Luvana Leean Tudors v. Carl William Bell, Jr., - Concurring

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
April 7, 1999
LUVANA LEEAN TUDORS, ) Cecil Crowson, Jr.
) Appellate Court Clerk
Plaintiff/Appellee, )
) Appeal No.
) 01-A-01-9802-CV-00103
VS. )
) Marion Circuit
) No. 11672
CARL WILLIAM BELL, JR. )
)
Defendant/Appellant. )
APPEALED FROM THE CIRCUIT COURT OF MARION COUNTY
AT JASPER, TENNESSEE
THE HONORABLE THOMAS W. GRAHAM, JUDGE
CHARLES BOYD COLEMAN, JR.
4279 Main Street
Jasper, Tennessee 37347
Attorney for Plaintiff/Appellee
LISA ZARZOUR ESPY
615 Lindsay Street, Suite 300
Chattanooga, Tennessee 37403
Attorney for Defendant/Appellant
REVERSED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
CAIN, J.
COTTRELL, J.
OPINION
This is an appeal of two ten-day sentences for criminal contempt. We
find that the procedural requirements for a sentence for criminal contempt have not
been satisfied. We, therefore, reverse the lower court’s order.
I.
The Circuit Court of Marion County awarded temporary custody of a
minor child to the father. In a subsequent order, the court allowed the mother to visit
with the child for a one and one-half hour period, at least once a week. Still later, the
court expanded the visitation period to three hours per week, either in one visit or split
into two visits.
On September 24, 1997, the mother filed a petition for contempt alleging
that the father had refused to allow any visitation with the mother since March 1, 1997
and had insisted that the visits with the mother be conducted under his supervision.
The court issued the following order based on the petition:
It appearing to the Court based on the Petition for
Contempt filed in the above styled action that the
Defendant should immediately appear before the Court to
show cause why he should not be held in contempt for
failing to abide by the previous Orders of this Court.
Accordingly, the Court hereby orders the Defendant to
appear on the 29th day of September, 1997, at 9:00 A.M.
in the courtroom at Jasper, and then and there to show
cause why he should not be held in contempt of the
previous Orders of this Court regarding his alleged denial
of visitation privileges previously granted to the Plaintiff.
After a hearing on September 29, 1997 the court ordered that the matter
be brought back before the court on November 4, 1997 and that, in the meantime,
“beginning Saturday, October 4, 1997 and continuing through Saturday, November
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1, 1997, the minor child . . . is to visit with her mother . . . for four hours at the place
of the mother’s choosing, with supervision by a person suitable to the parties . . . .”
On November 13, 1997 the court entered an order finding the father in
contempt for denying the mother visitation on October 25 and November 1. The court
sentenced the father to twenty days in jail but suspended the sentence for ninety days
“within which time the Defendant may file a motion with the court seeking that said
sentence be set aside.” The father did file a motion, but in an order filed on February
13, 1998 the trial judge refused to set aside the conviction. The court did modify the
sentence to allow the father to serve it on Sunday through Thursday nights from 9:00
p.m. to 6:00 a.m.
II.
We think the record clearly shows that the sentence imposed on the
father on November 13, 1997 was for criminal contempt. Criminal contempts are
punitive in character; in such cases the defendant must serve the sentence imposed,
whether or not he purges himself by complying with the court order. Robinson v.
Gaines, 725 S.W.2d 692 (Tenn. Crim. App. 1986). Although the lower court’s order
allowed the father to move to set aside his conviction after ninety days, the order did
not allow the father to purge himself of any punishment by performing some required
act. The sentence was imposed unconditionally and only suspended for ninety days.
After that time the sentence became absolute.
Viewing the punishment in this case as criminal requires us to closely
monitor the procedural requirements for a criminal conviction. See Strunk v. Lewis
Coal Co., 547 S.W.2d 252 (Tenn. Crim. App. 1976). The first requirement is
contained in Rule 42, Tenn. R. Crim. Proc. That rule allows a proceeding for criminal
contempt to be started by a show cause order, but it requires the notice to “state the
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essential facts constituting the criminal contempt charged and describe it as such.”
(Emphasis added). The failure to comply with that part of Rule 42 requires the
reversal of a criminal contempt conviction. Storey v. Storey, 835 S.W.2d 593 (Tenn.
App. 1992).
In this case, the order notifying the father of the contempt charge does
not mention criminal contempt. Therefore, the criminal contempt conviction must be
reversed.
In addition, the show cause order was issued on September 24, 1997.
The petition on which the order was based described a general pattern of defiance of
the court’s order, going back to March 1. The order convicting the father found him
guilty of a violation on October 25 and November 1, 1997. There is neither a petition
for contempt nor a show cause order in the record, covering the period after
September 24, 1997. Therefore, so far as this record shows, the father had no notice
of these charges. Rule 42 requires a statement of the facts constituting the contempt,
but more fundamentally, due process requires notice of what the defendant must be
prepared to meet. State v. Barnes, 954 S.W.2d 760 (Tenn. Crim. App. 1997). For
this additional reason, we reverse the contempt sentences imposed for a violation of
the court’s orders on October 5 and November 1, 1997.
III.
The mother has raised the point that the notice of appeal was not timely
filed because the judgment below became final thirty days after it was entered on
November 13, 1997. A judgment is final, however, only when it adjudicates all the
rights and liabilities of all the parties. Rule 3(a), Tenn. R. App. Proc. A notice of
appeal filed before that time is premature. Rule 4(d), Tenn. R. App. Proc.
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In this case, the order of November 13, 1994 specifically allowed the
father to file a motion to set aside the judgment of contempt. Until that motion was
disposed of, the judgment was not final. Therefore, the notice of appeal filed within
thirty days of the disposition of that motion was timely.
The judgment of the court below is reversed and the cause is remanded
to the Circuit Court of Marion County for further proceedings. Tax the costs on appeal
to the mother.
____________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM B. CAIN, JUDGE
_____________________________
PATRICIA J. COTTRELL, JUDGE
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