Facts: Mother and Father divorced in 2009. Father was ordered to pay $629 per month in child support and a portion of the children’s uncovered medical expenses.

Five years later, Mother petitioned that Father be held in criminal contempt on 23 counts for failing to pay child support and seven counts for failing to pay his portion of the uncovered medical expenses. Mother also sought a judgment for the arrearage and her attorney’s fees.

The trial court found Father guilty of criminal contempt and entered a judgment against Father for the arrearage. Mother was also awarded her attorney’s fees.

Father appealed the award of attorney’s fees.

On Appeal: The Court of Appeals reversed the trial court.

At common law, the power of courts to punish for contempt was vast and undefined. Because of the potential to abuse this unlimited power, the Tennessee legislature adopted specific statutory provisions to limit and define the contempt power. Accordingly, punishment for contempt may now be exercised only within the fixed rules of law.

Conduct punishable as contempt is outlined in Tennessee Code Annotated § 29-9-102 and includes the willful disobedience of any lawful order. After a finding of contempt, the statutes permit courts to award several different remedies, depending on the facts of the case and whether the contempt is civil or criminal in nature.

A court can imprison or fine an individual to compel compliance with a court order. This is typically referred to as civil contempt and is only available when the individual has the ability to comply with the order at the time of the contempt hearing. In civil contempt, the imprisonment is meted out at the insistence and for the benefit of a private litigant. Compliance will result in release from prison. So it is said the contemnor carries the keys to the prison in his or her pocket.

Additionally, a court can imprison or fine an individual simply as punishment for contempt, which is known as criminal contempt. Criminal contempt is intended to preserve the power and vindicate the dignity and authority of the law. Thus, sanctions for criminal contempt are generally both punitive and unconditional in nature. A party who is in criminal contempt cannot be freed by eventual compliance.

Tennessee Code Annotated § 29-9-103(b) limits the punishment that a court may impose for a finding of criminal contempt:

(a) The punishment for contempt may be by fine or by imprisonment, or both.
(b) Where not otherwise specially provided, the circuit, chancery, and appellate courts are limited to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten (10) days, and, except as provided in § 29-9-108, all other courts are limited to a fine of ten dollars ($10.00).

Under this provision, Tennessee court have found that an award of attorney’s fees in the context of criminal contempt is generally not authorized by Tennessee law.

Tennessee Code Annotated § 36-5-103(c) allows courts to award attorney’s fees in certain cases involving child custody, alimony, or child support. It states:

The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.

The Court overruled several opinions and concluded attorney’s fees are not allowed in criminal contempt actions to enforce child support orders or adjudicate custody:

By its express terms, section 36-5-103(c) authorizes a court to award a party attorney’s fees incurred in two situations: (1) when the fees are incurred “in enforcing any decree for alimony and/or child support . . . .”; or (2) when the fees are incurred “in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties . . . .”

A criminal contempt petition does not serve either of these objectives. Unlike civil contempt, a criminal contempt petition does not seek to vindicate private rights or enforce a prior order. Instead, the purpose of criminal contempt is to uphold the authority and power of the trial court. Proceedings for criminal contempt are designed to punish past behavior rather than coerce compliance with a court’s order or influence future behavior. Any benefit to the private party in a criminal contempt proceeding is merely tangential to the primary purpose of upholding the court’s authority.

Therefore, because criminal contempt petitions do not operate to enforce child support orders or adjudicate custody, we conclude that Tenn. Code Ann. § 36-5-103(c) does not authorize a court to award attorney’s fees related to criminal contempt. Further, as discussed above, attorney’s fees are not within the statutory limits to criminal contempt under Tenn. Code Ann. § 29-9-103.

Thus, the trial court’s award of attorney’s fees was reversed.

K.O.’s Comment: In reaching this decision, the Court examined several cases regularly cited in support of the opposite holding and determined that, in fact, those cases do not support the opposite holding at all. The court specifically overruled contrary holdings in Uria, Dhillon, and others.

(2) Tennessee courts have permitted an award of attorney’s fees as compensatory damages for civil contempt. Those cases remain undisturbed.

(3) Appellant’s counsel, Jeff Levy, Esq., did some excellent lawyering here. He is to be commended on a job well done.

Watts v. Watts (Tennessee Court of Appeals, Middle Section, June 8, 2016).

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