Facts: When Mother and Father divorced, Father received only 46 days of parenting time. Just three months later, Mother was tragically killed in an accident.

Maternal Grandparents petitioned for and received grandparent visitation:

• every Mother’s Day weekend,
• 10 consecutive days in July,
• the weekend closest to Mother’s birthday in September, and
• the weekend before Thanksgiving.

They were also awarded one 30-minute FaceTime call each week and the right to go to Child’s extracurricular activities.

Grandparents filed a petition for criminal contempt alleging that Father willfully did not allow for their court-ordered visitation schedule on 20 occasions.

When the petition was set for hearing, Father was ordered to appear. Father did not do so. This happened again. And again. When the matter was finally heard, the trial court addressed the original 20 counts plus three more counts for Father’s repeated failure to appear after being ordered to do so.

The trial court found each count was proven beyond a reasonable doubt. Father was sentenced to serve 10 days for each count, for a total of 230 days in jail. The trial court suspended 140 days contingent on strict compliance with the orders going forward but ordered Father to serve 90 days in jail.

Father appealed.

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

This 41-page opinion (!!!) analyzes each of the 23 counts of criminal contempt. I can’t cover all the issues in a short blog post, so I will focus on one count that illustrates one of Father’s better arguments.

Criminal contempt requires proof beyond a reasonable doubt that (1) there is a lawful order (2) that is clear, specific, and unambiguous (3) that was disobeyed (4) willfully.

Vague or ambiguous orders susceptible to more than one reasonable interpretation cannot support a finding of contempt. Orders need not be full of superfluous terms and specifications adequate to counter any flight of fancy a contemnor may imagine to declare it vague. They must, however, leave no reasonable basis for doubt regarding their meaning.

Orders alleged to have been violated should be construed using an objective standard that considers both the language of the order and the circumstances surrounding the issuance of the order, including the audience to whom the order is addressed. Ambiguities in an order alleged to have been violated should be interpreted in favor of the person facing the contempt charge.

Here, Father argued the trial court read restrictions in its visitation order in a way that resolved ambiguity against, rather than in favor of, the person facing the contempt charge.

As for their 10 consecutive days of visitation in July, the operative order says: “Grandparents shall notify Father, in writing, of their proposed dates for this visitation time no later than May 15 of each year.”

Grandfather sent a text message to Father on March 25 advising that they intended to take Child to a family cabin in Idaho from July 21 through July 31. Father replied, “[Child] isn’t going to the cabin this summer. We are appealing the decision.”

On July 4, Father announced that Child had a tennis lesson during the proposed summer visitation. The operative order also had a provision that said, “In the event [Child] has any regularly scheduled extracurricular activity during Grandparents’ visitation time, Grandparents shall either: (1) facilitate Child’s attendance at her scheduled activities, or (2) forego their visitation.”

Father said Grandparents were forfeiting their visitation by failing to accommodate Child’s tennis lesson.

In this specific instance, the Court agreed with Father that the trial court’s visitation order is subject to “more than one reasonable interpretation”:

Black’s Law Dictionary defines “proposal” as “[s]omething offered for consideration or acceptance; a suggestion,” and “[t]he act of putting something forward for consideration.” These definitions do not point to an unambiguous and clear conclusion that an authorization via the Visitation Order to proposed dates is the equivalent of possessing an authority to make a final determination as to the specific dates. To the contrary, the use of the word propose implies the possibility of an acceptance or rejection of the proposal. Father is correct that the provision allowing Grandparents to give “proposed dates” to Father by May 15 of each year can reasonably be read to mean that Father has some ability to accept or reject, not summer visitation in July, but the particular “proposed” dates in July.

Irrespective of the specific dates in July, it is clear, however, that Grandparents had a right to summer visitation in July. This right under the visitation order is definitive and not ambiguous…. Father did not respond to Grandparents’ dates proposal by suggesting or inviting alternative dates but instead by expressing opposition to summer visitation entirely irrespective of which days in July. Father’s conduct raises the question of whether this ambiguity of application regarding the proposal language would be a sufficient basis for him to avoid criminal contempt. After all, the visitation order is clear that Grandparents have a right to summer visitation for 10 days in July. We need not ultimately answer this question, though, because there is a second critical ambiguity that is ultimately fatal as to a finding of criminal contempt based on Father’s conduct with regard to Count 1.

*     *     *     *     *

The time period in which Grandparents either have to facilitate [Child’s] attendance at her scheduled [extracurricular] activities or forego visitation, therefore, includes the disputed summer visitation time period at issue in Count 1.

On appeal, Grandparents argued that the tennis lesson that interfered with their summer [] visitation was not regularly scheduled because [Child’s] first session for her tennis lessons was during the proposed visitation time period…. The language of the visitation order states that “[i]n the event [Child] has any regularly scheduled extracurricular activity during Grandparents’ visitation time,” Grandparents must either accommodate the extracurricular activity or forego. Just as the trial court used the word “shall” for Grandparents’ right to visitation in July, the trial court also used the word “shall” with regard to Grandparents’ obligation to facilitate or forego visitation. Father presented Grandparents with precisely this choice of accommodating [Child’s] tennis lessons or foregoing visitation.

*     *     *     *     *

As an adjective, “regular,” in turn and relevant part, is defined by Miriam-Webster as “recurring, attending, or functioning at fixed, uniform, or normal intervals.”

The evidence was clear that [Child] continued tennis lessons after the first one for a series of scheduled lessons, indicating that the tennis lessons were regularly scheduled, with the regular intervals beginning from the time period of Grandparents’ proposed July visitation. There was even testimony indicating that tennis lessons occurred in November, long past the summer visitation.

The visitation order did not provide that the extracurricular activities that would impact visitation had to be during an ongoing activity that had already met multiple times; rather, the visitation order simply required that the activity must be regularly scheduled. There is a first time for every regularly scheduled extracurricular activity, and nothing in the visitation order unambiguously or clearly indicates that the first session of a regularly scheduled extracurricular activity does not fall within the limitation established by the visitation order. The trial court’s visitation order neither limited its extracurricular activity to previously scheduled activities nor did the visitation order impose a limitation requiring cooperation from Father to avoid scheduling such activities during summer visitation. The visitation order did not clearly or unambiguously exclude the first session of an extracurricular activity that would include multiple subsequent sessions from the definition of “regularly scheduled.” That Father’s scheduling of a new regularly scheduled activity during summer visitation may be obnoxious does not render it a criminally contemptuous violation of a court order.

Thus, the Court reversed the finding of contempt as to Count 1. After conducting a similar analysis of the other 22 counts, the Court affirmed 11 counts of contempt and reversed 12 counts. The case was then remanded to the trial court for resentencing.

K.O.’s Comment: Father has behaved badly. It would not surprise me if the trial court

• changes the suspended sentence to make sure Father serves at least the original 90-day sentence in full (if not more jail time),
• amends its previous visitation order to make it so clear that a child could understand it, thus preventing Father from trying these stunts again without going to jail, and
• awards Grandparents their attorney’s fees per TCA § 36-5-103(c).

Source: Rose v. Malone (Tennessee Court of Appeals, Middle Section, February 27, 2025).

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