Caroline Brown Smithwick v. Fred Barksdale Smithwick, IV

11/12/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 17, 2025 Session

CAROLINE BROWN SMITHWICK v. FRED BARKSDALE

SMITHWICK, IV

Appeal from the Circuit Court for Shelby County

No. CT-4078-20 Damita J. Dandridge, Judge

___________________________________

No. W2024-00081-COA-R3-CV

___________________________________

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

to modify the permanent parenting plan and for contempt. The trial court changed the

children’s primary residential parent from Mother to Father. Although the trial court made

a change in custody, it applied Tennessee Code Annotated section 36-6-101(a)(2)(C),

which addresses modification of a residential schedule. Tennessee Code Annotated section

36-6-101(a)(2)(B), which addresses modifications of custody, is the applicable statute. The

trial court also charged Mother with one child’s tuition. In doing so, the trial court failed

to comply with the requirements of the Child Support Guidelines. As such, we vacate the

order: (1) modifying the permanent parenting plan; (2) modifying the Child Support

Worksheet, and (3) charging Mother with the child’s private school tuition. The trial court

also charged Mother with retroactive child support, found her guilty of three counts of civil

contempt for alleged violations of the permanent parenting plan, and ordered her to pay

Father’s attorney’s fees as punishment for the contempt. Because the record does not

support the trial court’s findings of contempt, we reverse the contempt holdings and the

award of attorney’s fees to Father. Because there is no basis for an award of retroactive

child support, we also reverse that holding.

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

Vacated in Part; Reversed in Part; and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,

P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

Mitchell D. Moskovitz and Kirkland Bible, Memphis, Tennessee, for the appellant,

Caroline Brown Smithwick.

Joseph W. Smith, Memphis, Tennessee, Donald Capparella and Jacob A. Vanzin,

Nashville, Tennessee, for the appellee, Fred Barksdale Smithwick, IV.

OPINION

I. Background

Appellant Caroline Brown Smithwick (“Mother”) and Appellee Fred Barksdale

Smithwick, IV (“Father”) are the parents of three minor children, Eli (d/o/b December

2012), Ethan (d/o/b January 2014), and Ellie (d/o/b October 2016) (together, the

“Children”). On March 17, 2021, the parties were divorced by final decree of the Circuit

Court for Shelby County (“trial court”). In connection with their divorce, the parties agreed

on a permanent parenting plan (“PPP”) for the Children, and this plan was incorporated

into the final decree of divorce. As relevant here, under the PPP, Mother was named

primary residential parent, with 237 days; Father was granted 128 days. Based on their

respective incomes and parenting time, Father was ordered to pay $605.00 per month in

child support, and Mother had no support obligation. Concerning decision-making

authority, the PPP provided:

II. DECISION-MAKING

A. DAY-TO-DAY DECISIONS

Each parent shall make decisions regarding the day-to-day care of a child

while the child is residing with that parent, including any emergency decision

affecting the health or safety of a Child.

B. MAJOR DECISIONS

Major decisions regarding each child shall be made as follows:

Educational decisions . . . joint

Non-emergency health care . . . joint

Religious upbringing . . . joint

Extracurricular activities . . . joint

The parties shall have a good faith duty to discuss all major decisions

with one another and attempt to reach a joint decision . . . .

So long as Mother and/or her family remain responsible for paying

the [C]hildren’s private school tuition, Mother shall have final decision-

making authority with regard to education. It is Mother’s contemplation that

the [C]hildren will remain in private school.

Dr. Siegel and Dr. Magdovitz are contemplated to remain the

[C]hildren’s pediatricians, and Dr. Byrd is contemplated to remain the

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[C]hildren’s dentist.

Concerning the Children’s health insurance, the PPP provided:

D. HEALTH AND DENTAL INSURANCE

Reasonable health insurance on the child or children will be . . .

maintained by the [M]other[.]

Proof of continuing coverage shall be furnished to the other parent

annually or as coverage changes.

On February 28, 2022, less than one year after the parties’ divorce, Father filed a

petition to modify the PPP. Therein, Father asserted that a material change in circumstances

existed such that modification of the PPP was necessary and in the Children’s best interests.

Specifically, Father’s petition stated:

[T]here currently exists a material change in circumstances affecting the best

interest of the minor children, in that the needs of the [C]hildren related to

their age as well as significant changes in the parties’ living conditions, along

with other circumstances warrants modifying the residential schedule and

final decision-making authority in the best interest of the minor children,

pursuant to Tenn. Code Ann. § 36-6-101(a)(2)(c).

***

[T]he [C]hildren’s needs have changed since entry of the original [PPP],

including changes to their developmental and emotional needs, academic

curricula and requirements, extracurricular activities, and social lives. Thus,

in light of those changes, it is in the best interest of the minor [C]hildren to

spend equal amounts of time with Mother and Father.

In view of the alleged material change in circumstances, Father asked for the trial court to

name the parties joint primary residential parents, with the Children spending equal time

with both parents. Specifically, the amended parenting plan Father attached to his petition

for modification proposed that the parties would be “Joint Primary Residential Parents

(only if by agreement). Child must reside an equal amount of time with both parents.”

Concerning decision-making authority, Father’s proposed amended parenting plan

contemplated the following arrangement:

B. MAJOR DECISIONS

Major decisions regarding each child shall be made as follows:

Educational decisions . . . joint

Non-emergency health care . . . joint

Religious upbringing . . . joint

Extracurricular activities . . . joint

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Final decision maker . . . Father

Summer Camps . . . joint

In his petition, Father expressed concern regarding the Children’s education and

specifically the choice of school. In relevant part, he averred:

6. Since entry of the [PPP], Mother has expressed to Father her desire for the

parties’ oldest and youngest children to attend Lakeland Elementary for the

2022-2023 academic school year, without justification. To maintain the

minor [C]hildren’s enrollment at Briarcrest Christian School for the 2022-

2023 academic school year, Father has obligated himself to be financially

responsible for the minor [C]hildren’s tuition.

7. The parties’ middle child, [Ethan,] is currently enrolled at The Bodine

School for dyslexia. However, at the time the parties executed the [PPP] they

intended for their son to transition to Briarcrest Christian School upon his

graduation from The Bodine School. Upon [Ethan’s] transition to Briarcrest

Christian School, he will continue to receive support through the school’s

Educational Support Services program aka “ESS,” which serves the needs of

students diagnosed with learning disabilities and/or attention deficit disorder.

8. Father submits that it is in the best interest of the parties’ oldest and

youngest children to attend Briarcrest Christian School for the 2022-2023

academic school year. And upon graduating from The Bodine School, the

middle child should be enrolled at Briarcrest Christian School along with his

siblings.

9. Since they were toddlers, the parties’ [C]hildren have been enrolled at

Briarcrest Christian School, and Father has played a substantial rol[e] in their

educational development and involvement in extracurricular activities.1

Based on the foregoing averments, Father asserted “that it is in the [C]hildren’s best interest

that he be designated final decision maker with respect to major decisions concerning the

education and extracurricular activities of the minor [C]hildren.” Father also asked for

modification of his child-support obligation (from $605.00 per month to $49.00 per

month). Father also asked for an award attorney’s fees incurred in filing his petition.

On May 13, 2022, Father filed an amended petition “to add charges of civil

contempt, and [to] request injunctive relief and attorney’s fees.” The amended petition

incorporated the foregoing paragraphs of Father’s original petition and added the following

relevant averments:

1. Briarcrest Christian School’s deadline to submit the re-enrollment

1

By the time of the final hearing, the parties agreed that Eli and Ellie would attend Lakeland

Elementary. Ethan would finish his studies at Bodine and then join his siblings at Lakeland. As such, we

include Father’s averments regarding the parties’ initial dispute concerning where the Children would be

enrolled for context only.

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contracts for the 2022-2023 school year was January 18, 2022;

2. Shortly before the deadline, Father inquired . . . as to whether [Mother]

had submitted the re-enrollment contracts to Briarcrest Christian School.

Mother responded in the negative and explained that she was not going to

submit them, because she intended for their [C]hildren to attend Lakeland

Elementary School;

3. To maintain the minor [C]hildren’s enrollment at Briarcrest Christian

School for the upcoming school year, Father submitted to Briarcrest

Christian School the reenrollment contracts on January 16, 2022;

***

6. . . . Father [has] learned that Mother not only enrolled the oldest and

youngest child at Lakeland Elementary School for the 2022-2023 school

year, but also unilaterally enrolled the youngest into Lakeland Elementary

School’s Kindergarten Camp, beginning May 31st through June 3rd.

Father further averred that Mother’s decision to enroll the Children at Lakeland Elementary

was “made out of convenience, not the [C]hildren’s best interest.” Father explained that

Mother was engaged, and she and her fiancé “plan[ned] to purchase a house together this

year; and thus, they desire for their children [Mother’s fiancé has joint custody of his two

children from a previous marriage] to attend Lakeland Elementary School. Consequently,

it would be more convenient for Mother and [her fiancé] to transport their children to the

same school rather than different schools.”

In his amended petition, Father also alleged two counts of contempt against Mother

for alleged violations of the PPP. Specifically, Father asserted that Mother had “willfully

disobeyed Section II, ¶ B, of the [PPP] by unilaterally enrolling the parties’ youngest

daughter in Lakeland Elementary School’s Kindergarten Summer Camp,” and by

“unilaterally enrolling the minor [C]hildren at Lakeland Elementary School for the 2022-

2023 school year.” As set out in context above, Section II, ¶ B of the PPP provides for joint

decision making concerning the Children’s education. Father also cited the PPP language

that, “So long as Mother and/or her family remain responsible for paying the [C]hildren’s

private school tuition, Mother shall have final decision-making authority with regard to

education. It is Mother’s contemplation that the [C]hildren will remain in private school.”

Father asserted that he entered the PPP with the understanding that the Children would be

enrolled at Briarcrest.

On June 27, 2022, Mother filed a response in opposition to Father’s amended

petition. In relevant part, Mother averred:

Mother admits that in the Fall of 2021, Mother notified Father that she

desired to enroll Eli and Ellie in school at Lakeland Elementary. Mother

denies that her desire to enroll the [C]hildren in school at Lakeland

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Elementary was without justification.

***

Additionally, Eli and Ellie’s stepbrother and stepsister, with whom the

parties’ [C]hildren have a close relationship, are enrolled in Lakeland schools

for the 2022-2023 school year.

Mother denies that Father has obligated himself to be financially

responsible for the minor [C]hildren’s tuition at Briarcrest for the 2022-2023

school year. To the contrary, to date, Wife’s parents have paid the

[C]hildren’s tuition and fees for the 2022-2023 school year at Briarcrest.

***

Mother alleges that there is no basis to modify the parties’ [PPP],

entered with this Court on March 17, 2021, less than one (1) year before

Father filed the present Petition.

Mother expressly denies that the parties’ [C]hildren’s needs have

changed since the parties’ [PPP] was entered on March 17, 2021. . . . Mother

further denies that this Honorable Court should modify the parties’ parenting

schedule, to which the parties agreed approximately one (1) year ago, and

denies that a modification of said schedule is in the [C]hildren’s best

interests.

Mother denies that a material change in circumstances affecting the

[C]hildren’s best interests has occurred from March 17, 2021 through the

present.

On July 8, 2022, Mother filed additional responses in opposition to Father’s

amended petition for modification of the PPP and for civil contempt. Therein, she averred

in relevant part:

Mother admits that she enrolled the parties’ minor daughter, Ellie, in

Kindergarten Camp during Mother’s summer parenting time, from May 31

to June 3, 2022, and admits that she submitted applications for enrollment

for Ellie and Eli to Lakeland Elementary School for the 2022-2023 school

year. Mother denies that the foregoing enrollment was in violation of the

parties’ [PPP].

***

Mother denies that her decision to enroll the [C]hildren in school at Lakeland

Elementary School was “made out of convenience” and denies that said

enrollment is contrary to the [C]hildren’s best interests.

***

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Mother admits that she and [her fiancé] purchased a home located [in]

Lakeland, Tennessee . . ., which is located less than a mile from Mother’s

former residence.

***

Mother denies that she willfully disobeyed and/or violated the parties’

Permanent Plan when she enrolled the parties’ minor child in summer camp

during approximately four (4) days of Mother’s summer parenting time.

Mother alleges that in the Fall of 2021, Mother notified Father that

she desired to enroll Eli and Ellie in school at Lakeland Elementary. Mother

further alleges that the parties’ Permanent Parenting Plan details, “Mother

shall have final decision-making authority with regard to education.”

On July 11 and 12, 2022, the trial court heard Father’s petition. By order of

September 8, 2022, the trial court denied Father’s petition to modify the PPP on its finding

that “there is not a material change in circumstances.” In addressing Father’s contempt

allegations, the trial court noted several instances where Mother failed to notify Father

concerning the Children’s schooling, extracurricular activities, and non-emergency

medical care and found her “in civil contempt . . . for her failure to comply with the

consultation clause of the [PPP].” As punishment, Mother was ordered to pay Father

$5,000.00. Furthermore, the trial court cautioned “[t]hat if it is reported that Mother has

continued to fail to consult with Father about education, extra-curricular activities, non-

emergency medical or religion decisions for the minor [C]hildren then the Court shall

modify the [PPP] to give Father final decision-making power over same.” The September

8, 2022 order, which was entered by Judge Robert Weiss, was not a final judgment as he

ordered the parties to “report for status on Friday, December 16, 2022, at 10:00 a.m. for

entry of a final order and determination of where the minor [C]hildren are to attend school

for the 2023-2024 school year.” After Judge Weiss entered the September 8, 2022 order,

but before the scheduled status conference, Judge Damita Dandridge won the August 4,

2022 general election and took Judge Weiss’ seat on September 1, 2022.

On October 25, 2022, Father filed a motion, asking Judge Dandrige to reconsider

Judge Weiss’ decision not to modify the PPP. Mother opposed the motion but did not

otherwise object to Judge Weiss’ findings of contempt. However, while Father’s motion

to reconsider was pending, on December 16, 2022, he filed a second petition for contempt

against Mother. Therein, he averred that, in addition to the contempt found by Judge Weiss

in his September 8, 2022 order, Mother was also guilty of two more counts of civil

contempt based on her alleged violation of the PPP provisions requiring her to maintain

health insurance for the Children and to provide Father with proof of same, see supra.

Specifically, Father averred:

Under the parties’ [PPP], Mother is required to maintain reasonable

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health insurance on the [C]hildren; but, the parties are to equally pay the

[C]hildren’s uncovered medical expenses after insurance has paid its portion.

So, a change to the [C]hildren’s insurance coverage may increase the cost

that Father has to pay for his share of uncovered medical expenses.

Since the parties’ divorce, the minor [C]hildren have been covered

through the parties’ employer; however, on December 15, 2022, Mother

advised Father that the minor [C]hildren are now covered under her

husband’s insurance.2 Prior to December 15th, Mother did not consult with

Father prior to changing the [C]hildren’s health insurance. It wasn’t until

Father asked Mother for a copy of the [C]hildren’s insurance card did Mother

[] disclose that she had unilaterally changed the [C]hildren’s health

insurance.

***

COUNT I

Mother willfully disobeyed Section II, ¶B of the Permanent Parenting Plan

by unilaterally changing the minor [C]hildren’s health insurance coverage

and then advising Father of the same after the fact;

COUNT II

Mother willfully disobeyed Section II, ¶D of the Permanent Parenting Plan

by failing to furnish to Father a copy of the [C]hildren’s health insurance

cards;

On April 19, 2023, Father filed an amended second petition for contempt, wherein he

asserted a third count of contempt based on Mother’s alleged violation of the PPP provision

awarding joint decision-making on matters concerning the Children’s non-emergency

health care. Father averred:

The parties’ oldest son [Eli] was prescribed an allergy medication that

is administered by Mother via a shot taken twice each week[, and] Mother

decided to discontinue administering the oldest child’s prescribed allergy

medication without consulting first with Father.

COUNT III

17. Mother willfully disobeyed Section II, B of the Permanent Parenting Plan

by unilaterally discontinuing the minor child’s prescribed medication, and

then advising Father of the same after the fact;

2

Mother married her fiancé on May 12, 2022.

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On May 30, 2023, Mother filed responses in opposition to Father’s second and

second amended petitions for civil contempt. Therein, she denied any contempt, stating:

Mother alleges that Father’s attempt to hold Mother in civil contempt for

ceasing Eli’s allergy shots, which were making Eli ill and were stopped six

(6) months before Father filed the present Amended Second Petition, only

emphasize that Father does not have the parties’ [C]hildren’s best interests at

heart. Rather, Father’s sole focus is attempting to penalize Mother for making

minor, day-to-day decisions that are in the [C]hildren’s best interests. Mother

notes that the parties’ [PPP] expressly provides, “Each parent shall make

decisions regarding the day-to-day care of a child while the child is residing

with that parent. . . .” Mother alleges that her decision to stop administering

allergy shots to Eli, which were making him sick, was a decision regarding

his day-to-day care.

***

Mother admits that on or about December 15, 2022, Mother timely

advised Father that the parties’ [C]hildren would now be covered under her

husband’s health insurance, rather than under Mother’s employer’s health

insurance policy. Mother further notes that Father voiced no objection to the

change in the minor [C]hildren’s health insurance, and alleges that said

change is in the minor [C]hildren’s best interests.

Mother respectfully submits that it was cost prohibitive for her to

continue to maintain the [C]hildren on her employer’s health insurance

policy. Specifically, the cost of Mother’s health insurance policy through her

employer is $5,729 a year, or $440 a month, whereas the cost of her spouse’s

health insurance coverage is $4,906 a year, or $409 a month. If Mother was

to continue to maintain health insurance coverage through her employer, she

and her spouse would be paying $10,635 a year, or $886 a month, for health

insurance coverage. There was no additional cost to Mother’s spouse to add

Mother and the minor children to his health insurance policy, such that the

total cost of health insurance for Mother, her spouse, and the parties’ minor

[C]hildren is $4,906 a year, or $409 a month.

Mother further averred that: “Mother has furnished Father with the parties’ [C]hildren’s

health insurance cards.” Based on these averments, Mother asserted that Father’s contempt

petition constituted an “abusive civil action pursuant to Tennessee Code Annotated § 29-

41-101 et. seq., such that Mother should be awarded her attorney fees and suit expenses in

defending against same.”

Judge Dandridge heard the case on June 27, June 28, August 14, August 15, and

August 17, 2023. On December 15, 2023, the trial court entered its Findings of Fact and

Conclusions of Law, which were incorporated by reference into its January 11, 2024 Final

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Order. As discussed in further detail below, the trial court: (1) granted Father’s petition to

modify the PPP; (2) entered an amended parenting plan, which named Father primary

residential parent, gave the parties equal parenting time, and named Father as the “final

decision maker on all major decisions”; (3) entered an amended Child Support Worksheet,

ordering Mother to pay $138.06 per month in child support (Father was not ordered to pay

child support under the amended worksheet); (4) found Mother in civil contempt for

violation of the PPP regarding the Children’s health insurance, proof thereof, and her

decision to stop administering Eli’s allergy shots; (5) ordered Mother to pay Father

$88,116.63 in attorney’s fees for the contempt; (6) ordered Mother to pay retroactive (to

February 28, 2022, the date of Father’s original petition) child support in the total amount

of $13,637.00; and (7) ordered Mother to pay Ethan’s private school tuition for Bodine.

Mother appeals.

II. Issues

Mother raises the following issues as stated in her brief:

I. The trial court erred when it used an incorrect legal standard to change

custody, decrease Mother’s parenting time, and modify decision-making

authority when the overwhelming proof reflected that there was no material

change in circumstances that affected the [C]hildren’s well-being sufficient

to warrant a modification of custody or the residential parenting schedule.

II. The trial court erred when it modified custody and reduced Mother’s

parenting time, as the overwhelming proof reflected that no material change

in circumstances affecting the [C]hildren’s best interests occurred pursuant

to Tennessee Code Annotated § 36-6-101(a)(2)(B) or (C), and that the

[C]hildren were doing well under the agreed-upon Parenting Plan.

III. The trial court erred when it held that Mother was in civil contempt and

awarded Father attorney fees totaling $88,116 as compensatory damages due

to Mother’s modification [of] the [C]hildren’s health insurance coverage,

alleged failure to provide Father with copies of the [C]hildren’s cards, and

alleged failure to advise Father before discontinuing Ethan’s allergy shots.

IV. The trial court abused its discretion when it held that Mother shall be

solely responsible for Ethan’s private school tuition at Bodine beginning the

2024-2025 school year, awarded Father retroactive child support of $13,637,

and awarded Father attorney fees totaling $88,116.

Appellee asks this Court to award him appellate attorney’s fees and costs pursuant to

Tennessee Code Annotated section 36-5-103(c).

As an initial matter, we note that Mother’s original brief to this Court listed the

foregoing issues in the “Table of Contents” section of the brief, and not in a separate

“Statement of the Issues” section as contemplated under the Tennessee Rules of Appellate

Procedure, which provide, in relevant part, that, “The brief of the appellant shall contain

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under appropriate headings . . . [a] statement of the issues presented for review.” Tenn.

R. App. P. 27(a)(4) (emphasis added). As a threshold argument, Father asserts that, in

failing to list her appellate issues under a “Statement of the Issues” section, Mother has

waived them. We disagree. By order of March 25, 2025, this Court granted Mother’s

motion to file a supplement to her appellate brief with a separate “Statement of the Issues,”

which she did. Accordingly, Mother’s brief is compliant with Rule 27, and we will address

her issues substantively.

III. Modification of the PPP and Award of Retroactive Child Support

The Tennessee Supreme Court has explained the standard of review for decisions

relating to parenting plans as follows:

In this non-jury case, our review of the trial court’s factual findings is

de novo upon the record, accompanied by a presumption of the correctness

of the findings, unless the preponderance of the evidence is otherwise. See

Tenn. R. App. P. 13(d); Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn.

2002); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). We review the

trial court’s resolution of questions of law de novo, with no presumption of

correctness. Kendrick, 90 S.W.3d at 569 . . . . [Nonetheless,] determining the

details of parenting plans is “peculiarly within the broad discretion of the trial

judge.’” Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988) (quoting

Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)). “It is not

the function of appellate courts to tweak a [residential parenting schedule] in

the hopes of achieving a more reasonable result than the trial court.” Eldridge

v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). A trial court’s decision

regarding the details of a residential parenting schedule should not be

reversed absent an abuse of discretion. Id. “An abuse of discretion occurs

when the trial court . . . appl[ies] an incorrect legal standard, reaches an

illogical result, resolves the case on a clearly erroneous assessment of the

evidence, or relies on reasoning that causes an injustice.” Gonsewski v.

Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). A trial court abuses its

discretion in establishing a residential parenting schedule “only when the

trial court’s ruling falls outside the spectrum of rulings that might reasonably

result from an application of the correct legal standards to the evidence found

in the record.” Eldridge, 42 S.W.3d at 88.

Armbrister v. Armbrister, 414 S.W.3d 685, 692-93 (Tenn. 2013).

The applicable analysis differs depending on whether the trial court is asked to

modify a child’s custody arrangement or whether it is asked to modify the details of the

residential parenting schedule. As this Court recently explained:

Courts apply a two-step analysis to requests to change

the primary residential parent designation. Keisling v.

Keisling, 196 S.W.3d 703, 718 (Tenn. Ct. App. 2005). The

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threshold issue is whether a material change in circumstance

has occurred since the court’s prior custody order. See

Armbrister [], 414 S.W.3d [at] 697-98 []; Tenn. Code Ann. [§]

36-6-101(a)(2)(B). Only if a material change in circumstance

has occurred do we consider whether a modification is in the

child’s best interest. Armbrister, 414 S.W.3d at 705. The

“determinations of whether a material change of circumstances

has occurred and where the best interests of the child lie are

factual questions.” In re T.C.D., 261 S.W.3d 734, 742 (Tenn.

Ct. App. 2007).

Skowronski v. Wade, No. M2014-01501-COA-R3-CV, 2015 WL 6509296,

at *5 (Tenn. Ct. App. Oct. 27, 2015).

Regarding a material change in circumstance to justify a change in

custody, Tenn. Code Ann. § 36-6-101(a)(2)(B) [] provides:

(i) If the issue before the court is a modification of the court’s

prior decree pertaining to custody, the petitioner must prove by

a preponderance of the evidence a material change in

circumstance. A material change of circumstance does not

require a showing of a substantial risk of harm to the child. A

material change of circumstance may include, but is not limited

to, failures to adhere to the parenting plan or an order of

custody and visitation or circumstances that make the

parenting plan no longer in the best interest of the child.

***

We note, however, that a lower threshold of proof applies to a material

change in circumstance to justify a change in the residential parenting

schedule. This Court has recently explained:

Notably, the law regards a change in a parenting schedule differently

than a change in the primary residential parent. As this Court has previously

explained,

Tennessee now has a different set of criteria for

determining whether a material change of circumstance has

occurred to justify a modification of a “residential parenting

schedule” and the specifics of such a schedule. The

amendment, specifically the addition of subsection [Tenn.

Code Ann. 36-6-101](a)(2)(C), establishes different criteria

and a lower threshold for modification of a residential

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parenting schedule. See Rose v. Lashlee, No. M2005-00361-

COA-R3-CV, 2006 WL 2390980, at *2, n. 3 (Tenn. Ct. App.

Aug. 18, 2006) (holding that Tenn. Code Ann. § 36-6-

101(a)(2)(C) “sets a very low threshold for establishing a

material change of circumstances”). However, the statutory

criteria pertaining to a modification of “custody”—the term

used in the statute, which we equate to the designation of

“primary residential parent” and matters more substantive than

a change of schedule-remain unchanged. See Tenn. Code Ann.

§ 36-6-101(a)(2)(B).

Scofield v. Scofield, No. M2006-00350-COA-R3-CV, 2007 WL 624351, at

*3 (Tenn. Ct. App. Feb. 28, 2007). Consequently, “a different standard

applies when a parent seeks modification of a residential schedule but not the

designation of the primary residential parent.” McAdams [v. McAdams, No.

E2019-02150-COA-R3-CV,] 2020 WL 4723762, at *3 n. 4 [(Tenn. Ct. App.

Aug. 13, 2020)]. Stated differently, “Tennessee courts have required a higher

measure of proof when the petitioner seeks a change in custody (i.e., a change

in the primary residential parent) than when he or she seeks only a change in

the existing parenting schedule.” Tutor v. Tutor, No. W2019-00544-COA-

R3-CV, 2020 WL 1158075, at *2 (Tenn. Ct. App. Mar. 10, 2020); see also

Pippin [v. Pippin], 277 S.W.3d [398] at 407 [(Tenn. Ct. App. June 4, 2008)]

(“[B]ecause [f]ather’s petition seeks a change of primary residential parent

status, i.e., a change of ‘custody,’ we conclude that the lower threshold

contained in Tenn. Code Ann. § 36-6-101(a)(2)(C) simply does not apply.”).

Rushing v. Rushing, 692 S.W.3d 82, at 89-90 (Tenn. Ct. App. 2023), perm. app. denied

(Tenn. March 6, 2024) (citing L.A.S. v. C.W.H., No. E2021-00504-COA-R3-JV, 2022 WL

17480100, at *5-6 (Tenn. Ct. App. Dec. 7, 2022)).

Turning to the record, as noted above, the original PPP named Mother the primary

residential parent. By his petition, Father asked the trial court to name the parties joint

primary residential parents, with equal parenting time. As set out in the proposed amended

parenting plan tendered by Father with his petition, he specifically sought “Joint Primary

Residential Parents (only if by agreement) Child must reside an equal amount of time with

both parents.” In its findings of fact and conclusions of law, the trial court noted the

qualifying language, “only by agreement,” stating:

Father’s Petition and Amended Petition to Modify Parenting Plan Order does

not include a request to be designated primary residential parent. . . .

Although Father’s proposed PPP designates “Joint Primary Residential

Parent,” it is “only if by agreement,” which presupposes an equal parenting

schedule. Accordingly, the Court finds that Father’s petition does not seek a

change in primary residential status, i.e., custody, and thus the lower

threshold contains in Tenn. Code Ann. § 36-6-101(a)(2)(C) applies.

- 13 -

We disagree. In the first instance, Father’s qualifying notations that his request to be named

joint residential parent is “only by agreement,” and “presupposes an equal parenting

schedule,” do not change the fact that he seeks a change in the primary residential parent

designation, i.e. he seeks a change in custody. Indeed, this is the relief the trial court

granted. In the amended permanent parenting plan adopted by the trial court and

incorporated into its final order, the court clearly changes the Children’s primary residential

parent from Mother to Father. Specifically, under the “The Primary Residential Parent”

heading, the trial court checked the box indicating that Father is now the primary residential

parent. Change of the primary residential parent is a change in custody not a change to the

parenting schedule. As such, Tennessee Code Annotated section 36-6-101(a)(2)(C), which

the trial court applied, is inapplicable. Pippin, 277 S.W.3d at 407 (“[B]ecause [f]ather’s

petition seeks a change of primary residential parent status, i.e., a change of ‘custody,’ we

conclude that the lower threshold contained in Tenn. Code Ann. § 36-6-101(a)(2)(C)

simply does not apply.”). Having applied an incorrect legal standard, the trial court abused

its discretion in granting Father’s petition for modification of the PPP. Gonsewski, 350

S.W.3d at 105 (“An abuse of discretion occurs when the trial court . . . appl[ies] an incorrect

legal standard. . . .”). As such, we vacate the trial court’s order modifying the PPP and its

entry of a modified Child Support Worksheet.

Concerning the trial court’s judgment against Mother for “retroactive child

support,” the trial court found, in relevant part:

208. Child support shall be made retroactive to the date of the filing of

Father’s Petition to Modify Parenting Plan Order and Child Support, which

is February 28, 2022;

209. Father is hereby awarded a retroactive child support judgment in the

amount of $13,637;

210. Mother shall pay Father $138 per month . . . on the first of each month;

Here, there was no basis for an award of retroactive child support. While the case was

pending, there was no change in the parties’ parenting time. Absent an increase in Father’s

parenting time, dating back to his original petition, retroactive child support in his favor

was unwarranted, and the trial court erred in ordering same. We have vacated the trial

court’s entry of the amended Child Support Worksheet, and we reverse the trial court’s

award of retroactive child support against Mother arising from that worksheet. Although,

on remand, the trial court may reconsider the questions of modification of the PPP and the

Child Support Worksheet, as a point of clarification, any child support obligation on

Mother’s part can only be awarded prospectively from the date of entry of any future

support order. In other words, on remand, the trial court may not charge Mother with

retroactive support.

IV. Civil Contempt and Award of Attorney’s Fees

- 14 -

Mother also appeals the trial court’s decision to hold her in contempt based on her

alleged: (1) failure to notify Father when the Children’s health insurance provider was

changed; (2) failure to provide Father with new insurance cards for the Children; and (3)

decision to stop administering Eli’s allergy shots. “A trial court’s use of its contempt power

is within its sound discretion and will be reviewed by an appellate court under an abuse of

discretion standard.” McLean v. McLean, No. E2008-02796-COA-R3-CV, 2010 WL

2160752, at *3 (Tenn. Ct. App. May 28, 2010) (citing Outdoor Mgmt., LLC v. Thomas,

249 S.W.3d 368, 377 (Tenn. Ct. App. 2007)). “[A] trial court will be found to have ‘abused

its discretion’ only when it applies an incorrect legal standard, reaches a decision that is

illogical, bases its decision on a clearly erroneous assessment of the evidence, or employs

reasoning that causes an injustice to the complaining party.” In re Estate of Greenamyre,

219 S.W.3d 877, 886 (Tenn. Ct. App. 2005), perm. app. denied (Tenn. Mar. 12, 2007)

(internal citations omitted). Likewise, this Court reviews a trial court’s award of attorney’s

fees under an abuse of discretion standard. See Wright ex rel. Wright v. Wright, 337

S.W.3d 166, 176 (Tenn. 2011).

Concerning contempt of court, Tennessee Code Annotated § 29-9-102 provides, in

relevant part, that “[t]he power of the . . . courts to . . . inflict punishments for contempts

of court, shall not be construed to extend to any except the following cases . . . (3) The

willful disobedience or resistance of any . . . party. . . to any lawful . . . order . . . of such

courts. . . .” “Contempts may be criminal or civil in nature depending on whether the

purpose of the contempt is to coerce or to punish.” State v. Turner, 914 S.W.2d 951, 954

(Tenn. Crim. App. 1995). This Court has previously distinguished between the two types

of contempt of court as follows:

Civil contempt is intended to benefit a litigant while criminal

contempt is punishment for an offense against the authority of the court. Civil

contempt is imposed to compel compliance with an order, and parties in

contempt may purge themselves by compliance. Criminal contempt, on the

other hand, is punishment for failing to comply with an order, and the

contemptuous party cannot be freed by eventual compliance.

Duke v. Duke, No. M2013-00624-COA-R3-CV, 2014 WL 4966902, at *30 (Tenn. Ct.

App. Oct. 3, 2014) (quoting Sherrod v. Wix, 849 S.W.2d 780, 786 n.4 (Tenn. Ct. App.

1992) ).

In the present action, it is undisputed that the contempt proceedings were civil in

nature. Regarding civil contempt proceedings, the Tennessee Supreme Court has

explained:

Civil contempt claims based upon an alleged disobedience of a court

order have four essential elements. First, the order alleged to have been

violated must be “lawful.” Second, the order alleged to have been violated

must be clear, specific, and unambiguous. Third, the person alleged to have

- 15 -

violated the order must have actually disobeyed or otherwise resisted the

order. Fourth, the person's violation of the order must be “willful.”

The threshold issue in any contempt proceeding is whether the order

alleged to have been violated is “lawful.” A lawful order is one issued by a

court with jurisdiction over both the subject matter of the case and the parties.

Vanvabry v. Staton, 88 Tenn. 334, 351-52, 12 S.W. 786, 791 (1890);

Churchwell v. Callens, 36 Tenn. App. 119, 131, 252 S.W.2d 131, 136-37

(1952).

***

The second issue involves the clarity of the order alleged to have been

violated. A person may not be held in civil contempt for violating an order

unless the order expressly and precisely spells out the details of compliance

in a way that will enable reasonable persons to know exactly what actions

are required or forbidden. Sanders v. Air Line Pilots Ass’n Int’l, 473 F.2d

244, 247 (2d Cir. 1972); Hall v. Nelson, 282 Ga. 441, 651 S.E.2d 72, 75

(2007); Marquis v. Marquis, 175 Md. App. 734, 931 A.2d 1164, 1171

(2007); Cunningham v. Eighth Judicial Dist. Ct. of Nev., 102 Nev. 551, 729

P.2d 1328, 1333-34 (1986); Petrosinelli v. People for the Ethical Treatment

of Animals, Inc., 273 Va. 700, 643 S.E.2d 151, 154-55 (2007). The order

must, therefore, be clear, specific, and unambiguous. See Doe v. Bd. of Prof'l

Responsibility, 104 S.W.3d [465,] 471 [ (Tenn. 2003)]; Long v. McAllister-

Long, 221 S.W.3d [1,] 14 [ (Tenn. Ct. App. 2006)].

***

The third issue focuses on whether the party facing the civil contempt

charge actually violated the order. This issue is a factual one to be decided

by the court without a jury. See Pass v. State, 181 Tenn. 613, 620, 184

S.W.2d 1, 4 (1944); Sherrod v. Wix, 849 S.W.2d 780, 786 (Tenn. Ct. App.

1992). The quantum of proof needed to find that a person has actually

violated a court order is a preponderance of the evidence. Doe v. Bd. of Prof'l

Responsibility, 104 S.W.3d at 474. Thus, decisions regarding whether a

person actually violated a court order should be reviewed in accordance with

the standards in Tenn. R. App. P. 13(d).

The fourth issue focuses on the willfulness of the person alleged to

have violated the order. The word “willfully” has been characterized as a

word of many meanings whose construction depends on the context in which

it appears. Spies v. United States, 317 U.S. 492, 497, 63 S. Ct. 364, 87 L.Ed.

418 (1943); United States v. Phillips, 19 F.3d 1565, 1576-77 (11th Cir.

1994). Most obviously, it differentiates between deliberate and unintended

conduct. State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group

- 16 -

Trust, 209 S.W.3d [602,] 612 [(Tenn. Ct. App. 2006)]. . . .

In the context of a civil contempt proceeding under Tenn. Code Ann.

§ 29-[9]-102(3) . . . willful conduct

consists of acts or failures to act that are intentional or

voluntary rather than accidental or inadvertent. Conduct is

‘willful’ if it is the product of free will rather than coercion.

Thus, a person acts ‘willfully’ if he or she is a free agent, knows

what he or she is doing, and intends to do what he or she is

doing.

State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust, 209

S.W.3d at 612 (citations omitted). Thus, acting contrary to a known duty may

constitute willfulness for the purpose of a civil contempt proceeding. United

States v. Ray, 683 F.2d 1116, 1127 (7th Cir. 1982); City of Dubuque v. Iowa

Dist. Ct. for Dubuque County, 725 N.W.2d 449, 452 (Iowa 2006); Utah

Farm Prod. Credit Ass’n v. Labrum, 762 P.2d 1070, 1074 (Utah 1988).

Determining whether the violation of a court order was willful is a factual

issue that is uniquely within the province of the finder-of-fact who will be

able to view the witnesses and assess their credibility. Thus, findings

regarding “willfulness” should be reviewed in accordance with the Tenn. R.

App. P. 13(d) standards.

After determining that a person has willfully violated a lawful and

sufficiently clear and precise order, the court may, in its discretion, decide to

hold the person in civil contempt. See Robinson v. Air Draulics Eng’g Co.,

214 Tenn. 30, 37, 377 S.W.2d 908, 912 (1964). The court’s decision is

entitled to great weight. Hooks v. Hooks, 8 Tenn. Civ. App. (Higgins) 507,

508 (1918). Accordingly, decisions to hold a person in civil contempt are

reviewed using the abuse of discretion standard of review. Hawk v. Hawk,

855 S.W.2d 573, 583 (Tenn. 1993); Moody v. Hutchison, 159 S.W.3d 15,

25-26 (Tenn. Ct. App. 2004).

Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 354-58 (Tenn.

2008) (footnotes omitted). If a trial court finds a party in contempt, Tennessee Code

Annotated § 36-5-103(c) provides, in relevant part:

A prevailing party may recover reasonable attorney’s fees, which may be

fixed and allowed in the court’s discretion, from the non-prevailing party in

any criminal or civil contempt action or other proceeding to enforce, alter,

change, or modify any decree of alimony, child support, or provision of a

permanent parenting plan order, or in any suit or action concerning the

adjudication of the custody or change of custody of any children, both upon

the original divorce hearing and at any subsequent hearing.

Concerning the Children’s health insurance, it is undisputed that Mother changed

- 17 -

the Children’s insurance provider from BlueCross to Aetna. The Children’s new coverage,

which was effective June 1, 2022, was provided by Mother’s husband’s employer. As set

out above, in her response to Father’s second petition for contempt, supra, Mother asserted

that the change to Aetna resulted in less out-of-pocket costs, while still covering the

Children’s established providers. Father asserted that Mother’s failure to give him prior

notice of the change in the Children’s insurance was an act of contempt. We disagree.

In the first instance, there is evidence to suggest that Father knew of Mother’s

intention to change the Children’s insurance coverage prior to her doing so, or at least at

or about the same time that Mother made that change. Trial Exhibit 11 is a text exchange

between Father and Mother that occurred on June 14, 2022. In the conversation, Father

asked Mother, “Are you switching over insurance or no,” to which Mother replied, “Yes

we will.” Father then asked, “When will that take effect,” to which Mother responded,

“Not sure. [New husband] did something last night.” During her testimony, Mother

discussed the June 14, 2022 text exchange, to-wit.

Q [to Mother]. Now, going to your message, when [Father] asked you about

when this insurance would go into effect, you responded again by stating:

We haven’t done it yet, so I don’t have anything. Is that what it says in that

text message?

A. Yes.

Q. In other words, you consulted with [Father] before switching the

[C]hildren to your spouse’s insurance?

A. Yes.

Q. So at the time you sent this message, the [C]hildren were not covered

under your spouse’s health insurance, right?

A. At that time, looking back, yes, they were, but I did not know that. I did

not think it started until July. I did not know that it would retroactively go to

June.

From the foregoing, the parties were discussing the Children’s insurance in June 2022 at

or near the time that Mother changed the coverage. Even if we allow that the Children

were already enrolled in Aetna at the time of the foregoing text exchange, Mother states

that she was unaware that the new insurance was in place at the time of the text exchange,

so there is no indication that Mother intentionally, or willfully, withheld information from

Father, or that she intended to do so. State ex rel. Flowers, 209 S.W.3d at 612 (“A person

acts ‘willfully’ if . . . she . . . intends to do what . . . she is doing.”). Rather, she forthrightly

told Father that she planned to switch the Children’s coverage.

Notwithstanding the foregoing text exchange, Father insists that Mother did not

notify him of the insurance change and, in failing to do so, violated the PPP. As set out in

context above, the PPP provides that “[r]easonable health insurance on the . . . C]hildren

will be . . . maintained by the [M]other[.]” Contrary to Father’s argument, there is no

requirement that Mother consult with Father before procuring the required health

- 18 -

insurance. Under the PPP, joint decision making applies only to decisions concerning the

Children’s education, non-emergency health care, religious upbringing, and extracurricular

activities. However, concerning the Children’s health insurance, Mother is simply required

to “maintain[]” such insurance, which she did in this case. In fact, on cross examination,

Father conceded that the Children’s health insurance coverage never lapsed, and Mother

continued to provide coverage as contemplated under the PPP, to-wit:

Q [to Father]. And just to be clear, if you’ll bear with me momentarily. And

your . . . ex-wife has had that coverage, at least according to your Exhibit 13,

certainly since June of ‘22, correct?

A. Yes, but we didn’t—I didn’t receive that information until—

Q. I understand. My question, though, is not when you received. It’s that the

[C]hildren have had health insurance that your . . . ex-wife in this instance,

was obligated to maintain, correct?

A. Apparently, since June l[, 2022]. . . .

***

Q. . . . You’re unaware of any lapse in health insurance coverage that the

[C]hildren have had since the entry of the [PPP]

A. Yes, I’m not aware of any lapse.

Father’s own testimony establishes that Mother did not violate the PPP because she

“maintained” health insurance on the Children at all times. In short, the facts do not support

a finding that Mother “actually violated the order,” which is a necessary criterion for a

finding of civil contempt. Konvalinka, 249 S.W.3d at 356.

Likewise, there is no evidence that Mother willfully violated the PPP requirement

that, “Proof of continuing coverage shall be furnished to the other parent annually or as

coverage changes.” Father sought a finding of contempt on his assertion that Mother failed

to provide him with the Children’s insurance cards for 2022, after she changed the

Children’s coverage. It is undisputed that, in December 2022, Mother provided Father

with the Children’s insurance cards for 2023.

In the first instance, the plain language of the PPP does not specifically require

Mother to provide the Children’s insurance cards to Father. Rather, Mother must provide

some proof of coverage when coverage “changes” or “annually.” Although the required

“proof” could be in the form of insurance cards, the PPP does not specify that this is the

only “proof” Mother could provide. Konvalinka, 249 S.W.3d at 355 (citations omitted)

(“A person may not be held in civil contempt for violating an order unless the order

expressly and precisely spells out the details of compliance in a way that will enable

reasonable persons to know exactly what actions are required or forbidden.”).

Notwithstanding the lack of specificity in the PPP concerning what “proof” is required, it

is undisputed that Mother provided the Children’s new insurance information to each of

- 19 -

their providers, whom the parties had named and agreed to under the PPP. Nonetheless,

the trial court found contempt based, inter alia, on its finding that “Mother admits that she

did not provide Father with the [C]hildren’s updated health insurance cards for 2022 as

coverage changed.” We have reviewed the testimony cited by the trial court. Although

Mother could have sent Father the new cards for 2022 when she received them in August

of 2022, based on the parties’ conversations, there can be no doubt that Father knew about

the change in the Children’s insurance provider at or near the time Mother made the change

(i.e. June 2022, when the foregoing text exchange occurred). As such, Mother’s admission

that she did not provide the cards in August of 2022 does not, ipso facto, show that she

willfully failed to do so. Indeed, Mother’s undisputed testimony indicates that her failure

to provide new 2022 insurance cards to Father in August of 2022 was unintentional:

Q [to Mother]. All right. Now, let’s talk about health insurance cards. . . . Did

[Father] ever call and voice any concern or say anything about: I took the

[C]hildren to the doctor and there was an issue regarding health insurance?

A. No, I never heard anything like that.

Q. Okay. Does [Father] have health insurance cards for the [C]hildren?

A. He does.

Q. And after you received this petition [for contempt], how long did it take

you to get him health insurance cards?

A. I believe it was just a couple of days when we had gotten the 2023 cards.

Q. And explain what you received, if anything, when the insurance was

switched from—BlueCross to Aetna.

A. My husband gets like a computerized card. It’s all online, and you have

to, like, print it out on a piece of paper . . . . So that’s all we had.

Q. And when you realized that [Father] was trying to hold you in civil

contempt in December of ’22 for the insurance change and/or consultation

and/or health insurance cards, what did you do?

A. I sent him the new card when we got it for 2023.

Q. And has he had that?

A. Yes.

Q. Did the [Children’s] providers already have the insurance information. . .

.

A. Yes, sir. . . . They all had it.

***

Q. Now, as we sit in court today as it relates to the December 16 [contempt]

petition, is there anything that you’ve done to violate a court order?

A. Nothing intentionally. I mean, looking back, yes, I wish I would have sent

[the cards,] but when you’re working, you have three kids, we were dealing

with the schools. I just didn’t think about it. And it wasn’t an issue until I got

the contempt charge, so I didn’t have reason to think about it again.

As discussed above, willful conduct, in the context of civil contempt, “consists of acts or

- 20 -

failures to act that are intentional or voluntary rather than accidental or inadvertent.” State

ex rel. Flowers, 209 S.W.3d at 612. Furthermore, based on the undisputed testimony,

Mother tendered the Children’s insurance cards to Father in December 2022. This satisfied

the PPP requirement for annual notification of proof of insurance. Even allowing that

Mother’s failure to tender the Children’s new 2022 insurance cards earlier than December

2022 was a violation of the PPP at the time Father filed his petition for civil contempt,

Mother had purged herself of the contempt prior to the June 27, 2023 hearing on Father’s

petition. Thus, she was not in civil contempt at the time of the hearing. See Doe v. Bd. Of

Prof’l Responsibility, 104 S.W.3d 465, at 473-74 (Tenn. 2003) (explaining that the purpose

of civil contempt is to coerce compliance with the court’s orders for the benefit of the

private party who has suffered a violation of rights. When the contemnor cures the

contemptuous conduct, he or she is no longer in civil contempt). As we have noted:

This Court has repeatedly held that issues raised on appeal regarding civil

contempt findings are moot if the contemnor has already purged himself or

herself of contempt by the time the issue reaches this Court. “A case, or an

issue in a case, becomes moot when the parties no longer have a continuing,

real, live, and substantial interest in the outcome.” Hooker v. Haslam, 437

S.W.3d 409, 417 (Tenn. 2014). For instance, in Simpkins v. Simpkins, 374

S.W.3d 413, 417 (Tenn. Ct. App. 2012), a husband was found in civil

contempt for failure to pay health insurance premiums and failure to provide

proof of life insurance. On appeal to this Court, the husband argued that the

trial court erred by finding him in civil contempt without finding that he had

the ability to comply with the orders he allegedly violated. Id. Because the

husband had already “cured his contemptuous conduct” by paying the

premiums and providing proof of insurance, we held that “the issue of civil

contempt is moot.” Id. at 418.

In Pfister v. Searle, No. M2000-01921-COA-R3-JV, 2001 WL

329535, at *2 (Tenn. Ct. App. Mar. 28, 2001), the trial court found a mother

in civil contempt and ordered her jailed until she delivered the parties’ child

for visitation. The mother was released when the child was produced the next

day. Id. at *4. On appeal, the mother argued that the evidence did not support

a finding that she willfully violated the order because it was confusing. Id.

We held that “because the [mother] complied with the court’s order to

produce her child, thereby purging her civil contempt, that judgment is now

moot, and we decline to address it.” Id. at *1. “The validity of the trial court’s

order finding her in civil contempt [was] moot.” Id. at *4. See also In re

A.G., No. M2007-0799-COA-R3-JV, 2009 WL 3103843, at *5 (Tenn. Ct.

App. Sept. 28, 2009) (concluding that a mother’s challenge to her sentence

for criminal contempt was moot when she had already served the sentence

and it was “unclear what meaningful relief lies within the power of this court

to give her at this point”); Boggs v. Boggs, No. M2006-00810-COA-R3-CV,

2007 WL 2353156, at *5 (Tenn. Ct. App. Aug. 17, 2007) (deeming the

appellant’s arguments regarding two civil contempt findings moot where the

- 21 -

appellant paid the amount ordered and was released from custody).3

Stark v. Stark, No. W2019-00650-COA-R3-CV, 2020 WL 507644, at *4 (Tenn. Ct. App.

Jan. 31, 2021); accord Luker v. Luker, No. M2021-00758-COA-R3-CV, 2021 WL

6066802 (Tenn. Ct. App. Dec. 22, 2021). Based on the foregoing, the trial court’s finding

of contempt based on Mother’s failure to provide proof of the Children’s insurance

coverage is reversed.

Concerning the trial court’s finding of contempt based on Mother’s decision to

discontinue Eli’s allergy shots, the trial court’s order states only:

COUNT III

A. [In] [d]eciding to discontinue a minor child’s [allergy shots, Mother]

intentionally misrepresented to Father that she consulted Eli’s doctor before

she stopped administering the shots.

B. Pursuant to Tenn. Code Ann. § 29-9-104, Mother’s foregoing conduct

constitutes willful and deliberate civil contempt of the PPP.

These are the trial court’s only findings regarding this count of contempt. Concerning

paragraph B, supra, we note that the trial court’s reliance on Tennessee Code Annotated

section 29-9-104 appears to be misplaced. That statute provides, in part, that, “[i]f the

contempt consists in an omission to perform an act which it is yet in the power of the person

to perform, the person may be imprisoned until such person performs it.” By its plain

language, section 29-9-104 contemplates imprisonment as a punishment for contempt, but

Mother was not imprisoned in this case.

In its only substantive finding made in support of its decision to hold Mother in civil

contempt for discontinuing Eli’s allergy shots, the trial court faults Mother for

“intentionally misrepresented to Father that she consulted with Eli’s doctor before [doing

so].” Although the trial court provides no citation to the record in support of this finding,

we have reviewed Trial Exhibit 12, a text exchange between Mother and Father, which

provides:

[Father:] Also, why didn’t you tell me you were taking Eli off allergy shots[.]

I asked him last night how his shots were going to. He told me he’s not on

them anymore.

3

The Tennessee Supreme Court has noted “a limited number of exceptional circumstances that

make it appropriate to address the merits of an issue notwithstanding its ostensible mootness[.],” including:

(1) when the issue is of great public importance or affects the administration of justice; (2) when the

challenged conduct is capable of repetition and evades judicial review; (3) when the primary dispute is

moot but collateral consequences persist; and (4) when a litigant has voluntarily ceased the challenged

conduct. City of Memphis v. Hargett, 414 S.W.3d 88, 96 (Tenn. 2013) (citing Lufkin v. Bd. of Prof’l

Responsibility, 336 S.W.3d 223, 226 (Tenn. 2011)).

- 22 -

[Mother:] I didn’t take him off. He hasn’t needed them since the pollen hasn’t

been too bad. We’ve continued with the Zyrtec and Singular without

problems. He’s been less symptomatic since being off.

[Father:] It takes up to [a year] for the allergy shots to start kicking in. Why

did you consult me about this?

[Mother:] We will revisit it when we go for his yearly in May. He’s improved

greatly and even being outside doesn’t make him break out like it used to . .

..

[Father:] . . . But this is exactly what the court’s talking about. You have to

consult me about medical stuff just make the decisions on your own.

[Mother:] I didn’t take him off. We took a break.

[Father:] Yes, but I have a right to know, and I should be involved in the

decision making. Especially when I have the same conditions that he does. I

have a lot of insight into allergies and dealing with them.

[Mother:] He was so snotty on the shots.

[Father:] That’s because his body is learning to build up an immunity. Did

you ask the allergy doctor about taking him off the shots or did you just make

that decision on your own?

[Mother:] Yes they said he could. Was going to talk to the doctor more at his

yearly.

Based on its findings, the trial court focused on Mother’s response to Father’s question,

“Did you ask the allergy doctor about taking him off the shots . . .,” to which Mother

replied, “Yes, they said I could.” In her testimony, Mother explained that she did not

consult Eli’s allergy doctor before stopping the shots. However, she explained that the

paperwork she was given when the shots were prescribed indicated that the shots could be

stopped and restarted, to-wit: “[T]he paperwork that we received with the allergy shots, it

did say that you could stop it and then how to get back on if you needed to.” Mother went

on to explain:

Q [to Mother]. Okay. And are you saying that when Mr. Smithwick asked if

you had asked the allergy doctor about taking Eli off the shots, your response,

yes, they said he could, that’s not a true statement?

A. I didn’t—I just said, yes.

Q. Yes or no whether that’s a true statement or not?

A. I did not talk to the doctor, no.

Q. So that statement was not true?

A. It was true in the fact that I read the sheet from the allergy clinic. I did not

speak to an individual at the allergy clinic.

Q. . . . [S]]o you’re—you would agree with me that the response you just

gave right now is not responsive to the question that Mr. Smithwick asked

you in that question in this text message?

A. No, I wasn’t responding to talking to an actual doctor.

Q. All right. But that’s not what you said in that text message, right?

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A. No. I said: (Reading) Yes, they said he could.

Q. And that’s not true?

A. The sheet from the allergy clinic, but an individual—I did not speak with

an individual.

The foregoing exchange goes directly to the question of whether Mother willfully

disobeyed the mandates of the PPP in stopping Eli’s shots. Although the trial court’s order

does not address the willfulness criterion vis-à-vis this allegation of contempt, we note that,

if, as Mother claims, the instructions given by the doctor indicated that the medication

could be stopped and restarted, then her decision, as stated in the text chain, that she “didn’t

take [Eli] off [the shots;] [w]e took a break,” would be justified under the doctor’s previous

instructions, thus negating a finding of willfulness.

Furthermore, in her response in opposition to Father’s second amended petition for

contempt, see supra, Mother alleges that the “allergy shots [] were making Eli ill,” and she

asserts that her decision to stop the shots fell under the PPP provision, which authorized

“[e]ach parent [to] make decisions regarding the day-to-day care of a child while the child

is residing with that parent. . . .” In short, Mother alleges that her decision to stop

administering allergy shots to Eli, which were making him sick, was a decision regarding

his day-to-day care. If, as Mother asserts, she was acting under the day-to-day care

provision of the PPP, there is a question whether she actually violated the PPP. The trial

court’s order does not address Mother’s argument, nor does it cite the language of the PPP

on which she relies to defend her position to stop Eli’s shots. Rather, from its findings, the

trial court focused on Mother’s alleged “intentional misrepresentation” concerning

consultation with Eli’s doctor, but whether Mother spoke with the doctor is not the

gravamen of this count of contempt. Instead, the question is whether Mother acted

willfully in deciding to stop the medication. This question necessarily requires resolution

of both Mother’s contention that the paperwork given by the doctor authorized her

decision, and her assertion that the administration of Eli’s allergy shots falls under the “day-

to-day care” provision of the PPP. The trial court did not address these questions.

However, from our review, and based on the foregoing discussion, we conclude that the

evidence does not preponderate in favor of the trial court’s conclusion that Mother was in

willful civil contempt of the PPP based on her decision to stop Eli’s shots.

For the foregoing reasons, the trial court’s findings of contempt regarding the

change in the Children’s health insurance, their insurance cards, and Eli’s allergy shots are

reversed. Having reversed the finding of contempt, there is no basis for the trial court’s

award of $88,116.63 in attorney’s fees under Tennessee Code Annotated section 36-5-

103(c), supra,4 and we also reverse that award.

4

According to its order, the trial court awarded attorney’s fees “pursuant to Tenn. Code Ann. § 36-

5-103(c) and § 29-9-104.” In the absence of contempt by Mother, we have held that Father is not entitled

to attorney’s fees under section 36-5-103(c). As to the trial court’s reliance on section 29-9-104, as noted

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IV. Private School Tuition

Mother asserts that the trial court erred in ordering her to pay Ethan’s private school

tuition. We agree. In its findings of fact and conclusions of law, the trial court merely

states that, “Mother shall be responsible for paying Ethan’s private school tuition at Bodine

beginning the 2024-2025 school year.” The trial court does not explain the basis of its

decision. The only other reference to financial responsibility for private school tuition is

found in the trial court’s findings of fact and conclusions of law under the heading, “The

Parties’ Assumption of Financial Responsibility for Tuition at Bodine School, which

provides:

110. The parties agreed that Ethan would continue attending Bodine School

for the 2022-23 school year, but Mother opposed the maternal grandparents

paying for Ethan’s 2022-23 school year tuition.

111. According to the maternal grandparents, they expressed their

willingness “to cover the cost of private schooling going forward” as recently

as April 4, 2022.

112. Mother told Father that her parents would not pay for tuition.

113. It was not until after she began dating [her fiancé] that Mother opposed

the maternal grandparents paying for the [C]hildren’s private school tuition.

114. [Mother’s fiancé] makes three times as much as Mother; for 2022, he

made over $300,000.

115. For the 2022-23 school year, Mother and Father paid Ethan’s tuition

totaling $25,823.55. Father paid $12,362.50.

The foregoing findings are not sufficient to justify the trial court’s decision to charge

Mother with Ethan’s private school tuition for 2024-2025.

The determination of child support in Tennessee is governed by the Child Support

Guidelines promulgated by the Tennessee Department of Human Services in accordance

with Tennessee Code Annotated § 36-5-101(e). Richardson v. Spanos, 189 S.W.3d 720,

725 (Tenn. Ct .App.2005). The statute requires the court to apply the Child Support

Guidelines as a rebuttable presumption. Tenn. Code Ann. § 36-5-101(e)(1)(A); Tenn.

Comp. R. & Regs. 1240-2-4-.07(1)(a). A court may order a deviation from the amount of

support if the deviation complies with the requirements of the Child Support Guidelines,

and “[t]he amount or method of such deviation is within the discretion of the tribunal.”

Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(b). However, the trial court is required to “state

in its order the basis for the deviation and the amount the child support order would have

been without the deviation.” Id. “In deviating from the Guidelines, primary consideration

above, that statute provides, in part, that, “[i]f the contempt consists in an omission to perform an act which

it is yet in the power of the person to perform, the person may be imprisoned until such person performs

it.” Mother was never imprisoned, so the trial court’s reliance on section 29-9-104 was error.

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must be given to the best interest of the child for whom support under these Guidelines is

being determined.” Id.

Under the Child Support Guidelines, payment of private school tuition constitutes a

deviation from the Guidelines, to-wit:

(d) Extraordinary Expenses.

The Schedule includes average child rearing expenditures for families based

upon the parents’ monthly combined income and number of children.

Extraordinary expenses are in excess of these average amounts and are highly

variable among families. For these reasons, extraordinary expenses are

considered on a case-by-case basis in the calculation of support and are added

to the basic support award as a deviation so that the actual amount of the

expense is considered in the calculation of the final child support order for

only those families actually incurring the expense. These expenses may be,

but are not required to be, divided between the parents according to each

parent’s PI.

1. Extraordinary Educational Expenses.

(i) Extraordinary educational expenses may be added to the presumptive

child support as a deviation. Extraordinary educational expenses include, but

are not limited to, tuition, room and board, lab fees, books, fees, and other

reasonable and necessary expenses associated with special needs education

or private elementary and/or secondary schooling that are appropriate to the

parents’ financial abilities and to the lifestyle of the child if the parents and

child were living together.

(ii) In determining the amount of deviation for extraordinary educational

expenses, scholarships, grants, stipends, and other cost-reducing programs

received by or on behalf of the child shall be considered.

(iii) If a deviation is allowed for extraordinary educational expenses, a

monthly average of these expenses shall be based on evidence of prior or

anticipated expenses and entered on the Worksheet in the deviation section.

Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d).

Here, Ethan’s private school tuition is not included on the amended Child Support

Worksheet, and there is certainly no explanation in the trial court’s order as to how it

reached its decision to deviate from the Guidelines in charging Ethan’s tuition to Mother.

In other words, the trial court did not make the required factual determinations that private

school was appropriate based upon the facts of the case and, in failing to do so, violated

Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d)(1)(ii); see also In re Andrea A.R., 2012 WL

397475, at *7 (“The extraordinary educational expense guideline mandates that the trial

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court shall, first, consider whether private elementary or secondary schooling ‘is

appropriate to the parents’ financial abilities and the lifestyle of the child if the parents and

the child were living together.’”) Rather, from the trial court’s sparse findings, supra, it

focused on the maternal grandparents’ and the Children’s stepfather’s ability to pay, not on

the parents’ ability to pay. Respectfully, it is neither the grandparents’ nor the stepfather’s

responsibility to pay for the parties’ Children’s private education. Accordingly, Mother

should not be charged with Ethan’s tuition merely because her family members have the

ability and/or willingness to pay. From the trial court’s findings, Mother and Father split

Ethan’s tuition for 2023-2024, yet the trial court makes no finding as to why this

arrangement should be disturbed for the school year 2024-2025. From our review, there is

nothing in the record to support the trial court’s finding that Mother should be solely

responsible for Ethan’s tuition, and that decision is vacated. Should the trial court revisit

this question on remand, we caution that it should apply the Child Support Guidelines as a

rebuttable presumption. Should the trial court deviate from those Guidelines, it should

endeavor to explain its decision to do so.

As a final matter, Father asks for appellate attorney’s fees and costs under Tennessee

Code Annotated § 36-5-103(c), which provides, in part, that “[a] prevailing party may

recover reasonable attorney’s fees . . . .” Here, Father is not the prevailing party and, so,

is not entitled to an award of attorney’s fees. Therefore, his request for same is denied.

V. Conclusion

For the foregoing reasons, we vacate the trial court’s order adopting a modified PPP

and child support worksheet. We also vacate the trial court’s decision to charge Mother

with Ethan’s private school tuition. The trial court’s order is otherwise reversed, and the

case is remanded for such further proceedings as may be necessary and are consistent with

this opinion. Costs of the appeal are assessed to the Appellee, Fred Barksdale Smithwick,

IV. Execution for costs may issue if necessary.

s/ Kenny Armstrong

KENNY ARMSTRONG, JUDGE

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