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Nichols v. Crockett

Court of Appeals of Tennessee, Knoxville

September 13, 2017


          Session: February 28, 2017

         Appeal from the Circuit Court for Washington County No. 26095 J. Eddie Lauderback, Judge

         This 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part and Reversed in Part; Case Remanded

          Kelly O'Neil Herston and John F. Weaver, Knoxville, Tennessee, for the appellant, Sheridan Nichols.

          Jason A. Creech, Suzanne S. Cook, and Matthew F. Bettis, Johnson City, Tennessee, for the appellee, Richard David Crockett, Jr.

          John W. McClarty, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and W. Neal McBrayer, J. joined.



         I. BACKGROUND

         Sheridan 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.

         On June 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.

         The 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.

         The 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.

         Both the original motion and the Amended Motion requested attorney's fees for prosecution of the criminal contempt.

         Mother 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.

         In a 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 ago."

         The 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."

         At the 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 ...

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