               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               November 9, 2012 Session

       MICHAEL RAY ADKISSON v. TONYA SUZETTE ADKISSON

             Appeal from the General Sessions Court for Blount County
                  No. S-11655    William B. Brewer, Jr., Judge

                   _________________________________________________

              No. E2012-00174-COA-R3-CV-FILED-MARCH 11, 2013
                   ________________________________________________


       After a 2006 divorce, both parties petitioned the trial court in 2009 for a
modification of the parenting plan and to hold the other parent in contempt. The trial
court slightly modified the parent visitation schedule and held the father in contempt for
violating the parenting plan’s provisions on spring break and medical expense
reimbursement. On appeal the father asserts that the trial court erred in the contempt
rulings, in not giving him primary custody or substantially equal parenting time and in not
holding the mother in contempt. We reverse the father’s contempt for his actions during
spring break. In all other respects we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
Reversed in Part and Affirmed in Part.

B EN H. C ANTRELL, S R. J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY and NORMA M CGEE OGLE JJ., joined.

John K. Harber, Chattanooga, Knoxville, Tennessee, for the appellant, Michael Ray
Adkisson.

Sally A. Goade, Knoxville, Tennessee, for the appellee, Tonya Suzette Adkisson.

                                        OPINION

                     I. FACTS AND PROCEDURAL HISTORY


        This action began on February 11, 2009 when Tony Suzette Adkisson (mother)
filed a petition to modify the parenting plan entered in a final divorce on March 29, 2006.
The petition also prayed for a finding of contempt against the father, Michael Ray
Adkisson, for failing to comply with the parenting plan’s provision for medical
reimbursement and visitation during spring break.

        Father filed an answer and counter-petition seeking a modification of the parenting
plan to provide that he become the primary or equal residential custodian. He also prayed
for a judgment of contempt against the mother for failing to return his personal property,
her failure to reimburse him for shared medical expenses and for violating the parental
bill of rights.

        After two days of proof in March and July of 2011, the court filed an order on
September 7, 2011, a clarification on November 30, 2011 and a further clarification on
December 27, 2011. Taking all the orders together the court’s final judgment included
the following findings and orders relevant to this appeal:

       1. That although a material and significant change of circumstances had
       occurred, the best interest of the children required that mother remain the
       primary residential parent and be the sole decision-maker under the four
       areas set forth in the original parenting plan.

       2. That father’s co-parenting time be extended from Thursday every other
       week after school until the children returned to school on Monday morning.
       When school is not in session the father’s time will begin at 1:00 pm on
       Thursday and end at 9:00 am in Monday morning. The original parenting
       plan required father to return the children to mother at 6:00 pm on Sunday
       evenings every other week. The extra overnight was substituted for two
       evenings every other week from the end of school to 7:15 pm.

       3. That the father was in contempt of court for failing to reimburse mother
       for his share of the children’s medical expenses and for not returning the
       children to mother in accordance with the parenting plan’s provision
       regarding their spring break. Punishment was reserved conditioned on
       future compliance with the court’s orders.

       4. That the mother was not in contempt for her failure to reimburse father
       for her share of the children’s medical expenses, for failing to return his
       personal property or for violating the parental bill of rights.

       5. That mother was entitled to recover her attorney’s fees and discretionary

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       costs from father. The court set the award at $17,500.
       Father appealed.

                                  I. Modifying the Parenting Plan

       The father’s first issue on appeal asserts that the parenting plan should be modified
to give him substantially equal co-parenting time with the children.

        The trial court may modify a child custody award when both a material change of
circumstances has occurred and a change of custody is in the child’s best interests.
Kendrick v. Shoemaker, 90 S.W.3d 566 (Tenn. 2002). The trial judge found that there
had been a material change of circumstances in this case and neither party has appealed
that part of the judgment

       Therefore, the sole question here is whether it would be in the children’s best
interest to give father substantially equal co-parenting time.

          The best interest analysis starts with the factors found in Tenn. Code Ann. § 36-6-
106(a):

       (1) The love, affection and emotional ties existing between the parents or
       caregivers and the child;

       (2) The disposition of the parents or caregivers to provide the child with
       food, clothing, medical care, education and other necessary care and the
       degree to which a parent or caregiver has been the primary caregiver;

       (3) The importance of continuity in the child's life and the length of time the
       child has lived in a stable, satisfactory environment; provided, that, where
       there is a finding, under subdivision (a)(8), of child abuse, as defined in
       §39-15-401 or §39-15-402, or child sexual abuse, as defined in §37-1-602,
       by one (1) parent, and that a nonperpetrating parent or caregiver has
       relocated in order to flee the perpetrating parent, that the relocation shall not
       weigh against an award of custody;

       (4) The stability of the family unit of the parents or caregivers;

       (5) The mental and physical health of the parents or caregivers;

       (6) The home, school and community record of the child;


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      (7) The reasonable preference of the child, if twelve (12) years of age or
      older; The court may hear the preference of a younger child on request.
      The preferences of older children should normally be given greater weight
      than those of younger children;

      (8) Evidence of physical or emotional abuse to the child, to the other parent
      or to any other person; child abuse, as defined in §39-15-401 or §39-15-
      401, or child sexual abuse, as defined in §37-1-602,

      (9) The character and behavior of any other person who resides in or
      frequents the home of a parent or caregiver and the person's
      interactions with the child; and

      (10) Each parent’s or caregiver's past and potential for future
      performance of parenting responsibilities, including the willingness and
      ability of each of the parents and caregivers to facilitate and encourage
      a close and continuing parent-child relationship between the child and
      both of the child's parents, consistent with the best interest of the child...

         In addition, the same code section exhorts trial judges to consider all other
“relevant” factors, including the child’s need for stability, in fashioning a custody
arrangement that permits both parents to enjoy the maximum participation possible
in the life of the child consistent with the ten listed factors.

       At the time of the first hearing below, the parties’ oldest child, J.A., was
almost thirteen and the youngest child, Z.A., was almost eleven. J.A. testified at the
hearing on his father’s behalf. He testified that in the past his mother would deny
him the right to call his dad on the home phone. Now that he has his own cell phone,
she tries to distract him to prevent him from calling. Regarding the visitation
schedule, he said he didn’t like the dinner nights; he thought they were a waste of
time. His preference would be to spend equal time with his parents, staying with
each in alternating weeks. On cross examination he said he had told a therapist a lot
of bad stuff about his father because his mom told him to. He did admit that his
father had told him that if he didn’t say he wished to stay with the father, the judge
would put their visits under supervision.

      The therapist had testified earlier that the children had opened up with her
early on and shared their feelings about their problems, most of which revolved
around their father’s treatment of them. They were unhappy that father recorded

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them on video at every exchange with the mother, and at football practice. They
complained that he told them what to say and grilled them constantly. Although the
therapist encouraged father to participate in the therapy sessions, he attended only
on session. He concluded that the therapist was somehow involved in a conspiracy
to harm him. In a series of reports to father over a three year period the therapist
detailed the children’s concerns about being taped when they talked to him. The
children said that although father tried to hide the fact that their conversations were
being taped, the children knew it and hated being grilled about what had been
discussed in the therapy sessions. Their discomfort over the issue finally persuaded
the therapist that their sessions were doing more harm than good.

       The therapist expressed an opinion that the father emotionally abused the
children by taping them, grilling them and making them “a rope in a tug of war.”
She said that in her years of practice she had never seen such bad conduct on the
part of a parent. She also expressed an opinion that if the children had expressed a
desire for equal co-parenting, they had been manipulated and coerced by the father.

       The trial judge made extensive findings of fact relative to the father’s
insistence on videotaping the mother at every encounter:

      ....

      xiii. Shortly after the Court hearing described above on the mother’s
      petition for permanent injunctive relief relative to Maryville Christian
      School, the father began to videotape the mother and sometimes the
      parties’ minor children on every occasion that they came in contact
      with one another which included but was not limited to the exchange of
      the parties’ minor children, attendance at ball games, attendance at
      karate events, attendance at sports practices, attendance at school
      functions, and attendance at any other extracurricular activities of the
      children where both the mother and father were present.

      xiv. The father both before and after the above described Court
      hearing also consistently made secret recordings of the mother, the
      children’s schoolteachers, the children’s school administrators, the
      children’s medical providers, and basically any other person that he
      came in contact with relative to any issue relating to the parties’ minor
      children or the mother


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      xxiv. In the videos the father is obviously making the minor children
      uncomfortable in attempting to get them to come from the mother’s car
      to his car in an effort to intimidate the mother and control the child.
      The children appear torn and uncomfortable in the videos.

      xv. In another video, it rises to the level of such harassment that the
      child’s Midget League coaches confront the father and advise him not
      to have the video camera back at practice as the football practice is
      supposed to be about the children and not the place for this type of
      conduct.

      xvi. The father tries to justify his video taping saying the same is to try
      to protect him from the mother taking an order of protection when the
      proof in this case shows that the mother took one order of protection at
      the beginning of the original divorce which was ultimately dismissed
      when the divorce was resolved. The mother had never taken any other
      petition for order of protection against the father and the father has
      presented no credible evidence of any type whatsoever that the
      videotaping that he was conducting was in any way justified to protect
      himself.

      xvii. The above described videotaping of the mother by the father was
      not justified under any circumstances whatsoever and in fact was a tool
      of aggression used by the father to harass and intimidate the mother
      and was not a defensive tool as the father has maintained.

      xviii. The above described videotaping of the mother and the parties’
      minor children by the father was detrimental and harmful to the
      parties’ minor children and not in their best interest.

      xix. The father has narcissistic and controlling behavior traits such
      that he addresses most issues relating to the children without regard
      for the children’s welfare but from a perspective of how he is affected
      by decisions made.

      In addition, the trial judge made the following finding with respect to the
therapy sessions:

      ....

      xxxviii. The proof also shows that the father interrogated the grilled

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      the children relative to therapy sessions with Dr. Flagler and that he
      intimidated and coerced the children into making statements which he
      felt would be beneficial to him and he recorded the same. The father
      denies such interrogations and grilling and the Court finds the father’s
      testimony to be uncredible on this issue. The Court finds the father’s
      conduct in interrogating and coercing the children to be contrary to
      their best interests.

        The trial judge also found the therapist to be a credible witness who had the
children’s best interest at heart. With respect to J.A.’s testimony about his mother’s
actions, the trial judge said, “I just, frankly had to discount a lot of what the child
testified. I just didn’t find it to be believable to a certain extent.”

      On the other hand, the father insists that the mother instructed J.A. to lie to
the therapist; that she has attempted to marginalize and minimize his role as a
parent. He points to an instance where J.A. was hospitalized for a test and father
was not notified. When he showed up the mother had him removed by security.
Mother has another habit of removing school information from the boy’s backpacks
before visits with the father. She refused to allow the children to obtain passports so
they could enjoy trips abroad with the father, and she refused to implement a 504
treatment plan at school to better address J.A.’s treatment for juvenile diabetes.

       Considering the ten factors set out in Tenn. Code Ann. § 36-6-106(a), it
appears that factors (1)(2)(4)(6) and (9) do not favor one parent over the other.
Factors (3) and (6) favor continuation of the current plan. There is no proof that the
children’s grades have suffered or that their social development has been adversely
affected. Factors (5), (8) and (10) favor the mother. While this Court does not label
the father as mentally ill, the zeal with which he tries to prove himself right and the
lengths he goes to show everyone else is against him clouds his judgment with
respect to the best interests of the children. This Court concurs in the trial court’s
conclusion that the compulsive videotaping of the mother and children was harmful
to the children and not in their best interests.

       Factor (7) favors the father. J.A. did testify that he would like to spend equal
time with his parents. It is not clear how much the trial judge discounted that
testimony, but giving it full credit, it is only one factor and does not indicate he is
seriously unhappy with the current plan.



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       A trial court has broad discretion regarding a custody determination, which
will not be disturbed absent an abuse of that discretion. Kendrick, at 566. We
cannot find that the trial judge’s refusal to name the father as the primary
residential parent or to give him substantially equal co-parenting time was an abuse
of that discretion.




                               II. Father’s Contempt

                             a. The Spring Break Issue

     The trial judge found the father in contempt for violating the parenting plan’s
provision regarding visitation during spring break.

      The parenting plan provided the following under the heading, Spring
Vacation:

      The day-to-day schedule shall apply except as follows: The parties
      shall alternate Spring Vacation with the mother having the children in
      odd years and the father having the children in even years.

       The term “Spring Break” is not defined in the parenting plan. It is defined in
the school calendar as the school days actually missed during the break.

       In 2010 the father took the children on the Thursday or Friday (when school
let out) the week before spring break on a trip to New York. That week-end was the
mother’s normal parenting time. The children were with the father all the next
week and returned to the mother on a Sunday evening nine days later.

       The mother testified that she was willing to let the children go on the trip if
the father would make it up to her soon. He refused to make that promise and he
said they would treat the schedule the same way in the future and she could have the
children with her through the whole nine day period even though it affected his
parenting time. The first day of the hearing below was during the spring break in
2011. Mother testified that the children would be with her through the weekend
even though that week was father’s weekend under the usual schedule. The parties
observed the same schedule during spring break in 2009.


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      The trial judge’s conclusions on the issue include the following:

      viii. The father deceitfully lied to the mother by telling her that he
      wanted the weekend before spring break due to the trip but he would
      return the children to the mother for the weekend following spring
      break, in essence exchanging the weekends with the mother. She
      complied with the father’s request and allowed the children to go to
      New York and upon their return the father refused to return the
      children to the mother for the weekend.

      x. The father by deceit and deception deprived the mother of her co-
      parenting time on Thursday, Friday, Saturday and Sunday prior to
      spring break.

       We think the trial judge’s conclusions are not supported by the evidence. The
mother testified that she agreed to let the children go with the father when they got
out of school the week before the actual break – but she didn’t testify that he
promised to bring them back to her the next week-end. Her testimony was that he
said he would make the same concession to her the next year – as he had the year
before. Father adamantly denied making the promise. The next year she kept the
children through his normal weekend.

      Beyond the deceit issue, however, we are not convinced that the spring break
was so well defined that a person of ordinary prudence would have known that the
weekends on both sides of the actual week school was out were not included.
Especially since the parties had treated them as being included in 2009. Many
parents would consider themselves and the children to be on spring break on the
weekends before and after the days classes had been suspended.

        As the Supreme Court has said, “vague and ambiguous orders that are
susceptible to more than one reasonable interpretation cannot support a finding of
civil contempt.” Konvalinka v. Chattanooga – Hamilton County Hospital, 249 S.W.3d
346 at 356 (Tenn. 2008). “Ambiguities in an order alleged to have been violated
should be interpreted in favor of the person facing the contempt charge.” Id.

       Whether the standard to be applied in reviewing this part of the order is a
preponderance of the evidence (civil contempt) or beyond a reasonable doubt
(criminal contempt) the proof does not support a finding of contempt for violating
the spring break provision in the parenting plan.


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      The lower court’s order holding father in contempt for violating the spring
break provisions of the parenting plan in 2010 is reversed.

                   b. The Medical Expense Reimbursement Issue

      The trial judge also held the father in contempt for failing to comply with the
parenting plan’s provisions concerning the payment of his share of the uncovered
medical expenses.

      The parenting plan provision reads as follows, under the heading Health and
Dental Insurance:

      ....

      Uncovered reasonable and necessary medical expenses and supplies,
      which may include but is not limited to, deductibles or co-payments,
      eyeglasses, contact lens, routine annual physicals, and counseling will
      be paid by ( ) mother ( ) father ( x ) the parents will be responsible
      for one-half of the above expenses. After insurance has paid its
      portion, the parent receiving the bill will send it to the other parent
      within ten days. The other parent will pay his or her share within 30
      days of receipt of the bill.

      The court’s conclusions on this issue include the following:

      ....

      ii. The father is found to be in willful contempt of Court for his failure
      to reimburse the mother for medical expenses incurred because he
      willfully and without justification denied payment of the counseling
      expenses for Dr. Katy Flagler despite her being a Court ordered
      therapist for the children and because the excuses that he set forth in
      Exhibits 1 and 2 are disingenuous and not at all legal justification for
      refusing reimbursement of the bills submitted.

      iii. The Court finds the father to be in willful contempt on this issue
      but reserves any punishment for said contempt conditioned upon the
      father’s future compliance with the Court’s Orders regarding this
      issue.

      We have reviewed the transcript and find that the court’s conclusions are
supported by substantial and material evidence.


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       Tenn. Code Ann. § 29-9-102(3) provides that courts have the power to punish
any “party, juror, witness or any other person” for “the willful disobedience or
resistance…to any lawful writ, process, order, rule, decree, or command” of the
Court. The statute may be the basis for punishment of either civil or criminal
contempt. Flowers v. Tennessee Trucking Assn Self Insurance Group Trust., 209
S.W.3d 602 (Tenn. Ct. App. 2006). The differences between the two being the
remedy sought and the burden of proof to establish guilt. Id. Guilt for criminal
contempt must be established by proof beyond a reasonable doubt. Block v. Blount,
938 S.W.2d 394 (Tenn. 1996).

        The parties do not spend much time in their briefs arguing whether the
contempt in this case is civil or criminal. The trial judge did not impose any
punishment; instead the court held that punishment would be suspended
“conditioned upon father’s future compliance with the Court’s Orders regarding
this issue.” This sanction suggests that the trial court was holding the father in civil
contempt, i.e. allowing him to purge the contempt by future compliance. See,
Flowers, supra. Therefore, the proof of guilt may be established by a mere
preponderance of the evidence.

       The distinction between criminal and civil contempt, however, may be
entirely academic in this case, because the proof of guilt rises to the standard of
“beyond a reasonable doubt.” There is no question that the father did not pay his
share of the therapist’s fees, and there is no question that he refused to pay many of
the other bills. The trial judge found that his excuses for his non-compliance were
“disingenuous and not at all legal justification for refusing reimbursement.” We
concur in that finding.

      We affirm the finding of contempt for the father’s refusal to pay his share of
the medical bills.

                               III. Mother’s Contempt

       The father asserts in his brief that the trial court erred in failing to hold the
mother in contempt for (1) violating the medical expense reimbursement provision
of the parenting plan, and (2) violating the parental bill of rights set forth in the
parenting plan.




                                          -11-
       The father’s counter-petition alleged that the mother had willfully failed to
provide verification of the children’s medical expenses on a timely basis or to
reimburse the father for her share of the expenses. In addition, the father alleged
that since the parties’ divorce the mother had initiated an intentional pattern of
misconduct by making derogatory remarks about the father, by her refusal to co-
operate with him and by restricting his communication with the children. All the
alleged misconduct would be a violation of the parental bill of rights.

        The counter-petition prays that the mother be held in willful criminal
contempt and punished accordingly, including the potential for incarceration. The
trial court refused to hold the mother in contempt on either charge

       On these two issues, the difference between civil and criminal contempt is
significant. In addition to the rights guaranteed by our Constitution, an acquittal of
criminal contempt implicates the Constitution’s double jeopardy provisions. Ahern
v. Ahern, 15 S.W.3d 73 (Tenn. 2000). “Thus, an appeal from an acquittal of criminal
contempt is barred.” Overnight Transportation Co. V. Teamsters Local Union No.
480, 172 S.W.3d 507, at 510 (Tenn. 2005).

      The father’s appeal on these two issues is, therefore, dismissed.

                                 IV. Attorney’s Fees

      The father asserts on appeal that the trial court erred in ordering him to pay
the mother’s attorney’s fees and in refusing to award him his attorney’s fees as the
prevailing party.

       Tenn. Code Ann. § 36-5-103(c) empowers the courts to award to either spouse
“reasonable attorney fees incurred...in regard to any suit or action concerning the
adjudication of the custody or the change of custody of any child or children of the
parties...in the discretion of the court.” When the court exercises its discretion that
decision will not be disturbed unless there is clear evidence that the court abused its
discretion. Longschmidt v. Longschmidt, 81 S.W.3d 741 (Tenn. 2002).

      The trial judge awarded the mother $17,500 in attorney fees. The father does
not attack the reasonableness of the amount awarded; he simply asserts that he,
rather than the mother, should have been awarded his attorney fees as the
prevailing party. As the foregoing parts of this opinion demonstrate, the father



                                         -12-
prevailed at the trial court on a slight modification of visitation.    The mother
prevailed on the others.

      The trial judge held that the mother was the prevailing party. We are
convinced that the evidence does not preponderate against that finding. Therefore,
the award of attorney fees to the mother is affirmed.

      The trial court’s order holding the father in contempt for violating the spring
break provisions of the parenting plan is reversed. Otherwise, the trial court’s
order is afirmed and the cause is remanded to the General Sessions Court of Blount
County for any further proceedings the may become necessary. Tax the costs on
appeal to the parties equally.


                                                _________________________________
                                               BEN H. CANTRELL, SENIOR JUDGE




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