1 At the tim e of the d ivorc e, Fath er owned a gro cer y co upon rede mpti on bu si nes s ope ratin g un der t he n ame Grocer’s Coupon Redemption, Inc.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON Septem ber 16, 200 3 Session ESTELLE C. FRAME v. KENNETH FRAME, JR. A Direct Appeal from the Circuit Court for Shelby County No. 138592-9 The Honorable Robert L. Childers, Judge

No. W2002-00490-COA-R3-CV - Filed Novem ber 21, 2003

This is a father’s appeal of an order which, inter alia , increased a child support oblig ation basedupon the finding of willful and voluntary unemployment. On mother’s motion, the appeal i s dismissed for failure to timely file a notice of appeal pursuant to Tenn. R. App. P. 4.
Tenn. R. App. P. 3; Appeal as of Right; Appeal Dismissed W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined. William M. Monroe, Memphis, For Appellant, Kenneth Frame, Jr. Lar ry Rice and Laur a D. Rog ers, Mem

phis, For Appellee , Estelle

C. Frame OPINION This case inv olves an a

ppeal of a trial c ourt orde

r incre asing a

father ’s child supp ort obligations premised on the court’s finding that father was willfully and voluntarily undere

mployed. The union of

defendant

Kenneth Frame, Jr. (“Fa

ther” or “Defe ndant”) , and plaintiff Este lle C. Fra me (“Mother” or “Plaintiff”), was terminated pursuant to a final decr ee of divorce on July 1, 1992. 1 The court’s decree awarded custody of the parties’ minor child to Mother, and detailed F ather’ s child support ob ligation s as follow s:

The Defend ant’s ne

t income is great er than $ 6,250 per

month andtheref

ore it would be neit

her appr opriate nor equit able to a pply the C hild Support Guidelines. It is in the child’s best interest to be2 The court’ s fi nal decree incorporated by reference the parties ’ Marital Dissolution Agreement. Pursuant to

this agreement, the parti es agreed t hat Fat her would pay $1,000.00 per week i n chil d support. The agreement f urther provi ded: To the extent there is at

least a 5 % in creas e in H usba nd’s inc ome in one calendar year, beginning wit

h 1 993 , child sup port wi ll in cre ase acco rdi ng t o th e sa me percentag e. In no event wil l the chi ld s upport drop below $1000.00 per week, nor above $2,00 0.00 per week. The parti es’ ag reement addi tional ly r equired Fat her to pay the chi ld’s privat e school t uit ion, medi cal insurance exp enses, and “up to $50 0.00 per m onth a s a cloth ing allow ance .”

-2-

awarded $1,000 per week, and her m onthl y e xpenses sup

port said award o f child su

pport. 2

On December 6, 199 6, Father filed the first of several petitions to modify the court’s final decreeof divorc e. I

n his petition, Father moved the court to modify the paragraph of its final decr ee requiring him to establish a nd fund a trust in his child’s name. Alternatively, Father sought modification of all of the other financial provisions listed in the decree, “including, but not limited to the One Thousand Dollars per week child support which is being paid, the Five Hundred Dollars per week alimony , the Five

Hundred Dollar pe r month clothing allowance to the minor child, [and] the private

school tuition....”In su

pport of h is requests, Father noted that he drew a gross salary

of $156,000.00 per yea

r from his grocery

coupon redemption business. Father’s annua l net inc ome from this business totaled approximately $100,000.00. Father filed an amended

petition to modifythe court’s final decree on May 5, 1997, noting that “[t]he instant Petition arises out of a different factual situation, and deals with issues differe nt anddistinct from those which brought rise to the December 6, 1996 Petition. However, this Petition is technically a

n “Amended” Petition, due to the alternative relief sought in the December 6, 1996 Petition.” Fa ther ’s amended petition sought a modification of his alimony and child support obligations in an amount “commensurate to his ability to pay ,” stating as ground s for rel ief the following facts: [A] substantial and materia l chang e of cir

cumstanc es has oc curred

in that the busine ss of the Petitioner’s Grocers Coupon Redemption has suffered severe financial se tbacks since February

of 1997, and

is on the verge of shutting down. These financialsetbacks are through no fault of the Petitioner, but are a result of normal and ordinary business problems

.3 The court ’s order e nter ed judg ment on Fath er’ s Pet it ion to Modif y, Amended Pet it ion t o Modify , Pet it ion f or Scire Faci as and Cit ation for Contempt , Peti tion to Enforce Specif ic Visi tati on Rights , Peti tion f or Injunc tiv e Relief and /or P etition for Cha nge o f Custo dy. -3-

The Respondent has no t been able to pay himself any salar

y since February

of 1997. Additionally, many current expenses of the business remain unpaid. Furthermore, in an effort to keep the business operating, the Petitioner has hadto putapproximately $40,000.00 of his own money into the busine ss i n the pa st th ir ty ( 30 ) d ays . U nf or tu na te ly, Petitioner ’s financial res ources a re seve rely limited and is unable

to continue doing this for any period of time. On December 10, 1997, Father filed a petition titled “Petition for Scire Facias and Citation for Contempt; Petition to Enforce Specific Visitation Rights; for Injunctive Relief ; and/or Petition for Change of

Custody.” As the basis for his petition(s), Father stated to the court that there “have been numerousoccasio ns inthe past where [Mother] has willf ully and inten tionally interfe red with the visitation

schedule ” as set f

orth in the Marital Dissolution Agreement. Father furthe r alleged that Mother habitually ma

de dispar aging remark s about him

to the minor

child, and even a sked the c hild to steal documents from the his home. A Consent Order

was filed on September 14, 1998 addressing the alleg ations and claims set f orth i n Fathe

r’s seve ral petit ions. 3 Pursuant to this order, the parties agreed, in part, to reduce Father’s child support obligations to $400.00 per month, effective September 1, 1998. In the

event Father realized an increase in in come, the parties agreed to adjust the monthly support total as follows: At

such time as the income of Kenneth J. Frame, Jr. increases fiftee n percen t (15%), K

enneth J. F

rame, Jr., shall be o

bligated to automatic ally

increase his monthly child s uppor t obligation, ac co rd in gl y. Thereafter , a t each f ifteen p ercent

(15%) increase income, Kenneth

J. Frame, Jr., shall

voluntar ily increas e his monthly ch il d s up po rt ob li ga ti on ac co rd in gl y. Mother agreed not to hold

Father liable fo r due and

owing child suppor

t obliga ti o ns, recognizing that such debt arose from his drastic decrease in income. Father agree d to continue payment of me dica

l insu ranc e and

exp enses for the parties’ child. The court’s order further provided: All other obligations listed under thesection entitled “ Child

Support” in the original Marital Dissolution Agreement filed June 17, 1992, are hereby

declared null and void, and Kenneth J. Frame, Jr. no4 On July 22, 1999, M other fil ed a motion for counseling, request ing that the court order the part ies inv olved, to wit Estel le Frame, Kenneth J. Frame, Jr., Pamela Lawrence Frame, and the minor chil d to att end counsel ing. By order entere d Augus t 23, 1999, the c ourt ordered the afore named parties to undergo counseling wit h Dr. Patricia Milliki n. The cour t specified that “[e]a ch pa rty wil l pay forthei r own counsel ing and Kennet h J. Frame, Jr. wi ll c ontin ue to pay for the c ouns eling o f his dau ghter.” Mother filed a P etition for Co ntemp t on O ctob er 28 , 199 9, citing F ather’s a nd P ame la Law rence Fram e’s “willful” ref

usalto at tend couns eli ng as ordere d by the court. On May 17, 2000, Mother f il ed an Amen ded Peti ti on for Contempt, a dding th at Father ref used to pay for his chi ld’s counseli ng in di rect v iolat ion of t he court ’s order . Mother noted that Fath er furthe r diso beye d the c ourt’s d irectiv e by l iqui dati ng hi s daug hter ’s savi ngs a ccount and t hereby “refusing to plac e the fund s in an ac cou nt jointly he ld by E stelle Fra me.” Mother eventu allyfil ed a motion t o amend her peti tion f or contempt to remove “al legations as to [defe nda nts’] failur e to at

tend cou nseling.” Th is motio n was n ot includ ed as part o f the reco rd in this m atter; ho weve r, the co urt’s order g ranting Mother’ s moti on was made par t of the recor d. 5 Pam ela La wrenc e Fra me is F ather’s c urren t wife. A Consent Order was fil ed on Ju ly 20, 1 999 , add ing P ame la Lawrence Frame as a defendant in this matter. -4-

l onger has any responsi bility to perfo rm any of those d

uti es set ou t therein , except a s to those e nunciated in this ag

reemen t. On March 31, 1999, Mother filed a “Peti tion to Req uire C ounse ling, 4 Modify Child Suppor

t, to Add Pamel a

Law rence F rame 5 as a Part

y an d f or Co nt em pt .” In s up po rt of he r p et it io n t o m od if

y, Mother alleged that Father “has inc ome or access to income t hat would justi fy

an incre ase to his monthly child support

obligat ions.” Mot

her ther eby request ed the co urt to incr ease F ather’ s child support payments in acc ordance with his “income and lifesty le.” Mother filed another Petition for Contempt on September 15, 2 000. Her petition noted defenda nts’ co nt in ue d r ef

us al to at te nd co un se li ng , a nd fu rt he r s ou gh t t o m od if y t he cour t’s September

14, 1998 order by inc

reasing Father’s child support pay ments in ac cordanc e with “hi s income and current lifesty le.” In support of her r

equest for modification, Mother alleged: Responde nt’s, Kenneth Frame Jr., income has increased since the order of this Court

in September of 1998. Responde nt has inc ome or accessto incomethat would justify an incre ase to hismonthly child supp ort oblig ations. Responde nt, Kenneth Frame Jr., has willfully disobeyed the order of this Court, although able and capable of

comply ing with s aid orders, by refusi ng to increase his monthly child support oblig ation as his income increased. On Novembe

r 14, 2000 , Fathe

r fil ed a peti tio n styled “Petition for Citation for Contempt; Petition to Modify the Final Decree for Change of Custody to the Defendant, Kenneth J. Frame.” Shortly thereafter, he filed

a “Petition for Scire Facias and Citation for Contempt and for Injunctive6 From our reading of Father’s pl eadings, we fi nd that the grounds set forth in support of said pleadings are not pertinent to the issues at hand in this matter and therefore requi re no further explanat ion or examination. -5- Relief.” 6 Mo th er fi le d a Mo ti on to Di sm is s t he se pe ti ti on s o n F eb ru ar y 2, 2001, alleging that Father’s petitions were filed for the purpose of harassing Mother, a nd that Father was further acting with “unc lean hands” in lig ht of his wi llful and r

epeate d violation s of the c ourt’s or ders. On May 7, 2001, Fa

ther filed a

Motion to Strike Mother’s petition to modify the court’s final decree and her contempt petition. I n support of his motion, Father alleged: All of the matte rs se t for th in [M othe

r’s] P etition to Modify Final Decree of Absolute Divor ce and t he Amended Petition to Modify Final Decree of Absolute Divorce as to child support were both known and knowable at the time that the Consent Order was entere d into in thiscause in September of 1998. Father additiona lly argued that “[t]he Petitioner in this case has brought the same, or near ly th e same cause of action which resulted in the entry of a consent Order in September of 1998.” A non-jury trial was he

ld in early May

2001. The testimony at trial was undisputed that Father’s grocery

coupon redemption business failed in Dece mber 1997 , throug

h no fault of Father. Father acknowl edged

that his “normal” a

nnual sal ary

from this business to taled ap proximatel

y $150,000.00. After the closing of his grocery coupon redemption business, Father testified that he beg an working in the wholesale car industry in or around October 1997. Father noted tha t the whole sale car busines s in which he was involved took a significant downturn when his business partner suffered a family

tragedy and the car lot from which the business operated closed in 2000. Father acknowledged

that he still held the title to several cars, but noted that he had sold “ver y f ew car s” since May 1999. When aske d to descr ibe “wha t [he’s] done

to earn a living” since the first of the year 2001, Father

answer ed that he had trie d his hand in the dry wall cons truction, and was c urrently pursuing an ATM bus iness. When qu es ti on ed re ga rd in g h is an nu al in co me fo r t he pe ri od sp an ni ng th e ye ars of 1998 throu gh 2000 , Fathe

r state d his income for 1998 as $18,000.00, and $17,500.00 for 1999. Father could not recall or testify

to his annual income for the tax yea r 2000. More over, Father produced no records or statements of income for the tax yea

rs 1998 through 2000. Father acknowledged tha t despite his income, he maintains a $100,000.00 per year lifestyle

.7 Fath er t est if ied t hat he t ook out a se con d mo rtgage on his h ome for $5 0,00 0.00 . Acco rding to his testimo ny, Fatherused this mo ney to p urcha se car s for his busines s and for various personal expenses. Father noted that his current month ly mortg age pay ments tot al a pproxi matel y $1, 656.00.

8 Despi te th is ass ertion , Fa th er a dmit ted to s pendi ng s ig ni fi cant amo unts of m oney on social dinners, and acknowledged that he spent several hundred dollars on skilessons whil e on a business/personal t rip to Wyom ing. -6- In addition to testifying about his report ed annual in come, Fa the r acknowledged that his homewas recently

appraised at a value of $288,400.00. 7 Father testified that he owned several pieces of jewel

ry , valued a

t a combined to tal of more than $14,000.00, and that he owned guns valued at a combined total of approximately $2,300.00. Father testifie d that he w as forc ed to sell s everal items of perso nal prope

rty and “cu t back to the bas ics” as a result of his decreased income. Father noted that he sold two watches, a slot machine, bus in ess fur ni tu re a nd e qui pm ent , hi s 19 96 Li nco ln Tow n C ar, and th eat er t ick ets . In addition, Father testified that he has “curtailed [his] social life and traveling dramatically.” 8 The court filed several orders on July 17, 2001, a ddressing the various pleadings of the parties. The court’s first order denied Father ’s Motion to Strike. In a separate or der, the court denied Father’s Petition for Citation for Contempt, and his Petition to Modify the Final Decree for Change of Custody. The

court further denied Mother’s Motion to Dismiss Father’s “Petition for Scire Facias and Citation for Contempt and for Injunctive Relief,” and his “Petition for Citati on for Con tempt, Petition to Modify the Final Decree for Change of Custody to the Defendant.”

On this same day, the cour t filed an order on Mother’s contempt petition and her petition seeking modification of child support. The court’s order additionally addressed Father’s “Petition for Scire Facias and Citation for Contempt and I njunctive Relief.” Pursuant to this order, the court deniedFather’s petition(s), and granted Mothe r’s petition in part. In support of its ruling, the court made the following

finding s of fac t: 1. Mr. Kenneth Fra

me, Jr. wasa

very successful business man for 18 years a

nd had an income of One Hundred Fifty Thousand Dollars ($150,000.00) per year. 2. Through no fault

of his own

he was f orced to cease the operation of his business, Grocer’s Coupon Redemption, in 1997. 3. Mr. Frame voluntarily

continued to pay the c ourt ord e red [child] support until November, 1997. 4. Th e parties entered into a consent order in Septembe r o f 1998 reducing Mr. Frame’s monthly child support obligation.-7- 5. In March

of 1999, a

petition w as filed by Ms

. Estelle F rame to modify Mr. Fra me’s chil d support p ayments. 6. Mr. Frame is voluntarily underemployed. 7. Mr. Frame has maintained essentially the same life s tyl e that he maintained before hi s business f ailed and has not so ld his house, jewelry , or gun s. 8. Mr. Frame’s life sty le indicates that he is making more money than he stated in the tr ial and in his deposition.

****************************************************** 12. Mr. Frame has not supported his daughter to the be s t of his ability and he fa iled to take reasonable steps to regain e mployment that would have brought him comparable income. 13. Mr. Fra

me should have been able to find comparable work within twelve (12) months of his company’ s closure. 14. Mr. Frame has the ability to earn at lea st $90,500 per yea r. On the basisof these

finding s of fac t, the tria l cour t increased Father’s child support obligations to $1,100.00 per month, said increase effective September 1, 1999. The court awarded Mother the following additional relief:

Mr. Frame owes Estelle Frame the a mount of $14,700.00 for child supp ort arre arage s, which isreduce d to judgm ent. Mr. Frame owes to Es telle Fr ame , as child support, the amount of $30,000.00 for attorney fees incurred in this matter, which is reduc ed to judgment. Mr. Frame owes to Estelle Frame, as child support, the amount of $2,205.48 for expenses incurred in bringing this action, which is r educed to judgme

nt. In response to the court’s July 17, 2001 order , Father filed a motion pursuant to Rules 59 and 60 of the Tennessee Rules of Civil Procedure. Father’s motion sought the following relief f rom the court’s order:-8- 1. That up on a fina

l hearin g of thisMotion, the Court g rants the Defendant’s Motion to Strike o r for Dir ected V erdict, pursuant

to Rule 50.02 of the Tennessee Rules of Civil Procedure; or

grant a new trial pursuant to Rule 59.02 of the Te nnessee Rules of Civ

il Procedure; or issue a

n Order altering or amend

ing judgme nt o f this Courtin rega

rd to imputed income a

nd child su

pport, pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure. 2. That upon

a fin al hear ing of this Motion, the Court grant the Defendant relief, pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, in that the grounds upon which the Trial Court’s decision was based, has been reversed or otherwise vac ated, or is no longer equitable that a judgment

should have prospective application; orthat there are other appropriate r easons for justifying

relief fr o m the judgment, as the Court may deem just and proper. The court denied Father’s motion by order entered Novembe r 21, 2001. The court’s order additiona lly amended its July 17, 20 01 or der to sta te that F ather wa s ‘willfully a nd volunta

rily underemployed.’ On February

27, 2002, Father filed a Notice of Appeal fro m the court’s July 17, 2001 and November

21, 2001 orders. OnMay 15, 2002, Mother filed a Motion to Dismiss in this Court, for Father’s failure to file a timely notice of appeal. On May 22, 2002, this C ourt e nter ed an Orde r den ying Mother ’s Mot

ion to Dismi ss. We noted, however, that

“[t]his Order should not be construed as preventing the Appellee from raising this issue in her appellate brief.”

In April 200 3, Father

filed a Motion for Consideration of Post-Judgment Facts in the Appellat e Court, requesting this Court to consider his Chapter 7 Bankruptcy Petition and Sche dule detailing his liabilit

ies and a ssets in

the bankruptcy e state. By O rder entered June 5, 2003, this court granted Father ’s motion “ insofar as it discl oses that

the Appellant file d a Ch ap ter 7 Bankruptcy Petition on October 30, 2001,” but denied the remainder of the motion. Father raises th e following issue s in his brie f to this Cou

rt: I. D id t he Court err in hearing this Petition in that all of the allegations co nt ai ne d i n s ai d P et it io n a re ba rr ed by t he Doctrine of Res Judicata? App ellant as s erts t hat all of the alleg ations asto unemployment

or under-empl oyment were both kno wn and kno wable at the time that a

Consent Or

der wasentere d into in thiscause in September of 1998.-9- II. Under Te

nnessee law, is a non-custo dial par ent willfu lly andvoluntarily unemploy ed or underemployed w

hen he loses his job throu gh no fault o f his own a nd he hasmade re asonable effortsto obtain em ploy ment simila

r to his pre

vious empl oym

ent? However, we will first consider Mother’s motion to dismiss for failure to file a timely notice of appeal. The order

appealed was entered July 17, 2001, and on July 25, 2001, Defendant filed a timely motion, pursuant to Tenn. R. Civ. P. 59. The court entered its order overruling the Rule 59 motion on November 21, 2001. Pursuant to Tenn. R. Civ. P. 4 (a) and (b), a notice of appeal must be filed within thirty (30) da ys after the date of entry of the judgment

or if the time

ly motion as specified isfiled with in thirty (30) days of the e

ntry of the orde

r denying the timely filed motion. Thus, under the circ umstances of the instan

t case, t he filing of a notic e of appe al mo re than thi rty (30) days after November 21, 2001 would be untimely

and requ ire dismis sal of the

appeal u nless the re is an exception because of some other valid rule of law. Appellant asserts that he filed

a Chapter 7 bankruptcy

petition on October 30, 2001 and that by virtue of 11 U. S.C. § 36 2, there is an auto matic sta

y of all proc eeding s and, thus , he had th irty (30) days a

fter the lifting of the stay

on January

30, 2002 w ithin which to file hi s notice o f appea l. 11 U.S.C. § 3 62 provide s, in pert inent par t: § 362. Automatic stay (a) Except as p

rovided in su bsection (b) of this section, a petition filed under se ction 301, 302, or 30 3 of this tit le, or an appli catio n filed under

section 5(a)(3) of the Securities I nvestor Protection Act of 1970, operates as a stay , applicable to all entities, of –

****************************************************** (b) The filing of a

petition under section 301, 302, or 303 of this title, or of an app lication u

nder section 5(a) (3) of the Securi ties Inve st or Protection Act of 1970, does not operate as a stay –

****************************************************** (2) under subsection (a) of this section – (A) of the commence ment or continuation of an action or proceeding for –-10- (i) the establishment of paternity ; or (ii) the establ

ishment ormodification of an order for alimony, maintenance, or sup port; or (B) of the collection of ali mony, maintenance , or support from property that is not proper ty of the estate. (emphasis added). When interpreting a statute, the role of t he Court is to “ascertain and give eff ect to the legislative intent.” Sha rp v. R ichardson , 937 S.W.2d 846, 850 (Tenn. 1996). In the absence of am bi gu it y, legislative intent is derived from the face of a statute, and the Court may not depart from the “natural and ordinary” meaning of the statute’s langua ge. Davis v. Reagan , 951 S.W.2d 766, 768 (Tenn. 1997); Westland We st Community Assoc. v. Knox County , 948 S.W.2d 2 81, 283 (Tenn. 1997).

From

the plain

langua ge of th is statute , we find

the sta y exem pt io n c re at ed by § 362(b)( 2)(A)(ii) to be applicable in this case. In the instant matter, Father is appealing the decision of the trial court to g

rant Mother’s pe

tit ion for establishment and modification of his support obligat ions. This appe al, in

essence, is a continuation of Mother’s petition and, therefore, Father’s appeal of the trial court’s ruling establ ishing the arrearag es and modifying his child support obligations was not stayed. Thus, we hold that Father’s notice of appeal was not timely filed. It is quite clear that the time for filing a notice of appe al cannot be extended. Tenn. R. App. P. 2.

Ac co rd in gl y, the appeal is dismissed, and costs of the appeal are assessed to Appe llant, Ke nn et h F ra me , J r. , a nd hi s s ur et y.

__________________________________________ W. FRANK CRAWFORD, PRESIDI NG JUDGE, W.S

.