Long v. McAllister-Long
| Decision Date | 28 August 2006 |
| Docket Number | No. M2005-00072-COA-R3-CV.,M2005-00072-COA-R3-CV. |
| Citation | 221 S.W.3d 1 |
| Parties | Fletcher Whaley LONG v. Jessica L. McALLISTER-LONG. |
| Court | Tennessee Court of Appeals |
George E. Copple, Jr., Nashville, Tennessee, for the appellant, Jessica L. McAllister-Long.
John E. Herbison, Nashville, Tennessee, for the appellee, Fletcher Whaley Long.
This appeal involves a post-divorce criminal contempt petition. Approximately four years after the divorce, the former wife filed a petition in the Chancery Court for Robertson County seeking to hold the former husband in criminal contempt for willfully breaching the provisions in the parties' marital dissolution agreement requiring him to pay and to indemnify her for certain marital debts. The husband moved to dismiss the petition for failure to allege that he had violated a court order and for failure to comply with Tenn. R.Crim. P. 42(b). The trial court denied the wife's motion to amend her petition and dismissed the petition because it did not contain an explicit allegation that he had willfully violated a court order. We have determined that the wife's petition alleges willful violations of the parties' divorce decree and that it also satisfies all the requirements of Tenn. R. Crim P. 42(b). Therefore, we conclude that the trial court erred by dismissing the wife's contempt petition.
Fletcher Long and Jessica McAllister-Long were divorced on October 18, 2000 in the Chancery Court for Robertson County. The divorce decree approved and incorporated a marital dissolution agreement prepared and signed by the parties in August 2000.1 Among other things, this agreement awarded Mr. Long the marital residence and directed him to hold Ms. McAllister-Long harmless for the indebtedness on the property. The agreement also awarded Ms. McAllister-Long the parties' 2000 Jaguar and Ms. McAllister-Long's nearly six-carat diamond engagement and wedding ring set as alimony in solido. Because Mr. Long had purchased the Jaguar and the diamond ring set on credit, the marital dissolution agreement required him to pay these debts and to hold Ms. McAllister-Long harmless.
According to Ms. McAllister-Long, Mr. Long repeatedly failed to make the house payments and the Jaguar payments in a timely manner. Accordingly, Mr. Long's creditors began mailing late notices to both Mr. Long and Ms. McAllister-Long. Eventually the creditors sent notices of their intent to take further action if the accounts were not brought current.
On August 6, 2004, Ms. McAllister-Long filed a petition in the Chancery Court for Robertson County seeking to hold Mr. Long in criminal contempt for failing to pay these debts and to hold her harmless as required by the October 18, 2000 divorce decree. She alleged that Mr. Long was a "successful attorney" in Davidson County, that he had the "financial ability at all times" to make these payments, and that his "failure and refusal to do so has been in willful contempt of court." She also alleged that Mr. Long's repeated failure to make timely payments "had a deleterious and harmful effect" on her credit and had damaged her credit standing. To emphasize the point, Ms. McAllister-Long attached several dunning letters to her petition.
Mr. Long responded by moving to dismiss Ms. McAllister-Long's petition. He insisted that Ms. McAllister-Long had somehow not complied with Tenn. R.Crim. P. 42(b) because the trial court had failed to review the substance of her petition and had failed to order him to show cause why he should not be held in contempt. Accordingly, he requested the trial court either to dismiss Ms. McAllister-Long's petition with prejudice or to conduct its own independent review of Ms. McAllister-Long's petition to determine (1) whether it was being pursued for improper motives, (2) whether it was being pursued without regard to the interests of justice, and (3) whether the alleged conduct constituted contempt at all. Ms. McAllister-Long responded by asserting that the requirements of Tenn. R.Crim. P. 42(b) were satisfied as long as the court reviewed the petition to determine whether it was being pursued for improper motives and then set a date for a show cause hearing.
On November 10, 2004, the trial court held a hearing on Mr. Long's motion to dismiss. Two weeks later, on November 24, 2004, the court filed an order granting Mr. Long's motion to dismiss. The court concluded that "the allegations of the petition for contempt fail to allege that . . . [Mr. Long] has violated a court order." The court reached this conclusion based on a rather cramped construction of the parties' marital dissolution agreement. It found that the marital dissolution agreement did not require Mr. Long to make any mortgage payments, let alone timely mortgage payments. Similarly, the court found that while the marital dissolution agreement required Mr. Long to make the Jaguar payments, it did not require him to make these payments in a timely manner. Accordingly, the trial court concluded that Ms. McAllister-Long's petition did "not `state the essential facts constituting the criminal contempt charged' as Tenn. R.Crim. P. 42(b) requires."
The trial court also concluded that the petition was defective insofar as it could be construed as seeking to hold Mr. Long in criminal contempt for willfully failing to hold Ms. McAllister-Long harmless for the debts as required by the October 18, 2000 order. The court found this portion of the petition defective because "the facts set forth in the contempt petition . . . allege harm in only a conclusory fashion and fail to meet the requirements of Rule 42(b)."
In a final curious turn of events, the trial court denied Ms. McAllister-Long's motion to amend her petition to cure the perceived shortcomings. However, the court explicitly stated that its order denying Ms. McAllister-Long's contempt petition was "without prejudice" and would not have a res judicata effect on any future criminal contempt petition Ms. McAllister-Long might file. Rather than filing an amended petition for contempt, Ms. McAllister-Long perfected this appeal.
As a threshold matter, Mr. Long asserts that Ms. McAllister-Long and her attorney lack standing to seek to hold him in criminal contempt for willfully violating the October 18, 2000 divorce decree. He insists that the contempt petition should have been filed either by the district attorney general or a private attorney appointed by the trial court. This argument is unpersuasive.
Petitions for criminal contempt must be prosecuted by the district attorney general or by a private attorney appointed by the court only when (1) the alleged contempt does not stem from an underlying court order, (2) when the district attorney general declines to pursue the matter, or (3) when no other attorney familiar with the grounds for contempt is readily available. Wilson v. Wilson, 984 S.W.2d 898, 903 n. 7 (Tenn.1998); Black v. Blount, 938 S.W.2d 394, 402-03 (Tenn. 1996). However, when the accusation of criminal contempt arises from the violation of a court order, it is quite proper that the attorney for the opposing party in the underlying litigation pursue the charge. Wilson v. Wilson, 984 S.W.2d at 902-03. In such circumstances, the attorney need not be specifically appointed by the court because the attorney is generally the one instigating the proceedings anyway. The charge may proceed after the trial court reviews the petition to ensure that it is not being instituted for improper motives or without regard for justice, Wilson v. Wilson, 984 S.W.2d at 905, and gives the defendant notice of a show cause hearing in the matter. Tenn. R.Crim. P. 42(b).
The contempt petition in this case is based on Mr. Long's alleged violations of the parties' marital dissolution agreement that was approved and incorporated into the trial court's October 18, 2000 divorce decree. Assuming the allegations in the complaint meet the standards outlined in Wilson v. Wilson and Tenn. R.Crim. P. 42(b), counsel for Ms. McAllister-Long may prosecute the criminal contempt claim. On its face, Ms. McAllister-Long's petition does not indicate that it was filed for improper motives or without regard for justice.
Ms. McAllister-Long asserts that her petition to hold Mr. Long in criminal contempt complies with Tenn. R.Crim. P. 42(b) and that the trial court's construction of her petition and of the parties' marital dissolution agreement is inappropriately narrow. Mr. Long continues to insist that the trial court properly held that he could not be found in criminal contempt because the October 18, 2000 order did not obligate him to pay his share of the marital debts in a timely manner. We do not agree with Mr. Long's cramped interpretation of the divorce decree.
Tennessee's current public policy favors allowing married couples to resolve their disputes and to order their affairs by agreement.2 Accordingly, our statutes and court decisions permit and even encourage divorcing parties to resolve by agreement their disputes regarding child custody and visitation,3 child support,4 spousal support,5 and the division of their marital estate.6 These agreements, however, are not binding on the courts. In divorce proceedings, the courts must examine and evaluate each agreement and then make their own independent determination that each agreement is fair and that each agreement complies with all applicable statutory requirements.
Today, divorcing parties frequently use a marital dissolution agreement as the vehicle for dividing their marital estate. These agreements are contractual in the sense that they are...
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