Facts: When Mother and Father, the parents of two children, divorced, Father was awarded 120 days of parenting time. The parenting plan also required joint decision-making and sharing the cost of uncovered medical, dental, and private-school expenses.

Father’s parenting time was later increased to 130 days, and the trial court gave Mother sole decision-making authority for educational decisions and extracurricular activities. Father appealed that decision, and you can read about it here.

While that litigation was pending, Mother alleged that Father was in contempt for failing to pay his portion of their child’s private-school tuition and certain medical and orthodontic bills.

The trial court found Father, an attorney, in civil contempt, and said:

I should put you in jail today. This is ridiculous. It is completely and totally selfish and ridiculous, and I don’t understand that. Obviously, you’re an excellent attorney . . . . [T]o play this game just makes no sense to me. . . . [T]his pattern of behavior is outrageous.

Father was given 30 days to pay his portion of the expenses.

Father appealed.

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

A party can be found in civil contempt for failing to do something ordered by the court or doing something the court forbade. The four elements of a successful civil contempt claim are:

• the order must be lawful,
• the order must be clear, specific, and unambiguous,
• the person must have disobeyed the order, and
• the person’s violation of the order must be willful.

Father argued he should not be required to pay expenses incurred over his objection. The Court quickly dispensed with this argument:

Father has agreed on multiple occasions to pay for both private-school tuition and the orthodontic care at issue. Despite these agreements, by the time of trial, Father had yet to pay these particular expenses. . . . The fact that the initial parenting plan gave Father joint authority to make major decisions regarding nonemergency medical care and education does not provide Father carte blanche to repeatedly agree to pay these reasonable expenses only to revoke his consent at a later date. . . . The trial court, therefore, did not err in requiring Father to pay these expenses.

* * * * *

Moreover, we disagree that Father can avoid his obligation to pay for the medical expenses of the children simply by refusing to expressly consent to the treatment, or even by objecting to treatment when the treatment is reasonable and necessary. Simply put, Father should not be able to avoid his financial obligations by refusing to participate in the parenting of the children and/or choosing to deprive the children of normal medical care.

The trial court’s judgment was affirmed.

K.O.’s Comment: Mother requested her attorney’s fees on appeal because Father’s appeal was “frivolous.”

An appeal is frivolous when it has no reasonable chance of success or is so devoid of merit as to justify the imposition of a penalty. This is a rare occurrence.

Curiously, Mother did not cite Tennessee Code Annotated § 36-5-103(c) as authority for an award of attorney’s fees. The Court declined to say whether Mother could have asserted some other authority — like this statute — to recover attorney’s fees.

Mother made the same error here as the mother in Stokes v. Stokes, i.e., arguing for attorney’s fees because the appeal is frivolous instead of seeking fees under Tennessee Code Annotated § 36-5-103(c). That statute provides a stronger basis for a fee award under circumstances such as these. When that statute is available, use it instead of arguing for a frivolous appeal.

Brunetz v. Brunetz (Tennessee Court of Appeals, Eastern Section, March 8, 2019).