Two Lessons from Recent Case Law: Appeals of Criminal Contempt Acquittals Are Barred in Tennessee; Take Care to Make Orders Specific

March 15, 2013
By The McKellar Law Firm, PLLC on March 15, 2013 9:10 AM |

In the case of Adkisson v. Adkisson, No. E2012-00174-COA-R3-CV (Tenn. Ct. App. March 11, 2013), Tennessee divorce attorneys learn the following about criminal contempt: 1) that for a party to be found in criminal contempt, they must violate a court order that is neither vague nor unambiguous; and 2) that an acquittal of criminal contempt cannot be appealed.

The parties divorced in 2006 and in 2009 Mother filed to modify the parenting plan and for a finding of contempt against Father for failing to follow the plan's provisions for medical costs and spring break visitation. Father counter-filed, requesting that he be named primary residential parent ("PRP") and for contempt against Mother for also failing to follow the plan's medical provisions and violating the parental bill of rights. The trial court found: a material change of circumstances existed but the child's best interests required the Mother to remain PRP; that Father was in contempt for not reimbursing Mother for medical expenses and not following the spring break schedule; that Mother was in contempt for failing to reimburse Father for medical expenses, for failing to return his property and for violating the parental bill of rights; and Mother was awarded attorneys fees and costs in the amount of $17,500. Father appealed.

Modification of Parenting Plan: The Father here appealed the court's best interest finding that a change of custody was not proper under the factors in T.C.A. ยง36-6-106. Here, the thirteen year old son testified that his Mother interfered with his telephone calls to his Father and that his preference was to spend equal time with both parents. He also stated his Mother told him to say "bad stuff" about Father to his therapist. The therapist testified that both children stated their unhappiness with Father's treatment of them. The therapist gave an opinion that the Father was emotionally abusing the children by taping conversations, grilling them about therapy and making them "a rope in a tug of war." Her opinion was that the children's testimony of wanting more time with Father was due to his coercion of them. The therapist stated she had "never seen such bad conduct on the part of a parent." The trial court found that Father had narcissistic and controlling behavior traits such that he addressed most issues relating to the children without regard for the children's welfare..." Based on the record, the Appellate Court here could not find that the trial court abused its discretion in maintaining Mother as the PRP.

Father's Contempt over Spring Break: The parties' parenting plan provided the following: "The parties shall alternate Spring Vacation with Mother having the children in odd years and the father having the children in even years." The term 'Spring Break' is not defined in the Plan. In 2010, Father took the children on the day school let out (Thursday or Friday) and returned them to Mother nine days later. The trial court found that the Father lied to Mother, stating that the weekend before school resumed would be made up by Mother if she allowed him the extra days of Spring Break and then refused to do so, thereby depriving Mother of those days. The Appellate Court here found that the trial court's conclusions were not supported by the evidence. First, the testimony showed that Mother did not agree to a make-up weekend, but that she would instead get nine days during next year's Spring Break, which she did. Secondly, "Spring Break" is not well defined enough by the plan to uphold a finding of criminal contempt. Criminal contempt requires a court order that is not vague or ambiguous, and when they are, the person facing contempt is given the benefit of the doubt. Therefore, the finding of Father's contempt was reversed.

Mother's Contempt Over Medical Expense Reimbursement and Parental Bill of Rights: In this case, the trial court refused to find Mother in criminal contempt based upon either allegation. Due to the double jeopardy provisions found in the Tennessee State Constitution, "an appeal from an acquittal of criminal contempt is barred." Therefore, Father's appeal of the trial court's findings were dismissed by the Appellate Court.