In Jarrell v. Jarrell, No. W2011-00578-COA-R3-CV (Tenn. App. Ct., March 28, 2012), the Tennessee Court of Appeals ("CoA") reversed the decision holding the Mother in civil contempt and awarding attorney's fees. Also, the CoA reversed the dismissal of the criminal contempt charge against Mother. This case highlights for Tennessee divorce attorneys how to utilize civil versus criminal contempt.
The parties married in 2003 and had two children. In 2009, Mother filed for divorce and in 2010 a Final Decree, Marital Dissolution Agreement and PPP (Permanent Parenting Plan) were entered. In the PPP, the major decisions concerning religious upbringing were to be made jointly and if a disagreement arose, the parties agreed to have the dispute settled by a mediator. Father and Mother attended a Methodist church and Mother felt the children should be baptized at an early age while Father did not. Following the divorce, Mother began attending a new church which required infant baptism. In 2010, Mother had the children baptized without Father's knowledge or consent. Father filed a Petition for Contempt and the trial court held the Mother in civil contempt but dismissed the criminal contempt charge. The trial court further awarded attorney's fees to Father.
Father argued on appeal that the trial court erred in dismissing the criminal contempt petition against Mother. Mother argued that the trial court erred in finding her in civil contempt and in awarding attorney's fees to Father.
Mother argued the trial court lacked authority to hold her in civil contempt because her actions did not substantially harm the children. The CoA dismissed this argument and stated the trial court was only asked to determine whether Mother's conduct violated the terms of the PPP.
T.C.A. §29-9-102(3) authorizes a court to exercise its contempt powers for willful disobedience of a court order and it may be civil or criminal. Criminal contempt is intended to punish the wrongdoer and the contempt cannot be purged by compliance with the court order. Civil contempt is used when a person fails to comply with a court order and is designed to bring the party into compliance. Mother, on appeal, claims the trial court's finding of civil contempt against her is erroneous because her single act cannot be cured and the PPP did not specifically forbid her action. The CoA disagreed that the PPP was ambiguous charge but found the trial court was attempting to punish her for her actions rather than compel her compliance. Therefore, the CoA found the trial court's civil contempt holding in error and reversed (also reversing the award of attorney's fees).
Regarding the dismissal of the criminal contempt charges, the guidelines for contempt proceedings must comply with Tenn. R. Crim. P. 42(b). A defendant must be given notice that they are charged with criminal contempt, notice of time and place of hearing, notice of essential facts, and allowed a reasonable time to prepare. Father's petition to the Mother and its accompanying fiat meets the criteria laid out Tenn. R. Crim. P. 42(b). The CoA found that the trial court erred and should not have dismissed the criminal contempt petition for lack of notice and remanded the case so the trial court may hear the petition.