Shaw v. Shaw
| Decision Date | 10 August 2022 |
| Docket Number | W2018-00677-COA-R3-CV |
| Parties | KAREN MARCHAND SHAW v. KEVIN MICHAEL SHAW |
| Court | Tennessee Court of Appeals |
KAREN MARCHAND SHAW
v.
KEVIN MICHAEL SHAW
No. W2018-00677-COA-R3-CV
Court of Appeals of Tennessee, Jackson
August 10, 2022
Session April 19, 2022
Appeal from the Circuit Court for Shelby County No. CT-2692-19 Gina C. Higgins, Judge [1]
This appeal involves a multitude of challenges brought to the orders of the trial court in a post-divorce dispute involving minor children. We vacate the trial court's decision to sua sponte order a new parenting plan, as well as to enter a temporary and permanent injunction against Mother. We also reverse the trial court's decision to award Father discretionary costs for expert fees regarding an issue on which he did not prevail. Otherwise, we affirm the rulings of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated in Part, Reversed in Part, and Affirmed in Part
Karen Marchand Shaw, Lakeland, Tennessee, Pro se.
Susan Mackenzie, Memphis, Tennessee, for the appellee, Kevin Michael Shaw.
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY ARMSTRONG and CARMA DENNIS MCGEE, JJ., joined.
OPINION
J. STEVEN STAFFORD, JUDGE
I. FACTUAL AND PROCEDURAL BACKGROUND
This appeal involves contentious post-divorce proceedings spanning nearly a decade. Because of the length of the proceedings, we recount the procedural history of this case only to the extent necessary to address the issues on appeal. The parties, Plaintiff/Appellant Karen Marchand Shaw ("Mother" or "Appellant") and Defendant/Appellee Kevin Michael Shaw ("Father" or "Appellee") were divorced in 2009
in the Shelby County Chancery Court ("the trial court"). At the time of the divorce, the parties' two children were four years old. In January 2013, Mother sent Father notice of a proposed relocation; Father filed a petition objecting to the relocation. Following a bench trial, the trial court denied Mother's proposed relocation. The parties were ordered to file a new parenting plan by consent or to file proposed parenting plans for the Court's review. According to the trial court, Mother's proposed plan was incorrectly designated as agreed and entered by the Court. Father filed a motion to alter or amend to correct the error. Eventually, the trial court entered an order correcting its mistake and reinstating the 2009 parenting plan. In March 2016, Mother then filed a petition to modify the 2009 parenting plan. The trial court, Chancellor Jim Kyle presiding, entered a new parenting plan on August 2, 2016. This plan named Mother as the primary residential parent and provided for a flexible parenting schedule taking into account Mother's variable work schedule.
On August 3, 2016, the trial court entered an order awarding Father attorney's fees covering two periods of time: (1) the litigation involving Mother's request to relocate; and (2) the period of time between the denial of the request to relocate and Mother's petition to modify; the trial court denied Father's request for fees relative to "the resolution of the Petition to Modify." Consequently, the trial court awarded Father $122,660.81 in attorney's fees, while denying Mother's request for attorney's fees. The trial court further found that there was no just reason for delay and that the order should be made final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. On August 9, 2016, the trial court assessed costs against Mother.
Mother filed a notice of appeal to this Court on September 1, 2016 ("the second appeal").[2] The notice of appeal indicates that Mother was appealing the orders entered on August 2, 3, and 9, 2016. On February 24, 2017, Mother, acting pro se, filed a motion to voluntarily dismiss her second appeal. The second appeal was dismissed by order of February 28, 2017. A mandate issued on March 6, 2017.
However, the parties' disputes over the minor children were far from over. On several occasions, Mother attempted to obtain orders of protection against Father and/or his wife on behalf of herself and the minor children in general sessions court. These petitions were eventually transferred to the trial court and voluntarily dismissed upon Mother's motion. Father filed his first petition to have Mother held in contempt for her interference with his parenting time in July 2017. On November 8, 2017, Father filed a verified Second Petition for Writ of Scire Facias and Citation for Civil Contempt and Request for Injunctive Relief. Father filed an amended petition on November 16, 2017, in which he included additional allegations concerning Mother's failure to pay medical expenses. As will be discussed in detail, infra, following a November 20, 2017 hearing, the trial court granted Father's request for permanent injunctive relief by order of
December 4, 2017.[3] Mother responded with her own petition to hold Father in contempt and for injunctive relief, as well as efforts to vacate the permanent injunction.
Father also began his efforts to collect on the attorney's fees judgment, including by filing a lien on Mother's home. Mother strongly resisted Father's collection efforts, in part by continuing to attack the correctness of the August 3, 2016 order awarding attorney's fees. As just one example, on September 26, 2017, Mother filed a motion for relief from the final judgment and to stay its execution. The trial court denied Mother's efforts to obtain relief from the final judgment by order of March 15, 2018. And eventually, Father's efforts to collect on his judgment were rewarded on March 15, 2018, when the trial court granted in part Father's motion to compel the sale of Mother's home to satisfy the judgment under Rule 69.07 of the Tennessee Rules of Civil Procedure. Therein, the trial court ruled that Father could execute on his judgment lien on Mother's home unless one the following conditions was met:
1. The children reach eighteen (18) years of age, unless the children are still in high school
2. If the children are still in high school, Father cannot execute on the lien until the children graduate from high school or the class of which the children are members when the children attain eighteen (18) years of age graduates whichever occurs first.
3. Notwithstanding (1) and (2) directly hereinabove, if Mother is no longer living at the home as her primary residence, Father can immediately execute on the lien.
Mother was permitted to sell the home should she see fit. The trial court also ruled on the issue of interest in this order.
On March 20, 2018, the trial court entered an order ruling on five different pending matters filed by the parties: (1) Father's first contempt petition; (2) Father's amended second contempt petition; (3) Mother's contempt petition; (4) Mother's motion for posthearing facts; and (5) Mother's motion to set aside the permanent injunction.[4] Every request was denied, except that Father's amended second contempt petition was denied in part and granted in part, with the only relief granted was ordering Mother to pay $392.55 toward uninsured medical expenses for the children. The trial court further denied both parties' requests for attorney's fees.
On the same day, the trial court also entered an order titled "Sua Sponte Order
Striking the Permanent Parenting Plan Entered August 2, 2016 and Establishing New Permanent Parenting Plan." Therein, the trial court noted that "[t]here has been virtually no agreement on any topic whatsoever, much less co-parenting, between the parties over ten years. Such animosity nearly rises to the level of rage." As such, the trial court found that the current plan was unworkable. The trial court therefore entered a new parenting plan maintaining Mother as primary residential parent, but awarding the parties equal coparenting time under a rather unique framework.[5]
Relevant to this appeal, Father thereafter filed motions to amend both the ruling on Father's Rule 69.07 motion and the sua sponte order entering a new parenting plan. Mother also filed a premature notice of appeal to this Court. On June 7, 2018, Father also filed an emergency motion for the payment of certain medical expenses.
On June 8, 2018, the trial court entered four orders: (1) an order granting Father $3,793.13 in discretionary costs; (2) an order granting Father $2,344.00 in fees and expenses related to a discovery issue; (3) denying Father's emergency motion concerning medical expenses as moot, but holding Mother's request for the payment of travel expenses in abeyance pending proof as to their necessity; and (4) granting Father's motion to alter
or amend the sua sponte order to correct a misstatement.
The trial court then entered an amended order on Father's Rule 69.07 motion, in which it "enter[ed] an Order of Sale instructing the Shelby County Sheriff to sell Mother's interest in the real property [at issue]." Mother attempted various efforts to avoid the sale of the property, all of which were denied. Eventually, on November 6, 2019, Mother satisfied the August 3, 2016 judgment, and the Sheriff's sale was cancelled.
In the meantime, on July 2, 2018, the trial court entered an amended sua sponte order striking the August 2016 parenting plan and establishing a new parenting plan. The amended order appointed a guardian ad litem for the children and gave specific directions as to the obligations of the guardian ad litem in this matter.[6] Mother thereafter filed a second notice of appeal. Father filed a motion to alter or amend the amended sua sponte order, which was eventually denied by the trial court.
The parties continued to engage in various disputes in the trial court, including, but not limited to concerning the guardian ad litem and her fees, additional medical bills for the children, collection on the August 3, 2016 judgment, and the record in this appeal.[7]Eventually, Chancellor Kyle recused himself, and this matter...
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