                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 March 29, 2012 Session

           DEANNA LYNNE DODD v. MICHAEL THOMAS DODD

              Appeal from the General Sessions Court for Wilson County
                        No. 2009DC153      John Gwin, Judge


                 No. M2011-02147-COA-R3-CV - Filed August 6, 2012


In this post-divorce proceeding, the mother of the parties’ only minor child filed two motions
to alter or amend the divorce decree in order to clarify the parties’ obligations under the
marital dissolution agreement regarding their 2009 income tax returns, and two petitions for
civil contempt. The contempt petitions alleged that the father failed to make timely child
support payments and failed to reimburse the mother for mortgage payments, medical
expenses, and school-related expenses for the parties’ child. The trial court denied the
motions to alter or amend, finding that the amendment sought by the mother was unnecessary
and that the father breached the tax provision of the MDA as written. The court also denied
the petitions for civil contempt, finding that the father purged himself of the contempt prior
to hearing on the petitions. The court ordered the father to pay the mother $10,302.36 plus
post-judgment interest for the tax liability she incurred due to the father’s refusal to file a
joint tax return and $3,500 for the attorney’s fees the mother incurred in filing the petitions
for contempt. We affirm.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
                                      Affirmed

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

Helen Sfikas Rogers and Siew-Ling Shea, Nashville, Tennessee, for the appellant, Michael
Thomas Dodd.

Timothy T. Ishii and Phillip R. Robinson, Nashville, Tennessee, for the appellee, Deanna
Lynne Dodd.
                                          OPINION

        Deanna Lynne Dodd (“Mother”) filed a complaint for divorce from Michael Thomas
Dodd (“Father”) on December 30, 2009. The parties had been married for approximately ten
years and had one minor child. Although they owned several residential properties, the
parties continued to live together during the divorce proceedings and they constantly had
problems. On August 2, 2010, upon Mother’s motion, the trial court entered an Order on
Temporary Support and Parenting Time (“Temporary Order). The Temporary Order
addressed a myriad of issues that had been escalating between the parties including, inter
alia, respecting one another’s privacy and space within the marital residence, dividing the
household bills and chores, and how not to interfere with the other party’s parenting time.

       For purposes of this appeal, the most important issue addressed in the Temporary
Order was the parties’ federal income tax return for 2009. Father is a Certified Public
Accountant and was the primary breadwinner. At the time of the marriage, Wife worked full-
time as a OB/Gyn Nurse Practitioner, but subsequently quit to begin working part-time for
herself as a realtor and interior designer. During their ten years of marriage, Father prepared
the parties’ tax returns and they always filed joint returns. The Temporary Order provided:

       The Court finds that while it does not have the authority to require the parties
       to file a joint federal income tax return for 2009, the Court finds that if either
       party elects to file . . . separately, a calculation shall be made on the party’s
       respective incomes, expenses and deductions filing separately and jointly. The
       party who refuses to file jointly will be required to pay to the other party any
       extra expenses that result to that party from not filing jointly.

        The parties continued to have a strained relationship and Father refused to present a
joint tax return to Mother for their 2009 return. As a result, Mother hired an accountant to
prepare her return and Mother filed an individual tax return for 2009. By filing individually,
Mother was required to pay an additional $10,302.36 in federal income tax liability.

        The divorce complaint was set to be tried on March 28 & 29, 2011; however, during
mediation on March 10, 2011, the parties were able to agree to a Permanent Parenting Plan
for their minor child and a Marital Dissolution Agreement (“MDA”). With regard to the 2009
tax return, the MDA states, “The parties will file an amended form 1040 tax return for 2009,
to be prepared by [Father], and any refund will be awarded to [Mother].” The trial court
approved the parties’ agreements, and both were incorporated into the Final Divorce Decree,
which was entered March 14, 2011.




                                              -2-
        The cooperation was short-lived. After the entry of the Final Divorce Decree, Mother
learned that Father failed to pay the March 2011 mortgage payment of $1,580.08 as required
in the MDA. She also learned that Father failed to pay his share of the parties’ child’s school
fees and medical bills. Further, Father persisted in refusing to provide the 2009 joint tax
return for the court’s review and indicated to Mother that, under the language of the MDA
– which did not use the term “joint” – he was not required to do so. He also informed Mother
that he found her business records were inadequate and that as a CPA, he could not attest to
the accuracy of a tax return prepared in reliance on her records.

        Father’s acts and omissions prompted Mother to file a Motion to Alter or Amend Final
Decree of Divorce on April 13, 2011, to include the word “joint” in the provision regarding
the 2009 tax return. Then she filed a Petition for Civil Contempt on May 10, 2011 for
Father’s failure to prepare the joint return and his failure to pay the aforementioned expenses.
Mother also filed an Amended Motion to Alter or Amend on August 12, 2011, and a Motion
to Amend Pending Contempt Petition on August 17, 2011. The resolution of these motions
is the subject of this appeal.

       A hearing on the motions and petitions was held on August 23, 2011. By order entered
September 23, 2011, the trial court denied Mother’s Motions to Alter or Amend, finding that
the requested changes were not necessary because the MDA already required Father to file
a joint tax return with Mother for 2009. The trial court also denied the Petitions for
Contempt, finding that by the date of the hearing, Father had cured his contempt by paying
most of his financial obligations. However, the trial court found that Mother was entitled to
a judgment for her tax liability and that, under the MDA, Mother was entitled to her
reasonable attorney fees incurred in prosecuting the Petitions for Contempt. Thus, the court
awarded Mother a money judgment against Father for $10,302.36 for her tax liability and
$3,500 in attorney’s fees. The court denied Mother’s request that Father be ordered to pay
child support by wage assignment, but admonished Father to timely satisfy his financial
obligations under the MDA and the Parenting Plan in the future. Father was also admonished
to stop referring to Mother by her maiden name.

        Father filed this appeal in which he raises several overlapping issues. He contends the
trial court erred in hearing the Motions to Alter or Amend at the same time as the Petitions
for Civil Contempt. He also asserts the money judgments entered against him for Mother’s
tax liability and attorney’s fees should be vacated because they were based on the trial court’s
erroneous finding of civil contempt, which, Father asserts, was based on the trial court’s
erroneous interpretation of the MDA as incorporated into the Final Divorce Decree.

       Both parties also seek an award for attorney’s fees incurred on appeal.



                                              -3-
                                                 A NALYSIS

                                                       I.

       Father contends the trial court erred by considering the Rule 59 Motions to Alter or
Amend the Final Decree of Divorce during an evidentiary hearing on the Petitions for Civil
Contempt; however, Father cites no authority to support his assertion that the trial court’s
decision to conduct the hearings at the same time constitutes error and we are aware of no
such authority.

       Father's argument on this issue, as we understand it, is that by considering both
motions during the same hearing, the trial court could have substantively modified the Final
Decree of Divorce and simultaneously held Father in civil contempt for violating the newly
amended Final Decree of Divorce. As this opinion explains, the trial court did neither. Thus,
we find no error.

                                                      II.

       Father contends the trial court erred in finding him in civil contempt of the Final
Decree of Divorce, the MDA, and the permanent parenting plan because, he asserts, the
court’s decision was solely based upon conclusory allegations and argument of counsel, and
the court’s findings of fact are unsupported by any testimony or documentary evidence.

       Civil contempt is imposed at the insistence and for the benefit of the party who has
suffered a violation of rights and the purpose of civil contempt is to coerce compliance with
the court’s orders. Doe v. Bd. of Prof’l Responsibility of Sup. Ct. of Tenn., 104 S.W.3d 465,
473-74 (Tenn. 2003); see also Overnite Transp. Co. v. Teamsters Local Union No. 480, 172
S.W.3d 507, 510 (Tenn. 2005) (stating that a civil contempt action is generally brought to
enforce private rights).1

        Civil contempt occurs when a person does not comply with a court order and
        an action is brought by a private party to enforce rights under the order that has
        been violated. Punishment for civil contempt is designed to coerce compliance

        1
          The substantive difference between civil contempt and criminal contempt is that criminal contempt
is not used to enforce a private right of a party, instead, criminal contempt is used to “preserve the power and
vindicate the dignity and authority of the law” as well as to preserve the court “as an organ of society.” Black
v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996); see also Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct.
App. 1993). Another substantive difference is that in criminal contempt proceedings, “the defendant is
presumed to be innocent and must be proven guilty beyond a reasonable doubt.” Doe, 104 S.W.3d at 474
(citing Shiflet v. State, 400 S.W.2d 542, 543 (Tenn. 1966)).

                                                      -4-
       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.

Doe, 104 S.W.3d at 474 (internal citations omitted).

       Father asserts on appeal that he was held in civil contempt by the trial court; however,
we do not find such a ruling in the record. Ironically, Mother even states in her brief: “It is
unclear from the Trial Court’s findings that it found the [Father] in civil contempt.” In
another section of her brief Mother states:

       Again, it is [Father’s] contention that he was held in civil contempt by the trial
       court. As the appellant, [Father] frames the issues the appellee has to respond
       to and is not [Mother’s] contention that [Father] was found in civil contempt
       but rather that he was found to have breached material portions of the MDA
       and the court invoked the remedies clause of the MDA to award money
       damages.

        In its written ruling by correspondence dated August 30, 2011 addressed to counsel
for the parties, the trial court made the following finding that is pertinent to this issue:

       1. Father has purged himself of most, if not all, of the monetary contempt
       issues prior to trial.

       2. Father did not purge himself in a timely manner, necessitating Mother’s
       filing of the contempt petition and the attorney fees attendant thereto.

        The record supports a finding that some of Father’s acts and omissions were in
violation of the trial court’s orders when the petitions for civil contempt were filed, however,
as the trial court correctly found, he purged himself prior to the hearing. Thus, he was not in
civil contempt at the time of the hearing. See Doe, 104 S.S.3d at 473-74 (the office of civil
contempt is to coerce compliance with the court’s orders for the benefit of the private party
who has suffered a violation of rights, when the contemnor cures the contemptuous conduct,
he or she is no longer in civil contempt).

       We note, however, that the trial court did not hold Father in civil contempt. As Mother
correctly states in her brief, nowhere in the court’s ruling is there a finding of contempt.




                                              -5-
                                             III.

       Father also takes issue with the money judgments the trial court awarded to Mother,
which, he asserts, flow from the trial court’s erroneous findings of civil contempt. As
explained in the preceding section, we have concluded Father was not found to be in civil
contempt. However, that conclusion does not undermine the propriety of the money
judgments awarded to Mother.

        Divorcing parties frequently enter into marital dissolution agreements to divide their
marital estate. Once they are approved by a court, these agreements “become legally binding
obligations on the parties.” Long v. McAllister-Long, 221 S.W.3d 1, 8-9 (Tenn. Ct. App.
2006). With certain exceptions not applicable in this case, “the agreements in a marital
dissolution agreement are enforceable contract obligations.” Id. at 9; see also Penland v.
Penland, 521 S.W.2d 222, 224 (Tenn. 1975) (holding that “only that portion of a property
settlement agreement between husband and wife dealing with the legal duty of child support,
or alimony over which the court has continuing statutory power to modify, loses its
contractual nature when merged into a decree for divorce”). As such, marital dissolution
agreements “should be construed and enforced like other contracts”– that is, the court’s goal
is to ascertain and to give effect to the parties’ intentions. Long, 221 S.W.3d at 9 (citing
Ahern v. Ahern, 15 S.W.3d 73, 81 (Tenn. 2000)). The court “should defer to the contracting
process by construing the marital [dissolution agreement] fairly and reasonably.” Id. (citing
Pylant v. Spivey, 174 S.W.3d 143, 152 (Tenn. Ct. App. 2003)). In addition, like other
contracts, a marital dissolution agreement contains “an implied covenant of good faith and
fair dealing.” Id. (citing Elliott v. Elliott, 149 S.W.3d 77, 84 (Tenn. Ct. App. 2004)).

       “Our search for the parties’ intentions must begin with the language of the marital
dissolution agreement itself. Each provision must be considered in light of the entire
agreement, and the language of each provision should be given its natural and ordinary
meaning.” Id. (citing Elliott, 149 S.W.3d at 84 (Tenn. Ct. App. 2004); Davidson v. Davidson,
916 S.W.2d 918, 922-23 (Tenn. Ct. App. 1995)).

       The relevant provisions of the MDA, Paragraphs 14 and 20, provide as follows:

       14.    Taxes. The parties shall file separate returns for 2010. The parties will
              file an amended form 1040 tax return for 2009, to be prepared by
              [Father], and any refund will be awarded to [Mother].
       ....




                                             -6-
                                  GENERAL PROVISIONS
       ....

       20.     In the event that it becomes reasonably necessary for either party to
               institute legal proceedings to procure the enforcement of any provisions
               of this agreement, he or she shall be entitled to a judgment for
               reasonable expenses, including attorney’s fees, incurred in prosecuting
               the action.

      The trial court made the following findings relative to these provisions in the
September 23, 2011 Order:

       D. The parties hard-fought Marital Dissolution Agreement, adopted by the
       Court on March 14, 2011, and in particular paragraph 14 thereof, clearly
       intends that the parties will file a joint tax return for 2009. Husband had
       previously prepared just such a document. Note that the language in paragraph
       14 calls for a tax return - singular. . . .
       ....

       In light of the foregoing findings, the Court will not interfere with the parties’
       agreement as to taxes. The Court enters a money judgment against Father and
       in favor of Mother in the amount of $10,302.36, plus interest at the statutory
       rate from and after March 14, 2011, and for all of which execution may issue
       if necessary. . . . Pursuant to Paragraph 20 of the parties’ Marital Dissolution
       Agreement, Mother shall have and recover a money judgment against Father
       for a portion of her attorney fees, in the amount of Three Thousand Five
       Hundred ($3,500.00) Dollars, for which execution may issue if necessary.

We agree with the trial court’s interpretation of the MDA that Father entered into a contract
that required him to prepare an amended joint tax return for 2009 and that Mother was
entitled to a judgment for her reasonable expenses in having to file the Motions to Alter or
Amend and the Petitions for Civil Contempt due to Father’s breach of the MDA.

        Regarding the tax return provision, the use of the singular “tax return” indicates a joint
tax return; if the parties filed separately, there would be two “tax returns” for 2009. At most,
given the absence of the word “joint,” the MDA could be considered “ambiguous,” or
“susceptible to more than one reasonable interpretation,” which would require this Court to
“look beyond the four corners of the document and consider extrinsic evidence in order to
determine the parties’ intention.” Cummings, Inc. v. Dorgan, 320 S.W.3d 316, 322 (Tenn.
Ct. App. 2009) (internal citations omitted). The record in this case, most notably the

                                               -7-
Temporary Support Order, clearly establishes that the intent of this agreement was for Father
to prepare a joint income tax return, as he had done every year of the parties’ marriage.

       The record establishes that Father refused to prepare the amended joint tax return in
violation of the MDA,2 and as a result, Mother was forced to file separately. Moreover, the
record establishes that when Mother filed her Petitions for Civil Contempt, Father had
several overdue financial obligations to Mother, including the March mortgage on the
property awarded to Wife, the child’s school fees, and the child’s medical expenses.3 Because
Father failed to comply with material provisions of the MDA in a timely fashion, it was
reasonable for Mother to institute legal proceedings to procure enforcement of these
provisions. Accordingly, pursuant to Paragraph 20 of the MDA, Mother was entitled to
recover her reasonable expenses incurred in prosecuting this action, including attorney’s fees.

        The trial court determined that Mother was entitled to a judgment in the amount of
$10,302.36 for the economic loss occasioned by Father’s refusal to file a joint income tax
return for 2009. The evidence in the record does not preponderate against this finding.

        The trial court also determined Mother was entitled to a judgment of $3,500 for her
attorney’s fees. We review the amount of an award of attorney’s fees under the abuse of
discretion standard. Huntley v. Huntley, 61 S.W.3d 329, 341 (Tenn. Ct. App. 2001). Under
this standard, we are required to uphold the trial court’s ruling “as long as reasonable minds
could disagree about its correctness,” and “we are not permitted to substitute our judgment
for that of the trial court.” Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App. 2007).
Having reviewed the record and considered the factors we believe relevant to this issue, we
are unable to conclude that the trial court abused its discretion in awarding Mother $3,500
to recover her attorney’s fees to enforce the MDA.




        2
          We acknowledge Father’s assertion that Mother’s business records were inadequate; specifically
that she had approximately $50,000 in “unexplained deposits.” Father asserts these “unexplained deposits”
prevented him from being able to attest to the accuracy of a joint tax return unless he counted the deposits
as income, which would cause both parties to incur substantial tax liability. Thus, it is apparent that Father
was refusing to file a joint tax return for, if he included Mother’s deposits as income, he would have been
required to pay additional taxes.
        3
         The Permanent Parenting Plan states: “The parents agree to divide all costs for the child’s private
school [including but not limited] to the tuition, uniforms, fees, and books with the Father paying 75% of said
cost and the Mother paying 25% of said cost.” It also provides that, “Uncovered reasonable and necessary
medical expenses, . . . as recommended by the child’s physicians, will be divided with the Father paying 75%
of uncovered costs and the Mother paying 25% of uncovered costs.”

                                                     -8-
      Thus, we affirm the award of $10,302.36 for Mother’s tax liability and the award of
$3,500 for a portion of Mother’s attorney’s fees.

                                             IV.

       Each party seeks to recover his/her attorney’s fees incurred on appeal. Whether to
award attorney’s fees on appeal in this matter is within the sole discretion of this court.
Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995); see also Elliott, 149 S.W.3d
at 88.

       We have already noted that Mother was entitled to recover her reasonable expenses,
including attorney’s fees, incurred to procure the enforcement of provisions of the MDA.
Mother successfully defended Father’s appeal of the trial court’s decisions. Considering
Mother’s success on appeal, we hold that Mother’s request to recover her expenses and
attorney’s fees incurred in defending this appeal is justified. Therefore, on remand, the trial
court should determine the reasonable and necessary attorney’s fees Mother incurred on
appeal and make an appropriate award after considering the relevant factors and the MDA.

                                      I N C ONCLUSION

       The judgment of the trial court is affirmed and this matter is remanded with costs of
appeal assessed against the appellant, Michael Thomas Dodd.




                                                       ______________________________
                                                       FRANK G. CLEMENT, JR., JUDGE




                                              -9-
