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Howell v. Smithwick

Court of Appeals of Tennessee, Knoxville

February 1, 2017


          Assigned on Briefs: January 4, 2017

         Appeal from the Chancery Court for Anderson County No. 14CH6820 M. Nichole Cantrell, Chancellor

         Mother has appealed the trial court's decisions regarding parenting time, criminal contempt, child support, and the child's surname. We have determined that the trial court erred in finding Mother in criminal contempt as to one of the three incidents at issue, in setting temporary child support, in failing to order Father to pay child support by wage assignment, and in ordering the child's surname to be changed to Father's surname. In all other respects, we affirm the decision of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Vacated in Part, Reversed in Part, and Remanded.

          Bruce T. Hill, Sevierville, Tennessee, for the appellant, Kennedy Smithwick.

          Trevor Howell, Oak Ridge, Tennessee, appellee, pro se.

          Andy D. Bennett, J., delivered the opinion of the court, in which Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.



         Factual and Procedural Background

         Trevor Howell ("Father") and Kennedy Smithwick ("Mother") are the parents of a child born in December 2014. The parents were no longer together at the time of the child's birth. Within a week of the birth, Father filed a petition to establish paternity and custody. On January 21, 2015, the parties submitted an agreed order pursuant to which Father would have parenting time every Wednesday for four hours and every Saturday for four hours.

         After paternity was established, the parties attended mediation. On May 21, 2015, the trial court entered an agreed temporary parenting plan order pursuant to which Father would exercise parenting time every Wednesday from 11:00 a.m. until 6:00 p.m., every Friday from 3:30 p.m. until 7:00 p.m., every Saturday from 11:00 a.m. until 6:00 p.m., and every other Sunday from 10:00 a.m. until 6:00 p.m. The order provided for approved child care providers while the child was in the care of each parent. The parties also agreed that "Father shall pay child support in the amount of $300.00 per month to Mother" and that "this amount is correct as a deviation from the guidelines given Father's time with the child." The agreed order states that "this temporary parenting plan will be modified by agreement, mediation, or hearing upon Father obtaining different employment, Mother discontinuing breastfeeding, or October 1, 2015, whichever occurs first."

         On December 3, 2015, Father filed a verified motion for criminal contempt against Mother alleging that she was in criminal contempt for violating the temporary parenting plan agreement entered on May 21, 2015. The details of this petition will be set forth as relevant in the analysis below. On December 9, 2015, the trial court entered a show cause order and notice of rights pursuant to Rule 42 of the Tennessee Rules of Criminal Procedure. Father filed an amended verified motion for contempt on December 16, 2015.

         The case was heard on January 26, 2016. Father, Mother, Patricia Spraker (paternal grandmother), and Ashley McCarter (Father's girlfriend) testified. The court took the matter under advisement and then made a ruling from the bench, with findings of fact and conclusions of law, on January 27, 2016; the court entered its final order on February 23, 2016.

         The February order includes a detailed analysis of the factors set forth in Tenn. Code Ann. § 36-6-106(a). The court reached the following relevant conclusions:

3. Breastfeeding does not prohibit Father's co-parenting time. The minor child is thirteen months old and has the ability to eat baby and solid food as well as drink milk from a sippy cup.
4. The Father is a good parent and shows a willingness to co-parent by testimony of witnesses and both parties. Co-parenting time with the Father, by law, should be maximized.
5. It is in the best interest of the minor child that the Father immediately have overnights with the child but that the extended periods of overnight be on a graduated plan.
7. The Mother committed three acts of criminal contempt by failing to comply with an order of this Court as it relates to visitation between the minor child and the Father. The Mother willfully and knowingly failed to comply with an order of this Court on three occasions by not allowing the Father to have visitation with the minor child as contained in the Agreed Temporary Parenting Plan Order. . . . Mother shall pay for reasonable attorney fees for the contempt pending both attorneys submitting an affidavit of times.
8. The minor child's surname shall be changed to Howell . . . .

         The trial court entered a new parenting plan giving Mother and Father equal parenting time and naming Mother the primary residential parent. The court established a transitional period, from January 29 through February 24, 2016, during which Father would begin to exercise more overnight parenting time. Then, as of February 24, 2016, the regular parenting schedule would be as follows:

[T]he Mother shall have co-parenting time with the minor child every Monday at 6:00 p.m. until Wednesday at 6:00 p.m. and the Father shall have co-parenting time every Wednesday at 6:00 p.m. until Friday at 6:00 p.m. The parties shall alternate the following block: Friday at 6:00 p.m. until Monday at 6:00 p.m.

         Based upon the child support guidelines, Father was required to pay Mother $139.00 per month in child support beginning on February 1, 2016. Mother was awarded a judgment in the amount of $300.00 in retroactive child support.

         On March 15, 2016, the trial court entered an agreed amendment to its February 23, 2016 order stating that "each party shall be responsible for their own respective attorney fees on all issues, including, but not limited to, criminal contempt." This order was entered nunc pro tunc January 26, 2016, the date of the hearing.

         On appeal, Mother raises a number of issues, which we summarize as follows: whether the trial court erred in (1) finding Mother in criminal contempt; (2) failing to adopt Mother's proposed parenting plan; (3) its calculation of temporary child support; (4) failing to require Father to pay child support by wage assignment; and (5) changing the child's surname to Father's surname.[1]


         (1) Criminal contempt

         Mother raises two main arguments on the issue of contempt: lack of notice and failure of proof beyond a reasonable doubt. We begin with notice.

         A. Notice

         All courts have the power to punish for criminal contempt pursuant to Tenn. Code Ann. § 29-9-102(3) in cases of "willful disobedience or resistance of any . . . party . . . to any lawful writ, process, order, rule, decree, or command of such courts." (Emphasis added). Tennessee Rule of Criminal Procedure 42(b)(1) requires that a criminal contempt be prosecuted on notice, which shall:

A. state the time and place of the hearing;
B. allow the alleged contemner a reasonable time to prepare a defense; and
C. state the essential facts constituting the criminal contempt charged and describe it as such.

         In cases involving indirect contempt, which concern actions committed outside the presence of the court, adequate notice "must be given before the contempt hearing." Fox v. Fox, No. M2009-01884-COA-R3-CV, 2010 WL 4244356, at *6 (Tenn. Ct. App. Oct. 26, 2010); see Tenn. R. Crim. P. 42(b)(1).

         Mother asserts that she was not properly served with the original or amended verified motion for criminal contempt because the motions were served on her attorney and not on her personally. Mother likewise argues that the court's show cause order and notice of Rule 42 rights was not served on her personally.[2] These arguments are without merit. Rule 49 of the Tennessee Rules of Criminal Procedure requires service upon "every other party" of written motions (other than ex parte motions) and court orders required by their terms to be served upon the parties. Tenn. R. Crim. P. 49 (a)(1). Rule 49 further provides: "When the law, these rules, or a court order requires or permits service to be made on a party represented by an attorney, the service shall be made on the attorney unless service on the party in person is required by law or is ordered by the court." Tenn. R. Crim. P. 49 (b)(1). The permissible methods of service include mailing a copy to the attorney's last known address. Tenn. R. Crim. P. 49(b)(2)(B). Thus, service upon Mother's attorney constitutes service upon Mother.

         Mother further argues that the trial court failed to advise her of her rights prior to her testimony at the hearing, that the show cause order failed to give notice of the specific instances of contemptuous behavior, and that the order's erroneous mention of the Rules of Civil Procedure in the title is a fatal error. In the show cause order, which was served upon Mother through her attorney, the trial court put Mother on notice of the following:

1. Each violation of the Orders of this Court subjects the Defendant to 10 days in jail and a fifty dollar ($50.00) fine.
2. The Plaintiff seeks contempt sanctions for each failure listed in the pleadings. These allegations must be proven by Plaintiff beyond a reasonable doubt to subject [Mother] to being found guilty of contempt.
3. You are entitled to bail throughout these proceedings.
If found guilty of contempt, the Court shall enter an Order setting the punishment for each violation so found.
Furthermore, the Defendant is put on notice that she has the following rights pursuant to Rule 42 of the Tennessee Rules of Criminal Procedure:
A. You have the right to be represented by counsel, and if you are unable to afford one, counsel shall be appointed for you.
B. You have the right to have guilt proven against you beyond a reasonable doubt with the burden of proof being on the Petitioner.
C. You have the right against self-incrimination, which includes the right to remain silent as to the allegations of criminal contempt filed against you.
D. You have the right to a presumption of innocence until such time as the allegations of guilt are proven beyond a reasonable doubt; and
E. You have all other rights afforded to any other individual charged with violation of a criminal statute except the right for a trial by jury.

         Although the show cause order erroneously referenced the Rules of Civil Procedure in the title, the body of the order sets forth the pertinent provisions of Rule 42 of the Tennessee Rules of Criminal Procedure and gave Mother notice of her rights under Rule 42. At the hearing, Mother took advantage of the rights afforded to her under Rule 42 by invoking her Fifth Amendment right not to answer questions that might incriminate her. Moreover, although the order did not detail the specific acts of contempt alleged, the amended motion for contempt filed on December 16, 2015 and served on Mother through her attorney specifies the three incidents of contempt, as will be discussed below.

         We find no merit in Mother's arguments that she did not receive adequate notice of the criminal contempt motion or the show cause order.

         B. Proof beyond a reasonable doubt

         Convictions for criminal contempt are punitive in nature, and "their primary purpose is to vindicate the court's authority." Long v. McAllister-Long, 221 S.W.3d 1, 12 (Tenn. Ct. App. 2006); see also Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993) (citing Gunn v. S. Bell Tel. & Tel. Co., 296 S.W.2d 843, 844 (Tenn. 1956)). A person charged with criminal contempt enjoys a presumption of innocence and must be found guilty beyond a reasonable doubt. Long, 221 S.W.3d at 13 (citing Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996)). A person found guilty of criminal contempt may be imprisoned for up to ten days for each offense, fined $50, or both. Tenn. Code Ann. § 29-9-103; Thigpen, 874 S.W.2d at 53. Sanctions for criminal contempt are imposed for no reason other than punishment, ...

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