Daniel Anthony Norfleet v. Audra Ann Norfleet

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 18, 2013 Session

DANIEL ANTHONY NORFLEET V. AUDRA ANN NORFLEET

Appeal from the Chancery Court for Montgomery County

No. MCCHCVDI03515 Ross H. Hicks, Judge

No. M2013-00652-COA-R3-CV - Filed April 9, 2014

This is an appeal from a finding of contempt. When the parents of a six year old girl

divorced, they agreed to name the father as the child’s primary residential parent. The

mother subsequently acted in a hostile and uncooperative way towards the father, and her

parenting time was reduced. Shortly thereafter, the father filed a petition for contempt,

alleging that the mother had failed to pay court-ordered child support for four consecutive

months. Following a hearing, the trial court held the mother in contempt. She argues on

appeal that the trial court erred by trying criminal and civil contempt in the same proceeding.

She also argues that the trial court’s order was invalid, because it did not specifically state

that her actions were “willful.” We affirm the trial court.

Tenn R. App. P. 3 Appeal As of Right; Judgment of the Chancery Court Affirmed

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.

C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.

Dan Richard Alexander, Nashville, Tennessee, for the appellant, Audra Ann Norfleet.

Melissa A. King, Peter M. Napolitano, Clarksville, Tennessee, for the appellee, Daniel

Anthony Norfleet.

OPINION

I. A P ARENTING P LAN AND AN A CTION FOR C ONTEMPT

Daniel Norfleet (“Father”) and Audra Norfleet (“Mother”) were granted an

uncontested divorce in 2007. Under the terms of their Marital Dissolution Agreement, Father

was named in the Parenting Plan as the Primary Residential Parent of the parties’ daughter

Amber, born in 2000. The Residential Parenting Schedule provided that Father would spend

195 days with the child each year, and Mother would spend 170 days. Mother was ordered

to pay Father $185 a month, in accordance with the income shares child support guidelines.

Father subsequently petitioned the trial court for a modification of the Parenting Plan

and for a restraining order. He alleged that Mother had violated the conditions and the spirit

of the Parenting Plan in numerous ways.1 On April 18, 2011, the trial court granted Father’s

petition, entered the restraining order and modified the Parenting Plan. The new Residential

Schedule gave Father 285 days with the child, and reduced Mother’s parenting time to 80

days. Mother’s child support obligation was also reduced, to $174 a month.

On June 21, 2011, Father filed a pleading captioned “ Petition for Criminal Contempt

and Further Modification of Parenting Plan and Application for New Restraining Order.”

He also filed a Notice of Rights and served it on Mother in conformity with the due process

requirements of Tenn. R. Crim. P. 42(b) applicable to a petition for criminal contempt.2

Father’s petition recited allegations similar to those made earlier, including Mother’s

continuing failure to pay her child support obligations, and it stated that Mother had been

convicted of three criminal offenses on April 28, 2011.

According to the petition, Mother was convicted of one count of assault against

Father’s girlfriend during an exchange of the child, and one count of assault and one count

of obstruction of service of process stemming from Mother’s assault upon a process server

who was attempting to serve the court’s restraining order on her. Mother was sentenced for

her offenses to two concurrent six-month sentences in the Montgomery County jail.

Father filed an amended petition on November 11, 2011. He alleged that since the

filing of his original petition, Mother had “committed further acts of misconduct constituting

both civil and/or criminal contempt . . .” These included the filing of additional false charges

against Father, an incident in which DCS cited Mother for beating the child with a hairbrush

while the child was in Mother’s custody, and “entrusting” the child with her boyfriend, a

convicted criminal, when she entered jail for the first time, rather than returning the child to

Father’s care. Father requested that Mother be found in criminal contempt, “or in the

1

Father’s first petition to modify the parenting plan and for a restraining order is not found in the

record. Our account of the allegations found in that petition is based on a later petition filed by Father,

which included a long list of Mother’s alleged violations of the parenting plan, “[p]rior to, during and

after the prior petition was filed against her . . .”

2

Rule 42(b) requires that, except in the case of a contempt committed in the presence of the

judge, a criminal contempt must be prosecuted on notice, and such notice shall state the time and place of

the hearing, allow the defendant a reasonable time to prepare a defense, and state the essential facts

constituting the criminal contempt charged and describe it as such.

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alternative civil contempt and punish her accordingly.”

II. T HE F INAL C ONTEMPT H EARING

The trial court conducted the final hearing on December 28, 2012. Mother was

represented by appointed counsel. The court announced early in the proceedings that “there

are actually three matters before the Court. Mr. Norfleet’s Contempt Petition against Ms.

Norfleet, Mr. Norfleet’s Petition to Modify the Parenting Plan, and Ms. Norfleet’s Order of

Protection against Mr. Norfleet.” Father and Mother both testified at length and Mother’s

mother testified briefly. The trial judge also heard from the parties’ child in chambers in the

presence of the attorneys for both parties. The parties stipulated to Mother’s three

convictions, as well as to Mother’s arrest and indictment for filing a false police report

against Father.3 The court also heard testimony about a pro se order of protection that

Mother had taken out against Father after he allegedly threatened to kill her.

Father testified in detail about numerous incidents where police officers came to his

door as the result of Mother’s allegations of abuse by Father and her request for a welfare

check. He stated that he let the officers in each time and let them speak to the child, that the

officers were satisfied that there was no problem, and that DCS concluded that all the

allegations were unfounded. He also testified that the repeated visits by the officers left the

child frightened every time the doorbell rang or there was a knock on the door.

Father testified that Mother sold a seven acre piece of real property in August of 2012

for about $27,000, and that she subsequently paid her child support arrearage up to that date.

However, she did not pay any support for September, October, November or December 2012.

When Mother took the stand, she testified that she had worked at an emergency room

technician until August of 2010, but that she was currently unemployed and was looking for

work. She also stated that she had five ruptured discs in her spine and two compressed discs

in her neck, that she had applied for social security disability and that she had paid whatever

child support she could.

Mother was questioned at length about the property sale and the disposition of the

proceeds. She testified that she couldn’t recall how much she was paid for the land, or how

much she received in the end. She stated that after paying the auctioneer, her pro rata share

3

Mother’s trial on that charge was scheduled for January 13, 2013.

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of taxes and the child support arrearage, there was almost nothing left.4 When challenged

to produce some documentation about the sale, she was unable to do so. She stated that she

couldn’t produce the closing statement and that she didn’t know if she had ever gotten it,

“because everything was going to be mailed.”

Mother also testified that she was living in a house that she bought using the assets

she had acquired as a result of the divorce. She couldn’t remember how much she paid for

the house or how much for the down payment, but she knew the amount of her mortgage

payment, “around $1012.20 a month.” She testified that she paid her living expenses with

the help of a female friend, but refused to reveal her friend’s name because the friend is a

very private person and “I would not like my friend harassed by my ex-husband.”

Mother denied that she had hit the child with a hairbrush, and she stated that Father

had told the child to lie about that. She testified that she took out an order of protection

against Father because during a phone call about an incident at daycare, Father threatened

to kill her. She stated that “I believed him because he’s hired someone to assault me in the

past.” She frequently responded to yes and no questions by launching instead into

accusations against Father, and when asked if she had proof about those accusations, she

answered that she did. But the proof almost always involved telling the court to ask someone

about it who was not in the courtroom, or to look at information in a document that she

couldn’t produce. In short, much of Mother’s testimony was evasive and argumentative.

At the conclusion of testimony, the trial court ruled from the bench. The court

declared that Mother was not credible, including her testimony in regard to the sale of her

property. It declared that it would accept her testimony that she was not currently employed,

and that her health issues made it difficult for her to find employment, but that it believed she

was employable. For the purposes of this appeal, its most important ruling was that “Ms.

Norfleet is in contempt of court with respect to her failure to pay child support due in

September, October, November and December 2012. The court finds that she has had and

does have the ability to have paid, and it’s not much, it’s 160-something dollars a month that

she’s supposed to be paying in child support under the current order.”

The court accordingly found her guilty of four counts of contempt and sentenced her

to ten days in the Montgomery County Jail on each count. The sentence was suspended to

two days on each count, to be served over four weekends. The court also dismissed the order

of protection, noting Mother’s general lack of credibility and the fact that she had taken the

4

Mother testified that the property was unencumbered by any mortgage. The record showed that

a lien had been placed on the property for $6324 in unpaid child support, and that amount was paid into

court to satisfy the lien.

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order out three months after Father’s alleged threat to kill her. The court also further reduced

Mother’s parenting time. The court’s ruling was memorialized in an order entered on

January 29, 2013. This appeal followed.

III. A NALYSIS

A. The Standard of Review

The only issue Mother raises on appeal is the matter of contempt. She argues that the

court erred in not specifying whether it found her in civil contempt or criminal contempt, by

trying the contempt in conjunction with the petition for modification rather than in a separate

proceeding, and that the basis for the court’s finding of contempt was not a permissible one.

Our review of the trial court’s conclusions of law is de novo, with no presumption of

correctness. Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006); Union Carbide Corp.

v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

With regard to the trial court’s findings of fact, our review on appeal of is de novo

with a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R.

App. P. 13(d); Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn. 2006); Bogan v. Bogan, 60

S.W.3d 721, 727 (Tenn. 2001); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). When

we review factual findings that are based on credibility we must give considerable deference

to the trial courts, because they are in a far better position to observe the demeanor of

witnesses than are the appeals courts. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.

1995); Fell v. Rambo, 36 S.W.3d 837, 846 (Tenn. Ct. App. 2000).

B. Civil and Criminal Contempt

The power of the courts to punish for contempt has long been recognized as essential

to the proper administration of justice. Konvalinka v. Chattanooga-Hamilton County

Hospital Authority, 249 S.W.3d 346, 354 (Tenn. 2008) (citing Winfree v. State, 135 S.W.2d

454, 455 (Tenn. 1940); State v. Galloway, 45 Tenn. (5 Cold.) 326, 331 (1868)). Because of

the potential for abuse of that power, our legislature has enacted statutes to define and limit

the contempt power. Konvalinka, 249 S.W.3d at 354; Black v. Blount, 938 S.W.2d 394, 397

(Tenn. 1996).

Conduct punishable as contempt includes, “[t]he willful disobedience or resistance

of any officer of the such courts, party, juror, witness, or any other person, to any lawful writ,

process, order, rule, decree, or command of such courts.” Tenn. Code Ann. § 29-9-102(3).

An act of contempt may be punished by a fine of up to $50, “and imprisonment not

exceeding ten (10) days.” Tenn. Code Ann. § 29-9-103(b). The trial court in this case held

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Mother in contempt for failing to comply with its order to pay child support.

Contempts are normally classified as either civil or criminal. Civil contempts are

brought to enforce private rights when a party refuses or fails to comply with a court order.

Black v. Blount, 938 S.W.3d at 398. Imprisonment for civil contempt is coercive or remedial

in character. Its primary purpose is to compel the contemnor to comply with the court’s

order. Compliance will result in immediate release from incarceration. Therefore the

contemnor is often said to “carry the keys to his prison in his own pocket.” Black v. Blount,

938 S.W.3d at 398 (citing State ex rel Anderson v. Daugherty, 191 S.W. 974 (Tenn. 1917));

Crabtree v. Crabtree, 716 S.W.2d 923, 925 (Tenn. Ct. App. 1986).

In contrast, sanctions for criminal contempt are punitive in character. Their primary

purpose is to preserve and vindicate the authority of the law and of the courts that exercise

that authority. Doe v. Board of Professional Responsibility, 104 S.W.3d 465, 474 (Tenn.

2003); Black v. Blount, 938 S.W.3d at 397. Persons imprisoned for criminal contempt cannot

be freed by eventual compliance with the court’s orders. Robinson v. Fulliton, 140 S.W.3d

304, 310 (Tenn. Ct. App. 2003).

Because of their punitive nature, our courts have deemed criminal contempt

proceedings to be “quasi-criminal” in nature. Shiflet v. State, 400 S.W.2d 542, 544 (Tenn.

1966) (citing State v. Daugherty, 191 S.W. at 974). As such, many of the due process

protections that apply to other criminal proceedings, such as adequate notice, a presumption

of innocence and the right to an attorney apply to proceedings for criminal contempt as well.

However, contempts have also been described as sui generis. Unlike all other offenses that

are tried in our courts, they are incidental to the cases out of which they arise. Doe v. Board.

of Professional Responsibility, 104 S.W.3d at 474. “Prosecutions of criminal contempt ‘are

not intended to punish conduct proscribed as harmful by the general criminal laws. Rather,

they are designed to serve the limited purpose of vindicating the authority of the court.’”

Lovvorn v. Lovvorn, M2007-01834-COA-R3-CV, 2008 WL 2343645 at *2 (Tenn. Ct. App.

June 4, 2008) (no Tenn. R. App. P. 11 application filed) (quoting Black v. Blount, 938

S.W.2d at 402)).

Mother argues that the conduct of the proceeding below was seriously flawed because

Father alleged both civil and criminal contempt in the same petition, because the question of

contempt was tried in conjunction with Father’s petition for modification and Mother’s order

of protection rather than in a separate proceeding, and because the trial court’s order did not

specify whether it held Mother in civil contempt or criminal contempt. She accordingly

urges this court to reverse the finding of contempt.

We note, however, that Mother did not object at trial to the trial court’s failure to

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specify whether criminal and civil contempt was at issue. Nor did she ask that the proof be

bifurcated or that the question of contempt be tried in a proceeding separate from the

modification of the parenting plan. Under the Tennessee Rules of Appellate Procedure, this

court is not required to grant relief to a party who is responsible for an error at trial, “or who

failed to take whatever action was reasonably available to prevent or nullify the harmful

effect of an error.” Tenn. R. App. P. 36.

But even if she had timely objected to the trial court’s conduct of the hearing, we see

nothing in that hearing that rises to the level of reversible error. Mother relies on language

in an unpublished opinion in which this court reversed and vacated a judgment for criminal

contempt. Explaining our decision, we observed among other things that “[c]ivil and

criminal contempt proceedings should not be tried simultaneously because of the significant

differences in the respective burdens of proof and procedural rights accorded to the person

accused of contempt.” Cooner v. Cooner, No. 01–A–01–9701–CV–00021, 1997 WL 625277

at *15 (Tenn. Ct. App. Oct. 10, 1997).

The Cooner court found, however, that an even more significant deficiency in the

proceedings below was the failure to give the alleged contemnor adequate notice of the

charges against her. This courts has held many times that a finding of criminal contempt

cannot be sustained unless the contemnor has received adequate notice in accordance with

the mandates of Tenn. R. Crim. P. 42(b). Long v. McAllister-Long, 221 S.W.3d 1, 13 (Tenn.

Ct. App. 2006); Storey v. Storey, 835 S.W.2d 593, 600 (Tenn. Ct. App. 1992); Sprague v.

Sprague, E2012-01133-COA-R3-CV, 2013 WL 3148278 (Tenn. Ct. App. June 18, 2013) (no

Tenn. R. App. P. 11 application filed); Jones v. Jones, 01A01-9607-CV-00346, 1997 WL

80029 (Tenn. Ct. App. Feb. 26, 1997).

In Freeman v. Freeman, 147 S.W.3d 234 (Tenn. Ct. App. 2003), the trial court found

the husband in civil contempt for failing to pay alimony in accordance with its orders. The

husband cited Cooner v. Cooner on appeal and argued that the proceedings below were

tainted because the wife’s petition alleged both civil and criminal contempt. We discussed

Cooner v. Cooner at length in our opinion, and concluded that “[t]he mere allegation in

Wife’s petition seeking both civil and criminal contempt does not prejudice the judicial

process and allows the petitioner to elect to proceed on one or the other, providing, of course,

that the proper notice is afforded to the respondent.” Freeman v. Freeman, 147 S.W.3d at

244.

The caption of Father’s petition included the words “Criminal Contempt,” and in its

body he specifically asked the trial court to hold Mother in criminal contempt, because she

had not paid her court-ordered child support obligations. He also filed a “Notice of Rights,”

to inform Mother of the constitutional rights that she was entitled to exercise as a defendant

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in an action for criminal contempt. Therefore, unlike the defendant in Cooner, Mother

received all the notice to which she was legally and constitutionally entitled.5

As for trying the contempt in the same proceeding as the modification petition and the

order of protection, we acknowledge that such a practice involves the same difficulties as

were mentioned by the Cooner court in regard to trying criminal and civil contempt in the

same proceeding: that is, the differences in the respective burdens of proof and in the

procedural rights of the parties. However, the same conduct that impels a party to seek

enforcement or modification of a prior order of the court, such as a failure to pay child

support or a failure to comply with a parenting order, can also support an action for

contempt.

Thus, even though it may be better in some ways to try contempt separately from other

claims, it is not unusual for a contempt charge to be tried together with the case from which

it arose, for reasons of judicial economy and for the convenience of the parties. In such

cases, it is important for the trial court to keep the distinctions between the various claims

in mind.

In the present case, the court stated at the outset of the hearing that it would be trying

three different claims, and after hearing all the evidence it once again identified the three

matters at issue and recited the evidence it relied on to reach its decision on each of them.

The trial court clearly recognized the differences between the pleadings before it and the

proof required for each. We find no reversible error in the trial court’s reasoning or in its

conduct of the proceedings below.

C. The Basis of the Trial Court’s Ruling

Mother argues that the trial court held her in contempt on the basis of conduct which

was insufficient to sustain such a finding. To support that argument, she selectively quotes

the following language from the trial court’s order:

The Court’s finding of contempt is based on several factors, primarily

5

We note that although the practice of combining claims for civil and criminal contempt in the

same proceeding has sometimes been criticized, it is not at all uncommon. See, for example, Overnite

Transportation Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 509 (Tenn. 2005); Jarrell v.

Jarrell, W2011-00578-COA-R3-CV, 2012 WL 1066398 (Tenn. Ct. App. Mar. 28, 2012); Weissfeld v.

Weissfeld, E2004-00134-COA-R3-CV, 2004 WL 2070979 (Tenn. Ct. App. Sept. 16, 2004). In those

cases where a finding of criminal contempt has been reversed or vacated, some other deficiency in the

proceedings, such as lack of adequate notice, is usually the reason for the decision. See Storey v. Storey,

835 S.W.2d 593, 600 (Tenn. Ct. App. 1992).

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the Respondent’s total lack of credibility with this Court previously and in her

testimony in this hearing today.

Respondent repeatedly trifled with the Court and Petitioner’s counsel

when questioned about the proceeds of the sale of her land in August, 2012.

She denied receiving any proceeds or a closing statement and refused to

disclose how the proceeds were disbursed.

The Court finds that not only was Respondent, Audra Norfleet’s

credibility questionable, but rather that she outright lied to the court under oath

when questioned specifically by this Court.

Mother points out that lack of credibility is not a ground for contempt, and that while

lying to the court may constitute grounds for a perjury action, it is likewise not a ground for

contempt. See Moody v. Hutchinson, 159 S.W.3d 15 (Tenn. Ct. App. 2004).

But Mother is misconstruing the trial court’s meaning, because immediately before

the above-quoted language in the same order, the trial court addressed the contempt claim

as follows,

As to No. 1: Petition for Criminal Contempt, the Court finds the Respondent

guilty of four (4) counts of Contempt for non-payment of child support for

September, October, November and December, 2012. As before, the

Respondent has had and does have the ability to pay her child support and has

not done so. Further, the Court finds that she is employable and has the ability

to pay.

The very same finding was then repeated immediately after the language about

credibility and lying. That language was therefore merely an explanation of why the court

did not credit Mother’s testimony about her lack of financial resources. It was undisputed

that she did not pay child support for four consecutive months. Thus, contrary to Mother’s

argument, it is clear that the trial court based its finding of contempt on her failure to pay

child support when she had the ability to pay, not on her failure to be honest with the court.

D. The Question of Willfulness

Tenn. Code Ann. § 29-9-102 makes “willful disobedience” to the court’s orders a

ground for contempt, so willfulness is one of the essential elements of contempt. Mother

contends that the trial court’s final order is deficient because it did not specifically say that

her failure to pay child support was “willful,” nor was the word “willful” or “willfulness” to

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be found anywhere in that order.

A failure to pay child support is not willful if the obligor does not have the ability to

pay. Cottingham v. Cottingham, 193 S.W.3d 531, 539 (Tenn. 2006); Martin v. Moats,

M2004-01921-COA-R3-CV, 2006 WL 2527641 (Tenn. Ct. App. Aug. 24, 2006) (no Tenn.

R. App. P. 11 application filed). Conversely, the obligor is acting willfully if she has ability

to pay, but does not do so. In the present case, the evidence showed that Mother sold a piece

of land for about $27,000 in August of 2012. While she paid past-due support from the

proceeds of the sale, that amount was only $6,324.00. The trial court explicitly found that

Mother had the ability to pay the modest amount of prospective support as it came due from

the proceeds of that sale. Mother denied that she received any money from the sale of the

property, but the court found that her testimony was not credible.

Unlike this Court, the trial court observed Mother’s manner and demeanor and thus

was in the best position to evaluate her testimony. See, Moody v. Hutchison, 159 S.W.3d 15,

26 (Tenn. Ct. App. 2004). A trial court's determinations regarding credibility are accorded

great deference by this Court. Ibid. (citing Davis v. Liberty Mutual Ins. Co., 38 S.W.3d 560,

563 (Tenn. 2001)).

In a criminal contempt case, the guilt of the accused must be established beyond a

reasonable doubt. Cottingham v. Cottingham, 193 S.W.3d at 538; Black v. Blount, 938

S.W.2d 394 at 398 (Tenn.1996); Moody v. Hutchison, 159 S.W.3d at 25. “However, on

appeal, individuals convicted of criminal contempt lose their presumption of innocence and

must overcome the presumption of guilt. Appellate courts do not review the evidence in a

light favorable to the accused and will reverse criminal contempt convictions only when the

evidence is insufficient to support the trier-of-fact’s finding of contempt beyond a reasonable

doubt.” Moody v. Hutchison, 159 S.W.3d at 25 (quoting Thigpen v. Thigpen, 874 S.W.2d

51, 53 (Tenn. Ct. App. 1993)).

We have examined the appellate record closely, and we find sufficient evidence

beyond a reasonable doubt, to support the trial court’s conclusion that Mother had the ability

to pay, and therefore its implicit corollary that she willfully disobeyed the court’s order to pay

child support. We accordingly affirm its order holding her in contempt of court.

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IV.

The judgment of the trial court is affirmed. We remand this case to the Chancery

Court of Rutherford County for any further proceedings necessary. Tax the costs on appeal

to the appellant, Audra Norfleet.

_________________________________

PATRICIA J. COTTRELL, JUDGE

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