Posted by: koherston | July 15, 2010

McLean v. McLean

Facts: Father shot and killed Mother’s 18 year-old paramour (Mother was the paramour’s high school teacher). Father was arrested and Mother fled with Children. Father filed for divorce. Mother could not be located so she was served with process by publication. In Mother’s absence, Father was granted a divorce and awarded temporary custody of Children. Mother was finally located in Texas, whereupon Children were removed from her custody and, after a hearing, placed in the temporary custody of the paternal grandparents. Mother and Father were both prohibited from contacting Children until further order of the trial court. Within weeks, Mother was accused of violating the court order by contacting the children via text message and denying Father his co-parenting time granted by the trial court’s earlier order. After a hearing, Mother was found guilty of 17 counts of criminal contempt and ordered to serve 95 days of incarceration. Mother appealed.

The Court of Appeals reversed the trial court, holding that it failed to give Mother adequate notice of the threat of incarceration for criminal contempt. Rule 42 of the Tennessee Rules of Criminal Procedure provides in relevant part:

(1)(b)(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 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.

After reviewing the record, the Court of Appeals had “serious doubts” about whether the trial court provided Mother with her constitutional right to notice of the potential for incarceration. Mother’s punishment for contempt was vacated.

McLean v. McLean (Tenn. Ct. App. May 28, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.


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