In re Khrystchan D.

CourtCourt of Appeals of Tennessee
DecidedJune 26, 2020
DocketM2018-01107-COA-R3-JV
StatusPublished

This text of In re Khrystchan D. (In re Khrystchan D.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Khrystchan D., (Tenn. Ct. App. 2020).

Opinion

06/26/2020 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 10, 2019 Session

IN RE KHRYSTCHAN D. 1

Appeal from the Juvenile Court for Davidson County No. 2014-3129, 1873164, PT-192005, PT-193867, PT-200716 Sheila Calloway, Judge ___________________________________

No. M2018-01107-COA-R3-JV ___________________________________

In this appeal from Juvenile Court, the Mother of the parties’ child appeals the order holding her in criminal contempt for failing to present the child for Father to exercise parenting time and the order changing the child’s surname to that of the Father; the Father appeals the designation of Mother as primary residential parent. Upon a thorough review of the record, we affirm the judgment holding Mother in contempt and designating Mother as primary residential parent; we vacate the judgment changing the child’s surname and remand the case for the court to make specific findings as to whether the name change is in the child’s best interest.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part, Vacated in Part and Case Remanded

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Edmund S. Sauer and Kimberly M. Ingram, Nashville, Tennessee, for the appellant, Crystal D-W.

Tiffany D. Hagar, Lebanon Tennessee, for the appellee, Kenneth A.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Kenneth A. (“Father”) and Crystal D.-W. (“Mother”) are the parents of Khrystchan (“Child”), who was born in December of 2012. On June 9, 2014, Child 1 This Court has a policy of protecting the identity of children by initializing the last names of the parties. 1 Support Services of Tennessee, on behalf of Mother, filed a petition to establish parentage in the Juvenile Court for Davidson County; by order entered July 24, Father was adjudicated to be Khrystchan’s father and his temporary support obligation set. Also on that date Father filed a petition to establish a permanent parenting plan and for custody, which Mother answered on August 22. A hearing was held by the magistrate on September 9, resulting in an order establishing Father’s support obligation, and ordering the parties to attend mediation to resolve the other pending issues in the case. Mediation was held on October 28 but did not result in an agreement.

On December 18, 2014, Mother notified Father of her intent to relocate to Cleveland, Ohio, which she did at the end of the month. On December 22, Father moved the court to adopt the parenting plan that he had originally proposed as a temporary plan; in due course, Mother answered. On January 20, 2015, Father filed a petition opposing mother’s relocation, which Mother answered on May 26.

The magistrate heard the remainder of the State’s original petition, which sought, inter alia, to recover an arrearage of support, as well as Father’s petitions, on December 7, 2015, March 7 and 14, July 1, and September 19, 2016, and entered an order on September 28, 2016, inter alia, allowing Mother to relocate, naming Mother the primary residential parent, adopting a parenting plan, and setting child support (the “September 28 Order.”). Pertinent to this appeal, the parenting plan granted Father parenting time every Thanksgiving holiday beginning at 12:00 p.m. on the Wednesday before Thanksgiving and ending at 12:00 p.m. on the Sunday after Thanksgiving; the parties were to exchange the Child at an agreeable location in Cincinnati, Ohio; either parent was allowed to send a designee to transport Khrystchan to the exchange location; and the parent sending the designee was required to communicate that fact to the other by text or email. On October 3, Father filed a request pursuant to Tennessee Code Annotated section 37-1-107 that the Juvenile Court Judge rehear certain of the matters which had been addressed in the September 28 Order; the motion was granted on October 25, and the hearing set for March 27, 2017.

On November 23, 2016, the day before Thanksgiving, Mother gave birth in Cleveland to her second child. That same day, Father appeared in Cincinnati at the agreed exchange location and stayed for several hours; Mother did not appear with Khrystchan nor did Mother send her with a designee. On December 5 Father filed a petition for criminal contempt, contending that Mother should be held in contempt for failing to produce Khrystchan for the Thanksgiving visitation. He filed a second petition for criminal contempt on February 21, 2017, contending that Mother should be held in contempt for failing to “complete any paperwork necessary to add Father to the minor child’s birth certificate and submit such paperwork to the proper authority,” as required by a previous order entered by the magistrate.

The Juvenile Judge heard Father’s appeal of the portions of the September 28

2 Order, as well as Father’s original petition to implement his proposed parenting plan and the two contempt petitions, beginning on March 27, and continuing on March 28 and 29, June 23, July 10, and September 21, 2017. The court entered a Final Order on November 7, adopting a parenting plan which designated Mother as primary residential parent and granted her 265 days of residential parenting time and Father 80 days, as well as disposing of all other matters; pursuant to Mother’s motion, the court amended the parenting plan in various respects. Mother appeals the holding that she was in contempt of court and the change of Khrystchan’s surname; Father appeals the designation of Mother as primary residential parent.2

II. ANALYSIS

A. Criminal Contempt

Tennessee Code Annotated section 16-1-103 provides: “For the effectual exercise of its powers, every court is vested with the power to punish for contempt, as provided for in this code.” Courts are specifically empowered to “inflict punishments for contempts of court” for the “willful disobedience or resistance of any . . . party . . . to any lawful writ, process, order, rule, decree, or command of such courts[.]” Tenn. Code Ann. § 29-9-102(3). A court may punish a party for contempt by a fine of $50, imprisonment up to ten days, or both. Tenn. Code Ann. § 29-9-103. The use of a court’s contempt power is within the court’s sound discretion and will be reviewed by an appellate court under the abuse of discretion standard. McClain v. McClain, 539 S.W.3d 170, 187 (Tenn. Ct. App. 2017) (citing McLean v. McLean, No. E2008-02796-COA-R3-CV, 2010 WL 2160752, at *3 (Tenn. Ct. App. May 28, 2010)). Further, on appeal “[i]ndividuals convicted of criminal contempt lose their presumption of innocence and bear the burden of overcoming their presumption of guilt.” Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993). Accordingly, “[a]ppellate courts do not review the evidence in a light favorable to the accused and will reverse criminal contempt convictions only when the evidence is insufficient to support the trier-of-fact’s finding of contempt beyond a reasonable doubt.” Thigpen, 874 S.W.2d at 53 (citing Tenn. R. App. P. 13(e)).

In the order holding Mother in contempt, the trial court stated:

…the Court finds beyond a reasonable doubt that Mother had the ability to comply with the Permanent Parenting Plan of September 28, 2016. It is clear that Mother failed to bring child to the exchange. Although the

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Andrew K. Armbrister v. Melissa H. Armbrister
414 S.W.3d 685 (Tennessee Supreme Court, 2013)
Barabas v. Rogers
868 S.W.2d 283 (Court of Appeals of Tennessee, 1993)
Pruitt v. Pruitt
293 S.W.3d 537 (Court of Appeals of Tennessee, 2008)
State v. Braden
867 S.W.2d 750 (Court of Criminal Appeals of Tennessee, 1993)
Thigpen v. Thigpen
874 S.W.2d 51 (Court of Appeals of Tennessee, 1993)
Halloran v. Kostka
778 S.W.2d 454 (Court of Appeals of Tennessee, 1988)
Ferryl Theresita McClain v. Richard Perry McClain
539 S.W.3d 170 (Court of Appeals of Tennessee, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
In re Khrystchan D., Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-khrystchan-d-tennctapp-2020.