                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   APRIL 20, 2006 Session

   ARNOLD ALPHONSO BUENO v. PATTIE LYNETTE BUENO TODD

                 Direct Appeal from the Chancery Court for Shelby County
                      No. D 25921-2    D. J. Alissandratos, Chancellor



                     No. W2005-02164-COA-R3-CV - Filed July 31, 2006


This appeal stems from criminal and civil contempt charges brought by a father of two minor
children because of the mother’s failure to pay child support. The father brought his criminal
contempt charge based on section 36-5-104 of the Tennessee Code. In this appeal, we are asked to
determine whether the chancery court violated the mother’s due process rights during the criminal
contempt hearing. The mother asserts on appeal that the chancery court violated her due process
rights by (1) allowing the father’s attorney to try the case against her for criminal contempt; (2)
failing to provide proper notice to her pursuant to Rule 42 of the Tennessee Rules of Criminal
Procedure; (3) failing to provide her with a right to a jury trial; and (4) applying the wrong legal
standard when it found her guilty of criminal contempt. Also, we are asked to determine whether
the chancery court properly terminated the mother’s visitation rights with her children based on the
chancery court’s findings that the mother committed perjury, that the mother was in criminal
contempt for violating section 36-5-104 of the Tennessee Code, and that the mother was in civil
contempt. We vacate the portions of the chancery court order (1) finding Appellant in criminal
contempt, (2) sentencing Appellant to serve six months in jail for criminal contempt, and (3)
terminating Appellant’s visitation with her children until they attain the age of eighteen years, and
we remand this case to the chancery court for further proceedings.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Vacated and
                                       Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Karen W. Tyler, Memphis, TN, for Appellant

Bradley W. Eskins, Memphis, TN, for Appellee
                                             OPINION

                              I. FACTS & PROCEDURAL HISTORY

        On July 26, 1996, Arnold Alphonso Bueno, Jr. (“Father” or “Appellee”) and Pattie Lynette
Bueno Todd (“Mother” or “Appellant” or, collectively with Father, the “Parties”) were divorced.
At the time of divorce, the Parties had two minor children of the marriage. Pursuant to the divorce
decree, Mother was initially awarded custody of the Parties’ two minor children. Subsequently,
Father filed a petition for change of custody. On August 12, 2003, the chancery court entered a
temporary order changing custody of the Parties’ two minor children from Mother to Father. The
temporary order also stated that Mother was required to pay child support in the amount of $538 per
month to Father. On November 14, 2003, the chancery court entered an order naming Father as the
primary residential parent. Mother failed to pay any child support to Father at any time thereafter.
According to Mother, she did not pay any child support because she did not know of the existence
of the court order requiring her to pay child support.

        On June 6, 2005, Father filed a petition for contempt alleging that Mother willfully failed to
pay child support as ordered by the chancery court. On June 30, 2005, Mother filed her answer to
Father’s petition. On July 22, 2005, the chancery court entered an order allowing Father to amend
his petition. That same day, Father filed an amended petition for scire facias and for criminal and
civil contempt. The chancery court then entered a fiat stating that the hearing on Father’s petition
would be at 9:00 a.m. on August 3, 2005. On August 3, 2005, Mother filed a supplemental answer
to Father’s amended petition. At the hearing on Father’s petition for scire facias and for criminal
and civil contempt, the chancery court allowed Father’s attorney to prosecute the criminal contempt
charges.

         The chancery court entered its order on Father’s petition on August 5, 2005 finding Mother
(1) in criminal contempt for violating section 36-5-104 of the Tennessee Code, (2) in civil contempt
for failing to pay child support and for being voluntarily unemployed, and (3) had committed perjury.
The chancery court sentenced Mother to six months in jail for her criminal contempt. On August
10, 2005, the chancery court entered a consent order suspending the criminal contempt sentence,
placing Mother on probation, and requiring Mother to find employment for fifty hours weekly.

                                     II. ISSUES PRESENTED

       Appellant has timely filed her notice of appeal and presents the following issues for review:

1.     Whether the chancery court violated her basic due process rights in a case for criminal
       contempt; and
2.     Whether the chancery court erred when it suspended Appellant’s visitation rights with her
       daughter.




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For the following reasons, we vacate the portions of the chancery court’s order (1) finding Appellant
in criminal contempt; (2) sentencing Appellant to serve six months in jail for criminal contempt and
(3) terminating Appellant’s visitation with her children until they attain the age of eighteen years.
We remand for further proceedings.

                                            III.   DISCUSSION

                                       A.     Criminal Contempt

        On appeal, Appellant contends that the chancery court violated her due process rights when
it prosecuted her for criminal contempt. Specifically, Appellant asserts that the chancery court
violated her due process rights during her criminal contempt hearing by (1) allowing Appellant’s
attorney to try the case against her for criminal contempt; (2) failing to provide proper notice to
Appellant pursuant to Rule 42 of the Tennessee Rules of Criminal Procedure; (3) failing to provide
her with a right to a jury trial; and (4) applying the wrong legal standard when it found Appellant
guilty of criminal contempt. We address each contention in turn.

       First, Appellant argues that the chancery court violated her due process rights when it allowed
Appellee’s attorney to prosecute the criminal contempt proceeding against Appellant. On appeal,
Appellant argues that an interested party may not prosecute a criminal contempt proceeding. In this
case, Appellee’s attorney represented Appellee when Appellee filed his petition for contempt against
Appellant for violation of the order arising out of the first action.

          In Wilson v. Wilson, 984 S.W.2d 898 (Tenn. 1998), the Tennessee Supreme Court
confronted a similar issue as in this case, namely whether a private attorney currently representing
the beneficiary of a court order in a civil case may prosecute a criminal contempt action arising from
a violation of the court order. Id. at 900. In Wilson, a private attorney representing the defendant
in a divorce case prosecuted a criminal contempt action against the plaintiff in the divorce for
violation of a court order arising out of the divorce proceedings. Id. at 899. At trial, “the defendant
. . . filed a . . . petition for contempt alleging a violation of an order of the trial court.” Id. At the
time of the criminal contempt proceedings, the divorce action was still pending. Id. At trial, the
plaintiff filed a motion requesting that the defendant’s attorney be prevented from prosecuting the
criminal contempt action “on the basis that counsel was simultaneously representing the defendant
in the underlying divorce proceeding.” Id. Finding that the private attorney was not automatically
disqualified from prosecuting the criminal contempt action and could prosecute such action, the
Tennessee Supreme Court held that “no constitutional principle nor ethical standard automatically
disqualifies a private attorney representing the beneficiary of a court order from simultaneously
prosecuting a contempt action which alleges a violation of the order.” Id. at 905.

       In this case, we find no reason to diverge from the reasoning espoused in Wilson. Appellant’s
sole argument on appeal is that an interested party may not prosecute a criminal contempt
proceeding. As the Tennessee Supreme Court found in Wilson, an interested party is not
automatically disqualified from prosecuting a criminal contempt action. Further, we find nothing


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in the record to indicate that Appellee’s attorney should have been disqualified from prosecuting
Appellant for criminal contempt. As such, we find that the chancery court did not violate
Appellant’s due process rights when it allowed Appellee’s attorney to prosecute the criminal
contempt action against Appellant.

       Second, Appellant argues that the chancery court violated her due process rights because she
was not given proper notice of the criminal contempt pursuant to rule 42(b) of the Tennessee Rules
of Criminal Procedure.

       Rule 42(b) of the Tennessee Rules of Criminal Procedure1 requires that a criminal contempt
be prosecuted on notice, which “shall state the time and place of hearing, allowing a reasonable time
for the preparation of the defense, and shall state the essential facts constituting the criminal
contempt charged and describe it as such.” Storey v. Storey, 835 S.W.2d 593, 600 (Tenn. Ct. App.
1992) (quoting Tenn. R. Crim. P. 42(b)) (footnote omitted). Further, with regard to notice,

                   manifestly 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, whether it sought to benefit the complainant or vindicate
                   the court’s authority. He should not be left in doubt as to whether
                   relief or punishment was the object in view. He is not only entitled to
                   be informed of the nature of the charge against him, but to know that
                   it is a charge and not a suit.

Id. at 599 (quoting Gompers v. Bucks’s Stove & Range Co., 221 U.S. 418, 446 (1911)).
        On appeal, Appellant contends that the chancery court did not give her proper notice that she
was being tried for criminal contempt because the chancery court asked at the hearing if Appellee
was asserting that Appellant was in criminal contempt for violating section 36-5-104 of the


        1
            Rule 42(b) of the Tennessee Rules of Criminal Procedure states:

                   Disposition upon Notice and Hearing. – A criminal contempt except as provided in
                   subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the
                   time and place of hearing, allowing a reasonable time for the preparation of the
                   defense, and shall state the essential facts constituting the criminal contempt
                   charged and describe it as such. The notice shall be given orally by the judge in
                   open court in the presence of the defendant or, on application of the district attorney
                   general or of an attorney appointed by the court for that purpose, by an order to
                   show cause or an order of arrest. The defendant is entitled to admission to bail as
                   provided in these rules. If the contempt charge involves disrespect to or criticism
                   of a judge, that judge is disqualified from presiding at the hearing except with the
                   defendant’s consent. Upon a verdict of finding of guilt the court shall enter an order
                   fixing the punishment.

Tenn. R. Crim. P. 42(b) (2005).


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Tennessee Code, which does not relate to criminal contempt. However, this Court finds this
argument to be without merit. On July 22, 2005, Appellee filed his amended petition for scire facias
and for civil and criminal contempt. The petition specifically stated that Appellee was petitioning
the chancery court to find Appellant in criminal contempt for Appellant’s violation of section 36-5-
104 of the Tennessee Code.2 Further, the petition stated that

                  [t]his petition places you in jeopardy of being found in criminal
                  contempt of this Court’s Orders. Each incident of contempt can
                  result in your incarceration in jail for contempt. As to each allegation
                  of criminal contempt, you have the rights of a criminally accused
                  person, including, but not limited to, the right not to testify against
                  yourself, the right to an attorney, and the presumption of innocence.

That same day, the chancery court issued a fiat stating that the hearing on the matter was set for 9:00
a.m. on August 3, 2005. As such, we conclude that the notice requirements of Rule 42(b) of the
Tennessee Rules of Criminal Procedure were met. Thus, Appellant’s due process rights as to notice
were not violated.

        Third, Appellant argues that the chancery court violated her due process rights when it tried
her for criminal contempt without a jury. In its opinion, the chancery court found Appellant guilty
of criminal contempt based on section 36-5-104 of the Tennessee Code. Nothing in the record
demonstrates that Appellant made a request for a jury trial on the criminal contempt charges or

        2
            Section 36-5-104 of the Tennessee Code states:

                  (a) Any person, ordered to provide support and maintenance for a minor child or
                  children, who fails to comply with the order or decree, 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.

                  (b) No arrest warrant shall issue for the violation of any court order of support if
                  such violation occurred during a period of time in which the obligor was
                  incarcerated in any penal institution and was otherwise unable to comply with the
                  order.

                  (c) In addition to the sanction provided in subsection (a), the court shall have the
                  discretion to require an individual who fails to comply with the order or decree of
                  support and maintenance to remove litter from the state highway system, public
                  playgrounds, public parks, or other appropriate locations for any prescribed period
                  or to work in a recycling center or other appropriate location for any prescribed
                  period of time in lieu of or in addition to any of the penalties otherwise provided;
                  provided, however, that any person sentenced to remove litter from the state
                  highway system, public playgrounds, public parks, or other appropriate locations
                  or to work in a recycling center shall be allowed to do so at a time other than such
                  person’s regular hours of employment.

Tenn. Code Ann. § 36-5-104 (2005).


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waived in writing her right to a jury trial. On appeal, Appellant asserts that the rules of criminal
procedure apply to criminal contempt proceedings and that, because Appellant made no written
waiver of a jury trial pursuant to Rule 23 of the Tennessee Rules of Criminal Procedure, the chancery
court violated her right to a jury trial.

        In Brown v. Latham, 914 S.W.2d 887 (Tenn. 1996), the Tennessee Supreme Court held that
an individual being prosecuted for criminal contempt for a violation of section 36-5-104 of the
Tennessee Code was entitled to a jury trial. In so holding, the Tennessee Supreme Court found that
the crime of criminal contempt based on a violation of section 36-5-104 of the Tennessee Code was
not a “small offense,” and, as such, the defendant was entitled to a trial by jury. As in Brown,
Appellant was prosecuted for criminal contempt for violating section 36-5-104 of the Tennessee
Code. Unlike the defendant in Brown, Appellant did not request a jury trial.

        However, as this Court has previously stated, “criminal contempt is a crime in the ordinary
sense, and certain constitutional provisions apply to the punishment proceeding. And we have held
that the Rules of Criminal Procedure must be followed.” Perkerson v. Perkerson, No. 01-A-01-
9602-CV-00059, 1996 Tenn. App. LEXIS 437, at *5-6 (Tenn. Ct. App. July 31, 1996) (citations
omitted). Rule 23 of the Tennessee Rules of Criminal Procedure states:

               In all criminal cases except small offenses, trial shall be by jury
               unless the defendant waives a jury trial in writing with the approval
               of the court and the consent of the district attorney general. The
               defendant may waive jury trial at any time before the jury is sworn.

Tenn. R. Crim. P. 23 (2005). As such, as there was no waiver of a jury trial to comply with Rule 23
of the Tennessee Rules of Criminal Procedure, we conclude that the chancery court violated
Appellant’s right to a jury trial when it did not conduct a jury trial as to Appellant’s criminal
contempt proceedings. Accordingly, we vacate the portions of the chancery court’s order (1) finding
Appellant in criminal contempt and (2) sentencing Appellant to serve six months in jail for criminal
contempt. Thus, the issue as to whether the chancery court applied the correct legal standard when
it found Appellant guilty of criminal contempt is pretermitted.

                                      B.    Visitation Rights

        On appeal, Appellant contends that the chancery court erred when it terminated her rights to
visit her children “until each child attains the age of 18 years of age.” As our supreme court has
stated,

               [a]lthough we recognize that the general rule is that “the details of
               custody and visitation with children are peculiarly within the broad
               discretion of the trial judge,” Edwards v. Edwards, 501 S.W.2d 283,
               291 (Tenn. App. 1973), and that the trial court’s decision will not
               ordinarily be reversed absent some abuse of that discretion, “in


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               reviewing child custody and visitation cases, we must remember that
               the welfare of the child has always been the paramount consideration”
               for the courts. Luke v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983). In
               addition, the right of the noncustodial parent to reasonable visitation
               is clearly favored. E.g., Weaver v. Weaver, 37 Tenn. App. 195,
               202-203, 261 S.W.2d 145, 148 (1953). Nevertheless, “the right of
               visitation . . . may be limited, or eliminated, if there is definite
               evidence that to permit . . . the right would jeopardize the child, in
               either a physical or moral sense.” Id.

Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988). Further, this Court has previously stated,
                [m]others and fathers each make unique and complementary
                contributions to their children’s welfare and emotional development.
                National Interdisciplinary Colloquium on Child Custody Law, Legal
                & Mental Health Perspectives on Child Custody Law: A Deskbook
                for Judges § 12:1, at 130 (1998) (“Legal & Mental Health
                Perspectives on Child Custody Law”). Accordingly, Tennessee’s
                General Assembly and courts have recognized that non-custodial
                parents have a fundamental right to visit their children. Tenn. Code
                Ann. § 36-6-301 (Supp. 2000); Suttles v. Suttles, 748 S.W.2d 427,
                429 (Tenn. 1988); Helson v. Cyrus, 989 S.W.2d 704, 707 (Tenn. Ct.
                App. 1998); Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App.
                1996); Weaver v. Weaver, 37 Tenn. App. 195, 202-03, 261 S.W.2d
                145, 148 (1953).
                         Because of the general belief that children will be harmed
                substantially if denied interaction and relationship with both parents,
                Legal & Mental Health Perspectives on Child Custody Law § 12:2,
                at 131, Tennessee’s courts have repeatedly recognized that custody
                and visitation arrangements should interfere with the parent-child
                relationship as little as possible. Taylor v. Taylor, 849 S.W.2d at 331;
                Pizzillo v. Pizzillo, 884 S.W.2d 749, 755 (Tenn. Ct. App. 1994).
                However, a parent’s right to visit with his or her children is not
                absolute. The courts may restrict, suspend, or terminate visitation
                rights upon the presentation of clear and definite evidence that
                permitting continued visitation will jeopardize the child physically,
                emotionally, or morally. Tenn. Code Ann. § 36-6-301; Suttles v.
                Suttles, 748 S.W.2d at 429; Helson v. Cyrus, 989 S.W.2d at 707;
                Weaver v. Weaver, 37 Tenn. App. at 202-03, 261 S.W.2d at 148.
                         Because of the legal and psychological significance of a
                parent’s visitation rights, persons seeking to restrict or eliminate
                visitation must demonstrate that there is probable cause that the child
                will be placed at risk if visitation is permitted. The Tennessee
                Supreme Court requires that this proof must be “definite,” Suttles v.


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                Suttles, 748 S.W.2d at 429, and Tenn. Code Ann. § 36-6-301 requires
                that the proof demonstrate that visitation is “likely"” to endanger the
                child’s physical or emotional health. These evidentiary standards have
                effectively created a presumption against severely circumscribing or
                denying visitation to non-custodial parents. Such drastic measures are
                appropriate only when arrangements less detrimental to the
                parent-child relationship are not available or workable as a practical
                matter.
                        With these principles in mind, the courts have terminated or
                suspended visitation by a non- custodial parent only in extreme
                circumstances such as (1) the non-custodial parent’s history of
                physically abusing his spouse and child, Suttles v. Suttles, 748 S.W.2d
                at 429; (2) the non-custodial parent’s abandonment of the child,
                Turner v. Turner, 919 S.W.2d at 346; Mimms v. Mimms, 780 S.W.2d
                739, 745 (Tenn. Ct. App. 1989); or (3) conduct of the non-custodial
                parent that is injurious to the child’s physical health, Smith v. Smith,
                1996 Tenn. App. LEXIS 655, No. 03 A01-9603-CV-00078, 1996 WL
                591181, at *4 (Tenn. Ct. App. Oct. 11, 1996) (No Tenn. R. App. P.
                11 application filed). In other circumstances, the courts have stopped
                short of terminating or suspending visitation when less restrictive
                alternatives, such as supervised visitation, have been reasonably
                available. E.g., Whitaker v. Whitaker, 957 S.W.2d 834, 838-39 (Tenn.
                Ct. App. 1997) (disapproving unreasonably burdensome restrictions
                on visitation on a parent ordered to undergo counseling); D v. K, 917
                S.W.2d at 685 (approving supervised visitation for a parent who
                permitted a child to play unattended in a parking lot); Pizzillo v.
                Pizzillo, 884 S.W.2d at 757 (approving supervised visitation for a
                non-custodial parent convicted of sexual abuse); Crabtree v.
                Crabtree, 716 S.W.2d 923, 927 (Tenn. Ct. App. 1986) (approving
                supervised visitation for a non-custodial parent charged with sexual
                abuse).

Wix v. Wix, 2001 Tenn. App. LEXIS 144, at *32-36 (Tenn. Ct. App. Mar. 7, 2001). Additionally,
“courts may deny or condition continuing visitation on the grounds of parental neglect.” Turner v.
Turner, 919 S.W.2d 340, 346 (Tenn. Ct. App. 1995) (citing Mimms v. Mimms, 780 S.W.2d 739, 745
(Tenn. Ct. App. 1989)).

        In its order, the chancery court terminated Appellant’s visitation rights with her children until
they reach the age of eighteen based on its findings that Appellant was guilty of criminal contempt,
civil contempt, and perjury. In essence, the chancery court terminated Appellant’s visitation rights
based on her failure to pay child support, her failure to seek employment during the six months she
was required to pay child support, and the court’s finding that she committed perjury in the
proceedings.


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        Based on the foregoing authorities, we conclude that Appellant’s failure to seek employment
during a six month period and Appellant’s act of perjury are not sufficient to support a suspension
or termination of Appellant’s visitation rights with her children. Further, Appellant’s failure to pay
child support generally would be not enough to suspend or terminate her visitation rights with her
children. See id. at 345-46. However, a “denial of visitation is warranted . . . when the noncustodial
parent is financially able to support his or her children but refuses to do so.” Id. at 346. In this case,
the trial court did not conclusively determine whether Appellant willfully refused to pay child
support and had the ability to pay such support. As such, we vacate the portion of the chancery
court’s order terminating Appellant’s visitation rights with her children.

                                          IV. CONCLUSION

       For the aforementioned reasons, we vacate the portions of the chancery court’s order (1)
finding Appellant in criminal contempt; (2) sentencing Appellant to serve six months in jail for
criminal contempt; and (3) terminating Appellant’s visitation with her children until they attain the
age of eighteen years. We remand for further proceedings. Costs of this appeal are taxed to
Appellee, Arnold Alphonso Bueno, for which execution may issue if necessary.



                                                         ___________________________________
                                                         ALAN E. HIGHERS, JUDGE




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