Willfulness for Criminal Contempt Examined in Nashville, Tennessee Divorce: Mawn v. Tarquinio

April 20, 2020 K.O. Herston 0 Comments

Facts: Wife filed a complaint for divorce containing a copy of the statutory injunction. It was served on Husband’s counsel, who filed a notice of appearance.

Husband then changed counsel twice.

A year later, Wife moved that Husband be held in criminal contempt for willfully violating the statutory injunction by

  • deleting text messages and emails between him and his girlfriend, and
  • withdrawing funds from the children’s college savings accounts without her knowledge or consent.

Tennessee injunctionThe underlying facts were not disputed. Husband admitted doing what Wife accused him of. Instead, Husband claimed he was unaware of the statutory injunction, noted he was never personally served with process and denied authorizing his first lawyer to accept service on his behalf.

The trial court found Husband had notice of the statutory injunction and that it was valid, enforceable, and unambiguous. Husband was found guilty of six counts of criminal contempt and sentenced to serve 26 days in jail.

Husband appealed.

On Appeal: The Court of Appeals vacated the trial court’s judgment.

Under Tennessee Code Annotated § 36-4-106(d), an automatic injunction issues in all Tennessee divorces that, among other things, prohibits parties from

  • “transferring, assigning, borrowing against, concealing, or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property,” and
  • “hiding, destroying, or spoiling, in whole or in part, any evidence electronically stored or on computer hard drives or other memory storage devices.”

The statutory injunction goes into effect upon service of the complaint for divorce.

Husband argued his violation of the statutory injunction was not willful because he was not aware of the statutory injunction.

Tennessee courts may inflict punishments for contempt of court. For criminal contempt, these elements must be proven beyond a reasonable doubt:

  • there was a lawful order,
  • the order was clear and unambiguous,
  • the person violated the order, and
  • the person acted willfully in violating the order.

For civil contempt, proof of willfulness only requires that the person acted contrary to a known duty.

For criminal contempt, however, proof of willfulness requires that the person acted voluntarily and intentionally and with the specific intent to do something the law forbids. It requires proof beyond a reasonable doubt that the person intentionally violated a known duty.

The Court examined the law:

Many cases upholding criminal contempt convictions mentioned that the contemnor had knowledge of the order that was being violated. . . . The parties do not cite a single case where any criminal contempt conviction was sustained in the absence of proof that the contemnor had some knowledge of the allegedly violated order or writ.

Moreover, this Court has previously defined the term willful and other contexts as containing an element of knowledge; for example, in the context of termination of parental rights, the willful failure to support requires proof that the parent be aware of his or her duty to support. As such, we continue to believe that in order to successfully prosecute a claim for willful violation of a lawful order or writ, the prosecuting party must show that the contemnor acted both intentionally and with a bad purpose, i.e., that the contemnor acted with knowledge that his actions were unlawful. . . .

Still, the “bad purpose” standard does not foreclose the possibility of a well-intentioned or caring motive. Rather, the “bad purpose” requirement addresses the actor’s [] intent to act as the law forbids.

The Court then addressed Wife’s argument that knowledge of the statutory injunction was imputed to Husband through service of process on Husband’s attorneys:

Although Husband testified that he never expressly authorized [his first lawyer] to accept service on his behalf, there is no dispute that the complaint, summons, and statutory injunction were served on [his first lawyer], and Husband never lodged any objection to personal jurisdiction over him due to lack of service.

Still, we are not convinced that simply because the statutory injunction becomes effective upon waiver and acceptance of service that a defendant may be found in criminal contempt for failure to comply when there is no proof that the defendant had knowledge of the injunction’s prohibitions.

Finally, the Court then turned to whether constructive knowledge will sustain a criminal contempt violation:

A permissive inference allows—but does not require – the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. In contrast, a mandatory presumption tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least until the defendant has come forward with some evidence to rebut the presumed connection between the two facts.

* * * * *

What is identical in both a criminal contempt action and a criminal prosecution is the defendant’s presumption of innocence and the reasonable doubt standard of proof. Thus, one of the foundations for the United States Supreme Court’s prohibition on mandatory, conclusive presumptions in the criminal context is present in the criminal contempt prosecution in this State.

The trial court’s finding that Husband was aware of the provisions of the statutory injunction appeared to rest entirely on the imputation of notice from [his first attorney] to Husband. Nothing in the trial court’s order indicates that the trial court considered other evidence presented by Wife from which notice could be inferred, or Husband’s evidence that he was never actually provided any notice of the statutory injunction and that he believed that his actions were appropriate because he had taken similar actions during the marriage. As such, we are unable to determine whether the trial court applied a mandatory, conclusive presumption as to notice or merely a permissible inference. If the trial court applied a mandatory, conclusive presumption in finding that Husband had notice of the statutory injunction and therefore that his violation of the injunction was willful, the trial court’s decision would be in error. If, however, the trial court merely applied a permissive inference on this issue, the trial court’s finding that Husband willfully violated the statutory injunction can be sustained.

Considering “the novel nature of this case and the heavy interests involved,” the Court vacated the trial court’s judgment and remanded the case back to the trial court allow it to reweigh the evidence as to Husband’s willfulness and, in its discretion, consider new evidence on this issue.

K.O.’s Comment: So, how does one prove willfulness beyond a reasonable doubt? Same as always:

The willfulness of particular conduct depends upon the actor’s intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person’s actions or conduct. 

Mawn v. Tarquinio (Tennessee Court of Appeals, Middle Section, March 27, 2020).

Willfulness for Criminal Contempt Examined in Nashville, Tennessee Divorce: Mawn v. Tarquinio was last modified: April 18th, 2020 by K.O. Herston

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