Facts: Mother and Father are the parents of Child.

Mother filed a contempt petition alleging Father did not pay child support as ordered. The petition specifically alleged that Father was guilty of both civil and criminal contempt.

After hearing the evidence, the trial court said it would consider Mother’s petition a civil contempt matter only, explaining that “a finding of criminal contempt would serve no purpose at this time. The facts of this case are better suited to a determination of civil contempt.”

The trial court found Father in civil contempt but noted that, for two years after the period where Father did not pay child support as ordered, he maintained two years of consistent payments. The trial court found Father had purged himself of civil contempt by making consistent payments for two years. It then ordered Father to make payments toward his child-support arrearage and an uncovered medical expense.

Mother appealed.

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

Contempt may be either criminal or civil.

Civil contempt occurs when a person violates a court order and a contempt action is brought to enforce private rights. If imprisonment is ordered in a civil contempt case, it is remedial and coercive, designed to compel the contemnor to comply with the court’s order. Compliance will result in immediate release from prison.

Criminal contempt is intended to preserve the power and vindicate the dignity and authority of the law and the court as an organ of society. Therefore, sanctions for criminal contempt are generally both punitive and unconditional.

Tennessee courts have approved both civil and criminal contempt for the willful nonpayment of child support.

The Court found the trial court erred by choosing the form of contempt:

The general rule that the plaintiff is the master of his or her complaint must control.

Here, the trial court limited Mother’s action to only a civil contempt matter. The trial court’s decision did not rest on any finding that the notice provided by Mother was insufficient for purposes of criminal contempt. Nor did the trial court find that Mother’s proof was insufficient to meet the high standard of proof required in a criminal contempt action. Instead, the trial court made its decision based solely on the “purpose” of Mother’s action. But the trial court then found that Father had purged the civil contempt due to his later payment of child support. Purge payments, of course, our only defenses to civil contempt actions; accordingly, Father’s later payment would not have absolved him from a criminal contempt charge. … As a result, by limiting Mother to civil contempt, the trial court created a ready defense to Mother’s allegations that would not have been applicable if Mother had been given the choice to proceed with her criminal contempt allegations. So then, the trial court choosing to remove one facet of Mother’s case proved fatal to her ability to obtain any relief. The trial court’s decision to treat Mother’s petition as solely alleging civil contempt was, therefore, reversible error.

We conclude that the proper remedy is to vacate the trial court’s judgment and remand for a new hearing in which Mother’s civil and criminal contempt petitions may be heard simultaneously so long as all procedural safeguards are met, separately, or Mother may elect to proceed with only one type of contempt.

The Court reversed the trial court’s judgment and remanded the case to the trial court for a new trial.

K.O.’s Comment: Consider the McPherson opinion, which holds that “[c]riminal and civil contempt proceedings should be tried separately” because of the significant differences in the burdens of proof and procedural rights accorded to those accused of contempt. Should the trial court have forced Mother to elect which type of contempt to prosecute at the beginning of the trial?

Source: State ex rel. Ananaba v. Ananaba (Tennessee Court of Appeals, Western Section, September 21, 2023).

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