Mawn v. Tarquinio
| Decision Date | 27 March 2020 |
| Docket Number | No. M2019-00933-COA-R3-CV,M2019-00933-COA-R3-CV |
| Parties | LOUISE ANN MAWN v. GREGG THOMAS TARQUINIO |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County
During the pendency of a divorce, Husband was convicted of six counts of criminal contempt for violating the statutory injunction under Tennessee Code Annotated section 36-4-106(d). On appeal, Husband contends that the trial court erred in finding that he willfully violated the statute. Because we are unable to determine if the trial court applied an impermissible conclusive presumption to find that Husband was aware of his obligations under the statutory injunction, we vacate and remand to the trial court for reconsideration.
Joshua G. Strickland and D. Scott Parsley, Nashville, Tennessee, for the appellant, Gregg Thomas Tarquinio.
Joshua V. Lindsey and April W. Nemer, Nashville, Tennessee, for the appellee, Louise Ann Mawn.
OPINIONPlaintiff/Appellee Louise Ann Mawn ("Wife") filed a complaint for divorce from Defendant/Appellant Gregg Thomas Tarquinio ("Husband") on March 6, 2017. On March 13, 2017, Attorney Gregory D. Smith ("Initial Attorney") filed a notice of appearance on behalf of Husband. On the same day, the complaint, a summons, and a copy of the temporary statutory injunction under Tennessee Code Annotated § 36-4-106(d) were served on Initial Attorney. On April 26, 2017, new counsel was substituted for Husband by agreed order. Wife thereafter filed an amended complaint. In addition to the grounds of irreconcilable differences and inappropriate marital conduct alleged in the first complaint, the amended complaint also alleged cruel and inhumane treatment by Husband. Wife filed a motion for an accounting, to allocate payment of expenses, and for support pendente lite on January 17, 2018. Then, on February 2, 2018, Husband filed a motion to require Wife to return certain funds that she had taken from the parties' joint accounts; the motion indicated that Wife's actions "likely violated the statutory restraining order issued when [Wife] decided to file for divorce[.]" On or about March 14, 2018, Husband's second counsel withdrew and his current counsel was substituted. On March 21, 2018, Husband filed an answer to Wife's amended complaint, as well as a counter-complaint for divorce.
On April 17, 2018, Wife filed a motion to enforce the statutory injunction and to compel the return of marital funds that Husband had allegedly withdrawn from the parties' bank accounts. On June 18, 2018, the trial court temporarily enjoined Husband from withdrawing any funds from the parties' four children's college savings plans that were in his name. In the meantime, Wife filed a second amended complaint on May 24, 2018, alleging adultery as an additional ground for divorce. Wife thereafter filed a motion seeking access to Husband's electronic devices for purposes of discovery; there was a concern that Husband was deleting messages from his paramour.
Wife's issues with regard to Husband's financial withdrawals and alleged spoliation of evidence came to a head when Wife filed two separate criminal contempt petitions against Husband in August and October 2018, both alleging that Husband had willfully violated the statutory injunction. Specifically, the August 2018 petition alleged the following counts of criminal contempt: (1) the willful deletion of all text messages between Husband and his paramour following the filing of the divorce complaint on March 6, 2017; (2) the willful deletion of all email messages between Husband and his paramour following the filing of the divorce complaint on March 6, 2017; (3) a $12,000.00 withdrawal on February 5, 2018, from one of the college savings plans set up for the parties' daughter; (4) a $6,700.00 withdrawal on March 6, 2018, from one of the college savings plans set up for the parties' other daughter. Wife asked that Husband be sentenced to ten days in jail and a $50.00 fine for each count. The October 2018 petition alleged two additional counts of criminal contempt: (1) a $6,600.00 withdrawal on April 5, 2018, from one of the college savings plans set up for the parties' son; and (2) a $6,600.00 withdrawal on April 5, 2018, from one of the college savings plans set up for the parties' other son. Thus, Wife's two petitions essentially alleged that Husband had willfully withdrawn funds from each of the parties four children's college savings plans without her knowledge or consent. Again, Wife asked for the maximum incarceration and fine for these alleged violations. On December 21, 2018, Husband filed his own petition for criminal contempt against Wife, alleging various violations of the parties' temporaryparenting plan.
Wife's contempt petitions were heard together on March 7, 2019. The evidence presented concerned Husband's spoliation of evidence and his action in cashing out the children's savings funds. At trial, Husband claimed that he was unaware of the statutory injunction. According to Husband, he was not served personally with the divorce complaint nor did he authorize Initial Attorneys to accept service on his behalf. Husband further testified that he had no discussions with any of his attorneys about the statutory injunction until preparation for the contempt hearing. Husband admitted, however, that he took money from the college savings accounts. According to Husband, this was a typical practice throughout the marriage and the money would be repaid once the marital home was sold. Husband also admitted to deleting messages from his paramour but again claimed that this was his typical practice. During her testimony, Wife admitted that she had taken out approximately $600,000.00 in loans while the divorce was pending and that on one occasion the parties had withdrawn from a college savings plan to pay a tax debt. During the trial, the trial court provided Husband with a copy of the statutory injunction and advised him to read it upon his journey home.
At the conclusion of the trial, the trial court orally found Husband guilty of all six counts of contempt—two from spoliation and four for depleting the college savings accounts. The trial court sentenced Husband to twenty-six days of incarceration. In its oral ruling, the trial court indicated that if the funds were repaid, it would consider suspending Husband's sentence. The trial court also indicated that it would consider an appeal bond. Husband's counsel indicated that he would be unable to repay the funds absent the sale of the marital home. Husband thereafter filed a motion to alter or amend the trial court's judgment. Husband alternatively asked that the sentence be stayed pending appeal. Wife responded in opposition to the motion. On April 18, 2019, the trial court entered a written order allow Husband to post a bond pending appeal; Husband thereafter posted the required bond. The trial court entered its written order finding Husband guilty of contempt on April 30, 2019. Husband's notice of appeal was filed on May 28, 2019. Husband thereafter filed a notice that he was striking his motion to alter or amend.
Husband raises three issues in this appeal, which we reorder and slightly restate:
This case was resolved by bench trial. After a bench trial, a trial court's findings of fact are reviewed "de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). A trial court's conclusions of law are entitled to no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008) (citing Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002)). On appeal, great weight is given to "the trial court's factual findings that are determined on credibility." Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415, 424 (Tenn. Ct. App. 2005) (citing In re Estate of Walton, 950 S.W.2d 956, 959 (Tenn. 1997)).
As an initial matter, we address Husband's argument that the trial court's order does not comply with Rule 52.01. Rule 52.01 of the Tennessee Rules of Civil Procedure requires that trial courts make findings of fact and conclusions of law to support their rulings following bench trials. Tenn. R. Civ. P. 52.01 (). Rule 52.01 "is 'not a mere technicality.'" Babcock v. Babcock, No. E2014-01670-COA-R3-CV, No. E2014-01672-COA-R3-CV, 2015 WL 1059003, at *6 (Tenn. Ct. App. Mar. 9, 2015) In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 ). No bright-line test exists to determine whether factual findings are sufficient, but the findings of fact must include as many facts as necessary to express how the trial court reached its ultimate conclusion on each factual issue. Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013) ().
After a thorough review of the trial court's order, we conclude that it is sufficient. The trial court's order spans over six pages. Therein, the trial court discusses the issuance of the statutory injunction, the fact that...
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