Smith v. Smith

1

ANTONIA ANDREANA SMITH v. ANTHONY KENYATTA SMITH

No. W2022-00704-COA-R3-CV

Court of Appeals of Tennessee, Jackson

August 25, 2023

Session April 18, 2023

Appeal from the Chancery Court for Shelby County No. CH-19-1592 Gadson W. Perry, Chancellor

In this divorce action, Wife appeals the trial court's classification and distribution of assets, formation of a parenting plan, and calculation of Husband's child support obligation. Wife also appeals the denial of her petition for criminal contempt. As appellee, Husband raises issues regarding the allocation of the parties' equity in the marital property, the enrollment of the child in private school, and the distribution between the parties of education expenses for the child. Upon review, we affirm the trial court's decisions regarding the division of the parties' property after minor modification, vacate the trial court's decisions regarding child custody and child support, and remand the case to the trial court for further proceedings. Wife is barred from appealing the denial of her criminal contempt petition and we decline to award Wife her attorney's fees incurred on appeal.

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

Melissa C. Berry and Rebecca A. Bobo, Memphis, Tennessee, for the appellant, Antonia Andreana Smith.

Anthony Kenyatta Smith, Germantown, Tennessee, Pro se.

J Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Arnold B. Goldin and Carma Dennis McGee, JJ., joined.

OPINION

J. STEVEN STAFFORD, JUDGE

I. Factual and Procedural Background

Plaintiff/Appellant Antonia Andreana Smith ("Wife") and Defendant/Appellee Anthony Kenyatta Smith ("Husband") were married in October 2015. The parties have one minor child, a son born in January 2017.^[1] At some point, difficulties arose in the marriage. Although both parties and the child remained in the marital home, the parties separated in October 2019. On November 15, 2019, Wife filed a complaint for divorce in the Shelby County Chancery Court ("the trial court"). Husband later filed an answer and countercomplaint.

Wife filed a motion to establish a temporary parenting plan, child support, and alimony on March 9, 2020. Therein, she stated that she and the child had moved out of the marital residence in February 2020 because of Husband's increased agitation and intimidation following her filing of the divorce complaint. Wife requested "pendente lite alimony in futuro, alimony in solido, rehabilitative alimony, and/or transitional alimony[,]" her attorney's fees, and for the trial court to approve her proposed parenting plan. Ultimately, the parties entered into a consent order on March 25, 2020, establishing a temporary parenting schedule. Pursuant to this schedule, Husband would have parenting time with the child from Thursday to Monday one week and Wednesday to Thursday the next week. The parties also agreed that the minor child was not to be left alone with Husband's mother.^[2] This plan remained in place for the duration of the proceedings.

Then, on October 5, 2020, Husband filed an emergency motion for permission to travel with the child for fall break and to establish a holiday parenting schedule. Husband alleged that Wife was unreasonably withholding consent to Husband's travel plans and that Wife was generally unwilling to co-parent with Husband. The trial court denied Husband's emergency motion on October 9, 2020, finding that Husband had not presented sufficient proof to modify the temporary parenting plan already in place. However, the trial court did not specifically prohibit Husband from travelling with the child on his scheduled days.

Shortly thereafter, Wife filed a motion seeking to adopt the parental bill of rights^[3]and to require either parent to submit a specific itinerary prior to traveling with the child. Wife alleged that, despite the trial court's denial of his emergency motion that same day, Husband traveled with the child to Florida on October 9, 2020, providing Wife with minimal notice of the trip itinerary only after he and the child had arrived in Florida. On October 16, 2020, the trial court entered a consent order ("the Travel Consent Order") adopting the parental bill of rights and setting additional requirements as to the sharing of travel information when travelling with the child out of state. Specifically, the trial court ordered that a parent traveling with the child out-of-state or more than one hundred miles from Shelby County for more than twenty-four hours needed to provide the non-traveling parent with an itinerary with "the planned dates and times of departure and return, the intended destinations, mode of transportation, addresses, and telephone numbers" forty- eight hours prior to departing. If travelling by plane, train, or boat, the traveling parent needed to provide the departure, arrival, and connection information as well.

The Shelby County Divorce Referee ("the Divorce Referee") heard Wife's motion for pendente lite support on several days in October 2020. At the start of the hearing, Wife's counsel announced that Wife was no longer seeking alimony, only child support. In its October 28, 2020 order on the motion, the trial court relied on the Divorce Referee's findings as to the proper values for monthly child support, which depended on whether the child was enrolled in aftercare with his school. The trial court stated that it would not require the child to change school systems. The school's tuition of $1,292.50 per month was assessed as the amount of monthly work-related childcare. Wife's gross income was found to be $8,258.00 per month and Husband's gross income was found to be $10,725.00 plus an "in-home credit" for Husband's two older children of $1,207.50 per month. Accordingly, the presumptive child support to be paid by Husband going forward was assessed at $1,146.00 per month, with the trial court reserving the right to reassess the amount based on the child's enrollment in his school's aftercare program. The trial court found that Husband owed an arrearage of $6,895.00 for February 2020, when Wife and the child moved out of the marital home, through October 2020. Husband's prior payment of $2,400.00 was credited against this amount,^[4] leaving $4,495.00 to be paid directly to Wife. Wife was also awarded $5,000.00 in partial payment of her attorney's fees.

Later, on October 1, 2021, Wife filed a petition to find Husband in criminal contempt for alleged violations of the Travel Consent Order. Wife alleged that on seven separate occasions Husband had traveled out of state with the child without providing the itinerary information forty-eight hours in advance, if at all. Wife also alleged that Husband had left the child alone with his mother despite the parties' agreement in March 2020. In his October 25, 2021 response, Husband denied that his conduct constituted criminal contempt. Husband admitted that on multiple occasions he did not provide an itinerary that matched all of the trial court's specification in the Travel Consent Order forty-eight hours prior to departure. However, for some of the trips complained of by Wife, Husband argued that he did not travel with the child for more than twenty-four hours such that the Travel Consent Order's requirements did not apply, and for others Husband believed Wife would be able to discern certain itinerary aspects from the details he did provide such that Wife was provided with reasonable notice.

The divorce action was heard in early November 2021. At the outset of the trial, the parties stipulated that the marital residence would be valued at $410,000.00, that neither party would seek alimony other than attorney's fees, and that the parties would consent to a declaration of divorce rather than dispute the grounds. Husband stipulated as to an error in his calculations on the child support worksheet attached to his proposed parenting plan.^[5]The parties also agreed that evidence regarding Wife's petition for criminal contempt would be presented contemporaneously with the proof about the underlying divorce.

After the three-day trial, both parties submitted proposed findings of fact and conclusions of law. In March 2022, the parties entered a consent order amending the temporary parenting schedule set out in March 2020. The order established which parent would have custody of the child for certain holidays during spring and summer of 2022.

Eventually the trial court entered its final decree of divorce on April 27, 2022. As separate property, Wife was awarded the following: (1) her engagement ring and heirloom fur coat; (2) the rental property in Wife's name; (3) the premarital balances of two retirement accounts in Wife's name; (4) the entire value of eight bank and investment accounts in Wife's name; and (5) the premarital balance of credit card debt and interest in Wife's name. As separate property, Husband was awarded the following: (1) his premarital car; (2) the three rental properties and one timeshare in Husband's name; (3) the premarital balance of three retirement accounts in Husband's name; (4) the entire value of eleven bank and investment accounts in Husband's name; and (5) the premarital balance of credit card debt and interest in Husband's name. The trial court determined that the post-marital increase in value of the parties' retirement accounts and the post-marital increase in credit card debt and interest of both parties constituted marital property. However, the trial court awarded each party the marital portions of their separate assets and liabilities. The parties were awarded the vehicles they individually owned and were driving. Both parties were also awarded the savings accounts...