D v. K

917 S.W.2d 682
Court of Appeals of Tennessee·Decided September 29, 1995·Published·Cited by 76 cases

Opinions

OPINION

SUSANO, Judge.

This is a post-divorce case. Appellant, the mother of the minor children at the center of the instant controversy, sought a modification of the parties’ final judgment of absolute divorce in order to restrict her former husband’s visitation with their five year old twin sons. In the same pleading, she asked for a finding of contempt and attorney’s fees. The appellee filed a counterclaim alleging that the appellant had herself been guilty of contempt when she denied him weekend visitation on one occasion. The trial court denied the appellant’s request that the appellee’s visitation be supervised; found both parties in contempt of court; and denied the appellant’s prayer for attorney’s fees. Mother2 appeals, raising issues that present the following questions for our review:

1. Does the evidence preponderate against the trial court’s finding that Mother was in contempt of court?
2. Does the evidence preponderate against the trial court’s determination that Father’s visitation should not be supervised?
3. Is Mother entitled to an award of attorney’s fees and expenses?

I

The parties were divorced on December 22, 1993. The final judgment approved and incorporated the parties’ marital dissolution agreement, which agreement placed the custody of the parties’ twin sons with Mother subject to Father’s specified visitation. As later modified by the parties, Father’s visitation time included one out of every three weekends.

The divorce was granted to Mother based upon Father’s adultery with a woman infected with the HIV virus. Father later married his paramour.3 Because of Father’s continuing relationship with an HIV positive individual, the parties agreed to, and the court incorporated, a number of restrictions on Father’s visitation, including an injunction on Father “[hjaving [his present wife] in the children’s presence, or in [her] close proximity.” The final judgment also enjoined Father from “permitting the children to sleep in the same bed that [Father had] used in the past.” The divorce judgment also incorporated the parties’ agreement that Father would have periodic blood tests and would “arrange for the results of the ... tests to be sent directly to [Mother].”

[684] The restrictions placed on Father’s visitation, as agreed to by the parties, were the same as those that had been imposed by the Chancellor at a pendente lite hearing following two days of testimony. His memorandum opinion and order entered following that hearing, indicated that the restrictions were, at least in part, prompted by his finding that

[t]he twins were premature and their immune systems were slow developing. As a result, the parties had to be and have continued to be very cautious from a sanitary standpoint in their handling of the boys.

In the same memorandum opinion and order, the Chancellor stated that he was placing some eight restrictions4 on Father’s visitation. The reasons he gave for these “precautions” were

... 1) because of the lack of development of the children’s immune systems and 2) because of the defendant’s irrational behavior in continuing to place himself at risk.

II

Shortly after the divorce was final, Mother learned that the children were sleeping with Father during the latter’s visitation. She hired a private investigator who conducted surveillance of Father and the children at a motel on the weekend of April 22, 1994. Because the final judgment prohibited Father from having the children around his wife, he had elected to exercise his weekend visitation at a motel. The investigator reported to Mother that Father had left the children unsupervised at the motel for over five hours during the weekend of April 22, 1994.

On April 29, 1994, based upon the investigator’s report, Mother filed the petition in the instant case. As relevant to this appeal, Mother alleged Father was in contempt of court because he was permitting his sons to sleep with him and because he had failed to have his blood tests sent directly to her. Mother also sought an order directing that Father’s visitation be supervised. She also asked for attorney’s fees.

While Mother’s petition was pending, she refused to let Father exercise his visitation for the weekend of May 20, 1994, unless he would agree to supervised visitation. When he refused, Mother did not permit the scheduled visitation. This prompted Father to file his counterclaim for contempt.

The trial court held a hearing on the parties’ competing pleadings. At the conclusion of the hearing, the court filed its memorandum opinion and final order. The court concluded that Father was “technically” in contempt because he let the children sleep in his bed and because he failed to have his blood tests sent directly to Mother. He also found Mother to be guilty of “technically violating” the final judgment for the missed weekend visitation. He did not order any punishment for the “technical violations” of either of the parties; but he did admonish the parties to comply “with the letter and spirit” of the final judgment. Although finding that Father’s supervision on the weekend in question “left much to be desired,” he refused to require Father to have another supervise his visitation, but did amend the final judgment to require “[Father] to provide proper and adequate supervision of the children at all times during visitation periods.” Finally, as pertinent here, he denied Mother’s request for attorney’s fees.

Ill

The trial court found that Mother was guilty of a “technical violation” of the final judgment because she refused to allow Father to exercise his visitation during the weekend of May 20, 1994. Mother admitted that she told Father that she would not make the twins available to him that weekend unless he agreed to supervised visitation, a condition not prescribed in the final judgment.

This court addressed the issue of a party’s failure to follow a court order in the case of Sherrod v. Wix, 849 S.W.2d 780 (Tenn.App.1992):

Determining whether its order has been followed is the prerogative of the trial court, (citation omitted) and is uniquely [685] within the trial court’s discretion, (citation omitted).

Id. at 786. There is no doubt that Mother had violated the final judgment; she admitted that she had. She argues that her violation was justified — that she only did what any other custodian would have done under the same circumstances. Our response to this is twofold. First, Mother knew, when she attempted to mandate a condition not found in the final judgment, that Chancellor Cate had rejected her request for a temporary restraining order with respect to supervised visitation when he signed a fiat on April 29, 1994, following the filing of Mother’s petition. Despite this knowledge, she persisted in her insistence that the visitation on May 20, 1994, be supervised. This she could not do, under the circumstances of this case, without running the risk of a finding of contempt.

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D v. K, 917 S.W.2d 682 (Tenn. Ct. App. 1995).

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