IN THE COURT OF APPEALS OF TENNESSEE
FILED NICHOLAS HOMER FORTSON, ) C/A NO. 03A01-9611-CV-00363 ) August 28, 1997 Plaintiff-Appellee, ) ) Cecil Crowson, Jr. ) Appellate C ourt Clerk ) APPEAL AS OF RIGHT FROM THE v. ) McMINN COUNTY CIRCUIT COURT ) ) ) ELIZABETH GWENDOLYN FORTSON, ) ) HONORABLE JOHN B. HAGLER, Defendant-Appellant. ) JUDGE
For Appellant For Appellee
SUZANNE MASTERS H. CHRIS TREW Knoxville, Tennessee Higgins, Biddle, Chester & Trew, L.L.P. Athens, Tennessee
OPINION
AFFIRMED IN PART REVERSED IN PART REMANDED WITH INSTRUCTIONS Susano, J.
1 In this post-divorce proceeding, the trial court denied
the petition of Elizabeth Gwendolyn Fortson (Mother) for an
increase in child support and other relief against her former
husband, Nicholas Homer Fortson (Father). The trial court
granted Father’s counter-petition for contempt and sentenced
Mother to seven days in jail for interfering with Father’s
visitation with his minor child, who was 13 years old at the time
of the hearing below. Mother appealed, raising six issues which
present the following questions for our review:
1. Did the trial court err in failing to conduct the criminal contempt proceeding against Mother as though she had been indicted for a criminal offense, thereby violating her federal and state constitutional rights?
2. Does the evidence support the trial court’s finding that Mother was guilty of criminal contempt beyond a reasonable doubt?
3. Does the evidence preponderate against the trial court’s finding that no material change in circumstances occurred so as to warrant an increase in child support prior to December 14, 1994?
4. Does the evidence preponderate against the trial court’s denial of a judgment against Father for a medical expense arrearage owed to the minor child’s psychologist?
5. Does the evidence preponderate against the trial court’s denial of Mother’s request for attorney’s fees?
6. Is Mother entitled to attorney’s fees and court costs for the prosecution of this appeal?
2 I
The parties were divorced in 1989. Mother was granted
sole custody of the parties’ minor child, Nicholas Brock Fortson
(Brock)1, with specific visitation awarded to Father.
In October, 1989, Father filed a petition for contempt,
alleging that Mother had interfered with his visitation rights.
Mother was found to be in contempt and was sentenced to
incarceration for two days; however, that sentence was suspended
“provided there [was] no future showing of disobedience of the
orders of [the] court by her.”
In August, 1990, Mother filed a motion addressing
educational and medical expenses for the minor child. Father
responded to the motion and also petitioned the court to change
custody. The court denied both petitions. Father’s appeal of
the trial court’s refusal to change custody was subsequently
affirmed by this court.2
In the current dispute, Mother filed a petition in
December, 1992, to increase child support, and also requested
that the court find Father in contempt for his refusal to pay a
certain medical bill for Brock’s psychological counseling.
Father filed a counter-petition asking the court to hold his
former wife in contempt for again interfering with his visitation
rights. Among other things, Father’s petition alleged that
1 The child’s date of birth is May 7, 1980. 2 See Fortson v. Fortson, C/A No. 03A01-9104-CV-00123, 1991 WL 170567 (Court of Appeals at Knoxville, September 6, 1991).
3 Mother had denied him Christmas visitation in 1992. On October
18, 1993, the trial court heard proof on the parties’ petitions.
At the conclusion of all the proof, the court took the matter
under advisement and reviewed the entire record in this case,
including the record of the earlier proceedings. Some 19 months
later, the trial court issued a memorandum opinion denying
Mother’s petition for an increase in child support and holding
her in contempt for interfering with Father’s visitation rights.
It sentenced her to serve the original two days of incarceration
that previously had been suspended, as well as five additional
days in jail. The trial court subsequently amended its judgment
to provide for an increase in child support from $450 a month to
$668 per month, retroactive to December 14, 1994. Mother’s
appeal followed.
II
Mother’s first two issues address the trial court’s
finding that she was guilty of contempt for interfering with
Father’s visitation. Mother contends that since the trial court
held her in criminal -- rather than civil -- contempt3, she was
entitled to various procedural safeguards, e.g., notice of the
charges, the opportunity to put on witnesses, the right to
require proof beyond a reasonable doubt, and the right against
self-incrimination. She argues that she was not afforded these
protections, that, consequently, her federal and state
constitutional rights were violated, and that her conviction
3 Mr. Fortson concedes, and we agree, that the contempt proceedings against Ms. Fortson were criminal in nature.
4 should therefore be reversed. She also contends that the
evidence does not support a finding that she was guilty of
contempt beyond a reasonable doubt.
Determinations regarding contempt lie within the
court’s sound discretion and are final, absent any plain abuse of
that discretion. Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993);
Robinson v. Air Draulics Engineering Co., 377 S.W.2d 908, 912
(Tenn. 1964); Sherrod v. Wix, 849 S.W.2d 780, 786 (Tenn.App.
1992). Criminal contempt proceedings are governed by Rule 42(b)
of the Tennessee Rules of Criminal Procedure, which provides, in
pertinent part:
A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such....
Rule 42(b), Tenn.R.Crim.P.4 Tennessee courts have overturned
criminal contempt convictions where proper notice was not given.
See, e.g., Storey v. Storey, 835 S.W.2d 593, 599-600 (Tenn.App.
1992). Thus, it is well-established that a defendant may be
punished for indirect criminal contempt only after he or she has
been given notice and the opportunity to respond to the charges.
State v. Maddux, 571 S.W.2d 819, 821 (Tenn. 1978)(citing Johnson
4 Such notice is not required in cases of direct criminal contempt, i.e., where the conduct constituting the contempt occurs “in the actual presence of the court” and is witnessed by the judge. Rule 42(a), Tenn.R.Crim.P. In the instant case, the alleged contempt was indirect, in that it occurred outside of the presence of the court.
5 v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423
(1971); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69
L.Ed. 767 (1925)).
In addition to notice and a hearing, a defendant in a
criminal contempt proceeding is entitled to other constitutional
protections, including the presumption of innocence, the right to
require proof of guilt beyond a reasonable doubt, and the right
against self-incrimination. Gompers v. Buck’s Stove and Range
Co., 221 U.S. 418, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911);
Storey, 835 S.W.2d at 599. In short, the contempt proceeding
“must be tried as if the party were under indictment.” Kornik v.
Kornik, 3 Tenn.Civ.App. (Higgins) 41, 44 (1913). Accordingly,
the accused must be allowed a “chance to testify and call other
witnesses in his behalf, either by way of defense or by
explanation.” In re Green’s Petition, 369 U.S. 689, 82 S.Ct.
1114, 1116, 8 L.Ed.2d 198 (1962); see also Robinson, 377 S.W.2d
at 913 (“the freest opportunity should always be given [the
accused] to produce his defense.”).
III
On the notice issue, Father’s counter-petition set
forth his allegations of criminal contempt. He charged that
Mother had interfered with his visitation in the past. He prayed
that she be held in contempt “for violating his visitation
privileges,” and specifically
6 [t]hat the Court punish [Mother] by having her serve the two (2) days in the McMinn County Jail as required by the [earlier] Judgment, and [that the Court] provide further punishment for her other violations of the Orders in this case.
It is clear that Father was not seeking his former wife’s
incarceration regarding a transgression which was within her
ability to rectify. He asked that she be jailed for past conduct
which had produced a result, i.e., missed visitation, that could
not be undone. The counter-petition clearly put Mother on notice
that she was charged with criminal contempt.
Mother also argues that she was required to put on her
proof before Father offered his proof, thus violating her right
to require proof beyond a reasonable doubt and her right against
self-incrimination. Mother mischaracterizes what happened below.
Both of the parties in this case were seeking
affirmative relief. Mother filed her petition first and was the
first to call her witnesses. After putting on proof with respect
to her various requests for relief, counsel for Mother engaged
the court in the following colloquy:
MS. LEE: Ms. Fortson -- Your Honor, in the countersuit filed regarding visitation would it be all right if I went ahead and got into that here or do you want to hear from him?
THE COURT: No, I think you ought to go into everything that both offensively and defensively and Mr. Trew do the same.
7 We find that Mother sought the permission of the court
to proceed in the manner now being criticized by her. If the
procedure utilized by the trial court was in error, Mother is
partially responsible for that error and will not be heard to
complain now. Rule 36(b), T.R.A.P.
Mother argues that she was precluded from calling some
witnesses she had available to testify regarding her alleged
interference with Father’s visitation. The record does not
reflect that the trial court refused to hear Mother’s witnesses.
After the parties had testified, the following exchange
took place among counsel and the court:
THE COURT: What other witnesses do you all have and what are they?
MS. LEE: I have Cliff Willard, Your Honor, who is an expert in dealing with children with learning disabilities and will testify as to Brock Fortson’s learning disability and as to what he needs in terms of adaptive material.
He is a specialist in this area dealing with learning disabled children and is in fact is a learning disability person himself and has personal experience in this area.
I also have a witness, two witnesses as to the events that transpired on December 18, regarding this Christmas visitation. I don’t know whether the Court needs additional testimony on that issue or not, but we have that available.
THE COURT: I think you have a witness on that December 18 visit?
MR. TREW: Yes, if the Court wants to hear --
THE COURT: I think I want to just hear Mr. Willard since he’s here to testify. Let’s try to keep it brief.
8 At no time were the witnesses in question called by Mother to
testify. At no time did the court refuse to let the witnesses
testify. The record simply does not support Mother’s contention
that the court refused to let her witnesses testify.
Mother also complains that the court reviewed the
entire court file, as it pertained to the earlier proceedings
between these parties, in making its decision in this case. We
find nothing wrong with this. A trial court may take judicial
notice in a post-divorce proceeding of earlier proceedings
between the same parties in the same divorce case. See Rule
201(b)(2), Tenn.R.Evid. (“A judicially noticed fact must be one
not subject to reasonable dispute, in that it is either (1)
generally known . . . or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.”); see also Mandela v. Reynolds, C/A
No. 01A01-9303-CH-00126, 1993 WL 236607 at *2-3 (Tenn.App., M.S.,
filed June 30, 1993, Todd, J.) (records of prior proceedings
between the same parties in the same case are subject to judicial
notice since they constitute unquestionably accurate sources
under Rule 201(b)(2), Tenn.R.Evid.). This was particularly
necessary in this case since Father was asking that Mother serve
the two days of incarceration that had earlier been suspended.
Mother’s argument is without merit.
As her last argument on the criminal contempt issue,
Mother complains that her guilt was not shown beyond a reasonable
doubt. Again, we disagree.
9 On this particular point, it is important to note the
trial court’s explicit finding regarding Mother’s credibility:
In all matters relating to custody and visitation, this Court, both from the record and from observing her demeanor in Court, cannot accredit any testimony by mother.
“[O]n an issue which hinges on witness credibility, [the trial
court] will not be reversed unless, other than the oral testimony
of the witnesses, there is found in the record clear, concrete
and convincing evidence to the contrary.” Tennessee Valley
Kaolin v. Perry, 526 S.W.2d 488, 490 (Tenn.App. 1974).
There was an abundance of evidence that Mother denied
Father his visitation rights. The trial court found as follows:
The purpose here then is to show a now clear pattern of conduct and lies by a troubled and disturbed parent designed to prevent a normal relationship between the child and the other parent.
* * *
Typical of the manner in which she has interfered with visitation, she offered the father visitation dates for Christmas, 1992, which he accepted. She then reneged by “correspondence” which he never received, eventually requiring the intervention of attorneys for last-minute scheduling of Christmas vacation. Moreover, this is the first time the Court has even seen a laudable activity like the Boy Scouts used to impede a parent/child relationship.
Our review of the record convinces us that Mother intentionally
set out to interfere with Father’s visitation. We find in the
record proof of this beyond a reasonable doubt.
10 We have reviewed all of Mother’s arguments supporting
her contention that the trial court’s criminal contempt decree
should be vacated. We find that all of her arguments are without
merit.
IV
Mother next argues that the trial court erred in
failing to make the increase in child support decreed by the
court retroactive to the date of filing of her petition seeking
an increase. We disagree.
The trial court initially refused to grant Mother any
increase in child support. In its memorandum opinion of October
18, 1993, the court noted that there had been no showing of a
material change of circumstances, stating that
[Mother] has proven only that the father’s income has increased and that her own financial needs, as opposed to those of her son, have increased, primarily because of her inability to remain employed.
After obtaining new counsel, Mother timely filed a “Motion for
New Trial/Motion to Modify Judgment” in which she argued that
there had been a “significant variance” between the child support
previously being paid by Father and the amount due under the
Guidelines, given Father’s present level of income. See T.C.A. §
36-5-101(a)(1); see also Tenn.Comp.R. & Regs., ch. 1240-2-4-
.02(3). She also argued that even prior to the advent of the
“significant variance” test, which was effective December 14,
11 1994, she was entitled to an increase in child support based upon
the old test, which required a showing of a material change of
circumstances. Accordingly, she sought an increase in support
from $450 per month to $668 per month, retroactive to the date of
filing of her petition.
The trial court, after hearing argument on Mother’s
motion, ruled that Mother was entitled to the requested increase
in support, but only retroactive to December 14, 1994. In doing
so, the trial court opined that it was only decreeing such an
increase because it felt that such an increase was mandated by
the new “significant variance” test. The court adhered to its
original decision that there was no basis for awarding an
increase in child support prior to the effective date of the
adoption of the new test.
We do not find that the evidence preponderates against
the trial court’s determination that Mother had failed to show a
material change of circumstances warranting an increase in child
support prior to December 14, 1994. In this case, there was
evidence that Mother’s financial situation was severely impacted
by the fact that she was no longer employed full-time. She
claimed that she needed additional support in order to purchase a
computer for her son, who suffers from a learning disability; but
the evidence was clear that he had access to a computer at
school; that he had been permitted, on occasions, to take it
home; and that he was being served by specialists at school for
his learning disability.
12 Applying the standard set forth in Rule 13(d),
T.R.A.P., we cannot say that the evidence preponderates against
the trial court’s child support decree. We find no abuse of
discretion.
V
Mother contends that the trial court should have
awarded her a judgment for a bill owed to one of the minor
child’s psychologists, Dr. Terry Molnar. The simple answer to
this issue is that Mother did not seek a money judgment. Her
prayer for relief on this matter asked only that Father “be held
in contempt for his willful refusal to pay the counseling bill as
set forth herein.”
In denying Mother’s request for relief as to Dr.
Molnar’s bill, the trial court noted that she had taken the child
to Dr. Molnar, only after “remov[ing] [him] from the psychologist
who, by background, training and experience, was best able to
assist the parties’ son.”
We find no error in the trial court’s refusal to award
Mother any relief pertaining to Dr. Molnar’s bill. In effect,
the trial court found that it was not reasonable and necessary.
We cannot say that the evidence preponderates against this
finding. There was evidence that despite his learning
disability, the parties’ child had been on the honor roll for the
last two years and was one rank from being a Eagle scout. The
evidence supports a finding that this is a fine young man who
13 needs less psychological help, and more support from his mother
in developing a relationship with his father.
Mother’s issue with respect to Dr. Molnar’s bill is
without merit.
VI
In her next issue, Mother argues that the trial court
erred in refusing to award her attorney fees, citing her success
in securing an increase in child support. The issue of attorney
fees addresses itself to the sound discretion of the trial court,
and an appellate court will not interfere absent a showing of an
abuse of that discretion. Elliot v. Elliot, 825 S.W.2d 87, 92
(Tenn.App. 1991); Threadgill v. Threadgill, 740 S.W.2d 419, 426
(Tenn.App. 1987). In this case, Wife was partially successful in
her efforts on behalf of her minor child. Therefore, we find
that she is entitled to an award of attorney’s fees, but only to
the extent her attorney’s charges and expenses are related to the
increase in child support decreed by the court. This case will
be remanded to the trial court for a hearing to determine the
fees and expenses to which Mother is entitled. See Folk v. Folk,
357 S.W.2d 828, 829 (Tenn. 1962). The trial court’s holding that
she is not entitled to an award of attorney’s fees and costs is
reversed.
VII
14 Finally, Mother seeks fees and costs incurred in
connection with this appeal. Since the vast majority of the
issues on this appeal have been found adverse to her, she is not
entitled to such fees and costs.
The trial court’s judgment denying Mother any attorney
fees and expenses at the trial level is reversed. In all other
respects, the judgment of the trial court is affirmed. Costs on
appeal are taxed against the appellant and her surety. This case
is remanded to the trial court for a hearing on the issue of
attorney’s fees and expenses. In all other respects, this case
is remanded for enforcement of the trial court’s judgment and
collection of costs assessed below, all pursuant to applicable
law.
___________________________ Charles D. Susano, Jr., J.
CONCUR:
________________________ Houston M. Goddard, P.J.
________________________ Herschel P. Franks, J.