                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    April 23, 2009 Session

                              JAMES JEFFREY JACKSON
                                         v.
                                KRISTI LYN WILLIAMS

                    An Appeal from the Chancery Court for Dyer County
                       No. 03C236    Donald P. Harris, Senior Judge



                  No. W2008-00148-COA-R3-CV - Filed September 18, 2009


This is a post-divorce petition for contempt and to modify a parenting plan. The parties divorced
when their son was about three years old. They were awarded joint custody of their son and the
mother was designated as the primary residential parent. Many disputes ensued. The father filed
a contempt petition against the mother, claiming that she was in contempt for failing to schedule
compensatory weekend parenting time for the father after the child spent one of his weekends with
the mother, and for causing the father to miss six scheduled telephone calls with their son over an
eight-month period. The father asserted that this and other conduct showed that the mother intended
to alienate the child from him, and on this basis filed a petition to modify the parenting plan. After
a hearing, the trial court denied the father’s petitions for contempt and for modification. We affirm.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W. S., and
DAVID R. FARMER , J., joined.

Thomas E. Weakley, Dyersburg, Tennessee, for the appellant, James Jeffery Jackson.

Dean P. Dedmon and William Lewis Jenkins, Jr., Dyersburg, Tennessee, for the appellee, Kristi Lyn
Williams.

                                             OPINION

                                FACTS AND PROCEEDINGS BELOW

       This is the second post-divorce appeal in this case. Petitioner/Appellant James Jeffrey
Jackson (“Father”) and Respondent/Appellee Kristi Lyn Williams (“Mother”) had a son, Alec (born
August 15, 2000), during their marriage. The parties were divorced by final decree entered on
March 10, 2004. In the final decree of divorce, the trial court awarded the parties joint custody of
Alec and designated Mother as the primary residential parent. A detailed parenting plan was entered
establishing a schedule for the parties’ residential parenting time and setting forth the standard
parenting orders. See Hollandsworth v. Jackson, No. W2005-02091-COA-R3-CV, 2006 WL
3371137, at *1 (Tenn. Ct. App. Nov. 21, 2006).

        On October 29, 2004, Father filed a petition to modify custody. In response, Mother filed
a contempt petition against Father. In Father’s petition, he alleged that Mother had interfered with
a telephone conversation between Father and Alec and generally engaged in a course of hostility
against Father, asserting that this amounted to a material change in circumstances. After a lengthy
hearing, the trial court denied Father’s petition to modify custody and also denied Mother’s contempt
petition against Father. On August 24, 2005, the trial court entered an order stating that both parties
had engaged in inappropriate behavior and had failed to foster a good relationship between the child
and the other parent, but it concluded that these circumstances existed at the time of the final decree
of divorce and that there was no material change in circumstances. Therefore, the trial court declined
to modify the parenting plan. Father appealed.

        Meanwhile, while the first appeal was pending, Father filed a contempt petition against
Mother. Father claimed that Mother violated the trial court’s previous orders by failing to permit
Father to have residential parenting time on the first weekend in September 2005, which was Labor
Day weekend. Father also asserted that Mother did not comply with the original order granting
Father reasonable telephone communication. On October 27, 2005, the trial court entered an order
finding that Mother was not in contempt of court. However, in an attempt to remedy the problems
with the telephone communication between Father and Alec, the trial court entered an order giving
Father the right to have telephone communication with Alec each Tuesday and Thursday evening
at 8:00 p.m.

         On June 9, 2006, also while Father’s first appeal was pending, Father filed a petition, pro se,
for “Contempt and [$]100,000,000 Million for Slander and False Allegations” against Mother.
Father alleged that Mother “and her horde of family and friends” committed slander and made false
allegations against him, and that Mother had not followed the telephone schedule established in the
trial court’s October 2005 order. On September 26, 2006, Mother filed a motion to dismiss Father’s
complaint for failure to state a claim upon which relief could be granted and for failure to comply
with the rules governing the issuance of subpoenas.1

         On November 21, 2006, this Court filed its opinion in the first appeal, upholding the trial
court’s decision on Father’s petition to modify custody and remanding the case for further
proceedings.2 Id. at *4. The appellate court commented: “It is clear that Alec is caught in the
cross-fire of Mother and Father’s on-going and escalating hostility toward each other. Clearly, this
is not in Alec’s best interest.” Id. at *3.

        1
          Judge R. Lee Moore, Jr., who had presided over the previous proceedings, recused himself. In September
2006, the Honorable Donald P. Harris, Senior Judge, was designated to preside over the proceedings.
        2
         The case was remanded for a determination regarding the am ount of Father’s obligation for outstanding
medical expenses in light of amounts that he had already paid. See Hollandsworth, 2006 WL 3371137, at *3-4.

                                                      -2-
        A week later, on November 28, 2006, Father filed an additional pro se pleading, entitled
“Petition for Modification of Custody and Contempt.” This petition stated simply that Father “will
show this Court that their [sic] has been a material change in circumstance that would warrant a
change of custody,” and that Mother “is in contempt of this Court.” On February 2, 2007, Mother
filed a motion to dismiss Father’s petition and hold him in contempt of court. She claimed that
Father’s petition lacked the requisite specificity and was a continuation of the same allegations raised
in his prior petition, filed because he was unhappy with the outcome of the first appeal and other
rulings in Mother’s favor. Mother asserted that Father’s petition was filed to harass her and cause
needless litigation. She later amended her petition to include a request for attorney’s fees pursuant
to Tennessee Code Annotated § 36-5-103(c).

        On February 12, 2007, the trial court held a hearing in the matter. Our appellate record does
not include a transcript of that hearing. Father was instructed to amend his motions to include a
more specific statement to support the relief sought; all motions were held in abeyance pending
Father’s filing of a more specific statement.3 Accordingly, on February 27, 2007, Father filed an
“Amended Motion for Modification of Custody and Contempt,” alleging that Mother “has continued
on a course of conduct toward alienating his relationship with the parties’ minor child, Alec.” Father
alleged that Mother continued to make false allegations against him, would not respond to his
request to exchange Alec at a location other than a law enforcement agency, would not respond to
his request to attend counseling regarding Alec, refused to communicate with Father, denied him
telephone communication with Alec from time to time, failed to inform him of medical or dental
services related to Alec, and ran a newspaper birthday announcement for Alec that identified
Mother’s present husband as Alec’s father without mentioning Father.

        Also on February 27, 2007, Father filed an “Amended Motion For Contempt and
[$]100,000,000 Million for Slander and False Allegations.” This motion stated that Mother was in
contempt of the trial court’s orders for not allowing Father a “visitation make up weekend” with
Alec to compensate for Father’s regular weekend with Alec that was missed on President’s Day
weekend because that was Mother’s designated holiday. The motion also asserted that Mother failed
to allow Father his court-ordered telephone communication on six different occasions. On July 10,
2007, Mother filed responses to Father’s amended motions.

        On October 9, 2007, the trial court held a hearing in the matter. Father was represented by
counsel with respect only to contempt-related issues. Father continued to represent himself with
respect to the claim for $100,000,000 for slander/false allegations and his petition to modify the
parenting plan. At the outset of the hearing, the trial court dismissed the damages claim based on
slander/false allegations for lack of subject matter jurisdiction. This ruling has not been appealed.
The hearing proceeded on Father’s contempt petition and his petition to modify custody.

       Father testified about the conduct that he felt supported his claims against Mother. In
February 2006, Father said, Mother exercised her residential parenting time with Alec on President’s
Day weekend because the parenting plan allocated the President’s Day holiday to her. The


       3
           On June 18, 2007, the trial court entered an order consistent with its oral rulings.

                                                           -3-
President’s Day weekend in 2006 fell on Father’s regular weekend with Alec. Father submitted into
evidence a May 2, 2006 letter from his attorney to Mother’s attorney requesting that Mother
schedule a make-up weekend, as they had done in the past. Up to the time of trial, Father claimed,
Mother had refused to cooperate in scheduling this compensatory weekend. Father admitted,
however, that Mother had accommodated his request for a few extra days added on to his summer
residential parenting time.

        Father also testified that, on six different occasions between April 27 and December 26,
2006, Alec was not available for his court-ordered 8:00 p.m. Tuesday/Thursday telephone call. On
these occasions, when Father did not reach Alec by telephone at 8:00 p.m., Father called the local
sheriff’s office for assistance, to ensure that a report was filed in order to have a written record of
the phone calls he missed. In all, Father called the sheriff’s office over twenty-four times. On cross-
examination, Father conceded that, on each of the six occasions in dispute, he spoke with Alec on
the telephone at some point later in the evening; Father insisted that the later contact with Alec
occurred only because the sheriff’s department forced Mother to call him. On each occasion,
someone from the sheriff’s department contacted Mother, and after talking to her informed Father
that Alec was at some event that prevented him from calling Father at 8:00 p.m. Father attributed
Alec’s unavailability on these occasions to Mother’s efforts to frustrate his telephone communication
with his son.

         Mother also testified at the hearing. She said she believed that allowing Father extra days
in the summer of 2006 made up for the weekend he missed in February 2006. Regarding the missed
telephone calls, Mother acknowledged that on six dates Father did not receive a telephone call from
Alec at 8:00 p.m. She explained that, on each occasion, Alec was involved in some kind of event,
such as a funeral visitation or church event, and that Alec eventually spoke to Father on all of those
evenings. Mother characterized the missed telephone calls as simply “mishaps,” and noted that, in
four years, she had missed only six scheduled telephone calls.

        Mother and Father both testified about difficulties that occurred when Alec was exchanged
from one parent to the other. In the past, the exchanges had taken place at a local Burger King
restaurant, which Father preferred. At the time of trial, the exchanges were taking place at the local
police department. Mother complained that Father usually brought a video camera to record the
exchange. Father complained about Mother’s family members being present for the exchange.

        Mother admitted placing a notice in the local newspaper on the occasion of Alec’s birthday,
which included a photo of Alec with a caption stating that he was “the son of Jay and Kristi
Williams,” when in fact Alec is Father’s son and Jay Williams’ stepson. Mother said that she
purposefully did not mention Father’s name, commenting that Father could have placed a similar
notice in the newspaper himself. She testified that she informs Alec’s medical providers that Father
is Alec’s biological father, but indicates that she is the primary residential parent for medical
purposes. However, she authorizes the medical providers to give Father information on Alec if
requested, and lists Father as Alec’s biological father on school information sheets. Both Mother
and Father testified that they have tried family counseling; not surprisingly, both said that it had not
worked for them. Mother testified that she has expended about $20,000 in attorney’s fees in


                                                  -4-
defending against Father’s petitions for contempt, petitions to modify, and other motions and
petitions.

         At the conclusion of the hearing, the trial court found that Mother was not in willful contempt
of court with regard to the missed President’s Day weekend in 2006, or the failure to have Alec
available by telephone to Father at precisely 8:00 p.m. on six occasions in 2006. In addition, the trial
court held that Father had not established a material change in circumstances sufficient to justify
changing the parenting arrangement to designate him as the primary residential parent. The trial
judge commented, “It seems to me the circumstances have been the same since this divorce . . . .”4
The trial court observed that Father was to blame for much of the “escalating hostility” between the
parties:

                 I don’t know what has to happen, but something has to happen to stop you
         from doing this.
                 And, Mr. Jackson, to tell you the truth, I find that most of it is you. You
         know, you call the sheriff’s department and leave those phone messages, and every
         time you do that, they have to fill out a report and circulate it and approve it and file
         it and keep records of it, and that’s really an abuse unless there’s somebody who’s
         committed a crime. And this is not a crime.
         ...
                 And I don’t know, I’m surprised the sheriff hasn’t gotten a restraining order
         to prevent you from calling over there because you’ve got to the point every time you
         call they’ve got to send out a report. . . .5

The trial court denied Mother’s request for attorney’s fees, instructing Mother’s counsel that, to
obtain a fee award, she would be required to file a motion for sanctions pursuant to Rule 11 of the
Tennessee Rules of Civil Procedure. On January 14, 2008, the trial court entered an order consistent
with its oral ruling. The trial court subsequently certified this order as a final appealable order.
From this order, Father now appeals.

                                ISSUES ON APPEAL AND STANDARD OF REVIEW

      On appeal, Father argues that the trial court erred in denying his motion for contempt based
on Mother’s failure to cooperate with Father in compensating for the missed President’s Day


         4
          The trial court also granted Mother’s motion for sanctions in the amount of $300 based upon Father’s noticing
Mother’s deposition but failing to secure court reporting services, thereby causing Mother to expend unnecessary
attorney’s fees.
         5
             The trial judge also cautioned Father:

         I know that there are problems. But I tell you what you’re about to get into because when that child
         gets to be close to teenage years, then he’s going to have a mind of his own. And if something is
         unpleasant about having to come see you, he’ll just refuse to do it. And you’re making it unpleasant.



                                                         -5-
weekend and for failing to comply with the trial court’s order on the six occasions mentioned above
regarding telephone communication. He further argues that the trial court erred in finding no
material change in circumstances to warrant a change in the parenting plan to designate him as the
primary residential parent.

        The trial court’s findings of fact are reviewed de novo on the record, presuming those
findings to be correct unless the preponderance of the evidence is otherwise. Kendrick v. Shoemake,
90 S.W.3d 566, 570 (Tenn. 2002); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); Tenn. R.
App. P. 13(d). In weighing the preponderance of the evidence, the trial court’s findings of fact that
are based on witness credibility are given great weight, and they will not be overturned absent clear
and convincing evidence to the contrary. In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn.
2002). Whether a party facing an allegation of civil contempt actually violated the trial court’s order
is a question of fact, subject to this standard of review. Hawkins v. O'Brien, No.
M2008-02289-COA-R3-CV, 2009 WL 2058802, at *1 (Tenn. Ct. App. July 15, 2009). When a
parent files a petition to modify the parenting plan, the petitioning parent has the burden of showing
that a material change in circumstances has occurred which makes the change serve the child’s best
interest. Blair v. Badenhope, 77 S.W.3d 137, 148 (Tenn. 2002). The trial court’s conclusions of
law are reviewed de novo, with no such presumption of correctness. Kendrick, 90 S.W.3d at 569-70.

                                             ANALYSIS

                                              Contempt

        We first examine whether the evidence preponderates against the trial court’s conclusion that
Mother was not in contempt of court by her failure to compensate for Father’s missed weekend
parenting time in February 2006 and her failure to comply with the trial court’s order regarding
telephone calls on six occasions. In order to establish that Mother was in contempt of the trial
court’s orders, the following must be shown:

       First, the order alleged to have been violated must be “lawful.” Second, the order
       alleged to have been violated must be clear, specific, and unambiguous. Third, the
       person alleged to have violated the order must have actually disobeyed or otherwise
       resisted the order. Fourth, the person’s violation of the order must be “willful.”

Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 354-55 (Tenn. 2008)
(footnotes omitted).

         From our review of the record, we cannot conclude that the evidence preponderates against
the trial court’s finding that Mother’s alleged failure to make up Father’s missed President’s Day
weekend or Mother’s failure to make Alec available for six out of several hundred required
telephone calls at the appointed time did not amount to willful violation of the court’s orders.
Mother testified that she was under the impression that the issue of Father’s missed weekend had
been resolved by her agreement to additional residential parenting time for Father in the summer of
2006. Mother also testified that she had good reason for the six times that Alec missed the telephone
call with Father at the designated time, and that Father eventually spoke to Alec on each of these

                                                 -6-
occasions. Thus, the telephone calls were delayed, not denied. The trial court credited Mother’s
testimony on both of these issues. On appeal, we are required to give great deference to the trial
court’s determination on witnesses’ credibility. See In re Adoption of A.M.H., 215 S.W.3d at 809.
Giving appropriate deference to these credibility determinations, we conclude that the evidence in
the record supports the trial court’s findings. Therefore, we affirm the trial court’s denial of Father’s
petition for contempt.

                                     Modification of Parenting Plan

        Father next argues that the trial court erred in denying his petition to modify the parenting
plan based on the behavior described above and also on Mother’s continued conduct in “alienating
[Father’s] relationship with . . . Alec.” In support of this claim, Father asserts that Mother refuses
to consider exchanging Alec at someplace other than the police station, refuses to attend counseling
regarding issues pertaining to Alec, fails to inform him of medical or dental services related to Alec,
and discourages a close parent/child relationship between him and Alec. Father points to Mother’s
placement of the birthday announcement in the newspaper, indicating that her current husband is
Alec’s father, as evidence of Mother’s intent to discourage Father’s relationship with Alec.

        From our careful review of the record, the evidence does not support Father’s claims that
circumstances are materially different than they were at the time of the final decree.6 Sadly, it
appears from the record that the parties’ difficulties have been more or less constant since the divorce
decree was entered. Certainly, Mother’s misguided “birthday announcement” in the local
newspaper, implying that her husband is Alec’s father, was insensitive to both Father and Alec. For
his part, Father dismisses any attempts by Mother to cooperate with him as merely trying to “look
good” to the trial court, certain that her cooperation was motivated only by his numerous filings
against her. Father’s rigidity regarding Alec’s telephone calls and his “reporting” Mother to law
enforcement undoubtedly creates considerable pressure for young Alec, and indicates that Father
values penalizing Mother more than building a nurturing father/son relationship. Under all of these
circumstances, we must affirm the trial court’s denial of Father’s motion for modification of the
parenting plan.

                                               Fees on Appeal

       Mother has requested her attorney’s fees and costs on appeal pursuant to Tennessee Code
Annotated § 27-1-122, alleging that Father’s appeal is frivolous. The decision of whether to award
damages for the filing of a frivolous appeal rests in the discretion of this Court. Whalum v.
Marshall, 224 S.W.3d 169, 180-81 (Tenn. Ct. App. 2006) (citing Banks v. St. Francis Hosp., 697
S.W.2d 340, 343 (Tenn. 1985)). An appeal is frivolous when it has “no reasonable chance of
success,” or is “so utterly devoid of merit as to justify the imposition of a penalty.” Id. (quoting
Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct. App. 1999); Combustion Eng’g, Inc. v.
Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978)). In this case, even if Father strongly disagrees with


        6
         Father appears to indicate that the operable parenting plan order is the one entered on August 24, 2005;
however, we note that this order did not alter the parenting arrangement set out in the final decree of divorce.

                                                      -7-
the trial court’s determination as to the parties’ credibility, he fails to point to “clear and convincing”
evidence to the contrary. In re Adoption of A.M.H., 215 S.W.3d at 809. Therefore, we are obliged
on appeal to defer to the trial court’s finding that Mother’s testimony was credible. Id. The trial
court credited Mother’s explanation that the telephone calls with Alec did not occur at 8:00 p.m.
because of unavoidable circumstances, and that each telephone call took place later in the evening.
Father admits that the telephone calls were merely delayed. The trial court credited Mother’s
explanation that she accommodated Father’s request for additional parenting time during the summer
of 2006, in part to compensate for the missed President’s Day weekend, and Father admits to
receiving the extra parenting time in the summer. Based on this record, we can only conclude that
Father’s appeal had “no reasonable chance of success.” Whalum, 224 S.W.3d at 180-81. Under the
circumstances in this case, we find that Mother is entitled to her reasonable fees and costs on appeal,
and we remand the case to the trial court to determine the amount of the fee award.

        The decision of the trial court is affirmed, and the case is remanded for further proceedings
consistent with this opinion. Costs on appeal are to be taxed to Appellant James Jeffrey Jackson and
his surety, for which execution may issue, if necessary.




                                                 __________________________________________
                                                 HOLLY M. KIRBY, JUDGE




                                                   -8-
