Criminal Contempt and Orders of Protection in Tennessee: Worley v. Whitaker

Facts: Mother sought an Order of Protection against Father. Mother alleged Father placed her in fear by, inter alia, grabbing her, choking her, threatening her, stalking her, leaving threatening phone messages, sending threatening text messages, etc. The trial court entered the requested Ex Parte Order of Protection. Mother subsequently alleged Father violated the Order of Protection when he forced his way into her apartment after smoking crack and threatened her. Shortly thereafter, Mother alleged Father had again broken into her apartment, and stole her clothing, underwear, shoes, camera, cd’s, and legal documents related to the case. She also claimed he had been to her workplace and had called her repeatedly. She further claimed three tires on her car were slashed, her fuel line was cut, a rock was thrown through the back window of her car, and her license plate was stolen. After a hearing, the trial court found Father in criminal contempt of court for 183 willful violations of the Order of Protection. Father was sentenced to serve 1830 days (over five years!) in jail, with no eligibility for “good time” credit or a work release program. Father appealed. The only issue Father raised on appeal that is of interest here is whether the trial court abused its discretion in sentencing Father to serve 1830 days in custody.

On Appeal: On the issue of sentencing, the Court of Appeals reversed the trial court.

While a trial court can impose a ten-day sentence for each count of contempt, the trial court’s sentence is supposed to be the “least severe measure necessary to achieve the purpose for which the sentence is imposed.”

In State v. Wood, 91 S.W.3d 769 (Tenn. Ct. App. 2002), the defendant was sentenced to incarceration of 360 days for multiple violations of an Order of Protection by contacting the petitioner, but there were no allegations of violence or threatening behavior whatsoever. The Court of Appeals sent the case back to the trial court for re-sentencing because there was no proof that the punishment was the “least severe measure necessary to achieve the purpose for which the sentence is imposed,” given the lack of allegations of violence/threats.

Conversely, in Sliger v. Sliger, 181 S.W.3d 684 (Tenn. Ct. App. 2005), the defendant was sentenced to incarceration of 520 days for repeatedly calling his ex-wife in violation of an Order of Protection, graphically threatening violence to her and her family. The sentence had been suspended “pending continued good behavior and obedience” to the Order of Protection. Instead, the defendant, less than eight months later, continued his pattern of disregarding the Order of Protection and made multiple threatening telephone calls to his ex-wife. In light of his continued and utter disregard for the Order of Protection, the Court of Appeals found the 520-day sentence necessary “to achieve the purpose for which the sentence [was] imposed.”

After considering the foregoing, the Court of Appeals concluded:

Here, [Father’s] behavior occurred over a period of months and included multiple acts of violence toward [Mother], repeated threats to [Mother], stalking, multiple acts of destruction of her property, and also not returning the child from a visit. This behavior was in flagrant violation of the Order of Protection, and his behavior demonstrated an utter disregard for the Court’s orders.

A Trial Judge’s sentence for contempt must be reasonable and within the sound discretion of the Trial Court. From our review of the record, we conclude the Trial Judge abused his discretion in passing sentence on defendant, and the sentence imposed was unreasonable to achieve the purpose for which the sentence was imposed. Accordingly, we conclude a reasonable sentence to achieve the purpose for which it was imposed would be 730 days. Accordingly, we modify the Trial Court’s Judgment to that extent.

Thus, Father’s sentence was reduced from five years to three years.

Worley v. Whitaker (Tennessee Court of Appeals, Eastern Section, March 31, 2011).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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