1

Black v. Blount, 938 S.W. 2d 394 (Tenn. 1996); “Criminal contempt should be imposed in appropriate cases ‘when

necessary to prevent actual, direct obstruction of, or interference with, the administration of justice.’" Robinson v.

Air Draulics Engineering Co., 377 S.W.2d 908, 912, (Tenn. 1964), and In re: Joseph Brown, supra.

1

UNDERSTANDING THE DIFFERENCES BETWEEN

CIVIL AND CRIMINAL CONTEMPT

Ronald D. Krelstein © April 2015

I. INTRODUCTION

Churchill said that Russia is a riddle wrapped in a mystery inside an enigma. He could have been

describing contempt proceedings. This paper discusses the differences between direct and indirect

contempt, pleadings, practice and procedure, remedies available in civil contempt actions, and matters

unique to criminal contempt.

Members of the bar would do well to familiarize themselves with the Tennessee Supreme Court

decisions in Baker v. State, 417 S.W.3d 428 (Tenn. 2013), Black v. Blount, 938 S.W.2d 394 (Tenn. 1996),

Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000), Overnight Transportation Co. v. Teamsters Local Union

No. 480, 172 S.W.3d 507 (Tenn. 2005) and the recent decision in In re: Joseph Brown, 2015 Tenn. App.

LEXIS 137 ( March 23, 2015) [outlining procedures for imposing summary contempt sanction.]

Familiarity with these decisions is critical to the understanding of civil and criminal contempt, as well as

understanding the differences between summary contempt proceedings and those prosecuted upon notice

and hearing.

II. DIRECT CONTEMPTS – SUMMARY PROCEEDINGS

Contempt may be direct, meaning no notice or hearing is required, or indirect, in which case

notice must be given and a hearing conducted. Direct contempts may be prosecuted either civilly or

criminally.

Direct contempts occur in the presence of the court, or so near thereto as to interfere with judicial

proceedings. For example, a witness refuses to answer a question while testifying. This occurs in the1

2

State v. Turner, 914 S.W.2d 951 (Tenn. Crim. App. 1995);3

See, Tennessee Rules of Criminal Procedure Rule 42; court must certify in writing that it observed or heard the

conduct at issue. Otherwise, notice is required and a hearing must be afforded the defendant.

4

342 S.W.3d 511 (Tenn. App. 2010) pta denied; Watkins, ex rel Duncan vs. Methodist Healthcare System, 2009

Tenn.App. Lexis 2105

Imposition of the sentence can be delayed after a finding of contempt. State v. Turner, 914 S.W.2d 951 (Tenn.

Crim. App. 1995)

2

presence of the court and the court may order the witness jailed until the witness complies by answering

the question. But suppose that the witness engages in inappropriate conduct, and having been warned,

continues to disrupt the proceedings. In this situation, the court might find the witness in contempt, and

punish him with a $50.00 fine and ten days in jail.

Direct contempts are punished in a summary proceeding, i.e. then and there. No notice is required for a

summary proceeding, and no hearing is afforded the defendant, i.e. formal presentation of proof, cross-

examination of witnesses, etc. A summary proceeding is a drastic measure used to enforce the authority2

of the court in controlling its proceedings. Think of it as the judicial equivalent of the nuclear option; but3

2even so, the trial court is required to act immediately, or the right to notice and hearing attach.

Compliance with Tennessee Rules of Criminal Procedure, Rule 42(a) is mandatory. The court must

certify that it personally observed or heard the conduct constituting contempt. In re: Joseph Brown,

supra.

This was the issue presented in Daniels v. Grimac. The court found that the trial court erred in4

exercising its summary contempt authority more than three weeks after citing the attorney for contempt.

After citing the attorney for contempt in violating a pre-trial order, the actual hearing was set on

June 12, 2009. Rather than provide notice of the charges and a hearing for the attorney, the court

summarily found him guilty of contempt for his behavior on April 20, 2009. This is not quite the same

thing as immediately finding the attorney in contempt and then delaying the imposition of the penalty.5

.6

Daniels, supra , foot note 4, 342 S.W.3d at 517-519; For matters not occurring in the presence of the court, then

proper notice must be given to the accused; In re: Chandler, 906 F.2d 248, 250 (6 Cir. 1990) [affording attorneyth

opportunity to explain his reason for tardiness did not comply with the mandate of Rule 42]

7

Herrera v Herrera, 944 S.W.2d 379, 392 (Tenn. App. 1996)

Ahern v. Ahern, 15 S.W.3d 73, at 78-79 (Tenn. 2000)8

9

See, Baker v. State, 417 S.W.3d 428 (Tenn. 2013). Baker is the most recent discussion of the differences between

civil and criminal contempt, the notices required, and the burden of proof necessary to convict. Baker entered a

3

On appeal, the trial court was reversed. When the imposition of punishment is deferred pending

the conclusion of a trial, the need for summary proceedings decreases, and “the need for a hearing

increases.” 6

The trial court delayed the invocation of its summary authority. Under those circumstances it

should have conducted a Rule 42 hearing. Moreover, because the conduct could also be viewed as a

personal attack on the trial court, another judge should have heard the matter as required by Rule 42. 7

While summary proceedings dispense with notice and a hearing, indirect contempts, however,

require notice, and proof of the defendant’s willful and intentional violation of a court order. The kind of

notice depends upon the nature of the proceeding, i.e. civil or criminal. The burden of proof depends

upon whether the proceeding is criminal, or civil. Additionally, the scope of punishment is different for

civil and criminal contempt matters.

An indirect contempt may be either civil, criminal, or both. The relief sought by the petitioner

determines whether the proceeding in an indirect contempt is civil or criminal. If compliance with the8

order at issue is impossible, then the act is complete and normally, a criminal contempt action is the

proper one to pursue. But even if compliance is still possible, one might also bring a separate action as

well for criminal contempt. The facts justifying a civil contempt proceeding may also provide the basis

for a criminal one as well. , But, as will be discussed, the reverse is not always true.9 10

guilty plea to eighteen counts of criminal contempt and consecutive sentencing of 10 days per count for a total of

180 days of confinement.

Baker was placed on probation. The husband brought an action to revoke probation, the court revoked probation and

sentenced Baker to 180 days in jail. Baker sought relief under the Tennessee Post-Conviction Procedure Act

alleging ineffective assistance of counsel in allowing the guilty plea.

The Supreme Court held that the Post-Conviction Procedure Act did not apply to the criminal contempt conviction.

In doing so, it reviewed the history of criminal contempt and how it differs from criminal laws of general

application, the attributes that it has in common with traditional criminal offenses, and the differences between civil

and criminal contempt generally.

Practitioners would be well advised to refrain from allowing clients to enter guilty pleas to charges of criminal

contempt.

The importance of Baker to an understanding of contempt cannot be understated.

Bailey v. Crum, 183 S.W.3d 383, 389 (Tenn. App. 2005) pta den. 10

11

Baker v. State, supra note 9, and Tenn. Rules of Criminal Procedure Rule 42 – Contempt.

4

Civil contempt proceedings are controlled by statute, and criminal contempts are controlled by

the Tennessee Rules of Criminal Procedure Rule 42 as well as by statute. In federal court, civil 11

contempts are prosecuted in accordance with case law from the United States Supreme Court. As such,

intent is not an element of a civil contempt proceeding, and the burden of proof is clear and convincing

evidence. In re: Jaques, 761 F.2d 302 (6 Cir. 1985), McComb v. Jacksonville Paper Co., 336 U.S. 187th

(1949) [intent is not an element of a civil contempt proceeding, proof must be clear and convincing that

defendant violated the court order.) Federal criminal contempts are prosecuted pursuant to F.RCrim.P.

Rule 42.

As usual, the devil is in the details. These details will be examined in depth as we examine the

sources of the court’s contempt authority.

III. THE STATUTORY SOURCES FOR CONTEMPT PROCEEDINGS

A. Tennessee Code Annotated § 29-9-102 – Grounds for Contempt Generally

12

Baker v. State, supra note 9

13

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) [defendant sentenced to 11 -22 years for contempt for disruptive

behavior during trial proceedings.]

5

In Tennessee, the court’s authority to punish for contempt is defined by statute. In any12

proceeding involving an award of damages, the imposition of a fine; or confinement must be authorized

by the statutory provisions. A court cannot go beyond the dictates of the statute. Tennessee practitioners

should be relieved that contempt is governed by statute here. In other jurisdictions, including federal

court, punishment for criminal contempt can be measured in years, not days. 13

Tennessee Code Annotated § 29-9-102 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;

(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 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

14

State ex rel Paula Flowers v. Tennessee Trucking Association Self Insurance Group Trust, S.W.3d 602 (Tenn. App.

2006) pta den. [Willfulness in the context of criminal contempt is different fromAwillfulness@in the context of civil

contempt]; State v. Smith, Tenn. Crim. App. Lexis 1061 [the term willfulness@in criminal contempt means an act

voluntarily and intentionally done, and with the specific intent to do something the law forbids.]

15

302 S.W.3d 825 (Tenn. 2010)

16

Black v. Blount, footnote 1, supra.

17

General Sessions courts have the same sentencing authority if the judge is licensed to practice law; otherwise, the

limit is $50.00. Tenn. Code Ann. § 16-15 -713. Environmental and Metro Municipal courts have authority to

impose a fine of $10.00 and confinement for five days for contempt for failure to appear, except in cases involving

parking tickets. Tenn. Code Ann. § 29-9-108. Juvenile Courts have the same authority as circuit and chancery

courts. Tenn. Code Ann. § 37-1-107(c)

6

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.

The statute defines six categories of contempt. The common nexus in all categories is

willfulness. In In Re Sneed, the court equates willfulness with intentional as defined in Tenn. Code Ann.14

§ 39-11-302(a) (2006). 15

In the absence of proof that behavior is willful, then there can be no conviction for either civil or

criminal contempt.16

B. Tennessee Code Annotated § 29 -9-103 – Criminal Contempt

Tennessee Code Annotated § 29- 9 -103 provides:

(a) The punishment for contempt may be by fine or by imprisonment, or both.

(b) Where not otherwise specially provided, the circuit, chancery, and appellate courts are limited

to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten (10) days, and, except as

provided in § 29-9-108, all other courts are limited to a fine of ten dollars ($10.00) 17

18

See, Baker v. State, supra at footnote 9.

19

Baker v. State, supra footnote 9,

Black v. Blount, 938 S.W. 2d 394, 398 (Tenn. 1996); McPherson v. McPherson, 2005 Tenn. App. Lexis 795, 200520

WL 3479630

Baker v. State, supra footnote 9. 21

7

Criminal contempt, however, is not a true criminal act because it does not constitute a violation

of the general criminal laws of the state. 18

The language of Tennessee Code Annotated section 29-9-102 does not

define contempt as a criminal offense or prescribe a conviction for

contempt. Though criminal contempt has been regarded as a "crime" for

some purposes, see Black, 938 S.W.2d at 402, criminal contempt

proceedings are not intended to punish conduct proscribed as harmful by

the general criminal laws. Rather, they are designed to serve the limited

purpose of vindicating the authority of the court. In punishing contempt,

the Judiciary is sanctioning conduct that violates specific duties imposed

by the court itself, arising directly from the parties' participation in

judicial proceedings. 19

The primary difference between civil and criminal contempt is that

criminal contempt serves to vindicate the court’s authority, while civil

contempt is a remedy for a private litigant. But criminal contempt is20

also viewed as sui generis, a class unto itself. “ Contempt proceedings21

are sui generis and are incidental to the case out of which they arise. Doe

v. Bd. of Prof'l Responsibility, 104 S.W.3d 465, 474 (Tenn. 2003).

Baker v. State, 2013 Tenn. LEXIS 715, 14-15, supra note 922

Ibid. Cottingham v. Cottingham, 193 S.W.3d 531 (Tenn. 2006) [burden is on prosecutor to prove beyond a23

reasonable doubt that at time support was due, defendant had ability to pay support and failure to pay was willful.]

Overnight Transportation Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507; 510 (Tenn. 2005)24

25

Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000) [defendant could not be retried after witnesses were sworn in the first

trial, proceedings halted, and the matter dismissed with the proceeding transferred to another court for a hearing on

the merits.]

Ibid. 26

27

In Re Sneed, 302 S.W.3d 825 (Tenn. 2010),Though State v. Wood, holds to the contrary, the Supreme Court’s

decision in In Re: Sneed implicitly abrogates the holding in Wood. A court’s decision to impose consecutive

sentences is reviewed as an abuse of discretion on appeal with a presumption of reasonableness. State vs. James

Allen Pollard, 432 S.W.3d 851 (Tenn. 2013)28

Cansler v. Cansler, 2010 Tenn. App. Lexis 76; no pta.

8

Although contempt proceedings are traditionally classified as "civil" or

"criminal," in point of fact, contempt proceedings are neither wholly civil

nor criminal in nature and may partake of the characteristics of both. 22

For example, criminal contempt is sufficiently akin to a criminal proceeding to require that the

defendant be provided with notice of the charges, appointment of counsel, the right to remain silent and

not be subject to examination, entitled to the presumption of innocence, and can only be convicted upon

proof sufficient to establish guilt beyond a reasonable doubt. There is no appeal from an acquittal in a23

criminal contempt proceeding, and double jeopardy principles apply. On the other hand, a party can24 25

appeal the dismissal of a civil contempt action. While possessing many attributes of a “criminal26

proceeding,” not everything generally applicable to a criminal proceeding necessarily applies equally to a

criminal contempt action.

Also, while the Tennessee Criminal Sentencing Act applies in determining whether to impose

consecutive sentences, community service may not be imposed as punishment for criminal contempt even27

though such is available in sentencing in criminal matters. Nor may a court require the defendant to28

29

The court cannot require someone to undergo counseling as part of the punishment for criminal contempt for

violating an order of protection.

As noted above, there is no specific provision allowing counseling to be ordered as part of the punishment for

contempt. It is the legislature's responsibility to set the limits for punishment and the courts are not free to impose

greater punishments without statutory authority. Cable v. Clemons, 36 S.W.3d 39, 45 (Tenn. 2001).

30

Baker v. Tennessee, footnote 9, supra.

31

Goldberg v. Maloney, 692 F.3d 534 (6 Cir. 2012) [petitioner received 18 month sentence for contempt in Ohioth

Probate proceeding. After hearing and conviction petitioner argued that he received ineffective assistance of counsel

and was not give notice that the matter would be heard as a criminal contempt. Habeas relief denied on the basis that

petitioner had engaged in a procedural default of the issues.]

32

Under U.S. Supreme Court jurisprudence there is a right to trial by jury where the aggregate sentence imposed exceeds

six months, but this exception does not apply to Tennessee contempt proceedings because the maximum for one offense

is just 10 days regardless of how many offenses are committed. Dyke v. Taylor Implement Co., 391 U.S. 216 (1968);

Taylor v. Hayes, 418 U.S. 488 (1974) [sentence of 4 and ½ years imposed upon attorney was reduced on appeal to no

more than six months, thereby, avoiding the necessity of a jury trial]; also, Lewis v. United States, 518 U.S. 322 (1996).

Lewis holds that a postal worker charged with two counts of mail obstruction, each carrying a maximum confinement

of six months, was not entitled to a jury trial even if the sentences were run consecutively because neither sentence could

exceed six months. Thus, under Tennessee law, no jury trial is available even if the sentences exceed six months because

they are served consecutively.

But proceedings for criminal contempt should not be confused with proceedings under Tennessee Code Annotated § 36-

5-104 which is a criminal statute of general application. As such, unless waived, the matter can only be prosecuted upon

indictment or presentment, a jury trial may be demanded, and the action must be prosecuted by the district attorney

general. Brown v. Latham, 914 S.W. 2d 887 (Tenn. 1996).

33

International Union v. Bagwell,512 U.S. 821 (1994) [fine of fifty-two million dollars could not be imposed without

affording a jury trial.]

9

undergo counseling for violating an order of protection. Further, the Tennessee Post-Conviction29

Proceedings Act does not apply to a conviction for criminal contempt matter because being found in

criminal contempt is not viewed as a violation of the general criminal statutes of the state. 30

This does not, however, necessarily foreclose possible post-conviction relief in federal court under

28 USC 2241. 31

Furthermore, there is no right to a jury trial expect in extraordinary circumstances involving

punishment exceeding six months confinement , or an issue of excessive fines. 32 33

34

Overnight Transportation, supra, note 24.

10

None of these extraordinary circumstances exist under Tennessee contempt practice because of the

limitation on punishment set by our statutes.

C. Tennessee Code Annotated § 29-9-104 – Civil Contempt – Keys in the pocket

Tennessee Code Annotated § 29-9 -104 provides:

Omission to perform act:

(a) If the contempt consists in an omission to perform an act which

it is yet in the power of the person to perform, the person may be

imprisoned until such person performs it.

(b) The person or if same be a corporation, then such person or

corporation can be separately fined, as authorized by law, for each

day it is in contempt until it performs the act or pays the damages

ordered by the court. (italicized portion reflects recent amendment

to the statute.)

This statute is the one most frequently invoked in enforcing a court’s order for the benefit of the

petitioner, e.g. payment of alimony and child support. In 2010, the legislature added the provision “or

pays the damages ordered by the court.” The avowed purpose of the 2010 amendment was to place

Tennessee Code Annotated § 29-9-104 on the same footing as Tennessee Code Annotated § 29-9-105

which also allows the imposition of damages. No cases have yet discussed the scope of this new34

provision. It would seem to allow the recovery of incidental damages incurred when a defendant is found

in civil contempt. For example, suppose that the defendant has failed to pay support for children when due.

As a consequence, the custodial spouse incurs out-of-pocket expenses for a baby-sitter while the spouse has

to work overtime in order to meet her expenses.

Aside from the award of attorney fees, the court might order the reimbursement of the other

35

Baker v. Tennessee, footnote 3, supra. 36

International Union v. Bagwell, U.S. 821 (1994)37

Beard v. Beard, 106 S.W.3d 463 (Tenn. App. 2006), Tacker v. Davidson, Tenn. App. Lexis 460 (court must make a

specific finding at trial that the defendant willfully violated the order, and presently has the ability to comply with

the order); Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000)

Beard, supra 467; Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000)38

Beard, supra 467; Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000)39

Gossett v. Gossett, 241 S.W.2d 934 (Tenn. App. 1951). 40

11

expenses for child care unnecessarily incurred as a result of failing to pay support when due. Tennessee

Code Annotated § 29-9-105 cannot be used to recover the expenses because it imposes a duty “not to

engage” in certain conduct, whereas, Tennessee Code Annotated § 29-9-104 orders a party “to engage” in

certain conduct, i.e. payment of support. This difference will be examined in further detail infra in part D.

Civil contempt proceedings are for the benefit of the injured party; criminal contempt is the

mechanism by which the court’s authority is vindicated. If it is a matter where the defendant can still35

perform the act ordered, then he has the keys to the jail in his pocket and can be confined until he performs the

act. , This is designed to force the defendant to act. 36 37

The defendant can be found in civil contempt under this provision only if the court makes an express

finding that at the time of the trial that the defendant has the present ability to comply with the order, e.g., pay

the support due. 38

If the defendant does not have the present ability to comply with the order, or purge himself of contempt,

then the court cannot sentence the defendant to jail for civil contempt.39

What if the defendant has created the circumstances so that he cannot comply, for example, he has

gambled the money away needed to pay support? It is axiomatic that a defendant cannot intentionally disable

himself from complying with a court order. In such a case, the defendant should be charged with criminal40

contempt. Not being able to comply because of past intentional behavior that makes current compliance

impossible is criminal contempt, not civil contempt.

But what happens at the conclusion of a civil contempt proceeding and the court determines that

2007 Tenn. App. LEXIS 796 (Tenn. Ct. App. 2007)41

12

noncompliance was caused by the defendant willfully disabling himself from compliance, and the Rule 42(a)

Notice was not given?

If the case proceeded on the basis that it was civil contempt, then the petitioner will have to start over,

file a criminal contempt action, and serve the Rule 42 notice. What if the defendant has already testified?

Unless the defendant invoked the privilege against self-incrimination in the prior civil proceeding,

then the privilege is waived. What if he invokes it immediately upon the filing of a civil contempt charge, and

does so at trial?

While the privilege can be invoked in a civil matter, the court may draw an adverse inference which

will support a finding of willful failure to obey an order, and that the defendant can currently comply with the

order.

The invocation of the privilege suggests that the defendant has intentionally disabled himself from

compliance. The petitioner may have to ferret out other evidence to prove criminal contempt. In criminal

matters, one may not draw any adverse inference when the defendant remains silent.

Consider the decision in Foster v. Foster. The defendant willfully failed to pay support and had the41

means of doing so when the support was due. At the time of the hearing, however, the defendant could not

comply with the order because he was unemployed.

Even though the petition alleged civil/and/or criminal contempt (the dreaded Siamese-Twins), the

trial court determined that the matter should proceed on the basis of criminal contempt, and the appropriate

Rule 42 notice was given by the court, and the defendant fully informed of his right to remain silent.

Mr. Foster testified that he had spent the money due the children for a new paint job for his motorcycle rather

than pay support. He was found guilty on 18 counts of criminal contempt, and sentenced to 180 days in jail.

The appellate court found that even though the petition was styled as one to find the defendant in civil

contempt, criminal contempt, or both, the actual proceeding was for criminal contempt. It rejected the

argument that the defendant was being tried for both at the time of the hearing. The appellate court found that

172 S.W.3d 507 (Tenn. 2005). 42

172 S.W.3d 507, 508 (Tenn. 2005)43

See Collier v. City of Memphis, 160 Tenn. 500, 26 S.W.2d 152, 153 (Tenn. 1930); Gunter v. Seaboard Copper44

Mining Co., 142 Tenn. 14, 215 S.W. 273, 274 (Tenn. 1919); 172 S.W.3d at 509 (Tenn. 2005).

13

the appropriate notice under Rule 42 was given.

D. Tennessee Code Annotated § 29-9-105 - Civil Contempt - Commission of Forbidden Act

This civil contempt statute provides for the award of damages in order to make the plaintiff whole, and

allow confinement of the defendant until the damages are paid or the plaintiff is made whole.

Tennessee Code Annotated § 29-9-105 provides:

If the contempt consists in the performance of a forbidden act, the person may be imprisoned

until the act is rectified by placing matters and person in status quo, or by the payment of

damages.

The seminal decision discussing this provision is Overnight Transportation Co v. Teamsters Local

Union No. 480. There were three issues before the court:42

1) whether a trial court's order declining to hold an alleged contemner in civil contempt may

be appealed; 2) whether compensatory damages for civil contempt are available pursuant to

Tennessee Code Annotated section 29-9-105 (1980 & 2000) from a contemner who commits

an act forbidden by a trial court's order; and, if so, 3) whether those damages may be recovered

if the violation is not ongoing at the time of the hearing.43

The court answered all three questions: Yes. Prior to Overnight Transportation Co., the conventional

wisdom had been that there is no appeal from a court’s declining to hold a party in contempt. Further, the44

court held that damages were available from a contemner who commits a forbidden act, and it does not matter

if the violation has ceased at the time of the hearing.

In Overnight Transportation, the union defendant had commenced a strike against Overnight.

45

172 S.W.3d 507, 510-511 (Tenn. 2005)

14

Overnight secured an order from the court on October 29, 1999 restricting the conduct of the parties. Despite

this order, Overnight alleged that the union had engaged in various act in violation of the order from

November 1999 until January 2000. Consequently, the trial court issued more restrictive orders and

injunctions against the union.

On June 2000, Overnight alleged that the union had violated the orders on at least 131 occasions. Of

these 131 allegations, 128 alleged acts of criminal contempt. Following the procedures required by

T.R.Crim.P. Rule 42, the trial court referred the criminal contempt prosecutions to the district attorney general

who declined to prosecute the violations.

As for the allegations of civil contempt, the trial court agreed Tennessee Code Annotated §29-9-105

could be used by Overnight to recover damages, but, since the alleged activity had stopped prior to the

hearing, damages could not be imposed because prosecution would be in the nature of criminal contempt and

not coercive in nature. Finding that the issue was moot, the civil contempt action was dismissed.

After determining that Overnight could appeal under the Tennessee Rules of Appellate Procedure, the

court began its analysis by examining the differences between criminal and civil contempt as well as the

differences between §29-9-105 and § 29-9-105. “ One may violate a court's order by either refusing to

perform an act mandated by the order or performing an act forbidden by the order. If the contemner has

refused to perform an act mandated by the court's order and the contemner has the ability to comply with the

order at the time of the contempt hearing, the court may fine or imprison the contemner until the act is

performed. Tenn. Code Ann. § 29-9-104 (1980 & 2000); see Ahern, 15 S.W.3d at 79. Thus, the contemner

possesses the "keys to the jail" and can purge the contempt through compliance with the court's order.”45

“The alleged contempt in the present case involves performing acts forbidden by the trial court's order.

Tennessee Code Annotated section 29-9-105 (1980 & 2000) provides that "if the contempt consists in the

performance of a forbidden act, the person may be imprisoned until the act is rectified by placing matters and

46

172 S.W.3d 507, 511 (Tenn. 2005)47

Ibid. 48

Reed v. Hamilton, 39 S.W.3d 115 (Tenn. App. 2000)

15

person in status quo, or by the payment of damages." (emphasis added). Section 29-9-105 combines

punishment to vindicate the court with damages to compensate the party for injury arising from the illegal

disobedience of the court. Headrick v. Carter, 897 S.W.2d 256, 261 (Tenn. 1995). The measure of damages is

the actual injury sustained as a result of the contempt. Id.

Fines for civil contempt may either coerce the contemner to comply with the court order or serve to

compensate the injured party. City of Chattanooga v. Davis, 54 S.W.3d 248, 271 (Tenn. 2001) ("Civil

contempt fines . . . are generally regarded as being remedial in nature when (1) the fine is prospectively

coercive, or (2) the fine serves to compensate the party injured by the violation of the order.") (citing

International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 829, 129 L. Ed. 2d 642, 114

S. Ct. 2552 (1994)). Accordingly, under the plain language of Tennessee Code Annotated section 29-9-105

(1980 & 2000), damages are available to a party injured by a contemner's acts in violation of a court's order. 46

. . . .When the contempt consists of the performance of a forbidden act, the cessation of the contemptuous

conduct after the entry of the order prohibiting that conduct does not preclude a finding of civil contempt and

an award of damages.”47

One must be careful not to confuse the remedy under § 29-9-105 with the “keys in your pocket” remedy

under § 29-9-104. They seem similar but they are not because § 29-9-105 contemplates a finding that the

injured party can be restored to the status quo with an award of damages and the defendant can be confined

until the status quo is returned or compensatory damages are paid. A proceeding under § 29 -9 -105 can also

result in the awarding of attorney fees.48

If the act is complete, and cannot be undone, i.e., restore one to the status quo, then it is criminal

contempt subject to a fine and confinement, but not damages, or attorney fees. If compliance is still possible

49

Law vs. Law, 2007 Tenn. App. LEXIS 655. [wife could not be charged under Tenn. Code Ann. § 29 - 9 -105 and ordered

to pay damages for violation of order requiring counseling of child.]

50

As is clear from the rule, unless the alleged contemptuous act was committed in the presence of the court, a proceeding

to hold a person in criminal contempt of court must comply with Tenn. R. Crim. P. 42(b). Bailey v. Crum, 183 S.W.3d

383, 388 (Tenn. Ct. App. 2005) (citing State v. Maddux, 571 S.W.2d 819, 821 (Tenn. 1978); Jones v. Jones, 01A01-

9607-CV-00346, 1997 Tenn. App. LEXIS 132, 1997 WL 80029, at *8 (Tenn. Ct. App. February 26, 1997)). The notice

16

then the proceeding is under § 29-9-104.49

Remember, a proceeding under § 29-9-104 is available when the court finds that compliance with an

order directing the defendant to do some act is still possible; and the defendant can purge himself of the

contempt finding by complying with the affirmative duty imposed or remaining confined until he does. But

proceedings under § 29-9-105 contemplate violation of an order forbidding certain conduct, with the result

that a finding of contempt requires the payment of damages, restoration of the status quo, or remaining

confined until the matter is rectified.

While the case does not detail the exact nature of the orders imposed in Overnight, it is safe to presume

that at least one order traditionally imposed in labor disputes forbid agents of the Teamsters from engaging in

threats to workers of Overnight, or otherwise hindering or damaging the business of Overnight, e.g. slashing

tires, breaking windows, etc.

Clearly, engaging in that sort of conduct would be criminal because the matter is complete at the time

of the action and therefore, not subject to the coercive force of § 29-9-104. But that does not end the inquiry.

Since the court ordered that the Teamsters not engage in the specific acts of violence mentioned above, § 29-9-

105 is also available to ensure that compensatory damages are paid by the Teamsters to reimburse Overnight

for the costs of repairs, as well as loss of income. A proceeding for criminal contempt is not mutually

exclusive to a collateral action for damages under §29-104 or § 29-9-105.

IV. THE DIFFERENCES BETWEEN PROCEEDINGS UNDER 29-9-103, 29-9-104 AND

29-9-105.

Proceedings under 29-9-103 differ from those under Tennessee Code Annotated §§ 29-9-104 and 105. Failure

to adhere to the required notice and hearing procedure results in many cases being reversed on appeal. 50

required by the rule must "specifically charge a party with criminal contempt and must succinctly state the facts giving

rise to the charge." Bailey, 183 S.W.3d at 388.

The record does not show that Father was given the notice required by Tenn. R. Crim. P. 42(b). The trial court's

statement from the bench that a violation of its order would possibly lead to a criminal contempt holding and a period

of time spent in jail did not satisfy the procedural notice requirements of Tenn. R. Crim. P. 42(b). Accordingly, we vacate

the trial court's holding of criminal contempt and remand the case for further proceedings.

In re Faith A. F., 2013 Tenn. App. LEXIS 478, 15-16; 2013 WL 3941085

17

Criminal contempt proceedings are prosecuted in accordance with the provisions of Tennessee Rules of

Criminal Procedure, Rule 42. Rule 42 provides:

(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.

(b) Disposition on Notice and Hearing. A criminal contempt shall be prosecuted on notice, except as

provided in subdivision (a) of this rule.

(1) Content of Notice. The criminal contempt notice shall:

(A) state the time and place of the hearing;

(B) allow the defendant a reasonable 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 alleged contemner or

by written order, including an arrest order, if warranted. The notice and order may also issue

on application of the district attorney general, an attorney appointed by the court for that

purpose, or an attorney representing a party in the case. (italicized language is new since the

amendment of 2014).

51

Private counsel was appointed to prosecute the contempt proceeding in Overnight Transportation supra, note 24 52

Compare, Young v. United States, 481 U.S. 787 (1987) holding that appointment of party’s attorney to prosecute a

criminal contempt is improper with Wilson v. Wilson, 984 S.W. 2d 898 (Tenn. 1998) allowing appointment of a

private party’s attorney to prosecute criminal contempt. 53

Supreme Court Rule 13 Section 1 (d)(1)(B) provides that counsel shall be appointed for all indigent defendants

charged with contempt where the defendant is in jeopardy of incarceration. Appointed counsel is entitled to a

maximum fee of $500.00. Rule 13 Section 2 (c)(1) and (d)(2)(A). See, State ex rel. Creighton v. Creighton, 2011

18

(3) Release on Bail. The criminal contempt defendant is entitled to admission to bail as provided

in these rules.

(4) Disqualification of Judge. When the contempt charged involves disrespect to or criticism of a

judge, that judge is disqualified from presiding at the hearing, except with the defendant's

consent.

(5) Punishment Order. If the court finds the defendant guilty of contempt, the court shall enter an

order setting the punishment.

Anecdotal evidence suggests that few, if any, orders were actually entered appointing private counsel

to prosecute criminal contempts prior to the recent amendment. Nonetheless, it is doubtful that failure to enter

the order would be an error justifying a reversal of a contempt finding. As a practical matter, private counsel

should prepare an order appointing them to prosecute the case. While Tennessee allows for the appointment51

of a prosecutor in criminal contempt actions, such is not the case in federal court where the U.S. Attorney is

the sole source of criminal contempt prosecutions. 52

In drafting the notice in compliance with Rule 42, the notice should provide the following:

1. You are being charged with contempt in violation of Tenn. Code Ann. § 29-9-103, and if found

guilty you may be subject to confinement for 10 days, a fine of $50.00, or both for each alleged

violation of the court order;

2. You are presumed innocent, and are entitled to be represented by an attorney, and if unable to

afford an attorney, the court will appoint one to represent you;53

Tenn. App. 173 [criminal contempt defendant entitled to appointed counsel pursuant to Supreme Court Rule 13

Section 1(d)(1)(B)]; Counsel must be provided in civil and criminal contempt proceedings. Baker v. Tennessee,

supra, note 9.

54

Storey v. Storey, 835 S.W.2d 593, 600 (Tenn. App. 1992) no pta illustrates the point. A contempt proceeding was

instituted without specifying whether it was criminal or civil. Not until the hearing concluded did the court decide to treat

it as criminal contempt. No notice under Rule 42 was given. The conviction was reversed.

“In State v. Wood, 91 S.W.3d 769 (Tenn. Ct. App. 2002), this Court noted that criminal contempt was "enough of a

crime" for the double jeopardy provisions in the federal and state constitutions to apply. Id. at 773 (citing Ahern v. Ahern,

15 S.W.3d 73 (Tenn. 2000)). On the other hand, criminal contempt is "not enough of a crime" to require initiation by

an indictment or presentment, and there is no right to a trial by jury. State v. Wood, 91 S.W.3d at 773. Case law is clear,

however, that criminal contempt is "enough of a crime" to require proper notice.” Moody v. Hutchison, 159 S.W.3d 15,

27 (Tenn. App. 2004)

55

Sprague v. Sprague, 2013 Tenn. App. Lexis 398, 2013 WL 3148278 provides a survey of cases reversed due to the

failure to provide the notice required by Rule 42. The case also provides an excellent summary of the differences

between civil and criminal contempt; Sosebee v. Sosebee, 2012 Tenn. App. LEXIS 286; 2012 WL 1579344 [69

counts of criminal contempt with 690 day sentence reversed for failure to provide Rule 42 notice that defendant was

charged with criminal contempt. 56

One must be aware that the same body of facts may support both a criminal and civil contempt action. Bailey v. Crum,

183 S.W.3d 383, 389 (Tenn. App. 2005) pta den. Where relief is sought in a single pleading for both civil and criminal

contempt, the pleading must be separated into two different actions. McPherson v. McPherson, 2005 Tenn. App. Lexis

795; 2005 WL 3479630 [trying civil and criminal contempt matters at the same time is fundamentally flawed

19

3. You have the right to remain silent and may not be compelled to give evidence against yourself;

4. You have the right to examine witnesses against you, and offer proof on your own behalf if you

choose to do so; and

5. You have the right to appeal if found guilty of violating the court’s order, and are entitled to bail

while the appeal is pending. 54

Failure to give the proper notice is a frequently cited reason for reversing criminal contempt convictions. 55

Each alleged violation of the order should be set forth in a separately numbered paragraph and

supported by specific factual allegations of the conduct alleged to be contemptuous. Under no circumstances

should a claim of civil contempt be joined with an allegation of criminal contempt. Both actions might be

supported by the same facts, but the procedure for trial is entirely different, and the burdens are different. 56

Do not present the court with the dreaded Siamese-Twins of contempt proceedings: A claim of civil

57

Newman v. Newman, 2005 Tenn. App. LEXIS 398, 2005 WL 1618746; holds that Rule 5 provides for notice of civil

contempt matters by service by mail in pending cases.58

See, Battleson v. Battleson, 2010 Tenn. App. Lexis 407, 2010 WL 2593926 holding that service on prior attorney is

invalid after case is closed, and service under T.R.Civ.P. Rule 4 is required. The decision turned on the fact that the

attorney had not had any contact with the defendant for an extended period of time, and did not reach the issue of

whether the proceeding was a new one or not.

One should not confuse jurisdiction, which the courts continue to maintain over modification and enforcement of

support orders, with giving notice to a defendant. The more reasoned approach would seem to require personal service

as the proper means of notice where the case is concluded without regard to how long the case has been closed.

59

McPherson v. McPherson, 2005 Tenn. App. Lexis 795, 2005 WL 3479630 60

Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 37, 377 S.W.2d 908 (Tenn. 1964) The matter of determining

and dealing with contempts is within the court's sound discretion, subject to the absolute provisions of the law and its

determination is final unless there is plain abuse of discretion. Konvalinka v. Chattanooga-Hamilton County Hosp.

Auth., 249 S.W.3d 346, 358 (Tenn. 2008) [exercise of court’s discretion will not be disturbed on appeal in the absence

of abuse.]

20

contempt joined with a claim of criminal contempt in a single petition. Two separate petitions should be filed.

If you are defending an action with a Siamese-Twins pleading, move the court to order the bifurcation of the

action, and ask that separate petitions be filed setting forth the specific acts of misconduct. No answer is filed

to a charge of criminal contempt anymore than an answer is filed in response to an indictment or criminal

complaint. On the other hand, an answer is typically filed in response to a charge of civil contempt.

If an action is pending at the time of the alleged violation of the order, service may be had by sending a

copy of the petition charging contempt to opposing counsel, or an unrepresented party, in accordance with

Tennessee Rules of Civil Procedure Rule 5.02. If, however, the contemptuous conduct occurs after a case is57

concluded, then service must be had on the defendant, not counsel for the defendant. 58

At trial, the prosecution has the burden of proof in showing that the defendant willfully violated an order of

the court, and that at the time of the alleged violation he had the ability to comply with the order. Whether a59

defendant should be found in contempt is a matter of discretion with the trial court. Merely showing that an60

order was in effect, and there was no compliance with the order is insufficient to carry the required burden of

61

Huffnagle v. Huffnagle, 2005 Tenn. App. LEXIS 700, 2005 WL 2989603 [a 180-day sentence vacated, the wife

failed to prove beyond a reasonable doubt that former husband willfully failed to pay support; there was no evidence

that the defendant could have met his obligations under the order at the time he failed to make the payments, and that

the failure was willful.

Ibid. 62

63

Tenn. Code Ann. § 40-2-102(a); The misdemeanor statute of limitations applies to bar criminal contempt proceedings

instituted more than one year after the commission of the alleged contemptuous act. Church of God v. Tomlinson Church

of God, 247 S.W.2d 63 (Tenn. 1952).

21

proving the defendant guilty beyond a reasonable doubt. The opinion in Huffnagle v. Huffnagle written by61 62

then Judge Koch (now Justice Koch) for the Middle Section perfectly illustrates the point. The former spouse

proved the existence of an order, and testified that there was no compliance with the order. Even though the

ex- husband enjoyed a luxurious life-style with his new wife, there was no evidence that the failure to comply

was willful, or that at the time support was due the defendant had the ability then and there to comply with the

order. Failure to comply with an order is not sufficient to establish guilt. The failure must be willful and

intentional.

Criminal contempt is a misdemeanor and prosecutions for criminal contempt matters must be instituted

within twelve months of the alleged offense. As for civil contempts, it would appear that an action for civil63

contempt must be instituted within 10 years of the alleged violation of the order. See, Tenn. Code Ann. § 28- 3-

110 (a)(2), and Cohen v. Didier, 2014 Tenn. App. LEXIS 499. These principles will now be applied to the

following scenario.

SCENARIO

Assume that in a pre-decree divorce proceeding the defendant spouse is ordered to pay child support in the

amount of $500.00 per month. Further, the defendant spouse is ordered not to contact the plaintiff at work

except in an emergency involving the child when the defendant is exercising visitation privileges. Finally, the

defendant spouse is given visitation every weekend beginning at 3:00 p.m. on Friday until 6:00 p.m. on

Sunday.

During the pendency of the action, the defendant fails to pay child support for three months, he has contacted

22

the plaintiff at work on three separate occasions, June 15 , June 16 , and July 9 . As a result of the failure toth th th

pay child support, the plaintiff has refused to let the defendant enjoy visitation privileges on four consecutive

weekends.

Assuming that you represent the plaintiff, you have the following options. First, for failure to pay child

support you may cite the defendant for both criminal and civil contempt. Additionally, the defendant can be

cited for criminal contempt for contacting the plaintiff at work, but not civil contempt because the action is

complete and compliance with the no contact order is not possible.

Accordingly, you prepare two petitions citing the defendant for criminal and civil contempt. In addition to

giving the required notice under Rule 42, your petition alleges six separate counts of criminal contempt, three

for non-payment of child support, and three for the no contact violations. Your civil contempt petition alleges

three violations, i.e. three failures to pay child support.

Meanwhile, the defendant files a criminal contempt citation against the plaintiff alleging violation of the

court’s order on visitation on four separate occasions in four separate counts.

We will now consider how each party responds. First, no answer is required to any charge of criminal

contempt, and one should never be filed. If a party files the Siamese-Twins version of a contempt citation,

immediately move the court to sever the two, and insist that the criminal charge be tried to a conclusion first.

A court may try them one after the other, but the court must rule on the criminal charge first.

When charged with civil contempt, file an answer. If both criminal and civil contempt proceedings are

pending, move the court for an order allowing the filing of a civil answer after the criminal matter is

concluded. Do not allow the plaintiff to engage in typical civil discovery of the defendant in criminal

contempt proceedings. Remember, the criminal contempt defendant enjoys the privilege against self-

incrimination, and that applies to discovery.

At trial, the plaintiff must prove that each criminal count was a willful violation of the pending order.

Despite the fact that the burden of proof is on the plaintiff in a criminal contempt trial, the defendant’s conduct

64

Foster v. Foster, 2007 Tenn. App. LEXIS 796 (Tenn. Ct. App. 2007). The defendant willfully failed to pay support and

had the means of doing so when the support was due. At the time of the hearing, however, the defendant could not

comply with the order because he was unemployed.

Even though the petition alleged civil/and/or criminal contempt (the dreaded Siamese-Twins), the court

determined that the matter should proceed on the basis of criminal contempt, and the appropriate Rule 42 notice was

given by the court, and the defendant fully informed of his right to remain silent.

The petitioner proved that Mr. Foster willfully violated the support order. Mr. Foster testified that he had spent

the money due the children for a new paint job for his motorcycle rather than pay support. He was found guilty on 18

counts, and sentenced to 180 days in jail.

The appellate court found that even though the petition was styled as one to find the defendant in civil contempt,

criminal contempt, or both, the actual proceeding was for criminal contempt. It rejected the argument that the defendant

was being tried for both at the time of the hearing. The appellate court found that the appropriate notice under Rule 42

was given.

23

in contacting the plaintiff on three separate occasions is sufficient to justify a conviction. But remember, that

the court’s obligation to convict is discretionary.

The court finds that the violations of the no contact provision were willful. As for the non-payment of child

support, the plaintiff cannot introduce any evidence that at the time the support was due, the defendant was

able to comply with the order and willfully failed to do so. Thus, the court, guided by the decision in

Huffnagel, acquits the defendant on those three charges, but imposes 10 day sentences and a fifty dollar fine on

each of the no contact convictions. The court decides not to impose consecutive sentencing. Following the

hearing, the civil matter is tried. The defendant testifies. He cannot assert a claim of privilege against self-

incrimination because he has already been acquitted of the criminal contempt charges relating to failure to pay

support.

It turns out that the defendant did not pay child support because he had the money but spent it to paint his

motorcycle. Though this would have been ample evidence to find the defendant guilty of criminal contempt,64

This case demonstrates what happens by allowing the petitioner to assert both criminal and civil contempt

allegations in a single pleading.

24

the court cannot reverse its decision finding the defendant not guilty, the prior finding is final. It would be

double jeopardy to set aside the prior finding, and find the defendant guilty.

As for the civil contempt, the defendant is currently unemployed, and is living with friends because he has

no funds, and the motorcycle was sold to pay for his living expenses. The proof further shows that the

defendant is not willfully unemployed. Accordingly, the court finds the defendant not guilty of civil contempt

because there is no proof at the time of hearing, that the defendant can comply with the order of support. This

is the crucial difference between civil and criminal contempt: a civil contempt proceeding examines the

circumstances at the time of the hearing with the burden on the defendant to show that non-compliance was not

willful, and he does not have the current present ability to comply, and cannot purge a finding of civil

contempt. Once the defendant proffers a justification for not being able to comply at the time of the hearing,

the burden then shifts back to the plaintiff to demonstrate that the defendant can comply at the time of the

hearing. Obviously, if the defendant’s testimony is incredible, then the defendant has not shifted the burden

back to the plaintiff.

Whereas, criminal contempt trials focus on the reason for non-compliance at the time of the alleged

violation of the order. The burden is on the petitioner to prove a willful violation and that the defendant had

the ability at that time to comply. Purge is not an option, the criminal act is complete at the time of the

violation. To make a finding of guilt in a civil contempt action, the court must find the defendant has the

present ability to comply with the court’s order and confines him until he complies, i.e. purges himself of

contempt.

As for the plaintiff spouse who violated the visitation order, the defendant is armed with sufficient evidence

to show that the plaintiff could have complied but chose not to do so, because she was mad about not being

paid the support. Exercising its discretion, the court just admonishes the plaintiff, and finds her not guilty of

criminal contempt.

25

As for appeals, the plaintiff can appeal the court’s refusal to find the defendant guilty of civil contempt, but

in this scenario, there is little basis for a reversal. Neither side can appeal findings of not guilty of criminal

contempt.

The issue of payment of attorney fees in a successful criminal contempt prosecution will be discussed infra.

V. PROCEDURAL ISSUES

A. Right to Trial By Jury

1. Criminal Contempt - ‘Petty Offenses’ versus ‘Serious

Offenses’

In deciding if a jury trial is warranted in the context of criminal contempt prosecutions, summary or otherwise,

the U.S. Supreme Court employs an analysis involving ‘petty’ versus ‘serious’ crimes. Compare, Bloom v.

Illinois, 391 U.S. 194 (1968) [sentence of 24 months for criminal contempt is a ‘serious’ offense entitling

defendant to jury trial which is not otherwise available for ‘petty’ offenses with a maximum punishment of six

months]; with Cheff v. Schnackenberg, 384 U.S. 373 (1966) [defendant not entitled to jury trial when

punishment imposed was six months for contempt and was therefore, a ‘petty’ offense to which the right to

trial by jury did not apply]; and Bagwell, fine of 52 million dollars required a jury trial, with Muniz, supra, no

right to jury trial involving a $10,000.00 fine.

However, Tennessee does not employ the ‘petty’ versus ‘serious’ offense analysis in providing for jury trials

in traditional criminal matters. In all criminal proceedings in Tennessee, if the punishment can include

imprisonment or a fine more than $50.00, then the defendant is entitled to a jury trial. State v. Dusina, 764

S.W.2d 766 (Tenn. 1989). But there is no right to trial by jury in criminal contempt proceedings. Ahern v.

Ahern, 15 S.W.3d 73 (Tenn. 2000).

Tennessee law on this point was affirmed in Dyke v. Taylor Implement Co., 391 U.S. 216 (1968). In Dyke, the

65

This case presents an excellent summary of the law of double jeopardy in criminal contempt proceedings,

including a survey of applicable federal and Tennessee law. But, see, State ex rel Creighton v. Creighton, 2011 Tenn.

App. 173 holding that a criminal contempt proceeding is not really a “criminal proceeding” providing all the substantive

protections normally afforded a criminal defendant such as a free transcript of the trial proceedings if indigent in

interpreting a Tennessee statute defining criminal proceedings for the purpose of affording free transcripts. Statute

applies to felony proceedings only, not those involving misdemeanors.

In the absence of a transcript, the trial court’s ruling is presumed to be valid on appeal. Coakley v. Daniels, 840 S.W.2d

367, 370 (Tenn. App. 1992).

26

court found that because the maximum punishment for criminal contempt consisted of a $50.00 fine and 10

days of imprisonment, this was a ‘petty’ offense not subject to jury trial.

In a summary contempt action under 18 U.S.C. § 401, it must be clearly shown that the conduct “actually

obstructed the district judge in the performance of judicial duty.” Besides showing wrongful intent, the proof

must be that the misbehavior was an actual and material obstruction. Ibid.

2. Civil Contempt

There is no right to trial by jury in civil contempt proceedings. Ahern v Ahern. However, if the matter

is criminal, and involves more than a ‘petty’ offense either as to the period of confinement or the size of the

fine that might be imposed, then a jury trial is required. Bagwell, In Re Dellinger; Codispoti v. Pennsylvania,

418 U.S. 506 (1974), but see, Taylor v. Hayes, 418 U.S. 488 (1974) [no right to jury trial where 4 ½ year

sentence for contempt was reduced to six months.]

In a case of civil contempt where the defendant ‘has the keys in his pocket,’ there is no right to a jury trial.

Shillitani v. U.S. 384 U.S. 364 (1966).

There is no right to a jury trial in Tennessee for matters involving criminal contempt as explained in Ahern,

supra.

B. Double Jeopardy

The protection against double jeopardy applies to criminal contempt proceedings. Ahern v. Ahern, supra. State

v. Smith, 2010 Tenn. Crim. App. Lexis 1061 (E.S. 2010)65

C. Trials in Absentia - The Disappearing Defendant

27

In criminal contempt proceedings, if the defendant fails to appear after being served, he cannot be tried in

absentia if he leaves before the trial begins. Denton v Phelps, 2005 Tenn. App. LEXIS 647; State v. Far, 51

S.W.3d 222 (Tenn. Crim. App. 2001) and Crosby v. United States, 506 U.S. 255 (1993) [ if the defendant

leaves before the trial starts, as opposed to leaving while the trial is in progress, he cannot be tried in absentia

because of F.R.Crim.P. Rule 42; trial can proceed if the defendant is voluntarily absent after the trial has

commenced.] T.R.Crim.P. Rule 42 is identical to the federal rule.

Rule 42 applies to criminal contempt not civil contempt.

D. Recusal - Mayberry v. Pennsylvania, 400 U.S. 455 (1971)

If the charge involves personal criticism of the judge, then another judge must hear the matter. Both the state

and federal rules codify the holding in Mayberry v. Pennsylvania, 400 U.S. 455 (1971). See, Herrera v

Herrera, 944 S.W.2d 379, 392 (Tenn. App. 1996); Daniels v. Grimac, supra

Mayberry involved finding a criminal defendant in contempt for 11 specific acts of misconduct during a 21-

day trial. After the trial, the court imposed a sentence of one to two years for each of the 11 incidents

resulting in an effective sentence of 11 - 22 years.

The Supreme Court held that even if immediate action had been taken to find the defendant in contempt, and

punishment imposed then and there, due process required that where the conduct consisted of a personal

attack on the judge, another judge should hear the contempt matter.

Thus, it is quite possible that even an immediate finding of contempt by a court for a single outburst consisting

of a personal attack on the court might be viewed as a violation of the Mayberry holding, as well as the

express language of T.R.Crim.P. Rule 42 (b) which forbids the court from hearing the matter.

E. Statute of Limitations As A Defense To Criminal Contempt

Criminal contempt appears to be a class C misdemeanor. Tenn. Code Ann. § 40-35-110 (c)(3) and § 40-35-111

(c)(3) [a class C misdemeanor is punishable by a fine not to exceed $50.00, confinement for not more than 30

66

There has been a suggestion that because the contempt statute does not classify the offense, it is automatically

a class A misdemeanor. Given that the penalty is within that proscribed by class C misdemeanors, the better argument

is that it is a class C misdemeanor. This affects the length of any probationary period, and when the suspension of a

sentence is concluded.

28

days, or both fine and confinement.] The statute of limitations for prosecuting a misdemeanor is 12 months66

from the date of the commission of the offense. Tenn. Code Ann. § 40-2-102(a).

The misdemeanor statute of limitations applies to bar criminal contempt proceedings instituted more than

one year after the commission of the alleged contemptuous act. Church of God v. Tomlinson Church of God,

247 S.W.2d 63 (Tenn. 1952).

The decision in Cottingham, supra, is not to the contrary even though the defendant raised an issue

regarding the prosecution of the contempt action after the lapse of the time during which he was to pay

alimony. In Cottingham, the defendant was ordered to pay alimony from August 26, 1996 through August

26, 2001. The defendant was cited for contempt on May 22, 2002 for failure to make the scheduled payments.

Cottingham, who proceeded pro se, did not specifically assert the statute of limitations as a defense.

He argued that because the 5-year period during which he was ordered to pay alimony had expired by the

time the contempt citation was filed, the court no longer had jurisdiction over the matter. Apparently,

Cottingham believed that a contempt action should have been instituted during the 5-year period he was

ordered to pay alimony. The Court summarily rejected the argument.

Rather curiously, even though the Court found the notice deficient, and the evidence insufficient to

establish guilt, the statute of limitations as a bar was never mentioned. One can hope that if Cottingham had

been represented by competent counsel, the statute would have been asserted as a complete bar to the

prosecution of any failures to pay arising on or before May 22, 2001.

F. LIMITATIONS OF ACTIONS IN CIVIL CONTEMPT PROCEEDINGS

It would appear that the 10 year statute of limitations for the enforcement of judgments generally might

apply in circumstances where a petitioner seeks to use civil contempt to enforce a judgment that is over 10

29

years old. See, Tenn. Code Ann. § 28-3-110(a)(2); Cohen v. Didier, 2014 Tenn. App. LEXIS 499.

G. Damages

The Overnite decision is the seminal opinion on the issues of damages and the right to appeal a lower

court’s refusal to award damages. Even if the misbehavior has ceased, the defendant can be tried for prior

acts of contempt. Damages, including attorney fees, can be imposed to the extent they are proven. Damages

can even be awarded under the recent amendment to Tennessee Code Annotated § 29-9-104.

H. Applicability of T.R.Civ.P. Rule 11

The provisions of Rule 11 apply with equal force to the filing of contempt petitions. Wilson v. Wilson, 984

S.W. 2d 898 (Tenn. 1998).

VI. Appeals

A. Proceedings in General Sessions

If the matter arises in the civil general sessions court, then the appeal lies in the circuit court. Tenn. Code

Ann. § 16- 10 -112. If it arises in the criminal general sessions court, then the appeal is to criminal court.

T.R.Crim.P. Rule 5.

B. Proceedings in Circuit Court

All appeals from final orders in circuit or chancery court go to the Court of Appeals. Tenn. Code Ann. §

16- 4-108. Whether found guilty or not, civil contempt orders are final orders appealable as a matter of right

by either side. An acquittal of criminal contempt is not appealable by the prosecution. Overnite

Transportation, supra.

When the contempt occurs during another proceeding, e.g. divorce action, one cannot wait until the end of

the underlying case to appeal. Overnite, supra, Bailey v. Crum, 183 S.W.3d 383, 387 (Tenn. App. 2005). The

time to appeal runs with the entry of the order. That is final and appealable under T.R.A.P. Rule 3 as of right.

Bailey v. Crum, supra.

30

C. Proceedings in Criminal Court

All appeals from final orders go to the Court of Criminal Appeals. Tenn. Code Ann. § 16- 5 -108 (a). A

finding of guilty is appealable as a matter of right under T.R.A.P. Rule 3.

D. Appeals In Orders of Protections

All appeals from orders involving orders of protection go to either circuit or chancery court pursuant to

Tenn. Code Ann. § 36-3- 601(2)(F). State v. Wood, 91 S.W.3d 769 (Tenn. App. 2001).

E. Juvenile Court

Appeals go to the Court of Appeals. State v. Reem, 2008 Tenn. App. Lexis 539, 2013 WL 4367457.

F. Plaintiff’s Right to Appeal

1. Civil Proceedings

The plaintiff can appeal from a finding of no contempt in civil contempt proceedings. Overnite, supra.

2. Criminal Proceedings

If acquitted, no appeal. Overnite, supra.

G. Expunction of Records

Robinson v. Fulliton, 140 S.W.3d 304 (Tenn. App. 2003) no pta holds that expunction is available where

criminal contempt matter is dismissed. Robinson is a perfect example of how not to prosecute contempt.

The court held that the petition citing the defendant-attorney for contempt consisted of both criminal and

civil allegations. Thus, all of the allegations charging criminal contempt could be redacted from the petition.

This finding was unusual because, in the trial court, the defendant argued that the petition was really one for

civil contempt. No review was sought in the Supreme Court but Robinson is controlling because it is reported.

VII. Miscellaneous Matters

67

Apparently, the court did not making a finding of contempt and enforced the MDA provision as a breach of

contract. There is no discussion on appeal regarding the propriety of using contempt to enforce a contractual obligation.

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A. Verification of Petition Not Required

Whatever the rule may have been prior to the adoption of the current rules of civil procedure, there is no

requirement that a petition for contempt be verified. Thomasson v. Thomasson, 1989 Tenn. Crim. App. LEXIS

916.

The court rejected the contention that the proceeding was flawed because the petition was not verified.

“Only the initial petition for divorce [has to be] be verified.” No authority was offered to the contrary.

B. Necessity of A Hearing

The court must conduct a hearing in all matters, affording the respondent an opportunity to offer proof, and

adhering to the procedures normally associated with trials. The court has no authority to engage in a summary

disposition of civil contempt matters. Mayers v. Mayers, 532 S.W.2d 54 (Tenn. App. 1975) [trial court erred in

convicting the husband of contempt without affording the defendant an opportunity to be heard and present

defenses.]

C. Contempt Cannot Be Used To Enforce Contractual Matters

This area causes great confusion because even though a provision of the MDA is breached, the breach may

not support contempt. Only those portions of the MDA over which the court has continuing jurisdiction to

modify lose their contractual nature when merged into the final decree. Penland v. Penland, 521 S.W.2d 222

(Tenn. 1975); Kesser v. Kesser, 201 S.W.3d 636 (Tenn. 2006); Bryan v. Leach, 85 S.W.3d 136 (Tenn. App.

2001) [father could be held in contempt for nonpayment of child support arising during child’s minority even

though agreement to provide support beyond age 18 was contractual in nature.] Vick v. Vick, 1999 Tenn. App.

Lexis 373 [mother brought contempt action to enforce agreement to pay for daughter’s college education; court

awarded judgment to mother for college expenses.]67

Items losing their contractual nature are provisions relating to child support and alimony in futuro,

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transitional alimony, or rehabilitative alimony all of which might be modified after the entry of the final decree.

Alimony in futuro is subject to modification by the court. Tenn. Code Ann. § 36-5-121(f)(2).

Rehabilitative alimony may be subject to modification, including extension, if modification is sought during

the initial term of the obligation. Tenn. Code Ann. § 36-5-121(e)(2). Transitional alimony may be modified.

Tenn. Code Ann. § 36-5-121 (g)(2). And, if the parties agree, even alimony in solido can be modified, but not

by the court. Tenn. Code Ann. § 36-5-121(h)(1).

Thus, if there is a failure to pay any form of support covered by the above provisions, then enforcement by

contempt is appropriate. The key is that these forms of support are, by statute, subject to the continuing

jurisdiction of the court and may be modified.

An obligation to pay alimony in solido, however, is a contractual matter because the agreement cannot be

modified by the court after the decree is entered. Johnson v. Johnson, 37 S.W.3d 892 (Tenn. 2001).

Therefore, a breach of a provision like this is typically enforced by suing for a breach of the agreement.

Otherwise, modification of a contractual matter might be viewed as impairment of a contract in violation of

Article I Section 20 of the Tennessee Constitution prohibiting enactment of retrospective laws, or laws

impairing contractual obligations.

Long v. Mattingly -Long, 221 S.W.3d 1 (Tenn. App. 2006) pta denied, however, holds that contempt can

be used to enforce a hold harmless and indemnity agreement. This decision represents a drastic departure from

Penland and its progeny holding that suing for breach is the only available remedy.

Whether Long can be argued as support for using contempt to enforce contractual obligations is doubtful. If

the hold harmless agreement is by agreement of the parties, it is subject to enforcement by a breach of contract

in accordance with Penland.

If the matter had been tried with the trial court including the hold harmless provision and indemnity

provision part of the final decree, then a violation of either could be enforced by a contempt proceeding as

discussed below.

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For additional methods of prosecuting non-support see Tenn. Code Ann. § 39-15-101:

(a) A person commits the crime of non-support who fails to provide support which that person is able to

provide and knows the person has a duty to provide to a minor child or to a child or spouse who, because

of physical or mental disability, is unable to be self-supporting.

. . . . . . . . . .

(d) A person commits the offense of flagrant non-support who:

(1) Leaves or remains without the state to avoid a legal duty of support; or

(2) Having been convicted one (1) or more times of non-support or flagrant non-support, is convicted of a

subsequent offense under this section.

(e) Non-support under subsection (a) is a Class A misdemeanor. Flagrant non-support under subsection

(d) is a Class E felony.

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D. Tenn. Code Ann. 36-5-104 - Criminal Proceedings For Failure To

Pay Child Support68

This statute is not a contempt statute. It is a criminal statute. Its purpose is to punish for non-compliance

with an order of support. Brown v. Latham, 914 S.W. 2d 887 (Tenn. 1996).

Because it is a criminal statute, the defendant is entitled to a jury trial and all of the protections afforded the

accused in a criminal proceeding. Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000); Brown, supra. Other issues

arise.

The defendant cannot be compelled to testify. The burden of proof is beyond a reasonable doubt. The

right to counsel is mandatory. Cottingham v. Cottingham, 193 S.W.3d 531 (Tenn. 2006). Arguably, because it

is a pure criminal statute, only the district attorney general is authorized to prosecute under it even though

private counsel can prosecute criminal contempt proceeding. Wilson v. Wilson, 984 S.W. 2d 898 (Tenn. 1998).

Note, Tenn. Code Ann. §36-5-104 (d) provides that the court can infer that the defendant had the ability to pay

as order pursuant to §39- 5 -101(a)(8) which provides:

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When a court having jurisdiction determines child support pursuant to the Tennessee child support

guidelines, based on either the actual income or the court's findings of an obligor's ability to earn income, the

final child support order shall create an inference in any subsequent proceeding that the obligor has the ability

to pay the ordered amount until such time as the obligor files an application with the court to modify the

ordered amount.

Given that the prosecution has the burden of proving every essential element of the offense beyond a

reasonable doubt, and the defendant is presumed innocent, it would appear that this “inference” is legally

dubious, and on shaky constitutional grounds. See, Sandstrom v. Montana, 442 U.S. 510 (U.S. 1979)

[prosecution has burden of proving every essential element of the offense and may not rely upon burden

shifting presumptions.] While cast as an “inference,” the inference here relieves the prosecution from proving

anything other than the court’s prior order. Therefore, in the absence of further proof that the defendant

willfully violated the prior order, and had the ability to comply at the time of the alleged violation, the statue

allows the defendant to be convicted without further ado. Such cannot stand in the face of due process.