This recent article by Marlene Moses in the Tennessee Bar Journal may be of interest to readers of this blog.
Can Criminal Contempt Create Compliance?
How can a party or attorney in a family law case effectively use criminal contempt as a means of getting a positive result from the other party? When a person is determined to be in willful violation of an order of the court, that person may be held in either criminal or civil contempt. A contempt action in a family law matter is most often seen in the context of a failure to pay court-ordered child support, but a contempt petition may be sought for any willful violation of a court order regardless of the content of the order. This article will focus on the necessity and use of criminal contempt to achieve the goals of a family law practitioner.
“Criminal contempts … are intended to preserve the power and vindicate the dignity and authority of the law, and the court as an organ of society.” Tenn. Code Ann. § 16-1-103 specifically provides “For the effectual exercise of its powers, every court is vested with the power to punish for contempt, as provided for in this code.” Tenn. Code Ann. § 29-9-101. et. seq. describes in greater detail the types of behavior that will warrant the use of the court’s contempt power as well as the possible punishments that a court may inflict once it has made a finding of contempt and they are what one might expect. The court may utilize its contempt power specifically for “willful disobedience … to any lawful writ, process, order, rule, decree or command of such courts.” Contempt power grants the court the power to punish “by fine or by imprisonment, or both.”
Tennessee Rule of Criminal Procedure 42 specifically provides for the process required for the implementation of a criminal contempt as a means of obtaining compliance from a party who is subject to a court’s lawful order. Unless the contempt takes place in the presence of the court, a direct contempt, in which case, the court may deal summarily with the issue without formal process, the party being accused of contempt is entitled to notice of the hearing date and time, the opportunity to be heard, the opportunity to prepare a defense and specific notice of the allegations that constitute the charge of contempt. Furthermore, since the petitioning party is seeking to enforce the court’s orders through use of a petition for criminal contempt, the respondent must be notified of his/her Constitutional rights in addition to being served with the petition that describes the alleged infractions in detail. This notice should be provided by the petitioner along with the petition itself.
Additionally, Tenn. Code Ann. § 39-15-101 goes beyond mere contempt as a remedy for the specific issue of non-payment of court ordered support. The code provides that a person may be charged with an A misdemeanor for non-support or an E felony for flagrant non-support as a criminal offense. Non-support is defined as when a person “fails to provide support which that person is able to provide and knows the person has a duty to provide to a minor child or to a child or spouse who, because of physical or mental disability, is unable to be self-supporting.” Further, “a person commits the offense of flagrant nonsupport who: leaves or remains without the state to avoid a legal duty of support; or having been convicted one (1) or more times of nonsupport or flagrant nonsupport, is convicted of a subsequent offense under this section.” A private party may not seek such relief from the court in a family law context, but the possibility of criminal charges looms for those who willfully choose not to pay court ordered support.
Of course, since a criminal contempt is, by its very nature, criminal and the full Constitutional protections provided to a defendant in a criminal case are implicated by charging criminal contempt, practitioners should consider carefully their decision to seek criminal contempt. Often, the discovery process may be halted or eschewed since defendants need not answer any questions that might implicate themselves in a crime even if the possible punishment for a contempt of court is relatively minor. Though the potential punishment may be greater, the use of criminal contempt might actually slow down the resolution of the issues that gave rise to the contempt rather than hasten the road to a satisfactory resolution. On the other hand, a monetary fine or possible incarceration can, and often is, a strong motivation for a party to comply fully with a court’s order. However, attorneys or persons seeking contempt should keep in mind that “a court can also imprison and/or fine an individual simply as punishment for the contempt,” with no eye toward actually resolving the issue, but rather punishing an offending party as a means of guaranteeing future compliance. Along the same lines, a person might choose to proceed with an action for non-payment of child support pursuant to Tenn. Code Ann. § 36-5-104, which provides that “Any person, ordered to provide support and maintenance for a minor child or children, who fails to comply with the order or decree, may, in the discretion of the court, be punished by imprisonment in the county workhouse or county jail for a period not to exceed six (6) months.”1 However, the Tennessee Supreme Court has determined that the language of this statute actually describes a criminal offense and is not, in fact, a contempt statute. If a party proceeds under Tenn. Code Ann. § 36-5-104, the defendant is entitled to all Constitutional protections, including a jury trial should he or she so desire, a process that would not expedite a resolution to the issue of non-compliance. Unlike civil contempt, where persons may be incarcerated only until they purge their contempt, the punitive nature of criminal contempt merely punishes prior disobedience and, even if a party is successful, the results that are most desired may not be achieved.
An important point to note within the language of the statute is that the “disobedience” must be “willful,” as indeed, each different variation of contempt must be. Though the statute Tenn. Code Ann. § 29-9-101, et. seq., does not distinguish in its description of contempt between civil and criminal contempt, it certainly stands to reason that if a petitioner is alleging a criminal contempt of court, that the element of intent in the offense must also be proven. Consequently, the act must be of a willful nature in order for the court to exercise its contempt powers and not merely a situation that is beyond the control of the contemnor.
A party who is seeking relief from a court for contempt must be both cognizant and wary of this hurdle. It is often more difficult to prove than expected that a person was “willful” in his or her failure to comply with a court order, particularly when the non-compliance relates to the non-payment of money for child support, alimony, or some other court-ordered payment that was not made by the infringing party. The burden is on the petitioner to prove, for example, that the inability to pay was due to a willful choice on the part of the respondent not to pay, not simply that they could not obtain employment, or a rate of pay sufficient to allow for the required payments to the petitioner as ordered by the court.
In a different family law context, a court may order any number of provisions regarding the care of the parties’ minor children and failure to comply may be addressed by a contempt petition. However, when attempting to characterize many issues regarding non-compliance with the court’s instructions as “willful disobedience” of the court’s order, as they pertain to the minor children, success may not be as simple as it may appear at first glance.
Generally speaking, a private attorney seeking criminal contempt on behalf of a litigant is not entitled to an award of attorney’s fees. The logic behind this is two-fold. First, the punishment that a court may assign for an incident of contempt is specifically laid out by statute and attorney’s fees are not one of the powers granted to the court by statute. Secondly, the punishment of a contempt action is primarily to reinforce the power of the court for acts committed contrary to the court’s instructions or rules. Consequently, any benefit to a private party is only tangential and a party should not be awarded attorney’s fees for vindicating the court’s power. Conversely, an attorney filing a civil contempt for a client is seeking to enforce a client’s contractual or statutory rights and, therefore, is entitled to an award of attorney’s fees. As that is the case, this should be another factor to weigh when choosing whether a criminal contempt is the appropriate remedy.
Needless to say, the choice to file a petition by a party seeking contempt ought to be carefully considered before it is filed. The purpose of seeking relief through a contempt petition is that other options have previously been exhausted, or in rare situations, the actions are so flagrantly contemptuous of the court’s authority that they must be addressed by the judge. An attorney and his or her client need to examine what their goal is by filing a criminal contempt and assess if its few benefits are outweighed by its many detractors before making the decision to proceed.
1. In some jurisdictions, a party may proceed with contempt proceedings by a motion to the court rather than a petition. Throughout this piece, the discussion will refer to a petition for contempt, but the term should be viewed as interchangeable with motion if your jurisdiction permits proceeding by motion.
2. Black v. Blount, 938 S.W. 2d 394 at 397 (Tenn. 1996).
3. Tenn. Code Ann. § 16-1-103
4. Tenn. Code Ann. § 29-9-102, 103, 104, & 105
5. Tenn. Code Ann. § 29-9-102(3).
6. Tenn. Code Ann. § 29-9-103(a).
7. Tenn. Rule of Criminal Procedure 42(b)(1).
8. Tenn. Code Ann. § 39-15-101(a).
9. Tenn. Code Ann. § 39-15-101(d).
10. Ahern v. Ahern, 15 S.W. 3d 73 at 79 (Tenn. 2000).
11. Tenn. Code Ann. § 36-5-104(a).
12. Brown v. Latham, 914 S.W. 2d 887 at 888 (Tenn. 1996).
13. Butler v. Butler, 1995 Tenn. App. Lexis 749.
14. Understanding Contempt, Ronald D. Krelstein, www.tals.org/node/616/equal-justice-university-training-material.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.