                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  May 20, 2010 Session

               LARA L. BATTLESON v. DEAN L. BATTLESON

               Appeal from the Chancery Court for Washington County
                    No. 8094    G. Richard Johnson, Chancellor


                No. E2010-00049-COA-R3-CV - FILED JUNE 28, 2010


Approximately 29 months after the parties’ divorce became final, Lara L. Battleson (“Wife”)
filed a motion in the trial court asking that Dean L. Battleson (“Husband”) be held in
contempt because of his failure to pay child support. Wife served a copy of the motion and
notice of hearing on Douglas R. Beier (“Counsel”), the attorney who had represented
Husband in the divorce action. Counsel filed a motion to dismiss supported by an affidavit
stating that he no longer represented Husband and that his mail to Husband had been returned
undeliverable. The trial court found that service on Counsel was sufficient. As a
consequence of this ruling, the court denied Counsel’s motion to dismiss; it also granted the
motion for contempt. Husband appeals. We vacate the trial court’s judgment of contempt
and remand for further proceedings.

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

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Douglas R. Beier, Morristown, Tennessee, for the appellant, Dean L. Battleson.

Thomas C. Jessee, Johnson City, Tennessee, for the appellee, Lara L. Battleson.

                                        OPINION
                                                    I.

        As stated above, Counsel represented Husband in this divorce action. The judgment
became final on March 16, 2007, following an earlier appeal to this Court.1 Apparently,
while the case was on appeal, Husband, by Counsel, filed a motion to modify the court-
approved parenting plan. After the case was remanded following the earlier appeal, the
parties attempted unsuccessfully to mediate the parenting issue. The neutral filed his report
with the chancery court on August 3, 2007, which states, in part, “[t]he parties and their
respective attorneys appeared and . . . participated in all good faith . . . .” The neutral served
a copy of the report on Counsel. On October 9, 2008, the court, sua sponte, dismissed
Husband’s pending motion to modify because of his failure to prosecute. Pursuant to Tenn.
R. Civ. P. 58(3), the order of dismissal bore the certificate of the clerk and master that it was
“served upon Thomas Jessee, attorney for Plaintiff, P.O. Box 997, Johnson City, TN 37605,
and Douglas R. Beier, attorney for Defendant, P.O. Box 1754, Morristown, TN 37816-1754,
and the parties at the addresses listed above.”

       Some ten months later, on or about August 11, 2009, Wife filed her motion asking that
Husband be held in contempt for failure to pay child support and for failing to meet certain
other monetary obligations imposed by the judgment of divorce. No summons was issued
and the motion was not personally served on Husband. Instead, Wife mailed a copy to
Counsel.

        Counsel responded with a pleading entitled “Jarvis Notice/Motion to Dismiss.” The
full text of the motion is as follows:

                  Douglas R. Beier, formerly counsel of record, files this Notice
                  Pursuant to Jarvis v. Jarvis (664 S.W.2d 694) that he does not
                  represent Dean L. Battleson and has not for several years.
                  Accordingly, this Notice from Plaintiff is not Notice to
                  Defendant. Counsel has advised Plaintiff’s attorney of same
                  (fax letter attached as Exhibit 1), but this matter remains on the
                  docket.

                  Plaintiff has not served process on Defendant and for this
                  limited purpose only, counsel for Defendant appears to raise this
                  Objection and Motion to Dismiss pursuant to TRCP 12.02.




       1
           See Battleson v. Battleson, 223 S.W.3d 278 (Tenn. Ct. App. 2006).

                                                   -2-
(Capitalization in original.) Counsel also filed his affidavit in support of the motion to
dismiss. The affidavit states, in pertinent part, as follows:

              My representation of Dean Battleson terminated several years
              ago, shortly after the appeal to the Court of Appeals in 2006.

              I advised attorney Tom Jesse of same in a faxed letter (Exhibit
              1).

              I no longer represent Dean Battleson; the information I sent him
              came back in the mail.

              I am not his agent for service of process.

We will not repeat the contents of the “faxed letter” since it adds nothing of substance to the
affidavit.

       A hearing on the motion for contempt was continued in light of the motion to dismiss.
The motion for contempt was reset for a hearing to be held November 16, 2009. “Notice”
to Husband of this setting was accomplished by notice served on (1) Counsel, (2) Husband
at an address in North Carolina, and (3) attorney Monica Guy of North Carolina. Wife’s
counsel states in her brief that Monica Guy is Husband’s lawyer in North Carolina and that
Husband’s North Carolina address is his new address, but there is nothing in the record to
substantiate the source or accuracy of Husband’s address or the existence or role of North
Carolina counsel. Husband did not appear in person at the hearing below.

       The trial court denied the motion to dismiss in an order that states, in pertinent part:

              The first issue before the Court was Mr. Beier’s Jarvis
              Notice/Motion to Dismiss. The file reflects that the Notice of
              Hearing for the Plaintiff’s Motion to hold the Defendant in
              contempt and to obtain judgment for delinquent child support
              was sent to Mr. Beier prior to his Jarvis Notice/ Motion to
              Dismiss. The file further reflects that Mr. Beier had not
              withdrawn as Mr. Battleson’s attorney of record at the time the
              motion was filed. Mr. Beier’s Jarvis Notice/Motion to Dismiss
              was not filed until after Ms. Battleson’s Motion was filed. The
              Court finds that Mr. Beier is counsel for Mr. Battleson for
              purposes of this motion and that Defendant has been properly
              served with process.

                                              -3-
In the same order, the court found that Husband was in “willful, intentional and purposeful
contempt” and granted judgment against him in the amount of $9,481.15.

                                             II.

      Husband, by Counsel, appeals the judgment of contempt, raising the following issues
which we repeat verbatim from his brief:

              Whether the Trial Court erred in finding that [Husband] had
              been served with process by mailing a Motion to his prior
              attorney 10 months after the entry of an Order of Dismissal and
              in failing to grant [Husband’s] Motion to Dismiss pursuant to
              Rule 12.02 of the Tennessee Rules of Civil Procedure.

              Whether the Trial Court erred in finding that [Counsel]
              continued as counsel of record and that [Wife] could continue
              this litigation by Motion filed 10 months after the entry of an
              Order of Dismissal.

                                            III.

       A trial court’s findings of fact are reviewed de novo with a presumption that they are
correct unless the evidence preponderates against the findings. Tenn. R. App. P. 13(d);
Robertson v. Robertson, 76 S.W.3d 337, 342 (Tenn. 2002). A trial court’s conclusions of
law are reviewed de novo with no accompanying presumption of correctness. Kendrick v.
Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002).

                                            IV.

        Early in his appellate brief, Husband boldly states “that the filing of this motion
constitutes a new and original action which requires leading process with the issuance and
service of a summons.” However, he quickly retreats from this position in the next paragraph
of his brief which states:

              Tennessee Code Annotated 36-5-101 provides that the Court
              granting a divorce has continuing jurisdiction to enforce or
              modify its support or custody decrees. Since that jurisdiction is
              continuing, notice requirements upon commencement of an
              action to modify or enforce the decree are not so stringent as
              those for a new action. Sowell v. Sowell, 493 S.W.2d 86 (Tenn.

                                             -4-
              1973). What is required is that the adverse party be given
              “reasonable notice,” Darty v. Darty, 232 S.W.2d 59 (Tenn.
              1949), and the test of same is a “fairness test,” whether the
              manner and means of notice “is appropriate to the ends of
              fairness.” Sowell, supra at p. 88.

Husband’s position before the trial court was consistent with this quoted assertion.
Husband’s motion to dismiss was based on Jarvis v. Jarvis, 664 S.W.2d 694 (Tenn. Ct. App.
1983), which, at page 696, contains language and case citations nearly identical to what we
have quoted from Husband’s brief. Accordingly, we do not view this case as presenting the
broad issue of whether a petition for contempt, by whatever name, constitutes a new action
that must be accompanied by the issuance and service of a summons. We do not decide this
broad issue in this case simply because, in view of Counsel’s position as recited above, we
do not believe it is squarely presented on this appeal. A resolution of this question must
await another day.

       Instead, we focus on the second issue which we view as coming down to whether,
under Jarvis, the trial court erred in finding that, at the time of the filing of the motion for
contempt, the relationship between Husband and Counsel was such that notice to Counsel
could be imputed to Husband. Jarvis, like the present case, involved post-judgment filings
in a divorce case. In April 1982, the Jarvis wife filed a petition to modify a judgment
entered in June 1981. Id. at 695. Summons was issued with directions to serve it on the
attorney for the Jarvis husband. Id. The attorney refused to accept service. The matter went
before the trial court on a motion for default filed by the Jarvis wife and a motion to dismiss
the post-judgment petition filed by the Jarvis husband. The trial court denied the motion to
dismiss and granted the wife’s petition to modify. This Court’s language in Jarvis
concerning when service on counsel can be imputed to the party is worth repeating in its
entirety:

              The question of when notice to a litigant’s or former litigant’s
              attorney constitutes reasonable notice to the client himself turns
              upon the nature of their relationship at that time. See Annot., 62
              A.L.R.2d 544, § 6[a] & [b] (1958). If the attorney still
              represents the client, then notice is sufficient. If, on the other
              hand, the attorney has had no contact with the client for an
              extended period of time and has no means of contacting him,
              notice is not sufficient. In the record before us there is no
              showing of what the relationship was between the Appellant and
              Attorney Lawrence at the time of the attempted service of
              notice. The Appellee, in her brief, argues a number of facts

                                              -5-
              which she says we should consider. However, they are matters
              outside the record or relate to documents which are not shown
              to have been properly introduced into the record. We find this
              issue cannot be properly resolved on the record before us and
              remand the case under T.C.A. § 27-3-128 on this issue.

              We believe the proper procedure to follow in a case such as this
              one is for the attorney who is unaware of his or her former
              client's whereabouts to file a Rule 12.02, T.R.C.P., motion to
              dismiss for insufficient service of process, insufficient process,
              or lack of personal jurisdiction, as was done in this case. This
              motion should be accompanied by the attorney's affidavit stating
              that he no longer represents the client and that he has no
              knowledge of his present whereabouts, or such other facts as he
              feels make service of notice on him inappropriate. If the
              opposing party has conflicting information, a counter-affidavit
              may be filed. The court may hold a hearing on the matter if
              necessary to determine whether the client has received that
              reasonable notice to which he is entitled under our decisions.
              This will be the proper course for the trial court to follow on
              remand of this case. The issue will, of course, be decided in
              light of the relationship between Attorney Lawrence and Mr.
              Jarvis at the time of attempted service.

              If, on remand, the court determines that at the time of the
              attempted service of notice the relationship between the
              Appellant and Attorney Lawrence was such as to make service
              on the attorney appropriate, the matter need not proceed further.
              If the circumstances are such as to make such notice
              inappropriate then the matter should be reheard after proper
              notice. Either party aggrieved by the court's holding has the
              right to appeal.

Id. at 696-97. In Jarvis, we offered “advice to attorneys by the editor of 62 A.L.R.2d at page
557” in an addendum. Id. at 697. The substance of the advice was that an attorney should
withdraw from domestic relations cases “as soon as the action has resulted in a final
judgment no longer subject to appeal” to avoid the risk of being served with post-judgment
pleadings. Id.




                                             -6-
        We conclude in the present case that the evidence preponderates against the trial
court’s finding that Counsel continued to represent Husband at the time the motion for
contempt was filed. The significant thing that is present in this case that was not present in
Jarvis is the affidavit of Counsel. In it, he denies the existence of a continuing attorney-
client relationship. Further, Counsel’s affidavit states that by the time he was served with
the motion, he had lost contact with Husband. Wife offers nothing to refute Counsel’s
affidavit other than the criticism that Counsel did not withdraw as advised in Jarvis.2
Likewise, the only fact cited by the trial court in support of its factual finding that Counsel
continued to represent Husband is that Counsel did not file a motion to withdraw until after
the motion for contempt was filed. We do not view the “advice” offered in Jarvis to be
controlling. The attorney for the Jarvis husband had not withdrawn, yet the case was
remanded for a determination of the true relationship between counsel and the client. If the
lack of withdrawal had been dispositive, no remand would have been necessary.

         We believe that Counsel’s unrefuted affidavit relating to service made 10 months after
all issues in the case had been addressed places the facts within the language in Jarvis that
“[i]f . . . the attorney has had no contact with the client for an extended period of time and
has no means of contacting him, notice is not sufficient.” Id. at 697. Accordingly, we hold
that the trial court erred in not invalidating the attempted service on Husband by way of the
service on Counsel.

                                                     V.

       The trial court’s order holding Husband in contempt is vacated and this case is
remanded to the trial court for further proceedings consistent with this opinion. Costs on
appeal are taxed to the appellee, Lara L. Battleson.


                                                          _______________________________
                                                          CHARLES D. SUSANO, JR., JUDGE




        2
          We note that Wife’s notice of the rescheduled hearing was purportedly mailed directly to Husband
at his new address and to a second attorney in North Carolina. As we previously noted, there is nothing in
the record advising us as to the source of the new address or the role of North Carolina counsel. Wife does
not argue that the second notice of hearing constitutes reasonable or fair notice as described in Jarvis, nor
did the trial court base its finding of service on anything other than Tenn. R. Civ. P. 5 service on Counsel.
Accordingly, we will not speculate regarding an issue that was not litigated below.

                                                    -7-
