Posted by: K.O. Herston | April 2, 2010

A Primer on Contempt in Tennessee

Contempt is the willful failure to obey a court order when one has the ability to do so.  There are two types of contempt that can occur in any case: civil contempt and criminal contempt.  Many attorneys (and some judges) fail to differentiate between the two, which can lead to problems.  This is exactly what happened in the recent case of Cansler v. Cansler, which reminded me that this is as good a time as any to review the law on contempt.

Civil contempt occurs when the court wants to compel or coerce someone into complying with an order.  Punishment is typically conditional and can be avoided by compliance.  For example, one who refuses to pay court-ordered child support may be imprisoned until the payment is made or, more commonly, given a finite period of time in which to make the payment before imprisonment is imposed.  Thus, the civil contemptor is often said to possess the “keys to the jailhouse door” because compliance will set him free.  Fines can also be issued to coerce the contemptor or compensate the injured party.  The burden of proof is a preponderance of the evidence.  Significantly, the court can direct the civil contemptor to pay the injured party’s attorney’s fees and litigation expenses.

Criminal contempt occurs when the court wants to punish someone for violating an order.  The punishment is limited to imprisonment of up to 10 days and a fine of $50 per violation.  Thus, if a party is prohibited from contacting the other party yet telephone records reveal over 200 calls were placed, that is over 200 violations and would expose the criminal contemptor to over 5-1/2 years’ imprisonment and a fine of up to $100,000!  (This actually happened in one of my cases.)  The punishment is unconditional and must be served regardless of future compliance with the order.  The court can suspend the sentence, however.  Because it is form of punishment that involves the loss of liberty, certain protections afforded to criminal defendants apply, such as the more difficult standard of proof beyond a reasonable doubt, double jeopardy, special notice provisions, etc.  There is no statutory basis to make the criminal contemptor pay the injured party’s attorney’s fees.

For most issues that arise in family law matters, I prefer civil contempt.  First, the ability to make the other party reimburse my client for her attorney’s fees is a big plus.  Second, the burden of proof is easier to satisfy.  Third, punishing the other party with prolonged incarceration rarely accomplishes anything worthwhile.  Sometimes the strong message that comes with incarceration needs to be sent but, in my experience, the act of paying the ex’s attorney’s fees (and the promise of more fees the next time the contemptor violates the court’s order) works wonders in most situations.

Cansler v. Cansler (Tenn. Ct. App. Feb. 1, 2010).


Responses

  1. There’s at least one situation in Tennessee in which the punishment for contempt is imprisonment of up to a YEAR. (37-1-152)

    Seems to me that something carrying a sentence of up to a year ought to be tried in front of a jury, but no, because it’s in juvenile court, the judge gets to decide. Not sure how that DOESN’T violate the 6th Amendment.

    • Thanks for the info. I wonder if that statute has been challenged. I can’t imagine it would stand up to constitutional scrutiny. Then again, a child sex offender willfully violating a no contact order might not make for the most sympathetic plaintiff. What’s the defense? “The heart wants what the heart wants?” :-D

  2. Our parenting plan is out of TN. Both parties, and the children, live in KY. I got an EPO, DVO, and registered the Custody Order in KY. Fifteen days AFTER receiving notice of the Registration the father fiiled contempt charge concerning visitation in TN where our child support case was pending. KY released jurisdiction to TN until the hearing on contempt. The Judge said he did not care what was going on in KY, father is pushing the Court to punish me for what happened on “it’s watch”. My question is this: do you know of a case where the parent was charged with contempt while seeking a safe plan of visitation?

    • Jen, that’s the ultimate loaded question. Cases turn on their facts. You need to pose that question to your lawyer as he/she has knowledge of ALL the relevant facts. I do not.

  3. [...] For more on the characteristics and differences between civil contempt and criminal contempt in Tennessee, see my earlier blog post, titled “A Primer on Contempt in Tennessee.” [...]

  4. [...] Contempt for Violating Paramour Clause in Parenting Plan. Although Mother never specified whether she claimed Father was in civil or criminal contempt, the Court determined it was civil. The purpose of civil contempt is to enforce private rights while criminal contempt is intended to “preserve the power and vindicate the dignity and authority of the law” as well as to preserve the court “as an organ of society.”(For more on the differences between civil and criminal contempt, see my prior post: “A Primer on Contempt in Tennessee.”) [...]

  5. I have a question, I got a divorce from my husband and I was awarded the house in the final decree. He had 60 days to remove his name from the deed and he has yet to do so and it’s past the 60 days. What should I do? What kind of punishment will he receive?

    • Clearly he has violated a court order,therefore is in contempt of court. (civil not criminal) I would ask your divorce lawyer to notify the court.If he does not do as the court order states,before he goes before a judge.He could be incarcerated until he complies with the order.

  6. I recently received custody of a child and the mother has refused to give the child any of his personal thins. So the judge order that the mother turnover his personal belongings within 2 weeks or he would hold her in contempt of court. He gave her a list of these things. However, the mother has yet to give them to me. She will not even return any of my messages. Would this be considered civil or criminal contempt?


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

Follow

Get every new post delivered to your Inbox.

Join 635 other followers

%d bloggers like this: