SARA EVELYN EVANS YOUNG,                 )
                                         )
      Petitioner/Appellant,              )
                                         )   Appeal No.
                                         )   01-A-01-9609-CV-00415
VS.                                      )
                                         )   Davidson Circuit
                                         )   No. 90D-936
BOBBY HUGH YOUNG,                        )
                                         )
      Respondent/Appellee.               )
                                                                FILED
                                                                March 12, 1997
                     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

THE HONORABLE MURIEL ROBINSON, JUDGE




IRWIN VENICK
DOBBINS & VENICK
2100 West End Avenue, Suite 850
Nashville, Tennessee 37203
      Attorney for Plaintiff/Appellant

JACK NORMAN, JR.
213 Third Avenue, North
Nashville, Tennessee 37201
      Attorney for Defendant/Appellee




                           AFFIRMED AND REMANDED




                                             BEN H. CANTRELL, JUDGE


CONCUR:
TODD, P.J., M.S.
KOCH, J.
                                  OPINION


              The Circuit Court of Davidson County refused to hold Bobby Hugh

Young in civil contempt for failing to perform certain parts of a divorce decree. We

must decide if the dismissal of a civil contempt petition is appealable, and if so, did the

trial judge err in refusing to find the respondent in contempt. We hold that the refusal

to impose civil contempt sanctions is appealable, but we affirm the trial judge’s

decision not to hold Mr. Young in civil contempt.



                                            I.



              A January 10, 1992 divorce decree awarded Sara Evelyn Evans Young

a divorce from Bobby Hugh Young and ordered Mr. Young to pay to her $200,000 in

four annual installments, as well as monthly alimony payments, one-half of the

proceeds from the sale of a piece of equipment formerly used in Mr. Young’s

business, and $35,000 in attorney’s fees. For the sake of clarity, we will henceforth

in this opinion refer to Mr. Young’s former wife as Mrs. Young, even though we are

aware that the divorce decree restored the use of her former name to her.



              Mrs. Young subsequently filed a series of petitions praying that Mr.

Young be held in civil and criminal contempt for violating the cited provisions of the

final decree. At a hearing in 1994, the trial judge required Mrs. Young to elect whether

she was proceeding on civil or criminal charges. Mrs. Young chose to proceed on the

basis of civil contempt, and she dismissed the criminal contempt charges. After a

further hearing, the trial judge found that Mr. Young was not in civil contempt, and

Mrs. Young made her first appeal to this court.




                                           -2-
                 We found that the trial court erred in requiring Mrs. Young to dismiss her

criminal contempt charge in order to be permitted to proceed on civil contempt, and

we remanded the case on the basis that the judgment was not a final one, because

the criminal contempt charge had been dismissed in error, and was therefore still

before the trial court. On remand, Mrs. Young again dismissed her prayer for criminal

contempt, and the case is now before us on the trial court’s refusal to find Mr. Young

in civil contempt.



                                                    II.

                         Is the Trial Court’s Decision Appealable?



                 Without distinguishing between civil and criminal contempt, our courts

have often said that an acquittal in a contempt proceeding cannot be appealed.

Graham v. Williamson, 128 Tenn. 720, 164 S.W. 781 (1913); Gunter v. Seaboard

Copper Mining Co., 142 Tenn. 14, 215 S.W. 273 (1919); Archer v. Archer, 907

S.W.2d 412 (Tenn. App. 1995); Plumb v. Plumb, 372 S.W.2d 771 (Tenn. App. 1962);

Schwalb v. Schwalb, 282 S.W.2d 661 (Tenn. App. 1955). Civil and criminal contempt,

however, differ in some fundamental ways. If the sanction is designed to coerce the

contemnor into performing the court’s orders, it is considered civil; if, on the other

hand, the sanction is imposed to punish the contemnor for past acts, it is criminal.

Storey v. Storey, 835 S.W.2d 593 (Tenn. App. 1992). The civil contempt sanction

may be discharged by compliance with the court’s order; therefore, as we have often

said, the contemnor “holds the keys to the jail in his own pocket.”1


        1
         W e are aware that some courts have also divided civil contempt into two sub-classes:
com pensa tory and coercive. In Latrobe Steel Co. v. United Steelworkers , 545 F.2d 13 36 (3d C ir. 1976),
the Co urt desc ribed them this way:

                 [C]om pensa tory actions are essentially backward looking, seeking to
        com pen sate the complainant through the payment of money for damages caused by
        past acts of disobedience. Coercive sanctions, in contrast, look to the future and are
        designed to aid the plaintiff by bringing a d efiant party into c om plianc e with the court
        order or by assuring that a p oten tially contum acious p arty adheres to an injunction by
        setting forth in advance the penalties the court will impose if the party deviates from the
        path of obedience . . . (em phasis add ed).

                 [T]he court m ay levy a fine of a specified am ount for past refusal to conform

                                                   -3-
                  If the court intends to punish the contemnor (criminal contempt) then all

the safeguards accorded criminal defendants come into play. Strunk v. Lewis Coal

Co., 547 S.W.2d 252 (Tenn. Crim. App. 1976). One of the safeguards is compliance

with Rule 42, Tenn. R. Crim. Proc. Storey v. Storey, 835 S.W.2d 539 (Tenn. App.

1992). And the state cannot appeal an acquittal in a criminal proceeding. In Gunter

v. Seaboard Copper Mining Co., our Supreme Court applied the reasoning of the

criminal law to contempt cases:

                          Under our practice, the act complained of is
                  criminal in its nature, while it might not be such in some
                  jurisdictions where the fine imposed inures to the benefit
                  of the party injured. It follows, therefore, as a matter of
                  course, that no appeal will lie, where the defendant has
                  been exculpated, any more so than in a case where a
                  defendant has been found not guilty on a charge of
                  assault and battery. We think this view of the matter has
                  been generally accepted by the profession; for, while our
                  reports are full of cases where defendants, found guilty of
                  contempt, have appealed, we have been unable to find a
                  case in this State in which an appeal was sought where
                  the defendant was acquitted in the lower court.

142 Tenn. at 18, 215 S.W. at 274.



                  We find the reference to an acquittal in an assault and battery case

instructive and we note that the charge in Gunter was a past violation of an injunction.

On the other hand, conditional punishment, punishment which may be avoided by

future compliance with the court’s orders (civil contempt), does not carry with it the

safeguards that attach to criminal prosecutions. Davenport v. Jailer, City of Memphis,

572 S.W.2d 265 (Tenn. App. 1978). Such a sanction is imposed in a civil proceeding




         to the injunc tion, conditioned, however, on the defendant’s continued failure to obey.
         The court may also specify that a disobedient party will be fined a certain amount for
         each day of non-compliance. Indeed, the methods that may be employed to coerce a
         recalcitrant party into compliance with an injunction are many and varied.

545 F.2d at 1344.

          W e kn ow of n o T enness ee cases recognizin g com pensato ry civil contem pt -- probably because
of the fifty dollar lim it placed on fines for conte m pt by T enn . Code A nn. § 29-9 -103 . In addition, a fine
levied after the contemnor defies a threat im pos ed to deter future co ndu ct, seems to us to have all the
attributes of a criminal sanction. It is imposed for punishment and the contemnor no longer can
discharge it by compliance.

                                                     -4-
and should be governed by Rule 3(a) of the Tenn. R. App. Proc.: “In civil actions

every final judgment entered by a trial court . . . is appealable as of right.”



              This result is in accord with the majority rule in other states. See 24

A.L.R. 3rd 650, Appealability of Acquittal from or Dismissal of Charge of Contempt of

Court. We are convinced, therefore, that a dismissal of a petition for civil contempt

may be appealed.



                                           III.

                    Is the Court’s Refusal to Impose Sanctions
                           for Civil Contempt Reversible?



              Ms. Young argues that the proof establishes Mr. Young’s contempt in

the following particulars:

              1.     His refusal to make the monthly alimony payments
              on the first day of the month.

              2.    His refusal to make reasonable efforts to sell the
              used equipment.

              3.   His refusal to make payments on the $200,000
              judgment and the award of attorney fees.



              With respect to the timely alimony payments, the court stated that the

final decree did not require Mr. Young to make the payments on the first day of the

month. The final decree did, however, contain the following requirement with respect

to the monthly alimony payments: “The payments shall be due the first day of every

month.” We think the trial judge simply overlooked that provision.



              With respect to the sale of the used equipment, the trial judge found that

Mr. Young could not be held in contempt because he was not specifically ordered in

the final decree to sell the equipment. We find that the trial judge was correct in that

finding.


                                          -5-
                 With respect to the monetary payments ordered in the final decree, the

trial court stated from the bench, “I am convinced that Mr. Young does not arrange his

life where he can pay her. I don’t think he is paying her in good faith.” However, the

final order states, “The Court finds that the evidence presented by Mr. Young sustains

his allegation of financial inability to comply with the terms of the decree as to the

$200,000 installment payment schedule on the marital judgment.” The inability to

comply with a court’s order is a defense to punishment for civil contempt. Gossett v.

Gossett, 34 Tenn. App. 654, 241 S.W.2d 934 (1951).



                 But, let us assume that the trial judge was wrong in dealing with the facts

and that Mr. Young was clearly in contempt. Since we are only dealing with civil

contempt, the options allowed by our code are severely limited. Tenn. Code Ann. §

29-9-104 says that “If the contempt consists in an omission to perform an act which

it is yet in the power of the person to perform, he may be imprisoned until he performs

it.”2

                 With respect to not paying his alimony on the first day of the month (as

we have found he was obligated to do) can Mr. Young be put in jail until the first of the

next month?        We do not think the court could or should impose such drastic

conditional punishment.



                 With respect to the failure to make the monetary payments, the court is

entirely correct if Mr. Young is not presently able to make the payments. Assuming

that he is able, we still think it would be within the court’s discretion to decide whether

he should be imprisoned for an indefinite period of time. Instead, the court awarded

a judgment for the past due installments and allowed Mrs. Young to seek payment

through the ordinary means of execution. We do not think the trial judge’s action




        2
         W e do not thin k the ten days in jail and/or fifty dollar fine provided in Tenn. Code Ann. § 29-9-
103 applies to the civil contempt involved in this case.

                                                   -6-
would be an abuse of discretion, even if Mr. Young was capable of making the

payments.



                                            IV.



               Mrs. Young also appeals the trial court’s refusal to make Mr. Young pay

her attorney’s fees. This is also a decision that rests in the discretion of the trial court.

McCarty v. McCarty, 863 S.W.2d 716 (Tenn. App. 1992). We do not think the trial

judge abused her discretion in this case.



               The judgment of the trial court is affirmed and the cause is remanded

to the Circuit Court of Davidson County for any further proceedings necessary. Tax

the costs on appeal equally between both parties.




                                                    _____________________________
                                                    BEN H. CANTRELL, JUDGE




CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_______________________________
WILLIAM C. KOCH, JR., JUDGE
