                                                                                        06/08/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                April 26, 2017 Session

          RAYMOND CASS BALLARD v. GERTRUDE CAYABAS

              Direct Appeal from the Chancery Court for Dyer County
                   No. 10-CV-195     Tony Childress, Chancellor


                            No. W2016-01913-COA-R3-CV


This is an appeal arising out of a petition to change the primary residential parent and a
petition for civil and criminal contempt. The notice of appeal for the criminal contempt
finding was not timely filed, and the appeal is therefore dismissed as to the criminal
contempt. With respect to the remaining issues, we remand this matter to the trial court
for the limited purpose of conducting an evidentiary hearing regarding the timeliness of
this appeal.

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN, and KENNY ARMSTRONG, JJ., joined.

John Edward Eldridge, Knoxville, Tennessee, for the appellant, Raymond Cass Ballard.

Vanedda Prince Webb, Dyersburg, Tennessee, for the appellee, Gertrude Cayabas.

                                       OPINION

       This appeal arises out of a petition to change primary residential parent and a
petition for civil and criminal contempt. Appellant Raymond Cass Ballard and Appellee
Gertrude Cayabas are the parents of a son, who was born in 2008. At the time of the
parties’ divorce, Ms. Cayabas was named primary residential parent.

       In July 2015, Mr. Ballard filed a petition for civil contempt, criminal contempt,
and modification of the permanent parenting plan, asking to be named primary residential
parent. The trial court conducted a hearing on Mr. Ballard’s petition on July 20 and 21,
2016.

      The trial court entered multiple orders disposing of the claims in this case. On July
21, 2016, the trial court entered an “Order on Petition for Criminal Contempt,” wherein it
held that Ms. Cayabas was in criminal contempt and imposed sentences for the contempt.
On July 27, 2016, the trial court entered an “Order” that merely attached the court’s
findings of fact and conclusions of law on the issues of criminal contempt but did not
otherwise alter its July 21 order.

       Also on July 27, 2016, the trial court entered an “Order on Petition for Civil
Contempt and Modification” that, among other things, denied Mr. Ballard’s request to
hold Ms. Cayabas in civil contempt, denied the petition to modify the current parenting
plan or the parenting schedule, denied Mr. Ballard’s request for attorney’s fees, and
awarded Ms. Cayabas a judgment for attorney’s fees and expenses. The trial court filed
yet another “Order” on July 27, 2016, attaching the court’s “findings of fact and
conclusions of law on the issues of civil contempt and all modification issues tried before
[the court].” The trial court also filed a separate document entitled “Conclusions of Law
Regarding Attorney Fees” on July 27, 2016, explaining its reasoning for declining to
award attorney’s fees to Mr. Ballard and for awarding attorney’s fees to Ms. Cayabas.
With the filing of these four orders on July 27, 2016, all the claims between the parties
were resolved by the trial court.

      On August 3, 2016, the trial court entered a document entitled “Conclusions of
Law,” which provided, in its entirety:

       Factors 1, 2, 3, 4, 5, 6, 7, 8, 12, and 14 listed in Tennessee Code Annotated
       section 36-6-106(a), are neutral and favor neither party. Factor 9 slightly
       favors Mr. Ballard due to the fact that the child’s minor sibling lives with
       him, the close relationship these two siblings have with one another, and
       the child’s relatives on Mr. Ballard’s side of the family who live near Mr.
       Ballard. Factor 10 slightly favors Ms. Cayabas due to the fact that the
       parties have been operating under the schedule set forth in the current plan
       for a number of years now, and the child is currently thriving under this
       plan. Factors 11 and 13 are not applicable in this case.

The court’s August 3, 2016 entry did not revise any of the orders entered by it on July 27,
but the August 3 entry explicitly lists the factors from Tennessee Code Annotated section
36-6-106(a) that favor each parent. This August 3 “Conclusions of Law,” however, does
not grant or deny any relief whatsoever.

        On appeal, Mr. Ballard raises issues regarding the trial court’s determinations on
civil and criminal contempt, the trial court’s failure to award him attorney’s fees, and the
trial court’s determinations regarding the designation of primary residential parent, as
well as the permanent parenting plan. Because of our disposition of this appeal, we need
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not set out the seven issues raised by Mr. Ballard in detail. Ms. Cayabas raises one issue
on appeal: whether she should be awarded her attorney’s fees on appeal.

       Prior to oral argument, this Court, sua sponte, ordered that the parties be prepared
to discuss the timeliness of the notice of appeal at oral argument. After oral argument,
Mr. Ballard submitted a supplemental brief on the issue of the timeliness of his notice of
appeal.

       Three notices of appeal appear in the record. Mr. Ballard’s first notice of appeal is
dated by his attorney on August 23, 2016, but it was not stamped filed by the Dyer
County Clerk and Master until August 31, 2016. The record also contains an amended
notice of appeal, dated by Mr. Ballard’s attorney on August 29, 2016, and also stamped
filed by the Dyer County Clerk and Master on August 31. Finally, the record contains a
form notice of appeal, wherein the case-specific information is handwritten. This
handwritten notice of appeal contains a certificate of service from Mr. Ballard’s attorney
dated August 29, 2016, and is also stamped filed on August 31. The appeal bond in the
record is also dated August 29, 2016, and stamped filed by the Clerk and Master on
August 31. The appeal bond form and the hand-written Notice of Appeal in our record
also have a fax header indicating “From: Dyer Clerk & Master” on August 26, 2016.

                                       ANALYSIS

       Tennessee Rule of Appellate Procedure 3(a) provides that “[i]n civil actions every
final judgment entered by a trial court from which an appeal lies to the … Court of
Appeals is appealable as of right.” Appeals are initiated by filing a notice of appeal with
the clerk of the trial court. Tenn. R. App. P. 3(e). The notice of appeal must “be filed
with and received by the clerk of the trial court within 30 days after the date of entry of
the judgment appealed from.” Tenn. R. App. P. 4(a). This time limit may not be waived
by the Court of Appeals. Id. “[I]f the notice of appeal is untimely, the Court of Appeals
lacks subject matter jurisdiction over the appeal.” Ball v. McDowell, 288 S.W.3d 833,
836 (Tenn. 2009).

       1. Appeal of criminal contempt order
       “[A] contempt proceeding is sui generis and is considered incidental to the case
out of which it arises, and often stems from an underlying proceeding that is not
complete.” Doe v. Bd. of Prof’l Responsibility of Supreme Court of Tenn., 104 S.W.3d
465, 474 (Tenn. 2003). The contempt proceeding may be “related to the underlying case
but independent from it.” Green v. Champs-Elysees, Inc., No. M2013-00232-COA-R3-
CV, 2014 WL 644726, at *7 (Tenn. Ct. App. Feb. 18, 2014). Thus, “[a] judgment of
contempt fixing punishment is a final judgment from which an appeal will lie.” Hall v.

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Hall, 772 S.W.2d 423, 436 (Tenn. Ct. App. 1989) (citing State v. Green, 689 S.W.2d 189
(Tenn. Cr. App. 1984)). The judgment of 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 Green, 689 S.W.2d at 190); 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”); Bailey
v. Crum, 183 S.W.3d 383, 387 (Tenn. Ct. App. 2005). “It matters not that the proceedings
out of which the contempt arose are not complete.” Moody v. Hutchison, 159 S.W.3d 15,
31 (Tenn. Ct. App. 2004) (citing Green, 689 S.W.2d at 190). An order that imposes
punishment for contempt “is a final appealable order in its own right, even though the
proceedings in which the contempt arose are ongoing.” Coffey v. Coffey, No. E2012-
00143-COA-R3-CV, 2013 WL 1279410, at *5 (Tenn. Ct. App. Mar. 28, 2013) (citing
Bailey, 183 S.W.3d at 387).

       In this case, the trial court entered an order on July 21, 2016, finding Ms. Cayabas
in criminal contempt and fixing punishment. On July 27, the court entered an “order”
attaching the transcript of the July 20, 2016 hearing. The July 27 “order” provided: “[t]he
attached are the Court’s findings of fact and conclusions of law on the issues of criminal
contempt, and the attached is incorporated herein by reference and is to be treated in
every respect and for every purpose as the Court’s written findings and conclusions on all
criminal contempt issues.” The July 27 entry did not change the criminal contempt
finding or alter the punishment.

        Given these facts, we must determine when Mr. Ballard’s thirty day period in
which to file a notice of appeal on the criminal contempt finding began to run. In his
supplemental brief to this Court, Mr. Ballard argues that the trial court’s July 21 order
was timely appealed “since the last Order issued in the case was August 3, 2016.” He
goes on to argue that “since the last Order in the instant case was filed on August 3, 2016,
nothing would be appealable until after that date, which means that even on August 31,
2016, the Notice of Appeal would be timely.” We disagree. “A final judgment [] is one
that resolves all of the parties’ claims and leaves the court with nothing to adjudicate.”
Ball, 288 S.W.3d at 836-37. When analyzing which of multiple judgments constitutes
the final judgment, we consider whether the subsequent judgment affected the substantive
legal rights and obligations settled by the first judgment. Id. at 837. As in the Ball case,
with respect to the criminal contempt finding – a determination that is related to, but
separate from the underlying issues -- we must focus on whether the July 27, 2016
“order” entered by the trial court affected any of the parties’ substantive rights and
obligations settled by the July 21, 2016 criminal contempt order. See id. It did not.
Therefore, we must conclude that time for appeal regarding criminal contempt began to
run on July 21, 2016.
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       Even assuming the notice of appeal could have been filed the same day Mr.
Ballard’s attorney signed the certificate of service on the notice of appeal (August 23,
2016), the notice of appeal was untimely. August 23 is more than thirty days from the
July 21, 2016 criminal contempt order. Because Mr. Ballard’s notice of appeal was not
timely filed, this Court is without jurisdiction to consider his issues regarding the trial
court’s findings of criminal contempt.

       2. The trial court’s other orders

       We must conduct the same analysis with regard to the trial court’s orders
addressing civil contempt, attorney’s fees, and the parenting designation and plan. In that
regard, the trial court entered orders on July 27, 2016, which decided all remaining issues
before the court. On August 3, the trial court filed a document titled “Conclusions of
Law” that did not alter its July 27 decisions in any way.

        With respect to the timeliness of the appeal on these issues, the three notices of
appeal create a curious conundrum. As noted above, the record on appeal contains three
notices of appeal. The first notice of appeal is typewritten and contains a certificate of
service dated August 23, 2016. The second notice of appeal, titled “Amended Notice of
Appeal,” contains a certificate of service dated August 29, 2016. The third notice of
appeal is hand-written on a pre-printed notice of appeal form and also contains a
certificate of service dated August 29, 2016. All three notices of appeal are stamped-filed
by the Dyer County Clerk and Master on August 31, 2016.
        Again, Rule 4(a) of the Tennessee Rules of Appellate Procedure provides that
“[i]n an appeal as of right to the . . . Court of Appeals . . . , the notice of appeal required
by Rule 3 shall be filed with and received by the clerk of the trial court within 30 days
after the date of entry of the judgment appealed from[.]” Tenn. R. App. P. 4(a) (emphasis
added). As discussed above with respect to the criminal contempt finding, since the trial
court’s August 3, 2016 “Conclusions of Law” did not affect any of the parties’
substantive rights and obligations settled by the July 27, 2016 orders, Mr. Ballard’s thirty
day period in which to file a notice of appeal began to run on July 27. All three notices
of appeal contained in the appellate record were filed on August 31, 2016. Thus, it
appears that Mr. Ballard filed his notice of appeal after the expiration of the thirty day
period required by Rule 4(a).

        At oral argument before this Court, counsel for Mr. Ballard represented that the
Dyer County Clerk and Master received his first notice of appeal, declined to file it, and
sent it back to him. He argued that his first notice of appeal was received, but the Clerk
and Master faxed him a form notice of appeal and cost bond, which is evidenced by the
fax header on those two documents in our appellate record. Indeed, the third notice of

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appeal, which is handwritten, and the cost bond contains the following fax header:

 r!p!!:Elyer   Clerk & Nestor        731   zaa   770C         veitzp,zole   10:48   ,674 P.0011003




Mr. Ballard’s counsel argues that the Dyer County Clerk and Master had his original
notice of appeal on August 26, 2016 but did not file it. Assuming the Clerk and Master
had filed his notice of appeal on that date, this appeal would be timely.

       While Mr. Ballard’s counsel’s reasoning certainly provides some explanation for
the existence of three notices of appeal in the record, arguments of counsel are not
evidence. Nor does this court have the authority to conduct an evidentiary hearing
regarding the timeliness of the notice of appeal. However, if the trial court clerk received
Mr. Ballard’s notice of appeal and declined to perform its duty to file documents
presented to it, we are loathe to declare an appeal untimely. Given the importance of our
exercise of jurisdiction only when we are properly vested with jurisdiction, we remand
this matter to the trial court for an evidentiary hearing only on the timeliness of the notice
of appeal. See, e.g., Ibrahim v. Murfreesboro Med. Clinic Surgi Ctr., No. M2013-00631-
COA-R3-CV, 2013 WL 5519845, at *1 (Tenn. Ct. App. Oct. 3, 2013) (involving a case
that was remanded to the trial court for a determination of the date the appellant’s notice
of appeal was actually received by the trial court clerk due to an allegation that the clerk
erroneously failed to stamp it as of that date).

                                      CONCLUSION

       We therefore dismiss Mr. Ballard’s appeal with respect to the trial court’s criminal
contempt finding, and we remand the case to the trial court for an evidentiary hearing
regarding the timeliness of this appeal. Given our uncertainty as to our jurisdiction to
hear the substantive issues raised by the parties, we decline to opine on the substantive
issues raised by the parties until such time as our jurisdiction to do so has been
established. Costs are taxed to appellant, Raymond Cass Ballard, and his surety, for
which execution may issue, if necessary.



                                                        _________________________________
                                                        BRANDON O. GIBSON, JUDGE




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