# FILED

May 26, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE MARY E. LESSLEY, ) ) Petitioner/Appellee, ) ) Appeal No. ) 01-A-01-9805-CV-00233 VS. ) ) Robertson County Circuit Court ) No. 7862 CHARLES F. SHOPE, JR. ) ) Respondent/Appella

nt. ) APPEAL FROM THE ROBERTSON COUNTY CIRCUIT COURT AT

SPRINGFIELD, TENNESSEE THE HONORABLE CAROL CATALANO, JUDGE

COLLIER W. GOODLETT Assistant Public Defender 19th Judicial Circuit Clarksville, Te

nnessee 37040 Attorney for D

efendant/Appella

nt JOHN KNOX WALKUP Attorney General and Reporter SUE A. SHELDON Assistant Attorney General 2nd Floor, Cordell H

ull Building 425 5th Avenue, Nor

th Nashville, Tennessee 37243 Attorney for Plaintiff/Appellee

AFFIRMED AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: CANTRELL , J. CAIN, J.-2- 

# OPINION This case involves an appeal of an order finding Defendant, Charles F. Shope, Jr., in willful and deliberate civil contempt of court for failure to pay child support. The o

rder gave Mr. Sh

ope thirty-one days f

rom its entry date to pay $350.00 in child support arrearage to the clerk of court or face imprisonment until such time as he purged himself of the contempt. Mr. Shope challenges the

trial court's juri sdiction to issue the co ntempt order on the basis of alleged procedural aspects of an attachment issued against him. He also claims tha

t the underlying divorc

e judgment that origina

lly set child support was invalid. He also argues that he was entitled to a jury trial. We affirm the trial

court. The May 13, 1998 final order which is the subject of this appeal followed a March 1 8, 1998 hearing wher ein Mr. Shope test

ified that he quit his last job in 1997 beca

use he knew the Sta

te would soon renew

its efforts to prosecute him for f

ailure to pay child sup

port. He admitte

d that despite his lack of any disabiliti

es, he remained vo

luntarily unemployed t

o avoid sanctions for failure to pay the child support. Mr. Shope further testified that paying child support violated his principles and he believed the original divorce decree settin g and ordering the ch ild support paym ents was invalid. The State presented proof that Mr. Shope had paid no child support since 1992. After hearing the

evidence, the tri

al court found Mr. S hope in deliberate and wilful contempt

of court and ordere

d him incarcerate

d on the thirty-first day after entry of

the order unless he pu

rged himself of the contempt by paying $350.00 to the cl

erk of court. It a

lso granted Ms. Le ssley child support arrearage.1 This court has since reversed that September 25, 1997 order finding Mr.

Shope i n cri minal contempt beca use the trial court f

ound him indigent and appointed counsel, but proceeded to hear t he case's merits in t he absence of counsel or a waiver of Mr. Shope's right t o repre sentation. Lessley v. Shope , 1998 Tenn. App. LE

XIS 482, No. 01-

A-01-9710- CV-00617 (Tenn. App . July 17, 1998). -3- That hearing resulted from a January 28, 1998 show cause order notifying Mr. Shop e of the civil contemp t charges, setting a h earing date, and informing him that if the allegations in the Petitioner’s petition were proved, he would fa

ce incarceratio

n. The show cause

order was based upo

n Petitioner’s ame

nded process/petition

for civil contempt a

nd for increase in child support, filed January 28, 1998. Those pleadings recounted the history of the litigation betw

een the parties, i

ncluding Mr. Shope' s four previous contempt citations for failure to pay child support. The petition stated that Mr. Shope's appeal of the trial court's most recent contempt order, which sentenced him to ten ( 10) days incarcera tion, imposed a fine , awarded Ms. Lessley $18,149.99,

and ordered him to co

ntinue paying support and arrearages, w

as pending. 1 The amended petit ion sought support payment s from the date Mr. Shope lodged his appeal on September 26, 1997, an increase in the am

ount of child support, a

nd incarceration un

til Mr. Shope purged the contempt by paying the support and arrearage owed. The trial court subsequent ly appointed cou nsel for Mr. Shope. I. In Mr. Shope's ap

peal of this order,

his appellate counse

l filed a "cleaned up" version

of a pro se trial br

ief Mr. Shope aut

hored prior to appointment of counsel . In this brief, M r. Shope appears to argue that (1) the trial court lacked

jurisdiction because

an earlier attac

hment violated requis

ite statutory procedures; (2) because the contempt order against him was-4-

criminal, he rec

eived inadequate noti

ce of the charges i

n violation of his due process rights and Rul

e 42 of the Tennesse

e Rules of Crimina

l Procedure; (3) he was denied his right to a jury trial; and (4) the original divorce order awarding child suppor

t was invalid due to the

issuance of an ex par

te restraining order,

the denial of sancti

ons against Ms. Les sley and her counsel, the denial of his motion for appointment of a stenographer, the improper calculation of the am ount of child sup port, and inadequat e notice of a hearing. We find that Mr. S hope’s arguments lac k merit for the re

asons set forth below. II. The record refutes Mr. Shope's contention that the trial court lacked jurisdiction over him.

It shows that Mr. Shope resided in Te nnessee and the trial court had exercised jurisdiction over him previously in the original divorce action and previous child su pport enforcement pr oceedings. See Tennessee Dept. of Human Services v. Daniel , 659 S.W.2d 625, 626 (2) (Tenn. App. 1983). His prior submission to the trial court's jurisdiction was sufficient to estab lish personal juri sdiction here. See Branch v. Branch , 249 S.W.2d 581, 582 (1) (195 2). In addition, the rec

ord reflects that M

r. Shope was ser

ved with the amended petition on Ja

nuary 28, 1998 and that

Mr. Shope appear

ed at various hearings including the May 13, 1998 hearing upon which the appealed order is based. Obviously,

the trial court had p

ersonal jurisdiction

over Mr. Shope and jurisdiction to enforce its prior o rders. See Dixie Sav. Stores, Inc. v. Turner, 767 S.W.2d 408, 410 (Tenn. App. 1988). Mr. Shope’s arguments, however, that the court lacked jurisdiction are based primarily on his assertions that certain procedural irregularities existed-5-

in an attachment whic h was issued by the co urt on November 7, 199 7, commanding Mr. Sho

pe's arrest and a

ppearance to answ

er a charge of contempt for failure to comply with orders requiring him to pay child support and appear in court. The trial court set bond in the amount of $2,5 00. During a Decembe

r 18 hearing on the ma

tter, the State s

uccessfully moved to amend its pleadings to reflect that it sought civil, rather than criminal, contem

pt sanctions for the t

ime period betwee

n September 26, 1997 and November 7, 1997. At a subsequent hearing, the trial court informed Mr. Shope of the nature o

f a civil charge,

the applicability of the rules of civil procedure, and the

available civil san

ctions. Mr. Shope’s claim

s regarding any irre

gularities in the att

achment procedure are simply misplaced. The order which is the subject of this appeal is a final order entered after a full hearing where Appellant was represented by counsel and where

the hearing was pr

eceded by clear,

adequate, and apparently repeat

ed, notice of the na

ture of the procee

dings and the possible sanctions. Mr. S hope was found guilty of willful and deliber

ate civil contempt of court an

d sanctioned appropri

ately for civil cont

empt. Nothing about the earlier a

ttachment has any re

levance to the civil contempt proceeding which is under appeal. Fur ther, Appellant’ s failure to indicat e how the errors he a

lleges in the attach

ment harmed him wi

th regard to the order finding him i n civil contempt p recludes reversal. Southern Bell Telephone and Telegr

aph Co. v. Skaggs , 241 S.W.2d 126, 134 (11) (1951) (a showing of both h arm and error is required for reversal). Appellant was not found guilty of criminal contempt nor sentenced as punishment for crim

inal contempt. It a

ppears that the cri

minal contempt charges of which M

r. Shope complains

were abandoned by t

he State (acting-6-

on behalf of Petitio

ner) when the plea

dings were amende

d to allege civil contempt. Appella

nt has not alleged and cannot show any harm to him from the amendment of the p leadings to seek ci vil rather than crimi nal contempt. See Helson v. Cyrus , 1999 WL 166414, * 2, No. 01-A-01-9809 -CH-00507 (Tenn. App., March 29, 1999). The only order of the

trial court which i s before this court f or review is the order finding Ap

pellant in deliberat

e and willful civil c

ontempt and ordering his incarc

eration if, and so l

ong as, he fails to c

omply with the court’s orders to pa

y child support. Sinc

e Appellant “car

ried the keys to the jail,” the court’s contempt order was clearly civil, in substance as well as form. Crabtree v. Crabtree , 716 S.W.2d 923, 925 (Tenn. App. 1986). Mr. Shope’s assertions t

hat the procedure w

as criminal in natur

e are simply incorrect, and his

arguments based on tha

t erroneous asserti

on must fail. III. We reject Mr. Shope's contention that reversal is requir

ed because his right to a jury trial was abridged. Generally, the constitutional right to a jury trial does not attac h to civil contemp t proceedings. See Pass v. State , 184 S.W.2d 1, 3 (Tenn. 1944). Moreover, the record contains no showing that Mr. Shope ever asserted a proper demand for a jury trial. Tenn. R. App. P. 36 (a). IV. Mr. Shope's collateral attack on the underlying judgment of divorce likewise provides no ground for reversa l. Such attacks ar

e viable only if it appears affirmatively on the face of the record that the trial court lacked subject matter jur

isdiction, ruled on a

n issue wholly outside t

he pleadings without the parties ' consent, or lacked ju risdiction over th e complaining part y. Gentry v. Gentr

y , 924 S.W.2d 678, 680 (1) (Tenn. 1996). Here, Mr. Shope's-7-

failure to provide a

ny record of the divor

ce proceeding prec

ludes a showing of the elements necess ary to collaterally a ttack the judgment

. See id

. V. We find that Appell

ant has not shown any pr ocedural, jurisdic

tional, or substantive errors o

f the trial court in

its order finding Mr. Shope in delibera te and willful contemp t of court or in the san ctions ordered. Accord ingly, we affirm the trial

court's disposition of

this case. This c ase is remanded to t he trial court for such further proceedings as may arise. Costs are taxed to Mr. Shope.

________________________________ PATRICIA J. COTTRELL, JUDGE

CONCUR:

__________________________________ _____ BEN H. CANTRELL, PRESIDING JUDGE (M.S.)

__________________________________ _____ WILLIAM B. CAIN, JUDGE