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Marlow v. Marlow

Court of Appeals of Tennessee, Knoxville

May 29, 2018

AMY BRASFIELD MARLOW
v.
JOSEPH CHARLES MARLOW

          March 13, 2018 Session

          Appeal from the Circuit Court for Knox County No. 125184 Gregory S. McMillan, Judge

         This appeal arises from three post-divorce petitions for criminal contempt against Father in which Mother asserts over 200 separate counts. The principal issues on appeal pertain to the Double Jeopardy Clause of the United States and Tennessee Constitutions. Following a three day trial on the first petition, Father was found to be in criminal contempt of 60 counts. After Mother filed her second petition in which she alleged 133 additional counts of contempt, the parties appeared in court to announce a settlement pursuant to which Father would plead guilty to 10 unspecified counts with the remaining counts to be dismissed. Without advising and questioning Father before accepting a plea as Tenn. R. Crim. P. 11(b) requires, the trial court approved the agreed order, finding Father in criminal contempt of 10 unspecified counts. After Mother filed her third petition for criminal contempt, Father filed a "Motion to Alter or Amend and/or Rule 60.02 Motion to Set Aside Most of the Criminal Contempt Findings and Holdings in this Cause, " contending all but two of the 60 initial convictions were constitutionally flawed. As for the first 58 convictions, Father argued the notice of criminal contempt failed to specifically state essential facts concerning each ground as required by Tenn. R. Crim. P. 42(b). With regard to Father's guilty plea to 10 additional counts, Father contended the plea and sentence were fatally flawed because the trial court failed to ascertain whether Father's guilty plea was knowingly and voluntarily entered as Tenn. R. Crim. P. 11(b) requires. The trial court vacated 55 of the 60 initial convictions, finding the notice of criminal contempt failed to state essential facts as required by Tenn. R. Crim. P. 42(b); however, the order that followed held Father in criminal contempt for sending a text to Mother at 10:11 a.m. on June 20 for which Father had been acquitted following trial. The court also set aside Father's guilty plea to 10 of the 133 additional counts in the second petition because the court failed to advise and question Father before accepting a plea as required by Tenn. R. Crim. P. 11(b). The trial court also ruled, over Father's objections, that Mother could prosecute Father on all 133 counts in the second petition. In this appeal, Father contends the trial court violated the constitutional prohibitions against double jeopardy by (1) finding Father guilty of a count of criminal contempt for which he had been acquitted following trial, and (2) allowing Mother to prosecute her second petition. Because double jeopardy prohibits a prosecution after an acquittal on the same count, we vacate Father's conviction for criminal contempt for sending a text to Mother at 10:11 a.m. on June 20. As for allowing Mother to prosecute all 133 counts in her second petition, the agreed order, in which Father pled guilty to 10 counts, failed to specifically identify any of the counts for which Father pled guilty or any of the counts for which he was acquitted; therefore, jeopardy did not attached to any of the 133 counts. Accordingly, we affirm the trial court's decision allowing Mother to prosecute the 133 counts in her second petition.

         Tenn. R. App. P. 9 Interlocutory Appeal; Affirmed in Part, Reversed in Part, Vacated in Part and Remanded

          Wanda G. Sobieski, Diane M. Messer, and Caitlin Elledge, Knoxville, Tennessee, for the appellant, Joseph Charles Marlow.

          Kevin W. Shepherd and D. Chris Poulopoulos, Maryville, Tennessee, for the appellee, Amy Brasfield Marlow.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Charles D. Susano Jr. and John W. McClarty JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         Amy Marlow ("Mother") and Joseph Marlow ("Father") divorced on October 2, 2012, and a Permanent Parenting Plan was incorporated into the parties' Final Decree of Divorce.

         On June 19, 2014, Mother filed a petition for criminal contempt ("Petition 1"), [1]alleging Father violated the following provision in the permanent parenting plan:

Both parents are entitled to be free of derogatory remarks made about such parent or such parent's family by the other parent to or in the presence of the child. T.C.A. § 36-6-101(6).

         Petition 1 was tried over three days on September 8, 9, and 15, 2015. At the conclusion of the trial, the court found Father guilty of 60 separate counts of criminal contempt. In its oral ruling, which was incorporated into the trial court's final order of October 15, 2015, the trial court identified each communication with specificity that constituted an act of contempt. Five of the 60 counts for which Father was found in criminal contempt pertained to Father's communications on June 20, 2015. Specifically, the court found Father guilty of criminal contempt for sending texts to Mother at 9:53 a.m., 11:07 a.m., 11:26 a.m., 11:42 a.m., and 8:25 p.m. One of the counts for which Father was acquitted was for a text sent to Mother at 10:11 a.m. on June 20, 2015, which is significant for reasons discussed below.

         The trial court sentenced Father to ten days for each offense, for a total of 600 days of incarceration; however, the court ordered that Father serve eight days, with 592 days suspended, provided Father complied with the court's orders in the future.

         In the interim, Mother filed a Petition to Modify Permanent Parenting Plan and on August 19, 2014, the parties entered into a Temporary Parenting Plan that read in pertinent part:

[Father] is enjoined and restrained from sending email and texts to [Mother] with offensive language about [Mother], for the purpose to harass [Mother], or without a legitimate purpose of communication about the children.

         On February 5, 2016, Mother filed her second petition for criminal contempt which contained 133 counts ("Petition 2").[2] Instead of trying the issues, the parties came to an agreement regarding Petition 2, and presented an agreed order to the trial court pursuant to which Father would plead guilty to 10 unspecified counts, with a sentence of 10 days for each count, and the remaining counts would be dismissed. The agreement additionally provided that, in exchange for Father's guilty plea, Father's 100-day sentence for the 10 unspecified violations would be suspended. The agreed order also provided that Father's 592-day suspended sentence arising from Petition 1 would be held in abeyance subject to his strict compliance with court orders.

         Additionally, the parties agreed to modifications to the parenting plan, which included prohibiting Father from visiting the children at school without Mother's written consent and limiting Father to three phone calls per week with the children. The agreement also prohibited Father from coming within "visual distance" of Mother's residence and five other specified locations without Mother's express written consent. The trial court approved the parties' agreed order, which included Father's guilty plea; however, the court did not conduct a plea colloquy as required by Tenn. R. Crim. P. 11 to determine if Father's guilty plea was knowingly, voluntarily, and intelligently entered. The agreed order was entered on May 26, 2016.

         On July 7, 2016, Mother filed a third petition for contempt ("Petition 3") alleging thirteen counts against Father, most of which concerned alleged violations of provisions in the May 2016 agreed order. Father filed an answer to Mother's petition and also filed a ...


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