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Moritz v. Tulay

Court of Appeals of Tennessee, Knoxville

October 17, 2014

PAMELA A. MORITZ
v.
MICHAEL P. TULAY

Session Date August 26, 2014

Appeal from the Chancery Court for Knox County No. 151759-3 Michael W. Moyers, Chancellor

Pamela A. Moritz, Lancaster, Pennsylvania, Pro Se.

Kimberly R. Taylor, Knoxville, Tennessee, for the appellee, Michael P. Tulay.

Thomas R. Frierson, II, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and John W. McClarty, J., joined.

OPINION

THOMAS R. FRIERSON, II, JUDGE

I. Factual and Procedural Background

Mother and Father were married in 1984 and thereafter had three children. The parties divorced in Knox County in 2002. Pursuant to their divorce, the parties entered into an agreed permanent parenting plan, which named Mother primary residential parent and awarded Father co-parenting time with the children.

In 2005, Mother provided Father notice of her intent to relocate to Pennsylvania with the children. Father filed in the trial court a petition opposing such relocation on March 22, 2005. The trial court took no action on Father's petition, and Mother proceeded to move to Pennsylvania with the children. The proceedings remained dormant until March 2007 when Father filed a petition seeking modification of his child support obligation. In his petition, Father alleged that the parties' oldest child had attained the age of majority and was scheduled to graduate from high school in May 2007. Father also asserted that he should be granted a downward deviation in his guideline child support obligation due to the fact that he was required by Mother to bear the expense of traveling to and from Pennsylvania to exercise his co-parenting time. Father's petition provided notice that a hearing would be held on May 29, 2007.

Father's counsel attempted to have Mother served with a summons and a copy of the petition at her home in Pennsylvania, but the process server hired by Father's counsel reported via affidavit that Mother evaded his efforts to personally serve her with these documents. Father subsequently filed a motion requesting permission from the trial court to provide Mother with notice via publication. The court granted the motion, ordering the notice to be published in the Reading Eagle, a newspaper of general circulation in Reading, Pennsylvania, for four consecutive weeks. The court also ordered the clerk and master to transmit a copy of Father's petition to Mother at her home address via certified mail. The record contains proof that the notice by publication was accomplished. Thereafter, on June 22, 2007, Mother sent a letter to the clerk and master, instructing that any further communications be sent to her home address in Pennsylvania.

On September 11, 2007, Father filed a motion seeking to compel Mother's response to discovery documents previously mailed to her. In this motion, Father's counsel included a notice that a hearing regarding the motion to compel and the request for modification of child support had been scheduled for September 18, 2007. The motion contained a certificate of service stating that the document was sent via overnight delivery to Mother's home on September 10, 2007.

A hearing was held before the child support referee[1] on September 18, 2007, and Mother failed to appear. The referee specifically found that Mother had been properly notified and was aware of the proceedings as evidenced by her letter to the clerk and master dated June 22, 2007. Findings and recommendations from the hearing were entered September 28, 2007, wherein Father's child support obligation was reduced to $1, 025.00 per month. Further, Father was granted a judgment against Mother for attorney's fees in the amount of $2, 250.00. The findings and recommendations contain a certificate of service showing that the document was mailed to Mother at her home in Pennsylvania.

On October 15, 2007, Mother sought a rehearing regarding the referee's findings and recommendations. The respective hearing was scheduled for December 21, 2007, for which Mother admits she had prior notice. Claiming that she could not attend the hearing due to inclement weather, Mother faxed to the court a request for a continuance on December 20, 2007. As the court found that Mother's claim of inability to travel was not credible, the request for a continuance was denied. At the hearing on December 21, 2007, Father filed another petition seeking a further modification of child support inasmuch as the parties' second child had reached the age of majority. Father also sought a modification of the permanent parenting plan, alleging that Mother had denied his requests to see the children since the date of the previous child support hearing. Upon Father's request, the trial court issued a temporary injunction prohibiting Mother from interfering with Father's co-parenting time. The court also denied Mother's request for a rehearing as untimely because the request was not filed within ten days of the referee's decision.[2] The referee's findings and recommendations were confirmed, and Father was granted an additional judgment against Mother for attorney's fees in the amount of $400.00. The temporary injunction was served upon Mother through the Tennessee secretary of state.

Thereafter, Mother again sought a rehearing by filing a request on January 9, 2008. The trial court conducted a hearing on April 22, 2008, wherein Mother's counsel made an appearance on her behalf. The trial court entered a judgment confirming its earlier rulings. On May 20, 2008, Mother (through counsel) filed motions seeking relief from the court's earlier judgments regarding child support and attorney's fees. Mother also filed an answer seeking dismissal of Father's petition opposing relocation, as well as a motion for the court to decline its exercise of jurisdiction, pursuant to Tennessee Code Annotated § 36-6-622. Mother asserted that the Pennsylvania court would be a more convenient forum. On May 14, 2008, the court entered an order allowing the withdrawal of Mother's counsel and scheduling Father's summer co-parenting time with the parties' sole remaining minor child to begin on May 30, 2008.

On May 30, 2008, Father traveled to Mother's home in Pennsylvania to retrieve the child. As Mother and the child were not there, however, Father learned that Mother had allegedly taken the child and was staying at an undisclosed location to avoid Father's exercise of co-parenting time. On July 11, 2008, Father filed a motion seeking an injunction compelling Mother to bring the child to him for visitation. In this motion, Father included a notice of hearing for July 23, 2008. The attendant certificate of service provides that this document was mailed to Mother on July 11, 2008. At the hearing, Mother did not appear, and no attorney appeared on her behalf. The court granted the injunction, stating in relevant part:

Accordingly, this Court Orders that an Injunction shall issue which shall order Pamela Moritz to bring the parties' minor child, [M.T.], to the Knox County Chancery Court, Part III, located at 400 Main Street, City-County Building, Knoxville, Tennessee 37902 at 9:00 a.m. on the 1st day of August, 2008 for Father to have co-parenting time with said child. Additionally, the Court does Order that Michael Peter Tulay shall have co-parenting time with the child from 9:00 a.m. on August 1, 2008 until 5:00 p.m. on August 24, 2008 with Mother to be solely responsible for all transportation on August 1st to bring the child to Tennessee and on August 24, 2008 to retrieve the child. If the Mother does not comply with this Injunction, the Court shall issue a Show Cause Order requiring her to appear before this Court and show cause why she should not be incarcerated as a result of her failure to comply and/or the Court may also enter an immediate Order changing primary custody of [M.T.] to Father. . . .

In the same order, the trial court denied Mother any relief from the court's prior judgments, denying also her motions to alter or amend and/or for a new trial. Further, the court denied Mother's motion asking the court to decline jurisdiction so that the matter could be heard by the Pennsylvania court. The trial court specifically found that Mother had received proper notice of all hearings and pending motions. Issues of contempt and attorney's fees were reserved for further hearing.

During the hearing conducted on August 1, 2008, Mother failed to appear with the child as ordered. The court subsequently entered an Order on August 12, 2008, finding that Mother was properly and personally served with the injunction by the Berks County Sheriff's Department in Pennsylvania and had sufficient notice and opportunity to comply. The court further found Mother to be in contempt, ordering that an instanter attachment be issued for her arrest. As the court ordered, Mother could be released when she tendered the child to Father's custody. The order also provided that primary custody of the child would be transferred to Father and that Mother would have supervised visitation with the child at Parent Place.[3] The court held that because Mother failed to respond to discovery, her income would be imputed at the statutory amount of $29, 300.00 per year with child support set accordingly.

On September 12, 2008, Mother relinquished the child to Father's care and custody. Father subsequently filed a motion seeking an amendment of the existing permanent parenting plan to reflect that he had been granted custody of the child. In his motion, Father asserted that Mother had not properly home-schooled the child and that the child was found upon testing to be academically disadvantaged. Father stated that he was obtaining tutoring and other assistance for the child in order to alleviate his delays.

A hearing was conducted on February 27, 2009, again before the child support referee. Based upon the evidence presented, the referee established Mother's child support obligation and awarded Father a judgment for the child support arrearage and attorney's fees. An instanter attachment was issued for Mother's arrest due to her failure to appear. In April 2009, the trial court conducted a hearing regarding the permanent parenting plan, entering an order on May 8, 2009. The order recites, inter alia, that although Mother had notice of the hearing and had communicated with the chancellor's secretary, she did not appear. The court, determining that the original petition opposing relocation was moot, focused on Father's amended petition seeking modification of the parenting plan. The court stated in pertinent part:

Specifically, the Court finds that subsequent to the entry of a Permanent Parenting Plan on June 2, 2002 which was incorporated into a Final Judgment of Divorce on September 3, 2002, an unanticipated significant change of circumstances has occurred which is sufficient to change custody and which affects the parties' one remaining minor child. The Court has listened to the testimony, and the Court is further painfully familiar with the history of this case. Ms. Moritz seems determined to show her contempt for this Court and for the entirety of the judicial system. The Court notes that there is a pending Instanter Attachment against her from our Child Support court for her continual refusal to appear before that Court. The Court finds that Ms. Moritz's behavior is erratic and is a danger to the child. The child has suffered educational deficiencies because Ms. Moritz has home schooled the child and because of Ms. Moritz's lack of teaching abilities and unwillingness to enroll the child in a normal school. The Court finds that Ms. Moritz has engaged in a pattern and practice of failing to comply with the previous orders of the Court and in interfering with Mr. Tulay's time with the parties' child and that Ms. Moritz has intentionally attempted to alienate the relationship between all of the parties' children and Mr. Tulay. The Court finds that Ms. Moritz's conduct has adversely affected [M.T.]. On the other hand, the Court finds Mr. Tulay to be an adequate, compassionate (perhaps too compassionate), very patient gentleman in ...

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