Facts: Mother and Father, the parents of Child, divorced after five years of marriage.

Over a year after their divorce, Father petitioned to have Mother held in criminal contempt for violating the parenting plan.

As discussed further below, the trial court found Mother guilty of seven counts of criminal contempt and sentenced her to serve 29 consecutive days in jail, which sentence was suspended conditioned upon Mother’s strict compliance with the court’s orders in the future. Mother was also ordered to pay over $6200 to Father for his attorney’s fees.

Mother appealed

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

Criminal contempt requires proof beyond a reasonable doubt that a person willfully violated a lawful order that is clear and unambiguous.

Mother argued that her action did not support findings of criminal contempt and that the relevant language from the parenting plan was not clear, specific, or unambiguous.

Disparagement. Every parenting plan has language prohibiting a parent from disparaging or denigrating the other parent or that parent’s family in the child’s presence.

Three days before the parents were to exchange Child, Father texted Mother to tell her he would take Child out of state for more than 48 hours over the Memorial Day holiday weekend. Mother texted to remind Father that Child must be returned by 6 PM on Monday. Father did not respond.

When they exchanged Child a few days later, Father recorded Mother with his mobile phone. While Child was secured in a car seat, Mother followed Father around the vehicle to the driver side, where she told Father she would call the police if he did not return the Child by 6 PM on Monday.

Father alleged this violated the non-disparagement provision of the parenting plan. The trial court agreed. The Court of Appeals did not:

Neither Mother’s statement that she would call the police, nor her statement that she would see the child at six o’clock on Monday constitute a derogatory or disparaging statement aimed at Father…. Mother’s comments were not “about” Father…. We further note that there is no evidence that Child heard Mother’s statements, and the [parenting plan] is unclear concerning the specific time that Father was to return the Child to Mother on Memorial Day.

Finding that Father failed to carry his burden of proof beyond a reasonable doubt, the Court reversed the trial court.

Father asserted a second disparagement claim. Father and Child saw a boat tied to a tree and “half sunk in the water” in a cove across from their lake house. Father removed the red navigation light from the boat. Child was excited to show the light to Mother. Father said the boat was abandoned and, according to a neighbor, was being removed from the lake. In Child’s presence, Mother said, “No, that’s stealing.” The trial court found Mother guilty of criminal contempt for saying in the child’s presence that Father “stole something important from an abandoned wreck of a pontoon boat.” Again, the Court disagreed:

Other than Father’s assertion regarding the statement of an unidentified neighbor, there is no proof that the boat was abandoned, and there is no evidence to suggest that its owner intended the boat to be subject to salvage. Nonetheless, Mother instructing Child not to take property that does not belong to him was not disparaging of Father because the statement was neither about Father, nor directed at Father.

The Court reversed the trial court.

Notice of extracurricular activities. Every parenting plan requires a parent who enrolls a child in an extracurricular activity to give the other parent at least 48 hours’ notice, whenever possible, of activities to which parental observation would be appropriate.

Father claimed Mother violated this provision by texting him about kindergarten parent orientation at 6:26 PM on the day it occurred. The trial court found Mother in contempt because she notified “Father the day of the orientation, after it was over.” The Court disagreed:

If Mother enrolls Child in an activity, she has an obligation to inform Father and to provide contact information so Father may obtain the relevant schedule. It is then incumbent on Father to take action to access information that is available to him as a parent.

School is not an “extracurricular” activity, and Father testified that he was aware that Child’s school communicates relevant information through a parent’s portal on its website. Contrary to his argument at trial, it is Father’s responsibility to access school information that is readily available to parents; it is not Mother’s obligation to do it for him…. Furthermore, Mother texted Father a screenshot of the school’s notice about the orientation in response to Father’s text asking, “Was there an event at school today?” Moreover, the school’s notice requested that only one parent attend the orientation “due to spacing” and recommended that attendees “mask.” [Note: this was during the Covid-19 pandemic in August 2021.] There is no evidence to show when or how Mother obtained the school notice, and we observe that, at trial, Father acknowledged that he did not know when Mother received the notice.

The Court reversed the trial court, concluding that the evidence was not enough to find Mother willfully violated the parenting plan by “intentionally withholding information regarding a child-related activity that was otherwise unavailable to Father.”

Itinerary for out-of-state trips. All parenting plans require parents to notify the other parent when they plan to take the child out of the state for more than 48 hours and to provide an itinerary and contact information.

A hearing occurred in August 2021 to address Mother’s request to take Child out of state. The trial court entered an order allowing the trip. Father alleged that Mother violated the parenting plan by failing to provide him with an itinerary for an out-of-state trip she took with Child in September 2012 containing the “place, address, time, and method of transportation” for the trip. Father testified he did not recall whether Mother testified at the August 2021 hearing about the trip itinerary or mode of transportation. Father admitted he did not request further details about the trip.

The trial court found Mother guilty of criminal contempt. The Court of Appeals reversed:

Contrary to Father’s testimony that Mother did not inform him that she intended to fly with Child to Seattle, the record from the August hearing included an exhibit indicating that Mother intended to “fly out” on September 3 and “fly home” on September 5. Based on the trial court’s September 2021 order, we are satisfied that: (1) Father had actual knowledge of the trip and did not inquire further; (2) the trial court was satisfied with the details provided by Mother; (3) the trial court gave Mother express permission to take Child to Washington state; and (4) Mother complied with the trial court’s order.

Transportation. The parties’ parenting plan has this transportation provision: “The parent beginning his or her parenting time shall be responsible for picking up and dropping off the child at the other parent’s home or another location at the beginning and end of his or her parenting time mutually agreed upon in writing.”

Father alleged Mother violated this provision when she sent a text message saying he was “not allowed at [her] house” and that she would bring Child to a church parking lot for the exchange. She also sent a text message telling Father not to pull into her driveway or “come to her door again.” Father alleged Mother unilaterally changed the transportation provision. The trial court found Mother guilty of two counts of criminal contempt. The Court of Appeals reversed:

It is undisputed that the parties’ practice was to exchange Child at neutral locations and not at their homes. This was not Mother’s unilateral decision, and we conclude that Father failed to meet his burden to show that Mother purposefully disregarded the PPP or the authority of the court in exchanging the child.

Parenting schedule. Father’s parenting time included a week where he would “have the child Thursday after school or 3:00 PM until 8:00 AM Friday to return to school or return to Mother if there is no school.” On a day when there was a half-day of school, Father argued Mother violated this provision by starting Father’s parenting time at 3 PM instead of when school dismissed at 10:45 AM. The trial court agreed. The Court of Appeals reversed:

At trial, Father acknowledged that the PPP is unclear concerning when Father’s parenting time begins when school is dismissed early. Although the parties may disagree concerning interpretation of the PPP provision, the evidence does not support a finding that Mother willfully violated the PPP by insisting that Father’s parenting time began at 3 PM.

Attorney’s fees. Father was awarded his attorney’s fees at the trial court level. Because of the reversals discussed above, Father was no longer the prevailing party and, therefore, the Court also reversed the award of attorney’s fees. Their marital dissolution agreement has a standard enforcement provision requiring the award of attorney’s fees to the prevailing party. Because Mother is now the prevailing party, the Court ordered Father to pay her reasonable attorney’s fees incurred both at the trial court level and on appeal.

K.O.’s Comment: (1) Let this opinion serve as a warning to others. Criminal contempt is a serious matter that must be reserved for serious violations of court orders. It’s not to be deployed as a retaliatory tactic.

(2) This is Mother’s second victory on appeal. My summary of her first victory can be found here.

Source: Sevigny v. Sevigny (Tennessee Court of Appeals, Middle Section, June 6, 2024).

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