Facts: Father and Paternal Grandmother received joint custody of four-year-old Child due to Mother’s drug use. Father was in the military, so Grandmother was Child’s primary caregiver for some time.

The following year, Father took Child and moved to Georgia. Grandmother had visitation every other weekend and some holidays.

The following year, Father and Child moved to Illinois. Father said he would no longer follow the court-ordered visitation schedule. Father also accused Grandmother of sexually abusing Child. The Tennessee Department of Children’s Services concluded the allegations of abuse were unfounded. Father was found in contempt for disregarding the court order regarding Grandmother’s visitation. The court order was also changed to allow Grandmother to visit during the longer school breaks and summer.

After Grandmother returned Child to Father after her summer visitation, Father sought an order of protection in Illinois, again alleging sexual abuse. Until that order of protection was dismissed six months later, the Illinois court suspended Grandmother’s visitation.

Grandmother filed a contempt petition, alleging 94 violations while the order of protection was in effect and after it was dismissed. Father was found guilty of criminal contempt and sentenced to 100 days of incarceration. The Court suspended the sentence “pending [Father’s] future compliance” with court orders.

Two days before Grandmother’s next scheduled visitation, Father again obtained an order of protection in Illinois based on allegations of sexual abuse by Grandmother.

Grandmother filed another motion for criminal contempt, this time alleging 28 counts. Once again, Father’s allegations were found to be unfounded by the Illinois Department of Family and Child Services. The second order of protection was dismissed.

Grandmother testified in support of her motion for contempt. She admitted that the Illinois order of protection was in place during the time of her missed visitation.

The trial court found Father had the ability to comply with the visitation schedule but willfully chose not to. Father was found guilty of 28 counts of criminal contempt and sentenced to serve 10 days in jail for each violation. The trial court also ordered Father to serve the previously suspended sentence of 100 days, for a total of 380 days Grandmother was also awarded $1500 for her attorney’s fees.

Father appealed, arguing that his actions were not willful because the order of protection was in place when the visitation was withheld.

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

A party may be found in criminal contempt for the willful disobedience of a lawful court order. For each violation, a party held in contempt may be subjected to a fine of up to $50 and incarceration of up to 10 days.

Criminal contempt requires proof beyond a reasonable doubt that

• the order alleged to be violated is lawful,
• the order alleged to be violated is clear, specific, and unambiguous,
• the person actually disobeyed the order, and
• the person’s violation of the order was willful.

For criminal contempt, willfulness has two elements:

1. intentional conduct, and
2. a culpable state of mind.

Willful misconduct for criminal contempt requires an intentional violation of a known duty. In this context, a willful act is undertaken for a bad purpose.

The Court found there was no evidence that Father’s conduct was willful:

Father in this case was faced with two court orders that were in direct conflict with one another. One prohibited contact between Child and Grandmother, and the other court ordered Child to have visitation with Grandmother. These orders were diametrically opposed, and compliance with both was an impossibility. Contempt cannot hinge on an order that was impossible for the contemnor to obey.

Grandmother sensibly argues, however, that Father cannot willfully disable himself from obeying [a court order] and then set up his inability as a defense to a charge of contempt. Grandmother asserts that Father sought the order of protection for the purpose of thwarting his ability to produce the child.

*     *     *     *     *

From the evidence that was presented, there was not an adequate factual basis in the record to conclude that Father was not simply properly reacting to an allegation that was made by the child, even if that allegation was not true. Father’s petitions are grounded in what he indicates are assertions that the child made to various individuals indicating sexual abuse by Grandmother. Fatally for Grandmother’s line of argument, the juvenile court never made a factual finding that Father was acting in bad faith in pursuing a protective order in Illinois. Father may well have acted with a completely improper purpose, manipulating the judicial process in presenting knowingly false allegations of sexual abuse to Illinois courts to avoid Grandmother’s visitation, and such conduct may well be a basis for concluding that Father willfully violated the trial court’s visitation order. But, given the lack of actual evidentiary development before the trial court on this matter and the absence of any such finding from the trial court, we cannot uphold the finding of contempt on this basis.

To reiterate, this decision should not be understood to mean that a trial court cannot take appropriate action to curtail a party’s effort to subvert the judicial process by maliciously filing for a protective order based upon false reports of sexual abuse in order to thwart visitation. Nor is this decision a reflection of a determination that Father did not act in bad faith. Instead, there is simply no such finding by the trial court to support a conclusion that Father was acting willfully in violation of a court order by seeking an order of protection as a means of thwarting visitation in this case. Furthermore, the record, which is thin in terms of actual evidence presented, does not establish that Father fabricated or maliciously procured the allegations that are the basis of the order of protection. Accordingly, we cannot say that Father willfully disabled himself from obeying the court’s order regarding visitation.

Returning to the foundation of Father’s argument, the Illinois order of protection prohibited contact between Child and Grandmother…. Because a valid order of protection was in place prohibiting contact between Grandmother and Child, we conclude that the juvenile court erred in finding that Father acted willfully, as complying with both orders was impossible.

The Court reversed the trial court’s finding of 28 counts of contempt and the punishments that followed. The 100-day suspended sentence was restored.

Source: Gillies v. Gillies (Tennessee Court of Appeals, Middle Section, February 11, 2025).

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