Helson v. Cyrus ( 1999 )


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  •              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
    -5-
    

Document Info

Docket Number: 01A01-9809-CH-00507

Filed Date: 3/29/1999

Precedential Status: Precedential

Modified Date: 4/17/2021