# FILED
October 10, 19 97 Cecil W. Crowson Appellate C ourt Cler k 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

PAULA REN

EE STEPHE

NS COONER, )

) Plaintiff /Appella nt, )

) Davidson C ircuit ) No. 83D -265 VS. ) ) Appeal N o. ) 01A01-9701- CV-00021 GARY KENT

COONER, ) ) Defendant/Appellee. )



## DISSEN TING OPIN ION

This appeal inv olves a conv icti on for criminal contempt arising from a dispute over the c ustody of an a dolescent c hild. After t

he Fourth C ircuit Cou

rt for Davidson County found the mother in willfu l crimina

l contempt for depri ving the fat her of the law ful custody o f the child , the moth er perf ected this appea l challengin g the adequacy of the notice of the c onte mpt procee ding and the evidentiar

y foundation

for the c ontempt pet

ition.
I.
Paula Renee St ephens a n d Gary K

ent Cooner

were di vorced in A

ugust 1983 in the Fourth

Circuit Court for Davidson County. Ms. Stephens receivedcustody of their 21⁄2- year-old

son, and Mr . Cooner

was gra nted visita

tio n and ord ered to pay child suppor

t. Ms. S tephens subs equentl y remar ried and over the next ten years returned to court on several occasions to obtain orders to require Mr. Cooner to honor his c hild support obligation.
For reasons not apparent in this record, the parties trans ferred physical possession

of their so n from Ms. S tephe ns to Mr. C ooner in N ovember 19 93. They informed the trial court of this development during a December 1993 hearing on Ms. Ste

phens’s pet

ition to hold

Mr. Coon er incontempt f or not paying child support. In a February 1, 1994 order, the trial court noted that-2- this present agreement

is made w ith the under standing thatthe partie s transfe

rred physic al possessio n of the minor child to the

Respond enton Novembe r 8, 1993, and will be f

iling an Or

der changi ng custody of the minor child and setting an amount of cur rent suppor

t for [sic] and after th at date. In the event the parties are not able to agree upon an amoun t of curr ent support, or p ayment by the Resp ondent on the se arre arages, th e parties will file a motion to have the matter s et f or further h earing on t

hese issues

. No order w as ever entered fo rmally changing cu stody from Ms. Step hens to Mr. Cooner.
Mr. Cooner fi led a motio n to set chil d support af ter the pa rt ies could not agree on the amou nt of chil d suppo rt Ms. Steph ens shou ld pay. T he trial c our t entere d an order on June 6, 19 94 directi ng Ms. Ste phens to begi n paying chil d support but offsetting Mr. Cooner’s arrearage against her obligation. In this order, the trial court spec ifically found that “ the child . . . is now in the custo dy of

Gary Kent Cooner.”
The parties’ son apparently grew unhappy about living with Mr. Cooner, and complaine d to Ms. St ephens that

M r. C ooner was absent from the home a greatdeal of the

time and th at he wa s bein g supervise d by Mr. Co oner’s liv e-in girlfriend. He also h ad other c omplaints a bout Mr. C ooner’s use

of drugs a nd poss essionof intimat

e picture s of himsel f and his gir lfriends. The chil d finall y told his mother during their scheduled visitation over the 1996 Labor Day holiday thathe wante d to move bac k in with he r. Eve n thoughMr. Cooner was appa rently out of town at

the time, Ms. Stephens a

ccompanie d her son to Mr. Coone r’s house a nd helped him

remove hi s clothing a

nd furnishin gs in his room . While in the house, the boy showed Ms. Stephens drug paraphernalia and intimate pictures that he had taken from Mr. Cooner’s room.
When he returned home, Mr. Coon er discove red that hi s son was gon e. He apparently telephoned

Ms. Ste phens and discovered that the boy was with her. When they met la

ter to disc uss the situation, Ms. Stephens informed Mr. Cooner of their son’s desire to mo ve bac k in with her, and Mr. Cooner replied that they shouldthink about

it for sev eral we eks. On September 6, 1996, Mr. Cooner filed apetition seeking to hold Ms. Stephens in civil and cri minal contempt a nd also-3-

obtained an ex parte temporary restraining order to prevent Ms. Step h ens from continuing to deprive

him of cust

ody of his son. While the record do es not show when she received notice of the temporary restraining order, Ms. Step hens returned the child a

nd all his poss essions to Mr . Cooner on Septem

ber 7, 1996

.
Ms. Stephens f

iled an ans wer to Mr . Coo ner’s petition fo r contempt admitt i ng that Mr. Cooner had custody of t he child but denying that she was i n contempt for assist ing her so n move out of Mr. Cooner’ s house. She als o requested that custody be changed from Mr. Cooner to her.
Th e record cont ains no i ndicatio n that the notice req uirements of Te nn . Crim. App. R. 42(b) wer

e ever satisfied or that Mr. Cooner was ever requiredto elect whether to proceed first wi th his crim inal conte mpt charge

or his civil contempt charge. The transcri pt of the October 31, 1996 hearing, likewise, contains no indication that the parties understood fro m th e outset the precise nature and purpose

of the heari ng. Acc ordingly, the only re asonable c onclusion to be drawn

from this record is that both the crimina l and the ci vil contemp t allegatio ns were before th e court sim ultaneously

. Very little evidence was actual ly taken duri ng the Oct ober 31, 19 96 hearing. Ms. Ste phens w as the only witness. She admitted that she had entered Mr. Cooner’s house with

her son and

that she had helped her son remove his clothes and other belo ngings. She also explained tha t she “didn’ t feel it was going to be aproblem” because s he believed that Mr. Cooner would honor their son’s desire to move “particularly given the incriminating things that were found there.” She also stated tha

t she retur

ned thechil d to Mr. C ooner whe n she received the temporary restraining order. The tria l court fou nd Ms. Ste

phens to be “in w illful criminal contempt of

the Orde rs of this C ourt” and sentenced herto one night i n jail. The trial court explained “her actions are absolutely shocking to this Court. Anybody that would

go into a ma

n’s houseand take hi s furnitur e out – I mean, it’s a wonder the y didn’t get charged criminall y. I cannot al low that.”

II.-4- The court bases its decision tovacate t he judgment

for crim inal conte mpt on the “cons titutional r

ight of due process.” The concept of due process is such an elastic t

erm that I am compe lled to point

out two spe cific shortcomin gs in these proceedin gs that req

uire reve rsal of the

judgment.
The first shor

tcoming is a substanti ve one. C riminal c ontempt pro ceedings are in tended to v indicate t he authorit

y of the cou

rts by punishi ng persons who willfully disobey law ful court orde rs. State ex re l. Ageev. Chapman, 922 S.W.2 d 516, 519 (Tenn . Ct. A

pp. 1995 ); Thigpen v. Thigpen, 874 S.W. 2d 51, 53 (T enn. Ct. App. 1993). In order to warrant a judgment of criminal contempt, the conduct must be specifically contrary to a court order, and the cond

uct must be willf ul or intentional

. This record contains no indication that an orderhad ever been entered specific ally directingMs. Step hens not to accompa ny her son

into Mr. Cooner’s house without his pre s ence or pe rmission. Accordi ngly, notw ithstanding h ow inappropri ate or unwise

Ms. Step hens’s con d uct might ha ve been, it cannot support a jud gment of c riminal c ontempt.
Ms. Stephens c ould concei vably have violated the trial court’s September 6, 1996 order directing her to return the pa rties’ son to Mr. C ooner and torefrai n from interfe ring with M

r. Coone r’s custod y rights. H owever, it is unlikely that this order cou ld have been t he b asis for a petition for contempt filed contempor aneously withthe order itself. Thus, the trial court’s criminalcontempt judgment cannot sta

nd if it wa s based on Ms . Stephe ns’ s violation of the Septe mber

6, 1996 orde

r. Ms. Stephens r

eceived nonotice tha

t she was bein g accused of violating the September 6, 1996 order, and of equal importance, Mr. Coonerfailed to prove beyond a reasona

ble doub t that Ms. Step hens did not comply with this order.
The second shor

tcoming is pr

ocedural. Civ i l and crim inal conte mpt proceedin gs should not be t ried simultaneously be cause of t he si gnif icant differences in the res pective bur dens o f proof an d procedural rights a ccorded to the person ac cused of c ontempt. P roceeding s for indir

ect crim inal con tem pt cannot be comme nced with ou t the notice required by Tenn. R. Crim. P. 42(b). Giving this notice at an early sta ge elimina

tes any possi

ble confusi on concerning the nature of

the proce eding and better enab les the all eged conte mne r t o invoke1 Tenn. R. App. P. 13(b)(3) permits this court to consider issues not presented for review in order to preve nt prejud ice to the judicial p

rocess.
2 Tenn. R. App. P. 36(

b) permit s this court to grant relief from final judgments for errors when an “erro r i nvolving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.” -5- his or her p roc edural rig hts. Jones v. Jones, App. No . 01A01-9 607-CV-0 0346, 1997 WL 8 0 029, at *3 ( Tenn. C t. App. Feb. 26, 1997) (NoTenn. R . App. P . 11 applicati on filed). Appe llate courts re view the s ubstance of contempt j udgments usin g th e “abuseof discreti on” stand ard of review. Hawk v. Hawk, 855 S.W. 2d 573, 583 (Tenn. 1993). We are not so deferential about adherence to procedural requirem ents because t

rial cour ts must comp ly strictly with the a

bsolute provisions of the law. Robinson v. Air Drauli cs Eng’g Co., 214 Tenn. 30, 37, 377 S .W.2d 908, 912 (19 64). Str

ict oversi ght of the pr

ocedure employed by tr

ia l c ourts is necessary to ensure that courts wield their broad contempt power i n accordance with the r

ule of law

and the re quirement s of proce dural fairness. Sanders v. Sanders

, App. No. 0 1A01-96 01-GS-0 0021, 1997 W L 15228, a

t *3 (Tenn. Ct. App. Ja n. 17. 1997 ) (No Tenn. R. App. P. 11 applicati on filed). The proc edure em

ployed by the trial

court in thi s casewas funda mentally flawedbecause of the lack of notice required by Tenn. R . Crim. P. 42(b) and because the trial co urt was appa rently att empting t o consid er Mr. C ooner ’s petitions for crim

inal conte mpt and for

civil contempt sim

ultaneo usly. Even though Ms. Step hens did not f rame the issue precisely in these te rms, we should take it up in orde

r to preve nt prejudic e to th e judicial process 1 and becaus e the procedural oversight i nvolved substa ntial right s and more

likely than

not affected the outcome

of the proc eeding. 2
The substantive

and proce dural fla

ws in th is contempt pr

oceeding c annot be remedi ed by v acating th e contempt judgment an d remandin g the case for retrial

. Thus, r ather tha

n taxing th e parties and the tri al court w ith additiona l, pointless proceedi ngs, I would r everse th e judgment

of contem

pt and rem and the case to the tria

l court wi th direction s to dismiss Mr. Coone r’s petit ion to hold Ms. Stephens i n contempt.-6- III.
The court has n ot dealt w ith the issue of whethe

r Ms. St ephens shou ld b e required to pay the legal expenses Mr. Coone r incurre d in pursuing his c ontempt petition. Tr ial courts may awa rd attorneys fees in proceeding s to enforc e child support decrees or in proce edings involvi ng the custod y or change

of custody of children. Tenn. C ode Ann. § 36-5-103( c) (1996) . Howe ver, this was not suc h a proceedin g. Criminal

contempt pr

oceedings, unlike civil contempt procee dings, are for the benefit of t

he court not

for the benef it of the pa

rties. State ex rel. Agee
v. Chapman, 922 S.W. 2d at 519. A ccordingly , in the a bsence of a statute or rule enabl ing prevailin g parties i n crimina l contempt proceedin gs to recov er their attorney’s fees, I

would hold th at the tri al court di d not have authority to orderMs. Stephens to pay Mr. Cooner for the legal expen ses he incurr ed to pursue

his criminal contempt petition.

_________________ _______________ WILLIAM C. KOCH, JR., JUDGE