Jill St. John Parker v. Virgil Duane Parker

03/27/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 3, 2019 Session

JILL ST. JOHN-PARKER v. VIRGIL DUANE PARKER

Appeal from the Circuit Court for Bradley County

No. V-12-473 Lawrence Howard Puckett, Judge

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No. E2018-01536-COA-R3-CV

___________________________________

This is an appeal from a trial court’s order holding an ex-husband in civil contempt on

twelve counts and ordering him to pay $240,507.70 in attorney fees and accounting fees

incurred by the ex-wife in this case and a related bankruptcy proceeding. The ex-

husband appeals. We affirm the judgment and remand for further proceedings.

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

Remanded

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Donald N. Capparella and Kimberly Macdonald, Nashville, Tennessee, for the appellant,

Virgil Duane Parker.

Randall D. Larramore, Chattanooga, Tennessee, for the appellee, Jill St. John-Parker.

OPINION

I. FACTS & PROCEDURAL HISTORY

This is the third appeal in which this Court has considered various issues related to

the contentious divorce of Virgil Duane Parker (“Husband”) and Jill St. John-Parker

(“Wife”). The parties were married for over twenty years and had one child. Husband is

an attorney, and Wife is a certified public accountant. They accumulated a sizeable estate

during the marriage. While the divorce was pending, Husband purchased a 400-acre

ranch for approximately $3 million. Wife remained in the marital residence, valued at

over $1 million.

As we noted in a previous appeal, the parties’ litigation has “a long and

complicated history.” St. John-Parker v. Parker, No. E2014-01338-COA-R3-CV, 2016

WL 2936834, at *1 (Tenn. Ct. App. May 17, 2016). During the divorce proceeding, the

trial court’s main challenge was to classify and divide corporate debentures, or bonds,

worth over two million dollars. The trial court found that Husband lacked credibility,

particularly with respect to financial dealings.1 It took note of his “basic propensity for

sharp dealing or dishonest dealing” in regard to various issues. Husband was disbarred in

Maryland and disciplined by the Board of Professional Responsibility in Tennessee for

“dishonesty, fraud, deceit and misrepresentation.”

Both Husband and Wife presented expert testimony from certified public

accountants. Ultimately, the trial court classified all of the debentures as marital property

and awarded Wife $450,000 out of the debentures. This would have resulted in income

to her of $4,500 per month. However, while the first appeal was pending, this Court

granted Husband’s motion to stay execution on distribution of the assets. As a result,

Wife filed a motion seeking temporary alimony until she was able to secure the judgment

awarded to her by the trial court. She argued that, because of the stay, she was unable to

execute on and secure the funds she needed to provide for her daily living. The trial court

granted Wife’s request and awarded her temporary alimony in the sum of $3,000 per

month, retroactive to the date of the divorce. This created an alimony arrearage of

$60,000. The trial court’s order noted Husband’s “obstructionist behavior in this case,”

and it provided that “execution may issue” on the $60,000 arrearage judgment.2

Husband’s temporary alimony payments were to begin on July 22, 2015. Husband

paid his monthly alimony payment for two months (July and August) “under protest” but

then stopped paying. The record reflects extensive efforts by Wife in the months and

years that followed to enforce the alimony obligation, while Husband engaged in equally

extensive efforts to avoid paying his obligation.

On October 6, 2015, Wife filed a petition for contempt against Husband, alleging

that he had failed to pay temporary alimony as ordered by the court and failed to provide

proof of health insurance coverage for the parties’ son. She sought compensatory

damages and an award of attorney fees. On or about October 12, 2015, Wife caused a

garnishment to be served on Regions Bank, where Husband maintained several bank

accounts, in an attempt to satisfy the alimony arrearage judgment.

Husband filed an answer to the petition for contempt, claiming that he was unable

to make current alimony payments because Wife had garnished his bank accounts,

1

In all fairness, the trial court addressed Wife’s credibility as well, but it found that her

dishonesty related to adultery, not financial matters.

2

The award of temporary alimony was eventually affirmed by this Court. St. John-Parker, 2016

WL 2936834, at *12.

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leaving him unable to tender checks to pay his bills. Husband also filed a motion to

quash the garnishment, claiming that the majority of the funds garnished by Wife actually

belonged to the parties’ son, who had recently attained the age of majority. Wife agreed

to release around $28,800 of the garnished funds on the understanding that they belonged

to their son. However, she later learned that the garnished account was titled in

Husband’s name, contrary to his representations about their son’s ownership. In the end,

the garnishment only successfully captured around $3,000, which was applied toward the

retroactive alimony judgment of $60,000.

Unbeknownst to Wife, shortly after the garnishment at Regions Bank, Husband

initiated a wire transfer of $260,000 from a TD Ameritrade account he owned to a law

firm in Maryland, where his long-time friend and best man from his wedding is employed

as a partner. The money was placed in the law firm’s escrow account. Husband made

other smaller wire transfers during this time as well. Husband left some accounts with no

liquid assets as he opened new accounts at other institutions. During this timeframe,

Husband failed to pay his $3,000 monthly alimony obligation during the months of

September, October, November, and December 2015.

On December 17, 2015, Husband executed a revocable living trust agreement,

naming himself and his son as co-trustees. Husband conveyed to the trust “all of [his]

right, title, and interest in and to all real and personal property, tangible or intangible, of

any nature, in any location, which may be owned by [Husband] or later acquired by

[Husband],” including his $3 million ranch. He also executed a quitclaim deed

conveying the ranch to himself and his son as co-trustees.

In January 2016, Wife notified Husband that she was serving a subpoena on TD

Ameritrade, as she was attempting to locate the $260,000 he wired out of his account

weeks before. The very next day, Husband liquidated his stock positions held in an

account at TD Ameritrade, and he wired roughly $56,500 out of the account days later.

A garnishment was issued against the account that same day, but it came too late because

Husband had already withdrawn the funds, leaving a balance of one dollar.

In early February 2016, garnishments were issued against Husband’s accounts at a

third financial institution, First Tennessee Bank. Husband had just opened an account at

the bank in January, and the garnishment captured nearly $60,000. However, days later,

on February 10, 2016, Husband filed a petition for Chapter 12 bankruptcy (for family

farmers), and the garnishment was released as a result. Husband withdrew $52,500 in

cash from the account on February 11.

Although Wife was unaware of this at the time, after a subpoena was issued to yet

another financial institution, T. Rowe Price, she discovered that an account was opened

for the parties’ nineteen-year-old son via online application on February 19, 2016. At

that point, the Maryland law firm sent a check to T. Rowe Price for $240,000 for deposit

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in the newly created account. From the remaining $20,000 on deposit with the law firm

(of the $260,000 initially transferred), $10,000 was sent to Husband, and another $10,000

was sent to the parties’ son.

The parties reached an agreement whereby Husband made a few payments of

temporary alimony for the months of January, February, March, and April 2016.

However, the obligations from September, October, November, and December 2015

remained unmet. Additionally, Husband stopped making payments again in May 2016.

Wife retained an additional attorney, who primarily practices in bankruptcy court,

to represent her interests in Husband’s bankruptcy case. Wife filed a motion in the

bankruptcy court seeking relief from the automatic stay to allow her contempt action

pending in state court to proceed. She asserted that her state court contempt action was

“the most expeditious process” for pursuing her claims against Husband. It appears that

Husband opposed Wife’s motion to lift the stay but that the stay was eventually lifted at

some point.

Husband stated under oath on two different occasions that he filed for bankruptcy

because of Wife’s garnishments against his accounts. Because of her alimony claim,

Wife was the only priority creditor under the bankruptcy code until the parties’ son, who

was living with Husband, filed a priority claim for unpaid child support in the sum of one

million dollars. Eventually, Husband’s bankruptcy proceeding was dismissed, and

Husband was barred from refiling for a period of four years due to his bad faith

throughout the bankruptcy proceeding.

On April 24, 2017, Wife filed an amended petition for contempt back in the circuit

court, which clarified that she was alleging both criminal and civil contempt. She noted

that the trial court had ordered Husband to pay temporary alimony and entered the

$60,000 judgment for retroactive alimony in June 2015. Wife claimed that she had

obtained records indicating that Husband had sufficient assets to pay these alimony

obligations at that time and that he simply refused to pay. Wife described the various

efforts she had made to enforce the alimony obligation through garnishments and detailed

her participation in the bankruptcy proceeding. She described how Husband convinced

her to release garnished funds by claiming they belonged to their son, transferred funds to

the escrow account in Maryland, and conveyed all of his property to the revocable trust.

The trial court had terminated Husband’s temporary alimony obligation on December 21,

2016. However, Husband had accumulated an arrearage of $31,964.19 in unpaid

monthly alimony obligations and interest, and Wife sought a judgment for the arrearage.

In addition, Wife asked the trial court to hold Husband in criminal and civil contempt.

She requested that he be fined and incarcerated until he paid the arrearage. She also

sought an award of attorney fees and litigation costs as compensatory damages for civil

contempt. Finally, Wife asserted a claim for her attorney fees pursuant to Tennessee

Code Annotated section 36-5-103(c) “for her efforts to enforce [Husband’s] Alimony

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obligation.”

On May 23, 2017, the trial court held a hearing limited to the issue of criminal

contempt. Husband did not testify or even attend the hearing, but he was represented by

counsel. The trial court heard testimony from Wife; Daniel Peterson, Wife’s accountant

and expert witness from the divorce trial; and Kenneth Rannick, Wife’s attorney from

bankruptcy court. The accountant, Mr. Peterson, testified that he was retained by Wife

during the divorce trial in 2013 to trace funds through various accounts primarily with

respect to the debentures and marital property. He testified that Wife retained him again

in 2015 for the purpose of “chasing alimony.” Mr. Peterson provided assistance with

gathering and summarizing documents, tracing funds, and “ferreting out” accounts. He

reviewed garnishments, bankruptcy filings, bankruptcy court testimony, circuit court

filings, and documents produced in response to subpoenas. Husband’s counsel had no

objection to Mr. Peterson testifying as an expert regarding the flow of funds through

Husband’s various accounts and Wife’s attempts to secure alimony.

Mr. Peterson had compiled a “packet” of materials in binders, containing 52 tabs,

to “walk [everyone] through [his] work and observation” with respect to the relevant

documents and transactions. He described numerous withdrawals and wire transfers by

Husband throughout the time period when Husband was not paying alimony, the largest

of which was the $260,000 transfer to the law firm escrow account in Maryland. Mr.

Peterson also described how Husband divested himself of any interest in all of his real

and personal property through the revocable trust, effectively divesting himself of over

two million dollars of equity in his farm. He explained that when Wife was finally

successful in garnishing around $60,000 in the accounts at First Tennessee Bank,

Husband filed for bankruptcy, causing the funds to be released. Husband then withdrew

most of that money in cash.

By Mr. Peterson’s calculations, Husband owed a total of $32,100.06 in monthly

temporary alimony and interest. In addition, Husband still owed $62,524.86 toward the

retroactive alimony judgment (originally $60,000 - $3,377.10 garnished + interest). Mr.

Peterson opined that Husband had the ability to pay alimony at all relevant times when

the monthly amounts became due and when the retroactive alimony judgment was

entered, as he owned over two million dollars in equity in his farm and had sufficient

liquid funds, including the $260,000 sum he moved from account to account.

Mr. Peterson’s affidavit was submitted as an exhibit, which reflected $27,300 in

charges incurred by Wife since 2015. Mr. Peterson testified that his billing record was

limited to work done with respect to “alimony and the subsequent movement into the

bankruptcy court[.]”

The trial court also heard testimony from Kenneth Rannick, the attorney who

represented Wife in Husband’s bankruptcy proceeding. Mr. Rannick originally met

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Husband and Wife in 2010, prior to their divorce proceeding, at a neighborhood cookout.

He encountered Husband at another gathering in 2012, while Husband and Wife were in

the midst of the divorce proceeding. Mr. Rannick testified that Husband spoke angrily

and emphatically about the divorce and Wife while using vulgar language. According to

Mr. Rannick, Husband announced that he was “going to litigate this until every last dime

was gone, he wasn’t going to pay her a dime, he’s going to do everything he could, no

matter what, he was not going to give her any money, he was going to spend every last

penny he had to tie this up as an ongoing thing.”

Mr. Rannick’s description of the bankruptcy proceeding reflects that Husband

attempted to do just that. Mr. Rannick testified that in his 33 years of practice, with

experience in at least 13,000 bankruptcy cases, he had “never seen anything remotely

approaching the outrageous conduct in this case.” He said “what should have been easy

wasn’t.” Mr. Rannick testified that Husband lied repeatedly, on “document after

document after document,” which complicated discovery and compounded the matters at

issue. He said it was obvious that Husband was not being straightforward, as his filings

included many irregularities, even on simple matters such as listing an incorrect social

security number, incorrect home address, and incorrect post office box. Husband

estimated his assets to be worth between zero and $50,000. He said Husband did not

disclose the money he was moving through his friend’s escrow account and “didn’t know

we could find it.” Mr. Rannick said that “[i]t took months trying to dig it out,” but “[w]e

finally located it.” Mr. Rannick testified that Husband refused to answer questions, failed

to attend meetings, refused to sign orders after reaching agreements, arrived late for his

deposition and left before it ended. He would deny his signature on documents provided

by his own attorney. Husband moved to disqualify Mr. Rannick twice during the

bankruptcy proceeding, which meant that Wife had to retain other attorneys to represent

her. Mr. Rannick believed that Husband “engineered” the claim for child support filed by

the parties’ son, who was living with Husband, all in an attempt to delay the proceeding

and defraud Wife. He confirmed that the “genesis” of the bankruptcy case was Wife’s

pursuit of alimony. Mr. Rannick testified that the bankruptcy court’s dismissal with a

four-year bar to refiling was “huge” and a very severe punishment.

Mr. Rannick testified that his attorney fee from the bankruptcy proceeding was

$100,872.32. He testified that his fee was reasonable in light of the services provided and

that this case was “up there” among the most complicated and difficult consumer

bankruptcy cases he had seen. Mr. Rannick explained that Wife’s attorney fees in

bankruptcy court “were three times what they should have been because of just the

complexity of what he threw at us, the red herrings he would throw at us.” He testified

that Mr. Peterson’s accounting work was valuable to him “beyond measure.”

Finally, the trial court heard testimony from Wife. Briefly, Wife testified

regarding the allegation of failure to provide proof of health insurance. Wife explained

that the trial court had declined to hold Husband in contempt on a previous occasion, in

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2015, for failure to maintain health insurance for their son due to Husband’s assurances

that he did in fact have coverage. Instead, the trial court ordered Husband to provide

proof of such coverage within five days. Wife testified that Husband had never provided

the proof of coverage as ordered, which led to her incurring tax penalties under the

Affordable Care Act. Wife also testified about her efforts to enforce the alimony

obligation since it was awarded in June 2015. She submitted the affidavit of her primary

attorney in circuit court and the affidavit of the additional attorneys who assisted with the

bankruptcy proceeding. Wife also submitted numerous photographs posted from

Husband’s social media accounts during the period when he did not pay alimony,

depicting him on various trips.

At the conclusion of the hearing on criminal contempt, the trial judge announced

his oral ruling. He began by stating that Husband “has zero credibility with this court.”

The trial judge stated that the evidence presented further demonstrated Husband’s

“dishonesty and his false dealing in this matter.” Fully crediting the testimony of Mr.

Rannick, the trial judge found that Husband formulated an intention from the very

beginning to prevent Wife from accessing funds and make it as difficult as he could so

that it would “cost her.” The trial judge added, “he’s willing to jump off the cliff as long

as he’s holding onto her and they both perish[.]” The trial judge fully credited the

testimony presented regarding the money that Husband “had access to that he concealed

and moved around,” including the $260,000 sum. The trial judge concluded that

Husband was attempting to create “an appearance of inability to pay.” He noted that

Husband’s conduct was not limited to a mere failure to pay alimony but also included

affirmatively engaging in “artifices to defraud,” such as the false bankruptcy filing and

the conveyance of the farm. The trial judge found that Husband’s actions demonstrated

“nothing but concealment and intent to defraud” Wife of alimony. He found that

Husband “always had the ability to pay,” considering that he had $260,000 in the account

at the Maryland law firm, $52,500 he withdrew in cash after filing for bankruptcy, and $2

million in equity in his farm.

The trial judge also found Husband in contempt for failing to provide proof of

insurance coverage as ordered. Adding the eleven months that Husband failed to pay

temporary alimony, the court found that he was in criminal contempt on a total of twelve

counts. The trial judge said that he intended to fine Husband $50 and sentence him to ten

days in jail for each count due to his intransigence and deliberate misconduct. The trial

judge observed,

None of what he does would I think of doing, because if one is

trying to do the right thing, one doesn’t do the kind of things that Mr.

Parker has done in this case. He just doesn’t care to do what the Court

orders or do the right thing, is unfortunately the history that’s before the

Court in this case with Mr. Parker.

....

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. . . I think this is the most aggravated case of just doing whatever he

wants to do, in flagrant violation of the Court’s order, and dishonesty, just

flagrant dishonesty with the Court. Not just this court, but the bankruptcy

court, from what I’ve gathered here from the testimony today. Concealing

assets and those things are certainly beyond a reasonable doubt in this case

is what he was doing in order to avoid paying his alimony or appearing to

be unable to pay his alimony.

He added, “We can’t have anybody getting the message that you can do what Mr. Parker

has done in this case and not go to jail. Simple as that.” However, the trial judge ruled

that Husband, who was not present, would be required to appear and show cause why he

should not be incarcerated for contempt. Attorney fees and damages would be discussed

at the hearing as well. The parties and the trial judge also discussed the fact that the civil

contempt allegations would be tried next.

The trial court entered a written order incorporating by reference its oral ruling

and finding Husband guilty beyond a reasonable doubt of twelve counts of criminal

contempt. It scheduled a hearing for Husband to present any arguments regarding the

appropriate length of his sentence or whether it should be suspended. Wife filed a motion

for the trial court to take judicial notice of the record from the criminal contempt hearing

on the matter of civil contempt based on the same factual allegations.

After a hearing, the trial court entered an “Order on Petition for Civil Contempt,”

which reflected the terms of an agreement reached by the parties. The order stated that

the criminal contempt findings against Husband would be “converted” to findings of civil

contempt. At the same time, Husband would dismiss a pending criminal contempt

petition against Wife, and Wife would dismiss her criminal contempt allegation against

Husband. If Husband paid $32,380.92 within ten days, the counts of civil contempt

would thereby be purged. However, this would not impact the court’s judgment with

respect to any attorney fees that might be awarded. After Wife filed a motion to alter or

amend, the trial court entered another order dismissing the claims for criminal contempt

but incorporating by reference the testimony and evidence from the criminal contempt

hearing for purposes of the civil contempt ruling. The order states that Husband had in

fact paid the $32,380.92 sum to Wife and thereby purged himself of civil contempt for

failure to pay temporary alimony. However, the order specifically reserved a ruling as to

whether Wife should be awarded attorney fees, expert witness fees, or costs arising from

her claims for civil contempt and/or pursuant to Tennessee Code Annotated section 36-5-

103(c).

Wife filed a memorandum in support of her request for attorney fees and expenses,

along with numerous affidavits and supporting documents. She sought an award of her

attorney fees incurred by her primary counsel in the contempt proceeding along with the

fees incurred by her bankruptcy attorneys in that proceeding. She argued that such an

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award was authorized either as compensation due to Husband’s civil contempt or

pursuant to Tennessee Code Annotated section 36-5-103(c) because she was enforcing

her alimony award. Aside from the issue of attorney fees, Wife also sought an award of

the fee she owed Mr. Peterson (her accountant and expert witness), either to compensate

her for her expenses because of Husband’s contempt or as discretionary costs pursuant to

Tennessee Rule of Civil Procedure 54.04. In all, she sought an award of $245,136.70 for

her attorney fees and Mr. Peterson’s fee. She later filed a separate motion for other

discretionary costs.

In support of her request for fees incurred in connection with the bankruptcy

proceeding, Wife submitted to the trial court a motion to dismiss filed by the United

States Trustee in the bankruptcy proceeding, in which the Trustee characterized

Husband’s bankruptcy case as “the latest chapter in the long-running and heavily

contested divorce case of [Husband] and [Wife].” He said “this bankruptcy proceeding

was caused by, and has largely been driven by, the divorce proceedings between

[Husband] and [Wife].” The Trustee found it apparent that Wife’s collection efforts in

the divorce case precipitated the filing of the bankruptcy petition, as Husband even

admitted that the reason for his filing was Wife’s garnishment of his accounts. The

Trustee concluded that Husband had been “transferring funds across accounts in an effort

to evade garnishments[,]” and his “bankruptcy filing came only when those efforts fell

short.” (underlining in original) According to the Trustee, Husband’s bankruptcy filing

was “only the latest step in [Husband’s] attempts to evade collection efforts.” He said

Husband was “abusing the bankruptcy system . . . in connection with an effort to further

stymy the litigation and collection efforts of [Wife].” Husband’s focus was not on

rehabilitating a farming operation but on “continuing the long-running and acrimonious

divorce action in a new forum.” The Trustee described the bankruptcy case as “an

outgrowth” of the divorce case, which “permeate[d] every aspect of this litigious matter.”

“In short,” he added, “this bankruptcy case is nothing more than satellite litigation

revolving around the ongoing state court divorce action.”

The Trustee also noted the “acrimonious and litigious tenor” of the entire

bankruptcy proceeding and the “litany of bad acts” by Husband in that proceeding. He

stated that Husband’s filings contained “numerous errors, misstatements, and omissions,”

and “most if not all of these errors and omissions were knowing and . . . intended by

[Husband] to protect or hide assets from his ex-spouse and primary creditor, [Wife].”3

According to the Trustee, Husband “continually worked to evade reasonable inquiries

into his financial condition.” Considering the “enormity and pervasiveness of

[Husband’s] false statements and material omissions,” he said “the most reasonable

inference to draw is that [Husband] has been acting intentionally and in bad faith to hide

assets and avoid the payment of his debt obligations.” The Trustee suggested that if the

3

The Trustee noted that “virtually all of the unsecured debt in this case is tied to the divorce and

nearly all is held by [Wife].”

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bankruptcy case was dismissed with a bar to refiling, Wife could “conclude the divorce

action and collect any judgments against [Husband] without fear that the automatic stay

will again be interposed.”

Husband filed a response opposing Wife’s request for attorney fees and Mr.

Peterson’s fee. He conceded that “[Wife] brought a claim in [Husband’s] bankruptcy

case in an attempt to recover unpaid alimony support from [Husband].” He also

acknowledged that “[Wife’s] efforts in the bankruptcy court concerned the preservation

of [Husband’s] funds to be able to pay the alimony ordered by the Bradley County

Court.” He likened Wife’s efforts in bankruptcy court to “a collection action.” However,

Husband argued that a state court was not authorized to award legal fees for work

performed in a federal bankruptcy case. He asked the court to limit any award of

attorney fees or expert fees to those incurred in the state court action regarding civil

contempt. He also argued that Wife’s request to recover discretionary costs was untimely

and exceeded the scope of permissible costs under Tennessee Rule of Civil Procedure

54.04.

After a hearing, the trial court entered an order granting Wife all of the attorney

fees and the accounting fee she requested, not only as damages for the finding of civil

contempt but also as an award pursuant to Tennessee Code Annotated section 36-5-

103(c) “because she incurred them in order to enforce the alimony award of the Court.”

The trial court noted that Husband was found in civil contempt on twelve counts and that

he “always had the ability to pay the alimony ordered by the Court.” The trial court

acknowledged Husband’s argument that there was no authority for awarding attorney

fees or expert fees incurred in a bankruptcy proceeding. However, the trial court found

that Husband’s bankruptcy “amounted to a false filing” and that he filed the petition

solely to prevent Wife from receiving the temporary alimony awarded to her in this case.

The trial court found that the bankruptcy court dismissed Husband’s petition “but left it

for this Court to assess attorney fees [W]ife incurred in the Bankruptcy.”

The trial court found that Wife’s motion addressed “the damage caused to her by

Husband’s steadfast refusal to pay her the alimony ordered by the Court[.]” According to

the trial court, the record demonstrated “the extraordinary lengths to which Husband has

gone and the high handed tactics he employed in avoidance of the Court’s order of

spousal support all with his desire (as he stated to Attorney Ken Rannick) to keep Wife

under financial duress and defy the Court’s order.” The court found that Wife “incurred

great expense to secure the extraordinary legal efforts required to preserve her judgment

from release in Bankruptcy and make Husband pay her Court ordered alimony.” It found

that time was of the essence in preserving Wife’s rights in bankruptcy court. It also

found that the novel issues involved in this case required extreme diligence and effort

beyond the usual, due to Husband’s contemptuous conduct. The trial court found that all

of the claimed attorney fees were incurred by Wife to enforce the court’s orders, “which

Husband resisted to the point that he was found guilty of twelve counts of civil contempt,

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made a false Bankruptcy filing and unlawfully concealed assets so as to avoid

enforcement” of the alimony decree. Also, the court noted that Wife enforced the court’s

prior order regarding health insurance for their son.

The court found that Mr. Peterson’s accounting work was also necessary due to

Husband’s failure to pay alimony. According to the court, Husband’s misconduct

required the tracing of hidden assets that Husband sought to conceal in order to avoid

execution and avoid paying Wife. It found that Mr. Peterson’s efforts mitigated Wife’s

injury. The court noted that discretionary costs under Tennessee Rule of Civil Procedure

54.04 are limited to specified costs and therefore clarified that it was awarding Wife “full

expenses for expert Daniel E. Peterson . . . not as discretionary costs, but as damages

resulting from Husband’s civil contempt.” It characterized the award of the accounting

fee as “proper damages in the nature of compensatory damages allowable to Wife.”

In sum, the court found that Wife’s attorney fees and accounting fee were

appropriately awarded as compensatory damages due to Husband’s civil contempt and/or

for enforcing the alimony obligation under Tennessee Code Annotated section 36-5-

103(c). The order stated that a separate order of judgment would be entered “in the full

amounts claimed by [Wife].” The separate judgment recites that Wife was awarded

$240,507.70 for attorney fees and expenses (an amount less than the award of

$245,136.70 Wife sought in her original motion). Husband timely filed a notice of

appeal.4

II. ISSUES PRESENTED

Husband presents the following issues for review on appeal:

1. Whether the trial court abused its discretion by awarding [Wife] all

attorney’s fees and costs related to a federal bankruptcy case that is not

directly related to the enforcement of alimony under Tenn. Code Ann. § 36-

5-103(c)?

2. Whether the trial court abused its discretion in awarding [Wife] all

attorney’s fees and costs as “damages” pursuant to Tenn. Code Ann. § 29-

9-105 where (1) most of the fees and costs were incurred in the federal

bankruptcy proceeding, not the Circuit Court; (2) most of the fees and costs

were incurred while the contempt was classified as criminal, not civil; and

4

We recognize that contempt proceedings are sui generis and incidental to the underlying divorce

action and that here the trial court had before it a contempt petition as well as a request for attorney's fees

under Tennessee Code Annotated section 36-5-103(c). To the extent that this procedural posture presents

any issues regarding finality of the claim for attorney's fees under said statute, we allow that portion of the

appeal to proceed as an interlocutory appeal in the interest of judicial economy. See Roberts v. Bailey,

338 S.W.3d 540, 541 n.1 (Tenn. Ct. App. 2010).

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(3) the contemptuous conduct involved an omission for failure to pay

alimony and provide proof of health insurance, not an affirmative act?

3. Whether the trial court abused its discretion in awarding [Wife]

discretionary costs that (1) fell outside of the scope of Tenn. R. Civ. P.

54.04(2); (2) duplicated other awarded costs; or (3) had no support in the

record?

4. Whether the trial court abused its discretion by considering the

Motion for Discretionary Costs when it was untimely and fell outside the

scope of Tenn. R. Civ. P. 54.04(2)?

5. Whether [Husband] should be awarded his attorney’s fees and costs

on appeal when he had to initiate appellate proceedings to correct the

multitude of errors at the trial court level, and [Wife] has received the vast

majority of the parties’ estate in the divorce?

In her posture as appellee, Wife responds to the issues raised by Husband and raises the

following additional issues:

6. Whether the Trial Court erred by failing to align its Judgment Order

with its Memorandum Order in which the Trial Court stated, “A separate

Order of Judgment on behalf of [Wife] against [Husband] shall be entered

today in the full amounts claimed by Petitioner.”

7. Whether this Court should rule on all the issues on Appeal rather

than remanding to the Trial Court?

8. Whether [Wife] should be awarded her attorney’s fees, expenses and

costs on appeal which are necessitated to protect her Trial Court award.

For the following reasons, we affirm the decision of the trial court and remand for further

proceedings.

III. DISCUSSION

A. Attorney Fees

We begin with Husband’s contention that the trial court erred by awarding Wife

attorney fees related to a federal bankruptcy case pursuant to Tennessee Code Annotated

section 36-5-103(c). Again, Husband conceded before the trial court that “[Wife]

brought a claim in [Husband’s] bankruptcy case in an attempt to recover unpaid alimony

support from [Husband].” On appeal, Husband acknowledges that “[i]f [Wife] had

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chosen to enforce her alimony award in any other state court forum, Tenn. Code Ann. §

36-5-103(c) would allow her to recover those attorney’s fees incurred in that state court.”

However, Husband insists that section 36-5-103(c) does not extend to fees incurred in

federal bankruptcy cases, as such cases are separate proceedings not directly related to

alimony cases in state court.

“The initial determination of whether a contract or statute ‘creates a right to

recover attorney’s fees’ is a question of law that we review de novo.” Khan v. Regions

Bank, 584 S.W.3d 418, 429 n.7 (Tenn. Ct. App. 2019) (quoting Eberbach v. Eberbach,

535 S.W.3d 467, 479 n.7 (Tenn. 2017)). If the statute “does create such a right, then the

trial court has discretion” to determine whether to award such fees and the amount of any

such award. Id. The issue before us involves the initial determination regarding the trial

court’s authority to award attorney fees pursuant to Tennessee Code Annotated section

36-5-103(c). See id.

At the time of the proceedings below,5 Tennessee Code Annotated section 36-5-

103(c) provided:

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.

This statute “authorizes courts to award reasonable attorney’s fees to the prevailing party

in an action to enforce any decree for alimony, child support, or child custody.”

Eberbach, 535 S.W.3d at 475. The discretionary authority to award such fees exists

“regardless of whether the fees are incurred at the original divorce hearing or at any

subsequent hearing.” Moon v. Moon, No. E2015-01470-COA-R3-CV, 2016 WL

1605511, at *8 (Tenn. Ct. App. Apr. 21, 2016). Such “awards for legal expenses in

custody or support proceedings are ‘familiar and almost commonplace.’” Sherrod v. Wix,

849 S.W.2d 780, 785 (Tenn. Ct. App. 1992) (quoting Deas v. Deas, 774 S.W.2d 167, 170

(Tenn. 1989)).

Tennessee Code Annotated section 36-5-103(c) has been broadly interpreted in

many ways. See, e.g., Toms v. Toms, 98 S.W.3d 140, 145 (Tenn. 2003) (interpreting the

5

The statute has since been amended, but the amendment only applies to actions commenced on

or after July 1, 2018. See 2018 Tenn. Laws Pub. Ch. 905.

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statute to authorize awards of attorney fees against intervening grandparents who were

not a “spouse”); Dale v. Dale, No. M2018-01999-COA-R3-CV, 2019 WL 7116204, at *2

(Tenn. Ct. App. Dec. 20, 2019) (“This provision has been construed broadly to permit the

award of attorney fees in corollary matters, such as actions to modify visitation rights.”);

Muhlstadt v. Muhlstadt, No. M2012-01267-COA-R3-CV, 2013 WL 3833563, at *6

(Tenn. Ct. App. July 19, 2013) (“This statute has been interpreted by the courts as

allowing for the award of attorney’s fees to a party defending an action to change a prior

order on the theory that the defending party is enforcing the prior order.”) (quotation

omitted); Brewster v. Galloway, No. E2011-01455-COA-R3-CV, 2012 WL 2849428, at

*12 (Tenn. Ct. App. July 11, 2012) (recognizing that the statute has been applied to

parties who were never “spouses” but had children born out of wedlock); Pounders v.

Pounders, No. W2010-01510-COA-R3-CV, 2011 WL 3849493, at *5 (Tenn. Ct. App.

Aug. 31, 2011) (finding “no support for Father’s narrow interpretation of the statute” and

awarding attorney fees even though the petition was voluntarily dismissed prior to

adjudication); Evans v. Evans, No. M2002-02947-COA-R3-CV, 2004 WL 1882586, at

*13 (Tenn. Ct. App. Aug. 23, 2004) (“[T]he broad interpretation given the statute, based

upon its incorporation of the common law, in the context of child support orders should

also apply to spousal support orders.”).

For purposes of awards pursuant to Tennessee Code Annotated section 36-5-

103(c), appellate courts have recognized that an enforcement proceeding can take place

before a different tribunal than the one that entered the original order of custody or

support. For instance, in Shofner v. Shofner, 232 S.W.3d 36, 36-37 (Tenn. Ct. App.

2007), the parties were divorced and the father had custody pursuant to an order of the

circuit court. They were involved in a “labyrinth of legal proceedings” thereafter, and the

mother eventually “sought out a new forum to do battle over the children” by filing a

petition for dependency and neglect in juvenile court. Id. at 38. The juvenile court

dismissed the petition and found that the mother was “forum shopping” in a “thinly

disguised effort to circumvent the actions of the circuit court.” Id. However, the juvenile

court found no statutory basis to permit an award of attorney fees to the father. Id. This

Court reversed, finding that such an award was authorized by Tennessee Code Annotated

section 36-5-103(c). Id. We explained that the dependency and neglect action was just

“the latest in a series of bitterly contested domestic actions between [the parties].” Id. at

37. The dependency and neglect action was essentially a challenge to the circuit court’s

custody order, which the father successfully resisted. Id. at 40. As such, he was

“attempting to enforce” the circuit court’s custody decree, and an award of attorney fees

was authorized under the statute. Id. We said, “The fact Mother chose a different forum

in which to challenge a valid custody decree does not impair Father’s right pursuant to

Tenn. Code Ann. § 36-5-103(c) to recover his attorney’s fees.” Id. at 40-41. Thus,

Shofner demonstrates that the attorney fees at issue do not necessarily have to be incurred

before the same court that entered the custody or support order being enforced.6

6

See also Stack v. Stack, No. M2014-02439-COA-R3-CV, 2016 WL 4186839, at *4 (Tenn. Ct.

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Also, in In re Conservatorship of Lovlace, No. M2003-01274-COA-R3-CV, 2004

WL 1459409, at *8 (Tenn. Ct. App. June 28, 2004), this Court affirmed an award of

attorney fees and awarded additional fees on appeal pursuant to section 36-5-103(c)

where the issue of child support arose in the context of a conservatorship. We rejected

the husband’s argument that such an award was inappropriate “because the case was a

conservatorship action.” Id. We explained that “the gravamen” of the appeal was about

child support, even if the issue was raised “in the context of a conservatorship.” Id.

The parties have not cited, nor has our research revealed, any cases in which a

Tennessee state court has awarded attorney fees incurred in a federal bankruptcy

proceeding, as the trial court did here. However, federal bankruptcy courts have

considered Tennessee Code Annotated section 36-5-103(c) as it relates to fees incurred in

bankruptcy proceedings. In In re Colbert, 185 B.R. 247, 248 (Bankr. M.D. Tenn. 1995),

a bankruptcy court determined that certain obligations imposed on a husband in his

divorce decree were nondischargeable, but the bankruptcy court held that it did not have

authority to award attorney fees to the wife under Tennessee Code Annotated section 36-

5-103(c), even though she prevailed in the bankruptcy proceeding. The bankruptcy court

recognized that Wife had “a state statutory right” to attorney fees. Id. at 249. However,

the court concluded that “a bankruptcy court is simply not the proper court to make an

award of attorney fees in this type of case.” Id. While the bankruptcy court could

determine whether an obligation imposed initially by the state court was dischargeable,

the bankruptcy court concluded that it was not authorized to award support in the first

instance. Id. The court reasoned that an award of attorney fees under Tennessee law is

“uniquely related to state court support determinations,” and therefore, “the decision as to

whether such an award is appropriate and, if so, the amount of the award, should be left

to the state court.” Id. In summary, the bankruptcy court explained, “the court concludes

that it is not authorized to award attorney fees to the [wife] in this case. Any award of

attorney fees must come from the state court.” Id. at 250. The bankruptcy court noted

that the state court may decide to award attorney fees to the wife under Tennessee Code

Annotated section 36-5-103(c). Id. at 250 n.4.

The same conclusion was reached by another bankruptcy court in In re Morello,

185 B.R. 753, 758 (Bankr. E.D. Tenn. 1995) (“Section 36-5-103(c) permits the state court

rendering the alimony and child support decree to award attorney fees incurred in

enforcing that decree since it is that court ‘before whom such action or proceeding is

pending.’ This court does not construe section 36-5-103(c) as authorizing the bankruptcy

court to award attorney fees incurred in a nondischargeability action.”).

Again, this Court is not aware of any Tennessee state court decisions actually

App. Aug. 4, 2016) (affirming an award of attorney fees pursuant to Tennessee Code Annotated § 36-5-

103(c) incurred in defending a Montana child support order).

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awarding attorney fees incurred in a bankruptcy proceeding pursuant to Tennessee Code

Annotated section 36-5-103(c). However, our research has revealed one case that

suggests that such an award would not be appropriate. In Carroll v. Corcoran, No.

M2012-01101-COA-R3-CV, 2013 WL 2382292, at *1 (Tenn. Ct. App. May 29, 2013),

an unmarried mother and father filed competing petitions to establish initial custody in

their respective counties of residence. The father’s petition was dismissed, and the case

proceeded on the mother’s petition in Sumner County. Id. The trial court fashioned a

parenting plan and awarded the mother $2,576.50 in attorney fees. Id. On appeal, this

Court assumed that the mother’s request for attorney fees was based on either Tennessee

Code Annotated section 36-5-103(c) or Tennessee Code Annotated section 36-2-311,

which applies to parentage actions. Id. at *6-7. We noted the trial court’s discretion in

making such awards but added, “It appears, however, that at least some of the fees were

awarded for dealing with Father’s petition filed in Robertson County. We are unaware of

any authority, and have been provided none, that allows a court to award attorney fees in

one case for actions taken in another case.” Id. at *7. As such, we remanded for

reconsideration of the fee award. Id.

This Court followed the holding in Carroll in another case that did not involve

Tennessee Code Annotated section 36-5-103(c) but instead involved an attorney fee

provision in a marital dissolution agreement. See Foster v. Foster, No. M2018-00595-

COA-R3-CV, 2019 WL 1959603, at *6–7 (Tenn. Ct. App. May 2, 2019). There, the trial

court awarded attorney fees that included representation in an action in another county

regarding a garnishment. Id. at *7. We acknowledged that the defense of the action in

the other county fell within the scope of the terms of the MDA. Id. Still, citing only

Carroll, we said,

We do not agree, however, that the court in this case had the authority to

award fees for services rendered in the Wilson County action; rather, any

award for services rendered in that case would be in the province of the

Wilson County Circuit Court to make. See Carroll v Corcoran, No.

M2012-01101-COA-R3-CV, 2013 WL 2382292 (Tenn. Ct. App. May 29,

2013).7

Id.

It appears that the Carroll court reached its conclusion because it was not provided

with any authority to suggest that one court could award attorney fees for actions taken in

7

Before Carroll, this Court had affirmed a post-divorce award of attorney fees to a wife that

included “$3,489.50 for attorney fees incurred to enforce the final decree” and “$3,442.50 for attorney

fees to defend [a] bankruptcy action” filed by the husband. Post v. Post, No. M2008-01488-COA-R3-

CV, 2009 WL 1850880, at *2 (Tenn. Ct. App. June 26, 2009). We concluded that such an award was

authorized under the parties’ MDA and therefore it was not necessary to consider the applicability of

section 36-5-103(c). Id. at *8 n.5.

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another case. We find it equally noteworthy that the Carroll court did not cite any

authority in support of its conclusion that such an award was improper. Likewise, Foster

relied on Carroll with no further analysis or citation to authority. In the case before us,

we have been provided with authority suggesting that a state court may award attorney

fees incurred in the specific context of a bankruptcy proceeding pursuant to Tennessee

Code Annotated section 36-5-103(c). Considering this authority, we believe that the

issue demands a closer examination than that taken in Carroll and Foster.

We note that in Morris v. Morris, No. W2010-00293-COA-R3-CV, 2011 WL

398044, at *11 (Tenn. Ct. App. Feb. 8, 2011), this Court affirmed an award of a portion

of a wife’s attorney fees pursuant to section 36-5-103(c) when much of the litigation was

engendered by the husband filing a “competing” divorce proceeding in Mississippi that

forced the wife to incur additional expense and effort unnecessarily. The trial court

found that such action “raised attorney’s fees for everybody for no rational reason.” Id.

at *11. Although the trial court apparently did not specify whether the partial amount

awarded was attributable to the Mississippi litigation, the Tennessee litigation, or both,

this Court specifically noted that the award was justified considering that the husband’s

litigation in Mississippi forced the wife to hire a new lawyer who was licensed in

Mississippi as well as Tennessee and “to incur additional expense and effort” in litigating

the competing divorce proceedings. Id. at *12.

This Court considered an issue comparable to the one currently before us in Khan

v. Regions Bank, 584 S.W.3d 418 (Tenn. Ct. App. 2019). Specifically, we conducted an

in-depth analysis of whether a Tennessee trial court had authority, pursuant to the

Tennessee Uniform Arbitration Act, to award attorney fees incurred not only in the trial

court but also in a federal bankruptcy proceeding. Id. at 425. Notably, we did not cite

any blanket prohibition against awarding fees that were incurred in a separate court, such

as a bankruptcy court. Instead, we looked to the terms of the applicable statute, Tenn.

Code Ann. § 29-5-315, to determine “whether the trial court had statutory authority to

grant attorney’s fees incurred during federal bankruptcy court proceedings[.]” Id. at 428.

The relevant statute provided that upon the granting of an order confirming, modifying,

or correcting an award, “[c]osts of the application, and of the proceedings subsequent

thereto, and disbursements may be awarded by the court.” Id. at 429 (quoting Tenn.

Code Ann. § 29-5-315) (emphasis added). Under this authority, the trial court awarded

fees that included representation in “collateral bankruptcy court proceedings.” Id.

Deeming the issue one of statutory construction, we said the “dispositive issue” was

“whether the attorney’s fees and costs incurred by the Bank in collateral bankruptcy court

proceedings constitute ‘disbursements’ or ‘[c]osts of the application, and of the

proceedings subsequent thereto[.]’” Id. at 430 (quoting Tenn. Code Ann. § 29-5-315).

Ultimately, we concluded that they were not. Put in context, the word “proceedings” did

not refer to the collateral bankruptcy proceedings. Id. at 432.

In Khan, we noted the Bank’s argument that the purpose of awarding attorney fees

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in confirmation proceedings was to discourage frivolous litigation and that Ms. Khan’s

bankruptcy case was exactly the type of litigation that should be discouraged. Id. at 431.

Still, we found that the language of the statute, in its current form, did not extend to the

bankruptcy case. Id. at 432. We added, “If the legislature thinks that this policy would

be further served by authorizing the award of attorney’s fees incurred in collateral

bankruptcy proceedings, it may pass such a statute.” Id.8

We find the Khan analysis particularly instructive and likewise approach the issue

as one of statutory interpretation. Returning to the language of the statute at issue, it

provided, in pertinent part:

The plaintiff spouse may recover from the defendant spouse . . . reasonable

attorney fees incurred in enforcing any decree for alimony . . . 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.

Tenn. Code Ann. § 36-5-103(c). Here, Wife returned to the divorce court and filed a

petition for contempt due to Husband’s failure to pay alimony and to provide proof of

health insurance coverage for the parties’ son. Days later, she attempted to garnish

Husband’s accounts in order to satisfy the unpaid alimony judgment. In response to these

efforts, Husband filed for bankruptcy. He admitted under oath during the bankruptcy

proceeding that “the genesis of the filing” was the garnishment of his accounts by Wife.

As the United States Trustee put it, Husband was “transferring funds across accounts in

an effort to evade garnishments,” and his “bankruptcy filing came only when those

efforts fell short.” (underlining omitted) Husband’s bankruptcy filing was “only the

latest step in [Husband’s] attempts to evade collection efforts” and “further stymy the

litigation and collection efforts of [Wife].” He was simply “continuing the long-running

and acrimonious divorce action in a new forum.”

Likewise, the trial court found that Husband’s bankruptcy “amounted to a false

filing,” as Wife was Husband’s “chief creditor,” and he was seeking to avoid payment of

his alimony obligation. The trial court found that the fees Wife requested “were incurred

by her to enforce provisions of the Court’s orders which Husband resisted to the point

that he was found guilty of twelve counts of civil contempt, made a false Bankruptcy

filing and unlawfully concealed assets so as to avoid enforcement against Husband of the

decree of the Court awarding her alimony.” The trial court found that Husband’s

8

We took a similar approach in J & B Investments, LLC v. Surti, 258 S.W.3d 127, 138-39 (Tenn.

Ct. App. 2007), when reviewing a trial court’s award of attorney fees for not only the civil action before it

but also a related separate action. We reversed the award of fees for the separate action because the

language of the parties’ contract did not extend to the separate action, not because of any blanket

prohibition. Id. We noted that the parties’ entitlement to attorney fees was “limited to the situation

agreed to by the parties in the contract.” Id. at 138.

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bankruptcy filing “was prompted solely to prevent Wife [from] receiving the pendente

lite alimony awarded to her in this case and for no other purpose.” It found that Wife

“incurred great expense . . . to preserve her judgment from release in Bankruptcy and

make Husband pay her Court ordered alimony.” According to the trial court, the

bankruptcy court dismissed the petition “but left it for this Court to assess attorney fees

[W]ife incurred in the Bankruptcy [proceeding].”

In Shofner, 232 S.W.3d at 40-41, we held that a parent with custody pursuant to a

circuit court decree should not forfeit his right to recover attorney fees pursuant to

Tennessee Code Annotated section 36-5-103(c) simply because the mother “chose a

different forum in which to challenge [that decree].” Courts have interpreted Tennessee

Code Annotated section 36-5-103(c) to support awards of attorney fees in dependency

and neglect proceedings and conservatorships. We conclude that the same reasoning

should apply here with respect to fees that were incurred to enforce and defend an

alimony award in a bankruptcy proceeding. “[T]he public policy considerations and

common law roots that support a broad interpretation of Tenn. Code Ann. § 36-5-103(c)

in the child support context apply with equal force to spousal support[.]” Evans, 2004

WL 1882586, at *13.

For these reasons, we reject Husband’s argument that the trial court erred in

awarding attorney fees related to the federal bankruptcy proceeding and affirm the trial

court’s award of Wife’s attorney fees in its entirety.9

B. Mr. Peterson’s Accounting Fee

Next, we examine the trial court’s award to Wife of the fee she owed Mr.

Peterson, her accountant and expert witness. Husband argues that accounting or expert

fees are not recoverable under Tennessee Code Annotated section 36-5-103(c) because

the statute only specifically mentions “attorney fees.”10

9

Near the end of his brief on appeal, Husband argued that a portion of the attorney fee award for

Wife’s counsel in the state court proceeding lacked sufficient evidentiary support in the form of an

itemization. However, this was not listed as an issue presented for review in the designated section of his

brief, so it is waived. See Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012) (“[A]n issue may be

deemed waived when it is argued in the brief but is not designated as an issue in accordance with Tenn. R.

App. P. 27(a)(4).”) To the extent that Husband attempts to raise additional issues in his reply brief, those

issues are also waived. See Hughes v. Tenn. Bd. of Prob. & Parole, 514 S.W.3d 707, 724 (Tenn. 2017)

(“Issues raised for the first time in a reply brief are waived.”)

10

This Court has, on occasion, affirmed similar awards under Tennessee Code Annotated section

36-5-103(c). See, e.g., Brownyard v. Brownyard, No. 02A01-9803-CH-00063, 1999 WL 418352, at *16

(Tenn. Ct. App. June 22, 1999) (affirming an award of attorney fees “and $1540 in expert witness fees”);

Beck v. Beck, No. 01A01-9710-CV-00547, 1998 WL 136130, at *1-2 (Tenn. Ct. App. Mar. 27, 1998)

(affirming an award of attorney fees and “accountant fees” for the wife’s expert witness who attempted to

“penetrate the mysteries of the husband’s finances” and rebut his claims of meager income); D v. K, 917

S.W.2d 682, 687 (Tenn. Ct. App. 1995) on reh’g (Nov. 1, 1995) (awarding the wife fees and expenses

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The trial court’s order discussed all three possible grounds that Wife argued would

support an award of her attorney fees and Mr. Peterson’s fee, including section 36-5-

103(c), the civil contempt statutes, and Tennessee Rule of Civil Procedure 54.04(2)

regarding discretionary costs. Although some aspects of the discussion seem to overlap,

the trial court clearly stated, “Wife’s full expenses for expert Daniel E. Peterson are

awarded not as discretionary costs, but as damages resulting from Husband’s civil

contempt.” As such, we will review the trial court’s award of Mr. Peterson’s fee as one

for compensatory damages for civil contempt. See Richards v. Richards, No. M2003-

02449-COA-R3-CV, 2005 WL 396373, at *14 (Tenn. Ct. App. Feb. 17, 2005) (finding it

unnecessary to decide whether pure “expenses” could be recovered under section 36-5-

103(c) when there was more than one basis for the trial court’s award).

Husband raises three arguments on appeal as to why he contends it was

inappropriate for the trial court to award any fees or costs as damages for civil contempt.

We address each in turn.

1. Omissions versus Forbidden Acts

Husband argues that the trial court was not authorized to award any damages for

his contemptuous conduct because his conduct consisted of “omissions” (failure to pay

alimony and to provide proof of insurance) rather than affirmative acts that were

forbidden by a court order. Husband argues that Tennessee Code Annotated section 29-

9-105 only permits an award of damages if the contempt consisted of “the performance of

a forbidden act.” He insists that the statute governing contemptuous omissions, section

29-9-104, does not provide for damages. We disagree.

Tennessee Code Annotated section 29-9-104(a) provides 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.” The statute

further provides that the person “can be separately fined, as authorized by law, for each

day it is in contempt until it performs the act or pays the damages ordered by the court.”

Tenn. Code Ann. § 29-9-104(b) (emphasis added). The language regarding damages was

added to the statute by amendment in 2011. See 2011 Pub. Acts, c. 119, § 5, eff. April

25, 2011. Since then, “[t]his Court has [] approved of the award of damages in a civil

contempt proceeding brought under Tennessee Code Annotated section 29-9-104,” as the

statutory amendment “expressly contemplated damages.” Brunetz v. Brunetz, No.

E2018-01116-COA-R3-CV, 2019 WL 1092718, at *11 (Tenn. Ct. App. Mar. 8, 2019);

including those for a private investigator). However, in Stancil v. Stancil, No. M2017-01485-COA-R3-

CV, 2018 WL 1733452, at *4 n.3 (Tenn. Ct. App. Apr. 10, 2018), we rejected a mother’s suggestion that

Tennessee Code Annotated section 36-5-103(c) provided “an independent source of authority” for an

award of discretionary costs.

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see, e.g., Smith v. Smith, No. E2017-01295-COA-R3-CV, 2019 WL 410702, at *9 (Tenn.

Ct. App. Jan. 31, 2019) (recognizing that the 2011 amendment “abrogated prior caselaw

disallowing damages as a remedy for an omission to perform an act under section 29-9-

104”); Boren v. Hill Boren, P.C., No. W2017-02383-COA-R3-CV, 2018 WL 5044669, at

*8 (Tenn. Ct. App. Oct. 17, 2018) (rejecting the contemnors’ argument based on “a pre-

2011 version of the statute and case law construing it”). In Brunetz, for example, this

Court affirmed an award of attorney’s fees as “compensatory damages” when the mother

was forced to bring a contempt action in order for the father to comply with his

obligations to pay certain expenses. 2019 WL 1092718, at *11.

As our supreme court noted in Lovlace v. Copley, 418 S.W.3d 1, 37 n.26 (Tenn.

2013), both sections, 29-9-104 and -105, now describe the availability of “damages” in

contempt proceedings. Husband’s argument that section 29-9-104 “does not provide for

damages” is without merit.

2. Criminal versus Civil Contempt

Next, Husband argues that punishment for criminal contempt is limited to a fine of

$50 or imprisonment, and therefore, the trial court had no authority to award

compensatory damages for criminal contempt.

“After a finding of contempt, the statutes permit courts to award several different

remedies, depending on the facts of the case and whether the contempt is civil or criminal

in nature.” Watts v. Watts, 519 S.W.3d 572, 577 (Tenn. Ct. App. 2016) (citing Tenn.

Code Ann. §§ 29-9-103 to -105). Husband argues that under the law applicable at the

time of the proceedings below, not all contempt findings allowed a trial court to award

compensatory damages such as attorney fees. See Parimore v. Parimore, No. W2016-

01188-COA-R3-CV, 2017 WL 657771, at *5 (Tenn. Ct. App. Feb. 17, 2017). In Watts,

519 S.W.3d at 586, this Court held that “an award of attorney’s fees is not permissible in

the context of criminal contempt under Tennessee statute.” A trial court was authorized

to award attorney fees upon a finding of civil contempt, but not criminal contempt.11 Id.

11

In Watts, 519 S.W.3d at 585, the Court acknowledged that “attorney’s fees may be a logical

and potentially effective part of a sentence for criminal contempt, and the legislature may wish to

consider this issue in the future.” The 2018 amendment to Tennessee Code Annotated section 36-5-

103(c) provided that attorney fees may be awarded in a criminal contempt action. See 2018 Pub. Acts, c.

905. Although it does not apply in this proceeding, the amended statute now provides,

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.

- 21 -

A brief review of the timeline in this case is helpful in understanding Husband’s

argument. In 2015, Wife filed a “petition for contempt” due to Husband’s failure to pay

alimony. Although she did not specify civil or criminal contempt, she sought an award of

compensatory damages and attorney fees. She later amended her petition to allege both

criminal and civil contempt based on the same factual allegations. The trial court heard

the issue of criminal contempt first and found Husband in criminal contempt on twelve

counts. Wife filed a motion to have the issue of civil contempt decided based on the

record produced at the criminal contempt hearing because it was based on the same facts.

Before Husband served any sentence for criminal contempt, the parties reached an

agreement whereby the findings of criminal contempt would be “converted” to findings

of civil contempt. We do not have a transcript of the hearing at which this agreement was

reached, but according to Husband’s brief on appeal, “[Husband] agreed to withdraw his

petition for criminal contempt against [Wife] if [Wife] would agree to modify her petition

to convert her allegations of criminal contempt into civil contempt.” Consequently, after

the July 2017 hearing, the trial court entered an order converting the findings of criminal

contempt into findings of civil contempt and incorporating the testimony and evidence

from the criminal contempt hearing for purposes of the issue of civil contempt. The order

reserved a ruling on Wife’s request for attorney fees in connection with the claims for

civil contempt.

On appeal, Husband argues that no fees or costs can be awarded for the period of

time prior to the date of the trial court’s order converting the findings of criminal

contempt to civil contempt, in July 2017. According to Husband, “All pending litigation

and related fees were for criminal contempt until that moment.” We find no support for

this assertion. Wife’s original petition appears to be one for civil contempt, as it did not

mention incarceration but sought compensatory damages and attorney fees. She later

amended her petition to allege both civil and criminal contempt based on the same factual

allegations; however, the allegations and findings of criminal contempt were “converted”

to allegations and findings of civil contempt based on the agreement of the parties. In

short, Wife’s allegation of civil contempt was pending all along. She was simultaneously

pursuing criminal contempt for a time, but that aspect of the proceeding was dismissed,

and the hearing on criminal contempt was essentially substituted for a hearing on civil

contempt. We reject Husband’s argument that Wife must be limited to the fees she

incurred after the order reflecting the parties’ agreement in July 2017.

3. The Bankruptcy Proceeding

Finally, Husband argues that the trial court lacked statutory authority to award

Wife any fees or costs that related to the bankruptcy proceeding as damages for civil

contempt.

Tenn. Code Ann. § 36-5-103(c).

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“[T]rial courts may award compensatory damages to a party ‘for injury arising

from the [other party’s] illegal disobedience of the court.’” Keller v. Estate of

McRedmond, No. M2013-02582-COA-R3-CV, 2018 WL 2447041, at *5 (Tenn. Ct. App.

May 31, 2018) (quoting Overnite Transp. Co. v. Teamsters Local Union No. 480, 172

S.W.3d 507, 511 (Tenn. 2005)). Damages for civil contempt “are compensatory in

nature.” Reed v. Hamilton, 39 S.W.3d 115, 119 (Tenn. Ct. App. 2000). They serve to

compensate the petitioner for the loss sustained as a result of the wrongful and

contemptuous conduct. See id. at 120. The measure of damages for civil contempt is

“the actual injury sustained as a result of the contempt.” Lovlace, 418 S.W.3d at 37 n.26

(quoting Overnite Transp., 172 S.W.3d at 510-11).

“Actual damages, or compensatory damages, consist of ‘[a]n amount awarded to a

complainant to compensate for a proven injury or loss; damages that repay actual

losses.’” Keller, 2018 WL 2447041, at *5 (quoting Black’s Law Dictionary (10th ed.

2014)).

A compensatory civil contempt order reimburses the injured party for the

losses and expenses incurred because of an adversary’s non-compliance.

This includes losses flowing from noncompliance and expenses reasonably

and necessarily incurred in the attempt to enforce compliance.

XL Sports, Ltd v. Lawler, No. M2006-00637-COA-R3-CV, 2007 WL 2827398, at *6

(Tenn. Ct. App. Sept. 28, 2007) (internal quotations omitted).

“[A]ttorney’s fees are among the types of compensatory damages that may be

awarded in a civil contempt proceeding.” Brunetz, 2019 WL 1092718, at *11. An award

of damages, such as attorney fees, compensates the prevailing party “for the expenses

incurred to obtain compliance with a court order.” St. John-Parker, 2016 WL 2936834,

at *13 (quoting Cremeens v. Cremeens, No. M2014-01186-COA-R3-CV, 2015 WL

4511921, at *7 (Tenn. Ct. App. July 24, 2015)). However, attorney fees are not the only

type of compensatory damages that may be awarded. See, e.g., Keller v. Estate of

McRedmond, 495 S.W.3d 852, 882 (Tenn. 2016) (explaining that the petitioners could

“assert claims of civil contempt against [the respondent] for any actual damages that

arose out of his violation of the trial court’s orders”); Boren, 2018 WL 5044669, at *3, *8

(affirming the trial court’s award of damages for civil contempt due to failure to produce

a computer server, which damaged the plaintiffs in the sum of $4,616); Wagoner-Angelin

v. Angelin, No. E2016-01850-COA-R3-CV, 2017 WL 3769373, at *10 (Tenn. Ct. App.

Aug. 29, 2017) (affirming an award of $12,710 to remedy a flooding problem); Rentz v.

Rentz, No. E2013-02414-COA-R3-CV, 2014 WL 3748562, at *4 (Tenn. Ct. App. July

30, 2014) (affirming an award of $4,000 in economic damages for civil contempt

although the trial court declined to award attorney fees); B.M.M. v. P.R.M., No. M2002-

02242-COA-R3-CV, 2004 WL 1853418, at *16 (Tenn. Ct. App. Aug. 18, 2004)

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(affirming an award of private investigator fees under section 29-9-105); Ledford v.

Ledford, No. 01A01-9701-CH-00029, 1998 WL 736664, at *1 (Tenn. Ct. App. Oct. 23,

1998) (affirming monetary damages for the destruction of property); Brummett v.

McCoury, No. 03A01-9512-CH-00425, 1996 WL 285405, at *2 (Tenn. Ct. App. May 24,

1996) (affirming award of $54,623.91 for damage to property); Kuydendall v. Latham,

Chester Eq. No. 1, 1991 WL 10178, at *1-2 (Tenn. Ct. App. Feb. 4, 1991) (affirming an

award of damages from operating a store in violation of the court’s order). In fact, the

Court of Appeals for the Sixth Circuit affirmed a finding of civil contempt and an award

of damages including $193,892 in “accounting fees” in Williamson v. Recovery Ltd.

P’ship, 467 F. App’x 382, 387 (6th Cir. 2012) cert. denied, 568 U.S. 963 (2012). The

Court noted that in a civil contempt proceeding, such sanctions can be used “to

compensate the complainant.” Id. at 396.

Husband’s argument on appeal with respect to this issue is a bit difficult to follow.

Husband does not deny that his conduct was contemptuous, nor does he argue that his

conduct did not give rise to the need for Wife to utilize the expert services of an

accountant in order to trace his funds.12 Husband does not argue that any particular

action of Mr. Peterson was unnecessary or, for that matter, unrelated to tracing his funds

or “chasing alimony.” In fact, before the trial court, Husband acknowledged that “[t]hese

fees were assessed for work [Mr. Peterson] alleges he performed related to the issue of

alimony both in the Circuit Court case and in the Bankruptcy Court case.” On appeal,

Husband simply argues that Wife cannot be compensated for any “discretionary costs”

that “relate to the bankruptcy proceeding.” His brief states: “[N]o Tennessee cases have

discussed the award of discretionary costs as falling within ‘damages’ for civil contempt

under the statute.” He claims that “[t]here is no statutory or other authority for [Wife] to

recover Mr. Peterson’s expert fees incurred solely in the federal bankruptcy court.”

As previously noted, however, the trial court awarded Mr. Peterson’s fee not as an

award of discretionary costs but as damages for civil contempt. The trial court found that

Wife could not be placed “in the status quo” for the period she suffered without alimony,

and therefore, an award of “compensatory damages” for Husband’s civil contempt was

appropriate. It found that Husband’s misconduct “necessitated the tracing of assets

12

In support of her request for an award of damages for Mr. Peterson’s accounting fee, Wife

alleged:

As a direct result of [Husband’s] pervasive chicanery, [Wife] was required to

retain the services of, Daniel Peterson, to trace funds by applying specific techniques and

methodology to [Husband’s] subterfuge so that clear and understandable reports could be

prepared and presented for attorneys, U.S. Trustees, and the Courts. Extensive amounts

of time and effort were required to gather, organize, compile and analyze the magnitude

of data at issue.

[Husband’s] false statements about his cash, assets, income, ability to pay

alimony and his refusal to properly participate in discovery, created the necessity for

[Wife] to provide evidence of the truth.

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which Husband sought to conceal[.]” Additionally, the order states:

The Court finds that Exhibit 4, the invoice of Daniel E. Peterson, Wife’s

accountant was for work necessitated by Husband’s failure to pay Wife’s

alimony and in order to trace assets hidden by husband and as such his

charges are proper damages in the nature of compensatory damages

allowable to Wife. The cost of Peterson was in furtherance of the Court’s

ruling of Husband’s civil contempt.

It found that Mr. Peterson’s fees “were necessitated wholly by the misconduct of

Husband for which the Court found Husband in civil contempt due to his willful refusal

to pay Wife alimony[.]”

We discern no error in the full award of Mr. Peterson’s accounting fee solely

because a portion of his work, which included tracing assets, ferreting out accounts, and

chasing alimony, “related to” the bankruptcy proceeding. “Civil contempt proceedings . .

. provide compensation as ‘relief to a party who has suffered unnecessarily as a result of

contemptuous conduct.’” Dukes v. Dukes, No. M2014-00847-COA-R3-CV, 2015 WL

9946275, at *2 (Tenn. Ct. App. Aug. 13, 2015) (quoting XL Sports, 2007 WL 2827398, at

*6). “[T]he disobedience of the court’s order is not rectified until the offending party

pays damages to make the other party whole.” Cremeens, 2015 WL 4511921, at *7

(quoting Overnite Transp., 172 S.W.3d at 511).

As we said in Beck, 1998 WL 136130, at *2, when awarding a wife her accounting

fee, “it does not seem just to penalize the wife who found it necessary to seek assistance

in extracting the true facts from appellant” in an attempt to “penetrate the mysteries of the

husband’s finances.” We affirm the award of Mr. Peterson’s accounting fee as damages

for civil contempt.

C. Discretionary Costs and Additional Attorney Fees

Both parties raise issues on appeal regarding discretionary costs. Wife argues that

the trial court “intended” to award her discretionary costs but “inadvertently omitted”

them from its final judgment. She also argues that the trial court “inadvertently omitted”

a portion of the attorney fee of one of her bankruptcy attorneys in its final award. As

such, she asks this Court to modify the judgment to include those sums.

Curiously, Husband’s brief proceeds as if the trial court awarded Wife

discretionary costs. It states, “[Wife] requested, and the trial court awarded, discretionary

costs that well exceeded the permissible scope of Tenn. R. Civ. P. 54.04.” He argues that

her motion for discretionary costs was untimely and that some of the costs she requested

were impermissible.

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From our review of the record, we simply cannot discern whether the trial court

intended to award Wife discretionary costs or the additional fees incurred by her other

bankruptcy attorney. We begin with the attorney fees.

In the trial court, Wife filed a “Memorandum in Support of Award of Fees” in

which she sought to recover the fees she had incurred from the following individuals,

totaling $245,136.70:

Randall D. Larramore $ 74,605.75 (Ex. 6)

Ken Rannick $100,872.00 (Ex. 7)

John Konvalinka $ 25,469.00 (Ex. 8)

John Konvalinka $ 4,629.00 (Ex. 9)

Daniel Peterson $ 37,849.70 (Ex. 10)

Allison Ulin $ 1,711.25 (Ex. 11)

(footnotes omitted). The trial court’s order of judgment awarded the following sums:

$74,605.75 Attorney Fee of Randall D. Larramore

$100,872.00 Attorney Fee of Kenneth C. Rannick and Rannick, P.C.

$25,469.00 Attorney Fee of John P. Konvalinka

$1,711.25 Attorney Fee of Allison Ulin Lynch

$37,849.70 Fees of Accountant Daniel E. Peterson

$240,507.70

It is evident from the judgment that the trial court’s award did not include the smaller

sum billed by Attorney Konvalinka. In the trial court’s discussion of its award of

attorney fees in its more detailed memorandum, the court initially stated that it credited

“the affidavits filed with the current motion ie Exhibits 1,2,3,4,5 and 6,” but it later stated

that the “fees requested in Exhibits 1,2,3,5 and 6 were incurred as a result of the novel

issues present in this case,” omitting any reference to Exhibit 4. Later, it referenced the

fees of “Konvalinka in Exhibit 3” and “the affidavit of Attorney John P. Konvalinka . . .

(Filed as Exhibit 3 to the motion.)” The trial court’s order stated that certain exhibits

were attached, but the order in the record before us does not contain the exhibits

referenced above.

We recognize, as Wife notes, that the trial court concluded its memorandum by

stating that it would enter an order of judgment “in the full amounts claimed by [Wife].”

However, it is not clear from the memorandum that the trial court had the second

affidavit of Konvalinka before it when making its decision and also intended to include it

in the award. Unfortunately, neither party filed a post-trial motion seeking clarification

as to the amount Wife now claims was “inadvertently omitted.” Thus, we will remand

this issue to the trial court for it to consider Wife’s request of an additional award of

$4,629 reflected in the second affidavit of Konvalinka.

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We now turn to discretionary costs. After Wife filed the aforementioned

“Memorandum in Support of Award of Fees,” seeking the amounts quoted above, she

filed a “Motion for Discretionary Costs and Costs Pursuant to the Courts Finding of

Contempt,” seeking to recover the following:

$10,256.87 Rule 54.04 Cost incurred by [Wife]

$9,395.42 Out of Pocket Costs incurred by [Wife]13

She also argued that Mr. Peterson’s fee should be awarded either as discretionary costs or

as compensatory damages for the finding of civil contempt. As the previous quote from

the order of judgment demonstrates, it included the sums Wife initially requested for

attorney fees and Mr. Peterson’s fee, but it did not mention any amount designated as

discretionary costs. The title of the trial court’s detailed memorandum stated that it was

an award of damages for civil contempt, attorney fees under Tennessee Code Annotated

section 36-5-103(c), “and as discretionary costs to the prevailing party.” However, the

memorandum contains the following analysis regarding discretionary costs:

AWARD OF DISCRETIONARY COSTS FOR REASONABLE AND

NECESSARY EXPENSES FOR EXPERTS UNDER TENNESSEE RULE

OF CIVIL PROCEDURE 54.04(2)

Tennessee Rule of Civil Procedure 54.04 (2) provides for the award

of discretionary costs to a prevailing party.

. . . Discretionary costs allowable are: reasonable and

necessary court reporter expenses of trials, reasonable and

necessary expert witness fees for depositions, (or stipulated

reports) and for trials . . . travel expenses are not allowable

discretionary costs.

Tenn. R. Civ. P. 54.04 (2) (in pertinent part.)

However, allowable discretionary costs include only those costs

attributable to the trial or deposition testimony itself. In Stancil v. Stancil,

2018 WL 1733452 (Tenn. App.), the appellate court disallowed any costs

13

It is not entirely clear whether Wife was seeking to recover both of these sums or one as an

alternative to the other. It appears that Wife sought $10,256.87 as “classic” discretionary costs and/or the

sum of $9,395.42 as additional “out of pocket” damages for contempt. The attached affidavit stated that

the costs on one exhibit for “classic” discretionary costs reflected “a subset of those costs” on another

exhibit for out-of-pocket costs. Husband’s brief on appeal states that the trial court awarded both of these

sums to Wife as “discretionary costs,” but the only record cite he provides is “(TR 347-62)” generally

referencing the trial court’s sixteen-page memorandum. Wife only asks this Court to increase the trial

court’s judgment to include $12,275.42 in “inadvertently omitted” discretionary costs.

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not “specifically identified in Tenn. R. Civ. P. 54.04 citing Mass. Mut. Life

Ins. Co. v. Jefferson, 104 S.W.3d 13, 35-36 (Tenn. Ct. App. 2002). The

trial court could not simply award the entire invoice of the expert but had to

exclude expenses/charges of the expert for travel, file review, deposition (or

trial) prep., and meeting with the attorney. The Rule limits the award of

discretionary costs to the cost of actually testifying. Id See Chaffin v. Ellis,

211 S.W.3d 264, 293 (Tenn. Ct. App. 2006). Shardan v. Global Hous., Inc.,

983 S.W.2d 230, 239 (Tenn. Ct. App. 1998).

Wife’s full expenses for expert Daniel E. Peterson are awarded not

as discretionary costs, but as damages resulting from Husband’s civil

contempt.

Thus, it is not clear from the order whether the trial court actually considered Wife’s

request for discretionary costs aside from those related to Mr. Peterson’s fee. We

recognize that the trial court credited certain itemizations and stated that those were

attached as exhibits, but those exhibits are not in the record.

Unfortunately, we must remand this issue to the trial court as well. We

acknowledge Wife’s request for this Court to decide the issue in order to bring an end to

this litigation and its expenses. However, as its name implies, “the award of

discretionary costs under Rule 54.04(2) is discretionary with the trial court and reviewed

for an abuse of discretion.” Fichtel v. Fichtel, No. M2018-01634-COA-R3-CV, 2019

WL 3027010, at *27 (Tenn. Ct. App. July 10, 2019). Husband raised numerous

arguments in the trial court and on appeal against an award of discretionary costs. Given

the trial court’s discretion, these arguments should be considered by the trial court in the

first instance.

D. Attorney Fees on Appeal

Finally, we address the parties’ requests for an award of attorney fees on appeal.

Husband argues that an award of such fees is appropriate “when a party is disadvantaged

and paying the attorney’s fees would be hardship for that spouse.” He asks this Court to

consider his recent bankruptcy filing. Given Husband’s lack of success on appeal, we

respectfully deny his request for attorney fees for appellate work.

Wife also requests appellate attorney fees on the basis that she is disadvantaged

and has been required to deplete her resources continually pursuing the alimony and

attorney fees awarded by the court. She asks this Court to consider Husband’s

“misconduct and vexatious behavior” throughout these proceedings. She also cites the

trial court’s observations regarding Husband’s “intransigence and his just deliberate

misconduct,” as the trial judge stated that this was “the most aggravated case of

[Husband] just doing whatever he wants to do, in flagrant violation of the Court’s order,

and . . . flagrant dishonesty with the Court[.]”

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Tennessee Code Annotated section 36-5-103(c) provides statutory authority for

this Court to award appellate attorney fees to a prevailing party. Eberbach, 535 S.W.3d

at 475. Considering Wife’s success on appeal in defending her awards of attorney fees

and damages for civil contempt, in addition to Husband’s bad faith and steadfast refusal

to pay Wife alimony, we grant Wife’s request for attorney fees on appeal. The trial court

will determine a reasonable fee for appellate work on remand.

IV. CONCLUSION

For the aforementioned reasons, the decision of the circuit court is affirmed and

remanded for further proceedings. Costs of this appeal are taxed to the appellant, Virgil

Duane Parker, for which execution may issue if necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE

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