S.A.M.D. v. J.P.D.
| Decision Date | 30 September 2013 |
| Docket Number | No. W2013-00314-COA-R3-CV,W2013-00314-COA-R3-CV |
| Parties | S. A. M. D. v. J. P. D. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Shelby County
Appellant/Mother appeals the trial court's post-divorce modification of Appellee/Father's child support obligation, and its finding that Appellant was guilty of various acts of criminal contempt. Appellant/Mother also appeals the trial court's admission of certain evidence. We conclude that the trial court erred in addressing, sua sponte, the issue of modification of Appellee/Father's child support obligation in the absence of a petition for modification as required by Tennessee Code Annotated Section 36-5-101(f)(1). Accordingly, we reverse the modification of child support. The order of the trial court is otherwise affirmed. Father's request for attorney's fees incurred in defense of this appeal is granted based upon provisions in the parenting plan and marital dissolution agreement. Affirmed in part; reversed in part; and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in
Part; Reversed in Part; and Remanded
Drayton Durell Berkley, Memphis, Tennessee, for the Appellant, S. A. M. D.
Vickie Hardy Jones, Memphis, Tennessee, for the Appellee, J. P. D.
Issues of post-divorce modification of the primary residential parent and charges of criminal contempt were previously appealed to this Court in the case of S.A.M.D. v. J.P.D., No. W2011-01256-COA-R3-CV, 2012 WL 5266194 (Tenn. Ct. App. Oct. 25, 2012), perm. app. denied (Tenn. June 19, 2013) ("S.A.M.D. I").1 In the interests of consistency and judicial economy, we review the relevant factual and procedural history as set out in S.A.M.D. I. Plaintiff/Appellant S. A. M. D. ("Mother") and Defendant/Appellee J. P. D. ("Father") were married in 2001 and had one child during the marriage, a son ("Son" or "the child") born in July 2003. S.A.M.D. I, 2012 WL 5266194 at *1. The parties were divorced by order of February 19, 2010. The final decree of divorce incorporated an agreed marital dissolution agreement ("MDA") and a permanent parenting plan ("Parenting Plan"). Id. Under the Parenting Plan, Mother was designated as the child's primary residential parent. Id. Because Father travels extensively for work, the Parenting Plan provided he would have flexible parenting time, six days each month when his work permitted, so long as Mother was properly notified. Id. On June 7, 2010, Father filed a contempt petition against Mother; the petition also sought injunctive relief and attorney fees ("June Contempt Petition"). Id. Father asserted in the petition that Mother had violated the provisions of the Parenting Plan concerning Father's parenting time. Id. Father also alleged that Mother had violated the provisions in the MDA that prohibited harassment and threats and prohibited the parties from placing telephone calls or sending text messages to the other party after 10:00 p.m. except in the event of an emergency involving the child. Id. Father asked the trial court to hold Mother in civil and criminal contempt for violating the Parenting Plan and the MDA, as incorporated into the final decree. Id. He also requested that Mother be required to pay his attorney fees in connection with the motion. Id.
The trial court held a preliminary hearing on Father's June Contempt Petition on the day that it was filed. S.A.M.D. I, 2012 WL 5266194 at *2. On June 18, 2010, the trial court entered a preliminary order, which granted Father's request to exercise parenting time the week of June 7, 2010. Id. (footnote omitted). To curtail Mother's harassment, the trial court enjoined her from coming within 500 feet of Father "at any time or any place pending further orders of the Court." Id. The trial court noted in the order that it had not prohibited Father's girlfriend from being around Son, and so specifically permitted her to be present during Father's parenting time. Id. The order stated that based on Father's petition and the trial judge's own observations, "Mother's mental condition is in controversy," and so, sua sponte, the trial court ordered Mother to undergo a psychiatric evaluation pursuant to Rule 35 of the Tennessee Rules of Civil Procedure "within 30 days of June 7, 2010." Id. The order stated: "The Court requests that the evaluation be completed and a report prepared thereon prior tothe hearing on Father's petition." Id. The trial court set Father's contempt petition for full hearing on July 2, 2010. Id.
On July 2, 2010, the trial court conducted the hearing as scheduled. S.A.M.D. I, 2012 WL 5266194 at *2. On July 15, 2010, the trial court entered a detailed order on Father's June Contempt Petition, which states, in relevant part:
The Court has found Mother in criminal contempt and sentenced her to a total of 50 days in jail. Based on the fact that Mother allowed Father to exercise eleven additional days of parenting time in the month of June 2010, following the filing of Father's petition, the Court will suspend Mother's sentence. However, if Mother violates any order of the Court in the future, she will have to serve the sentence imposed on her by this order.
The July 15, 2010 order also further delineated the parties' parenting rights and obligations. S.A.M.D. I, 2012 WL 5266194 at *2. Specifically, the order permitted Father to have parenting time for half of the child's summer vacation in 2010 and 2011, with proper notice to Mother, and specified that the child could travel with Father during his parenting time, including trips out of the country. Id. It found that Mother had "interfered with Father's ability to communicate with the child by telephone." Id. For this reason, the trial court ordered that Father "shall be allowed to speak with the child by telephone daily," without Mother present in the room during the call. Id. Mother was admonished not to coach the child. Id. The order enjoined both parties from sending text messages or making telephone calls to the other after 9:30 p.m. Central Standard Time, except if there was an emergency concerning the child. Id.
The July 15, 2010 order noted that Mother had provided documentation showing that she had undergone the psychiatric evaluation ordered on June 18, 2010. S.A.M.D. I, 2012 WL 5266194 at *3. It stated that Mother had indicated that a report of the evaluation would be completed within a week of the hearing. Id. In light of this, the hearing on the results of Mother's psychiatric evaluation was reset to allow Mother time to obtain and produce a copy of the report. Id. (footnote omitted). Furthermore, in the July 15, 2010 order, the trial court noted that Son was in need of speech therapy, and it found that the two days per week that the child attended such therapy at school was insufficient. Id. The trial court ordered the parties to "cooperate in scheduling speech therapy for the child" and to "promptly report to the trial court on the status of the speech therapy." Id. (footnote omitted). Finally, Mother was ordered to pay $2,000 of the attorney fees Father incurred in connection with his June Contempt Petition to be paid "at a rate of $200 per month, commencing August 2, 2010, and due on or before the second day of each month thereafter." Id.
On September 22, 2010, Father filed another contempt petition ("September Contempt Petition"), alleging that Mother had continued to disregard the trial court's orders. S.A.M.D. I, 2012 WL 5266194 at *3. Father claimed that Mother had violated the trial court's orders by: (1) failing to cooperate in scheduling his summer parenting time; (2) interfering with his daily telephone access to the child on specified dates during the summer; (3) failing to provide him with a copy of the results of Mother's psychological evaluation; (4) failing to take the child to speech therapy and failing to communicate with Father regarding the speech therapy; and (5) failing to pay Father attorney fees as set out in the July 15, 2010 order. Id. Based on Mother's continued defiance of the trial court's orders, Father asked the trial court to lift the suspension on Mother's 50-day sentence, and to require Mother to serve that sentence as stated in the July 15, 2010 order. Id. Father asked the trial court to place Son in his primary care during Mother's incarceration. Id. Father's September Contempt Petition also included concerns regarding Son's safety and welfare while in Mother's care. Id. Father claimed that Mother had been leaving Son, then seven years old, in the care of her son from a previous relationship, who was 11 years old at the time. Id. He asked the trial court to enter an order requiring that Son be supervised by an adult until he turns 12 years old. Id. Father also requested an award of attorney fees incurred in filing the petition. Id.
On November 16, 2010, Father filed another pleading, amending and supplementing the September Contempt Petition ("Supplemental Contempt Petition"). S.A.M.D. I, 2012 WL 5266194 at *3. This pleading recounted more incidents in which Mother had allegedly refused to cooperate in scheduling Father's parenting time and had used the child to harass Father. Id. For example, Father alleged that Mother used Son to call Father at 12:54 a.m. while Father was working at an out-of-town event with a very early start time the next morning. Id. Father's Supplemental Contempt Petition noted that there was no emergency pertaining to the child and asserted that the purpose of the call was simply to harass Father. Id. The Supplemental Contempt Petition included other concerns about Mother's care of Son. Id. It alleged that during the 2010-2011 school year, Son had been tardy to school ten times, had been absent four days, and had missed portions of three additional school days. Id. All of...
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