Recently in Contempt Category

Contempt Reversed Due To Inadmissible Bank Statement in Tennessee Divorce

October 17, 2013 by The McKellar Law Firm, PLLC

In the case titled Patton v. Patton, No. M2012-02747-COA-R3-CV, Slip Copy, 2013 WL 5434668 (Tenn. Ct. App. Sept. 25, 2013) Tennessee family law attorneys learn how a bank document must be authenticated to qualify as a business record exemption in regards to hearsay rules; what is needed to prove criminal contempt in regards to non-payment of pendente lite support in a divorce matter; and when the court is required to set bond in regards to detaining an individual for criminal contempt.


Husband and Wife filed for divorce, and an agreed order was entered ordering Husband to pay $1,000 per month in pendente lite support. However, Husband never made these payments. Wife filed a Petition for Contempt and a hearing was set for the same day as the divorce.

At the hearing for the contempt, Wife was the only witness to testify. She stated that she never received any pendente lite support payments from Husband. Wife's attorney showed her documents garnered via discovery that included a tax return and photo copy of what was purported to be Husband's bank statement. Husband's attorney objected to the bank statement being entered into evidence; however, the court overruled the objection. Wife did not provide any information to authenticate the documents, and, while Husband was at the hearing, he did not testify.

The court found Husband to be in contempt for failure to remit five pendente lite support payments. Husband was sentenced to ten days for each count. However, the court stayed all but fifteen days of jail time. The court then ordered Husband detained during a lunch recess, and advised they would hold the divorce hearing after the break. During the lunch recess, Husband's attorney filed a notice of appeal from the findings of the court on the contempt hearing. Upon returning from the lunch break, Husband was brought back into court, and the hearing for the divorce was held. Wife was granted the divorce, the court acknowledged that Husband's counsel filed the notice of appeal for the contempt and granted a stay of the sentence pending the appeal.


On appeal, Husband raised three issues. He averred the trial court erred in allowing the bank statements into evidence without being properly authenticated, in finding Husband in criminal contempt, and in detaining Husband in a holding cell following the finding of the criminal contempt without immediately setting bond.

According to Tennessee Rules of Evidence 803(b) or 901, "[t]he determination of whether a hearsay statement is admissible through an exception to the hearsay rule is left to the sound discretion of the court." State v. Stout, 46 S.W.3d 689, 697 (2001) states that an appellate court "will not reverse the ruling of the trial court absent a showing that this discretion has been abused."

Tennessee Rules of Evidence 803(6) sets the standard regarding hearsay exceptions involving "records of regularly conducted activity. It mandates that business records may be submitted into evidence when properly authenticated and the document(s) otherwise satisfy the other rules of evidence. Tennessee courts have recognized five criteria that must be satisfied in order for documents to be admissible under the business records exception. They are as follows:

1. The document must be made at or near the time of the event recorded;
2. The person providing the information in the document must have firsthand knowledge of the recorded events or facts;
3. The person providing the information in the document must be under a business duty to record or transmit the information;
4. The business involved must have a regular practice of making such documents; and
5. The manner in which the information was provided or the document was prepared must not indicate that the document lacks trustworthiness.

Simpkins v. Simpkins, 374 S.W.3d 413, 419 (Tenn Ct. App. 2012) (quoting Neil P. Cohen, Sarah Y. Sheppard, Donald F. Paine, Tennessee Law of Evidence § 8.11(10) (6th ed.2011)). Further, "[a] business record may be authenticated by either providing the testimony of a qualified person or by using a certification process either in compliance with Tennessee Rule of Evidence 902(11) or a statue authorizing such certification." Id.

In the case at bar, the disputed bank document was a statement from Regions Bank for one month titled "Transactions," but it did not have the account holder's name on the document. The appellate court reviewed Wife's testimony at the contempt hearing and found that her testimony was insufficient to authenticate the document. This coupled with no identifying markers on the document to designate that it belonged to Husband led the appellate court to determine that the trial court erred in allowing the statement into evidence.

In regards to the criminal contempt, once a person is held in criminal contempt the presumption of innocence is no longer in effect. Therefore, on appeal, the court had to determine, when considering the evidence in a light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

In this case, the appellate court found Wife's testimony established that Husband failed to pay the pendente lite support obligation. However, Wife also had to establish that Husband had the ability to pay said support and that his failure to do so was willful. Due to the bank statement being deemed inadmissible and Husband's tax return showing an income of $8,138, the appellate court found that no trier of fact would find beyond a reasonable doubt that Husband had the ability to pay $1,000 per month in pendente lite support to Wife. The trial court's decision was reversed.

As far as no bond being set, the appellate court found that the issue was moot as the court could offer no meaningful relief. However, it pointed out that Husband's attorney did not request or bring up the issue of the bond with the trial court and, therefore, could not be heard on appeal.

Criminal Contempt Overturned in Divorce Due to Lack of Proper Notice

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:

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.

One Party's Failure to Pay A Property Settlement Does Not Relieve Other Party's Child Support Obligation

In the case of Cantrell v. Cantrell, No. M2012-01847-COA-R3-CV (Tenn. Ct. App. May 23, 2013), Knoxville divorce lawyers learn that one party's failure to timely pay a property settlement does not relieve the other party's child support obligation.

Facts: The parties divorced in 2008. In 2012, Wife filed a Petition for Contempt based upon Husband's failure to comply with the terms of the divorce. Husband also had a pending Petition to Set Child Support, and the two issues were heard on the same day. The trial court ordered the following: Husband would pay to Wife $20,000 in sixty (60) days; Wife would retrieve all property within sixty (60) days and child support would be paid by Wife of $281 per month from 2008-2011. Wife appealed, arguing that she should not have been ordered to pay child support and that the trial court should have imposed further punishment on the Husband for his failure to pay.

Analysis: Wife's appeal regarding the child support rests on her assertion that she should not have had to pay support based upon fairness and the history of the case. Wife did not argue that the amount was wrongly calculated or inappropriate numbers were used in the calculation itself. Wife argued that she should not pay support because Husband failed to pay the $20,000 property settlement to her in a timely manner. The Appeals Court here finds Wife's argument lacking. The Court held that is was proper for the trial court to hear the contempt and the child support petition simultaneously, and that Husband's failure to pay the property settlement should not affect Wife's duty of support.

Regarding the issue of Husband's contempt, Wife argues additional punishment should have been handed down by the trial court in addition to requiring Husband to pay the outstanding amount in sixty (60) days. However, Wife's Petition only requested civil contempt, not criminal contempt. Civil contempt is intended to bring a party into compliance with a court order; criminal contempt is intended to punish a party for wrongdoing. Because Wife asked for civil contempt and received an order directing Husband to comply, no other action would have been proper. Therefore the trial court is affirmed.

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

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. §36-6-106. 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.

Attempted Compliance Can Thwart Contempt Allegations

In the case of Gaddes v. Gaddes, No. M2011-02656-COA-R3-CV, 2013 WL 26842 (Tenn. Ct. App. Feb. 1, 2013) Tennessee divorce attorneys learn (1) criminal contempt is not warranted when attempted compliance is proven; and (2) parties cannot claim inconsistent positions about the intent of contractual language in order to avoid obligations.

Facts: The parties divorced in January 2001. In the Final Decree Mother was named the custodian from September through May, for which time period Father was to pay $1,622.00 per month in child support. From June through August, Father was named the children's custodian for which time period Mother was ordered to pay $290.00 per month in child support. After the Final Decree, Mother and Father verbally agreed to subtract Mother's child support obligation from Father's leaving Father to pay $1,174.00 per month in support over a twelve month period. The Final decree also stipulated that Father maintain health insurance for the two minor children and "the parties shall each pay one-half of any expenses not covered by insurance."

In December 2010 Mother filed a Petition for Criminal Contempt alleging Father was $2,059.00 in child support arrears, and that he had not yet paid the December payment. She also alleged that Father had not been paying in a timely manner and not paying his half of the out-of-pocket optical and/or dental expenses. Mother requested Father be incarcerated for ten days, become current on his child support, and that his visitation with the children be restricted pending mandatory counseling. Father filed a Counter Petition to Modify Final Decree and for Criminal Contempt requesting a reduction of his child support due to his decreased income and to hold Mother in contempt for interfering with his parenting time. The trial court held Father in contempt for his failure to pay the December 2010 child support payment before December 1st. However, the trial court declined Mother's request to incarcerate Father citing he was attempting to pay his child support obligation and prior to being served the Petition for Contempt he sent Mother a check for his December 2010 child support payment.

In August, 2011 a hearing was held on the competing motions. Mother was awarded $7,583.10 for unpaid child support through May 2011 to be paid at $500.00 per month and $1,200.00 for attorneys' fees. The trial court found Father was not obligated to pay half of any out-of-pocket optical and/or dental expenses for the children and reduced his child support obligation to $789.00 due by the 1st day of every month. Mother appealed.

Analysis: On appeal, the Appellate court decided two issues: (1) whether the trial court erred in declining to incarcerate Father for contempt; and (2) whether the trial court erred in not ordering Father to pay half of any out-of-pocket medical expenses.

On the contempt issue, Mother asserted a decade long issue with Father paying his child support obligation on time. The Appellate Court cited there was "scant evidence" to support Mother's allegations of decade-long non-compliance. The Court cited that Mother admitted to the trial court that her calculation of Father's arrearage was incorrect as she had failed to take into account two $600.00 payments made by Father. The Appellate Court pointed out that Father was $1,174.00 (one month) in arrears at the time Mother filed her Petition, and prior to being served Father paid the amount in full.

In regards to medical expenses, Mother argued that "medical expenses" referenced in the Final Decree should have been "reasonably interpreted" to include both optical and dental expenses. Mother contended that Father should be judicially estopped from claiming such expenses are not "medical expenses" due to Father's previous assertion in a contempt claim against Mother for her failure to pay a portion of non-covered medical and dental expenses. On appeal, Father asserted that "health insurance" did not cover optical and dental expenses. The Appellate Court cited Father's previous petition against Mother for dental expenses and ordered Father judicially estopped from claiming that the parties did not intend to split dental expenses, and found no reason to treat optical expenses differently from dental expenses. It also stated that both Mother and Father admitted that they had been splitting optical and dental expenses for "quite some time." The Appellate Court averred that when interpreting a contract, the parties' declarations and conduct are evidence to the interpretation of said contract.

Conclusion: The Appellate Court affirmed the trial court's ruling not to incarcerate Father. It reversed the trial court's ruling that Father did not have to pay half of optical and dental expenses and awarded Mother $2,889.70 for said expenses.