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In re Ethan R.

Court of Appeals of Tennessee, Jackson

August 8, 2017


          Assigned on Briefs September 2, 2016

         Appeal from the Circuit Court for Shelby County No. CT-003467-13 Jerry Stokes, Judge

         Mother appeals judgment holding her in criminal contempt of court, contending that the court lacked jurisdiction to enforce the order as to which she was found in contempt, that she was not given the notice required by Tennessee Rules of Criminal Procedure 42(b), and that she was improperly served with the contempt petition. Upon a thorough review of the record, we affirm the judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Shiau-Jiuan Wang.

          W. Ray Glasgow, Memphis, Tennessee, for the appellee, Michael Eugene Rowland.

          Richard H. Dinkins, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Arnold B. Goldin, J., joined.



         I. Facts and Procedural History

         This case and these parties come before the court for a second time. Facts pertinent to the instant appeal are set forth in the opinion entered in the first appeal:

This appeal arises out of a dependent and neglect proceeding initiated on December 27, 2011, by Shiau-Jiuan Wang, ("Mother"), the mother of Ethan R., in Shelby County Juvenile Court. Mother and Michael Rowland ("Father"), Ethan's father, were divorced in 2005 in Shelby County Circuit Court.
The petition alleged that on December 23, 2011, Mother, who lived in Shelby County at the time, had been contacted by emergency room personnel at the Helena, Arkansas, Regional Medical Center and told that Ethan had been treated at the hospital for repeated vomiting and stomach pain caused by ingesting 8-15 methadone pills while he was in the custody of Father, and that Ethan would not be released to Father. The petition further alleged that Mother drove to Arkansas and brought Ethan to Shelby County, and that Father called her on December 26 advising that he was coming to pick Ethan up to exercise his scheduled parenting time. Mother prayed that Ethan be brought within the protective custody of the court pending an investigation and adjudication of Ethan's custody, that Father be required to submit to various drug screens, and that his parenting time be supervised. The temporary order was denied, and a hearing was held on the petition before a magistrate on February 3, 2012. On that day, the magistrate issued Findings and Recommendations that the petition be sustained; that Ethan be declared dependent and neglected as a result of having ingested methadone pills; that custody be awarded to Mother; and that Father be enjoined from having any contact with Ethan. The Recommendations were adopted, ratified, and made the order of the court by the Juvenile Court Judge.
* * *
On June 13 Father filed a Motion for Injunctive Relief asserting, inter alia, that Mother had advised him of her intent to relocate to Kentucky with Ethan, and seeking an order enjoining her from relocating with Ethan. On June 18 the Magistrate heard the motion and entered Findings and Recommendations, which were subsequently ratified and adopted by the Juvenile Court Judge in an order denying Father's motion. Father then filed a petition opposing Mother's relocation and seeking a change of custody.
After proceedings relating to several motions not germane to the issues in this appeal, the Magistrate held a hearing on June 30, 2013, on Mother's petition to have Ethan declared dependent and neglected and Father's petition for custody. The Magistrate entered Findings and Recommendations on July 30, inter alia, dismissing both petitions; the Recommendations were ratified by the Juvenile Court Judge. Father appealed to the Circuit Court and, upon his motion, the case was assigned to Division VI, the court which heard the parties' divorce action.
On January 23, 2015, Mother filed a motion to dismiss Father's appeal and for further relief asserting, inter alia, that the circuit court did not have subject matter jurisdiction.2 Father responded and the court held a hearing on April 10 on both motions; the court heard argument on Mother's jurisdictional motion first and, after orally overruling the same, proceeded to hold an evidentiary hearing on the dependency and neglect petition, as well as Father's opposition to Mother's relocation and for a change of custody. On May 29 the court entered an order denying Mother's motion; the court also entered what was styled a "Final Order" on the appeal from Juvenile Court in which the court, inter alia: held that there was not sufficient evidence that Ethan was dependent and neglected; held that Mother had a reasonable purpose in relocating to Kentucky and that the relocation was not vindictive; denied Father's petition after holding that there were no bases to change custody of Ethan from Mother to Father; and set a new parenting schedule.
2 In pertinent part, Mother's motion stated:
33.In the instant case, an "interrupting event" did occur when Juvenile Court dismissed Mother's petition for dependency and neglect at a June 20, 2013 hearing followed by July 30, 2013 Order dismissing (1) Mother's December 27, 2011 petition for dependency and neglect, (2) Mother's pro se motion for change of venue, (3) Father's motion for contempt and (4) Father's intervening petition for custody. Juvenile Court thereby lost its original exclusive dependency and neglect jurisdiction such that the within appeal for a de novo hearing before this Court must be dismissed.
34. It is submitted that, as a result of the above intervening event dismissing Mother's original dependency and neglect petition as well as Mother's pro se motion for change of venue, Father's motion for contempt and Father's intervening petition for custody, dependency and neglect jurisdiction of Juvenile Court was terminated pursuant to the provisions of TCA § 37-1-103 (c) and the In re D.Y.H. case.

In re Ethan R., No. W2016-00201-COA-R3-CV, 2017 WL 957825 at *1-2, (Tenn. Ct. App., March 10, 2017) (foonote omitted) (perm. app. denied July 19, 2017).

         The parenting schedule adopted by the court granted Father parenting time with Ethan on the second weekend of each month, during spring and fall breaks, the first weekend in June until the first Sunday in July, Thanksgiving on odd-numbered years, and Christmas on even-numbered years. Mother immediately filed a motion to stay the parenting time provisions in the final order, which was denied by order entered on June 22, 2015, nunc pro tunc to May 29. Mother filed the notice initiating the first appeal on June 25, raising two issues: (1) whether the trial court erred in failing to dismiss the case for lack of jurisdiction, and (2) if not, whether the trial court erred in failing to transfer this case to the State of Kentucky based upon improper venue.

         On August 26, 2015, while the appeal was pending, Father filed the contempt petition that gives rise to the instant appeal. The petition alleged that Mother had not allowed Father to see or contact Ethan after his summer court-ordered visitation, and requested, inter alia, that a hearing be held "to determine whether [Mother] is in contempt of the Court's orders and should be punished as provided by law, including, but not limited to confinement in jail for civil contempt until purged of contempt and criminal contempt pursuant to Tennessee Code Annotated § 29-9-102." The Fiat included in the petition and signed by the court set a hearing on the petition for September 11, 2015. There is no certificate of service on the petition in the record.

         At the September 11 hearing, Father and his counsel were present; Mother failed to appear in person or by counsel. An order was entered on September 14 reciting that the case had been called for hearing on September 11, and that Mother did not appear; the case was reset to October 5. Included in the order was the following:

The Court . . . commands [Mother] to be present and before this Court on that date and answer why she should not be found in contempt for refusing to follow this Court's orders. Failure to appear at the date and time proscribed could result in sanction and punishment as provided by law, including, but not limited to, monetary judgment including litigation costs and an award of attorneys fees, and confinement in jail for civil contempt.

         The certificate of service stated that a copy of the order was sent to Mother and to the Guardian ad Litem and was signed by Father's attorney on September 14.

         Also included in the record is a separate notice signed by the circuit court clerk on September 14, addressed to Mother, informing her that "the hearing on the Petition for Citation of Contempt is hereby set for 10:00 a.m. on Monday, October 5, 2015, " and a return on the notice signed by "Christi Fuller, Paralegal" attesting that on September 15 the notice was "executed on [Mother] at her place of employment, American Greetings." The record also contains a photocopy of a FedEx proof of delivery receipt dated September 15, showing that a FedEx package was delivered to Mother's place of employment and signed for by "D. Barzee" at American Greetings, 800 American Drive, Bardstown, Kentucky, at 12:10 p.m. on September 15; on the receipt Father's lawyer is identified as the Shipper, Mother is listed as the Recipient, and the delivery method required Mother's signature.

         On October 1, 2015, Mother filed a document styled "Motion To Dismiss Petition For Citation of Contempt, " asking that the petition be dismissed for insufficient service of process and that the court "vacate any default judgment and order issued." Of pertinence to the issues in this appeal, as grounds for the motion, Mother asserted:

1. On September 9, 2015 after returning from an out of town trip after a long holiday weekend, Mother discovered a FedEx package left at front door which contains a copy of contempt petition filed by Father dated August 26, 2015 with a blank return receipt.
2. On September 28, 2015, Mother received a phone call from Mr. Pate, he informed Mother about circuit court hearing on October 5, 2015. Mr. Pate only represents Mother in court of appeal and not representing mother in any circuit court litigation.
3. As of today, Mother has not been served with any summons about Father's petition of contempt or received any court order.

         Two exhibits are attached to the motion: (1) what is apparently a copy of the last page of a document, certifying that on August 26 Father's counsel served "a true and correct copy of the foregoing Notice of Setting" on Mother "via hand-delivery, electronic transmission, or United States Postal Service, " with the "Officers Return" portion of the document not completed or signed; (2) a FedEx mailing label dated September 4, 2015, addressed to Mother at 106 Sandy Hill Court, Bardstown, Kentucky, from Father's Counsel. No hearing date was set on the motion.

         Next appearing in the record is a Motion to Dismiss Petition for Injunctive Relief and Citation of Contempt filed by Mother on November 24, 2015. The motion contains the following ...

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