October 24, 2014 Session
Appeal from the Circuit Court for Davidson County No. 11D579 Philip E. Smith, Judge
Leon Vincent Williams, Pro se.
Mike J. Urquhart, for the appellee, Jannie Olivia Williams.
Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett, J., joined.
FRANK G. CLEMENT, JR., JUDGE
On May 15, 2012, Leon Williams ("Husband") and Jannie Williams ("Wife") executed an MDA as part of their divorce proceeding, which was subsequently approved by the court and entered as part of their final divorce decree.
Under the relevant terms of the MDA, Wife was awarded numerous assets and Husband was awarded, inter alia, real property located at 2715-2717 Old Matthews Road, Nashville, Tennessee, that had been purchased by Wife, solely in her name. Due to the fact the property was encumbered by a mortgage for which Wife was liable, Husband was required to satisfy the indebtedness so that she would no longer be liable on the mortgage. Husband's obligations to satisfy the indebtedness were set for in paragraph 3(C)(ii) of the MDA, which states:
Husband shall refinance the debt, or pay the debt in full, on these properties within ninety (90) days of executing this agreement, so as to remove Wife from all liability on the debt, and shall indemnify and hold Wife harmless on the debt pending refinancing. Should the Husband be unable to refinance the property, the residence shall be listed for sale within 90 days. Pending the refinancing or sale of the property, the Husband shall provide proof of his monthly timely payments on the mortgage to the Wife.
Because Wife was divested of any right, title, or interest in the property and "all interest shall vest solely in the Husband, " Wife was required to execute a quitclaim deed conveying her interest in the property to Husband. The executed deed was to be held in escrow pending the sale or refinancing of the property.
Due to the fact that Husband failed to comply with the MDA by failing to pay the debt or listing the property for sale, Wife filed a motion to enforce the MDA on October 3, 2012. Husband filed a response and a separate competing motion to enforce the MDA, insisting Wife was required to sign documentation which would permit Husband to "assume" the existing mortgage, including, but not limited to, authorizations to release financial information and permitting communication with the mortgagee-bank. Husband also asked the trial court to extend his time to comply with the MDA until 90 days after Wife signed these documents.
Although the record lacks a written order from this hearing, the parties have represented to this court that the two motions came on for hearing on November 12, 2012, at which time, upon the suggestion of the trial court, Husband and Wife agreed that, in lieu of hearing the competing motions to enforce, the parties would file respective petitions for civil contempt.
One month later, on December 12, 2012, Wife filed a petition for contempt for Husband's non-compliance with paragraph 3 of the MDA contending, inter alia, that Husband was attempting to assume the mortgage, rather than satisfying the debt for which Wife was liable as the MDA required. She also sought to recover her attorney's fees under paragraph 19, the enforcement provision of the MDA, which states:
19. ENFORCEMENT - In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, the prevailing party shall also be entitled to a judgment for reasonable expenses, including attorney's fees, incurred in prosecuting the action.
One week later, on December 21, 2012, instead of filing a response to Wife's petition, Husband filed the first of four petitions for contempt. He asserted that Wife was obliged under the MDA to act cooperatively and to execute any and all documents necessary to implement the agreement, and that she was intentionally interfering with his ability to refinance the mortgage on the Old Matthews property. He requested an extension of time within which to perform "any duty with respect to the sale of the property until [Husband] has 90 days free of interference and harassment by [Wife]." Wife filed a response to Husband's petition, contending Husband's efforts to "assume" the mortgage was in violation of his obligation under paragraph 3 of the MDA; instead of "assuming" the existing mortgage for which Wife was liable, she insisted that Husband was required to pay off the loan.
Husband filed a second petition for contempt, two weeks after filing his first petition, in which he added Wife's attorneys as parties; Husband alleged Wife's attorneys were also in contempt because they were assisting Wife as she continued to "interfere" and "harass" him by refusing to execute the documents for an assumption. Husband also asserted in this petition that Wife had actual or constructive knowledge that the Old Matthews property had been listed for sale prior to the filing of her petition for contempt in October 2012. Husband also requested the trial court to permit him to remove the present listing of the property and to grant him an extension of 90 days after Wife's execution of the assumption authorizations and disclosure to re-list the property for sale.
The trial court denied Husband's first petition for contempt on January 14, 2013, and set a hearing for his second petition for the following month. Wife's attorneys then filed a motion seeking sanctions pursuant to Tenn. R. Civ. P. 11 against Husband for asserting claims against them in the second contempt petition. A few days later, Husband filed an amended petition for contempt on January 29, 2013, in which he redacted Wife's attorneys from the petition and added allegations that Wife was in breach of the duty of good faith and fair dealing.
The trial court heard the motion for Rule 11 sanctions on February 15, 2013, at which time the court ruled that the motion was well-taken, except for the fact it was untimely filed within the Rule's safe harbor provision; accordingly, the court denied the Rule 11 motion. The court also dismissed Husband's second petition and subsequent amended petitions for contempt in their entirety, with leave to file a new petition.
Husband filed his fourth petition for civil contempt against Wife on April 15, 2013, with substantially similar allegations, except for additionally alleging breach of contract and abuse of process. As before, Husband again asked the court to extend his time to comply with the MDA to 90 days after Wife executed the authorizations and disclosures requested by Husband.
On May 10, 2013, one year after the MDA was executed and seven months after Wife commenced these proceedings to compel Husband to pay off the mortgage, Husband filed his response to Wife's December 2012 petition for contempt. He reasserted therein his allegations that Wife had stymied his efforts to refinance the mortgage; requested an extension of time to comply with the terms of the MDA; argued that Wife had unclean hands due to her "intentional interference" with his efforts to refinance; and asked for dismissal, arguing that he had listed the property for sale on November 27, 2012, or approximately two weeks before Wife filed her petition.
On May 20, 2013, Husband filed a motion to dismiss Wife's petition for contempt on the grounds that the petition lacked specificity, did not give him adequate notice, and that he had listed the property for sale. Within days of filing his motion to dismiss Wife's petition, and within a week of the hearing on Wife's petition to hold Husband in contempt, Husband paid off the indebtedness in full, and, as a result, Husband finally complied with the MDA.
The parties announced this development to the trial court at the hearing on May 30, 2013. The trial court took the matter under advisement and subsequently ruled that the issue of contempt was "now moot in that Leon Vincent Williams, the former husband, has paid the debt in full on the real property." The trial court's written order provided in pertinent part:
Notwithstanding the Court finding that the issue of civil contempt is now moot, the Court further finds that Civil Contempt is a form or cause of action which is brought to compel the performance of an act or obligation that the party is already under Order to do. Once the act is performed, they have purged themselves of the obligation and the case law is clear that the issue of contempt is moot at that point. However, the Court finds that in light of the circumstances of this case, it was necessary and reasonable for [Wife] to file this petition as a means of enforcing the payoff of the debt on the real property located at 2715-2717 Old Matthews Road.
Further, the Court finds that Paragraph 19 of the Marital Dissolution Agreement which was incorporated into the Final Decree of Divorce gives recourse for attorney's fees incurred as a result of seeking enforcement of any of the provisions of the Marital Dissolution Agreement.
After reviewing the enforcement provision of the MDA and the affidavit of attorney's fees submitted by Wife in which she was seeking $8, 637.50, the court determined that Wife was the prevailing party and that Husband should pay $4, 000 of her fees; a judgment in favor of Wife was entered on July 19, 2013. This appeal by Husband followed.
After the notice of appeal was filed, a dispute arose concerning the evidentiary record due to the fact that neither party retained a court reporter; thus, a verbatim transcript of the evidence was not available, and the parties did not agree on the proposed statement of the evidence. After requesting the parties to submit proposed statements of the evidence, the trial court prepared its own statement of the evidence, which was entered on February 5, 2014. The statement of the evidence approved by the trial court, which neither party challenged in the trial court, states in pertinent part:
Based on the Court's review of the record, affidavits, and statements of counsel, the Court found that but for the Petitioner's filing of the Petition for Civil Contempt, Respondent would not have adhered to the terms of the Marital Dissolution Agreement.
Therefore, the Court found [Wife's] Petition for Civil Contempt necessary and reasonable as a means of enforcing the payoff of the debt on the real property located at 2715-2717 Old Mathews Road, Nashville, Tennessee. The Court further found counsel for [Wife], Mike J. Urquhart, filed an affidavit for attorney's fees in this matter. The Court found Mr. Urquhart's hourly rate was reasonable and customary, and so found that [Husband] should pay the sum of $4, 000.00 towards [Wife's] attorney's fees in this matter.
(Emphasis in original).
Husband has identified the following ten issues for appellate review in his "Statement of Issues":
I. The trial court's final order should be reversed when the uncontroverted evidence and statements against interest showed that Wife should have been found in contempt.
II. The trial court's final order should be reversed when Wife had unclean hands, because she refused to vest the property rights and interests to relieve her liability in Husband in ...