In the case titled Sprague v. Sprague, No. E2012-01133-COA-R3-CV, 2013 WL 2382827 (Tenn. Ct. App. May 30, 2013) Knoxville divorce lawyers learn when criminal contempt may be applied in a civil matter, and what type of notice must be given for criminal contempt charges.
Facts: This case involves a post-divorce contempt petition. Husband and Wife divorced in June 2009. Wife was designated the primary residential parent ("PRP") for the two minor children. Husband was ordered to pay $836 per month in child support. According to the parenting plan, Husband and Wife were to make all decisions regarding the children jointly; however, if the couple could not agree Wife was given the tie-breaking vote. Husband was also required to maintain health insurance on the children and keep a $250,000 life insurance policy for the benefit of the minor children with Wife as the trustee. It was ordered that any out-of-pocket medical expenses were to be paid by both parents based on a pro rata basis resulting in Wife being responsible for 53% and Husband responsible for 47% of the medical bills.
In September 2009 Wife filed a petition for contempt alleging Husband non-payment of child support, non-payment of the out-of-pocket medical expenses, that Husband had a cat in his home (a violation of the parenting plan due to one of the children having severe asthma), and that Husband did not provide proof of a life insurance policy. Prior to the court hearing, Husband agreed to get rid of the cat. The court then ordered Husband to pay Wife four months of child support arrearages and advised the parties to mediate the remaining issues. After mediation, the court entered an order incorporating the mediated agreement which required the parties to provide proof to one another regarding out-of-pocket medical expenses, Husband to provide proof of medical and life insurance coverage, and granting Wife $3,387.50 for out-of-pocket medical expenses.
In September 2010 Wife filed another petition for contempt alleging Husband failed to provide proof of health insurance coverage, used generic prescriptions for the minor children when the pediatrician specifically advised him not to, failed to make timely child support payments, failed to provide proof of life insurance, and failed to reimburse Wife for the minor children's out-of-pocket medical expenses. The court held a hearing and ordered Husband to take the children to their current treating physician, that neither party was to switch the children's prescriptions unless their doctor advised to do so, and that the parties would notify one another of doctor's appointments and any changes to the children's prescriptions.
In a later hearing held in December 2011, the court found Husband to be in "willful contempt" of the court's orders; however, it reserved punishment to see if he would comply. At the hearing on the matter, Wife was granted a judgment against Husband in the amount of $5,604.65 for out-of-pocket medical expenses and ordered a wage assignment of $385.85 biweekly for child support.
Analysis and Conclusion: Husband filed an appeal averring the trial court erred in granting Wife $5,604.65 for out-of-pocket medical expenses and in holding him in contempt. The appellate court reviewed the poof of out-of-pocket medical expenses given to the trial court and found the proof to only substantiate a judgment of $2,124.32 against Husband. The trial court's decision was modified to reflect this amount.
On the contempt matter, Husband argued he was not given adequate notice that he was being charged with criminal contempt and, therefore, the decision should be reversed. The appellate court had to determine what type of contempt the trial court imposed on Husband. Civil contempt is remedial in nature and is usually employed by a court to compel a party to comply with its order(s). It can also be alleviated by compliance of the offending party. Criminal contempt is a punitive action by the court and cannot be lifted by compliance of the party. During its review, the appellate court found that the trial court did not specify whether the contempt Husband was charged with was civil or criminal in nature. However, it determined that the contempt was criminal as the trial court did not condition the contempt with Husband's compliance instead reserving its punishment for the contempt at a later time. The appellate court found this to be a suspended sentence by the trial court.
In this case, the trial court held Husband in contempt for actions that happened outside of the court; therefore, the appellate court reasoned the contempt to be indirect and therefore subject to Tenn. R. Crim. P. 42(b) which states:
(b) DISPOSITION ON NOTICE AND HEARING. A criminal contempt
shall be prosecuted on notice...
(1) CONTENT OF NOTICE. The criminal contempt notice shall:
(A) state the time and place of the hearing;
(B) allow the defendant a reasonable amount of time to prepare a defense; and
(C) state the essential facts constituting the criminal contempt charged and describe
it as such
(2) FORM OF NOTICE. The judge shall give the notice orally in open court
in the presence of the defendant or, on application of the district attorney general
or of an attorney appointed by the court for that purpose, by a show cause or arrest order.
The appellate court further pointed out the case Long v. McAllister-Long, 221 S.W.3d 1, 13-14 (Tenn. Ct. App. 2006) which required parties charged with contempt to receive "adequate notice that is clear and unambiguous to the average citizen..." The case further mandated that the notice for contempt must "state succinctly for the accused the 'essential facts' constitution the charge." It also stipulated that the notice must be clear that the contempt charge is for punishment and not for compliance.
Wife argued that Husband waived the argument of insufficient notice when he did not bring it up to the trial court in the post-trial motion to alter or amend. The appellate court turned to Simerly v. Norris, No. 1071, 1987 WL 8315 at *9 (Tenn. Crim. App. Mar. 26, 1987) which addressed this same waiver argument. In the Simerly case it was found that because the notice itself was not executed properly and the absence of facts or circumstances that would excuse the deficiency did not exist, the issue could be raised to the appellate court even it had not been at the trial court level.
Applying Long, Simerly, and Tenn. R. Crim. P. 42(b) to the contempt allegations against Husband, the appellate court found that he was not given proper notice , and he did not waive his due process right to bring the issue of lack of notice before the appellate court. The appellate court ordered the contempt sentence against Husband to be vacated, and remanded it back to the trial court for the dismissal of the criminal contempt charge against him.