Facts: Mother and Father divorced in 2019. Their agreed parenting plan had a mutual restraining order limiting them from contacting each other “except for text messages only relating to parenting their children.”

Four years after their divorce, Mother filed a petition for criminal contempt against Father. She produced thousands of text messages—695 pages!—from Father in which Father tries to pursue a romantic relationship with Mother. In the messages, Mother repeatedly asks Father to stop, informs Father that their romantic relationship is over, and repeats that they are only to have contact regarding their children. Almost all the messages show Father begging Mother to rekindle a relationship with him. Mother also alleged that Father had been showing up at her place of employment and leaving unwanted gifts on her car.

Father responded with a counter-petition to increase his parenting time to equal time via alternating weeks. Mother then amended her petition to ask for Father’s parenting time to be limited to supervised visitation.

As for the contempt allegations, Father admitted that he contacted Mother in violation of the parenting plan in an attempt to reconcile their marriage. He said he understood that continuing to do that could lead to his incarceration and offered to pay Mother’s attorney’s fees on the contempt issue.

The trial court found:

Father’s texts vary from long soliloquies to short texts sent in rapid-fire succession over the course of seconds and minutes and hours. The theme of all the texts (the parties are just shy of four years postdivorce) is Father begging, threatening, or pleading with Mother to reconcile and that he will win her over, and then when no response is given by Mother, becoming antagonistic, accusatory, and insulting toward Mother. On multiple occasions, Mother texts father to stop, and reminds him of the Order to text only about the children. Father ignores the same.

The trial court found Father in criminal contempt on 133 specifically identified occasions and sentenced Father to serve 186 days in jail. The trial court found this sentence to be necessary because of Father’s persistent disregard of the Order, the magnitude of his behavior, his disregard for Mother’s unequivocal communications to stop, his ignoring a letter from counsel to cease-and-desist, his ignoring his own lawyer’s advice, then need to end his behavior, and the importance of deterring him from such behavior in the future.

The trial court also reduced Father’s parenting time to alternating weekends, explaining:

Father has an emotional impairment that interferes with his parenting responsibilities. Father has stalked Mother for years, going so far as to use their children to deliver unwanted gifts to Mother. Additionally, the sheer volume and frequency of Father’s texts to Mother would require him to be on his phone almost constantly throughout the day, preventing him from being available to his children and capable of performing his parenting responsibilities. Father’s behavior displays a pattern of conduct that is abusive to Mother, with the parties’ children being used as pawns by Father to manipulate Mother. Father’s abusive use of conflict and emotional impairment creates a danger of damage to the children’s psychological development and is adverse to the best interests of the children.

Mother was also awarded $5400 in attorney’s fees.

Father appealed, arguing that his 186-day sentence for criminal contempt is excessive.

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

Criminal contempt may be punished by fine, imprisonment, or both. The fine is limited to $50 and the sentence cannot exceed 10 days per violation.

While a jail sentence for criminal contempt may be ordered to run consecutively or concurrently, there is a presumption in favor of concurrent sentencing. The overall length of the sentence must be justly deserved in relation to the seriousness of the offenses and no greater than that deserved under the circumstances. When a sentence for contempt is excessive, the appellate court has the authority to change the sentence.

The Court found the 186-day sentence appropriate:

Here, the trial court did not abuse its discretion in ordering Father to serve his jail sentence consecutively…. As the trial court aptly noted, Father’s behavior is both egregious and disturbing. Father does not dispute on appeal that he sent Mother thousands of inappropriate messages, spanning several years, in violation of a valid court order. These messages, which span several volumes of the technical record, are harassing and abusive in nature and even include pornographic material. As the trial court points out in its final order, “[t]he theme of all of the texts … is Father begging, threatening, or pleading with Mother to reconcile and that he will win her over, and then when no responses given by Mother, becoming antagonistic, accusatory, and insulting toward Mother.” The record not only supports this finding but also shows that Father did not cease his behavior after numerous, repeated requests from Mother, a cease and desist letter from Mother’s counsel, or even advice from Father’s own counsel. Simply put, the record in this case reflects that Father would not stop his behaviors without serious court intervention…. In light of Father’s actions, his consecutive sentence is deserved and wholly supported by the record.

Although Mother failed to request her attorney’s fees on appeal in her statement of issues, the Court decided on its own to award her fees because Father’s appeal was frivolous, explaining:

Father’s behavior is egregious and has resulted in significant expenses for Mother. Father harassed Mother for years and continued his contemptuous behavior even after Mother initiated this action in the trial court. Father then conceded in a filing to the trial court that he was in criminal contempt and even acknowledged that he faced incarceration or an order of protection as a result of his actions. … All but one of Father’s issues are raised for the first time on appeal and should have been argued in the trial court. Moreover, Father did not include a transcript of the final hearing or a statement of evidence in the record on appeal.

Under all of the circumstances, this appeal had no reasonable chance of success, and Mother should not have to bear the resultant expense and vexation.

The Court affirmed the trial court’s ruling sentencing Father to serve 186 days in jail, and the case was remanded to the trial court to determine the amount of Mother’s attorney’s fees and expenses on appeal.

Source: Hughes v. Hughes (Tennessee Court of Appeals, Eastern Section, April 19, 2024).

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