Cansler v. Cansler, No. E2008-01125-COA-R3-CV (Tenn. App. 2/1/2010), E2008-01125-COA-R3-CV.

• Court: Tennessee Court of Appeals
• Writing for the Court: D. Michael Swiney
• Decision Date: 01 February 2010
• Docket Number: No. E2008-01125-COA-R3-CV.,E2008-01125-COA-R3-CV.
• Citation: Cansler v. Cansler, No. E2008-01125-COA-R3-CV (Tenn. App. 2/1/2010), No. E2008-01125-COA-R3-CV. (Tenn. App. Feb 01, 2010)
• Parties: JEFFREY WAYNE CANSLER, v. KAREN LOUISE KIRK CANSLER.

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JEFFREY WAYNE CANSLER, v. KAREN LOUISE KIRK CANSLER.

No. E2008-01125-COA-R3-CV.

Court of Appeals of Tennessee, at Knoxville.

November 3, 2009 Session.

Filed February 1, 2010.

Appeal from the Chancery Court for Hamblen County; No. 2003-422; Thomas J. Wright, Judge.

Judgment of the Chancery Court Affirmed in Part and Vacated in Part; Case Remanded.

David W. Blankenship, Kingsport, Tennessee, for the Appellant, Jeffrey Wayne Cansler.

Beth Boniface, Morristown, Tennessee, for the Appellee, Karen Louise Kirk Cansler.

D. Michael Swiney, J., delivered the opinion of the court, in which Herschel P. Franks, P.J., and John W. McClarty, J., joined.

OPINION

D. MICHAEL SWINEY, JUDGE.

Jeffrey Wayne Cansler ("Father") and Karen Louise Kirk Cansler ("Mother") were divorced in 2005. Since that time, the parties have continued to disagree about almost everything and have filed numerous petitions for contempt. In this appeal, Father claims the Trial Court erred when it: (1) denied his motion for relief from the judgment; (2) distributed the marital property; (3) entered two judgments nunc pro tunc, (4) offset two findings of civil contempt against Mother with two findings of civil contempt against Father; and (5) sentenced Mother to community service for two remaining counts of civil contempt that were not offset. We affirm the Trial Court except as to the six findings of civil contempt as we hold the alleged contempts were criminal rather than civil in nature. Those six findings of civil contempt are vacated and remanded for further proceedings consistent with this Opinion.

Background

In August of 2003, Father filed suit seeking a divorce from Mother following a fifteen year marriage. The parties have two minor children, a daughter who currently is 11 years old and a son who is 15 years old. As grounds for divorce, Father alleged that Mother was guilty of adultery. Alternatively, Father alleged that irreconcilable differences had arisen between the parties. Father sought to be designated the children's primary residential parent.

Mother answered the complaint and denied that she was guilty of adultery. Mother admitted, however, that irreconcilable differences had arisen between the parties. Mother filed a counterclaim alleging that it was Father who had committed adultery. Mother also sought to be designated the children's primary residential parent.

In August of 2004, the Trial Court entered a temporary parenting plan which designated Mother the primary residential parent and set forth Father's co-parenting time. Father was ordered to pay child support in the amount of $772.24 per month.

The trial was held on March 28, 2005, following which the Trial Court entered a detailed sixteen page memorandum opinion. Initially, the Trial Court concluded that both parties had proven grounds for divorce. Accordingly, the Trial Court declared the parties divorced pursuant to Tenn. Code Ann. § 36-4-129(b).¹ The Trial Court then discussed the statutory factors to be considered when making a determination as to whom should be designated the primary residential parent. After so doing, the Trial Court concluded that it was in the children's best interests for Mother to be designated the primary residential parent. Father was ordered to pay $630 per month in child support.

The parties had substantial assets which included both real estate and Father's business. After valuing all of the property, Father ultimately was awarded property valued by the Trial Court at $665,053.35, and Mother was awarded property valued by the Trial Court at $618,046.00.²

The memorandum opinion was signed by the Trial Court on July 14, 2005. It was filed by the court clerk and supposedly mailed to the parties that same day. For some unknown reason, a final judgment was not entered until March 6, 2006. By that time, Father already had filed several pleadings, including a petition to modify custody. Although the final judgment was filed on March 6, 2006, it was entered nunc pro tunc to August 15, 2005. In any event, this final judgment declared the parties divorced and incorporated the contents of the memorandum opinion. The Trial Court acknowledged in the final judgment that Father had filed a petition for modification of custody and a ruling on that petition was reserved pending further hearing.

On April 24, 2006, Father filed a motion for relief from the final judgment. According to Father:

1. On or about the 2^nd of March, 2006, a draft copy of a judgment in this divorce case was [signed] by the [Trial Court].³

2. Prior to that time no judgment had been entered although counsel for [Father] had checked to see if any judgment had been entered. Neither [Father's] counsel, nor [Mother's] counsel, received any notice from the Clerk that the Court had actually entered a judgment in this matter.

3. The only judgment submitted to [Father's] counsel was a proposed judgment which was never signed.

4. In a hearing on this matter on other issues on April 18, 2006, this matter was called to the attention of the Court by [Father's] counsel and [Mother's] counsel advised the Court that he had not received a copy of the entry of a judgment from the Clerk.

5. The judgment only contained the signature of [Mother's] counsel and did not have the signature of [Father's] counsel upon it.

6. Had [Father] been advised of the entry of the judgment, [Father] would have advised his counsel to make and/or file a motion for a new trial and/or file a notice of appeal.

7. If the Court treats the subsequent motion filed by [Father] as a Motion pursuant to Rule 59 as a motion for new trial, then the judgment is not final. If, however, the Court does not treat it as a Motion for a new trial, then [Father] would move the Court, pursuant to Rule 60 of the Tennessee Rules of Civil Procedure to alter or amend the judgment to the extent that the entry date would become effective only upon the date that both parties actually received notice that the judgment had, in fact, been entered, that is on April 18, 2006.

As can be seen, Father claims that had he known the final judgment had been entered, he would have appealed certain aspects of that judgment. Unfortunately, Father does not state what aspect(s) of the final judgment he would have appealed. Since he already had filed a petition for modification by the time the final judgment was entered, it appears likely that one of the issues he would have appealed was the custody determination.

Father's petition to modify custody was heard on April 18, 2006. At the same time, various petitions for contempt also were heard. In July of 2006, the Trial Court filed a memorandum opinion and modified the custody arrangement by designating Father the primary residential parent. The Trial Court specifically found that there had been a material change in circumstances and that it was in the children's best interest for Father to be designated the primary residential parent. The Trial Court also found Mother in civil contempt on two counts. First, she had an overnight guest of the opposite sex while the children were present in the home. Second, Mother took the parties' son to Knoxville for non-emergency medical care without telling Father where they were. The Trial Court fined Mother $50. A judgment incorporating the findings in this particular memorandum opinion was entered on September 11, 2006.

The parties continued to file numerous petitions for contempt. The original trial judge eventually recused himself. Although no reason for the recusal was given, we suspect that it was caused by understandable frustration over the inability of the parties to even remotely get along and the filing of a continuos stream of petitions for contempt. After a new trial judge was assigned to this case, a further hearing on all pending motions was conducted on May 5^th and 6^th of 2008. Following that hearing, on May 19^th a detailed order was entered by the Trial Court which contained, among other things, a good summary of the procedural history of this case, only some of which is set forth above. According to this order:

This action came before the court for a trial on May 5 and 6, 2008 on numerous pending motions and petitions seeking findings of contempt and to alter the permanent parenting plan in this case. As an initial matter, counsel for [Father] raised the question of the finality of the original judgment of divorce, citing his Motion for Relief from Judgment filed April 24, 2006 and arguing that this Motion, filed pursuant to rules 59 and 60 Tenn. R. Civ. Pro., had never been disposed of. For the reasons set forth below [Father's] Motion for Relief from the Judgment is DENIED.

1. Factual background

The Final Decree of Divorce was filed in this case March 6, 2006. It was accompanied by a sixteen page Memorandum Opinion from the Chancellor which had previously been filed July 14, 2005. The Permanent Parenting Plan Order from the divorce trial was filed July 15, 2005.

[Father] filed a Petition to Modify Permanent Parenting Plan/For Change of Custody on or about October 20, 2005. The pleading is in the court file but it does not contain the Clerk and Master's "Filed" stamp. The attorney's Certificate of Service indicates that it was served by mail October 20, 2005. On December 1, 2005 [Mother] filed her Response to Petition to Modify Custody which included a Counter-Petition to Modify Custody.

The Chancellor conducted a trial on the merits of the Petition and Counter-Petition to Modify the Permanent Parenting Plan as well as a motion for contempt that had been filed by [Father]. That trial was held on April 18, 2006. Apparently, during this trial, counsel for [Father] realized the original Judgment had been signed and filed. He then filed the subject Motion for Relief from Judgment April 24, 2006.

The Chancellor filed his Memorandum Opinion relating to the April 18, 2006 trial, on July 13, 2006 and a new Permanent Parenting Plan Order was filed on July...