Edith Wenczl Simpkins v. Otto Kent Simpkins
2012 Tenn. App. LEXIS 131
Tenn. Ct. App.2012Background
- Husband and Wife divorced; Marital Dissolution Agreement (MDA) approved and incorporated into Final Decree.
- MDA granted Husband exclusive residency of the marital home until sale, with financial duties including paying the equity line of credit, taxes, insurance, and maintenance; Wife to receive specified proceeds at sale and fees.
- Wife filed motion to enforce in 2010 alleging multiple MDA/Decree violations by Husband, including equity line withdrawals, taxes, listing the home, and yacht slip sale.
- Criminal contempt petition alleged fourteen counts, including ten withdrawals on the equity line totaling $123,000, failure to pay 2009 real estate taxes, failure to maintain listing, pendente lite support, health insurance premiums, and life insurance policy failure.
- Trial court convicted Husband on all fourteen criminal contempt counts and two civil contempt counts, and sentenced him to 140 days (ten days per count) and awarded Wife attorney’s fees; on appeal, the conviction affirmed, but sentence reduced to 49 days; civil contempt issues deemed mooted because purge occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Civil contempt merits | Simpkins argues civil contempt findings valid and intact. | Simpkins contends civil contempt lacks purge or proper findings. | Civil contempt moot; purge accomplished; no further civil remedy needed. |
| Admissibility of bank records | Bank records properly admitted under business records; probative of contempt. | Bank records admitted over hearsay objection; misused by Wife. | Bank records properly admitted under Rule 803(6)/902(11); permissible use. |
| Sufficiency of evidence for criminal contempt | Record shows willful violations (ten withdrawals, taxes, pendente lite, etc.). | Evidence insufficient or improperly admitted for some counts. | Ten withdrawals and other counts proven beyond a reasonable doubt; three counts not proven; guilt affirmed for five plus specific counts; others waived or not challenged. |
| Consecutive vs concurrent sentencing | Maximum consecutive ten-day sentences warranted by multiple contempt counts. | Consecutive max sentences excessive; need modification under Thigpen and Sneed principles. | Sentence is excessive; modified to 49 days total; counts re-arranged with mixed concurrent/consecutive structure. |
| Attorney’s fees on appeal | Wife entitled to appellate fees due to contempt findings. | N/A or contesting fees. | Fees on appeal awarded; remand to determine total appellate fees. |
Key Cases Cited
- In re Sneed, 302 S.W.3d 825 (Tenn. 2010) (guidance on appropriate contempt sentencing; limits and structure of multiple counts)
- Thigpen v. Thigpen, 874 S.W.2d 51 (Tenn. Ct. App. 1993) (authority to modify excessive contempt sentences)
- Robinson v. Air Draulics Eng’g Co., 377 S.W.2d 908 (Tenn. 1964) (consecutive sentencing considerations in contempt cases)
- State v. Taylor, 739 S.W.2d 227 (Tenn. 1987) (presumption against routine consecutive sentencing)
- Black v. Blount, 938 S.W.2d 394 (Tenn. 1996) (criminal contempt is generally treated as a crime)
- Cottingham v. Cottingham, 193 S.W.3d 531 (Tenn. 2006) (burden and standards of proof in contempt proceedings)
- Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000) (purge mechanism and civil contempt principles)
- State v. Davidson, 121 S.W.3d 600 (Tenn. 2003) (standard of review and sufficiency in appellate contempt matters)