Mossbeck v. Hoover, E2020-00311-COA-R3-CV

• Decision Date: 30 April 2021
• Docket Number: No. E2020-00311-COA-R3-CV,E2020-00311-COA-R3-CV
• Parties: SARA MARIE POE MOSSBECK v. JOHN POLLARD HOOVER, JR.
• Court: Tennessee Court of Appeals

SARA MARIE POE MOSSBECK v. JOHN POLLARD HOOVER, JR.

No. E2020-00311-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

January 27, 2021 Session

April 30, 2021

Appeal from the Circuit Court for Hamilton County

No. 99D247

W. Jeffrey Hollingsworth, Judge

This case involves a post-divorce action, in which the father filed a petition for contempt against the mother, alleging that the mother failed to pay her portion of the child's medical expenses pursuant to the permanent parenting plan. The Trial Court denied the father's request that the mother be held in contempt but awarded the father a judgment for the mother's portion of the child's medical expenses. The Trial Court declined to award attorney's fees to the father and ordered that the mother be permitted to make installment payments to the father. We vacate the Trial Court's order permitting the installment payments as being premature. We further modify the judgment against Mother to $38,759.11 upon our determination that the amount paid by the father to Mountain Management and Denials Management was only $1,781.76. We affirm the Trial Court's judgment in all other aspects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in Part, Modified in Part, Affirmed as Modified; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W. MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

John P. Konvalinka and Jillyn O'Shaughnessy, Chattanooga, Tennessee, for the appellant, John Pollard Hoover, Jr.

Harold L. North, Jr., and Nathan L. Kinard, Chattanooga, Tennessee, for the appellee, Sara Marie Poe Mossbeck.

OPINION

Background

Sara Marie Poe Mossbeck ("Mother") and John Pollard Hoover, Jr., ("Father") were married in October 1997 and divorced in June 2000. During the marriage, the parties had one child ("the Child"). At the time of the divorce, the Trial Court entered a final divorce decree adopting a permanent parenting plan that both Mother and Father signed as being proposed in good faith and in the Child's best interest. The permanent parenting plan stated that the parties would share parenting responsibilities for the Child but that Mother's residence was the Child's primary residence. The permanent parenting plan provided that Father would maintain medical insurance for the Child with a deductible not to exceed the current amount of $200. If the deductible increased beyond $200, Father was to be responsible for the excess deductible. Any uncovered medical expense, including any deductible up to $200, is to be divided equally by the parties. The permanent parenting plan states that Father will pay any increase in the amount of the co-pay or unreimbursed expenses as a result of changing health insurance carriers. Concerning health care decisions, the permanent parenting plan further stated as follows:

3.2 MAJOR DECISIONS. Major decisions regarding each child will be made as follows: The mother will send a written decision to the father on all major educational, health care and religious upbringing issues and the father will respond in writing within fifteen (15) days. Mother will consider objectively the father's input and respond within fifteen (15) days with her decision. Any dispute will be resolved by mediation with Mary Ann Zaha. In the event discord continues between the parties, either party may request family counseling to facilitate communication.

3.2.1 HEALTH CARE. The child(ren) will continue under the medical insurance plan of the Father. In the event there are medical expenses not covered by medical insurance, the parents will share those costs equally. Mother and Father will consult with respect to major, non-emergency medical decisions, and either Father or Mother will be entitled to seek a second opinion with respect to the necessity and wisdom of any medical decision. If a second opinion differs in any material respect with the first opinion, a third opinion will be obtained, and the majority opinions will control. The parties have agreed that either parent may make emergency decisions affecting the health and safety of the child(ren). To the extent that the following medical services are not covered by medical insurance, they are approved: eyeglasses or contact lenses, braces, routine annual physical (with the results available to both parents), and periodic dental cleaning with any cavities filled. Decisions not covered hereunder will be made as set forth above.

In April 2012, Father filed a "Verified Petition to Modify and for Emergency Change of Primary Residential Placement." As a result of this petition, Father was given temporary custody of the Child. According to Father, the Child "was getting out of control" and the Department of Children's Services was involved. Father subsequently consulted with an "education consultant," who provided recommendations of placement for the Child. At the recommendation of the consultant, Father subsequently placed the Child in residential programs, including Trails Carolina, Solstice East, and Northwest Passage, due to her behavioral and psychiatric issues. Significant expenses were incurred from these programs that were not covered by medical insurance. Mother signed the treatment consent form for the Trails Carolina program but did not sign the promise to pay for the treatment. Mother claims she informed Father at that time that she was unable to pay for the inpatient treatment programs and did not sign the payment agreements concerning the treatment. Mother testified at trial that Father had informed her that he would "take care of [the cost]." Father, however, did not recall discussing payment to the facility with Mother before the Child went to the facility.

Father filed a petition for contempt against Mother in April 2016 due to Mother's failure to pay her portion of the Child's uncovered medical expenses. In his petition, Father requested that Mother be held in contempt and that Mother be required to pay half the Child's uncovered medical expenses and Father's attorney's fees incurred as a result of the contempt action.

The Trial Court conducted a trial concerning Father's contempt motion over three nonconsecutive days from December 2016 through June 2019, in which three witnesses testified: (1) Father; (2) Matthew Stelzman, an accountant; and (3) Mother. The record also included portions of deposition testimony of Mother, Father, and Rhonda Arnold, Father's sister. On the first day of trial, the Trial Court heard evidence submitted by Father. Father testified and admitted as one of his exhibits a collective exhibit of medical expenses incurred on behalf of the Child.

The Trial Court ended the first day of trial upon its determination that this was more an accounting issue rather than a legal issue. For this reason, the Trial Court referred the case to an accountant to serve as special master in order to sort through the payment and invoice records concerning the medical expenses. The Trial Court memorialized its decision in a written order in which it stated that the matter would reconvene after the accountant had completed his or her analysis of the information. The Trial Court ordered the parties to designate an accountant to review all documentation and make a determination on four specific issues. The Trial Court further ordered Mother to deposit with the clerk of the court the proceeds for medical expenses for the Child she had received from her insurance company.

An accountant, Matthew Stelzman, was engaged to develop an independent analysis and opinion concerning the medical expenses related to the Child. Mr. Stelzman was requested to determine (1) the total amount of medical expenses incurred for the Child; (2) which charges were submitted to the Child's health insurance providers for payment; (3) what charges were paid by each of the health insurance providers and by Father; and (4) if a submitted expense was not paid by the health insurance provider, the reasoning provided for such nonpayment, including whether the expenses were subject to a deductible or co-pay, were out-of-network, or lacked a pre-authorization. Mr. Stelzman submitted a report to the Trial Court providing his opinion on these matters and testified at trial.

Following the conclusion of the trial in this matter, the Trial Court entered an order in August 2019¹ finding as follows in relevant part:

For the reasons set forth below, the Court holds that the Mother is not in willful contempt of this Court's order. However, under the provisions of the Permanent Parenting Plan, the Mother does owe the Father $37,206.34 for reimbursement of medical bills he paid which were not covered by medical insurance.

These parties were divorced June 14, 2000. An Agreed Parenting Plan stated the Father would provide medical insurance for the parties' daughter. Section 1.4 of the Plan also provides that any medical expenses not covered by insurance would be divided equally by the parties. The lone exception to that provision was that the Father would be solely responsible for any annual deductibles exceeding $200.00.

The parties' daughter suffered significant emotional and psychological problems. Custody was given to the Father. Counseling was ordered. Eventually, the Father determined that the daughter needed to participate in some residential treatment programs. The three (3) main programs were Northwest Passage, Solstice East and Trails Carolina. Those programs alone accounted for $161,335.00. The Father wrote checks or submitted his credit card to pay most of these costs. He seeks reimbursement from the Mother for 50% of these and other medical expenses.

Contempt

The Court finds that Sara Marie Mossbeck, the Mother, is not in willful contempt of this Court's order. First, although the Mother knew of the daughter's enrollment in the residential programs, she expressly told the Father she could not afford to pay for them. In addition, the Father admittedthat he did not submit the bills to the

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