                       IN THE COURT OF APPEALS OF TENNESSEE
                                  AT KNOXVILLE
                                          March 11, 2009 Session

                            ERIN McLEAN v. JASON ERIC McLEAN

                            Appeal from the Circuit Court for Knox County
                                   No. 108135    Bill Swann, Judge




                       No. E2008-02796-COA-R3-CV - FILED MAY 28, 2010


This appeal arises from a post-divorce case in which the trial court found the appellant to be
in criminal contempt. Procedural deficiencies by the trial court require reversal.


              Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                  Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J. and D. M ICHAEL S WINEY, J., joined.

Brandy B. Slaybaugh, Knoxville, Tennessee, for the appellant, Erin McLean.

James S. Sharp, Jr., Knoxville, Tennessee, for the appellee, Jason Eric McLean.

                                                   OPINION

      On March 10, 2007, Erin McLean (“Mother”) witnessed her husband, Jason Eric
McLean (“Father”), shoot and kill 18-year-old Sean Powell1 in the driveway of the marital
home. Father was arrested and Mother fled with her two minor children to the home of her
mother in Nashville.

      Father filed a complaint for divorce, alleging irreconcilable differences and
inappropriate marital conduct. In mid-September 2007, Mother and the children moved from
Nashville to Austin, Texas. During this time, the family’s story drew the continuing attention


          1
              Mother was apparently having a relationship with Mr. Powell, one of her students from a local high
school.
of the national media.

      In January 2008, the trial court granted Father an absolute divorce. The order
approved and incorporated Father’s permanent parenting plan and granted him sole
ownership of the marital home. The “non-resident notice was published for four consecutive
weeks in the Knoxville News Sentinel, the Knoxville Journal, and the Knoxville
Independent.”

       On February 1, 2008, the trial court issued an interim memorandum opinion which
altered parts of the divorce decree. The trial court granted Father temporary custody, stating

       [W]e do have the father’s testimony as to the mother’s present attention to the
       children. The court finds that she has wrongfully removed the children from
       the jurisdiction of this court. This is the only court which has subject matter
       jurisdiction over the children. The mother herself does not appear today to tell
       us what her plan for the children is, or why she should be the custodial parent,
       if indeed that is her goal.

       The father however is here, and tells us his history as a parent and his plans for
       the children. Of the two parents, he is the only one respecting the authority of
       the court. Therefore, he is favored by the court’s order today. . . .

The court’s order provided that it was a temporary ruling “until we can have a full hearing
as to the best interests of these children.”

       The day-to-day schedule of the temporary parenting plan stated that “the parties shall
alternate co-parenting time with the minor children on a week on/week off basis.” The plan
contained no start or stop date. The February 1, 2008, interim order also appointed a
guardian ad litem (“GAL”) to take steps “to secure the safety and well being of the children.”

       According to Mother, the GAL was able to contact her via email within weeks, in
contrast to affidavits of Father and his attorney in which they declared they could not find
Mother. Mother complied with the GAL’s request and willingly brought the children to meet
with her in Greenback, Tennessee, on March 8, 2008.

       On September 24, 2008, Father filed a motion for writ of attachment and contempt,
charging that Mother was in violation of the temporary parenting plan. On that day, the trial
court issued a writ of attachment to remove the children from Texas. The court added a
handwritten fiat that ordered “the mother to appear and show why she should not be held in
contempt of court for willfully ignoring court orders [regarding] co-parenting time.”

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        On October 1, 2008, the children were picked up by police officers from their
respective schools in Texas. A hearing was conducted telephonically in Tennessee and
Texas. Mother, unrepresented at that time, arrived at the hearing after it had started. She
raised objections to the claims of Father’s attorney that she had been served, that she had
notice of the parenting plan, and that she willfully withheld visitation. The Texas court
ordered the children returned to Tennessee and placed them temporarily in the custody of
their paternal grandmother. The Tennessee trial court prohibited both Mother and Father
from having contact with the children until recommended by the GAL or approved by the
trial court.

        On October 8, 2008, Mother made her first appearance in the trial court, represented
by current counsel. Mother contends there was much confusion as to the actual purpose of
this hearing. At the hearing, she was served with the petition for criminal contempt asserting
that she had violated the October 1 order by contacting the children via text message. During
this hearing, the trial court requested that Father’s counsel draft and submit a “Show Cause”
based on Father’s lack of co-parenting time. Five days later, Father filed a petition for
contempt and show cause based on Mother withholding co-parenting time. On that same
date, Mother also responded to the October 8, 2008, petition for criminal contempt. She
admitted to having two contacts with her children, but denied that the contacts were willful.
According to Mother, the children spoke to her two times during conversations they had with
her fiancé. She denied sending any text messages to her sons. Mother noted that her fiancé
was not under a no contact order and that the children had been in communication with him.

       In the hearing held on December 15, 2008, Mother invoked her right against self-
incrimination on several occasions. The trial court found, through testimony supplied by the
GAL, that Mother first had actual notice of the temporary parenting plan sometime during
March 2008, when the GAL e-mailed it to Mother. The court held as follows:

       We have in the pleadings admissions to two violations of conversations with
       the children in violation of that which was specifically ordered by this
       Judgment on 10-1-08. “Mother and Father are prohibited from having contact
       with the children until recommended by the Guardian Ad Litem or approved
       by this Court.” Mother concedes in her own pleadings two contacts. So, that’s
       two counts proved beyond a reasonable doubt. Ten days of incarceration is
       imposed for each of those. That’s a total of twenty days there. As to these
       fifteen counts [of contempt of court for failing to provide Father visitation],
       the Court finds beyond a reasonable doubt fifteen counts of denial, and
       pronounces a sentence of one hundred and fifty days of incarceration.
       However, only seventy-five of that will be served and seventy-five will be
       suspended, conditional upon exact and strict compliance with all Court Orders

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       by Erin McLean hereafter. So, that makes a total of ninety-five days to serve
       with seventy-five suspended. . . .


       Mother filed a timely appeal. Father has not filed a brief in this court.


                                         II. ISSUES

       Mother raised the following issues:

       A. Whether the trial court’s refusal to set a bond for Mother upon a finding of
       indirect criminal contempt violates Tenn. R. Crim. P. 32(d)(1) and Tenn. R.
       Crim. P. 42(b)(3).

       B. Whether the trial court erred in finding Mother guilty of 17 counts of
       criminal contempt and sentencing Mother to 95 days of incarceration where:

              1. The trial court failed to give Mother oral notice of the
              criminal contempt sanctions in open court;

              2. The criminal contempt petition filed on October 13, 2008,
              lacked the essential facts constituting the criminal contempt
              charged and failed to describe said facts, nor notice of the 1070
              days requested at trial;

              3. Mother was not afforded the constitutional protection of a
              presumption of innocence in that exercising her right to the
              protection of the Fifth Amendment was used against her;

              4. The temporary parenting plan on which the contempt
              conviction is based is an improper order entered without the
              required best interest analysis.


                              III. STANDARD OF REVIEW

       Our review is de novo upon the record of the trial court without any presumption of
correctness attaching to the trial court’s conclusions of law. Campbell v. Florida Steel Corp.,
919 S.W.2d 26, 35 (Tenn. 1996) and Tenn. R. App. P. 13(d). We must, however, presume

                                              -4-
the trial court’s factual findings to be correct absent evidence preponderating to the contrary.
Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

       A trial court’s use of its contempt power is within its sound discretion and will be
reviewed by an appellate court under an abuse of discretion standard. Outdoor Mgmt., LLC
v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007). A trial court abuses its discretion
when it applies an incorrect legal standard or reaches a decision against logic or reasoning
that causes an injustice to the party complaining. Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001).


                                      IV. DISCUSSION

       Willful disobedience to a court’s order is contempt. Black v. Blount, 938 S.W.2d 394,
398 (Tenn. 1996). As noted in Jones v. Jones, No. 01A01-9607-CV-00346, 1997 WL 80029
(Tenn. Ct. App. M.S., Feb. 26, 1997),

       [t]he threshold issue in every appeal from a finding of contempt is whether the
       contempt is civil or criminal. The answer turns on the conduct involved and
       the sanctions imposed, not on the labels of “civil” or “criminal” affixed by the
       parties or the trial court.”

                                             ***

       The purpose of a civil contempt proceeding is to coerce the contemnor to
       comply with a court’s order. It is a remedial proceeding, and is intended to
       benefit the party seeking the contempt order. Civil contempt sanctions are
       open-ended and terminate when the contemnor complies with the court’s
       order. In this sense, the contemnor “carries the keys to the jail in his or her
       own pocket.”

       On the other hand, the purpose of a criminal contempt proceeding is to
       vindicate the authority of the law and the court. It is a punitive proceeding
       intended to impose a fixed punishment for past actions. Punishment for
       criminal contempt is not conditional and must be served even if the contemnor
       later complies with the court’s order.

Jones, 1997 WL 80029, at *2 (internal citations omitted). As further noted in Jones,

       [c]riminal contempt is either direct or indirect. Disruptive or disobedient acts

                                              -5-
       committed in the court’s presence constitute direct criminal contempt. Trial
       courts may impose summary punishment for these acts when there is a need to
       act swiftly and firmly to prevent contumacious conduct from disrupting a
       judicial proceeding. Contemptuous acts committed outside of the court’s
       presence constitute indirect criminal contempt. Trial courts may impose
       punishment for indirect criminal contempt only after providing notice pursuant
       to Tenn. R. Crim. P. 42(b). Like all persons charged with contempt, persons
       facing an indirect criminal contempt charge are entitled to the presumption of
       innocence, the privilege against self-incrimination, and the requirement that
       their guilt be proven beyond a reasonable doubt.

Jones, 1997 WL 80029, at *3 (internal citations omitted). A ten-day sentence is the
maximum period of incarceration allowed for criminal contempt pursuant to Tenn. Code
Ann. § 29-9-103(b) (2000).


                                             A.

       Mother initially contends the trial court committed reversible error by refusing to set
her bail in contravention of the constitutional guarantees afforded to her. Tenn. R. Crim. P.
42(b) provides that the defendant in a criminal contempt case is “entitled to admission to bail
as provided by these rules.” Tenn. R. Crim. P. 32(d)(1) provides that “a person convicted of
a misdemeanor has a right to have bail set or to be released on recognizance pending the
exhaustion of all direct appellate procedure in the case.”

        In Weissfeld v. Weissfeld, No. E2004-00134-COA-R3-CV, 2004 WL 2070979 (Tenn.
Ct. App. E.S., Sept. 16, 2004), we determined “that the cited rules mandate that there be a
timely setting of bail upon a criminal contempt conviction and the trial court’s failure to do
so in this case constituted further procedural error.” 2004 WL 2070979, at *5.

        Upon the findings of criminal contempt at the conclusion of the hearing on December
15, 2008, the trial court denied an appeal bond. Counsel for Mother requested that bail be
set in order to appeal the finding. Mother contends that the Rules of Criminal Procedure
have been violated by the trial court upon denying bail after the finding of criminal contempt.

       This court set bail for Mother on December 23, 2008. Pursuant to Tenn. R. Crim. P.
42(b)(3), we found Mother’s “Emergency Motion to Set Appeal Bond” to be well taken. It
was ordered that upon Mother furnishing bail in the amount of $5,000 in a satisfactory form,
she was to be immediately released on bail pending final determination of her appeal. In
view of our action, we find this issue to be moot. A matter will be considered moot if it no

                                              -6-
longer serves as a means to provide some sort of relief to the party who may prevail or if it
no longer presents a present, ongoing controversy. McCanless v. Klein, 188 S.W.2d 745, 747
(Tenn. 1945); County of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn. Ct. App. 1996).


                                             B.

       Trial courts may impose punishment for indirect criminal contempt only after
providing notice pursuant to Tenn. R. Crim. P. 42(b), which provides in pertinent part:

       (1) Content of Notice. The criminal contempt notice shall:

       (A) state the time and place of the hearing;

       (B) allow the defendant 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 defendant or, on application of the district attorney general or
       of an attorney appointed by the court for that purpose, by a show cause or
       arrest order.

Tenn. R. Crim. P. 42(b)(1)-(2).

        Sufficient notice meeting the requirements of due process must be given as a
prerequisite to a court’s authority to punish a party for criminal contempt committed outside
the presence of the court. Storey v. Storey, 835 S.W.2d 593, 599-600 (Tenn. Ct. App. 1992).
Under Tenn. R. Crim. P. 42(b), a person facing a criminal contempt charge must “be given
explicit notice that they are charged with criminal contempt and must also be informed of the
facts giving rise to the charge.” Long v. McAllister-Long, 221 S.W.3d 1, 13 (Tenn. Ct. App.
2006) (citation omitted). “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.” Id. at 13-14.



                                             -7-
        Mother argues that in examining the petition for contempt and show cause order for
purportedly violating the parenting plan, as well as reviewing the October 8 and December
12 hearings, the notice required under Tenn. R. Crim. P. 42(b) is deficient. She contends that
the petition for contempt and show cause order fails to state the essential facts constituting
the criminal contempt charge as required under Tenn. R. Crim. P. 42(b)(1)(C). According
to her, while this petition requests Mother be punished for her failure to follow the temporary
parenting plan, nowhere does the petition state that Mother allegedly violated the parenting
plan 105 times and thus faced jail time up to 1070 days.

        Mother further contends that the trial court erred in finding her in criminal contempt
without giving her notice orally in open court as required by Tenn. R. Crim. P. 42(b)(2). She
asserts that her sentence must be overturned because the trial court did not give her notice
orally in open court that she faced the potential sentence of 1070 days of incarceration.

        During the hearing on October 8, it appears the trial court was initially under the
impression that Father’s attorney had brought a contempt petition based on Mother’s lack of
adherence to the parenting plan. As the hearing progressed, counsel for Father filed and
served only the petition for criminal contempt based on Mother allegedly contacting the
children via text message. The trial court then requested in open court that Father’s attorney
file a petition for contempt based on the withholding of co-parenting time.

       Mother asserts that at no point in time did the trial court give her notice orally in open
court that she faced jail time for withholding co-parenting time. According to Mother, the
only arguably oral notice was the request from the trial court to Father’s attorney to file a
petition for contempt based on the withholding of co-parenting time.

       Penalties for criminal contempt cannot be imposed on someone who has not been
afforded the protections that the state and federal constitutions require in criminal
proceedings. See Hicks v. Feiock, 485 U.S. 624, 632, 108 S.Ct. 1429-30 (1988). The court
in which a petition for criminal contempt is filed must assure that the accused party receives
adequate notice of the charges he or she faces. McPherson v. McPherson, No. M2003-
02677-COA-R3-CV, 2005 WL 3479630, at *5 (Tenn. Ct. App. M.S., Dec. 19, 2005); Tenn.
R. Crim. P. 42(b). Upon our review of this record, we find that it raises serious doubts
concerning whether Mother clearly understood that the petitions exposed her to incarceration.
Further, we find that the trial court failed to provide Mother with proper oral notice about the
charges as required by Tenn. R. Crim. P. 42(b). Accordingly, we vacate Mother’s
punishment for criminal contempt.2



       2
           Mother’s additional contentions will not be addressed in view of our ruling.

                                                     -8-
                                    V. CONCLUSION

        The trial court’s order finding Mother to be in criminal contempt is vacated and this
case is remanded to the Circuit Court of Knox County for collection of costs below. Costs
on appeal are taxed to the Appellee, Jason Eric McLean, for which execution may issue, if
necessary.


                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE




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