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Hopwood v. Hopwood

Court of Appeals of Tennessee, Nashville

July 12, 2017


          Assigned on Briefs June 1, 2017

         Appeal from the Chancery Court for Williamson County No. 41444 Michael Binkley, Judge

         In this post-divorce proceeding, father appeals the trial court's finding that he was guilty of civil contempt in failing to pay court-ordered financial obligations relative to the parties' divorce. We affirm the trial court's finding that Father was in willful contempt of court, but reverse the trial court's decision to jail Father until he made an $8, 122.43 purge payment.

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

          Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Corey Daniel Hopwood.

          Russ Heldman, Franklin, Tennessee, for the appellee, Andrea Renea Hopwood.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Andy D. Bennett, J., joined.




         This is a post-divorce civil contempt proceeding. The parties, Andrea Renea Hopwood ("Mother") and Corey Daniel Hopwood ("Father"), were divorced by order of the Williamson County Chancery Court on April 18, 2015, which is reflected in this Court's prior Opinion. See Hopwood v. Hopwood, No. M2015-01010-COA-R3-CV, 2016 WL 3537467, at *1 (Tenn. Ct. App. June 23, 2016) ("Hopwood I"). Therein, the trial court ruled that, based on Father's voluntary underemployment, his income would be calculated at approximately $100, 000.00 to $110, 000.00 per year. As such, the trial court ordered Father to pay $2, 056.00 in monthly child support, $2, 500.00 in rehabilitative alimony for 180 months, $169, 000.00 in alimony in solido, and Mother's attorney's fees of $42, 901.50. Father was also ordered to pay certain medical bills incurred for the parties' minor children prior to the divorce decree as well as a portion of any future medical bills. As the primary residential parent of the children, Mother was required to send Father notice of the medical bills within ten days of her receipt.

         Father timely sought to appeal the trial court's ruling. Thereafter, the trial court also ruled that Father would pay Mother $3, 000.00 for attorney's fees that she anticipated to incur on appeal and that Father would secure a bond or irrevocable letter of credit in the amount of at least $216, 000.00 to secure Mother's award pending appeal.

         While Father's appeal was pending, Mother filed her first civil contempt petition against Father for his failure to pay pendent lite support prior to the entry of the divorce decree. Eventually, the trial court ruled that Father had willfully failed to pay certain sums to Mother and remanded Father to jail until he made a purge payment of $2, 300.00 in outstanding support and $500.00 for attorney's fees and discretionary costs. Father was incarcerated, but was released upon payment of the $2, 800.00 purge payment.

         Mother filed a second motion for civil contempt on November 24, 2015. In response, Father argued that a motion was not the appropriate vehicle to commence a civil contempt proceeding because the underlying divorce was no longer pending in the trial court. As such, on December 17, 2015, Mother filed a petition to have Father held in civil contempt for his willful failure to pay outstanding credit card bills, medical bills, attorney's fee awards, and alimony for September, October, November, and December 2015. In addition, Mother alleged that Father failed to timely make his child support payments, though Mother admitted that Father had eventually made the required payments. The petition also alleged that Father had failed to provide that he had secured a life insurance policy or to sign a quitclaim deed of the marital residence, as required by the divorce decree. Mother further alleged that Father failed to provide the trial court with proof of the bond or irrevocable letter of credit required by the trial court to pursue Father's appeal or to pay the $3, 000.00 to cover Mother's anticipated attorney's fees. Based on these allegations of willful misconduct, Mother requested that Father be placed in jail "until every last cent is paid in full which he owes." Father filed an answer, generally denying that he had willfully failed to make payments. Father also denied without elaboration the allegations concerning his obligation to execute a quitclaim deed or secure life insurance. On December 21, 2015, the trial court entered an order directing Father to supply to Mother documents detailing his personal financial situation, as well as the finances of his company. The trial court also set the hearing on Mother's petition for January 5, 2016.

         The hearing occurred as scheduled on January 5, 2016, but was not concluded. On January 7, 2016, Mother filed an additional motion for civil contempt related to Father's failure to pay January alimony and child support, due on January 1, 2016. The hearing concluded on January 21, 2016. Only the parties testified. Generally, Mother's testimony consisted of detailing the obligations Father failed to meet and the notice provided to Father of the obligations. In turn, Father generally did not disagree that he had failed to pay his obligations, but contended that he was financially unable to do so. Father argued, however, that he did not receive proper notice of some of the medical bills. Father's testimony largely focused on his current income and his expenses. Generally, there was no dispute that Father's expenses were reasonable. Father testified that his income is approximately $3, 800.00 per month and that he is unable to meet the financial obligations as required by the divorce decree.[1] Like in the divorce proceeding, however, there was considerable testimony concerning whether Father was manipulating his income through his company, of which he is the sole member and employee. For example, Father testified first that he uses his company's credit card only to make "loans" to himself. Father later admitted that certain charges on the company's credit card were for personal expenses, such as movie theater ticket purchases. On the first day of trial, Father testified that, despite sending out over twenty resumes, he had only received one offer of employment, which salary was no more than he was currently earning. By the time of the second hearing, Father testified that he had in fact been in contact with another company for several months and had recently agreed to work for that company at a salary of $52, 000.00 per year, plus commissions.

         In addition, when asked what Father had paid his attorney for the appeal of the divorce decree, Father testified that he had paid approximately $6, 000.00. Father's attorney, however, interjected that he did not wish for Father to perjure himself and that the figure was actually over $20, 000.00. Father later admitted that he had paid his attorney $3, 000.00 and that his mother had paid $20, 000.00 for purposes of litigating the initial appeal. Father also admitted that he had reduced the balance of his personal credit card by $3, 000.00 but submitted that the reduction was not due to a payment, but merely a balance transfer. Father also testified that his only asset was his automobile, worth approximately $4, 000.00. Without collateral, Father testified that he was unable to secure the bond or irrevocable letter of credit required by the trial court; however, Father submitted no rejection letters or application to show that he had indeed attempted to obtain the bond. After the conclusion of the proof, the parties were invited to submit proposed findings of fact and conclusions of law.

         After the final hearing, but prior to the entry of the trial court's order, this Court issued its Opinion in Hopwood I on June 23, 2016. Therein, this Court affirmed the trial court's imputation of income to Father of approximately $100, 000.00 to $110, 000.00, the child support calculation, and the division of marital property, including the $219, 000.00 alimony in solido award. Hopwood I, 2016 WL 3537467, at *6-11. This Court reversed, however, the trial court's award of rehabilitative alimony to Mother for fifteen years, instead reducing the award to no more than eight years. Id. at *14. In addition, having determined that even imputing income to Father in the maximum amount found by the trial court, Father was unable to pay the $2, 500.00 in alimony awarded by the trial court. Accordingly, this Court vacated the periodic alimony award and remanded to the trial court "for reconsideration of what, if any, of Mother's need for alimony Father has the ability to pay given his income of $110, 000.00 per year." Id. at *15. Likewise, we vacated the trial court's award of $42, 901.50 in attorney's fees to Mother and remanded for consideration of the amount of "attorney's fees that are attributable only to issues involving child custody and child support." Id. at *16. We also reversed the trial court's award of attorney's fees to Mother in anticipation of the appeal, holding that such an award is unauthorized. Id. Finally, given Father's inability to pay and the resolution of the issues, we declined to award attorney's fees incurred on appeal. Id.

         After the issuance of Hopwood I, on July 12, 2016, the trial court issued its memorandum and order on Mother's petition for civil contempt. The trial court noted that this Court had vacated its prior judgment regarding alimony and attorney's fees incurred on appeal. The trial court therefore indicated that it "will not address the issues concerning unpaid alimony"; later in the order, however, the trial court found that Father had failed to meet his alimony obligation. Likewise, the trial court appears to have declined to find Father in civil contempt for his failure to pay the attorney's fees awarded to Mother in anticipation of this appeal. The trial court also declined to find Father in contempt for his failure to execute a quit claim deed or to obtain life insurance, as Father had agreed to meet those obligations while the case was pending. With regard to the remaining charges, however, the trial court found that Father failed to pay a total of $2, 800.00 in attorney's fees owed to Mother, $3, 840.00 in credit card bills, and $614.90 in medical bills required to be paid pursuant to the divorce decree. The trial court also found Father in contempt for the willful failure to pay $867.53 in medical bills required to be paid by the parties' permanent parenting plan. The trial court found that, based upon evidence that Father was able to borrow money from credit cards and family members, as well as his general lack of credibility, Father had the ability to pay these obligations at the time of the contempt hearing. Thus, the trial court ruled that Father's failure to pay his obligations was willful and constituted contempt. The trial court therefore ordered Father to pay the total amount of $8, 122.43 by July 28, 2016, or be remanded to jail until he purged the contempt.[2]

         One day before Father was required to purge his contempt or surrender to jail, Father filed a motion for appointed counsel and to stay the trial court's judgment pending appeal.[3] Attached to Father's motion was a Uniform Affidavit of Indigency. The parties thereafter appeared as scheduled on July 28, 2016. Father informed the trial court that he was unable to pay the judgment and was remanded to jail. On August 1, 2016, the trial court entered an order memorializing its decision to incarcerate Father. First, the trial court noted yet again that Father was not a credible witness. In addition, the trial court noted that this Court affirmed its previous ruling to set Father's child support based upon imputed income of $100, 000.00. The trial court therefore found that Father had the ability to pay the $8, 122.43 ordered and that he should be incarcerated until such payment was made. Finally, the trial court denied Father's motion to appoint alternate counsel and for a stay. On August 12, 2016, Father filed a pro se notice of appeal. Rather than file an appeal bond or surety, Father indicated on his notice of appeal that he was indigent.[4]Father attached to his notice of appeal a second affidavit of indigence. On August 24, 2016, Mother filed ...

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