                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 13, 2012 Session

                DIANNA A. GADDES v. PAUL W. GADDES, JR.

           Direct Appeal from the Chancery Court for Williamson County
                    No. 26842     Donald P. Harris, Chancellor


               No. M2011-02656-COA-R3-CV - Filed February 1, 2013


Mother petitioned for criminal contempt against Father due to his alleged failure to pay child
support as required and she further sought reimbursement for one-half of the children’s
optical and dental expenses. Father counter-petitioned for contempt against Mother. The
trial court found Father in criminal contempt, but it declined to impose incarceration.
However, the trial court denied Mother’s request for optical and dental reimbursement,
finding Father was under no obligation to pay such. We affirm in part and we reverse in part.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

Wm. Kenneth Burger, Murfreesboro, Tennessee, for the appellant, Dianna A. Gaddes

Karla C. Hewitt, Nashville, Tennessee, for the appellee, Paul W. Gaddes, Jr.
                                                OPINION

                               I.   F ACTS & P ROCEDURAL H ISTORY

              Dianna A. Gaddes (“Mother”) and Paul W. Gaddes, Jr. (“Father”) divorced in
January 2001. The parties have two sons, ages seventeen and twelve at the time of the
August 2011 hearing in this matter. Pursuant to the 2001 Final Decree of Divorce, Mother
was named the children’s custodian from September through May, and Father was ordered
to pay $1,622.00 in child support during these months.1 Father was named the children’s
custodian from June through August, and Mother was ordered to pay $290.00 in child
support during these months. However, according to Mother, the parties later verbally agreed
that Mother’s support obligation would be subtracted from Father’s, thus, requiring Father
to pay $1,174.002 per month, over twelve months.

        On December 7, 2010, Mother filed a “Petition for Criminal Contempt” against Father
claiming that he owed $2,059.00 in child support, and that he had not yet paid his $1,622.00
December 2010 child support payment.3 Mother’s petition alleged that since the parties’
divorce, Father had paid child support “sporadically, irregularly, and in an untimely manner”
and that she had been forced to file multiple contempt petitions against him based upon his
failure to pay child support, his failure to pay alimony, and his “engaging in abusive and
harassing conduct toward” Mother. As a sanction for his alleged criminal contempt, Mother
sought to have Father incarcerated for ten days. Additionally, Mother sought to restrict
Father’s visitation with the children pending mandatory counseling, as well as a judgment
for one-half of the children’s “medical/dental bills[.]” 4



        1
        The Final Decree failed to require either party to pay support from September to December, but
Mother claims that this was a clerical error. On appeal, Father does not dispute that he owed support during
these months.
        2
         By our calculation, the monthly amount owed by Father would be $1,144.00. However, we will use
the $1,174.00 figure agreed to by the parties.
        3
        The Petition for Contempt states “[Father] is presently in arrears in the amount of $2,059.00. The
December payment has not yet been paid.” In her deposition, Mother seemed to state that the $2,059.00
amount included the missed December payment.
        4
         Mother’s petition stated that it sought reimbursement for “one-half of the unpaid medical/dental
bills which are attached.” However, only a $3,145.40 dental bill was attached. At trial, though, Mother also
sought to recover one-half of both a $234.00 optical bill and a $2,400.00 dental bill. In total, Mother sought
a judgment of $2,889.70 for optical and dental expenses (one half of 3 bills: $3,145.00, $234.00, and
$2,400.00).

                                                     -2-
       In response, Father filed a “Counter Petition to Modify Final Decree and for Criminal
Contempt” seeking a reduction in his child support obligation due to his alleged decreased
income and seeking to hold Mother in criminal contempt due to her alleged interference with
his parenting time.

        A hearing was held on the parties’ competing motions on August 23, 2011.
Thereafter, the trial court entered an Order finding Father guilty of criminal contempt due
to his failure to pay his December 2010 child support obligation on or before December 1,
2010. However, the trial court declined to order Father’s incarceration because it found that
Father “had made effort [sic] to pay his child support, and he also paid the December, 2010
[sic] child support prior to having been served with the instant Petition for Criminal
Contempt which was filed on December 7, 2010 and served upon [Father] later in the
month.” The court further awarded Mother a $7,583.105 judgment against Father for past
due child support owed through May 31, 2011, to be paid at the rate of $500.00 per month.
However, it declined to award Mother a judgment for the children’s dental and optical
expenses, finding that Father was not obligated to pay such. In its Order, the trial court,
among other things, reduced Father’s child support obligation to $789.00 per month,6 due and
payable on the first day of each month, and it awarded Mother her attorney fees of
$1,200.00.7 Mother timely appealed to this Court.

                                          II.   I SSUES P RESENTED

        Appellant Mother presents the following issues for review:

1.      Was the trial court correct in its decision to decline the imposition of sanctions for Mr.
        Gaddes’ willful contempt, in view of the record of prior contempt findings in this
        case; and

2.      Was the trial court correct in its failure to assess a judgment against Mr. Gaddes for
        one-half (½) of the unpaid medical expenses for the parties’ minor children?


        5
            It is unclear how this amount was calculated.
        6
       The trial court imputed a $7,250.00 per month income to Father finding that he “is still voluntarily
underemployed[.]”
        7
          The Order states that it “is a final order as to the financial issues between the parties, there being
no just reason for delay of entry of a final order as to those issues, but [that] all other claims for relief in the
parties’ Petition and Counter Petition are specifically reserved, the parties having previously been ordered
to attend mediation before setting those issues for hearing.” Thus, we find that the Order is final and
appealable under Tennessee Rule of Civil Procedure 54.02.

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For the following reasons, we affirm in part and we reverse in part.


                                       III.   D ISCUSSION

                              A. Criminal Contempt Sanctions

        Tennessee Code Annotated section 29-9-102(3) authorizes a court to exercise its
contempt powers for, among other things, the “willful disobedience” of a court order. To
find a party’s failure to pay child support contemptuous, “the court first must determine that
[the obligor] had the ability to pay at the time the support was due and then determine that
the failure to pay was wilful.” Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000).

       Contempt may be either criminal or civil in nature. State ex rel. Flowers v. Tenn.
Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d 602, 613 (Tenn. Ct. App. 2006).
Criminal contempt is designed to “‘preserve the power and vindicate the dignity and
authority of the law’” and to “preserve the court ‘as an organ of society.’” Id. (quoting Black
v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996)). “Generally, sanctions for criminal contempt
are designed to punish the contemnor and are unconditional in nature.” Id. (citing Black, 938
S.W.2d at 398); see also Ahern, 15 S.W.3d at 79 (“A party who is in criminal contempt
cannot be freed by eventual compliance.”) (citing Shiflet v. State, 400 S.W.2d 542, 543
(Tenn. 1966)). “‘[Criminal contempt] is a punitive proceeding intended to impose a fixed
punishment for past actions.’” State ex rel. Farris v. Bryant, No. E2008-02597-COA-R3,
2011 WL 676162, at *5 (Tenn. Ct. App. Feb. 24, 2011) (quoting McLean v. McLean, No.
E2008-02796-COA-R3-CV, 2010 210752, at *3 (Tenn. Ct. App. May 28, 2010)).

        In this case, Mother argues that the trial court, after finding Father in criminal
contempt, erred in failing to order “some period of incarceration[.]” Father does not
challenge the underlying finding of criminal contempt; instead, he argues only that the trial
court did not err in failing to impose incarceration. We review the “trial court’s decision of
whether to impose contempt sanctions using the more relaxed abuse of discretion standard
of review.” Moody v. Hutchison, 159 S.W.3d 15, 25 (Tenn. Ct. App. 2004) (quoting Barber
v. Chapman, No. M2003-00378-COA-R3-CV, 2004 WL 343799, at *8 (Tenn. Ct. App. Feb.
23, 2004)). Under this standard, we will uphold the trial court’s determination, irrespective
of our inclination to decide the issue differently, so long as the trial court’s decision is within
the range of acceptable alternatives. See Tait v. Tait, 207 S.W.3d 270, 275 (Tenn. Ct. App.
2006) (citing White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999)).

       In her appellate brief, Mother claims that Father has repeatedly disregarded the court’s
orders for a decade, and therefore, she argues that incarceration–up to ten days–is necessary

                                                -4-
to vindicate the sanctity of the court’s orders. In support of this argument, Mother cites her
own testimony at the August 2011 hearing on the parties’ competing motions in which she
stated that Father’s non-compliance with his child support obligation had been an “ongoing
issue. . . . [for] about two years.”8 At the hearing, Mother also testified that throughout
2010–prior to the filing of the instant contempt petition in December 2010–Father never paid
child support in a timely manner, although the payments were “[e]ventually” made.9 She
further claimed that since the filing of her petition in December 2010, Father had
accumulated an arrearage for the months of January through May 2011.10

       At the hearing, Mother described her willingness to allow Father to extend his nine-
month child support obligation over twelve months as well as her apparent willingness to
allow Father to render payment on the fifteenth rather than the first day of each month.
However, she stated that despite her accommodation efforts, Father had continued to delay
or withhold payments and that when she asked for payment, he accused her of being “crazy.”

        In her December 7, 2010 Petition for Criminal Contempt, Mother alleged a child
support arrearage of $2,059.00, apparently including his not-yet-paid December 2010
payment of $1,174.00. However, at the hearing, Mother agreed that the arrearage alleged
was incorrect as it did not take into account two $600.00 payments made by Father. Thus,
as of the date of the petition’s execution on December 3, Father owed only December’s
$1,174.00 payment, which Mother acknowledged Father paid via check dated December 15,
prior to being served with Mother’s petition.

       As stated above, in its Order, the trial court found Father guilty of criminal contempt
due to his failure to pay his December 2010 child support obligation on or before December


        8
         In her brief, Mother also states that “The couple was previously before the Court on the wife’s
contempt petition for $20,000.00 in unpaid alimony in 2006.” The citation to the record provided, however,
contains only statements by Mother’s counsel alluding to an appearance before Judge Bivins in 2006.
        9
         In her brief, Mother states that “Ms. Gaddes is emphatic in her testimony that, at no time (‘ever’)
since the parties’ divorce has Mr. Gaddes ever paid his monthly child support in specific compliance with
the order of the Court, although the delayed payments are ‘eventually’ cleared.” However, the citation
provided to the record contains no testimony by Mother that Father has failed to comply with his child
support obligation since the parties’ divorce.

         In her brief, Mother also states that following an arrearage accumulation Mother would “call to
discuss the issue with Mr. Gaddes over a period of several weeks” and that Father would clear the arrearage
and “pay regularly for a short time, before again slipping into a pattern of delayed payments or accumulated
arrearages.” However, this statement is simply unsupported by the citations provided.
        10
             Father testified only with regard to child support, after the contempt charge was resolved.

                                                       -5-
1, 2010,11 but it declined to order him incarcerated because it found that Father “had made
effort [sic] to pay his child support, and he also paid the December, 2010 [sic] child support
prior to having been served with the instant Petition for Criminal Contempt which was filed
on December 7, 2010 and served upon [Father] later in the month.” Finding scant evidence
in the record to support Mother’s assertions of decade-long non-compliance, and giving due
deference to the trial court, we find no basis for concluding that the trial court abused its
discretion in declining to impose incarceration as a sanction for Father’s criminal contempt.

                                      B. Uncovered Expenses

       Mother next argues that the trial court erred in failing to assess a $2,889.70 judgment
against Father for one-half of the children’s optical and dental expenses, because it found no
order requiring Father to pay such. She claims that Father is obligated to pay for one-half
of these expenses pursuant to the Final Decree of Divorce, which provides in relevant part:

        [Father] shall continue to maintain health insurance for the benefit of the
        parties’ two minor children, and the parties shall each pay one-half of any
        expenses not covered by insurance.

       Tennessee courts “have long recognized that orders and judgments should be
construed like other written instruments, and that the interpretation of written instruments
involves questions of law that are reviewed de novo without a presumption of correctness.”
Konvalinka v. Chattanooga-Hamilton County Hosp. Authority, 249 S.W.3d 346, 356 n.19
(Tenn. 2008) (citing Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006); State ex rel. Pope
v. U.S. Fire Ins. Co., 145 S.W.3d 529, 533 (Tenn. 2004)) (internal citations omitted).

       On appeal, Mother argues that the “final decree’s reference to ‘medical expenses’”
should be “reasonabl[y] interpret[ed]” to include the children’s optical and dental expenses.
She further contends that Father should be judicially estopped from claiming that such
expenses are not “medical expenses” because Father previously asserted a contempt claim
against her due to her alleged failure to pay a portion of the children’s non-covered medical
and dental expenses. Father, however, contends that “health insurance” covers only
“medical” expenses–not optical and dental expenses–and therefore, that he is under no
obligation to pay such.



        11
           In her brief, Mother states that the court found Father “to be in willful contempt based upon the
history of delayed or missed payments, and specifically for not paying on the first of each month.” (Br. 7).
However, the trial court’s Order indicates that its criminal contempt finding is based solely upon Father’s
failure to timely remit the December 2010 payment.

                                                    -6-
        We find Mother’s repeated references to “medical expenses” puzzling as the final
decree does not use this term. Instead, it requires Father to maintain “health insurance” and
it obligates the parties to split “any expenses not covered by insurance.” However, we find
Father’s position on appeal untenable for several reasons. First, Father’s assertion that
“health insurance” does not cover optical and dental expenses supports the conclusion that
such expenses are to be split by the parties, as, under Father’s theory, they constitute
“expenses not covered by insurance.”

        Moreover, we find that, due to his prior inconsistent position, Father is judicially
estopped from claiming that the parties did not intend to split dental expenses. In 2005,
Father filed a “Petition to Modify Alimony and Child Support and for Contempt” against
Mother alleging that Mother had failed to comply with the Final Decree of Divorce, which
he claimed, “required that the parties equally divide all non-covered medical and dental
expenses on behalf of the minor children.” (Supp.). See In re Estate of Boote, 198 S.W.3d
699, 719 (Tenn. Ct. App. 2005) (citing Marcus v. Marcus, 993 S.W.2d 596, 602 (Tenn.
1999)) (“Judicial estoppel is an equitable doctrine designed to prevent parties from ‘gaining
an unfair advantage’ in judicial proceedings by making inconsistent statements on the same
issue in different lawsuits.”). Although Father, in 2005, did not directly concede the division
of optical expenses–as such were not at issue–we find no basis for treating these expenses
differently from dental expenses.

         Finally, although not dispositive, the parties’ conduct further indicates their intent to
share optical and dental expenses, as according to Mother and conceded by Father’s counsel
at the hearing in this matter, the parties split these expenses “for some time.” See Barton v.
Gilleland, No. E2004-01369-COA-R3-CV, 2005 WL 729174, at *11 (Tenn. Ct. App. Mar.
30, 2005) (citing Hamblen Co. v. City of Morristown, 656 S.W.2d 331, 335 (Tenn. 1983))
(“In interpreting a contract, it is appropriate, as a rule of practical construction, to consider
the interpretation of a contract as evidenced by the parties' conduct and declarations.”). In
sum, we interpret the Final Decree of Divorce to require each party to pay for one-half of the
children’s optical and dental expenses not covered by insurance. Accordingly, we reverse
the trial court’s denial of Mother’s reimbursement request, and we award Mother a judgment
of $2,889.70.




                                               -7-
                                    IV.   C ONCLUSION

       For the aforementioned reasons, we affirm in part and we reverse in part. Costs of this
appeal are taxed equally to Appellee, Paul W. Gaddes, Jr. and Appellant, Dianna A. Gaddes,
and her surety, for which execution may issue if necessary.

                                                   _________________________________
                                                   ALAN E. HIGHERS, P.J., W.S.




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