CONNIE LEWIS THOMASSON                )
(PAGE),                               )
                                      )
      Plaintiff/Appellee,             )   Appeal No.
                                      )   01-A-01-9706-CV-00273
v.                                    )
                                      )   Coffee Circuit
JOSEPH RICHARD THOMASSON,             )   No. 22,238
                                      )
      Defendant/Appellant.            )
                                      )            FILED
                                                     July 10, 1998
                  COURT OF APPEALS OF TENNESSEE
                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
     APPEAL FROM THE CIRCUIT COURT FOR COFFEE COUNTY

                     AT MANCHESTER, TENNESSEE


          THE HONORABLE GERALD L. EWELL, SR., JUDGE


W. DAVID KELLEY
Haynes, Hull, Rieder, & Ewell, P.A.
214 North Atlantic Street
Tullahoma, Tennessee 37388

RANDALL W. MORRISON
115 West Lincoln Street
P. O. Box 467
Tullahoma, Tennessee 37388
      ATTORNEYS FOR PLAINTIFF/APPELLEE


ROGER J. BEAN
MARK W. BELL
Henry, McCord, Bean &
 Miller, P.L.L.C.
300 North Jackson Street
P. O. Box 538
Tullahoma, Tennessee 37388
      ATTORNEYS FOR DEFENDANT/APPELLANT



                      REVERSED AND REMANDED



                                          WILLIAM B. CAIN, JUDGE
                                 OPINION
            Appellant Joseph Richard Thomasson, Jr. appeals a judgment of the
trial court holding him to be in criminal contempt for refusal to comply with
court ordered visitation relative to his two minor sons and his former wife,
appellee Connie Lewis Thomasson.


            Because of failure to comply with the safeguards of Rule 42(b) of the
Tennessee Rules of Criminal Procedure, the judgment of the trial court must be
reversed.


            The parties, formerly husband and wife, are the parents of Joseph
Richard Thomasson, now seventeen years of age, and Mark Lewis Thomasson,
now fifteen years of age.


            The parties were divorced December 21, 1988 under a court approved
Marital Dissolution Agreement whereby custody of the minor children was
vested in the appellee with respect to the school year, with two weekends per
month visitation of the children with appellant. This arrangement was reversed
in the summer months with appellant having physical custody of the minor
children and appellee having visitation every other weekend. The exchange of
the children was to take place in Waverly, Tennessee, which is approximately
halfway between the home of the appellee in Cordova, Tennessee, and the home
of the appellant in Tullahoma, Tennessee.


            In March of 1992, the court entered an order granting custody of the
two minor children to the appellant, Mrs. Page, with appellee, Dr. Thomasson
having the children during the summer. The court then returned custody to Mrs.
Page on January 1, 1993.


            For the summer of 1995 the children came to stay with their father for
summer visitation and Mrs. Page agreed to allow the children to remain with Dr.
Thomasson when school started in the fall of 1995. Dr. Thomasson refused to

                                        -2-
file a petition for change of custody, so Mrs. Page ultimately filed a petition
advising the court of the custody arrangement in November of 1995. One of the
purposes of filing this petition was to set up specific visitation privileges for Mrs.
Page.


          In July of 1996 this petition came on for hearing and resulted in an
agreed order entered July 17, 1996, containing in relevant part, the following
provisions:
                 1. Custody of the minor children, JOSEPH
          RICHARD THOMASSON AND MARK LEWIS
          THOMASSON, shall be vested jointly in the parties, with the
          primary physical custody being vested in the Respondent,
          JOSEPH RICHARD THOMASSON, JR.
                 2. During the vacation of the children from school
          in the summer, the children shall reside with the Petitioner,
          beginning the first Sunday evening after school is out. The
          Respondent shall have visitation the weekend of Father's Day
          in June and the first two (2) weeks in July. JOSEPH will be
          returned to the Respondent in time for band camp and
          MARK will be returned the              Sunday prior to the
          commencement of Petitioner's in-service.
                        During the school year, the Petitioner shall have
          visitation with the minor children every other weekend
          beginning the second weekend after Mark's return to the
          Respondent before the start of school. Visitation will com-
          mence on Friday afternoon at 7:30 p.m. until 5:00 p.m. on
          Sunday (6:00 p.m. if the children do not attend school the
          following Monday). All exchanges will continue to be made
          in Waverly, both during the school year and during the
          summer as the parties have previously done. Allowances
          shall be made for football games at which Joseph plays in the
          band either by commencing visitation for both children at
          10:00 a.m. on Saturday morning or by bringing Joseph to
          Waverly on Sunday at the time of the exchange when mark
          is returned so that Joseph may also visit with the Petitioner
          at that time.
                 3. The Petitioner shall have visitation from the time
          the children are out of school for Christmas vacation until
          6:00 p.m. on Christmas Day. The [c]hildren shall then be
          with the Respondent until they return to school.
                 4. The major holidays of Easter and Thanksgiving
          shall continue to be alternated. The Petitioner shall have the
          children for visitation on Mother's Day weekend. The
          holiday schedule will take precedence over the every other
          weekend visitation schedule. If a holiday weekend deprives
          either party of a regularly scheduled weekend, then that


                                         -3-
         person shall have visitation with the children the following
         weekend and every other weekend thereafter.



         On December 31, 1996, appellee filed her petition seeking to hold the
appellant in contempt for refusing to honor the visitation schedule set out in the
agreed order entered July 17, 1996.


          Appellant answered the petition for contempt by denying the
allegations thereof and on June 5, 1997 filed a counter-petition seeking
modification of the previous visitation schedule.        In this counter-petition
appellant alleged:
                 1. Counter-Petitioner adopts the history of this
          cause as outlined and described in the Petition as filed herein.
                 2. Your Counter-Petitioner would show that since
          the entering of the previous orders of this Court there has
          been a significant and substantial change of circumstance in
          that the parties' minor sons to wit: Joseph Richard
          Thomasson 16 years of age and Mark Lewis Thomasson 14
          years of age have established themselves in the "Tullahoma
          area," [sic] have acquired numerous friends and social
          relationships, are currently involved in school activities and
          otherwise and that it is not their desire, nor is it in their
          manifest best interest, to be required to spend almost all of
          their school vacation time during the summer months in
          Memphis, Tennessee with their mother, Counter-Respondent
          herein.
                 Your Counter-Petitioner would show that he in no way
          wishes nor desires to interfere with the visitation as
          previously ordered by this court and does not discourage
          visitation between the parties' minor sons and Counter-
          Respondent. In fact, your Counter-Petitioner would show
          that he encourages the parties' minor sons to visit with the
          Counter-Respondent but it is not their desire to spend almost
          all of their summer vacation with Counter-Respondent in
          Memphis, Tennessee.
                 3. Your Counter-Petitioner would show that the
          parties' minor sons have attempted, over the past several
          months, to contact Counter-Respondent and express their
          desire to Counter-Respondent of matters concerning
          visitation however, on more occasions than most, Counter-
          Respondent refuses to accept their telephone calls, facsimiles
          or e-mails. In fact, your Counter-Petitioner would show that
          the Counter-Respondent has had very little contact with the
          parties' minor sons over the past several months.
                 4. Your Counter-Petitioner would show that it

                                        -4-
         would be in the interest of justice and in the manifest best
         interest of the parties' minor sons (and the parties' minor sons
         ar[e] both desirous) and Counter-Petitioner so moves this
         Honorable Court to allow said minor sons of the parties to
         testify in the Court's chambers, or otherwise, to express their
         desires to the Court with absolutely no intention to offend
         either Counter-Petitioner or Counter-Respondent by
         expressing their desires toward visitation with Counter-
         Respondent.


         Both the petition and the counter-petition came on for hearing before
the trial court and resulted in an opinion and decree of June 20, 1997 whereby
the trial court held appellant to be in civil contempt of court, ordered him
confined to the Coffee County Jail for a period of ten days, and to pay a $50.00
fine with all but 48 hours of the ten day sentence being suspended, and the
appellant ordered to jail for a period of 48 hours, commencing June 27, 1997.
Appellant was also ordered to pay attorney's fees to counsel for the appellee.


         Reviewing the record leading up to the civil contempt finding of June
20, 1997, it is not difficult to understand why the learned trial judge took a dim
view of the conduct of the appellant during the eleven months that elapsed
between the agreed order of July 17, 1996 and the hearing in June 1997, which
resulted in the finding of civil contempt.


         The assertion by the appellant in his counter-petition of June 5, 1997
that: "Your counter-petitioner would show that he in no way wishes nor desires
to interfere with the visitation as previously ordered by this court and does not
discourage visitation between the parties' minor sons and counter-respondent,"
is an affront to the court and completely without support in the record.


          Far more revealing is the letter written by the appellant to the appellee
on October 4, 1996, over two months after the entry of the agreed order. In this
letter appellant attempts to obtain through condescension what he should have
obtained through judicial process. Says the appellant:
          . . . . We have tried to work this out and you continue to be
          difficult. This can not continue in this manner. The boys
          need to be able to have a real life. They have sent you their


                                        -5-
schedules and you persist in saying that their plans are
unimportant. Mark is part of the band program. You have
always known that he was in the band. Why is it so difficult
for you to accept that he is doing this?... Both boys would
like a better visitation situation. Every other weekend is not
going to work for them. They have never agreed with that.
I realize that you and I agreed to that schedule but they did
not and they do not want to be forced to cancel all of their
activities just to satisfy our agreement.
        They both have serious conflicts with every other
weekend. They say it is too far to go that often. They would
much prefer being able to have the freedom to be able to call
you up and plan visits to suit all of your needs. You have the
school schedule and they would like to be able to tell about
all of the other things they are doing. You could all then sit
down a[n]d plan visits that would be pleasant for all and they
would not feel "forced" to visit you.
        Flexibility should be applied to visits.... Let's face it,
the boys are no longer children. They live a different life
than they did two or three years ago. The same rules do not
apply to teenagers as they did with 10 and 12 year olds. It
would stand to reason that the visitation rules would also
have to change.... Can you really say that it is in their best
interest to have to give all this up? Don't you want the best
for your boys? Of course you do....
        I do realize that we signed an agreement for these
every other weekend visits. Would you be willing to change
that agreement so that the boys will feel like they can have a
life? They would prefer an agreement that did not specify
certain weekends. How would you feel about that? If the
agreement merely stated "liberal visitation". The summer is
also going to be an issue. That will need to be changed also.
Joseph has already expressed his intent to work this summer.
I know you are aware of this as well. He will not be able to
live with you the summer months as stated in the agreement.
He wants to visit as he can arrange it. Mark of course will
not be working but he too has expressed concerns about
being away all summer. He is older now and does not want
to miss all of his friends. This is another area in which you
can not simply reverse what we did in the past. I realize that
the boys did come and stay here all summer. They were
younger and did not have activities as they do now. Please
realize that this has nothing to do with you or me as their
parents. They love us equally but we are no longer the center
of their lives. This is a normal part of growing up. We
would be very foolish to attempt to force them away from
their friends and to concentrate on us. This is the time for us
to take a back seat and watch and be proud.
....



                               -6-
          The foregoing is but a part of the evidence heard by the trial court
which led to the June 20, 1997 judgment of the court finding Dr. Thomasson to
be in willful civil contempt of the agreed order of the court entered on July 17,
1996. As said by the trial court:


                 It can be gleaned from this record by implication on
          the one hand and on the other hand by statement of the oldest
          son that their father allowed these children to enroll in
          programs that he knew would interfere and in effect prevent
          the implementation of his agreement with his former wife
          and with the Court. Mrs. Page has accurately stated "I have
          had to take what I have been given and tried to make it go,"
          and as thanks for her efforts in trying to accommodate these
          wonderful young men she is in effect cast by defendant
          Thomasson as the "bad guy" from the very, very first
          weekend visitation which she did not get. Defendant
          Thomasson calls Mrs. Page's efforts to be agreeable "on-
          going negotiations" between her and the children - the Court
          does not think so. She had to take what she could get, and as
          stated by one or maybe both of the boys there were times
          when "we just could not go." They were both wrong - they
          could have gone and should have gone, and the only
          impediment to them going was their father's failure and
          refusal to insist that they do go to visit their mother.


          Up to this point, the record in this case amply supports the action of the
trial court in finding the appellant to be in civil contempt.


          The problem starts with the sentence imposed by the court. The
judgment provides:
          Accordingly the court finds that defendant Thomasson is in
          willful civil contempt of the agreed order entered July 17,
          1996 in that he has failed, neglected and willfully refused to
          comply therewith when he had the ability to do so, and the
          court holds and finds beyond a reasonable doubt that
          defendant Thomasson is in contempt of the agreed order of
          July 17, 1996, and orders that he be incarcerated in the
          Coffee County Jail for a period of ten (10) days and that
          appellant pay a fine of fifty dollars ($50.00) together with the
          costs of this proceeding. All but forty-eight (48) hours of
          this contempt sentence will be suspended and the defendant
          Thomasson is ordered to report to the sheriff of Coffee
          County to begin serving the aforesaid forty-eight (48) hours
          consecutively at 6:00 p.m. Friday June 27, 1997. (emphasis


                                        -7-
         added)


         If this is indeed a finding of civil contempt it contains no provision
whereby the appellant may purge his contempt by compliance with the order.


         If the order finding the defendant in contempt ". . . beyond a reasonable
doubt . . ." is intended to be criminal contempt then the safeguards of the Tenn.
R. of Cr. P. 42(b) must have been accorded to the appellant.


         This court has held in a similar context:
                [2] The contempt of which the appellant was accused
         is clearly criminal contempt. Criminal contempts are
         punitive in nature and the purpose of criminal contempt
         proceedings is to vindicate the authority of the law and the
         court as an organ of society. Shiflet v. State, 217 Tenn. 690,
         400 S.W.2d 542 (1966). A civil contempt is one where a
         person refuses to obey a court order and punishment is
         inflicted to compel obedience; when the party has obeyed he
         or she will be discharged. In effect the contemner "carries
         the keys to the jail in his or her own pocket." Shillitani v.
         United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622
         (1966).

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



         Following the entry of the June 20, 1997 order, appellant filed his
notice of appeal.


         On June 26, 1997, without further hearing, the trial court filed its
Supplemental Opinion as follows:
                By explanation of the Opinion and Decree entered
         herein on June 20, 1997, the Court files this Supplemental
         Opinion to clarify the holding contained in the original
         document:
                While there is a finding that the defendant Thomasson
         is in a willful civil contempt of the Agreed Order of July
         1996, in that he has failed, neglected and willfully refused to
         comply therewith when he had the ability to do so, it is
         deemed pertinent to point out at this point that holding the
         defendant in civil contempt to require him to comply with
         something which was time related, concerning which the


                                       -8-
         time has already past, is not appropriate. However, in
         addition the Court holds the defendant in criminal contempt
         by said Opinion and Decree pursuant to Rule 42(b) Tenn. R.
         Crim. P. for the "willful disobedience or resistance of any
         officer of the said courts, party, juror, witness, or any other
         person, to any lawful writ, process, order, rule, decree, or
         command of said courts," (sic) T.C.A. 29-2-102(3). Criminal
         Contempt "is intended to preserve the power and vindicate
         the dignity and authority of the court, and the court as an
         organ of society." Black v. Blount, Supreme Court No. 02-
         S01-9604-CV-00044 (Tenn. 1996). (emphasis added)



         The June 20, 1997 order unconditionally incarcerating the appellant
imposes a punishment not available in a civil contempt proceeding.


         In the leading case of State ex rel. Anderson v. Daugherty, 137 Tenn.
125, 191 S.W. 974 (Tenn. 1917), it is said as to civil contempt proceedings:
         To this class of contempt belong such an act as the refusal to
         pay alimony, as ordered . . . . If imprisonment be ordered it
         is remedial and coercive in character, having a relation to the
         compelling of the doing of something by the contemnor
         which when done will work his discharge. As has been said,
         in such case the one imprisoned "carries the keys to his
         prison in his own pocket . . . ." In Re Nevitt, 117 Fed. 451, 54
         C.C.A. 622.



         If the trial court at bar intended the contempt finding to be civil the
unconditional sentence of incarceration must be vacated.


         This flaw in the June 20, 1997 order is implicitly recognized by the
Supplemental Opinion entered June 26, 1997 specifically finding that civil
contempt ". . . is not appropriate." In the Supplemental Opinion the trial court
relying on Black v. Blount, 938 S.W.2d 394 (Tenn. 1996) converts the finding
of civil contempt into a finding of criminal contempt.


         As to criminal contempt the Supreme Court of Tennessee has held:
         . . . [T]here are two species of contempt, direct and indirect,
         which differ, among other ways in the minimal procedure
         that will satisfy the requirements of due process in the case
         of each. Direct contempt is based upon acts committed in the

                                       -9-
           presence of the court, and may be punished summarily.
           Indirect contempt is based upon acts not committed in the
           presence of the court, and may be punished only after the
           offender has been given notice, and the opportunity to
           respond to the charges at a hearing.

State v. Maddux, 571 S.W.2d 819, 821 (Tenn. 1978).



           Tennessee Rule of Criminal Procedure 42(a) deals with direct contempt
and Rule 42(b) deals with indirect contempt. Since the contempt of the appellant
at bar did not occur in the presence of the court the proceedings to impose
indirect criminal contempt must comply with Rule 42(b) which provides as
follows:
                  (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.



           The petition for contempt filed by the appellee and the procedure
followed by the trial court cannot be reconciled with Rule 42(b) of the Tennessee
Rules of Criminal Procedure. First of all the petition itself never asserts that the
appellee was seeking a criminal contempt holding against the appellant. The
most that the petition asks is incarceration but incarceration is compatible with
either civil or indirect criminal contempt. The order of June 20, 1997 designates
a civil contempt finding but contains language finding the appellant guilty
"beyond a reasonable doubt" of contempt and imposing an unconditional
sentence of incarceration that is only consistent with criminal contempt. As far
as the record before this court discloses, the first notice the appellant had that he


                                         -10-
was being charged with criminal contempt came with the supplemental opinion
of the trial court on June 26, 1997, a week after all proceedings had been
completed.


          Adding to the confusion is certain of the language used in the June 26,
1997 order. After holding that the civil contempt requiring the appellant to
comply with something which was time related and concerning which the time
had already passed was "not appropriate" the trial court went on to say "however,
in addition the court holds the defendant in criminal contempt . . . ." (emphasis
added).


          A finding that civil contempt ". . . is not appropriate" seems
incompatible with the ". . . in addition . . ." holding of criminal contempt.


          In summary it may be said:
          1.    The conduct of the appellant as disclosed by this
          record is unacceptable.
          2.    If civil contempt was intended by the trial court,
          unconditional incarceration cannot be imposed.
          3.    If criminal contempt was intended by the trial court the
          proceedings below were in violation of the requirements of
          rule 42(b) of the Tennessee Rules of Criminal Procedure.



          The appellant further asserts that the trial court erred in denying the
appellant's counter-petition to modify the existing visitation schedule to
accommodate the realities of the lives of the parties' sons. In this counter-
petition the appellant had asked the trial court to allow the sons of the parties to
express their desires regarding visitation and to ". . . . modify the previous orders
as entered herein as concerns visitation between the parties' minor sons and
counter-respondent as the court deems equitable under the circumstances."


          Since the case must be reversed and remanded on the contempt finding,
the trial court should be free to address again the merits of the counter-petition
in such manner as the trial court deems proper. Indeed, this court is saddened not
only by a Father who would claim to advocate a child's interest in a situation


                                        -11-
which strongly suggests ulterior motives, but also by individuals who would
enter an agreed order regarding the visitation and custody of mature minor
children without considering the children's best interest and without consulting
the children themselves. The part of the order denying the counter-petition will
be vacated and the case remanded also as to the counter-petition.


          The trial court in the case awarded attorney's fees to the appellee. In
view of the reversal of the contempt findings which this court feels is compelled
by law, the award of attorney's fees to the appellee is vacated, subject to further
consideration by the trial court on remand.


          The case is reversed and remanded to the trial court for further
proceedings not inconsistent with this opinion.


          Acting in its discretion the court taxes all costs of appeal against the
appellant, Dr. Joseph Richard Thomasson.




                                              _____________________________
                                              WILLIAM B. CAIN, JUDGE




CONCUR:



_________________________________
HENRY F. TODD, PRESIDING JUDGE



_________________________________
WILLIAM C. KOCH, JR., JUDGE




                                       -12-
