### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 27, 2001 Sessio

n HOWARD ZOLDESSY v. INGRID DAVIS, ET AL 

### . Appeal from the Chancery Court for Anderson County No. 98CH6737 William E. Lantrip, Chancellor

FILED OCTOBER 31, 2001

No. E2000-02526-COA-R3-CV

Upon the application of Howard Zoldessy, a temporary injunction was issued by the tri al court against the defendants,

Ingrid Dav

is and Arthur Davis. The Davises are the parents of Zoldessy’s dece ase d wife and the grandparents of Zoldessy’ s daughter, Rachel. The injunction in question prohibitsthe defe nda nts “fro m co min g abo ut [ How ard Z old ess y] an d hi s da ught er, R ache l Zol des sy, or contacting him in any manner whatsoever.” F

ollowing a bench

trial, the trial court fo

und that both defendants

had commit

ted willful criminal contempt by “coming about [Zoldessy’ s] residence on October 4, 1999.” Each defendant was sentenced to 48 hours imprisonment for their contempt. Mr. Davis was also found in contempt for sending letters to Zoldessy and was sentenced to an additional termof imprisonmentof

48 hours. The defendants appeal the trial court’s findings of contempt, as wellas the sentences imposed. We affirm the finding of contempt as to the letters sent to Zo lde ssy; however, we reverse the fin ding of contempt f

or the defendan

ts’ purported “c

oming about” Zo

ldessy and his daughter.

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

Affirmed in Part; Reversed in Part; Remanded

C HARLES D. S USANO , J R ., J., delivered the op inion of the court,

in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined.

Vivian L. Cran

dall, Oak Ridge,

Tennessee, for

the appellants, I

ngrid Davis and A

rthur Davis.

Dav id L. Val one , Kn oxv ill e, T enn ess ee, f or t he ap pel lee , Ho ward Zold ess y.
OPINION

I.

In this appeal, we are

asked to review the trial court’s findings of willful criminal contempt agains tthe defendants, Ingrid Davis and Arthur Davis. On appeal, the def endants are “burde ne d withthe presumption of

guilt, and in

order to obtain a reversal, [they] must overturn this presumption1 The defendants resi de in Boca Raton, Florida.

2 Zoldessy argues that his in-law s should be punished b ecause they “inte nded” to violate the injunction. Intent is only “h

alf of the equation”; there must also be co nduct pro scribed b y the exact langu age of the injun ction. See Harris
v. Corley , C/A No. 01A01-9012-CH-00446, 1991 WL 66708, at *4 (Tenn . Ct. App. M.S., fi led May 1, 1991) (citi

ng 43A C.J.S. Injuncti

ons § 243, p. 537) (holding t hat where dis obedience of an injunction is punishable as a penal of fense, the injunct ion should be strictly constru ed in fav or of the person all

eged to have violat

ed it). In the inst ant case, t

he Davises did not engage in the conduct forbidden by the injunction.
-2- by showing that the evidence preponderates in favor of [their] innocence.” Robinson v. Air Draulics Eng’g Co., 214 Tenn. 30, 37, 377 S.W.2d 908, 912 (1964).

At the outset, the defendants contend that the trial court’s findings of contempt are erroneous because, according to th

eir argument,

the record does not indicate that the injunction was issued or that a copy was

ever served upon them. We find otherwise. The record on appeal indicates that it
was supplemented by the agreement of the parties to include the follow ing documents: (1) the temporary

injunction, which was issued on August 26, 1998; (2) a letter from the Secretary of State indicating that the defenda nts were served through his office on September 5, 1998 1 ; and (3) a return receipt signed by M

r. Davison September 5, 1998. Clearly, the record as supplemented reflects that an injunction was properly issued and served. Their argument to the c ontrary is without merit. While the defendants admit that they drove through the grounds of the apar tment complex in which Zoldessy and his daughter Rachel lived, they argue that their conduct

does not violate the injunction and therefore cannot serv e as a basis for a finding of con

tempt. We agree . Mr. Davis testified by deposition that when he drove by Zoldessy’ s residence to see if Zoldessy was home, he “found nothing, except

looking at the ap

artment, the blinds were drawn.” Mr. Davis testified that he did not see Zoldessy’s car in the parking lot of the complex. While this evidence establishes beyond doubt that the defendants drove through the grounds of the apartment complex on the day in quest ion, one cr itical element is mi ssing: there is no

proof in the reco

rd that Zoldessy

or his daughter were home at the

time the defenda

nts drove th

ro ugh the vehicle passageways of the complex. Without proof to esta blish that Zoldess

y or his daughter were

present when the

defendants drove by, there is nothing in this record upon which to base a findi ng t hat the defendants “[came] about the petitioner andhis daughter.” 2 Accordingly, we reverse the trial court’s f inding of contempt for this conduct.

While not seriously disputing that sending letters t o Zoldessy would violate the conduct prohibited by the injunction, Mr. Davis argues that he should not have been incarcerated for 48 hours for his conduct, because, so the argument goes, the letters were merely emotional pleas for contact withhis granddau ghter and were not threat ening. Whether or not the letters sent by Mr. Davis were threatening in nature, however, is not the issue. The language of the injunction is clear: the de fenda nts are prohibited from “contacting [Zoldessy] in any manner whatsoever .” (Emphasis added). Mr. Davis violated th e injunc tion when he contacted Zoldessy in writing. What he attempted to convey in those letters is, for our purposes, of no consequence.-3-

The trial court imposed a

sentence of 48 hours in jail as punishment for Mr. Davis’ contempt. We will not disturb this

ruling. “Appell

ate courts are l

oathe to interfere or modify the punishment imposed in contempt proce edings because

such determinatio

ns lie within

the sound discretion of the court.” Herrera v. Herrera, 944 S.W.2d 379, 393 (Tenn. Ct. App. 1996). By statute, a court may impose a fine or imprisonment up to ten days as punishment for contempt. See T.C.A. § 29-9-103 (2000). Upon reviewing the record, we cannot say tha t the trial court abused i ts discretion in sentencing Mr. Davis to 48 hours in jail for sending letters to Zoldessy.

II.

The judgment of the tr

ial court finding

Ingrid Dav

is and Arthur Davi

s i n willfu l criminal contempt for “coming about” the

plaintiff and sentencing each to 48 hours in jail is r

eversed. Both the finding of contempt as to Mr. Davis for “contacting” the plaintiff through letters and the sentence of 48 hours imposed for this contempt are affirmed. This case is remanded for enforcement of the trial court’s judgmen

t with respect to the latter sentence and for collection of costs assessed below, all pursuant to applicable law. Exercising our discretion, costs on appeal are taxed against the appellant, Arthur Davis.

_______________________________ CHARLES D. SUSANO, JR., JUDGE