# FILED
March 12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk SARA EVELYN EVANS YOU NG, ) ) Petitioner/Appe llant, ) ) Appeal No. ) 01-A-01-9609- CV-00415 VS. ) ) Davidson Circuit ) No. 90D-936 BOBBY HUGH YOUNG, ) ) Respondent/Appell ee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEALE D FRO M THE C IRCU IT COU RT OF D AVIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE MURIEL RO BINSON, JU DGE

IRW IN VENICK DOBBINS & VENICK 2100 West End Avenue, Suite 850 Nashvil le, Tennessee 37203 Attorney for Plaintiff/Appellant JACK NORMAN, JR. 213 Third Avenu e, North Nashvil le, Tennessee 37201 Attorney for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE
CONCUR: TODD, P.J., M .S. KOCH, J.- 2 - 

## O P I N I O N

The Circuit Court o f Davi dson Cou nty refu sed to h old Bob by Hugh Young in civil contempt for failing to perform ce rtain p a rt s o f a d i v o r c e d e c r e e . We must decide if the dismissal of a civil contempt petitio n is appealable, and if so, did the trial judge err in refusing to find the respon dent in contempt. W e hold that the refusal to impose civ il contempt sanc tions is appeal able, but we affirm th e trial judge’s decision not to hold Mr. Young in civ il contempt.

I.

AJanuary 10, 1992 divorce decree awarded Sar a Evely n Evans Young a divorce from Bobby Hug h Young and or dered Mr. Young to pay to her $200,000 in four annual i nstallments, as well as monthly ali mony payments , one-half of the proceedsfrom the sale of a p iece of equipment f ormerlyus ed in Mr. Young’s business, and $35,00 0 in attorney’s fees. For the sake of clarity , we w ill 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 he r.

Mrs. Young subs equently filed a series of petitions pra

ying that Mr. Young be held in ci vil and c riminal cont empt for violating the cited provis ions of the final decree. At

a hearing i n 1994, the trial judge req uired Mrs . Young to elect whet her she was proceeding on ci vil or criminal c harges. M rs. Youngchose to proce ed on the bas is of civil contempt, and she di smissed the cr iminal contempt c harges. After a further hearing, t he trial ju dge found that M r. Yo ung was not in civ il contempt, and Mrs. Youn g made her first appeal to this court.1 W e are aware thatsome courts have al so div ided ci vil contempt i nto t wo s ub -cl asses: com pensa tory and coercive . I n Latr obe Steel

Co. v. United Steelworkers , 545 F.2d 13 36 (3d C ir. 1976), the Co ur t de sc rib ed the m this wa y:

[C]om pensa toryacti ons are essent ial ly backward l ooking, see king t o com pen sate the complai nant t hrough the pay ment of money for damages caused by past acts ofdisobe dience. Coerci ve sanct ions, in co ntra st, lookto the future and are designed to aid th e plain tiff by bring ing a d efian t party into c om plianc e with the court orderor by

assuri ng that a p oten tially contum acio us p arty adheres t o an i njunct ion by sett ing forth in a dvance the penalt ies the cour

t wi ll impose i

f t he part y deviat es fr om the path of ob edie nce . . . (em phasis add ed).

[T]he court m ay levy

a fine of a specified am ount for past refusal to conform

- 3 - We found that the trial cour t erred in requi ring Mr

s. Young to dismiss her criminal contempt charge i n order to be per mitted to proceed on civil contempt, and
we remanded the case on the bas is that the ju dgment was not a final one, because the criminal contempt charge h ad been dismissedin error, and was therefore still before the trial court. On remand, Mr s. Young ag ain dismissedher praye r for criminal contempt, and the case is now before us on the trial court’s refusal to find Mr. Young in civi l contempt.

II.

Is the Trial Court’s Decision A ppealable?

Without distingui shing between ci vil and c riminal cont empt, our courts have often said that an acquittal i n a contem pt proc eeding cannot beappealed. Graham v. William

son , 128 Tenn. 720, 164 S.W. 781 (1913); Gunter v. Seaboard Copper Minin g Co

. , 142 Tenn. 14, 215 S.W. 273 (1919); Archer v. Ar cher , 907 S.W.2d 412 (Tenn. App. 199 5); Plumbv. Plu mb , 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 i n somefundament al ways. If the sanction is designed to coerce the contemn orin to performing t he court’s or ders, it is

considered c ivil; if, on the other hand, the sanction is imposed to pun ish the contemnor fo r past acts, it is criminal. Storey v. Sto rey

, 835 S.W.2d 593 (Tenn. App. 1992). The civ il contempt sanc tion maybe discharg ed by compli ance with the cour t’s or der; ther efo re, a s we ha ve often said, the contemnor

“holds the keys to the j ail in his own pocket. ” 1to the injunc tion, condit ioned, however, o n the def endant’ s conti nued fai lur e to obey

. The court may also spe cif y t hat a di sobedien t part y wi ll be fi ned a cert ain amount f or each day o f non-compli ance. I ndeed, the methods thatmay be employed t o coerce a recal cit rant part y i nto compli ance wit h an i njunct ion ar e many and vari ed. 545 F.2d at1344. W e kn ow of n o T en ne ss ee ca se s r ec og nizin g c om pe ns ato ry c ivil c on tem pt - - pr ob ab ly because of the fifty dollar lim it place d on fines for c onte m pt by T enn . Co de A nn. § 29-9 -103
. In addi ti on, a f ine lev ied aft er t he contemnor defie s a th reat im pos ed to dete r futur e co ndu ct, seems to us to hav e all the att ri butes of a cr iminal sancti on. I t i s imposed for p unishment and t he contemn or no l onger can dischar ge it

by compli ance. - 4 - If the court int ends to punish thecontemnor (criminal contempt) then all the safeguards accorded crimina l defendants come into play. Strunk v. Lewis Coal Co. , 547 S.W .2d 252 (Tenn. Crim. App . 1976). One of the saf eguards is compliance with Ru le 42, Tenn. R. Cr im. Proc. Storey v. Stor ey , 835 S.W.2d 539 (Tenn. App. 1992). And the statecannot appeal an acquittal i n a criminal proceeding. In Gunter
v. Seaboard Copper Mining Co. , our Supre me Court appli ed the reasoningof 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 som e jurisdict ions where the fine imposed inures to the benefit of the party injur ed. It f ollows, therefore, as a matte r of course, that no appeal w ill lie, where th e d efendant has been exculpa ted, any more so than in a cas e where a defendant has be en found not guilt y on a charge of assault a n d b a t t e ry . We think this view of the matter has been generally

accepted by the profession; for, while our reportsare full of cases where defe ndants, found guilty of contempt, have appealed, we have been unable to find a case in this State in which an appeal wa s sought where the defendant was acquitted in t he lower court. 142 Tenn. at 18, 215 S.W. at 274.

We find the reference to an acquittal in an assault and batt ery case inst ruct ive and we note t hat the charg e in Gunter was a past

violati on of an injunction. On the other hand, con d itional punis hment, punishment w hich may be av oided by future compliance w ith the court’ s orders ( civil contempt ), doe s not carry with it the safeguardsthat attach to c riminal pro secutions. Davenport v. Jailer, City of Memphis , 572 S.W.2d 265 (Tenn. App. 1978). Such a sanctio n is imposed i n a civi l proceeding- 5 -

and should be governed by Rule 3(a) of the Tenn . R. App. Proc.: “I n civil acti ons every final judgment ent ered by a tr ial court . . . is appeal able as of rig ht.”

This result is

in accord w ith the majori ty rule i n other states. See 24 A.L.R. 3rd 650, Appealability of Acquittal from or Dismis sal of Chargeof Contempt of Court

. W e a re convin ced, therefore, that a dismissal of a petition for ci vil cont empt may be appealed.

III.

Is the Court’s Refusal to Impose Sanctions for Civ il Contempt Reversible?

Ms. Young argues that the proof establishe s Mr. Young’s contemp t in the following particulars:

1. His refusal to make the monthly ali mony payments on the first day

of the month. 2. His refusa l to ma ke rea sonable efforts to sel l the used equipment. 3. His r efusal to make pay ments on the $200,0 0 0 judgment and the award of at torney fees.

W ith respect to the timely alimony pay ments, the court stated that the final decr ee did not require M r. Young to make the payments on the first day of the month. The final decree di d, however, contain the following requirement with respect to the monthly al imony

payments: “The payments shal l be due the first day ofevery month.” We think the trial j udge simply overlooked that provi sion.

With respect to the sale of the us ed equipment, the trial j udge found that Mr. Young coul d not be held in contemptbecause he was not specifically ordered in the final decree to sell the equipme nt. W e find that the trial judge was correct in that findin g.2 W e do no t thin k t he ten da ys in jail a nd /or fifty d olla r fin e p ro vid ed in Tenn. Code Ann. § 29- 9- 103 appl ies t o the ci vil contempt i nvol ved i n thi s case. - 6 - With respect to the monetary payments orde red in the final decr ee, the trial court stated fr

om the bench, “I am conv inced that Mr. Young does not arrange his lifewhere 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 ev idence presented by Mr. Young sustains his allegation of financial ina bili ty to comply w ith the terms of thedecree as to t he $200,000 installment payment schedul e on the marital judgment.” The inability to complywith a court’s order is a defense to punishment for c ivil contempt. Gossett v. Gossett , 34 Tenn. App. 65 4, 241 S.W .2d 934 (1951).
But, let us ass ume th at the t rial judge was w rong in dealingwith the facts and that Mr. Young was clearly in contempt. Since we a re only dealing with civil contempt, the options all owed by our code are severely limited. Tenn. C ode Ann. § 29-9-104 says that “If the conte mpt consists in an omission to pe rform an act which itis yet in t he power of th e pers on to pe rform, he may be impr isoneduntil he per forms 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 no t think the c ourt could or should impose such drastic conditional puni shment.

With respect to the

failure tomake the monetary payments, the court is entirelycorrect if Mr. Youngis not prese ntly able to make the payments. As suming thathe is able, we still think it woul d be within the court’s d iscretion to decide whether he should be impri soned for an indefinit e period of time. Instead, the cou rt award ed
a judgm ent f or th e pas t due insta llme nts a nd al lowe d Mrs. Young to seek pay ment through t he ordinary means of execution. W e do not think the trial judge’s actio nwould be an abus e of discr etio n, eve n if M r. You ng wa s capable of making the

payments.

IV.

Mrs. Young also appeals t he trial cour t’s refusal to make Mr. Young pay her attorney’ s fees. This is also adecision that rests in the discreti on of the trial court. McCarty v. McCar

ty , 863 S.W.2d 716 (Tenn. App. 19 92 ). We do not think the trial judge abused her

discretion in this cas e.

The judgment of the tr ial court i s affirmed and the cause is remanded to the Circui t Court of Dav idson County for any further

proceedings

necessary . Tax the costs on appeal equally between both pa rties.

_________________

______ _____ _ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., J UDGE