Patricia Gay Patterson Lattimore v. James S. Lattimore, Jr. ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 25, 2013 Session
PATRICIA GAY PATTERSON LATTIMORE v. JAMES S. LATTIMORE,
JR.
Direct Appeal from the Circuit Court for Williamson County
No. 93699 Derek K. Smith, Judge
No. M2012-02674-COA-R3-CV - Filed October 24, 2013
Wife filed a petition to hold husband in criminal contempt for breaching provisions of their
marital dissolution agreement that required husband to pay alimony, provide medical
insurance, and maintain life insurance policies. Following a bench trial, husband was found
guilty of criminal contempt for seventy separate violations of the agreement. The trial court
awarded wife $157,850.00 for alimony arrearages, $8,075.25 to reimburse medical insurance
expenses, and $11,801.19 for attorney’s fees. The trial court also sentenced husband to thirty
days of incarceration, but stayed the sentence for ninety days pending husband’s compliance
with the judgment. After reviewing the record, we affirm in part, reverse in part, and remand
for further proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
part, Reversed in part and Remanded
D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.
Angela R. Hoover and Justin Lee Crouch, Franklin, Tennessee, for the appellant, James S.
Lattimore, Jr.,
David William Garrett, Franklin, Tennessee, for the appellee, Patricia Gay Patterson
Lattimore.
OPINION
I. B ACKGROUND AND P ROCEDURAL H ISTORY
Patricia Gay Patterson Lattimore (“Wife”) and James S. Lattimore, Jr. (“Husband”)
were divorced by final judgment on September 6, 1994. The final decree of divorce
approved and incorporated a marital dissolution agreement (“MDA”) entered and signed by
the parties. Among other things, the MDA required Husband to do the following until
Wife’s death or remarriage: (1) pay to Wife alimony in futuro of $4,000 1 per month, due at
the first of each month, (2) continue to provide medical insurance for Wife, and (3) maintain
all existing life insurance policies on his life with Wife named as sole beneficiary thereon.
On June 5, 2009, Wife filed a petition in the Circuit Court for Williamson County
seeking to hold Husband in criminal contempt for willful failure to comply with the MDA.
Wife alleged that as of the date of the filing, Husband owed an alimony arrearage of $4,000
for a missed monthly payment in May 2009. Additionally, Wife alleged that Husband had
never provided medical insurance nor provided documentation of life insurance as required
by the MDA. Wife requested that the court (1) hold Husband in willful criminal contempt
for failure to comply with the MDA, (2) award Wife $4,000 for alimony in arrearages, plus
any further arrearages that would accumulate during litigation, (3) award Wife
reimbursement for all monies she spent on medical insurance, (4) order Husband to provide
proof of requisite life insurance, and (5) award Wife reasonable attorney’s fees and costs.
Husband responded by denying that he willfully failed to comply with the MDA.
Husband claimed that he was unable to work as a result of his declining health and that his
retirement accounts had been depleted to meet his alimony obligations through April 2009.
Husband further claimed that he had provided medical insurance for Wife through his
employer until he was forced to retire and was not obligated to maintain any life insurance
policies under the MDA because none existed at the time of divorce. Husband asked that the
trial court not hold him in criminal contempt of court and deny Wife’s requests for judgment.
At trial, Wife presented evidence that indicated Husband was able to pay his support
obligations. In 2004, Husband offered Wife a $250,000 lump sum payment to settle the
remainder of his alimony obligation. When Wife declined the offer, Husband warned her
that unless some other agreement was reached, he would run out of money in September
2009. Subsequently, in a letter dated January 2006, Husband warned Wife that if she would
not accept his offer, he would transfer the remainder of his assets to his current spouse, Joan
Lattimore (“Joan”). The trial court found that Husband did just that.
In 1993, Husband purchased a rundown piece of property out of foreclosure. He
restored the property and sold it in 2003 for $2,350,000. Husband made a profit of over
1
The MDA required Husband to make alimony payments of $3,500 per month until June 1996, at
which time the amount increased to $4,000 per month. Payments prior to June 1996 are not relevant in this
matter.
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$1,600,000 from the sale, which Husband readily admitted he transferred to Joan. At trial,
Husband gave conflicting accounts of what he did with the profits. First, Husband claimed
he gave the profits to Joan because he felt morally obligated to honor an agreement the two
made prior to their marriage. Husband purportedly told Joan that if she would refurbish the
property, he would give her any profits from its eventual sale. However, on cross-
examination Husband admitted that the profits were initially put into a investment account
jointly owned by Husband and Joan. In any event, the profits from the sale were used to
build the $1,296,1002 home that Husband and Joan live in currently. Regarding ownership
of the couple’s current home, Husband again gave conflicting testimony. Husband initially
claimed that the couple’s current home belonged solely to Joan, and that he was privileged
to live there. However, on cross-examination Husband admitted the land for the home was
originally titled to Husband and Joan jointly. Husband initially testified he was listed on the
title to the land by mistake, but he later admitted it was done for tax purposes.
Based on the inconsistencies of his testimony, the trial court found that Husband was
not a credible witness. The trial court found that at the time of the couple’s divorce, Husband
maintained a life insurance policy naming Wife the sole beneficiary. Husband gave up the
policy in 2000. The trial court also found that Husband failed to provide Wife medical
insurance since his retirement and that since that time, Wife had paid for her own medical
insurance for thirty-six months. Finally, the trial court found that Husband had willfully
failed to make alimony payments for thirty-three months. Based on all of the evidence
presented, the trial court determined beyond a reasonable doubt that Husband had the ability
to meet each of his obligations under the MDA and willfully declined to do so.
The trial court convicted Husband of thirty-three counts of criminal contempt for
failure to pay alimony,3 thirty-six counts for failure to provide medical insurance,4 and one
count for failure to maintain life insurance. Additionally, the trial court awarded Wife a
judgment against Husband of $157,850.00 for alimony arrearage, $8,075.25 to reimburse
Wife’s medical insurance payments, and $11,801.19 for her reasonable attorney’s fees.
Though he was found guilty on seventy counts of criminal contempt, the trial court only
sentenced Husband based on three counts–one for each violated provision of MDA.
Husband was sentenced to ten days incarceration for each of the three counts, but the trial
court stayed the thirty day sentence for ninety days to give Husband an opportunity to pay the
aforementioned judgment. The court ordered that if Husband paid the judgment in full
2
Appraisal value in 2012.
3
One count for each missed monthly alimony payment.
4
One count for each month Wife paid for her own insurance.
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within ninety days of sentencing, the thirty day sentence would be suspended. After the court
denied Husband’s motion for a new trial, he timely filed a notice of appeal with this Court.
II. I SSUES P RESENTED
On appeal Husband raises the following issues, as restated, for our review:
1. Whether the trial court erred by failing to provide Husband proper
notice of the charges against him.
2. Whether the trial court erred by ordering a ninety day stay on
Husband’s sentence.
3. Whether the trial court erred by finding that Husband’s failure to
comply with the MDA was willful and that Husband had the ability to
comply.
4. Whether the trial court erred by awarding attorney’s fees to Wife.
III. S TANDARD OF R EVIEW
Our review of the record is de novo upon the record without any presumption of
correctness attaching to the trial court’s conclusions of law. Tenn. R. App. P. 13(d);
Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002). We do, however, presume the trial
court’s factual findings to be correct unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995).
In criminal contempt cases, guilt must be established by proof beyond a reasonable
doubt. Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996). We review the trial court’s
decision of whether to impose criminal contempt sanctions under an abuse of discretion
standard and we will only reverse its criminal contempt convictions “when the evidence is
insufficient to support the trier-of-fact’s finding of contempt beyond a reasonable doubt.”
Moody v. Hutchison, 159 S.W.3d 15, 25 (Tenn. Ct. App. 2004) (quoting Thigpen v. Thigpen,
874 S.W.2d 51, 53 (Tenn. Ct. App. 1993)).
IV. D ISCUSSION
A. Notice of the Charges
First, Husband contends that Wife’s contempt petition did not provide adequate notice
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of the charges against him. Wife’s petition requests that the court hold Husband in criminal
contempt for “each act of criminal contempt,” and specifies three provisions of the MDA that
Husband allegedly violated: (1) Husband’s obligation to make monthly alimony payments,
(2) Husband’s obligation to provide medical insurance for Wife, and (3) Husband’s
obligation to maintain life insurance policies naming Wife as sole beneficiary. Husband
argues that, at most, Wife’s petition put him on notice that he could be convicted of three
counts of criminal contempt. Husband contends that he was never aware that he could be
convicted of seventy counts of criminal contempt and therefore all of the trial court’s
convictions should be overturned. We agree that Husband was only properly notified of
three counts of criminal contempt. We therefore uphold those three convictions, while
reversing the other sixty-seven.
Criminal contempt is either direct or indirect. Disruptive or disobedient actions that
take place in the presence of the court constitute direct criminal contempt. State v. Maddux,
571 S.W.2d 819, 821 (Tenn. 1978). Trial courts may impose immediate punishment for
direct contemptuous acts to prevent further disruption of judicial proceedings. State v.
Turner, 914 S.W.2d 951, 956 (Tenn. Crim. App. 1995). Indirect criminal contempt arises
from contemptuous acts committed outside of the court’s presence. Maddux, 571 S.W.2d at
821. Trial courts may impose punishment for indirect criminal contempt only after assuring
the accused party receives notice pursuant to Tennessee Rule of Criminal Procedure section
42(b). Long v. McAllister-Long, 221 S.W.3d 1, 14 (Tenn. Ct. App. 2006). In pertinent part,
Tennessee Rule of Criminal Procedure section 42(b) provides that “[t]he criminal contempt
notice shall: (A) state the time and place of the hearing; (B) allow the defendant a reasonable
time to prepare a defense; and (C) state the essential facts constituting the criminal contempt
charged and describe it as such.” Tenn. R. Crim. P. 42(b) (2012).
In order to provide adequate notice, parties seeking to hold another in indirect criminal
contempt should draft their petitions to comply with Tenn. R. Crim. P. 42(b)’s notice
requirements. Long, 221 S.W.3d at 13. It is important that the petition provide adequate
notice of the charges because “[p]roviding this notice at an early stage better enables the
accused to invoke his or her procedural rights.” State v. Thornton, No. M2011-02444-CCA-
R3-CD, 2013 WL 322202 at *5 (Tenn. Crim. App. Jan. 29, 2013) (citing United States v.
United Mineworkers, 330 U.S. 258, 374 (1947) (Rutledge, J., dissenting) (stating that “[o]ne
who does not know until the end of litigation what his procedural rights in trial are, or may
have been, has no such rights”). In Long v. McAllister-Long, we defined the notice necessary
to meet the requirements of Tenn. R. Crim. P. 42(b) as follows:
Adequate notice is notice that is clear and unambiguous to the average citizen.
Because the same conduct can constitute both civil contempt and criminal
contempt and because both contempt proceedings may carry with them the
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possibility of incarceration, it is imperative that notice specifically charge a
party with criminal contempt. Adequate notice encompasses, but is not limited
to, the mandates of Tenn. R.Crim. P. 42(b), which require that notice state the
time and place of the hearing, allow the defendant reasonable time to prepare
a defense, and state succinctly for the accused the “essential facts” constituting
the charge. Essential facts are those which, at a minimum, (1) allow the
accused to glean that he or she is being charged with a crime, rather than being
sued by an individual, (2) enable the accused to understand that the object of
the charge is punishment—not merely to secure compliance with a previously
existing order, and (3) sufficiently aid the accused to determine the nature of
the accusation, which encompasses the requirement that the underlying court
order allegedly violated by the accused is itself clear and unambiguous.
Long, 221 S.W.3d at 13-14 (internal citations omitted).
Wife’s petition unambiguously requests that Husband be held in criminal contempt.
Her petition alleges that Husband willfully violated the terms of the parties’ MDA by failing
to pay alimony for May 2009, failing to provide medical insurance, and failing to provide
proof of requisite life insurance. It goes on to request that the court find Husband in willful
criminal contempt for “each act of criminal contempt.” However, the petition does not
define what actions or inactions constitute “each act of criminal contempt.” Wife argues that
because Husband was the one responsible for the alimony payments, he knew how many he
had missed. Though we agree with that statement, the petition does not indicate that each
missed alimony payment and each month Wife paid for her own medical insurance should
constitute a separate count of criminal contempt. Based on the language of Wife’s petition,
we cannot say that it put Husband on notice that he could potentially be convicted of seventy
counts of criminal contempt. Rather, the petition’s plain language indicates that Husband
may be convicted of only three counts of criminal contempt. Therefore, all convictions based
on conduct not charged, here sixty-seven counts, are reversed.
As noted, proper notice was given for three counts of criminal contempt–one for
failure to pay alimony, one for failure to provide medical insurance, and one for failure to
provide proof of requisite life insurance. The trial court sentenced Husband to ten days of
incarceration for each of those convictions and stayed the sentence for ninety days pending
Husband’s compliance with the judgment. Those three convictions and their resulting
sentences are not affected by the ruling in this section.
B. 90-Day Stay on Sentence
Husband also contends that the trial court erred by staying his prison sentence for
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ninety days to coerce his compliance with the judgment. Husband argues that coercive
remedies are appropriate only in civil contempt proceedings and should not be applied in
criminal contempt cases. Husband argues that because the trial court improperly ordered a
coercive, civil remedy based on a petition for criminal contempt, his conviction should be
reversed. We disagree.
Husband’s argument focuses on the policies underlying civil and criminal contempt
proceedings. Civil contempt proceedings are designed to coerce compliance with an order,
thereby securing the private rights established by the order. Overnite Transp. Co. v.
Teamsters Local Union No. 480, 172 S.W.3d 507, 510 (Tenn. 2005). When a court orders
imprisonment for civil contempt, compliance with the order will result in the charged party’s
immediate release. Id. at 511. It is often said that a party convicted of civil contempt,
“carries the keys to his prison in his own pocket.” State ex rel. Anderson v. Daugherty, 191
S.W. 974, 974 (Tenn. 1917). Conversely, criminal contempt is designed to “preserve the
power and vindicate the dignity and authority of the law, and the court as an organ of
society.” State v. Beeler, 387 S.W.3d 511, 520 (Tenn. 2012) (quoting Black v. Blount, 938
S.W.2d 394, 398 (Tenn. 1996)). Sanctions for criminal contempt are designed to punish past
behavior rather than coerce compliance or influence future behavior. See id. at 520.
Therefore, when a court orders imprisonment for criminal contempt, compliance with the
order will not normally shorten the term of incarceration–“the defendant is furnished no key.”
Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 442 (1911).
Despite the underlying policy differences between civil and criminal contempt, in
similar criminal contempt cases we have held that reserving punishment pending a party’s
compliance with the court order is “tantamount to the imposition of a suspended sentence.”
Sprague v. Sprague, No. E2012-01133-COA-R3-CV, 2013 WL 3148278, at *5 (Tenn. Ct.
App. June 18, 2013). In fact, we recognize that “[i]t is not unusual for a court that has found
an individual in criminal contempt for violating its order to suspend a sentence imposed as
a sanction for that contempt.” Coffey v. Coffey, No. 2012-00143-COA-R3-CV, 2013 WL
1279410, at *8 (Tenn. Ct. App. Mar. 28, 2013) (citing Cansler v. Cansler, No. E2008-01125-
COA-R3-CV, 2010 WL 342652, at *10 (Tenn. Ct. App. Feb. 1, 2010)); see also Wilkinson
v. Wilkinson, No. M2010-00026-COA-R3-CV, 2011 WL 5986405, at *2 (Tenn. Ct. App.
Nov. 29, 2011); Sloan v. Poff, No. M2009-01839-COA-R3-JV, 2011 WL 1166845, at *10
(Tenn. Ct. App. Mar. 29, 2011). In light of the foregoing, we find the trial court did not err
by staying Husband’s sentence for ninety days to give him the opportunity to avoid
incarceration.
C. Sufficiency of the Evidence
Husband further contends that the evidence submitted at trial does not support the trial
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court’s conclusion that he willfully disobeyed the provisions of the MDA. Once a defendant
has been convicted of criminal contempt, he loses the presumption of innocence he had at
trial. Simpkins v. Simpkins, 374 S.W.3d 413, 420 (Tenn. Ct. App. 2012). Our standard of
review on appeal is whether, considering the evidence in the light most favorable to the
prosecution, any trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Cottingham v. Cottingham, 193 S.W.3d 531, 538 (Tenn. Ct. App. 2006)
(citing Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Black v.
Blount, 938 S.W.2d 394, 399 (Tenn. 1996)). We afford the prosecution the strongest
legitimate view of the evidence in the record and all legitimate inferences that may be drawn
therefrom. State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003). Questions regarding
witness credibility, the weight to be given to the evidence, and any factual issues raised by
the evidence are resolved by the trier of fact. Id. Husband contends that even if the evidence
is viewed in a light most favorable to the prosecution, it is insufficient to support the criminal
contempt convictions.
The trial court found Husband guilty of criminal contempt under Tennessee Code
Annotated section 29-9-102(3), which requires “willful disobedience” with a court order.
Tenn. Code Ann. § 29-9-102(3) (2012) (emphasis added). The trial court relied on evidence
of Husband’s extravagant lifestyle to reach the conclusion that he had the financial ability
to comply with the MDA. Husband argues that although his lifestyle appears to indicate that
he is financially stable, he is actually supported by his current spouse, Joan, and her financial
success. He contends that his failure to comply with the MDA was not willful and he
therefore cannot be convicted of criminal contempt under the statute. We disagree. We think
that the evidence in the record is more than sufficient to find that Husband had the ability to
pay his financial obligations under the MDA.
The trial court affirmatively found beyond a reasonable doubt that Husband
purposefully transferred major assets to Joan in an attempt to avoid his financial obligations
under the MDA. At trial, Husband readily admitted that he transferred over $1,600,000 in
profits from the 2003 sale of refurbished property to Joan. That money was used to purchase
the couple’s current home, which has been valued at $1,296,100. Husband also admitted to
setting up a shell corporation, of which Joan is the sole owner, for ownership of a forty-five
foot recreational vehicle the Husband purchased in 1999 for $650,000. In 2006, Husband
even explicitly stated in a letter to Wife that if she would not accept an offer to end his
alimony obligations, he would be left with no choice but to transfer his assets to Joan.
The trial court found additional evidence that Husband and Joan enjoyed an
extravagant lifestyle, even after Husband claimed he was in financial trouble in 2004. Since
2004, Husband has taken trips to Vietnam, Australia, Indonesia, Italy, and Mexico, though
Husband testified that a portion of those trips was reimbursed by a company that paid
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Husband to lead motorcycle tours. Husband and Joan also took trips that were not
reimbursed. In 2009, they vacationed in Italy. For the majority of 2011, Husband and Joan
traveled throughout the United States, visiting Arizona, Colorado, Oregon, California,
Alabama, and Ohio. The couple also enjoyed an extensive wine collection. In 2009,
Husband charged a purchase of $1,209.60 at a California winery to a credit card in his name
only. Husband claims that his luxurious lifestyle has been wholly supported Joan. However,
the trial court found that Husband was not a credible witness based on his inconsistent
testimony. The trial court affirmatively found that Husband had the ability to make his
alimony payments and willfully declined to do so. The court found specifically that Husband
transferred major assets to Joan in an attempt to avoid his obligations under the MDA. We
think that, viewing the evidence in the light most favorable to the prosecution, the evidence
more than supports the trial court’s findings beyond a reasonable doubt. We therefore affirm.
D. Attorney’s Fees
Husband contends that the trial court erred in awarding attorney’s fees to Wife
because attorney’s fees generally cannot be awarded in criminal contempt cases. However,
we think that in this case they are warranted. The trial court awarded Wife attorney’s fees
pursuant to Tennessee Code Annotated section 36-5-103(c). That section “clearly authorizes
a recovery of reasonable attorney’s fees incurred in enforcing an order awarding alimony.”
Evans v. Evans, No. M2002-02947-COA-R3-CV, 2004 WL 1882586, at *12 (Tenn. Ct. App.
Aug. 23, 2004) (citing Brewer v. Brewer, 869 S.W.2d 928, 936 (Tenn. Ct. App. 1993)).
Furthermore, this Court has held that the trial court’s discretion to award attorney’s fees
under Tennessee Code Annotated section 36-5-103(c) extends to criminal contempt
proceedings involving support. Wilkinson v. Wilkinson, No. M2010-00026-COA-R3-CV,
2011 WL 5986405, at *4 (Tenn. Ct. App. Nov. 29, 2011); Dhillon v. Dhillon, No. M2009-
02018-COA-R3-CV, 2010 WL 3025193, at *8 (Tenn. Ct. App. Aug. 2, 2010); Clarkson v.
Clarkson, No. M2006-02239-COA-R3-CV, 2007 WL 3072772, at *8, n.2 (Tenn. Ct. App.
Oct. 22, 2007). We find nothing in the record to indicate that the trial court abused its
discretion in making the award of attorney’s fees.
Wife also requests an award for attorney’s fees and expenses incurred on appeal.
Tennessee Code Annotated section 36-5-103(c) also applies to attorney’s fees on appeal.
Pippin v. Pippin, 277 S.W.3d 398, 407 (Tenn. Ct. App. 2008). Thus, the decision to award
attorney’s fees is within our discretion. After considering Wife’s request, we conclude that
Wife is entitled to an award of attorney fees incurred on appeal. We remand this case to the
trial court to determine the appropriate amount attorney’s fees to which Wife is entitled.
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V. C ONCLUSION
Based on the foregoing, we affirm the three convictions and sentences for Husband’s
failure to pay alimony, failure to provide medical insurance, and failure to provide proof of
requisite life insurance. The remaining sixty-seven convictions are reversed. The trial
court’s award of judgment in favor of Wife and against Husband of $157,850.00 for alimony
arrearage, $8,075.25 to reimburse Wife’s medical insurance payments, and $11,801.19 for
her reasonable attorney’s fees is affirmed. We remand this case to the trial court for further
proceedings consistent with this opinion. Costs on appeal are taxed to the Appellant James
S. Lattimore, Jr. and his surety.
_________________________________
DAVID R. FARMER, JUDGE
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