Jamie Faucon v. Michael Mgridichian ( 2020 )

06/11/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 15, 2020
JAMIE FAUCON v. MICHAEL MGRIDICHIAN
Appeal from the Circuit Court for Knox County
No. 145918 Gregory S. McMillan, Judge
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No. E2019-01343-COA-R3-CV
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This case involves a violation of an ex parte order of protection. The order required the
respondent to refrain from contacting the petitioner in any way, including electronic
communication. The trial court found the respondent in criminal contempt for violating
the order by contacting Petitioner over “amateur radio” on three separate occasions.
Respondent appealed, asserting the trial court lacked jurisdiction over the case and that he
did not receive sufficient notice of the criminal contempt charges. We affirm the trial
court and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded.
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and FRANK G. CLEMENT, JR., P.J., M.S., joined.
John C. Barnes and Brandon Dallas Fersten, Knoxville, Tennessee, for the appellant,
Michael Mgrdichian.1
Jamie Faucon, Knoxville, Tennessee, Pro Se.
OPINION
I. FACTS & PROCEDURAL HISTORY
On April 30, 2019, Jamie Faucon (“Petitioner”) filed a Petition for an Order of
1
Appellant’s brief states that his last name has been misspelled since the inception of this case,
which is reflected in the caption of this case. He states that the correct spelling of his surname is
“Mgrdichian.”
Protection against Michael J. Mgridichian (“Respondent”) in the Fourth Circuit Court of
Tennessee, sitting in Knox County. In the petition, Petitioner alleged Respondent
stalked, threatened, and harassed Petitioner on multiple occasions from 2016 to April
2019. Petitioner claimed the threats took place over “HAMM radio” after Petitioner
repeatedly asked Respondent to cease his actions. Petitioner claims Respondent’s actions
began after Petitioner filed a complaint with the Federal Communications Commission
(“FCC”) because Respondent was allegedly using “racially abusive language on the
HAMM radio.”
On the same day the petition was filed, the trial court issued a Temporary (Ex
Parte) Order of Protection (the “ex parte order”) pursuant to Tennessee Code Annotated
section 36-3-605(a). The ex parte order detailed several actions that Respondent was to
refrain from committing. The pertinent command for this appeal stated that Respondent
would “not contact the petitioner either directly or indirectly, by phone, email, messages,
mail, or any other type of communication or contact.” (Emphasis added). The ex parte
order included a notice for Respondent that included the following: “If you do not obey
all orders on this form, you may be fined and sent to jail, for 10 days for each and every
violation (criminal contempt of court).” Respondent received service of the ex parte
order on May 7, 2019.
On May 13, 2019, Petitioner filed a motion for a show cause order based on an
alleged violation of the ex parte order. In the motion, Petitioner alleged that on May 9,
2019, Petitioner was speaking with a third party on amateur radio when Respondent
interjected into the conversation.2 The motion included a fiat, which had a “checked”
box that indicated Respondent was to appear and answer for the charges of criminal
contempt of court. The same paragraph stated, “Each offense of criminal contempt
proved beyond a reasonable doubt is punishable by ten (10) days in jail and/or a $50
fine.” The fiat also included a “Notice to Respondent” that listed the notice requirements
of Tennessee Rule of Criminal Procedure Rule 42(b). The trial court granted the motion
and issued an Order to Show Cause on May 13, 2019. On May 28, 2019, Respondent
was served with the order, the motion, and the fiat. The court’s order to show cause
included a caption that stated, “Show Cause Civil Action.”
Petitioner filed a second motion for a show cause order on May 16, 2019. This
motion was substantively identical to Petitioner’s first motion—including: a fiat that
indicated Respondent was to answer for charges of criminal contempt, the potential
penalty for each count of criminal contempt, and Rule 42(b) notice. This motion listed
two separate charges against Respondent.3 In this motion, Petitioner alleged that
2
“Amateur [radio] service” is defined as “[a] radiocommunication service for the purpose of self-
training, intercommunication and technical investigations carried out by amateurs, that is, duly authorized
persons interested in radio technique solely with a personal aim and without pecuniary interest.” 47
C.F.R. § 97.3(a)(4) (2020).
3
Appellant states in his brief that “it appears, the Trial Court did not learn that that there were
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Respondent violated the ex parte order by again making contact on amateur radio on May
13 and May 15, 2019 and refusing to leave the frequency. The circuit court granted the
motion. On May 23, 2019, Respondent was served with the order, the motion, and its
accompanying fiat.4 This order to show cause also included a caption titled, “Show
Cause Civil Action.”
On May 23, 2019, with the ex parte order still in effect, the trial court held a
hearing on the initial petition for an order of protection. Both parties appeared pro se.
With charges for criminal contempt of court pending against Respondent, at the outset of
the hearing, the court advised Respondent of his Fifth Amendment rights related to the
show cause orders, including the right to appointed representation and the right against
self-incrimination. The court also stated that Respondent could be incarcerated for up to
ten days and fined fifty dollars for each count of which he was found guilty. Respondent
requested to continue with the hearing on the order of protection, and a hearing for the
show cause orders was reset for July 2, 2019.5 Petitioner could not offer sufficient proof
on the underlying petition for an order of protection, so the petition was voluntarily
dismissed at the May 23 hearing.
At the July 2, 2019 hearing on the show cause orders, both parties again appeared
pro se.6 The court informed Respondent of the potential penalties for each violation, that
he is presumed innocent until proven guilty, that he cannot be compelled to testify, and
that the charges against him must be proven beyond a reasonable doubt. Proof was heard
on the show cause orders from May 13 and May 16, 2019. Subsequently, the trial court
found Respondent committed three violations of the ex parte order and sentenced him to
30 days of incarceration. Bond was set at $7,500, pending an appeal. The trial court
entered a written order on its ruling on July 2, 2019. Respondent timely appealed.
II. ISSUES PRESENTED
Respondent raises three issues on appeal, which we have reworded.
1. Whether the trial court’s ex parte order is preempted by federal law that
three, rather than two, show causes against Appellant until twelve (12) minutes into the hearing.”
Respectfully, from our review of the record, no such conclusion can be made.
4
It is not apparent from the record why the show cause orders were served on Respondent in
reverse chronological order.
5
Initially, this hearing was set for July 18, 2019. It is not apparent from the record why it was
rescheduled to July 2, 2019.
6
At the hearing on May 23, 2019, Respondent stated he could not afford an attorney, and the trial
court instructed him to fill out an income and expense affidavit to determine if he qualified for an
appointed attorney. It appears an affidavit was never submitted or submitted incorrectly. At the hearing
on July 2, 2019, the trial stated, “I believe I [declined to appoint counsel] because of the failure to
complete the affidavit correctly.”
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regulates the use of amateur radio;
2. Whether Respondent was given sufficient notice under Tennessee Rule of
Criminal Procedure 42(b) that he was facing criminal contempt charges; and
3. Whether the trial court erred in finding Respondent guilty of three counts of
criminal contempt when it issued only two show cause orders.
For the reasons stated herein, we affirm the trial court and remand.
III. STANDARD OF REVIEW
The Supreme Court has previously detailed the standard of review in criminal
contempt cases.
A person charged with criminal contempt is presumed innocent, and
guilt must be proven beyond a reasonable doubt. Once convicted, however,
the contemnor loses the presumption of innocence and bears the burden of
overcoming the presumption of guilt on appeal. Thus, appellate courts do
not review the evidence in a light favorable to the accused. A conviction
will be reversed for insufficient evidence only when the facts in the record,
and any inferences that may be drawn therefrom, are insufficient as a matter
of law for a rational trier of fact to find the accused guilty of the crime
beyond a reasonable doubt.
State v. Beeler, 387 S.W.3d 511, 519 (Tenn. 2012) (citations omitted). A trial court’s
conclusions on questions of law are reviewed de novo, without any presumption of
correctness. Lovlace v. Copley, 418 S.W.3d 1, 16 (Tenn. 2013).
IV. DISCUSSION
On appeal and throughout the entirety of this case, Petitioner has acted pro se.
Parties who decide to represent themselves are entitled to fair and
equal treatment by the courts. The courts should take into account that
many pro se litigants have no legal training and little familiarity with the
judicial system. However, the courts must also be mindful of the boundary
between fairness to a pro se litigant and unfairness to the pro se litigant’s
adversary. Thus, the courts must not excuse pro se litigants from
complying with the same substantive and procedural rules that represented
parties are expected to observe.
Young v. Barrow, 130 S.W.3d 59, 62–63 (Tenn. Ct. App. 2003) (citations omitted).
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A. Federal Preemption
Respondent attempted to have this case dismissed at the initial hearing on May 23,
2019, by arguing the trial court did not have jurisdiction. He argued that state courts do
not have jurisdiction over any communication involving amateur radio. The trial court
stated it did have jurisdiction based on an alleged violation of the ex parte order, but the
court also stated, at the next hearing on the show cause orders, “[Respondent] may mount
whatever defense [he] wish[es] to mount . . . . That may include some sort of federal
preemption.” Despite this statement by the court, Respondent did not raise this
preemption argument at the July 2 hearing. However, Respondent did raise the issue in
this appeal, claiming state courts lack jurisdiction over cases involving the use of amateur
radio.
Although Respondent did not reassert his preemption argument at the July 2, 2019
hearing, the issue involves a question of subject matter jurisdiction, which cannot be
waived. See Johnson v. Hopkins, 432 S.W.3d 840, 843–44 (Tenn. 2013) (citing
Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn. 2012); Meighan v. U.S. Sprint
Commc’ns Co., 924 S.W.2d 632, 639 (Tenn. 1996)). Therefore, it is immaterial whether
Respondent reasserted the defense at the July 2 hearing. It may be raised and considered
in this appeal. Whether an action of a state court is preempted by federal law is reviewed
de novo. Giggers v. Memphis Hous. Auth., 363 S.W.3d 500, 504–05 (Tenn. 2012) (citing
Leggett v. Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn. 2010)).
“Preemption can arise either in the form of explicit legislation by Congress or
when federal legislation implicitly conflicts with state law.” Id. at 504 (citing Leggett,
308 S.W.3d at 853). An implicit conflict may arise when “the state law stands as an
obstacle to the accomplishment and execution of the full objectives of Congress.”
LeTellier v. LeTellier, 40 S.W.3d 490, 497 (Tenn. 2001) (quoting Watson v. Cleveland
Chair Co.¸789 S.W.2d 538, 542 (Tenn. 1989)). Therefore, “[t]he purpose of Congress in
enacting a federal law is . . . the ‘ultimate touchstone’ of preemption analysis.” Id.(quoting Riggs v. Burson, 941 S.W.2d 44, 49 (Tenn. 1997)). Given the subject matter of
this case, it is important to note that “[f]ederal regulations have no less pre-emptive effect
than federal statutes.” Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984).
Respondent cites federal codes, Tennessee statutes, and cases from neighboring
states to support his argument that federal law preempts a state court from having
jurisdiction in a case involving amateur radio. While the cited sources involve the use or
regulation of amateur radio, we do not find such broad-ranging preemption in this case.
Congress has empowered the Federal Communications Commission (“FCC”) with
regulating interstate and foreign radio communication. See 47 U.S.C. § 151. In
regulating amateur radio, the FCC’s purposes include: enhancing the value of amateur
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radio; enhancing its ability to contribute to radio as an art; encouraging and improving the
use of amateur radio; expanding the use of amateur radio; and continuing the use of
amateur radio to “enhance international goodwill.” See 47 C.F.R. § 97.1. At the outset,
it does not appear any of these purposes conflict with a court imposing sanctions for
criminal contempt, which are to “vindicate [a] court’s authority.” See Long v. McAllister-
Long, 221 S.W.3d 1, 12 (Tenn. Ct. App. 2006) (citing Doe v. Bd. of Prof’l Responsibility,
104 S.W.3d 465, 474 (Tenn. 2003); Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996)).
Respondent cites Tennessee Code Annotated section 6-54-130 for the proposition
that the Tennessee legislature recognizes the FCC has exclusive jurisdiction over any
case involving amateur radio. This section of Code states that municipal or county
ordinances are unenforceable if they do not comply with the FCC’s memorandum
opinion In the Matter of Federal preemption of state and local regulations pertaining to
Amateur radio facilities (“In the Matter of Federal preemption”), 101 F.C.C.2d 952(1985), or title 47, part 97 of the Code of Federal Regulations. Tenn. Code Ann. § 6-54-
130(a). As we will address in greater detail below, we cannot see how the enforcement
of the ex parte order against Respondent fails to comply with any provision listed in title
47, part 97 of the Code of Federal Regulations. In regard to In the Matter of Federal
preemption, the opinion discusses permitted zoning regulations related to the height of
radio antennas. See In the Matter of Federal preemption, 101 F.C.C.2d at 959–60. The
opinion sought to further the operation of amateur radio by ensuring federal regulation on
antenna sizes was followed by states. Id. It concludes, “local regulations which involve
placement, screening, or height of antennas . . . must be crafted to accommodate
reasonably amateur communications, and to represent the minimum practicable
regulation to accomplish the local authority’s legitimate purpose.” Id. at 960. We cannot
say the regulation of radio antennas and the promotion of amateur radio, as the opinion
states, leads to the conclusion that the FCC wields the broad-sweeping preemption power
that Respondent suggests. In the Matter of Federal preemption and Tennessee Code
Annotated section 6-54-130 appear to focus on the size of radio antennas, a subject
unrelated to the outcome of this case.
Many of the other authorities cited by Respondent prohibit interference with
amateur radio communications. Title 47, section 333 of the United States Code states
“No person shall willfully or maliciously interfere with or cause interference to any radio
communications.” (Emphasis added). Additionally, the Code of Federal Regulations
states, “[n]o amateur operator shall willfully or maliciously interfere with or cause
interference to any radio communication or signal.” 47 C.F.R. § 97.101(d) (emphasis
added). The FCC also prohibits amateur stations that transmit “communications intended
to facilitate a criminal act; [or] . . . obscene or indecent words or language.” 47 C.F.R. §
97.113(a)(4).
In this case, the trial court found Respondent in criminal contempt for violating the
ex parte order by communicating with Petitioner on amateur radio. Under the order,
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Respondent was “not to contact [Petitioner] either directly or indirectly,” by any type of
communication. While Respondent’s comments to Petitioner on the radio were less than
pleasant, his obscenities are not what the trial court found to be a violation. It was
Respondent merely speaking with Petitioner that made the acts violations of the ex parte
order.
Federal remedies and penalties for violating the regulations described herein are
not exclusive. Penalties for violating federal amateur radio standards are “in addition to
any other penalties provided by law.” 47 U.S.C. § 502 (emphasis added). Similarly, the
remedies available to a party under title 47 of the U.S. Code “shall [not] in any way
abridge or alter the remedies now existing at common law or by statute, but the
provisions of this chapter are in addition to such remedies.” 47 U.S.C. § 414 (emphasis
added). Again, we find no conflict with the purposes of amateur radio and the
enforcement of criminal contempt. See 47 C.F.R. § 97.101; Long, 221 S.W.3d at 12.
Instead, we find that these provisions allow a court to find a party in criminal contempt
for violating a valid court order.
As part of his preemption argument, Respondent also places significant weight on
cases from our sister states. We find these cases to be inapplicable to the present case.
In Blackburn v. Doubleday Broad. Co., the plaintiffs sued five local radio stations
under a nuisance claim for interfering with their reception of other radio transmissions.
353 N.W.2d 550, 551–52 (Minn. 1984). The Minnesota court dismissed the nuisance
claim for lack of subject matter jurisdiction, finding federal law preempted the claim. Id.
at 551, 556. The court stated, “the gravamen of plaintiffs’ complaint is that defendants’
signals prevent them from clearly receiving other desired signals. Hence, we conclude
that plaintiffs are alleging ‘interference’ within the meaning of the Federal
Communications Act.” Id. at 553. The court found it lacked subject matter jurisdiction
by Congress exercising “exclusive jurisdiction over regulating interference between radio
station signals.” Id. at 556 (emphasis added). Even after considering the “additional
remedies” language in title 47, section 414 of the United States Code, the Blackburn
court concluded the nuisance claim was barred by the extensive statutory scheme. Id. at
555–56. However, the case did not involve a valid order that was violated resulting in
criminal contempt. Instead, the plaintiffs’ nuisance claim was based on the defendants’
disruption of their other radio signals, which is heavily regulated by the FCC. Id. at 556.
Subsequent cases in state courts that involved nuisance claims relied on Blackburn
to make similar findings. See Still v. Michaels, 803 P.2d 124, 125 (Ariz. Ct. App. 1990);
Smith v. Calvary Educ. Broad. Network, 783 S.W.2d 533, 534–35 (Mo. Ct. App. 1990)
(stating “interference caused by radio transmission is similarly a technical matter and that
the FCC’s control thereof is exclusive”). Of these cases, Respondent relies most heavily
on Helm v. Louisville Two-Way Radio Corp., 667 S.W.2d 691 (Ky. 1984).
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Helm v. Louisville Two-Way Radio Corp. also involved a nuisance claim filed
against a commercial radio broadcast company. Id. at 691–92. Like its predecessor cases
in neighboring states, the court in Helm dismissed the state law claim for lack of
jurisdiction. Id. at 692. In doing so, the Helm court rejected cases that upheld
jurisdiction for a state court. Id. at 692–93. Much like the holdings in Blackburn, 353
N.W.2d at 556; Still, 803 P.2d at 125; and Smith, 783 S.W.2d at 534–35, the Helm court
rejected the nuisance claim that alleged radio interference. Helm, 667 S.W.2d at 693.
The court stated, the exclusive and comprehensive power of the FCC “[t]o control,
regulate, or prohibit radio transmissions” preempted the state law nuisance claim. Id.
Unlike these prior cases, the present case does not require a court to determine
“technical matters” such as the appropriate level of radio interference. The ex parte order
did not prohibit Respondent from using amateur radio; it did not attempt to establish a
permitted level of interference; and it did not originate from or result in a nuisance claim.
Instead, the subject matter of this case primarily rests on Respondent violating the ex
parte order by contacting Petitioner on amateur radio. A party’s radio usage—whether it
be commercial or amateur—does not automatically preempt the case from being heard by
a state court. See, e.g., Head v. N.M. Bd. of Examiners in Optometry, 374 U.S. 424, 429–
32 (1963) (holding state regulation of radio advertising was not preempted by the FCC);
Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 121–22, 132 (1945) (holding the
state court had jurisdiction to determine a fraud claim involving a lease of a radio
station); Menefee v. State, 980 So.2d 569, 570–71 (Fla. Dist. Ct. App. 2008) (holding
state courts are not preempted from prosecuting harassing or threatening statements over
amateur radio).
Again, the enforcement and prosecution of a valid ex parte order does not conflict
with the federal statutes regulating radio activity. As the Florida appellate court aptly
noted under similar circumstances, “In prosecuting [Respondent] the [trial court] was not
seeking to regulate the air waves, rather it was seeking to punish him for his criminal
conduct.” Menefee, 980 So.2d at 571. Respondent argues that the FCC’s prohibition
against “communications intended to facilitate a criminal act; . . . [or] obscene or
indecent words or language” restricts any state court from having jurisdiction to
prosecute such actions. See 47 C.F.R. § 97.113(a)(4). We disagree with this conclusory
assumption. Respondent was not found in criminal contempt for using “obscene or
indecent words” on amateur radio. Rather, he was found in contempt for simply
communicating with Petitioner, irrespective of the language he used. On this issue, we
rely on analysis in Menefee, 980 So.2d at 573–74. In Menefee, the Florida District Court
of Appeals stated, “there is nothing contained within the [Federal Communications] Act
or its implementing regulations that suggests that states may not take action to charge
a[n] [amateur] radio operator criminally for conduct that would constitute a crime.” Id. at
573.
For these reasons, we find that the trial court’s ex parte order is not preempted by
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federal law. Therefore, the trial court had jurisdiction to find Respondent in criminal
contempt of court when Respondent violated the ex parte order by contacting Petitioner
on amateur radio.
B. Rule 42(b) Notice
We now turn our attention to whether Respondent received sufficient notice of the
contempt charges that were brought against him. Respondent takes issue with how he
was informed of the criminal contempt charges and with two show cause orders being
issued for three counts of criminal contempt. While Respondent listed these as separate
issues, we shall address them collectively.
“A charge of criminal contempt is somewhat peculiar because such a charge
encompasses aspects of both criminal law and civil law.” Moody v. Hutchison, 159
S.W.3d 15, 27 (Tenn. Ct. App. 2004). “An act of contempt may be either civil or
criminal in nature, and determining whether a punishment for contempt is civil or
criminal depends on the character and the purpose of the sanction imposed.” McPherson
v. McPherson, No. M2003-02677-COA-R3-CV, 2005 WL 3479630, at *3 (Tenn. Ct.
App. Dec. 19, 2005) (citations omitted). As we have previously stated, “[s]anctions for
criminal contempt are punitive in character, and their primary purpose is to vindicate the
court’s authority.” Long, 221 S.W.3d at 12 (citing Doe, 104 S.W.3d at 474; Black, 938
S.W.2d at 398). Unlike civil contempt, criminal contempt is not meant to compel
compliance with a court order. Id. at 12–13; McPherson, 2005 WL 3479630, at *4.
Although criminal contempt is “not enough of a crime” to require that a party
receives all of the constitutional protections afforded to a criminal defendant (such as a
trial by jury or formal indictment), certain safeguards must be observed. Moody, 159
S.W.3d at 27 (citing State v. Wood, 91 S.W.3d 769, 773 (Tenn. Ct. App. 2002)). Unless
the contemptuous action occurs in the presence of the court, proper notice of the alleged
contempt is one of those required safeguards. See Long, 221 S.W.3d at 13; Moody, 159
S.W.3d at 27. Rule 42(b) of the Tennessee Rules of Criminal Procedure, details the
notice required, stating:
(b) Disposition on Notice and Hearing. A criminal contempt shall be
initiated on notice, except as provided in subdivision (a) of this rule.
(1) Content of Notice. The criminal contempt notice shall:
(A) state the time and place of the hearing;
(B) allow the alleged contemner a reasonable time to prepare
a defense; and
(C) state the essential facts constituting the criminal contempt
charged and describe it as such.
(2) Form of Notice. The judge shall give the notice orally in open
court in the presence of the alleged contemner or by written
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order, including an arrest order if warranted.
Tenn. R. Crim. P. 42(b).
Respondent does not appear to argue that the notice he received failed to comply
with the requirements of Rule 42(b)(1)(A) or (B). Therefore, we shall not address those
requirements as they are applied in this case. Rule 42(b)(1)(C) states the content of
notice in a criminal contempt case must “state the essential facts constituting the criminal
contempt charged and describe it as such.” Tenn. R. Crim. P. 42(b)(1)(C). Notice may
be given by a judge orally in open court with the contemner present or by written order.
Tenn. R. Crim. P. 42(b)(2). The “essential facts” to be included must: “(1) allow the
accused to glean that he or she is being charged with a crime, rather than being sued by
an individual, (2) enable the accused to understand that the object of the charge is
punishment . . ., and (3) sufficiently aid the accused to determine the nature of the
accusation.” Long, 221 S.W. 3d at 13–14. “Because the same conduct can constitute
both civil contempt and criminal contempt and because both contempt proceedings may
carry with them the possibility of incarceration, it is imperative that notice specifically
charge a party with criminal contempt.” Id. at 13 (citing Jones v. Jones, No. 01A01-
9607-CV-00346, 1997 WL 80029, at *3–4 (Tenn. Ct. App. Feb. 26, 1997)). As a general
principle, “every citizen, however unlearned in the law, by mere inspection of the papers
in contempt proceedings ought to be able to see whether it was instituted for private
litigation or for public prosecution.” Moody, 159 S.W.3d at 27 (quoting Gompers v.
Buck’s Stove & Range Co., 221 U.S. 418, 446 (1911)).
In this case, both of Petitioner’s motions for a show cause order included
statements of facts that detailed the alleged events giving rise to the motions. The second
motion listed two distinct events as separate violations of the ex parte order. Each motion
was accompanied by a fiat, issued by the clerk of the court. The trial court granted both
motions, and Respondent was served with the two show cause orders and their
accompanying motions.
Even as a lay person, there were several instances that should have put Respondent
on notice that he faced criminal contempt charges, which may result in being
incarcerated. Served near the inception of this case, the ex parte order itself states, “If
[Respondent] do[es] not obey all orders on this form, [he] may be fined and sent to jail,
for 10 days for each and every violation (criminal contempt of court).” The fiats that
accompanied Petitioner’s show cause motions included many of the notice requirements.
Substantively, other than the dates they were issued, the fiats were identical. Both had a
“checked box” for criminal contempt followed by the statement, “Each offense of
criminal contempt proved beyond a reasonable doubt is punishable by ten (10) days in
jail and/or a $50 fine.” Both fiats also contained a section titled “Notice to Respondent”
that detailed the notice requirements of Rule 42(b). The “Notice to Respondent” section
also included a notice detailing Respondent’s right to counsel and how to obtain a court-
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appointed attorney if he could not afford one. Along with Petitioner’s motions and the
accompanying fiats, Respondent was served with the trial court’s orders to show cause on
May 23 and May 28, 2019. Neither order included the label “criminal contempt” in any
caption or direction. Instead, both orders directed Respondent to the attached fiats for
him to show cause, if any, on why he should not be found in contempt.
At the initial hearing on May 23, 2019, the trial court advised Respondent of his
right to counsel and his right against self-incrimination. The court repeated these rights
at the show cause hearing on July 2, 2019. At the later hearing, the court ensured
Respondent was aware that Petitioner must prove his allegations beyond a reasonable
doubt, “the criminal burden of proof;” and that Respondent is presumed innocent until
proven guilty. At both hearings, the court also ensured Respondent was aware that he
could be incarcerated for up to ten days and fined $50 for each violation Petitioner proves
beyond a reasonable doubt.
After a careful review of the record, we find Respondent received adequate notice
that he was being charged with criminal contempt. Both motions, the accompanying
fiats, and the court’s oral statements on May 23, 2019 and July 2, 2019 provided
Respondent with the “essential facts” required under Rule 42(b). See Long, 221 S.W.3d
at 13–14. The fiats and the court’s statements sufficiently indicated the charges involved
possible incarceration as a punitive measure. See id. at 12; McPherson, 2005 WL
3479630, at *4. Neither the pleadings, the fiats, nor the court’s statements stated that
Respondent would be “freed” from incarceration by compliance with the ex parte order.
See Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000) (stating “a party who is in criminal
contempt cannot be freed by eventual compliance”). On these facts, even a citizen who is
“unlearned in the law” would understand the proceedings to be “for public prosecution”
rather than “private litigation.” Moody, 159 S.W.3d at 27 (quoting Gompers, 221 U.S. at
446).7
Unlike the contempt petitions in Storey v. Storey, 835 S.W.2d 593, 600 (Tenn. Ct.
App. 1992), where there was no designation that the contempt was criminal, here, the
fiats clearly marked criminal contempt. In McPherson v. McPherson, the criminal
contempt charge was vacated for insufficient notice, in part, because the accused was not
informed of certain Fifth Amendment privileges. See McPherson, 2005 WL 3479630, at
*5. The same cannot be said in this case. Similar cases where contempt charges were
dismissed on appeal are likewise off-base.
In Brown v. Batey, No. M2009-02020-COA-R3-JV, 2010 WL 3155189 (Tenn. Ct.
7
We acknowledge that both show cause orders included a caption that stated, “Show Cause Civil
Action.” The caption was apparently in reference to the fact that this was a criminal contempt proceeding
arising out of a civil action. Given the clarity of notice given to Respondent elsewhere, we cannot say
Respondent received insufficient notice that he faced criminal contempt charges.
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App. Aug. 9, 2010), a father was found in criminal contempt for failing to make child
support payments. Id. at *1. On appeal, this Court vacated the charges due to a lack of
notice that clearly indicated the dates of the alleged acts or the number of charges the
father faced. Id. at *5–6. In the present case, Petitioner’s motions clearly indicated the
alleged events occurred on May 9, 13, and 15, 2019, as three separate charges.
Respondent also cites McLean v. McLean, No. E2008-02796-COA-R3-CV, 2010
WL 2160752 (Tenn. Ct. App. May 28, 2010), in support of vacating the criminal
contempt charges. In McLean, the accused was unaware she faced possible incarceration
until after a hearing had already commenced. Id. at *2, *5–6. On appeal, this Court
found the party was given inadequate notice that she faced possible incarceration, stating
“Penalties for criminal contempt cannot be imposed on someone who has not been
afforded the protections that the state and federal constitutions require in criminal
proceedings.” Id. at *6. In contrast, in the present case, Respondent received these
protections and notices on several occasions, in written and oral form, before the
contempt proceedings commenced.
McClain v. McClain, 539 S.W.3d 170 (Tenn. Ct. App. 2017), also presents
differing facts. The motion for contempt in McClain did not list separate charges for
criminal contempt, did not “specify which type of contempt” was being charged, and
“appeared to confuse civil and criminal contempt throughout the motion.” Id. at 220–21.
The trial court also failed to provided oral notice that the accused faced potential jail
time. Id. at 221. As we have discussed at length, these notices were given in the present
case in both oral and written form.
We find the facts of this case to be more inline with Jarrell v. Jarrell, No. W2011-
00578-COA-R3-CV, 2012 WL 1066398 (Tenn. Ct. App. Mar. 28, 2012), and In re
C.C.S., No. M2007-00842-COA-R3-JV, 2008 WL 5204428 (Tenn. Ct. App. Dec. 11,
2008). In Jarrell, a fiat accompanied the petition for contempt. Jarrell, 2012 WL
1066398, at *8. Between the petition and the fiat, the accused was informed of the rights
she would be afforded; the time and place of the contempt hearing; the possibility of
incarceration; and “the essential facts of the charge.” Id. As a result, this Court found the
accused received sufficient notice under Tennessee Rule of Criminal Procedure 42(b).
Id. The mother in In re C.C.S. also received sufficient notice of criminal contempt
charges “[e]ven though the contempt was classified as criminal only once.” In re C.C.S.,
2008 WL 5204428, at *6 (emphasis added). The designation of criminal contempt
combined with written notice that the mother “[could] be jailed for 10 days for any
violations, . . . could only mean that any finding of contempt pursuant to that section
would be criminal.” Id. As a result, this Court found mother was given proper notice of
contempt proceedings. Id. at *5.
Like the parties in Jarrell and In re C.C.S., Respondent received sufficient notice
under Rule 42(b). Petitioner’s motions, the fiats, and the oral statements of the trial court
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provided Respondent with both oral and written notice of the criminal contempt charges.
Such notice met the requirements of Tennessee Rule of Criminal Procedure 42(b) and its
accompanying case law. Further, Respondent received written and oral warnings that he
could face up to ten days of incarceration for each offense, and Petitioner’s motions listed
three separate events on different dates as alleged violations. Petitioner’s motions clearly
dated and described three alleged instances of contempt with distinguishable facts.
Therefore, we find that Respondent received sufficient notice that he faced a potential of
30 days of incarceration.
Based on the foregoing discussion, we find Respondent received proper notice for
three counts of criminal contempt for violating the ex parte order. With no issue being
raised by Respondent as to the trial court’s factual findings, we affirm Respondent’s
sentence of 30 days of incarceration for his three violations of said order.
V. CONCLUSION
Federal law does not preempt the subject matter of this case. Meaning, the trial
court had the authority to issue and rule on the ex parte order and any violations thereof.
Additionally, Respondent had sufficient notice that he faced three separate charges for
criminal contempt. We affirm the trial court and remand for further proceedings as may
be necessary. Costs of this appeal are taxed to appellant, Michael Mgridichian, for which
execution may issue if necessary.
CARMA DENNIS MCGEE, JUDGE
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