Session: February 28, 2017
from the Circuit Court for Washington County No. 26095 J.
Eddie Lauderback, Judge
appeal results from a post-divorce criminal contempt
conviction the plaintiff mother received for failing to
adhere to a parenting plan that prohibits both parents from
making disparaging remarks about the other parent. The trial
court held that the plaintiff received sufficient notice
under Rule 42(b) of the Tennessee Rules of Criminal Procedure
and that she was guilty of criminal contempt beyond a
reasonable doubt for two separate instances of disparaging
remarks made about the father in the presence of their
children. We affirm in part and reverse in part.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part and Reversed in Part; Case Remanded
O'Neil Herston and John F. Weaver, Knoxville, Tennessee,
for the appellant, Sheridan Nichols.
A. Creech, Suzanne S. Cook, and Matthew F. Bettis, Johnson
City, Tennessee, for the appellee, Richard David Crockett,
W. McClarty, J., delivered the opinion of the court, in which
D. Michael Swiney, C.J., and W. Neal McBrayer, J. joined.
W. MCCLARTY, JUDGE
Nichols ("Mother") and Richard David Crockett, Jr.
("Father") are the divorced parents of three minor
children. Since their divorce in November 2007, the former
spouses have acted under an agreed parenting plan that, inter
alia, grants both parents the right to be "free of
unwarranted derogatory remarks made about the parent or his
or her family by the other parent to the child or in the
presence of the child." This is a statutory requirement
for Tennessee parenting plans under Tennessee Code Annotated
section 36-6-101. The parenting plan in this case was
modified in May 2011, but this provision remained unchanged
in the modified plan.
8, 2015, Father filed his initial Motion for Contempt
alleging that Mother had unilaterally enrolled their son
Tripp in another school and had changed their son
Britton's therapist, both actions without Father's
consent as required by the parenting plan. Based upon this
motion, Father's attorneys deposed Mother under oath on
June 9, 2015. As a result of Mother's admissions during
the deposition, Father filed his Amended Motion for Contempt
("Amended Motion") the following day.
Amended Motion outlined that Mother had admitted to making
several derogatory comments to the children about Father in
violation of the parenting plan. This admission at the
deposition was spurred by the playing of a recording by
Father's attorney in which Mother berated her children by
insulting Father and his family. Specifically, the Amended
Motion provided that Mother's admitted insults about
Father to their children include, but are not limited to:
that Father is ungrateful; that Father is a hillbilly; that
Father has not done anything for them but instead it is
Mother's father who takes care of them; and that
Father's relatives are uneducated, etc. The Amended
Motion did not provide a date, timeframe, or location for
these remarks. The Amended Motion further alleged that Mother
had admitted at the deposition to giving the oldest son,
Tripp, a document explaining parental alienation syndrome and
had accused Father of alienating the sons from Mother.
original Motion for Contempt asserted that Mother is in
"civil and/or criminal contempt" and requested that
Mother be "punished to the fullest extent of the law to
vindicate the authority of the court, to purge the contempt,
to ensure compliance, and to prevent further abuses."
The Amended Motion explicitly stated that it is a motion for
"Criminal Contempt." The "Conclusion"
section of the motion provided that "Mother's
behavior is criminally contemptuous, for which Father seeks
the court to punish Mother as the court sees fit with the
consequence of impressing upon Mother the seriousness of the
issues at hand." The Amended Motion bore a
"Contempt Warning" at the end of the document after
Father's attorney's signature:
You are hereby charged with CRIMINAL CONTEMPT pursuant to
T.C.A. § 29-9-101 et. seq. You have certain
constitutional rights and you are hereby given notice of the
following rights: (a) You have the right to be represented by
counsel and if you are unable to afford one, counsel shall be
appointed for you; (b) You have the right to have guilt
proven against you beyond a reasonable doubt with the burden
of proof upon the charging party; (c) You have the right
against self-incrimination, which includes the right to
remain silent as to the allegations of criminal contempt
filed against you; (d) You have the right to be presumed
innocent; (e) You have all other rights afforded to any other
individual charged with violation of a criminal statute.
Pursuant to Rule 42(b)(1)(A) of the Tennessee Rules of
Criminal Procedure, this CRIMINAL CONTEMPT matter shall be
set for hearing on the 11th day of June, 2015 at 9:00 a.m.
the original motion and the Amended Motion requested
attorney's fees for prosecution of the criminal contempt.
timely filed a Motion to Dismiss Father's Amended Motion,
alleging notice deficiencies under Rule 42(b) of the
Tennessee Rules of Criminal Procedure. Specifically, Mother
asserted that Father's Amended Motion failed to provide
notice of the number of counts of contempt he was asserting,
the extent of the jeopardy she faced, and the specific dates
and locations where each alleged contemptuous act occurred.
Supplemental Brief in Support of the Amended Motion, Father
asserted: (1) the parenting plan was a lawful order, (2) it
was clear and unambiguous, (3) Mother repeatedly admitted to
violating the plan, and (4) Mother willfully violated the
plan as reflected by her deposition testimony and the audio
recording. Father requested that the trial court sentence
Mother to not less than ten days of imprisonment per
occurrence of criminal contempt. The Supplemental Brief noted
the date of the deposition, June 9, 2015, as when Mother
apparently lied under oath before recanting and admitting to
making derogatory insults about Father upon being presented
with the audio recording. The brief also described the
location of the first contempt allegation (derogatory
comments about Father and his family) as being in Tripp's
room with all three children present, as confirmed by
Mother's deposition testimony. The brief did not provide,
however, the date of the derogatory comments interaction. It
also did not describe the date or location of Mother's
interaction with Tripp regarding parental alienation, except
for Mother's deposition testimony on June 9, 2015, that
the latter interaction occurred "maybe a month
Supplemental Brief further described Mother's tirade
against Father, describing that in the audio recording Mother
stated as follows: "Father's mother was a drunk who
died from alcoholism, how Father was ungrateful, how
Father's brother didn't even graduate from high
school, and how the minor children should teach algebra to
Father's brother." The brief additionally provided
pertinent parts of Mother's sworn deposition testimony
reflecting her lying under oath and later admitting to the
derogatory comments alleged by Father in his Amended Motion.
Further, the Supplemental Brief set forth Mother's
testimony admitting to the parental alienation allegations
put forward by Father. According to the brief, Mother's
testimony reflected that she "show[ed] Tripp an article
on parental alienation and [told] him that . . . his Father
is engaging in such syndrome. Additionally, she openly told
Tripp that Father was brainwashing him."
hearing on September 17, 2015, the trial court denied
Mother's Motion to Dismiss, finding sufficient notice was
given to Mother under Rule 42:
I find that . . . the amended motion seeking criminal
contempt places [Mother] on notice.
The content of that notice under the rule says, "The
criminal contempt notice shall state: (a) The time and place
of the hearing, " which it originally stated June 1, I
believe, and that was not heard because of the other motions
that were resolved by Judge Seeley at the time.
Subsection (b) says, "Allow the original contemnor a
reasonable time to prepare a defense, " which I find
that the - [Mother] has had reasonable time to prepare her
defense on this charge.
Subsection (c), "State the essential facts constituting
the criminal contempt charged and describe it as such."
The amended motion goes into great detail regarding the
actions and conduct which the [F]ather believes are
sufficient to constitute criminal contempt, so I find that
the notice was sufficient.
[Mother] in her motion to dismiss the [F]ather's amended
motion for criminal contempt states that the motion fails to
notify the [M]other of the number of counts alleged. I find
that the motion does state with specificity the acts and
counts that are alleged to constitute criminal contempt. It
also states that the amended motion did not notify the
[M]other of the extent of jeopardy she faces.
In a criminal contempt charge the alleged contemnor has
certain rights that go beyond a civil contempt situation,
including right to counsel. You also have that right in a
civil contempt charge if they're facing incarceration.
The right to be given notice of the charges, which I find
[Mother] received. The right to freedom from double jeopardy,
which you're right, the jeopardy has attached now that
she's been sworn and testified. There is no ...