                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 16, 2011 Session

                 TRACY ROSE BAKER v. JEFFREY D. BAKER

                Appeal from the Chancery Court for Sumner County
               No. 2008D412    Carol Soloman, Judge, by Designation


                 No. M2010-01806-COA-R3-CV - Filed March 9, 2012




P ATRICIA J. C OTTRELL, P.J., concurring.

       We have determined that we have no means of reaching the issue of the validity of the
Agreed Order itself. I believe that the appropriate procedure to challenge the agreement at
this point in time is by petition for post-conviction relief, which Mother is pursuing.
Nonetheless, we are troubled by the procedure used herein that resulted in an original
punishment of six months incarceration for Mother.

        This appeal demonstrates the difficulties of resolving various issues in the context of
criminal contempt arising out of a civil lawsuit. The case before us involves the application
of principles from either or both civil and criminal law and procedure to a criminal contempt
proceeding arising out of a post-divorce dispute. For example, the parties entered into an
“Agreed Order” that purported to include a “guilty plea” to contempt petitions and also
settled various other issues relating to the parenting arrangement and attorneys’ fees. The
trial court entered the “Agreed Order,” but apparently did not engage in the procedures
generally required in accepting a “guilty plea.”

       While our opinion herein cites authority for the proposition that criminal contempt is
a crime in the ordinary sense of the word, it is also clear that criminal contempt is not the
same as violation of a criminal ordinance. Our courts have addressed the issue of criminal
contempt on numerous occasions and have concluded that a criminal contempt proceeding
is sui generis, or a class unto itself. The Tennessee Supreme Court described criminal
contempt proceedings as “sui generis – neither a civil action nor a criminal prosecution as
ordinarily understood, nor a criminal prosecution within the Sixth Amendment of the United
States Constitution.” Bowdon v. Bowdon, 278 S.W.2d 670, 672 (Tenn. 1955). As we
explained in Brown v. Latham,
       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. Contempt
       proceedings are sui generis--neither a civil action nor a criminal prosecution
       as ordinarily understood. Thus, a defendant may be jailed for criminal
       contempt without a trial by jury, but the same defendant may demand a jury
       trial in a charge of violating a criminal statute if the statute provides that
       incarceration is one of the choices for punishment.

1994 WL 570102, at *3 (Tenn. Ct. App. 1994) (citations and quotations omitted).

      An act of contempt is a “willful or intentional act that offends the court and its
administration of justice.” Ahern v. Ahern, 15 S.W.3d 73, 78 (Tenn. 2000). Criminal
contempt actions “preserve the power and vindicate the dignity of the court.” Stream v.
Stream, 1992 WL 184771, at *1 (Tenn. Ct. App. 1992). Criminal contempt sanctions are
imposed as punishment for not adhering to a court’s order. Long v. McAllister-Long, 221
S.W.3d 1, 12-13 (Tenn. Ct. App. 2006).

        Because the main purpose of criminal contempt is to vindicate the authority of the
court, Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993) (citing Gunn v, Souther
Bell Tel. & Tel. Co., 296 S.W.2d 843, 844 (1956) and Garrett v. Forest Lawn Memorial
Gardens, 588 S.W.2d 309, 315 (Tenn. Ct. App. 1979)), it is imperative that the court itself
take an active role in determining whether conduct has indeed been contemptuous and willful
and, if so, what punishment, if any, should be imposed within the statutory limits. While our
Supreme Court has determined that it is permissible for an attorney for one of the litigants
to “prosecute” a criminal contempt against the other party, Wilson v. Wilson, 984 S.W.2d
898, 902-03 (Tenn. 1998), nothing in that opinion implies that such an attorney can negotiate
on behalf of the court (whose orders have been violated) or the state.

       I do not think that criminal procedural statutes automatically apply to criminal
contempt actions, but it is clear that Constitutional protections do apply because of the
potential loss of liberty. Among those protections are the Boykin/Mackey requirements.
Thus, courts punishing parties for criminal contempt must hold a hearing and directly address
the defendant to ensure that the waiver of rights is knowing and voluntary. I would go
further and require courts to have a hearing to set the punishment and not accept a plea
arrangement, especially by agreed order simply filed with the court.




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      I present these issues and concerns to demonstrate the need for clarity in this area and
suggest that our Supreme Court take the opportunity in the appropriate case to clarify the
procedures required in a criminal contempt proceeding arising out of a civil action.




                                                         ____________________________
                                                         PATRICIA J. COTTRELL, JUDGE




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