Andrew Douglas Sprague v. Mary Nelle Sprague

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 8, 2013

ANDREW DOUGLAS SPRAGUE v. MARY NELLE SPRAGUE

Appeal from the Circuit Court for Hamilton County

No. 08D1121 W. Jeffrey Hollingsworth, Judge

No. E2012-01133-COA-R3-CV - Filed June 18, 2013

In this post-divorce case, the issues are twofold: whether the trial court erred in awarding

Mary Nelle Sprague (“Mother”) a judgment against her former spouse, Andrew Douglas

Sprague (“Father”), in the amount of $5,604.65 for uncovered medical expenses pursuant to

the terms of the parties’ parenting plan; and whether the trial court erred in the process of

holding Father in criminal contempt of court. We modify the medical expense award by

decreasing it to $2,124.32, the amount claimed by Mother and the amount established by the

proof. Further, we reverse the criminal contempt finding because Father was not provided

adequate notice of the criminal contempt charges as required by Tenn. R. Crim. P. 42(b).

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

Reversed in Part and Modified in Part; Otherwise Affirmed; Case Remanded

C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which D. M ICHAEL

S WINEY and T HOMAS R. F RIERSON, II, JJ., joined.

Michele L. Coffman, Chattanooga, Tennessee, for the appellant, Andrew Douglas Sprague.

Sandra J. Bott, Chattanooga, Tennessee, for the appellee, Mary Nelle Sprague.

OPINION

I.

Father and Mother were divorced by final judgment entered June 2, 2009. The

judgment incorporates the parties’ marital dissolution agreement and their agreed permanent

parenting plan as to two minor children: a son, Aiden Foster Sprague, now age 7, and a

daughter, Kieren McCall Sprague, age 5. Mother was designated as the primary residential

parent and Father was ordered to pay child support of $836 per month. The plan provides

that the parties are to jointly make major decisions regarding the children’s education, non-

emergency health needs, religious upbringing, and extracurricular activities, but that “[i]f no

decision can be made jointly, Mother will have the tiebreaking vote.” The order further

requires Father to maintain health insurance for the children and $250,000 of life insurance

for the benefit of the children with Mother being the children’s trustee. The parties were

each required to pay for medical expenses not covered by insurance on a pro rata basis in

accordance with their incomes, which resulted in Father being responsible for paying 47%

and Mother 53% of these expenses.

On September 17, 2009, Mother filed a petition for contempt alleging that Father had

violated the parenting plan in the following ways: (1) failing to timely pay child support; (2)

cohabitating with his girlfriend in violation of the provision that “[n]either parent shall have

the children overnight in the presence of an unrelated member of the opposite sex,” (3)

exposing the children to animal dander in violation of the order’s express prohibition because

of Aiden’s severe asthma; (4) failing to provide proof of life insurance; (5) failing to provide

dental and optical insurance coverage; and (6) failing to pay his share of the children’s

uncovered medical expenses. Father answered and filed a counterclaim for contempt.

Mother filed a motion asking the court to suspend Father’s residential time with the children

or to require supervised visitation because Father had “expos[ed] the children to an indoor

cat, causing the children to suffer continual allergic reactions.” The trial court entered an

order on January 27, 2010, reflecting Mother’s agreement to withdraw her motion “based

upon [Father’s] agreement to remove the cat from his residence.” The trial court further

ordered Father to pay Mother “a sum representing four months of child support arrearages,”

and ordered the parties to attend mediation to resolve the remaining issues. Following

mediation, the trial court entered an order on March 3, 2010, incorporating the parties’

agreement that required, among other things, the parties to provide each other with proof of

uncovered medical expenses and required Father to “provide proof of medical insurance and

life insurance coverage of $250,000 with the children as the minor beneficiaries[.]” The

agreed order granted Mother a judgment in the amount of $3,387.50 “for medical

arrearages.”

On September 13, 2010, Mother filed another petition for contempt alleging that

Father (1) “has refused to provide sufficient healthcare insurance information for the minor

children covered under his current wife[’s policy]”; (2) is “ordering generic prescriptions for

the children when their treating [p]ediatrician specifically stated to only use brand-name

prescriptions”; (3) “continues to pay child support in an untimely manner”; (4) “failed to

provide any proof to [Mother] that he has complied with the life insurance coverage

[requirement] for the benefit of the parties’ minor children”; and (5) “failed to reimburse

[Mother] for the medical bills for minor children submitted to” him. Father responded with

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another “[counterclaim] for contempt or modification of [the] parenting plan.” He later

voluntarily dismissed the counterclaim. The court held a hearing in March 2011 on the

portions of Mother’s contempt petition seeking injunctive relief. On April 14, 2011, the trial

court entered an order finding, in pertinent part, the following:

[Father] shall not take the parties’ minor children to any

healthcare professional other than the children’s current treating

physicians . . . . neither party will change any medication either

child is currently taking unless it is by order of the treating

physician; that both parties will administer to the children only

those medications which have been prescribed by the treating

physician and neither party shall attempt to influence or prompt

a treating physician to prescribe generic versus name-brand

medications for the parties’ children. Both parties will

immediately notify the other of any changes in medications

which have been ordered by treating physicians and promptly

notify one another of doctor[’]s appointments.

(Paragraph numbering in original omitted.)

A further hearing took place on December 12, 2011. Both parties testified and

provided voluminous documents regarding medical expenses each had incurred for the

children’s care, which expenses were substantial because Aiden suffers from severe asthma

and Kieren, who was three years old at the time of the hearing, suffers from epilepsy. The

trial court entered an order February 2, 2012, finding as follows in pertinent part:

This case has a long and tortured history of petitions for

contempt, agreements reached at mediation, orders incorporating

agreements reached at mediation and additional petitions for

contempt, alleging breach of those agreements.

* * *

Upon review of the testimony given at all of the hearings and

the orders and agreements entered, one thing has become clear.

The Father has been in willful contempt of this Court’s orders.

There is a consistent pattern of the Father failing or refusing to

comply with court orders, which bring about petitions for

contempt. The Father then goes to mediation and agrees to

comply, to avoid a hearing. Then, after the agreed order is

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entered and the hearing cancelled, the Father goes back to his

previous behavior. The Court finds that [Father] is in willful

contempt of this Court for violation of several orders. The

Court is going to reserve punishment on that contempt in the

hope that the parties can cooperate and avoid the necessity of

imposing punishment, which could include incarceration.

The trial court granted Mother a judgment against Father in the amount of $5,604.65 for “the

Father’s share of uncovered medical expenses incurred since the previous judgment noted

in the March, 2010 order.” The court also entered a wage assignment order directing

Father’s employer to withhold from his earnings a child support payment in the amount of

$385.85 every two weeks. Father timely filed a notice of appeal.

II.

Father raises two issues for our consideration:

1. Whether the trial court erred in granting Mother a judgment

against Father in amount of $5,604.65 for his share of uncovered

medical expenses.

2. Whether the trial court erred in holding Father in willful

contempt of court.

III.

In this non-jury case, our standard of review is de novo upon the record of the

proceedings below; however, the record comes to us with a presumption of correctness as

to the trial court’s factual determinations, a presumption we must honor unless the evidence

preponderates otherwise. Tenn. R. App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d

177, 181 (Tenn. 1995). There is no presumption of correctness as to the trial court’s

conclusions of law. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002); Campbell

v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). In this case, the determinative issue

on the court’s contempt finding is whether, pursuant to the provisions of Tenn. R. Crim. P.

42, Father had sufficient notice that he was facing a charge of criminal contempt. This is a

question of law. State ex rel. Farris v. Bryant, No. E2008-02597-COA-R3-CV, 2011 WL

676162 at *5 (Tenn. Ct. App. W.S., filed Feb. 24, 2011) (“The issues regarding the

sufficiency of the contempt notice given to Father present questions of law.”).

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IV.

A.

We first address the correctness of the trial court’s order awarding Mother $5,604.65

for Father’s share of uncovered medical expenses. Father argues that the evidence

preponderates against the amount of the award. We agree and modify the award to

$2,124.32, the total amount claimed by Mother for uncovered medical expenses. We also

note that this is the amount established by the proof at trial. Both Mother and Father testified

regarding the amount of medical expenses they had incurred for the children’s care. The

parties agreed that, pursuant to the divorce judgment, Mother was responsible for 53% and

Father responsible for 47% of these expenses. They disagreed on many other things,

including whether certain prescription costs for medications were necessary or duplicative,

whether Father had willfully ordered generic medications instead of name-brand as ordered

by the children’s doctors, and whether each party had provided sufficient and timely proof

of expenses to the other. Each party submitted extensive documentation in support of his or

her claim of incurred medical expenses.

Mother testified as follows regarding her claim against Father for his portion of the

uncovered medical expenses:

Q: Have you prepared and did we furnish several weeks ago to

[Father’s] counsel . . . a spreadsheet indicating what you have

paid with regard to the medical expenses for the children and

what you believe [Father] has paid?

A: Yes.

Q: And is this, in fact, the spreadsheet?

A: Yes.

Q: And is there a bottom line to this as to how much you feel

you are owed?

A: The difference at this point after [Father] in November

submitted everything that I had not received up to that point, it’s

$2,124.32.

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Mother proffered her spreadsheet itemizing the medical expenses into evidence and it was

admitted as an exhibit. The spreadsheet summarizes the total expenses she incurred during

the time period at issue as $7,075.21 and the total expenses credited to Father as $3,813.78.

According to Mother’s testimony, and her spreadsheet, the difference between what Father

actually paid and what he should have paid for uncovered medical expenses was $2,124.32.

Father submitted a similar spreadsheet that was also admitted into evidence.

According to Father’s testimony, he incurred $6,500.82 in uncovered medical expenses and

Mother incurred $5,604.65. The trial court’s judgment awarding Mother $5,604.65 indicates

that the court incorrectly based its judgment on Father’s calculation of the gross expenses

incurred by Mother rather than basing the award on Father’s pro rata share of expenses as

calculated by Mother. Construing all of the evidence most favorably to Mother, the evidence

preponderates in favor of a maximum award of the full amount claimed by her – $2,124.32.

We therefore modify the trial court’s award to Mother for uncovered medical expenses and

award her a judgment for $2,124.32 and affirm as modified.

B.

We next address the legality of the trial court’s order holding Father in contempt of

court. In addition to the language quoted in part I above, the trial court’s order states that

“[t]he Father is found to be in contempt of court. The issue of punishment of that contempt

is withheld and will be determined based on the Father’s compliance with this Order.” The

trial court entered no other findings of fact regarding its contempt ruling. On appeal, Father

argues that he was not provided adequate notice that he was being charged with criminal

contempt and that the contempt finding must be reversed for lack of compliance with the

notice requirements of Tenn. R. Crim. P. 42. We agree and reverse the contempt ruling.

There are two kinds of contempt – civil and criminal. State v. Beeler, 387 S.W.3d

511, 520 (Tenn. 2012); Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996). Generally

speaking, a court’s classification of contempt as civil or criminal “depend[s] upon the action

taken by the court to address the contempt.” Ahern v. Ahern, 15 S.W.3d 73, 78 (Tenn.

2000). “Civil contempt is remedial in character and usually employed to compel obedience

to a court order.” Beeler, 387 S.W.3d at 510; see Doe v. Bd. of Prof’l Responsibility, 104

S.W.3d 465, 473 (Tenn. 2003). As stated by the Supreme Court, penalties for civil contempt

are coercive and a contemnor may avoid or end them by complying with the court’s order:

If the contemnor has refused to perform an act mandated by the

court’s order and the contemnor has the ability to comply with

the order at the time of the contempt hearing, the court may fine

or imprison the contemnor until the act is performed. Tenn.

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Code Ann. § 29–9–104 (1980 & 2000); see Ahern, 15 S.W.3d

at 79. Thus, the contemnor possesses the “keys to the jail” and

can purge the contempt through compliance with the court’s

order. Id.

Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 511 (Tenn.

2005).

In contrast to civil contempt, criminal contempt is “punitive in character” and

“intended to preserve the power and vindicate the dignity and authority of the law, and the

court as an organ of society.” Beeler, 387 S.W.3d at 520 (internal quotation marks omitted).

“A party who is in criminal contempt cannot be freed by eventual compliance.” Ahern, 15

S.W.3d at 79; see also Black, 938 S.W.2d at 398 (observing that “sanctions for criminal

contempt are generally both punitive and unconditional in nature”). The Supreme Court has

recently “cautioned that criminal contempt charges should be used sparingly.” Beeler, 387

S.W.3d at 520. Although the “power to punish for contempt has long been regarded as

essential to the protection and existence of the courts and the proper administration of justice

. . . the courts’ contempt power is now purely statutory.” Konvalinka v. Chattanooga-

Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 354 (Tenn. 2008); see Tenn. Code Ann. § 29-

9-101 to -108 (2012).

This court has observed that “[t]he threshold issue in every appeal from a finding of

contempt is whether the contempt is civil or criminal.” Jones v. Jones, 01A01-9607-CV-

00346, 1997 WL 80029 at *2 (Tenn. Ct. App. M.S., filed Feb. 26, 1997). The trial court did

not specify in this case whether Father’s contempt was criminal or civil. It is clear, however,

that the court’s finding was for criminal contempt. The contempt holding was not

conditioned on Father correcting or remedying a failure to comply with a past order, nor was

Father given an opportunity to purge his contempt. See Ahern, 15 S.W.3d at 79 (noting that

with civil contempt, one “can purge the contempt by complying with the court’s order”). The

trial court’s order found Father in contempt but stated that it “was going to reserve

punishment on that contempt.” Thus, although the court did not impose any punishment on

Father, its action in “reserving punishment” pending “Father’s compliance with [the court

order finding him in contempt]” is tantamount to the imposition of a suspended sentence.

We have recently observed that “[i]t 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.” Coffey v. Coffey, E2012-00143-COA-R3-CV, 2013 WL 1279410 at *8

(Tenn. Ct. App. E.S., filed March 28, 2013). We have further stated on several occasions

that “[t]here is no such thing as a suspended sentence for civil contempt.” State, DHS v.

Thomason, E2005-00327-COA-R3-JV, 2006 WL 770468 at *3 (Tenn. Ct. App. E.S., filed

March 27, 2006) (quoting Mayer v. Mayer, 532 S.W.2d 54, 60 (Tenn. Ct. App. 1975));

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Haynes v. Haynes, 904 S.W.2d 118, 122 (Tenn. Ct. App. 1995). We hold that the trial court

held Father in criminal contempt.

“Contempt is categorized as ‘direct’ or ‘indirect,’ depending on whether the

misbehavior occurred in the court’s presence.” Beeler, 387 S.W.3d at 520. Because the trial

court held Father in criminal contempt for actions that occurred outside the court’s presence,

the contempt was indirect, and it was incumbent upon the court to ensure that the notice and

procedural due process requirements of Tenn. R. Crim. P. 42(b) were satisfied. When an

accused is charged with indirect criminal contempt, as in the present case, “proceedings for

criminal contempt must comply with Tenn. R. Crim. P. 42(b),” Long v. McAllister-Long,

221 S.W.3d 1, 13 (Tenn. Ct. App. 2006), which provides as follows:

(b) D ISPOSITION ON N OTICE AND H EARING. A criminal contempt

shall be prosecuted on notice, except as provided in subdivision

(a) of this rule.1

(1) C ONTENT OF N OTICE. The criminal contempt notice shall:

(A) state the time and place of the hearing;

(B) allow the defendant a reasonable time to prepare a defense;

and

(C) state the essential facts constituting the criminal contempt

charged and describe it as such.

(2) F ORM OF N OTICE. The judge shall give the notice orally in

open court in the presence of the defendant or, on application of

the district attorney general or of an attorney appointed by the

court for that purpose, by a show cause or arrest order.

(Capitalization in original.) The court in Long examined Rule 42’s notice requirements at

length, providing the following guiding principles in pertinent part:

Tenn. R. Crim. P. 42(b) requires that parties facing a criminal

contempt charge be given explicit notice that they are charged

with criminal contempt and must also be informed of the facts

giving rise to the charge. While parties seeking to hold another

1

Subdivision (a) pertains to direct criminal contempt and thus is inapplicable here.

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in criminal contempt should draft their petitions to comply with

Tenn. R. Crim. P. 42(b)’s notice requirements, the court in

which a petition for criminal contempt is filed must, in the final

analysis, assure that the accused party receives adequate notice

of the charges he or she faces.

Adequate notice is notice that is clear and unambiguous to the

average citizen. Because the same conduct can constitute both

civil contempt and criminal contempt and because both

contempt proceedings may carry with them the possibility of

incarceration, it is imperative that notice specifically charge a

party with criminal contempt. Adequate notice encompasses,

but is not limited to, the mandates of Tenn R. Crim. P. 42(b),

which require that notice state the time and place of the hearing,

allow the defendant reasonable time to prepare a defense, and

state succinctly for the accused the “essential facts” constituting

the charge. Essential facts are those which, at a minimum, (1)

allow the accused to glean that he or she is being charged with

a crime, rather than being sued by an individual, (2) enable the

accused to understand that the object of the charge is

punishment—not merely to secure compliance with a previously

existing order, and (3) sufficiently aid the accused to determine

the nature of the accusation, which encompasses the requirement

that the underlying court order allegedly violated by the accused

is itself clear and unambiguous.

Long, 221 S.W.3d at 13-14 (internal citations omitted).

This court has quite frequently reversed a finding of criminal contempt for failure to

comply with Rule 42(b)’s notice requirements. See, e.g., Bailey v. Crum, 183 S.W.3d 383,

387-89 (Tenn. Ct. App. 2005); Storey v. Storey, 835 S.W.2d 593, 599-600 (Tenn. Ct. App.

1992).2 In this case, we must again reverse, for the same reasons stated in Bailey, Storey, and

2

See also State ex rel. Farris v. Bryant, E2008-02597-COA-R3-CV, 2011 WL 676162 at *6-7

(Tenn. Ct. App. W.S., filed Feb. 24, 2011); Brown v. Batey, M2009-02020-COA-R3-JV, 2010 WL 3155189

at *4-5 (Tenn. Ct. App. E.S., filed Aug. 9, 2010); McLean v. McLean, E2008-02796-COA-R3-CV, 2010 WL

2160752 at *5-6 (Tenn. Ct. App. E.S., filed May 28, 2010); Sims v. Williams, M2004-02532-COA-R3-CV,

2006 WL 223694 at *4-5 (Tenn. Ct. App. M.S., filed Jan. 27, 2006); McPherson v. McPherson, M2003-

02677-COA-R3-CV, 2005 WL 3479630 at *5 (Tenn. Ct. App. M.S., filed Dec. 19, 2005); Weissfeld v.

Weissfeld, E2004-00134-COA-R3-CV, 2004 WL 2070979 at *4-5 (Tenn. Ct. App. E.S., filed Sept. 16,

(continued...)

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the ten unreported cases cited in footnote 2. Father was not afforded sufficient notice that

he was charged with criminal contempt. He was not “given explicit notice that [he was]

charged with criminal contempt,” nor was he “informed of the facts giving rise to the

charge.” Long, 221 S.W.3d at 13. None of the pleadings notified Father that he was being

tried for criminal contempt. Neither did the show cause orders issued by the trial court,

which ordered Father to appear and show cause “why he would not be held in contempt of

court.” There is nothing in the record suggesting that the mandate of Tenn. R. Crim. P.

42(b)(1)(C), which requires notice that “state[s] the essential facts constituting the criminal

contempt charged and describe[s] it as such,” was satisfied here. Nor can we say that under

the circumstances, “it is clear that [Father] knew he was facing serious charges of criminal

contempt.” See LaDue v. LaDue, E2004-02481-COA-R3-CV, 2005 WL 2043524 at *4

(Tenn. Ct. App. E.S., filed Aug. 25, 2005) (holding sufficient Rule 42 notice under totality

of the circumstances).

Mother argues that Father waived his argument of insufficient notice by failing to

present it to the trial court in his post-trial motion to alter or amend. In Simerly v. Norris,

the Court of Criminal Appeals reversed a conviction of criminal contempt for “failure of the

notice to identify the proceeding as criminal contempt,” and addressed the waiver issue as

follows:

Appellant did not challenge the sufficiency of the notice by

motion, and we have explored the question of whether he

waived the defect. We think a charge of criminal contempt is

subject to the same rules as other criminal charges insofar as the

time to raise objections for defects in the notice is concerned.

Objections not raised before trial are waived, except where the

notice fails to . . . charge an offense. The latter objections may

be raised any time. Tennessee Rule of Criminal Procedure

12(b)(2).

The notice itself being deficient and there being no facts or

circumstances that will supply or excuse the deficiency, it

follows that the notice fails to charge an offense. Appellant may

raise the objection here.

2

(...continued)

2004); Jones, 1997 WL 80029 at *3-4; Sanders v. Sanders, 01A01-9601-GS-00021, 1997 WL 15228 at *2-3

(Tenn. Ct. App. M.S., filed Jan. 17, 1997); Pritchard v. Pritchard, 02A01-9505-CH-00108, 1996 WL 266653

at *2 (Tenn. Ct. App. W.S., filed May 15, 1996); Walker v. Walker, 02A01-9209-CH-00263, 1993 WL

327826 at *3-4 (Tenn. Ct. App. W.S., filed Aug. 20, 1993).

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Simerly, No. 1071, 1987 WL 8315 at *9 (Tenn. Crim. App., filed March 26, 1987).

Furthermore, in Cooner v. Cooner, this court addressed the issue of whether “a person

accused of criminal contempt [who] files an answer to the petition for contempt and appears

for trial with counsel who presents no demand for due process” thereby waives the issue of

due process. We concluded that “the constitutional right of due process requires that the

sentence in the present case be vacated and that the cause be remanded with direction to

dismiss the petition for criminal contempt.” Cooner, 01A01-9701-CV-00021, 1997 WL

625277 at *10-11 (Tenn. Ct. App. E.S., filed Oct. 10, 1997). We likewise conclude that

Father in this case did not waive his due process claim of lack of notice charging an offense

and that he may raise the issue of lack of notice on appeal. In light of our holdings, Mother’s

request to find this appeal frivolous is denied.

V.

The judgment of the trial court holding Father in criminal contempt is reversed and

the petition for contempt is dismissed. The trial court’s award to Mother for uncovered

medical expenses is modified to $2,124.32 and affirmed as modified. Costs on appeal are

taxed to the appellee, Mary Nelle Sprague. The case is remanded to the trial court, pursuant

to applicable law, for enforcement of the trial court’s judgment as modified and for collection

of costs assessed below.

__________________________________________

CHARLES D. SUSANO, JR., PRESIDING JUDGE

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