Double Jeopardy and Order Interpretation Challenged in Memphis, Tennessee Criminal Contempt Matter: Nolan v. Nolan

July 31, 2023 K.O. Herston 0 Comments

Facts: Mother and Father, both of whom are law school graduates (uh oh), are the divorced parents of one son.

About a year after the divorce, Mother filed a petition alleging 23 counts of criminal contempt for violating the standard non-disparagement provision of the parenting plan. To resolve this, the parties entered an agreed order that provides, among other things, that:

Father consents and agrees that he shall not criticize, demean, denigrate, curse, use foul language toward, or in any way disparage Mother, Mother’s family, Mother’s home, the minor child’s friends, the minor child’s school or teachers, the minor child’s clothing, or the minor child’s activities either to or in the presence of the minor child.

In exchange for this, Mother agreed to dismiss her petition without prejudice.

Almost two years later, Mother filed a second petition that incorporated all the 23 counts alleged in the first petition and asserted 44 additional counts of criminal contempt, much of which relate to Father’s alleged violation of the terms of the agreed order.

To give you a flavor of the proof, Mother presented in an audio recording of Father expressing his intent to violate the parenting plan: “I’m not going to abide by some stupid-ass agreement. Hold me in contempt. What are they going to do? Put me in jail for a day? Woooo, I’m f**king scared. Tell me to stop doing it? Okay, fine. Some f**king elected judge who’s been elected by a bunch of other idiots. Great. I’m really f**king scared.”

The trial court found Father guilty of 21 counts of criminal contempt and not guilty of 14 counts. He was sentenced to serve 83 days in jail, with 53 days suspended, for an effective sentence of 30 days on specific weekends to accommodate his work schedule. He was also ordered to pay $46,000 toward Mother’s attorney’s fees and expenses.

Father appealed.

On Appeal: The Court of Appeals affirmed in part and reversed in part.

The lengthy opinion goes through each count in detail. I will spare you that drudgery. Instead, this post will discuss two particular issues that I thought were worthy of discussion.

Double Jeopardy. Father argued that sanctioning him for the criminal contempt counts that were first asserted in the first petition violates the prohibition against double jeopardy.

For double jeopardy protections to apply, the person asserting the constitutional safeguard must have previously been in jeopardy for the same offense; thus, jeopardy necessarily must have previously attached. The well-established formulation for when jeopardy attaches is as follows: In jury proceedings, jeopardy attaches when the jury is sworn. In nonjury proceedings, jeopardy attaches when the first witness testifies.

This argument didn’t make it very far:

The agreed order in this case does not contain an adjudication of guilt for criminal contempt, nor does it provide for any sanction authorized for criminal contempt. The order does not contain the word “guilt” or “guilty”; it does not contain a statement that [Father] pleads guilty; it does not contain the court’s acceptance of any guilty plea or any holding that [Father] is found in contempt; it does not contain an adjudication of guilt; and it does not contain a sentence or manner of service for criminal contempt. Additionally, when there is no witness sworn and no fact trial in a contempt proceeding, jeopardy cannot attach until the contempt is declared. No contempt was declared in the present case in the agreed order or with regard to the first petition.

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The agreed order was not an adjudication of guilt on the counts of criminal contempt; rather, it was a contract, reduced to a court order, in which [Father] agreed to undertake certain obligations in exchange for [Mother’s] agreeing to dismiss the petition for contempt “without prejudice.” There was no guilty plea. These were no criminal sanctions for contempt; instead, they were contractual provisions which [Father] accepted both to perhaps avoid prosecution, subject only to a “without prejudice” dismissal, and as stated explicitly in the agreed order, to further the child’s best interests. Analogizing to conventional criminal proceedings, the closest corollary in the present case is pretrial diversion, a deferred prosecution agreement, with [Father] having failed to adhere to the terms of the deferred prosecution, resulting in reinstatement thereof. While [Father] asserts that via the agreed order he both pled guilty and had a criminal contempt sanction imposed upon him, we conclude that he neither pled guilty nor had a criminal contempt sanction imposed upon him. Accordingly, the prohibition against double jeopardy does not prohibit a subsequent proceeding to determine whether [Father] was in criminal contempt for the acts alleged in the initial petition. Therefore, imposition of sanction for counts appearing in the first petition does not violate the constitutional safeguard prohibiting double jeopardy.

Interpretation of the Court Order. Father also argued the trial court read some of the restrictions in its prior orders to resolve any ambiguity against, rather than in favor of, the person facing the contempt charge.

Vague or ambiguous orders susceptible to more than one reasonable interpretation cannot support a finding of contempt. Orders need not be full of superfluous terms and specifications adequate to counter any flight of fancy a contemnor may imagine to declare it vague. They must, however, leave no reasonable basis for doubt regarding their meaning.

Orders alleged to have been violated should be construed using an objective standard that considers both the language of the order and the circumstances surrounding the issuance of the order, including the audience to whom the order is addressed. Ambiguity in an order alleged to have been violated should be interpreted in favor of the person facing the contempt charge.

Mother alleged that Father took the child’s blanket and told him that “men don’t have blankets” and that he called the blanket “stinky.”

Father testified he was not trying to belittle the child but to wean him from the blanket.

The trial court found Father violated the prohibition on criticizing the child’s “activities.” The Court agreed with Father on this one:

“Activity” has many definitions, but we have located none which could encompass possessing a security blanket.

We conclude that, in this case, the plain meaning of the term “activity” does not encompass possession of a blanket.

Accordingly, the evidence did not satisfy the [requirement] that the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order. We conclude that, even if [Father’s] statements were denigrating of blanket possession, possessing a blanket is not in activity within the meaning of the agreed order. Because we conclude that the blanket is not an activity, we conclude no rational trier of fact could have found beyond a reasonable doubt that he violated the order.

Although the Court reversed Father’s conviction on the blanket account, the Court affirmed the trial court’s findings on most other counts. It also affirmed the award of attorney’s fees to Mother.

K.O.’s Comment: When Mother filed her second petition that reasserted same counts of criminal contempt she voluntarily dismissed without prejudice almost two years earlier, I would’ve expected those counts to be barred by the one-year statute of limitations in TCA § 40-2-102(a). The opinion makes no mention of that issue.

Source: Nolan v. Nolan (Tennessee Court of Appeals, Western Section, July 17, 2023).

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Double Jeopardy and Order Interpretation Challenged in Memphis, Tennessee Criminal Contempt Matter: Nolan v. Nolan was last modified: July 30th, 2023 by K.O. Herston

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