Kelly Colvard Parsons v. Richard Jearl Parsons
W2016-01238-COA-R3-CV
| Tenn. Ct. App. | Mar 30, 2017Background
- Kelly Parsons and Richard Parsons incorporated an MDA into a final divorce decree dividing Mr. Parsons’ federal retirement benefits: wife entitled to 50% of CSRS annuity and 50% of the FERS supplement; husband to pay interim monthly amounts until OPM paperwork was effective.
- Mr. Parsons retired from the FAA and received a CSRS annuity ($5,325) plus a FERS supplement ($1,370) only while his earned income remained under a $15,120 cap.
- After the divorce, Mrs. Parsons learned Mr. Parsons’ 2014 earned income exceeded the FERS cap, eliminating the FERS supplement; she alleged he nonetheless failed to pay her her vested share for several months and filed a petition for civil and criminal contempt (and sought arrears and fees).
- At the contempt hearing, after direct examination of Mrs. Parsons but before her proof was complete, Mr. Parsons moved to dismiss based on plaintiff’s alleged failure to elect civil vs. criminal contempt; Mrs. Parsons withdrew the criminal count and the court dismissed the petition for civil contempt, stating plaintiff had not proved contempt by clear and convincing evidence.
- The Court of Appeals held the trial court applied the wrong burden (clear and convincing rather than preponderance) and erred by dismissing before plaintiff completed her proof; it vacated and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper burden for civil contempt | Preponderance of the evidence governs civil contempt | Clear and convincing is required (trial court applied this) | Court: Preponderance is correct; trial court erred by using clear and convincing |
| Dismissal before plaintiff completed proof | Dismissal was premature; plaintiff had not finished presenting evidence | Dismissal proper due to procedural defect (failure to elect) | Court: Dismissal before close of plaintiff's proof violated Rule 41.02(2); reversible error |
| Failure to elect civil vs. criminal contempt at outset | Withdrawal of criminal count cured any election issue; failure to elect is not grounds for dismissal | Case fundamentally flawed for lack of election; dismissal required | Court: Failure to elect is not a proper basis to dismiss when plaintiff cures election and proof was incomplete; dismissal improper |
| Enforcement/modification of vested property interest (FERS share) | Wife’s interest in retirement benefits is a non-modifiable vested property right under the decree; unilateral elimination or nonpayment violated decree | Husband contends wife knew/expeced his post-retirement earnings might exceed cap and eliminate supplement; merits not decided on appeal | Court: Declined to decide merits on appeal; remanded for trial with correct standard and completion of proof |
Key Cases Cited
- Lovlace v. Copley, 418 S.W.3d 1 (Tenn. 2013) (standard for reviewing factual issues in civil contempt)
- Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346 (Tenn. 2008) (preponderance standard for civil contempt; abuse-of-discretion framework)
- Doe v. Bd. of Prof'l Responsibility of Supreme Court of Tenn., 104 S.W.3d 465 (Tenn. 2003) (civil contempt burden of proof discussion)
- Luplow v. Luplow, 450 S.W.3d 105 (Tenn. Ct. App. 2014) (civil contempt burden and attorney-fee principles)
- McLarty v. Walker, 307 S.W.3d 254 (Tenn. Ct. App. 2009) (civil contempt standards)
- Boyer v. Meimermann, 238 S.W.3d 249 (Tenn. Ct. App. 2007) (motions for directed verdict inappropriate in bench trials)
- Main St. Mkt., LLC v. Weinberg, 432 S.W.3d 329 (Tenn. Ct. App. 2013) (involuntary dismissal procedure under Tenn. R. Civ. P. 41.02(2))
- Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730 (Tenn. 1978) (Rule 41.02 requires plaintiff’s evidence be heard before involuntary dismissal)
- Oriel v. Russell, 278 U.S. 358 (U.S. 1929) (case cited by trial court regarding burden, but appellate court rejected its application here)