DISSENTING OPINION
SMITH, Justice.I respectfully dissent. I would hold the judgment of contempt void because the so-called judgment of May 9, 1961, holding Hooks “in continuing contempt,” is not a contempt judgment, but is in reality an agreed judgment. The judgment of May 9, 1961, is only a recitation of an agreement between the parties. The agreement merely recognizes an indebtedness. The former Mrs. Hooks had recourse to the courts upon breach of the agreement to enforce the same, but at no time did she have the right to substitute contempt proceedings for the legal remedy open to her. Hooks lived up to the agreement by making monthly payments until June 25, 1963, the date the youngest child of the marriage of Hooks and Geraldine became eighteen years of age. Thereafter, on January 22, 1964, Geraldine instituted a new contempt proceeding against Hooks when her only remedy was to institute a suit in a court of competent jurisdiction to enforce the agreement to pay the debt of $4,070.00. The contempt judgment of September 12, 1966, held Hooks in contempt solely because he failed to carry out the so-called judgment of May 9, 1961. The May 9th, 1961, judgment was incorporated into and made a part of the new judgment.
Hooks contends here that the contempt judgment is too vague, indefinite, and uncertain to be enforceable; therefore, it is void. When the history of this case is traced from its inception, it should be recognized that a sounder reason exists than that advanced by Hooks as to why he not be held in contempt. In effect, Hooks is being denied due process of law, in that, he is *169now confronted with a proceeding for contempt at a time after an agreement was reached between the parties.
The record shows that Hooks and Geraldine were divorced in 1946. The divorce decree awarded the custody of their two children, Margaret, born in 1944, and Dina Ray, born June 25, 1945, to Geraldine and ordered Hooks to make child support payments to the mother for the benefit of the two children. On March 31, 1961, Hooks having failed to comply with the Court’s order, and after a hearing, was found to be in contempt. Hooks was ordered to jail and remained there until he was released in accordance with the May 9th, 1961, agreement. At that time, the children were both under eighteen years of age. The trial court released Hooks from jail obviously for the reason that Hooks was not financially able to pay the delinquent payments. In lieu of ordering Hooks to jail until he purged himself of contempt by paying the sum then due, the court approved the agreement of the parties entered into on May 9, 1961. I cannot conceive of any District Judge being so inconsiderate of the welfare of the children as to release a father from custody knowing that he was financially in a position to pay the arrearage. To the contrary, I must presume that the judge realized on May 9, 1961, that Hooks was unable to pay $4,070.00 or any part thereof; otherwise the court would not have released Hooks from custody.
Geraldine, instead of pursuing a course of harassment which would lead to the ultimate incarceration of the father of her children, should have filed a suit in behalf of the children to collect the $4,070.00 delinquency. It is stipulated in this record that Hooks owes the sum of $4,070.00 and is now able to pay the same. While it is true that there is no evidence in the record as to Hooks’ financial status in May, 1961, I contend that he was discharged and released from confinement on May 9, 1961, because he had purged himself of contempt by agreeing to pay the sum of $4,070.00 in* the manner stated in the May 9, 1961, judgment or agreement. Therefore, Hooks has satisfactorily purged himself. The May 9, 1961, judgment merely evidences an agreement to pay $4,070.00.
I assume that Geraldine has maintained and supported the children during all of the time involved. The sums expended by her may have been more or may have been less than $4,070.00, but regardless of the amount of the claim she may have as a result of supporting the children, this Court should not at this late date allow Geraldine to use the courts in a contempt proceeding to collect the debt. Hooks has previously been confined. He has satisfied the demands of the court in the manner above indicated. The trial court, on September 12, 1966, retried Hooks for the same charge of contempt as the one for which he was tried in March, 1961. The trial court had no power or jurisdiction to proceed against Hooks and hold him in contempt merely because a judge, after a hearing, entered an order which recited that Hooks shall be “held in continuing contempt.” See Loy v. Loy, 32 Tenn.App. 470, 222 S.W.2d 873 (1949).
I would discharge the Relator, Hooks.