1

Tenn. Ct. App. R. 10(b) provides:

The Court, with the concurrence of all judges participating in the case, may affirm,

reverse or modify the actions of the trial court by memorandum opinion when a

formal opinion would have no precedential value. When a case is decided by

memorandum opinion it shall be designated “M EMORANDUM OPINION,” shall

not be published, and shall not be cited or relied on for any reason in a subsequent

unrelated case.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 7, 1999 Session

CATHY ANITA HARRIS ANDERTON v.

GERALD DWAYNE ANDERTON

 Appeal from the Chancery Court for Rutherford County

No. 96DR-1200 Don R. Ash, Judge

No. M1998-00950-COA-R3-CV - Filed February 25, 2003

The trial court awarded rehabilitative alimony to wife who, in her complaint, did not seek alimony

but who testified at discovery that she was indigent and needed financial assistance. Husband argues

that absent a pleaded request for alimony, the trial court was powerless to award it. The trial court

disagreed. We affirm. Husband’s petition alleging that wife was in criminal contempt for failing

to allow visitation with the child of the parties was dismissed, and husband appeals. An acquittal

of criminal contempt cannot be appealed.

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

WILLIAM C. KOCH, JR.,J., WILLIAM B. CAIN, J., AND PATRICIA J. COTTRELL, J.

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Gerald Dwayne Anderton.

Daryl M. South, Murfreesboro, Tennessee, for the appellee, Cathy Anita Harris Anderton.

MEMORANDUM OPINION1

I.

These parties were married in 1984. A son, Eric, was born in 1988. The marriage was not

a success, and wife filed suit in 1997, seeking a divorce, custody, child support and a division of
2

 The complaint, drafted by wife’s first counsel, is not a model one. It alleges that the “plaintiff has physically

abused the plaintiff”; that the “plaintiff has physically and sexually assaulted the minor child”; that the “plaintiff is

abusing drugs and alcohol.” The complaint was never amended to correct the obvious errors.

3

 Husband does not question the need of wife to alimony, nor his ability to pay the award, although in his

statement filed pursuant to the local rule the numbers indicated that his living expenses precluded alimony.

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marital assets. She demanded general relief, but did not specifically seek alimony.2 She was

awarded all the relief specifically sought.

A local court rule requires the parties in a domestic relations case to file a statement of the

contested issues. Each of these parties complied with the local rule; wife’s statement fairly indicated

that she would seek alimony. 

In course the wife’s discovery deposition was taken during which she acknowledged that she

was aware that she had not demanded alimony, although she was in need of support and intended

to amend her complaint to seek alimony. For reasons not reflected in the record the plaintiff did not

amend her complaint, and upon the trial merely testified to her need for alimony in some amount.

Need and the ability to pay are critical factors to be considered in an award of alimony. Loyd v.

Loyd, 860 S.W.2d 409 (Tenn. Ct. App. 1993). The award is within the sound discretion of the trial

judge. Houghland v. Houghland, 844 S.W.2d 619 (Tenn. Ct. App. 1992).

Shewas awardedrehabilitative alimony of $200.00 monthly for three years over the objection

of husband, who protested that she had not specifically demanded alimony. This is the basis for the

primary issue on appeal. Our review is de novo on the record. Since the issue is one of law, there

is no presumption of correctness. Vooys v. Turner, 49 S.W.3d 318 (Tenn. Ct. App. 2001).

II.

Rule 54.03 of the Rules of Civil Procedure provides:

Except as to a party against whom a judgment is entered by default,

every final judgment shall grant the relief to which the party in whose

favor it is rendered is entitled, even if the party has not demanded

such relief in the party’s pleadings; but the court shall not give the

successful party relief, though such party may be entitled to it, where

the propriety of such relief was not litigated and the opposing party

had no opportunity to assert defenses to such relief.

Husband relies upon Qualls v. Qualls, 589 S.W.2d 906 (Tenn. 1979) as authority for his

argument that alimony cannot be awarded unless the party to whom alimony is awarded has

specifically demanded it. We do not agree. Qualls is applicable only in cases wherein a default

judgment was entered. In the case at Bar, the resolving issue is whether the propriety of an award

of alimony was litigated and whether husband was afforded an opportunity to defend against the

award.3
4

 See, Bulla v. Bulla, No. 01A-01-9004-CV-00133, 1990 WL 160291; Moore v. Moore, No. 87-92-II, 1988

WL 63498.

5

 Eric’s problems, exacerbated by his parents unpleasantnesses to each other, required professional attention.

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We think that husband had adequate notice that alimony would be a contested issue upon

the trial. He was aware of the poverty of wife; he was aware of her compliance with the local rule

which indicated her need for support; he was aware of her testimony eighteen months before trial

that she would request alimony. It cannot be argued that husband was not afforded an opportunity

to defend; the record fairly reflects that he simply availed himself of the opportunity afforded by

inattentive counsel. This Court has consistently held that as a matter of justice a deserving spouse

must be provided support if that issue, though not pleaded, was litigated upon adequate notice.4 The

award of alimony is affirmed.

III.

The second of two issues which husband presents for review is directed to the dismissal of

his contempt petition filed against wife for her purported failure to comply with the trial court’s

interim visitation order.

Preceding trial of the case, the trial judge awarded wife temporary custody of the minor child.

Husband was awarded visitation privileges each Sunday. On the first designated Sunday, Eric was

made available at the Sheriffs Office by his mother. When husband arrived, Eric became

emotionally upset5 and refused to go with his father. Witnesses testified that Eric violently resisted

attempts to persuade him to visit his father, to the point of injuring himself. The mother thereafter

did not take Eric to the scheduled place for visitation, thereby triggering the petition for criminal

contempt. The trial judge dismissed the petition, finding that wife’s actions were not malicious, and

that she did not intentionally disobey the court’s order of visitation.

Husband argues that the trial judge erred in dismissing his petition for contempt. We cannot

reach this argument, because in this jurisdiction there is no right of appeal from an acquittal in a

criminal contempt case. Gunter v. Seaboard Copper Mining Co., 142 Tenn. 14, 215 S.W. 273

(Tenn. 1919); Archer v. Archer, 907 S.W.2d 412 (Tenn. Ct. App. 1995); Zwick v. Jones, 589

S.W.2d 664 (Tenn. Ct. App. 1979).

The judgment is affirmed at the costs of the appellant.

PER CURIAM