                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   August 27, 2001 Session

                 HOWARD ZOLDESSY v. INGRID DAVIS, ET AL.

                    Appeal from the Chancery Court for Anderson County
                      No. 98CH6737 William E. Lantrip, Chancellor

                                   FILED OCTOBER 31, 2001

                                 No. E2000-02526-COA-R3-CV


Upon the application of Howard Zoldessy, a temporary injunction was issued by the trial court
against the defendants, Ingrid Davis and Arthur Davis. The Davises are the parents of Zoldessy’s
deceased wife and the grandparents of Zoldessy’s daughter, Rachel. The injunction in question
prohibits the defendants “from coming about [Howard Zoldessy] and his daughter, Rachel Zoldessy,
or contacting him in any manner whatsoever.” Following a bench trial, the trial court found that both
defendants had committed willful criminal contempt by “coming about [Zoldessy’s] residence on
October 4, 1999.” Each defendant was sentenced to 48 hours imprisonment for their contempt. Mr.
Davis was also found in contempt for sending letters to Zoldessy and was sentenced to an additional
term of imprisonment of 48 hours. The defendants appeal the trial court’s findings of contempt, as
well as the sentences imposed. We affirm the finding of contempt as to the letters sent to Zoldessy;
however, we reverse the finding of contempt for the defendants’ purported “coming about” Zoldessy
and his daughter.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                     Affirmed in Part; Reversed in Part; Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.

Vivian L. Crandall, Oak Ridge, Tennessee, for the appellants, Ingrid Davis and Arthur Davis.

David L. Valone, Knoxville, Tennessee, for the appellee, Howard Zoldessy.

                                             OPINION

                                                  I.

        In this appeal, we are asked to review the trial court’s findings of willful criminal contempt
against the defendants, Ingrid Davis and Arthur Davis. On appeal, the defendants are “burdened
with the presumption of guilt, and in order to obtain a reversal, [they] must overturn this presumption
by showing that the evidence preponderates in favor of [their] innocence.” Robinson v. Air Draulics
Eng’g Co., 214 Tenn. 30, 37, 377 S.W.2d 908, 912 (1964).

        At the outset, the defendants contend that the trial court’s findings of contempt are erroneous
because, according to their argument, the record does not indicate that the injunction was issued or
that a copy was ever served upon them. We find otherwise. The record on appeal indicates that it
was supplemented by the agreement of the parties to include the following documents: (1) the
temporary injunction, which was issued on August 26, 1998; (2) a letter from the Secretary of State
indicating that the defendants were served through his office on September 5, 19981; and (3) a return
receipt signed by Mr. Davis on September 5, 1998. Clearly, the record as supplemented reflects that
an injunction was properly issued and served. Their argument to the contrary is without merit.

         While the defendants admit that they drove through the grounds of the apartment complex
in which Zoldessy and his daughter Rachel lived, they argue that their conduct does not violate the
injunction and therefore cannot serve as a basis for a finding of contempt. We agree. Mr. Davis
testified by deposition that when he drove by Zoldessy’s residence to see if Zoldessy was home, he
“found nothing, except looking at the apartment, the blinds were drawn.” Mr. Davis testified that
he did not see Zoldessy’s car in the parking lot of the complex. While this evidence establishes
beyond doubt that the defendants drove through the grounds of the apartment complex on the day
in question, one critical element is missing: there is no proof in the record that Zoldessy or his
daughter were home at the time the defendants drove through the vehicle passageways of the
complex. Without proof to establish that Zoldessy or his daughter were present when the defendants
drove by, there is nothing in this record upon which to base a finding that the defendants “[came]
about the petitioner and his daughter.”2 Accordingly, we reverse the trial court’s finding of contempt
for this conduct.

        While not seriously disputing that sending letters to Zoldessy would violate the conduct
prohibited by the injunction, Mr. Davis argues that he should not have been incarcerated for 48 hours
for his conduct, because, so the argument goes, the letters were merely emotional pleas for contact
with his granddaughter and were not threatening. Whether or not the letters sent by Mr. Davis were
threatening in nature, however, is not the issue. The language of the injunction is clear: the
defendants are prohibited from “contacting [Zoldessy] in any manner whatsoever.” (Emphasis
added). Mr. Davis violated the injunction when he contacted Zoldessy in writing. What he
attempted to convey in those letters is, for our purposes, of no consequence.



         1
             The defendants reside in Boca Raton, Florida.

         2
           Zoldessy argues that his in-law s should be punished b ecause they “inte nded” to violate the injunction. Intent
is only “half of the equation”; there must also be co nduct pro scribed b y the exact langu age of the injun ction. See Harris
v. Corley, C/A No. 01A01-9012-CH-00446, 1991 WL 66708, at *4 (Tenn. Ct. App. M.S., filed May 1, 1991) (citing 43A
C.J.S. Injunctions § 243, p. 537) (holding that where disobedience of an injunction is punishable as a penal offense, the
injunction should be strictly construed in favor of the person alleged to have violated it). In the instant case, the Davises
did not engage in the conduct forbidden by the injunction.

                                                             -2-
        The trial court imposed a sentence of 48 hours in jail as punishment for Mr. Davis’ contempt.
We will not disturb this ruling. “Appellate courts are loathe to interfere or modify the punishment
imposed in contempt proceedings because such determinations lie within the sound discretion of the
court.” Herrera v. Herrera, 944 S.W.2d 379, 393 (Tenn. Ct. App. 1996). By statute, a court may
impose a fine or imprisonment up to ten days as punishment for contempt. See T.C.A. § 29-9-103
(2000). Upon reviewing the record, we cannot say that the trial court abused its discretion in
sentencing Mr. Davis to 48 hours in jail for sending letters to Zoldessy.

                                                  II.

        The judgment of the trial court finding Ingrid Davis and Arthur Davis in willful criminal
contempt for “coming about” the plaintiff and sentencing each to 48 hours in jail is reversed. Both
the finding of contempt as to Mr. Davis for “contacting” the plaintiff through letters and the sentence
of 48 hours imposed for this contempt are affirmed. This case is remanded for enforcement of the
trial court’s judgment with respect to the latter sentence and for collection of costs assessed below,
all pursuant to applicable law. Exercising our discretion, costs on appeal are taxed against the
appellant, Arthur Davis.


                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




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