Posted by: K.O. Herston | July 8, 2013

Failure to Engage in Joint Decision Making Leads to Criminal Contempt in Knoxville Post-Divorce Dispute: Miller v. Miller

Facts: Mother and Father divorced in 2010. Their parenting plan provided that major decisions regarding religious upbringing would be made jointly by Mother and Father, and that if the parties disagreed about the parenting plan “disputes must be submitted to: Mediation by a neutral party chosen by the parents or the Court.” The parenting plan also provided that both parents are entitled to:

The right to be given at least forty-eight (48) hours notice, whenever possible, of all extra-curricular activities, and the opportunity to participate or observe them. These include the following: school activities, athletic activities, church activities and other activities where parental participation or observation would be appropriate; ….

In December of 2011, Father filed a petition for contempt alleging that Mother had violated the Parenting Plan by excluding Father from joint decision making with regard to one of their children’s religious upbringing. Specifically, Father alleged that “Mother directed the parties’ minor child [] to participate in a religious studies program in anticipation of baptism,” and had notified Father via a text message on Saturday, December 17, 2011 that the parties’ son (“the Child”), who then was twelve years old, was going to be baptized the next day on the morning of Sunday, December 18, 2011.

Father had a telephone conversation with Child on December 17 after Father received Mother’s text. Father testified that he asked Child to wait and Child stated: “I have to be baptised [sic] tomorrow.” Father testified that the Child was “panicking, crying, upset” during this telephone conversation. Father testified:

So, for my — the peace of my son’s mind, I had to — I had no choice at that point but to say, “Do what you have to do, [Child]. I will try to rearrange my schedule to be there”. I felt at that point as if I had no option because my son was so disturbed and needed — He just needed to be put at ease about it. I couldn’t do anything else at that point.

After speaking with Child, Father sent Mother a text stating that although Father was disturbed about being excluded from the decision that he and Child had decided that Child would be baptized as scheduled, and that Father would attempt to rearrange his schedule in order to attend. Father did attend the baptism.

After a hearing, he trial court found that Mother “ignored and failed to follow the dictates of the Permanent Parenting Plan to consult with the Father concerning the children’s religious upbringing, and is therefore in contempt of this Court.” Mother was sentenced to serve 10 days incarceration for, in the trial court’s words, “this single contumacious action.” Later, the trial court approved the parties’ agreement that Mother’s sentence be suspended based upon her continued strict compliance with the parenting plan.

Mother appealed.

On Appeal: In a 2-1 decision, the Court of Appeals affirmed the trial court.

In a criminal contempt case, the guilt of the accused must be established beyond a reasonable doubt. However, on appeal, individuals convicted of criminal contempt lose their presumption of innocence and must overcome the presumption of guilt. Appellate courts do not review the evidence in a light favorable to the accused and will reverse criminal contempt convictions only when the evidence is insufficient to support the trier-of-fact’s finding of contempt beyond a reasonable doubt. Furthermore, appellate courts review a trial court’s decision of whether to impose contempt sanctions using the more relaxed abuse of discretion standard of review.

After reviewing the record, a 2-1 majority of the Court concluded:

The evidence in the record on appeal shows that Mother did not notify Father about the baptism until less than twenty-four hours prior to this pre-scheduled event. The record also reveals that well before she texted Father, Mother was aware of the fact that the Child had taken steps toward being baptized including meeting with the youth minister at Mother’s church, filling out paperwork, and making a profession of faith. Despite all this, Mother did not even notify Father of any of this information until the day prior to the scheduled event. In addition, Mother herself admitted that she and Father have not had any conversations with regard to their children’s religious upbringing….

Mother made absolutely no effort to include Father in the decision making process regarding whether or not the Child would be baptized….

By the time Father sent the text message to Mother conceding that the baptism could occur as scheduled, Mother already had violated the Parenting Plan by failing to engage in joint decision making with regard to the decision to allow the Child to be baptized. The fact that Father made this assertion mere hours before the scheduled baptism does not change the fact that Mother completely failed to engage in joint decision making with regard to this religious decision concerning the Child. Had Mother properly notified Father ahead of time that the Child wanted to be baptized and was taking steps toward that end and allowed Father time to speak with the Child before the baptism decision was made and the baptism already scheduled, then mediation could have been scheduled if the parties had disagreed. Notifying Father less than twenty-four hours prior to the already decided upon and scheduled event was not only in violation of the Parenting Bill of Rights contained in the Parenting Plan, but also a violation of the joint decision making required by the Parenting Plan….

The fact that Father attended the baptism in no way shows that Father agreed with the decision that was made without him to have the Child baptized. Rather, it shows that Father apparently put the well-being of the Child before his own feelings about the disagreement between Father and Mother and attended the baptism for the Child’s sake.

Judge Susano filed a dissenting opinion, writing:

There is no question, as the majority points out, that the Plan “provided that major decisions regarding religious upbringing would be made jointly by Mother and Father.” Notice that there is no requirement that the parties meet face-to-face or even talk directly to each other. What is required is a joint decision, nothing more and nothing less. So, when did Father first become aware that the Child wanted to be baptized? The majority opinion tells us that this occurred about a week and a day before the date on which the Child was to be baptized. Eight days! He had plenty of time to express his displeasure, cancel the Baptism, or insist that he was not on board with the decision. As far as I can tell, the only thing he did was attend the Baptism. He slept on his rights. I do not believe he should be permitted to put Mother in jail. Sounds like waiver to me….

If I had been the Child’s mother, I would have concluded, as she obviously did, that after two conversations with the Child, Father had no objection. He then participates in the Baptism. He ensnared Mother in a trap. Gotcha!!

Under the circumstances of this case, I would hold “no harm, no foul.” In my judgment, the totality of the facts do not show that Mother was guilty of the alleged conduct beyond a reasonable doubt.

K.O.’s Comment: Careful readers of this blog know that when Judge Susano has dissented in the past, I have always agreed with his legal analysis. There is a first time for everything, however, and the time has come for us to disagree. When he says Mother’s conduct has been “blown way out of proportion” and this case falls into the category of “no harm, no foul,” I agree. But a visceral reaction does not amount to much in the way of legal analysis. Applying the applicable law, as we must, there is no question that Mother made the conscious decision to ignore the requirements of the operative court order. It may be a mountain. It may be a molehill. It may have caused no harm. It is still contempt.

Miller v. Miller (Tennessee Court of Appeals, Eastern Section, May 30, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.


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