Criminal Contempt and Violation of Order of Protection in Tennessee: Furlong v. Furlong

November 14, 2011 K.O. Herston 0 Comments

Facts: Husband and Wife separated. Wife obtained an order of protection against Husband after claiming she was “extremely afraid” of him. While the Order prohibited Husband from “coming about” Wife and gave her exclusive possession of the marital residence, it also directed Husband to come to the marital residence to repair Wife’s automobile and identified specific periods when each would have use of the “inside” and “outside” of the marital residence.

The Court of Appeals opined that the “trial court’s order is riddled with tedious directives.” Of particular significance was the provision that “[Husband] shall be allowed to enter the driveway of the marital home tomorrow September 24, 2010 between the hours of 12:00 p.m. and 7:00 p.m. in order to evaluate and repair [Wife’s] vehicle.”

Wife testified that while she was gone during the time Husband was supposed to be at the marital residence, she returned shortly after 7:00 p.m. At 7:10 p.m., arguably ten minutes past the time he was supposed to be there, she saw Husband drive down the road, pass the house, turn around in the cul-de-sac, and leave. She stated that Husband looked at her. She further stated that seeing him placed her in fear since she did not expect him to be there. She conceded on cross-examination that a car must slow down in order to turn around in the cul-de-sac at the end of that road. She stated that Husband did not say anything to her nor did he non-verbally communicate to her, but clearly saw her. Shortly thereafter, Husband sent Wife a text message asking if her vehicle had been fixed.

Husband testified he called Wife’s counsel and left messages requesting that they reschedule the car repair because he was sick. When he did not hear back from Wife’s counsel, he drove to the marital residence, saw Wife, and drove away.

Wife filed a motion asking that Husband be held in criminal contempt for not repairing the vehicle and for coming about her outside the allowed time frame. The trial court found Husband in criminal contempt, sentenced him to ten days in jail, and extended the order of protection for five years. Husband appealed.

On Appeal: The Court of Appeals reversed the trial court.

Husband argued the evidence failed to establish an intentional violation of the order of protection beyond a reasonable doubt.

When reviewing a judgment for criminal contempt, Tennessee courts conduct a four-element analysis. First, the order alleged to have been violated must be “lawful.” Second, the order alleged to have been violated must be clear, specific, and unambiguous. Third, the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order. Fourth, the person’s violation of the order must be “willful.”

The threshold issue in any contempt proceeding is whether the order alleged to have been violated is “lawful.”Naturally, the determination of whether a particular order is lawful is a question of law.

The second issue involves the clarity of the order alleged to have been violated. A person may not be held in contempt for violating an order unless the order expressly and precisely spells out the details of compliance in a way that will enable reasonable persons to know exactly what actions are required or forbidden. The order must, therefore, be clear, specific, and unambiguous.

Vague or ambiguous orders that are susceptible to more than one reasonable interpretation cannot support a finding of contempt. Orders need not be “full of superfluous terms and specifications adequate to counter any flight of fancy a contemner may imagine in order to declare it vague.” They must, however, leave no reasonable basis for doubt regarding their meaning.

Orders alleged to have been violated should be construed using an objective standard that takes into account both the language of the order and the circumstances surrounding the issuance of the order, including the audience to whom the order is addressed. Ambiguities in an order alleged to have been violated should be interpreted in favor of the person facing the contempt charge. Determining whether an order is sufficiently free from ambiguity to be enforced in a contempt proceeding is a legal inquiry that is subject to de novo review.

The third issue focuses on whether the party facing the contempt charge actually violated the order. The quantum of proof needed to find that a person has actually violated a court order is a preponderance of the evidence for civil contempt and beyond a reasonable doubt for criminal contempt.

The fourth issue focuses on the willfulness of the person alleged to have violated the order. The word “willfully” has been characterized as a word of many meanings whose construction depends on the context in which it appears. Most obviously, it differentiates between deliberate and unintended conduct. However, in criminal law, “willfully” connotes a culpable state of mind. In the criminal context, a willful act is one undertaken for a bad purpose.

In the context of a civil contempt proceeding under Tennessee Code Ann. § 29-2-102(3), acting willfully does not require the same standard of culpability that is required in the criminal context.

In this case, Husband argued the order of protection was ambiguous because of the many tedious provisions, some of which stated he could not “go about” Wife, some of which allowed him to “go about” her in the sense that he was allowed to be on the outside of the house while she was inside, and one of that “required” him to be present to repair an automobile at a time when Wife could have been present in the house. Husband also argued the order was ambiguous in that it did not specify he had to complete the repairs and exit the driveway by 7:00 p.m., just that he was “allowed to enter the driveway . . . between the hours of 12:00 p.m. and 7:00 p.m.” Read literally, as long as he “enter[ed]” during the specified time period, he could stay there as long as he was working on Wife’s vehicle.

The Court commented:

It is undisputed that Husband was, at all times, inside his automobile. It is undisputed that his automobile never stopped and never left the public road. It is undisputed that Husband did not speak to Wife or make any threatening gestures toward her. It is undisputed that Husband’s actions would have been entirely permissible under the order of protection if he had arrived ten minutes earlier. Husband’s testimony went uncontested that he felt compelled by the order to at least make an appearance to repair the car, but arrived late because he fell sick earlier in the day and tried unsuccessfully to reschedule through Wife’s counsel.

We hold that the order at issue was not sufficiently clear to sustain a conviction for its violation by the mere appearance on a city street ten minutes later than Husband undisputably could have been lawfully present in the driveway to repair an automobile. We must take into account not only the circumstances of the alleged violation, but also the circumstances surrounding the issuance of the order and the circumstances of the one to whom it is addressed. We must construe any ambiguities in favor of Husband. In the end, the order must not leave any reasonable objective doubt concerning its meaning. The order must “spell out the details of compliance in a way that will enable reasonable persons to know exactly what actions are required or forbidden.” At the very least, the order at issue in the present case fails in this last respect because at 7:10 p.m. Husband was reasonably unsure whether to go to Deane Hill Drive or stay away from Deane Hill Drive. . . . To put this in perspective, we believe it is unlikely that a reasonable person in Husband’s position would expect to be thrown in jail for simply driving on the street ten minutes after he had arguably been ordered to be in the driveway.

The Court further concluded Husband’s acts were not “willful,” holding that even if one construed all permissible inferences in favor of a conviction, the evidence falls short of showing Husband acted with a bad purpose. The Court added this parting shot:

We are accustomed to reviewing trial court judgments based on a preponderance of the evidence and we are convinced that the evidence in this case does not even reach that point, much less the standard of proof beyond a reasonable doubt. We hold that the record does not contain evidence to support a finding beyond a reasonable doubt that Husband willfully violated the order.


Furlong v. Furlong (Tennessee Court of Appeals, Eastern Section, October 14, 2011).

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

Criminal Contempt and Violation of Order of Protection in Tennessee: Furlong v. Furlong was last modified: October 13th, 2014 by K.O. Herston

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