Facts: Mother obtained an order of protection against Father prohibiting him from, inter alia, contacting or attempting to contact Mother “by phone, email, messages, text messages, mail, or any other type of communication or contact.”

Two months before the one-year order of protection expired, Mother filed six show-cause motions over several weeks seeking to punish Father for criminal contempt for multiple violations of the order of protection.

The trial court found Father continued to contact Mother even though she kept filing show-cause motions seeking to jail him (!!!) for violating the order of protection.

After a hearing, the trial court found 51 violations of the order of protection. It sentenced Father to serve 10 days in jail for each violation, i.e., 510 days (almost 17 months), with a 1/4-day credit for good behavior and the option to petition the court for release after serving one year. The trial court also extended the order of protection for five years.

Father appealed. He argued the 510-day sentence was excessive.

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

To prove criminal contempt in Tennessee, the complaining party must prove beyond a reasonable doubt that:

• 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.

When reviewing sentences for criminal contempt, courts must consider:

• the extent of the willful and deliberate defiance of the court’s order;
• the seriousness of the consequences of the contumacious behavior;
• the necessity of effectively terminating the person’s contumacious behavior; and
• the importance of deterring such acts in the future.

When reviewing a sentence for multiple counts of criminal contempt, Tennessee courts also consider whether the sentence is the “least severe measure necessary to achieve the purpose for which the sentence is imposed.”

Father focused on one appellate opinion that analyzed these factors in light of the person in that case’s “violent or threatening behavior. Father argued that the trial court erred because his text messages did not show “violent or threatening behavior.” He argued his most offensive message was, “Good morning fucking bitch.” (He wished her a good morning, after all.) Although the message was offensive and crass, Father argued it was not an act or threat of violence. Other messages conveyed the threats of suicide and self-harm to Father that were not directed at Mother. Other messages threatened legal action. Other messages professed love. The opinion adds, “Memes of a sexual nature were included, such as a naked Homer Simpson and Marge Simpson….”

The Court found no error in the trial court’s analysis:

In our view, the “violent or threatening behavior” language in the [appellate opinion referencing the factors considered when reviewing sentences for criminal contempt] was merely dicta and described how the court determined the appropriate sentence in that particular case. We find that [that court] did not create an additional requirement of proof that the offending party engaged in “violent or threatening behavior” as part of his contemptuous acts in determining the least severe measure of punishment to achieve the sentence imposed.

[Father] has shown no respect for the rule of law in this case. In light of [Father’s] continued disregard for the order of protection, we find the sentence necessary to achieve the purpose for which the sentence was imposed.

Finding no abuse of discretion in the sentence, the Court affirmed the trial court’s judgment.

K.O.’s Comment: (1) Curiously, the opinion mentions none of the statutes that apply to sentencing people guilty of criminal contempt. Family-law attorneys must know and use:

• Tennessee Code Annotated § 40-35-103 lists various things courts must consider when determining an appropriate sentence;
• Tennessee Code Annotated § 40-35-113 lists mitigating factors courts must consider when sentencing someone for criminal contempt;
• Tennessee Code Annotated § 40-35-114 lists the enhancement factors courts must consider when sentencing someone for criminal contempt; and
• Tennessee Code Annotated § 40-35-115(a) lists the criteria courts must consider for deciding whether sentences for multiple offenses (like in the case above) should be served consecutively or concurrently.

(2) For examples of cases where Tennessee’s appellate courts determined the trial court’s sentence for criminal contempt was excessive, see Simpkins and Worley.

(3) This is the first time “Homer Simpson” or “Marge Simpson” has appeared in an appellate opinion in Tennessee. That’s the type of the cutting-edge legal research you’ll only find on this blawg.

Saleh v. Pratt (Tennessee Court of Appeals, Eastern Section, May 15, 2022).

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