Posted by: koherston | April 7, 2014

Subject Matter Jurisdiction Challenged in Memphis Post-Divorce Contempt Action: Heilig v. Heilig

Facts: Mother and Father were divorced in Memphis in 2008. While the parties had previously resided in Arlington, by the time of the divorce Mother and the children had moved to Illinois. In late 2010, Father moved from Tennessee to Pennsylvania.

Several post-divorce disputes arose concerning the parenting plan, all of which the parties elected to litigate in the Tennessee trial court despite the fact that neither the parties nor the children resided in Tennessee.

After a successful mediation in early 2012, the parties had the trial court enter an agreed order providing that Father would apply for and pay for the children’s passports. The agreed order further provided that “Mother will cooperate with execution of any documents necessary to accomplish this.”

Six months later, Father filed a petition for contempt alleging that he had taken the necessary steps to obtain passports for the children but mother refused to execute the necessary documents. Father alleged he was forced to cancel a family vacation because of Mother’s “contemptuous noncompliance.”

Just prior to the beginning of the hearing on Father’s petition, Mother signed the necessary passport documents. Despite this last-minute attempt at compliance, the trial court found Mother in both criminal and civil contempt of court for failing to execute the documents at an earlier date. Mother was sentenced to stay in jail until 10:00 PM the evening of the hearing. She was also ordered to pay $3000 toward Father’s attorney’s fees.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Mother argued that Tennessee lacked subject matter jurisdiction because the children had lived in Illinois since 2008.

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Tennessee Code Annotated § 36-1-201, et seq., governs jurisdiction between Tennessee and other states over child custody proceedings. The UCCJEA defines a “child custody proceeding” as “a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue,” and it includes such proceedings as those for “divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue [of custody or visitation] may appear.” The Act similarly defines a “child custody determination” as “a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.”

Tennessee Code Annotated § 36-6-217 provides that a Tennessee court that has made an initial custody determination retains continuing, exclusive jurisdiction over the custody matter until, among other things, a court determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state. Jurisdiction attaches at the commencement of a proceeding. If Tennessee had jurisdiction at the time a modification proceeding was commenced, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding. Because the modification proceeding that led to the 2012 agreed order was filed prior to Father’s move to Pennsylvania, the trial court had jurisdiction under the UCCJEA to enter the 2012 consent order, addressing, among other things, custody issues, even though none of the parties lived in Tennessee at the time the order was entered.

After reviewing the record, the Court commented:

Father filed the petition for contempt, seeking to enforce the 2012 consent order, after all the parties had moved from Tennessee. Even if this fact means that the Tennessee court would not have had jurisdiction to modify the 2012 consent order, it could still enforce the order in the contempt proceeding. No other court had assumed jurisdiction to enter a contrary order. In conclusion, the UCCJEA would not deprive the trial court of jurisdiction to enforce the 2012 consent order even though the parties had moved from Tennessee.

Accordingly, the unanimous Court affirmed the trial court.

Dissent: Judge Kirby dissented on the propriety of the trial court’s contempt finding. The majority declined to address this issue, deeming it waived because Mother did not argue the issue in her initial appellate brief. After noting that an order that is the subject of a contempt petition must be “clear, specific, and unambiguous” and interpreted in favor of the alleged contemnor, Judge Kirby wrote:

[T]he 2012 consent order has no deadline and cannot be fairly characterized as “clear, specific and unambiguous.” The typical path with such an order would have been for Father to get an order from the trial court specifying that Mother was required to execute the documents by a certain date or risk being held in contempt of court. Here, however, Mother hurriedly executed the passport documents shortly before the trial court’s contempt hearing. Apparently exasperated with Mother, the trial court went ahead and held her in contempt of court, in spite of the fact that she belatedly executed the documents. While the trial court’s frustration with Mother is understandable, it erred in holding Mother in contempt of an unspecific, unclear order that merely directs Mother to “cooperate” with Father….

I must respectfully dissent [] from the majority’s decision to decline to address the issue of whether the trial court erred in holding Mother in contempt of the 2012 consent order where the order had no deadline for her execution of the passport documents. I would address the merits of this issue, hold that the 2012 consent order lacked the clarity or specificity for the trial court to hold Mother in contempt of it, and reverse the trial court’s contempt order on that basis.

K.O.’s Comment: I am not sure I agree with Judge Kirby on the merits of the underlying contempt issue. Mother was ordered to execute the documents necessary for the issuance of the children’s passports. The trial court specifically found she had willfully “refused” to do so. Is it necessary to write a specific deadline into the agreed order? Marital dissolution agreements routinely require parties to cooperate in executing the documents necessary to carry out the terms of the agreement, e.g., executing documents necessary to effectuate the transfer of property. Must drafters now include a specific deadline to avoid the expense and delay of seeking a subsequent order to compel a party who is willfully refusing to execute documents they have already been ordered to execute? That seems to be what Judge (now Justice) Kirby is suggesting.

Heilig v. Heilig (Tennessee Court of Appeals, Western Section, February 28, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.


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