                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                             June 7, 1999 Session

                            CATHY ANITA HARRIS ANDERTON v.
                              GERALD DWAYNE ANDERTON

                       Appeal from the Chancery Court for Rutherford County
                                No. 96DR-1200    Don R. Ash, Judge


                       No. M1998-00950-COA-R3-CV - Filed February 25, 2003


The trial court awarded rehabilitative alimony to wife who, in her complaint, did not seek alimony
but who testified at discovery that she was indigent and needed financial assistance. Husband argues
that absent a pleaded request for alimony, the trial court was powerless to award it. The trial court
disagreed. We affirm. Husband’s petition alleging that wife was in criminal contempt for failing
to allow visitation with the child of the parties was dismissed, and husband appeals. An acquittal
of criminal contempt cannot be appealed.

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

WILLIAM C. KOCH , JR.,J., WILLIAM B. CAIN , J., AND PATRICIA J. COTTRELL , J.

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Gerald Dwayne Anderton.

Daryl M. South, Murfreesboro, Tennessee, for the appellee, Cathy Anita Harris Anderton.


                                         MEMORANDUM OPINION1

                                                            I.

       These parties were married in 1984. A son, Eric, was born in 1988. The marriage was not
a success, and wife filed suit in 1997, seeking a divorce, custody, child support and a division of




       1
           Tenn. Ct. App. R. 10(b) provide s:

                   The Court, with the concurrence of all judges participating in the case, may affirm,
                   reverse or modify the actions of the trial court by memorandum opinion when a
                   formal opinion would have no precedential value. When a case is decided by
                   memorand um opinion it shall be designated “M EM OR AN DU M OP INION ,” shall
                   not be published, and shall not be cited or relied on for any reason in a subsequent
                   unrelated case.
marital assets. She demanded general relief, but did not specifically seek alimony. 2 She was
awarded all the relief specifically sought.

        A local court rule requires the parties in a domestic relations case to file a statement of the
contested issues. Each of these parties complied with the local rule; wife’s statement fairly indicated
that she would seek alimony.

       In course the wife’s discovery deposition was taken during which she acknowledged that she
was aware that she had not demanded alimony, although she was in need of support and intended
to amend her complaint to seek alimony. For reasons not reflected in the record the plaintiff did not
amend her complaint, and upon the trial merely testified to her need for alimony in some amount.
Need and the ability to pay are critical factors to be considered in an award of alimony. Loyd v.
Loyd, 860 S.W.2d 409 (Tenn. Ct. App. 1993). The award is within the sound discretion of the trial
judge. Houghland v. Houghland, 844 S.W.2d 619 (Tenn. Ct. App. 1992).

        She was awarded rehabilitative alimony of $200.00 monthly for three years over the objection
of husband, who protested that she had not specifically demanded alimony. This is the basis for the
primary issue on appeal. Our review is de novo on the record. Since the issue is one of law, there
is no presumption of correctness. Vooys v. Turner, 49 S.W.3d 318 (Tenn. Ct. App. 2001).

                                                            II.

         Rule 54.03 of the Rules of Civil Procedure provides:

                   Except as to a party against whom a judgment is entered by default,
                   every final judgment shall grant the relief to which the party in whose
                   favor it is rendered is entitled, even if the party has not demanded
                   such relief in the party’s pleadings; but the court shall not give the
                   successful party relief, though such party may be entitled to it, where
                   the propriety of such relief was not litigated and the opposing party
                   had no opportunity to assert defenses to such relief.

        Husband relies upon Qualls v. Qualls, 589 S.W.2d 906 (Tenn. 1979) as authority for his
argument that alimony cannot be awarded unless the party to whom alimony is awarded has
specifically demanded it. We do not agree. Qualls is applicable only in cases wherein a default
judgment was entered. In the case at Bar, the resolving issue is whether the propriety of an award
of alimony was litigated and whether husband was afforded an opportunity to defend against the
award.3



         2
          The complaint, drafted by wife’s first counsel, is not a model one. It alleges that the “plain tiff has ph ysically
abused the plaintiff”; that the “plain tiff has physically and sexually assaulted the minor child”; that the “plain tiff is
abusing drugs and alcohol.” The comp laint was never ame nded to correct the obvious erro rs.

         3
            Husband does not question the need of wife to a limony, nor his ability to pay the awa rd, altho ugh in his
statement filed p ursuan t to the loc al rule the numb ers indicated that his living expenses preclud ed alim ony.

                                                            -2-
         We think that husband had adequate notice that alimony would be a contested issue upon
the trial. He was aware of the poverty of wife; he was aware of her compliance with the local rule
which indicated her need for support; he was aware of her testimony eighteen months before trial
that she would request alimony. It cannot be argued that husband was not afforded an opportunity
to defend; the record fairly reflects that he simply availed himself of the opportunity afforded by
inattentive counsel. This Court has consistently held that as a matter of justice a deserving spouse
must be provided support if that issue, though not pleaded, was litigated upon adequate notice.4 The
award of alimony is affirmed.

                                                          III.

       The second of two issues which husband presents for review is directed to the dismissal of
his contempt petition filed against wife for her purported failure to comply with the trial court’s
interim visitation order.

        Preceding trial of the case, the trial judge awarded wife temporary custody of the minor child.
Husband was awarded visitation privileges each Sunday. On the first designated Sunday, Eric was
made available at the Sheriffs Office by his mother. When husband arrived, Eric became
emotionally upset5 and refused to go with his father. Witnesses testified that Eric violently resisted
attempts to persuade him to visit his father, to the point of injuring himself. The mother thereafter
did not take Eric to the scheduled place for visitation, thereby triggering the petition for criminal
contempt. The trial judge dismissed the petition, finding that wife’s actions were not malicious, and
that she did not intentionally disobey the court’s order of visitation.

        Husband argues that the trial judge erred in dismissing his petition for contempt. We cannot
reach this argument, because in this jurisdiction there is no right of appeal from an acquittal in a
criminal contempt case. Gunter v. Seaboard Copper Mining Co., 142 Tenn. 14, 215 S.W. 273
(Tenn. 1919); Archer v. Archer, 907 S.W.2d 412 (Tenn. Ct. App. 1995); Zwick v. Jones, 589
S.W.2d 664 (Tenn. Ct. App. 1979).

        The judgment is affirmed at the costs of the appellant.



                                                                 PER CURIAM




        4
         See, Bulla v. Bulla, No. 01A -01-9 004 -CV -001 33, 1 990 W L 16 029 1; Moore v. M oore, No. 87-92-II, 1988
WL 63498.

        5
            Eric’s problems, exacerbated by his parents unpleasantnesses to each other, required professional attention.

                                                          -3-
