SARA EVELYN EVANS YOUNG, )
)
Petitioner/Appellant, )
) Appeal No.
) 01-A-01-9609-CV-00415
VS. )
) Davidson Circuit
) No. 90D-936
BOBBY HUGH YOUNG, )
)
Respondent/Appellee. )
FILED
March 12, 1997
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
Cecil W. Crowson
Appellate Court Clerk
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE MURIEL ROBINSON, JUDGE
IRWIN VENICK
DOBBINS & VENICK
2100 West End Avenue, Suite 850
Nashville, Tennessee 37203
Attorney for Plaintiff/Appellant
JACK NORMAN, JR.
213 Third Avenue, North
Nashville, Tennessee 37201
Attorney for Defendant/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
KOCH, J.
OPINION
The Circuit Court of Davidson County refused to hold Bobby Hugh
Young in civil contempt for failing to perform certain parts of a divorce decree. We
must decide if the dismissal of a civil contempt petition is appealable, and if so, did the
trial judge err in refusing to find the respondent in contempt. We hold that the refusal
to impose civil contempt sanctions is appealable, but we affirm the trial judge’s
decision not to hold Mr. Young in civil contempt.
I.
A January 10, 1992 divorce decree awarded Sara Evelyn Evans Young
a divorce from Bobby Hugh Young and ordered Mr. Young to pay to her $200,000 in
four annual installments, as well as monthly alimony payments, one-half of the
proceeds from the sale of a piece of equipment formerly used in Mr. Young’s
business, and $35,000 in attorney’s fees. For the sake of clarity, we will henceforth
in this opinion refer to Mr. Young’s former wife as Mrs. Young, even though we are
aware that the divorce decree restored the use of her former name to her.
Mrs. Young subsequently filed a series of petitions praying that Mr.
Young be held in civil and criminal contempt for violating the cited provisions of the
final decree. At a hearing in 1994, the trial judge required Mrs. Young to elect whether
she was proceeding on civil or criminal charges. Mrs. Young chose to proceed on the
basis of civil contempt, and she dismissed the criminal contempt charges. After a
further hearing, the trial judge found that Mr. Young was not in civil contempt, and
Mrs. Young made her first appeal to this court.
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We found that the trial court erred in requiring Mrs. Young to dismiss her
criminal contempt charge in order to be permitted to proceed on civil contempt, and
we remanded the case on the basis that the judgment was not a final one, because
the criminal contempt charge had been dismissed in error, and was therefore still
before the trial court. On remand, Mrs. Young again dismissed her prayer for criminal
contempt, and the case is now before us on the trial court’s refusal to find Mr. Young
in civil contempt.
II.
Is the Trial Court’s Decision Appealable?
Without distinguishing between civil and criminal contempt, our courts
have often said that an acquittal in a contempt proceeding cannot be appealed.
Graham v. Williamson, 128 Tenn. 720, 164 S.W. 781 (1913); Gunter v. Seaboard
Copper Mining Co., 142 Tenn. 14, 215 S.W. 273 (1919); Archer v. Archer, 907
S.W.2d 412 (Tenn. App. 1995); Plumb v. Plumb, 372 S.W.2d 771 (Tenn. App. 1962);
Schwalb v. Schwalb, 282 S.W.2d 661 (Tenn. App. 1955). Civil and criminal contempt,
however, differ in some fundamental ways. If the sanction is designed to coerce the
contemnor into performing the court’s orders, it is considered civil; if, on the other
hand, the sanction is imposed to punish the contemnor for past acts, it is criminal.
Storey v. Storey, 835 S.W.2d 593 (Tenn. App. 1992). The civil contempt sanction
may be discharged by compliance with the court’s order; therefore, as we have often
said, the contemnor “holds the keys to the jail in his own pocket.”1
1
W e are aware that some courts have also divided civil contempt into two sub-classes:
com pensa tory and coercive. In Latrobe Steel Co. v. United Steelworkers , 545 F.2d 13 36 (3d C ir. 1976),
the Co urt desc ribed them this way:
[C]om pensa tory actions are essentially backward looking, seeking to
com pen sate the complainant through the payment of money for damages caused by
past acts of disobedience. Coercive sanctions, in contrast, look to the future and are
designed to aid the plaintiff by bringing a d efiant party into c om plianc e with the court
order or by assuring that a p oten tially contum acious p arty adheres to an injunction by
setting forth in advance the penalties the court will impose if the party deviates from the
path of obedience . . . (em phasis add ed).
[T]he court m ay levy a fine of a specified am ount for past refusal to conform
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If the court intends to punish the contemnor (criminal contempt) then all
the safeguards accorded criminal defendants come into play. Strunk v. Lewis Coal
Co., 547 S.W.2d 252 (Tenn. Crim. App. 1976). One of the safeguards is compliance
with Rule 42, Tenn. R. Crim. Proc. Storey v. Storey, 835 S.W.2d 539 (Tenn. App.
1992). And the state cannot appeal an acquittal in a criminal proceeding. In Gunter
v. Seaboard Copper Mining Co., our Supreme Court applied the reasoning of the
criminal law to contempt cases:
Under our practice, the act complained of is
criminal in its nature, while it might not be such in some
jurisdictions where the fine imposed inures to the benefit
of the party injured. It follows, therefore, as a matter of
course, that no appeal will lie, where the defendant has
been exculpated, any more so than in a case where a
defendant has been found not guilty on a charge of
assault and battery. We think this view of the matter has
been generally accepted by the profession; for, while our
reports are full of cases where defendants, found guilty of
contempt, have appealed, we have been unable to find a
case in this State in which an appeal was sought where
the defendant was acquitted in the lower court.
142 Tenn. at 18, 215 S.W. at 274.
We find the reference to an acquittal in an assault and battery case
instructive and we note that the charge in Gunter was a past violation of an injunction.
On the other hand, conditional punishment, punishment which may be avoided by
future compliance with the court’s orders (civil contempt), does not carry with it the
safeguards that attach to criminal prosecutions. Davenport v. Jailer, City of Memphis,
572 S.W.2d 265 (Tenn. App. 1978). Such a sanction is imposed in a civil proceeding
to the injunc tion, conditioned, however, on the defendant’s continued failure to obey.
The court may also specify that a disobedient party will be fined a certain amount for
each day of non-compliance. Indeed, the methods that may be employed to coerce a
recalcitrant party into compliance with an injunction are many and varied.
545 F.2d at 1344.
W e kn ow of n o T enness ee cases recognizin g com pensato ry civil contem pt -- probably because
of the fifty dollar lim it placed on fines for conte m pt by T enn . Code A nn. § 29-9 -103 . In addition, a fine
levied after the contemnor defies a threat im pos ed to deter future co ndu ct, seems to us to have all the
attributes of a criminal sanction. It is imposed for punishment and the contemnor no longer can
discharge it by compliance.
-4-
and should be governed by Rule 3(a) of the Tenn. R. App. Proc.: “In civil actions
every final judgment entered by a trial court . . . is appealable as of right.”
This result is in accord with the majority rule in other states. See 24
A.L.R. 3rd 650, Appealability of Acquittal from or Dismissal of Charge of Contempt of
Court. We are convinced, therefore, that a dismissal of a petition for civil contempt
may be appealed.
III.
Is the Court’s Refusal to Impose Sanctions
for Civil Contempt Reversible?
Ms. Young argues that the proof establishes Mr. Young’s contempt in
the following particulars:
1. His refusal to make the monthly alimony payments
on the first day of the month.
2. His refusal to make reasonable efforts to sell the
used equipment.
3. His refusal to make payments on the $200,000
judgment and the award of attorney fees.
With respect to the timely alimony payments, the court stated that the
final decree did not require Mr. Young to make the payments on the first day of the
month. The final decree did, however, contain the following requirement with respect
to the monthly alimony payments: “The payments shall be due the first day of every
month.” We think the trial judge simply overlooked that provision.
With respect to the sale of the used equipment, the trial judge found that
Mr. Young could not be held in contempt because he was not specifically ordered in
the final decree to sell the equipment. We find that the trial judge was correct in that
finding.
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With respect to the monetary payments ordered in the final decree, the
trial court stated from the bench, “I am convinced that Mr. Young does not arrange his
life where he can pay her. I don’t think he is paying her in good faith.” However, the
final order states, “The Court finds that the evidence presented by Mr. Young sustains
his allegation of financial inability to comply with the terms of the decree as to the
$200,000 installment payment schedule on the marital judgment.” The inability to
comply with a court’s order is a defense to punishment for civil contempt. Gossett v.
Gossett, 34 Tenn. App. 654, 241 S.W.2d 934 (1951).
But, let us assume that the trial judge was wrong in dealing with the facts
and that Mr. Young was clearly in contempt. Since we are only dealing with civil
contempt, the options allowed by our code are severely limited. Tenn. Code Ann. §
29-9-104 says that “If the contempt consists in an omission to perform an act which
it is yet in the power of the person to perform, he may be imprisoned until he performs
it.”2
With respect to not paying his alimony on the first day of the month (as
we have found he was obligated to do) can Mr. Young be put in jail until the first of the
next month? We do not think the court could or should impose such drastic
conditional punishment.
With respect to the failure to make the monetary payments, the court is
entirely correct if Mr. Young is not presently able to make the payments. Assuming
that he is able, we still think it would be within the court’s discretion to decide whether
he should be imprisoned for an indefinite period of time. Instead, the court awarded
a judgment for the past due installments and allowed Mrs. Young to seek payment
through the ordinary means of execution. We do not think the trial judge’s action
2
W e do not thin k the ten days in jail and/or fifty dollar fine provided in Tenn. Code Ann. § 29-9-
103 applies to the civil contempt involved in this case.
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would be an abuse of discretion, even if Mr. Young was capable of making the
payments.
IV.
Mrs. Young also appeals the trial court’s refusal to make Mr. Young pay
her attorney’s fees. This is also a decision that rests in the discretion of the trial court.
McCarty v. McCarty, 863 S.W.2d 716 (Tenn. App. 1992). We do not think the trial
judge abused her discretion in this case.
The judgment of the trial court is affirmed and the cause is remanded
to the Circuit Court of Davidson County for any further proceedings necessary. Tax
the costs on appeal equally between both parties.
_____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
WILLIAM C. KOCH, JR., JUDGE