Father,

whether or not she is in the room during those

conversations, the Court will take further action.

Mother has been ordered not to interfere with Father’s telephone

contact during her parenting time. In spite of this, the proof has

shown that Father has had continued difficulty reaching the

child by telephone when he is with Mother. The dates on which

this occurred include January 27, February 3, and February 28.

The Court finds that each date represents a separate count of

contempt for which the Court finds Mother guilty.

Turning to the record, Father testified that he had difficulty, on many occasions, trying

to speak with the child by telephone. On January 27, 2011, Father’s attorney sent a letter to

Mother’s attorney in an effort to resolve the telephone contact issues. This did not resolve

the problems and, on February 3, 2011, Father sent an email to Mother, expressing his

concern at not being able to speak to the child. When the problem persisted, Father’s

attorney sent another letter to Mother’s attorney on February 28, 2011, which appears to have

also been of no avail. The record indicates that, when Father called to speak with Son,

Mother would often initiate discussions on other subjects. Although Mother asserts, in her

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brief, that the trial court’s orders do not require her to put the child on the phone

“immediately or within hours or minutes of [Father] calling or otherwise,” this argument is

spurious at best. Furthermore, from the trial court’s order, it does not appear that Mother was

held in contempt based upon the timing of any of the child’s return calls to Father. Rather,

she was held in contempt for those instances where Father was not allowed to speak to the

child at all.

From the record as a whole, we conclude that there is sufficient proof to support the

trial court’s finding that Mother was in criminal contempt, beyond a reasonable doubt, for

failure to allow the child telephone contact with Father.

E. Life Insurance

It is well settled that a court speaks through its orders. Palmer v. Palmer, 562

S.W.2d 833, 837 (Tenn. Ct. App.1977). Concerning life insurance, the trial court’s June 4,

2012 order states:

The Court finds that Mother has failed to secure or maintain life

insurance required of her pursuant to the Permanent Parenting

Plan. The Court is not sentencing Mother to jail based on this

violation, as it was not alleged in Father’s Petition.

Despite Mother’s argument that the trial court erred in finding her in criminal contempt for

failure to maintain life insurance, the foregoing language indicates that the trial court did not,

in fact, base any findings of contempt on her failure to procure life insurance.

Concerning an alleged violation of her right to due process, Mother argues, in her

brief that:

In Turner v. Rodgers . . . the United States Supreme Court held

that notice [of] ability to pay is required prior to proceeding to

any issue of contempt regarding payments. The proponent of

civil contempt charges must provide specific notice that ability

to pay would be a critical issue in the contempt trial and there

must be express findings in the record of ability to pay. Id. The

same requirement should be extended to criminal contempt

charges and retroactively applied. Davis v. US. . . [.]

Here, this notice was not presented in the petition and the

Court should not have ruled upon it.

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Again, as noted above, Mother’s failure to provide life insurance did not form the

basis for any of the findings of contempt. Accordingly, we need not reach the question of

whether notice was given, nor do we need to reach the question of whether there was

sufficient evidence in the record to support such finding on the ground of failure to maintain

life insurance. Even if we assume, arguendo, that the trial court erred in considering the

issue of life insurance, this would be harmless error based upon the fact that the trial court

did not base any of the contempt charges on the life insurance question. Accordingly, the

trial court’s consideration of Mother’s failure to provide life insurance does not constitute

reversible error. Tenn. R. App. P. 36(b) (“Effect of Error. A final judgment from which

relief is available and otherwise appropriate shall not be set aside unless, considering the

whole record, error involving a substantial right more probably than not affected the

judgment or would result in prejudice to the judicial process . . . .”).

II. Excessive Sentence

In its June 4, 2012 order, the trial court states, in relevant part:

By order entered July 15, 2010, the Court stated as follows:

The Court has found Mother in criminal contempt

and sentenced her to a total of 50 days in jail.

Based on the fact that Mother allowed Father to

exercise eleven additional days of parenting time

in the month of June 2010, following the filing of

Father’s petition, the Court will suspend Mother’s

sentence. However, if Mother violates any order

of the Court in the future, she will have to serve

the sentence imposed on her by this order.

By order entered January 18, 2011, the Court stated as follows:

The Court finds that Mother has violated the

orders of the Court and that, pursuant to the terms

of this Court’s July 15, 2010 Order, the

suspension of the sentence previously imposed on

Mother should be lifted. However, the Court

declines to lift the suspension of the entire

sentence and declines to sentence Mother to

additional jail time for her subsequent violations

of the Court’s orders, which the Court finds total

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twenty to thirty counts. Rather, the Court orders

that Mother shall serve three days in the Shelby

County jail, commencing December 17, 2010.

The Court finds that Mother has violated the order of the Court

and that, pursuant to the terms of this Court’s July 15, 2010

Order and January 18, 2011 [Order], the suspension of the

remaining 47 days of the sentence previously imposed on

Mother should be lifted. In addition, the Court finds that

Mother has been guilty of an additional 75 counts, but elects to

sentence Mother for only one-half of that amount or 37 counts

of criminal contempt. The Court sentences Mother for ten days

for each count for a total of 370 additional days.

Mother shall be sentenced as follows: (1) Mother shall

serve thirty consecutive days in the Shelby County jail; and (2)

thereafter, Mother shall serve 52 days, on twenty six consecutive

weekends. The balance of Mother’s sentence, 335 days, shall be

suspended. . . .

As discussed in the recent case of Baker v. Baker, M2010–01806–COA–R3–CV,

2012 WL 764918 (Tenn. Ct. App. March 9, 2012):

As we begin our analysis of the sentence imposed it is important

to recognize that 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.” Black v.

Blount, 938 S.W.2d 394, 398 (Tenn.1996); see also Thigpen v.

Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App.1993). Criminal

contempt proceedings “‘in a very true sense raise an issue

between the public and the accused.’” Id. Conversely, criminal

contempt is not to be used to benefit the contemnor's adversary

in a civil proceeding; that is the purpose and function of civil

contempt. Overnite Transp. Co. v. Teamsters Local Union No.

480, 172 S.W.3d 507, 510 (Tenn. 2005)(stating that a civil

contempt action is generally brought to enforce private rights).

Id. at *11.

The Tennessee Supreme Court has described criminal contempt proceedings as sui

generis[, i.e., a class unto itself]—neither a civil nor a criminal prosecution as ordinarily

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understood, not a criminal prosecution within the Sixth Amendment of the United States

Constitution.” Bowdon v. Bowdon, 278 S.W.2d 670, 672 (Tenn. 1955). As noted by this

Court in the recent case of Coffey v. Coffey, No. E2012-00143-COA-R3-CV, 2013 WL

1279410 (Tenn. Ct. App. March 28, 2013):

Unlike a typical criminal prosecution, which stands or falls on

its own set of circumstances, a criminal contempt proceeding is

necessarily based on a preexisting court order and is an offense

against the court itself. See Doe v. Board of Professional

Responsibility of the Supreme Court of Tennessee, 104 S.W.3d

465, 474 (Tenn.2003) (contempt proceeding is sui generis and

is incidental to the case from which it arises). . . .

Criminal contempt statutes are not like other criminal

statutes that prohibit certain activities, such as driving without

a license or selling alcohol to a minor. Rather, they are “punitive

in character, and their primary purpose is to vindicate the court's

authority.” [Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct.

App. 1993] ( citing Gunn v. Souther[n] Bell Tel. & Tel. Co.,

201 Tenn. 38, 296 S.W.2d 843, 844 (1956) and Garrett v.

Forest Lawn Memorial Gardens, 588 S.W.2d 309, 315 (Tenn.

Ct. App.1979)); see Long, 221 S.W.3d at 12–13 (criminal

contempt sanctions imposed simply as punishment).

Id. at *8.

In Sloan v. Poff, No. M2009-01839-COA-R3-JV, 2011 WL 1166845, at *10 (Tenn.

Ct. App. March 29, 2011), this Court addressed Appellant’s question of whether Tennessee

Code Annotated Section 40-25-303(c)(1) allowed the trial court to suspend Appellant’s

sentence for criminal contempt only “up to and including the statutory maximum time for the

class of convicted offenses.” Sloan, 2011 WL 1166945, at *8. In Sloan, Appellant

specifically argued that because the “criminal contempt statute prevents a court from

incarcerating an individual for more than ten days, see Tenn. Code Ann. §29-9-103, section

40-35-303(c)(1) precludes a court from suspending the sentence for longer than ten days

because ten days is the ‘statutory maximum time for the class of the convicted offense.” Id.

In Sloan, this Court specifically rejected Appellant’s argument, stating that:

[Appellant’s] argument would be persuasive if criminal

contempt constituted a violation of the criminal law and if a

suspension of a criminal contempt sentence constituted

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“probation” as that term is used in Tenn. Code Ann. §40-35-

303(c)(1). However, criminal contempt is not considered a

violation of the criminal law, and a suspension of a criminal

contempt sentence does not constitute probation. As a result, we

conclude that the [trial court] did not err when it suspended

[Appellant’s] ten-day sentence . . . .

Sloan, 2011 WL 1166845 at *8. Relying upon this holding in Sloan, in Coffey, we

specifically addressed the question of whether Tennessee Code Annotated Section 40-35-

310(a) (2010) precluded the trial court from “unsuspending” a sentence for criminal

contempt beyond the maximum term to which defendant could have been sentenced. Id. In

affirming the trial court’s decision to suspend Appellant’s sentence in Coffey, we noted that:

When the trial court found Mother in criminal contempt, it did

not find Mother guilty of a crime. Rather, it found Mother had

willfully violated its orders dated January 7, 2009 and July 30,

2009. We conclude Tennessee Code Annotated § 40-35-

303(c)(1) does not come into play when criminal contempt is at

issue and, therefore, it does not affect the court's ability to

suspend its ten-day sentence imposed pursuant to Tenn. Code

Ann. § 29-9-103.

Coffey, 2013 WL 1279410, at *8. The Coffey Court specifically noted that:

It is not unusual for a court that has found an individual in

criminal contempt for violating its order to suspend a sentence

imposed as a sanction for that contempt. See Cansler v.

Cansler, 2010 WL 342652, at *10 (Tenn. Ct. App. 2010)

(holding § 29-9-103 does not mandate a sentence be imposed,

and trial court can suspend any sentence it gives); Thigpen, 874

S.W.3d at 54 (trial court should have suspended all but one day

of sentence imposed for criminal contempt).

Coffey, 2013 WL 1279410, at *8. Although Sloan and Coffey stand for the proposition that

certain requirements of the Criminal Sentencing Reform Act of 1989 are not applicable to

a trial court’s decision of how to sentence for criminal contempt, in State v. Wood, 91

S.W.3d 769 (Tenn. Ct. App. 2002), this Court noted that:

There is, however, a principle embodied in the criminal

statutes that we think applies wherever punitive incarceration is

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considered. Tenn. Code Ann. § 40-35-103(4) requires that the

sentence be the least severe measure necessary to achieve the

purpose for which the sentence is imposed. In this country,

where freedom is highly valued and the fundamental laws (both

state and federal) restrict the power of the government to

infringe on that freedom, that principle should guide courts in

the imposition of any prison sentence imposed for punishment.

In the criminal law the courts exercise some control over

punishment by subjecting sentencing statutes and orders of

confinement to a proportionality test under the Eighth

Amendment to the United States Constitution and Article I

Section 16 of the Tennessee Constitution. See State v. Harris,

844 S.W.2d 601 (Tenn. 1992). In contempt the courts have said

that in order to safeguard constitutional procedures courts

should employ “the least possible power adequate to the end

proposed.” In Re Michael, 326 U.S. 224 at 227, 66 S.Ct. 78, 90

L.Ed. 30 (1945). Because the right to a trial by jury historically

did not attach to a charge of contempt, see Ahern v. Ahern, 15

S.W.3d 73 (Tenn. 2000) and Green v. United States, 356 U.S.

165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958), appellate courts are

charged with a special responsibility to see that the contempt

power is not abused.

State v. Wood, 91 S.W.3d at 776.

In Baker v. Baker, Judge Clement, writing for the Court, succinctly stated the

applicable standard of review for questions involving the length of a sentence imposed for

criminal contempt:

When the defendant is found guilty of criminal contempt,

the trial court has the discretion to impose a sentence and to

require that the defendant serve the sentence imposed or,

alternatively, to place the contemnor on probation subject to

reasonable terms and conditions. If the defendant was placed on

probation and thereafter violates conditions of his or her

probation, the trial court has the authority to revoke the

suspension of the sentence and, among other alternatives, order

the execution of the original sentence. State v. Beard, 189

S.W.3d 730, 735 (Tenn. Crim. App. 2005). Alternatively, the

court has “the discretionary authority upon the revocation of

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probation to impose something less than the original sentence,

depending upon the circumstances of the case. ” Id. (citing State

v. Troy McLemore, No. 03C01-9709-CC-00406, 1998 WL

422339 (Tenn .Crim. App. July 28, 1998); State v. Marty Miller,

No. 03C01-9602-CC-00056, 1997 WL 90638 (Tenn. Crim. App.

Mar. 4, 1997); State v. Melvin Griffin, No. 01C01-9503-CC-

00090, 1995 WL 679112 (Tenn. Crim. App. Nov. 16, 1995)).

The determination of the appropriate consequence of

such a violation embodies a separate exercise of discretion.

State v. McCoy, No. M2011-00006-CCA-R3-CD, 2011 WL

6916227 (Tenn. Crim. App. Dec. 28, 2011) (citing State v.

Hunter, 1 S.W.3d 643, 647 (Tenn.1999); State v. Reams, 265

S.W.3d 423, 430 (Tenn. Crim. App. 2007)).

* * *

The overall length of Mother’s sentence must be “justly

deserved in relation to the seriousness of the offense[s],” and

“no greater than that deserved” under the circumstances,” In re

Sneed, 302 S.W.3d 825, 828 (Tenn. 2010), and if we determine

that a sentence is excessive, it is incumbent upon this court to

reduce or otherwise modify an excessive sentence for contempt.

See Robinson v. Air Draulics Engineering Company, 377

S.W.2d 908, (Tenn. 1964); Barrowman v. State ex rel. Evans,

381 S.W.2d 251, 253–54 (Tenn. 1964); Thompson v. State, 241

S.W.2d 404 (Tenn. 1951); Metcalf v. Eastman, 228 S.W.2d 490

(Tenn. 1950); see also Hundhausen v. U.S. Marine Fire Ins.

Co., 52 Tenn. 702 (Tenn. 1871) (wherein the court held that “if

the punishment seems to be excessive this Court on appeal has

jurisdiction to revise and reduce the sentence[]”).

Baker, 2012 WL 764918, at *10–*12; see also State v. Bise, 380 S.W.3d 682 (Tenn. 2012)

(adopting the abuse of discretion standard in place of the de novo standard of review as to

the length of the sentence imposed).

In addition to the foregoing authority, the United States Supreme Court has also set

out some of the factors that should be considered in reviewing a contempt sentence:

[T]he trial judge may properly take into consideration the extent

of the willful and deliberate defiance of the court's order, the

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seriousness of the consequences of the contumacious behavior,

the necessity of effectively terminating the defendant's defiance

as required by the public interest, and the importance of

deterring such acts in the future.

United States v. United Mine Workers of America, 330 U.S. 258 at 303, 67 S.Ct. 677, 91

L.Ed. 884 (1947).

From the record, the trial court’s reasoning concerning the sentence imposed for

Mother’s contempt is the result of the court’s frustration with Mother’s continued disregard

for its orders. For example, the court states:

What has she complied with, anything? Not that I can find. So,

I have no choice. What I have a choice in is how long she’s

going to jail . . . [.] But I don’t have any choice. I’m not

respecting this bench and the law of this state if I do not send

this lady to jail. . . . I tried to make it easier for you and you

refused to do it, so I have no choice. I’m not going to continue

to punish [Father] because you refuse to follow the court’s

orders. It’s as simple as that. I have no choice.

The court further states that, “[t]he bottom line is, you haven’t followed any of this Court’s

orders . . . . I find, in fact, that there is a continuing circumstance of perpetual disregard for

this Court’s order[s] to the detriment of the minor child.”

In addition, the court noted the fact that Mother showed a lack of respect for the court.

When the court expressed concern about Mother’s failure to recognize that the child should

not be on Facebook, Mother reacted such that the court stated:

And [Mother] is rolling her eyes at me right now like she

doesn’t believe that that carries weight. All the more reason for

me to question her ability to parent at all. . . .

From the record, we agree that Mother has engaged in a continuing pattern of

disregard for the court’s orders. Mother's conduct indicates that she believes that the court

orders simply do not apply to her. This is exactly the type of behavior and thinking that

punishment for contempt is designed to address. Despite its rightful frustration with

Mother’s continued disregard for its orders, the court in this case nonetheless showed her

leniency:

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With regard to [Mother’s] counts of contempt, it’s alleged that

you have 58 counts where you had failure to do education for

[the child]. There was testimony that some of those, just a few,

one or two times, the books were not sent.

But I’m going to give you a break there. I’m going to divide

that in two. And just assume that hopefully she was working on

it and give her credit for the 29. But that leaves 29.

The court also showed Mother leniency concerning her interference with Father’s telephone

contact with Son:

So what I’m going to do is, that’s 20–22, that’s 25 times when

you could not reach, seven times when she was interrupting, 15

counts of contempt of telephone calls. I’m going to reduce that

to one. . . .

I’ve got—the argument was seven times that he could not reach

her . . . .

[Mother], I am finding you guilty of 37 counts of contempt and

violation—contempt of violation of this prior court’s order of

December 2010. You, at this point, owe the court 47 days. . . .

The total is 370 days from the 37 and 47—417 days, I’m not

sentencing you to that, because I’m hoping this will make an

impression on you. You are going to serve the 47 days, plus 37

days from today’s contempt. So that would leave 390—390

days. You’ve got a year in jail hanging out there. And you’re

going to serve 30 days in the Shelby County jail. The balance

will be served on the weekend, every weekend until the time is

fulfilled. So you will have an additional 54 days to serve on the

weekend.

As correctly noted by Father in his brief, from the date of the parties divorce in

February 2012 through January 2013, the trial court has conducted three separate hearings

on Father’s contempt petitions against Mother. In each of those hearings, the trial court

determined that Mother had violated the court’s orders. Mother has been given leniency in

the form of suspended sentences, but she has not availed herself of the opportunity to cure

her contempt and to follow the orders of the court. Rather, as discussed in detail above, she

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has continued to violate the court’s orders and has, in fact, committed additional acts of

contempt while operating under the largess of the court’s suspended sentence. We agree with

the trial court’s comment that it has exhausted its options other than jail to motivate Mother

to comply with its orders. Given Mother’s excessive and continual violations of the trial

court’s orders over the relevant period of less than two years, we cannot conclude that the

trial court imposed an excessive sentence in this case, or that it otherwise abused its

discretion.

III. Modification of Father’s Child Support

In its June 4, 2012 order, the trial court states, in pertinent part:

On June 4, Mother posted to her Facebook page, “oh my

goodness . . . my body is so fit and firm . . . I just ate 2 sausage

egg mayonnaise sandwiches from CKS! Ok and half a bacon

egg and mayo . . . I am so happy . . . life is good . . . child

support well spent.”

The Court finds that Father has continued to pay $3,000

per month as child support, in spite of the fact that he has been

the child’s primary residential parent since December 2010.

Based on Mother’s testimony, she earned $112,500 in the year

2010. The Court finds that Mother has an earning capacity

which she is not attaining and that Father should not be required

to support the entirety of Mother’s household which includes

Mother, her son from a previous relationship, and her sister’s

two children.

Based on all the factors to be considered, the Court finds

that $100 per day that Mother has parenting time is a reasonable

amount of child support. As Mother has 86 days of parenting

time in the year 2011, the Court hereby modifies Father’s child

support obligation to $717 per month, commencing January 17,

2012, and calculated as follows: $100 / day x 86 days / 12

months. It is contemplated that the child support may be

adjusted on an annual basis, based on the number of days of

parenting time exercised by Mother. This is an upward

deviation from the Tennessee Child Support Guidelines. If

Father’s child support were calculated strictly in accordance

with the Tennessee Child Support Guidelines, Father would not

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pay child support directly to Mother in any amount.

On January 12, 2012, in making its initial decision to reduce Father’s child support,

the trial court stated:

Well, [Mother] needs to get a job. The guidelines are the

guidelines. I am not going to allow [Mother] to be enabled by

[Father] paying child support to a lady who is living on child

support. She may say that comment [on Facebook, see supra],

a good expenditure of child support, was a joke. This Court

doesn’t take it as a joke.

The trial court went on to state:

I want another Parenting Plan done. Child support stops from

this day forward. Well, no, let me—let me think about his

because the days the child is with her, I want a reasonable

amount of child support to be paid, $50 per day. That will feed

the child, that will clothe the child, and the mother has an equal

responsibility with [Father] to provide for that child.

So $50 a day right not times 86 days, and in the future it will be

adjusted. [Father] does not have a responsibility to support

[Mother] for her other children or the children who are in [her]

custody. . . .

On January 17, 2012, the trial court modified this oral ruling, stating that it was ordering

$100 per day as child support. At this point, counsel for Mother stated that Mother “would

like an opportunity to review that issue and see if that’s compliant with the statute as well.”

Father argues that Mother failed to preserve any objection to the issue of child support and,

as such, the issue was tried by consent. While we concede that “[i]ssues not raised in the trial

court cannot be raised for the first time on appeal,” Sparks v. Metro. Gov't of Nashville, 771

S.W.2d 430, 434 (Tenn. Ct. App. 1989)(citing Irvin v. Binkley, 577 S.W.2d 677 (Tenn. Ct.

App. 1978)), as set out above, Mother’s attorney did, in fact, object to the child support

ruling.

As stated in 19 W. Walton Garrett Tennessee Practice: Divorce, Alimony & Child

Custody § 20:1 (2013):

Tennessee retains jurisdiction in the trial court, by statute, for

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the modification of future . . . child support . . . . The pleadings

and proof must show permanent change in the circumstances of

the parties since the last decree. . . .

Criteria for modification of child support include the

noncustodial parent's ability to provide for the child or children's

needs, the resources and needs of the custodial parent,

remarriage of a parent, conduct of the custodial spouse after

decree, provision of services in kind, and emancipation.

Id. (footnotes omitted). Although it is clear to this court that there has been a change in

circumstances in that the Father is now the child’s primary residential parent, it is well settled

that “[a]ny order for child support shall be a judgment entitled to be enforced as any other

judgment of a court of this state, and . . . shall not be subject to modification as to any time

period or any amounts due prior to the date that an action for modification is filed and notice

of the action has been mailed to the last known address of the opposing parties.” Tenn. Code

Ann. § 36-5-101(f)(1); Brown v. Heggie, 876 S.W.2d 98, 101 (Tenn. Ct. App. 1993).

Prospective modifications of child support are also subject to the notice requirement

contained in Tennessee Code Annotated Section 36-5-101(f)(1). See State ex rel. Shaver v.

Shaver, No. 01A01-9610-CV-00474, 1997 WL 401827 (Tenn. Ct. App. July 18, 1997)

(perm. app. denied Tenn. Dec. 29, 1997).

One of the reasons for the notice requirement is that the purpose of an action can only

be determined from the pleadings. Pierce v. Tharp, 461 S.W.2d 950, 953 (Tenn. 1970).

Although we have previously recognized that trial courts have the ability to treat any

pleading according to the type of relief sought, regardless of its title, Estate of Doyle v.

Hunt, 60 S.W.3d 838 (Tenn. Ct. App. 2001), even if we construe Father’s petition as

liberally as possible, it simply does not constitute “an action for modification” of his child

support obligation. “A trial court has no authority, sua sponte, to modify its child support

decrees.” Long v. Long, No. 01A01-9406-CV-00270, 1995 WL 33741 (Tenn. Ct. App. Jan.

27, 1995). In its December 4, 2012 order, denying Mother’s motion to alter or amend the

June 4, 2012 order, the trial court explained its reasoning for addressing the issue of Father’s

child support:

Mother challenges the Court’s authority to modify child support.

The Court raised the issue of modification of child support sua

sponte, based on equitable principles. The Court found that

Mother is able-bodied, but was choosing not to work. The Court

found that it was unjust and inappropriate for Father to continue

to pay the same amount of child support that he paid prior to

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being designated as the child’s primary residential parent, as

Mother was utilizing these funds to support her household,

including her son from a prior relationship and her sister’s two

children.

The trial court’s order also notes Mother’s Facebook post, supra, in which she writes “child

support well spent.” Although the trial court’s statements may be true, the problem with the

trial court’s ruling is that it was not precipitated by a petition for modification. Thus, Mother

did not receive notice of any probability that child support was an issue at the hearing as

required by statute. Tenn. Code Ann. § 36-5-10(f)(1). Accordingly, we must reverse the trial

court’s order concerning modification of Father’s child support obligation. However, our

holding does not preclude Father from filing a petition for modification of child support on

remand should he choose to pursue such relief.

IV. Attorney Fees

In its June 4, 2012 Order, the trial court states, in relevant part:

Paragraph 10 of the Court’s January 18, 2011 Order provides as

follows:

Mother shall pay to Father the sum of $10,000 in

partial payment of the attorney fees that [Father]

has incurred incident to the filing and prosecution

of his petition. Father shall be, and is hereby,

awarded a judgment against Mother in said

amount, which shall be paid no later than the date

that Mother receives the next payment relating to

the book that she has or is writing.

Following the entry of the January 18, 2011 Order, Mother filed

a “Motion for Stay of Execution Pending Post Trial Motions” in

which she sought to stay the Court’s order, including the order

requiring her to pay $10,000 toward Father’s attorney fees. This

Court ordered Mother to pay the sum due into her attorney’s

escrow account. As of January 17, 2012, Mother had not done

so.

The Court’s January 18, 2011 Order included the

provision that this judgment would be paid no later than the date

that Mother receives the next payment relating to the book that

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she has or is writing based on Mother’s testimony offered in

December 2010 in which she testified that she expected to

receive a substantial sum related to her book within a few days

of the hearing. On January 17, 2012, Mother testified that she

had not received any funds from the book since prior to the

December 2010 hearing and that she did not expect to receive

further sums from the book. Accordingly that portion of the

Court’s January 18, 2011 Order stating that the $10,000 attorney

fee would be “paid no later than the date that Mother receives

the next payment relating to the book that she has or is writing”

is vacated and the judgment is due and owing from Mother to

Father.

On appeal, Mother argues that the trial court lacked subject matter jurisdiction to

modify the January 18, 2011 order regarding payment of attorney fees. We respectfully

disagree. We read the trial court’s order, supra, not as a modification of the original

judgment of $10,000, but rather as a means of enforcing that judgment. In other words, the

foregoing order does not reduce or increase the judgment against Mother. Based upon a

change in circumstances, i.e., Mother not receiving anticipated payments from her book, the

trial court merely lifted that criterion so as to enforce its previous order.

The very case that Mother relies upon in this section of her argument, Born Again

Church & Christian Outreach Ministries, Inc. v. Myler Church Building Systems of the

Midsouth, Inc., 266 S.W.3d 421 (Tenn. Ct. App. 2007), expressly states that, “[t]he filing

of a notice of appeal does not prevent the trial court from ruling on ancillary matters relating

to the enforcement or collection of its judgment.” Id. at 425, n.3 (citing First American

Trust Co. v. Franklin-Murray Development Co., L.P., 59 S.W.3d 135, 141 n.8 (Tenn. Ct.

App. 2001). It is well settled that a “trial court has the power and discretion to enforce its

orders in the way it deems best.” Wilkinson v. Wilkinson, No. W2012-00509-COA-R3-CV,

2013 WL 614708 (Tenn. Ct. App. Feb. 19, 2013).

At the hearing in this case, Mother testified that, since December 17, 2010, she had

not received any monies from her book; she further stated that she did not expect to receive

further payment. If, as Mother suggests in her brief, the trial court is precluded from lifting

the suspension of the $10,000 judgment until such time as Mother receives additional funds

from her book, then (based on Mother’s own testimony that she does not expect to receive

additional funds), the judgment would never be enforced. In addition, as set out above, the

trial court ordered Mother to pay the $10,000 into her attorney’s escrow account. There is

no dispute that she failed to comply with this order. Accordingly, we cannot conclude that

the trial court erred in removing the book payment criterion from its order so that the

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judgment could be enforced against Mother.

In her brief, Mother also contests the trial court’s June 4, 2012 order, wherein it ruled

that:

Mother shall pay to Father the sum of $15,000 in partial

payment of the attorney fees that he has incurred incident to his

defense of Mother’s petition and the filing and prosecution of

his counter-petition. Father shall be, and is hereby, awarded a

judgment against Mother in said amount. The Court finds this

judgment to be necessary for the financial care and support of

the minor child.

On appeal, Mother asserts that the fees and expenses awarded in the trial court’s June

4, 2012 order were not reasonable. In the first instance, our review of the record indicates

that Mother did not object to the reasonableness of the award at the trial level. As noted

above, “[i]ssues not raised in the trial court cannot be raised for the first time on appeal,”

Sparks v. Metro. Gov't of Nashville, 771 S.W.2d 430, 434 (Tenn. Ct. App. 1989)(citing Irvin

v. Binkley, 577 S.W.2d 677 (Tenn. Ct. App. 1978)). However, even if we allow the question,

the amount of the fees awarded is supported by Father’s attorney’s affidavit.

Mother further argues that the trial court’s award of attorney fees in its June 4 order

was based upon its findings of criminal contempt, arguing that “[c]riminal contempt citations

cannot be utilized for custody, visitation or attorney fees.” We need not address whether

Mother correctly states the law because it is clear from the record that the trial court based

its award of attorney fees on the fact that Mother had committed numerous breaches of both

the MDA and the Parenting Plan. As discussed below, both of these documents include

provisions requiring the trial court, in the event of breach, to award fees to the non-breaching

party.

V. Protective Order

On December 16, 2011, Mother caused to be issued Subpoenas Duces Tecum to

Horseshoe Hotel & Casino, Harrah’s Hotel and Casino, Goldstrike Casino Resort,

Fitzgerald’s Casino, Sam’s Town Hotel and Gambling Hall, and Hollywood Casino & RV

Park, pursuant to which she requested that the casinos produce the following:

[A]ny and all of the following documents: any and all invoices,

receipts, gambling statements, alcohol purchases, room receipts,

videotape, photographs or other documentation regarding the

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patronage of [Father] from January 1, 2010 thru the return date

of this subpoena.

The response date set forth in the subpoenas was December 27, 2011. The record shows that

although the subpoenas were issued on December 16, 2011, they were not sent to Father or

his attorney on that date. Rather, the subpoenas were placed in the United States mail on

December 20, 2011, and were accompanied by a transmittal letter from Mother’s attorney

dated December 19, 2011.

Father moved to quash the subpoenas and for a protective order, alleging that certain

of the requested documents had already been produced. In his motion, Father argues that

Mother’s subpoenas were overly broad in that they sought records that preceded the date of

the last hearing in the case, and that some of the documents sought were not relevant to any

issue currently before the court. Due to the holidays, a hearing on Father’s motion to quash

was not held before the casinos had responded to the subpoenas.

At trial, Mother attempted to admit the records that were received pursuant to the

subpoenas, including those records that pre-dated the trial court’s December 17, 2010 order.

Father objected on the ground of relevance and on the specific grounds set forth in his motion

to quash. Mother countered that the contents of the subpoenaed documents were relevant,

despite the fact that they pre-dated the December 2010 hearing, because they allegedly

demonstrated that Father had testified inconsistently at that hearing. The asserted

“inconsistency” was that Father had testified, in December 2010, that Mother had denied him

parenting time during the second half of the summer of 2010 while casino records reflected

that Father was at the casino for twelve days of the disputed period. The trial court ruled in

favor of Father.

On appeal, Mother argues that the trial court lacked subject-matter jurisdiction to enter

a protective order “regarding foreign subpoenas served within the State of Mississippi.” At

trial, Father moved the court to include, in any order from the proceedings, that Mother is not

to disseminate any of the documents that she procured from the casinos. Mother’s counsel

responded that he “did not have a problem with that.”

In her appellate brief, the entirety of Mother’s argument on this issue reads:

MissRCivP45(d) and Miss. Code Ann. Sec 11-59-11 govern

protective orders regarding foreign subpoenas served with the

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State of Mississippi.3 The rule and statute commit this

jurisdiction to the Mississippi circuit court for the Mississippi

county of issuance. In the instant case, the Circuit Court of

Tunica County, Mississippi would be the appropriate court for

the Father to seek the type of protective order issued by this

Court at paragraph 12 of the June 4, 2012 Judgment. Mother

only agreed to not disseminate the documents.

We glean from this “argument” that the issue pursued by Mother rests upon the portion of

the trial court’s order requiring Mother “to deliver all copies (with the exception of that

contained within the record in this case) to counsel for Father.” The trial court’s June 4 order

states:

During the pendency of these proceedings, counsel for Mother

caused to be issued subpoenas to various casinos in the state of

Mississippi seeking documents and things relating to Father.

The Court declined to admit these records (marked for

identification only as Exhibit 40) into evidence, finding that they

were not relevant to any issue before the Court and did not bear

on Father’s credibility. Counsel for Mother is instructed not to

disseminate the records and to deliver all copies (with the

exception of that contained within the record in this case) to

counsel for Father.

Mother points to no authority, nor do we find any in our research, which would

preclude the trial court from instructing Mother to deliver copies of the subpoenaed

documents to Father. Furthermore, from the trial court’s order, it appears that it did not

actually consider the documents as grounds for any substantive ruling. Moreover, Mother’s

argument that Father should be made to litigate this issue in the Circuit Court of Tunica

County, Mississippi is not supported by any argument in the brief and appears to overlook

the fact that Tunica County Mississippi is a forum that has no legitimate interest in the issues

raised in this case, nor do the parties appear to have any significant contact with that State.

From the record and the lack of argument in Mother’s appellate brief, we cannot conclude

3

Mississippi Code Annotated Section 11-59-11 provides:

An application to the court for a protective order or to enforce, quash or

modify a subpoena issued by a clerk of court under Section 11-59-5 must

comply with the rules or statutes of this state and be submitted to the court

in the county in which discovery is to be conducted.

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that the trial court committed reversible error in instructing Mother’s attorney to profer the

subpoenaed documents to Father’s counsel. Additionally, because the subpoenaed

documents did not form the basis for any substantive ruling, if there was error, it was

harmless. Tenn. R. App. P. 36(b).

VI. Evidence Admitted through the Testimony of Anna Cladakis

Ms. Cladakis was Father’s girlfriend at the time of the hearing in this case. The

disputed evidence, which was admitted through her testimony were “screen shots” from the

Tennessee Department of Transportation (“TDOT”) and Arkansas Department of

Transportation (“ADOT”) websites for road conditions on December 30, 2011. On that date,

Father had asked his brother to meet Mother at the McDonald’s in Brinkley, Arkansas to

exchange the child. According to the testimony, Mother did not arrived at the scheduled

meeting time of 6:00 p.m.; rather, she showed up at approximately 6:58 p.m. In response to

questions concerning her time of arrival, Mother testified in relevant part that:

A. I’m not exactly sure what time. We [Mother and her sister,

who was in the car with her] were in direct communication with

my brother-in-law. And if you can pull up records, there was a

tractor-trailer on fire on 40. It was blocked up to one lane. We

had been sitting there [for] a while.

Q. Okay. Well, interesting that you would say that because I

did actually have some records pulled up—

A. Okay.

Q. –on what traffic conditions were at the time.

A. I may can get my sister-in-law to send a picture, because I

told her to take a picture of it, too, when we went by.

Q. Let me pass to you—what I’ve handed to you is a —the first

one is a TDOT screenshot showing what the traffic conditions

were at 6:46 p.m. on December 30 th . Do you see that in the

lower right-hand corner?

A. Yes, and I do not know what TDOT is. And I’m not sure

that it’s even accurate. I know nothing about TDOT.

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Q. Okay. So you don’t know that that’s the Tennessee

Department of Transportation.

A. We weren’t in Tennessee. We were in Arkansas.

Q. Okay. Now, let’s go to the next page. Okay. Now, on the

second page, do you see the time at the bottom right-hand screen

that says December 30 th of 2011?

A. Yes.

Q. Okay. And do you see that that—the map that’s on there is

the state of Arkansas?

A. As far as I can tell.

Q. And do you see that red line going from West Memphis

down to Brinkley?

A. Sure.

In her testimony, Ms. Cladakis stated that on December 30, 2011, at Father’s request,

she had researched highway conditions in Tennessee and Arkansas by viewing the TDOT

and ADOT websites:

A. [Father] asked me to look up some traffic. . . . And I said,

oh, that’s easy, you go to the Department of Transportation. We

have that local here. Every state has it available to you. And

it’s real time.

Q. Okay.

COUNSEL FOR FATHER: Your Honor, if I may pass this to

Ms. Cladakis the exhibit that has been previously marked [i.e.,

containing the screenshots from TDOT and ADOT].

COUNSEL FOR MOTHER: Objection—

COUNSEL FOR FATHER: —for identification only.

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THE COURT: What are we doing, to show that there wasn’t

traffic?

COUNSEL FOR FATHER: The roads were clear from

Memphis to Brinkley, Arkansas is what we’re showing.

COUNSEL FOR MOTHER: It’s still hearsay. She has no

personal knowledge of what was the accurate—

THE COURT: Are these Department of Transportation

documents that you received—

COUNSEL FOR FATHER: No, they—what happened, as she

just explained so I’m not offering testimony, you can log on at

any given time to the DOC website in certain—

* * *

THE WITNESS: I printed it and sent it to [Father] . . . on the

email . . .

THE COURT: You know, those are self-authenticating

documents but I’m not sure about pulling them off the Internet.

But if you want—I’m going to let her tell us whether she relied

on those for traffic, and I need a date and time.

* * *

Q. Now, Ms. Cladakis, does the first page reflect what was

available on the [TDOT] website?

A. Yes, it does.

Q. And what was the date and time of the screenshot?

A. At the time that we—that I sent this, it was December 30 th at

6:47 p.m.

Q. Now, is the second page a screenshot from the [ADOT] site?

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A. Yes.

Q. And what is the date and time of the screenshot?

A. It is now December 30 th at 7:00 p.m..

COUNSEL FOR FATHER: Your Honor, I would move for

those to be admitted into evidence.

COUNSEL FOR MOTHER: Your Honor, same objection.

They’re still hearsay.

THE COURT: They are hearsay, but I’m going to let her testify

whether she found there was any congestion or not.

Q. Now, based on your review of those documents, did it

appear that there had been an accident that was impeding traffic

flow on Interstate 40 between Memphis and Brinkley,

Arkansas?

COUNSEL FOR MOTHER: Objection on personal knowledge,

as well, Your Honor. She wasn’t out there.

THE COURT: I’m going—you know, I—this is the way I drive.

Any responsible driver does it. And I want her to testify to it.

Q. Ms. Cladakis, based on your review of the Department of

Transportation websites, were you able to ascertain whether

there was a traffic delay on I-40 between Memphis and

Brinkley?

A. It was wide open.

On appeal, Mother argues that the screenshots were improperly admitted. Father

argues that Mother’s objection to the admission was based solely on hearsay, and that the

trial court sustained that objection, stating “[t]hey are hearsay.” Although Father contends

that Mother did not object to Ms. Cladakis’ lack of personal knowledge concerning traffic

conditions on December 30th, it appears from the foregoing that she did make that objection.

Regardless, we have reviewed the record and it does not appear that the trial court actually

admitted the screenshots into evidence; rather, they were marked for identification only.

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Furthermore, from our review, it does not appear that either Ms. Cladakis’ testimony, or the

Department of Transportation screenshots formed the basis for any of the trial court’s

substantive rulings. At most, these documents provided additional support for a finding that

Mother was late for the drop-off—a fact that Mother had already admitted in her testimony.

Accordingly, if there was error surrounding the handling of the TDOT or ADOT screenshots,

it was harmless error. Tenn. R. App. P. 36(b).

VII. Dr. Amy Beebe’s Testimony

The record reveals that Amy Beebe is a psychologist, licensed to practice in the State

of Tennessee. The referring questions that Dr. Beebe was asked to examine were whether

the child appeared to be on grade level, and whether the A Beka curriculum was on par with

the local public school curriculum. At trial, she submitted her Curriculum Vitae, which sets

forth her education and work experience. In relevant part, Dr. Beebe testified that she has

been licensed since 1992 to do “therapy as well as [] testing and evaluation for learning

disabilities, school placement.” In addition, Dr. Beebe stated that she has done “gifted

assessments for Shelby County Schools.” Dr. Beebe is on the board of the Bodine School,

and has worked with other schools in and around the Memphis area. Based upon this

testimony, Father tendered Dr. Beebe as an expert in the areas of psychology and educational

assessment:

COUNSEL FOR FATHER: And, Your Honor, I tender Dr.

Beebe as a witness in the areas of child psychology and

educational assessment.

Mother’s attorney then asked for permission to voir dire the witness, which permission was

granted. Following voir dire, Mother’s attorney objected to Dr. Beebe’s being admitted as

an expert on the following grounds:

COUNSEL FOR MOTHER: Okay. Your Honor, I think we

would object to this witness testifying in the area of

psycholog[y]. She has not examined any medical records or

clinical records of [the child].

We would also object to her testifying as an expert in

regard to educational assessment. We think a 90-minute time

frame to examine [the child] and the records not being there

before he was being examined makes her opinion—makes her

opinion very questionable in this matter.

The transcript continues:

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THE COURT: Okay. Do you [Mother’s attorney] want to

address the question of [Dr. Beebe’s] qualifications or do you

want me to just rule?

COUNSEL FOR FATHER: Your Honor, to the extent that

[Father’s] objection was with respect to Dr. Beebe being

tendered as a child psychologist expert, we do not anticipate

offering testimony from her about [the child’s] psychological

state.

Now, [Father’s] objection suggested that there were

psychological records for this child that should have been

reviewed, which is not the case.

THE COURT: I have a question [about] that. Clinical records,

are there clinical records somewhere?

COUNSEL FOR FATHER: There are not, Your Honor. . . . But

Dr. Beebe’s psychological background certainly comes into play

with all the educational assessments and the interpretation of

the—

THE COURT: Let me stop you. Dr. Beebe’s had—you may not

know Dr. Beebe. She’s testified many times in this courthouse

including in this courtroom. You are correct that it’s primarily

on a psychological basis.

But her testimony just now that she does assessment for

the city schools, county schools, private schools shows that she

has extensive experience and sort of testing that she says she

does, and I don’t know whether she did it on this child. But I

think she has the expertise and she’s been an expert for many

years around here. She’s one of the few who will still come to

court and testify, as we all know. So I’m willing to declare her

an expert.

A trial court's decision concerning the competency of an expert witness is reviewed

by this Court under an abuse of discretion standard. As discussed by this Court in Carpenter

v. Klepper, 205 S.W.3d 474 (Tenn. Ct. App. 2006):

A trial court has broad discretion in determining the

“admissibility, qualifications, relevancy and competency of

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expert testimony.” McDaniel v. CSX Transp., 955 S.W.2d 257,

263 (Tenn.1997). Questions regarding the qualifications of

expert witnesses are left to the trial court's discretion and may be

overturned only if that discretion is abused. McDaniel, 955

S.W.2d at 263. The Tennessee Supreme Court has defined an

abuse of discretion to mean “an erroneous conclusion or

judgment on the part of the trial judge-a conclusion that was

clearly against logic (or reason) and not justified.” Foster v.

Amcon Int'l, Inc., 621 S.W.2d 142, 145 (Tenn. 1981).

Carpenter, 205 S.W.3d at 477. Based upon Dr. Bebee’s educational background and specific

experience with local schools, we cannot conclude that the trial court’s overruling of

Mother’s objection was error. From the record, Dr. Bebee appears to be well qualified to

testify as an expert in this case.

After being admitted as an expert, Dr. Beebe testified, concerning the child, that she:

(1) had reviewed the child’s records from his elementary school; (2) had spent approximately

one and one-half hours with the child; (3) she was familiar with the A Beka home schooling

program prior to being consulted on this case; (4) she works with many children who are

home schooled; (5) performed an educational screening of the child; (6) discerned that the

child was average to above average in all areas according to standard scores; (7) discerned

that the child tested exceptionally well in math and phonics; (8) discerned that the child likely

had an above average IQ. The foregoing testimony was made relevant to this case by

Mother’s allegation that “[s]ince the change in custody, [Son’s] circumstances have

deteriorated due to the actions of Father. Father enrolled the child in an unaccredited home

school program.” Dr. Beebe testified that A Beka was, in fact, accredited: “[The A Beka

Program] is nationally recognized and accredited. It’s also used in many . . .private Christian

school settings.” Dr. Beebe was able to give some history of the A Beka Program, and stated

that it was thirty-years old, and had been “researched and tested.” Dr. Bebee also testified

that she had worked with other children who were enrolled in the A Beka Program.

The fact that Dr. Beebe spent ninety minutes with the child is not dispositive of the

question of her qualification to testify as to the A Beka curriculum, or as to Son’s grade level.

Furthermore, Mother’s argument that Dr. Beebe failed to review any medical or clinical

records in this case is disingenuous given the fact that none exist.

Mother further argues that the trial court erred “in authorizing Dr. Beebe to testify

regarding speech therapy pursuant to Rule 702 and 703 of Evidence.” It is clear from the

record that, contrary to Mother’s position, Dr. Beebe was not proferred as an expert in the

area of speech therapy. In fact, her testimony concerning the child’s speech therapy was

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limited to the way that speech and language problems “dovetail” (in Dr. Beebe’s words) with

the child’s educational needs. Dr. Beebe testified broadly that she had experience with

children who have speech and language issues, and that she often refers children with these

issues to speech therapists. In short, her experience with speech therapy is based mostly on

the referrals she makes; Dr. Beebe specifically testified that she does not diagnose speech

disorders, but only recognizes when there is a possibility that a child may need extra help in

this area. At that point, she simply refers the child to a qualified speech therapist.

Concerning Son, the extent of Dr. Beebe’s testimony regarding speech therapy was that,

during her evaluation, she noticed that he stutters, and thus concluded that he was in need of

therapy. She noted broadly that “[w]hen you have speech and language problems, it can

impact your ability to function in the classroom, especially with reading and following

directions. There is a dovetail.” Dr. Beebe’s observation that a child with speech and

language problems might have difficulty in the classroom is an opinion based in logic, not

expertise. Accordingly, we cannot conclude that Dr. Beebe was allowed to testify outside

the parameters of her qualifications as set by the trial court.

VIII. Father’s Attorney Fees on Appeal

Father has asked this Court to award his attorney fees and expenses incurred in

defense of this appeal. As briefly noted above, the parties’ MDA, which was incorporated

into the Final Decree of Divorce, provides, in relevant part that:

19. In the event that it should be determined, either by this

Court or by any other court of competent jurisdiction, that either

party has willfully breached any provision of this Agreement,

then the breaching party shall pay the other party all reasonable

attorneys’ fees and costs incurred in the enforcement of any such

provision or provisions as such are adjudged by the Court upon

full hearing.

Likewise, the Parenting Plan, which was also incorporated into the Final Decree

of Divorce provides:

In the event that it should be determined, either by this Court or

by any other court of competent jurisdiction, that either party has

breached any provision of this Plan, then the breaching party

shall pay to the other party all reasonable attorneys’ fees and

costs incurred in the enforcement of any such provision or

provisions as such are adjudged by the Court upon full hearing.

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Based upon the foregoing provisions, and the fact that we have affirmed the trial

court’s findings concerning various acts of contempt on the part of Mother for violation of

the mandates of the Parenting Plan and the MDA, we are of the opinion that Father is entitled

to his fees and expenses incurred in defense of this appeal. Accordingly, we grant Father’s

request for his attorney fees and expenses and remand for a determination of the amount

thereof.

For the foregoing reasons, we reverse the order of the trial court concerning

modification of Father’s child support obligation. The order of the trial court is affirmed in

all other respects. The case is remanded to the trial court for further proceedings as may be

necessary and are consistent with this Opinion, including, but not limited to, calculation of

the amount of attorney’s fees and expenses incurred by Father in defense of this appeal and

entry of judgment for same. Costs of the appeal are taxed against the Appellant Mother, and

her surety.

_________________________________

J. Steven Stafford, Judge

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