Jeffrey Donald Landis, Sr. v. Regina Marie Landis

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 7, 2016 Session

JEFFREY DONALD LANDIS, SR. v. REGINA MARIE LANDIS

Appeal from the Chancery Court for Cheatham County

No. 15718 Suzanne Lockert-Mash, Chancellor

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No. M2015-02520-COA-R3-CV – Filed October 27, 2016

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In this post-divorce proceeding, ex-husband filed a petition for civil contempt to compel ex-

wife to allow him to retrieve certain items of personal property awarded to him in the parties‟

marital dissolution agreement. The trial court entered an order holding ex-wife in civil

contempt for her failure to turn over certain items. We have reviewed the record and have

determined that the trial court erred in finding ex-husband was entitled to a boat trailer that

was not enumerated in the property list; however, we affirm the trial court‟s finding of civil

contempt.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed in

Part and Affirmed in Part

ANDY D. BENNETT, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,

C.J., and W. NEAL MCBRAYER, J., joined.

Irene R. Haude, Nashville, Tennessee, for the appellant, Regina Marie Landis.

Terrance E. McNabb, Pleasant View, Tennessee, for the appellee, Jeffrey Donald Landis, Sr.

OPINION

Regina Landis and Jeffrey Landis were divorced by final decree entered November

10, 2014. A marital dissolution agreement (“MDA”) incorporated into the final decree of

divorce awarded certain household furniture and other personal property to Mr. Landis. The

MDA lists the following thirty-five items for Ms. Landis to return to Mr. Landis:

1. Skil table saw

2. Lincoln mig welder

3. Dewalt drywall gun

4. Black & Decker jigsaw

5. Yellow transmission jack

6. Ladders (1 – 4 foot; 1 – 8 foot; 1 – 12 foot stepladder)

7. Ladders extension (1 – 12 foot; 1 – 24 foot)

8. 4 saw horses

9. All plastic tool holders

10. Framing square, speed square and drywall square

11. Siding tools

12. 3 – east wing hammers

13. Roofing yard magnet

14. All plumbing tools in basement of house

15. Metal shop with vise

16. Vise on metal stand

17. All business related inventory (filters, oil, lubricants, etc.)

18. Plywood at back of shop

19. Scrap metal at shop

20. All die cast collectibles (CAT equipment, fire and police cars, etc.)

21. Black Winchester gun safe

22. All law enforcement/mechanic manuals and publications

23. All law enforcement equipment (holsters, gear, cleaning equipment,

etc.)

24. Coffee tables which must be returned to Fred and Pat Biggs

25. 17– ½ foot Hydrasport boat with motor and cracked hull

26. Post hole digger and boom pole

27. Tommy Hilfiger gray pea coat, all BDU‟s and sheriff‟s office polos,

jeans, if any remaining

28. All business records, so as to be accountable to the government

29. Copy of all family videos and photos taken throughout the entire

marriage[]

30. Charlie‟s 2-body armors, military surplus equipment

31. Keys and title to the Ford F-150 truck

32. His parents‟ antique desk and chair

33. Parts cleaner vat and cleaning solutions

34. Rolling steps

35. Two bullet levels

The MDA states the following regarding the procedure by which Mr. Landis was to

retrieve the items:

Mrs. Landis shall allow Mr. Landis to retrieve these items of personal property

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from the former marital residence on December 7, 2014 at 10 a.m. Mr. Landis

shall bring one (1) person with him to assist him in retrieving these items.

Neither party shall have any family members or friends present while Mr.

Landis retrieves these items. Mrs. Landis acknowledges that these items

belong to Mr. Landis and are awarded to him and to the best of her knowledge

are still located at the former marital residence. She affirms that she has not

sold, given away, or otherwise disposed of any of these items.

In a separate paragraph, the MDA awarded an “Overholt & Sons storage shed” to Mr. Landis

and required Mr. Landis to have it removed from the former marital property “within sixty

(60) days of the approval” of the MDA by the court.

On April 10, 2015, Mr. Landis filed a Petition for Civil Contempt alleging that Ms.

Landis was in willful civil contempt for refusing to allow Mr. Landis to retrieve twenty-six of

the listed items of personal property and the storage shed. Mr. Landis requested attorney‟s

fees pursuant to paragraph XV of the MDA, which states:

In the event that either party has to petition the Court for enforcement of any of

the provisions of this Agreement, then the party at fault, as determined by the

Court, shall be responsible for reasonable attorney‟s fees, expenses and court

costs in enforcement of the same.

The trial court held a hearing on Mr. Landis‟s petition for contempt on October 30,

2015, and heard testimony from Mr. Landis; Ms. Landis; Terry Forsythe, Ms. Landis‟s uncle;

and Diane Pentecost, Ms. Landis‟s friend. The court entered an Order on December 9, 2015

finding Ms. Landis in civil contempt for her willful failure to return the following items to

Mr. Landis:

One hammer

An Eastwing hammer

A gray Pea Coat

Scrap metal by the boat. (Appears to the Court to be a boat lift)

The boat and the trailer

The boat motor. The Court finds that if it was stolen, she shall reimburse him for it.

All items that are inside the boat

The TBI and FBI manuals

The eight foot step ladder

The law enforcement equipment

Any business records

Dye cast collectibles

Two bullet levels

The Overholt storage shed

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The court further determined that the MDA “is clear and specific as to the personal property

that was ordered to be returned to Mr. Landis” and that Ms. Landis had the ability to comply

with the MDA. The court found the testimony of Ms. Landis was “not credible and basically

disregards most, if not all, of her testimony.” As reasoning for its credibility determination,

the trial court stated:

Specifically, she, under oath, stated that her former husband arrived at two

o‟clock, 2:30, or something of that nature on the date set for him to remove the

items of personal property awarded to him pursuant to the terms of the Final

Decree. The Court finds, however, that her own witness testified that Mr.

Landis arrived around 11:00 a.m. Another contradiction that specifically

bothers this Court is that when the Court asked her who called the officers to

be present, she said her former husband had done so. However, her own

witness testified that Ms. Landis called because she wanted the officers to

oversee Mr. Landis‟ removal of his personal property. When asked why she

did not give the boat trailer which is attached to the boat awarded to Mr.

Landis to him, her response was, “well, it wasn‟t written in there specifically”

and [he] had another boat, a boat and trailer, so she “just assumed.” Then, she

went and loaded the boat awarded to Mr. Landis with just about everything she

could find. The Court finds these actions were being spiteful. She should have

known that he would need the trailer or that he would have had to move the

boat onto another trailer which would have been difficult to do, and certainly

difficult with all of the stuff that she had loaded into the boat.

The court ordered Ms. Landis to pay Mr. Landis‟s attorney‟s fees in the amount of $4,577.18

in addition to the court costs. The court admonished Ms. Landis that she should “get this

over with and obey the orders of this Court.” The court stated that, “if this matter comes

back before the Court because the parties cannot agree and the Court finds Ms. Landis‟[s]

testimony not credible or that she has further attempted to defy the Orders of this Court, this

Court will put her in jail.” Ms. Landis appeals, asserting that the trial court erred in finding

her in contempt and in awarding Mr. Landis his attorney‟s fees.

STANDARD OF REVIEW

We review findings of fact by a trial court de novo upon the record, accompanied by a

presumption of correctness, unless the evidence preponderates otherwise. TENN. R. APP. P.

13(d). When reviewing a trial court‟s findings of civil contempt, “the factual issues of

whether a party violated an order and whether a particular violation was willful, are reviewed

de novo, with a presumption of correctness afforded the trial court‟s findings.” Lovlace v.

Copley, 418 S.W.3d 1, 17 (Tenn. 2013) (citing Konvalinka v. Chattanooga-Hamilton Cnty.

Hosp. Auth., 249 S.W.3d 346, 356-57 (Tenn. 2008)). “A trial court‟s decision to hold a

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person in civil contempt is reviewed using the abuse of discretion standard.” Id. (citing

Konvalinka, 249 S.W.3d at 358); see also Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993).

ANALYSIS

“An act of contempt is a wilful[1] or intentional act that offends the court and its

administration of justice.” Ahern v. Ahern, 15 S.W.3d 73, 78 (Tenn. 2000) (citing Tenn.

Code Ann. § 29-9-102). “Punishment for civil contempt is designed to coerce compliance

with the court‟s order and is imposed at the insistence and for the benefit of the private party

who has suffered a violation of rights.” Wilkinson v. Wilkinson, No. W2012-00509-COA-

R3-CV, 2013 WL 614708, at *5 (Tenn. Ct. App. Feb. 19, 2013). Civil contempt is remedial

in nature and is intended to benefit a litigant rather than to vindicate the court‟s authority.

Cremeens v. Cremeens, No. M2014-01186-COA-R3-CV, 2015 WL 4511921, at *7 (Tenn.

Ct. App. July 24, 2015). To prove a claim of civil contempt based upon an alleged

disobedience of a court order, four essential elements must be established:

(1) the order alleged to have been violated must be “lawful”; (2) the order

alleged to have been violated must be clear, specific, and unambiguous; (3) the

person alleged to have violated the order must have actually disobeyed or

otherwise resisted the order; and (4) the violation of the order must have been

“willful.”

Lovlace, 418 S.W.3d at 34 (citing Konvalinka, 249 S.W.3d at 354-55).

Neither party disputes that the trial court‟s order was lawful. Ms. Landis contends,

however, that the MDA does not clearly, specifically, and unambiguously award the boat

trailer to Mr. Landis, and that the trial court abused its discretion in finding that that she

“willfully” violated the MDA. She also asserts the trial court erred in awarding Mr. Landis

his attorney‟s fees. We will address her contentions in turn.

A. Boat Trailer

The trial court held Ms. Landis in contempt for failing to give Mr. Landis the boat

trailer which was attached to item number twenty-five, the “17– ½ foot Hydrasport boat with

motor and cracked hull.” As reasoning for this determination, the trial court stated:

1

As this Court has recently pointed out, “„Willful is the preferred spelling in [American

English].‟” Burris v. Burris, No. M2015-01969-COA-R3-CV, 2016 WL 5266550, at *3, n.4 (Tenn.

Ct. App. Sept. 20, 2016) (quoting Bryan Garner, GARNER‟S DICTIONARY OF LEGAL USAGE 948 (3d

ed. 2011)). “[T]he spelling „wilful‟ is preferred in British English.” Id. We will use the spelling

“willful” throughout the Opinion.

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When asked why she did not give the boat trailer which is attached to the boat

awarded to Mr. Landis to him, her response was, “well, it wasn‟t written in

there specifically” and [he] had another boat, a boat and trailer, so she “just

assumed.” Then, she went and loaded the boat awarded to Mr. Landis with

just about everything she could find. The Court finds these actions were being

spiteful. She should have known that he would need the trailer or that he

would have had to move the boat onto another trailer which would have been

difficult to do, and certainly difficult with all of the stuff that she had loaded

into the boat.

When questioned about the trailer, Mr. Landis testified:

Q. Were you awarded the trailer?

A. I would think. The trailer went with the boat. You can‟t pull it around

on the ground by itself.

Q. Where does it say on your Final Decree that you were awarded the

trailer? 17 and a half foot hydrosport boat with motor and cracked hull,

correct?

A. I couldn‟t carry it because it was destroyed.

Q. Okay. You were ordered to go and get your stuff on that day and you

didn‟t take it, correct?

A. I couldn‟t take it.

Q. Did you not come prepared to take your boat?

A. Yes, I did.

Q. Yet you didn‟t take it?

A. I couldn‟t take it.

Q. Because you wanted the trailer; is that correct?

A. I was under the impression that the trailer comes with the boat. You

can‟t just haul a boat around on your back.

Q. But again, you understand they‟re three different; a boat, motor, and

trailer are three different items?

A. I understand.

To resolve this issue, we must interpret the MDA and determine whether the trial

court erred in finding that Ms. Landis was required to turn the boat trailer over to Mr. Landis.

An MDA is a contract and is subject to the rules governing construction of contracts.

Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn. 2001). After reviewing the MDA in its

totality, we conclude that the doctrine expressio unius est exclusio alterius is applicable in

this case. “Literally translated, the phrase, expressio unius est exclusio alterius, means: the

expression of one thing is the exclusion of another (of the same kind). Whilst the rule is

more frequently applied to the construction of statutes and wills, it equally is applicable to

other instruments of writing.” City of Knoxville v. Brown, 260 S.W.2d 264, 268 (Tenn.

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1953). The parties were painstakingly specific when they enumerated the items Mr. Landis

was entitled to retrieve. In fact, Mr. Landis testified that it was his “intent that we be very

specific” as to what was awarded to him. Absent from the exhaustive list of items listed in

the MDA is a boat trailer. Applying the maxim expressio unius est exclusion alterius to this

case provides further support for Ms. Landis‟s interpretation that the parties intended the list

to be fully comprehensive of the items Mr. Landis was to receive in the property distribution.

When making a finding of contempt based on an alleged violation of the MDA, the

trial court was required to resolve and interpret any ambiguities in favor of Ms. Landis. See

Konvalinka, 249 S.W.3d at 356 (“Ambiguities in an order alleged to have been violated

should be interpreted in favor of the person facing the contempt charge.”). The boat trailer

was not listed as an item awarded to Mr. Landis, and we find that the trial court erred in

finding that the MDA required Ms. Landis to return the boat trailer to Mr. Landis. Therefore,

we conclude the court erred in holding Ms. Landis in contempt for refusing to return it.

B. Willfulness

Ms. Landis next contends that the trial court erred in finding her in contempt because

she was unable to comply with the MDA at the time of the hearing. Before finding a party in

civil contempt, a court must make a threshold finding that the party violating the order

engaged in willful conduct. Ahern, 15 S.W.3d at 79; Haynes v. Haynes, 904 S.W.2d 118,

120 (Tenn. Ct. App. 1995). ”Willful conduct consists of acts or failures to act that are

intentional or voluntary rather than accidental or inadvertent.” Cisneros v. Cisneros, No.

M2013-00213-COA-R3-CV, 2015 WL 7720274, at *10 (Tenn. Ct. App. Nov. 25, 2015).

Thus, “[h]olding an individual in contempt is an available remedy „only when the individual

has the ability to comply with the order at the time of the contempt hearing.‟” Moore v.

Moore, No. M2004-00394-COA-R3-CV, 2007 WL 2456694, at *3 (Tenn. Ct. App. Aug. 29,

2007) (quoting Ahern, 15 S.W.3d at 79).

As an initial matter, we note that the trial court made a specific finding that Ms.

Landis was “totally not credible.” The court went on to state that it “basically disregards

most, if not all, of her testimony” and “does not believe anything that she said on the stand.”

It is a fundamental principle of appellate review that “trial courts are best situated to

determine the credibility of the witnesses and to resolve factual disputes hinging on

credibility determinations.” Mitchell v. Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998).

As such, this Court declines to second-guess a trial court‟s credibility determination. Id.

Ms. Landis testified that she removed Mr. Landis‟s items of personal property from

the former marital residence, his work shed, and an outbuilding and put everything she could

find from the list in the yard or in the hydrosport boat for him to retrieve. When asked about

specific items that were not made available to Mr. Landis at the property exchange, she

testified either that she did not know what happened to them or denied that she was in

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possession of the items. She also testified that she prevented Mr. Landis from going into the

shop or the outbuilding to make sure he had all of his belongings. However, Ms. Landis

went on to confirm that neither the Final Decree nor the MDA had any provisions that

precluded Mr. Landis from entering the shop or outbuilding.

Mr. Landis testified that he was not able to retrieve all of the items listed in the MDA

on the date of the property exchange. He specifically testified that Ms. Landis did not

“allow” him to obtain the shed. Most of the testimony regarding specific missing items pitted

the parties against each other in a “he said, she said” scenario. The trial court is in the best

position to make a credibility determination in these situations, and we give the court‟s

finding that Ms. Landis was not believable great weight.

After thoroughly reviewing the record, we are unable to conclude that the trial court

abused its discretion in finding Ms. Landis in willful civil contempt. It is undisputed that she

denied Mr. Landis access to certain areas of the property and piled his belongings

haphazardly atop the boat and in the yard. We agree with the trial court that, “the best

solution would be for him to have gone in the house and gotten his items by pointing out to

her what was awarded to him and where such was located inside the house or the detached

workshop.” Accordingly, we affirm the trial court‟s order finding Ms. Landis in civil

contempt for her failure to allow Mr. Landis to retrieve the items awarded to him in the

MDA.2

CONCLUSION

For the foregoing reasons, we reverse the trial court‟s judgment finding Ms. Landis in

contempt for her failure to turn over the boat trailer to Mr. Landis and affirm the trial court‟s

judgment holding Ms. Landis in willful civil contempt for her failure to return the remainder

of Mr. Landis‟s personal property. Costs of this appeal are assessed against the parties

equally, for which execution may issue if necessary.

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ANDY D. BENNETT, JUDGE

2

In her brief, Ms. Landis requests the trial court‟s award of attorney‟s fees be reversed if “this [C]ourt

finds that the ex-wife is not at fault.” Because we have affirmed the trial court‟s finding of civil contempt, we

decline to reverse the trial court‟s award of attorney‟s fees. Likewise, Ms. Landis is not entitled to her

attorney‟s fees on appeal.

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