IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 1, 2021

ERIN ELIZABETH OTTO v. TIMOTHY JASON OTTO

Appeal from the Chancery Court for Hickman County

No. 17-CV-6101 Michael E. Spitzer, Judge

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No. M2020-00660-COA-R3-CV

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This case involves a divorce action and several motions for contempt. Prior to the final 

hearing, the wife filed multiple motions for civil and criminal contempt against the 

husband. At the final hearing, the trial court resolved the divorce-related issues and found 

the husband in civil contempt on eight counts. The husband only appealed the trial court’s 

contempt ruling. We affirm the trial court’s decision, award the wife attorney’s fees on 

appeal, and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed 

and Remanded.

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and FRANK G. CLEMENT, P.J., M.S., joined.

Timothy Jason Otto, Watertown, Wisconsin, appellant, Pro Se.

Siew-Ling Shea and Gene F. Guerre, III, Nashville, Tennessee, for the appellee, Erin 

Elizabeth Otto.

MEMORANDUM OPINION1

I. FACTS AND PROCEDURAL HISTORY

 

1 Rule 10 of the Rules of the Court of Appeal provides as follows:

This Court, with the concurrence of all judges participating in the case, may affirm, reverse 

or modify the actions of the trial court by memorandum opinion when a formal opinion 

would have no precedential value. When a case is decided by memorandum opinion it 

shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not

be cited or relied on for any reason in any unrelated case.

05/25/2021
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Erin Elizabeth Otto (“Wife”) and Timothy Jason Otto (“Husband”) were married in 

July 1996. The parties were married in Wisconsin but resided in Tennessee for the majority 

of their marriage. Five children were born of the marriage. Two of the children were 

minors at the time of trial in this case. Throughout the marriage, Husband frequently 

exhibited controlling, manipulative, and abusive behavior towards Wife and the parties’ 

children. Although the pre-trial and trial proceedings dealt with various routine divorce 

issues, the pertinent issues on appeal only involve contempt filings.

In January 2017, Wife separated from Husband and moved to Wisconsin with three 

of the parties’ children. Thereafter, Wife initiated this action by filing a complaint for 

divorce in Tennessee. Over the next several years, the parties conducted extensive and 

contentious pre-trial litigation, which included Wife filing multiple motions for civil and 

criminal contempt against Husband. In her motions, Wife alleged that Husband repeatedly 

violated valid court orders.

On February 11, 2019, the parties entered into an agreement on several outstanding 

issues. Their agreement was memorialized in an agreed order entered on February 25, 

2019. As indicated in the order, Husband specifically agreed not to bifurcate the contempt 

proceedings at the final divorce hearing. Husband was represented by counsel at the time 

he entered into this agreement.

Eventually, the court conducted a final hearing on February 14, 2020. Prior to the 

final hearing, Husband’s counsel withdrew from representation. Husband did not retain 

new counsel prior to the final hearing and, as a result, proceeded pro se.2 At the hearing, 

the trial court heard testimony on a wide array of divorce-related issues. At one point 

during Wife’s testimony on her motions for contempt, unprompted, Husband gathered his 

belongings, left the courtroom, and did not return. The trial court concluded that Husband 

left the courtroom at this time to avoid the potential prospect of incarceration.

Following the final hearing, the trial court entered its order of judgment on Wife’s 

complaint for divorce and contempt motions. In its order, the trial court granted Wife a 

divorce from Husband and ruled on several divorce-related issues. In regards to the 

outstanding contempt issues, the trial court concluded that Husband willfully violated

several of its prior orders. As a result, the court found Husband to be in civil contempt on 

eight counts.

Husband appealed the trial court’s contempt ruling.

 

2 On November 14, 2019, the trial court granted a motion to withdraw that was submitted by 

Husband’s former counsel. Based on counsel’s withdrawal, the court continued the dates for the parties’ 

depositions and mediation. In a subsequent order, the court also reset the final hearing for February 14, 

2020. Meaning, Husband had three months to obtain new counsel before the final hearing.
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II. ISSUES PRESENTED

Husband raises only one issue for review on appeal, which we have reworded: 

1. Whether, based on Wife’s motions for criminal contempt, the trial court erred 

by not bifurcating the proceedings into separate civil and criminal proceedings.

In response, Wife raises three additional issues; however, we have determined that 

only two are relevant to the disposition of this case, which we have reworded:

2. Whether the trial court committed reversible error by proceeding with the 

criminal contempt and divorce issues without bifurcating the proceeding when 

Husband agreed not to bifurcate the proceeding and when Husband was not 

found guilty of criminal contempt; and

3. Whether Wife should be awarded attorney’s fees on appeal for defending a

frivolous appeal pursuant to Tennessee Code Annotated § 27-1-122.

For the reasons stated herein, we affirm the trial court’s decision to proceed without 

bifurcating the proceeding. Additionally, we find Husband’s appeal to be frivolous and 

award Wife attorney’s fees pursuant to Tennessee Code Annotated section 27-1-122.

III. STANDARD OF REVIEW

As a non-jury case, we review the trial court’s findings of fact de novo with a 

presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. 

P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). Questions of law, 

however, are reviewed de novo with no presumption of correctness. Eberbach v. Eberbach, 

535 S.W.3d 467, 473 (Tenn. 2017). A trial court’s decision to hold a party in civil contempt 

shall not be disturbed absent an abuse of discretion by the trial court. Lovlace v. Copley, 

418 S.W.3d 1, 17 (Tenn. 2013) (citing Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. 

Auth., 249 S.W.3d 346, 356–57 (Tenn. 2008)). “A court abuses its discretion when it 

causes an injustice to the party challenging the decision by (1) applying an incorrect legal 

standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a 

clearly erroneous assessment of the evidence.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 

524 (Tenn. 2010).

IV. DISCUSSION

At the outset of our discussion, we recognize that Husband continues to represent 

himself on appeal. As this Court has previously stated in regards to pro se litigants:
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Parties who decide to represent themselves are entitled to fair and 

equal treatment by the courts. The courts should take into account that many 

pro se litigants have no legal training and little familiarity with the judicial 

system. However, the courts must also be mindful of the boundary between 

fairness to a pro se litigant and unfairness to the pro se litigant's adversary.

Thus, the courts must not excuse pro se litigants from complying with the 

same substantive and procedural rules that represented parties are expected 

to observe.

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (citations omitted). 

Although Husband is currently a pro se litigant, he proceeded through the majority of the 

pre-trial proceedings under the representation of counsel.

A. Trial Court Not Bifurcating the Contempt Issues

Regardless of Husband’s previous actions, upon which the court made detailed 

findings in regard to the contempt allegations, the issue that he has presented for review is 

narrowly confined. The only issue that Husband raises in his brief is whether the trial court 

erred in deciding not to bifurcate the final hearing into separate civil and criminal 

proceedings. Therefore, our review is limited to this narrow issue. See Brunetz v. Brunetz, 

573 S.W.3d 173, 185-86 (Tenn. Ct. App. 2018) (quoting Hodge v. Craig, 382 S.W.3d 325, 

334 (Tenn. 2012) (stating that issues that are not raised in a party’s statement of issues “are 

deemed waived” and shall not be reviewed on appeal).

Turning our attention to Husband’s issue, we recognize the inherent differences 

between civil and criminal contempt. See, e.g., Black v. Blount, 938 S.W.3d 394, 398 

(Tenn. 1996) (describing criminal and civil contempt). Because criminal contempt is 

punitive in nature rather than coercive or remedial, a party that is charged with criminal 

contempt is afforded many due process protections, such as adequate notice, a presumption 

of innocence, and the right to representation. See Cottingham v. Cottingham, 193 S.W.3d 

531, 536 (Tenn. 2006); McClain v. McClain, 539 S.W.3d 170, 219 (Tenn. Ct. App. 2017);

Norfleet v. Norfleet, No. M2013-00652-COA-R3CV, 2014 WL 1408146, at *4 (Tenn. Ct. 

App. Apr. 9, 2014). “[C]ombining claims for civil and criminal contempt in the same 

proceeding has sometimes been criticized.” Norfleet, 2014 WL 1408146, at *6 n.5. 

However, combining the claims is not uncommon and does not automatically require 

reversal by an appellate court. See Renken v. Renken, No. M2017-00861-COA-R3-CV, 

2019 WL 719179, at *6 (Tenn. Ct. App. Feb. 20, 2019); Norfleet, 2014 WL 1408146, at 

*6. Instead, when criminal contempt claims are tried with other civil issues, “it is important 

for the trial court to keep the distinctions between the various claims in mind.” Norfleet, 

2014 WL 1408146, at *6.3

 

3 We recognize that in McPherson v. McPherson, No. M2003-02677-COA-R3-CV, 2005 WL 

3479630 (Tenn. Ct. App. Dec. 19, 2005), this Court also stated that conducting civil and criminal contempt 
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In the present case, the trial court conducted a single final hearing without 

bifurcating Wife’s claims for criminal contempt. Husband never objected to the trial 

court’s failure to specify whether criminal or civil contempt was being tried; nor did 

Husband ask for the proof to be bifurcated from the divorce-related issues. In fact, as 

indicated in the order that was entered on February 25, 2019 (almost one year prior to the 

final hearing), Husband agreed not to bifurcate the contempt proceedings at the final 

hearing. Husband reached this agreement while he was represented by counsel. 

Accordingly, we are not required to grant Husband relief as a party “who failed to take 

whatever action was reasonably available to prevent or nullify the harmful effect of an 

error” during the trial court proceedings. See Tenn. R. App. P. 36(a); Norfleet, 2014 WL 

1408146, at *5.

Further, Husband has failed to demonstrate that he was prejudiced by the trial 

court’s decision not to bifurcate the proceeding. Although Wife filed several motions for 

criminal contempt, the trial court only found Husband guilty of civil contempt. “This Court 

has made clear in prior cases that, in civil contempt [cases], faulty procedure will not 

warrant a reversal unless there is prejudice.” Boggs v. Boggs, No. M2006-00810-COAR3-CV, 2007 WL 2353156, at *4 (Tenn. Ct. App. Aug. 17, 2007) (citing Lessley v. Shope, 

No. 01-A-01-9805-CV00233, 1999 WL 330178, at *2 (Tenn. Ct. App. May 26, 1999)). 

Husband has not shown how he was prejudiced by the trial court’s decision to combine the 

contempt proceeding with the divorce issues when the trial court did not find Husband 

guilty of criminal contempt.

Husband raised no other issues with the trial court’s decision to find him guilty of 

eight counts of civil contempt. Therefore, we affirm the trial court’s decision.

B. Attorney’s Fees – Frivolous Appeal

In addition to the issue presented by Husband, Wife asserts that she is entitled to 

attorney’s fees on appeal. As a basis for her claim, Wife cites Tennessee Code Annotated 

section 27-1-122, which states:

When it appears to any reviewing court that the appeal from any court of 

record was frivolous or taken solely for delay, the court may, either upon 

motion of a party or of its own motion, award just damages against the 

appellant, which may include, but need not be limited to, costs, interest on 

the judgment, and expenses incurred by the appellee as a result of the appeal.

 

proceedings simultaneously is “fundamentally flawed” because of the inherent differences between the two 

forms of contempt. Id. at *5. However, rather than requiring these issues to be bifurcated, in McPherson, 

this Court simply stated that combining the two proceedings “should be avoided.” Id.
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An appeal may be deemed frivolous if it is devoid of merit or has no reasonable chance of 

success. Young, 130 S.W.3d at 66-67. The decision to award attorney’s fees for a frivolous 

appeal lies within the sound discretion of the appellate court. Duke v. Duke, 563 S.W.3d 

885, 906 (Tenn. Ct. App. 2018).

We agree with Wife in that Husband’s appeal had no reasonable chance of success. 

Husband clearly agreed not to bifurcate the proceeding, and he has not shown that he was

prejudiced by the trial court’s decision not to bifurcate when he was not found guilty of 

criminal contempt. As a result, the sole issue that he has raised on appeal is devoid of 

merit. Therefore, we deem Husband’s appeal to be frivolous and find that Wife is entitled 

to reasonable attorney’s fees under Tennessee Code Annotated section 27-1-122. We 

remand the case with instructions for the trial court to determine the amount of attorney’s

fees to which Wife is entitled for having to defend this appeal. 

V. CONCLUSION

For the reasons stated herein, the trial court’s decision is affirmed. The case is 

remanded for the trial court to determine the amount of attorney’s fees to which Wife is 

entitled for having to defend against Husband’s frivolous appeal. Costs of this appeal are 

taxed to appellant, Timothy Jason Otto, for which execution may issue if necessary.

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CARMA DENNIS MCGEE, JUDGE