FILED

October 30, 1998

Cecil W. Crowson

Appellate Court Clerk

JOHNNIE FAY KENNEDY f/k/a )

Johnnie Fay (Fann) Robson, )

)

Plaintiff/Appellee, )

) Appeal No.

vs. ) 01-A-01-9707-CV-00343

)

KENNETH WAYNE ROBSON, ) Sumner Circuit

) No. 16331-C

Defendant/Appellant. )

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, Tennessee 37075

ATTORNEY FOR PLAINTIFF/APPELLEE

THOMAS L. WHITESIDE

Fowlkes & Whiteside

172 Second Avenue North, Suite 204

Nashville, Tennessee 37201-1908

ATTORNEY FOR DEFENDANT/APPELLANT

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE
2

O P I N I O N

This case represents an attempt on the part of the attorney of a successful

divorce litigant to enforce an award of attorneys fees, using the contempt powers

of the trial court having jurisdiction, in the name not of the attorney but of the

litigant. The relevant facts reveal that the court below entered a final decree of

divorce in Appellee’s favor, which states: 

(12) The court hereby awards the WIFE her reasonable attorney’s

fees due Michael W. Edwards in the amount 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 execution may issue if necessary.

Subsequently, that order was amended by reducing the award to $2,997.00

as alimony in solido. On December 4, 1997, Appellee filed a petition for

contempt, citing as grounds:

I

These parties were divorced by Final Decree of Divorce on

the 1st day of May, 1997, wherein judgment was granted to the

Petitioner in favor of her attorney, MICHAEL W. EDWARDS,in

the amount of Five Thousand Four Hundred Ninety-seven and

00/100 Dollars ($5,497.00) as alimony in solido against the

Respondent.

II

Subsequently thereto, an Agreed Order was entered on

August 8, 1997, reducing the amount of alimony in solido

[attorney’s fees] by Two Thousand Five Hundred and 00/100

Dollars ($2,500) to the sum of Two Thousand Nine Hundred

Ninety-seven and 00/100 Dollars ($2997.00), which as of this date

remains due, owing and unpaid except for one payment of One

Hundred and 00/100 Dollars ($100.00).

The order which is the subject of this appeal, entered on December 18,

1997, reads, in pertinent part, as follows:

(1) Kenneth Wayne Robson is in willful and deliberate civil

contempt of the Court’s order for non-payment of alimony 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 incarcerates Kenneth Wayne Robson in the Sumner

County Jail for six months or until he purges himself of contempt

by payment to the Clerk in the amount of $3,157.73.
3

 The main issue to be decided, is, in Appellant’s words: 

Whether the trial court erred in concluding that an attorney can

invoke the contempt powers of the court to enforce collection of an

attorney fee award which was denominated as alimony in solido.

After due consideration to counsel’s able argument on both sides and

under the authorities cited below, this court answers the above issue in the

negative. 

I. Contempt

"In Tennessee, the court's authority to punish certain acts as contempt

derives from statute and is limited to the forms of conduct set forth in Tennessee

Code Annotated section 29-9-102." State v. Turner, 914 S.W.2d 951, 955

(Tenn. Ct. App. 1995).

This statute provides:

29-9-102. Scope of power. -- The power of the several courts to

issue attachments, and inflict punishments for contempt of court,

shall not be construed to extend to any except the following cases:

(1) The willful misbehavior of any person in the presence of the

court, or so near thereto as to obstruct the administration of justice.

(2) The willful misbehavior of any of the officers of such courts, in

their official transactions. 

(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, decree, or command of such courts. 

(4) Abuse of, or unlawful interference with, the process or

proceedings of the court. 

(5) Willfully conversing with jurors in relation to the merits of the

cause in the trial of which they are engaged, or otherwise tampering

with them. 

(6) Any other act or omission declared a contempt by law. [Code

1858, § 4106 (deriv. Acts 1831, ch. 19, § 1); Shan., § 5918; Code

1932, § 10119; T.C.A. (orig. ed.), § 23-902.]

Appellee has made no allegations which would amount to willful

disobedience of a court order. Appellant cites in his brief, and this court finds

controlling, the case ofWeinstein v. Heimberg, 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

wilful refusal on the part of Mr. Robson. The debt that was alleged in the
4

petition was no more than two months in arrears. The Weinstein court found, as

this court does here, that under facts such as these, a contempt petition is

inappropriate.

II. Proper Parties to Alimony Awards

Even if the instant contempt petition had been filed in keeping with the

requirements of Tennessee's contempt statute, the 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. Alimony is a right in the nature of rehabilitation for the

needy spouse. See Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App. 1998).

This court has held previously that attorney's fees awards should not be granted

directly to a spouse's attorney insofar as the attorney 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 violence to the concept

and purpose of alimony and shall be considered void. On remand, this court

suggests that the parties may desire to file a motion 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 counsel.

In light of these circumstances, the Order of Contempt is hereby vacated

and the finding of the court below reversed. The cause is remanded to the trial

court for such further proceedings as are necessary. 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