Lessley v. Shope ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
MARY E. LESSLEY, )
) FILED
Petitioner/Appellee, )
) Appeal No. May 26, 1999
) 01-A-01-9805-CV-00233
Cecil Crowson, Jr.
VS. ) Appellate Court Clerk
) Robertson County Circuit Court
) No. 7862
CHARLES F. SHOPE, JR. )
)
Respondent/Appellant. )
APPEAL FROM THE ROBERTSON COUNTY CIRCUIT COURT AT
SPRINGFIELD, TENNESSEE
THE HONORABLE CAROL CATALANO, JUDGE
COLLIER W. GOODLETT
Assistant Public Defender
19th Judicial Circuit
Clarksville, Tennessee 37040
Attorney for Defendant/Appellant
JOHN KNOX WALKUP
Attorney General and Reporter
SUE A. SHELDON
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 5th Avenue, North
Nashville, Tennessee 37243
Attorney for Plaintiff/Appellee
AFFIRMED AND REMANDED
PATRICIA J. COTTRELL, JUDGE
CONCUR:
CANTRELL, J.
CAIN, J.
OPINION
This case involves an appeal of an order finding Defendant, Charles F.
Shope, Jr., in willful and deliberate civil contempt of court for failure to pay
child support. The order gave Mr. Shope thirty-one days from its entry date
to pay $350.00 in child support arrearage to the clerk of court or face
imprisonment until such time as he purged himself of the contempt. Mr.
Shope challenges the trial court's jurisdiction to issue the contempt order on
the basis of alleged procedural aspects of an attachment issued against him.
He also claims that the underlying divorce judgment that originally set child
support was invalid. He also argues that he was entitled to a jury trial. We
affirm the trial court.
The May 13, 1998 final order which is the subject of this appeal
followed a March 18, 1998 hearing wherein Mr. Shope testified that he quit
his last job in 1997 because he knew the State would soon renew its efforts to
prosecute him for failure to pay child support. He admitted that despite his
lack of any disabilities, he remained voluntarily unemployed to avoid
sanctions for failure to pay the child support. Mr. Shope further testified that
paying child support violated his principles and he believed the original
divorce decree setting and ordering the child support payments was invalid.
The State presented proof that Mr. Shope had paid no child support since
1992.
After hearing the evidence, the trial court found Mr. Shope in deliberate
and wilful contempt of court and ordered him incarcerated on the thirty-first
day after entry of the order unless he purged himself of the contempt by
paying $350.00 to the clerk of court. It also granted Ms. Lessley child
support arrearage.
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That hearing resulted from a January 28, 1998 show cause order
notifying Mr. Shope of the civil contempt charges, setting a hearing date,
and informing him that if the allegations in the Petitioner’s petition were
proved, he would face incarceration. The show cause order was based upon
Petitioner’s amended process/petition for civil contempt and for increase in
child support, filed January 28, 1998. Those pleadings recounted the history
of the litigation between the parties, including Mr. Shope's four previous
contempt citations for failure to pay child support. The petition stated that
Mr. Shope's appeal of the trial court's most recent contempt order, which
sentenced him to ten (10) days incarceration, imposed a fine, awarded Ms.
Lessley $18,149.99, and ordered him to continue paying support and
arrearages, was pending.1 The amended petition sought support payments
from the date Mr. Shope lodged his appeal on September 26, 1997, an
increase in the amount of child support, and incarceration until Mr. Shope
purged the contempt by paying the support and arrearage owed. The trial
court subsequently appointed counsel for Mr. Shope.
I.
In Mr. Shope's appeal of this order, his appellate counsel filed a
"cleaned up" version of a pro se trial brief Mr. Shope authored prior to
appointment of counsel. In this brief, Mr. Shope appears to argue that (1) the
trial court lacked jurisdiction because an earlier attachment violated requisite
statutory procedures; (2) because the contempt order against him was
1
This court has since reversed that September 25, 1997 order finding Mr.
Shope in criminal contempt because the trial court found him indigent and
appointed counsel, but proceeded to hear the case's merits in the absence of
counsel or a waiver of Mr. Shope's right to representation. Lessley v. Shope,
1998 Tenn. App. LEXIS 482, No. 01-A-01-9710-CV-00617 (Tenn. App. July 17,
1998).
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criminal, he received inadequate notice of the charges in violation of his due
process rights and Rule 42 of the Tennessee Rules of Criminal Procedure; (3)
he was denied his right to a jury trial; and (4) the original divorce order
awarding child support was invalid due to the issuance of an ex parte
restraining order, the denial of sanctions against Ms. Lessley and her counsel,
the denial of his motion for appointment of a stenographer, the improper
calculation of the amount of child support, and inadequate notice of a hearing.
We find that Mr. Shope’s arguments lack merit for the reasons set forth
below.
II.
The record refutes Mr. Shope's contention that the trial court lacked
jurisdiction over him. It shows that Mr. Shope resided in Tennessee and the
trial court had exercised jurisdiction over him previously in the original
divorce action and previous child support enforcement proceedings. See
Tennessee Dept. of Human Services v. Daniel, 659 S.W.2d 625, 626 (2)
(Tenn. App. 1983). His prior submission to the trial court's jurisdiction was
sufficient to establish personal jurisdiction here. See Branch v. Branch, 249
S.W.2d 581, 582 (1) (1952).
In addition, the record reflects that Mr. Shope was served with the
amended petition on January 28, 1998 and that Mr. Shope appeared at various
hearings including the May 13, 1998 hearing upon which the appealed order
is based. Obviously, the trial court had personal jurisdiction over Mr. Shope
and jurisdiction to enforce its prior orders. See Dixie Sav. Stores, Inc. v.
Turner, 767 S.W.2d 408, 410 (Tenn. App. 1988).
Mr. Shope’s arguments, however, that the court lacked jurisdiction are
based primarily on his assertions that certain procedural irregularities existed
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in an attachment which was issued by the court on November 7, 1997,
commanding Mr. Shope's arrest and appearance to answer a charge of
contempt for failure to comply with orders requiring him to pay child support
and appear in court. The trial court set bond in the amount of $2,500.
During a December 18 hearing on the matter, the State successfully
moved to amend its pleadings to reflect that it sought civil, rather than
criminal, contempt sanctions for the time period between September 26, 1997
and November 7, 1997. At a subsequent hearing, the trial court informed Mr.
Shope of the nature of a civil charge, the applicability of the rules of civil
procedure, and the available civil sanctions.
Mr. Shope’s claims regarding any irregularities in the attachment
procedure are simply misplaced. The order which is the subject of this appeal
is a final order entered after a full hearing where Appellant was represented
by counsel and where the hearing was preceded by clear, adequate, and
apparently repeated, notice of the nature of the proceedings and the possible
sanctions. Mr. Shope was found guilty of willful and deliberate civil
contempt of court and sanctioned appropriately for civil contempt. Nothing
about the earlier attachment has any relevance to the civil contempt
proceeding which is under appeal. Further, Appellant’s failure to indicate
how the errors he alleges in the attachment harmed him with regard to the
order finding him in civil contempt precludes reversal. Southern Bell
Telephone and Telegraph Co. v. Skaggs, 241 S.W.2d 126, 134 (11) (1951) (a
showing of both harm and error is required for reversal).
Appellant was not found guilty of criminal contempt nor sentenced as
punishment for criminal contempt. It appears that the criminal contempt
charges of which Mr. Shope complains were abandoned by the State (acting
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on behalf of Petitioner) when the pleadings were amended to allege civil
contempt. Appellant has not alleged and cannot show any harm to him from
the amendment of the pleadings to seek civil rather than criminal contempt.
See Helson v. Cyrus, 1999 WL 166414, * 2, No. 01-A-01-9809-CH-00507
(Tenn. App., March 29, 1999).
The only order of the trial court which is before this court for review is
the order finding Appellant in deliberate and willful civil contempt and
ordering his incarceration if, and so long as, he fails to comply with the
court’s orders to pay child support. Since Appellant “carried the keys to the
jail,” the court’s contempt order was clearly civil, in substance as well as
form. Crabtree v. Crabtree, 716 S.W.2d 923, 925 (Tenn. App. 1986). Mr.
Shope’s assertions that the procedure was criminal in nature are simply
incorrect, and his arguments based on that erroneous assertion must fail.
III.
We reject Mr. Shope's contention that reversal is required because his
right to a jury trial was abridged. Generally, the constitutional right to a jury
trial does not attach to civil contempt proceedings. See Pass v. State, 184
S.W.2d 1, 3 (Tenn. 1944). Moreover, the record contains no showing that Mr.
Shope ever asserted a proper demand for a jury trial. Tenn. R. App. P. 36 (a).
IV.
Mr. Shope's collateral attack on the underlying judgment of divorce
likewise provides no ground for reversal. Such attacks are viable only if it
appears affirmatively on the face of the record that the trial court lacked
subject matter jurisdiction, ruled on an issue wholly outside the pleadings
without the parties' consent, or lacked jurisdiction over the complaining party.
Gentry v. Gentry, 924 S.W.2d 678, 680 (1) (Tenn. 1996). Here, Mr. Shope's
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failure to provide any record of the divorce proceeding precludes a showing
of the elements necessary to collaterally attack the judgment. See id.V.
We find that Appellant has not shown any procedural, jurisdictional, or
substantive errors of the trial court in its order finding Mr. Shope in deliberate
and willful contempt of court or in the sanctions ordered. Accordingly, we
affirm the trial court's disposition of this case. This case is remanded to the
trial court for such further proceedings as may arise. Costs are taxed to Mr.
Shope.
________________________________
PATRICIA J. COTTRELL, JUDGE
CONCUR:
_______________________________________
BEN H. CANTRELL, PRESIDING JUDGE (M.S.)
_______________________________________
WILLIAM B. CAIN, JUDGE
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