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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
MARCH 20, 2001 Session SUZANNE W. GIBSON, ET AL v. JAMES E. PROKELL
Direct Appeal from the Chancery Court for Shelby County No. 103880-1; The Honorable Walter L. Evans, Chancellor

No. W2000-01236-COA-R3-CV - August 15, 2001

This is the fourth time that an aspect of this domestic dispute has come before this court. Both parties appeal and raise numerous issues, primarily involving child support and visitation. For the reasons set forth herein, we affirm in part, reverse in part, and remand to the court below for further proceedings consistent with this opinion. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part and Remanded ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S. joined, and DAVID R. FARMER , J. concurred separately,. Scott B. Peatross, Memphis, for Appellant Felix H. Bean, III, Memphis, for Appellee OPINION Facts and Procedural History This is a domestic dispute primarily involving visitation and child support issues. The parties, Mr. Prokell and Mrs. Gibson, were divorced in Pittsburgh, Pennsylvania, in September 1993. Mr. Ralph Gibson is Mrs. Gibson's current husband, and he is also an attorney who has at various times represented Mrs. Gibson in this case. Mrs. Gibson now resides in Memphis, Tennessee, and Mr. Prokell still resides in Pennsylvania. The parties have one minor child, Maxfield Prokell (Max), who was born on March 31, 1987. Primary custody of Max was given to Mrs. Gibson by the Pennsylvania court, and Mr. Prokell was granted liberal visitation. On January 4, 1994, a Consent Order of Court was entered in Pennsylvania. The court, among other things, set Mr. Prokell's child support at $250.00 and required Mr. Prokell to pay all transportation expenses for visitation.

On February 16, 1994, in Tennessee, the chancery court entered an Order Limiting Telephone Calls and Suspending Visitation Rights Pending a Hearing on this Matter. On November 22, 1994, after a jurisdictional issue was decided, the Tennessee chancery court order was reinstated pending a full evidentiary hearing on Petitioner's Petition for Respondent to Show Cause Why His Visitation Rights Should Not Be Revoked. On June 7, 1995, the chancery court entered an agreed order, which set out liberal visitation between Mr. Prokell and Max. On November 29, 1995, the trial court entered an Order Granting Petition for Contempt. Mr. Prokell was found to be in contempt of the court's June 7, 1995, order for the following reasons: 1) having inappropriate conversations with Max that show animosity and hostility towards Mr. and Mrs. Gibson and cause Max to feel insecure about his home environment in Memphis; 2) discussing ongoing and past legal proceedings with Max; 3) harassing, browbeating, manipulating, and intimidating professionals involved in the case to get them to intercede on his behalf; 4) refusing to follow the court's order that he engage in regular, frequent individual psychotherapy and that he cooperate with and follow all recommendations of his psychotherapist and Dr. Dixon, Max's child psychologist; and 5) relentlessly attempting to get more visitation than the court's order allows. On December 22, 1995, the court entered an Order Awarding Sanctions for Failure to Comply with Order Compelling Discovery, Granting Interim Increase in Child Support Pending a Full Hearing, and Accepting Jurisdiction Over Child Support Issues. In this order, Mr. Prokell's child support was increased from $250.00 per month to $500.00 per month. On June 6, 1996, the court entered an Order Setting Permanent Support and Reducing Arrearages to Judgment. Due to Mr. Prokell's failure to cooperate in the discovery process, the trial court found that permanent child support should be set based on Mr. Prokell's 1995 admitted total revenue of $102,214.82, less a deduction only for taxes in the amount of $11,257.00. Therefore, the court found Mr. Prokell's net income to be $90,957.82 and set his child support payments at 21%, which amounted to payments of $1,591.76 per month. The trial court made the $1,591.76 monthly child support payment retroactive to March, 1995, and the trial court also reduced child support arrearages to $20,879.77. In making its decision, the trial court specifically found that Mr. Prokell had willfully and deliberately failed to comply with the court's orders compelling discovery and granting sanctions. The trial court found that Mr. Prokell's non-compliance was evidenced by his failure to file a correct formal response to Mrs. Gibson's first request for production of documents, by his failure to produce numerous documents necessary to calculate child support, and by his refusal to appear at his deposition. On June 14, 1996, an Order was entered requiring supervised visitation pending a full hearing. On August 13, 1996, an Order of Contempt was entered because Mr. Prokell failed to make the June 1996 child support payment timely, and because he only paid $500.00 of the July 1996 support payment of $1,591.74. Mr. Prokell was also sentenced to ten days in jail, and a warrant was issued for his arrest. On May 9, 1997, a judgment for child support arrears was entered in the -2-

amount of $13,845.50. Mr. Prokell appealed to this court, and we affirmed the trial court on December 10, 1997. The case sat dormant until 1999, when Mr. Prokell filed a motion entitled James E. Prokell's Motion for Specific Visitation, to Reevaluate Temporary Order of 6-14-96 and for Reduction in Child Support. Mr. Prokell was being inducted into the Edinboro University Athletic Hall of Fame for college basketball, and he wanted Max to attend the ceremony. The Order on Motion for Visitation was entered on April 28, 1999, nunc pro tunc to April 21, 1999. The Order permitted Mr. Prokell to have visitation with Max during his induction to the Edinboro University Athletic Hall of Fame. The Order also instructed Mrs. Gibson to render an accounting of all monies collected from Mr. Prokell. As a result, Mrs. Gibson filed a statement claiming that she had collected $17,204.85 from Mr. Prokell. After attorneys' fees, Mrs. Gibson claimed a net recovery of $10,357.99. On June 10, 1999, Mr. Prokell filed a petition for contempt due to the Gibsons' failure to send Max to Pennsylvania for the induction ceremony as ordered by the court. On September 2, 1999, the trial court granted Mr. Prokell visitation with Max over Labor Day weekend. That same day, this court stayed the Labor Day visitation Order. The trial was conducted on November 1 and 2, 1999. On May 19, 2000, the trial court entered its final order granting Mr. Prokell's Motion for Specific Visitation and to Reevaluate Temporary Order of 6-14-96 and for Reduction in Child Support and granting Mr. Prokell other equitable relief. Specifically, the trial court ruled that 1) Mr. and Mrs. Gibson were in willful contempt of court for failure to allow Max reasonable visitation with Mr. Prokell; 2) there was no basis for the court to recuse itself; 3) Mr. Prokell's appearance in the trial court on November 1 and 2, 1999, and the fact that he turned over certain documents purged Mr. Prokell of contempt; 4) Mr. Prokell's child support was reduced to $672.50 per month based on a $52,500.00 annual income, with $500.00 of each monthly payment to be applied to Mr. Prokell's arrears; 5) the child support arrearages should be modified; 6) none of Mr. Prokell's child support arrearages shall accrue interest, and; 7) liberal, unsupervised visitation between Mr. Prokell and Max shall be reinstated, and Mrs. Gibson shall pay one-half of the expenses of visitation. Mrs. Gibson filed her notice of appeal on May 24, 2000. The Gibsons present the following issues, as quoted from their brief, for our review: 1. Did the trial court err in denying Mrs. Gibson's motion to deny Mr. Prokell any relief until Mr. Prokell purges himself of contempt of the trial court's visitation and child support orders, which were affirmed by this court? 2. Did the trial court err in failing to deny Mr. Prokell's motion for modification because the motion should have been filed as a petition for modification with service of process issued and served on Mrs. Gibson and because Mr. Prokell's motion failed to state a claim upon which relief could be granted? 3. Did the trial court err in refusing to recuse itself?

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4. Did the trial court err in refusing to follow the law of the case established by this Court's opinions and orders dated December 10, 1997, and September 3, 1999, and, instead, in ruling that final orders of the trial court entered by the former Chancellor and affirmed by this Court were "unconscionable," thereby justifying the trial court's decision to retroactively modify the final child support and supervised visitation orders entered in 1996 without finding a material change of circumstances? 5. Did the trial court err in adjusting Mr. Prokell's current monthly child support payment downward by $500.00 per month as a downward deviation from the child support guidelines necessitated, in the trial court's opinion, by the "unfair" child support amount assessed against Mr. Prokell by the prior Chancellor and affirmed by this Court? 6. Did the trial court err in retroactively modifying child support for an extensive period prior to Mr. Prokell's filing of a request for modification and in refusing to assess 12% per annum interest on the child support arrears as required by Tenn. Code. Ann.

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