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Scobey v. Scobey

Court of Appeals of Tennessee, Nashville

September 13, 2017

KATHLEEN J. SCOBEY
v.
TODD B. SCOBEY

          June 7, 2017 Session

         Appeal from the Chancery Court for Williamson County No. 41312 Michael W. Binkley, Judge

         In this post-divorce action, Wife filed a Petition for Civil Contempt and Other Relief, including a request to recover her attorney's fees, alleging Husband violated five provisions in the marital dissolution agreement (MDA). Husband denied the allegations and filed a separate petition to decrease his child support obligation, which Wife opposed. Before trial, but after protracted proceedings, Husband complied with three provisions in the MDA, leaving two to be decided by the court. Following an evidentiary hearing, the court found Husband in civil contempt for violating the remaining MDA provisions, denied Husband's petition to decrease child support, and ordered Husband to pay Wife's attorney's fees. Specifically, the court found that Husband violated the MDA by refusing to transfer to Wife one-half of the "non-retirement" account at T. Rowe Price and by concealing and withholding two paychecks he earned during the marriage that the parties agreed to divide equally. The trial court found that Husband did not offer sufficient proof of his current income to support a reduction in his child support obligation. The trial court also determined that Wife was entitled to recover her attorney's fees pursuant to the enforcement provision in the MDA and pursuant to Tenn. Code Ann. § 36-5-103(c) as the attorney's fees pertained to the child support decree. Husband appealed. We have determined that the MDA provision concerning the "non-retirement" account was not sufficiently clear, specific, and unambiguous to sustain a finding of contempt; therefore, we reverse this finding of contempt. However, we affirm the finding of contempt for concealing and withholding two paychecks. We also affirm the trial court in all other respects, including the award of attorney's fees incurred by Wife in the trial court and the denial of Husband's petition to reduce child support. As for Wife's request to recover the attorney's fees she incurred in this appeal, we find she is entitled to recover her fees and remand this issue for the trial court to determine the amount she is entitled to recover.

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

          G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Todd B. Scobey.

          Jacqueline B. Dixon, Nashville, Tennessee, for the appellee, Kathleen J. Scobey.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Kathleen J. Scobey ("Wife") and Todd B. Scobey ("Husband") were married in 1993 and had one child. They divorced by final decree on March 5, 2013 on the grounds of irreconcilable differences. The final decree incorporated the marital dissolution agreement ("MDA") and a permanent parenting plan.

         Wife filed a petition with the Chancery Court for Williamson County on January 10, 2014, requesting that the court find Husband in civil contempt for the following: (1) failing to have a qualified domestic relations order ("QDRO") prepared for two retirement accounts in violation of paragraph 13 of the MDA; (2) failing to transfer custodianship of the their child's college education savings accounts ("UTMA accounts")[1] to Wife in violation of paragraph 7 of the MDA; (3) failing to give Wife an accounting of a debt owed to the parties in violation of paragraph 8 of the MDA; (4) failing to transfer to Wife half of the non-retirement portion of a T. Rowe Price account in violation of paragraph 13 of the MDA; and (5) failing to disclose income earned during the marriage in violation of paragraph 29 in the MDA. Additionally, Wife requested that Husband pay her attorney's fees in accordance with the MDA's enforcement provision.

         Husband filed an answer denying Wife's charges of contempt and filed a petition to modify child support, seeking a reduction in his child support payments due to a decrease in income. Wife filed a response opposing any decrease in child support.

         The parties engaged in mediation in September 2014 and entered into an agreed order that required Husband to hire an attorney to prepare the QDROs for the retirement accounts and to transfer custodianship of the UTMA accounts to Wife. As a consequence of Wife instituting legal proceedings to force Husband to comply with the MDA, Husband had the QDROs prepared, transferred custodianship of the UTMA accounts to Wife, and provided Wife with an accounting of the debt owed to the parties. However, the parties failed to agree on other issues. Thus, at the time of trial, the parties continued to dispute (1) Wife's request for attorney's fees, (2) Wife's allegation of contempt regarding Husband's refusal to transfer half of the non-retirement funds in a T. Rowe Price account to Wife, (3) Husband's failure to disclose income earned during the marriage, and (4) Husband's petition for a decrease in his child support obligation.

         The remaining issues were tried on June 10, 2015, and Wife and Husband were the only witnesses. At the conclusion of the trial, the court found in favor of Wife on all issues. First, the trial court found Husband in civil contempt for violating paragraph 13 of the MDA, which provided that Wife would receive one-half of the funds in a T. Rowe Price account:

13. RETIREMENT/PENSION PLANS: Upon entry of Final Decree of Divorce, one-half of the funds and assets in the T. Rowe Price Roth IRA, account ending in #5830, styled in the name of Husband, shall be, and is hereby, transferred to Wife, and said one-half shall be divested out of Husband and vested absolutely in Wife.

         The court found that the T. Rowe Price account referenced in paragraph 13 contained both retirement and non-retirement funds, though the MDA listed it as a retirement asset. The court also found that the parties intended to divide both the retirement and the non-retirement assets equally and that Husband fully understood this intent. Yet, Husband only transferred half of the retirement assets to Wife. Thus, the court concluded that Husband willfully violated paragraph 13 of the MDA and ordered Husband's incarceration until he paid Wife $8, 960.15, plus interest, which represented half of the non-retirement funds contained in the account at the time of the divorce.

         Second, the court found Husband in civil contempt for violating the disclosure provision in the MDA, which states:

29. COMPLETE DISCLOSURE: The parties acknowledge that there are no assets owned by them, either jointly or individually, and that they have no interests in any assets which are not reflected by the terms of this Agreement. The parties warrant and represent that they have made full disclosure to each other of their respective incomes, anticipated incomes, and all assets in which they have interests….Should it develop that there are undisclosed assets, the party to whom the assets were not disclosed shall have a right to an equitable share of same….

         The court ruled that Husband violated this provision by failing to deposit two paychecks issued on March 1, 2013 into the couple's joint bank account, which Husband earned for work performed through February 22, 2013, prior to the divorce. The trial court concluded that Husband's act of cancelling the automatic deposit showed that Husband intended to conceal his earnings from Wife.[2] The court ordered Husband's incarceration until he paid Wife $8, 018.71, which equaled one-half of both paychecks.

         Third, the court denied Husband's petition to reduce child support. It found that Husband "totally, completely, and without explanation" failed to provide sufficient evidence for it to properly calculate what Husband's income would be in 2015. The court found that Husband was not a credible witness, and it could not determine "what [Husband's] income is now or will be in the future based on a paycheck stub that he presented that is three months old."

         The court also awarded Wife her attorney's fees based on the MDA and Tenn. Code Ann. § 36-5-103(c). As the court explained, Wife was contractually entitled to attorney's fees and expenses in accordance with the enforcement provision in the MDA because her attorney's fees "were both reasonable and necessary" to ensure Husband's compliance with the terms. The court also explained that Wife was entitled to recover her attorney's fees under Tenn. Code Ann. § 36-5-103(c), which provides that a party is entitled to attorney's fees when that party prevails in a child support action. After Wife's attorney submitted an accounting of her fees, the court ordered Husband to pay $28, 664.64 of Wife's attorney's fees.

         Analysis

         Husband contends the trial court erred (1) by finding Husband in civil contempt, (2) by dismissing Husband's petition to modify child support, and (3) by awarding Wife her attorney's fees. Additionally, Wife asks us to decide whether she should be awarded her attorney's fees on appeal.[3]

         I. Contempt

         In order to prevail on a civil contempt claim, the plaintiff must establish four elements. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 354 (Tenn. 2008). First, the plaintiff must establish that the order alleged to have been violated is lawful. Id. An order is lawful if it is "issued by a court with jurisdiction over both the subject matter of the case and the parties." Id. at 355. The determination of whether a particular order is lawful is a question of law, which we review de novo with no presumption of correctness accorded to the trial court. Id.

         Second, the plaintiff must establish that the order is clear, specific, and unambiguous. Id. at 354. "A person may not be held in civil contempt for violating an order unless the order expressly and precisely spells out the details of compliance in a way that will enable a reasonable person to know exactly what actions are required or forbidden." Id. at 355. Such a determination is a legal inquiry, subject to a de novo review. Id. at 356.

         Third, the plaintiff must prove by a preponderance of the evidence that the defendant actually violated the order. Id. This is a factual issue to be decided by the court. Id. Thus, our review is de novo, on the record, with a presumption that the trial court's factual findings are correct ...


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