Alvin Freeman v. Janice K. Stewart ( 2004 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 14, 2004 Session
ALVIN FREEMAN, ET AL. v. JANICE STEWART, ET AL.
Appeal from the Chancery Court for Sullivan County
No. 31435(M) John S. McLellan, III, Judge
No. E2003-02285-COA-R3-CV - FILED JULY 27, 2004
Janice K. Stewart (“Mrs. Stewart”) was the record owner of a parcel of real property located in Tall
Oaks Court subdivision when this litigation began. Several of Mrs. Stewart’s neighbors filed this
suit claiming Mrs. Stewart was in violation of the subdivision restrictions by having a freestanding
metal garage and a separate large wooden structure on her property. The Trial Court agreed and gave
Mrs. Stewart the option of keeping one of the structures as a garage and ordering her to remove the
other structure. Mrs. Stewart subsequently transferred the property to her husband, Ed Stewart (“Mr.
Stewart”), who then was added as a defendant. The neighbors filed a petition for contempt against
both Mr. and Mrs Stewart when they continued to have both a freestanding metal garage and the
wooden structure on their property. A hearing was held on the petition for contempt and the Trial
Court held Mrs. Stewart in contempt and found the wooden structure still to be in violation of the
subdivision restrictions. We affirm the Trial Court’s finding that the wooden structure is in violation
of the subdivision restrictions. We vacate the finding of contempt and remand for further
proceedings on the claim of contempt as to Mrs. Stewart.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part and Vacated in Part; Case Remanded
D. MICHAEL SWINEY , J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR., J.,
and WILLIAM H. INMAN , SR. J., joined.
Timothy R. Wilkerson, Kingsport, Tennessee, for the Appellants Janice and Ed Stewart.
Kerry A. Musick, Blountville, Tennessee, for the Appellees Alvin and Dinah Freeman, Bill and
Kathy Moore, Ray and Shirley Rose, Troy and Lottie Williams, and Jack and Mae Smith.
OPINION
Background
This lawsuit involves a dispute between neighbors over alleged violations of
subdivisions restrictions. The plaintiffs are Alvin and Dinah Freeman, Bill and Kathy Moore, Ray
and Shirley Rose, Troy and Lottie Williams, and Jack and Mae Smith (“Plaintiffs”). Plaintiffs sued
Mrs. Stewart, who at that time was the record owner of a parcel of property which bordered various
parcels of property owned by Plaintiffs. All of the parties live in Tall Oaks Court subdivision in
Sullivan County. In the complaint, Plaintiffs claimed Mrs. Stewart was violating numerous items
contained within the Declaration of Restrictions applicable to Tall Oaks Court subdivision. The
primary dispute involved two structures on Mrs. Stewart’s property, one being a freestanding metal
garage and the other being a separate wooden structure still under construction when the complaint
was filed.
After a trial, the Trial Court entered an Order on March 2, 2002, which disposed of
some of the issues such as whether the condition of Mrs. Stewart’s property constituted a nuisance.
A Judgment was entered on April 15, 2002, disposing of the remaining issues and determining
whether the presence of the two structures violated the Declaration of Restrictions. According to
the Trial Court:
a. The Declaration of Restrictions in place and enforceable
against all properties in Tall Oaks Subdivision allow for each lot
owner to have one detached private garage for not more than three
cars.
b. From the unrefuted testimony of the three expert witnesses
called by the Plaintiffs, the standard in the community for a three car
garage is a structure that is no wider than 34 feet and no deeper than
22 feet.
****
e. The Defendant presently has on her property a metal “free
standing” garage and has almost completed the construction of a
much larger wooden structure on her property which is intended to be
used as a garage as well as storage.
Based on these factual findings, the Trial Court ordered Mrs. Stewart to remove
completely, at her election, either the freestanding metal garage or the separate wooden structure.
The Trial Court further held:
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[I]f the Defendant elects to keep the wooden structure, it must be re-
configured so that it complies with the community standard for a
three car garage. In complying with the standard for a three car
garage, the Defendant shall not be confined to having a structure that
is no wider than thirty four (34) feet and no deeper than twenty two
(22) feet, however, the structure must be no larger than seven hundred
and forty eight (748) square feet, that is, the structure may be deeper
than twenty two (22) feet, or, wider then thirty four (34) feet, but the
total square footage cannot exceed the square footage of a building
with those dimensions.
The Trial Court also set forth other requirements that needed to be complied with if the wooden
structure was retained and Mrs. Stewart intended to construct access to a second level.
Mrs. Stewart originally elected to keep the wooden structure, and she removed the
freestanding metal garage. In September of 2002, Plaintiffs filed a motion seeking authority from
the Trial Court to have the wooden structure inspected to determine if it was in compliance with the
Judgment. Plaintiffs claimed they sought permission from Mrs. Stewart to inspect the wooden
structure which may have obviated the need for judicial intervention, but Mrs. Stewart refused to
respond to their request. By this time, a different freestanding metal garage was on Mrs. Stewart’s
property. Mrs. Stewart was no longer represented by counsel and filed a pro se response to
Plaintiffs’ motion for an inspection. In this response, Mrs. Stewart asserted that she was in full
compliance with the Trial Court’s Judgment. Mrs. Stewart stated that the wooden structure “was
made into a storage shed with no access for vehicles.” Although not entirely clear, Mrs. Stewart then
claimed: (1) in the Judgment the Trial Court allowed her to retain one of the structures as a garage;
(2) she decided to keep the freestanding metal garage; (3) the wooden structure no longer was a
garage; and (4) the presence of the wooden structure did not violate the Judgment because it was not
a garage and, therefore, she had only one “garage” as required by the Judgment.
In December of 2002, Plaintiffs filed a motion to join Mr. Stewart as a defendant
because “the property which is the subject of this litigation [has] … been transferred to him from his
wife, the original Defendant, after the trial of this cause.”1 Plaintiffs also filed a Petition for
Contempt, claiming that while Mr. and Mrs. Stewart (“the Stewarts”) initially removed the
freestanding metal garage in accordance with the Trial Court’s Judgment, they thereafter obtained
a permit to erect a “picnic shelter” on the property and then put the freestanding metal garage back
up. Plaintiffs further claimed that the “storage shed” still violated the applicable subdivision
restrictions as well as the Trial Court’s previous order. In March of 2003, the Trial Court granted
Plaintiffs’ motion to join Mr. Stewart as a defendant. Since Mr. Stewart was now a party to the
lawsuit, Plaintiffs refiled their Petition for Contempt, once again claiming both of the Stewarts were
in contempt for the reasons set forth in the previous petition. The Stewarts then filed a Motion to
1
Mr. Stewart was at the courthouse when the first trial occurred. Because he was a witness and not a party,
he apparently was sequestered in the witness room.
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Dismiss claiming, among other things, that they were in full compliance with the Trial Court’s
Judgment.
A hearing on Plaintiffs’ Petition for Contempt and the Stewarts’ Motion to Dismiss
was conducted on August 12, 2003. The Stewarts were pro se at the hearing. The first witness was
Dan Rosenbaum (“Rosenbaum”), the president of Associated Builders, Inc. Rosenbaum testified
that in the course of performing construction work, he measures buildings to ascertain their square
footage. Rosenbaum measured the wooden structure on the Stewarts’ property which measured 50'
2" by 14' 10", for a total square footage on the ground floor of 707.82. Rosenbaum noted that this
was a two story structure and the second level would have the same square footage as the lower
level. The total square footage did not take into account the porches or overhangs.
The next witness was Tim Earles (“Earles”), the Sullivan County Building
Commissioner. Earles testified to various building permits obtained by the Stewarts. The Stewarts
obtained three permits in July of 2001. These permits were for a carport, a 30' by 58' detached
garage, and an 8' by 9' awning to be constructed over a porch. In September of 2002, the Stewarts
obtained permits for a 20' by 30' picnic shelter and a 10' by 58' roof which was to be constructed over
a deck. In January of 2003, the Stewarts obtained a permit to build a 20' by 30' addition to be
attached to the rear of their house. According to Earles, these permits require the property owner to
arrange for an initial setback inspection prior to beginning construction and then to arrange for a final
inspection once the project is completed. With regard to the permit for the detached garage, the
initial inspection was completed, but the final inspection was not. Earles testified that there is no
time limit on completing a project and the property owner is responsible for arranging the final
inspection upon completion. As a result, if a property owner fails to notify the county that a project
is complete and arrange for the final inspection, the county never would know if the specifics of the
permit were complied with unless somebody called and complained. Earles stated it would not
violate the zoning ordinance for the Stewarts to obtain a permit to build a garage and then use that
structure purely for storage. When a property owner applies for a building permit, the Building
Commission does not ascertain whether the proposed structure would violate any subdivision
restrictions because the Building Commission’s only concern is whether the proposed structure
violates applicable zoning laws.
Plaintiffs’ counsel called Mr. Stewart as a witness and asked him to identify various
pictures, at which point Mr. Stewart refused to answer any questions and invoked his “constitutional
Fifth Amendment rights.” Mr. Stewart also claimed he had not “had any due process.” The Trial
Court told Mr. Stewart the Fifth Amendment did not apply and Mr. Stewart then proceeded to
identify the pictures. Mr. Stewart acknowledged that the lower floor of the wooden structure was
“enclosed with a door so nothing can get in except a person.” Mr. Stewart further testified that the
wooden structure has a second level “loft” with a solid floor. Mr. Stewart identified a picture which
showed a porch on the second floor of the wooden structure with an overhang from the roof. Mr.
Stewart went on to add that this previously had been an open deck and he obtained a permit to cover
it with a roof. Mr. Stewart also identified a metal garage which he testified was “attached to the
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house with nails.” This is not the same metal garage that was at issue previously, although this new
metal garage is in the same location as the previous one.
Mrs. Stewart also testified and she admitted the “original plan” for the wooden
structure was for it to be a garage. Mrs. Stewart added, however, that the wooden structure was not
completed as a garage since there is no access for vehicles.
The Trial Court entered its Judgment on Plaintiffs’ Petition for Contempt and the
Stewarts’ Motion to Dismiss on September 4, 2003, at which time it noted that it previously had
given Mrs. Stewart the option of maintaining either the metal structure as a garage or removing the
metal structure and using the wooden structure as a garage, “with the one not to be used as a garage
to be removed from the property.” The Trial Court then stated:
3. The Defendants, by their own admission, have attached the
metal structure to their home and are using it as a garage and have
converted the wooden structure to a storage building thus being in
violation of both Paragraph 4 of the applicable restrictions and the
prior Order of this Court.
4. That Mr. Ed Stewart was not a Defendant in this cause
when it was originally filed, he having been added as a Defendant by
subsequent Order of the Court, therefore, he is not in contempt of
Court for the violation of the Judgment entered after the original trial
on March 6, 2002.
5. That Janice Stewart is in contempt of court due to the
retention of both the metal garage and the wooden structure and due
to the use of the wooden structure as a storage building as opposed to
a three car garage.
The Trial Court reserved ruling on sanctions to be imposed on Mrs. Stewart until such
time as the Stewarts chose not to appeal or until there was a final ruling by an appellate court. The
Trial Court denied the Stewarts’ Motion to Dismiss and then designated this Judgment as a final
appealable order.
The Stewarts appeal raising five issues, which we quote:
1. Whether the evidence contained in the record is
insufficient to support a finding by a rational trier of fact that Janice
K. Stewart is guilty beyond a reasonable doubt of contempt of court
and the Judgment therefore contrary to the weight of the evidence?
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2. Whether the trial court committed reversible error in
finding Janice K. Stewart to be in contempt of court for the
attachment of a metal structure to property she does not own and the
use of a wooden structure as a storage building on property she does
not own and did not own at the time of the offenses for which she
stands convicted of contempt?
3. Whether the trial court committed reversible error in
holding the attachment of a metal structure and its use as a garage and
the use of a wooden structure to a storage building on property owned
by Ed Stewart was a violation of a previous Order of the trial court or
subdivision restrictions?
4. Whether the evidence contained in the record is
insufficient to support a finding by a rational trier of fact that Ed
Stewart is, by a preponderance of the evidence, in violation of
subdivision restrictions applicable to property owned by him and the
Judgment is therefore contrary to the weight of the evidence?
5. Whether the trial court committed reversible error by
compelling parties charged with contempt to testify in their trial
despite their strong objections to testifying?
Plaintiffs do not appeal the Trial Court’s decision that Mr. Stewart was not in contempt.
Discussion
The factual findings of the Trial Court are accorded a presumption of correctness, and
we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).
We will begin by discussing the original Judgment entered on April 15, 2002. In that
Judgment, the Trial Court noted that Mrs. Stewart had on her property a freestanding metal garage
and a much larger separate wooden structure which she intended to use as a garage and for storage.
The Trial Court also concluded the Declaration of Restriction for Tall Oaks Court subdivision
allowed each lot owner to have one detached private garage for not more than three cars. The Trial
Court ordered Mrs. Stewart to decide which of the two structures she wanted to retain and to remove
the other structure. The April 15, 2002, Judgment was a final appealable judgment which Mrs.
Stewart did not appeal. Therefore, in this appeal, we will not undertake to question the propriety of
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any of the Trial Court’s factual or legal conclusions set forth in that Judgment and they are binding
on Plaintiffs and Mrs. Stewart.
Mr. Stewart argues that the April 15, 2002, Judgment is not binding on him because
he was not added as a party until after entry of that Judgment.2 Mr. Stewart then argues that the
preponderance of the evidence weighs against the Trial Court’s conclusion that the wooden storage
structure violates the Declaration of Restrictions. Covenants such as the one involved in this case
are valid and are binding on all purchasers with notice. See, e.g., Richards v. Abbottsford
Homeowners Ass'n, 809 S.W.2d 193, 195 (Tenn. Ct. App. 1990). However, as pointed out by the
Stewarts, they are strictly construed because they are in derogation of a property owners right to
unrestricted use of their property. Id.
Like other contracts, covenants should be enforced according
to the parties' clearly expressed intentions. Waller v. Thomas, 545
S.W.2d 745, 747 (Tenn. 1976); Hamilton v. Broyles, 57 Tenn. App.
116, 123-24, 415 S.W.2d 352, 355 (1966). They should be
interpreted in light of their fair and reasonable meaning, McDonald
v. Chaffin, 529 S.W.2d 54, 57 (Tenn. 1975), but should not be
extended to cover circumstances not plainly included within their
terms. Turnley v. Garfinkel, 211 Tenn. 125, 130, 362 S.W.2d 921,
923 (1962); Southern Advertising Co. v. Sherman, 43 Tenn. App.
323, 326-27, 308 S.W.2d 491, 493 (1958). All doubts concerning a
covenant's applicability should be resolved against the covenant. See
Land Developers, Inc. v. Maxwell, 537 S.W.2d at 918.
Richards, 809 S.W.2d at 195.
According to Mr. Stewart, the only “objective” evidence introduced at trial was that
of Earles who testified that the wooden structure did not violate any zoning ordinances. Taking that
one giant step further, Mr. Stewart claims it is reasonable to conclude that the wooden structure is
in compliance with the Declaration of Restrictions because he originally obtained a permit to build
that structure as a garage. In our opinion, this argument completely overlooks Earles’ testimony that
when issuing a permit, the Building Commission does not determine whether the proposed structure
violates subdivision restrictions. In other words, the most Earles’ testimony on this point can be said
to offer is that the wooden structure does not violate a zoning ordinance, a fact which Plaintiffs
readily concede. This testimony cannot fairly or reasonably be interpreted as having any impact
whatsoever on whether the wooden structure is in violation of the Declaration of Restrictions.
The applicable portion of the Declaration of Restrictions provides as follows:
2
Plaintiffs did not and do not argue that M r. and Mrs. Stewart were in privity with each other and the original
Judgment was, therefore, binding on Mr. Stewart, and the Trial Court did not base its September 4, 2003, Judgment now
on appeal on that ground. W e, therefore, express no opinion on this issue.
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4. Land use and Buildings. All lots restricted hereby shall be
known and designated as residential lots. No structure shall be
erected, altered or permitted to remain on any lot other than one
detached single family dwelling, not to exceed two stories in height
and a private garage for not more than three cars.
Mr. Stewart argues that because the wooden structure is not a garage, the foregoing
does not even apply. The Trial Court disagreed, and so do we. The obvious purpose of the
foregoing restriction is to prohibit the property owners from building various and sundry structures
on the property. We agree with the Trial Court’s conclusion that the clear intent of the Declaration
of Restrictions is to limit the structures permanently built on the property to two types, i.e., a
detached single family dwelling or a three car garage with the total number of structures allowed
being one detached single family dwelling and one garage for not more than three cars.
The Stewarts also argue that other property owners have storage sheds on their
property and it is not right to make them take theirs down and not do the same thing to the other
property owners. We reject this argument for two reasons. First, as noted by the Trial Court, what
may or may not be on other property owners’ land is not at issue in the present case. Second, the
Stewarts’ storage facility is over 1,400 square feet when counting the square footage of both levels,
even without taking into account the two decks. It is interesting that in Paragraph 8 of the
Declaration of Restrictions, the minimum living area of the houses built on lots one through nine
must be at least 1,100 square feet, and the living area of the houses built on lots ten through eighteen
must be at least 1,400 square feet. Quite simply, the Stewarts’ “storage” facility is the size of a
house. Even if the Declaration of Restrictions could be read to allow storage sheds, we do not
believe they could fairly be read to allow storage sheds the size of a house. We affirm the
September 4, 2003, Judgment of the Trial Court insofar as it concluded the wooden storage structure
is in violation of both the Declaration of Restrictions and its prior order.
With regard to the issues pertaining to the Trial Court’s finding of contempt, there
are two types of contempt, civil and criminal. The difference between civil and criminal contempt
was recently discussed by our Supreme Court in Doe v. Bd. of Professional Responsibility, 104
S.W.3d 465 (Tenn. 2003) as follows:
We have on numerous occasions stated that a contempt may either be
civil or criminal in nature. See Wilson v. Wilson, 984 S.W.2d 898,
906 (Tenn. 1998) (Birch, J., dissenting); Black, 938 S.W.2d at
398-401; Turner, 914 S.W.2d at 954. Civil contempt occurs when a
person does not comply with a court order and an action is brought by
a private party to enforce rights under the order that has been violated.
See Black, 938 S.W.2d at 398; Robinson v. Air Draulics Eng'g Co.,
214 Tenn. 30, 377 S.W.2d 908, 912 (1964); Turner, 914 S.W.2d at
995. Punishment for civil contempt is designed to coerce compliance
with the court's order and is imposed at the insistence and for the
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benefit of the private party who has suffered a violation of rights. See
Black, 938 S.W.2d at 398; Turner 914 S.W.2d at 955; Sherrod v. Wix,
849 S.W.2d 780, 786 n.4 (Tenn. Ct. App. 1992). Also, in civil
contempt cases, the quantum of proof necessary to convict is a
preponderance of the evidence. On the other hand, criminal
contempts are "intended to preserve the power and vindicate the
dignity and authority of the law, and the court as an organ of society."
Black, 938 S.W.2d at 398. Punishment for criminal contempt is both
punitive and unconditional in nature and serves to adjudicate "an
issue between the public and the accused." Id. In criminal contempt
proceedings, the defendant is presumed to be innocent and must be
proven guilty beyond a reasonable doubt. See Shiflet v. State, 217
Tenn. 690, 400 S.W.2d 542, 543 (1966).
Doe, 104 S.W.3d at 473-74.
Unfortunately, the Trial Court’s Judgment does not indicate whether it found Mrs.
Stewart in civil or criminal contempt. Additionally, the Trial Court’s decision to withhold its ruling
on what sanctions to apply to Mrs. Stewart for her contempt of court leaves us further in the dark.
Without the sanctions having been determined by the Trial Court, we cannot tell whether they are
designed to coerce Mrs. Stewart’s compliance with the Trial Court’s order, i.e., civil contempt, or
whether they are intended to preserve the power and vindicate the authority of both the Trial Court
and the law, i.e., criminal contempt. Likewise, the Petition for Contempt does not state whether
Plaintiffs were seeking to have the Stewarts held in civil or criminal contempt. On appeal, the
Stewarts argue Plaintiffs were seeking to have them held in criminal contempt and that the Trial
Court actually found Mrs. Stewart in criminal contempt. On the other hand, Plaintiffs claim they at
all times were seeking to have the Stewarts held in civil contempt, and the Judgment of the Trial
Court involved a finding of civil contempt on the part of Mrs. Stewart. This case is a good example
of why it is important when there is a finding of contempt for a trial court to state specifically
whether the contempt is civil or criminal. The difference between civil and criminal contempt
involves not only the availability of constitutional safeguards, but also affects this Court’s standard
of review. See, e.g., Barber v. Chapman, No. M2003-00378-COA-R3-CV, 2004 Tenn. App. LEXIS
111, at *8 (Tenn. Ct. App. Feb. 23, 2004), no appl. perm appeal filed (“[O]n appeal, individuals
convicted of criminal contempt lose their presumption of innocence and must overcome the
presumption of guilt.”).
Another important aspect of civil contempt is the ability of the contemnor to purge
herself of contempt. Our Supreme Court in Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000) noted the
following about civil contempt proceedings:
After a finding of contempt, courts have several remedies
available depending upon the facts of the case. A court can imprison
an individual to compel performance of a court order. This is
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typically referred to as "civil contempt." This remedy is available
only when the individual has the ability to comply with the order at
the time of the contempt hearing. Tenn. Code Ann. § 29-9-104; see
also Garrett v. Forest Lawn Memorial Gardens, 588 S.W.2d 309,
315 (Tenn. Ct. App. 1979). Thus, with civil contempt, the one in
contempt has the "keys to the jail" and can purge the contempt by
complying with the court's order. Tenn. Code Ann. § 29-9-104;
Garrett, 588 S.W.2d at 315. In civil contempt, the imprisonment is
meted out for the benefit of a party litigant. See Shiflet v. State, 217
Tenn. 690, 693, 400 S.W.2d 542, 543 (1966).
Ahern 15 S.W.3d at 79 (footnote omitted).
While we are inclined to agree with Plaintiffs that Mrs. Stewart was held in civil
contempt, based on the record before us we cannot be certain this is correct. Accordingly, we must
remand this case to the Trial Court to state specifically whether Mrs. Stewart was found in civil or
criminal contempt. Regardless of whether Mrs. Stewart is found to be in civil or criminal contempt,
she will be entitled to appellate review of the sanctions imposed by the Trial Court, if any. In order
to avoid multiple appeals in the future, the Trial Court is directed to impose the sanctions it believes
are appropriate, if any, so the finding of contempt and the sanctions imposed can be reviewed at the
same time should Mrs. Stewart choose to pursue an appeal at that time.
As noted previously, one aspect of civil contempt is that the contemnor has the “keys
to the jail” and has the power to take action to purge herself of the contempt. Mrs. Stewart claims
she does not have that power because she no longer owns the property. The record contains no
evidence regarding why the property at issue was transferred from Mrs. Stewart to Mr. Stewart. The
Trial Court’s September 4, 2003, Judgment makes no mention of this transfer and its impact, if any,
on the contempt claim against Mrs. Stewart. Certainly, if the transfer was a sham made for the
purpose of avoiding the clear requirements of the April 15, 2002, Judgment, then it is of no effect
for purposes of this litigation as such shenanigans simply to avoid a court order cannot be permitted
to stand.3 If, however, there was a legitimate basis for the transfer other than to attempt to
circumvent the Trial Court’s clear order, and the legitimate basis was the reason for the transfer, then
such a finding may negate a finding of civil contempt by Mrs. Stewart.
Because we conclude this matter must be remanded to the Trial Court for the reasons
set forth above, Mrs. Stewart’s other issues surrounding the finding of contempt are pretermitted.
As previously discussed, the Trial Court held that Mr. Stewart was “not in contempt of Court for the
violation of the Judgment entered after the original trial on March 6, 2002.” Therefore, to the extent
Mr. Stewart raises any issues concerning the contempt filings applicable to him, those issues are
moot as Mr. Stewart was not found to be in contempt.
3
That is not to say that the transfer necessarily would not be valid for other purposes.
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The September 4, 2003, Judgment of the Trial Court holding the wooden structure
to be a violation of both the Declaration of Restrictions and its previous Judgment is affirmed, and
on remand the Trial Court is instructed to enter an appropriate order addressing this violation. The
Trial Court’s finding that Mrs. Stewart was in “contempt” is vacated. On remand, the Trial Court
is instructed to clarify whether it found Mrs. Stewart in criminal or civil contempt and set forth what
it deems to be appropriate sanctions. If Mrs. Stewart was sought to be held in civil contempt, the
Trial Court is further instructed to conduct a hearing regarding the reasons for the transfer of the
property from Mrs. Stewart to Mr. Stewart in order to determine if those reasons are such that a
finding of civil contempt against Mrs. Stewart still would be appropriate.
Conclusion
The Judgment of the Trial Court is affirmed in part and vacated in part, and this cause
is remanded to the Trial Court for further proceedings consistent with this Opinion and for collection
of the costs below. Exercising our discretion, costs on appeal are assessed against the Appellants,
Janice K. Stewart and Ed Stewart, and their surety.
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D. MICHAEL SWINEY, JUDGE
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