Assigned on Briefs: January 4, 2017
from the Chancery Court for Anderson County No. 14CH6820 M.
Nichole Cantrell, Chancellor
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part, Vacated in Part, Reversed in Part,
T. Hill, Sevierville, Tennessee, for the appellant, Kennedy
Howell, Oak Ridge, Tennessee, appellee, pro se.
D. Bennett, J., delivered the opinion of the court, in which
Charles D. Susano, Jr., and Kenny W. Armstrong, JJ., joined.
D. BENNETT, JUDGE
and Procedural Background
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.
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."
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.
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.
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
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 .
. . .
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.
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.
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.
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.
raises two main arguments on the issue of contempt: lack of
notice and failure of proof beyond a reasonable doubt. We
begin with notice.
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
C. state the essential facts constituting the criminal
contempt charged and describe it as such.
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).
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. 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.
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)
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
B. You have the right to have guilt proven against you beyond
a reasonable doubt with the burden of proof being on the
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.
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.
no merit in Mother's arguments that she did not receive
adequate notice of the criminal contempt motion or the show
Proof beyond a reasonable doubt
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, ...