Dad in Contempt After Child Signing Affidavit as to Custody Preference
Fayette County, Tennessee Courthouse
Tennessee child custody modification case summary.
Robin Drewry Luttrell (Wassenberg) v. Samuel Richard Wassenberg
The mother and father in this Fayette County, Tennessee, parental relocation case were divorced in 2011 and were the parents of one child. They were able to agree to a permanent parenting plan which called for equal parenting time, with both parents designated as primary residential parent.
When the child was twelve, the father moved to Georgia, and the child stayed with the mother while they discussed changes to the parenting plan. They were unable to reach an agreement, and in 2016, the mother petitioned for a change in parenting plan and to hold the father in contempt. The contempt charge was based on the father’s alleged failure to pay expenses under the plan. Shortly thereafter, the court entered a consent order prohibiting either parent from discussing the litigation issues with the child.
The father filed a counterpetition and alleged that the child preferred to live with him. He asked for 285 days of parenting time.
The child had special needs due to her learning disabilities, and her school had recommended a school more suited to her needs. The mother selected a private school in Memphis, but the father disagreed. The mother asked the court to decide this issue as well.
The trial court entered an interim order calling for the child to go to the Memphis school. Because the tuition was higher, the interim order asked the father to pay only half of the old tuition.
The court also found that the move was a material change of circumstances and for that reason modified the custody arrangements. The court named the mother the primary residential parent, with the father having visitation on some weekends.
At some point before the final hearing, the father brought the child to his lawyer’s office, where the child signed an affidavit indicating her desire to live with the father. This was filed with the court, but the mother never received a copy. The mother filed another contempt petition over a number of issues, including the meeting in the attorney’s office.
The trial court ordered the affidavit stricken from the record, and the father was ordered to pay attorney fees relating to the affidavit.
A trial was held, starting with the criminal contempt hearing., and the father was held in criminal contempt for discussing litigation issues with the child. He was sentenced to ten days in jail, with nine days suspended.
The mother was named the primary residential parent. Even though the child had expressed her wishes to the contrary, the court held that this was tainted by the father’s discussing the matter with her. The court also set child support.
The final order also granted the mother primary decision-making power.
After one final skirmish involving the father’s posting a bond over past-due child support, the father appealed to the Tennessee Court of Appeals.
The father first argued that the lower court had been unduly harsh in sanctioning him for discovery violations. The father’s ability to offer evidence had been limited at trial because of failure to disclose information. After reviewing the evidence, the appeals court agreed that the lower court had acted within its discretion and affirmed.
The father also argued that the child should have been allowed to testify at trial. This testimony had been excluded in part because the mother stipulated that the child would have testified that she preferred to live with the father.
The father argued that this wasn’t really a stipulation, because it was not a mutual agreement as to a fact. But after examining all of the facts, the appeals court held that the actions of the parties amounted to a stipulation as to that issue.
The father also argued that the lower court had misapplied the best interest factors in reaching its decision. On this issue, the appeals court found that there was an insufficient record to review the issue. For that reason, it remanded the case for the lower court to make more detailed factual findings on the issue. In the meantime, the temporary order would remain in effect.
The appeals court also reviewed the contempt order and held that the father’s actions in taking the child to his attorney’s office constituted willfulness. Therefore, it affirmed the contempt order.
For these reasons, the Court of Appeals remanded the case for further fact finding.
No. W2017-02443-COA-R3-CV (Tenn. Ct. App. July 9, 2020).
See original opinion for exact language. Legal citations omitted.
To learn more, see Modifying Custody & Parenting Plans.
See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.
