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# FILED
December 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

_____________________________________________________________________________ JULIE ANN BARNETT, Davidson Circuit No. 83D-173 C.A. No. 01A01-9704-CV-00187 Plaintiff, Hon. Muriel Robinson, Judge v. STANLEY EARL BARNETT, Defendant. W. H. STEPHENSON, II, Nashville, Attorney for plaintiff. LOUISE R. FONTECCHI O, Nashville, Attor

ney for defenda

nt. AFFIRMED and REMANDED Opinion Filed:

____________________________________________________________________________ TOMLIN, Sr. J. JulieAnn Barnett (“mother”) filed a petition i n th e Circuit Court of D avidson County against Stanley Barnett (“ father”) seeking to have custody of the parties’ three minor children vested in her rather than father. Father filed a counter complaint al leging that mother was in contempt of court for violating earlier court orders regarding visitation and alienation of affections of the children. Following a hearing, the trial court denied the petition, finding that mother had failedto prove a material change of circumstances to justify change of custody. Th e tr ial court also denied father’s petition to have mother cited for contempt of court. On appeal, mother raises the single issue of the trial court’s denial of her petition to change custody. Father contends that the trial court was in

error in not findin

g mother in contemp

t and in addi tion seeks to have mother’s appeal declared to be frivolous. Some two and one-half months prior to the time this case was scheduled for argument before this court, for reasons that are not in the record, mother filed a motion to dismiss herappeal. Father opposed the motion on the grounds that he wished his issues to be considered by this court. The motion to dismiss was de nied by the mid

dle secti on of this court. Du ring oral argume

nt, counsel for mother waived oral argument as to her issue and waived appellate review of her issue

as well. As a result,

this c ou rt has considered only the issues raised by father. For the reasons hereinaft erstate d, we affirm the judgment of the trial court and find mother’s appeal to be2

frivolous. We will review only the aspects of this case that rel ate to issues of fa

ther on his cross app eal. At the time mother was granted a divorce in April 1983, she was given custody o f th e parties’ three minor children. Approximately one year after the divorce, mother took the children and secretly

moved to another state without advising father where they were going or when they would return. Approxim

ately ten years e

lapsed before mo

ther retu rned wit h the children to Tennessee. Father had not seen his children during this period. He filed a petition seeking change of custody in the Davidson County court that had jurisdiction over the divorce. On September 15, 1994, the t rial cou rt granted father’s petition for custody and at the same time enjoined mother from attempting to alienate the affections of the children from father. No appeal was taken by mother from this jud

gment. Some eight months later in May 1995, mother filed a petition seeking to regain custody of the parties’ two minor children, the t hird child having attained the age of majority. Father’s

answer contained a counter complaint seeking to have mother cited for contempt, al leging that mother had violated the court’s orders against attempting to alienate the affection of the parties’ children from their father. Following a hearing, the trial court denied mother’s petition to change custody, stating in part: “Th e Petition to change

custody is wi thout merit. There has been absolutely

no sufficient change of circumstances to award a change of

custody. The Court finds that the children are

typical teenage

rs, and it is very a

pparent that they are caught in the middle between warring parents.” Late r in the trial court judgment the court stated: “This Court has decid ed this custody case twic e and based on the

proof presented

, that decision is no

t going to change.” The trial court also found that mother was not in willful contempt of the court’s order and dismissed father’s petition. I. The Contempt Issue. Th e determination of whether a party is guilty of contempt and the decision of the tria l court whether to assess a punishment for contempt is squarely within the discretion of the trial court. Sherrod v. Wix , 849 S.W.2d 780, 786 (Tenn. Ct. App. 1992). The decision of the trial court regarding contempt is final unless the re is plain abuse of discretion. Herrera v. Herrera , 944 S.W.2d 379, 393 (Tenn. Ct. App. 1996). In presenting this issue to this court, father’s counsel contends that t

he trial cou rt actually found the mother in contempt in essence by finding that3

mother had violated its earlier order, but that the court imprope rly refused to assess any punishmentagainst her. Father has clearly misread what the trial court did. At the conclusion of the hearing the trial court made the following statement from the bench. I’m notgoing to make a finding of contempt because while I’ve made the statement I think she is continuing to disrupt this Court’s order, she’s been egged on a little bit by Mr. Barnett’s c

ontrollin g a ttitude during the time she’s supposed to have uninterruptedvisitation with the c hildren. So, the co

ntempt petition will be dismissed with no finding of contempt at this time. (emphasis added). The court addre

ssed the contempt i

ssue in its final judg

ment as follows: The Court further fin

ds that the mother is

continuing to

disrupt the Court’s order. However, this behavior

is, in part, due to Mr. Barnett’s controlling attitude during her visitation period. T

herefore, the C

ourt does not fi nd her to be in willful contempt and the father’ s contempt petition w ill be dismissed with no finding of contempt at this time. We review this record and find that the trial court did not abuse its discretion in dismissing father’s petition for conte

mpt. II. Frivolous Appeal. In his brief

and in oral argument before this court, father contends that mother’s appeal of the trial court’s decision regarding custody was frivolous. While father would have in essence prevailed by default on the major issue, that of custody, should he have a cquiesced to mother’s motion to dismiss her appe al, it seems to this court that the only way he could h ave presented h

is issues to this court for considerationwas to object to moth er’s motion to dismiss

the appeal, which he did. Father contends that mother’s brief on appeal pertaining to this issue failed to address the appropriate

legal principles governing modification of custody and their correspondi ng application to the facts of this case. Father’s contention is well made. Mother’sbrief on more than one occasion cites cases fro

m this state as well

as a Tennessee statute asserting that the comparative fitness test should be applied, and that when applied mother should be aw

arded custody. Th

ese authorities have been

construed by this court to apply only to the initial determination of custody, notto the modification of custody thereafter. Musselman v. Acuff , 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). Our courts have held

that “[a] friv

olous app eal is one that is ‘d evoid of merit,’ o

r one in which there is li

ttle prospe ct that it can ever succeed.” Industrial Dev. Bd. of Tullahoma v. Hancock , 901 S.W.2d 382, 385 (Tenn. Ct. App. 1995) (citation om

itted). A reading

by this court of the tria l court’s combined comments as to the issue of c

hange of custody c

learly stated to4

mother that she had comple

tely failed to

make out a case in accordance with the law of this state.

In denying mother’ s petition to modify custody, the trial court applied the proper standard and reached the cor

rect resul t. Under these ci rcumstances we

are of the opinion

that this is a frivolous appeal and that f ather is entitled to reasonable attorney fees and costs in conne ction with this appeal. This cause is remanded to the trial court for the determination of these items. We are constrained to note that during oral argument counsel for father asked for attorney fees only up to the date of the filing of the motion to dismiss the appeal by mother. It appears that father was insisting upon the appeal proceeding as contemplated in order for him to place before thi s court the issue of mother’s alleged contempt. Therefore, so it would not appear to be t h e d esire of this court to punish mother economically, we grant the request of father’s counsel and limit the attorney fee award in accordance with counsel’s recommendation. In conclusion, this court cannot help but no te the rancor and bitterness reflected by the words and actions of both parties, and although some of it might be justified, it does appear that in the past the partie

s have attempted t

o use the children

to get back at one

another. The mai

n accomplishment

of actions of this ty

pe is to inflict even more damage upon the parties’ innocent children. These children have suffered significantly as a result of the inability of their mother and father to live harmoniously together as husband and wife and separately as divorced parents. If the parties cannot c

onduct themselves

in an honorable, d

ecent manner so a

s to protect their children from further harm, this court would remind them that the trial court has in its

possession

a third alternative

--that is, to place

custody of these c

hildren under th

e jurisdi ction of the Department

of Human Services. Perha ps it is time for the pa

rties to clean up th

eir respective

acts. The judgment of the t rial courtis affirmed and this cause is remanded for further proceedings not in

consistent with this o

pinion and judgment.

Costs on this

cause on appeal are taxed one-half to mother and one-half to father, for which execution may issue if necessary.

___________________________ ______________ TOMLIN, SR. J.5 ________________________________________ HIGHERS, J. (CONCURS)

________________________________________ FARMER, J. (C ONCURS )