Contempt and Attorney’s Fees at Issue in Sparta, TN Post-Divorce Hearing: Cremeens v. Cremeens

contemptFacts: In this post-divorce action, Father filed a petition to hold Mother in contempt for violating the parenting plan by making derogatory statements about him to their child.

The trial court found Mother in civil contempt for making derogatory statements about Father to Child in violation of the parenting plan, and awarded Father attorney’s fees incurred in prosecuting the civil contempt petition.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court in part and reversed in part.

Civil contempt. Mother first argued the trial court erred in treating Father’s petition as one for civil contempt instead of criminal contempt.

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. Sanctions for criminal contempt are both punitive and unconditional. They are designed to punish past behavior rather than coerce compliance with a court order or influence future behavior.

In contrast, civil contempt is remedial in character, and is intended to benefit a private litigant rather than vindicate the authority of the court.

Civil contempt proceedings may serve two purposes. One purpose is to coerce future compliance with a trial court’s order.

Civil contempt may also serve a compensatory function, providing relief to a party who has suffered unnecessarily as a result of contemptuous conduct. When the contempt at issue is the performance of a forbidden act, the contemnor may be imprisoned until the act is rectified by placing matters back to the status quo, or by the payment of damages. In cases of compensatory civil contempt, even when the conduct at issue has ceased, the disobedience of the court’s order is not rectified until the offending party pays damages to make the other party whole. In the context of civil contempt, an award of attorney’s fees is appropriate because it serves to compensate the prevailing party for the expenses incurred to obtain compliance with a court order.

After reviewing the record, the Court concluded:

In his contempt petition, Father expressly alleged that Mother was engaging in conduct forbidden by a court order, the parenting plan, and he sought to compel Mother’s compliance with specific provisions of that order. A fair reading of the petition clearly reveals that Father was seeking Mother’s future compliance with the parenting plan for his benefit because her continuing violations of the parenting plan were impairing his relationship with their son. As noted above, one of the primary purposes of civil contempt is to enforce compliance with the court’s order for the benefit of the petitioner who has suffered a violation of his or her rights.

Moreover, the trial court addressed the violation of the parenting plan by awarding Father the reasonable attorney’s fees he incurred to enforce compliance with the court’s order. Such action falls squarely within the character and purpose of punishment for compensatory civil contempt. Thus, the trial court correctly ruled that Father’s petition would be tried as one for civil contempt.

Attorney’s fees. Mother also argued it was error to award attorney’s fees to Father because Father did not specifically plead for that relief.

Tennessee follows a liberal notice pleading standard, which recognizes that the primary purpose of pleadings is to provide notice of the issues presented to the opposing party and court. In conjunction with that standard, Rule 9.07 of the Tennessee Rules of Civil Procedure provides that when items of special damages are claimed, they shall be specifically stated. Attorney’s fees are considered special damages because in the absence of a statute, contract, or equitable rule requiring otherwise, attorneys must generally look to their own clients for their fees. In an appellate court opinion issued in 1981, the Court said, “Since an award of attorney’s fees is fairly unusual, plaintiff should have the obligation of pleadings such an item of damages.”

The Court rejected Mother’s argument, explaining:

In the 34 years since we made that statement [in the 1981 opinion], it has become common for parties to seek payment of attorney’s fees, and awards of attorney’s fees are no longer so unusual. As a result, our courts have held that the failure to comply with [Rule 9.07] is not necessarily fatal to an award of attorney’s fees when parties already know that attorney’s fees may be recovered. Thus, while including a specific request for attorney’s fees in one’s pleadings remains the prudent practice, failure to do so will not necessarily result in a reversal of the award.

As our analysis of civil contempt indicates, the trial court had authority to award Father’s attorney’s fees as actual damages based on a finding of contempt. Therefore, we find no error with the trial court’s determination that Father was entitled to recover the attorney’s fees incurred in the prosecution of the contempt petition.

Finally, Mother argued the trial court should have conducted a hearing to assess the reasonableness and necessity of the attorney’s fees in question.

It is not always necessary for there to be a fully developed record when the judge who presided over a case is asked to award attorney’s fees. Trial courts are generally capable of determining the value of an attorney’s services by virtue of the fact that they have overseen the proceedings before them. Accordingly, the trial court is not required to hold a hearing as to the reasonableness of the amount of attorney’s fees awarded unless the opposing party makes a timely request.

After reviewing the record, the Court stated:

Here, Mother made a timely demand for a hearing on the reasonableness and necessity of Father’s application for attorney’s fees. Because her request was timely, we have determined the trial court should have held a hearing on the reasonableness and necessity the fees requested. Accordingly, we remand for a hearing on Father’s fee request.

Cremeens v. Cremeens (Tennessee Court of Appeals, Middle Section, July 24, 2015).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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