Paramour Clause and Criminal Contempt Reversed in Williamson Co., TN Divorce: Dick v. Dick

Facts: Husband and Wife divorced after approximately 10 years of marriage. They have one child.

During the divorce, they entered an agreed order providing that neither party would “drink alcohol during their parenting time” with the child or “within 12 hours prior to their parenting time” with the child.

At the trial, Wife requested the inclusion of a paramour clause in the parenting plan. The trial court included this provision, specifically ordering that “neither party shall have any overnight guests of the opposite sex to whom they are not blood related or married while the minor child is present.”

Based on Husband’s deposition testimony in which he admitted to drinking during his parenting time on four separate occasions, the trial court found Husband guilty of four counts of criminal contempt for drinking alcohol during his parenting time.

Husband appealed.

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

Paramour Clause. In the case of Barker v. Chandler, the Court of Appeals reviewed the question of whether trial courts in Tennessee are required to include a paramour provision in a parenting plan. The Court held “that the trial court was not required to include the paramour provision in the permanent parenting plan.” The second time Barker v. Chandler came before the Court, it held that the trial court abused its discretion by including a paramour clause in the parenting plan because there was no evidence to support the finding that the provision was in the best interests of the children or that the presence of Mother’s partner had any harmful effects on the children.

After reviewing the record, the Court reasoned:

In reviewing the record here there is very little testimony regarding the need for a paramour provision in the parenting plan. Wife was asked by her attorney whether she wanted the clause included in the parenting plan “for protection purposes of the child,” and she answered in the affirmative. There was no further testimony regarding the need to include a paramour clause in the parenting plan. In reviewing the statutory factors used to determine custody, the trial court’s ruling stated that it had “no reason to question the character or behavior of any person who frequents each parent’s home.” As there are no findings by the trial court that this provision was either necessary, or in the best interest of the child, we reverse this portion of the trial court’s ruling.

Criminal Contempt. Pursuant to the agreed order, Husband was prohibited from consuming alcohol both before and during his parenting time. He testified under oath to doing that very thing. Relying on this sworn admission, the trial court found Husband guilty of criminal contempt.

It is a fundamental concept in Tennessee criminal law that the elements of a crime may not be established by a confession or an admission of the accused standing alone. As such, the confessions of a party without corroborating evidence will not support a conviction. The party’s confession must be corroborated by evidence which, independently of the confession, tends to establish that the crime occurred.

The amount of corroboration required depends on the circumstances. When a defendant challenges the admission of his extrajudicial confession on lack-of-corroboration grounds, the trial court should begin by asking whether the charged offense is one that involves a tangible injury. If the answer is yes, then the prosecuting party must provide substantial independent evidence tending to show that the defendant’s statement is trustworthy, plus independent prima facie evidence that the injury actually occurred. If the answer is no, then the prosecuting party must provide substantial independent evidence tending to show that the defendant’s statement is trustworthy, and the evidence must link the defendant to the crime.

After reviewing the evidentiary record, the Court commented:

The only evidence before the trial court regarding the criminal contempt of Husband was his deposition testimony in which he admitted to drinking during his parenting time while on vacation with his family on four separate occasions. Wife did not introduce into evidence any corroborating witnesses (even though they were known to her), receipts, lab results, or any other evidence whatsoever from which the trial court could find Husband guilty of criminal contempt beyond a reasonable doubt. Therefore, we reverse this portion of the trial court’s order.

Accordingly, the trial court’s rulings on the paramour clause issue and criminal contempt were reversed.

Dick v. Dick (Tennessee Court of Appeals, Middle Section, July 14, 2015).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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