                                                                                                   07/08/2019
                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                              Assigned on Briefs June 5, 2018

           CHRISTINA KLEPPER NEELY v. BRIAN RICHARD NEELY

                  Appeal from the Chancery Court for Sullivan County
                     No. C0016966C      E. G. Moody, Chancellor
                       ___________________________________

                             No. E2017-01807-COA-R3-CV
                         ___________________________________


Mother moved to hold Father in criminal contempt for his failure to pay child support in
full each month. After finding a failure to pay child support as ordered, the court held
father in criminal contempt. Because the order contains insufficient findings of fact, we
vacate the judgment and remand for further proceedings.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated
                                and Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which THOMAS R.
FRIERSON II and ARNOLD B. GOLDIN, JJ., joined.

C. Brad Sproles, Kingsport, Tennessee, for the appellant, Brian Richard Neely.

No brief filed on behalf of the appellee, Christina Klepper Neely.

                                MEMORANDUM OPINION1

                                                 I.

       On May 19, 2016, the Chancery Court for Sullivan County, Tennessee, entered an
order reducing the child support obligation of Brian Richard Neely (“Father”) from
$1,244 to $890 per month retroactive to June 2014, when the older of his two children
graduated high school. Among other things, the court also found that a child support
arrearage had accrued in the amount of $4,517.70, which the court ordered Father to pay
to Christina Klepper Neely (“Mother”) in full, plus interest, within 30 days.

       1
           Under the rules of this Court, as a memorandum opinion, this opinion may not be published,
“cited[,] or relied on for any reason in any unrelated case.” Tenn. Ct. App. R. 10.
       On June 7, 2017, Mother filed her “Second Amended Fourth Motion for
Contempt” (the “Contempt Motion”).2 According to Mother, Father “failed to pay child
support in the amount of [$]890.00 per month as Ordered by this Court” since March
2016. And she alleged that Father “ha[d] made no voluntary payment of child support in
any amount since December 2, 2016.”3 Mother sought a finding that Father “willfully
and without Order of this Court has failed to pay child support in the amount Ordered by
this Court from March 1, 2016 to current date.” Mother requested that Father be found in
“willful criminal contempt” and be “punish[ed] . . . to the full extent necessary including,
but not limited to incarceration, to vindicate the authority of the Court and prevent future
violations.” Mother also sought payment of the accumulated child support arrearage plus
interest, attorney’s fees, court costs, and suit expenses.

       On July 10, 2017, the court held a hearing on the Contempt Motion. Following
the hearing, the court entered an order noting that the parties had a pending mediation on
Father’s petition for modification of the parties’ parenting plan scheduled for July 20.
The order provided that, if the issues of support and visitation remained unresolved
following mediation, the court would “conduct a teleconference with the attorneys and
announce its ruling on [the Contempt Motion].” The court reserved “[a]ll other matters.”

       Mediation proved unsuccessful. And, on July 27, 2017, the court entered an order
finding that Father “ha[d] failed to voluntarily make a child support payment to Mother
since early December 2016” and that the child support arrearage was now $9,628.80.
The court ordered Father to pay Mother the child support arrearage with interest within
30 days. Additionally, the court “award[ed] Mother her attorney fees . . . and suit
expenses,” also to be paid within 30 days. Finally, the court held Father “in criminal
contempt with punishment reserved.”

       A month later, on August 29, 2017, the court ordered Father “to serve ten (10)
days in jail and . . . to pay a fine of fifty dollars ($50.00) within thirty (30) days.” But it
allowed “Father [to] make a purge payment directly to Mother in the amount of
$9,949.19 by September 1, 2017 in lieu of serving ten (10) days in jail.”




       2
          As is evident from the style of the pleading, Mother moved for Father to be held in contempt
several times. But because the court’s orders holding Father in criminal contempt reference only the
Second Amended Fourth Motion for Contempt, it is unnecessary to recount all of Mother’s efforts to
obtain a contempt finding.
       3
         Mother acknowledged that Father “paid approximately $370 per week from early December
2016 through mid May 2017 . . . pursuant to garnishment to satisfy a judgment executed in this matter.”
                                                  2
                                             II.

       On appeal, Father contends that the trial court erred in holding him in criminal
contempt. Specifically, Father claims that the court failed to conduct an evidentiary
hearing or afford him an opportunity to present evidence in opposition to the Contempt
Motion.

       Under Tennessee Code Annotated § 29-9-102(3) (2012), courts have the power to
“issue attachments, and inflict punishments for contempts of court” for “[t]he willful
disobedience or resistance of any officer of such courts, party, juror, witness, or any other
person, to any lawful writ, process, order, rule, decree, or command of such courts.” A
finding of contempt may be either civil or criminal in nature. Doe v. Bd. of Prof’l
Responsibility, 104 S.W.3d 465, 473 (Tenn. 2003). Civil contempt is intended to benefit
a private party who has suffered a violation of rights, and “the quantum of proof
necessary to convict is a preponderance of the evidence.” Id. at 473-74. But criminal
contempt, which is at issue here, “is punishment for failing to comply with an order.”
Sherrod v. Wix, 849 S.W.2d 780, 786 n.4 (Tenn. Ct. App. 1992). “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.

        Civil or criminal contempt requires four elements: (1) the order allegedly violated
must be lawful; (2) the order must be clear and unambiguous; (3) the individual charged
must have violated the order; and (4) the individual must have acted willfully in violating
the order. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 354-
55 (Tenn. 2008); Furlong v. Furlong, 370 S.W.3d 329, 336 (Tenn. Ct. App. 2011)
(stating that the four-element analysis outlined in Konvalinka applies to criminal and civil
contempt actions). Father argues that the lack of an evidentiary hearing deprived him of
“the opportunity to present evidence as to the issue of willfulness.”

       In the context of criminal contempt, willfulness has two elements: (1) intentional
conduct and (2) a culpable state of mind. See State v. Beeler, 387 S.W.3d 511, 523-24
(Tenn. 2012); Konvalinka, 249 S.W.3d at 357. “Determining whether the violation of a
court order was willful is a factual issue that is uniquely within the province of the finder-
of-fact who will be able to view the witnesses and assess their credibility.” Konvalinka,
249 S.W.3d at 357. We review the trial court’s finding on willfulness “de novo upon the
record of the trial court, accompanied by a presumption of the correctness of the finding,
unless the preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d).

      Here, the court did not make a willfulness finding. The court only found that
“Father has failed to voluntarily make a child support payment to Mother since early
December 2016” and the amount of the child support arrearage. So we are unable to
determine whether the standards for criminal contempt were satisfied. See Parimore v.
Parimore, No. W2016-01188-COA-R3-CV, 2017 WL 657771, at *6 (Tenn. Ct. App.
                                          3
Feb. 17, 2017) (“[T]he record is utterly devoid of any order actually finding Husband’s
conduct to be willful or finding him in contempt, nor is there any indication in the record
that an evidentiary hearing was ever held on Wife’s contempt petition.”).

       The requirement of detailed findings of fact and conclusions of law is “not a mere
technicality.” In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8
(Tenn. Ct. App. May 15, 2009). Absent these findings, we are “left to wonder on what
basis the court reached its ultimate decision.” Id. (quoting In re M.E.W., No. M2003-
01739-COA-R3-PT, 204 WL 865840, at 819 (Tenn. Ct. App. Apr. 21, 2004)). “Simply
stating the trial court’s decision, without more, does not fulfill this mandate.” Barnes v.
Barnes, No. M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 (Tenn. Ct. App. Oct.
24, 2012).

       Under the circumstances of this case, we vacate the court’s decision holding
Father in criminal contempt and the sentence and remand for entry of an order in
compliance with Rule 52.01 of the Tennessee Rules of Civil Procedure. See, e.g.,
Lovlace v. Copley, 418 S.W.3d 1, 36 (Tenn. 2013) (“One remedy appellate courts
typically apply when a trial court’s factual findings fail to satisfy the Rule 52.01
requirement is to remand the case to the trial court with directions to issue sufficient
findings and conclusions.”); Burris v. Burris, 512 S.W.3d 239, 257-58 (Tenn. Ct. App.
2016) (vacating the court’s decision and remanding for “written findings of fact and
conclusions of law to support its ruling finding [m]other guilty of thirty-seven counts of
criminal contempt”); Williams v. Singler, No. W2012-01253-COA-R3-JV, 2013 WL
3927934, at *18 (Tenn. Ct. App. July 31, 2013) (vacating the finding of contempt and
remanding for “factual findings as to specific instances of contempt during the relevant
time period, including factual findings to support a holding of willfulness”). Because the
award of attorney’s fees and expenses against Father was made as part of the contempt
action, we vacate those awards as well. See Williams, 2013 WL 3927934, at *18
(vacating both finding of contempt and the award of attorney fees made as punishment
for the alleged contempt); cf. Tenn. Code Ann. § 29-9-103(b) (2012) (limiting the
punishment that a court may impose for a finding of criminal contempt); Watts v. Watts,
519 S.W.3d 572, 578 (Tenn. Ct. App. 2016) (“[A]n award of attorney’s fees in the
context of criminal contempt is generally not authorized by Tennessee law.”). On
remand, the court may hold an evidentiary hearing, if necessary, in order to comply with
our mandate.
                                            III.

       We vacate the judgment of criminal contempt against Father, the sentence for the
contempt, and the award of attorney’s fees and expenses against Father. This case is
remanded for entry of an order in compliance with Rule 52.01 of the Tennessee Rules of
Civil Procedure and any further proceedings as are necessary and consistent with this
opinion.

                                            4
    _________________________________
    W. NEAL MCBRAYER, JUDGE




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