IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 2, 2016

IN RE ETHAN R.

Appeal from the Circuit Court for Shelby County

No. CT-003467-13 Jerry Stokes, Judge

___________________________________

No. W2016-00201-COA-R3-CV – Filed August 8, 2017

___________________________________

Mother appeals judgment holding her in criminal contempt of court, contending that the

court lacked jurisdiction to enforce the order as to which she was found in contempt, that 

she was not given the notice required by Tennessee Rules of Criminal Procedure 42(b), 

and that she was improperly served with the contempt petition. Upon a thorough review 

of the record, we affirm the judgment. 

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Shiau-Jiuan Wang.

W. Ray Glasgow, Memphis, Tennessee, for the appellee, Michael Eugene Rowland.

OPINION

I. FACTS AND PROCEDURAL HISTORY

This case and these parties come before the court for a second time. Facts 

pertinent to the instant appeal are set forth in the opinion entered in the first appeal:

This appeal arises out of a dependent and neglect proceeding 

initiated on December 27, 2011, by Shiau-Jiuan Wang, (“Mother”), the 

mother of Ethan R., in Shelby County Juvenile Court. Mother and Michael 

Rowland (“Father”), Ethan’s father, were divorced in 2005 in Shelby 

County Circuit Court. 
2

The petition alleged that on December 23, 2011, Mother, who lived 

in Shelby County at the time, had been contacted by emergency room 

personnel at the Helena, Arkansas, Regional Medical Center and told that 

Ethan had been treated at the hospital for repeated vomiting and stomach 

pain caused by ingesting 8-15 methadone pills while he was in the custody 

of Father, and that Ethan would not be released to Father. The petition 

further alleged that Mother drove to Arkansas and brought Ethan to Shelby 

County, and that Father called her on December 26 advising that he was 

coming to pick Ethan up to exercise his scheduled parenting time. Mother 

prayed that Ethan be brought within the protective custody of the court

pending an investigation and adjudication of Ethan’s custody, that Father 

be required to submit to various drug screens, and that his parenting time be 

supervised. The temporary order was denied, and a hearing was held on the 

petition before a magistrate on February 3, 2012. On that day, the 

magistrate issued Findings and Recommendations that the petition be 

sustained; that Ethan be declared dependent and neglected as a result of 

having ingested methadone pills; that custody be awarded to Mother; and 

that Father be enjoined from having any contact with Ethan. The 

Recommendations were adopted, ratified, and made the order of the court 

by the Juvenile Court Judge. 

* * * 

On June 13 Father filed a Motion for Injunctive Relief asserting, 

inter alia, that Mother had advised him of her intent to relocate to Kentucky 

with Ethan, and seeking an order enjoining her from relocating with Ethan. 

On June 18 the Magistrate heard the motion and entered Findings and 

Recommendations, which were subsequently ratified and adopted by the 

Juvenile Court Judge in an order denying Father’s motion. Father then 

filed a petition opposing Mother’s relocation and seeking a change of 

custody. 

After proceedings relating to several motions not germane to the 

issues in this appeal, the Magistrate held a hearing on June 30, 2013, on 

Mother’s petition to have Ethan declared dependent and neglected and 

Father’s petition for custody. The Magistrate entered Findings and 

Recommendations on July 30, inter alia, dismissing both petitions; the 

Recommendations were ratified by the Juvenile Court Judge. Father 

appealed to the Circuit Court and, upon his motion, the case was assigned 

to Division VI, the court which heard the parties’ divorce action. 

On January 23, 2015, Mother filed a motion to dismiss Father’s 

appeal and for further relief asserting, inter alia, that the circuit court did 

not have subject matter jurisdiction.2 Father responded and the court held a 
3

hearing on April 10 on both motions; the court heard argument on Mother’s 

jurisdictional motion first and, after orally overruling the same, proceeded 

to hold an evidentiary hearing on the dependency and neglect petition, as 

well as Father’s opposition to Mother’s relocation and for a change of 

custody. On May 29 the court entered an order denying Mother’s motion; 

the court also entered what was styled a “Final Order” on the appeal from 

Juvenile Court in which the court, inter alia: held that there was not 

sufficient evidence that Ethan was dependent and neglected; held that

Mother had a reasonable purpose in relocating to Kentucky and that the 

relocation was not vindictive; denied Father’s petition after holding that 

there were no bases to change custody of Ethan from Mother to Father; and 

set a new parenting schedule. 

2

In pertinent part, Mother’s motion stated:

33. In the instant case, an “interrupting event” did occur when Juvenile 

Court dismissed Mother’s petition for dependency and neglect at a June 

20, 2013 hearing followed by July 30, 2013 Order dismissing (1) 

Mother’s December 27, 2011 petition for dependency and neglect, (2) 

Mother’s pro se motion for change of venue, (3) Father’s motion for 

contempt and (4) Father’s intervening petition for custody. Juvenile 

Court thereby lost its original exclusive dependency and neglect 

jurisdiction such that the within appeal for a de novo hearing before this 

Court must be dismissed.

34. It is submitted that, as a result of the above intervening event 

dismissing Mother’s original dependency and neglect petition as well as 

Mother’s pro se motion for change of venue, Father’s motion for 

contempt and Father’s intervening petition for custody, dependency and 

neglect jurisdiction of Juvenile Court was terminated pursuant to the 

provisions of TCA § 37-1-103 (c) and the In re D.Y.H. case.

In re Ethan R., No. W2016-00201-COA-R3-CV, 2017 WL 957825 at *1-2, (Tenn. Ct. 

App., March 10, 2017) (foonote omitted) (perm. app. denied July 19, 2017). 

The parenting schedule adopted by the court granted Father parenting time with 

Ethan on the second weekend of each month, during spring and fall breaks, the first 

weekend in June until the first Sunday in July, Thanksgiving on odd-numbered years, and 

Christmas on even-numbered years. Mother immediately filed a motion to stay the 

parenting time provisions in the final order, which was denied by order entered on June 

22, 2015, nunc pro tunc to May 29. Mother filed the notice initiating the first appeal on 

June 25, raising two issues: (1) whether the trial court erred in failing to dismiss the case 

for lack of jurisdiction, and (2) if not, whether the trial court erred in failing to transfer 

this case to the State of Kentucky based upon improper venue. 
4

On August 26, 2015, while the appeal was pending, Father filed the contempt 

petition that gives rise to the instant appeal. The petition alleged that Mother had not 

allowed Father to see or contact Ethan after his summer court-ordered visitation, and

requested, inter alia, that a hearing be held “to determine whether [Mother] is in 

contempt of the Court’s orders and should be punished as provided by law, including, but 

not limited to confinement in jail for civil contempt until purged of contempt and 

criminal contempt pursuant to Tennessee Code Annotated § 29-9-102.” The Fiat 

included in the petition and signed by the court set a hearing on the petition for 

September 11, 2015. There is no certificate of service on the petition in the record.

At the September 11 hearing, Father and his counsel were present; Mother failed 

to appear in person or by counsel. An order was entered on September 14 reciting that 

the case had been called for hearing on September 11, and that Mother did not appear; the 

case was reset to October 5. Included in the order was the following:

The Court . . . commands [Mother] to be present and before this Court on 

that date and answer why she should not be found in contempt for refusing 

to follow this Court’s orders. Failure to appear at the date and time 

proscribed could result in sanction and punishment as provided by law, 

including, but not limited to, monetary judgment including litigation costs 

and an award of attorneys fees, and confinement in jail for civil contempt. 

The certificate of service stated that a copy of the order was sent to Mother and to the 

Guardian ad Litem and was signed by Father’s attorney on September 14. 

Also included in the record is a separate notice signed by the circuit court clerk on 

September 14, addressed to Mother, informing her that “the hearing on the Petition for 

Citation of Contempt is hereby set for 10:00 a.m. on Monday, October 5, 2015,” and a 

return on the notice signed by “Christi Fuller, Paralegal” attesting that on September 15 

the notice was “executed on [Mother] at her place of employment, American Greetings.” 

The record also contains a photocopy of a FedEx proof of delivery receipt dated 

September 15, showing that a FedEx package was delivered to Mother’s place of 

employment and signed for by “D. Barzee” at American Greetings, 800 American Drive, 

Bardstown, Kentucky, at 12:10 p.m. on September 15; on the receipt Father’s lawyer is 

identified as the Shipper, Mother is listed as the Recipient, and the delivery method

required Mother’s signature. 

On October 1, 2015, Mother filed a document styled “Motion To Dismiss Petition 

For Citation of Contempt,” asking that the petition be dismissed for insufficient service of 

process and that the court “vacate any default judgment and order issued.” Of pertinence 

to the issues in this appeal, as grounds for the motion, Mother asserted: 
5

1. On September 9, 2015 after returning from an out of town trip after a 

long holiday weekend, Mother discovered a FedEx package left at front 

door which contains a copy of contempt petition filed by Father dated 

August 26, 2015 with a blank return receipt.

2. On September 28, 2015, Mother received a phone call from Mr. Pate, he 

informed Mother about circuit court hearing on October 5, 2015. Mr. Pate 

only represents Mother in court of appeal and not representing mother in 

any circuit court litigation.

3. As of today, Mother has not been served with any summons about 

Father’s petition of contempt or received any court order.

Two exhibits are attached to the motion: (1) what is apparently a copy of the last page of 

a document, certifying that on August 26 Father’s counsel served “a true and correct copy 

of the foregoing Notice of Setting” on Mother “via hand-delivery, electronic 

transmission, or United States Postal Service,” with the “Officers Return” portion of the 

document not completed or signed; (2) a FedEx mailing label dated September 4, 2015, 

addressed to Mother at 106 Sandy Hill Court, Bardstown, Kentucky, from Father’s 

Counsel. No hearing date was set on the motion. 

Next appearing in the record is a Motion to Dismiss Petition for Injunctive Relief 

and Citation of Contempt filed by Mother on November 24, 2015. The motion contains 

the following unsworn statements relative to the issues in this appeal:

1. On November 5, 2015, a Kentucky Nelson County sheriff came to 

mother’s work place during work hour with a summon from Shelby County 

Circuit Court in Memphis Tennessee for petitions filed by Father.

2. The summon was issued on October 5, 2015 but summon didn’t reach 

Kentucky promptly until one month later with a court hearing date set on 

December 4, 2015 that Mother does not have 30 days as stated on summon 

to respond the lawsuit which violates T.R.C.P., Rule 12.01.

3. In summon, it states that “You are hereby notified that the attached 

Petition for Injunctive Relief and the Petition for Citation of Contempt 

being served”, however the summon only includes a copy of Petition for 

Injunctive Relief which is in violation of T.R.C.P., Rule 4.04 that plaintiff 

shall furnish copies of summons and complaints.

* * * 

6. Tennessee Civil Rule Procedure 4.03 provides statue of completed 

service of process that “the person serving the summons shall promptly 

make proof of service to the court and shall identify the person served and 

shall describe the manner of service”. “If the return receipt is signed by the 

defendant, or by person designated by Rule 4.04 or by statue, service on the 
6

defendant shall be complete” that Father’s summon is not complete as 

return receipt is not signed by Mother.

7. This case came to your honorable court as father’s appeal from 

Tennessee Juvenile Court dismissed Mother’s dependent and neglect 

petition against Father and found Ethan is not dependent and neglect.

8. Tennessee Rules of Appellate Procedure Rule 13(b) states The appellate 

court shall consider subject matter jurisdiction for reasons: (1) to prevent 

needless litigation, (2) to prevent injury to the public, and (3) to prevent 

prejudice to the judicial process where reasons (1) and (3) are pertinent to 

current case.

9. Despite Mother’s attorney challenge Tennessee Circuit Court’s 

jurisdiction and subject matter jurisdiction under Uniform Child Custody 

Jurisdiction and Enforcement Act (UCCJEA), an order was entered on May 

29, 2015.

* * *

16. Mother’s dependent and neglect petition was dismissed by Juvenile 

court in June 2013 that Tennessee jurisdiction has ended for followings:

a) TCA 37-1-103(c) states that Juvenile Court’s continuing 

jurisdiction over the child in a dependent and neglect ends 

when petition is dismissed.

b) TCA 37-1-130 unless a child is determined to be 

dependent and neglected, no dispositional order may be 

made.

17. Father’s appeal unto your honorable court does not confer any 

jurisdiction to Circuit Court as Juvenile Court continuing jurisdiction has 

ended. 

18. Furthermore, because this is an appeal from Juvenile court for a 

dependent and neglect case, pursuant to TCA 37-1-159(b) and (c), when 

circuit court issues its order deciding the dependency and neglect appeal, it 

“shall remand the case to Juvenile court for enforcement of the judgement 

rendered by the criminal court or circuit court” that your honorable court 

should not retain any jurisdiction over the custody of Ethan regarding if it is 

for modification or enforcement.

19. TCA 36-5-3003(b)(1) also provides provision for transfer of custody 

cases should everyone moves out of issuing court which is what happens in 

current proceeding that Mother respectfully requests your honorable court 

to transfer all custody matters to proper court in Ethan’s home state, 

Kentucky.[1] 

 

1

 The omitted paragraphs contain allegations based on Mother’s apparent belief that Father was pursuing 

a Petition for Injunctive Relief, which was originally filed on December 31, 2014, rather than the 

contempt petition that gave rise to this appeal. The Petition for Injunctive Relief was disposed of in the 

May 29, 2015 order that served as the basis of the first appeal. 
7

No hearing date was set in the motion. 

A hearing was held on the contempt petition on December 4, but Mother failed to 

appear.

2

 On December 15 the court entered an order holding that “the actions of 

[Mother] rise to the level of criminal contempt, as she has willfully and intentionally 

violated the orders of this Court without just cause or excuse.” The court sentenced 

Mother to ten days in jail, ordered Ethan’s passport to be confiscated and delivered to the 

office of the Clerk of the Shelby County Circuit Court, and that Ethan not be allowed to 

leave the United States without the court’s permission. 

Mother filed a notice of appeal, and in due course this court entered an order 

staying execution of the contempt sentence pending review. Mother articulates the 

following issues for review:

1. Whether the trial court erred in failing to dismiss the case for lack of 

jurisdiction and improper venue.

2. Whether the trial court erred in finding Mother in criminal contempt of 

court based upon the failure of Mother to be properly notified pursuant to 

Tenn. R. Crim. Procedure 42.

3. Whether there was adequate service on the defendant pursuant to Rule 

4.03, Tenn. Rules of Civil Procedure.

II. ANALYSIS

A. Subject Matter Jurisdiction and Venue

Mother argues the trial court lacked subject matter jurisdiction to enter the May 

29, 2015 order of which she was held in contempt. In her brief, which was filed prior to 

the resolution of the first appeal, Mother acknowledges that the issues of jurisdiction and 

venue were raised in that appeal. That appeal was decided on March 10, 2017, and 

affirmed the trial court’s holding that it had subject matter jurisdiction; the challenge to 

venue was determined to be moot. Inasmuch as those matters have been resolved, we 

consider whether jurisdiction to enforce the order exists; for the reasons set forth below, 

we have determined that it does. 

 

2

 The record does not show if the hearing set for October 5 was held or not; the order under appeal states 

that the hearing on Father’s petition was held on December 4. Paragraph 2 of Mother’s November 24 

motion acknowledges that the hearing was set for that date. There is no transcript of the December 4 

hearing in the record. 
8

Tennessee Code Annotated section 16-1-103 provides: “For the effectual exercise 

of its powers, every court is vested with the power to punish for contempt, as provided 

for in this code.” The courts are specifically empowered to inflict punishments for 

contempt of court for the “willful disobedience or resistance of any . . . party . . . to any 

lawful writ, process, order, rule, decree, or command of such courts[.]” Tenn. Code Ann. 

' 29-9-102(3). Criminal contempt actions “preserve the power and vindicate the dignity 

and authority of the law and the court as an organ of society.” Baker v. State, 417 

S.W.3d 428, 436 (Tenn. 2013).

The issue presented here was also presented in Miller v. Miller, wherein this court 

addressed whether a court in Davidson County that entered a parenting plan in a divorce 

proceeding naming the mother the primary residential parent and establishing a 

residential parenting schedule had jurisdiction over a contempt proceeding initiated by 

the father after the mother relocated with the children to Wisconsin. Miller v. Miller, No. 

M2014-00281-COA-R3-CV, 2015 WL 113338 (Tenn. Ct. App. January 7, 2015). The 

court rejected the mother’s insistence that the Tennessee court lost jurisdiction to 

adjudicate the petition for contempt, holding that “neither Wisconsin’s involvement in 

this case, nor a finding that it is the home state of the parties’ children negates the 

jurisdictional authority the Davidson County Circuit Court exercised to find Mother in 

contempt.”3Id. at *6. The court has the power granted by statute to enforce its orders 

through the power of contempt, and we affirm the exercise of the court’s authority.

Mother does not argue that the evidence does not sustain the finding that she was 

in contempt of court; consequently, we proceed to address the issues of notice and service 

of the petition.

 

3

 The court specifically noted that it was resolving only the question of jurisdiction to adjudicate the 

contempt petition, and not a motion to modify the parenting plan the father had also filed. The court also 

noted several Tennessee cases addressing the issue:

In Adams v. Cooper, the Middle Section of this Court noted that “[o]ur supreme court has 

observed that a court which loses jurisdiction to modify custody ‘seemingly’ retains 

jurisdiction to enforce its unmodified custody order through contempt.” Adams v. 

Cooper, No. M1999-02664-COA-R3-CV, 2000 WL 225573, at *7 n.11 (Tenn. Ct. App. 

Feb. 29, 2000) (citing Marcus v. Marcus, 993 S.W.2d 596, 603 n.13 (Tenn. 1999)). 

Moreover, in the recent decision of Heilig v. Heilig, we noted that even if a Tennessee 

court would no longer have jurisdiction to modify a child custody order, it could still 

enforce the order in a contempt proceeding when no other court had assumed jurisdiction 

to enter a contrary order. Heilig v. Heilig, No. W2013-01232-COA-R3-CV, 2014 WL 

820605, at *5 (Tenn. Ct. App. Feb. 28, 2014).

Miller, 2015 WL 113338 at *6. 
9

B. Notice of Criminal Contempt Proceeding

Mother contends that the finding that she was in criminal contempt should be 

dismissed because the petition fails to comply with the notice requirement at Tennessee 

Rule of Criminal Procedure 42(b).

4

 Mother argues that the notice is inadequate because:

[T]he only reference made in the petition is that it reference [sic] that the 

defendant “be held in confinement in jail for civil contempt until purged of 

contempt and criminal contempt pursuant to Tennessee Code Annotated § 

29-9-102.” Said reference to “criminal” contempt is insufficient as it is the 

only reference wherein father alludes to the matter being criminal in nature 

and father prays for both civil and criminal contempt, with each prayer for 

contempt having difference [sic] consequences, which are not clearly 

defined wherein mother can articulate that she is facing a criminal penalty 

as a result of her alleged actions and not just enforcement of the order. 

 

Father argues that the petition is “fully compliant” with Rule 42(b). 

A defendant facing a criminal contempt charge must be “given explicit notice that 

they are charged with criminal contempt and must also be informed of the facts giving 

rise to the charge.” Long v. McAllister-Long, 221 S.W.3d 1, 13 (Tenn. Ct. App. 2006). 

A succinct statement of the essential facts for adequate notice was set forth in Long:

Essential facts are those which, at a minimum, (1) allow the accused to 

glean that he or she is being charged with a crime, rather than being sued by 

an individual, (2) enable the accused to understand that the object of the

charge is punishment—not merely to secure compliance with a previously 

existing order, and (3) sufficiently aid the accused to determine the nature 

 

4

 Tennessee Rule of Criminal Procedure 42(b) states in pertinent part:

(b) Disposition on Notice and Hearing. A criminal contempt shall be initiated on notice, 

except as provided in subdivision (a) of this rule.

(1) Content of Notice. The criminal contempt notice shall:

(A) state the time and place of the hearing;

(B) allow the alleged contemner a reasonable time to prepare a defense; 

and

(C) state the essential facts constituting the criminal contempt charged 

and describe it as such.

(2) Form of Notice. The judge shall give the notice orally in open court in the presence of 

the alleged contemner or by written order, including an arrest order if warranted. The 

notice and order may also issue on application of the district attorney general, an attorney 

appointed by the court for that purpose, or an attorney representing a party in the case. ... 
10

of the accusation, which encompasses the requirement that the underlying 

court order allegedly violated by the accused is itself clear and 

unambiguous. 

Id. at 13-14.

Upon our review, the petition complies with Rule 42(b) in that it contains the 

essential facts to apprise Mother that she is being charged with a crime that could result 

in her incarceration for her actions. Specifically, the petition alleges: 

2. The final order entered on May 29, 2015 modified the parties’ parenting 

plan to allow parenting time for Father on the second weekend of each 

month. The order also provided Father with parenting time during the 

summer, spring and fall breaks, and Thanksgiving and Christmas holidays.

3. For the monthly parenting time with Father to be accomplished, Mother 

was ordered to have the child at the Steak and Shake 24-hour restaurant at 

8477 Highway 64, Memphis, Tennessee 38133, located near the Wolfchase 

Mall, on Friday by 11:00 p.m. and Father shall return him to Mother at the 

same location by noon the following Sunday.

4. Mother immediately filed a motion to stay the effect of parenting 

provisions of the final order pending appeal. An order denying this request 

was entered on June 22, 2015 nunc pro tunc to May 29, 2015.

***

6. Mother has refused to allow Father to see or communicate with his child 

since Father returned him to Mother’s care at the conclusion of his courtordered visitation this summer on July 5, 2015. [Mother] likewise refuses 

to communicate with Father regarding the child with the exception of text 

messages advising she would not bring Ethan for the court-ordered 

visitation.

Father’s prayer for relief stated in part:

WHEREAS, PREMISES CONSIDERED, Movant prays that:

A. Shiau-Jiuan Wang be summoned to appear and show why she should 

not be adjudged in contempt of Court and punished accordingly; and,

B. This Honorable Court hold a hearing pursuant to the Fiat below to 

determine whether Shiau-Jiuan Wang is in contempt of the Court’s orders 

and should be punished as provided by law, including, but not limited to, 
11

confinement in jail for civil contempt until purged of contempt and criminal 

contempt pursuant to Tennessee Code Annotated §29-9-102....

Finally, included as a part of the petition was a Fiat providing the time and date of the 

hearing and the following warning:

This petition places you in jeopardy of being found in Civil and Criminal 

contempt of this court’s order(s). Each incident of contempt can result in 

incarceration in jail for contempt. As to Criminal contempt you have the 

rights of a criminally accused person including but not limited to, the right 

not to testify against yourself, the right to counsel, and the presumption of 

innocence. 

We find that the petition complies with Tennessee Rule of Criminal Procedure 

42(b).

C. Service of the Petition

Mother contends that service of the contempt petition on her did not comply with 

Tennessee Rules of Civil Procedure 4.03 and 4.04; her reliance on these rules, however, 

is misplaced. A petition for contempt which seeks to enforce an existing court order is 

not a new action, but is a pleading filed in the course of an existing action, service of 

which is governed by Rule 5. See Newman v. Newman, No. W2004-01192-COA-R3-CV, 

2005 WL 1618746, at *3 (Tenn. Ct. App. July 11, 2005); Smith v. Israel, No. M2011-

00145-COA-R3-CV, 2011 WL 5184030, at *4 (Tenn. Ct. App. Oct. 31, 2011).

Tennessee Rule of Civil Procedure 5.01 requires that “[u]nless the Court otherwise 

orders . . . every pleading subsequent to the original complaint . . . shall be served upon 

each of the parties.” The manner of service is set forth in Rule 5.02(1):

Service upon the attorney or upon a party shall be made by delivering to 

him or her a copy of the document to be served, or by mailing it to such 

person’s last known address, or if no address is known, by leaving the copy 

with the clerk of the court. Delivery of a copy within this rule means: 

handing it to the attorney or to the party; or leaving it at such person’s 

office with a clerk or other person in charge thereof; or, if there is none in 

charge, leaving it in a conspicuous place therein; or, if the office is closed 

or the person to be served has no office, leaving it at the person’s dwelling 

house or usual place of abode with some person of suitable age and 

discretion then residing therein. Service by mail is complete upon mailing. . 

. .
12

Rule 5.03 speaks to proof of service: 

Whenever any pleading or other paper is served under 5.01 and 5.02, proof 

of the time and manner of such service shall be filed before action is taken 

thereon by the court or the parties. Proof may be by certificate of a member 

of the Bar of the Court or by affidavit of the person who served the papers, 

or by any other proof satisfactory to the court.

The petition for contempt in the record before us does not include the page 

containing a certificate of service. In the motion to dismiss filed on October 1, however, 

Mother states:

1. On September 9, 2015, after returning from an out of town trip after a 

long holiday weekend, Mother discovered a FedEx package left at front 

door which contains a copy of contempt petition filed by Father dated 

August 26, 2015 with a blank return receipt. 

Attached as Exhibit One to her motion is a copy of a certificate of service executed by 

Father’s counsel, attesting that on August 26 “the foregoing Notice of Setting has been 

forwarded. . . via hand-delivery, electronic transmission, or United States Postal Service,” 

on Mother and the Guardian ad litem.5In addition, Mother filed another motion to 

dismiss the petition on November 24, acknowledging that a hearing was set for December 

4. 

The record also shows that, after Mother failed to appear at the September 11 

contempt hearing, the court entered an order on September 14, rescheduling the hearing 

to October 5; the order includes a certificate of service signed by Father’s counsel. The 

record includes a notice signed and entered by the circuit court clerk, also on September 

14, stating that delivery was made to Mother apprising her that “the hearing on the 

Petition for Citation of Contempt is hereby set for 10:00 a.m. on Monday, October 5, 

2015.” Next in the record is a copy of a FedEx receipt showing that a delivery was made 

to Mother at her place of employment and signed for by another employee. 

“The certificate of service required by Tenn. R. Civ. P. 5.03 is prima facia

evidence that the document was served in the manner described in the certificate and 

raises a rebuttable presumption that it was received by the person to whom it was sent.” 

Estate of Vanleer v. Harakas, No. M2001-00687-COA-R3-CV, 2002 WL 32332191, at 

*8 (Tenn. Ct. App. Dec. 5, 2002) (citing Orr v. Orr, No. 01-A01-9012-CH-00464, 1991 

 

5

 It is apparent that the Notice of Setting refers to the Fiat in the contempt petition in which the court 

instructs the clerk to “set this matter for hearing at 10:00 A.M. on the 11th day of Sept., 2015 and provide 

timely notice in proper form to all parties of interest.” The court’s signature on the Fiat is dated 

September 26. 
13

Tenn. App. LEXIS 877, at *11 (Tenn. Ct. App. Nov. 6, 1991)). From the foregoing, we 

conclude that Mother was properly served with the petition and notified of the hearing, in 

accordance with Tennessee Rule of Civil Procedure 5.03.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. The order 

staying the execution of the sentence for contempt is vacated and the case remanded for 

further proceedings in accordance with this opinion.

_________________________________

RICHARD H. DINKINS, JUDGE