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MATERIAL CHANGE HARD TO OVERTURN; CONTEMPT MUST SPECIFY CIVIL OR CRIMINAL

In the case of Thomas v Miller (No. M2013-01485-COA-R3-CV, Feb. 27, 2015), a post divorce case granting Father primary custody and holding mother in contempt leads Wife to appeal. The previous parenting plan designated Mother as the primary parent, giving her 235 days of parenting time. Father received 130 days and was a joint decision-maker for the child. In August of 2012, Father filed a petition for contempt and for modification of the parenting plan. Father claimed that he was caring for the child more than the fixed amount laid out by the current parenting plan. He also asserted that Mother was leading an unstable lifestyle and that he feared for the safety of the child due to her new husband's erratic behavior, which included abusing Mother and driving with the child in the car while intoxicated. Father also claims that Mother enrolled the child in a pre-k program without consulting him. He requested a temporary restraining order between Mother's new husband and the child, to prevent the child's enrollment in pre-k, recognize that a change in material circumstances has occurred, and to name Father as the primary residential parent and increase his parenting time. 

In the resulting hearing, the court restrained Mother from putting the child into contact with her new Husband and ordered that the child attend school in Father's county of residence. In May, a hearing was held on the remaining issues presented by father. The court found that there was, in fact, a substantial and material change in circumstances since the last modification of the parenting plan and named Father primary residential parent.

The new parenting plan gave each parent 182.5 days of co-parenting time. The court also found mother in contempt and awarded father $675 in attorney fees. The court recognized a change in material circumstances due to several new developments in the lifestyle of Mother, including that the mother had willfully re-entered an abusive relationship and had also taken part in relationships with various men who she also put in contact with the child. The mother had also failed to maintain a career and had no steady income. Also, Father had a change in work schedule that allowed him more time to care for the child. Mother was found in contempt as a result of enrolling the child in a school without consulting Father. Mother appealed.

Review:

On the determinations on a change of material circumstances, the decisions of the trial court are given heavy weight in appeals court. This is because changes in circumstance may involve many factors and determinations of character that the trial judge is better equipped to analyze. On reviewing the evidence of the material change in circumstances, as discussed above, the court of appeals recognized that a material change in circumstances did occur. The decision of the trial court was affirmed.

The next topic reviewed was whether or not the trial court correctly found Mother in contempt of court. Mother argues that the court did not specify whether or not she was found to be in civil or criminal contempt. It is required by law that a party be notified when facing criminal contempt. Though the nature of the punishment, Husbands attorney's fees, was fitting for criminal contempt, the type of contempt was not specified in any court documents. Since Mother was not provided notice that she was facing charges of criminal contempt, the court of appeals vacates this judgment. In brief, the trial court's judgment is partially affirmed and partially vacated. The cost of the appeal is split equally between both parties.

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Mr. McKellar was voted by his peers as a “Top Attorney” by Knoxville’s CityView magazine in its 2010, 2011, 2012, 2013, 2014, and 2015 editions. In 2014, 2015, and 2016, Mr. McKellar was selected as a member of the “Top 100 Trial Lawyers” by the National Trial Lawyers.

Ms. Easter was voted by her peers as a “Top Attorney” in Cityview Magazine for Family Law / Divorce / Child Support in 2012, 2013, 2014, 2015 and 2016.

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