Kisha Dean Trezevant v. Stanley H. Trezevant, III ( 2024 )

10/02/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 8, 2024
KISHA DEAN TREZEVANT v. STANLEY H. TREZEVANT, III
Appeal from the Circuit Court for Shelby County
No. CT-003516-13 Mary L. Wagner, Judge
___________________________________
No. W2023-00682-COA-R3-CV
___________________________________
This is a post-divorce criminal contempt case. The trial court found Appellant guilty of
four counts of criminal contempt based on Appellant’s violations of the trial court’s order.
Discerning no error, we affirm.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and W. NEAL MCBRAYER, J., joined.
Stevan L. Black and Vickie Hardy Jones, Memphis, Tennessee, for the appellant, Stanley
H. Trezevant, III.
Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellee, Kisha
Dean Trezevant.
OPINION
I. Background
This case comes to us on remand from the Tennessee Supreme Court. Trezevant v.
Trezevant, No. W2023-00682-SC-R11-CV, 2024 WL 3407466 (Tenn. July 8, 2024)
(“Trezevant SCt”). In Trezevant v. Trezevant, No. W2023-00682-COA-R3-CV, 2024 WL
980755 (Tenn. Ct. App. Mar. 7, 2024), which was the third appeal in the case, we dismissed
the appeal because Husband failed to properly designate his issues in the “Statement of the
Issues” section of his brief, which omission we held was in violation of Rule 27(a)(4) of
the Tennessee Rules of Appellate Procedure. Trezevant, 2024 WL 980755, at *3-5. By
per curiam order, the Tennessee Supreme Court remanded the case to us with instructions
to consider the parties’ substantive arguments. Trezevant SCt, 2024 WL 3407466, at *3.
To that end, and in the interest of consistency, we restate the factual background as set out
in our previous opinion. Trezevant, 2024 WL 980755, at *1-3.1
This is the third appeal in this divorce case that has been pending for over ten years.
See Trezevant v. Trezevant, No. W2021-01153-COA-R3-CV, 2024 WL 352896 (Tenn. Ct.
App. Jan. 31, 2024) (“Trezevant II”); Trezevant v. Trezevant, 568 S.W.3d 595 (Tenn. Ct.
App. 2018) (“Trezevant I”). In the interest of judicial economy, we will discuss only those
facts and proceedings that are relevant to this appeal.
Appellant Stanley Trezevant (“Husband”) and Appellee Kisha Trezevant (“Wife”)
were married in September 1990. Trezevant I, 568 S.W.3d at 603. In August 2013, Wife
filed a complaint for divorce in the Shelby County Circuit Court (“trial court”). Id. On
March 1, 2017, the trial court entered the final decree of divorce, which was appealed to
this Court. Id. at 604. In Trezevant I, this Court reviewed the trial court’s: (1)
identification, classification, valuation, and division of marital property; (2) conclusion that
Husband dissipated marital assets during the divorce; and (3) conclusion that Husband
should have been held in criminal contempt and sentenced to jail for same. On appeal, we
affirmed the trial court’s identification and classification of marital property and its
conclusion that Husband dissipated marital assets. Id. at 641. We also affirmed the trial
court’s order holding Husband in criminal contempt. Id. We vacated the trial court’s
valuation and division of marital property as well as Wife’s alimony awards and remanded
the case to the trial court. Id.Following this Court’s remand, on January 5, 2021, the trial court entered its
findings of facts and conclusions of law. See Trezevant II, 2024 WL 352896, at *4.
Therein, the trial court made extensive findings of fact before dividing the marital estate
between the parties. Part of the trial court’s division included awarding Wife the “Cayman
Island Properties” and the bank accounts associated with those properties. Pertinent to this
appeal, the trial court ordered:
5. With regards to bank accounts associated with the Cayman Island
[P]roperties, Husband shall not close the accounts, but instead shall add Wife
as an owner to said account within fifteen (15) days of this Order. Husband
shall not make any further withdrawals from the bank accounts associated
with these properties. Thereafter, Wife, as an owner, shall have the authority
to remove Husband from said bank accounts. Husband shall ensure that
Seven Mile Beach Account ending in #10621 has a balance of at least
$183,350.12. If it does not, Husband shall provide an accounting, including
1
The Tennessee Supreme Court did not disturb this Court’s recitation of the facts and procedural history.
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supporting documentation, of all transactions within this account since
August 31, 2020. Said accounting shall be provided within thirty (30) days
of this Order. Any withdrawals for expenses other than reasonable and
necessary business expenses shall be reimbursed to Wife by Husband within
forty-five (45) days of this Order.
Following entry of the January 5, 2021 order, both parties filed motions to alter or amend.
On September 1, 2021, the trial court entered an order on the respective motions. On
December 15, 2021, the trial court entered its amended findings of facts and conclusions
of law that modified a portion of its previous order that is unrelated to this appeal.
On September 30, 2021, Wife filed a petition for mandatory injunctive relief and
for civil and criminal contempt (“Original Contempt Petition”). Therein, Wife alleged that
Husband falsely claimed that he sold the Cayman Island Properties, which had been
awarded to Wife. Wife asked the trial court to enjoin Husband from transferring, selling,
or otherwise encumbering the properties that were awarded to her. To the extent Husband
completed any transfers of the Cayman Island Properties, Wife asserted that Husband acted
in knowing and willful violation of the January 5, 2021 findings of fact and conclusions of
law. Thus, Wife asked the trial court to hold Husband in willful civil and criminal contempt
of that order.
On February 3, 2022, Wife filed an amended petition for civil and criminal contempt
(“Amended Contempt Petition”). Therein, Wife alleged, in pertinent part:
17. Husband has flagrantly violated each and every substantive tenant of
Paragraph five (5) of the Ordering Section [of the January 5, 2021 findings
of fact and conclusions of law]. To wit:
A. Husband has failed and refused to add Wife as an owner to
any of the Cayman Island bank accounts; this includes Cayman
National Bank Account ending #10621 . . . ;
B. Husband has closed the Cayman National Bank Account
ending in #10621;
C. Husband has made withdrawals from Cayman National
Bank Account ending in #10621. . . ;
D. Since Account #10621 has been closed by Husband in
violation of [the trial court’s order]; said account has no
balance, which is obviously less than $183,350.12. Husband
has failed and refused to provide an accounting, including
supporting documentation, of all transactions within this
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account since August 31, 2020. Said accounting was to have
been provided within thirty (30) days of January 5, 2021.
E. Husband has also failed and refused to reimburse Wife for
at least $183,350.12. He has also failed to reimburse Wife for
any other non-business expenses from [this] Account within
forty-five (45) days of [the] Order. In fact, by failing and
refusing to provide Wife with the statements and the full
accounting, Husband has deprived Wife entirely of the ability
to determine what additional reimbursements are owed.
(Emphasis in original). Wife alleged these actions constituted a knowing and willful
violation of the trial court’s January 5, 2021 findings of fact and conclusions of law and
asked the trial court to hold Husband in willful civil and criminal contempt.
On March 14, 2022, Husband filed a motion to bifurcate and for more definite
statement asking Wife to clarify which counts in her petitions were criminal and which
counts were civil. On April 1, 2022, Wife filed a response to Husband’s motion and
clarified that she was proceeding with criminal contempt charges against him for his: (1)
failure to add Wife’s name to account #10621; (2) closing of account #10621; and (3) non-
business withdrawals from account #10621. On April 6, 2022, the trial court heard
Husband’s motion for a more definite statement. During that hearing, Husband’s counsel
stated that Wife’s response set forth how she was “going to proceed . . . in the way of
criminal contempt, so we now know the answer to our question, so we’re in a position, as
it relates to that issue, to proceed.” On April 14, 2022, Husband filed an answer to the
Amended Contempt Petition.
On November 3, 2022, the trial court entered a consent order setting for trial, inter
alia, Wife’s Original and Amended Contempt Petitions. In this order, the trial court found
that Husband, “in lieu of a formal arraignment, enter[ed] a plea of not guilty and waive[d]
a formal reading of the charges against him.”
Three days before trial, Husband filed an amended and supplemental answer to the
Amended Contempt Petition. On March 20, 2023, the trial court heard Wife’s criminal
contempt petitions. After close of Wife’s proof, Husband made an oral motion for
judgment of acquittal arguing that Wife failed to provide proper notice of the charges
against him in the petitions for contempt. Husband also argued that Wife failed to initiate
her contempt claims within the statute of limitations. On March 21, 2023, Husband filed
a written motion for judgment of acquittal arguing these same issues.
On April 11, 2023, the trial court entered its order on Wife’s criminal contempt
petitions. Relevant here, the trial court found that the Amended Contempt Petition was not
barred by the statute of limitations because it related back to her Original Contempt
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Petition. The trial court also found that Husband not only received sufficient notice of the
charges against him, but he knowingly waived his right to contest them. As to the criminal
contempt charges, the trial court found Husband in contempt for: (1) failing to add Wife’s
name to Cayman National Bank Account #10621; (2) closing Cayman National Bank
Account #10621; and (3) making three withdrawals from Cayman National Bank Account
#10621. Based on the foregoing, the trial court sentenced Husband to forty (40)
consecutive days of incarceration. The trial court stayed the sentence pending this appeal,
after Husband posted a $40,000.00 cash bond and surrendered his passport. Husband filed
a timely appeal.
II. Issues
Husband raises four issues for review, as stated in his brief:
1. Whether the trial court erred in finding Husband guilty of criminal contempt
for his alleged failure to add Wife’s name to and closing Cayman National
Bank account #10621 in the name of Seven Mile Beach Hotel Development
Corp., Ltd.?
2. Whether the trial court erred in finding Husband guilty of criminal contempt
for withdrawing the sum of $194,428.04 from Cayman National Bank
account #10621 on January 22, 2021?
3. Whether the trial court erred in finding Husband guilty of criminal contempt
for withdrawing the sum of $36,606.50 from Cayman National Bank account
#10621 on January 28, 2021?
4. Whether the trial court erred in finding Husband guilty of criminal contempt
for withdrawing the sum of $4,202.40 from Cayman National Bank account
#10621 on January 22, 2021?
Wife raises the additional issue: “Is there a statute of limitations to act upon a domestic
relations decree?”
III. Standard of Review
We review a non-jury case “de novo upon the record with a presumption of
correctness as to the findings of fact, unless the preponderance of the evidence is
otherwise.” Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000) (citing Tenn. R. App. P.
13(d)). The trial court’s conclusions of law are reviewed de novo and “are accorded no
presumption of correctness.” Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d
638, 642 (Tenn. 2008). Because statutory interpretation is a question of law, we also
review the trial court’s interpretation of any statute de novo with no presumption of
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correctness. In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009).
IV. Analysis
Husband argues that the trial court erred in finding him guilty of four counts of
criminal contempt. In its per curiam order, the Tennessee Supreme Court instructed this
Court to consider the sub-argument headings in Husband’s appellate brief to determine the
exact issues he has presented for our review. Having done so, we deduce that Husband’s
issues are: (1) whether the trial court incorrectly held that charges raised for the first time
in Wife’s Amended Contempt Petition “related back” to the date of the filing of the
Original Contempt Petition; (2) whether there is a one-year statute of limitations that
applies to misdemeanor prosecutions that the trial court should have applied to Wife’s
criminal contempt charges; (3) whether Wife’s prosecution against Husband commenced
before the one-year statute of limitations ran; (4) whether the one-year statute of limitations
was tolled; (5) whether the one-year statute of limitations was waived; and (6) whether the
charging instrument provided Husband with proper notice of the charges against him. In
his reply brief, Husband explicitly states that “[t]here is no issue pertaining to the
sufficiency of the evidence in this criminal contempt matter.” Accordingly, evidentiary
issues are not before this Court.
A. Nature of Contempt Proceedings
Before turning to the substantive arguments, we review the characteristics of
contempt actions as well as the similarities and differences between civil and criminal
contempt. Contempt proceedings are unique and incidental to the case out of which they
arise. Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 474 (Tenn. 2003). Under
Tennessee Code Annotated section 29-9-102, our courts hold the power to inflict
punishments for contempt of court when, inter alia, a party willfully disobeys or resists
any order, rule, or decree of the court. Tenn. Code Ann. § 29-9-102(3). Contempt is not
defined as a criminal offense under section 29-9-102. Furthermore, while contempt
proceedings are generally classified as “civil” or “criminal,” they “are neither wholly civil
nor criminal in nature and may partake of the characteristics of both.” Baker v. State, 417
S.W.3d 428, 435 (Tenn. 2013). Although our courts have the authority to punish both
types of contempt with either a fine, a period of confinement, or both, see Tenn. Code.
Ann. §§ 29-9-103, 104, whether a contempt proceeding is civil or criminal is determined
by its character and purpose. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441
(1911).
Civil contempt is remedial and “brought to force compliance with the order and
thereby secure private rights established by the order.” Baker, 417 S.W.3d at 436 (citing
Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 510 (Tenn.
2005)). Accordingly, “[w]hen a trial court orders imprisonment after finding civil
contempt, the confinement is remedial and coercive in nature, designed to compel the
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contemnor to comply with the court’s order.” Baker, 417 S.W.3d at 436. Thus, if a
contemnor complies with the order, he or she will be immediately released from
confinement. Id. (citing Overnite Transp. Co., 172 S.W.3d at 511).
As for criminal contempt, the Tennessee Supreme Court has explained that,
[t]hough criminal contempt has been regarded as a “crime” for some
purposes, see Black [v. Blount, 938 S.W.2d 394, 402 (Tenn. 1996)], criminal
contempt proceedings
are not intended to punish conduct proscribed as harmful by
the general criminal laws. Rather, they are designed to serve
the limited purpose of vindicating the authority of the court. In
punishing contempt, the Judiciary is sanctioning conduct that
violates specific duties imposed by the court itself, arising
directly from the parties’ participation in judicial proceedings.
Id. (quoting Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.
787, 800 [] (1987)).
Baker, 417 S.W.3d at 438. Indeed, sanctions for criminal contempt are “both punitive and
unconditional in nature, designed to punish past behavior, not to coerce directly compliance
with a court order or influence future behavior.” Id. at 436. Accordingly, even if a
contemnor complies with the order, he or she “cannot shorten the term [of confinement]
by agreeing not to continue in the behavior that resulted in [such] confinement.” Id. (citing
Gompers, 221 U.S. at 442).
There are certain substantial rights and constitutional privileges accorded to
criminal defendants that are also afforded to criminal contemnors. These include: (1) the
right to notice and to respond to the allegations against them, Tenn. R. Crim. P. 42(b);
Cooke v. United States, 267 U.S. 517, 537 (1925); State v. Maddux, 571 S.W.2d 819, 821
(Tenn. 1978); (2) the presumption of innocence, to be proven guilty beyond a reasonable
doubt, and that a contemnor cannot be compelled to testify against himself or herself,
Gompers, 221 U.S. at 444; Doe, 104 S.W.3d at 474; State ex rel. Anderson v. Daugherty,
191 S.W. 974, 974 (Tenn. 1917); (3) the right to an attorney and the right to have an
attorney appointed. Cooke, 267 U.S. at 536-37; Cottingham v. Cottingham, 193 S.W.3d
531, 536 (Tenn. 2006); see also Tenn. Sup. Ct. R. 13, § 1 (d)(1)(B); and (4) that the double
jeopardy provisions in the federal and state constitutions apply, Ahern v. Ahern, 15 S.W.3d
73, 80 (Tenn. 2000); Moody v. Hutchison, 159 S.W.3d 15, 27 (Tenn. Ct. App. 2004); State
v. Wood, 91 S.W.3d 769, 773 (Tenn. Ct. App. 2002).
Despite the foregoing, criminal contemnors are not afforded all rights given to
criminal defendants. For example, “[c]ontemnors are not entitled to a jury trial if the
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criminal contempt is not ‘serious’ enough to require the protection of the constitutional
right to a jury trial.” Baker, 417 S.W.3d at 437 (citing Bloom v. Illinois, 391 U.S. 194,
198 (1968)).2 Criminal contempt proceedings also do not require an indictment and
prosecution by the State. Tenn. R. Crim. P. 42; Green v. United States, 356 U.S. 165, 185-
86 (1958), overruled in part on other grounds by Bloom, 391 U.S. at 196 n.1; Wood, 91
S.W.3d at 773 (recognizing that criminal contempt is not initiated by an indictment or
presentment). Indeed, “district attorneys generally do not prosecute criminal contempt
proceedings based on Tennessee Code Annotated section 29-9-102 and have no mandatory
duty to do so.” Baker, 417 S.W.3d at 437 (citing Black, 938 S.W.2d at 402 (“Tennessee
law only requires district attorney generals to conduct prosecutions for ‘conduct proscribed
as harmful by the general criminal laws.’”)). As this Court has explained, “it is quite proper
that the attorney for the opposing party in the underlying litigation pursue the [criminal
contempt] charge.” Long v. McAllister-Long, 221 S.W.3d 1, 7 (Tenn. Ct. App. 2006).
Furthermore, our Tennessee Supreme Court has explained that, under Tennessee Code
Annotated section 29-9-102, “[c]ourts properly ‘find’ or ‘hold’ persons in contempt and
impose ‘sanctions’ or ‘punishment’ for contempt but do not ‘convict’ persons of
contempt.” Baker, 417 S.W.3d at 438 (citing Long, 221 S.W.3d at 12-13). As such, post-
conviction relief “is not available to challenge findings of general criminal contempt
arising from civil cases.” Baker, 417 S.W.3d at 439. “Rather, the Tennessee Rules of
Civil Procedure provide the avenues for seeking relief from judgments in civil cases.” Id.
(citing Tenn. R. Civ. P. 59, 60) (additional citation omitted). This Court has also held that
criminal contempt cases “do not trigger the due process mandates of [Tennessee Rule of
Criminal Procedure] 37(c)(2) or Tennessee Code Annotated Section 40-14-307(a) to
provide the indigent defendant with a verbatim transcript at the State’s expense.” State, ex
rel. Creighton v. Creighton, No. M2010-01171-COA-R3-CV, 2011 WL 1344638, at *8
(Tenn. Ct. App. Apr. 7, 2011).
B. Statute of Limitations
We begin with the question of what, if any, statute of limitations applies in this case.
Husband argues that Tennessee Code Annotated section 40-2-102(a), the statute of
limitations for criminal misdemeanors, applies. Section 40-2-102(a) provides that “. . . all
prosecutions for misdemeanors shall be commenced within the twelve (12) months after
the offense has been committed . . . .” Tenn. Code Ann. § 40-2-102(a). Husband argues
that a charge of criminal contempt equates to a misdemeanor charge under our criminal
2
Our Tennessee Supreme Court has noted that the United States Supreme Court has not expressly defined
what constitutes a “serious contempt.” Baker, 417 S.W.3d at 437. However, the United States Supreme
Court “has repeatedly held that a jury trial is not required if the contempt is punished by confinement of six
months or less.” Id. (citing Taylor v. Hayes, 418 U.S. 488, 496 (1974); Cheff v. Schnackenberg, 384 U.S.
373, 379-80 (1966); cf. Bloom, 391 U.S. at 211; Int’l Union, United Mine Workers of Am. v. Bagwell,
512 U.S. 821, 837-38 (1994)). The Tennessee Supreme Court has explicitly held that a person charged
with criminal contempt under Tennessee Code Annotated section 29-9-102 is not entitled to a jury trial.
Ahern, 15 S.W.3d at 82.
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statutes such that section 40-2-102 applies. In support of his contention, Husband cites
Tennessee Code Annotated section 39-11-110, which provides that “. . . all violations of
law punishable by fine or confinement for less than one (1) year, or both, are denominated
misdemeanors.” Tenn. Code Ann. § 39-11-110. The crux of Husband’s argument is that,
because criminal contempt is punishable by a fine, imprisonment, or both, not to exceed
fifty dollars ($50.00) or ten (10) days, that criminal contempt qualifies as a misdemeanor
offense. See Tenn. Code Ann. § 29-9-103.
Wife disagrees that section 40-2-102(a) governs the statute of limitations in this
case. Rather, she argues that, because the criminal contempt charges arose out of a
domestic relations order, i.e., the January 5, 2021 order dividing the marital estate, that
Tennessee Code Annotated section 28-3-110(e) applies. Section 28-3-110(e) provides that,
“. . . there is no time within which a judgment or decree in a domestic relations matter
issued by a court with domestic relations jurisdiction pursuant to title 36 must be acted
upon, unless otherwise specifically provided for under title 36.” Tenn. Code Ann. § 28-3-
110(e).
It is well-settled that, when applying any statute, a court’s duty is to ascertain and
fully effectuate the “legislative intent [of the statute], taking care not to broaden [it] beyond
its intended scope . . . .” Womack v. Corr. Corp. of Am., 448 S.W.3d 362, 366 (Tenn.
2014) (citing Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 420 (Tenn.
2013); Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009)). As the Tennessee Supreme
Court has explained, “[o]ur analysis naturally begins with the words used in the statute,”
Womack, 448 S.W.3d at 366 (citing Shore, 411 S.W.3d at 420), and we must interpret
those words under their “natural and ordinary meaning in the context in which they appear
and in light of the statute’s general purpose.” Id. (quoting Mills v. Fulmarque, Inc., 360
S.W.3d 362, 368 (Tenn. 2012)).
We turn first to our general contempt statute, Tennessee Code Annotated section
29-9-102, which provides:
The power of the several courts to issue attachments, and inflict punishments
for contempts of court, shall not be construed to extend to any except the
following cases:
(1) The willful misbehavior of any person in the presence of
the court, or so near thereto as to obstruct the
administration of justice;
(2) The willful misbehavior of any of the officers of such
courts, in their official transactions;
(3) The willful disobedience or resistance of any officer of the
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such courts, party, juror, witness, or any other person, to
any lawful writ, process, order, rule, decree, or command
of such courts;
(4) Abuse of, or unlawful interference with, the process or
proceedings of the court;
(5) Willfully conversing with jurors in relation to the merits of
the cause in the trial of which they are engaged, or
otherwise tampering with them; or
(6) Any other act or omission declared a contempt by law.
Tenn. Code Ann. § 29-9-102. As shown above, the language used in each subsection
provides that courts may hold persons in contempt when they behave in such a way as to
obstruct the administration of justice. Importantly, there is no language in the above
statute to show that the Legislature intended for courts to hold persons in contempt for
violations of the general criminal laws. Indeed, our courts have long held that the purpose
of criminal contempt proceedings is not to punish a contemnor “for conduct proscribed as
harmful by the general criminal laws,” Baker, 417 S.W.3d at 437 (quoting Black, 938
S.W.2d at 402), but to vindicate the authority of our courts for a contemnor’s bad conduct
“arising directly from the parties’ participation in judicial proceedings.” Id. (emphases
added); see also Ahern, 15 S.W.3d at 82. This distinction is important because section 39-
11-110, on which Husband relies, applies only to “violations of law.” Because a
contemnor’s contemptuous conduct is not a “violation of law,” but rather an obstruction of
the administration of justice, Tennessee Code Annotated section 39-11-110 does not apply
to criminal contempt actions.3 See also Brown v. Latham, No. 01-A-01-9401-CV00008,
1994 WL 570102, at *1 (Tenn. Ct. App. Oct. 19, 1994), aff’d, 914 S.W.2d 887 (Tenn.
1996) (quoting State v. Howell, 69 A. 1057, 1058 (Conn. 1908) (“Although criminal
contempt is a crime, for constitutional purposes, it is not the same as a violation of the
criminal law . . . . ‘The proceeding in contempt is for an offense against the court as an
organ of public justice, and not for a violation of the criminal law.’”)). Indeed, criminal
contempt charges should not be treated as misdemeanors under section 39-11-110.4 Thus,
the statute of limitations governing misdemeanors does not apply here. See Tenn. Code
Ann. § 40-2-102(a).5
3
We note that, by Husband’s logic, a civil contempt charge would equate to a misdemeanor charge as it is
also punishable by a fine, imprisonment or both. Allowing for such proposition would be contrary to the
well-established law on contempt, discussed supra.
4
Similarly, in State v. Wood, this Court held that, because criminal contempt proceedings “are not fully
criminal,” such proceedings did not fall under Tennessee Code Annotated section 27-3-131 or Tennessee
Rule of Criminal Procedure 5(c)(2), “which provide for misdemeanor appeals from the general sessions
court to circuit or criminal court.” 91 S.W.3d 769, 773 (Tenn. Ct. App. 2002).
5
This Court is cognizant of a line of older United States Supreme Court cases stating that “criminal
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Tennessee Code Annotated section 40-2-104 reinforces the inapplicability of
sections 39-11-110 and 40-2-102(a) to criminal contempt charges. As noted above, section
40-2-102(a) provides that “all prosecutions for misdemeanors shall be commenced within
the twelve (12) months after the offense has been committed.” Tenn. Code Ann. § 40-2-
102(a). Section 40-2-104 provides for how a prosecution for a misdemeanor is commenced
within the meaning of the applicable chapter, to-wit: (1) by finding an indictment or
presentment; (2) the issuing of a warrant; (3) the issuing of a juvenile petition alleging a
delinquent act; (4) binding over the offender; (5) by the filing of an information as provided
for in chapter 3; or (6) by making an appearance in person or through counsel in general
sessions or any municipal court for the purpose of continuing the matter or any other
appearance in either court for any purpose involving the offense. Tenn. Code Ann. § 40-
2-104. The statute further provides that “[a] prosecution is also commenced . . . by finding
an indictment or presentment or the issuing of a warrant identifying the offender by a
deoxyribonucleic acid (DNA) profile.” Tenn. Code Ann. § 40-2-104. None of the
foregoing methods commence a criminal contempt proceeding under Tennessee Code
Annotated section 29-9-102. Rather, a criminal contempt proceeding is often initiated
either on the court’s own motion or with the filing of a contempt petition by a private party.
See Baker, 417 S.W.3d at 437; Wilson v. Wilson, 984 S.W.2d 898, 905 (Tenn. 1998)
(“Under [Tennessee Rule of Criminal Procedure 42(b)], a contempt action can not proceed
unless the trial court issues an order to show cause after reviewing a written application of
the private attorney.”).6
contempt is a crime in the ordinary sense [and that] convictions for criminal contempt are indistinguishable
from ordinary criminal convictions[.]” Bloom, 391 U.S. at 201; see also Gompers, 233 U.S. at 610 (“These
contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are
in error as to the most fundamental characteristic of crimes as that word has been understood in English
speech.”). Importantly, these cases compared criminal contempt cases to criminal cases and found them
indistinguishable for due process purposes. The United States Supreme Court has since clarified that “[t]he
fact that [the Court has] come to regard criminal contempt as ‘a crime in the ordinary sense,’ Bloom, supra,
391 U.S., at 201, [] does not mean that any prosecution of contempt must now be considered an execution
of the criminal law[.]” Young, 481 U.S. at 799-800. The United States Supreme Court’s “insistence on
the criminal character of contempt prosecutions has been intended to rebut earlier characterizations of such
actions as undeserving of the protections normally provided in criminal proceedings.” Id. at 800 (citing In
re Debs, 158 U.S. 564, 596 (1895) (no jury trial in criminal contempt actions because a court in such a case
is ‘only securing to suitors the rights which it has adjudged them entitled to’)). Importantly, the United
States Supreme Court has explained “[t]hat [simply because] criminal procedure protections are now
required in such prosecutions should not obscure the fact that these proceedings are not intended to punish
conduct proscribed as harmful by the general criminal laws.” Young, 481 U.S. at 800. As discussed at
length, supra, Tennessee jurisprudence on criminal contempt actions aligns with the United States Supreme
Court’s jurisprudence on same. Indeed, the Tennessee Supreme Court has explained that contempt
proceedings are “sui generis,” unique and in a class of their own, and that “[c]riminal contempt is often
regarded as a ‘crime’ because certain substantial rights and constitutional privileges afforded criminal
defendants are also afforded criminal contemnors.” Baker, 417 S.W.3d at 436 (emphasis added).
6
In Wilson, the Tennessee Supreme Court also held “that the provisions of [Tennessee Rule of Civil
Procedure 11] apply to the written applications which attorneys must file with the trial court to institute
- 11 -
If the Legislature intended for criminal contempt charges to be classified and treated
as substantive criminal offenses, it would have enacted a statute to reflect that intent—as
it has done before. The Tennessee Supreme Court has explained that some statutes
“defin[e] certain types of contemptuous conduct as substantive criminal offenses.” Baker,
417 S.W.3d at 437 n.8 (emphasis added). In Brown v. Latham, the Tennessee Supreme
Court held that Tennessee Code Annotated section 36-5-104(a) “define[d] a criminal
offense” and that the respondents were entitled to jury trials for their alleged violation of
said statute. 914 S.W.2d 887, 888 (Tenn. 1996). Section 36-5-104(a) provides that any
person who fails to comply with a child support order “may, in the discretion of the court,
be punished by imprisonment in the county workhouse or county jail for a period not to
exceed six (6) months.” Tenn. Code Ann. § 36-5-104(a). The Brown Court held:
The statute [(section 36-5-104(a))] states the essential indicia of a criminal
offense. Its violation is not declared to be a contempt as contemplated by
[Tennessee Code Annotated section] 29-9-102[]. Its stated purpose is not to
compel performance but to punish for non-performance by imprisonment for
a definite period of time. The language of subsection (b), “[n]o arrest warrant
shall issue” under certain conditions, indicates a criminal proceeding. The
penalty imposed, imprisonment for a period of time not to exceed six months,
conforms with the definition of a misdemeanor stated in [Tennessee Code
Annotated section] 39-11-110[], which provides, “. . . all violations of law
punishable by fine or confinement for less than one (1) year, or both, are
denominated misdemeanors.” The punishment authorized far exceeds the
$50 fine and ten days imprisonment provided in [Tennessee Code Annotated
sections] 29-9-102, 103, which are the sanctions traditionally utilized to
vindicate the authority of the courts. Therefore, the violation of [Tennessee
Code Annotated section] 36-5-104(a) is a criminal offense, in a proceeding
in which the respondent upon a finding of guilty may be imprisoned for a
definite period not exceeding six months.
Brown, 914 S.W.2d at 888-89. In distinguishing sections 29-9-102 and 103 from section
39-11-110, the Brown Court necessarily implied that contempt proceedings brought under
sections 29-9-102 and 103 are not criminal offenses. The Tennessee Supreme Court
reiterated its Brown holding in Ahern, to-wit:
Unlike [Tennessee Code Annotated section] 36-5-104(a), contempt
provisions of [Tennessee Code Annotated section] 29-9-102 are used to
vindicate the authority of the courts either by punishment or by forcing
compliance. Brown, 914 S.W.2d at 888. The “offenses” enumerated in
[Tennessee Code Annotated section] 29-9-102 are willful affronts to the
contempt proceedings.” Wilson, 984 S.W.2d at 905.
- 12 -
court and include the willful misbehavior of an individual in the court’s
presence, the willful disobedience of an individual to a court order, abuse of
or unlawful interference with the court proceedings, and jury tampering.
Regardless of the form of the remedy or punishment, it is the court and its
administration of justice that are offended by an act of contempt.
15 S.W.3d at 82. More recently, in Baker, the Tennessee Supreme Court recognized that
the Legislature defined a defendant’s violation of an order of protection as contemptuous
conduct that was also a substantive criminal offense. Baker, 417 S.W.3d at 437 n.8 (citing
Tenn. Code Ann. § 36-3-610(a)).7 The Tennessee Supreme Court went on to explain that
“conduct qualifying as contempt under these provisions constitutes a violation of the
general criminal laws[.]” Baker, 417 S.W.3d at 437 n.8. The Baker Court also explained
that “the Legislature has enacted statutes defining jury tampering and failure to appear as
criminal offenses . . . even though this conduct is also subject to general contempt
provisions.” Id. at 439 (citing Tenn. Code Ann. §§ 39-16-509, -609, 29-9-102(3), (5)). On
this Court’s review, the Legislature has not enacted a statute making a contemnor’s
violation of a domestic relations decree a substantive criminal offense, and we decline to
interpret Tennessee Code Annotated section 29-9-102 so broadly.8 Womack., 448 S.W.3d
at 366.
We emphasize that our holding does not negate our current jurisprudence that
“[c]riminal contempt is often regarded as a ‘crime’ because certain substantial rights and
constitutional privileges afforded criminal defendants are also afforded criminal
contemnors.” Baker, 417 S.W.3d at 436 (emphasis added). As discussed at length, supra,
there are several circumstances where a criminal contemnor is afforded the same rights and
privileges as criminal defendants. This Court has even extended such rights to persons
whose criminal contempt allegations have been dismissed and have held that the public
records of the criminal contempt proceeding should be expunged. See generally Robinson
v. Fulliton, 140 S.W.3d 304 (Tenn. Ct. App. 2003).9 This Opinion does not disturb those
7
In pertinent part, Tennessee Code Annotated section 36-3-610(a) provides that when a “defendant”
violates an order of protection or a court-approved consent agreement, “the court may hold the defendant
in civil or criminal contempt and punish the defendant in accordance with the law.” Tenn. Code Ann. §
36-3-610(a) (emphasis added).
8
Child support orders are often found in domestic relations decrees. We caution practitioners and trial
courts to be mindful of both statutes when bringing and/or deciding criminal contempt allegations related
to child support orders. See Ahern, 15 S.W.3d at 80 (where the Tennessee Supreme Court reversed the
trial court when the trial court found father in criminal contempt for failure to pay child support under
Tennessee Code Annotated section 29-9-102(3) but sentenced him to six months in jail, the remedy found
under Tennessee Code Annotated section 36-5-104).
9
Husband relies heavily on Robinson for his argument that the misdemeanor statute of limitations should
apply to criminal contempt actions. For completeness, we note that Robinson was decided in 2003. Ten
years later, the Tennessee Supreme Court decided Baker v. State, which continued to clarify the law
concerning criminal contempt actions, discussed at length, supra. We believe the analysis applied in this
opinion is most in line with the Tennessee Supreme Court’s decision in Baker. 417 S.W.3d 428.
- 13 -
conclusions.10
Having determined that the statute of limitations for criminal misdemeanors does
not apply, we turn to Wife’s argument that the statute of limitations for domestic relations
decrees applies. Tennessee Code Annotated section 28-3-110(e) provides:
Notwithstanding subsection (a), there is no time within which a judgment
or decree in a domestic relations matter issued by a court with domestic
relations jurisdiction pursuant to title 36 must be acted upon, unless
otherwise specifically provided for under title 36.
Tenn. Code Ann. § 28-3-110(e) (emphases added). It is undisputed that the criminal
contempt charges at issue in this case arose from a domestic relations decree, i.e., the
January 5, 2021 order dividing the marital property. It is also undisputed that section 28-
3-110(e) applies to civil contempt proceedings filed to enforce domestic relations
judgments and decrees. See Proctor v. Proctor, No. M2018-01757-COA-R3-CV, 2020
WL 2764410 (Tenn. Ct. App. May 27, 2020); Allison v. Hagan, 211 S.W.3d 255 (Tenn.
Ct. App. 2006); Gleason v. Gleason, 164 S.W.3d 588 (Tenn. Ct. App. 2004).11 The parties
disagree concerning whether section 28-3-110(e) applies to criminal contempt petitions as
well.
On appeal, Husband’s sole argument that section 28-3-110(e) applies only to civil
contempt petitions rests on his reading of Tennessee Code Annotated section 28-3-101,
which provides that “[a]ll civil actions . . . shall be commenced after the cause of action
has accrued [] within” the time period prescribed in the statute. Tenn. Code Ann. § 28-3-
101 (emphasis added). Thus, Husband argues that section 28-3-110(e) “is limited to civil
actions and does not apply to criminal contempt matters.” (emphasis omitted). Husband
10
Husband also cites Church of God v. Tomlinson Church of God, 247 S.W.2d 63 (Tenn. 1952) to support
his argument that a one-year statute of limitations applies. Specifically, Husband focuses on the following
portion of the opinion:
It is next insisted that the Chancellor erred in his ruling that defendants cannot be held in
contempt for acts alleged to have been committed more than one year next preceding the
citation to ‘show cause’, etc. We think the Chancellor was correct, on the ground that such
acts are misdemeanors and are barred by the statute of limitations of one year.
Id. at 68. As an initial matter, there is no specific statute cited for the proposition that a one-year statute of
limitations existed. Furthermore, we note that the Tennessee Supreme Court decided Church of God in
1952. Although it has never specifically overruled its opinion, the Court’s more recent opinions, discussed
at length in this Opinion, provide more insight concerning interpretation of criminal contempt cases.
11
We note that when these cases were decided there was a ten-year statute of limitations on domestic
relations decrees and judgments. Effective March 20, 2020, the Legislature amended the statute to provide
that “there is no time within which a judgment or decree in a domestic relations matter . . . must be acted
upon.” Tenn. Code Ann. § 28-3-110(e).
- 14 -
is partially correct. Section 28-3-110(e) is limited to civil actions, but criminal contempt
petitions can be—and often are—brought in civil actions. As discussed above, contempt
proceedings are unique and incidental to the case out of which they arise. Doe, 104
S.W.3d at 474. As such, civil and criminal contempt proceedings may arise out of both
civil and criminal cases. Indeed, the Legislature has explicitly provided that this Court
“has appellate jurisdiction over civil or criminal contempt [proceedings] arising out of a
civil matter.” Tenn. Code Ann. § 16-4-108(b) (emphasis added). Likewise, the Legislature
has explicitly provided that the Court of Criminal Appeals has appellate jurisdiction over
“[c]ivil or criminal contempt [proceedings] arising out of a criminal matter.” Tenn. Code
Ann. § 16-5-108(a)(3) (emphases added). The foregoing language shows that the
Legislature recognizes that civil courts may hear both civil and criminal contempt cases
and that criminal courts may hear both civil and criminal contempt cases. What makes a
case a civil or criminal action in the context of section 28-3-101 is whether the underlying
proceeding, out of which the contempt allegations arose, was a civil or criminal matter.
Here, it is undisputed that Wife’s criminal contempt allegations arose out of the parties’
underlying divorce proceedings, i.e., a civil matter. If they had not, this appeal would not
be before this Court. As such, this contempt proceeding, although one for criminal
contempt, arose out of and is a civil matter. Accordingly, Tennessee Code Annotated
sections 28-3-101 and 28-3-110(e) are applicable here.12 As such, there was no statute of
limitations within which Wife was required to bring her criminal contempt petitions against
Husband.13
Given our conclusions, Husband’s issues concerning whether: (1) the Amended
Contempt Petition “related back” to the Original Contempt Petition’s filing date; (2) the
statute of limitations was tolled; and (3) the statute of limitations was waived, are moot.
Accordingly, we turn to Husband’s final issue, whether he was provided proper notice of
the charges against him.
C. Notice
Whether a contemnor receives sufficient notice of the contempt charges against him
or her is a question of law that we review de novo. Sprague v. Sprague, No. E2012-01133-
COA-R3-CV, 2013 WL 3148278, at *3 (Tenn. Ct. App. June 18, 2013) (citing State ex rel.
Farris v. Bryant, No. E2008-02597-COA-R3-CV, 2011 WL 676162, at *5 (Tenn. Ct. App.
12
For completeness we note that there is no language in section 28-3-110(e) that indicates that the
Legislature intended for the statute of limitations to apply solely to civil contempt matters. Indeed, section
28-3-110(e) does not discuss civil or criminal contempt at all.
13
We note that Wife cited Gafford v. Gafford, No. 01-A-01-9404-CV00178, 1994 WL 687077 (Tenn. Ct.
App. Dec. 9, 1994) to support her argument that section 28-3-110(e) applies to Wife’s criminal contempt
petition. While Gafford involved criminal contempt allegations for failure to pay child support, the wife
in that case brought such allegations under Tennessee Code Annotated section 36-5-104, discussed supra
footnote 8, rather than section 29-9-102. Id. at *2. As such, that case is not directly applicable to the issue
before this Court.
- 15 -
Feb. 24, 2011)). We first note that contempt may be either “direct” or “indirect,” depending
on whether the alleged contemptuous conduct occurred in the court’s presence (direct) or
outside of court (indirect). See State v. Beeler, 387 S.W.3d 511, 520 (Tenn. 2012) (citing
Black, 938 S.W.2d at 398). When the alleged contempt is “indirect,” it is incumbent on
courts to ensure that the notice and procedural due process requirements are met. Beeler,
387 S.W.3d at 520; see also McClain v. McClain, 539 S.W.3d 170, 219 (Tenn. Ct. App.
2017). The allegations in this case allege indirect conduct; thus, Husband was entitled to
notice and procedural due process.
Tennessee Rule of Criminal Procedure Rule 42(b) addresses the notice required to
initiate criminal contempt charges against a contemnor, to-wit:
(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 order, including
an arrest order if warranted. The notice and order may also issue on
application of the district attorney general, an attorney appointed by the
court for that purpose, or an attorney representing a party in the case.
Tenn. R. Crim. P. 42(b). “While parties seeking to hold another in criminal contempt
should draft their petitions to comply with [Tennessee Rule of Criminal Procedure] 42(b)’s
notice requirements, the court in which a petition for criminal contempt is filed must, in
the final analysis, assure that the accused party receives adequate notice of the charges he
or she faces.” Long, 221 S.W.3d at 13 (citing McPherson v. McPherson, No. M2003-
02677-COA-R3-CV, 2005 WL 3479630, at *5 (Tenn. Ct. App. Dec.19, 2005)).
Concerning what constitutes adequate notice, this Court has explained that
[a]dequate notice is notice that is clear and unambiguous to the average
citizen. Gompers[, 221 U.S. at 446]; Jones v. Jones, [No. 01A01-9607-CV-
00346, 1997 WL 80029, at *4 (Tenn. Ct. App. Feb. 26, 1997)]. Because the
same conduct can constitute both civil contempt and criminal contempt and
- 16 -
because both contempt proceedings may carry with them the possibility of
incarceration, it is imperative that notice specifically charge a party with
criminal contempt. Jones[], 1997 WL 80029[,] at *2-3. Adequate notice
encompasses, but is not limited to, the mandates of [Tennessee Rule of
Criminal Procedure] 42(b), which require that notice state the time and place
of the hearing, allow the defendant reasonable time to prepare a defense, and
state succinctly for the accused the “essential facts” constituting the charge.
See Jones[], 1997 WL 80029[,] at *3. Essential facts are those which, at a
minimum, (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—not merely to secure
compliance with a previously existing order, and (3) sufficiently aid the
accused to determine the nature of the accusation, which encompasses the
requirement that the underlying court order allegedly violated by the accused
is itself clear and unambiguous. See Gompers[, 221 U.S. at 446]; Doe[], 104
S.W.3d at 471; McPherson[], 2005 WL 3479630[,] at *5; See Jones[], 1997
WL 80029[,] at *3.
Long, 221 S.W.3d at 13-14.
On appeal, Husband’s primary argument is that the Amended Contempt Petition
“failed to allege all facts necessary” to provide him with proper notice. Husband also
briefly argues that a portion of the January 5, 2021 order “was not clear, specific, and
unambiguous.” Concerning the second argument, Husband applies it only to his alleged
failure to add Wife’s name to Cayman National Bank account #10621. Because Husband’s
arguments concern both the January 5, 2021 order and the Amended Contempt Petition,
i.e., the charging instrument, we briefly review those.
As discussed above, the January 5, 2021 order required Husband to: (1) add Wife
as an owner to the “bank accounts associated with the Cayman Island [P]roperties” within
fifteen (15) days of the order; (2) make no further withdrawals from said bank accounts;
(3) ensure that account #10621 had a balance of at least $183,350.12; (4) within thirty (30)
days of the order, provide Wife an accounting of all transactions involving account #10621
since August 31, 2020 if the account did not have a balance of $183,350.12; and (5)
reimburse Wife for any withdrawals other than reasonable and necessary business expenses
within forty-five (45) days of the order. In the Amended Contempt Petition, Wife alleged
that Husband violated each of the foregoing mandates. Specifically, Wife alleged that
Husband: (1) failed and refused to add Wife as an owner on any of the Cayman Island bank
accounts, including account #10621; (2) made withdrawals from account #10621; (3)
closed account #10621, leaving it with a balance of $0.00; (4) failed and refused to provide
an accounting within 30 days of the order of all transactions involving account #10621;
and (5) failed and refused to reimburse Wife for at least $183,350.12 and any other non-
business expenses from account #10621 within 45 days of the order.
- 17 -
Relevant here, in the contempt order, the trial court found that Husband admitted
that he did not add Wife’s name to the Cayman Island bank accounts. The trial court also
found that Husband admitted that he closed account #10621. Accordingly, the trial court
held Husband in criminal contempt for these actions, finding that they constituted the same
behavior and treating both actions as one count of contempt. We designate these violations
as Count 1. The trial court also found that Husband made the following three withdrawals
from account #10621: (1) $193,428.04 on January 22, 2021; (2) $36,606.50 on January 28,
2021; and (3) $4,202.40 on February 3, 2021.14 The trial court found that Husband was
specifically ordered not to make any further withdrawals from account #10621 and found
Husband in contempt for each withdrawal. We designate these violations as Counts 2
through 4, respectively. We now turn to the substantive issues.
1. Essential Facts
Husband alleges that the Amended Contempt Petition failed to provide the
“essential facts” of each charge against him. It appears that the essential facts Husband
alleges were missing were the “date[s] of the alleged contemptuous act[s].” Specifically,
he argues that, when an offense is subject to the statute of limitations, “there should be a
sufficiently definite averment of time in the indictment to show that the offense was
committed within the statutory limit.” In support of his argument, Husband cites the
following paragraph from Prince v. State, 529 S.W.2d 729 (Tenn. Crim. App. 1975):
The rule to be deduced from our cases is that, where there is no statute of
limitations barring the offense, it is unnecessary to state the day, or even the
year, but it is sufficient to aver generally that the offense was committed
before the finding of the indictment; that it is not necessary to state in any
case the day on which the offense was committed, unless the day itself is of
the essence of the offense, as of offenses committed against laws passed for
the preservation of the Sabbath, or unless the time is important to bring the
offense within the operation of new or amended statutes or the like; but where
there is a statute of limitations that bars the offense there should be a
sufficiently definite averment of time in the indictment to show that the
offense was committed within the statutory limit; and, finally, that where an
impossible date is given, as in the present indictment, it will be disregarded
if the offense is one as to which there is no statute of limitations, or as to
which the date itself is not important
Id. at 733 (quoting State v. Shaw, 82 S.W. 480, 480 (Tenn. 1904)).
14
In its contempt order, the trial court found that Husband withdrew $4,202.40 on January 22, 2021. This
appears to be a typo as both parties acknowledge, in their appellate briefs, that Husband withdrew $4,202.40
on February 3, 2021, in relation to his closing of account #10621.
- 18 -
As an initial matter, on this Court’s review, the foregoing rule has never been cited
in our case law in the context of contempt under Tennessee Code Annotated section 29-9-
102. However, we need not decide if such rule applies to contempt actions brought under
section 29-9-102 for the reasons discussed, infra. On appeal, Husband argues that, because
Wife’s criminal contempt allegations were subject to a one-year statute of limitations, the
Amended Contempt Petition should have set out the precise dates on which the
contemptuous acts were alleged to have occurred. As discussed at length above, there was
no statute of limitations within which Wife was required to bring her criminal contempt
petition. Thus, under the foregoing authority from Husband, because there was no statute
of limitations, it was “unnecessary [for Wife] to state the day, or even the year, but it [was]
sufficient to aver generally that the offense was committed before the [filing of the
contempt petition].” Prince, 529 S.W.2d at 733. Accordingly, even assuming, arguendo,
that the foregoing rule applies to contempt petitions brought under section 29-9-102, the
authority Husband provides leads us to conclude that Wife was not required to provide
specific dates of the alleged contemptuous acts.
2. A Clear, Specific, and Unambiguous Order
Concerning Count 1, Husband briefly argues that the January 5, 2021 order “was
not clear, specific, and unambiguous.” Briefly, there are three essential elements to
criminal contempt: (1) a court order; (2) a contemnor’s violation of that order; and (3) proof
that the contemnor willfully violated the order. Pruitt v. Pruitt, 293 S.W.3d 537, 545
(Tenn. Ct. App. 2008) (citing Foster v. Foster, No. M2006-01277-COA-R3-CV, 2007 WL
4530813, at *5 (Tenn. Ct. App. Dec. 20, 2007)). The party pursuing the criminal contempt
must prove that: (1) the order allegedly violated was lawful; (2) the order was clear and
unambiguous; (3) the contemnor violated the order; and (4) the contemnor acted willfully
when violating the order. Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249
S.W.3d 346, 354-55 (Tenn. 2008); Furlong v. Furlong, 370 S.W.3d 329, 336 (Tenn. Ct.
App. 2011) (stating that the four-element analysis outlined in Konvalinka applies to
criminal and civil contempt actions). As to Count 1, Husband argues that the language in
the January 5, 2021 order was not clear and unambiguous. Specifically, Husband alleges
that the following provisions within the order conflict:
Paragraph 2:
With regard to the real property received by each party, they shall also
receive any and all debts, business interests, and bank accounts that go with
that property. The party receiving the property shall be responsible for the
preparation of any and all deeds or other processes necessary to effectuate
the transfer of said property, business and or bank account . . .
Paragraph 5:
- 19 -
With regards to bank accounts associated with the Cayman Island properties,
Husband shall not close the accounts but instead shall add Wife as an owner
to said accounts within 15 days of this order . . . . Thereafter, Wife, as an
owner shall have the authority to remove Husband from said bank accounts.
Husband’s entire argument as to this issue is:
Cayman National Bank account #16021 was held by Seven Mile Beach Hotel
Development Corp., not Husband individually. Seven Mile was awarded to
Wife in the January 5, 2021 Ruling. Thus, paragraph 2 places responsibility
for processes necessary to effectuate the transfers at issue in this case on
Wife, while paragraph 5 places the responsibility on Husband. As these
provisions conflict with one another, neither should constitute the clear
directive necessary to sustain a finding of criminal contempt.
The trial court’s contempt order provides insight into why it ordered Husband to
add Wife as an owner of the Cayman Island accounts, to-wit:
Also at issue in the [divorce] trial was how to effectively transfer the property
to Wife. The [trial c]ourt credited Wife’s testimony that she could not open
a bank account and must be added to the business account already open. The
[trial c]ourt also credited the Affidavit of Wife’s expert, Dawn Major, as to
the steps that must be taken to effectuate the transfer. Accordingly, the [trial
c]ourt issued a specific order with regard to the Cayman Properties.
In the contempt order, the trial court found that the language it used in Paragraph 5 of the
January 5, 2021 order was clear, specific, and unambiguous. Taken in context with the
foregoing, we agree. Given the uniqueness of the Cayman Island bank accounts, Wife’s
inability to open an account herself, and the fact that the effective transfer of such property
was at issue during the parties’ divorce trial, we disagree with Husband’s characterization
of Paragraphs 2 and 5 as conflicting with one another. Rather, it appears that Paragraph 2
provided general instruction as to how the parties would transfer assets; whereas, Paragraph
5 contained specific instructions, which were necessary given the unique circumstances
surrounding the Cayman Island properties and accounts.
We also note that Husband’s argument overlooks the fact that the trial court
combined two of Husband’s contemptuous acts into Count 1, i.e., Husband’s failure to add
Wife’s name to account #10621 and Husband’s closing of account #10621. Even
assuming, arguendo, that the foregoing provisions conflict, such conflict would affect only
the first contemptuous conduct, i.e., Husband’s failure to add Wife’s name to account
#10621. Husband does not argue that the January 5, 2021 order was not clear, specific, or
unambiguous concerning the directive that Husband was not permitted to close account
- 20 -
#10621. From our review, the January 5, 2021 order very clearly prohibited Husband from
closing the account. Accordingly, even if we were to conclude that Paragraphs 2 and 5
conflict so as to negate the trial court’s finding of criminal contempt stemming from
Husband’s failure to add Wife’s name to the account, its finding of criminal contempt
stemming from Husband’s decision to close the account would not be affected by such
conflict.
3. Husband Received Proper Notice
The foregoing notwithstanding, the record shows that Husband was aware of the
criminal contempt charges against him and was ready to proceed with a criminal contempt
trial. A brief review of the procedural history concerning the contempt charges is helpful
here. As discussed above, on September 30, 2021, Wife filed her Original Contempt
Petition. On February 3, 2022, Wife filed the Amended Contempt Petition, which alleged,
in pertinent part, that Husband “flagrantly violated each and every substantive tenant of
Paragraph five (5) of the Ordering Section [of the January 5, 2021 findings of fact and
conclusions of law].” Wife alleged that such actions constituted a knowing and willful
violation of the trial court’s January 5, 2021 order and asked the trial court to hold Husband
in willful civil and criminal contempt under Tennessee Code Annotated section 29-9-101,
et seq.
On March 14, 2022, Husband filed a motion to bifurcate and for more definite
statement asking Wife to clarify which counts in her petitions were criminal and which
counts were civil. On April 1, 2022, Wife filed a response to Husband’s motion and
clarified that she was proceeding with criminal contempt charges against him for his: (1)
failure to add Wife’s name to account #10621; (2) closing of account #10621; and (3) non-
business withdrawals from account #10621. On April 6, 2022, the trial court heard
Husband’s motion for a more definite statement. During that hearing, Husband’s counsel
stated that Wife’s response outlined how she was “going to proceed . . . in the way of
criminal contempt, so we now know the answer to our question, so we’re in a position, as
it relates to that issue, to proceed.” On April 14, 2022, Husband filed an answer to the
Amended Contempt Petition. Regarding the contempt issues sub judice, Husband
responded to the charges by declining to answer “on the basis of his Fifth Amendment
Privilege against self-incrimination.”
On November 3, 2022, the trial court entered a consent order setting for trial, inter
alia, Wife’s Original and Amended Contempt Petitions. In this order, the trial court found
that, “in lieu of a formal arraignment, [Husband] enter[ed] a plea of not guilty and waive[d]
a formal reading of the charges against him.” On March 17, 2023, Husband filed an
amended and supplemental answer to the Amended Contempt Petition, supplementing his
answers to charges not at issue here. Also on March 17, 2023, Wife filed her trial
memorandum. Therein, Wife reiterated that she was seeking to hold Husband in criminal
contempt for, inter alia: (1) failing to add Wife’s name to account #10621 and closing the
- 21 -
account; (2) withdrawing $193,428.04 from the account on January 22, 2021; (3)
withdrawing $36,606.50 from the account on January 28, 2021; and (4) withdrawing
$4,202.40 from the account on February 3, 2021.
On March 20, 2023, the trial court heard the Amended Contempt Petition. At the
close of Wife’s proof, Husband orally moved for a Motion for Judgment of Acquittal. On
March 21, 2023, Husband filed a written motion requesting same. Similar to his appellate
argument, discussed supra, Husband argued that he could not be found guilty of criminal
contempt due to improper notice in the charging instrument.
In its order on contempt, the trial court found that the allegations in Wife’s Amended
Contempt Petition and the elections of criminal contempt outlined in her response to
Husband’s motion to bifurcate were “sufficiently clear to provide notice of the allegations
and that he [was] being charged with criminal contempt.” We agree. Husband’s argument
that he did not receive proper notice is disingenuous given: (1) Wife’s detailed response to
his motion for more definite statement; (2) his counsel’s statement that Husband
understood how Wife would proceed with the criminal contempt and that he was “in a
position, as it relates to that issue, to proceed”; (3) Husband’s waiver of a formal reading
of the charges against him; and (4) Wife’s trial memorandum explicitly outlining the
criminal contempt charges against Husband. We conclude that the foregoing provided
Husband with more than “adequate” notice of the criminal contempt charges pending
against him. See Long, 221 S.W.3d at 13-14; Tenn. R. Crim. P. 42(b).
V. Conclusion
For the foregoing reasons, we affirm the trial court’s order. The case is remanded
for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed to the Appellant, Stanley H. Trezevant, III. Execution for
costs may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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