Facts: After eight years of marriage, the parents of three children divorced.

During a mid-morning break in the divorce trial, a court officer told the trial court that the officer heard a waiting witness say to Husband, “How is she going to prove that?”

The trial court found that Husband willfully disobeyed the instruction not to discuss the case with any witnesses waiting to testify outside the courtroom, found Husband guilty of one count of criminal contempt, and charged a fine of $50.

Husband appealed.

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

To establish criminal contempt, these elements must be proved beyond a reasonable doubt:

• the order was lawful;
• the order was clear, specific, and unambiguous;
• the person violated the order; and
• the violation was willful, meaning it was undertaken for a bad purpose.

Here, the Court found the trial court erred by enforcing an order it had not imposed:

The trial court found Husband guilty of violating the sequestration rule, Tennessee Rule of Evidence 615, often referred to in shorthand as simply “the Rule,” which provides that “[a]t the request of a party the court shall order witnesses [to be] excluded at trial or other adjudicatory hearing. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness.” Husband and the potential witness denied discussing any testimony outside of court. Husband also argues that the alleged violation took place during the mid-morning break, and that “it wasn’t until the lunch break that the Chancellor told the parties that they were not supposed to discuss the testimony or exhibits presented in court with witnesses.” At oral argument, counsel for Wife conceded that the criminal contempt finding was improperly made by the trial court. Consequently, we reverse the trial court’s holding of Husband in criminal contempt.

K.O.’s Comment: The same trial judge found one of my clients guilty of criminal contempt and sentenced the client to serve 10 days in jail starting that day. Officers were brought into the courtroom, they handcuffed my client, and my handcuffed client sat next to me at counsel table for the rest of the hearing. When I requested a stay of execution and an appeal bond so the ruling could be challenged on appeal—which the law requires in all cases—the trial judge denied my request. After the hearing, my client was sent to the county jail. I filed an emergency petition with the Court of Appeals that afternoon, and the Court of Appeals ordered my client’s immediate release the following day. Still, the client spent a night in jail in violation of Tennessee law.

All lawyers and judges must understand that criminal contempt is a misdemeanor. Per Tennessee Code Annotated § 40-26-104 and Tennessee Rule of Criminal Procedure 32(d)(1), reasonable bail (or being released on your own recognizance) is required in all misdemeanor cases pending the exhaustion of all direct appeals.

Burnett v. Burnett (Tennessee Court of Appeals, Eastern Section, December 7, 2022).

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