Helson v. Cyrus

• Court: Court of Appeals of Tennessee
• Decided: March 29, 1999
• Docket: 01A01-9809-CH-00507
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

FILED March 29, 1999 BAXTER NEAL HELSON, ) Cecil Crowson, Jr. ) Appellate Court Clerk Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9809-CH-00507 VS. ) ) Williamson Chancery ) No. 24911 LETICIA FINLEY CYRUS, ) ) Defendant/Appellant. )

APPEALED FROM THE CHANCERY COURT OF WILLIAMSON COUNTY AT FRANKLIN, TENNESSEE

THE HONORABLE CORNELIA A. CLARK, JUDGE THE HONORABLE HENRY DENMARK BELL, JUDGE

CHARLES G. BLACKARD, III 155 Franklin Road, Suite 155 Brentwood, Tennessee 37027 Attorney for Plaintiff/Appellee

J. RUSSELL HELDMAN ERNEST W. WILLIAMS 320 Main Street, Suite 101 Franklin, Tennessee 37064 Attorneys for Defendant/Appellant

AFFIRMED AND REMANDED

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

CONCUR: CAIN, J. COTTRELL, J. OPINION

In this appeal we are asked to reverse the chancellor’s action in issuing

a show cause order for criminal contempt, in sua sponte changing the order from

criminal to civil contempt, and in changing the court’s original decree while it was on

appeal and without being asked to do so. We affirm the chancellor’s action.

I.

In a 1998 dispute over visitation with a minor child, the Chancery Court

of Williamson County entered an order that included, among other things, an order for

the mother to “arrange for the minor child to make a weekly telephone call to [the

father] . . . to occur approximately at 7:00 p.m. each Sunday evening.” The order

containing this provision was appealed to this court.

During the appeal the father filed a petition for criminal contempt for the

mother’s violation of the part of the order dealing with the telephone calls. The

chancellor issued an order for the mother to appear and show cause why she should

not be held in criminal contempt. After a hearing on March 10, 1998 the chancellor

dismissed the criminal contempt charge but ordered that the petition be treated as one

for civil contempt. The chancellor gave the mother forty-five days to file an answer

and ordered that if the mother complied with the prior order concerning the telephone

calls, the petition would be dismissed in its entirety.

The mother filed an answer, and the chancellor held another hearing on

June 16, 1998. After the hearing, the chancellor dismissed the contempt charges, but

the order contained the following paragraph:

The Court’s judgment of January 14, 1998, which requires Defendant to arrange for her minor child to make a weekly telephone call to Plaintiff in a location where no one is hearing what the conversation is on the calling side, said weekly telephone call to occur at approximately

-2- 7:00 p.m. each Sunday evening, is hereby construed, interpreted and clarified by the Court to mean that it is Defendant’s obligation to place the telephone call or to cause the minor child or someone for him to place the telephone call within ten (10) minutes of 7:00 p.m. each Sunday evening, unless a different time for the telephone call is agreed upon by the parties before 7:00 p.m. each Sunday evening.

II.

The mother argues that the original show cause order was erroneous

because it shifted the burden of proof to her to show her innocence. Since the mother

was not convicted of criminal contempt, this seems to have evolved into an argument

that a criminal contempt charge cannot be initiated by a show cause order.

It is clear that criminal contempt must be proved beyond a reasonable

doubt, like any other criminal charge. Strunk v. Lewis Coal Co., 547 S.W.2d 252

(Tenn. Cr. App. 1976). The person charged with criminal contempt does not have the

burden of proving his/her innocence. But Rule 42(b), Tenn. R. Crim. Proc. allows the

requisite notice of an indirect criminal contempt to be given “by an order to show

cause.” We are of the opinion that the show cause order did not (could not) change

the burden of proof, but it is sufficient to initiate the contempt proceeding. Therefore

we overrule this contention on appeal.

III.

The mother also argues that the chancellor erred when, on his own

motion, he entered the order converting the criminal contempt petition to one for civil

contempt. Much of the argument on this issue is devoted to the holding by this court

that the lawyer representing one of the parties could not prosecute a petition for

criminal contempt. Since that holding has now been reversed by the Supreme Court,

see Wilson v. Wilson, ____ S.W.2d ____ (filed Dec. 21, 1998), this argument is moot.

-3- Most of the balance of the argument on this issue challenges the

authority of the trial judge to issue an order dismissing the criminal contempt but

setting the matter for further proceedings as civil contempt. We think, however, that

contempt is contempt, and what distinguishes civil from criminal contempt is the

punishment imposed after the hearing. If the punishment is remedial and forward-

looking, compelling the doing of something, the contempt is civil. If the judgment

imposes punishment for past wrongs and is not conditioned on future conduct, the

contempt is criminal. Robinson v. Gaines, 725 S.W.2d 692 (Tenn. Crim. App. 1986).

Although the show cause order mentioned criminal contempt (as required by Rule 42,

Tenn. R. Crim. Proc.) the court retained the authority to impose a lesser sanction.

The proceedings are not mutually exclusive. Black v. Black, 362 S.W.2d 472 (Tenn.

App. 1962); Mowery v. Mowery, 363 S.W.2d 405 (Tenn. App. 1962); cf. Sherrod v.

Wix, 849 S.W.2d 780 (Tenn. App. 1992). We think the chancellor’s action was entirely

correct and in the best interests of both parties. By attempting to encourage future

compliance with the court’s order, the chancellor was attempting to spare the parties

future litigation expenses and the attendant stress of the conflict.

Finally, the mother argues that the order was not supported by the

pleadings. We note, however, that Rule 54.03, Tenn. R. Civ. Proc. allows the court

to render a judgment to which the party is entitled “even if the party has not demanded

such relief in the parties’ pleadings.” As long as the respondent is put on notice of the

facts involved in the claim, the order may seek compliance rather than impose

punishment.

IV.

The final challenge to the chancellor’s action concerns the construction

of the prior order so as to place specific obligations on the mother. The initial order

required the mother to “arrange for the minor child to make a weekly telephone call”

to the father “to occur approximately at 7:00 p.m. each Sunday evening.” Another

-4- chancellor subsequently “construed, interpreted and clarified” the order to require that

the mother “place the telephone call or to cause the minor child or someone for him

to place the telephone call within ten (10) minutes of 7:00 p.m. each Sunday evening

. . . .”

The mother attacks the chancellor’s jurisdiction to change the prior order

because the prior order was on appeal. She also asserts that changing the order

without notice to her violated her rights to due process.

In our opinion, however, the chancellor’s action did not amount to a

change or a modification of the prior order. It was, as the chancellor indicated, merely

a construction, interpretation, or clarification of the prior order. Judgments subject to

construction are to be construed as other written instruments, and the determinative

factor is the intention of the court as gathered from all parts of the judgment. Branch

v. Branch, 249 S.W.2d 581 (Tenn. App. 1952). The difference between requiring the

mother to “arrange” for the telephone call and requiring her to “place” the call is de

minimis and well within the court’s power to construe prior orders.

The judgment of the court below is affirmed and the cause is remanded

to the Chancery Court of Williamson County for any further proceedings necessary.

Tax the costs on appeal to the appellant.

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

CONCUR:

_____________________________ WILLIAM B. CAIN, JUDGE

_____________________________ PATRICIA J. COTTRELL, JUDGE

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