Family Law

Affirmative Defenses to Criminal Contempt in Tennessee

1. The Petition fails to meet the statutory requirements of Tenn. Code Ann. 29-1-107 requiring a statement that this is the first application for extraordinary relief. The Petition seems to indicate another court heard the Petition for extraordinary relief and was denied.

2. The Respondent may not be sentenced consecutively for criminal contempt of Court because each conviction contains the same necessary elements of the offense charged because Tenn. Code Ann. 40-35-114 which expressly requires that enhancement factors be "not themselves necessary elements of the offense charged." Further, Tenn. Code Ann. 40-15-115(7) is not to be routinely used to impose consecutive sentences and the aggregate maximum of consecutive terms must be reasonably related to the severity of the offenses involved. State v. Taylor, 739 S.W.2d 227 (Tenn. 1987). Even if the court finds the contempt factor applicable, aggravating circumstances must be present before consecutive sentences may be imposed. Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976) Such is not the case at bar.

3. The Respondent does not have the present ability to pay the amount demanded under a civil contempt prosecution.

4. Petitioner must elect, sufficiently prior to trial to allow Respondent to prepare, as to whether she is proceeding on civil or criminal contempt. Petitioner is being prosecuted for criminal contempt, civil contempt, and for criminal sanctions pursuant to Tenn. Code Ann. 36-5-104(a) and this is a violation of his due process rights under the U. S. Const. amend. 14 and Tenn. Const. art. I sec. 8

5. Petitioner does not sufficiently set forth in her Petition the facts and dates of non-compliance with this Court's order such that Respondent can sufficiently defend the charges against him.

6. Petitioner willfully and intentionally failed to provide insurance for the parties' children as ordered by the court and she is not able to pay one-half their medical expenses due to said failure and therefor is not in contempt of court.

7. The Notice to Petitioner of this hearing fails to meet the due process requirements of the United States Constitution amend. 14 and the Tennessee Constitution art. I sec. 8, the requirements of Tenn. R. Crim. P. 42, as to the nature of the contempt, and fails to advise Respondent of the necessary procedural safeguards due persons facing criminal contempt sanctions under the United States Constitution and the Tennessee Constitution. See also Jones v. Jones, 1997 WL 80029 (Tenn. App. 1997) which states:

The Tenn. R. Crim. P. 42(b) notice must specifically charge a party with criminal contempt and must succinctly state the facts giving rise to the charge. Because the same conduct can constitute both civil and criminal contempt, the Tenn. R. Crim. P. 42(b) notice eliminates any possible confusion concerning the nature of the proceeding. Providing this notice at an early stage better enables the alleged contemner to invoke his or her procedural rights. United States v. United Mineworkers, 330 U.S. 258, 374, 67 S.Ct. 677, 736, 91 L.Ed. 884 (1947) (Rutledge, J., dissenting) (stating that "[o]ne who does not know until the end of litigation what his procedural rights in trial are, or may have been, has no such rights").

We have vacated a number of criminal contempt sanctions during the past few years because of procedural shortcomings stemming from inadequate Tenn. R. Crim. P. 42(b) notice. See e.g., Sanders v. Sanders, supra; Pritchard v. Pritchard, App. No. 02A01-9505-CH-00108, 1996 WL 266653 (Tenn. App. May 15, 1996) (No Tenn. R. App. P. 11 application filed); Walker v. Walker, App. No. 02A01-9209-CH-00263, 1993 WL 327826 (Tenn. App. Aug.20, 1993) (No Tenn. R. App. P. 11 application filed); Storey v. Storey, 835 S.W.2d 593 (Tenn. App. 1992). While it is commendable that the courts in the Eighteenth Judicial District are using informal practice guidelines to address this problem, we note that no judicial district has yet adopted a local rule or proposed form to assure that adequate Tenn. R. Crim. P. 42 notice is given in proceedings where it is required. Such a rule could greatly diminish the risk of confusion concerning the nature and purpose of a contempt proceeding, not just in domestic relations cases but in all cases.

8. The Petition does not state a cause for which relief can be granted.

9. Petitioner has refused to accept child support from Respondent on numerous occasions and advised him she did not want his money and to stay away from her and the child.

10. Respondent would state that he is disabled and unable work and pay child support due to the disability.