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Miller v. Miller

Court of Appeals of Tennessee, Nashville

January 7, 2015


Session Date: December 02, 2014

Appeal from the Circuit Court for Davidson County No. 09D2178 Phillip R. Robinson, Judge

Arnold B.Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.

Cynthia Cheatham, Manchester, Tennessee, for the appellant, Annie Miller

Nathaniel H. Koenig, Nashville, Tennessee, for the appellee, Mark Miller (No brief filed)



I. Background and Procedural History

This appeal arises out of a post-divorce criminal contempt proceeding in the Circuit Court of Davidson County. The parties in this matter were divorced in Tennessee on September 21, 2011. In addition to containing various provisions regarding the division of the marital assets and debts, the awarding of alimony, and the awarding of attorney's fees, the final decree of divorce incorporated by reference a permanent parenting plan which designated Mother as the primary residential parent for the parties' two minor children. Pursuant to the terms of the parenting plan, Mother was allowed 250 days of parenting time per year, whereas Father was entitled to 115 days.

After the parties divorced, Mother sought to relocate to Appleton, Wisconsin. On July 19, 2012, an agreed order was entered in the Circuit Court of Davidson County acknowledging the parties' agreement that Mother be allowed to relocate with the minor children effective August 1, 2012. Later, on December 27, 2012, the trial court entered a modified parenting plan in response to the parties' agreement concerning Mother's relocation.[1] Pursuant to the modified parenting plan, Mother was awarded 274 days of parenting time per year, in contrast to Father's awarded 91 days. As is of significance to this appeal, the modified parenting plan allowed Father to exercise parenting time with the children during their spring and summer vacations. Concerning the spring break visitation, the modified plan provided specifically as follows:

The Father shall have Spring Break every year with the Mother transporting the children to Nashville by 6:00 p.m. the first full day the children are out (whether it falls on a weekend or weekday) and the Mother picking the children up (by car or flight) before 12:00 noon on the day before school recommences.

Concerning the summer visitation, the modified plan provided:

The Mother shall deliver the children to the Father in Nashville two (2) days after school lets out for the summer and the Father shall return them to the Mother sixteen (16) days before school starts. The Mother is awarded two (2) weekends during the summer being the first Friday in July and the following weekend and the first Friday in August and the following weekend at the Mother's expense. Mother shall notify the Father if she intends to exercise this parenting time.

Despite the schedule outlined in the parenting plan, Mother did not bring the children to visit with Father during his 2013 spring break and summer vacation parenting time. In February 2013, while the children were in Wisconsin with Mother, a report was made to the Winnebago County Department of Human Services ("Winnebago DHS") alleging concerns that Father had sexually abused and neglected the minor children. Winnebago DHS commenced an investigation into the matter, and in March 2013, one of its social workers wrote a letter, a copy of which was received by both parties, recommending that the children's visitation with Father be suspended until the investigation was closed. Based on this letter and her fears of sending the children to be with Father, Mother did not bring the children to visit with Father over the spring break holiday.

Eventually, the investigation by the Winnebago DHS came to a conclusion. The investigation did not result in a finding that the children were unsafe, but a narrative assessment completed by a DHS social worker did indicate that the children had reported incidents of neglect and inappropriate touching by Father. No direct action was taken against Father. Before Father's summer visitation with the minor children was to commence, however, one of the children discussed during counseling his continued fear that Father would touch him inappropriately. Soon thereafter, Mother moved for restraining orders in Wisconsin, seeking to enjoin Father from having contact with the children. Mother originally filed for injunctive relief on June 5, 2013, in Outagamie County, Wisconsin, and on the same date, temporary restraining orders were entered against Father with respect to both minor children. Attached to Mother's petitions for injunctive relief was the narrative assessment by the Winnebago DHS which described the children's reports of abuse; it is worth noting that the DHS report mentioned the existence of an established family court order in Tennessee. Also attached to Mother's petitions was a letter from a therapist of one of the children, wherein the therapist relayed that one of the minor children had expressed fear to her at the thought of being left alone with Father. On June 18, 2013, the Circuit Court in Outagamie County dismissed Mother's requests for injunctive relief and noted that such requests must properly lie in Winnebago County where Mother and the children resided.

As it turns out, Mother had already filed petitions for injunctive relief in Winnebago County on June 11, 2013. Like the petitions filed in Outagamie County, the petitions filed in Winnebago County had the DHS narrative assessment and the children's therapist's letter as attached exhibits. On the same date that her Winnebago County petitions were filed, the Circuit Court judge granted Mother's applications for temporary restraining orders, appointed a guardian ad litem, and set the matters for hearing. Pursuant to the restraining orders, Father was ordered to avoid contact with the minor children. During the pendency of the Wisconsin proceedings, the Winnebago County Circuit Court entered orders denying Father's attempt to dismiss the child abuse restraining order actions. Specifically, in orders dated August 1, 2013, the Winnebago County Circuit Court found that "[t]he minor children and mother have resided in the State of Wisconsin for more than six months. Therefore, Wisconsin is presently the home state for the minor children of the parties. Substantial information concerning the children is available in Wisconsin." Mother's injunction actions were ultimately dismissed by the Winnebago County Circuit Court in September 2013 for failure to meet the applicable burden of proof.[2]

On June 14, 2013, Father filed a "Petition for Contempt and Modification" in the Circuit Court of Davidson County. The petition alleged that the children's spring break that year had commenced on March 24, 2013, and that Mother had failed to bring the children to visit with Father for his scheduled parenting time. The petition further alleged that Mother was required to bring the children to Nashville for Father's summer parenting time two days after school ended and claimed that although school had ended on June 5, 2013, Mother had not yet transported the children to visit Father. From Father's perspective, Mother's failure to bring the children for Father's spring and summer visitation constituted acts of "willful and wanton" contempt in violation of the Davidson County court's December 27, 2012 order. In his prayer, Father asked that Mother be found guilty on two counts of criminal contempt. Within Father's petition, reference was made to the then-pending Wisconsin injunction proceedings, and subsequent to the filing of the petition, Father filed a motion requesting that the trial judge in Davidson County contact the Circuit Court judge[3] in Wisconsin.

On August 2, 2013, Mother moved to dismiss Father's petition for contempt and modification, noting that she had obtained a temporary restraining order against Father from the Circuit Court in Wisconsin. A memorandum in support of her position was filed on August 14, 2013, and on the same date, Mother filed certified copies of certain pleadings from the courts of Wisconsin.[4] Mother also filed a response to Father's motion for a telephonic conference, wherein Mother requested that the parties have an opportunity to participate in any communication between the Tennessee and Wisconsin courts.

The trial court denied Mother's motion to dismiss on November 7, 2013, and on December 20, 2013, Mother filed a response to Father's petition. The hearing on Father's petition for contempt finally took place on January 9 and 10, 2014.[5] After denying an oral motion to dismiss[6] made by Mother's counsel at the commencement of the hearing, the Davidson County Circuit Court heard proof from both sides.

Father's testimony tracked the allegations he made against Mother in the petition for contempt. He stated that the children were not transported to be with him over spring break in 2013 and further stated that he did not receive the children two days after school let out for summer that year, as was provided for in the Court's order. After Mother did not appear with the children for the summer visitation period, Father stated "it was apparent to me at that point that she and the children were not going to be coming, because I became aware that there had been civil suits filed in Wisconsin." Concerning the time period of his scheduled spring break ...

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