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Posted by: Chandra Williams on Jul 27, 2015

Court: TN Court of Appeals

Attorneys 1:

D. Michael Kress II, Sparta, Tennessee, for the appellant, Leslie Ann Cremeens.

Attorneys 2:

Mark E. Tribble, Cookeville, Tennessee, for the appellee, Eric Scott Cremeens.

Jason F. Hicks, Cookeville, Tennessee, Guardian Ad Litem.

Judge(s): CLEMENT

In this post-divorce action, Father filed a petition to hold Mother in contempt, alleging, inter alia, that she violated the parenting plan by making derogatory statements about him in the presence of the parties? minor son. Father also sought to suspend Mother?s visitation and enjoin her from coming to his home, place of employment, or the child?s school. Realizing its ruling could impact Mother?s parenting time, the court appointed a guardian ad litem. After Mother deposed the licensed clinical social worker who had counseled the child, the case went to trial. At the conclusion of the trial, the court found Mother in civil contempt for making derogatory statements about Father to the child in violation of the parenting plan, awarded Father attorney?s fees he incurred in prosecuting the contempt petition, and assessed the guardian ad litem?s fees against Mother. The court denied Father?s requests for an injunction and to restrict Mother?s parenting time. Mother appealed, contending the trial court erred by considering lay testimony of the licensed clinical social worker in a redacted transcript because the deposition was taken pursuant to Tenn. R. Civ. P. 32.01(3) (“the Bearman Rule”), which provides that “depositions of experts taken pursuant to the provisions of Rule 26.02(4) may not be used at trial except to impeach . . . .” Mother also contends the finding of contempt should be vacated because the trial court erred by considering Father?s petition as one for civil contempt instead of criminal contempt. Further, Mother argues that it was error to award Father attorney?s fees because Father did not make a specific request for attorney?s fees in his contempt petition and the court failed to conduct a hearing on the reasonableness of the fees as she requested. Mother also contends the trial court erred by requiring her to pay all of the guardian ad litem?s fees. Because Mother failed to provide a transcript or statement of the evidence, we assume that the record, had it been preserved, would have contained competent evidence, in addition to the challenged lay testimony of the social worker, sufficient to support the trial court?s factual findings. Having determined that the trial court correctly ruled that the petition was for civil contempt and assuming the record contains sufficient evidence to support the trial court?s factual findings, we affirm the trial court?s ruling that Mother?s violations of the parenting plan constituted civil contempt. As for Mother?s challenges to Father?s attorney?s fees, we find no error with ?? the trial court?s ruling that Father was entitled to recover reasonable and necessary attorney?s fees incurred in prosecuting the petition for contempt. Because Mother made a timely request for a hearing on the fee request, which was denied, we must reverse the amount of the award and remand for the trial court to conduct a hearing on the reasonableness and necessity of Father?s requested fees. With regard to the allocation of the guardian ad litem?s fees, although the trial court has broad discretion in the award and allocation of guardian ad litem fees, Tenn. Sup. Ct. R. 40A, § 11(b)(4) directs trial courts to “consider the equities of the situation, including both the financial resources of the parties and the conduct of the parties during the proceeding,” and set forth its findings of fact in the order allocating such fees. This record contains no findings of fact concerning the guardian ad litem?s fees; accordingly, we must reverse the allocation of these fees and remand for the trial court to consider the equities of the situation, state its findings of fact, and allocate the fees as it deems appropriate in its discretion.