                                                                                         05/07/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs March 1, 2018

             RENEE ANN BRADLEY V. RICHARD BRADLEY

            Appeal from the General Sessions Court for Morgan County
                     No. 15-DV-19    Michael A. Davis, Judge


                            No. E2017-01626-COA-R3-CV


A husband and wife were divorced in 2016, and the divorce decree permitted the husband
to purchase the parties’ real property, which was in the wife’s name. The parenting plan
provided the parties the opportunity to travel domestically or abroad with their minor son.
The husband filed a contempt petition against the wife based on her refusal (1) to provide
information to his lender that was necessary for him to close on the purchase of the
property and (2) to cooperate with him to renew their child’s passport when the husband
wanted to travel with the child to Europe. The trial court found the wife in contempt on
both grounds and awarded the husband damages. The wife appealed, arguing that she
was not willful in refusing to cooperate with the husband’s lender. The evidence showed
that the wife believed the husband was trying to refinance her loan and add his name to
her deed rather than purchase the property outright. We hold that the trial court erred in
finding the wife willfully disobeyed the court’s order that she cooperate with the
husband’s lender. We affirm the trial court’s order holding the wife in contempt for
failing to cooperate with the husband in renewing the child’s passport.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
               Affirmed in Part, Reversed in Part, and Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and JOHN W. MCCLARTY, J., joined.

Jeffrey Vires, Crossville, Tennessee, for the appellant, Renee Ann Bradley.

James William Brooks, Jr., Wartburg, Tennessee, for the appellee, Richard Bradley.
                                      OPINION
                     I. FACTUAL AND PROCEDURAL BACKGROUND

       Renee Ann Bradley (“Wife”) and Richard Bradley (“Husband”) were granted a
divorce on July 27, 2016. The parties entered into a Marital Dissolution Agreement
(“MDA”) that the trial court made a part of its final decree of divorce. The parties had
one child who was still a minor at the time of the divorce. The parties submitted a
permanent parenting plan to the court, and the court approved the parenting plan and
incorporated it into the final decree.

       The MDA provided that the parties would sell their real property, which was in
Wife’s name, and distribute the proceeds between them. The parties later decided to
amend the MDA to allow Husband to purchase the real property from Wife. The trial
court entered an Amended Final Decree of Absolute Divorce on September 6, 2016, nunc
pro tunc for July 27, 2016. As amended, the MDA included the following paragraph:

      Husband will have three (3) weeks from the date of this Agreement to
      qualify for a loan to purchase the property from Wife. If Husband
      purchases the property, he must pay off the indebtedness to Farm Credit
      Services, pay Wife Twenty-Five Thousand Dollars ($25,000.00), and pay
      Wife the difference between One Hundred Twenty Thousand Dollars
      ($120,000.00) and the actual payoff to Farm Credit Services if the payoff is
      less than One Hundred Twenty Thousand Dollars ($120,000.00).

      The permanent parenting plan included a provision regarding the child’s travel,
domestically and abroad. It stated:

      There will be no restriction on travel, domestic or abroad, with the minor
      child by either parent. However, both parents must follow the notice
      provisions before going abroad with the minor child.

       Husband filed a contempt petition on October 5, 2016, alleging that Wife was
refusing to cooperate with his lender to conclude the financing transaction and allow him
to purchase the real property that was in Wife’s name. Husband amended his petition on
March 7, 2017, to add another ground for contempt after Wife refused to cooperate with
him to renew their child’s passport. Husband asserted that Wife’s refusal constituted a
violation of the provision of the parenting plan, quoted above.

        The trial court conducted a trial on August 4, 2017, and both Wife and Husband
testified. The evidence revealed that Wife had a mortgage on the real property through
Farm Credit Services, and Husband was working with RedRock Mortgage (“RedRock”)
to obtain a loan and purchase the property from Wife. The record shows that Husband
                                          -2-
was in a position to close on the property by the end of August 2016 but that Wife would
not cooperate with RedRock and refused to provide information it requested from her.

       Wife testified that she was contacted by RedRock, and she believed that, rather
than purchasing it outright, Husband was trying to refinance her loan by having his name
added to her name on the deed to the property. Wife was aware of a federal lien against
Husband that predated the parties’ marriage, and Wife was concerned that her interest in
the property could be negatively affected if Husband’s name was added to the deed along
with her name. Wife did not understand that RedRock was working with Husband to
transfer the deed from her to him. When RedRock asked Wife for her payment history
with Farm Credit Services, she refused to provide the requested information. Wife was
questioned by Husband’s attorney and testified as follows:

      Q: [Husband] had been approved for a loan, correct?

      A: He was approved for something that I would have had to sign him onto
      a deed for the property.

      Q: Ma’am, you would have - -

      A: And that would have taken months.

      Q: You would - - ma’am, you would have just had to sign a deed
      conveying the property to him at closing, wouldn’t you?

      A: No. It would have been - - there would have been a discrepancy in the
      - - in the exchange of moneys at closing, because I would - - he would have
      been on the deed of the property for - - they said it could take months to get
      all of that approved. And I didn’t want that, because that made - - that
      made it an issue for me.

Wife testified that she believed she “would have stayed an owner of the property with his
name on the deed until a loan was closed,” and that this could take months. In support of
this belief, Wife described a conversation she had with a representative of RedRock:

      She said, “You’re not going to be happy about this.” And she said, “This is
      - - this is not a purchase. You’re - - you’re going to have to sign his name
      onto the deed. And it could take up to a couple of months, okay, to get his
      name on that deed. And during that time, if something were to happen to
      you or anything, that that property, it would be an issue at that point.”

      The record reveals that Husband asked Wife to sign a purchase agreement in
September 2016 but that she did not sign an agreement until October, and that the closing

                                          -3-
on the property did not take place until December 2016. Husband testified that the delay
in closing required him to pay for an additional appraisal and to pay additional fees
because the interest rate rose during the period of delay.

        Husband and Wife also testified about Wife’s refusal to cooperate with Husband
to have their child’s passport renewed. Wife acknowledged that she refused to sign the
form Husband presented her or go with him to apply for a passport in person. Wife
testified that she was afraid Husband would take the child to the Czech Republic, which
is where Husband was born, and that Husband would not bring the child back to the
United States. Wife testified:

       Because of his history, I was worried that if something happened again with
       the law, because I have no contact with him, he has stated he will never go
       to prison, okay? And right now, he does have a federal felony. If something
       were to happen, he would be - - he would end up - - they would come after
       him, take him to prison, whatever. He said he would never go. So he would
       take my son. I was afraid he would take my son out of this country and they
       would disappear. I would never see him. He’s been threatening that since
       he was born.

Wife explained that she did not object to the child’s traveling with Husband to see
Husband’s mother, but she refused to cooperate with Husband to renew the child’s
passport without a court order allowing her to hold onto the passport until Husband
needed it.1

       Following the close of evidence, the trial court announced it was holding Wife in
contempt on both issues. The court issued an order on August 9, 2017, that included the
following findings:

       2. That Petitioner obtained approval within the three week window
       permitted by the AMENDED FINAL DECREE OF ABSOLUTE
       DIVORCE.

       3. That Respondent willfully failed to cooperate with Petitioner and
       Petitioner’s lender between the date of approval and closing of Petitioner’s
       loan.

       4. That the Respondent willfully failed to sign documents which were
       needed by Petitioner or Petitioner’s lender in order to finalize the loan.


1
 Wife admitted that she had not filed anything with the court seeking to modify the parenting plan to
include such a provision.
                                                -4-
5. That Petitioner incurred damages as a result of the delay occasioned by
the willful conduct of Respondent.

6. That the Respondent should be found to be in contempt of court and
damages should be awarded to Petitioner.

7. That the PERMANENT PARENTING PLAN signed by the parties and
incorporated into the FINAL DECREE OF ABSOLUTE DIVORCE on
July 27, 2016 was an Order of the court.

8. That the provisions of the PERMANENT PARENTING PLAN ORDER
regarding foreign travel by the parties with their minor child were stated as
follows:

       “J. OTHER

       The following special provisions apply: There will be no
       restriction on travel, domestic or abroad, with the minor child
       by either parent. However, both parents must follow the
       notice provisions before going abroad with the minor child.”

9. That the Respondent failed to abide by the provisions of the
PERMANENT PARENTING PLAN because she willfully failed to
cooperate with Petitioner in obtaining renewal of the passport of the minor
child of the parties by either accompanying Petitioner to apply for renewal
of the passport or sign the STATEMENT OF CONSENT as the non-
applying parent.

10. That the willful failure of Respondent to cooperate with Petitioner has
delayed Petitioner’s efforts to renew the passport of the minor child and,
therefore, has placed a restriction on the ability of Petitioner to travel
abroad with the minor child.

11. That Respondent should be found to be in contempt for her failure to
cooperate with Petitioner in his efforts to renew the application of the
passport of the minor child.

12. That the Respondent has incurred attorney’s fees and expenses in
pursuing his AMENDED PETITION against Respondent.

13. That Petitioner should be awarded his attorney’s fees and expenses, it is

ORDERED, ADJUDGED and DECREED as follows:

                                    -5-
      A. That the Respondent, Renee Ann Bradley, shall be found to be in
      contempt of court for her failure to cooperate with Petitioner and
      Petitioner’s lender.

      B. That the Respondent shall be found to be in contempt of court for her
      failure to cooperate with Petitioner in his efforts to obtain renewal of the
      passport of the minor child.

      C. That the Petitioner shall have judgment against Respondent for the
      additional expenses he incurred as a result of the failure of Respondent to
      cooperate with Petitioner and Petitioner’s lender in the amount of
      $3,593.32, for which execution shall issue if necessary.

      D. That Petitioner shall have judgment against Respondent for attorney’s
      fees and expenses incurred by Petitioner in pursuing his AMENDED
      PETITION in the amount of $1,967.80, for which execution shall issue if
      necessary.

      E. That the Respondent, Renee Ann Bradley, shall execute the STATE OF
      CONSENT: ISSUANCE OF A U.S. PASSPORT TO A MINOR UNDER
      AGE 16.

      F. That the Petitioner, Richard Bradley, shall be authorized to apply for the
      renewal of the U.S. passport for his minor child, Richard Louis Bradley,
      who is under age 16 and the presence of the minor child’s mother,
      Respondent, Renee Ann Bradley, shall not be required.

      Wife appeals the trial court’s judgment finding her in contempt of court.

                                      II. ANALYSIS

       The Tennessee General Assembly has authorized courts to “inflict punishments for
contempts of court” in cases where a party willfully disobeys “any lawful writ, process,
order, rule, decree, or command of such courts.” Tenn. Code Ann. § 29-9-102(3). The
basis of Husband’s claims against Wife was that Wife had failed to comply with the
court’s orders as set forth in the final decree of divorce, which incorporated the MDA and
the permanent parenting plan. Husband did not specify in his petition whether he was
seeking to have the court hold Wife in civil contempt or criminal contempt. The
Tennessee Supreme Court has addressed contempt and the differences between civil and
criminal contempt:

      [A] contempt may either be civil or criminal in nature. Civil contempt
      occurs when a person does not comply with a court order and an action is

                                          -6-
      brought by a private party to enforce rights under the order that has been
      violated. Punishment for civil contempt is designed to coerce compliance
      with the court’s order and is imposed at the insistence and for the benefit of
      the private party who has suffered a violation of rights. Also, in civil
      contempt cases, the quantum of proof necessary to convict is a
      preponderance of the evidence. On the other hand, criminal contempts are
      “intended to preserve the power and vindicate the dignity and authority of
      the law, and the court as an organ of society.” Punishment for criminal
      contempt is both punitive and unconditional in nature and serves to
      adjudicate “an issue between the public and the accused.” In criminal
      contempt proceedings, the defendant is presumed to be innocent and must
      be proven guilty beyond a reasonable doubt.

Doe v. Bd. of Prof’l Responsibility of Sup. Ct. of Tenn., 104 S.W.3d 465, 473-74 (Tenn.
2003) (citations omitted); see also Long v. McAllister-Long, 221 S.W.3d 1, 12-13 (Tenn.
Ct. App. 2006) (stating primary purpose of criminal contempt sanctions is to punish and
vindicate court’s authority); TENN. R. CRIM. P. 42(b) (setting forth notice requirements
for criminal contempt).

       The words “criminal contempt” do not appear in Husband’s initial petition or
amended petition, and Husband seems to have filed his petition for the purpose of
requiring Wife to comply with the terms of the MDA and parenting plan. Therefore, it
appears Husband was seeking to have Wife held in civil contempt.

       To succeed on a claim seeking civil contempt, a plaintiff must prove “four
essential elements.” Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249
S.W.3d 346, 354 (Tenn. 2008). These elements include:

      First, the order alleged to have been violated must be “lawful.” Second, the
      order alleged to have been violated must be clear, specific, and
      unambiguous. Third, the person alleged to have violated the order must
      have actually disobeyed or otherwise resisted the order. Fourth, the
      person’s violation of the order must be “willful.”

Id. at 354-55 (footnotes omitted). A party may be held in civil contempt for violating a
court’s order even if the contemptuous conduct has ceased by the time of the hearing.
Overnite Trasnp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 511 (Tenn.
2005). We conduct a de novo review of a trial court’s findings of fact in support of a
decision to hold a defendant in civil contempt, according the trial court’s findings a
presumption of correctness unless the evidence preponderates otherwise. Lovlace v.
Copley, 418 S.W.3d 1, 17 (Tenn. 2013) (citing Konvalinka, 249 S.W.3d at 356-57); see
also TENN. R. APP. P. 13(d). We review a trial court’s decision to hold a defendant in
civil contempt under an abuse of discretion standard. Id. (citing Konvalinka, 249 S.W.3d

                                          -7-
at 358). The Konvalinka Court addressed the abuse of discretion standard of review
thusly:

      An abuse of discretion occurs when a court strays beyond the framework of
      the applicable legal standards or when it fails to properly consider the
      factors customarily used to guide that discretionary decision. State v. Lewis,
      235 S.W.3d 136, 141 (Tenn. 2007). Discretionary decisions must take the
      applicable law and relevant facts into account. Ballard v. Herzke, 924
      S.W.2d 652, 661 (Tenn. 1996). Thus, reviewing courts will set aside a
      discretionary decision only when the court that made the decision applied
      incorrect legal standards, reached an illogical conclusion, based its decision
      on a clearly erroneous assessment of the evidence, or employs reasoning
      that causes an injustice to the complaining party. Mercer v. Vanderbilt
      Univ., 134 S.W.3d 121, 131 (Tenn. 2004); Perry v. Perry, 114 S.W.3d 465,
      467 (Tenn. 2003).

Konvalinka, 249 S.W.3d at 358.

                         Husband’s Purchase of Wife’s Property

       Wife does not contest the legality of the MDA. Rather, she claims she “was under
no obligation to assist Husband or Husband’s lender in obtaining financing for the
purchase of the marital home.” She also claims that her non-cooperation was not
“willful.”

       The Konvalinka Court discussed the second element that must be established
before finding a defendant in civil contempt. The Court explained that the court order at
issue must be “clear, specific, and unambiguous.” Id. at 355. It must “expressly and
precisely spell[] out the details of compliance in a way that will enable reasonable
persons to know exactly what actions are required or forbidden.” Id.

        The trial court’s final decree, as amended, allowed husband three weeks to qualify
for a loan to purchase the real property from Wife. Husband was directed to pay off the
indebtedness to Farm Credit Services, which was Wife’s lender. The MDA that Wife
signed contains a paragraph that specifically requires each party, at the request of the
other, to “execute and deliver all documents and records which may be reasonably
necessary to give full effect to this Agreement.” We disagree with Wife’s assertion that
she was not obligated to assist Husband in obtaining financing. To the extent that she
had information or documentation that Husband or his lender needed for him to pay off
Wife’s loan to Farm Credit Services and/or to transfer the deed to Husband, Wife was
required by the amended order and the MDA to assist Husband and his lender. This
included the requirement that she give Husband or his lender information regarding the


                                          -8-
amount still owing on her loan from Farm Credit Services. He could not comply with the
terms of the amended decree without this information.

        The third element of civil contempt asks whether Wife actually “disobeyed or
otherwise resisted the order.” Id. at 354-55. The evidence is undisputed that Husband
was unable to close at the end of August, when he initially tried to close on the purchase,
because Wife refused to cooperate with his lender. Thus, we conclude that Wife did, in
fact, disobey the court’s order that she comply with the terms of the MDA.

        The final element Husband was required to establish before Wife could be held in
civil contempt was that her refusal to cooperate and violation of the MDA was “willful.”
“Willful conduct” in the context of a civil contempt proceeding has been defined as:

       “acts or failures to act that are intentional or voluntary rather than
       accidental or inadvertent. Conduct is ‘willful’ if it is the product of free
       will rather than coercion. Thus, a person acts ‘willfully’ if he or she is a
       free agent, knows what he or she is doing, and intends to do what he or she
       is doing.”

Id. at 357 (quoting State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Grp. Trust, 209
S.W.3d 602, 612 (Tenn. Ct. App. 2006) (citations omitted)). “[A]cting contrary to a
known duty may constitute willfulness for the purpose of a civil contempt proceeding.”
Id. (citing United States v. Ray, 683 F.2d 1116, 1127 (7th Cir. 1982)).

        Wife testified that when she was contacted by RedRock and asked for information
regarding her payment history, she believed Husband was seeking to refinance her loan,
rather than pay off her loan and purchase the property outright in his own name, and that
she was being asked to add Husband to her deed. Wife was aware of a federal lien against
Husband, and she was concerned that her interest in the property could be impacted if the
lien attached to the property before Husband closed on the purchase.

       Under these circumstances, we believe the preponderance of the evidence is
contrary to the trial court’s finding that Wife willfully disobeyed the amended order and
terms of the MDA. The record reveals that Wife did not intend to disobey the court’s
order. Wife understood Husband had the right to purchase her property, and she was
ready and willing to sell the property to him free and clear. However, based on a
conversation she had with a RedRock employee, she believed Husband was trying to
refinance her loan rather than take out a new loan in his name alone. She was told by the
RedRock employee, “This is not a purchase.”2 Because we find the preponderance of the

2
 Ultimately, Husband was able to purchase the property at issue, but this did not occur until December
2016. By that time, the interest rate on Husband’s loan had risen and Husband had to pay for another
appraisal on the property, causing Husband to pay more than he would have had he been able to close in
                                                -9-
evidence does not support the “willful” element of civil contempt, we conclude the trial
court lacked the basis to hold Wife in contempt for disobeying the court’s order. Thus,
we reverse the trial court’s ruling holding Wife in contempt for failing to cooperate with
Husband and his lender between the date of approval and closing of Husband’s loan.

                               Renewal of Child’s Passport

       Wife does not contest the legality of the parenting plan or Husband’s right to
travel abroad with the child. However, she contends the trial court erred by imposing a
duty upon her that was not expressly ordered under the terms of the final decree. We
disagree.

       The parenting plan clearly states that “[t]here will be no restrictions on travel,
domestic or abroad, with the minor child by either parent.” Wife testified that she
understood Husband was unable to travel with the child to visit Husband’s mother in
Europe without a valid passport. By refusing to cooperate with Husband to apply for a
passport for the child, Wife was effectively restricting Husband’s travel abroad with the
child. Thus, the court was not imposing a duty on Wife that was outside the terms of the
final decree.

        Wife does not argue that the trial court erred in finding that she acted willfully in
refusing to cooperate with Husband to apply for a passport for the child. We conclude
the trial court did not abuse its discretion in holding Wife in contempt for refusing to
cooperate with Husband to apply for the child’s passport. The court ordered Wife to
execute the document giving her consent for the issuance of a passport for the child, and
the record shows that Wife has complied with this order. The court further authorized
Husband to apply for the passport renewal on his own, stating that the presence of Wife
“shall not be required.”

                                         Damages

        “[D]amages are available to a party injured by a contemnor’s acts in violation of a
court’s order.” Overnite Transp. Co., 172 S.W.3d at 511 (citing Tenn. Code Ann. § 29-9-
105). The trial court awarded Husband damages in the sum of $5,561.12. This amount
includes $3,593.32 for expenses Husband incurred as a result of Wife’s refusal to
cooperate with Husband and his lender, and $1,967.80 for attorney’s fees and expenses
Husband incurred in pursuing his contempt petition. Because we find the trial court erred
in holding Wife in contempt for refusing to cooperate with Husband and his lender
between the date of the approval until the closing of the loan, we reverse all damages
resulting from that ruling.


August.
                                           - 10 -
       The only monetary damages the trial court awarded in connection with Wife’s
refusal to cooperate with Husband to renew the child’s passport were the attorney’s fees
Husband incurred in connection therewith.3 The exhibits introduced at trial include an
affidavit by Husband’s attorney describing the services provided and the cost of those
services. The affidavit does not specify how much time was spent on each ground for
contempt, however.

      We remand this case for a determination of fees Husband incurred in pursuing his
contempt petition against Wife for refusing to cooperate with him to apply for a renewed
passport for the child and direct the trial court to award that amount to Husband as
damages.

                                         III. CONCLUSION

       The judgment of the trial court is affirmed in part and reversed in part. This
matter is remanded for further proceedings in accordance with this opinion. Costs of
appeal shall be split equally between the parties, and execution may issue if necessary.


                                                         ________________________________
                                                         ANDY D. BENNETT, JUDGE




3
 One could debate whether the contempt was one of omission to perform a required act under Tenn. Code
Ann. § 29-9-104, for which damages in the form of attorney’s fees are not allowed, or one of performance
of a forbidden act under Tenn. Code Ann. § 29-9-105, for which damages in the form of attorney’s fees
are allowed. The fact is, however, that Wife did not challenge the award of attorney’s fees. She only
challenged the contempt holding itself. Consequently, we deem the issue of whether attorney’s fees
should have been awarded as waived.
                                                - 11 -
