IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 10, 2012 Session

LESLIE DWIGHT COFFEY v. PAULA SUE COFFEY

Appeal from the Circuit Court for Hamilton County

No. 04D334 L. Marie Williams, Judge

No. E2012-00143-COA-R3-CV-FILED-MARCH 28, 2013

Leslie Dwight Coffey (“Husband”) filed this action for divorce against his spouse, Paula Sue

Coffey (“Wife”). During the course of the proceedings, Husband was held in contempt on

no less than four separate occasions. The contempt findings were sometimes related to some

aspect of his refusal to pay child support. He was also found guilty of contemptuous conduct

related to other matters. Each time, his sentence was suspended. Eventually, the suspended

time amounted to a total of 50 days in jail. After over ten years of litigation, Wife filed two

separate petitions asking that Husband show cause why he should not be held in criminal

contempt. On the second petition, the court found Husband in criminal contempt, revoked

the suspensions of the previously-imposed sentences and imposed a five day sentence for the

new contempt. The court also awarded Wife $10,000 in attorney’s fees in a separate order

entered the morning after Wife’s counsel filed an affidavit claiming over $20,000 in fees and

expenses. Husband appeals. We affirm that part of the judgment holding Husband in

criminal contempt and ordering him to serve a total of 55 days, which figure includes the

previously-suspended sentences. We vacate that part of the judgment awarding Wife

$10,000 in attorney’s fees and remand for a hearing to allow Husband an opportunity to

challenge the fees and expenses claimed by Wife’s counsel.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in Part and Vacated in Part; Case Remanded

CHARLES D. SUSANO, JR., PJ., delivered the opinion of the Court, in which D. MICHAEL

SWINEY and JOHN W. MCCLARTY, JJ., joined.

Phillip C. Lawrence, Chattanooga, Tennessee, for the appellant, Leslie Dwight Coffey.

Gary R. Patrick, Elizabeth M. Hill and McKinley S. Lundy, Jr., Chattanooga, Tennessee, for

the appellee, Paula Sue Coffey.
OPINION

I.

The parties were married on January 19, 1998. Three children were born to their

union. Husband filed a complaint for divorce on or about February 11, 2004. On or about

November 10, 2004, the court entered an order granting the parties an absolute divorce based

upon their stipulation pursuant to Tenn. Code Ann. § 36-4-129 (2010) that grounds existed.

The court reserved all other issues for a later determination. It eventually referred all the

financial issues to a special master. The same day, the court entered an order (“the

November 2004 Order”) holding Husband

in contempt of Court in the following particulars for which the

corresponding punishment is imposed:

a. [Husband] willfully and intentionally failed to comply with

the orders of the Court pertaining to the timely delivery of the

parties’ children to their day care facility (hereinafter referred to

as “E-Kids”) and failed to utilize E-Kids as the transition point

for the exchange of residential placement between the parties,

for which such violations [Husband] is sentenced to a term of

confinement in the Hamilton County Jail for a period of ten (10)

days.

b. [Husband] willfully and intentionally failed to comply with

the order of the Court pertaining to delivery of [Wife’s] personal

property to her, for which such violation [Husband] is sentenced

to a term of confinement in the Hamilton County Jail for a

period of ten (10) days.

c. [Husband] willfully and intentionally failed to comply with

the orders of the Court with respect to being enjoined from

having contact with [Wife] by coming to her home on May 16,

2004, at which time he willfully broke her camera and by his

repeated telephone calls and other communications with [Wife],

for which such violation [Husband] is sentenced to a term of

confinement in the Hamilton County Jail for a period of ten (10)

days.

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The sentences of confinement in the Hamilton County Jail

referred to in the immediately preceding paragraph of this order

and judgment are suspended upon the condition of [Husband’s]

strict compliance in the future with all orders of this Court, those

that are currently entered and those that may be entered in the

future, the violation of which orders will expose [Husband] to

having the suspension of the terms of confinement revoked and

the commencement of the terms of confinement being ordered

into execution.

(Paragraph numbers omitted.) The order also set a detailed schedule regarding Husband’s

parenting time as well as “sums of money” owed to Wife, including monies withheld by

Husband from his child support obligation, “[w]hich sums shall be paid to [Wife] within

thirty (30) days . . . of the entry of this order and judgment.”

Wife soon filed another petition for contempt asking that Husband be held in

contempt for, among other things, his failure to pay $2,400 per month in child support as

previously ordered, and his failure to pay “in excess of $2,500” in medical expenses for the

parties’ children and his failure to pay Wife’s automobile payments and insurance. In an

ordered entered in October of 2005 (“the October 2005 order”), the court once again found

Husband

in contempt of Court for the violation of the prior orders of the

Court with regard to the times that the children were required to

attend E-Kids day care and the timely payment of his child

support obligation, and [Husband] is sentenced to serve a term

of ten (10) days in the Hamilton County Jail for each of these

violations, making a total sentence of twenty (20) days;

however, these sentences are suspended.

The prior sentences of three (3) consecutive periods [of] ten

days confinement in the Hamilton County Jail, which were

suspended upon condition of [Husband’s] strict compliance in

the future with all orders of this Court, are ordered into

execution with the result that [Husband] is ordered to be

confined in the Hamilton County Jail for a total period of thirty

(30) days under the following conditions:

(a) The sentences that are ordered into execution, or any part

thereof, may be waived by [Wife] in the hope that the exercise

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of this power . . . will encourage the parties to cooperate

together for the benefit of the children. . . .

(Paragraph numbering in original omitted.) The October 2005 Order incorporated the court’s

opinion rendered from the bench in which it characterized Husband’s violations as “blatant”

and “with no excuse” other than Husband’s refusal to accept the court’s judgment regarding

the best interest of the children over his own – all in the face of a previous order holding him

in willful contempt. In the memorandum opinion, the court stated: “On the 30, [Wife] can

agree that it is suspended again.”

In a later motion for contempt, Wife admitted that “[i]n a good faith effort to show

cooperation, [Wife] consented to the suspension of the jail sentences.” That particular

motion was resolved by agreement of the parties and dismissed with prejudice.

After receiving the special master’s report as well as the parties’ objections to same,

the court entered a “Final Order and Judgment” in which the court: (1) awarded Wife

alimony in solido in the amount of $602,044.10, payable per a schedule established by the

court with the obligation to be secured by deeds of trust to real property; (2) awarded Wife

transitional alimony of $2,500 per month for a period of 24 months; (3) determined the

parties’ separate property and divided the marital property; and (4) stated that “[a]ll

temporary and interim orders of the Court and temporary restraining orders, statutory and

otherwise, are hereby vacated, set aside and held for naught.”

On or about February 5, 2009, Wife filed a new motion seeking an order finding

Husband in contempt for failure to pay child support. The amount of the arrearage as stated

in an amended motion was $11,767.20. The court found Husband “to be in contempt of court

for failure to pay child support and medical expenses in a timely manner.” The court also

held Husband in contempt for failing, for approximately one year, to provide health insurance

for the children. The court did not impose any penalties for the contempt. The court also

determined that the parties’ income had changed for the purpose of child support. It

determined that Wife’sincome was $33,000 per year and Husband’s was $15,100 per month.

The court ordered the parties to prepare a child support worksheet that incorporated the

court’s relevant findings.

Wife next filed another motion for contempt, which was amended numerous times.

She also filed a “Petition for Criminal Contempt” which generated an order that Husband

show cause why he should not be held in criminal contempt. Husband moved that the latter

petition should be dismissed for failure to comply with the Tennessee Rules of Criminal

Procedure. The court entered an order in which it agreed that the Rules of Criminal

Procedure, including the requirement of proof of guilt beyond a reasonable doubt, control

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criminal contempt proceedings, but held that the show cause order provided adequate notice

to Husband to satisfy those rules. Eventually, the court entered an agreed order that

accelerated all of Husbands monetary obligations to Wife and reduced them to judgment, but

reserved certain limited issues for later determination.

On or about December 17, 2010, Wife filed yet another petition for criminal contempt.

The petition detailed the previous findings of contempt as well as Husband’s continued

failure to pay child support, his failure to make alimony payments as ordered, and his actions

to encumber or otherwise defeat any equity in the property that, by order of the court, had

been provided as security for Husband’s financial obligations to Wife. Husband was ordered

to show cause why he should not be held in criminal contempt.

Before the criminal contempt hearing was conducted, the special master once again

filed a report “on the following two issues: (1) what is the amount of child support which is

owed by the [Husband] to the [Wife] through May 2011; and (2) what is the amount of the

[Husband’s] future child support obligation accruing after July 27, 2010?” To answer those

questions, the master determined that he must first determine the income of each party. The

master found that, contrary to Husband’s assertions that he had practically no income,

Husband was drawing an average of $10,355.67 per month from one of his businesses to pay

such things as private school tuition for one of his children not born of this marriage, health

insurance for himself and his new wife and her children, promissory note payments owed by

his new wife, monthly dues of two country clubs, restaurant meals and groceries. Further,

during a three month period of time, Husband had paid into one business a total of

$36,840.61 from other business interests. The special master stated that “the problem with

[Husband] is that he has for the past three years utilized his available funds for all those

things on and in which he wants and desires to spend and invest, instead of paying basic child

support . . . [which] should have been his first priority.” The special master also “found

[Husband] to be a very likeable fellow . . . and the proof shows . . . [Husband] is one of these

gentlemen who will do what he wants when he wants to do it . . . .” The special master found

Husband’s income for child support purposes to be $14,500 per month. Both parties filed

objections to the special master’s report.

The court later confirmed the special master’s report in its entirety except to the extent

the master reported on whether Husband should be held in criminal contempt, which the

court noted to be outside the special master’s authority. With regard to the petition for

contempt, the court stated:

The Court has heard evidence on the petition for contempt. . . .

The Court finds the primary issue before the Court is whether or

not [Husband] had the ability to meet his alimony and child

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support obligations at the times he has failed to do so. The

Court finds by clear and convincing evidence and for reasons

articulated in the Special Master’s Report that [Husband] did

have the ability to make his child support payments and

continues to have the ability to make child support payments and

has willfully refused to do so. The Court has observed the

demeanor of the parties and, upon that observation and the

testimony of the parties, finds [Husband’s] assertions he could

not pay child support without credibility. He simply chose what

he wanted to pay and support was not what he wanted to pay or

did pay. The Court ORDERS the prior suspended sentences

which total fifty (50) days be implemented as he has failed to

comply with the Orders of this Court. Additionally, the Court

ORDERS an additional five (5) days sentence as a result of the

finding of criminal contempt, which sentences shall begin to be

served within ten (10) days of entry of this Order and shall be

served day for day consecutively.

* * *

Counsel for [Wife] shall submit an attorney’s fee affidavit and

an Order awarding attorney’s fee with the amount of the award

in blank. . . .

(Capitalization in original.) Husband filed his notice of appeal on January 18, 2012. At 3:35

p.m. on February 14, 2012, Wife’s counsel filed an affidavit claiming fees of $18,897.25

related to the petition for contempt and expenses of $1,714.31. At 9:29 on the morning of

February 15, the court entered an order granting attorney’s fees and costs in the amount of

$10,000.

II.

Husband raises the following issues on appeal:

Did the trial court err as a matter of law by revoking the

suspension of the prior contempt judgments where the issue of

the prior contempt judgments had been determined by a prior

order of the trial court?

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Did the trial court err as a matter of law by revoking the

suspension of [Husband’s] prior contempt sentences when

[Wife] had waived her right to seek the revocation of the

sentences?

Did the trial court erred [sic] as a matter of law by revoking the

suspension of [Husband’s] sentences after the limitation of the

time within which the sentences could have been revoked?

Did the trial court err as a matter of law by applying an incorrect

standard of proof in finding that [Husband] was guilty of

criminal contempt?

Did the trial court err as a matter of law by imposing punishment

for a failure to pay a child support arrearage as contempt without

making a finding as to the amount of child support arrearage to

be paid to purge the contempt?

Did the trial court abuse its discretion in awarding attorney’s

fees to [Wife’s ] attorneys?

III.

As we very recently stated,

when reviewing a trial court’s finding of criminal contempt,

the appellate courts do not review the evidence in

a light favorable to the convicted person;

nevertheless, it is our duty to reverse criminal

contempt convictions when the evidence is

insufficient to support the trier-of-fact’s finding

of contempt beyond a reasonable doubt. On

appeal, the convicted person bears the burden of

overcoming the presumption of guilt.

In determining the sufficiency of the convicting

evidence, the appellate court does not re-weigh or

re-evaluate the evidence. Nor may we substitute

inferences for those drawn by the trier of fact

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from circumstantial evidence. To the contrary, a

court is required to afford the state the strongest

legitimate view of the evidence contained in the

record as well as all reasonable and legitimate

inferences which may be drawn from the

evidence. Questions concerning the credibility of

the witnesses, the weight and value to be given

the evidence, as well as all factual issues raised by

the evidence are resolved by the trier of fact, not

this court. Therefore, this court will not disturb a

verdict of guilty due to the sufficiency of the

evidence unless the relevant facts contained in the

record are insufficient, as a matter of law, for a

rational trier of fact to find that the accused is

guilty beyond a reasonable doubt.

Furlong v. Furlong, 370 S.W.3d 329, 338 (Tenn. Ct. App. 2011)(quoting Ross v. Ross, No.

M2008-00594-COA-R3-CV, 2008 WL 5191329 at *6 (Tenn. Ct. App. M.S., filed Dec. 10,

2008)). Questions of law are reviewed de novo on appeal with no presumption of

correctness. Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007). Awards of attorney’s fees are

largely within the discretion of the trial court and will be disturbed on appeal only when a

clear abuse of discretion is shown. Id.

IV.

A.

Husband first argues that all of the orders of the court that predate the Final Order and

Judgment entered on October 2, 2008, including the orders holding him in contempt and

imposing jail sentences, are rendered null and void by the following language in the

Judgment: “All temporary and interim orders of the Court and temporary restraining orders,

statutory and otherwise, are hereby vacated, set aside and held for naught.” Husband relies

upon principles of res judicata, collateral estoppel, and law of the case. See State v.

Thompson, 285 S.W.3d 840, 848 (Tenn. 2009)(res judicata and collateral estoppel);

Memphis Publ’g Co. v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d

303, 306 (Tenn.1998)(law of the case). In general terms, all of these principles stand for the

proposition that issues of fact and law, once determined in a final judgment, are binding on

the parties in the future. Id. Wife points out, however, that Husband does not explain how

or why the previous orders finding him in contempt are in any way “temporary” or “interim.”

The case law on the subject is to the effect that any order that imposes punishment upon a

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petition for contempt is a final appealable order in its own right, even though the proceedings

in which the contempt arose are ongoing. Bailey v. Crum, 183 S.W.3d 383, 387 (Tenn. Ct.

App. 2005). See also Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d

507, 510 (Tenn. 2005)(an appeal lies from an order refusing to hold an alleged contemnor

in civil contempt). The nature and effect of orders finding contemptuous behavior and

assessing punishment for same is such as to fall outside of the characterization of

“temporary” or “interim.”

B.

Husband next argues that Wife “waived” the three ten-day sentences that were first

imposed and suspended in the November 2004 Order, and then ordered into execution by the

October 2005 Order with the proviso that “the sentences that are ordered into execution, or

any part thereof, may be waived by [Wife] . . . .” Husband argues that Wife admitted

waiving the sentences. In reality, what Wife admitted was that she “consented to the

suspension of the jail sentences.”

“[A] waiver is a voluntary relinquishment by a party of a known right.” Gaston v.

Tennessee Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003) (quoting Chattem,

Inc. v. Provident Life & Accident Ins. Co., 676 S.W.2d 953, 955 (Tenn.1984)). The burden

of proving waiver rests with the person claiming waiver. Id. In addition to interpreting

Wife’s actions, this case requires us to interpret the meaning of the October 2005 order:

. . . In construing an order, the primary goal is the same as with

any writing, i.e., to ascertain the intended effect looking first to

the language of the document. Livingston v. Livingston, 429

S.W.2d 452, 456 (Tenn. Ct. App. 1967). The “general rule” in

construing orders and judgments

is that a judgment should be so construed as to

give effect to every part of it and where there are

two possible interpretations that one will be

adopted which is in harmony with the entire

record, and is such as ought to have been rendered

and is such as is within the jurisdictional power of

the court. Moreover, the judgment will be read in

the light of the pleadings and the other parts of the

record.

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[Lamar Advertising Co. v. By-Pass Partners, 313 S.W.3d 779,

786 (Tenn. Ct. App. 2009)](quoting John Barb, Inc. v.

Underwriters at Lloyds of London, 653 S.W.2d 422, 423 (Tenn.

Ct. App. 1983) (internal citation omitted)(quoting Grant v.

Davis, 8 Tenn. C.C.A. 315, 319 (Civ. App.1918)). Further,

when the order expressly incorporates a transcribed ruling from

the bench, the transcription of the oral pronouncement is given

the legal effect of being part of the order. See Grand Valley

Lakes Property Owners Ass’n v. Burrow, No. W2011-00573-

COA-R3-CV, 2011 WL 6916477 at *6 (Tenn. Ct. App. W.S.,

filed Dec. 28, 2011)(courts do not necessarily review oral

announcements unlesstranscribed and incorporated into decree).

Gentry v. Bailey, E2011-01278-COA-R9-CV, 2012 WL 605546 at *5 (Tenn. Ct. App. E.S.,

filed Feb. 27, 2012).

The October 2005 Order expressly incorporated the court’s findings that were

transcribed as announced on July 29, 2005. With regard to the 30 days of jail time imposed

by the November 2004 Order, the court found that, despite the suspension of that sentence

made in the hope that Husband would comply, Husband had “blatantly and intentionally”

violated the order. The court therefore “unsuspended” the sentence, but stated that the

“sentence may be suspended . . . upon the consent of [Wife] . . .” When asked for

clarification, the court stated: “On the 30, she can agree that it is suspended again.” The

reason for placing the power in the Wife was to encourage cooperation between the parties.

Based on our review of the record, it is beyond doubt that the court intended to give Wife the

power to suspend the sentence rather than waive it altogether and that is what Wife admitted

doing. We find no merit in Husband’s argument that Wife waived the sentence imposed in

the November 2004 Order.

C.

Husband next argues that the trial court acted too late in “unsuspending” the

sentences. He relies on Tenn. Code Ann. § 40-35-310(a)(2010), which states:

The trial judge shall possess the power, at any time within the

maximum time that was directed and ordered by the court for the

suspension, after proceeding as provided in § 40-35-311, to

revoke and annul the suspension; and in such cases the trial

judge may order the original judgment so rendered to be in full

force and effect from the date of the revocation of the

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suspension, and that it be executed accordingly; provided, that

in any case of revocation of suspension on account of conduct

by the defendant that has resulted in a judgment of conviction

against the defendant during the defendant’s period of

probation, the trial judge may order that the term of

imprisonment imposed by the original judgment be served

consecutively to any sentence that was imposed upon the

conviction.

The statute has been interpreted to deprive a court of “jurisdiction [to revoke a suspension]

beyond the maximum term to which defendant could have been sentenced.” State v.

Broome, C.C.A No. 1044, 1988 WL 24720 at *1 (Tenn. Crim. App. E.S., filed Mar. 16,

1988); see McGuire v. State, 292 S.W.2d 190, 192 (Tenn. 1956). Husband argues that the

maximum sentence is either ten days or six months ; therefore, according to him, the

1

revocation of suspension which came several years after either the November 2004 Order or

the October 2005 Order came too late.

This court considered and rejected an almost identical argument in Sloan v. Poff, No.

M2009-01839-COA-R3-JV, 2011 WL 1166845 at *10 (Tenn. Ct. App. M.S., filed March 29,

2011). In Sloan, the trial court found the mother of a minor child in criminal contempt and

sentenced her to ten days confinement but suspended the sentence “for so long as [she]

continued to comply with orders.” Id. at *1. On appeal, the mother argued that Tenn. Code

Ann. § 40-35-303(c)(1) allows suspension of a sentence only “up to and including the

statutory maximum time for the class of the conviction offense.” Id. at *8. Further, she

argued “that since the criminal contempt statute prevents a court from incarcerating an

individual for more than ten days, see Tenn. Code Ann. § 29-9-103, section 40-35-303 (c)(1)

precludes a court from suspending the sentence for longer than ten days because ten days is

the “statutory maximum time for the class of the conviction offense.” Id. We held as

follows:

Mother’s argument would be persuasive if criminal contempt

constituted a violation of the criminal law and if a suspension of

a criminal contempt sentence constituted “probation” as that

term is used in Tenn. Code Ann. § 40–35–303(c)(1). However,

criminal contempt is not considered a violation of the criminal

Husband’s time parameters are from Tenn. Code Ann. § 36-5-104(a) (2010) which limits the 1

sentence for failure to comply with a child support order to six months, and Tenn. Code Ann. § 29-9-

103(2012) which limits the confinement for a single act of criminal contempt to ten days in jail. We need

not decide which, if either, is the correct maximum since we dispose of the issue on other grounds.

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law, and a suspension of a criminal contempt sentence does not

constitute probation. As a result, we conclude the Juvenile

Court did not err when it suspended Mother’s ten-day sentence

to the Davidson County workhouse.

This court has addressed the issue of criminal contempt on

numerous occasions and has concluded that a criminal contempt

proceeding is sui generis, or a class unto itself. The Tennessee

Supreme Court described criminal contempt proceedings as “sui

generis—neither a civil action nor a criminal prosecution as

ordinarily understood, nor a criminal prosecution within the

Sixth Amendment of the United States Constitution.” Bowdon

v. Bowdon, 198 Tenn. 143, 278 S.W.2d 670, 672 (Tenn. 1955).

. . . .

Unlike a typical criminal prosecution, which stands or falls on

its own set of circumstances, a criminal contempt proceeding is

necessarily based on a preexisting court order and is an offense

against the court itself. See Doe v. Board of Professional

Responsibility of the Supreme Court of Tennessee, 104 S.W.3d

465, 474 (Tenn. 2003) (contempt proceeding is sui generis and

is incidental to the case from which it arises). . . .

Criminal contempt statutes are not like other criminal statutes

that prohibit certain activities, such as driving without a license

or selling alcohol to a minor. Rather, they are “punitive in

character, and their primary purpose is to vindicate the court’s

authority.” [ Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct.

App. 1993] (citing Gunn v. Souther[n] Bell Tel. & Tel. Co.,

201 Tenn. 38, 296 S.W.2d 843, 844 (1956) and Garrett v.

Forest Lawn Memorial Gardens, 588 S.W.2d 309, 315 (Tenn.

Ct. App. 1979)); see Long, 221 S.W.3d at 12-13 (criminal

contempt sanctions imposed simply as punishment).

It is not unusual for a court that has found an individual in

criminal contempt for violating its order to suspend a sentence

imposed as a sanction for that contempt. See Cansler v.

Cansler, 2010 WL 342652, at * 10 (Tenn. Ct. App. 2010)

(holding § 29-9-103 does not mandate a sentence be imposed,

and trial court can suspend any sentence it gives); Thigpen, 874

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S.W.3d at 54 (trial court should have suspended all but one day

of sentence imposed for criminal contempt).

Tennessee Code Annotated § 40-28-102(5) defines “probation”

as:

the release by a court of a person found guilty of

a crime, upon verdict or plea, without

imprisonment subject to conditions imposed by

the court and subject to the supervision of the

probation service....

When the Juvenile Court found Mother in criminal contempt, it

did not find Mother guilty of a crime. Rather, it found Mother

had willfully violated its orders dated January 7, 2009 and July

30, 2009. We conclude Tennessee Code Annotated § 40-35-

303(c)(1) does not come into play when criminal contempt is at

issue and, therefore, it does not affect the court’s ability to

suspend its ten-day sentence imposed pursuant to Tenn. Code

Ann. § 29-9-103.

For all of these reasons, we affirm the trial court’s decision to

suspend Mother’s ten-day incarceration in the Davidson County

workhouse for so long as she complies with the court’s orders

during the pendency of this case.

Sloan, at *9 -10 (Emphasis added.) The statute Husband relies on is, as was the statute cited

in Sloan, part of the Tennessee Criminal Sentencing Reform Act of 1989, Tenn. Code Ann.

§ 40-35-101 et seq. (2010). We agree with the reasoning of Sloan and find that reasoning

applicable to the present facts. Therefore, we hold that the trial court acted within its

jurisdiction in revoking the prior suspension of Husband’s sentences.

D.

Husband next argues that the trial court erred in finding him in criminal contempt

without requiring proof beyond a reasonable doubt. Husband’s argument is based upon the

language in the court’s order reciting that there is “clear and convincing evidence” that

Husband was able to pay the obligation but willfully refused to do it. Husband is correct that

persons charged with criminal contempt are presumed innocent and should not be found

guilty absent proof of guilt beyond a reasonable doubt. Storey v. Storey, 835 S.W.2d 593,

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599 (Tenn. Ct. App. 1992). Husband seems to assume that since the court used the incorrect

terminology, the proof is insufficient as a matter of law. He does not cite us to any authority

for the proposition that the trial court’s mention of a lesser burden of proof precludes a

finding on review that the record shows proof of guilt beyond a reasonable doubt. In fact,

Husband does not even argue that should be the law. In our independent research we have

found no such authority. Accordingly, we think it proper to follow the path we charted in

Fortson v. Fortson, No. 03A01-9611-CV-00363, 1997 WL 529001 at * 4-5 (Tenn. Ct. App.

E.S., filed Aug. 28, 1997), of reviewing the record to see if it contains proof of guilt beyond

a reasonable doubt.

This case, much like Fortson, turns on credibility. Id. at *4. A trial court’s findings

which turn on credibility will not be reversed absent “clear, concrete and convincing

evidence to the contrary.” Id. (quoting Tennessee Valley Kaolin v. Perry, 526 S.W.2d 488,

490 (Tenn. Ct. App. 1974). The trial court in the present case specifically found Husband’s

“assertions he could not pay child support without credibility.” Further, the court found that

“[Husband] simply chose what he wanted to pay and support was not what he wanted to pay

. . . .” The record demonstrates that while Husband was not paying support as ordered in the

approximate amount of $2,000 per month, he was finding the ability to spend money on his

new family, including country club dues, in the approximate amount of $12,000 per month.

There is no evidence in this record to even suggest the trial court misjudged Husband’s

credibility. In short, as in Fortson, “[w]e find in the record proof of [Husband’s violations

of the court’s prior orders] beyond a reasonable doubt.” Id. at *5.

E.

Husband’s final argument against the judgment of contempt is that “the Trial Court

made no finding as to the amount of the child support arrearage required of [him] which he

might pay to purge himself of the contempt.” He further asserts that, “[i]f the contempt

sanctions are found to be in the nature of civil contempt sanctions, they were improper

because the Trial Court provided no method by which Mr. Coffey could have purged himself

of the contempt.” We construe Husband’s argument, as asserted in the alternative, as made

by him in contemplation that we might affirm the court’s judgment on the theory that it is

proper as a finding of civil contempt. We have not taken that route. It is clear that while a

contemnor held in civil contempt generally can purge himself of contempt by belatedly

complying with the court’s order, the purpose of criminal contempt is to vindicate the court

through punishment for willful disobedience to its orders. See Agee v. Chapman, 922

S.W.2d 516, 519 (Tenn. Ct. App. 1995). A party “who is in criminal contempt cannot be

freed by eventual compliance . . . .” Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000). Thus,

we hold that the trial court did not err in finding Husband in contempt in the absence of a

specific finding as to the amount he owed. If the amount mattered, and if Husband had a

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sudden change of heart and wanted to pay his obligations, we believe there are enough

specific orders in the record on support and alimony to allow him to calculate what he owed.

F.

The final argument we address is Husband’s contention that the trial court abused its

discretion in awarding Wife $10,000 in attorney’s fees for prosecuting her petition for

criminal contempt. As a general rule, attorney’s fees are not allowed to the prevailing party

on a criminal contempt petition because the award of fees is viewed as punishment in excess

of the $50 fine and 10 days in jail allowed under Tenn. Code Ann. § 29-9-103 (2012). Butler

v. Butler, No. 02A01-9409-CH-00218, 1995 WL 695123 at *2 (Tenn. Ct. App. W.S., filed

Nov. 21 1995). It is permissible, however, to award attorney’s fees to the prevailing party

where the subject of the contempt is a failure to pay child support. Id. at *2 n1.

Husband concedes that it is his burden on appeal to demonstrate an abuse of

discretion. He also concedes that a court can determine a reasonable fee based on its

experience in the case without always conducting an evidentiary hearing. However, he

argues that the court in the present case was a “little too fast on the trigger.” The trial court’s

order holding Husband in contempt directed Wife to submit “an attorney’s fee affidavit and

an Order awarding [her] attorney’s fee with the amount of the award in blank.” In the late

afternoon of February 14, 2012, Wife’s counsel filed affidavits claiming fees in the amount

of $18,987.25 and expenses in the amount of $1,714.31. On February 15, 2012 the court

entered an order awarding $10,000 in “attorney’s fees and costs” to Wife. The order was

file-stamped at “AM 9:29.” Husband asserts that he had no opportunity to respond to the

amount claimed by Wife. He also asserts that it is highly unlikely that all of these charges

were related to child support since there were only two witnesses of substance at the

contempt hearing and only 90 pages of transcribed testimony.

Wife asserts, in a footnote, that the issue of the amount of fees awarded is not properly

before the court because the notice of appeal was filed concerning “the final judgment

entered in this case on January 10, 2012” but the order setting the amount of the fees was not

entered until later, in February. We disagree. Because fees were awarded in the January

2012 Order, but not set until the February 2012 Order, the notice of appeal filed before the

February 2012 Order was a “premature” notice of appeal as that term is used in Tenn. R.

App. P. 4 (d), which states:

A prematurely filed notice of appeal shall be treated as filed

after the entry of the judgment from which the appeal is taken

and on the day thereof.

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See Roberts v. Roberts, No. E2009-02350-COA-R3-CV, 2010 WL 4865441 at *8 (Tenn. Ct.

App. E.S., filed Nov. 29, 2010)(the rule is construed broadly to encompass any judgment that

becomes final after the notice of appeal). Thus, the issue is properly before this Court.

Wife argues that, in light of the broad discretion given to trial courts in awarding

attorney’s fees, it was incumbent on Husband to insist upon a hearing, and to present proof

that the amount requested or awarded was unreasonable. See Moran v. Willensky, 339

S.W.3d 651, 664 (Tenn. Ct. App. 2010). Moran supports Wife’s assertion as a general rule,

but does not sustain the award in this particular case. The record demonstrates that the order

was entered before Husband’s attorney could have been expected to have even made a

telephone call, much less present a meaningful response. Husband had no obligation in this

matter tried without a jury to file a motion for new trial or any other post-judgment motion.

Tenn. R. App. P. 3(e). Husband should have been provided at least some window of

opportunity to show that some portion of the fees claimed did not relate (1) to the prosecution

of the contempt petition or (2) to child support. According to Butler, the fees awarded must

relate to both, otherwise, they are not authorized by law. We hold that the trial court abused

its discretion in awarding Wife $10,000 in attorney’s fees without allowing Husband an

opportunity to make a showing that the fees were not authorized by law or were not

reasonable. On remand, the trial court is directed to give Husband that opportunity.

V.

The judgment of the trial court is affirmed in part and vacated in part. That part of the

judgment holding Husband in criminal contempt and sentencing him to serve a total of 55

days in jail, based in large part upon the revoking of the previously-suspended sentences, is

affirmed. That part of the judgment awarding Wife $10,000 in attorney’s fees is vacated.

Costs on appeal are taxed to Husband. This case is remanded, pursuant to applicable law,

for a determination of a reasonable attorney’s fee to Wife after giving Husband an

opportunity to challenge the fee claimed.

_______________________________________

CHARLES D. SUSANO, JR., PRESIDING JUDGE

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