PAULA RENEE STEPHENS COONER,             )
                                         )   Davidson Circuit
      Plaintiff/Respondent/Appellant,    )   No. 83D-265
                                         )
VS.                                      )
                                         )   Appeal No.
GARY KENT COONER,                        )   01-A-01-9701-CV-00021
                                         )
      Defendant/Petitioner/Appellee.     )
                                                                 FILED
                                                  October 10, 1997
              IN THE COURT OF APPEALS OF TENNESSEE
                   MIDDLE SECTION AT NASHVILLE
                                                 Cecil W. Crowson
                                                Appellate Court Clerk
       APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

                    HONORABLE MURIEL ROBINSON, JUDGE


L. R. DeMarco, #2652
Suite 400
Washington Square
Nashville, TN 37201-1476
ATTORNEY FOR PLAINTIFF/APPELLANT

Louise R. Fontecchio, #4065
20th Floor, First American Center
315 Deaderick Street
Nashville, TN 37238-2075
ATTORNEY FOR DEFENDANT/APPELLEE



                     REVERSED, VACATED AND REMANDED



                                        HENRY F. TODD
                                        PRESIDING JUDGE, MIDDLE SECTION




CONCURS:
WILLIAM B. CAIN, SPECIAL JUDGE

DISSENT IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
PAULA RENEE STEPHENS COONER,                     )
                                                 )   Davidson Circuit
       Plaintiff/Appellant,                      )   No. 83D-265
                                                 )
VS.                                              )
                                                 )   Appeal No.
GARY KENT COONER,                                )   01-A-01-9701-CV-00021
                                                 )
       Defendant/Appellee.                       )


                                       O P I N I O N


       The captioned plaintiff/wife, has appealed from a post-divorce order in a contempt

proceeding instituted by the captioned defendant/husband.



       The designated record contains only the following:

       1.      Divorce Decree entered August 16, 1983, which awarded the wife a divorce on

grounds of cruel and inhuman treatment, custody of a minor child aged 2-1/2, with stated visitation

by the husband, support for the child, division of marital estate, and alimony. The decree further

committed the husband to confinement for contempt for 10 days.



       2.      Agreed order entered February 1, 1994, finding the husband in contempt “for

violation of previous order” and imposing a 30-day suspended sentence, awarding judgment to the

wife for $5,832.92 for arrears child support, and issuing a wage assignment for collection of past and

future child support and alimony. The order concludes as follows:

               It is further ORDERED, ADJUDGED and DECREED that
               this present agreement is made with the understanding that
               the parties transferred physical possession of the minor child
               to the Respondent on November 8, 1993, and will be filing an
               Order changing custody of the minor child and setting an
               amount of current support for and after that date. In the event
               the parties are not able to agree upon an amount of current
               support, or payment by the Respondent on these arrearages,
               the parties will file a motion to have the matter set for further
               hearing on these issues.

               The Respondent shall pay the cost of this cause for all of
               which execution may issue if necessary.


                                                 - 2-
3.   An order entered June 6, 1994, providing:

     Court FINDS that since the child, Jason Cooner is now in the
     custody of Gary Kent Cooner, the mother, Paula Renee
     Stephens, should be ordered to pay child support in
     accordance with the Tennessee Child Support Guidelines in
     the amount of $482.00 per month, beginning November 8,
     1993.

             1. The obligation of Paula Renee Stephens for
     payment of current child support, and the obligation of Gary
     Kent Cooner for payments on prior child support arrearages
     shall mutually offset each other so that neither party shall be
     required to make any actual payments to the other. Instead,
     Gary Kent Cooner shall receive a credit on the outstanding
     balances due for child support arrearages in the amount of
     $482.00 per month beginning immediately and continuing
     until further orders of this court.

             2. Gary Kent Cooner shall also receive a credit
     against the outstanding child support arrearages in the amount
     of $2,651, representing child support owed from November
     8, 1993.

           3. The wage assignment previously issued to Mrs.
     Winner’s Chicken & Biscuits shall be withdrawn, and Mr.
     Cooner’s employer shall no longer be required to deduct any
     amounts from any wages, salary or other income due to Gary
     Kent Cooner, from and after April 22, 1994.

             4. Paula Renee Stephens shall continue to provide
     medical insurance coverage for the minor child, and the
     parties shall each be responsible for payment of ½ of any
     medical expenses not covered by insurance, in accordance
     with prior orders of this Court. Provided, however, each party
     shall pay his/her share of non-covered medical expenses
     directly to the medical care provider upon receipt of
     notification of the amounts due.


4.   A petition for contempt filed by the husband September 6, 1996, alleging:

             2. The child has remained in the continuous care and
     custody of the father until the weekend of August 30 through
     September 2, 1996 when he was visiting with the mother.
     During the weekend when the father was not at home, the
     child and mother, Paula Renee Stephens, came to the father’s
     home and without the father’s knowledge or consent the
     mother, Paula Renee Stephens, entered the home in the
     company of the child, removed all of the child’s possessions,
     as well as furniture, television, and other items from the
     child’s room in the father’s home and took the child, the
     furniture, and other items to the home of the mother.



                                             - 3-
             3. Upon returning to the home on the afternoon of
     September 2, 1996, and discovery that the child and all of his
     belongings were missing, the father contacted the mother,
     who admitted that she had in fact been in the father’s home
     and had removed the child and the child’s belongings from
     the father’s home without the father’s permission. She
     however stated that she was not willing to return the child to
     the care of the father because, in her opinion, the child was
     old enough to decide for himself where he wants to live.

             5. The father believes that the mother is not only
     guilty of criminal acts of breaking and entering and theft of
     the father’s property, but in fact is further in willful criminal
     contempt of the prior orders of this Court and that she should
     be required to appear on a date certain to hear the charges
     against her, and upon a finding of guilt should be punished
     accordingly.

             6. The father further believes that the mother is in
     willful civil contempt for her refusal to return the child
     immediately to the home of the father, and that she should be
     required to appear and show cause, if any she has, why she
     should not be punished for her willful disobedience to this
     Court’s orders.

     WHEREFORE, PETITIONER PRAYS:

            1. That this Petition be filed and the mother, Paula
     Renee Stephens, be served with process and be given an
     opportunity to appear and answer;

             3. That the mother be given notice of the charges
     against her and be required to appear on a date certain to hear
     the charges against her and be allowed to present defense to
     those charges if she so chooses;

             4. That at the hearing of this cause the mother be
     found in both willful criminal and civil contempt of the orders
     of this Court and be punished accordingly.


5.   A Temporary Restraining Order entered on September 6, 1996, stating:

      TO:    Paul Renee Stephens

              You are hereby enjoined and restrained from
      continuing to deprive the father of his lawful custody of the
      child, Jason Cooner, pending a hearing in this matter and you
      are further hereby ordered to immediately return the child to
      the care and control of the father, along with all of the
      possessions which were removed from the home of the father
      between August 30 and September 2, 1996.




                                               - 4-
6.   The response of the wife to the petition for contempt and counter-petition stating:

             7. Since the last Order was entered there has been
     significant and material change in the circumstances of the
     parties which would warrant a change of custody of the
     minor child, Jason Cooner, age 15 ½, from the Father to the
     Mother, The Mother would show that it is in the best interest
     of the minor child that custody be changed from the Father
     to the Mother.

             The mother would show that the girlfriend of the
     Father has been living with the Father with the minor child
     present. The Father has been spending numerous nights
     away from home leaving the child with his girlfriend. In
     August 1996, the minor child discovered marijuana and
     pornographic pictures in a cabinet in the home of the Father.
     The pornographic pictures were of the Father and his
     girlfriend and previous girlfriends.

              8. The Mother would further show unto the Court
     that the minor child has been attending an alternative school,
     The Center for Family Life, and the Mother has made
     application for the child to attend Davidson Academy, a
     private school, but the child has not yet been accepted.

            9. The Mother presently resides with another minor
     son and her present husband and has sufficient room in her
     homeplace for the minor son.


7.   A 16-page transcript of a hearing held on October 31, 1996.



8.   The order presently under review, was entered November 12, 1996, providing:

             It appearing to the Court from the testimony
     presented, including that of Paula Cooner Stephens who
     voluntarily took the stand on her own behalf that on or about
     the 2nd day of September, 1996, and continuing until
     September 7, 1996, Paula Cooner Stephens did willfully and
     deliberately violate the prior Orders of this Court by
     depriving Gary Kent Cooner of the lawful custody of the
     child and all of his possessions, including furniture
     belonging to Gary Kent Cooner from the home of Gary Kent
     Cooner without permission of Mr. Cooner, and further by
     taking the child into her care and custody and failing to
     return him until she was served with a Restraining Order of
     this Court on or about September 7, 1996. The Court finds
     that said conduct constitutes flagrant disregard of this Orders
     of this Court and that it constitutes willful criminal
     contempt.

     It is, therefore, ORDERED as follows:

                                 - 5-
                       1. That Paula Stephens be, and hereby is, found in
               willful criminal contempt of the Orders of this Court and is
               sentenced to serve one (1) night in the Davidson County Jail
               as punishment for said conduct.

                         2. That Louise R. Fontecchio, attorney for Gary
                Kent Cooner, is awarded a judgment against Paul Stephens
                in the amount of $750.00 for her services as attorney for
                Gary Kent Cooner in this matter for which execution may
                issue if necessary.


       On appeal, the wife presents the following issues for review:

                      1. Whether the Trial Court abused its discretion in
               holding the mother guilty of criminal contempt.

                     2. Whether the Trial Court abused its discretion in its
               punishment of the mother.

                      3. Whether the Court abused its discretion in the
               award of attorneys fees to the father.


       The husband repeats the issues of the wife in reverse form and adds an allegation of

frivolous appeal.

                                                I.

                                           First Issue

                                  CRIMINAL CONTEMPT

       It is clear from the above quoted November 12, 1996, order of the Trial Court that the basis

of the finding of contempt included:

                      From September 2, 1996, to September 7, 1996, the
               wife violated the previous orders of the Trial Court by
               depriving the father of the lawful custody of his child.


       The “previous orders” included:

               (a) The above quoted agreed order entered on February 1,
               1994, which recognized the transfer of custody to the father
               by the parties who promised to file an order to this effect.

               (b) The above quoted temporary restraining order entered
               on September 6, 1996, which was, in effect, a mandatory
               order of custody which was disobeyed.




                                              - 6-
       The wife argues:

                       The defendant in a trial for criminal contempt has
               been held to have the right to notice of the specific
               proceedings against him and the right to defend. The
               Tennessee Rules of Criminal Procedure, Rule 42 (b) require
               that a criminal contempt be prosecuted on notice which,
               “shall state the time and place of hearing, allowing
               reasonable time for the preparation of the defense, and shall
               state the essential facts constituting the criminal contempt
               charged and to describe it as such.”

                       Also, in cases of criminal contempt the defendant is
               entitled to all of the constitutional protections of any
               criminal defendant, including the presumption of innocence
               and the right to require that guilt be shown beyond a
               reasonable doubt. Storey vs Storey, 835 S.W.2d 593 (1992);
               Strunk vs Lewis Coal Co., 547 S.W.2d 252 (1976); Gompers
               vs Buck’s Store and Range Co., 221 U.S. 418, 444-446, 31
               S.Ct. 492, 499-500, 55 L.Ed. 797, 807-08 (1911).

       Surprisingly, the husband’s brief contains no response to this argument.



       The threshold issue in every appeal from a finding of contempt is whether the contempt is

civil or criminal. Jones v. Jones, Tenn. App. 1997, filed February 26, 1997. The answer turns on

the conduct involved and the sanctions imposed, not on the labels of “civil” or “criminal” affixed

by the parties or the trial court. Sherrod v. Wix, Tenn. Ct. App. 1992, 849 S.W.2d 780, 787. Making

the distinction is essential because doing so determines the procedure to be followed and the

constitutional protections to be afforded the alleged contemner. Storey v. Storey, Tenn. Ct. App.

1992, 835 S.W.2d 593, 599.



       The purpose of a civil contempt proceeding is to coerce the contemner to comply with a

court’s order, and is intended to benefit the party seeking the contempt order. State ex rel. Agee v.

Chapman, Tenn. Ct. App. 1995, 922 S.W.2d 516, 519. Civil contempt sanctions are open-ended

and terminate when the contemnor complies with the court order. The contemnor “carries the keys

to the jail in his or her own pocket.” State ex rel. Anderson v. Daughtrey, 137 Tenn. 125, 127, 191

S.W. 2d 974 (1917); Crabtree v. Crabtree, Tenn. Ct. App. 1986, 716 S.W.2d 923, 925.




                                               - 7-
          In this case, the trial court sentenced Ms. Cooner to one night in jail. There was no way that

Ms. Cooner could avoid the sentence imposed upon her, and the sentence does not benefit Mr.

Cooner. Thus, the purpose of Ms. Cooner’s imprisonment appears to be punitive and criminal in

nature.



          TRCP Rule 42 provides as follows:

                          Criminal Contempt. - (a) Summary Disposition. -
                 A criminal contempt may be punished summarily if the
                 judge certifies that he or she saw or heard the conduct
                 constituting the contempt and that it was committed in the
                 actual presence of the court. The order of contempt shall
                 recite the facts and shall be signed by the judge and entered
                 of record.

                          (b) Disposition upon Notice and Hearing. - A
                 criminal contempt except as provided in subdivision (a) of
                 this rule shall be prosecuted on notice. The notice shall state
                 the time and place of hearing, allowing a reasonable time for
                 the preparation of the defense, and shall state the essential
                 facts constituting the criminal contempt charged and describe
                 it as such. The notice shall be given orally by the judge in
                 open court in the presence of the defendant or, on application
                 of the district attorney general or of an attorney appointed by
                 the court for that purpose, by an order to show cause or an
                 order of arrest. The defendant is entitled to admission to bail
                 as provided in these rules. If the contempt charged involves
                 disrespect to or criticism of a judge, that judge is disqualified
                 from presiding at the hearing except with the defendant’s
                 consent. Upon a verdict of finding of guilt the court shall
                 enter an order fixing the punishment.


          Here the criminal contempt was indirect, as Ms. Cooner’s acts were committed outside the

court’s presence. Thus, the Circuit Court could only impose punishment for indirect criminal

contempt after providing the notice required by Tenn.R.Crim.P. 42(b).



          In Gompers v. Buck’s Stove & Range Company, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed 797

(1911), the U.S. Supreme Court reversed an order of imprisonment for contempt on other grounds,

but said:

                  Without deciding what may be the rule in civil contempt, it
                  is certain that in proceedings for criminal contempt the

                                              - 8-
               defendant is presumed to be innocent, he must be proved to
               be guilty beyond a reasonable doubt, and cannot be
               compelled to testify against himself.


       In Storey v. Storey, Tenn. App. 1992, 835 S.W.2d 593, a sentence to the workhouse was

reversed for failure to afford proper notice to the defendant of the nature of the contempt with which

he was charged.



       In Strunk v. Lewis Coal Co., Tenn. App. 1976, 547 S.W.2d 252, an incarceration for

criminal contempt was reversed because the Trial Court failed to follow the requirement of proof

of guilt beyond a reasonable doubt.



       In the present case, the record contains the petition for contempt which was evidently served

upon the wife, for she filed a response denying that her actions/omissions constituted contempt.

Otherwise, the record is silent as to the other elements of due process.



       The transcript of the October 31, 1996 hearing is a melange of informal procedure. First,

there are 10 pages of statements of fact by counsel. Then, there is are 4 pages of testimony of the

wife under questioning by both counsel and the Trial Judge. Finally, there are two pages of

colloquy between the Trial Judge and Counsel regarding the punishment to be imposed.



       In the present case, the accused wife filed an answer to the petition for contempt admitting

her failure to promptly comply with the peremptory order of the Trial Court to deliver possession

of the child to the father, but, offering excuses for her failure to do so. The answer made no demand

for due process or complaint of denial of due process.



       Criminal contempt proceedings are intended to vindicate the authority of the courts by

punishing persons who willfully disobey lawful court orders. State ex rel. Agee v. Chapman, 922

S.W.2d 516, 519 (Tenn. Ct. App. 1995); Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App.

                                                - 9-
1993). In order to warrant a judgment of criminal contempt, the conduct must be specifically

contrary to a court order, and the conduct must be willful or intentional. This record contains no

indication that an order had ever been entered specifically directing Ms. Stephens not to accompany

her son into Mr. Cooner’s house without his presence or permission. Accordingly, notwithstanding

how inappropriate or unwise Ms. Stephens’s conduct might have been, it cannot support a judgment

of criminal contempt.



       Ms. Stephens could conceivably have violated the trial court’s September 6, 1996 order

directing her to return the parties’ son to Mr. Cooner and to refrain from interfering with Mr.

Cooner’s custody rights. However, it is unlikely that this order could have been the basis for a

petition for contempt filed contemporaneously with the order itself. Thus, the trial court’s criminal

contempt judgment cannot stand if it was based on Ms. Stephens’s violation of the September 6,

1996 order. Ms. Stephens received no notice that she was being accused of violating the September

6, 1996 order, and of equal importance, Mr. Cooner failed to prove beyond a reasonable doubt that

Ms. Stephens did not comply with this order.



       Civil and criminal contempt proceedings should not be tried simultaneously because of the

significant differences in the respective burdens of proof and procedural rights accorded to the

person accused of contempt. Proceedings of indirect criminal contempt cannot be commenced

without the notice required by Tenn. R. Crim. P. 42(b). Giving this notice at an early stage

eliminates any possible confusion concerning the nature of the proceeding and better enables the

alleged contemner to invoke his or her procedural rights. Jones v. Jones, App. No. 01A01-9607-

CV-00346, 1997 WL 80029, at *3 (Tenn. Ct. App. Feb. 26, 1997) (No Tenn. R. App. P. 11

application filed).



        Appellate courts review the substance of contempt judgments using the “abuse of

discretion” standard of review. Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993). Trial courts


                                              - 10-
must comply strictly with the absolute provisions of the law. Robinson v. Air Draulics Eng’g. Co.,

214 Tenn. 30, 37, 377 S.W.2d 908, 912 (1964). Strict oversight of the procedure employed by trial

courts is necessary to ensure that courts wield their broad contempt power in accordance with the

rule of law and the requirements of procedural fairness. Sanders v. Sanders, App. No. 01A01-9601-

GS-00021, 1997 WL 15228, at *3 (Tenn. Ct. App. Jan. 17, 1997) (No Tenn. R. App. P. 11

application filed).



        The procedure employed by the trial court in this case was fundamentally flawed because

of the lack of notice required by Tenn. R. Crim. P. 42(b) and because the trial court was apparently

attempting to consider Mr. Cooner’s petitions for criminal contempt and for civil contempt

simultaneously. Even though Ms. Stephens did not frame the issue precisely in these terms, we

should take it up in order to prevent prejudice to the judicial process and because the procedural

oversight involved substantial rights and more likely than not affected the outcome of the

proceeding.



        The substantive and procedural flaws in this contempt proceedings cannot be remedied by

vacating the contempt judgment and remanding the case for retrial. We reverse the judgment of

contempt and remand the case to the trial court with directions to dismiss Mr. Cooner’s petition to

hold Ms. Stephens in contempt.



        Trial courts may award attorneys fees in proceedings to enforce child support decrees or in

proceedings involving the custody or change of custody of children. Tenn. Code Ann. § 36-5-

103(c) (1996). However, this was not such a proceeding. Criminal contempt proceedings, unlike

civil contempt proceedings, are for the benefit of the court not for the benefit of the parties. State

ex rel. Agee v. Chapman, 922 S.W.2d at 519. Accordingly, in the absence of a statute or rule

enabling prevailing parties in criminal contempt proceedings to recover their attorney’s fees, this

Court holds that the trial court did not have authority to order Ms. Stephens to pay Mr. Cooner for


                                               - 11-
the legal expenses he incurred to pursue his criminal contempt petition.



       In the absence of contrary authority, this Court holds that during the entire judicial process

which produces an incarceration, the due process is open to question and review; so that, even

without prior complaint, the question of due process is open for review, even on appeal. Also, this

Court holds that whenever the question is raised, the Court has an affirmative duty to inquire into

the question unrestrained by the niceties of burden of proof, and to determine from an independent

review of all circumstances whether due process was accorded to the accused.



       Pertinent portions of the transcript are:

                       MS. FONTECCHIO: I may be able to make real
               short work of this case. It’s about a mile long. We are here
               today --- my client has had simple custody of the child,
               Jason, since the order of this Court that was entered on the
               6th day of June, 1994.

                       On Labor day weekend this year, September of 1996,
               the child was spending the weekend with his mother. Mr.
               Cooner came home and discovered that the child and all of
               his belongings, including furniture from the child’s room
               which didn’t even belong to the child, was gone. Mr.
               Cooner talked with Mrs. Stevens, learned that she, her
               current husband and the child had come to Mr. Cooner’s
               residence. The child had let them into the house. They
               packed up all of the child’s belongings, including
               furnishings, and took the child and all of his belongings to
               Mrs. Cooner’s (sic) home with no court order, no nothing.


                       Now, they are -- in addition to which, while they
               were in the home, the child went to another part of the house,
               which was not in his room, opened a locked file cabinet,
               removed from that locked file cabinet certain personal items
               of Mr. Cooner’s, showed them to his mother. She knew that
               he had gone into this locked file cabinet and gotten them.
               She let him do it, and then that night when Mr. Cooner met
               with her at a restaurant to confront her with this behavior,
               she -- her response was, basically that the child was old
               enough to decide where he liked.

                      Now, she’s filed an answer in which she has basically
               admitted everything that happened on that weekend. She
               said she did not go through Mr. Cooner’s personal
               belongings, but she doesn’t deny that she knew that Jason

                                          - 12-
did and allowed him to do it. And her justification for it is,
Your Honor, she has alleged that these personal belongings
consisted of some pornographic pictures and some old drug
paraphernalia, small marijuana paraphernalia and some
marijuana seeds. The fact of the matter is, Your Honor,
whether or not -- and they have also filed a petition for
change of custody.

        Now, it’s our position that the issue of the -- if there
was marijuana or if there wasn’t marijuana, may need to be
tried in the custody, but that didn’t give her justification.
This -- whatever was there was in a locked file cabinet. It
was not in the possession of the child. It wasn’t in the
child’s room. It wasn’t shown to the child, and Mrs. Cooner
-- excuse me, Mrs. Stevens had no business bringing her
current husband into Mr. Cooner’s house loading all the
property, including furniture that belonged to Mr. Cooner, on
a truck and taking it to their house; that she’s in willful
contempt of the Court’s orders and should be punished
accordingly. And she’s admitted it.

        THE COURT: Well, where’s the child living now?

        MS. FONTECCHIO: With Mr. Cooner.

        THE COURT: Okay.

       MS. FONTECCHIO: We got a restraining order
from Your Honor to give the child and his furnishings back,
and that was when --

        MR. DeMARCO: She voluntarily relinquished the
child, Your Honor.

        THE COURT: All right. Did he get all of the
furniture and everything back?

        MR. DeMARCO: I don’t know that he did.

      (Whereupon, Ms. Fontecchio questioned Mr.
Cooner.)

        MR. DeMARCO: Yes, Your Honor. The divorce
was back in 1983. Mrs. Cooner got custody of the child at
a very young age. This is a case where contempt were filed
by her against him for not paying child support. He served
90 days one time, 10 days another time.

       Two and a half years ago, maybe three -- close to
three years ago, he went to go live with his father. She
agreed. He’s been living with his father since that time.
There was an incident Labor Day, as Ms. Fontecchio stated.
The child found marijuana there, found not only
pornographic pictures, but there were pictures of Mr. Cooner

                            - 13-
engaged with sexual relations with his girlfriends.

       THE COURT: Well, but did he have it in a locked
cabinet?

         MR. DeMARCO: Well, the lock, it was broke. It
was one of these cabinets, according to the boy as I
understand it, you just pull open. It was locked, but you just
pull it open.

        THE COURT: Well, what is it she admits here?

        MR. DeMARCO: She admits that she went over
there to help her son to move to her house. She kept him
beyond the period of time, which I guess as far as the
contempt goes, the violation of the Court order, it would be
the fact that she kept the child beyond the usual visitation
time.

        THE COURT: Well, were there any criminal charges
for her entering his house and taking his property?

        MR. DeMARCO: No, Your Honor.

        THE COURT: Okay. Well, she’s lucky that he
didn’t have her arrested for that. All right. Is she going to
admit this contempt?

        MR. DeMARCO: She admits she had went over
there and did that and kept him -- well, as far as keeping him
beyond the time, she admits that. I don’t think it’s a --

        THE COURT: What do you want me to do about
this?

        MS. FONTECCHIO: Your Honor, --

         MR. DeMARCO: She admits she went over there,
and we’ve got a petition for contempt on her change of
custody, which I don’t want to try today. Your Honor won’t
let us try it today but --

      THE COURT: What do you want me to do with her?
She admits her contempt.

        MS. FONTECCHIO: Your Honor, we want her
sentenced to jail for ten days for her contempt. We believe
she’s in willful contempt of the orders of the Court. And I
have to tell you, Your Honor, she did not voluntarily return
the child. September 30th, we filed this petition for
contempt and got a restraining order; and, it was pursuant to
the restraining order on -- sometime after September 30th.
I’m not sure if it was the first or the second of October that
it was actually served on her.

                           - 14-
      THE COURT: But do y’all want me to try this, or do
you want me to pronounce the sentence?

       MS. FONTECCHIO: I want -- there’s no factual
dispute, Your Honor. She’s admitted it.

      THE COURT: Do you want me to hear her reasons
why she did this, or do you want me to just deal with the
contempt?

        MR. DeMARCO: I would like you to hear her.
There’s one other extenuating circumstance. I would like to
put her on, Your Honor.

      THE COURT: All right. Take the stand, please,
ma’am.

       PAULA R. STEVENS,
having been first duly sworn, testified as follows:

      Q. You recognize you should not have gone into Mr.
Cooner’s house uninvited?

        A. At the time, I didn’t feel that, given what Jason
had found, that Mr. Cooner would -- would try to force him
to stay there knowing that he wanted to move over,
particularly given the fact that I voluntarily let him move
over to his father’s.

       THE COURT: You kind of need to answer his
question.

BY MR. DeMARCO:

      Q. Okay. You recognize you shouldn’t have done it.
Okay. What was your reasoning for going over there?

        THE WITNESS: At the time I did it, I didn’t feel that
it was going to be a problem. I felt that Mr. Cooner would
honor Jason’s desires to move over there, particularly given
the incriminating things that were found there.

       THE COURT: Well, from what you’re telling me
you found, they’re not particularly incriminating.

      Q. Anyway, did you have a conversation with Mr.
Cooner the evening of, I believe, Labor Day evening?

        A. Right. We met that afternoon and discussed the
situation, discussed what he found and discussed Jason’s
desire to move back home. Mr. Cooner, at the end of the
conversation, told Jason, “Okay --

       MS. FONTECCHIO: Objection..

                          - 15-
                      THE WITNESS: -- I don’t want you to just think
               about this overnight. I want you to think about it for a
               couple of weeks, and then, in a couple of weeks we’ll talk,”
               and we left it at that.

               BY MR. DeMARCO:

                      Q. What was your understanding at that point?

                     A. I felt that he had given us permission to do that.
               That when he said we’ll talk about it in two weeks.

                      Q. And then what happened?

                       A. And then on that next Friday, that was Monday --
               no, it was Saturday, the sheriff came over with the
               restraining order, and we had to move all of his stuff back.

               CROSS-EXAMINATION BY MS. FONTECCHIO:

                       Q. Mrs. Stevens, the conversation you had with Mr.
               Cooner was after the fact, after you had already gone to his
               home, moved Jason, all the belongings, including the
               furniture, to your home; isn’t that correct?

                      A. Jason was apprehensive about how his father was
               going to react, so that’s correct.

                      Q. So Mr. Cooner didn’t give his consent before you
               went into his home and moved his furniture out of his house?

                      A. No.

                       THE COURT: All right. Mrs. Stevens, you’re not at
               liberty to disobey any court order, and clearly your actions
               were really quite shocking and uncalled for. I have no
               alternative but to find you in willful criminal contempt of the
               orders of this Court. I’m going to sentence you to a night in
               jail. You violate these orders again, and you’ll do much
               more time.


       The state of the record presents several issues of law -

       First, where a person accused of criminal contempt files an answer to the petition for

contempt and appears for trial with counsel who presents no demand for due process , is the issue

of due process waived?



       This Court is convinced that the constitutional right of due process requires that the


                                              - 16-
sentence in the present case be vacated and that the cause be remanded with direction to dismiss the

petition for criminal contempt.



       Mr. Cooner requests damages for a frivolous appeal under Tenn. Code Ann. § 27-1-122

(1980). Since Ms. Stephens was partially successful on appeal, this appeal is not frivolous, and Mr.

Cooner is not entitled to Tenn. Code Ann. § 27-1-122 damages. See Pittman v. Lasco Indus., Inc.,

908 S.W.2d 932, 937 (Tenn. 1995).



       The plaintiff/mother requests that she be relieved of paying part of the father’s attorneys fees

and, instead, requests this Court to require the father to pay all or part of her legal expenses in the

Trial Court and on appeal. In the absence of a statute on rule enabling the prevailing parties in

criminal contempt cases to recover their attorney’s fees, this Court holds that this Trial Court did

not have the authority to order Ms. Stephens to pay Mr. Cooner for the legal expenses he incurred

in prosecuting his petition for criminal contempt.



        The judgment of criminal contempt and sentence therefor is reversed and vacated. The

cause is remanded for retrial under the strict requirements of due process. Costs of this appeal are

taxed against the petitioner/husband.



                                  REVERSED, VACATED AND REMANDED



                                                       ___________________________________
                                                       HENRY F. TODD
                                                       PRESIDING JUDGE, MIDDLE SECTION


CONCURS:


________________________________
WILLIAM B. CAIN, SPECIAL JUDGE




                                               - 17-
DISSENT IN SEPARATE OPINION
WILLIAM C. KOCH, JR., JUDGE




                              - 18-
