Criminal Contempt for Facebook Post Reversed in Memphis, Tennessee: Boren v. Wade

May 1, 2023 K.O. Herston 0 Comments

Facts: Mother and Father are the divorced parents of Child.

Some postdivorce litigation led to the entry of an order in October 2020 prohibiting Father from communicating with or about Child’s school. Specifically, Father was ordered to “cease and desist communicating with SBA [i.e., Child’s school] or the Catholic Diocese regarding any matter concerning the minor child, including sending emails and making posts on social media.”

After the entry of the October 2020 order, Father posted this on his Facebook profile:

Superintendent Sondra Morris weaponized attorneys against me when I reached out to her about child abuse I witnessed at her school. #OurCatholicCoverupCulture Best Quote from this article: “The more parents that ask more questions, the harder it will be for schools to retaliate against a lot of parents.” AMEN

The post also has a link to the article referenced in the post.

Mother filed a petition for criminal contempt against Father, alleging 14 acts of contempt based on posts he made on his Facebook page.

The trial court found Father guilty of one count of criminal contempt for violating its October 2020 order about communication with Child’s school and sentenced him to serve 10 days in jail.

Father appealed.

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

Tennessee courts have the power to punish those who willfully disobey court orders by refusing to do something they are ordered to do or by doing something they are ordered not to do.

The party alleging contempt must show

  • the order allegedly violated was lawful,
  • the order was clear and unambiguous,
  • the accused violated the order, and
  • the accused acted willfully in violating the order.

The requirement that the order be clear and unambiguous requires the order to spell out the details of compliance expressly and precisely to enable reasonable persons to know exactly what actions are required or forbidden. Orders alleged to have been violated should be construed using an objective standard that considers both the language of the order and the circumstances of issuing the order, including the audience to whom the order is addressed.

The Court found that Father did not violate the trial court’s October 2020 order:

Under the plain language of the October 2020 order, for Father to be held in criminal contempt of the order, any posts to social media, emails, or correspondence must be made to the school or the dioceses and must be about, regarding, in relation to, on the subject of, pertaining to, or concerning [Child]. Had the trial court meant to prohibit Father from communicating with or about the child’s school and the Catholic Diocese, it could have simply omitted the language, “concerning the minor child.” Although the phrase, “concerning the minor child,” does not create an ambiguity, it adds another criterion to the prohibited behavior. Therefore, with the inclusion of this language, the question remains whether Father violated the order.

From our reading, Father’s post is not concern [the minor child]. As found by the trial court, Father’s post “talks about Sondra Morris.” Although the post may have violated certain portions of the prohibiting language in the trial court’s October 2020 order, i.e., it was a “post[] to social media,” and it reasonably could be construed as Father’s attempt to “communicat[e] with SBA or the Catholic Diocese,” it does not involve “any matter concerning the minor child.” In reviewing the trial court’s decision, we must give effect to the entire section of the order that forms the basis for the finding of contempt. Here that task includes giving effect to the clause, “concerning the minor child.” As such, we conclude that the trial court erred in finding Father in contempt of the foregoing portion of its October 2020 order.

The Court reversed the trial court’s ruling. The Court denied Father’s request for attorney’s fees on appeal because, while Father’s social media post did not rise to the level of criminal contempt, it did “evidence a lack of good faith on his part in following the trial court’s order.”

Source: Boren v. Wade (Tennessee Court of Appeals, Western Section, April 19, 2023).

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Criminal Contempt for Facebook Post Reversed in Memphis, Tennessee: Boren v. Wade was last modified: April 22nd, 2023 by K.O. Herston

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