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Ballard v. Cayabas

Court of Appeals of Tennessee, Jackson

June 8, 2017

RAYMOND CASS BALLARD
v.
GERTRUDE CAYABAS

          Session April 26, 2017

         Direct Appeal from the Chancery Court for Dyer County No. 10-CV-195 Tony Childress, Chancellor

         This is an appeal arising out of a petition to change the primary residential parent and a petition for civil and criminal contempt. The notice of appeal for the criminal contempt finding was not timely filed, and the appeal is therefore dismissed as to the criminal contempt. With respect to the remaining issues, we remand this matter to the trial court for the limited purpose of conducting an evidentiary hearing regarding the timeliness of this appeal.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed and Remanded

          John Edward Eldridge, Knoxville, Tennessee, for the appellant, Raymond Cass Ballard.

          Vanedda Prince Webb, Dyersburg, Tennessee, for the appellee, Gertrude Cayabas.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin, and Kenny Armstrong, JJ., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         This appeal arises out of a petition to change primary residential parent and a petition for civil and criminal contempt. Appellant Raymond Cass Ballard and Appellee Gertrude Cayabas are the parents of a son, who was born in 2008. At the time of the parties' divorce, Ms. Cayabas was named primary residential parent.

         In July 2015, Mr. Ballard filed a petition for civil contempt, criminal contempt, and modification of the permanent parenting plan, asking to be named primary residential parent. The trial court conducted a hearing on Mr. Ballard's petition on July 20 and 21, 2016.

         The trial court entered multiple orders disposing of the claims in this case. On July 21, 2016, the trial court entered an "Order on Petition for Criminal Contempt, " wherein it held that Ms. Cayabas was in criminal contempt and imposed sentences for the contempt. On July 27, 2016, the trial court entered an "Order" that merely attached the court's findings of fact and conclusions of law on the issues of criminal contempt but did not otherwise alter its July 21 order.

         Also on July 27, 2016, the trial court entered an "Order on Petition for Civil Contempt and Modification" that, among other things, denied Mr. Ballard's request to hold Ms. Cayabas in civil contempt, denied the petition to modify the current parenting plan or the parenting schedule, denied Mr. Ballard's request for attorney's fees, and awarded Ms. Cayabas a judgment for attorney's fees and expenses. The trial court filed yet another "Order" on July 27, 2016, attaching the court's "findings of fact and conclusions of law on the issues of civil contempt and all modification issues tried before [the court]." The trial court also filed a separate document entitled "Conclusions of Law Regarding Attorney Fees" on July 27, 2016, explaining its reasoning for declining to award attorney's fees to Mr. Ballard and for awarding attorney's fees to Ms. Cayabas. With the filing of these four orders on July 27, 2016, all the claims between the parties were resolved by the trial court.

         On August 3, 2016, the trial court entered a document entitled "Conclusions of Law, " which provided, in its entirety:

Factors 1, 2, 3, 4, 5, 6, 7, 8, 12, and 14 listed in Tennessee Code Annotated section 36-6-106(a), are neutral and favor neither party. Factor 9 slightly favors Mr. Ballard due to the fact that the child's minor sibling lives with him, the close relationship these two siblings have with one another, and the child's relatives on Mr. Ballard's side of the family who live near Mr. Ballard. Factor 10 slightly favors Ms. Cayabas due to the fact that the parties have been operating under the schedule set forth in the current ...

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