State ex rel Groesse v. Sumner

Decision Date18 January 2019
Docket NumberNo. W2016-01953-COA-R3-JV,W2016-01953-COA-R3-JV
Parties STATE of Tennessee EX REL. Heavenney GROESSE v. Christopher Lee SUMNER
CourtTennessee Court of Appeals

Carol J. Chumney, Memphis, Tennessee, for the appellant, Christopher Lee Sumner.

Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant Attorney General, for the appellee, State of Tennessee ex rel. Heavenney Groesse.

Rachael E. Putnam and John D. Woods, III, Memphis, Tennessee, for the appellee, Heavenney Groesse.

Thomas R. Frierson, II, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

Thomas R. Frierson, II, J.

This appeal involves a petition for contempt of court for willful failure to pay child support related to one child. In June 2014, the mother filed a petition for contempt, alleging that the father had not paid his child support obligation as previously ordered by the trial court.1 Following a hearing in July 2014, the trial court magistrate found the father to be in civil contempt of court for willful refusal to pay child support and ordered the father to make a $2,600.00 "purge" payment, which the father did. Upon the father's request, the trial court special judge conducted a rehearing in August 2016, again finding the father to be in civil contempt of court for willful refusal to pay child support. The trial court ordered a purge payment in the amount of $8,525.00, reflecting a child support arrearage that had accrued since the initial contempt hearing. Father has appealed. Discerning no reversible error, we affirm.

I. Factual and Procedural Background

The petitioner in this contempt action, Heavenney Groesse ("Mother"), and the respondent, Christopher Lee Sumner ("Father"), have one child together ("the Child"), who was born in September 2010. Upon Father's petition to establish parentage, the Shelby County Juvenile Court ("trial court") entered an order on May 30, 2012, confirming Father as a biological parent and approving an agreed schedule of temporary supervised visitation with the Child for Father.2 The trial court subsequently entered an order on August 20, 2012, setting Father's initial monthly child support obligation at $1,156.00 and calculating an accrued arrearage in the amount of $26,144.00, to be paid by Father at a rate of $44.00 per month. The court also ordered, inter alia , that the parties were to equally divide medical expenses for the Child and that Father was to pay $750.00 related to Mother's attorney's fees.

According to the August 2012 order, which had been ratified by the trial court judge, the trial court magistrate had conducted a hearing in July 2012 concerning a petition for child support filed by Mother, who was represented by her retained counsel.3 As the trial court also stated in its order, a "Title IV-D attorney" appeared during the July 2012 hearing. We note that the State of Tennessee ("the State") has provided child support enforcement services to Mother pursuant to Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq. Alt hough Father was represented by attorney Darrell Blanton during the July 2012 hearing, Father did not personally appear.

On June 28, 2013, Father, proceeding pro se , filed a petition to modify child support, alleging that his income had been misrepresented in the prior order and requesting a reduction in his child support obligation. Mother filed a petition for contempt and for modification of the prior order on July 16, 2013, averring that Father had not paid his child support as ordered and that he had violated certain provisions of the visitation order. Mother requested, inter alia , that Father be incarcerated until his child support obligation was paid and that his co-parenting time with the Child be reduced. On July 30, 2013, the State filed a petition for citation for contempt of court, also alleging that Father had not paid his child support obligation as ordered. In October 2013, the trial court entered an order dismissing the two petitions by agreement of the parties. The court noted that Father was at that time represented by attorney Milton E. Magee, Jr.

On December 27, 2013, the trial court entered an order approving an agreement announced by the parties. Within this agreed order and attached child support worksheet, the trial court: (1) found Father's stipulated gross income to be $4,850.00 per month; (2) found Mother's stipulated gross income to be $1,750.00 per month; (3) found that Mother would be exercising 227 days while Father would be exercising 138 days of co-parenting time yearly with the Child; (4) reduced Father's child support obligation to $800.00 per month beginning on October 1, 2013; (5) found that Father's child support arrearage had increased by $5,936.00 since the August 2012 order for a total arrearage of $32,080.00; (6) increased Father's arrearage payments to $50.00 per month; (7) ordered Father and Mother to divide the Child's existing medical bills equally; and (8) ordered Father to maintain health and dental insurance coverage on the Child.

On June 18, 2014, Mother initiated the action leading to this appeal by filing a "Petition for Citation for Contempt of Court," alleging that Father had willfully failed to pay child support as previously ordered despite being able to do so. Mother concomitantly filed a petition to modify the December 2013 agreed order, averring that Father's child support obligation should be increased because a "significant variance" existed between the amount of the previously ordered support and what it should be under the Child Support Guidelines. On the same day, Father filed a "Motion to Modify Child Support Order," also averring that a significant variance existed but asserting that the variance warranted a reduction in his child support obligation. On June 27, 2014, Father filed an answer to Mother's petition, claiming his inability to pay child support as ordered. On July 18, 2014, Father filed an amendment to the answer, again proffering his inability to pay child support and attaching several exhibits, including copies of personal and business tax returns, bank statements, checks, and spreadsheets reflecting business expenses.

Following a hearing on the contempt petition conducted by Magistrate Joseph G. Little on July 22, 2014, the magistrate entered findings and recommendations, which were ratified by the trial court judge later on the same day. In its order, the trial court found that Father "was and is able to comply with the Court's order of support and willfully refused to pay," holding Father in civil contempt of court. The trial court ordered that Father would "be confined to the Shelby County Jail for 30 days or until he purge[d] himself of contempt by paying to the Clerk of Court the sum of $2,600.00, a part of the amount he [was] in arrears." The trial court also awarded $3,323.70 in attorney's fees to Mother's counsel. Father tendered the $2,600.00 purge payment to the trial court clerk on the day of the hearing. On July 29, 2014, Father filed a request for rehearing before the trial court judge. The order from the July 22, 2014 hearing was entered on July 30, 2014.

The rehearing did not take place until August 2, 2016, with Special Judge Harold W. Horne presiding.4 In the meantime, asserting that a material change in circumstance had occurred, Father filed a "Petition to Modify, Petition for Contempt, and Petition to Modify Child Support" on January 9, 2015. As to his contempt allegation, Father averred that Mother had not paid half of the Child's outstanding medical bills as required by the December 2013 order. In response, Mother filed an answer, denying all substantive allegations and requesting attorney's fees incurred in defending against the contempt allegation. On January 12, 2015, Mother filed another petition for citation of contempt against Father, again alleging that he had willfully failed to pay child support and asserting that he had failed to pay $3,323.70 in attorney's fees previously awarded to Mother. Following several continuances and the parties' unsuccessful attempt at mediation, the trial court entered an "Order Granting Discovery" upon the parties' joint motion on October 15, 2015.

During the rehearing, the trial court heard testimony from the parties; Father's wife and business partner, M.S.; Father's mother, D.S.; Father's business colleague, W.R.; and a certified public accountant retained by Father as an expert witness, William Robert Vance, Jr. Undisputed testimony demonstrated that Father and M.S. had been married in November 2013 and had a daughter together, who was born in August 2015. Father testified that he was self-employed as a 51% owner of his own insurance business, RS Financial, LLC ("RS Financial"). In 2014, M.S. became a partner in RS Financial with a 49% ownership interest. Father testified that he worked as a financial planner for RS Financial while M.S. was the president of the company, handling marketing and "compliance." M.S. corroborated this testimony. Father testified that he originally shared 50-50 ownership interest in RS Financial with his colleague, W.R. Father acknowledged that W.R. had been removed from the membership list of the company in the 2012 annual report. For his part, W.R. testified that as an independent contractor, he maintained a good working relationship with Father and that they had discussed his becoming a partner in RS Financial. However, W.R. stated that to his knowledge, "the paperwork never got filed" to make him a partner.

Father testified that at the time of trial, all of his income flowed through RS Financial and that he was required to pay other brokers' "1099" commissions as independent contractors before paying himself. Father and M.S. further testified to multiple outstanding debts that they...

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