Facts: Mother and Father, the parents of one child, divorced after one year of marriage. Parenting-related litigation continued after the divorce.

The trial court became concerned about the child being subjected to unnecessary, nonemergency medical examinations.

In January 2021, the trial court entered an order directing the parties to document their concerns about child abuse and, if necessary, notify the Department of Children’s Services (“DCS”) instead of Father’s practice of taking the child to the hospital every two weeks to be seen and inspected, which the trial court found to be inappropriate.

In February 2021, the trial court entered another order placing Mother in charge of scheduling and taking the child to all medical appointments absent a medical emergency. While Father was prohibited from attending the child’s medical appointments, he could contact the doctor to ask for information but was ordered not to “harass or make excessive requests” of the doctor. Should a medical emergency occur while the child is in Father’s care, Father was ordered to immediately take the child to the emergency room and notify Mother via text message.

Mother petitioned for Father to be found guilty of criminal contempt. She alleged that Father took the child to the hospital in April 2021 to be examined for a rash that was not a medical emergency and for not notifying Mother by text message.

The trial court found this visit to look at a rash violated its orders because it was not a medical emergency (count 1), and Father did not notify Mother by text message (count 2).

Mother also alleged that Father took the child to the hospital in October 2021 to have the child inspected for possible abuse because of bruises on the child’s legs and butt (count 3) and for not notifying Mother by text message (count 4). Father explained:

I am at a loss as to where to turn. I have not made a referral to DCS but physicians have. I have been unimpressed by [DCS’s] timeliness and thoroughness. Further, I am under an order that Mother is the only party able to make regular doctor appointments with the child, leaving me to decide to either (a) violate a court order to go to a physician to protect our child or (b) follow the court order but seek no medical opinion about the bruising. I am out of options, and I continue to find more bruising every other weekend when I pick up our [child] from daycare.

The trial court found Father guilty of four counts of criminal contempt and sentenced him to 34 days in jail, 14 of which must be served and 20 of which were stayed contingent upon Father’s strict compliance with court orders in the future. Mother was also awarded $4500 for a part of her attorney’s fees.

Father appealed.

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

A person charged with criminal contempt is presumed innocent and must be found to have willfully violated a court order beyond a reasonable doubt.

The party moving for contempt must show:

• the order allegedly violated was lawful;
• the order was clear and unambiguous;
• the person charged violated the order; and
• the person acted willfully in violating the order.

The Court found that all the elements of criminal contempt were proved beyond a reasonable doubt:

Although the trial court’s order does not define what constitutes a “medical emergency,” we note that it would be difficult to limit the term to one definition as a “medical emergency” could arise from any number of illnesses or injuries. Whether a condition is a “medical emergency” is best left to the medical experts as documented in their records, and the trial court was correct to rely primarily on the child’s medical records in reaching its decision that the child’s rash was not a medical emergency…. The only medication prescribed was Bactroban ointment, which treats impetigo and skin rashes. Furthermore, there was no “drainage” in the affected area, which we read to mean no infection. Importantly, Father informed the treating physician that the child “had multiple rashes in the past,” which, in itself, indicates that the presentation was for a recurrent problem and not an emergent situation. Under even the most liberal definition of “medical emergency,” the child’s rash, although “uncomfortable,” was not one. In his brief, Father admits as much, stating, “[T]his visit was medically needed, although not necessarily an emergency.” As such, Mother was the parent charged with making an appointment for the child to see a doctor, and Father overstepped the trial court’s orders in taking the child to [the hospital].

*     *     *     *     *

Father admits that the child’s rash did not constitute a medical emergency; nonetheless, he proceeded to take the child to [the hospital] without first consulting with Mother (who was charged with making all of the child’s non-emergent medical appointments). So, while Father may have not undertaken the visit with bad purpose, he certainly exhibited a careless disregard as to whether or not he had the right so to act. Accordingly, we conclude that the facts in the record, and the reasonable inferences that may be drawn therefrom, are sufficient as a matter of law for a rational trier of fact to find Father guilty of violating the trial court’s order as set out in Mother’s petition.

*     *     *     *     *

In its January [2021] order, the trial court held, “If there are concerns about child abuse, it is to be reported to DCS and not to [the hospital] each time….” Father’s statements provide sufficient evidence to find him guilty of violating the trial court’s January 2021 order. Specifically, he acknowledges that he understands the trial court’s mandates. He further acknowledges that if he takes his concerns of abuse to the child’s physician, he will be in violation of the trial court’s order to take such concerns to DCS. Yet, Father bypassed DCS and took the child to [the hospital]. This was an intentional violation of a known duty and constitutes Father’s willful violation of the trial court’s order. Father’s subjective statement that he has “been unimpressed by the Department’s timeliness and thoroughness” constitutes his subjective opinion and is insufficient to relieve Father of his obligation to follow the trial court orders.

*     *     *     *     *

Indeed, there is no evidence that Father attempted to contact Mother when he chose to take the child to [the hospital].

The Court affirmed the trial court’s ruling in its entirety.

K.O.’s Comment: Curiously, Mother did not ask for her attorney’s fees on appeal. Had she done so, I believe she likely would’ve recovered them.

Source: Bolton v. Bolton (Tennessee Court of Appeals, Middle Section, June 8, 2023).

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