Strzelecki v. McGriff

• Court: Court of Appeals of Tennessee
• Decided: January 21, 2000
• Docket: M1999-00057-COA-R3-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE FILED January 21, 2000 RUTH S. STRZELECKI ) Cecil Crowson, Jr. (MCGRIFF) ) Appellate Court Clerk ) Plaintiff/Appellee, ) Appeal No. ) M1999-00057-COA-R3-CV VS. ) ) Davidson Circuit ROY D. MCGRIFF, ) No. 94D-4000 ) Defendant/Appellant. )

APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

THE HONORABLE MURIEL ROBINSON, JUDGE

PAUL G. SUMMERS Attorney General & Reporter

MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 Fifth Avenue North Nashville, Tennessee 37243 Attorney for Appellee State of Tennessee

RANDLE W. HILL, JR. Suite 310 222 Second Avenue North Nashville, Tennessee 37201 Attorney for Appellant

AFFIRMED AND REMANDED

BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR: CAIN, J. COTTRELL, J. OPINION

This is an appeal from an order of the Fourth Circuit Court of

Davidson County finding the appellant, Roy D. McGriff, in contempt of court for

failure to meet his child support and alimony obligations and awarding a

judgment of arrearages to the appellant’s ex-wife, Ruth Strzelecki. We affirm the

judgment below.

I.

The parties were divorced in October of 1995 in the Fourth Circuit

Court of Davidson County. The final decree awarded custody of the parties’

only child to the mother and ordered the appellant to pay child support and

alimony. In 1998, the mother attempted to enforce the appellant’s support

obligations in the Rutherford County Circuit Court. In 1999, the mother filed a

petition for criminal and/or civil contempt in the Fourth Circuit Court of

Davidson County alleging that the appellant had failed to pay child support and

alimony as ordered in the original divorce decree and as ordered by the

Rutherford County Circuit Court.

The Fourth Circuit Court of Davidson County awarded to the

mother a judgment of arrearages against the appellant for unpaid alimony in the

amount of $7,200 and arrearages for unpaid child support in the amount of

$13,695. After a hearing, the judge issued a subsequent order finding that the

appellant had lived with the mother and child for a total of two months after the

parties were divorced. The judge therefore reduced the amount of arrearages to

-2- $6,800 and $13,180.54, respectively, but the judge found the appellant guilty of

eighteen separate counts of contempt for failure to pay the court ordered alimony

and child support and sentenced the appellant to serve ten days for each offense

to be served consecutively.

II.

The appellant now contends that the trial court erred in calculating

the child support arrearages. According to appellant, the trial court should not

have calculated the arrearage judgment from the date of the divorce. Instead, the

trial court should have calculated child support arrearages due from the date of

the last child support arrearage judgment awarded to the mother by the

Rutherford County Circuit Court. The appellant argues that the judgment of the

Rutherford County Circuit Court was res judicata as to any child support

payments and arrearages owed prior to the date of that judgment.

We note that the alleged order of the Rutherford County Circuit

Court is not included in the record on appeal. Without such order, we cannot be

certain of the issues determined by that court. The law is well established that

the party relying on res judicata has the burden of proving that the issue was

actually litigated. See Gregory v. Gregory, 803 S.W.2d 242, 244 (Tenn. Ct. App.

1990). Where there is any uncertainty, the doctrine of res judicata does not

apply. See id. As the appellant has failed to supplement the record with

sufficient proof indicating which issues were determined at the former

proceeding, the doctrine of res judicata is not applicable in the case at bar and the

Fourth Circuit Court of Davidson County was not barred from deciding the issue

-3- of arrearages due from the date of the final decree of divorce. See Carter County

v. Street, 252 S.W.2d 803, 806 (Tenn. Ct. App. 1952).

III.

The appellant further contends that the Fourth Circuit Court of

Davidson County did not have jurisdiction over this cause to determine the issue

of arrearages. The appellant argues that when the mother went to Rutherford

County to enforce the child support and alimony decree of the Davidson County

Court, the Davidson County Court lost jurisdiction over the case and could not

modify the judgment of arrearages of the Rutherford County Court. However,

as we have pointed out, there is no evidence in the record of a transfer of this

cause to the Rutherford County Court pursuant to Tenn. Code Ann. §§ 36-5-

3001 to --3008 (Supp. 1999). We also note that a support order may be

transferred to another county for enforcement without a transfer of jurisdiction

to modify the order. See Tenn. Code Ann. §§ 36-5-3101 to --3111 (Supp. 1999).

It must follow that the court that issued the initial support order retains the power

to enforce it.

IV.

The appellant also contends that the trial court erred in finding him

guilty of eighteen separate counts of criminal contempt and imposing

consecutive sentences therefor. Appellant argues that the evidence was

insufficient to support a finding of a willful violation of the court order as is

required by Tenn. Code Ann. § 29-9-102(3). In support of this contention, the

-4- appellant points to several witnesses’ testimony as set out in the statement of the

evidence. These witnesses testified that the appellant was living with the mother

and child for approximately one year after the final divorce decree was issued.

After that year, the appellant was incarcerated for a period of eighteen months.

In addition, after he was released from confinement, the appellant had physical

custody of the child for a period of three months. Appellant claims that, as a

result of this evidence, he could not be found in wilful contempt of the trial

court’s child support and alimony orders during these periods of time and,

therefore, there is not sufficient evidence to support a finding of eighteen

separate counts of contempt.

The appellant was found guilty of criminal contempt. See Storey v.

Storey, 835 S.W.2d 593, 599 (Tenn. Ct. App. 1992). A person convicted of

criminal contempt loses his or her presumption of innocence and bears the

burden of overcoming the presumption of guilt on appeal. Thigpen v. Thigpen,

874 S.W.2d 51, 53 (Tenn. Ct. App. 1993). This Court does not reweigh the proof

and a verdict of guilt will not be disturbed for lack of sufficient evidence unless

the facts contained in the record and any inferences which may be drawn

therefrom are insufficient, as a matter of law, for a rational trier of fact to find the

defendant guilty beyond a reasonable doubt. Black v. Blount, 938 S.W.2d 394

(Tenn. 1996); see also Tenn. R. App. Pro. 13(e).

In this case, the trial court found that the appellant is able bodied,

has the ability to pay his court ordered alimony and child support, is capable of

earning enough money to pay such support, and willfully violated Tenn. Code

Ann. § 29-9-101, et. seq. The only evidence in the record with regard to the

-5- appellant’s inability to pay the court ordered support is a statement of evidence

filed by the appellant. According to the appellant’s testimony, he was unable to

find work and therefore could not pay the court ordered support. In contrast, the

mother testified that the appellant stated that he was employed by at least two

separate employers during two different time periods. Other than this testimony,

the record is sparse with regard to the appellant’s inability to procure work or his

employment history during the relevant time period. Due to the incomplete state

of the record, the lack of a transcript of any proceedings, and the appellant’s

failure to illustrate why the evidence is insufficient to support his conviction, we

affirm the trial court’s order finding the appellant guilty of criminal contempt.

With respect to the the trial court’s finding of eighteen separate

counts of contempt, the court found that the appellant lived with the mother for

only two months after the divorce became final and that he had failed to make

significant contributions to the support of the mother or the child since the

divorce. As the evidence in the record fails to preponderate against these factual

findings, we will presume they are correct. See Tenn. R. App. Pro. 13(d). The

parties were divorced in 1995 and payments of support were to begin on October

1, 1995. The statement of the evidence indicates that the appellant failed to make

any support payments from October of 1995 until October of 1996. Although the

appellant was incarcerated from October of 1996 until February of 1998, he

failed to make any support payments from February of 1998 to May of 1998 and

September of 1998 through December of 1998. In light of the foregoing, the trial

court had more than sufficient grounds upon which to base a finding of eighteen

-6- V.

The appellant next contends that the trial court erred in ordering his

sentences for each contempt conviction be served consecutively for an effective

sentence of 180 days. When there is a challenge to the length, range or manner

of service of a sentence, it is the duty of this Court to conduct a de novo review

with a presumption that the determinations made by the trial judge are correct.

Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). The burden is on the appellant to show the impropriety

of the trial court’s sentence. Tenn. Code Ann. § 40-35–401 Sentencing

Commission Comments.

In the case at bar, the appellant was found guilty of eighteen

separate counts of contempt. Therefore, the trial court had the power to imprison

the appellant for ten days and/or fine the appellant fifty dollars on each count.

See Thigpen v. Thigpen, 874 S.W.2d at 53; Tenn. Code Ann. §§ 29-9-102(3), -

103. With regard to consecutive sentencing, Tenn. Code Ann. § 40-35-115(b)(7)

allows a trial court to impose consecutive sentences where the appellant is being

sentenced for criminal contempt. Furthermore, the matter of determining the

punishment for contempt is within the sound discretion of the trial court and will

not be disturbed absent plain abuse of that discretion. See Robinson v. Air

Draulics Engineering Co., 377 S.W.2d 908, 912 (Tenn. 1964); see also Hawk v.

Hawk, 855 S.W.2d 573, 583 (Tenn. 1993). Based on the record before us, we

-7- cannot conclude that the trial court abused its discretion in ordering the appellant

to serve his sentences consecutively.

VI.

As his final issue, the appellant contends that the trial court erred in

not giving him credit toward his support payments for the period of time he lived

with the mother and child after the divorce. However, the trial court made a

factual finding that the appellant only lived with the mother and child for a two

month period after the divorce. The findings of fact made by the trial court are

presumed correct on appeal unless the evidence preponderates otherwise. Tenn.

R. App. Pro. 13(d). The appellant has not pointed out how the evidence

preponderates against the trial court’s finding. Therefore, the trial court correctly

gave the appellant only two months of credit toward his support obligations.

Accordingly, the decision of the trial court is affirmed. Tax the

costs on appeal to the appellant, Roy D. McGriff . Remand the case to the

Circuit Court of Davidson County for any further proceedings that may become

necessary.

CONCUR:

WILLIAM B. CAIN, JUDGE

PATRICIA J. COTTRELL, JUDGE

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