JOHNNIE FAY KENNEDY f/k/a             )
Johnnie Fay (Fann) Robson,            )
                                      )
       Plaintiff/Appellee,                 )
                                      )    Appeal No.
vs.                                   )    01-A-01-9707-CV-00343

KENNETH WAYNE ROBSON,
                                      )
                                      )           FILED
                                           Sumner Circuit
                                      )    No. 16331-C
       Defendant/Appellant.           )            October 30, 1998

                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
                   COURT OF APPEALS OF TENNESSEE

                    MIDDLE SECTION AT NASHVILLE


      APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY,

                        AT GALLATIN, TENNESSEE


             THE HONORABLE THOMAS GOODALL, JUDGE




MICHAEL W. EDWARDS
177 East Main Street
Hendersonville, Tennessee 37075
     ATTORNEY FOR PLAINTIFF/APPELLEE




THOMAS L. WHITESIDE
Fowlkes & Whiteside
172 Second Avenue North, Suite 204
Nashville, Tennessee 37201-1908
      ATTORNEY FOR DEFENDANT/APPELLANT




                       REVERSED AND REMANDED




                                          WILLIAM B. CAIN, JUDGE
                               OPINION

      This case represents an attempt on the part of the attorney of a successful
divorce litigant to enforce an award of attorneys fees, using the contempt powers
of the trial court having jurisdiction, in the name not of the attorney but of the
litigant. The relevant facts reveal that the court below entered a final decree of
divorce in Appellee’s favor, which states:
      (12) The court hereby awards the WIFE her reasonable attorney’s
      fees due Michael W. Edwards in the amount of $5497.00 as
      alimony in solido, the same to be considered a judgment in favor of
      MICHAEL W. EDWARDS against HUSBAND, KENNETH
      WAYNE ROBSON, for which execution may issue if necessary.

      Subsequently, that order was amended by reducing the award to $2,997.00
as alimony in solido. On December 4, 1997, Appellee filed a petition for
contempt, citing as grounds:
                                        I
             These parties were divorced by Final Decree of Divorce on
      the 1st day of May, 1997, wherein judgment was granted to the
      Petitioner in favor of her attorney, MICHAEL W. EDWARDS, in
      the amount of Five Thousand Four Hundred Ninety-seven and
      00/100 Dollars ($5,497.00) as alimony in solido against the
      Respondent.

                                     II
             Subsequently thereto, an Agreed Order was entered on
      August 8, 1997, reducing the amount of alimony in solido
      [attorney’s fees] by Two Thousand Five Hundred and 00/100
      Dollars ($2,500) to the sum of Two Thousand Nine Hundred
      Ninety-seven and 00/100 Dollars ($2997.00), which as of this date
      remains due, owing and unpaid except for one payment of One
      Hundred and 00/100 Dollars ($100.00).


      The order which is the subject of this appeal, entered on December 18,
1997, reads, in pertinent part, as follows:
      (1) Kenneth Wayne Robson is in willful and deliberate civil
      contempt of the Court’s order for non-payment of alimony in solido
      in the amount of $2,897.00 plus accrued interest of $260.73 for a
      total of $3,157.73.

      (2) The court incarcerates Kenneth Wayne Robson in the Sumner
      County Jail for six months or until he purges himself of contempt
      by payment to the Clerk in the amount of $3,157.73.


                                        2
      The main issue to be decided, is, in Appellant’s words:
      Whether the trial court erred in concluding that an attorney can
      invoke the contempt powers of the court to enforce collection of an
      attorney fee award which was denominated as alimony in solido.


      After due consideration to counsel’s able argument on both sides and
under the authorities cited below, this court answers the above issue in the
negative.


I.    Contempt
      "In Tennessee, the court's authority to punish certain acts as contempt
derives from statute and is limited to the forms of conduct set forth in Tennessee
Code Annotated section 29-9-102." State v. Turner, 914 S.W.2d 951, 955
(Tenn. Ct. App. 1995).


      This statute provides:
      29-9-102. Scope of power. -- The power of the several courts to
      issue attachments, and inflict punishments for contempt of court,
      shall not be construed to extend to any except the following cases:
      (1) The willful misbehavior of any person in the presence of the
      court, or so near thereto as to obstruct the administration of justice.
      (2) The willful misbehavior of any of the officers of such courts, in
      their official transactions.
      (3) The willful disobedience or resistance of any officer of the such
      courts, party, juror, witness, or any other person, to any lawful writ,
      process, order, rule, decree, or command of such courts.
      (4) Abuse of, or unlawful interference with, the process or
      proceedings of the court.
      (5) Willfully conversing with jurors in relation to the merits of the
      cause in the trial of which they are engaged, or otherwise tampering
      with them.
      (6) Any other act or omission declared a contempt by law. [Code
      1858, § 4106 (deriv. Acts 1831, ch. 19, § 1); Shan., § 5918; Code
      1932, § 10119; T.C.A. (orig. ed.), § 23-902.]


      Appellee has made no allegations which would amount to willful
disobedience of a court order. Appellant cites in his brief, and this court finds
controlling, the case of Weinstein v. Heimberg, 490 S.W.2d 692 (Tenn. Ct. App.
1972). Here, as in Weinstein, the only evidence offered shows that the husband
has not paid his wife’s attorney’s bill in full. The record before us reveals no
wilful refusal on the part of Mr. Robson. The debt that was alleged in the

                                        3
petition was no more than two months in arrears. The Weinstein court found, as
this court does here, that under facts such as these, a contempt petition is
inappropriate.


II.   Proper Parties to Alimony Awards
      Even if the instant contempt petition had been filed in keeping with the
requirements of Tennessee's contempt statute, the original grant of attorneys fees
as alimony in solido and as a judgment in favor of Appellee's counsel would not
support such an action. Alimony is a right in the nature of rehabilitation for the
needy spouse. See Gilliam v. Gilliam, 776 S.W.2d 81, 86 (Tenn. Ct. App. 1998).
This court has held previously that attorney's fees awards should not be granted
directly to a spouse's attorney insofar as the attorney is not a party to the divorce
action. Wilson v. Wilson, No. 01-A-01-9707-CV-00325, 1998 WL 557609 at
*12 (Tenn. Ct. App. Sept. 2, 1998). Such an award does violence to the concept
and purpose of alimony and shall be considered void. On remand, this court
suggests that the parties may desire to file a motion pursuant to Tenn. R. Civ. P.
60.02(1998) to correct the Final Divorce Decree to reflect a proper attorney's fee
award in favor of the Appellee herself as opposed to her counsel.


      In light of these circumstances, the Order of Contempt is hereby vacated
and the finding of the court below reversed. The cause is remanded to the trial
court for such further proceedings as are necessary. Costs on appeal are taxed
against the Appellee.




                                         _______________________________________
                                         WILLIAM B. CAIN, JUDGE

CONCUR:


________________________________________
BEN H. CANTRELL, PRESIDING JUDGE,M.S.


________________________________________
WILLIAM C. KOCH, JR., JUDGE




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