### IN THE COURT OF APPEALS OF TE NNESSEE AT NASHVILLE Su bmitt ed on B ri ef

s, Jun e 29, 200 6

NANCY LEE BARLOW LONG v . BOBB Y RAY LONG

Direc t Appeal from the Eighth Circuit Court for Davidson County No. C93D03421 Hon. Carol Solom an, Circuit Judge

No. M2004- 01697-COA-R 3-CV - F iled on Ju ly 25, 2006

I n th is p os t- div or c e act io n, the T ri a l Co urt e nte re d Jud g me nt a g a ins t th e de fe nd a nt f or pr e vio us ly

a wa rd e d o bli g a tio ns , a ndhe ld h im i n c on te mpt . O n a pp e a l, w e a ff

ir m.

Te nn. R . A pp. P .3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uit

Co ur t A ffirm e d.

H ER SCH EL P I CKE N S F RAN KS , P.J
., delivere d the opi nion of the court, in which D. M I CH A EL S WI NEY , J ., and S HAR ON G. LEE , J ., joined.

Cla rk L e e Sha w, Na sh vil le , T e nn e sse e , f or Ap pe lla nt.

Robert Todd Jackson, Br entwood, Te nnessee , for Appe llee.

OP IN ION
The pa rties in this action are Nanc y L ong (“w ife” ) and B obby L ong (“husba nd”), w ho

wer e divorc ed by

Final Or der e ntere d on Dec ember 22, 1994. I n the Fina l Order , the husband wa s order ed to pay $200.00 per w eek in c hild support, and $200.00 per w eek a limony , to terminate a fter nine y ear s, or upon the death or rema rriag e of the wife. The husband was orde red to pa y the wife $8,772.01 in medical expenses, and va rious other sums. Over y ear s, the parties wer e back in court and various orders we re e ntere d, which ar e in this recor d.

I n April of 2004, the wife filed a Petition for Cont empt and for Ex Parte Restra ining O r d e r , s e e k in g to r e c o v e r f o r p r io r a mo u n ts o r d e r e d to b e p a id b y th e h u s b a n d
, in c lu d ing the $ 8
, 7 72.01 in medical expenses, which the wife a verr ed had ne ver be en paid. The wife a sked that-2-

the husband be found in civil and criminal contempt, and also asked that a restraining or der be enter ed prohibiting the husband fr om withdrawing his retireme nt funds.

A hearing was held on J une 29, 2004, and the Court found that the husband owe d the wi fe a tot a l of $2 7, 13 3. 61 in p re vio us ly or de re d pa y me nts plu s int e re st, a nd that he ha d th e abil ity to pay and wa s i n willful contempt of the Court’s orde rs. The Court rule d the husband be incar cer ated f

or six months or until the amount was pa id in full. The husband wa s then allowed the op po rtun ity

to p re se nt ad dit ion a l evi de nc e that he ha d pa id any of the a mou nts by

bring ing the sa me to a re view hea

ring on J uly

13, 2004. The wife was a lso awar ded attorne y ’s fe es.

A s e c on d O rd e r w a s ent e re d on J uly 22 , 200 4, wh ic h sta te s tha t a hea ri ng wa s h e ld on J uly 13, 2004 and that the husband had no additional evidence at that time. The Court noted that the husband had attempted to improperly influence the Court by asking a judg e to speak to the Court ex parte on the husband’ s behalf. T he Court s tated, “Mr. L ong ’s unethical attempt to influence the Court was obviously

unsucce ssful. Such improper be havior on the p art of Mr. L ong impugns the honesty of the Court.” The Court thus enter ed a judg ment ag ainst husband for $27,133.61, f ound the h u s b a n d to b e in w il lf u l c o n te mp t, a n d o r d e r e d h im to b e imp r is o n e d u n ti l h e p u r g e d the

c on te mpt . T he Cou rt fu rthe r or de re d that if the hu sb a nd faile d to pa y the jud g me nt, a

QD RO wo uld be ente red a war ding the wife that amount from the husband’s retirement. The wife’s attorne y was
awa rded a judgme nt f

or fee s in the amount of $6,300.00. The husband ha s appea led and these issues

are raised:

1. Whether the trial c ourt err ed in finding husband in civil contempt for

fa ilu re to p a y

c hil d s up po rt ?

2. Whe the r the tr ia l c ou rt e rr e d in faili ng to a c c ou nt f or a ll f un ds pa id anda ll fu nd s r e qu ir e d to be pa id p ur su a nt t o p re vio us or de rs ?

3. Whether the trial judg e er red in failing to re cuse he rself su a s po nte ?

4. Whe the r the tr ia l c ou rt e rr e d in a wa

rd ing wi fe a tto rn e y ’s fe e s?

5. Whe the r h us ba ndis e nti tle d to a tto rn e y ’s fe e s o n a pp e a l?

6. Whether husband’ s appea l is frivolous and entitles wife to her attorney ’s fe e s o n a pp e a l?

We observe at the outset that the husband did not file a transcript of the evidenc e, but the Trial Court appr oved the wif e’s Proposed N arr ative Statement of the Evidence

. The husband, in h is b ri e f, do e s n ot c ou nte na nc e the na rr a tiv e tr a ns c ri pt, a nd make s no re fe re nc e to the re c or d in his statement of fa cts. See , Tenn. R. App. P. 27(6).

The husband a sserts that it was error for t he Trial Court to find him i n civil contemptThese case s actua lly deal with def

endants be ing f

ound g uiltyof criminal contempt when 1 they did not have the proce dural safe g uards at trial to protect their c onstitut ional rig hts. Such was

c le arl y no t th e c a se he re , a s h us ba ndwa s n ot f ou ndg uil ty

of c ri min a l c on te mpt

.
-3- when he did not have prope r notice of whether he wa s being tried for

civil or criminal conte mpt. He

a sse rt s th a t the c ho ic e of wh e the r to pr oc e e d wi th c ri min a l or c ivi l c on te mpt

mus t be ma de prior

to tr ia l, a ndc ite s c a se s f

ro m th is C ou rt . Whil e the hu sb a nd ’s int e rp re ta tio n o f the se c a se s is questionable a t best , whether husband’s a ssertion i n t h i s reg ard is cor rec t or not, he ca nnot 1 demonstrate that what he c omplains about was not done by the Trial Court. I f there was a defic iency in the Trial Court re g arding the notice pr ovided to the husband, he should ha ve broug ht that to the

a tt e n ti o n o f th e T r ia l Co u r t, a n d s in c e th e r e c o r d d o e s n o t e s ta b li s h th is c o n te n tion, we cannot

e nte rt a in the hu sb a nd ’s c la ims con cernin g a ny pr oc e du ra l de fe c ts. Te nn . R. Ap p. P. 3 6; se e als o Dev orak v. Patterson , 907 S.W .2d 815, 818 (Tenn. Ct. App.1995)

. Moreove r, the husband was not fo un d g uil ty

of c ri min a l c on te mpt , e ve n tho ug h it wa s a lle g e d in the wi fe ’s pe tit ion . T his iss ue is wi tho ut m e ri t.

The husband a sserts t hat t he Trial Court err ed in finding that he owe d money to the wife, w hen the wif

e testified that she had not b ee n p ai d what she w as owe d, and “both side [sic] complete lac k of substantial documen t ar y evidence.”, and the husband a sked that the c ase be

rema nded for

hearing by

a special master, so that the pa rties could pre sent evidenc e re g arding the pay ments made.

The re cord e stablishes t hat the amounts the wife was a war ded wa s based on prior court orde rs. The husba nd was g iven the opportunity both the day of the he aring and then a g ain the day of the re view hea

ring to p re s en t any

evidenc e he ha d to show that he had ma de the a lleg ed pay ments, and he f

ailed to do so. The husba nd has bee n g iven ample opportunityto show the Court that he ha d p a id w ha t he ow e d. Th e re is n o b a sis to r e ma ndfo r f urthe r h e ari ng s.

The husband a sserts t h at t h e Tria l J udg e should have rec used her self su a s po nte beca use “it appe ars that the Trial J udg e was ang ry with the appellant because one of her pe ers ha d

a lle g e dly a tte mpt e d to ina

pp ro pr ia te ly c ommun ic a te wi th the Tria l Judg e abo ut the c a se , s up po se dly at the re quest of the a

ppellant.” The husband conc edes tha t he did not ask for a rec usal, but states that the Judg e sh ou ld h a ve re mov e d h e rs e lf du e to a pe rs on a l pr e

jud ic e a g a ins t hi m, w hic h h e a sse rt s influence d the outcome of the ca se.

The Trial Court noted in its second order (af ter the revie w hea

ring ) that the husband attempted to have another judge speak to the Court on his beha lf, and that such be havior wa s ina pp ro pr ia te . H ow e ve r, the re is no ind ic a tio n tha t this cr e a te d a per so na l bia s or p re jud ic e a g a ins t the husband. I n fac t, the Trial Court ha d alre ady determined the amounts that wer e due and owing to the wife based on the proof and record, and found the husband in conte mpt for willfully failing to pay the same, but a llowed the husband a dditional tim e and a second hearing to determine if he ha d any additional proof to esta

blish that he had paid what he claimed. After the husband failed to do this, the Court simply enter ed the order that it ha d previously rende red on these issues. There is no-4-

ind ic a tio n th a t a nythi ng that oc c ur re d d uring the tim e be tw e e n the tw o he ari ng s a ff e c te d th e ou tc ome of the c a se . We fi ndthi s is su e , li ke wi se , to be wi tho ut m e ri t.

The husband a dmits i n his Brie f t hat Tenn. Code Ann. §36-5-103(c) pr ovides for a n
a wa rdof a tto rn e y ’s fe e s in c ur

re d in e nf or c ing a ny

de c re e fo r a lim on y

a nd /or c hil d s up po rt , w ith in the discre tion of the Tr i al C o u rt. He a sserts, howeve r, that the a war d was improper in this case, b ec au s e t h e wife would not have pr evailed on the monetary issues “but for the Trial Court’s mis app lic a tio n o f the la w” . H a vin g fo un d n o s uc h mi sa pp lic a tion, it n e c e ssa

ri ly fo llo ws that th is issue is also without merit. The Trial Court, in its discretion, aw arde d rea sonable fe es, and w e find no abuse.

Ne xt, th e hu sb a nda sse rt s th a t he is e nti tle d to his a tto rn e y ’s fe e s in c ur re d o n a pp e a l, “should he be succe ssful”. Ha ving f ound all of the husband’s issues to be without merit, this issue must also fail. T h e wi fe co unters that she should be a war ded her fee s on appea l as sanctions for husband’s filing a frivolous appeal. Te nn. Code Ann. §27-1-122 provides for such sanc tions when

a n a pp e a l is “ frivo lou s” or “ take n so le ly fo r de la y ”

. A frivo lou s app e a l ha s be e n dis c us se d b y thi s Court in the case of W

ha lum v . M

ar sh all , 2 00 6 WL

12 36 79 3 ( Te nn . Ct . A pp . M a y 9, 20 06 ), wh e re in it was stated:

“ Suc c e ssf

ul l iti g a nts sh ou ld n ot h a ve to b e ar the e xpe ns e a ndve xati on of g ro un dle ss appea ls.” Davis v. G ulf Ins. Group , 546 S.W .2d 583, 586 (Tenn. 1977). An appe al is frivolous when it has “no reasonable c hance of succ ess,” Jack son v. Aldridge , 6 S.W .3d 501, 504 (Tenn. Ct. App.1999), or is “so utterly

devoid of merit as to justi fy the imposit ion of a pe nalty ,” Combustion Eng' g, Inc. v . Kennedy , 562 S.W .2d 202, 20 5 ( Te nn . 1 97 8) . We e xer c ise ou r d isc re tio n u nd e r the statut e sp ari ng ly so a s n ot t o discourag e leg itimate appea ls. See Da v is , 5 46 S .W .2 d at 58 6. Ho we ve r, failu re to

even c ite to or arg ue for

a justifiable extension of the law controlling the re solution of a g iven case i s an indi cation that an appeal may be frivolous. Jack

son, 6 S.W .3d at 5 0 4 (c i t i n g W

ells v. Sentry I

ns. Co. , 834 S.W .2d 935, 938-39 (Te nn. 1992)).

I n th is c a se , th e hu sb a nd ’s failu re to pr ov ide a tr a ns c ri pt of e vid e nc e su pp ortin g his evidentiary

contentions, and his failure to appropriately cite to authority for his arg uments, indicates that th is a pp e a l w a s ta

ke n s ole ly fo r d e la y . We ha ve fo un d the hu sb a nd ’s iss ue s to be wi tho ut m e ri t,

a n d h e h a s c i t e d u s n o b a s i s o n w h i c h h i s ap p e a l h a d a r e a s o n ab l e c h a n c e o f

s u c c e s s

. A c c o r d i n g l y, upon rema nd, the wife will be awa rded he r fe es pursua nt to Tenn. Code Ann. §27-1- 122.

We affirm the J udg ment of the Trial Court and remand, wit h the cost of the appea l

as s es s ed t o Bo b b y

R ayL o n g.

_________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.