# FILED

July 10, 1998 Cecil W. Crowson Appellate Cou rt 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/Appel

lant. )

)

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, T

ennessee 37388
RANDALL W. MORRISON 115 West Lincoln Street P. O. Box 467 Tullahoma, T

ennessee 37388 ATTORNEYS FOR PLAINTIFF/APPELLEE

ROGER J. BEAN MARK W. BELL Henry, McC

ord, Bean & Miller, P.L.L.C. 300 North Jackson Street P. O. Box 538 Tullahoma, T

ennessee 37388 ATTORNEYS FOR DEFENDANT/APPELLANT

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

App ellant Joseph Richard Thomasson, Jr. appeals a judgment of th e trial court h olding him to be in crim inal contempt f

or refusal to com

ply with courtordered visitatio

n relative to his two minor sons and his former wife, appellee Connie Le

wis Thomasson.

Because of failure to com

ply with the safeguards of R

ule 42(b) of

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

The parties, form erly husb an d and wife, are the parents of Joseph Richard Thomasson, now seventeen year

s of age, and

Mark Lewis

Thomasson, now fifteen years of age.

The parties were divorcedDecember 21, 1988 under a court approved Marital Dissolution Agreem ent whereby

c ustody of the minor children was vested in the appellee wit h respect to th

e scho ol year, with two weekends per month visitation of the children wit

h appellant. This arrangement was reversed in th e summer m

onths with appellant ha

ving physical cust

ody of the mi

nor children and appellee having vi sitation every o ther weekend. The exchange of the children was to take pla ce in Waverly , Tennessee, w hich is approxima

tely halfway between the hom e of the appellee in Cordova

, Tennessee, a

nd the ho me of the appellant in Tullahoma, Tennessee.

In Ma rch of 1 992, th e court entered an orde r grant ing cus tody of th e two minor children

to the appellant, Mr

s. Page, with ap

pelle e, Dr. Thomas son having the children during the summer. The court then returned custod

y 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. Thomas son refused to-3-

file a pet ition for change of custody , so Mrs. Page ult imately f iled a petition advising the court of the cust ody arrangem

ent inNovember of 1 995. One of the purposes of filing this petition was to set up specific visitation privileges for Mrs. Page.

In July of 1996 this pet ition came on fo

r he a ring and resulted in an agreed order ent

ered Jul y 17, 1996, conta ining in relevant par

t, the following provisions: 1. Custody of the minor children, JOSEPH RICHARD THOMASSON AND M ARK L EWI S THOMASSON, shall be vested join tly in the parties, wit

h the primary physical custody

being v ested in the Responden t, JOSEPH RICHARD THOMASS ON, JR. 2. During the vacation of the chil dren from schoo

l in the sum

mer, the children shall reside with the Petitioner, beginning the first

Sunday evening a

fter school is out. The Respo ndent

shall have visitat ion the weekend of Fath er's Da y in June and the first

two (2) weeks in

July. JOSEP

H will be returned to the Respondent in time fo r band camp and MARK will be returned the S unday prior to the commencement of Petitioner's in-service.

During the school year, the Petitioner shall have visitation w ith the minor chi ldren every othe

r weekend beginning the second weekend after Mark's r e turn to the Respondent

before the start of school. Visit ation will c ommenceon Friday afte

rnoon at 7:30 p.m . until 5:00 p.m. on Sunday (6:00 p.m. if

th e c hildren do not attend sc hool the followingMonday). All exchanges will cont inue to be made in Waverly,

both during the sch ool year and duri ng the summer as the parties have

previously do

ne . Allowances shall be made for football games at which Joseph play s in the bandeither by co mmen cing visitation for both children at 10:00 a.m. on S aturday mo rning or by bringin

g Joseph to Waverly on Sunday at the time of the exchan ge when mark is re tur ned so that Joseph may also visit with the Petitioner at that time. 3. The Petit ione r shal l have visi tatio n from t he time the chi ldren ar e out of school for Chr istmas vacatio

n until 6:00 p. m. on C hristmas Day . The [c]hildr en shall then be with the Respondent un

til they return to school. 4. The major holiday

s of Easter and T

hanksgiving shall continue to be alter

nated. The Petitioner sha ll have the children for visitation on Mothe r's Day wee

kend

. The holiday schedule will take prece d ence over the every other weekend visitation schedule. If aholiday weeken d deprives either party of a regularly scheduled we eken d, then that-4- personshall have v is itation with the chil dren the following weekend and every other weekend thereafter.

On December 31 , 1996, appellee file d her petition seeking

to hold the appellant in contempt for

refusing to honor the

visitation

schedule set out in the agreed order ente

red July 17, 1996.
Appellant answered the peti

tion for con

t empt by deny

ing the

a llegati ons thereof and on June 5, 1997 filed a counter-

petition seeking

mo dification

of the previous visitation schedule. In this counter-p etitio n appellant alleged:

1. Counter-Petitioneradopts the history of this causeas outlined and

described in the

Petition as filed he

rein. 2. Your

Counter-Petitioner would show that since the enterin g of the previous orders of this Court there has been a significant and subs tantial change

of circumstance

in that the pa rties ' mi no r sons to wit: Joseph Richard Thomasson

16 years of

age and Mark Lew

is Thomasson

14 years of age have e stabl ished themse lves i n the " Tulla homa area," [sic] have acq u ired numerous friends and social relationships, are currently involved in

school activities and otherwise and tha t it is not their desir e, nor is it in their manifest best interest, to be r equired to spend alm ost all of their school vacation tim

e du ring the summer

months in Memphis, Tennes see with their m other, Counter-R

espondent herein. Your Counter-Petitioner would show thathe in no way wishes nor desires to inter fere with the v isitation as previously

ordered by this c

ourt and does not disco urage visitation between the pa

rtie s' minor sons and CounterRespondent. In fact, your Counter-Pet itio ner would show that he encourages the parties' minor s ons to visit with the Counter-Respondent

but it is not their desire t

o spend almost all of their summer vac at ion with Counter-Respondent in Memphis, Tennessee. 3. Your

Counter-Petitione r would show t hat the parties' minor sons have a ttempted, over

the past se v eral months, to contact Co u nter-Respondent and express their desire to Counter-Responde nt of matters conce

rning visitat i on however, on more occasions than most, CounterRespondent

refuses to accept their telephone call s, 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 seve

ral months. 4. Your

Cou n ter-Petitioner w

ould show that it-5- would be in the int

er est of justice and in the manifest best interest of the parties' m

inor sons (and the par

ties' minor sons ar[e] both desirous) and Coun ter-Petitioner so

moves this Honorable

Court to allow said minor sons o f the parties to testify in the Court's chambers, or otherwise, to express their desires to the Court with abs ol utely no intention to offend either Counter-Petitione

r or Counter-Resp

on dent by e xpressing their desires towa rd visitation with Cou

nte r Respondent.

Both the pe titi on an d the c ount er-pe titi on came on for hearing before the trial court and re sulte d in an opin ion and decree of Jun e 20, 1997 whereby the trial courtheld appellant to be in civi l contempt of co

urt, ordered him confined to the C offee Co unty Jai l for a p eriod o f ten da ys, and t o pay a $50.00 fine with all but 48 ho

urs of the ten day sente

nce being suspended, and the appellant ordered to jail f

or a period of 48 hours , commen cing 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 contem pt 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 e le ven months that elapsed between the agreed order o f July17, 1996 and the hearing in June 1997, which resulted in the findin

g of civil contem

pt.
The assertion by

the appellant in his counte r-petition of June 5,

1997 that: "Your counter-pe

titioner would show

that hein no way wishes nor desires to interfere with the

visitation as previous

ly ordered by

this court and does not discourage

visitation between t

he parties'

minor sons and counter-re spondent," is an affront to the c

ourt and complet

ely without suppor

t in the record.

Far morerevealing

is the letter written by the appellant to the appellee

on October 4, 1996,

over two months after the entry of the agr

eed order. In this letter appellant attem

pts to obtain through condescension what he shoul d h av e obtained through judic

ial process. Say

s the appellant:

. . . . We have tried to work this out and you continue t o be difficult. This can not con tinue i n this ma nner. Th e boys need to be able to have

a real life. T

hey have sent

you their-6- schedules and you persist in saying that their p lans are unimportant. Mark is part of the band prog ram. You hav

e always known that he was in the ba nd. Why is it s o difficult for you to accept tha

t he is doing this?... Both boys would like a better visitation s

ituation. Every

other weekend is not going to work for th

em. They

have never agreed

with that. I realize that y

ou and I agreed to that schedule but the y did not and they do not wa

nt to be forced to cancel all of the ir activities just to s atisfy our agre ement. They both h ave s erious conflicts with every other weekend. They say

it is too far to go that often. They would muchprefer being

able to have

the freedom to

be able to call you up and plan visits to suit al l of your needs. You have the school schedule and the

y would like to

be able to tell about all of the other things the y are doing. You could all then sit down a[n]d plan visits that would be pleasant for all and they would not feel "for

ced" 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. T he same rules d

o not a pply to teenagers as they did wi th 10 and 12 year olds. I t would st and t o reason that the visit ation rules would als o have to change.... Can you re ally s ay that it is in the ir best interest to have to gi

ve all this up? Don't you want the bes t for your boys? Of course you do.... I d o realize that we

signed an agreem

ent for thes e every otherweekend

visits. Would y

ou be willing to change that agreemen t so tha t the bo ys will feel like they can have a life? They would pre

fer an agreem

ent tha t did not specify c ertain weekends . How wo

uld you fe

el about th

at? If th e agreement

merely stated "liberal visita tion". The summe r is also going to be

an issue. That will need

to be changed also. Josephhas already ex

pressed 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 m onths as stated in the agreeme nt. He wants to vi sit as he can arrange it. Mark of course wi

ll not be working but he too ha s e xpressed concerns about being away all summer. He is older now and does not want to miss all of his friend s. This is another are a in which you can not simply reverse what we did in the past. I realize that the boys did come

and stay here a

ll sum me r. They were younger and did not have activities a s they do now. P

lease realize that this has noth ing to d o with you or m e as their parents. They love us equ ally but we are no longer the center of their live s. This is a n ormal part of g rowing up. We would be very foolish t

o attempt to for

ce them away

from their friends and to conce

ntrate on us. This i s the time for us to take a back seat a

nd watch and be proud.

. . . .-7- The foregoing is but a part of the ev id ence heard by the trial court which led to the

June 20, 1997 judgment of the court finding Dr. Thomasson to be in willful civil c

ontempt of the a

greed order of the

courtentered on July 17 , 1996. As said by the trial court:

Itcan be gleaned from

this record by im

plic ation on the one hand and on

the other hand

by stateme

nt of the oldest son t hat their father a

llowed these childr

en to enroll in prog rams that heknew would interfere and in e

ffect prevent the implementation of his agreement wit h his former wi f e and with the Court. Mrs. Page has accurately stated "I have had to take whatI have been given and tried to make i

tgo," and as thanks for her ef

forts in trying to acco

mmodate these wonderful

young men she

is in effectcast by defenda nt Thomasson

a s the "bad guy" from the very, ver

y first weekend visitation which s he did not get. D efend ant Thoma sson calls Mrs. Page' s efforts to be agreeable "ongoing negotiations" between her and the children - the Court does not think so. She had t o take what she could

get, and as stated by one or maybe b oth o f the boys there were times when "we just could

not go." They were both wrong - they couldhave gone and shou ld have gone, and t he only impediment

to them going wa

s t heir f ather's failure

and refusal to insist that they do go to visit their mother.
Up to this point, the reco

rd in this case amply

supports the action of

the trial court in findin

g the appellant to be in

civil contempt.

The problem star

t s with the sentence imposed by the court. The judgment provid

es: Accordingly the

court finds that defendant Thom asson is in willful civil contempt of the agreed order entere d July 17, 1996 in that he has failed, neglected and willf ully refused to comply therewith when he

had the ability to do so, and the courth olds and finds beyond a reasona ble doubt

that defendant Thomasson is in c

ontempt of the

agreed order of July 17, 1996, and orders that he be incarce

rated in the Coffee County Jail for a period of ten (10) days and that appellant pay a fine of fifty dollar

s ($50.00) together with the cost s of this proceeding. A

ll but forty-eig

ht (48) hours of this contempt sentence will be suspendedand the defendant Thomasson

is ordered to repor

t to t he sheriff of Coffee County to begin serving the af

oresaid forty- eight

(48) hours consecutively

at 6:00 p.m. Friday June 27, 1997. (emphasi s-8- added)

If this is indeed a finding

of civil contem

pt it c ontain s 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 conte

mpt then the saf

eguards of the Tenn

. R. of Cr. P. 42 (b) must have be en accorded to the a

ppellant.

This court has held i

n a similar cont

ext: [2] The conte mp t of which the appellant was a ccused is clearly criminal contempt. Crim inal contempts are punitivein nature and the purp ose of crimina

l c onte mp t proceedings is to vindica te th e authority of th e law and the courtas an organ of society. Shiflet v. State , 217 Tenn. 690, 400 S.W.2d 542 (196 6). A c ivil contempt is one where a personrefuses to obey

a cou rt order and punishment is inflicted to compel obedie nce; when the party

has obeyed he or she will be dischar

ged. In effect t

he contemne

r "carri es the keys to t

he ja il 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).

Followingthe entry of

the J une 20, 1997 order, a ppellant filed his notice of appeal.

On Jun e 26, 19 97, without further hearing, the tria

l court filed its Supplemental O

pinion as follows: By ex p lanation of the Opinion and Decree entered he rein on June 20, 1997, the Court files this Supplemental Opinion t o clarify the holding contained in the original document: While there is a finding that the defendant Thom asson is in a willful civil contem pt of the Agreed Or

der of July 1996, in that he has failed, neglected and willfully ref

used to comply therewith when h e had the ability to do s o, it is deemed pertinent to point out a

t this p o int that holding the defendant in civil contemp

t to r equire h im to comply with something

which was tim

e related, conce

rning which the-9- time has already pa

st, is not appr opriate . 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 "will

ful disobedience or r

esistance of any officer of the said c ou rts, party, juror, witness, or any other person, to any lawful writ, process, or der, rule, decree, or c o mmand of said courts," (sic) T.C.A. 29-2-102(3). Criminal Co ntempt "is intended to prese

rve the power and vi

ndicate the dignity and authority of t he court, and the court as an organ of society." Black v. Blount, Supreme C ourt No. 02- S01-9604-CV-00044 (Tenn. 1996). (emphasis adde d)

The June 20, 1997 order unc onditio na lly incarcera

ting the appellant imposes a punishm

ent not available in a

civil contempt p

roceeding.

In the leading case of State ex rel. Ande rson v. Daugherty, 137 Tenn. 125, 191 S.W. 97

4 (Tenn. 1917), it

is said as to civil cont

empt proceedin

gs: To this class of contempt belong such an act as the refusal to pay alimony, as ordered . . . . If imprisonment be ordere d it is remedialand coercive in cha racter, having a

relation to the co mpe lling of the doing of som ething by the conte

mnor which when done will work his discharge. As

has been said, in such case the one impri soned "ca rries the keys t o his prisonin his own pocket . . . ." In Re Nevitt , 117 Fed. 451, 54 C.C.A. 622.

If the trial court at bar intended the contempt fi nding to be civil the unconditional sentence

of incarceration

must be vacate

d.

This f law in the

June 20, 1997 order is implicitly r ecognized by the Supp lemental Opinion entered June 26, 1997 specifical

ly finding that ci

vil contempt ". . . is not appropriate." In the Su pplemen tal Opinion the trial court relying on Black v. Blount , 938 S.W.2d 394 (Tenn. 1996) converts the fi nding of civil contem

pt into a finding of cr

iminal contem

pt.

As to criminal

contempt the Su

preme Court of

Tennessee has held :

. . . [T]here are two species of contem pt, direct and indir

ect, which differ, among other ways in the minim al procedure that will satisfy the requirements of due process in the case of each. Direct c

ontempt is based upon acts comm

itted in the-10- pr esence of the court, and m ay be punished sum

marily

. Indirectcontempt is base d upon a cts not committ ed in the pre sence of the court, and m ay be punished only

after th e offender has been given notice, and the opport unity t o respond to the charges at a hearing. State v. Maddux , 571 S.W.2d 819, 821 (Tenn. 1978).

Tenn essee Rule of Crimin al Procedure 42(a ) deals with direc

t contempt and Rule 42(b) deals with indirect contempt. Sin

ce the contempt

of the appellant atbar di d not occur in the presence of the court th e proceedings to im

pose indirectcriminal contempt must comply with Rule 42(b) which provides as follows: (b) Disposition upo n Notice and Hearing. -

- A crim ina l contempt excep

t as provided in subdivisi on (a) of this rule shall be prosecuted on notice. The notice shall state the time and place

of hearing, allow

ing a reasonable tim

e for th e preparation of the defense, and shall state the esse

ntia l facts cons tituting the criminal contem pt charged and descr

ibe itas such. The notic

e shall be given orall

y by the jud

ge in open courtin the presence of the defendant or, on application of the district attorne

y general or

of an attorney appoint

ed by the court for thatpurpos e, by an order to show cause or an order of arrest. The

defendant is entitle

d to admission to ba

il as provided in these rules. If the contempt charged involves disrespectto or criticism

of a judge, that j udge is disqualified from presiding at the hearing except with the defendant's consent

. Upon a verdict of f inding of guilt the cour

t shall enter an order fix

ing the punishment.

The petition for contem

pt filed b y the appellee and the procedure followed by the trial court cannot be reconciled with Rule 42(b) of the Tennessee Rules of CriminalProcedure. Fir st of all the petition i

tself never asser

ts that the appellee was seeking a crim inal contempt hol

ding against the appell

ant. The most that the petition asks

is incarceration b

utincarceration is c

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

acivil contempt finding but contains lan g uage finding the appel lant guilty "beyond a reasonable doubt" of contem pt 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-11-

was being charged with c riminal contem

ptcame with the supplemental opinion of the trial court on Ju

ne 26 , 1997, a week after all proceedings had been completed.
Adding to the confusion is certain of the language

used in the June 26, 1 997 order. After holding that t he civil contem

pt requiring the appe

llant to comply withsomething which was time related and concerning which the ti me had already passed was "not appropriate" the trial court went on to say "however, in addition

the court holds the def

endant in crimi

nal contempt

. . . ." (empha

sis added).

A finding that civil co ntempt ". . . is n ot app ropri ate" s eems incompatible w

ith the ". . . in a

ddition . . ." holdin

g of criminal c

ontempt.

In summar

y it may be said: 1. The conduct of the appell ant as disclosed by

th i s record is unacceptable. 2. If civil contempt w

as int e nded by the trial court, unconditional incarc

eration cannot be im

posed. 3. If criminal conte

mpt was intende

d by the trial cou

rt the proceedings below were in vi ola tion of the requirem

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

The appellant furt her assert s that the trial cour t erred in denyi

ng the appellant's counter-petition to m odify the exi sting visitation schedul e to
ac commodate

the realities of th

e lives of the parties' sons. In thi s counter

petition the appellant had ask

ed the trial court to

allow the sons of the parties to express their

desires regarding v

isitation and to ". .. . modify the previous orders

as entered h erein as concerns visitati on between the part

ies' minor sons a

nd counter-responden t as the court deems equit able under the circumstan ces."

Since the case must be

reversed and rem

anded on the contem

pt finding, the trial court should

be free to address

again the meri

ts of the counter-petitio

n 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 chil d's interest in a sit uation-12-

which strongly sugg est s ulterior motiv es, but also by in

dividuals who would enter an agreed

order re gar ding the visitation and c ustody of ma

ture minor children without

considering the childr

en's best interest

and without consulting the children themselves. The part of the order

denying the counte

r-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'sfees to the appellee is vacated, subject to further consideration by the trial court on re mand.

The case is reversed a

nd remande d to the trial court for further proceedings not inconsi stent with this opinion.
Acting in it s discretion the cour t taxes all costs of a

ppeal against the appellant, Dr. Joseph Richard Thom asson.

_____________________________ WILLIAM B. CAIN, JUDGE

CONCUR:

_________________________________ HENRY F. TODD, PRESIDING JUDGE

_________________________________ WILLIAM C. KOCH, JR., JUDGE