Alanna Christine Howe v. John Ashley Howe

04/10/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 14, 2016 Session

ALANNA CHRISTINE HOWE V. JOHN ASHLEY HOWE

Appeal from the Chancery Court for Hamilton County

No. 070768 Pamela A. Fleenor, Chancellor

No. E2016-01212-COA-R3-CV

This post-divorce appeal concerns the requested modification of a parenting plan

designating the father as the primary residential parent and awarding the mother

reasonable visitation. The mother filed a petition to modify, alleging that a material

change in circumstances necessitated her designation as the primary residential parent.

The father objected and filed a motion for contempt for failure to pay child support.

Following a hearing, the court held the mother in contempt for failure to pay and denied

her request for designation as the primary residential parent. However, the court awarded

her additional co-parenting time, finding that a modification of the residential schedule

was warranted. The mother appeals. We affirm the decision of the trial court.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.

SUSANO, JR., and THOMAS R. FRIERSON, II, JJ., joined.

Paul W. Ambrosius, Nashville, Tennessee, for the appellant, Alanna Christine Howe.

John P. Konvalinka, Cleveland, Tennessee, for the appellee, John Ashley Howe.

OPINION

I. BACKGROUND

Alanna Christine Howe (“Mother”) and John Ashley Howe (“Father”) were

married on December 19, 1992. One child (“the Child”) was born of the marriage in

September 2005. Mother filed a complaint for divorce on August 30, 2007.

Mother and Father (collectively “the Parties”) were divorced by order of the court

on September 8, 2008. The divorce decree incorporated a parenting plan in which Father

was designated as the primary residential parent, while Mother was granted 65 days of

co-parenting time. Mother was also tasked with remitting child support at a rate of $498

per month for an initial six-month period and $758 per month thereafter pursuant to an

imputed income “unless she produced documentation to [Father] which would

substantiate an income for child support purposes.” Thereafter, Mother moved to

Florida. The residential schedule became unworkable given her move; however, Father

offered alternative visitation in keeping with the parameters of the parenting plan.

On August 27, 2014, Mother filed a petition to modify the parenting plan to reflect

her designation as the primary residential parent. In support of her petition, she alleged

the following material change in circumstances:

a. [Father’s] verbal and physical abuse of [the Child], including fits of

anger directed at [the Child;]

b. [Father’s] cohabitating or staying overnight with romantic

acquaintances, while in the presence of [the Child];

c. [Father’s] travel out-of-town for extended periods, with the minor

child being kept by [Father’s] romantic acquaintances;

d. [Father’s] failure to comply with his designated parenting times with

[the Child];

e. [Father’s] failure to provide for appropriate medical and dental care

for [the Child]; and

f. [Father’s] failure to notify [Mother] of events and activities

regarding [the Child’s] school.

Mother further alleged that Father should be held in contempt for failure to comply with

the court order prohibiting him from making derogatory remarks about her to the Child or

in the presence of the Child.

Father denied Mother’s allegations but agreed that a change in the residential

schedule was warranted given her relocation to Florida. He also filed a petition for

contempt for failure to pay child support in accordance with the court order. He provided

that Mother arbitrarily remitted payment at a rate of $280 per month, despite the order

directing payment of $758 per month. He further alleged that Mother had obtained

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gainful employment and realized a substantial increase in income, thereby necessitating

an increase in the amount of support due.

Mother returned to Tennessee during the pendency of the hearing on the petition.

Prior to the hearing on the petition, Mother requested permission to present the Child as a

witness for an in camera hearing. The court-appointed guardian ad litem objected to the

request. The court initially reserved ruling on the issue but ultimately denied Mother’s

request to call the Child as a witness.

At the hearing, the Parties each presented exhaustive testimony concerning the

other’s shortcomings as a parent and repeated attempts to antagonize the other parent.

These allegations were supported by a number of character witnesses. Much of the

testimony will not be recounted here because it is not relevant to the issues raised.

As pertinent to this appeal, Mother testified concerning Father’s verbal and

physical abuse of the Child. Father admitted that he spanked the Child with a belt on one

occasion within the last three years and that he told her to get her “ass” in the car on

another occasion. Mother also testified concerning the Child’s reluctance to return to

Father after visitation.1 She claimed that the Child was also unhappy with her current

school. Father explained that the Child often went through an adjustment period after

returning from visitation with Mother.

Mother testified concerning Father’s relationship with two women, Kelly Lawson

and Hollis Keene. She claimed that he stayed overnight with these women while the

Child was present and that the Child viewed inappropriate material while in his care.

Father conceded that he spent the night with Ms. Lawson on a regular basis and with Ms.

Keene on two occasions while with the Child. He also admitted to leaving the Child with

Ms. Lawson while he went on a missions trip. He likewise admitted that the Child

viewed an inappropriate video while he was with Ms. Keene.

Mother claimed that Father failed to take the Child to medical appointments and

allowed her to stay home from school on occasion for no reason. Father admitted that

Mother kept medical appointments for the Child while he did not. He agreed that he

allowed the Child to stay home from school on one occasion. He explained that they

were both not feeling well and that he decided to stay home to spend time with her.

Mother testified that she presented Father with income information upon which

child support could be calculated and that she remitted payment in accordance with that

1

Mother’s claim was verified by Rosella Parolari, Sherry Bishop, and Amy Daniels.

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information.2 She provided that she was employed by a church at a rate of $10 per hour

shortly following the divorce. She said that she moved to Florida in January 2013 to

pursue an employment opportunity that allowed her to realize an increased income of

$76,000 per year. She maintained her employment until February 2015, when she

accepted employment as dean at a university. She noted that her income increased from

$76,000 to $85,000 per year. She maintained her employment until May 2015, when she

returned to Tennessee to be with the Child. She explained that she was able to maintain

her employment in a different capacity but that her income decreased to $35,000 per year.

Father agreed that he discussed Mother’s income information with her and that he

received some documentation. He claimed that he was unsure how she calculated her

support obligation. He asserted that she failed to increase her payments as her income

increased and to provide income information on a yearly basis as required.

Following the hearing, the Guardian advised the court that the Child would like to

spend more time with Mother. However, the Guardian believed that the continued

designation of Father as the primary residential parent was in the Child’s best interest.

The trial court agreed and found that Mother failed to establish a material change in

circumstances supporting her requested designation as the primary residential parent.

However, the court awarded her 135 days of co-parenting time, finding that a material

change in circumstances warranted modification of the residential schedule. Relative to

child support, the court found Mother in contempt for failure to remit payment as ordered

and entered judgment against her for the arrearage. In so finding, the court

acknowledged that Mother had presented proof of her income to Father but that she

failed to seek relief from the court order by filing a petition to modify her support

obligation. The court ordered each party to pay their own attorney fees and to split the

Guardian’s fee. The Parties each filed a motion. This timely appeal followed the

consideration of the motions and entry of an amended order.

II. ISSUES

We consolidate and restate the issues on appeal as follows:

A. Whether the trial court abused its discretion in refusing to permit the

in camera testimony of the Child.

B. Whether the trial court abused its discretion in excluding the

testimony of Mother’s former attorney.

2

Mother presented an offer of proof in the form of testimony from her prior attorney, Pam O’Dwyer, who

confirmed Mother’s assertion.

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C. Whether the trial court erred in finding Mother in contempt.

D. Whether the trial court abused its discretion in failing to award

Father attorney fees and expenses at trial.

III. STANDARD OF REVIEW

After a bench trial, we review a trial court’s findings of fact de novo with a

presumption of correctness unless the preponderance of the evidence is otherwise. Tenn.

R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). Because the trial

court is in the best position to observe witnesses and evaluate their demeanor, we afford

great deference to a trial court’s credibility determinations. Hughes v. Metro. Govt. of

Nashville and Davidson Cnty., 340 S.W.3d 352, 360 (Tenn. 2011). We review questions

of law de novo with no presumption of correctness. Whaley v. Perkins, 197 S.W.3d 665,

670 (Tenn. 2006).

Rulings on admissibility of evidence are within a trial court’s discretion, and an

appellate court will set aside such decisions “when the trial court has misconstrued or

misapplied the controlling legal principles or has acted inconsistently with the substantial

weight of evidence.” White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn. Ct. App.

1999). We review the decision of the trial court to determine: “(1) whether the factual

basis for the decision is supported by the evidence, (2) whether the trial court identified

and applied the applicable legal principle, and (3) whether the trial court’s decision is

within the range of acceptable alternatives.” Id. at 223. Improper admission or exclusion

of evidence requires a new trial if the outcome of the trial was affected. Tenn. R. App. P.

36(b); White, 21 S.W.3d at 222.

IV. DISCUSSION

A.

Mother argues that the court abused its discretion in denying her request to present

the Child as a witness to her allegations of physical and emotional abuse and neglect.

She asserts that she is entitled to a new hearing because her attempt to support the factual

allegations of her petition was thwarted by the court’s erroneous refusal to consider the

Child’s testimony. Father responds that the court did not abuse its discretion in excluding

the Child’s testimony when the testimony would have been cumulative and biased by

Mother’s influence. He explains that he admitted to the majority of Mother’s allegations

and that despite his admissions, the court still denied Mother’s requested designation as

the primary residential parent.

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In denying Mother’s request to call the Child as a witness, the court found as

follows:

The [c]ourt is going to exercise its discretion and not hear testimony from

the [C]hild. She’s under 12 years of age. I don’t want to put her through

this. I have examined other children that are teenagers. It’s very difficult.

I’ve never had one that was not difficult.

I also believe that she’s very much aware of this case and this case has been

discussed with her, she is in the middle, and she’s been influenced, if not

coached, and I don’t believe it’s going to assist the [c]ourt in any way in

making its decision. So the [c]ourt’s going to exercise its discretion and not

interview [her], although I’ve heard a lot of wonderful things about her and

I certainly would love to meet her at some point, but I’m not going to put

her through that.

Relevant evidence is defined by Rule 401 of the Tennessee Rules of Evidence as

“evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without

the evidence.” Tenn. R. Evid. 401. “In other words, evidence is relevant if it helps the

trier of fact resolve an issue of fact.” Neil P. Cohen, et al., Tennessee Law of Evidence §

4.01[4], at 4-9 (5th ed. 2005). “Evidence which is not relevant is not admissible.” Tenn.

R. Evid. 402. If the evidence is relevant, it is admissible unless another legal rule

excludes it. Tenn. R. Evid. 402.

Under Rule 403 of the Tennessee Rules of Evidence, the trial court may exclude

relevant evidence “if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” This rule

requires trial courts to conduct a two-part balancing test. White, 21 S.W.3d at 227. First,

the trial court must “balance the probative value of the [challenged evidence] against the

countervailing factors.” Id. “After the court has engaged in the balancing analysis, it

may then exercise its discretion to determine whether the evidence should be excluded if

the prejudice substantially outweighs the probative value of the evidence.” Id. (citation

omitted).

The trial court is best situated to conduct the Rule 403 balancing test. Here, the

proffered testimony concerned the Child’s desire to live with Mother and her

corroboration of Mother’s factual allegations contained in the petition. Assuming,

without deciding, that the Child’s testimony was relevant, her corroboration of Mother’s

factual allegations was of minimal probative value when the record reflects that Father

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admitted to the majority of the allegations. Additionally, the Guardian advised the court

of the Child’s desire to spend more time with Mother. In deference to the trial court’s

discretion in such matters, we affirm the court’s ruling.

B. & C.

Mother argues that the court erred by holding her in contempt for failure to pay

child support when she followed the express terms of the court’s order by providing

Father with income information upon which child support could be calculated. She

further claims that the court abused its discretion in excluding testimony from her former

attorney that would have substantiated her claim. Father responds that the court did not

err by holding Mother in contempt for failure to pay child support when the support order

was never modified. He explains that the proffered testimony was irrelevant because the

court holds the exclusive authority to modify a child support obligation.

Here, the proffered testimony would have simply corroborated Mother’s claim that

she provided Father with income information upon which child support could be

calculated. Assuming, without deciding, that the testimony was relevant, her

corroboration of Mother’s factual allegations was of minimal probative value when the

record reflects that Father admitted to the receipt of some income information.

Moreover, a child support order is not subject to modification prior to the date that an

action for modification is filed. Tennessee Code Annotated section 36-5-101(f)(1)

provides, in pertinent part, as follows:

Any order for child support shall be a judgment entitled to be enforced as

any other judgment of a court of this state, and shall be entitled to full faith

and credit in this state and in any other state. Except as provided in

subdivision (f)(6), such judgment shall not be subject to modification as to

any time period or any amounts due prior to the date that an action for

modification is filed and notice of the action has been mailed to the last

known address of the opposing parties. If the full amount of child support

is not paid by the date when the ordered support is due, the unpaid amount

is in arrears, shall become a judgment for the unpaid amounts, and shall

accrue interest from the date of the arrearage at the rate of twelve percent

(12%) per year. All interest that accumulates on arrearages shall be

considered child support.

(Emphasis added.). Accordingly, we affirm the court’s finding of contempt and the

exclusion of the attorney as a witness.

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D.

Father claims that the court abused its discretion in failing to award attorney fees

and expenses, including the cost of the Guardian, at trial because he was successful on

the pertinent issues before the court. Tennessee follows the American Rule which

provides that “litigants pay their own attorney’s fees absent a statute or an agreement

providing otherwise.” State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194

(Tenn. 2000); accord Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005). “Under the

American [R]ule, a party in a civil action may recover attorney fees only if: (1) a

contractual or statutory provision creates a right to recover attorney fees; or (2) some

other recognized exception to the American [R]ule applies, allowing for recovery of such

fees in a particular case.” Cracker Barrel Old Country Store, Inc. v. Epperson, 284

S.W.3d 303, 308 (Tenn. 2009).

A right to recover attorney fees in custody disputes was created in Tennessee Code

Annotated 36-5-103(c), which provides,

The plaintiff spouse may recover from the defendant spouse, and the spouse

or other person to whom the custody of the child, or children, is awarded

may recover from the other spouse reasonable attorney fees incurred in

enforcing any decree for alimony and/or child support, or in regard to any

suit or action concerning the adjudication of the custody or the change of

custody of any child, or children, of the parties, both upon the original

divorce hearing and at any subsequent hearing, which fees may be fixed

and allowed by the court, before whom such action or proceeding is

pending, in the discretion of such court.

(Emphasis added.). In deference to the trial court’s discretion in such matters, we affirm

the court’s refusal to award attorney fees and expenses, including the cost of the

Guardian, at trial.

V. CONCLUSION

The decision of the trial court is affirmed. The case is remanded for such further

proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Alanna

Christine Howe.

_________________________________

JOHN W. McCLARTY, JUDGE

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