                                                                                         03/30/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                               February 14, 2017 Session

       KELLY COLVARD PARSONS v. RICHARD JEARL PARSONS

                  Appeal from the Circuit Court for Shelby County
                    No. CT-004932-13 James F. Russell, Judge
                     ___________________________________

                           No. W2016-01238-COA-R3-CV
                       ___________________________________


This is a post-divorce matter in which Ms. Parsons filed a petition for civil and criminal
contempt against her former husband, Mr. Parsons. Ms. Parsons argues that Mr. Parsons
unilaterally modified the terms of their divorce by failing to compensate her for what she
alleges to be a vested interest in his federal retirement benefits. At the conclusion of Ms.
Parsons’ direct examination, Mr. Parsons moved for dismissal on the ground that Ms.
Parsons did not elect whether she was seeking civil or criminal contempt at the outset of
the proceedings. The trial court dismissed Ms. Parsons’ petition for contempt, finding
that she did not prove contempt by clear and convincing evidence. Because the trial court
used the wrong legal standard and did not allow Ms. Parsons to complete her proof, we
vacate and remand to the trial court for further proceedings.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J. and J. STEVEN STAFFORD, P.J., W.S., joined.

Mitchell D. Moskovitz, and Kirkland Bible, Memphis, Tennessee, for the appellant,
Kelly Colvard Parsons.

Larry Rice, Memphis, Tennessee, for the appellee, Richard Jearl Parsons.


                                        OPINION

                                   I.     Background

       On July 10, 2014, Appellant Kelly Parsons, and Appellee Richard Parson filed a
marital dissolution agreement (MDA) that was incorporated into a final decree of
divorce, which was entered by the trial court on July 16, 2014. During the parties’
marriage, Mr. Parsons was employed by the Federal Aviation Administration (FAA) as
an air-traffic controller. In November 2013, seven months prior to the divorce, Mr.
Parsons retired from his job pursuant to an FAA mandate, requiring retirement at the age
of 56. Mr. Parsons’ retirement benefits included a monthly annuity from the Civil
Service Retirement System (CSRS) in the amount of $5,325. Additionally, Mr. Parsons
was to receive a monthly supplement from the Federal Employees Retirement System
(FERS) in the amount of $1,370 until he turned 62 and became eligible for social
security. In order to maintain eligibility and continue receiving the FERS supplement,
Mr. Parsons’ earnings could not exceed $15,120 per year.

      The terms of the parties’ MDA provided that Ms. Parsons would receive 50% of
Mr. Parsons’ gross monthly CSRS annuity and 50% percent of Mr. Parsons’ FERS
supplement, to wit:

              Husband is eligible for retirement benefits under the Civil Service
      Retirement System based on employment with the United States
      Government. Wife is entitled to fifty percent (50%) of Husband’s gross
      monthly annuity under the Civil Service Retirement System. Wife is
      entitled to fifty percent (50%) of Husband’s FERS supplement under the
      Civil Service Retirement System. The United States Office of Personnel
      Management is directed to pay Wife’s share directly to Wife. Wife shall be
      treated as the surviving spouse to the extent necessary to ensure Wife’s
      receipt of her portion of the pension and FERS benefits in the event of
      Husband’s death. Wife will receive a proportionate share of any cost of
      living increases made by the annuity and/or FERS supplement.
              The parties shall retain Attorney Blake Bourland to prepare any
      necessary documents required for the division of this gross monthly annuity
      and FERS supplement and the parties shall equally divide the cost of same.
              Prior to Wife’s receipt of fifty percent (50%) of the annuity and
      FERS supplement, Husband shall pay to Wife fifty percent (50%) of said
      benefits to compensate Wife while the necessary documents are being
      processed, in the amount of two thousand six hundred eight dollars
      ($2,608) monthly, due on the 1st of July, 2014, and the first business day of
      the month each month thereafter until Wife’s receipt of the pension and
      FERS benefit.

Pursuant to the MDA, in July 2014, the parties hired Mr. Bourland to draft and submit the
necessary orders allocating Mr. Parsons’ federal retirement benefits pursuant to the
MDA. On August 22, 2014, the trial court entered a consent order assigning the FERS
benefits. However, Mr. Bourland was unable to secure payment of Ms. Parsons’ portion
of the FERS supplement, due to the apparent refusal of the Office of Personnel
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Management to allocate the funds pursuant to the parties’ MDA.

      In April 2015, pursuant to the parties’ parenting plan, Ms. Parsons received Mr.
Parsons’ 2014 tax return and discovered that in addition to the federal retirement benefits
contemplated in the MDA, Mr. Parsons had earned income in excess of $52,000, which
exceeded the FERS cap of $15,120. Thus, Mr. Parsons was not eligible for the FERS
supplement of $1,370 per month.

       On June 22, 2015, Ms. Parsons filed a petition for civil and criminal contempt. In
her petition, she alleged that Mr. Parsons should be held in willful civil and criminal
contempt for failing and refusing to pay her the 50% share of his FERS supplement. Ms.
Parsons also alleged, inter alia, that Mr. Parsons owed an arrearage of $4,795 for unpaid
FERS benefits. The petition requested that the trial court order Mr. Parsons to pay such
arrearages and, that the trial court award Ms. Parsons attorney’s fees for filing the
petition. The petition also alleged that Mr. Parsons owed Ms. Parsons money in relation
to expenditures on behalf of the parties’ children; however, these expenditures are not at
issue on appeal.

        On July 27, 2015, Mr. Parsons’ attorney sent a letter informing Ms. Parsons that
Mr. Parsons’ FERS supplement had been reduced to zero beginning August 2015. The
letter also indicated that “because fifty percent (50%) of Zero Dollars ($0.00) is Zero
Dollars ($0.00), [Ms. Parsons] will not receive a FERS supplement payment beginning
August 1, 2015.”1 A letter from the Office of Personnel Management indicated that the
reason for the elimination of the FERS supplement is because Mr. Parsons’ earned
income during 2014 exceeded the $15,120 income cap. Ms. Parsons argues that her
interest in Mr. Parsons’ retirement benefits is a property interest, and as such, is non-
modifiable. Ms. Parsons also argues that the entry of the final decree of divorce gave her
a vested interest in one-half of Mr. Parsons’ FERS supplement, and that Mr. Parsons’
failure to compensate her to the extent of her vested interest was an improper unilateral
modification of the final decree of divorce. Mr. Parsons argues that Ms. Parsons knew
prior to the entry of the MDA and the final decree of divorce that Mr. Parsons’ income
would exceed the $15,000 cap. Specifically, Mr. Parsons produced a letter from his new
employer, Raytheon, dated April 7, 2014 stating that his hourly rate would be $26.50 and
that he could not exceed more than 1500 hours per year. However, we note that Mr.
Parsons signed the permanent parenting plan on July 10, 2014 swearing and affirming
that his gross monthly income was only $4,597.00 per month, which included his federal
retirement benefits and his expected earnings from Raytheon.


       1
          While the FERS supplement ended in July 2015, Ms. Parsons alleges in her petition that Mr.
Parsons did not pay her the 50% share of the supplement for the months of December 2014 through June
2015 (the month the petition was filed), even though he was receiving the full FERS supplement directly
from the Office of Personnel Management.
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        The hearing on the contempt petition was held on March 2, 2016. After Ms.
Parsons’ attorney completed direct examination of Ms. Parsons, Mr. Parsons’ attorney
made an oral motion to dismiss (see discussion infra) on the ground that Ms. Parsons
failed to elect whether she was seeking civil or criminal contempt. Prior to ruling on the
motion, the trial court heard statements from counsel for both parties regarding the status
of the proof. The attorneys were in agreement that Ms. Parsons had not completed her
proof; however, Mr. Parsons argued that the case was fundamentally flawed because it
had proceeded without Ms. Parsons electing whether she was proceeding on either civil
or criminal contempt. Mr. Parsons argued that the only remedy was dismissal. In order
to expedite the proceeding, Ms. Parsons agreed to dismiss the criminal contempt
component and proceed solely on the allegations of civil contempt. Despite statements
from both attorneys that Appellant had not closed her proof, the trial court granted the
motion to dismiss stating, in pertinent part, that:

              The Court is thus compelled to a conclusion that the petitioner has
       failed to sustain the requisite burden of proof, that is by clear and
       convincing evidence, of any, “civil” contempt….

               [T]he Court observes that the dilemma in which the parties now find
       themselves is not one of their own making. Moreover, the turn of events
       was not contemplated by either of these parties, in the way it has unfolded,
       at the time of entering the [MDA] and the [FDD].

The trial court entered its order dismissing the petition for contempt on May 19, 2016.

                                         II. Issues

Appellant raises the following issues as stated in her brief:

   1. Did the trial court err when it dismissed Ms. Parsons’ action for civil
      contempt based on her failure to sustain a burden of proof of “clear and
      convincing evidence,” when the correct burden of proof for civil contempt
      is a preponderance of the evidence?

   2. Did the trial court err when it dismissed Ms. Parsons’ Petition for Civil and
      Criminal Contempt before Ms. Parsons completed her proof?

   3. Did the trial court err in granting Mr. Parsons’ motion to dismiss, which
      was based solely upon Ms. Parsons’ failure to elect to proceed under civil
      or criminal contempt at the onset of the hearing, when “failure to elect” is
      not grounds for dismissal in Tennessee?


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   4. Did the trial court err when it failed to enforce the parties’ Final Decree of
      Divorce, which was unilaterally and impermissibly modified by Mr.
      Parsons?

   5. Did the trial court err when it failed to award Ms. Parsons her attorney fees
      and suit expenses related to her petition for civil and criminal contempt?

                                 III. Standard of Review

       When reviewing a trial court’ finding of civil contempt, “the factual issues of
whether a party violated an order and whether a particular violation was willful, are
reviewed de novo, with a presumption of correctness afforded the trial court’s findings.”
Lovlace v. Copley, 418 S.W.3d 1, 17 (Tenn. 2013). Our review of the trial court's
conclusions of law is de novo, with no presumption of correctness. Whaley v. Perkins,
197 S.W.3d 665, 670 (Tenn. 2006); Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn.
2002); Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s
decision to hold a person in contempt is entitled to great weight. Hooks v. Hooks, 8 Tenn.
Civ. App. (Higgins) 507, 508 (1918). Accordingly, decisions to hold a person in civil
contempt are reviewed using the abuse of discretion standard of review. Hawk v. Hawk,
855 S.W.2d 573, 583 (Tenn. 1993); Moody v. Hutchison, 159 S.W.3d 15, 25-26 (Tenn.
Ct. App. 2004). This review-constraining standard does not permit reviewing courts to
substitute their own judgment for that of the court whose decision is being reviewed.
Williams v. Baptist Mem'l Hosp., 193 S.W.3d 545, 551 (Tenn. 2006); Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). An abuse of discretion occurs when a court
strays beyond the framework of the applicable legal standards or when it fails to properly
consider the factors customarily used to guide that discretionary decision. State v. Lewis,
235 S.W.3d 136, 141 (Tenn. 2007). Discretionary decisions must take the applicable law
and relevant facts into account. Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996).
Thus, reviewing courts will set aside a discretionary decision only when the court that
made the decision applied incorrect legal standards, reached an illogical conclusion,
based its decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the complaining party. Konvalinka v. Chattanooga-
Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Mercer v. Vanderbilt
Univ., 134 S.W.3d 121, 131 (Tenn. 2004); Perry v. Perry, 114 S.W.3d 465, 467 (Tenn.
2003).

                                       IV. Analysis

                                 A.     Burden of Proof

      Ms. Parsons argues that the trial court erred when it dismissed her petition for civil
contempt based on her failure to sustain a burden of proof of clear and convincing
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evidence. Citing Oriel v. Russell, 278 U.S. 358 (1928), the trial court ruled as follows:

       The Court is thus compelled to a conclusion that the petitioner has failed to
       sustain the requisite burden of proof, that is by clear and convincing
       evidence, of any quote, “civil”, end quote, contempt.

       The trial court’s ruling is patently incorrect in that it applied an incorrect legal
standard, i.e. clear and convincing evidence as opposed to preponderance of the evidence.
The quantum of proof needed to find a person guilty of civil contempt is a preponderance
of the evidence. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d
346, 356 (Tenn. 2008); Doe v. Bd. of Prof'l Responsibility of Supreme Court of
Tennessee, 104 S.W.3d 465, 474 (Tenn. 2003); see also Luplow v. Luplow, 450 S.W.3d
105, 119 (Tenn. Ct. App. 2014); McLarty v. Walker, 307 S.W. 3d 254, 259 (Tenn. Ct.
App. 2009). Mr. Parsons argues that the trial court’s analysis of civil contempt using the
clear and convincing evidence standard was harmless error. We disagree. Our standard
of review is clear. We will set aside a discretionary decision when the trial court applied
incorrect legal standards, reached an illogical conclusion, based its decision on a clearly
erroneous assessment of the evidence, or employs reasoning that causes an injustice to
the complaining party. Konvalinka, 249 S.W.3d at 358 (citing Mercer v. Vanderbilt
Univ., 134 S.W.3d 121, 131 (Tenn. 2004); Perry v. Perry, 114 S.W.3d 465, 467 (Tenn.
2003)). The trial court speaks through its orders. Palmer v. Palmer, 562 S.W.2d 833,
837 (Tenn. Ct. App. 1977). From the order, supra, we can only conclude that the trial
court applied the clear and convincing standard. Having applied an incorrect legal
standard, the trial court erred. While this error alone is sufficient for reversal of the trial
court’s decision, we will now address Ms. Parsons’ issue concerning completion of proof.

                                B.     Completion of Proof

       Ms. Parsons argues that the trial court erred when it dismissed her petition for
contempt before she completed her proof. Prior to ruling on the motion, counsel for both
parties argued, as follows, regarding the status of the proof:

       Ms. Parsons’ counsel: [W]e were finished with [Ms. Parsons’] direct when
       [Mr. Parsons’ counsel] made the motion to dismiss. . . I don’t want to
       correct the Court, because I think in essence everything you said, I think, is
       exactly what occurred except that we didn’t conclude our proof. We
       concluded our direct examination. . . .

       Trial Court: Well, I perhaps misunderstood, but I thought we covered that.
       And I was specifically trying to determine whether or not the petitioner had
       closed her proof.

       Mr. Parsons’ counsel: It is my understanding that [Ms. Parsons’ counsel]
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      has not closed his proof either. I hate to keep agreeing with opposing
      counsel. Who will I argue with? But I believe he’s right about that. . . . I
      still need to cross examine this lady. And then he gets to elect whether or
      not he's going to close his proof or somebody else, or put somebody else
      on.

Despite the foregoing statements that proof was not complete, the trial court ruled on the
motion, to wit:

      The motion itself comes in a bit of an unusual procedural context in that it
      was made at the end of the direct examination of the Petitioner. It seems to
      be in the form of a motion for directed verdict at the close of the Plaintiff’s
      proof, which we would recognize in a jury trial type context, but the court
      is treating it in that fashion.

       In the first instance, the trial court’s reasoning is confusing. This Court has
repeatedly held that motions for “directed verdicts” have no place in bench trials. Boyer
v. Meimermann, 238 S.W.3d 249, 254 (Tenn. Ct. App. 2007); Burton v. Warren
Farmers Coop., 129 S.W.3d 513, 520 (Tenn. Ct. App. 2002) “[T]he proper motion
would have been a motion for an involuntary dismissal at the conclusion of the plaintiff's
proof in accordance with [Tennessee Rule of Civil Procedure] 41.02.” Main St. Mkt.,
LLC v. Weinberg, 432 S.W.3d 329, 335-36 (Tenn. Ct. App. 2013) (quoting Boyer, 238
S.W. 3d at 254). In similar cases where a defendant has moved for a directed verdict in a
bench trial, this Court has construed the motion as one for involuntary dismissal pursuant
to Rule 41.02(2). See, e.g., Nazi v. Jerry’s Oil Co., Inc., No. W2013-02638-COA-R3-
CV, 2014 WL 3555984, at *4 (Tenn. Ct. App. July 18, 2014); Kathryne B.F. v. Michael
B., No. W2013-01757-COA-R3-CV, 2014 WL 992110, at *3 n.2 (Tenn. Ct. App. March
13, 2014); In re Adoption of Jordan F.J., No. W2013-00427-COA-R3-PT, 2013 WL
6118416, * (Tenn. Ct. App. Nov. 20, 2013); Wilson v. Monroe County, 411 S.W.3d 431,
438-39 (Tenn. Ct. App. 2013). Therefore, we will construe the trial court’s order as if it
were an order granting a motion for involuntary dismissal under Rule 41.02(2).

       Tennessee Rule of Civil Procedure 41.02(2), which governs involuntary dismissals
in bench trials, provides as follows:

      After the plaintiff in an action tried by the court without a jury has
      completed the presentation of plaintiff’s evidence, the defendant, without
      waiving the right to offer evidence in the event the motion is not granted,
      may move for dismissal on the ground that upon the facts and the law the
      plaintiff has shown no right to relief. The court shall reserve ruling until all
      parties alleging fault against any other party have presented their respective
      proof-in-chief. The court as trier of the facts may then determine them and
      render judgment against the plaintiff or may decline to render any judgment
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       until the close of all the evidence. If the court grants the motion for
       involuntary dismissal, the court shall find the facts specially and shall state
       separately its conclusions of law and direct the entry of the appropriate
       judgment.


Tenn. R. Civ. P. 41.02(2) (emphasis added). Rule 41.02(2) clearly contemplates that the
proper time to lodge a motion for involuntary dismissal is after plaintiff “completed the
presentation of plaintiff’s evidence.” Tenn. R. Civ. P. 41.02(2); see also Burrow v. Barr,
No. 01A01-9806-CV-00311, 1999 WL 722633, at *5 (Tenn. Ct. App. Sept. 17, 1999).
The Tennessee Supreme Court has stated that Rule 41.01(2) “contemplates that the
plaintiff’s evidence shall be heard and evaluated by the court prior to any involuntary
dismissal order at trial.” Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 731 (Tenn.
1978). Accordingly, this Court has consistently held that a trial court’s dismissal of a
case prior to the close of plaintiff’s proof is reversible error. In Ruff v. Raleigh Assembly
of God Church, Inc., No. 02A01-9410-CV-00226, 1996 WL 9730, at *4 (Tenn. Ct. App.
Jan. 9, 1996), we held that the trial court erred in dismissing the case prior to the close of
plaintiff’s proof and remanded the case for completion of plaintiff’s proof. Id. Likewise,
in In re G.T.B., No. M2008-00731-COA-R3-PT, 2008 WL 4998399 (Tenn. Ct. App.
Nov. 24, 2008), the trial court dismissed the case prior to the completion of plaintiff’s
proof. On appeal, this Court concluded that the trial court erred in dismissing the case
prior to the completion of proof, stating that “once a case has proceeded to trial, the trial
court should allow [the plaintiff] to present all of its proof, subject to the rules of
evidence, before deciding whether the case should be dismissed, either sua sponte or
upon the defendant’s motion.” In re G.T.B., 2008 WL 4998399, at *4. In this case,
counsel for both parties agreed that Ms. Parsons had not yet completed her proof.
Clearly, the trial court’s decision to dismiss the petition when it did is reversible error.

       Based on these holdings, we pretermit Appellant’s remaining issues. However, we
note that the trial court’s order focuses solely on the issue of contempt and does not
address the primary issue of non-payment of the FERS supplement. At oral argument,
Ms. Parsons urged this court to make a decision concerning the merits of her claim for
FERS benefits rather than remanding the matter to the trial court to allow completion of
the proof and application of the appropriate burden of proof. We decline the invitation to
do so. As a reviewing court, it is not our province to make an initial determination
concerning the merits of an appellant’s claim. This Court can only consider such matters
as were brought to the attention of the trial court and acted upon or permitted by the trial
court. Jacks v. City of Millington Bd. of Zoning Appeals, 298 S.W.3d 163, 174 (Tenn.
Ct. App. 2009); Stewart Title Guar. Co. v. Fed. Deposit Ins. Corp., 936 S.W.2d 266, 271
(Tenn. Ct. App. 1996); Irvin v. Binkley, 577 S.W.2d 677, 679 (Tenn.Ct.App.1978).
Appellant has asked for attorney’s fees on 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) (internal citations omitted). We respectfully
                                            -8-
deny Ms. Parsons’ request for attorney’s fees and expenses on appeal.

                                     V. Conclusion

      For the foregoing reasons, we vacate the trial court's order and remand for further
proceedings as may be necessary and are consistent with this opinion. Costs of the
appeal are assessed against Appellee, Richard Jearl Parsons, for all of which execution
may issue if necessary.




                                                _________________________________
                                                KENNY ARMSTRONG, JUDGE




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