Facts: Husband and Wife entered into a marital dissolution agreement (MDA) that was adopted by the trial court in their divorce. The MDA provided, in part, that both parties were prohibited from taking withdrawals against the home equity line of credit and required Husband to pay property taxes on the marital residence. Wife filed a petition alleging that Husband was guilty of 14 counts of criminal contempt for repeatedly withdrawing funds against the home equity line of credit, failing to pay real estate taxes, and other violations of the MDA. After a hearing in which Husband asserted his Fifth Amendment right against self-incrimination (!), the trial court found Husband guilty of 14 counts of criminal contempt and sentenced him to serve 140 days of incarceration in the county jail. Husband appealed.

On Appeal: The Court of Appeals modified the trial court’s sentence for criminal contempt.

Although Husband appealed virtually every possible issue, including several that presented little chance of success, the only issue of of importance concerns his 140-day sentence for criminal contempt. Husband argued the imposition of 14 ten-day sentences, each running consecutive to the others for an effective sentence of 140 days in jail, is excessive.

The willful disobedience of a lawful court order is punishable as criminal contempt. The maximum sentence for each act of criminal contempt is 10 days of confinement in jail and the maximum fine is $50. The person accused of criminal contempt is presumed to be innocent and the prosecution bears the burden of proving guilt beyond a reasonable doubt. If the defendant is accused of failing to make payments required by court order, the prosecution must prove beyond a reasonable doubt that the person charged with contempt had the ability to pay at the time it was due.

Once a court determines that multiple convictions for contempt are appropriate, the court must then determine whether the sentences should run consecutively or concurrently to one another. Not every contemptuous act, or combination of contemptuous acts, justifies the imposition of a maximum sentence, particularly when consecutive sentencing is involved. Therefore, if the appellate court determine that a sentence is excessive, it is incumbent upon the reviewing court to reduce or otherwise modify an excessive sentence for contempt.

Under Tennessee law, a court may impose consecutive sentences if it finds by a preponderance of the evidence that certain criteria enumerated in Tennessee Code Annotated § 40-35-115(b) are present, to wit:

(1) The defendant is a professional criminal who has knowingly devoted the defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior to sentencing that the defendant’s criminal conduct has been characterized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant’s undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on probation; or

(7) The defendant is sentenced for criminal contempt.

Although these statutory criteria may support the imposition of consecutive sentences, the overall length of the sentence must be “justly deserved in relation to the seriousness of the offenses” and “no greater than that deserved” under the circumstances. Further, there is a presumption in favor of concurrent sentencing over consecutive sentencing.

The sentencing court must also look to the sentencing considerations set forth in Tennessee Code Annotated § 40-35-103, wherein the General Assembly states:

(1) Sentences involving confinement should be based on the following considerations:

(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant;

(2) The sentence imposed should be no greater than that deserved for the offense committed;

(3) Inequalities in sentences that are unrelated to a purpose of this chapter should be avoided;

(4) The sentence imposed should be the least severe measure necessary to achieve the purposes for which the sentence is imposed;

(5) The potential or lack of potential for the rehabilitation or treatment of the defendant should be considered in determining the sentence alternative or length of a term to be imposed. The length of a term of probation may reflect the length of a treatment or rehabilitation program in which participation is a condition of the sentence; and

(6) Trial judges are encouraged to use alternatives to incarceration that include requirements of reparation, victim compensation, community service or all of these.

After reviewing the record, the Court found the only factor in Tennessee Code Annotated § 40-35-115(b) that applied to Husband was that he was sentenced for criminal contempt. The Court held that “[w]hile this may justify consecutive sentencing, at least in part, this factor alone does not justify the imposition of the absolute maximum sentence of 140 days.” The Court further commented that “the record suggests the trial court did not consider the statutory criteria when determining whether Husband’s multiple sentences should be served concurrently or consecutively.”

In light of the foregoing, the Court modified Husband’s sentence to 49 days of incarceration. Wife was also awarded her attorney’s fees in the trial court and on appeal.

Simpkins v. Simpkins (Tennessee Court of Appeals, Middle Section, February 27, 2012).

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