1 Ten n. Ct. App . R. 10(b ) provide s: The Co urt, withthe concu rrence of a ll judg es p articipat in g i n t he c ase , ma y af fi rm, reverse or modify the act ions of the t rial court by memorandum opinion when a formal opinion w ould have no prec edent ial val ue. When a case is deci ded by memorand um opini on it shal l be design ated “M EM OR AN DU M OP INI ON ,” shall not be published, and shall not be ci ted or relied on for any reas on in a subsequent unrela ted case. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE June 7, 1999 Session CATHY ANITAHARRI S AND ERTON v. GERALD DWAY NE ANDERTON Appeal from the Chancery Court for Rutherford County

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

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

The trial court awarded

rehabilitative alimony to wife w ho, in her complaint, did not seek alimony butwho testified at discovery that she was indigent and needed financia l 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
W ILLI AM C. K OCH , J R .,J., W IL LI AM B. C AIN , J., AND P ATRIC IA J. C OTT RELL , J. Stephen W. Pate, Murfreesboro, Tennessee, for the a ppellant, Gerald Dway

ne Anderton. Daryl M. South, Murfreesboro, Tennessee, for the appellee, Ca thy Anita Harr

is Anderton.

MEMORAN

DUM OP

INION 1
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 di visio n of2 The complai nt, draf ted by wif

e’s f irst counsel , is not a model one. It al leges that the “ plain tiff has ph ysically abused the pl aint iff

”; t hat t he “ plain tiff has phys ical ly an d sexual ly as saulted the min or chil d”; that th e “ plain tiff is abusi ng dru gs an d alc ohol .” The comp laint was never ame nded to correct the o bvious erro rs.

3 Husband does not ques ti on the need of wife to a limon y, nor his a bility to pa y the awa rd, altho ugh in his statem ent filed p ursuan t to the loc al rule the numb ers ind icated that his living e xpe nses p reclud ed alim ony. -2- marital assets. She demanded general re lief, but did not s p ec if

ic al ly s ee k a li mo ny. 2 She was awarded all the r

elief specifically s ought. A local court rule requires the parties in a domestic re lations case to file a statement of the contestedissues. Ea

ch of the se 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 acknowledg edthat she was aware that she had not demanded alimony , although she was in need of su pport and intended to amend he

r compla int to seek alimony. For reasons not reflected in the rec ord the plaintiff did not amend he r compla int, and upon the trial merely testified to her need for alimony in some amo

unt. Need an d t he ab il it y t o p ay are critical factors to be considered in an award of alimony

. Loyd v. Loyd , 860 S.W.2d 40 9 (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). She was awarded rehabil

i tative alimony of $200.00 monthly for three years over the objection of husband, who proteste d that she had not spe

cifical ly d emanded alimony . This is the

basis for the primary issue on a

ppeal. Our revie

w 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 Rule s of Civil Pr ocedure provides : Exceptas to a party ag ainst whom a judgment is entered by d efault, every final judgment shall grant the relief to which the part

y in whose favor it is re ndered i s e ntitled, even if the party has not demanded s uchrelief in the party ’s pleadings; but the court shall no t give th e successful party

relief, though such party

may be entitled to it, where the propriety of suc

h relief w as not litig ated and the opposing par

ty had no opportunity to assert def enses to such relief. Husbandrelies upon Qualls v. Q ualls , 589 S.W.2d 906 (Tenn. 1979) as a uthority for his argument that alimony cannot be a warded unless the party

to whom alimony is awarded ha s specific ally

demanded it. We do not agree. Qualls is appli cable on ly in cases wherein a

default judgment was entered. I

n the case at Bar, the resolving issue is whether the propriety of an award of alimony was litigated a

nd whether husband was afforded an opp ort unity to defend ag ainst the award. 34 See , Bu lla v. B ulla , No . 01A -01-9 004 -CV -001 33, 1 990 W L 16 029 1; M oore v. M oore , No. 87- 92-II , 1988

WL 63498.

5 Eric’s problems, exacerbated by his parent s unpleasantnesses to each other, required professi onal attenti on. -3- We th in k t ha t h us ba nd ha d a de qu at e n ot ic e t ha t a li mo ny w ould be a co ntested issue upon the trial. He

was awa re of the poverty of wife; he was aware

of her c omplianc e with the local rule which indicated her need for support; he was awa re of her testimon y eigh teen months before trial that she would request alimony. I t cannot be argued that husband was not afford ed an opp ortunity to defend; the record fairly reflects that he simply a

vailed h i mself of the opportunity aff orded by inattentive counsel. This Court has consiste

ntly held that as a matte

r of justic e a dese

rving sp ouse 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 directedto the dismissal of his contempt pet ition fil ed against wife for her purpor ted failure to comply with the trial court’s interim visitation order. Preceding trial of the case, the trial judge awarded wife tempora ry custody

of the minor child. Husbandwas awarded visitation privileges each Sunday . On the first designated Sunday , Eric was made available at the Sheriffs Office by his mot her . When husb and arr ived, Eri c becam

e emotiona lly upset 5 and refused to go with his father. Witnesses testified that Eric violently resisted attempts to persua

de him to vis it his father, tothe point of injuring himself. The mother thereafter did not take Eric to the scheduled place for visitation, thereby triggering the petition for c rimina l 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. Husbandargues that t he tri al jud ge erred in dismissing his petition for contempt. We cannot reach this argument, bec a use in this jurisdiction there is no right of appeal from an acquittal in a criminal contempt case. Gunter v. Seaboard Copper Mining C o . , 142 Tenn. 14, 215 S.W. 273 (Te nn. 1919); Archer v. Archer , 907 S.W.2d 4 12 (Tenn . Ct. App. 1 995); Zwick v. Jones , 58 9 S.W.2d 664 (Tenn. Ct. App. 1979). The judgment is af

firmed a t the costsof the ap

pellant.

PER CURIAM