Consecutive Sentence Likely Excessive in Postdivorce Criminal Contempt Case in Murfreesboro, TN: Burris v. Burris

knoxville divorceFacts: Father and Mother, the parents of three children, were divorced in 2008. Father was named the primary residential parent, and Mother was ordered to pay child support. Mother was also ordered to pay one-half of of the children’s uncovered medical expenses.

Over the course of this postdivorce litigation, Father filed three petitions for criminal contempt alleging that Mother failed to pay child support, failed to pay her portion of the children’s uncovered medical expenses, and failed to allow Father’s parenting time.

The trial court ultimately found Mother guilty of multiple counts of criminal contempt for failing to pay her portion of the children’s uncovered medical bills, one count of criminal contempt relating to visitation on a school holiday, and multiple counts of criminal contempt for failing to pay child support. The trial court sentenced mother to the maximum of 10 days incarceration for each violation. Because mother had already served a portion of her sentence, her effective sentence totaled 403 days of incarceration.

Mother appealed. The trial court stayed the remainder of Mother’s sentence pending appeal.

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

The power of courts to punish a party for contempt comes from Tennessee Code Annotated § 29-9-102. The power to punish for contempt of court extends to a party’s disobedience of a lawful order of the court.

Contempt may be either criminal or civil. Criminal contempt is used to preserve the power and vindicate the dignity and authority of the law. Generally, sanctions for criminal contempt are designed to punish the contemnor and are unconditional in nature.

For each count of criminal contempt, Tennessee courts are generally limited to imposing a fine of $50 and to imprisoning an individual for not more than 10 days.

Tennessee courts have approved the practice of imposing the maximum 10-day sentence for a single instance of criminal contempt. Where the contemnor is convicted of more than one count, however, the sentencing court must 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 considered. Tennessee courts must consider the sentencing considerations set forth in Tennessee Code Annotated § 40-35-103 for guidance.

There is a presumption in favor of concurrent sentencing as opposed to consecutive sentencing. Tennessee Code Annotated § 40-37-115(a)(7) permits a Tennessee court to order consecutive sentencing when someone is sentenced for criminal contempt. This factor, standing alone, that does not justify the imposition of the absolute maximum sentence.

Although 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. The decision to impose concurrent four consecutive sentences is a matter entrusted to the sound discretion of the sentencing court.

Upon review of the record, the Court concluded the trial court erred by failing to consider whether it’s consecutive sentence was excessive:

For an order sentencing Mother to more than one year in jail in multiple 10-day increments, however, the trial court’s order is surprisingly sparse. First, we note that nothing in the trial court’s order indicates that it considered whether Mother’s sentence should be served consecutively or concurrently . . . . Further, the trial court completely omits any discussion of the factors contained in §§ 40-35-103 and 40-35-115(a). Moreover, the trial court’s order does not contain any factual findings underlying its contempt finding from which this Court could make an independent review of those factors. As noted by Mother, the trial court’s order fails to even indicate the statutory provision it is relying upon in finding Mother in contempt and imposing the sentence of incarceration.
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Under the circumstances, we conclude that the trial court’s failure to make specific findings of fact and conclusions of law in its order, together with its apparent failure to even consider the excessiveness of the sentence imposed, creates an injustice or error of law sufficient to justify reconsideration. . . .

The trial court’s ruling was vacated and the matter remanded with instructions to consider whether Mother’s sentence was excessive under the circumstances.

K.O.’s comment: The Court sent a not-so-subtle message to the trial court when it said, “While we decline to to definitely state that Mother’s sentence was excessive, we encourage the trial court to fully consider the implications of its decision to incarcerate Mother for more than one year in reaching its ultimate decision. Such implications may include the best interest of the children and Mother’s ability to pay any future child support or arrearages.”

Burris v. Burris (Tennessee Court of Appeals, Middle Section, September 20, 2016).

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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