Facts: Wife, a lawyer and former prosecutor, and Husband, a police officer, were parties in a divorce. The statutory injunction automatically prohibited both from “harassing, threatening, assaulting, or abusing the other and from making disparaging remarks about the other to either party’s employer.”

Wife posted on Facebook that she suffered violence from a police officer and criticized the police department for not protecting her and enforcing the law. Wife also sent a long email to the mayor about the incident. The mayor has authority over the Police Department.

Husband moved for a restraining order directing Wife to remove the post and not to make future comments, orally or on social media, that might jeopardize his employment.

Wife was ordered to remove the Facebook post and not make allegations on social media or communicating with Husband’s employer. When Wife refused, she was found in civil contempt of court and taken into custody. After four hours in custody, she agreed to remove the post.

Months later, Wife re-posted on Facebook the language that the trial court had ordered removed, adding, “If I go to jail, someone please put money on my book.”

Six weeks later, the local newspaper published an article detailing Wife’s allegations after an extensive interview with Wife.

Shortly after that, Husband petitioned for civil and criminal contempt. The trial court noted that the only count of criminal contempt involved the article published in the local newspaper.

After an evidentiary hearing, Wife was found guilty of criminal contempt for participating in the interviews for the newspaper article and re-posting the Facebook post she was previously ordered to remove. Wife was ordered to perform 160 hours of community service and pay Husband’s attorney’s fees.

Wife appealed.

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

Criminal contempt requires proof beyond reasonable doubt of these elements:

• the order was lawful;
• the order was clear, specific, and unambiguous;
• the person disobeyed the order; and
• the person’s violation of the order was willful.

 Parties facing criminal contempt charges must be given explicit notice that they are charged with criminal contempt and must also be informed of the essential facts constituting the criminal contempt charge.

Essential facts are those which:

• let the accused understand that they are being charged with the crime instead of being sued by an individual;
• enable the accused to understand that the goal of the charge is punishment and not merely to secure compliance with an order; and
• allow the accused to determine the nature of the accusation.

The Court found Wife did not receive the required notice that she was being charged with criminal contempt for re-posting the Facebook message:

In this case, Husband’s petition clearly alleged Wife’s “post[s] on social media in violation of the court’s orders” as constituting civil contempt. This was reiterated in [another pleading where husband said the Facebook re-post that] was later deleted it constituted civil contempt on Wife’s part. The criminal contempt section of Husband’s petition references only the [newspaper] article. Given these facts, Wife could not have gleaned that she was being charged with a crime based on her Facebook re-post. We determine that Wife was not provided with the requisite notice … that she was being charged with criminal contempt for the Facebook post, so we vacate the portions of the trial court’s orders finding Wife in criminal contempt for willfully posting on Facebook a version of the [earlier] post that she was ordered to remove.

Wife also argued that being interviewed by the newspaper did not violate the order because her comments were not posted on social media or directed to Husband’s employer. The Court rejected Wife’s argument:

We agree with the trial court’s rational inference that Wife knew that the numerous public allegations she made were going to be received by Husband’s employer. We also agree that Wife’s choice to use a newspaper as the method of communication with Husband’s employer does not insulate her from culpability.

The Court affirmed the trial court’s finding of criminal contempt related to Wife’s participation in interviews for the newspaper article about her allegations.

The Court also observed that the penalty for criminal contempt is limited to the statutory penalties, i.e., a fine of $50, imprisonment not exceeding 10 days, or both. The case was remanded to the trial court to determine a proper punishment for Wife’s one count of criminal contempt. Thus, Wife won’t have to perform community service, but she may go to jail instead.

Source: Stark v. Stark (Tennessee Court of Appeals, Western Section, August 9, 2023).

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