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In re Samuel P.

Court of Appeals of Tennessee, Jackson

February 23, 2018

IN RE: SAMUEL P.

          Session January 31, 2018

         Direct Appeal from the Juvenile Court for Shelby County No. Y0740 William A. Peeler, Special Judge

         This appeal involves a long-running dispute between unmarried parents over parenting issues concerning their young son. After years of contentious and continuous litigation and eight days of trial, the trial court found the father in criminal contempt and modified the parties' existing parenting arrangement to reduce the father's parenting time somewhat and to grant the mother sole decision-making authority for major decisions. The trial court imputed income to the father for purposes of child support and awarded current and retroactive child support. The trial court also awarded the mother a portion of her attorney's fees. The father appeals, challenging each of these rulings. We vacate the trial court's imputation of income and child support awards and remand for additional findings regarding Father's income, but we otherwise affirm the trial court on all other issues.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated in part, Affirmed in part and Remanded

          Brice Moffatt Timmons, Memphis, Tennessee, and Brian L. Schuett, Bowling Green, Kentucky, for the appellant, J. Vincent P.

          Rachel Emily Putnam and Nelson T. Rainey, Memphis, Tennessee, for the appellee, Cynthia Ann P.

          Brandon O. Gibson, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         J. Vincent P.[1] ("Father") and Cynthia P. ("Mother") are attorneys who dated and had a child out-of-wedlock. Before the child was born, Father filed a petition to establish paternity and alleged that he was fit to have custody of the child. Days after being served with the petition, Mother went into preterm labor and gave birth to the child, Samuel, in May 2012. Samuel was ten weeks premature and weighed two pounds. He spent six weeks in the neonatal intensive care unit and was discharged to Mother weighing four pounds. The parties have continuously battled over parenting time and related issues ever since.

         Because both parents routinely practice in the juvenile court of Shelby County, Judge William Peeler, the juvenile court judge in Tipton County, was appointed as special judge to preside over the case on August 8, 2012. The parties filed numerous petitions and litigated countless issues over the next four years. According to Judge Peeler, this was "one of the most bitter, contentious, and litigious cases" he had seen during his 27 year tenure on the bench. Indeed, the record of the proceeding during this young child's life fills four banker's boxes.

         Mother began her efforts to obtain information regarding Father's financial situation, for purposes of calculating child support, shortly after the proceedings began in 2012. Father has an LL.M. degree in taxation and works as a solo practitioner doing estate and tax work, among other things. However, his 2011 tax return reported a negative total income and negative adjusted gross income. Mother claimed that Father was in fact a successful attorney and that his tax returns were unreliable. Accordingly, she claimed that it was necessary to examine various underlying documents and additional sources of information in order to determine Father's true income. Mother ultimately filed motions to compel and sought sanctions due to Father's alleged failure to produce adequate information regarding his income. The trial court granted Mother's motion to compel and ordered Father to cure his discovery deficiencies.

         Meanwhile, in the year after Samuel was born prematurely, he failed to meet certain developmental milestones. When he turned one in May 2013, he was not yet sitting unassisted, crawling, or walking.

         The parties attended mediation for three days in May 2013 and finally reached an agreement as to parenting time and joint decision-making. They agreed to a parenting schedule with four phases, whereby Mother was named primary residential parent, but Father would gradually increase his parenting time over the next two years until the parties shared equal parenting time. Although the parties followed this phased parenting schedule after mediation, they did not seek court approval of an actual parenting plan or custody order for several months. Also, the parties had been unable to reach any agreement regarding child support due to their ongoing dispute over discovery of Father's financial information.

         In February 2014, Father finally sought court approval of the mediated parenting plan from May 2013, with the section regarding child support left blank. Father's motion alleged that numerous disputes had arisen regarding parenting time and decision-making but were ultimately resolved by the attorneys. He claimed that the mediated parenting plan should be reduced to a written order so that future disputes would be less likely to occur.

         Before any action was taken on Father's motion, on May 7, 2014, Mother filed a petition to modify the mediated (but not yet court-approved) parenting plan from May 2013, alleging that a material change in circumstances had occurred. She alleged that Father had refused to cooperate with her in the year since mediation and that joint decision-making was simply not possible. For example, Mother alleged that Father unilaterally enrolled Samuel in a new preschool without prior notice to her and refused to participate in good faith in the parties' parenting counseling sessions. Mother also alleged that Samuel, by then age 24 months, was still not walking independently despite ankle braces and had been diagnosed as developmentally delayed by his pediatrician. She alleged that joint decision-making was not in Samuel's best interest because Father disregarded Mother's opinions and Samuel's developmental needs. She also claimed that Samuel had a greater need for continuity and stability due to his developmental delays. Mother asked the trial court to modify the mediated (but not yet court-approved) parenting plan to name her final decision-maker for all major decisions and to maintain the parenting schedule in the current phase rather than increasing Father's parenting time to the additional and final phase of equal parenting time.[2]

         Before Mother's petition to modify was heard, the trial court, on May 30, 2014, entered an order approving the parties' mediated parenting plan from May 2013 (without resolving the issue of child support). Father filed a response to Mother's pending petition to modify in which he agreed that the parties' meetings and conversations were unproductive, but he blamed Mother for being uncooperative. He also claimed that further mediation was necessary, according to the mediated parenting plan, prior to further proceedings regarding modification. The parties returned to mediation as ordered by the court. However, the only issue the parties were able to agree on at mediation was that they would submit to a Rule 35 forensic custody evaluation by Dr. Fred Steinberg, [3]with both parties being responsible for the cost of their own evaluation. The trial court entered an agreed order to that effect on September 8, 2014. The case was set for trial to begin on January 26, 2015. At a pretrial status conference in December 2014, Father requested a continuance of the January 26 trial date based on his assertion that Dr. Steinberg would not have his report completed in time, but the trial court denied Father's request.

         On January 6, 2015, Dr. Steinberg notified both parties that his report was complete and requested payment of the final balance they owed for the evaluation. Dr. Steinberg informed the parties that his report would not be released unless he received full payment from both parties.[4] Mother paid her balance that same day, but Father failed to pay his balance of roughly $1, 632 despite numerous messages from Mother's counsel in the days that followed. On January 14, 2015, Father filed a motion to continue the January 26 trial date, stating, among other things, that "[t]o date, Mother and Father do not have the report from Fred Steinberg, Ph.D. in this matter. Thus, the parties' attorneys have not been able to review the report, schedule his deposition, etc." The next day, Dr. Steinberg notified the court that his report was completed on January 6, that he had advised both parties that the report would be released once all fees were paid, and that Father had not paid his balance. During a conference call with Judge Peeler on January 21, 2015, Father's attorney claimed, for the first time, that Father was financially unable to pay the amount owed to Dr. Steinberg, and therefore, a continuance of the trial date was necessary. The trial judge continued the trial at Father's request and ordered him to pay Dr. Steinberg within thirty days. Father paid Dr. Steinberg on the thirtieth day.

         Because Mother's petition to modify the parenting plan still had not been heard, on April 23, 2015, Mother filed a petition to suspend the parenting plan insofar as it provided for the fourth and final phase of Father's increased parenting time to begin on May 16, 2015. Mother noted that the parties agreed to the parenting plan during mediation when Samuel was 12 months old; it was approved by the court when he was 24 months old, and by this time, he was almost three. Mother alleged that a material change in circumstances had occurred even since the entry of the parenting plan order, warranting modification of the plan. She alleged that Father's anger toward her had worsened and that he had also engaged in conflict with the director of Samuel's preschool and enrolled Samuel in yet another preschool without prior notice. Mother claimed that Father went out of his way to undermine her by habitually returning the child late to parenting exchanges, changing day care facilities again in April 2015, and intentionally excluding her from healthcare decisions for the child. Mother insisted that joint decision-making with Father was simply impossible because Father prioritized his own "rights" above Samuel's best interest, and she repeated her request to be designated as the sole decision-maker. Mother also claimed that maintaining the current parenting schedule was in Samuel's best interest, but she asked that Father be required to return Samuel on Sunday evening rather than Monday morning after his parenting time every other weekend.

         Mother's April 23, 2015 petition also asserted numerous counts of contempt against Father. She alleged that Father purposefully refused to obey the order to pay Dr. Steinberg for his share of the evaluation in order to delay the trial. According to Mother's petition, she subsequently obtained documents via subpoena that revealed Father had sufficient funds to pay for his share of the report in January 2015, in spite of his representation to the contrary. She alleged that Father's conduct was offensive to the dignity of the court and demonstrated an ongoing disregard for the court's authority, such that he should be held in criminal contempt. Mother also asked the court to find Father in contempt for various violations of the parenting plan, such as returning Samuel to parenting exchanges more than 15 minutes late over 50 times, excluding her from Samuel's medical appointments and healthcare decisions, unilaterally enrolling Samuel in another preschool without prior notice, denying her parenting time for a planned vacation, claiming Samuel for an exemption on his tax return during Mother's designated year, and disregarding the court's orders regarding discovery. Mother asked the court to sanction Father pursuant to Tennessee Rule of Civil Procedure 37.02 by establishing his income at $20, 000 per month for the purpose of calculating child support.[5] She also asked the court to find Father in civil and/or criminal contempt for each of the counts mentioned above.

         The trial court entered an order staying phase four of the parenting plan and to maintain the existing parenting schedule pending trial. In June 2015, just before trial, Samuel was diagnosed with cerebral palsy. The trial began on July 31, 2015. Generally, the trial court heard testimony regarding the contempt allegations first then moved to the issues regarding modification of the parenting plan. However, the trial judge decided that he would not resolve the issue of child support until he made a ruling regarding parenting time. Over the course of seven days between July 31, 2015, and October 26, 2015, the trial court heard testimony from Mother, Father, Dr. Steinberg, a clinical psychologist retained by Father to review Dr. Steinberg's evaluation, Samuel's physical therapist, Samuel's case manager from the Shelby County school system, the director of Samuel's preschool, Father's mother, Father's cousin, and Father's friend. The testimony of these witnesses regarding the issues on appeal will be discussed later in this opinion as needed.

         On March 17, 2016, the trial court entered an order addressing many of the issues before the court but reserving a decision on others. Regarding the counts of contempt, the trial court first described the situation involving the payment to Dr. Steinberg and Father's assertion, through his counsel during the January 21, 2015 conference call, that Father was destitute and lacked sufficient funds to pay for his share of the report. The trial court noted that it granted Father's request for a continuance based on this representation. Based on the evidence presented by Mother at trial, the trial court found that Father made "a false representation to the Court." The court found that after the agreed order was entered on September 8, 2014, obligating Father to pay for his share of the evaluation, Father entered into an advertising contract with a local television station at a total cost of $36, 000, payable in monthly installments of $3, 000. Father's bank records indicated that in January 2015, when he declined to pay Dr. Steinberg and represented to the court that he was destitute, he paid $14, 000 to his parents and had over $40, 000 available in credit and cash advances on his credit cards. Accordingly, the trial court found that Father had access to cash well in excess of the $1, 632 he owed to Dr. Steinberg. The trial court found that Father chose to make payments of $1, 698 on his Mastercard and $3, 886 on his American Express card on January 12, 2015, after Dr. Steinberg requested payment on January 6, when no minimum payment was due on either card. The trial court found that Father had funds to meet many other obligations and chose to save a little bit of interest and insist on a continuance of the trial even though it inconvenienced the court and impacted its busy schedule. The court found that Father delayed the trial willfully and without just cause and accordingly found him guilty of criminal contempt beyond a reasonable doubt.

         The trial court also found Father in civil contempt for numerous violations of the parenting plan, including returning Samuel late intentionally and habitually without regard for Mother's schedule, failing to notify Mother of Samuel's medical appointments, claiming Samuel on his tax return, and failing to comply with discovery orders regarding his finances. The trial court found that Mother made exhaustive efforts to secure Father's financial records beginning in 2012 and continuing throughout the litigation and that Father purposefully concealed his financial information. The court found that Father produced "volumes of bank records" but redacted critical information without court permission, causing confusion and frustrating the court's ability to assess income for purposes of child support. The court found that after three years, Father still had not produced adequate documentation to establish his income. The order states,

The Court finds by clear and convincing evidence that Father is guilty of civil contempt for his failure to comply with discovery orders regarding financial discovery. The Court finds that Father should be sanctioned for his willful conduct and further, he has still failed to submit any reliable and trustworthy evidence of his income pursuant to the Guidelines, Father's income for the purpose of calculating child support shall be imputed in the amount of $10, 000.00 per month.

         The order directed the parties to submit proposed child support worksheets using the imputed income figure of $10, 000 for Father, after which the trial court would establish child support in accordance with the child support guidelines. Aside from this discussion about the imputation of income, the order did not otherwise punish Father for the counts of contempt.

         The trial court also granted Mother's petition to modify the parenting plan regarding joint decision-making and the parenting schedule. The trial court found that a material change in circumstance had occurred in that Father had intentionally undermined Mother's ability to make decisions about the child's daily care, medical care, daycare, education, and upbringing.[6] In fact, the court found that when Mother made any request of Father pertaining to the child, "Father went out of his way to do the opposite." The court found that Samuel's medical diagnoses led to medical decisions that had to be made jointly by the parties, and the court found unequivocal proof that Father was simply unable to make joint decisions with Mother. The trial court noted Dr. Steinberg's finding that Father put his own agenda of engaging in conflict with Mother over his consideration of Samuel's best interest and prioritized his perception of receiving equal justice over things that could be beneficial to Sam. The court found that Father had obstructed and caused significant delay in Samuel's receipt of physical and developmental therapy for illogical reasons, engaging in "gamesmanship and controlling behavior." As such, the trial court named Mother sole decision-maker for all medical, educational, extracurricular, and religious decisions regarding Samuel. In light of Samuel's special needs, the trial court also reduced Father's parenting time somewhat, to every other weekend and one evening visit per week, in order to provide Samuel with greater stability and consistency.

         Finally, the trial court found that Father's conduct left Mother with no choice but to seek relief in order to protect the best interest of the child. The court found that Mother was entitled to an award of reasonable attorney's fees, and it directed her attorney to submit a sworn statement of time and expenses, which the court would review to determine the amount to be awarded.

         Before the issues of child support, attorney's fees, and punishment for the contempt were resolved, Father sought an extraordinary appeal to this Court, which was denied. He also filed a motion for recusal of Judge Peeler, which was also denied. This Court affirmed the denial of the motion to recuse in In re Samuel P., No. W2016-01592-COA-T10B-CV, 2016 WL 4547543 (Tenn. Ct. App. Aug. 31, 2016). After these issues were resolved, the trial court held a hearing on the issue of child support on December 5, 2016. The court considered evidence of Mother's income but did not revisit its decision to impute $10, 000 per month to Father. On January 20, 2017, the trial court entered an order in which it found that the child support worksheets submitted by Mother contained accurate figures and calculations of current and retroactive child support in accordance with the child support guidelines. Father's child support obligation was set at $1, 850 per month, and he was ordered to pay retroactive support in the sum of $70, 888.

         As punishment for the single count of criminal contempt for making false representations to the court to obtain a continuance, Father was sentenced to a fine of $50 and ten days in jail, with five days suspended.[7] The court stayed scheduling of Father's report date to jail pending the outcome of any appeal. The court noted that "[f]or [Father's] failure to comply with financial discovery he was sanctioned and that, along with other factors, resulted in his income being imputed." The court found that a reprimand, without further punishment, was appropriate for those counts.

         The trial court awarded Mother $111, 749.12 in attorney's fees, plus suit expenses and interest, for a total award of $145, 406.15. The court stated that it had reviewed the affidavit and itemized billing statements submitted by Mother, analyzed the Wright factors, and utilized its experience based on 27 years as a juvenile court judge, and found the services rendered over four years of complex litigation were reasonable and necessary to protect the best interest of the special needs minor child.

         Father timely filed a notice of appeal to this Court.

          II. Issues Presented

         Father lists the following issues for review on appeal:

1. Whether the Trial Court committed reversible error by failing to adjudicate the criminal contempt matter separately from the civil issues in the case;
2. Whether the Trial Court committed reversible error by finding Father in criminal contempt without pointing to an order that Father violated and predicated on statements his counsel allegedly made outside the record;
3. Whether the Trial Court erred in finding that there was a material change of circumstances that supported a modification of the parenting plan;
4. Whether the Trial Court committed reversible error by imputing income to Father based on a factually unsupported finding that he was concealing income;
5. Whether the Trial Court committed reversible error by accepting Mother's proposed child support worksheets when there were clearly erroneous deductions to her income;
6. Whether the Trial Court committed reversible error by awarding attorney fees to Mother in its final order when it expressly denied Father's counsel an opportunity to challenge the reasonableness of the fees; and
7. Whether the Trial Court erred in refusing to disqualify Mother's counsel, who was an important fact witness regarding the interaction of the parties and Father's parenting of Samuel.

         For the following reasons, we vacate the trial court's order as it pertains to imputation of income and child support and remand for further proceedings, but we affirm the trial court's decision on all other issues.

         III. Discussion

         A. Contempt

         1. Separate Hearings

         The first issue raised by Father on appeal is whether the trial court erred by failing to adjudicate the criminal contempt matter separately from the civil issues in the case. Father argues that "this Court should hold that the simultaneous trial of criminal contempt with civil contempt and a custody modification renders all three proceedings 'fundamentally flawed.'" The record reflects that the trial court generally heard testimony regarding the contempt allegations first and then heard testimony regarding the remaining issues. Mother and Father both testified twice -- during both phases of the trial. Still, Father argues that the entire proceeding was "irrevocably tainted" and "fundamentally flawed" because the criminal contempt matter was not tried separately, and therefore, we must reverse the orders on contempt and custody modification.

         This Court rejected a similar argument in Norfleet v. Norfleet, No. M2013-00652-COA-R3-CV, 2014 WL 1408146, at *3 (Tenn. Ct. App. Apr. 9, 2014), perm. app. denied (Tenn. Aug. 27, 2014), where a parent argued that a trial court committed reversible error by trying criminal and civil contempt in the same proceeding and in conjunction with the trial of a petition for modification and an order of protection hearing. We acknowledged some previous cases stating that civil and criminal contempt proceedings should not be tried simultaneously. Id. at *5 (citing Cooner v. Cooner, No. 01A01-9701-CV-00021, 1997 WL 625277 at * 15 (Tenn. Ct. App. Oct.10, 1997)). Still, we found "nothing in [the simultaneous] hearing that rises to the level of reversible error." Id. We noted that "the practice of combining claims for civil and criminal contempt in the same proceeding has sometimes been criticized, " but, we added, "it is not at all uncommon." Id. at *6 n.5. We further explained,

As for trying the contempt in the same proceeding as the modification petition and the order of protection, we acknowledge that such a practice involves the same difficulties as were mentioned by the Cooner court in regard to trying criminal and civil contempt in the same proceeding: that is, the differences in the respective burdens of proof and in the procedural rights of the parties. However, the same conduct that impels a party to seek enforcement or modification of a prior order of the court, such as a failure to pay child support or a failure to comply with a parenting order, can also support an action for contempt.
Thus, even though it may be better in some ways to try contempt separately from other claims, it is not unusual for a contempt charge to be tried together with the case from which it arose, for reasons of judicial economy and for the convenience of the parties. In such cases, it is important for the trial court to keep the distinctions between the various claims in mind.
In the present case, the court stated at the outset of the hearing that it would be trying three different claims, and after hearing all the evidence it once again identified the three matters at issue and recited the evidence it relied on to reach its decision on each of them. The trial court clearly recognized the differences between the pleadings before it and the proof required for each. We find no reversible error in the trial court's reasoning or in its conduct of the proceedings below.

Id. at *6. See also Duke v. Duke, No. M2009-02401-COA-R3-CV, 2012 WL 1971144, at *9-10 (Tenn. Ct. App. June 1, 2012) (rejecting the appellant's argument that the trial court committed reversible error by considering criminal and civil contempt simultaneously in the same proceeding).

         In the case at bar, the trial court attempted to separate the testimony about the contempt allegations from the matters of custody and child support by devoting the first few days of trial to the issues of contempt. However, Mother's petition for contempt cited many of the same alleged violations of the parenting plan that also served as the basis for her petition to modify the parenting plan. Father did not object to the trial court's procedure and even asked to call a witness relevant to the custody matter out of order during the contempt phase of the hearing. When Father's counsel noted that all of the issues were "intertwined, " the trial judge stated that he could "sort through what is important regarding the issues of contempt and also what is important regarding the petition to modify." He directed Father's counsel to present his proof in any manner he wished and said, "I will certainly listen and weigh it for the various issues that the Court has to deal with." As in Norfleet, the ...


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