Lattimore v. Lattimore

• Decision Date: 12 April 2019
• Docket Number: No. M2018-00557-COA-R3-CV,M2018-00557-COA-R3-CV
• Parties: PATRICIA GAY PATTERSON LATTIMORE v. JAMES S. LATTIMORE, JR.
• Court: Tennessee Court of Appeals

PATRICIA GAY PATTERSON LATTIMORE v. JAMES S. LATTIMORE, JR.

No. M2018-00557-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

February 19, 2019 Session

April 12, 2019

Appeal from the Circuit Court for Williamson County

No. 93699

Michael W. Binkley, Judge

This appeal arises from a post-divorce proceeding wherein the wife filed a petition requesting that the trial court hold the husband in civil contempt due to his noncompliance with the alimony provision in the parties' marital dissolution agreement ("MDA") and enter a judgment in favor of the wife representing the alimony arrearage and statutory interest. Following a bench trial, the trial court dismissed the wife's petition without entering a monetary judgment against the husband, upon finding that although the husband had violated the alimony provision of the MDA, his failure to pay was not willful. The trial court also denied the wife's request for attorney's fees. Having determined that the evidence preponderates against the trial court's finding, we conclude that the husband's failure to comply with the alimony provision was willful. Upon further determination that the trial court erred in dismissing the wife's petition for civil contempt and a monetary award, we reverse.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D. BENNETT and RICHARD H. DINKINS, JJ., joined.

David W. Garrett and Jacob T. Thorington, Franklin, Tennessee, for the appellant, Patricia Gay Patterson Lattimore.

Angela Hoover, Franklin, Tennessee, for the appellee, James S. Lattimore, Jr.

OPINION

I. Factual and Procedural Background

The parties, James S. Lattimore, Jr. ("Husband") and Patricia Gay Patterson Lattimore ("Wife"), were divorced on September 6, 1994, in the Williamson County Circuit Court ("trial court"). In the divorce decree, the trial court approved and incorporated the parties' MDA. As relevant to the current appeal, the MDA provides as follows:

The Husband will pay to the Wife the sum of $3,500.00 per month as alimony infuturo until June, 1996, at which time said amount shall increase to $4,000.00 per month, or until the Wife's death or remarriage. Said amounts shall be paid directly to the Wife on the first of each month.

* * *

In the event it becomes reasonably necessary for either party to institute legal proceedings to procure the enforcement of any provision of this Agreement, he or she shall also be entitled to a judgment for reasonable expenses, including attorney's fees, incurred in prosecuting the action.

(Paragraph numbering omitted.)

In a previous post-divorce action, Wife filed a "Petition for Criminal Contempt" in the trial court on June 5, 2009, alleging that Husband had failed to comply with the MDA due to one missed alimony payment in May 2009, failed to provide medical insurance for Wife, and failed to provide documentation of the required life insurance policy identifying Wife as the beneficiary. Wife requested that Husband be (1) held in criminal contempt; (2) ordered to reimburse her $4,000.00 for the May 2009 alimony payment, in addition to any further arrearage to accumulate prior to the final hearing; (3) ordered to reimburse her for medical insurance payments; and (4) ordered to provide evidence that he had maintained the life insurance policy. Husband filed an answer, denying that he willfully failed to comply with the MDA's provisions. According to Husband, he was unable to make his alimony payments to Wife because his health had declined, he was unable to work on a full-time basis, and he had retired. Husband further denied that he had failed to provide medical insurance for Wife or that he was required to maintain a life insurance policy with Wife as beneficiary.

Following a bench trial conducted on January 12, 2012, the trial court found that Husband had not paid alimony to Wife since April 2009 and that his failure to pay was willful. The trial court also determined that Husband had "purposely transferred majorassets into the name of his current wife, Joan Carol (Joey) Lattimore, in an attempt to avoid paying his alimony and other financial obligations as required by the [MDA]."¹ The trial court ultimately found Husband guilty of one count of criminal contempt for failure to provide proof of the life insurance policy, thirty-three counts of criminal contempt due to his failure to pay alimony as required by the MDA, and thirty-six counts of criminal contempt for Husband's failure to provide Wife's medical insurance.

In this prior action, the trial court sentenced Husband on August 17, 2012, to ten days' incarceration for failing to pay alimony, ten days' incarceration for failing to provide medical insurance for Wife, and ten days' incarceration for failing to maintain a life insurance policy with Wife designated as the beneficiary. The aforementioned sentences were to be served consecutively for a total of thirty days. The trial court also entered a monetary judgment in favor of Wife, representing Husband's unpaid arrearages and statutory interest that had accumulated through August 16, 2012. Determining that by the time of trial Husband had failed to pay thirty-three monthly alimony payments, the trial court granted a judgment against Husband in the amount of $132,000.00 plus statutory interest. Additionally, upon its finding that Husband had failed to provide Wife with medical insurance or reimburse Wife for the thirty-six premium payments she had made, the trial court entered a judgment in favor of Wife for $6,120.00 plus statutory interest. The trial court further awarded to Wife her reasonable attorney's fees in the cause. Husband subsequently filed a motion for new trial, which was denied by the trial court.

Husband appealed the trial court's judgment to this Court. On appeal, this Court reversed all but three counts of contempt upon a determination that Husband was only provided with notice of three counts of criminal contempt-one count for failure to pay alimony, one count for failure to provide medical insurance for Wife, and one count for failure to provide documentation to Wife evincing the requisite life insurance policy. See Lattimore v. Lattimore, No. M2012-02674-COA-R3-CV, 2013 WL 5773418, at *4-5 (Tenn. Ct. App. Oct. 24, 2013), perm. app. denied but designated not for citation (Tenn. Apr. 11, 2014) ("Lattimore I").² This Court affirmed the trial court's judgment as to the counts of criminal contempt, determining that sufficient evidence supported the trial court's findings beyond a reasonable doubt. Id. at *6. Regarding the sufficiency of the evidence, this Court explained:

The trial court found Husband guilty of criminal contempt under Tennessee Code Annotated section 29-9-102(3), which requires "willful disobedience" with a court order. Tenn. Code Ann. § 29-9-102(3) (2012) (emphasis added). The trial court relied on evidence of Husband's extravagant lifestyle to reach the conclusion that he had the financial ability to comply with the MDA. Husband argues that although his lifestyle appears to indicate that he is financially stable, he is actually supported by his current spouse, Joan, and her financial success. He contends that his failure to comply with the MDA was not willful and he therefore cannot be convicted of criminal contempt under the statute. We disagree. We think that the evidence in the record is more than sufficient to find that Husband had the ability to pay his financial obligations under the MDA.

The trial court affirmatively found beyond a reasonable doubt that Husband purposefully transferred major assets to Joan in an attempt to avoid his financial obligations under the MDA. At trial, Husband readily admitted that he transferred over $1,600,000 in profits from the 2003 sale of refurbished property to Joan. That money was used to purchase the couple's current home, which has been valued at $1,296,100. Husband also admitted to setting up a shell corporation, of which Joan is the sole owner, for ownership of a forty-five foot recreational vehicle the Husband purchased in 1999 for $650,000. In 2006, Husband even explicitly stated in a letter to Wife that if she would not accept an offer to end his alimony obligations, he would be left with no choice but to transfer his assets to Joan.

The trial court found additional evidence that Husband and Joan enjoyed an extravagant lifestyle, even after Husband claimed he was in financial trouble in 2004. Since 2004, Husband has taken trips to Vietnam, Australia, Indonesia, Italy, and Mexico, though Husband testified that a portion of those trips was reimbursed by a company that paid Husband to lead motorcycle tours. Husband and Joan also took trips that were not reimbursed. In 2009, they vacationed in Italy. For the majority of 2011, Husband and Joan traveled throughout the United States, visiting Arizona, Colorado, Oregon, California, Alabama, and Ohio. The couple also enjoyed an extensive wine collection. In 2009, Husband charged a purchase of $1,209.60 at a California winery to a credit card in his name only. Husband claims that his luxurious lifestyle has been wholly supported [by] Joan. However, the trial court found that Husband was not a credible witness based on his inconsistent testimony. The trial court affirmatively found that Husband had the ability to make his alimonypayments and willfully declined to do so. The court found specifically that Husband transferred major assets to Joan in an attempt to avoid his obligations under the MDA. We think that, viewing the evidence in the light most favorable to the prosecution, the evidence more than supports the trial court's findings beyond a reasonable doubt. We therefore affirm.

Id. This Court further awarded to Wife her attorney's fees incurred during the appeal. Id. at *7.

Wife commenced the instant action by filing a "Petition for Civil Contempt and for Judgment" on June 19, 2014, alleging that...