FILED

July 10, 1998

Cecil W. Crowson

Appellate Court Clerk

CONNIE LEWIS THOMASSON )

(PAGE), )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9706-CV-00273

v. )

) Coffee Circuit

JOSEPH RICHARD THOMASSON, ) No. 22,238

)

Defendant/Appellant. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CIRCUIT COURT FOR COFFEE COUNTY

AT MANCHESTER, TENNESSEE

THE HONORABLE GERALD L. EWELL, SR., JUDGE

W. DAVID KELLEY

Haynes, Hull, Rieder, & Ewell, P.A.

214 North Atlantic Street

Tullahoma, Tennessee 37388

RANDALL W. MORRISON

115 West Lincoln Street

P. O. Box 467

Tullahoma, Tennessee 37388

ATTORNEYS FOR PLAINTIFF/APPELLEE

ROGER J. BEAN

MARK W. BELL

Henry, McCord, Bean &

 Miller, P.L.L.C.

300 North Jackson Street

P. O. Box 538

Tullahoma, Tennessee 37388

ATTORNEYS FOR DEFENDANT/APPELLANT

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE
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OPINION

Appellant Joseph Richard Thomasson, Jr. appeals a judgment of the

trial court holding him to be in criminal contempt for refusal to comply with

court ordered visitation relative to his two minor sons and his former wife,

appellee Connie Lewis Thomasson.

Because of failure to comply with the safeguards of Rule 42(b) of the

Tennessee Rules of Criminal Procedure, the judgment of the trial court must be

reversed.

The parties, formerly husband and wife, are the parents of Joseph

Richard Thomasson, now seventeen years of age, and Mark Lewis Thomasson,

now fifteen years of age.

The parties were divorced December 21, 1988 under a court approved

Marital Dissolution Agreement whereby custody of the minor children was

vested in the appellee with respect to the school year, with two weekends per

month visitation of the children with appellant. This arrangement was reversed

in the summer months with appellant having physical custody of the minor

children and appellee having visitation every other weekend. The exchange of

the children was to take place in Waverly, Tennessee, which is approximately

halfway between the home of the appellee in Cordova, Tennessee, and the home

of the appellant in Tullahoma, Tennessee.

In March of 1992, the court entered an order granting custody of the

two minor children to the appellant, Mrs. Page, with appellee, Dr. Thomasson

having the children during the summer. The court then returned custody to Mrs.

Page on January 1, 1993. 

For the summer of 1995 the children came to stay with their father for

summer visitation and Mrs. Page agreed to allow the children to remain with Dr.

Thomasson when school started in the fall of 1995. Dr. Thomasson refused to
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file a petition for change of custody, so Mrs. Page ultimately filed a petition

advising the court of the custody arrangement in November of 1995. One of the

purposes of filing this petition was to set up specific visitation privileges for Mrs.

Page.

In July of 1996 this petition came on for hearing and resulted in an

agreed order entered July 17, 1996, containing in relevant part, the following

provisions: 

1. Custody of the minor children, JOSEPH

RICHARD THOMASSON AND MARK LEWIS

THOMASSON, shall be vested jointly in the parties, with the

primary physical custody being vested in the Respondent,

JOSEPH RICHARD THOMASSON, JR.

2. During the vacation of the children from school

in the summer, the children shall reside with the Petitioner,

beginning the first Sunday evening after school is out. The

Respondent shall have visitation the weekend of Father's Day

in June and the first two (2) weeks in July. JOSEPH will be

returned to the Respondent in time for band camp and

MARK will be returned the Sunday prior to the

commencement of Petitioner's in-service.

During the school year, the Petitioner shall have

visitation with the minor children every other weekend

beginning the second weekend after Mark's return to the

Respondent before the start of school. Visitation will commence on Friday afternoon at 7:30 p.m. until 5:00 p.m. on

Sunday (6:00 p.m. if the children do not attend school the

following Monday). All exchanges will continue to be made

in Waverly, both during the school year and during the

summer as the parties have previously done. Allowances

shall be made for football games at which Joseph plays in the

band either by commencing visitation for both children at

10:00 a.m. on Saturday morning or by bringing Joseph to

Waverly on Sunday at the time of the exchange when mark

is returned so that Joseph may also visit with the Petitioner

at that time.

3. The Petitioner shall have visitation from the time

the children are out of school for Christmas vacation until

6:00 p.m. on Christmas Day. The [c]hildren shall then be

with the Respondent until they return to school.

4. The major holidays of Easter and Thanksgiving

shall continue to be alternated. The Petitioner shall have the

children for visitation on Mother's Day weekend. The

holiday schedule will take precedence over the every other

weekend visitation schedule. If a holiday weekend deprives

either party of a regularly scheduled weekend, then that
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person shall have visitation with the children the following

weekend and every other weekend thereafter.

On December 31, 1996, appellee filed her petition seeking to hold the

appellant in contempt for refusing to honor the visitation schedule set out in the

agreed order entered July 17, 1996.

Appellant answered the petition for contempt by denying the

allegations thereof and on June 5, 1997 filed a counter-petition seeking

modification of the previous visitation schedule. In this counter-petition

appellant alleged:

1. Counter-Petitioner adopts the history of this

cause as outlined and described in the Petition as filed herein.

2. Your Counter-Petitioner would show that since

the entering of the previous orders of this Court there has

been a significant and substantial change of circumstance in

that the parties' minor sons to wit: Joseph Richard

Thomasson 16 years of age and Mark Lewis Thomasson 14

years of age have established themselves in the "Tullahoma

area," [sic] have acquired numerous friends and social

relationships, are currently involved in school activities and

otherwise and that it is not their desire, nor is it in their

manifest best interest, to be required to spend almost all of

their school vacation time during the summer months in

Memphis,Tennessee with their mother, Counter-Respondent

herein.

Your Counter-Petitioner would show that he in no way

wishes nor desires to interfere with the visitation as

previously ordered by this court and does not discourage

visitation between the parties' minor sons and CounterRespondent. In fact, your Counter-Petitioner would show

that he encourages the parties' minor sons to visit with the

Counter-Respondent but it is not their desire to spend almost

all of their summer vacation with Counter-Respondent in

Memphis, Tennessee.

3. Your Counter-Petitioner would show that the

parties' minor sons have attempted, over the past several

months, to contact Counter-Respondent and express their

desire to Counter-Respondent of matters concerning

visitation however, on more occasions than most, CounterRespondent refuses to accept their telephone calls, facsimiles

or e-mails. In fact, your Counter-Petitioner would show that

the Counter-Respondent has had very little contact with the

parties' minor sons over the past several months.

4. Your Counter-Petitioner would show that it
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would be in the interest of justice and in the manifest best

interest of the parties' minor sons (and the parties' minor sons

ar[e] both desirous) and Counter-Petitioner so moves this

Honorable Court to allow said minor sons of the parties to

testify in the Court's chambers, or otherwise, to express their

desires to the Court with absolutely no intention to offend

either Counter-Petitioner or Counter-Respondent by

expressing their desires toward visitation with CounterRespondent.

Both the petition and the counter-petition came on for hearing before

the trial court and resulted in an opinion and decree of June 20, 1997 whereby

the trial court held appellant to be in civil contempt of court, ordered him

confined to the Coffee County Jail for a period of ten days, and to pay a $50.00

fine with all but 48 hours of the ten day sentence being suspended, and the

appellant ordered to jail for a period of 48 hours, commencing June 27, 1997.

Appellant was also ordered to pay attorney's fees to counsel for the appellee.

Reviewing the record leading up to the civil contempt finding of June

20, 1997, it is not difficult to understand why the learned trial judge took a dim

view of the conduct of the appellant during the eleven months that elapsed

between the agreed order of July 17, 1996 and the hearing in June 1997, which

resulted in the finding of civil contempt.

The assertion by the appellant in his counter-petition of June 5, 1997

that: "Your counter-petitioner would show that he in no way wishes nor desires

to interfere with the visitation as previously ordered by this court and does not

discourage visitation between the parties' minor sons and counter-respondent,"

is an affront to the court and completely without support in the record.

Far more revealing is the letter written by the appellant to the appellee

on October 4, 1996, over two months after the entry of the agreed order. In this

letter appellant attempts to obtain through condescension what he should have

obtained through judicial process. Says the appellant:

. . . . We have tried to work this out and you continue to be

difficult. This can not continue in this manner. The boys

need to be able to have a real life. They have sent you their
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schedules and you persist in saying that their plans are

unimportant. Mark is part of the band program. You have

always known that he was in the band. Why is it so difficult

for you to accept that he is doing this?... Both boys would

like a better visitation situation. Every other weekend is not

going to work for them. They have never agreed with that.

I realize that you and I agreed to that schedule but they did

not and they do not want to be forced to cancel all of their

activities just to satisfy our agreement.

They both have serious conflicts with every other

weekend. They say it is too far to go that often. They would

much prefer being able to have the freedom to be able to call

you up and plan visits to suit all of your needs. You have the

school schedule and they would like to be able to tell about

all of the other things they are doing. You could all then sit

down a[n]d plan visits that would be pleasant for all and they

would not feel "forced" to visit you.

Flexibility should be applied to visits.... Let's face it,

the boys are no longer children. They live a different life

than they did two or three years ago. The same rules do not

apply to teenagers as they did with 10 and 12 year olds. It

would stand to reason that the visitation rules would also

have to change.... Can you really say that it is in their best

interest to have to give all this up? Don't you want the best

for your boys? Of course you do....

I do realize that we signed an agreement for these

every other weekend visits. Would you be willing to change

that agreement so that the boys will feel like they can have a

life? They would prefer an agreement that did not specify

certain weekends. How would you feel about that? If the

agreement merely stated "liberal visitation". The summer is

also going to be an issue. That will need to be changed also.

Joseph has already expressed his intent to work this summer.

I know you are aware of this as well. He will not be able to

live with you the summer months as stated in the agreement.

He wants to visit as he can arrange it. Mark of course will

not be working but he too has expressed concerns about

being away all summer. He is older now and does not want

to miss all of his friends. This is another area in which you

can not simply reverse what we did in the past. I realize that

the boys did come and stay here all summer. They were

younger and did not have activities as they do now. Please

realize that this has nothing to do with you or me as their

parents. They love us equally but we are no longer the center

of their lives. This is a normal part of growing up. We

would be very foolish to attempt to force them away from

their friends and to concentrate on us. This is the time for us

to take a back seat and watch and be proud.

. . . .
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The foregoing is but a part of the evidence heard by the trial court

which led to the June 20, 1997 judgment of the court finding Dr. Thomasson to

be in willful civil contempt of the agreed order of the court entered on July 17,

1996. As said by the trial court:

It can be gleaned from this record by implication on

the one hand and on the other hand by statement of the oldest

son that their father allowed these children to enroll in

programs that he knew would interfere and in effect prevent

the implementation of his agreement with his former wife

and with the Court. Mrs. Page has accurately stated "I have

had to take what I have been given and tried to make it go,"

and as thanks for her efforts in trying to accommodate these

wonderful young men she is in effect cast by defendant

Thomasson as the "bad guy" from the very, very first

weekend visitation which she did not get. Defendant

Thomasson calls Mrs. Page's efforts to be agreeable "ongoing negotiations" between her and the children - the Court

does not think so. She had to take what she could get, and as

stated by one or maybe both of the boys there were times

when "we just could not go." They were both wrong - they

could have gone and should have gone, and the only

impediment to them going was their father's failure and

refusal to insist that they do go to visit their mother.

Up to this point, the record in this case amply supports the action of the

trial court in finding the appellant to be in civil contempt.

The problem starts with the sentence imposed by the court. The

judgment provides:

Accordingly the court finds that defendant Thomasson is in

willful civil contempt of the agreed order entered July 17,

1996 in that he has failed, neglected and willfully refused to

comply therewith when he had the ability to do so, and the

court holds and finds beyond a reasonable doubt that

defendant Thomasson is in contempt of the agreed order of

July 17, 1996, and orders that he be incarcerated in the

Coffee County Jail for a period of ten (10) days and that

appellant pay a fine of fifty dollars ($50.00) together with the

costs of this proceeding. All but forty-eight (48) hours of

this contempt sentence will be suspended and the defendant

Thomasson is ordered to report to the sheriff of Coffee

County to begin serving the aforesaid forty-eight (48) hours

consecutively at 6:00 p.m. Friday June 27, 1997. (emphasis
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added)

If this is indeed a finding of civil contempt it contains no provision

whereby the appellant may purge his contempt by compliance with the order.

If the order finding the defendant in contempt ". . . beyond a reasonable

doubt . . ." is intended to be criminal contempt then the safeguards of the Tenn.

R. of Cr. P. 42(b) must have been accorded to the appellant.

 

This court has held in a similar context:

[2] The contempt ofwhich the appellantwas accused

is clearly criminal contempt. Criminal contempts are

punitive in nature and the purpose of criminal contempt

proceedings is to vindicate the authority of the law and the

court as an organ of society. Shiflet v. State, 217 Tenn. 690,

400 S.W.2d 542 (1966). A civil contempt is one where a

person refuses to obey a court order and punishment is

inflicted to compel obedience; when the party has obeyed he

or she will be discharged. In effect the contemner "carries

the keys to the jail in his or her own pocket." Shillitani v.

United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622

(1966). 

Crabtree v. Crabtree, 716 S.W.2d 923, 925 (Tenn. App. 1986).

Following the entry of the June 20, 1997 order, appellant filed his

notice of appeal.

On June 26, 1997, without further hearing, the trial court filed its

Supplemental Opinion as follows:

By explanation of the Opinion and Decree entered

herein on June 20, 1997, the Court files this Supplemental

Opinion to clarify the holding contained in the original

document: 

While there is a finding that the defendant Thomasson

is in a willful civil contempt of the Agreed Order of July

1996, in that he has failed, neglected and willfully refused to

comply therewith when he had the ability to do so, it is

deemed pertinent to point out at this point that holding the

defendant in civil contempt to require him to comply with

something which was time related, concerning which the
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time has already past, is not appropriate. However, in

addition the Court holds the defendant in criminal contempt

by said Opinion and Decree pursuant to Rule 42(b) Tenn. R.

Crim. P. for the "willful disobedience or resistance of any

officer of the said courts, party, juror, witness, or any other

person, to any lawful writ, process, order, rule, decree, or

command of said courts," (sic) T.C.A. 29-2-102(3). Criminal

Contempt "is intended to preserve the power and vindicate

the dignity and authority of the court, and the court as an

organ of society." Black v. Blount, Supreme Court No. 02-

S01-9604-CV-00044 (Tenn. 1996). (emphasis added)

The June 20, 1997 order unconditionally incarcerating the appellant

imposes a punishment not available in a civil contempt proceeding.

In the leading case of State ex rel. Anderson v. Daugherty, 137 Tenn.

125, 191 S.W. 974 (Tenn. 1917), it is said as to civil contempt proceedings:

To this class of contempt belong such an act as the refusal to

pay alimony, as ordered . . . . If imprisonment be ordered it

is remedial and coercive in character, having a relation to the

compelling of the doing of something by the contemnor

which when done will work his discharge. As has been said,

in such case the one imprisoned "carries the keys to his

prison in his own pocket . . . ." In Re Nevitt, 117 Fed. 451, 54

C.C.A. 622. 

If the trial court at bar intended the contempt finding to be civil the

unconditional sentence of incarceration must be vacated.

This flaw in the June 20, 1997 order is implicitly recognized by the

Supplemental Opinion entered June 26, 1997 specifically finding that civil

contempt ". . . is not appropriate." In the Supplemental Opinion the trial court

relying on Black v. Blount, 938 S.W.2d 394 (Tenn. 1996) converts the finding

of civil contempt into a finding of criminal contempt.

As to criminal contempt the Supreme Court of Tennessee has held:

. . . [T]here are two species of contempt, direct and indirect,

which differ, among other ways in the minimal procedure

that will satisfy the requirements of due process in the case

of each. Direct contempt is based upon acts committed in the
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presence of the court, and may be punished summarily.

Indirect contempt is based upon acts not committed in the

presence of the court, and may be punished only after the

offender has been given notice, and the opportunity to

respond to the charges at a hearing.

State v. Maddux, 571 S.W.2d 819, 821 (Tenn. 1978).

TennesseeRule ofCriminal Procedure 42(a) deals with direct contempt

and Rule 42(b) deals with indirect contempt. Since the contempt of the appellant

at bar did not occur in the presence of the court the proceedings to impose

indirect criminal contempt must comply with Rule 42(b) which provides as

follows:

(b) Disposition upon Notice and Hearing. -- A

criminal contempt except as provided in subdivision (a) of

this rule shall be prosecuted on notice. The notice shall state

the time and place of hearing, allowing a reasonable time for

the preparation of the defense, and shall state the essential

facts constitutingthe criminal contempt charged and describe

it as such. The notice shall be given orally by the judge in

open court in the presence of the defendant or, on application

of the district attorney general or of an attorney appointed by

the court for that purpose, by an order to show cause or an

order of arrest. The defendant is entitled to admission to bail

as provided in these rules. If the contempt charged involves

disrespect to or criticism of a judge, that judge is disqualified

from presiding at the hearing except with the defendant's

consent. Upon a verdict of finding of guilt the court shall

enter an order fixing the punishment.

The petition for contempt filed by the appellee and the procedure

followed by the trial court cannot be reconciled with Rule 42(b) of the Tennessee

Rules of Criminal Procedure. First of all the petition itself never asserts that the

appellee was seeking a criminal contempt holding against the appellant. The

most that the petition asks is incarceration but incarceration is compatible with

either civil or indirect criminal contempt. The order of June 20, 1997 designates

a civil contempt finding but contains language finding the appellant guilty

"beyond a reasonable doubt" of contempt and imposing an unconditional

sentence of incarceration that is only consistent with criminal contempt. As far

as the record before this court discloses, the first notice the appellant had that he
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was being charged with criminal contempt came with the supplemental opinion

of the trial court on June 26, 1997, a week after all proceedings had been

completed.

Adding to the confusion is certain of the language used in the June 26,

1997 order. After holding that the civil contempt requiring the appellant to

comply with something which was time related and concerning which the time

had already passed was "not appropriate" the trial court went on to say "however,

in addition the court holds the defendant in criminal contempt . . . ." (emphasis

added).

A finding that civil contempt ". . . is not appropriate" seems

incompatible with the ". . . in addition . . ." holding of criminal contempt.

In summary it may be said:

1. The conduct of the appellant as disclosed by this

record is unacceptable.

2. If civil contempt was intended by the trial court,

unconditional incarceration cannot be imposed.

3. If criminal contempt was intended by the trial court the

proceedings below were in violation of the requirements of

rule 42(b) of the Tennessee Rules of Criminal Procedure.

The appellant further asserts that the trial court erred in denying the

appellant's counter-petition to modify the existing visitation schedule to

accommodate the realities of the lives of the parties' sons. In this counterpetition the appellant had asked the trial court to allow the sons of the parties to

express their desires regarding visitation and to ". . . . modify the previous orders

as entered herein as concerns visitation between the parties' minor sons and

counter-respondent as the court deems equitable under the circumstances."

Since the case must be reversed and remanded on the contempt finding,

the trial court should be free to address again the merits of the counter-petition

in such manner as the trial court deems proper. Indeed, this court is saddened not

only by a Father who would claim to advocate a child's interest in a situation
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which strongly suggests ulterior motives, but also by individuals who would

enter an agreed order regarding the visitation and custody of mature minor

children without considering the children's best interest and without consulting

the children themselves. The part of the order denying the counter-petition will

be vacated and the case remanded also as to the counter-petition.

The trial court in the case awarded attorney's fees to the appellee. In

view of the reversal of the contempt findings which this court feels is compelled

by law, the award of attorney's fees to the appellee is vacated, subject to further

consideration by the trial court on remand.

The case is reversed and remanded to the trial court for further

proceedings not inconsistent with this opinion.

Acting in its discretion the court taxes all costs of appeal against the

appellant, Dr. Joseph Richard Thomasson.

_____________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_________________________________

HENRY F. TODD, PRESIDING JUDGE

_________________________________

WILLIAM C. KOCH, JR., JUDGE