                                                                                                      06/03/2020
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                              Assigned on Briefs April 15, 2020

    MATTHEW D. VARNEY v. KATHERINE MECHELLE STOOKSBURY

                     Appeal from the Juvenile Court for Knox County
                         No. 123969 Darryl Edmondson, Judge
                        ___________________________________

                               No. E2018-01812-COA-R3-JV
                          ___________________________________


This is a post-custody contempt case. We do not reach the substantive issues because the
order appealed is not final. As such, this Court lacks subject matter jurisdiction over the
appeal, and the appeal is dismissed. Tenn. R. App. P. 3.

                 Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Lance A. Evans and Andrew O. Beamer, Maryville, Tennessee, for the appellant,
Matthew D. Varney.

Charles Child and Sloane Davis, Knoxville, Tennessee, for the appellee, Katherine
Mechelle Stooksbury Sellers.

Susan H. Rushing, Alcoa, Tennessee, for the appellee, Diana McCoy, Ph.D.1

                                             OPINION

                                           I. Background

       Appellant Matthew Varney (“Father”) and Appellee Katherine Stooksbury

1
  During the 2017 custody case, discussed infra, Dr. Diana McCoy, Ph.D. performed a psychological
evaluation of the parties’ child and received a judgment for her fees. On May 7, 2018, Dr. McCoy filed a
motion for criminal contempt against Mr. Varney and Ms. Stooksbury in the Knox County Juvenile Court
seeking enforcement of the judgment for fees. Dr. McCoy’s motion was granted, and she did not file a
responsive brief in this matter.
(“Mother”) were never married but had one child together in October 2012. In 2017,
Father filed a petition for custody in the Knox County Juvenile Court. By order of
August 18, 2017, the Knox County Juvenile Court established Father’s paternity, entered
a permanent parenting plan for the child, and set child support.2

        On May 22, 2018, Mother filed a petition for civil contempt alleging that Father
was in contempt of the Knox County Juvenile Court’s August 18, 2017 because he had
failed to pay child support, birth costs, and the attorney’s fees awarded in that order. The
matter was transferred to the Union County Juvenile Court (“trial court”).

       Following a hearing on August 7, 2018, the trial court entered an order on
September 6, 2018, wherein it held that Father was in contempt for failure to pay the
child support and other financial obligations mandated in the August 18, 2017 order,
supra. The September 6, 2018 order provides, in relevant part:

       1. This Court finds the Respondent Matthew D. Varney in Civil Contempt
       of the prior Order of this Court.
       2. The Respondent/Father had obligation to reimburse Petitioner/Mother
       the sum of $2,105.30 for birth costs and related expenses. Mr. Varney has
       paid nothing, and the Court finds that the prior Order is entitled to full faith
       and credit, and interest has accrued on this obligation at the rate of 4% for a
       period of one year (584.21) which is awarded to Petitioner.
       3. The Respondent/Father had obligation to pay . . . the sum of $20,000.00
       for [Mother’s] attorney fees. Mr. Varney has paid nothing, and the Court
       finds that the prior Order is entitled to full faith and credit, and interest has
       accrued on the obligation at the rate of 5.5% (pursuant to TCA §47-14-12)
       for an additional obligation of $1,100.00. . . . The Court further finds that as
       to this obligation, Mr. Varney shall pay the principal indebtedness over a
       period of twelve months in equal monthly payments, with the first payment
       ($1,666.66) due on or before September 7, 2018.
       4. The Court finds that there was an arrearage figure of $37,344.59. Mr.
       Varney has paid nothing, and the Court finds that the prior Order is entitled
       to full faith and credit, and interest has accrued on this obligation at the rate
       of 4% for a period of one year ($1,493.78) which is awarded to Petitioner.
       As to that award, the Court will increase payments to the sum of $150.00
       per month to be paid on the principal of that award.
       5. The Court further finds that the prior Order of the Court obligated
       ongoing support of $873.00 per month beginning June 2017. For a period

       2
          In response to his Tennessee Rule of Civil Procedure 60.02 motion to alter or amend, on
October 3, 2017, the Knox County Juvenile Court found that Father did not receive notice of the August
18, 2017 order. As such, the court amended its August 18, 2017 order “to reflect entry on September 21,
2017.”
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      of June 2017 through December 2017 and January 2018 through July 2018
      Father has paid nothing. Therefore, additional arrearage has accrued of
      $12,222.00. Payments on that amount are to be an additional $150.00 per
      month.
      6. The Court notes that Father paid $500.00 in August 2018 of an
      obligation of $873.00. Therefore, he has a remaining balance for the month
      of August of $373.00. The payments on the arrearage ($150 + $150) shall
      commence August 2018 and each and every month thereafter, until the total
      of the principal obligation is paid in full.
      7. Although Respondent Matthew Varney is found to be in Civil Contempt
      of the prior Orders of the Court, punishment is withheld pending
      compliance with the future Orders of this Court.

       Father failed to appear at a subsequent status hearing. On September 18, 2018, the
trial court entered an order finding Father in contempt for failure to appear, but it
reserved the question of whether Father had complied with the September 6, 2018 order,
supra. The trial court’s September 18, 2018 order was captioned “In the Juvenile Court
for Knox County, Tennessee,” but it listed the Union County docket number. Upon its
discovery of these clerical errors, the trial court, sua sponte, issued an “Order Setting
Aside and Vacating in its Entirety that Contempt Finding and Order Previously Entered
in the Above Styles Cause.” In relevant part, the trial court ordered:

      1. That said Contempt of Court Finding and Order entered in the above
         styled cause on the said 18th day of September, 2018 is hereby set aside
         and vacated in its entirety;

                                           ***

      2. That a hearing in the above styled cause is set for Tuesday, November
         27, 2018 at 9am in the Juvenile Court for Union County Tennessee.

      3. That all other matters are reserved pending said hearing in the Juvenile
         Court for Union County, Tennessee on said Tuesday, November 27th,
         2018 at 9 a.m.

       On October 3, 2018, Father filed a Notice of Appeal to this Court under Tennessee
Rule of Appellate Procedure 3(a). Father’s Notice of Appeal specifically states that:
“Notice is given that Matthew D. Varney, appeals the final judgment(s) of the Juvenile
Court for Knox County, Tennessee filed on September 6, 2018.” As set out above, the
September 6, 2018 order reserved the issue of punishment for Father’s contempt. On
January 18, 2019, the trial court clerk informed the parties that this Court would “not
accept the appeal until a final order has been entered.” In response to this notice, on
January 30, 2019, Father filed two motions in the trial court. The first, a Tennessee Rule
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of Civil Procedure 60.02 motion, requested that the trial court set aside all orders entered
after May 7, 2018. The second, a motion to dismiss Mother’s contempt petition, alleged
that the trial court lacked subject matter jurisdiction or, in the alternative, abused its
discretion in finding Father in contempt.

      Following a hearing on May 17, 2019, the trial court entered an order on June 11,
2019, which it captions “Final Order”. The trial court first clarified that its order vacating
the September 18, 2018 order was not intended to set aside the previous finding of
contempt as set out in its September 6, 2018 order, supra. The trial court denied Father’s
motions, and further held:

       1. That Respondent, Matthew D. Varney, shall pay $873.00 each month
       with the payment to be made no later than thirty days after the date of this
       hearing (which would be June 16, 2019). Respondent shall pay $873.00
       per month each subsequent month thereafter on the 16 of the month.
       2. That Respondent’s child support arrearage as of this day is $61,921.88.
       Respondent shall pay $1,000.00 per month towards his child support
       arrearage with the first payment made on the 30th day from today (which
       would be June 16, 2019) and shall pay $1,000.00 per month on said
       arrearage on the 16th day of each month until the arrearage is retired.

                                             ***

       4. That Respondent, Matthew Varney, shall pay $200.00 per month towards
       Petitioner’s
       attorney fee[s] of $22,471.66, with the payment to be made no later than
       thirty days after the date of this hearing (which would be June 16, 2019),
       until the balance is paid in full (including accrued interest at the statutory
       rate).
       5. That this Order is a Final Order and subject to appeal.
       6. That this cause is set for a review hearing on the 18th day of October,
       2019 at 9 a.m.


       Father appeals and raises several issues for review. Unfortunately, the order
appealed (i.e., the September 6, 2018 order) is not final. As such, this Court does not
have subject matter jurisdiction over the appeal. Tenn. R. App. P. 3. Subject matter
jurisdiction is a threshold question that cannot be waived. In re Estate of Boykin, 295
S.W.3d 632, 635 (Tenn. Ct. App. 2008). Tennessee Rule of Appellate Procedure 13(b)
provides that this Court “shall . . . consider whether the trial and appellate court have
jurisdiction over the subject matter, whether or not presented for review.” See also First
Am. Trust Co. v. Franklin-Murray Dev. Co., 59 S.W.3d 135, 140 (Tenn. Ct. App.
2001); Tenn. R. App. P. 13(b). Subject matter jurisdiction involves a court’s power to
                                            -4-
adjudicate a matter before it. Id. at 140 (citing Northland Ins. Co. v. State, 33 S.W.3d
727, 729 (Tenn. 2000)). The presence or absence of subject matter jurisdiction is a
question of law that we determine de novo. Northland Ins., 33 S.W.3d at 729; Boykin v.
Casher, 295 S.W.3d 632, 635 (Tenn. Ct. App. Dec. 30, 2008), perm. app. denied (Tenn.
Aug. 17, 2009).

      Father brings this appeal under Tennessee Rule 3(a), which provides:

      In civil actions every final judgment entered by a trial court from which an
      appeal lies to the Supreme Court or Court of Appeals is appealable as of
      right. Except as otherwise permitted in Rule 9 and in Rule 54.02 Tennessee
      Rules of Civil Procedure, if multiple parties or multiple claims for relief are
      involved in an action, any order that adjudicates fewer than all the claims or
      the rights and liabilities of fewer than all the parties is not enforceable or
      appealable and is subject to revision at any time before entry of a final
      judgment adjudicating all the claims, rights, and liabilities of all parties.

A final judgment is one that resolves all the issues in the case, “leaving nothing else for
the trial court to do.” State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct.
App. 1997). As noted above, Father’s October 3, 2018 Notice of Appeal specifies that
the order appealed is “the final judgment(s) of the Juvenile Court for Knox County,
Tennessee filed on September 6, 2018.” However, the September 6, 2018 order was not
a final order because it specifically reserved the issue of punishment, to-wit: “Although
Respondent Matthew Varney is found to be in contempt of the prior orders of the court,
punishment is withheld pending compliance of future orders of this Court.” This Court
has held that “[a] judgment on contempt becomes final upon entry of the judgment
imposing a punishment therefore.” State ex rel. Garrison v. Scobey, No. W2007-02367-
COA-R3-JV, 2008 WL 4648359, at *4 (Tenn. Ct. App. Oct. 22, 2008) (citing State v.
Green, 689 S.W.2d 189, 190 (Tenn. Ct. App. 1984)); see also Rose v. Rose, No. E2005-
01833-COA-R3-CV, 2006 WL 1132086, at *4 (Tenn. Ct. App. Apr. 27,
2006) (“a judgment of contempt, summary or otherwise becomes final upon the entering
of punishment therefor”); Hall v. Hall, 772 S.W.2d 432, 436 (Tenn. Ct. App. 1989)
(“A judgment of contempt fixing punishment is a final judgment from which an appeal
will lie.”); Fletcher v. Fletcher, No. W2003-00715-COA-R3-CV, 2004 WL 298370, at
*7 (Tenn. Ct. App. Feb. 11, 2004) (holding that an order on contempt was not a final,
appealable judgment where the order failed to designate punishment); Long v. Long, No.
01A01-9406-CV-00270, 1995 WL 33741, at *3 (Tenn. Ct. App. Jan. 27, 1995) (“the
mere adjudication of contempt by the trial court is not a final, appealable order.”).
Having reserved the question of punishment for Father’s contempt, the trial court’s
September 6, 2018 order is not final and appealable.



                                           -5-
       That being said, Tennessee Rule of Appellate Procedure 4(d) provides that “[a]
notice of appeal filed before the entry of the [final] judgment shall be treated as filed after
such entry and on the day thereof.” The question, then, is whether the trial court’s June
11, 2019 order constitutes a final judgment in the case such that Father’s October 3, 2018
Notice of Appeal, although prematurely filed, is valid and effective to confer jurisdiction
on this Court. We conclude that it does not.

       The June 11, 2019 order is captioned “Final Order.” As set out above, it
specifically states that, “this Order is a Final Order and subject to appeal.” What is
absent from the June 11, 2019 order is an adjudication of punishment for Father’s
contempt. Again, an order adjudicating contempt but withholding punishment is not a
final, appealable order. Hall, 772 S.W.2d at 436; Fletcher, 2004 WL 298370, at *7;
Long, 1995 WL 33741, at *3.

     Nonetheless, Tennessee Rule of Civil Procedure 54.02 provides an alternative
mechanism for finality of judgments, to-wit:

       When more than one claim for relief is present in an action, . . . the Court .
       . . may direct the entry of a final judgment as to one or more but fewer than
       all of the claims . . . upon an express determination that there is no just
       reason for delay and upon an express direction for the entry of judgment. In
       the absence of such determination and direction, any order or other form of
       decision, however designated, that adjudicates fewer than all the claims or
       the rights and liabilities of fewer than all the parties shall not terminate the
       action as to any of the claims or parties, and the order or other form of
       decision is subject to revision at any time before the entry of the judgment
       adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added). Under Rule 54.02, the fact that the trial court designated the June 11,
2019 as a “Final Order” is not dispositive of its finality. “[T]he mere recitation that an
order is final, without more, does not, ispo facto, bestow jurisdiction on us over an
otherwise interlocutory order.” Cooper v. Powers, No. E2011-01065-COA-R9-CV, 2011
WL 5925062, at *5 (Tenn. Ct. App. Nov. 29, 2011). Likewise, the trial court’s statement
that the June 11, 2019 “Order is a Final Order and subject to appeal” is ineffective
because it does not comply with the specific requirements of Rule 54.02. For an order to
be made final by operation of Tennessee Rule of Civil Procedure 54.02, the trial court is
required to make an “express determination that there is no just reason for delay” and “an
express direction for the entry of judgment.” As explained by the Tennessee Supreme
Court:

       Such certification by the trial judge creates a final judgment appealable as
       of right under Rule 3 [of the Tennessee Rules of Appellate Procedure]. In
       the absence of such direction and determination by the trial judge, the order
                                            -6-
       is interlocutory and can be revised at any time before the entry of judgment
       adjudicating all the claims and rights and liabilities of all parties. Stidham
       v. Fickle Heirs, 643 S.W.2d 324, 325 (Tenn. 1982).

Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983). Tennessee Courts have strictly
construed the substantive requirements under Rule 54.02. See Harris v. Chern, 33
S.W.3d 741, 744 (Tenn. 2000) (“Rule 54.02 requires that a judgment disposing of fewer
than all of the claims or fewer than all of the parties is final only when the trial court
makes ‘an express determination that there is no just reason for delay and upon an
express direction for the entry of judgment.’ Tenn. R. Civ. P. 54.02.”); Shofner v.
Shofner, 181 S.W.3d 703, 713 (Tenn. Ct. App. 2004) (stating that “finality arises only
when the trial court has expressly directed the entry of a final judgment because no just
reason for delaying the entry of a final judgment exists”); In re Estate of Rogers, No.
M2015-01439-COA-R3-CV, 2016 WL 6087662, at *4-6 (Tenn. Ct. App. Oct. 17, 2016)
(finding that the trial court failed to make a specific finding that there was “no just reason
for delay” of entry of a final judgment); Heritage Operating, LP v. Henry Cty. Propane
Gas, Inc., No. W2011-01162-COA-R3-CV, 2012 WL 2989120, at *3 (Tenn. Ct. App.
July 23, 2012) (“The courts of this State have continued to adhere to the clear
requirements of Rule 54.02 that a trial court may direct the entry of a final order as to
fewer than all of the claims or parties only if it expressly directs that the order be made
final under the rule and makes an express finding that there is no just reason for delay.”).

       As set out above, neither the September 6, 2018 order nor the June 11, 2019 order
contains the required Rule 54.02 language. Specifically, neither order expressly states
that there is no just reason for delay of entry of a final order. In the absence of this
language, and in the absence of an adjudication of punishment for Father’s contempt,
neither order is final so as to confer subject matter jurisdiction over the appeal to this
Court. Tenn. R. App. P. 3(a); accordingly, we dismiss the appeal.

        In the posture of Appellee, Mother asks this Court to award her attorney’s fees and
costs accrued in defense of the appeal. “‘Whether to award attorney’s fees on appeal is a
matter within the sole discretion of this Court.’” Luplow v. Luplow, 450 S.W.3d 105, 120
(Tenn. Ct. App. 2014) (quoting Hill v. Hill, No. M2006-02753-COA-R3-CV, 2007 WL
4404097, at *5 (Tenn. Ct. App. Dec. 16, 2007)). “In determining whether an award is
appropriate, we take into consideration the ‘ability of the requesting party to pay the
accrued fees, the requesting party’s success in the appeal, whether the requesting party
sought the appeal in good faith, and any other equitable factor that need be considered.’”
Id. (citing Hill, at *6). Taking these factors into account, we decline to award Mother her
appellate attorney’s fees and expenses.




                                            -7-
                                    VI. Conclusion

        The appeal is dismissed for lack of subject matter jurisdiction. Mother’s request
for appellate attorney’s fees is denied, and the case is remanded for such further
proceedings as may be necessary and are consistent with this opinion. Costs of the
appeal are assessed to the Appellant, Matthew D. Varney, for all of which execution may
issue if necessary.




                                                _________________________________
                                                KENNY W. ARMSTRONG, JUDGE




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