1
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
E1999-00205-COA-R3-CV
STATE OF TENNESSEE, EX REL.,
) C/A NO. 03A01-9906-JV-00209
MICKEY PHILLIPS,
)
)
Plaintiff-Appellee, )
)
)
) APPEAL AS OF RIGHT FROM THE
v.
) ANDERSON COUNTY JUVENILE COURT
)
)
)
GWEN KNOX,
)
) HONORABLE PATRICIA HESS,
Defendant-Appellant.) JUDGE
For Appellant
For Appellee
DR. MICHAEL A. S. GUTH
PAUL G. SUMMERS
Oak Ridge, Tennessee
Attorney General and Reporter
Nashville, Tennessee
DOUGLAS EARL DIMOND
Assistant Attorney General
Nashville, Tennessee
O P I N I O N
VACATED AND REMANDED
Susano, J.
FILED
February 25, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
Page 2
1
In view of our decision in this case, we do not find it necessary to
address the seven other issues raised by Knox, all of which pertain to the
validity of the trial court’s finding of contempt.
2
This appeal arises out of an order of the Anderson
County Juvenile Court finding the defendant Gwen Knox in contempt
for failing to pay child support. Within 30 days of the entry of
the order, Knox filed a petition that she entitled “Respondent’s
Second Petition to Vacate and Modify the Court’s Orders.” The
trial court dismissed the petition because it found that there
was no authority allowing a “[s]econd petition” to be filed.
Knox appeals the dismissal of her petition. Because we construe
Knox’s petition to be one pursuant to Rule 59.04, Tenn.R.Civ.P.,
i.e., a motion to alter or amend the trial court’s order of
February 4, 1999, we vacate the trial court’s order of dismissal
and remand this case for further proceedings.
1
I.
The record before us does not contain a transcript or
statement of the evidence. Therefore, our review in this case is
limited to the pleadings and orders transmitted to us by the
clerk of the trial court. We must determine if that record
reflects reversible error on its face.
This case arises from a child custody dispute between
Knox and Mickey Phillips (“Father”), the parents of Kelly Ann
Phillips (DOB: January 28, 1989). In an order entered February
28, 1996, the trial court granted Father custody of Kelly. On
September 24, 1996, the State of Tennessee, as Father’s assignee,
filed a petition seeking to modify the order of custody to
include an award of child support to Father. On February 18,
Page 3
2
The petition is not dated nor does it bear a date stamp; however, it
appears from its location in the record that the petition was filed in either
January or February, 1998.
3
1997, the trial court granted the State’s petition and ordered
Knox to pay child support of $100 per month.
In early 1998,
2
Knox filed a document entitled
“Petition to Vacate or Modify Order,” in which Knox asked the
trial court to vacate the order directing her to pay child
support. On April 13, 1998, the State filed a petition for
contempt against Knox based upon her alleged failure to pay child
support. A hearing was scheduled on the pending matters for
September 10, 1998. Knox, however, failed to appear on this
date. On November 13, 1998, the trial court issued an order of
attachment for Knox.
On February 4, 1999, a contempt hearing was held.
Following the hearing, the trial court opined as follows:
The Court finds [Knox] in willful contempt
due to the fact that she has had jobs and
earned money and failed to pay support.
Court finds her testimony to be of
questionable credibility. She is able bodied
and has 2 sources of child care for her 3
children while she works (her mother and DCS
benefits). The Motion to Vacate or Modify
Support is denied since [Knox] is capable of
working.
The trial court ordered Knox to be jailed for 30 days. The court
further ordered that Knox could purge herself of contempt by
paying $1,000 on the child support arrearage.
On March 2, 1999, within 30 days of the order of
February 4, 1999, Knox filed the petition referred to in the
Page 4
4
first paragraph of this opinion, in which Knox alleges that the
February 4, 1999, contempt hearing violated her constitutional
rights. The trial court dismissed this petition on May 21, 1999,
finding as follows:
No authority is offered, nor does the Court
know of any authority which would allow a
Second petition of this type to be filed.
The prior order stated that the “First”
petition or request to modify or vacate was
denied. The Court does not reach any other
issues raised due to this procedural issue
which is dispositive.
This appeal followed.
II.
The apparent basis for the trial court’s dismissal of
Knox’s petition was the court’s perception that the petition was
another attempt by Knox to challenge the trial court’s initial
order directing her to pay child support. We do not agree with
the trial court’s interpretation of this pleading. In construing
post-judgment motions, substance must prevail over form.
Tennessee Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453, 455
(Tenn. 1998). Upon reviewing Knox’s “[s]econd petition”, we find
that this pleading is, in substance, a motion to alter or amend
the order of the trial court finding Knox in contempt. See Rule
59.04, Tenn.R.Civ.P. Knox properly filed this pleading within
thirty days of the entry of the challenged order. See Rule
59.02, Tenn.R.Civ.P. Accordingly, we hold that the trial court
erred in failing to consider Knox’s post-judgment pleading. The
trial court should have ignored the misnomer of Knox’s pleading
and focused instead on the substance of that document. To the
extent that it challenges the correctness of the February 4,
Page 5
5
1999, order finding her in contempt, it was properly filed and
should have been considered by the trial court. We now remand
for this purpose.
III.
In accordance with the above analysis, we vacate the
trial court’s dismissal of Knox’s post-judgment pleading and
remand this case to the court below for further proceedings.
Costs on appeal are taxed to the appellee.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
______________________
Herschel P. Franks, J.
______________________
D. Michael Swiney, J.


Financial Economist and Legal Brief Writer, Editor-in-Chief Michael A. S. Guth

Dr. MICHAEL A. S. GUTH
Attorney at Law
Ph.D. (Economics), J.D. Univ. of Tenn.
Licensed in Tennessee since 1998
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