                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      August 8, 2001 Session

    THERESA ANN SAPP STAPLES v. RICHARD CHARLES STAPLES

                        Appeal from the Circuit Court for Sumner County
                               No. 18454-C    C. L. Rogers, Judge



                     No. M2000-02838-COA-R3-CV - Filed October 5, 2001


This is a post-judgment domestic relations case. The principal alleged issue is whether a non-
custodial parent may be judicially coerced to exercise visitation privileges. The appealed Order is
not imperative and the asserted issue is not a genuine one. Because the judgment is marginally
ambiguous we modify it to incorporate a measure of fairness.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                   Affirmed as Modified

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J. M.S.
and WILLIAM C. KOCH , JR., J., joined.

Bruce N. Oldham and Sue Hynds Dunning, Gallatin, Tennessee, for the appellant, Richard Charles
Staples.

Curtis M. Lincoln, Hendersonville, Tennessee, for the appellee, Theresa Ann Sapp Staples.

                                                OPINION

                                                     I.

         These parties were divorced August 9, 1999. Their Marital Dissolution Agreement [MDA]
was approved. It provided that Wife will have the exclusive care, custody and control of their minor
daughter, and that Husband shall have visitation with the daughter every other weekend from 5:00
p.m. on Friday until 6:00 p.m. on Sunday provided that if for any reason he should not exercise that
visitation, he will pay the cost of a baby sitter.

        On February 1, 2000, wife filed a petition for contempt, alleging that “recently with almost
no notice to the plaintiff . . . defendant refused to pick up the child. . . . knowing that the plaintiff had
made plans of her own . . .” She alleged that she was required to cancel her plans or pay a sitter,
which she was unable to do.
       The petition sought enforcement of the final decree, and, alternatively, that the decree be
amended to provide that if the defendant fails to visit daughter he will reimburse the plaintiff for
baby-sitting services at the rate of $7.00 per hour.1

       Husband responded to the petition stating, by verified answer, that on one occasion he
appeared at Wife’s residence to take daughter for weekend visitation and Wife, in an angry and ugly
manner began to berate him over a girl friend. He left without taking daughter.

        The petition was heard September 20, 2000. The court declined to treat it as one for
contempt, but considered only the alternative relief requested. After noting that daughter is 17 years
old, and severely handicapped, the trial judge found

                  [t]he father SHALL exercise his visitation every other weekend as set
                  forth in the Final Order. Further, if he cannot do so personally, he
                  shall make arrangements for and to assure that an appropriate sitter
                  is provided for the child at his costs. [Emphasis supplied].

                                                           II.

        Husband appeals and presents for review these issues: (1) whether a non-custodial parent can
be affirmatively ordered and mandated to exercise visitation with a disabled child; and (2) whether
the Petition for Contempt may be treated as a request for modification of the final decree. Review
is de novo on the record with a presumption of correctness unless the evidence preponderates against
the judgment. Rule 13(d) T.R.A.P.

                                                          III.

        We do not interpret the judgment entered pursuant to the hearing on the Petition for
Contempt as starkly coercing Husband to visit his daughter as ordered, with no exceptions. The use
of the mandatory word “shall,” (pejoratively spelled in upper case letters) might, standing alone, be
considered as judicial coercion, but the succeeding sentence is explanatory and ameliorates the
concern of Husband.

         The judgment is not without its ambiguities, but the record as a whole tends to indicate that
the trial judge, and, for that matter, the parties themselves, intended to afford Wife a respite from her
clearly arduous responsibility for the afflicted child by requiring Husband to take actual physical
custody of the child during his scheduled visitations. The record reveals that on occasion and for
a valid reason, Husband might be unable to take actual physical custody of his daughter during his
visitation, in which event he must make arrangements for a competent care-giver, at his expense and
in a timely manner. It does not comport with fairness to onerate wife with the burden of making
these arrangements; hence, the judgment will be modified to provide clearly that it is the duty and


        1
            This alternative relief is not very different from the provision of the MDA respecting visitation.

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responsibility of Husband to provide, at his expense and in a timely manner, a competent surrogate
care-giver for his daughter whenever he cannot for good reason exercise the ordered visitation.

         As previously noted, we believe basic fairness requires Husband to provide a competent care-
giver, at his expense, and in a timely manner, whenever he cannot exercise his scheduled visitation.
This obligation replaces Husband’s prerogative of “paying wife $7.00 per hour for the services of
a sitter whenever he does not exercise visitation,” which affords Wife little respite.

                                                 IV.

         The second issue is de minimis. Husband complains that the petition for contempt was
unacceptably treated as a petition to modify the final decree, thus, giving him no notice of any
sought-after modification. We note that the style of the petition for contempt is a misnomer, because
nowhere does the petition allege contemptuous conduct or seek the imposition of sanctions against
the Husband. Rather, the petition seeks only to have the original decree enforced, and, alternatively,
that Husband pay Wife $7.00 per hour for the services of a sitter when he does not exercise
visitation. Husband clearly understood the issue for trial as evidenced by his testimony.

       The judgment as modified is affirmed at the costs of the appellant, Richard Charles Staples,
and the case is remanded for all appropriate purposes.



                                                       ___________________________________
                                                       WILLIAM H. INMAN, SENIOR JUDGE




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