                                                                                                       07/25/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                Assigned on Brief July 1, 2019

            FELICITAS HAYES V. CHRISTOPHER DANIEL SCOGGIN

                   Appeal from the Chancery Court for Shelby County
                     No. CH-17-0849-2        Jim Kyle, Chancellor
                       ___________________________________

                              No. W2019-00057-COA-R3-CV
                          ___________________________________

        Mother and father were divorced in 2013. They have four children together.
Disputes regarding child custody have spanned four states and nearly six years. In this
iteration, on June 9, 2017, mother filed a “Petition to Enroll Foreign Decree, For
Immediate Injunctive Relief, for Sciare Facias, and Citation for Criminal and Civil
Contempt, for Modification of Custody Order, and for Entry of Temporary Parenting
Plan.” In his answer, father requested that, pursuant to Tenn. Code Ann. § 36-5-103(c),1
he be reimbursed for the attorney’s fees incurred as a result of defending against mother’s
petition. After nine months of litigation, mother voluntarily dismissed her petition
without prejudice. As a result of mother’s voluntary dismissal prior to trial, father’s claim
for attorney’s fees was not resolved. Following mother’s dismissal, another dispute arose
regarding summer custody. On April 20, 2018, father filed a petition to resolve the
summer custody issue; it was resolved by a consent order. Following the consent order,
father filed a petition to recover the attorney’s fees and costs incurred in defending
against mother’s voluntarily dismissed petition. Mother moved to dismiss father’s
petition alleging that res judicata precluded father from seeking to recover his attorney’s
fees in that matter, because he did not raise the issue in his summer custody petition. The
trial court disagreed. Mother applied for an interlocutory appeal; this Court denied her
application. The trial court subsequently awarded father $11,963.08 in attorney’s fees and
costs. Mother appeals. We affirm.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Affirmed; Case Remanded
        1
          “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.”
Tenn. Code Ann. § 36-5-103(c) (2018).



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CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which ANDY D.
BENNETT and CARMA DENNIS MCGEE, JJ., joined.

Brice M. Timmons, Memphis, Tennessee, for the appellant, Felicitas Hayes.

No appearance by or on behalf of appellee, Christopher Daniel Scoggin.

                                         OPINION

                                              I.

       The parties were divorced, in San Diego, California. They have four minor
children. On June 19, 2013, husband and wife entered into an agreed joint custody order
regarding the children; they agreed to alternate physical custody on a weekly basis. A
subsequent consent order permitted father to move to North Carolina with the children.

       On September 8, 2015, a trial court in North Carolina entered an order holding that
there had been a substantial and material change in circumstance affecting the welfare of
the minor children that warranted a modification of the California custody order. The
material change in circumstance included: father now lived in North Carolina and mother
lived in Indiana, which rendered the previous agreement to alternate physical custody on
a weekly basis impossible; mother remarried and decided to live in Indiana with her new
husband and two additional young children; and father’s impending retirement from the
United States Marine Corps and plan to relocate with the minor children to Tennessee. In
addition, the court stated the following notable events occurred that further supported
modification: in 2013, father was deployed and when he came back mother refused to
return the children, in contravention to the terms of the custody agreement; in 2013,
father refused to return the children to the mother following the Christmas holiday;
mother filed a motion to register the California judgment in Indiana, but that action was
dismissed due to the Indiana court finding that the minor children were residents of North
Carolina; and assorted other events indicating miscommunication and an overall lack of
cooperation between the parties.

       Following a hearing, the North Carolina trial court announced from the bench that
it would award primary custody to mother. However, “after further deliberation and
consideration,” the court held in its order that it was in the best interests of the minor
children that primary custody be awarded to father, “subject to liberal visitation
privileges” to the mother. The court held in its order that it was in the best interest of the
children to award primary custody to father, because:

              [father] has been a single parent for the past eighteen months
              and despite his status as an active Marine has been able to

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             provide for all of the children’s physical, emotional and
             spiritual needs. That the children have thrived in the
             plaintiff’s care and appear to be healthy, happy and well
             adjusted (sic) children.

Father had secured a suitable home for himself and the children in Tennessee. The
children were projected to attend school, and reside near father’s parents and extended
family that would support father in raising the children. The children had a history of
spending extended periods of time with their Tennessee grandparents. In addition, father
had a suitable means of earning a future income. The court found that mother has
remarried and now has two additional small children in her home; her new husband also
has two children who visit the home every other weekend. The court expressed concern
regarding mother’s four-bedroom home and its ability to accommodate the four
additional children on top of the four already residing in the home. The court noted that
the minor children at issue had not previously lived with the other four children. The
court had additional concern regarding mother’s claim that she planned to attend law
school. It expressed concerned about mother’s ability to handle work, law school, and
eight children in her home. Mother was ultimately granted secondary custody and “liberal
visitation rights.”

       Mother appealed the September 8, 2015 order; in October 2016, the judgment was
affirmed by the North Carolina Court of Appeals.

       On November 12, 2015, mother filed a motion for emergency custody and a
collateral claim for a change of custody based upon changed circumstances. On June 9,
2016, mother filed a motion to expedite the temporary custody hearing. While these
motions were still pending, on May 3, 2017, the North Carolina trial court deferred
jurisdiction over the issue of modification and enforcement of custody to the children’s
home state of Tennessee. On June 9, 2017, mother filed a “Petition to Enroll Foreign
Decree, For Immediate Injunctive Relief, for Sciare Facias, and Citation for Criminal and
Civil Contempt, for Modification of Custody Order, and for Entry of Temporary
Parenting Plan” in Shelby County.

       On July 12, 2017, the parties entered a consent order modifying a previous order
on mother’s request for a continuance. Therein, mother agreed to return all four children
to father on July 23, 2017. Without admitting civil contempt, father’s compliance

             [w]ith this paragraph shall purge [f]ather of the alleged civil
             contempt set forth in [m]other’s “Petition to Enroll Foreign
             Decree, For Immediate Injunctive Relief, for Sciare Facias,
             and Citation for Criminal and Civil Contempt, for
             Modification of Custody Order, and for Entry of Temporary
             Parenting Plan,” and shall render that issue moot, and the

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              only remaining ultimate issue for trial shall be modification of
              the current custody order and entry of a Permanent Parenting
              Plan Order.

The criminal contempt portions of mother’s petition were dismissed with prejudice.

       On September 5, 2017, the court entered a consent order regarding a forensic
custodial evaluation agreed to by the parties. The parents and children agreed to undergo
a forensic custodial evaluation with Dr. John Leite.

       On January 29, 2018, father filed an answer to mother’s “Petition to Enroll
Foreign Decree, For Immediate Injunctive Relief, for Sciare Facias, and Citation for
Criminal and Civil Contempt, for Modification of Custody Order, and for Entry of
Temporary Parenting Plan.” In his answer, he requested to “be reimbursed his
attorney[’s] fees incurred as a result of [m]other’s filing” the petition, pursuant to Tenn.
Code Ann. § 36-5-103(c). On April 6, 2018, mother filed a notice of voluntary non-suit
regarding her June 9, 2017 petition; the court entered an order dismissing the matter
without prejudice, and it ordered mother to pay costs.

     On April 20, 2018, as a result of a new dispute, father filed a petition to modify the
summer parenting schedule. In his petition, he noted that

              In January of 2018, Dr. Leite recommended that the children
              remain with their Father in Memphis, and further suggested
              that ‘as the children age into high school level adolescence,
              consideration be given to the children’s wishes regarding the
              impact of length of summer visitation on social adjustment
              and school related summer activities.’

              In light of Dr. Leite’s recommendation, Father requested that
              Mother dismiss her Petition. Father made his first request that
              Mother dismiss her Petition in January of 2018 and second
              request in March of 2018. Mother refused both requests and a
              hearing was scheduled for July of 2018.

(Paragraph numbering omitted). Father stated that the two daughters now desired to
spend their summers primarily with father. Both girls allegedly “expressed that they are
uncomfortable in their mother’s home due to her not having enough bathrooms.” In April
2018, father emailed mother to inform her that one of the daughters wanted to participate
in a local lacrosse program in order to increase her chance of playing at a collegiate level.
He asked mother to consent to the daughter attending the local program, or for her to
participate in mediation if they could not agree on a solution. Father alleges that mother
did not respond, but instead “told [the daughter] that she was not allowed to remain in

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Memphis for the summer…[and] told [the daughter] that her [f]ather was not really her
biological father.” Father states that this caused the daughter extreme emotional distress.
For these reasons, father sought to modify the summer parenting schedule. Father also
requested that mother be ordered to pay father’s attorney’s fees and court costs for the
summer custody petition.

       On April 27, 2018, mother filed a “Motion to Dismiss for Lack of Subject Matter
Jurisdiction and Motion to Strike the Report of Dr. Leite.” Mother alleged that the June
10, 2015 North Carolina order was never enrolled in Tennessee, and that the matter
remained a foreign order. On May 8, 2018, father filed his response. On May 9, 2018, the
court entered an order stating that the provisions of Tenn. Code Ann. § 36-6-229 had
been met, because, on June 9, 2017, mother had filed her “Petition to Enroll Foreign
Decree, For Immediate Injunctive Relief, for Sciare Facias, and Citation for Criminal and
Civil Contempt, for Modification of Custody Order, and for Entry of Temporary
Parenting Plan.” Father did not contest the validity of the foreign decree within twenty
days of the petition, and therefore, pursuant to Tenn. Code Ann. § 36-6-229(c)(3), the
failure to contest the registration resulted in confirmation of the child-custody
determination and precluded further contest of that determination.

        On May 25, 2018, the parties entered a consent order on father’s petition to
modify the summer parenting schedule. On May 31, 2018, father filed a petition for
assessment of fees and costs, pursuant to Tenn. Code Ann. § 36-5-103(c), related to
mother’s voluntarily dismissed “Petition to Enroll Foreign Decree, For Immediate
Injunctive Relief, for Sciare Facias, and Citation for Criminal and Civil Contempt, for
Modification of Custody Order, and for Entry of Temporary Parenting Plan.” Mother
filed a motion to dismiss father’s petition as res judicata and requested her own
attorney’s fees and costs based on father’s alleged failure to state a claim upon which
relief could be granted.

        On June 12, 2018, the court denied mother’s “Motion to Dismiss for Lack of
Subject Matter Jurisdiction and Motion to Strike the Report of Dr. Leite.” The court held
that its May 9, 2018 order enrolling the June 10, 2015 order cured any issues related to
enrollment, which rendered mother’s motion moot. Mother was also deemed to have
actual notice of the proceedings, and her motion to dismiss for insufficient process and
service was also denied. The court then continued the matter for a hearing on mother’s
motion to strike the report of Dr. Leite.

        On July 13, 2018, father filed a response to mother’s motion to dismiss his petition
as res judicata. Father argued that he did not seek to alter or amend a final judgment. He
argues that

              Counsel for Mother asserts in her Motion to Dismiss that as a
              result of Father filing his Petition to Modify Summer

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Parenting Time on April 20, 2018 that he has foregone his
opportunity to seek attorney[’s] fees in the matter that was
ultimately dismissed by Mother on April 6, 2018. Given the
time sensitive nature of the issues set forth in Father’s
Petition to Modify Summer Parenting Time, he had to pursue
those issues immediately and did so by filing said Petition on
April 20, 2018. Fortunately, the parties were able to resolve
said Petition by agreement. Father’s decision to pursue the
issues related to summer parenting time was driven by an
urgency to have that matter resolved expeditiously and does
not preclude [him] from coming back to request fees incurred
as a result of Mother’s earlier Petition[,] which resulted in ten
(10) months worth of litigation.


                    *       *         *


Mother appropriately cites to the Court of Appeal’s holding in
the matter of Pounders v. Pounders, a Shelby County Case
which stands for the proposition, in part, that the purpose of
Tennessee Code Annotated § 36-5-103(c) would not be
served if the other spouse could simply dismiss his or her
petition prior to the hearing in order to avoid payment of the
custodial spouse’s attorney’s fees. Pounders v. Pounders,
No. W2010-01510-COA-R3-CV, 2011 Tenn. App. LEXIS
477, at 5 (Tenn. Ct. App. Aug. 31, 2011).

The scenario described above is exactly what has transpired
in this matter. Mother has a history of engaging in the filing
of vexatious petitions which have resulted in Father having to
pay tens of thousands of dollars to lawyers in several states
defending the best interest of the parties’ children.

On April 6, 2018, Mother filed her Notice of Voluntary Non-
Suit and entered her Order of Voluntary Dismissal Without
Prejudice, thereby reserving her right to adjudicate the matter
at a later date on its merits. Mother’s claim that a request for
attorney fees is barred by Res Judicata is specious in light of
the fact that Mother voluntarily non-suited without
prejudice.



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(Emphasis in original). Mother filed a response; she again argued that father could have
raised this issue in his other petition, but did not. Mother argues that father’s “last petition
filed in this matter was filed by [f]ather and resolved by consent and by the entry of a
final order.” Mother believes that the consent order on the summer custody issue
rendered all of the issues between the parties fully and finally resolved.

       On July 27, 2018, the trial court entered an order denying mother’s motion to
dismiss father’s petition. It held that the doctrine of res judicata did not bar father from
seeking the relief set forth in his petition. Mother was granted permission for an
interlocutory appeal. This Court denied mother’s application.

      On December 14, 2018, the court entered an order requiring mother to pay father
$11,963.08 as reimbursement for attorney’s fees and costs incurred defending against
mother’s June 9, 2017 petition. Mother appeals.

                                              II.

       Mother asks this Court to consider:

              [w]hether the [t]rial [c]ourt erred when it failed to grant a
              12.02(6) motion on the basis of res judicata and to award
              mother attorney’s fees pursuant to Tenn. Code Ann. [§] 20-
              12-119.

                                              III.

       A trial court’s decision that a claim is barred by the doctrine of res judicata
involves a question of law which will be reviewed de novo on appeal without a
presumption of correctness. Jackson v. Smith, 387 S.W.3d 486, 491–92 (Tenn. 2012); In
re Estate of Boote, 198 S.W.3d at 719.

                                              IV.

       Mother argues that res judicata bars father’s petition for attorney’s fees incurred
defending against her June 9, 2017 petition, because father did not raise the issue in his
separately filed petition to modify the parties’ summer custody schedule. She argues that
father was aware of the fees and costs incurred in defending against mother’s dismissed
petition, and that he improperly waited six days after his petition to modify summer
custody was resolved by consent before filing his petition for attorney’s fees and costs
incurred defending against mother’s prior petition.

       Regarding a res judicata defense, the Supreme Court has stated that


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              The doctrine of res judicata, or claim preclusion, bars a
              second suit between the same parties or their privies on the
              same claim with respect to all issues which were, or could
              have been, litigated in the former suit. It is a “rule of rest[.]”

              The party asserting a defense predicated on res judicata must
              demonstrate (1) that the underlying judgment was rendered
              by a court of competent jurisdiction, (2) that the same parties
              or their privies were involved in both suits, (3) that the same
              claim or cause of action was asserted in both suits, and (4)
              that the underlying judgment was final and on the merits.

Long v. Bd. of Prof'l Responsibility of Supreme Court, 435 S.W.3d 174, 183 (Tenn.
2014) (Internal citations omitted).

       “The primary purposes of the doctrine are to promote finality in litigation, prevent
inconsistent or contradictory judgments, conserve legal resources, and protect litigants
from the cost and vexation of multiple lawsuits.” Napolitano v. Bd. of Prof'l
Responsibility, 535 S.W.3d 481, 496 (Tenn. 2017) (citing Creech v. Addington, 281
S.W.3d 363, 376 (Tenn. 2009)).

       As stated by mother in her brief on appeal, “[t]his case arises from post-divorce
custody litigation taking place across four (4) states and over approximately five (5)
years. During that time[,] the parties have brought six (6) distinct custody actions against
each other.” Among these many “distinct custody actions,” at issue presently, are two
separate custody actions. Mother conflates the two in an attempt to argue that father
should be precluded from obtaining attorney’s fees incurred in defending against her
voluntarily dismissed petition, which he is permitted to request pursuant to Tenn. Code
Ann. § 36-5-103(c).

       The first action involved mother’s “Petition to Enroll Foreign Decree, For
Immediate Injunctive Relief, for Sciare Facias, and Citation for Criminal and Civil
Contempt, for Modification of Custody Order, and for Entry of Temporary Parenting
Plan.” This petition was filed on June 9, 2017. It involved a series of allegations that
father alienated mother, a litany of allegations that father violated the September 21, 2015
order, and a specific complaint about child custody for summer 2017. Mother requested
the appointment of a guardian ad litem, that father be incarcerated for civil and criminal
contempt, an injunction, and modification of the 2015 order based upon father’s alleged
pre-petition violations of the order.

       In father’s answer, he requested that he “be reimbursed his attorney[’s] fees
incurred as a result of [m]other’s filing” the petition. Mother later decided to voluntarily
dismiss her petition. Notably, she dismissed her petition without prejudice, thereby

                                            -8-
reserving her right to adjudicate the matter at a later date. Father’s claim for attorney’s
fees was not litigated in the “former suit,” because of mother’s voluntary dismissal. There
was no final judgment on that issue, and the matter remained dismissed without
prejudice.

       Despite mother’s decision to voluntarily dismiss her petition without prejudice,
father was still permitted to recover the attorney’s fees he incurred in defending against
her petition; Pounders v. Pounders stands for the proposition that mother cannot
voluntarily dismiss her petition in order to avoid paying the statutorily permitted
attorney’s fees. Pounders v. Pounders, No. W2010-01510-COA-R3-CV, 2011 Tenn.
App. LEXIS 477, at 5 (Tenn. Ct. App. Aug. 31, 2011) (holding that the purpose of Tenn.
Code Ann. § 36-5-103 would not be served if the other spouse could simply dismiss his
or her petition prior to the hearing in order to avoid payment of the custodial spouse’s
attorney’s fees.) In accordance with Tenn. Code Ann. § 36-5-103(c), and within a
reasonable time following mother’s dismissal, father properly filed a petition seeking to
recover his statutorily permitted attorney’s fees.

       The second action involved father’s petition to modify the summer parenting
schedule; it was filed on April 20, 2018. This petition was filed as a result of the two
daughters’ alleged desire to spend the summer of 2018 with father. More specifically, one
of the daughters wanted to attend a local lacrosse camp in order to better her chance at
obtaining a college scholarship. Father’s petition alleges that he emailed mother in an
attempt to resolve the matter and that he suggested mediation if they could not agree on a
solution, but he was unsuccessful. Because the parties were unable to resolve the issue,
and with summer 2018 fast approaching, father filed a petition seeking court intervention.
The summer arrangement was ultimately resolved by consent of the parties on the day of
the hearing. An appropriate consent order was filed.

        The two events at issue did not arise out of the same transaction such that res
judicata applies to bar father’s petition. See Creech v. Addington, 281 S.W.3d 363, 380
(Tenn. 2009) (holding that two suits shall be deemed the same “cause of action” for
purposes of res judicata where they arise out of the same transaction). Additionally, there
is nothing in the consent order that could be interpreted as having resolved father’s claim
for attorney’s fees in the separate matter or that could be deemed to otherwise preclude
his ability to file a petition to recover those attorney’s fees. The fact that the parties had
an additional emergency dispute regarding summer custody in the interim that
necessitated court intervention appears to be in accordance with the ongoing state of
affairs between the parties. There is no indication that “[f]ather engaged in ‘gotcha’
litigation,” as mother asks this Court to believe.

       We affirm the trial court’s holding that father’s petition for attorney’s fees is not
barred by the doctrine of res judicata. We affirm the award of $11,963.08 in attorney’s
fees and costs to father. In accordance with this holding, we also decline to grant

                                            -9-
mother’s request for attorney’s fees based on father’s alleged failure to state a claim upon
which relief may be granted.

                                            V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellant, Felicitas Hayes. Case remanded for enforcement of the trial court’s judgment
and collection of costs assessed below.



                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




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