                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                           Assigned on Briefs February 28, 2005

       RHONDA (QUALLS) NEWMAN v. GARY RONALD NEWMAN

               An Appeal from the General Sessions Court for Hardin County
                            No. 5014   Daniel L. Smith, Judge



                      No. W2004-01192-COA-R3-CV - Filed July 11, 2005


This appeal involves a charge of civil contempt. The plaintiff wife and defendant husband were
divorced by final decree entered in May 2001. In the final decree, the husband was ordered to pay
the wife alimony in futuro as well as marital debts. He did not do so. In December 2003, the wife
filed a petition in the trial court, seeking to hold the husband in contempt as well as an award of the
alimony arrearage. The wife gave the husband notice of the contempt proceedings by mailing a copy
of the petition and notice of hearing to the husband’s counsel of record. At the hearing, the
husband’s counsel moved to dismiss the petition for contempt, arguing that the husband had not
received proper notice of the hearing. This motion was denied, and the husband was held in
contempt of court and ordered jailed until the contempt was purged. The husband now appeals. We
affirm, concluding that the husband received sufficient notice of the petition for contempt.

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

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Gary Ronald Newman.

Ed Neal McDaniel, Savannah, Tennessee, for the appellee, Rhonda (Qualls) Newman.

                                             OPINION

        Plaintiff/Appellee Rhonda (Qualls) Newman (“Wife”) and Defendant/Appellant Gary Ronald
Newman (“Husband”) were married on February 15, 1974. On August 11, 2000, Wife filed a
petition in the trial court for a legal separation. This petition was later amended to seek a divorce.
On August 31, 2000, Wife filed a motion for a temporary restraining order (“TRO”) to enjoin
Husband from disposing of the parties’ property. The TRO was granted on the same day.
Meanwhile, Husband did not file a response to Wife’s petition for divorce. On September 20, 2000,
Wife filed a motion for default judgment. On September 29, 2000, Husband filed an answer to
Wife’s complaint and a counterclaim for divorce. Husband also filed a motion to quash the TRO.
         On October 13, 2000, Wife filed a motion for temporary support.1 On November 28, 2000,
the trial court entered an order granting Wife’s motion for temporary support and ordering Husband
to pay her $461.54 per week beginning November 10, 2000. Husband was also ordered to pay some
of the parties’ expenses.

       On December 1, 2000, Wife filed a petition for contempt, asserting that Husband had failed
to comply with the trial court’s order to pay support. On December 7, 2000, the trial court held a
hearing on the contempt petition. On December 18, 2000, the trial court entered an order finding
that Husband was in contempt of court, ordering him to pay an arrearage of $1,846 plus $300 in
attorney’s fees, and issuing an additional TRO prohibiting Husband from disposing of the parties’
property. On February 22, 2001, Husband’s attorney filed a motion to withdraw as counsel, which
was granted on March 29, 2001.

         On April 4, 2001, a notice of hearing in the divorce proceedings was mailed to Husband at
his last known address. This notice stated that the parties’ divorce petitions would be heard on May
10, 2001.

        On May 10, 2001, the trial court conducted the scheduled hearing. The appellate record does
not include a transcript of that hearing. Apparently, Husband did not appear at the hearing. On June
1, 2001, pursuant to the May 10 hearing, the trial court entered a final decree granting Wife a
divorce. The final decree ordered Husband to pay Wife, among other things, alimony in futuro of
$2,000 per month and attorney’s fees of $1,500.

         Husband did not make any of the payments ordered in the May 29, 2001 order. Instead, on
July 25, 2002, Husband (represented by new counsel) filed a separate lawsuit to set aside the final
decree of divorce pursuant to Rule 60.02(3) of the Tennessee Rules of Civil Procedure. The
appellate record does not include the resolution of the separate lawsuit. However, since this appeal
is of the original divorce action, the resolution of Husband’s separate lawsuit is not before us in this
appeal.2

        Meanwhile, in the original divorce action, on December 17, 2003, Wife filed another petition
for contempt of court. This second contempt petition again sought to have Husband held in
contempt for his disobedience of the terms in the final decree of divorce, particularly the provision
requiring him to pay alimony. The certificate of service on the contempt petition reflects that a copy
of it was mailed to Husband’s attorney on the same day. Attached to the petition for contempt was
a notice of hearing, indicating that the petition for contempt would be presented to the trial court on
January 22, 2004.



         1
             Apparently, Wife suffers from multiple sclerosis and is confined to a wheelchair.

         2
          A later order entered by the trial court ind icates that Husband filed a vo luntary no nsuit in this sep arate
proceed ing, and the actio n was d ismissed .

                                                           -2-
        No hearing was conducted on January 22, 2004. The hearing on Wife’s second contempt
petition was held on March 18, 2004. The record on appeal does not include a transcript of that
hearing. On the morning of the hearing, Husband filed a response to Wife’s petition for contempt.
In his response, Husband alleged that he was not effectively served with the petition for contempt
and that, therefore, the petition should be dismissed with prejudice. Wife appeared at the hearing
and testified under oath. Husband’s attorney appeared at the hearing, but Husband was apparently
absent.

       On April 1, 2004, the trial court entered an order finding Husband in contempt of court and
ordering him to pay accrued back support of $78,000, as well as other marital debts as ordered in the
divorce decree. The order provided that Husband was to be “incarcerated until he purges said
contempt.”3 From that order, Husband now appeals, arguing that the trial court erred in not
dismissing the contempt petition based on lack of proper notice of the contempt hearing.

        On appeal, the trial court’s findings of fact are reviewed de novo, with a presumption that
those findings are correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d).
Questions of law are reviewed de novo, with no such presumption of correctness. Jahn v. Jahn, 932
S.W.2d 939, 941 (Tenn. Ct. App. 1996). “[A] trial court’s use of its contempt power is
discretionary, and an appellate court will review a trial court’s contempt citation using the abuse of
discretion standard.” Walker v. Walker, No. M2002-02786-COA-R3-CV, 2005 WL 229847, at *3
(Tenn. Ct. App. Jan. 28, 2005) (citation omitted). “A trial court abuses its discretion only when it
‘applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that
cause[s] an injustice to the party complaining.’ ” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

        Husband argues on appeal that mailing his attorney a copy of the contempt petition and the
notice of hearing was not sufficient notice of the contempt proceedings. He claims that a petition
for contempt “is a separate and distinct action which requires that it be issued by the Clerk along
with a Summons and the Complaint and Summons be served on the Respondent” under Rule 4 of
the Tennessee Rules of Civil Procedure. Rule 4.02 requires that “[T]he summons shall be issued in
the name of the State of Tennessee, be dated and signed by the Clerk, contain the name of the court
and county, the title of the action, and the file number. The summons shall be directed to the
defendant, [and] shall state the time within which these rules require the defendant to appear and
defend . . . .” Tenn. R. Civ. P. 4.02 (emphasis added). Because he was not served with a summons,
and because the contempt petition was not served on him personally as set forth in Rule 4.02,
Husband argues, he was not properly served with notice of the contempt petition. In response, Wife
argues that the only notice requirement for a civil contempt proceeding is that the accused have
notice that, on a day certain, he will be required to show cause why he should not be held in
contempt.




       3
           The record does not reflect whether Husband was, in fact, incarcerated.

                                                         -3-
        For a petition for criminal contempt, notification must be given in accordance with Rule 42
of the Tennessee Rules of Criminal Procedure, under which the notice given to the accused must
“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.”
Tenn. R. Crim. P. 42(b). For civil contempt, as in the instant case, there is no corresponding rule in
the Tennessee Rules of Civil Procedure that is explicitly applicable. Husband cites no authority, in
statutes or case law, for his argument that the requirements of Rule 4 apply to a petition for civil
contempt under these circumstances. To the contrary, case law indicates that, for a petition for civil
contempt, the respondent need only be notified of the allegations against him and be given an
opportunity to respond to those allegations. See Pickern v. Pickern, No. E2004-02038-COA-R3-
CV, 2005 WL 711964, at *7 (Tenn. Ct. App. Mar. 29, 2005) (reversing a finding of contempt when
the petitioner did not file a petition for contempt with the court or otherwise give notice to the
accused that she intended to seek to hold him in contempt); Black v. Blount, 938 S.W.2d 394, 398
(Tenn.1996) (stating that, with respect to a petition for indirect civil contempt, an accused “may be
punished only after the accused has been given notice and an opportunity to respond to the charges
at a hearing”). Moreover, Rule 5.01 of the Tennessee Rules of Civil Procedure provides that written
notices and other post-complaint filings shall be served on the parties. Rule 5.02 clarifies that
wherever service is required to be made on a party who has an attorney of record, “services shall be
made upon the attorney” unless the trial court orders otherwise. The Rule further states that such
service can be effected through regular United States mail. See Tenn. R. Civ. P. 5.02; see generally
H. D. Warren, Annotation, Sufficiency of Notice to, or Service Upon, Contemnor’s Attorney in Civil
Contempt Proceedings, 60 A.L.R.2d 1244 (1958).

        In the case at bar, the record indicates that Husband was served with the petition for civil
contempt and a notice of a January 22, 2004 hearing by mailing copies of those documents to
Husband’s attorney by regular United States Mail on the same day that the petition for contempt was
filed with the trial court.4 There is nothing in the record to indicate that Husband’s counsel did not
actually receive those documents. Therefore, Husband, through his counsel, was given notice of the
contempt petition, and he had ample opportunity to respond to the petition at the hearing on March
18, 2004. Under these circumstances, we find that the trial court did not err in declining to dismiss
the contempt petition for lack of proper notice to Husband.

      The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant Gary
Ronald Newman, and his surety, for which execution may issue, if necessary.




                                                             ___________________________________
                                                             HOLLY M. KIRBY, JUDGE


        4
          The record does not reflect why the hearing date was changed from January 22, 2004, until March 18, 2004,
but neither party claims to have been unaware of the change in the hearing date.

                                                       -4-
