Facts: Husband and Wife, the parents of two children, divorced after four years of marriage.

Attached to Wife’s complaint for divorce was a form order purporting to be a statutory restraining order in compliance with Tennessee Code Annotated § 36-4-106(d) but which did not accurately follow the statute’s language.

While the divorce was pending, the parties agreed that the children would spend the summer with Husband in Missouri.

After the summer, Wife said Husband communicated to her that he did not intend to return the older child to Tennessee and would instead enroll him in school in Missouri.

The trial court entered an ex parte order prohibiting Husband from enrolling the child in school in Missouri and requiring Husband to appear in court with the child the following week.

Husband appeared but did not bring the child.

The trial court found Husband in civil contempt for willfully violating the statutory restraining order set out in Tennessee Code Annotated § 36-4-106(d) and ordered that Husband be incarcerated until the child was returned to Wife, at which point Husband’s contempt would be purged.

Husband appealed.

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

Tennessee Code Annotated § 36-4-106(d)(5) contains an injunction generally “restraining both parties from relocating any children of the parties outside this state, or more than 50 miles from the marital home, without the permission of the other party or an order of the court.”

The form restraining order attached to Wife’s complaint prohibited the parents from relocating the children “without permission of the Court or by consent order.”

The Court found that, because of Wife’s drafting error, there was no order for Husband to violate:

Had the form order attached to Wife’s complaint accurately included [the] statutory language, it would have been proper for the trial court to find Husband in contempt of it. Indeed, the trial court found that the parties had an agreement for Husband to have the child with him for the summer until the beginning of school, but that Husband violated that agreement by willfully failing to return the child to Wife’s custody. The problem that exists here, however, is that the statutory restraining order language contained in Tennessee Code Annotated § 36-4-106(d)(5) was not included in the form order attached to Wife’s complaint. The language actually contained in the form order attached to Wife’s complaint provided for an injunction which restrained parents from relocating children “without permission of the Court or by consent order,” language which is in effect more restrictive than that required by the statute.

The failure to accurately include the statutory provision the trial court found Husband to be in contempt of is not without consequence. Indeed, because the provision included in § 36-4-106(d)(5) was not attached to the complaint, it was not in effect against Husband. The statute is clear on this issue, as it provides that the statutory injunctions become an order of the court upon “fulfillment of the requirements” of subsection (d) which includes the requirement that the “provisions of these injunctions shall be attached to the summons and the complaint.” Because the statutory provision relied upon by the trial court was not included in the form order attached to the complaint, it was not in effect as an order against Husband, and Husband could therefore not be held in contempt of it.

The Court reversed the trial court’s findings of civil contempt.

K.O.’s Comment: Besides the statutory injunction that Tennessee Code Annotated § 36-4-106(d) requires to accompany a complaint for divorce, there is another statutory injunction that many lawyers overlook.

Tennessee Code Annotated § 36-6-116 requires that a different statutory injunction be served with a petition in any non-divorce action “related to child custody,” including actions to modify a parenting plan, parentage/custody/visitation disputes between unmarried parents, etc. Check out the statute. If you don’t already include that language in your non-divorce petitions related to children, you need to start.

Sykes v. Sykes (Tennessee Court of Appeals, Middle Section, October 25, 2021).

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