Facts: When Husband and Wife divorced, their marital dissolution agreement (“MDA”) provided for the funding and administration of a 529 account for their child’s benefit.

One and ½ years later, Wife petitioned to hold Husband in criminal contempt for violating the MDA regarding the 529 account.

After Wife testified and Husband said he did not intend to call any additional witnesses, the trial court suggested the parties step outside the courtroom and attempt to reach an agreement. After a recess, the parties returned and announced their settlement. Wife agreed to dismiss her criminal-contempt petition voluntarily, and they agreed to other provisions regarding the 529 account, details of which were not provided to the trial court. The parties confirmed the agreement announced by their attorneys.

After the hearing, the parties could not agree on an order memorializing their agreement. For example, Wife’s proposed order amended the MDA to apply the 529 account to the child’s college education, while Husband’s proposed order did not.

At a hearing on approving Husband’s proposed order, the trial court declined to approve the order and dismissed the pending charges of criminal contempt after finding that double jeopardy had attached to the pending charges.

Wife appealed.

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

Both the U.S. and Tennessee constitutions protect a person against double jeopardy, i.e., a second prosecution after an acquittal, a second prosecution after a conviction, and multiple punishments for the same offense.

In Tennessee, double jeopardy provisions apply to criminal contempt proceedings. In a case tried without a jury, jeopardy attaches when the first witness testifies.

Husband argued that once the parties announced their settlement agreement and court was adjourned, double jeopardy attached and prevented further criminal contempt proceedings because Wife testified.

The Court found double jeopardy inapplicable here:

Here, there has been no second effort to prosecute Husband for criminal contempt. We must recognize the differences between the contempt proceedings at issue and a non-contempt criminal prosecution. Husband and Wife were engaged in a postdivorce dispute, and Wife filed a petition for criminal contempt asserting that Husband had failed to comply with provisions of the MDA, which are part of the court’s final divorce decree. Husband was not being accused of conduct that would constitute a crime under Tennessee law. Wife’s attorney was “prosecuting” the criminal contempt petition. After the court had heard the testimony, the court encouraged the parties to reach a settlement, and the parties returned to announce that they had reached an agreement.

*     *     *     *     *

Here, the matter remains in the same court, and Husband seeks to have the same judge who heard the evidence make a ruling. There is no second prosecution or seeking the advantage of a different forum.

Husband in the present case appears to be asserting that any further proceedings in the criminal contempt matter would constitute a second prosecution. This argument hinges upon the effect of Wife’s statement to the court that she was “nonsuiting with prejudice” her criminal contempt petition. Husband seems to take the position that this statement was binding and that double jeopardy prevents further proceedings. The nonsuit with prejudice was announced as part of a settlement agreement between the parties.

Consent of the parties is not required at the time of the entry of judgment if the parties’ agreement existed at the time when the court approved the agreement. For an oral agreement to be enforceable under this rule, however, the parties’ prior oral agreement must’ve been made in open court or in a hearing wherein the fact and the terms of the agreement were determined, and the terms of the agreement must also be reflected in the record. In the present case, the parties did not announce the terms of the agreement in detail; in particular, the parties did not describe the terms of any agreement regarding the use of the 529 funds. Therefore, there was no binding consent agreement, and Wife’s counsel’s statement that the contempt petition was dismissed with prejudice is of no effect.

The Court concluded that double jeopardy did not apply and remanded the case to the trial court for a ruling on the remaining counts of Wife’s petition for criminal contempt.

Source: Sevigny v. Sevigny (Tennessee Court of Appeals, Middle Section, July 14, 2023).

If you found this helpful, please share it using the buttons below.