Gary Lee Odom v. Rachel Lea Zamata Odom

07/23/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 11, 2018 Session

GARY LEE ODOM v. RACHEL LEA ZAMATA ODOM

Appeal from the Circuit Court for Davidson County

No. 15D-195 Phillip R. Robinson, Judge

No. M2017-01702-COA-R3-CV

In this divorce action, the wife was found to be in “willful, direct and summary contempt

of court beyond a reasonable doubt,” based on her responses to the trial court judge’s

questions during a motion hearing. The wife has appealed. Discerning no error, we

affirm the trial court’s judgment. We decline to award to the husband his attorney’s fees

incurred on appeal.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Daniel D. Warlick, Karla C. Miller, and Martin Stephen Sir, Nashville, Tennessee, for the

appellant, Rachel Lea Zamata Odom.1

Jacqueline B. Dixon, Nashville, Tennessee, for the appellee, Gary Lee Odom.

OPINION

I. Factual and Procedural Background

This appeal arises out of a divorce action involving the plaintiff, Gary Lee Odom,

and the defendant, Rachel Lea Zamata Odom. The Third Circuit Court for Davidson

County (“trial court”) conducted a hearing in the pending divorce action on August 4,

1

We note that, sadly, Mr. Warlick passed away during the pendency of this appeal. Following the filing

of briefs in this matter, Ms. Miller and Mr. Sir presented an agreed motion to substitute Mr. Sir as counsel

of record for Ms. Odom.

2017, regarding a motion to compel filed by Mr. Odom seeking responses to discovery.2

Ms. Odom and her counsel were both present during the hearing, along with Mr. Odom’s

counsel.

During the course of the hearing, the trial court questioned Ms. Odom’s counsel,

and eventually Ms. Odom herself, concerning written discovery responses that the court

deemed insufficient.3 The hearing transcript reflects that the trial court repeatedly stated

that Ms. Odom was being evasive in her answers to the questions asked, which focused

on income and expenses related to her law practice. As the hearing continued and the

discussion grew lengthy, the trial court judge expressed frustration concerning Ms.

Odom’s lack of candor, and the court ultimately threatened to hold Ms. Odom in

contempt of court for her failure to sufficiently answer.

When the written discovery issues were resolved with Ms. Odom’s promise to

provide additional documentation, Mr. Odom’s counsel asked the trial court to direct Ms.

Odom to answer certain questions that she had refused to answer during her earlier

deposition. One such question was the location of her current residence and whether she

had entered into a lease with regard to that residence. The court again opined that Ms.

Odom’s answers were evasive, at one point stating, “my patience is really gone with you,

Counsel, so you either answer it right now or I’m putting you in the custody of the Sheriff

. . . .” The record reflects that Ms. Odom did not answer the question until the trial court

admonished her once again.

The next question posed to Ms. Odom concerned whether she had engaged in

sexual relations with anyone since the parties’ separation and, if so, the identity of such

person(s). Ms. Odom replied that she had engaged in sexual relations since her

separation from Mr. Odom but that she could not remember the identity of any person

with whom she had sexual relations. Ms. Odom stated that she could “look through

journal entries and provide that information for you.” When the trial court pressed her

for information, Ms. Odom responded: “Your Honor, do you want to place me under

arrest for not giving those names today, not being able to remember them . . . .”

Following a lengthy discussion between the trial court judge and Ms. Odom, during

which the court provided Ms. Odom with numerous opportunities to respond, the court

eventually held Ms. Odom in contempt. The trial court judge stated in the record that

Ms. Odom was “looking me in the face [and] lying to me.”

2

According to a statement made by Mr. Odom’s counsel during the hearing, this was the fifth motion to

compel filed by Mr. Odom regarding Ms. Odom’s responses to discovery.

3

Ms. Odom is an attorney licensed to practice in Tennessee.

2

Later that day, the trial court entered an order finding Ms. Odom in “willful, direct

and summary contempt of court beyond a reasonable doubt.” The court imposed a

sentence of three days’ incarceration, and Ms. Odom was released on a $250 bond. Ms.

Odom filed a timely notice of appeal.

II. Issues Presented

Ms. Odom presents the following issue for our review, which we have restated

slightly:

1. Whether the trial court abused its discretion by holding Ms. Odom in

contempt of court for her inability or unwillingness to identify the

individual(s) with whom she had engaged in sexual relations since

her separation from Mr. Odom.

Mr. Odom presents the following additional issue for consideration:

2. Whether Mr. Odom should be awarded his attorney’s fees incurred

on appeal or awarded damages for a frivolous appeal, and whether

all costs on appeal should be assessed against Ms. Odom.

III. Standard of Review

As this Court has elucidated with regard to a contempt finding by the trial court:

A determination of contempt is within the sound discretion of the

trial court, subject to the provisions of the law. Robinson [v. Air Draulics

Eng’g Co.], 377 S.W.2d [908,] 912 [(Tenn. 1964)]. Generally, the trial

court’s decision will not be disturbed absent an abuse of discretion. Id.

One charged with criminal contempt is presumed innocent until found

guilty beyond a reasonable doubt. Id. On appeal following a finding of

contempt, however, the defendant must overcome the presumption of guilt

by demonstrating that the evidence preponderates against the trial court’s

findings. Id. With respect to the trial court’s determinations on questions

of law, however, our review is de novo with no presumption of correctness.

Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).

Watkins ex rel. Duncan v. Methodist Healthcare Sys., No. W2008-01349-COA-R3-CV,

2009 WL 1328898, at *3 (Tenn. Ct. App. May 13, 2009).

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This Court has further explained that “[a]n abuse of discretion occurs when the

trial court causes an injustice by applying an incorrect legal standard, reaches an illogical

result, resolves the case on a clearly erroneous assessment of the evidence, or relies on

reasoning that causes an injustice.” In re Brown, 470 S.W.3d 433, 442 (Tenn. Ct. App.

2015) (quoting Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011)).

IV. Contempt of Court

“Contempts may be criminal or civil in nature depending on whether the purpose

of the contempt is to coerce or to punish.” State v. Turner, 914 S.W.2d 951, 954 (Tenn.

Crim. App. 1995). This Court has previously distinguished between the two types of

contempt of court as follows:

Civil contempt is intended to benefit a litigant while criminal contempt is

punishment for an offense against the authority of the court. Civil

contempt is imposed to compel compliance with an order, and parties in

contempt may purge themselves by compliance. Criminal contempt, on the

other hand, is punishment for failing to comply with an order, and the

contemptuous party cannot be freed by eventual compliance.

Duke v. Duke, No. M2013-00624-COA-R3-CV, 2014 WL 4966902, at *30 (Tenn. Ct.

App. Oct. 3, 2014) (quoting Sherrod v. Wix, 849 S.W.2d 780, 786 n.4 (Tenn. Ct. App.

1992)).

This Court has further determined that “the conduct involved and the sanctions

imposed, not [] the labels of ‘civil’ or ‘criminal’ affixed by the parties or the trial court”

characterize a contempt as criminal or civil. See Jones v. Jones, No. 01A01-9607-CV-

00346, 1997 WL 80029, at *2 (Tenn. Ct. App. Feb. 26, 1997) (citing Sherrod, 849

S.W.2d at 786-87). Additionally, this Court stated:

The purpose of a civil contempt proceeding is to coerce the

contemner to comply with a court’s order. It is a remedial proceeding,

Robinson v. Gaines, 725 S.W.2d 692, 694 (Tenn. Crim. App. 1986), and is

intended to benefit the party seeking the contempt order. State ex rel. Agee

v. Chapman, 922 S.W.2d 516, 519 (Tenn. Ct. App. 1995). Civil contempt

sanctions are open-ended and terminate when the contemner complies with

the court’s order. In this sense, the contemner “carries the keys to the jail

in his or her own pocket.” State ex rel. Anderson v. Daugherty, 137 Tenn.

125, 127, 191 S.W. 974, 974 (1917); Crabtree v. Crabtree, 716 S.W.2d

923, 925 (Tenn. Ct. App. 1986).

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On the other hand, the purpose of a criminal contempt proceeding is

to vindicate the authority of the law and the court. State ex rel. Agee v.

Chapman, 922 S.W.2d at 519; Thigpen v. Thigpen, 874 S.W.2d 51, 53

(Tenn. Ct. App. 1993). It is a punitive proceeding intended to impose a

fixed punishment for past actions. Sitton v. Finley, 743 S.W.2d 933, 935

(Tenn. Crim. App. 1987). Punishment for criminal contempt is not

conditional and must be served even if the contemner later complies with

the court’s order. Robinson v. Gaines, 725 S.W.2d at 694.

Jones, 1997 WL 80029, at *2.

With regard to sanctions for contempt, our Supreme Court has declared,

“[p]unishment for civil contempt is designed to coerce compliance with the court’s order

and is imposed at the insistence and for the benefit of the private party.” See Doe v. Bd.

of Prof’l Responsibility of Supreme Court of Tenn., 104 S.W.3d 465, 473 (Tenn. 2003).

By contrast, “criminal contempts are ‘intended to preserve the power and vindicate the

dignity and authority of the law, and the court as an organ of society,’” and punishment

for criminal contempt is “both punitive and unconditional in nature and serves to

adjudicate ‘an issue between the public and the accused.’” See id. at 474. See also Black

v. Blount, 938 S.W.2d 394, 397 (Tenn. 1996) (“[T]he inherent power of courts to punish

contemptuous conduct has long been regarded as essential to the protection and existence

of the courts.”). Sanctions for criminal contempt are generally “punitive and

unconditional by nature” and thus should be administered “‘when necessary to prevent

actual, direct obstruction of, or interference with, the administration of justice.’” See

Watkins, 2009 WL 1328898, at *3 (quoting Robinson v. Air Draulics Eng’g Co., 377

S.W.2d 908, 912 (Tenn. 1964)).

Contempt is further categorized into direct and indirect forms. “Direct contempt is

based upon acts committed in the presence of the court, and may be punished

summarily.” See Turner, 914 S.W.2d at 955 (quoting State v. Maddux, 571 S.W.2d 819,

821 (Tenn. 1978)). Indirect contempt, however, “is based upon acts not committed in the

presence of the court, and may be punished only after the offender has been given notice,

and the opportunity to respond to the charges at a hearing.” Id.

In the case at bar, Ms. Odom argues that the trial court’s order was “the clear

definition of civil contempt.” In support of her contention, Ms. Odom cites the following

statement made by the trial court judge at the August 2017 hearing:

The Court: [Counsel for Ms. Odom] can have five minutes to talk to his

client and then she needs to go across the street and she’ll stay there until

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she provides the Court information that it wants . . . . That will be the Order

of the Court.

We note, however, that in its written order, the trial court judge characterized Ms.

Odom’s conduct as “direct and summary contempt of Court.” As our Supreme Court has

explained: “It is well-settled that a trial court speaks through its written orders—not

through oral statements contained in the transcripts—and that the appellate court reviews

the trial court’s written orders.” Williams v. City of Burns, 465 S.W.3d 96, 119 (Tenn.

2015) (quoting Anil Constr., Inc. v. McCollum, No. W2013-01447-COA-R3-CV, 2014

WL 3928726, at *8 (Tenn. Ct. App. Aug. 7, 2014)).

In the trial court’s August 4, 2017 order, the court held Ms. Odom in “willful,

direct and summary contempt of court for failing to supply the name or names of any

individual(s) with whom she has engaged in sexual relations since the separation of the

parties.” The trial court sentenced Ms. Odom to serve three days in the Davidson County

jail or workhouse. Notably, the court did not state in its order that Ms. Odom’s sentence

would terminate if and when she provided the information sought.

Based upon the language utilized in the trial court’s order, we determine that the

court found Ms. Odom guilty of criminal contempt of court. The trial court ordered Ms.

Odom to serve three days in jail, which is consistent with this Court’s definition of

punishment for criminal contempt. See Jones, 1997 WL 80029, at *2. Furthermore, Ms.

Odom’s release was not contingent upon her provision of the name(s) sought by Mr.

Odom and therefore was not intended for the benefit of the opposing party.

As previously explained by the Tennessee Court of Criminal Appeals, “the court’s

authority to punish certain acts as contempt derives from statute, and is limited to the

forms of conduct set forth in Tennessee Code Annotated § 29-9-102.” See Turner, 914

S.W.2d at 955; see also Black, 938 S.W.2d at 397 (“Because unlimited, undefined

discretionary power carried with it the potential for abuse, specific statutory provisions

were adopted to limit and define the conduct punishable by contempt.”). Tennessee Code

Annotated § 29-9-102 (2012) provides:

The power of the several courts to issue attachments, and inflict

punishments for contempts of court, shall not be construed to extend to any

except the following cases:

(1) The willful misbehavior of any person in the presence of the

court, or so near thereto as to obstruct the administration of

justice;

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(2) The willful misbehavior of any of the officers of such courts, in

their official transactions;

(3) The willful disobedience or resistance of any officer of the such

courts, party, juror, witness, or any other person, to any lawful

writ, process, order, rule, decree, or command of such courts;

(4) Abuse of, or unlawful interference with, the process or

proceedings of the court;

(5) Willfully conversing with jurors in relation to the merits of the

cause in the trial of which they are engaged, or otherwise

tampering with them; or

(6) Any other act or omission declared a contempt by law.

Furthermore, Tennessee Rule of Criminal Procedure 42, which addresses criminal

contempt, provides in pertinent part:

(a) Summary Disposition. A judge may summarily punish a person who

commits criminal contempt in the judge’s presence if the judge certifies

that he or she saw or heard the conduct constituting the contempt. The

contempt order shall recite the facts, be signed by the judge, and

entered in the record.

As this Court has explained:

“The determination of what action constitutes contempt necessitating

immediate summary disposition rests within the discretion of the trial

judge.” [State v. Smith, No. W1999-00814-CCA-R3-CD, 2000 WL

1664280, at *6 (Tenn. Crim. App. Oct. 23, 2000).] “Unfortunately, our

courts are occasionally subjected to genuinely disruptive conduct.” [State

v.] Beeler, 387 S.W.3d [511,] 520 n.5 [(Tenn. 2012)]. “In such cases,

exercise of the summary contempt power may be necessary to restore order,

but Rule 42(a) presupposes that the observed conduct is contemptuous; if

the court has any doubt on this point, a summary proceeding is not the

appropriate means for adjudicating the matter.” Id. Summary punishment

“is reserved for those circumstances in which it is essential” because it

“departs, often dramatically, from traditional notions of due process that are

the hallmarks of criminal justice.” State v. Turner, 914 S.W.2d 951, 957

(Tenn. Crim. App. 1995). “As a result, courts universally agree that

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summary contempt powers should be used sparingly, and even then only in

cases of ‘exceptional circumstances.’” Id. (quoting Harris v. United States,

382 U.S. 162, 164-65, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965)). Determining

whether exceptional circumstances exist “is generally left to the sound

discretion of the trial court.” Watkins, [2009 WL 1328898,] at *6.

In re Brown, 470 S.W.3d at 445.

In the case at bar, the trial court found as follows in its order concerning contempt:

This cause came on to be heard on the fourth day of August, 2017,

before the Honorable Phillip Robinson, Judge of the Third Circuit Court for

Davidson County, Tennessee upon the Complainant/Husband’s motion for

sanctions and other relief. During the proceedings, counsel for the

Husband requested that the Court compel the Defendant/Wife to respond to

certain deposition questions which she refused to answer at the time of the

deposition. Among those questions were whether the Wife had engaged in

sexual relations with anyone other than the Husband since the separation of

the parties on or about January 11, 2015. The Court determined that the

question was relevant to the pending divorce action and directed the Wife

to answer the question. After consultation with counsel, counsel for the

Wife acknowledged that the Wife had engaged in sexual relations since the

separation which was confirmed by the Wife. The Court then directed the

Wife to provide the name or names of any individuals with whom she had

engaged in sexual relations since the separation of the parties. The Wife

then professed that she could not recall the name or names of any such

individuals.

Throughout the hearing related to the Wife’s failure to fully comply

with discovery requests, the Court found the Wife to be evasive and

attempted to avoid answering discovery questions which the Court directed

to her. The Court admonished Wife that the Court would not accept her

statement that she could not remember any individuals with whom she had

sexual relations with since her separation from the Husband. After further

consultation with counsel, she presented to the court the name of “Ben” as

an individual with whom she had had sexual relations but professed she

could not remember the rest of his name or any contact information. The

Court advised her that her refusal to supply the information would result in

her being incarcerated. The Court gave her repeated opportunities to

provide the requested information. The Court found that her statements

were not credible.

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The Court finds and holds the Wife in willful, direct and summary

contempt of court beyond a reasonable doubt for refusing to supply the

name of the individual(s) with whom she had engaged in sexual relations.

The Court determined that this was the first finding of contempt

against the Wife during these proceedings. The Court therefore sentenced

her to three (3) days in the Davidson County jail or workhouse.

At request of counsel, the Court set an appearance bond in the

amount of $250 to enable the Wife to appeal the Court’s ruling prior to

execution of sentence.

Ms. Odom argues that the trial court abused its discretion by determining that she

was in “willful, direct and summary contempt of court” for failing to provide the name of

individual(s) with whom she had sexual relations following her separation from Mr.

Odom. Ms. Odom asserts in part that the trial court was required to find that her actions

actually constituted an obstruction of justice in order to summarily punish her for

criminal contempt, apparently based on Tennessee Code Annotated § 29-9-102(1).

Although the Tennessee Court of Criminal Appeals has opined that direct criminal

contempt actions are typically premised on Tennessee Code Annotated § 29-9-102(1), see

Turner, 914 S.W.2d at 956, our Supreme Court has explained that criminal contempt may

be based upon “any willful misconduct which embarrasses, hinders, or obstructs a court

in its administration of justice or derogates the court’s authority or dignity, thereby

bringing the administration of law into disrepute.” See Black, 938 S.W.2d at 399. The

High Court also emphasized that “disrespectful conduct by an attorney has a greater

impact upon the dignity of a court than does disrespectful conduct of a lay person.” Id. at

401.

Although the trial court did not delineate the specific type of “willful” conduct of

which Ms. Odom was accused pursuant to Tennessee Code Annotated § 29-9-102, the

court’s reference to Ms. Odom’s “refusal to supply” information implicates subsection

(3), involving “willful disobedience or resistance of any officer of the such courts, party,

juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or

command of such courts,” rather than subsection (1). The trial court’s order suggests that

Ms. Odom willfully refused to provide information that the court had directed her to

disclose. The court noted in its order that Ms. Odom had been “evasive and attempted to

avoid answering discovery questions which the Court directed to her” throughout the

hearing.

9

Ms. Odom’s essential argument on appeal is that there was insufficient evidence

that her behavior was willful. Ms. Odom argues that “[i]n essence, the judge found her

guilty of perjury before him and summarily punished her for it.” She further argues that

“there is no basis for summarily punishing a litigant for perjury” and that the correct

proceeding would be to “refer the litigant’s behavior to the District Attorney General for

a perjury prosecution.” As our Supreme Court has elucidated with regard to sufficiency

of evidence in the context of a criminal contempt conviction:

When the sufficiency of the convicting evidence is raised as an issue on

appeal, this Court must review the record to determine if the proof adduced

at trial supports the findings of the trier of fact of guilt beyond a reasonable

doubt. Tenn. R. App. P. 13(e). We do not reweigh the proof. The

defendant has the burden of illustrating to this Court why the evidence is

insufficient to support the verdict. A guilty verdict removes the

presumption of innocence and it is replaced with a presumption of guilt.

We will not disturb a verdict of guilt for lack of sufficient evidence unless

the facts contained in the record and any inferences which may be drawn

from the facts are insufficient, as a matter of law, for a rational trier of fact

to find the defendant guilty beyond a reasonable doubt.

Black, 938 S.W.2d at 399 (internal citations omitted).

Upon our thorough review of the hearing transcript, we determine that the

transcript supports the trial court’s verdict of guilt regarding Ms. Odom’s criminal

contempt. As the trial court stated in its order, Ms. Odom’s answers to questions were

evasive and vague throughout the hearing, despite the trial court judge’s admonition that

“other than putting [Ms. Odom] in jail, I don’t know of any way to get a correct response

from her.” The court repeatedly noted throughout the hearing that Ms. Odom was

refusing to provide information and, at one point, actually began to count to ten before

Ms. Odom disclosed her home address.

Following the final question posed to Ms. Odom concerning the identity of her

sexual partner(s), a lengthy verbal exchange between Ms. Odom and the trial court judge

ensued. During this exchange, the trial court provided Ms. Odom with numerous

opportunities to provide the requested information. Ms. Odom continued to represent

that she could not remember any information regarding her sexual partner(s), although

she did finally provide that one such partner was named “Ben.” At the end of the

discussion, the court stated:

The Court finds Ms. Odom’s answer not credible and the Court finds

that her failure to provide me with the name of any individual – she admits

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she’s had relations with someone else but she refuses to provide me with a

name of any one of those individuals.

The Court considers that direct summary contempt of Court.

We determine that the evidence adduced during the hearing supports the findings of the

trial court of guilt beyond a reasonable doubt. See, e.g., In re Bowling, No. E2007-

00262-COA-R3-JV, 2007 WL 2780378, at *5 (Tenn. Ct. App. Sept. 25, 2007)

(concluding that the trial court transcript supported the trial court’s finding of criminal

contempt). We further determine that Ms. Odom has failed to illustrate to this Court why

the evidence is insufficient to support the verdict.

Ms. Odom contends that there was no evidence that she was guilty of perjury.

This Court has previously stated that the “elements necessary to sustain a conviction for

the statutory crime of perjury are wholly different and distinct from those necessary to

justify imposition of a contempt citation.” Prescott v. Prescott, No. 89-297-II, 1990 WL

8626, at *6 (Tenn. Ct. App. Feb. 7, 1990). This Court further stated:

In order for perjury to amount to contempt, there must be more than a false

swearing. There has to be an additional element of obstruction of justice or

interference with the processes of the court. For example, false swearing

could occur in a deposition, in an answer to an interrogatory, in an oath to a

deed, or in some other context which might justify a conviction for perjury,

but which would not necessarily amount to a contempt of court.

Id.

The hearing transcript in the case at bar, however, reveals more than a “false

swearing.” Rather, the transcript demonstrates that Ms. Odom’s conduct at the hearing

was disrespectful toward the trial court judge and that her responses were evasive and

often not forthcoming, thereby causing interference with the processes of the court.4 The

trial court did not merely find that Ms. Odom was lying; instead, the court found that she

refused to provide the information that the court had ordered her to provide.

4

We note that during the hearing, the trial court made statements characterizing Ms. Odom’s responses as

“smart comment[s]” and her behavior as “disturbing.” As our Supreme Court has emphasized, “[u]nlike

appellate courts, trial courts are able to observe witnesses as they testify and to assess their demeanor,

which best situates trial judges to evaluate witness credibility.” Wells v. Tenn. Bd. of Regents, 9 S.W.3d

779, 783 (Tenn. 1999).

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In summary, the evidence supports the trial court’s determination that Ms. Odom

willfully disobeyed the directive of the court. See Tenn. Code Ann. § 29-9-102(3). This

behavior occurred in the presence of the court and thus constituted direct criminal

contempt. When determining what circumstances would be deemed exceptional and

require summary punishment, the Tennessee Court of Criminal Appeals has “considered

such factors as the reasonably expected reactions of those in the courtroom, the manner in

which the remarks are delivered, the delay in the proceedings caused by a disrespectful

outburst, and the failure to heed explicit directives of the court.” Turner, 914 S.W.2d at

957-58 (citing In re Gustafson, 619 F.2d 1354, 1359 (9th Cir. 1980), on reh’g, 650 F.2d

1017 (9th Cir. 1981)) (emphasis added). We therefore determine that the trial court did

not abuse its discretion and affirm the trial court’s summary disposition regarding Ms.

Odom’s direct criminal contempt of court.

V. Attorney’s Fees

Mr. Odom seeks an award of attorney’s fees incurred in defending against Ms.

Odom’s appeal of the trial court’s criminal contempt finding. Mr. Odom concedes that

he has been unable to present authority for awarding attorney’s fees to a party under these

factual circumstances because, as this Court has previously explained, “the purpose of

criminal contempt is to uphold the authority and power of the trial court” and because

“attorney’s fees are not within the statutory limits to criminal contempt.” See Watts v.

Watts, 519 S.W.3d 572, 585 (Tenn. Ct. App. 2016). As the Watts Court concluded:

Absent a statute or contractual provision permitting [attorney’s fees

in a proceeding for criminal contempt], a party is not entitled to recover

their attorney’s fees. We find no statutory authority permitting a party to

recover attorney’s fees incurred to prosecute a petition for criminal

contempt and Mother does not rely on a contractual provision in seeking to

recover her attorney’s fees in the context of the petition for criminal

contempt.

Id. (internal citations omitted). The Watts Court specifically found that attorney’s fees

were not awardable in a criminal contempt proceeding brought pursuant to Tennessee

Code Annotated § 36-5-103(c), which allows a fee award in actions involving the

enforcement of orders regarding alimony, child support, custody, and co-parenting

schedules. Id.5

5

We recognize that Tennessee Code Annotated § 36-5-103(c) was recently amended to specifically

provide that a prevailing party can be awarded fees “in any criminal or civil contempt action or other

proceeding to enforce, alter, change, or modify any decree of alimony, child support, or provision of a

permanent parenting plan order, or in any suit or action concerning the adjudication of the custody or

change of custody of any children . . . .” See 2018 Tenn. Pub. Acts, Ch. 905, § 1 (H.B. 2526). Inasmuch

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Mr. Odom also asserts that Ms. Odom’s appeal should be characterized as

frivolous, thus entitling him to an award of attorney’s fees as damages. Frivolous appeals

are governed by Tennessee Code Annotated § 27-1-122 (2017), which provides:

When it appears to any reviewing court that the appeal from any court of

record was frivolous or taken solely for delay, the court may, either upon

motion of a party or of its own motion, award just damages against the

appellant, which may include, but need not be limited to, costs, interest on

the judgment, and expenses incurred by the appellee as a result of the

appeal.

Although Ms. Odom was not successful with regard to the issue she raised on

appeal, we determine, in our discretion, that her appeal was not so devoid of merit as to

warrant an award of attorney’s fees to Mr. Odom. See Eberbach v. Eberbach, 535

S.W.3d 467, 475 (Tenn. 2017) (explaining that this Court has discretion regarding

whether to award damages for a frivolous appeal); Young v. Barrow, 130 S.W.3d 59, 67

(Tenn. Ct. App. 2003) (“A frivolous appeal is one that is devoid of merit . . . or one that

has no reasonable chance of succeeding.”). The discretion to determine whether an

appeal is frivolous should be exercised “‘sparingly so as not to discourage legitimate

appeals.’” See Eberbach, 535 S.W.3d at 475 (quoting Whalum v. Marshall, 224 S.W.3d

169, 181 (Tenn. Ct. App. 2006)). We therefore deny Mr. Odom’s request for attorney’s

fees on appeal.

VI. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment in all respects. We

deny Mr. Odom’s request for an award of attorney’s fees on appeal. We remand this

matter to the trial court for enforcement of the judgment and collection of costs assessed

below. Costs on appeal are taxed to the appellant, Rachel Lea Zamata Odom.

_________________________________

THOMAS R. FRIERSON, II, JUDGE

as this action was commenced prior to the effective date of the amendment, we determine that the

amended version of the statute is not applicable herein. We note also that this is not an action involving a

decree of alimony, custody, or parenting.

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