# FILED

October 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk JOHNNIE FA

Y KENNEDY

f/k/a ) Johnnie Fay (Fann) R

obson, )

) Plaintiff/Appellee, ) ) Appeal No. vs. ) 01-A-01-9707-CV-00343 ) KENNETH WAYNE ROBSON, ) Sumner Circuit ) No. 16331-C Defendant/Appel

lant. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY,

AT GALLATIN, TENNESSEE
THE HONORABLE THOMAS GOODALL, JUDGE

MICHAEL W. EDWARDS 177 East Main Street Hendersonville, T

ennessee 37075 ATTORNEY FOR PLAINTIFF/APPELLEE

THOMAS L. WHITESIDE Fowlkes & Whitesid

e 172 Second Avenue N

orth, Suite 204 Nashville, Tennessee 37201-1908 ATTORNEY FOR DEFENDANT/APPELLANT

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE2 

## O P I N I O N
This case represents a

n attempt on the

part of the attorne

y of a successful divorce litigant

to enforce an award

of attorneys fees, using the contempt powers of the trial court havi

ng jurisd i ction, in the name no t of the attorney but of

the litigant. The relevant fa

cts reveal that the

court below enter

ed a final decree of divorce in Appellee ’s favor, which s tates: (12) The court hereby a

wards the WIFE her reasonable attorney’s fees due Michael W. Edwards in th e amo unt of $5497.00 as alimony in solido, the same to be considered a judgment in favor of MICHAEL W. EDWARDS against HUSBAND, KENNETH WAYNE ROBSON , for which exec ution may issue if nec

essary. Subsequently, that order was am ended by reducing

the awardto $2,997.00
a s ali mony in solido. On De cember 4, 1997, A

ppellee filed a pet

ition for contempt, citing as

grounds: I These parties were divorced by Final Decree of Divorce on th e 1st da y of May, 1997, whe rein judgment was gr

anted to the Petitionerin favor of her att orney, MICHAEL W. EDWARDS, in the amount of Five Thousand Four H und r ed Ninety-seven an

d 00/100 Dollars ($5,497.00) as alimony in s olido against the Respondent. II Subsequently

thereto, an Agre

ed Order was ent

e red on August 8, 1997, reducing the amount of a li mony in solido [attorn ey’s fees] by Two Thousand Five H undred and 00/100 Dollars ($2,500) to the sum of Tw o Thousand Nine Hundred Ninety-seven and 00/100

Dollars ($2997.00) , which as of this date remains du e, owing and unpaid except for one payment of One Hundred and 00/100 Dollar s ($100.00).

The order which is the s

ubject of this app eal, entere d on December 18, 1997, reads, in per

tinent part, as fol

lows: (1 ) Kenneth Wayne Robson is in willful and de liberate civi

l contempt of the Court’s order for

non-payment of alimo

ny in solido in the amount of $2,897.00 plus accrued interest of $260.73 for a total of $3,157.73. (2) The court incarc

erates Kenneth W

ayne Robson in th

e Sumne r County Jail for six months or until he purges himself of contempt by payment to the Cler

k in the amount of $3,15 7.73.3 The main issue to be decided, is, in A ppellant’s words: Whether the t rial c ourt erred in concluding that an attorney can invoke the contempt power s of the court to enforce collection of an attorney fee awa

rd which was denom

inated as alimony in so

lido.

After due consideration

to cou nsel’s able argume nt on both sides and unde r the a uthorities cited belo w, this court answ

ers the above issue in

the negative.

I. Contempt "In Tennessee, the c

ourt's authority to pun

ish certain acts as

con t empt derives from statute and is l imited to the

forms of conduct set forth in Tennessee Code Annotated section 29-9-102." State v. Turne r , 914 S.W.2d 951, 955 (Tenn. Ct. App. 1995).
This statute provide s: 29-9-102. Scope of power. -- The power of the sever al courts to issue attachments, and inflict punishments for contem pt of c ourt, shall not be construed to ext end to any except the

following cases: (1) The willful misbe

havior of any p erson inthe presence of the court, or so near thereto as to o bstruct the administr

ation of justice. (2) The willful misbe

havior of any

of the officers of

such courts, in their official transa ctions. (3) The willful disobedience or resistance of any officer of the such courts, party, juror, witness, or any other person,

to any lawful

writ, process, order, rule, decr ee, or command of such co urts. (4) Abuse of, or unla wful interferen ce with, the proc

ess or proceedings of the court. (5) Willfully conversing with jurors in relation to the mer its of the causein the trial of whic

h they are engaged,

or otherwise

tampering with them. (6) Any other act or om

issio n declared a contem pt by law. [Code 1858, § 4106 (deriv. Acts 1831, ch. 19, § 1); Sh an., § 5918; Code 1932, § 10119; T.C.A. (ori g. ed.), § 23-902.]
Appellee has made no allegati ons which would amount to w i llful disobedie nce of

a court order. A

ppellant cites in his br

ief, and this court

finds controlling, the case of Weinstein v. He imberg , 490 S.W.2d 692 ( Tenn. Ct. App. 1972). Here, as in Weinstein , the only evidence offered shows that the husband has not paid his wife’s attorney’s bill in full. The record before us reveals no wilfulrefusal on the part of M r. Robson. The debt that was alleg ed in the4

petition was no more than two months in arrears. The Weinstein courtfound, as this court does here, that under facts such as these, a c ontempt petition is inappropriate.

II. Proper Parties to Alimony Awards Even if the instant c ontempt petition had be en filed in keeping w

ith the requirements

of Tennessee's contempt statute, t he original grant

of attorneys fees
as alimony in solido and

as a judgment in favor

of Appellee's counsel would not support such an action. Al imony is a right in the na

ture of rehabilita

tion for the needy spouse. See Gilliam v. Gilliam , 776 S.W.2d 81, 86 (Tenn. Ct. App. 1998). This court has heldpreviously that attorney's fees awards should not be granted directlyto a spouse's attorne y insofar as the atto

rney is not a party to

the divorce action. Wilson v. Wilson , No. 01-A-01 -9707-CV -00325, 1998 WL 557609 at *12 (Tenn. Ct. App

. Sept. 2, 1998). Such an award does violenceto the concept and purpose of alimony and shall be considered v

oid. On remand , thi s court suggests that the parties ma y desire to file a m

otion pursuant to Tenn. R. Civ. P. 60.02(1998) to correct the Final Divorce Decree to reflect a proper attorney's fee award in favor of

the Appellee herself as opposed to her c ounsel.

In light of these circu

mstances, the Order of Conte mpt is hereby vacated and the finding of

the court below re

versed. The

cause is remanded to the trial courtfor such further pr

oceedings as are ne

cessa ry. Costs on appeal are taxed against the Appellee.

_ ________________

_____________________ _ WILLIAM B. CAIN, JUDGE CONCUR:

________________________________________ BEN H. CANTRELL, PRESIDING JUDGE,M.S.

________________________________________ WILLIAM C. KOCH, JR., JUDGE