Facts: Mother and Father divorced and agreed to Mother being the primary residential parent with Father having 115 days of parenting time.
After the divorce, Mother was allowed to relocate to Wisconsin. As a result of Mother’s relocation, a new parenting schedule was agreed to that, among other provisions, required Mother to transport the children to Tennessee to see Father at the beginning of the spring break holiday and the summer holiday each year.
Mother did not bring the children to visit with Father during his 2013 spring break and summer vacation parenting time. In February 2013, the child welfare agency in Wisconsin began investigating allegations of abuse and neglect against Father. One of the agencies social workers recommended that the children’s visitation with Father be suspended until the investigation was complete. Based on this letter and her fears of sending the children to be with Father, Mother did not bring the children to visit Father over the spring break holiday.
The investigation by the child welfare agency in Wisconsin resulted in no findings against Father. Still, one of the children told a counselor of his continued fear that Father would touch him inappropriately. Soon thereafter, Mother moved for restraining orders in Wisconsin, seeking to enjoin Father from having contact with the children.
The Wisconsin court granted Mother’s application for temporary restraining orders and set the matter for hearing. Pursuant to the restraining orders, Father was ordered to avoid contact with the children.
Two days later, Father filed a petition in Tennessee requesting that Mother be found guilty of two counts of criminal contempt for failing to bring the children to Tennessee for his parenting time during the spring break and summer holidays.
Mother testified that it had never been her intention to disobey the court order. Under the circumstances, she said she did what she thought was the best thing to do in order to protect the children. Because of the Wisconsin restraining orders (which were entered a few days after Father’s summer parenting time was ordered to begin), Mother testified she believed she was not allowed to take the children to visit Father in Tennessee.
The trial court found Mother guilty of two counts of criminal contempt for violating its order with respect to Father’s spring break and summer visitation. Mother was sentenced to seven days in jail but the sentence was suspended for all but two days.
On Appeal: The Court of Appeals reversed the trial court.
Criminal contempt is intended to preserve the power and vindicate the dignity and authority of the law. To establish a criminal contempt claim based on a party’s failure to comply with a court order, four elements must be established: (1) the order alleged to have been violated must be lawful; (2) the order alleged to have been violated must be clear, specific, and unambiguous; (3) the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order; and (4) the person’s violation of the order must be willful.
Although willfulness in the context of a civil contempt proceeding is identified by acts that are the product of free will rather than coercion, in the criminal context, a willful act is one undertaken for a bad purpose.
After reviewing the record, the Court of Appeals reasoned:
In this case, there is no dispute that Mother violated the order of the Davidson County Circuit Court. She did not bring the children to visit Father during their spring break, and she failed to transport the children to Nashville for Father’s summer visitation. The evidence adduced at trial, however, does not support the conclusion that Mother acted with a bad purpose.
With respect to the spring break period, it is important to emphasize that Mother had received a letter from [the Wisconsin child welfare agency] immediately prior to spring break recommending that Father’s visitation be suspended. During the contempt hearing, Mother testified that she did not send the children to visit Father because she thought she was doing the best thing she could do in light of the information she had received. She testified that she had feared for the safety of the children and stated that it had never been her intention to disobey any order.
Mother’s testimony indicates that she did not intend to flaunt the orders of the Davidson County court. Rather, it merely reflects that she had concerns about sending the children to be with Father in light of the recommendations made by the [Wisconsin child welfare agency]. Although in the future we would certainly direct Mother to secure relief from the courts before unilaterally deviating from the mandated parenting schedule, the evidence in this case is not indicative of a bad purpose….
With respect to the summer visitation period, . . . Father was subject to no-contact orders during the pendency of his summer visitation. Mother’s reliance on these orders is not indicative of a bad purpose.
Accordingly, the trial court’s order finding Mother in criminal contempt was reversed.
K.O.’s Comment: It is worth noting that even if the Tennessee court loses jurisdiction under the UCCJEA to modify custody, it can retain jurisdiction to enforce its order through contempt. For example, in Helig v. Heilig, the Western Section of the Court of Appeals held that even if the Tennessee court no longer had jurisdiction to modify a child custody order, it could still enforce the order in a contempt proceeding when no other court had assumed jurisdiction to enter a contrary order.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.