                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                        Assigned on Briefs December 18, 2009

                        WALTER JESSEE BRUMIT v.
                     STEFANIE LYNNE BRUMIT DURHAM

                Appeal from the Chancery Court for Greene County
              No. 93-10   Billy Joe White, Chancellor, by Interchange


                No. E2009-01017-COA-R3-CV - Filed February 3, 2010


Walter Jessee Brumit (“Husband”) and Stefanie Lynne Brumit Durham (“Wife”) were
divorced in 1993. The parties had one minor child, and Husband was ordered to pay $1,500
per month in child support. From that $1,500, Wife was ordered to place $300 each month
into an educational trust account for the child’s benefit. Husband also was required to match
that $300 payment. In 2008, Husband filed a motion for contempt. According to Husband,
Wife was $6,600 behind in the payments she was required to make into the child’s trust
account. Wife responded to the motion and admitted that she had fallen $6,600 behind in
payments. Wife claimed, however, that she was behind because of financial problems, even
though she was caught up by the time she filed her response to the motion. Before any
hearing took place, the Trial Court sua sponte accepted Wife’s excuse as to the reason she
was behind in the payments, determined that Husband’s motives for filing the motion for
contempt were improper, and dismissed the motion in its entirety, taxing the costs to
Husband. Husband appeals. We vacate the Trial Court’s judgment and remand this case for
a hearing on the merits of Husband’s motion for contempt. We also agree with Husband that
a new trial judge should be assigned to this case.


                Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                      Chancery Court Vacated; Case Remanded


D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.

G.P. Gaby, Greeneville, Tennessee, for the Appellant, Walter Jessee Brumit.

No appearance by, or on behalf of, the Appellee, Stefanie Lynne Brumit Durham.
                                        OPINION

                                       Background

              The parties were married in 1988, and Wife filed for divorce in 1993. The
parties have a daughter who was born in November of 1989. As part of the divorce, the
parties submitted a marital dissolution agreement which was approved and ratified by the
Trial Court. The final judgment entered by the Trial Court in November 1993 contained the
following requirement:

                      Support. Husband agrees to pay directly to Wife the
              sum of One Thousand Five Hundred Dollars ($1,500.00) per
              month for the support of the parties’ minor child, said amount to
              be paid until the child attains the age of eighteen (18) years or
              graduates with her normal high school class, whichever shall
              occur last. Husband agrees to make each support payment on or
              before the 1st day of each month. Wife agrees to deposit Three
              Hundred Dollars ($300.00) per month of Husband’s support
              obligation into a trust fund for the minor child. Husband agrees
              that at the end of each calendar year to deposit a sum equal to
              the total amount deposited by Wife into the trust fund. . . .

               After the parties were divorced, they continued to disagree on almost
everything and were in court many more times over the years. Both parties accused the other
of interfering with his or her relationship with the child and of contemptuous conduct. There
were several hearings over the years and one previous appeal which resulted in an opinion
filed by this Court in 1997.

             In 1995, the Trial Court entered an order finding Wife in contempt of court on
four counts. The order states:

                     The former wife is found guilty of four counts of
              contempt of Court. For each count, she is sentenced to serve ten
              days in jail, for an effective sentence of forty days. She shall
              further pay a fine in the amount of $50.00 per count, for a total
              fine of $200.00. Her service of the imposed jail sentence is
              stayed pending further Orders of this Court. Future findings of
              contempt by the former wife will result in the imposition of the
              forty day jail sentence, as well as sanctions for such future
              contempt.

                                             -2-
It does not appear that Wife appealed the four findings of contempt. The findings of
contempt were not an issue addressed in the 1997 opinion filed by this Court.

              The most recent activity began in August of 2008 when Husband filed a motion
seeking to have Wife held in contempt. The crux of Husband’s motion was that Wife had
failed to pay a total of $6,600 into the child’s trust account, per the requirements of the
original divorce judgment entered in 1993. According to Husband’s motion:

                     By former decrees of this Court, the first entered on
              November 12, 1993 . . . each party was required to pay the sum
              of $300 per month into the registry of this Court for the
              education of their child.

                     The movant has paid the entire amount required for him
              unto the registry of the Court.

                     The respondent has failed and refused to pay the total
              amount that she was ordered by the Court to pay. She has failed
              to pay the sum of $6,600.

                     By Order entered in this Court on May 9, 1995, the
              respondent was found guilty on four counts of contempt of court
              and on each she was sentenced to serve ten days in jail for an
              effective sentence of 40 days. The Court’s Order further
              provided that [the sentence would be suspended but] upon
              further finding of contempt she would be required to serve the
              40-day jail sentence as well as sanctioned by the Court for her
              subsequent actions. . . .

                     [Husband] is entitled to [the] entry of an Order of this
              Court requiring [Wife] to purge herself of contempt of court and
              pay the sum of $6,600 into the registry of the court for the
              education of their child. He is further entitled to have the Court
              enter an order remanding her to the common county jail of
              Greene County, Tennessee for the service of the sentence of 40
              days previously imposed upon her. (original paragraph
              numbering omitted)

             Husband later amended his motion to seek payment of his attorney fees
incurred in having to file the motion for contempt and further requesting that Wife be

                                             -3-
required to pay the interest that would have accrued into the trust account had Wife made
timely payments.

               Wife responded to the motion and acknowledged that she was behind in the
payments that she was required to make into the trust account for the parties’ child.
However, Wife claimed that she “was unable to pay the funds for a brief period of time due
to financial problems, however, said monies were paid on or about October 14, 2008 . . . .” 1
The remaining pertinent allegations contained in Husband’s motion were denied.2

              Without any hearing being held on Husband’s motion, the Trial Court sua
sponte entered an Order on April 30, 2009, dismissing Husband’s motion in its entirety. The
Order states:

                       It appears that [Husband] has filed a Motion asking that
                [Wife] be held in contempt of court for the late payment of
                $6,600.00 into an education fund for their daughter. This money
                has now been paid into Court and the failure was because of
                financial problems.

                       This has been a long and bitter controversy, and this
                Court views this Motion to be nothing but an attempt to
                embarrass and cause undue expense to [Wife]. The Court will
                accept the excuse of financial problems when money has been
                paid as soon as possible. This Court does not feel that a hearing
                is necessary and is merely an attempt to cause the [Wife] extra
                expense in a trip from Florida.

                       This Court, therefore, dismisses the Motion and assesses
                the costs concerning said Motion to [Husband].

               Husband appeals claiming the Trial Court erred when it dismissed his motion
for contempt without conducting a hearing on the merits of the motion. Husband also
requests that a new trial judge be assigned to this case.



        1
        There was no affidavit or any other type of proof submitted by Wife in support of her claim that she
was unable to make timely payments due to “financial problems.”
        2
         Although Wife was represented by counsel when her response to the motion for contempt was filed,
she currently is proceeding pro se, and she chose not to file a brief in this appeal.

                                                    -4-
                                          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).

               Although Husband’s motion for contempt does not state what type of contempt
he is seeking (i.e., civil or criminal), it appears he is seeking a finding of civil contempt. In
Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507 (Tenn. 2005), our
Supreme Court stated:

              A civil contempt action is generally brought to enforce private
              rights. See Robinson v. Air Draulics Eng’g Co., 214 Tenn. 30,
              377 S.W.2d 908, 912 (1964). . . .

              One may violate a court’s order by either refusing to perform an
              act mandated by the order or performing an act forbidden by the
              order. If the contemnor has refused to perform an act mandated
              by the court’s order and the contemnor has the ability to comply
              with the order at the time of the contempt hearing, the court may
              fine or imprison the contemnor until the act is performed. Tenn.
              Code Ann. § 29-9-104 (1980 & 2000); see Ahern, 15 S.W.3d at
              79. Thus, the contemnor possesses the “keys to the jail” and can
              purge the contempt through compliance with the court’s order.
              Id.

Overnite, 172 S.W.3d at 510-511.

              In the present case, there is no doubt that Wife was $6,600 behind in the
educational trust contributions that she was required to make pursuant to the initial court
order because Wife admits as much in her response. The issue is whether her failure to
comply with the court’s previous order was “willful” since only a willful failure to comply
with the order could be punished as contemptuous. See Tenn. Code Ann. § 29-9-102(3)
(2000).




                                               -5-
               Although Wife claimed in her response that she was having financial problems,
there is no proof in the record supporting (or opposing) that allegation since there was no
hearing. We conclude, without hesitation, that Husband was entitled to a hearing on the
merits as to whether Wife’s failure to comply with the court’s previous order was willful and,
if so, whether he is entitled to the relief sought in the motion. Of course, since Wife paid the
$6,600 that she was behind, she has used the proverbial keys to the jail and cannot be
imprisoned for not paying those funds. However, that does not mean that Husband is not
entitled to additional relief if Wife’s conduct was in fact contemptuous.

               Husband’s final request is that a new trial judge be assigned to this case. As
set forth previously, the trial judge currently assigned to this case sua sponte determined that
Husband’s motive for filing the motion was improper, even though Wife admitted that she
indeed was $6,600 behind in payments when the motion was filed. In addition, the Trial
Court summarily accepted Wife’s asserted excuse for being late without hearing any proof
whatsoever on that issue. Based on these facts, we agree with Husband that, on remand, it
is appropriate for a new trial judge to be assigned to this case.

                                         Conclusion

              The judgment of the Trial Court is vacated, and this cause is remanded to the
Trial Court for a hearing on Husband’s motion for contempt and for collection of the costs
below. On remand, a new trial judge is to be assigned to this case. Costs on appeal are
taxed to the Appellee, Stefanie Lynne Brumit Durham, for which execution may issue, if
necessary.




                                                    ________________________________
                                                    D. MICHAEL SWINEY, JUDGE




                                              -6-
