# FILED
December 10, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON SUZANNE W. GIBSON, ) ) Petitioner/Appe llee, ) Shelby Chancery No. 103880-1 R.D. ) VS. ) A ppeal No. 02A 01-9701-CH- 00006 ) JAMES E. PROKELL, ) ) Respondent/Appell ant. )
APPEAL FROM THE CH ANCERY COU RT OF S HELBY COUN TY AT MEMPHIS, TEN NESSEE THE HONORABLE NEAL SMALL, C HANCELLOR

KEITH V. MOORE Memphis, Tennessee Attorney for Appellant

DANTON A

SHER BERUBE EVERETT B. GIBSON LAW FIRM Memphis, Tennessee Attorney for Appellee

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, J. James E. Prokell (“Prokel l”) appeals the trial court’s order

denying Prokell’s

motion2

to dismiss, denying his motion to set as ide and resci nd the trial court’s or der setting child support, and denying his motion for a new trial. Pr okell also a ppeals the tri al court’s order of contempt for his fail ure to pay t he ordered chil d support. For reasons hereinafter stat ed, we affirm the judg ment of the trial court.

FACTS

The partiesto this appeal were divorced by a Pennsylvania decree in September, 1993, wherein, the court awarded custody and child support to Suzanne W. Gibson (“Gibson”). There is one c hild of the marri age, Maxfield Prokell, bo rn March 31, 1987. On March 31, 1995, Gibson file d a petition for registration and mo dification of the child support order grant ed by th e Court of Common Pl eas of Allegheny County, Penn sylvania. That
same day, the summons and petition were personall y served u pon Pro kell in Shel by C oun ty, Tennessee by Gi bson’s counsel . Thereafter, on Aug ust 7, 1995, Prok ell filed a response wherein he admitted that Gib son was enti tled to reg istration of the of the Pennsylvania child suppor t order purs uant to T.C.A § 36- 5-229. Additionally , Prokell fail ed to raise any

objections to

the trial court’s jur isdiction ov er his pers on.

On April 17, 1995, Gibson filed a request for production of documents in order to determ ine the correct

amount of child suppor t owed by

Prokell; t hereafter, the tr ial cour t entered an order compel ling dis cov ery. Bec ause Prokell complied w ith the req uest for production of documents only to the extent

that such d o cuments were in his actua l possession, Prokell’s responses to Gibson’s request for pro d uction of docume nts were considered to be inadequat e by the tr ial court. On September 29 , 1995, the trial court ordered Prokell to turn over all documents requested w ithin his pos session, custody, or control no later than O ctober 27, 1995. F urther, the trial court ordered P rokell to fil e a written response to the court declar ing that all documents responsive to each request for production of documents within Prokell’s possession , cust ody, o r control ha d been provided to Gibson. The trial cour t defined “control ” as includ ing, but not limited to

the legal right to obtain the docume nts requested on demand , notwithstanding a fee or cost3

incidental thereto. Additionally, if Prokell were unable to obtain certain documents , the trial court’s order mandated that Prokell not ify Gibson by October 27, 1995, of his inabi l ity to obtain certain document s, the identit y of the documents, the custodian of the documents, the reason for his

delay in producing t he documents, and the expected date of providing said documents.

On October 27 , 1995, counsel for Pr okell wi thdrew from thi s cause because of Prokell’s failure and refusal to coo perate with her on several occasions. Prokell s ecured
new representation. That sam e day, Gibson filed a motion f or sanctions f or P rokell’s refusal to comply w ith the September 29, 1995 , order compelling discovery. The trial court awarded said sancti ons on December 22 , 1995, requiring Prokell to file a formal response to the re quest

for producti on of doc ume n ts no later t han January 1 7, 1996. Further , the trial court, pursuant to T.C.A. § 36 -5-229 (URESA), registe red the January 4, 1994, order of the Court of Common P lea s of Allegheny County, Penn sylvania, and accepted jurisdict ion over mat

ters of child s upport. The trial court entered an interim child support modification increasing Prokell’s child support payment from $250 per month to $500 per month and ordered Pr

okell to pay

Gibson’s att orney $2,000.

Prokell, in non-compli ance with the December 22, 1 9 9 5, order, filed his formal response on February

15, 1996. This formal writte n response was considered inadequate in that it did not

state that Prokell had provid ed Gibson with all requested documents in his possession, custody or

control as r

equired by

the September 29, 1995 , and the December 22, 1995, orders. Gibson’s co unsel drafted and pr ovided a formal written r espo nse for Prokell’s counsel to file , but Prokell ’s counsel di d not file it.

On February1, 1996, Gibson fil ed a motion for sanctions for r

efusal to comply

with the December 22, 1995, orde r awarding sanctions and for f ailur e to comply w ith the September

29, 1995, ord er compell ing discovery, granting an interim increase in child support pendin g a full he aring, and accepting jurisdiction over child support issues. The trial court awarded such sanc tions on Febru ary 23, 1996, inter alia , for Prokell’s failure to4

timely pay

the $500 child support ordered for January and February

of 1996.

On February

28, 199 6, Gibson filed he r first set of interrogato ries, her s econd reque st f or production of documents and her fir st request for admissions pr opounded to Prokell requiri ng thateach be accompanied by a formal w ritten respo nse with 3 0 days of service

. Prokell for mally res ponded to Gibson’s request for a dmissionswithin the 30 day period, but failed to respond to her i nterro gatories or her request for production of documents wi thin this ti me period.

T hereaf ter, on April 10, 1996, Gibson filed a notice to takeProkell’s deposition. Prokell refused to attend the depos ition in Memphis, Tennessee , and request ed that the deposition be taken via telephone. Counsel for Gi bson responded that given t he number of documents to be pr

oduced, it would be unduly bur densome, if not imposs ible, toconduct the deposition ov

er the telephone.

On May 6, 1996, Gibson filed a mot ion with th e trial co urt to set permanent child support, or in the alternative to increase in terim s upport. Additi onally, Gi bson made a motion to the court for furthe r sanctions to be imposed upo n Prokell f or his f ailure to complywith court orders, specifically , the t rial court ’s September 29, 1995, order compelling disco very, the December 22, 1995, order awarding sanc tions and the February 23, 1996, order awarding sanctions. Gibson conten ded that Prokell had fa iled to produce his 1995 tax return or request for extension, his 1993 and 1994 cumulative ledgers, his petty cash receipts for 1996, and numerous other docum ents necessary to calculate child support under the chil d support gui delines. In par ticular, Gi bson contended that P rok el l had fail ed to provi de complete discovery responses w hich, in ret urn, hindered he r from determining the precise nature of Prokell ’s claimed ex penses. Thus, Gi bson was unable to accurately ascertain what items could be deducted from Proke ll’s gross income for child support purposes. Prokell, at all times , contended that v irtually all documents r

equested of him were pr ovid ed to Gibson’s counsel. However, the t rial court determined that Prokell’s responses were inadequate.5

On Ju ne 6, 1996, the tri al court entered an order sett ing permanent c hild supp or t of $1,591.76 per month, retroactive to March, 19 95, based on 21% of thegros s inco me of Prokell le ss a deduc tion for taxes only. Furthermore, the trial court reduce d child support arrearag es to $20,879.77. I n making its decision, the

trial cour

t specificall y found that Prokell had willfullyand deliberately failed to comply

with the court’s or

ders compelli ng discovery

and grantingsanctions. The trial court found that Prokell ’s non-compli ance was evidenced by his fail ure to file a corr ect formal respons e to Gibson‘s first request for production of documents, b y his f ailure t o produce numerous documents necessar y to calculate chi ld support, and by his refusal to appear at h is depositio n.
Thereafter, on July 8, 1996, Prokell filed a motion to dismiss, a motion to set aside and rescind the trial cour t’s order s etting chi ld s upport , and a m o tion for a new trial. On August 13, 1996, the trial cour t denied Prokel l’s motions a nd found him to be in con tempt forhis failure t o pay chil d support at the newly ordered rate. The trial court stated t hat it had subject matter

jurisdic tion over the c ause, via T.C .A. § 36-5-229, and personal jurisdict ion based on the fact th at Pro kell was pers onally ser ved wi th a copy of the
summons and petition for r egistrati on and modification of ch ild su ppo rt in S helb y Coun ty, Tennessee on March 31, 1995. Prokell has appealed contendi ng that the tr ial court had
no personal jurisdiction over him and no subject matter jurisdiction over the cau se under T.C.A. § 36-5-229. Further, P rokell asserts that the trial court abused its discretion in making the chi ld support award and in faili ng to transfer the cause to anothe r court.

LA W AN D DISCUSSI ON

Personal Jurisdiction Tennessee courts recognize that parties w ho fail to raise the issue of lack of personal jurisdiction in their original pleading or motion to dismiss are deemed to ha ve6

waived the defense and to have submitted themselves to the court’s jurisdic tion. Biogen Dist ributors, Inc. v. Tanner , 842 S.W.2d 253, 256-57 (Tenn. Ct. App . 1992); Wrig ht v

. Universal

Tire, Inc. , 577 S.W.2d 194, 195-96 (Tenn. Ct. App. 1978). In the case at bar, it is undisputed that Pr

okell wa s personally

served with the summons and petition to register
an d modify the child support order. Moreover, on August 7, 1995, Prokell filed his firs t response without r

aising the issue of lack of per sonal juris diction or, in the alte rna tive, without filing a motion to dismiss for l ack of perso nal jurisdiction. As a result, Prokell waived his defense of lack of personal jurisdiction and submitted himse lf to the juris diction of the trial cour

t. Therefore, we find that the trial court’s exercise of personal jur isdiction over Prokell was proper.
Subject M atter Jurisd iction un der T.C.A . §§ 36-5-201-2 29 Prokell argues that “nothing under URESA gi ves Tennessee t he right to transfer a Pennsylvania decr ee to Ten ness ee f or ret rial o f th e issu es of wheth er th e Pen nsyl van ia Court s h o u l d h a v e o r d e r e d l i fei n s u r a n c e , s c h o o l t u i t i o n o r a d d i t i o n a l s u p p o rt
. ” We disagree. This Court i n Mann v. Grist held that unde r T.C.A. § 36-5-229 a trial court in Tennesse e is empowered to modify a sister state’s child suppo rt order if that order i s properlyregister

ed in a T ennessee court an d the court has jurisdict ion over t he person. Mann v. Grist, 1990 WL 120723, at 1, 3 (Tenn. Ct. App. 1990).

The mate ria l fac

ts o f Mann

are very similar to the case at bar. In Mann , the parties
were divorced in Missi ssippi in 19 84, and child s upport was set by a marital dis solution agreem ent. Mann v. Grist, Shelby Law No. 28, at 1 (Tenn. Ct. App. Aug ust 22, 19 90)

. Said agreement set child support at $150 per month. Subsequent to thedivorce, Mann and her daughter

moved to Mem phis , Tennessee. On November 29, 1988, wife filed a petition to regist er the foreign decree of divorce, propert y settlement and custody agreement(includingchild suppor t) in accor

dance with T.C.A. § 36-5-22 9. An order enrolling the foreign j udgment was entered on February

15, 1989. On Febr uary 22, 1989, wife filed a pet ition to modify the final decree of divorce and to increase child support on the grounds that there had been a permanent and unforeseeable chang e of circumstances7

subsequent

to the entry

of the aforementioned divorce decree. The trial co urt dismiss ed the cause for lack

of subject matter jurisdict ion to modify thefor eig n decree. This Court reversed and remanded f or a hearing on the merits stating that a court of this st ate ca n modi fy a child suppor

t decree of a sister st ate if that decree is regi stered in a Tennessee court wi th personal j urisdicti on.
Except for the Mann

decision, we do not have th e benefit of other cases discussing the issue of modificati on under the paramete rs ofT.C.A. § 36-5-229. We acknowledg ed in Mann that there are other cases such as Hoyle v. Wils on , 746 S.W.2d 665 (Tenn. 1988) discussingthe issue of modification under URESA. However, Hoyle and the cases c ited therein discuss a separate ty pe of URESA remedy and make no mention of the remedies provided for in T.C.A. § 36-5-229. Mann , SHELBY LAW NO. 28, at 3. T.C.A. § 36-5- 229 explicitly provides for “additional remedies.”

Like the husband in Mann , Prokell r elies on the Hoyle case in disc ussing theissue of modification under

URESA. W e bel ieve Prokell’s reliance on Hoyle is in error. Unlike the instant case, Hoyle did not involve the i ssue of whet her a Tennessee trial court wa s empowered t o modify a foreig n support order because the part ies were divorce d in the Circuit Court of Dav i dson County, Tennessee. Hoyle v. Wils on , 746 S.W.2d 665,666 (Tenn. 1988). As stated abov e, the Hoyle

court did not address a foreign decree no r did it discuss or apply T.C.A. § 36-5-229. Theref ore, it is inapplicable to the case at bar.

When construing a statute, we must give effect to t h e legisl ative inte nt. Mann, S helby Law No. 28 , at 3; (quoting Tidwell v. C ollins , 522 S.W.2d 674 (Tenn. 19 75)). I n ascertainingthis intent, we look to the general purpose accompli shed b y the l egislature. Id. This Court, i n Scales v. Winston , 760 S.W.2d 952, 953 (Tenn. Ct. App. 1988), stat ed byway of di cta that URESA was “des igned for the purpose of enf orcing ord ers of f oreign courts relating to the support of dependent chi ldr en and for the mo dification of sup port orders rendered in a court of a foreig n state.”W e observe and em phasize t he langu age in T.C.A. § 36-5- 229 which pr ovides that a register

ed foreig n decree “sh all ha ve th e same1 W . W alt on Garrett in Tennessee Divorce, Ali mony and Chil

d Custody

provi des that“[ w]hen a f orei gn or int ersta te decr ee has been re gist ered i n a Tennessee court havi ng jur isdi cti on, t he courtwhere t he decree is regi stere d ha s ju ris dic tion to m odify . . [t]hus , suc h a d ecr ee b eco m es d om estic ated .” Ga rrett, Tenn. Divorce, Ali

mony & Child Custody (1996 ed. ), § 20-2. 8 effect and may be enforced as if orig inally e ntered in the court of this state.” As this Court stated in Mann , “we cannot ignore that our General Assembly included the language ‘shall have the same effect and may b e enf orced a s if originally entered in the court of this state.’” Without question, if the suppor t order had been e ntered in acourt of this state, it could be modified by

that court upon sufficient show ing of changed circumstances.” Id. at 3.

Undo ubte dly, this is true in the instant cas e. The Pennsylv ania trial court issued the divorce, custody

and support decr

ee. Under thecle ar d ire cti on of Mann and the language of T.C. A. § 36-5-229, once the Pen nsylvania child support decree was registered in Tennessee, this statecould treat the Pennsylvania decree as if it were original ly entered in T e nne ssee and m odif y acco rdin gly. 1 Therefore, when the trial court regi stered the Pennsylvania decree on Dece mber 22, 1995, it could modify the decree as long as it obtained personal jurisdic tion over Prokell. As mentioned above, the trial court obtained personal jurisdict ion on two gr ou nds. First, Prokell was serv ed with pr

ocess wi thin the state of Tennessee, and second, he failed to rais e a timely objection to the trial court’s jurisdict ion over hi m in his f irst respo nsive plea ding.

In light of our

decision in Mann

and the legislative intent as evid enc ed in the pertinentlanguage mentioned above in T.C.A. § 36-5-229, we find that under T.C. A. § 36- 5-229 the trial court possessed subject matter jurisdiction to modif y the child support order of the Court of

Comm on Pl eas o f All eghe ny Cou nty, Pennsylv ania, once that s upport order was reg istered in a Tennessee court w ith proper j urisdicti on over the p arties inv olved.

Addi tion ally, Prokell contends that the tr ial court, beinga chancery court, does not hav e jurisdiction under URESA. He argues that the chance ry court is conspicuousl y absentfrom the defin ition of “court” in T.C.A. § 36-5-2 02( 2)(A)(B) (C)(D) . True, the chancerycourt is not

mention ed in the definition of “cour t” with in T.C.A. § 36- 5-202;9

however, we find that T.C.A § 16- 11-102 provides that “[t]he ch ancery cour t has concurrent jurisdict ion, with the circuit court, of all civil causes of action, triable in the circui t court, . . .” Furthermore, the Tenne ssee Supreme Court stated in Barrow v. Bar row , 419 S.W.2d 164, 165 (Tenn. 1967) tha t both circuit and chancery court have concurrent jurisdiction in the field of domestic relations. C learly, child supp ort regist ry and modification fall within the gambit of domestic relations. Following the express language an d legisl ative inte nt of T.C.A. § 16-11-102 and t he judicial precedentset forth in Barrow, we find that chancery courts possess proper subjec t matter juri sdiction over causesconcerning the registration and modification of foreign child support decrees und er URESA. Therefore, the trial court had subject matter

jurisdic tion to hear thi s cause.

Abuse of Discretion in A ssessment of Child Support and Other Sanctions Tenn. R. Civ . P. 37.02 prov ides that if a p arty fails to obey an or

der to prov ide or permit discovery, the court in whic h the action is pending may make such orders in regard to the f ailure as are just, and am ong othe rs are the followin g: (A) A n order that thematters reg arding w hich the order was made or

an y other designated facts shall be taken to be est ablished for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusi ng to allow the dis obedient party to support or oppo se designa ted cl aims or defenses, or prohibitingthat party

from introducing designated matter

s in evi dence; (C) An order striking out pleadings or parts thereof, or staying f urther procee dings until the or der is obeyed, or dismiss ing the action or proceeding or any part t hereof, or render ing a jud g ment by default ag ainst the diso bed ient part y; (D) In l ieu of any

of t he foregoin g orders o r in additi on thereto, an or der treating as a contempt of cour t the failure to obey any o rders except an order to submit to a phy

sical or ment al examinati on.
In the instant case, Prokell was gi ven consider able opportunity

to comply w ith the trial court’s or

ders. Yet, we find nothi ng in the record show ing any reason for his failure to respond timely and completely to the orders of the trial court. W e acknowledge that Prokell contends that he has turn ed over v irtually every thing in hi s possession, custody or control. However, the trial court, in its dis cretion, chos e to believe counsel for Gi bson that he had not received certai n document s from Prokell over Pro kell’s sw orn statements to the10

cont rary. It is well settled in Tennessee that the trier of fact may believ

e all or par

t or none of the testimony

of any witness and, even if the testimony is uncontradicted, th e trial court in its discre tion may disbel ieve it. Blackmon v. Estate of Wils on , 709 S.W.2d 596, 603 (Tenn. Ct. App. 1986). Clearly, the trial court was justified in its disb elief of Prok ell, consideringhis extens ive hist o ry o f non-compliance w ith the trial court’s or ders as manifested in the re cord.

On September 29, 199 5, the trial court sanctioned Pr okell for his

failure tocooperate in discover

y by an order compel ling dis covery . The trial cour t denied Prokel l’s objecti ons to pr oduc ing documents a nd ordered that al l documents in hi s possession, custody, or control be produced by October 27, 1997 . Moreover, the trial court ordered Prokell to file
a formal written response to Gibson’s request for product ion of documents. After an exha usti ve examination of the record in this cause, we find no evidence that Proke ll complied with the c ourt ’s ord er by p rodu cing a ll doc ume nts wit hin h is po sses sion , cus tody,
or control no la ter t han Octo ber 2 7, 19 95, n or do we find any ev idence that Prok ell filed a formal writte n response in the trial court concer ning what items he had tur ned over to Gibson until his untimely February

15, 1996 filing

.

Because ofhis failure to comply with the September 29 , 1995, order, Prokell was sanctioned asecond time by the trial court on December 22, 1995. Once ag ain, we find nothing in the record to indicate t hat Prokell produced all t he documents in hi s possession, custody, or

control by

October 27, 1995, as required by the tri al court’s or der compelling disc overy. Additionall y, no formal wri tten response denot ing what documents had and had not been produced was filed wi th the trial court as of December 22, 1995.

On February 23, 1996, the trial court sanctione d Prokell in the court’s second order awardingsanctions for his willful and deliberate ref usal t o com ply w ith the first o rder awardingsanctions. P rokell failed to pay his January and February child support on the first of each month as req uired by t he court’s order. Also, he failed to reimburse Gibson’s attorney for court repor

ter fees. We fail to find a nything in the recor d that indicates11

Prokell’s compliance with the trial court’s December 22, 19 95, order.

On May 6, 1996, Gibson filed a mot ion with the trial court to set permanent child support and reduce arrea rages to j udgment. Thereafter, on June 6, 1996, the trial court entered an order sett ing permanent c hild support at $1,591.76 per month and reduced arrearages

to $20,879.77 based on Prokell’s gross i ncome minus taxes paid. In ordering the award of permane nt child suppor t and in reducingthe arrearag es to judgment, the trial court stated: [T]he Court finds that

Respondent has w illfully and deliberatel y failed to complywith the Court’s Order Compelling Discovery and the Court’s subsequent

orders sanc

tioning Re spondent f or faili ng to comply with the Court’ s Order Compelling Discovery by failing to file a correct form a l response to Petitioner’s Fir st Request for Production of Documents filed April 17, 1995; by fail ing to produce, inter alia , his busines s bank statements and cancelled che cks since N ovember 1995, hi s personal bank statements and cancelled che cks since D ec ember 199 5, certain tax filings s uch as 1099's and quarter ly es tima ted tax pay ments, his 1994 c umulative l edger and loan documents for l oans upon which he claims a substantial a mount of interest dedu ctio ns; b y re fusing to attend h is depositio n; and by faili ng to providegood faith response s to Petitioner’ s First R equest for Admis sions and First Set of Interrogator ies Propounded to Respond ent and Second Request for Production of Docu ments, which responses vi olate Rules 11 , 33, 34, 36, and 37 of the Tenness ee Rules of Civ il Procedure. We believe that the court was justified in awarding child support based on Prokell’s gross incomeminus taxes

paid. Without complete information, the trial court would be forced to piece together the puzzle of child support using frag ments of information. Most a ssure dly, this woul d not be in the best interest of the child.

In consideringthe entirety of the sanctions imposed against Prokell, i ncluding the permanentaward of child support and reducing arrearag es to judgment, we are reminded of the languag e adopted by thi s court in Holt v. Webster

, 638 S.W.2d 391, 394 (Tenn. Ct. App. 1982) which provides: But here, as in ot her areas of the l aw, the most severe in the spectrum of sanctionsprovided bystatute or rule must be available to the district court in appropriate cases, not mere ly to penalize those whose co nduct may be deemed to warr

ant such a sanct ion, but to deter those who migh t be tempted to such conduct in the absence of suc h a deterrent. That the t ria l co urt

is e xpressl y au thor iz ed toimpo se s anct ions upon a par

ty f a i ling to complywith di scovery orders is

without q uestion. When the t rial co urt exerc ises its12

discretion in sancti oning a party, theexercis e of such discretion will not be disturbed by this Cou rt in the absence of an a ffirmative showing that the trial judge abused his or he r discretion. Holt v. Webster , 638 S.W.2d 391, 394 (Tenn. Ct. App. 1982)(qu oting Hemm er
v. Tennessee Electric Power C o. , 139 S.W.2d 698 (Tenn. Ct. App. 1940). The Holt court wenton to add that “[t]he trial courts ofTennessee must and do have the discretion to impose sanctions such as dismissal in order to penalize tho se who fail to comply w ith the Rules and, further, to dete r others from flouting or disregarding discovery orders.” Id. Prokell has failed to carry his burden to show aff irmativ ely th at the trial court abused its disc retio n. To the c ontr ary, the record is quite clear. Prokell has consisten tly refused t o complytimely and completely with the trial court’s orders. Orders of the t rial court cannot be taken lig htly as ev idenced by the full sanctio ning pow er bestowed upon the courts of t hi s state. This C ourt stated in Kirchner v. Pritchett , No. 01-A-01 -9503-JV00092, at 3 (Tenn. Ct. App. Decembe r 6, 1995): The risk of failure or inability to produce ev idence of the noncusto dial parent’s income and expenses sh ould not fall on thecustodial parent. This information is wi thin the noncustod ial parent’s control. Thu s, if the noncustodial par

ent has failed or

refused to produce ev idence of his or her incomeprior to th e hea ring, the burden of producing satisf actory evidence of income and expens es should be pla ced on the noncustodi al parent--the party most a ble to prov ide it. Undo ubte dly, Prokell i s the noncustodial pa rent and is in a much better position to obta in the information requested. Therefore, he bea rs the risks of his failure or refusal to produce evidence of his i ncome and expenses, and he suf fers the consequences when the se risks mat eria lize in the form of penalti es for his non-compliance. In th is cause, thatrisk of noncompliance manifested itself i n the form of court or dered s anction s, orders of con tempt, and a permanent award of child supp ort co upled with a reducing of arrearages to judgment. As sh own a bove, the tr ial c ourt i s prov ided w ith th e mo st s evere spect rum of sanctions to carry out its discovery order s. Findingno abuse ofdiscr etio n, we affirm the t rial court’s sanctions imposed upo n Prokell including the granting of permanen t chil d support and reduc ing of arrear ages to judg ment.

Transfer of Cause of Action In light of our total affirmanceof the trial court’s judg ment, the issueof transfer by13

this Court is moot . We acknowledge, however, that this cause may reach the tri al level again at some time in the fu ture. Prokell may submit to the trial court a properly supported mot ion f or rec usal at th at ti me, if ne cess ary.

Based on the reasons stated herein , we affirm the trial c o urt’s order denying Prokell’s motion to dismiss and mot ion to set aside and rescind order setting child support and/or for a new

trial. C osts are adjudg ed against appel lant for whi ch executi on may issue, if ne cess ary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.