                                                                                             05/26/2020
                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 January 15, 2020 Session

                    SHERRIE MILLER DALY v. JOHN DALY

                   Appeal from the Circuit Court for Shelby County
                   No. CT-005438-06         Mary L. Wagner, Judge
                       ___________________________________

                            No. W2017-02549-COA-R3-CV
                        ___________________________________


This post-divorce appeal is the fourth appeal between the parties. This action involves
the court’s holding of the mother in criminal contempt for her repeated failure to adhere
to the orders of the court. We affirm.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S. and ARNOLD B. GOLDIN, J., joined.

Lori R. Holyfield, Memphis, Tennessee, for the appellant, Sherrie Miller Daly.

Vickie Hardy Jones, Memphis, Tennessee, for the appellee, John Daly.


                                         OPINION

                                  I.     BACKGROUND

       Sherrie Miller Daly (“Mother”) and John Daly (“Father”) married in 2001. One
child was born of the marriage. The Parties were divorced by order of the court in
February 2010. Pursuant to a marital dissolution agreement (“MDA”), Mother was
designated as the primary residential parent. Father, a professional golfer, was given
flexible co-parenting time in accordance with his travel schedule. The relationship
between the parties deteriorated and became contentious, at best.

       Since then, the Parties have engaged in extensive litigation concerning Mother’s
refusal to adhere to the court’s orders, resulting in three prior appeals. In the first appeal,
this court upheld the trial court’s modification of the primary residential parent
designation from Mother to Father and findings of contempt against Mother. S.A.M.D. v.
J.P.D., No. W2011-01256-COA-R3-CV, 2012 WL 5266194, at *1 (Tenn. Ct. App. Oct.
25, 2012) (“Daly I”). The findings of contempt related to Mother’s refusal to adhere to
the parenting plan and continued harassment of Father. Notably, the court first held
Mother in contempt and imposed a 50-day sentence, which it suspended provided she
adhered to the future orders of the court. When Mother again violated the court’s orders,
the court lifted the suspension and ordered her to serve three days in jail. We affirmed.

        During the pendency of Daly I, Mother sought designation as the primary
residential parent and filed her own petitions for contempt. Father responded with
additional petitions for contempt, concerning, inter alia, Mother’s failure to ensure the
Child’s completion of schoolwork while in her care, her continued harassment of him,
and failure to pay attorney fees as ordered. As pertinent to this appeal, the trial court
denied Mother’s petitions and held her in contempt for her “continued and perpetual”
disregard of the court’s orders. By order, dated June 4, 2012, the court lifted the balance
of her previously suspended sentence and ordered her to serve the remaining 47 days in
jail. The court further found Mother guilty of an additional 75 counts of criminal
contempt but elected to sentence her for only 37 of the 75 counts. The court imposed a
sentence of 10 days of each count in addition to the previously imposed 47 days, for a
total of 417 days. The court ordered Mother to first serve 30 days in jail, followed by the
service of 52 days over the course of 26 consecutive weekends. The court suspended the
balance of her sentence, namely 335 days, pending her compliance with future orders.
We upheld the court’s finding of criminal contempt and the sentence imposed. S.A.M.D.
v. J.P.D., No. W2013-00314-COA-R3-CV, 2013 WL 5447392, at *30 (Tenn. Ct. App.
Sept. 30, 2013) (“Daly II”).1

       In April 2014, Father filed a petition for breach of contract, alleging that Mother
had failed to pay the mortgage, homeowner’s insurance, and property taxes on the
residence previously occupied by her and the Child (“the Windgarden Residence”). He
explained that his obligation for the residence ceased once the Windgarden Residence
was no longer the Child’s primary residence, thereby requiring Mother to remit payment
for the property pursuant to the provisions of the MDA. By order, dated May 21, 2014,
the court directed Mother to vacate the Windgarden Residence and quitclaim the property
to Father to offset the judgment for Father’s payment of expenses related to the
Windgarden Residence and his award of attorney fees in prior proceedings. The court

1
  Daly II was designated as not for citation. Accordingly, this opinion will only be cited as applicable to
matters concerning this appeal involving the same parties. See Tenn. R. S. Ct. R. 4(E)(2) (“An opinion so
designated shall not be published in any official reporter nor cited by any judge in any trial or appellate
court decision, or by any litigant in any brief, or other material presented to any court, except when the
opinion is the basis for a claim of res judicata, collateral estoppel, law of the case, or to establish a split of
authority, or when the opinion is relevant to a criminal, post-conviction or habeas corpus action involving
the same defendant.”).
                                                      -2-
further provided as follows:

       The Court orders [Mother] to vacate the Windgarden Residence by May 27,
       2014. [Mother] shall maintain the Windgarden Residence in good and
       undamaged condition through the date that she vacates the Residence. She
       shall not disturb or deface the property. She may remove only her personal
       property. She shall not remove faucets, fixtures, appliances or anything
       physically connected to the property. There shall be no destruction to the
       property.

We affirmed the court’s order and remanded for enforcement of the judgment. S. A. M.
D. v. J. P. D., No. W2014-01015-COA-R3-CV, 2015 WL 3863234, at *8 (Tenn. Ct. App.
June 23, 2015) (“Daly III”).

       Meanwhile, Father filed a petition for criminal contempt on December 11, 2012,
and amended and supplemental petitions on November 7, 2014, and October 28, 2015.
Father also sought to suspend Mother’s co-parenting time. All issues related to criminal
contempt were bifurcated from all other issues pending before the court at that time. The
case proceeded to a hearing on the criminal contempt allegations in December 2017.
Mother was represented by counsel. She chose not to testify but was admonished during
the proceeding for violating the rule of sequestration by texting a witness in open court
during the proceedings.2

        The testimony and evidence presented outlined approximately 175 instances of
Mother’s failure to adhere to the permanent parenting plan and follow other orders of the
court, allegations which primarily related to Mother’s failure to ensure the Child
completed his schooling while in her care and attended therapy appointments. Father
also alleged that she failed to facilitate his communication with the Child; posted pictures
of the Child on Facebook; harassed him on various occasions by text, email, and
telephone; failed to vacate the Windgarden Residence as ordered; and vandalized the
Windgarden Residence once she finally left. He claimed that Mother removed permanent
fixtures and appliances, damaged fixtures, and generally failed to leave the residence in a
good and undamaged condition. Mother responded with witnesses of her own, attesting
to her alleged good faith attempts to comply with the court’s orders.

       The trial court rendered an oral ruling in which it painstakingly made findings as
to each count alleged and also provided a supporting chart to its written order in which it
again set forth each count and provided its findings. In sum, the court merged several
counts and issued a conviction for 35 counts of criminal contempt. The court sentenced
Mother to 10 days for each count, resulting in a total sentence of 350 days, which it

2
  The court held her in contempt for this violation and sentenced her to one day of incarceration. This
count of contempt is not at issue in this appeal.
                                                 -3-
suspended, pending her compliance with future orders of the court. However, the court
lifted the suspension of the sentence imposed on June 4, 2012, and upheld on appeal in
Daly II. The court ordered her to serve a total of 336 days, consisting of the 335 days of
the sentence previously suspended and the one day in connection with her direct criminal
contempt that occurred during the present trial. The court directed Mother to serve the
first 168 days consecutively and the rest served over the course of 84 consecutive
weekends. This appeal followed.


                                      II.   ISSUES

      A.     Whether the proceedings below were procedurally defective.

      B.     Whether the evidence was sufficient to support the court’s findings
      of criminal contempt.

      C.     Whether the sentence imposed was excessive.

      D.     Whether Father is entitled to attorney fees on appeal.


                             III.   STANDARD OF REVIEW

       Our review is de novo upon the record of the trial court without any presumption
of correctness attaching to the trial court’s conclusions of law. Campbell v. Florida Steel
Corp., 919 S.W.2d 26, 35 (Tenn. 1996). We must, however, presume the trial court’s
factual findings to be correct absent evidence preponderating to the contrary. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

      As stated in Daly I,

      A finding of criminal contempt must be based on the following four
      elements: (1) the order that was allegedly violated must be lawful; (2) the
      order must be clear, specific, and unambiguous, (3) the order must actually
      be disobeyed or otherwise resisted; and (4) the violation of the order must
      be willful. A person accused of criminal contempt is presumed innocent,
      and the four elements must be proven beyond a reasonable doubt.

      Once a guilty verdict is entered, the contemnor’s presumption of innocence
      is removed and is replaced by a presumption of guilt. Therefore, when the
      sufficiency of the evidence to support a criminal contempt finding is
      challenged on appeal, the defendant bears the burden of demonstrating why
      the evidence is insufficient to support the guilty verdict. In conducting our
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      appellate review, the prosecution is entitled to the strongest legitimate view
      of the evidence and all reasonable inferences which may be drawn from it.
      Additionally, questions regarding the credibility of witnesses, the weight
      and value of the evidence, and any factual issues raised by the evidence are
      resolved by the trier of fact.

2012 WL 5266194, at *11 (internal citations and quotations omitted).


                                   IV.    ANALYSIS

                                           A.

      Criminal contempt actions have been explained by this court as follows:

      Criminal contempt is either direct or indirect. Disruptive or disobedient
      acts committed in the court’s presence constitute direct criminal contempt.
      Trial courts may impose summary punishment for these acts when there is a
      need to act swiftly and firmly to prevent contumacious conduct from
      disrupting a judicial proceeding. Contemptuous acts committed outside of
      the court’s presence constitute indirect criminal contempt. Trial courts may
      impose punishment for indirect criminal contempt only after providing
      notice pursuant to Tenn. R. Crim. P. 42(b). Like all persons charged with
      contempt, persons facing an indirect criminal contempt charge are entitled
      to the presumption of innocence, the privilege against self-incrimination,
      and the requirement that their guilt be proven beyond a reasonable doubt.

Jones v. Jones, No. 01A01-9607-CV-00346, 1997 WL 80029, at *3 (Tenn. Ct. App. Feb.
26, 1997) (internal citations omitted). A ten-day sentence is the maximum period of
incarceration allowed for one count of criminal contempt. See Tenn. Code Ann. § 29-9-
103(b) (“Where not otherwise specially provided, the circuit, chancery, and appellate
courts are limited to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten
(10) days[.]”).

       Mother first argues that the record does not establish that the court provided
proper notice of the charges and the proceeding pursuant to Rule 42(b) of the Tennessee
Rules of Criminal Procedure, which provides as follows:

      (b)     Disposition on Notice and Hearing. A criminal contempt shall be
      initiated on notice, except as provided in subdivision (a) of this rule.

             (1)    Content of Notice. The criminal contempt notice shall:

                                          -5-
                        (A) state the time and place of the hearing;
                        (B) allow the alleged contemner a reasonable
                        time to prepare a defense; and
                        (C) state the essential facts constituting the
                        criminal contempt charged and describe it as
                        such.

                (2)    Form of Notice. The judge shall give the notice orally
                in open court in the presence of the alleged contemner or by
                written order, including an arrest order if warranted. The
                notice and order may also issue on application of the district
                attorney general, an attorney appointed by the court for that
                purpose, or an attorney representing a party in the case.

(Emphasis added.).

        While the original petition, filed on December 11, 2012, is not in the record,3 the
first amended petition, filed on November 7, 2014, was included for this court’s review.
The amended petition listed each count of alleged criminal contempt and facts supporting
the same and further provided as follows:

        Mother is hereby notified that:

        A.      This petition places Mother in jeopardy of being found in criminal
        contempt of this court’s orders and punished by fine (of $50) or by
        imprisonment (not to exceed 10 days) for each count of which she is found
        guilty.
        B.      That the hearing on this petition is set to be heard on February 16,
        2015, at 9:00 a.m. before the Honorable Donna Fields[.]
        C.      The essential facts constituting the criminal contempt charged are
        described in paragraph 1 above.
        D.      You have the rights of a criminally accused person, including, but
        not necessarily limited to, the right to counsel, the presumption of
        innocence, and the right to remain silent.

Accordingly, we conclude that sufficient notice was provided by Father’s counsel in
accordance with Rule 42(b).

3
  The court found that sufficient notice was provided in the December 2012 petition. We decline to hold
otherwise when it is the appellant’s burden to prepare a record that “‘conveys a fair, accurate and
complete account of what transpired in the trial court with respect to the issues which form the basis of
the appeal.”’ Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn. Ct. App. 1997) (quoting State v. Boling,
840 S.W.2d 944, 951 (Tenn. Crim. App. 1992)).
                                                  -6-
      Mother next complains that an arraignment and reading of the charges was not
provided prior to the hearing pursuant to Rule 10 of the Tennessee Rules of Criminal
Procedure, which provides as follows:

      (a)    General. Before any person is tried for the commission of an
      offense, the person shall be called into open court and arraigned, except as
      provided in Rule 43.

      (b)    Procedure. The arraignment shall consist of the following:
             (1)    ensuring that the defendant has a copy of the
             indictment, presentment, or information before called upon to
             plead;
             (2)    reading the indictment, presentment, or information to
             the defendant or stating to the defendant the substance of the
             charge; and then
             (3)    asking the defendant to plead to the indictment,
             presentment, or information.

We must first note that “[c]ontempt proceedings are sui generis—neither a civil action
nor a criminal prosecution as ordinarily understood, nor a criminal prosecution within the
Sixth Amendment of the United States Constitution.” Bowdon v. Bowdon, 278 S.W.2d
670, 672 (Tenn. 1955). The procedure is governed by Rule 42 of the Tennessee Rules of
Criminal Procedure. No formal indictment, presentment, or information is required
pursuant to Rule 42. Further, a court may even summarily hold a party in criminal
contempt without formal notice. Tenn. R. Crim. P. R. 42(a) (“A judge may summarily
punish a person who commits criminal contempt in the judge’s presence if the judge
certifies that he or she saw or heard the conduct constituting the contempt. The contempt
order shall recite the facts, be signed by the judge, and entered in the record.”). With
these considerations in mind, we deny Mother’s request for relief on this issue.

       Mother next argues that she was not informed of her right to counsel at all stages
of the proceeding or of her right against self-incrimination. The record belies this
assertion as evidenced by the amended petitions for contempt, Mother’s appointment of
counsel for the contempt proceeding, and the court’s repeated instruction that the matters
of contempt were bifurcated from the civil matters as a result of her right to counsel.
Mother also chose not to testify in the contempt proceeding, thereby establishing her
knowledge of the right to refrain from questioning.

      Lastly, Mother claims that the trial court issued rulings on some charges that were
brought outside of the one-year statute of limitations applicable in such actions and that
                                          -7-
her right to a speedy trial was also violated, as evidenced by the extensive delay in the
proceedings from October 28, 2015, through July 27, 2017. Our review of the record
confirms that these issues are without merit. The original petition, filed on December 11,
2012, was still pending when the amended and supplemental petition was filed on
November 7, 2014. These allegations were then ultimately addressed in the final hearing
in December 2017. While the proceeding was admittedly delayed, Mother requested
several continuances and pursued other appeals of the trial court’s orders during the
pendency of the instant case. Further, she has not alleged any claim of prejudice as a
result of any delay in the proceedings.

                                           B. & C.

       Mother claims that the evidence presented was insufficient to support the court’s
finding of criminal contempt for all 35 counts alleged. She claims that her violation of
the court’s order was not willful and that the evidence presented did not establish that her
actions were for the bad purpose of violating the court’s order. Mother further argues
that the sentence imposed was excessive and not justly deserved in relation to the
seriousness of the offenses.

        As was the case in Daly I, the court here did not impose a new sentence but merely
lifted the suspension of a prior sentence based upon Mother’s continued violation of the
court’s orders. We explained,

       Consequently, although the trial court made numerous findings of criminal
       contempt against Mother, she would have been subject to being required to
       serve the entire 50-day sentence for a single willful violation of a previous
       order. For this reason, in order to uphold the trial court’s decision to lift the
       suspension on Mother’s sentence, we need only find that the evidence in
       the appellate record supports a finding that Mother was in criminal
       contempt of any of the trial court’s orders.

Daly I, 2012 WL 5266194, at *11 (internal citation omitted). Here, in this fourth appeal,
Mother was subject to serve the balance of her previously imposed 335-day sentence for
a single violation of the court’s order. The suspended 335-day sentence was upheld on
appeal. Daly II, 2013 WL 5447392, at *30. In upholding the sentence, we stated as
follows:

       As correctly noted by Father in his brief, from the date of the parties
       divorce in February 2012 through January 2013, the trial court has
       conducted three separate hearings on Father’s contempt petitions against
       Mother. In each of those hearings, the trial court determined that Mother
       had violated the court’s orders. Mother has been given leniency in the form
       of suspended sentences, but she has not availed herself of the opportunity to
                                          -8-
       cure her contempt and to follow the orders of the court. Rather, as
       discussed in detail above, she has continued to violate the court’s orders
       and has, in fact, committed additional acts of contempt while operating
       under the largess of the court’s suspended sentence. We agree with the trial
       court’s comment that it has exhausted its options other than jail to motivate
       Mother to comply with its orders. Given Mother’s excessive and continual
       violations of the trial court’s orders over the relevant period of less than
       two years, we cannot conclude that the trial court imposed an excessive
       sentence in this case, or that it otherwise abused its discretion.

Daly II, 2013 WL 5447392, at *19. We decline to recount the specific facts supporting
each count alleged when this is now the third appeal as a result of Mother’s failure to
adhere to the court’s orders involving the same behavior, namely refusal to ensure the
Child completed his schooling while in her care and attended therapy appointments,
failure to facilitate Father’s communication with the Child, continued harassment of
Father, and now vandalism of the Windgarden Residence. The record overwhelmingly
establishes Mother’s refusal to follow the court’s orders in, at the very least, 35 instances.
Accordingly, we affirm the court’s findings of contempt on the new allegations, its
imposition of the 350-day suspended sentence, and its lifting of the previously suspended
335-day sentence.

                                             D.

      Father requests attorney fees on appeal. Tennessee follows the American Rule
which provides that “litigants pay their own attorney’s fees absent a statute or an
agreement providing otherwise.” State v. Brown & Williamson Tobacco Corp., 18
S.W.3d 186, 194 (Tenn. 2000); accord Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn.
2005). Father maintains that an award of fees is appropriate pursuant to Tennessee Code
Annotated section 36-5-103(c), the permanent parenting plan, and the MDA.

      Tennessee Code Annotated section 36-5-103(c), revised on July 1, 2018, now
provides for an award of attorney fees in contempt actions as follows:

       A prevailing party may recover reasonable attorney’s fees, which may be
       fixed and allowed in the court’s discretion, from the non-prevailing party in
       any criminal or civil contempt action or other proceeding to enforce, alter,
       change, or modify any decree of alimony, child support, or provision of a
       permanent parenting plan order, or in any suit or action concerning the
       adjudication of the custody or change of custody of any children, both upon
       the original divorce hearing and at any subsequent hearing.



                                            -9-
Father is not entitled to an award of attorney fees on appeal pursuant Section 36-5-103(c)
because the revised provisions of Section 36-5-103(c) do not apply to this action, initially
filed in December 2012.

       The court sustained several violations of the permanent parenting plan, mostly
relating to Mother’s failure to ensure the Child’s completion of schoolwork and
attendance at speech therapy while in her care. However, the court did not award
attorney fees at trial for these violations. The original permanent parenting plan, entered
on February 19, 2010, provides as follows:

       In the event that it should be determined, either by this Court or by any
       other court of competent jurisdiction, that either party has breached any
       provision of this Plan, then the breaching party shall pay to the other party
       all reasonable attorneys’ fees and costs incurred in the enforcement of any
       such provision or provisions as such are adjudged by the Court upon full
       hearing.

The permanent parenting plan has undoubtedly been revised since that time as evidenced
by the court’s modification in which it designated Father as the primary residential
parent. The revised permanent parenting plan is not included on the record on appeal and
is not cited by Father in support of his request. Under these circumstances, we deny the
request for attorney fees on appeal based upon the permanent parenting plan.

       While direct violations of the MDA were alleged, the court did not find Mother in
contempt for violating the MDA. The court found Mother in contempt for her violation
of its order entered on May 21, 2014, directing Mother, inter alia, to maintain the
Windgarden Residence and refrain from destruction of the property. At a separate
hearing held on December 8, 2017, at which Mother appeared pro se, the court found that
Father was entitled to a money judgment for the damages and attorney fees because
Mother’s damage to the property stemmed from her breach of the MDA with regard to
the Windgarden Residence. The MDA provides as follows:

       In the event that it should be determined, either by this Court or by any
       other court of competent jurisdiction, that either party has willfully
       breached any provision of this Agreement, then the breaching party shall
       pay to the other party all reasonable attorneys’ fees and costs incurred in the
       enforcement of any such provision or provisions as such are adjudged by
       the Court upon full hearing.

We hold that an award of attorney fees on appeal for Father’s defense of the contempt
action on appeal is too far removed from the intent of the MDA. With the above
considerations in mind, we respectfully deny Father’s request for attorney fees on appeal.

                                           - 10 -
                                V.     CONCLUSION

      We affirm the decision of the trial court and remand for such further proceedings
as may be necessary. Costs of the appeal are taxed to the appellant, Sherrie Miller Daly.

                                                  _________________________________
                                                  JOHN W. MCCLARTY, JUDGE




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