Facts: After a seven-year marriage, the parties divorced. They entered into an agreed parenting plan that was accepted by the trial court. The parenting plan provided that “major decisions” regarding “religious upbringing” should be made jointly. However, “[i]n the event of a dispute” concerning such decisions, the parties agreed to submit the dispute “to a mutually agreed upon parenting mediator.” During the marriage, the parties disagreed as to the age at which their children should be baptized; Mother believed baptism should occur at an early age, but Husband did not. After divorce, Mother moved to a different church and had the parties’ children baptized in that church without Father’s knowledge or consent. Father petitioned to have Mother held in civil and criminal contempt. After a hearing, the trial court dismissed Father’s action for criminal contempt, found Mother in civil contempt, and ordered Mother to pay $10,000 toward Father’s attorney’s fees. Both parties appealed.
On Appeal: The Court of Appeals reversed the trial court.
Tennessee Code Annotated § 29-9-102(3) authorizes a court to exercise its contempt powers for, among other things, the “willful disobedience” of a court order. Contempt may be either criminal or civil in nature.
Criminal contempt is designed to “preserve the power and vindicate the dignity and authority of the law” and to “preserve the court as an organ of society.” Generally, sanctions for criminal contempt are designed to punish the contemnor and are unconditional in nature. Criminal contempt is a punitive proceeding intended to impose a fixed punishment for past actions.
Civil contempt is designed to compel the contemnor to comply with the court’s order. Thus, civil contempt is available only when the individual has the ability to comply with the order at the time of the contempt hearing. Unlike criminal contempt, the civil contemnor can purge the contempt by complying with the court’s order. Imprisonment may be ordered when civil contempt is found, but the one in contempt has the “keys to the jail” and can purge the contempt by complying with the court’s order.
Mother argued the trial court’s civil contempt finding was erroneous because her act of having the children baptized was a single occurrence which could not be cured. Mother also argued the provision in the parenting plan was ambiguous because the provision “gave no direction or insight as to what each parent was required to consult with the other parent about, as it related to religion.” The Court ruled:
We find Mother’s argument related to ambiguity disingenuous, at best. In her deposition, Mother acknowledged that the parties “have always had a disagreement on the baptism issue” and she conceded that baptism is a “major religious decision[.]” Under the circumstances of this case, we find the Parenting Plan provision outlining the procedure for making “major decisions” regarding “religious upbringing” was sufficiently clear, specific and unambiguous to alert Mother that her unilateral action was proscribed.
However, we must agree with Mother’s assertion that a civil contempt finding was inappropriate in this case because the trial court sought to punish Mother for her past violation of the Parenting Plan, rather than to compel her compliance with such. Because civil contempt is “available only when the individual has the ability to comply with the order at the time of the contempt hearing[,]” the trial court’s civil contempt finding was error, and must be reversed. Consequently, the award of attorney fees to Father stemming from the civil contempt finding is likewise reversed.
The Court then turned to the propriety of the trial court’s dismissal of Father’s criminal contempt petition. While the trial court never provided a specific reason for this particular ruling, it suggested Father’s petition “lacked sufficient notice of the specific Parenting Plan provision allegedly violated.” Father argued this was error.
After quoting liberally from Father’s petition, the Court found:
Clearly, Father’s petition . . . alerted Mother that she was charged with criminal contempt for which Father sought punishment, including possible incarceration. The petition, in great detail, set out the essential facts of the charge, specifically claiming that Mother’s actions in having the children baptized without Father’s knowledge or consent violated the provision of the Parenting Plan requiring that major religious decisions be made jointly or referred to a mediator. The fiat identified the time and place of the contempt hearing and both the petition and fiat were served upon Mother’s counsel more than two months prior to the hearing. We find no support for the trial court’s apparent conclusion, and Mother’s argument on appeal, that the fiat, itself, was required to state the specific provision of the Parenting Plan allegedly violated giving rise to the criminal contempt charge. Ample notice was given in this case to comply with the requirements of Tennessee Rule of Criminal Procedure 42(b). Accordingly, we find that the trial court erred in dismissing Father’s petition for criminal contempt for lack of notice.
The case was remanded to the trial court for a criminal contempt hearing.
K.O.’s Comment: The Jarrell opinion was relied upon in a recent Knox County hearing in which a parent was incarcerated for criminal contempt in a similar situation. These cases should serve as a stark reminder that joint decision-making authority for major decisions — included those involving religious upbringing — means exactly that. Unilateral acts can be, should be, and are punished with criminal contempt.
Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.