McClain v. McClain

539 S.W.3d 170

Ferryl Theresita MCCLAIN

v.Richard Perry MCCLAIN

No. E2016–01843–COA–R3–CV

Court of Appeals of Tennessee, Eastern Section, AT KNOXVILLE.

April 18, 2017 Session

FILED September 21, 2017

Lois B. Shults–Davis, Erwin, Tennessee, for the appellant, Richard Perry McClain.

Ronald D. Tuech, Mountain Home, Tennessee, for the appellee, Ferryl Theresita McClain.

Unpublished Text Follows End of Unpublished Text

Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and J. Steven Stafford, P.J., W.S., joined.

Thomas R. Frierson, II, J.

This is a post-divorce child custody action involving two children, who were sixteen and seventeen years of age at the time of the most recent trial. The parties were divorced by order of the Sullivan County Law Court ("divorce court") in July 2001. Concomitant with the divorce decree, the divorce court entered a permanent parenting plan designating the father as the primary residential parent. Although the permanent parenting plan was modified in 2003 and 2007, the divorce court had most recently modified the permanent parenting plan in February 2009 ("2009 PPP") upon the parties' stipulation that a material change in circumstance had occurred. The divorce court maintained the father's designation as the primary residential parent and awarded to the father 268 days of annual residential co-parenting time as compared to Mother's 97 days. At some point following entry of the 2009 PPP, the mother relocated to Texas, and the father and the children relocated to Washington County, Tennessee. Upon the mother's request, the case was transferred to the Washington County Circuit Court ("trial court") in April 2014. On March 20, 2015, the mother filed a motion in the trial court to modify custody and child support, as well as a motion for civil and criminal contempt against the father, alleging various violations of the 2009 PPP. Following a hearing regarding the contempt allegations, the trial court entered an order on June 30, 2015, finding the father in "technical contempt" and directing him to pay an expert witness fee as a sanction. Following participation in mediation, the parties announced an agreement, which the trial court ratified in a permanent parenting plan order entered on June 30, 2015 ("2015 PPP"). The 2015 PPP maintained the father's designation as the primary residential parent and provided the mother with 85 days of residential co-parenting time, a great part of which was to be exercised at her residence in Texas. On October 2, 2015, the mother filed an "emergency motion" for modification of the 2015 PPP, as well as for criminal and civil contempt against the father, averring violations of the 2015 PPP. The parties subsequently filed competing "emergency" motions concerning physical custody of the younger child, who under one temporary order entered by the trial court in October 2015, was to reside primarily with the mother. Following a two-day bench trial in October 2015, the trial court maintained the prior designation of Father as the primary residential parent for both children pending further order, but the court took the custody matter under advisement pending receipt of a court-ordered assessment of the parties and the children by a forensic psychologist. Upon receipt of the psychologist's report, the trial court conducted a second two-day bench trial in June 2016, ultimately finding that this was a case of severe parental alienation in which the father had actively supported the children's alienation from the mother without reasonable cause. The court awarded exclusive custody of the children to the mother and directed that the children participate with the mother in a workshop in California that had been recommended by the forensic psychologist as a therapeutic methodology for parental alienation at an estimated cost of approximately $28,000.00. The court directed thatthe workshop costs, including a mandatory post-workshop vacation for the mother and the children, would be substantially paid by the father. The court further found, inter alia , that the father was in contempt of court for failing to follow certain provisions of the 2015 PPP and sentenced the father to eight days in jail, with the sentence suspended provided no further violations occurred. Also finding that the mother was entitled to attorney's fees, the court reduced the $38,594.99 fee amount requested by the mother to an award of $20,000.00 to offset the amount paid by the father toward the workshop. The father has appealed. Having determined that the father was not provided with sufficient notice of criminal contempt charges pursuant to Tennessee Rule of Criminal Procedure 42(b), we vacate the trial court's order finding the father in contempt. We remand for a determination of whether the amount of attorney's fees awarded to the mother was appropriate given our vacation of the contempt finding against the father. We affirm the trial court's judgment in all other respects. The mother's request for attorney's fees on appeal is denied.

I. Factual and Procedural Background

The plaintiff, Ferryl Theresita McClain ("Mother"), and the defendant, Richard Perry McClain ("Father"), had two sons born of their marriage: B.M. in August 1998 and C.M. in June 2000 (collectively, "the Children"). Following entry of the initial permanent parenting plan order in December 2001, Mother appealed the divorce court's designation of Father as the primary residential parent to this Court, which affirmed the divorce court's judgment. See McClain v. McClain , No. E2002-00913-COA-R3-CV, 2003 WL 1452958 (Tenn. Ct. App. Mar. 21, 2003) (" McClain I "). In McClain I , this Court set forth the factual history leading to the initial designation of Father as the primary residential parent as follows:¹

Mother was a licensed pharmacist, but she apparently did not work as such after the birth of the parties' first child. Mother and Father co-owned a computer information systems company. The company solicited contracts from large corporations to integrate their computer systems. Father did all of the hands-on work for the company, traveling to the various client sites. Mother assisted with the bookkeeping.

In April, 1999, following an argument between the parties as to whether Mother should travel to Ohio to see her brother's newborn baby, Mother withdrew $5,000 from the parties' joint bank account, and took eight-month-old [B.M.] and drove to Ohio, without informing Father. Mother contends that she and Father were having problems and that she "needed some time away from him to think." Mother left on a Friday and returned to Kingsport the following Monday.

Later that same month, Mother voluntarily admitted herself to Indian Path Pavilion Hospital, suffering from depression. As a part of her hospitalization, she sought help in coping with emotional issues associated with her marriage. She was evaluated by a psychiatric social worker who later testified at trial that Mother was not suicidal and that she posed no risk of harm to herself or to others.

On June 1, 1999, Mother filed for divorce on the ground of inappropriate marital conduct. A few months later, Mother learned that she was pregnant with the parties' second child. In November, 1999, at the parties' request, the trial court entered an order of reconciliation, which expressly suspended the divorce proceedings for six months. The parties' second child, [C.M.], was born the following June.

In July, 2000, the parties and their children went to Louisiana. The purpose of the trip was to attempt to reconcile Mother with her estranged father at a family reunion. While in Louisiana, the parties had several disagreements, which resulted in Mother leaving Louisiana with [C.M.] and flying to Houston to stay with her sister and brother-in-law. Father returned to Kingsport with [B.M.]. A week and a half later, Father flew to Houston with [B.M.]. When the parties met in Houston, Mother told Father that she was taking the children and driving to her sister's house to spend the night. Mother assured Father that she and the children would return the next day at 1:00 p.m. Despite this understanding, Mother changed her mind, after deciding that she needed some time away from Father. Acting on the advice of her then-attorney, she withdrew $50,000 from the parties' joint bank account, took the children, and drove to Austin to stay with a friend. Mother did not contact Father to tell him she was taking this action. While Mother's sister and brother-in-law knew where Mother was, they were instructed by Mother not to tell Father.

Three weeks later, Mother returned to Houston with the children. During the entire three-week time period, Father had no idea where Mother and the children were. While she was away, Mother filed a motion to set aside the order of reconciliation. Father answered the divorce complaint and filed a counterclaim for divorce, which was also premised upon the ground of inappropriate marital conduct.

In September, 2000, the trial court held hearings for the sole purpose of determining a temporary parenting plan. At the conclusion of the hearings, the court entered an order on September 18, 2000, in which it named Father the temporary primary residential parent. The court based its decision on numerous factors, including Mother's health care philosophy, the court's concern about Mother's mental well-being, and its concern about Mother secreting the children at locations unknown to Father. Mother was granted visitation with the children every other weekend from 6:00 p.m. on Friday until 7:00 p.m. on Sunday, and on weekdays from 3:00 p.m. until 7:00 p.m.

A further hearing was conducted by the trial court in July, 2001. On July 31, 2001, the court entered a judgment of divorce, which granted the parties a divorce on a stipulated ground and divided the parties' marital property. The judgment also modified the visitation arrangement to reflect the fact

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