Dad Escapes Contempt Finding On Some, But Not All, Charges

Tennessee child custody case summary on contempt post-divorce.

Amy Brasfield Marlow v. Joseph Charles Marlow

The mother and father in this Knox County, Tennessee, case were divorced in 2012.  The permanent parenting plan issued in the case included a provision that neither parent would make derogatory remarks about the other parent or the other parent’s family in the presence of the child.

In 2014, the mother filed a petition for criminal contempt alleging that the father had violated this provision.  A three-day trial was held, and the father was found guilty of 60 counts of criminal contempt.  In its ruling, the trial court identified various texts sent by the father.  The father was acquitted for sending one particular text.  He was sentenced to ten days for each offense, for a total of 600 days.  However, he was only required to serve eight days.  A revised parenting plan was also issued, which contained a more specific provision about sending offensive e-mails and texts.

In 2016, the mother was back in court, alleging 133 more violations.  After some negotiation, the father pleaded guilty to 10 unspecified counts.  When accepting the guilty plea, the trial court did not conduct a plea colloquy as required by the Tennessee Rules of Criminal Procedure, and the father was not asked questions as to whether the plea was knowing and voluntary.

Later that same year, the mother filed a third contempt petition, alleging thirteen more violations.  This time, the father also brought his own contempt petition, alleging 48 violations.  The father also filed a motion to set aside 58 of the 60 convictions from the first order.  He alleged that he had not received adequate notice of the charges against him.  He also moved to set aside the guilty pleas from the second petition, because he was never asked whether the pleas were voluntary.

The trial court, Judge Gregory S. McMillan, held that all but five of the allegations from the first petition would be set aside.  Those five were held to have proper notice.  The sentence was changed to 60 days, and the actual amount served, ten days, was held to be proper.

The court also set aside the guilty plea from the second petition, due to the improper procedure being used at the plea hearing.

The father also moved to set aside some of the new allegations on double jeopardy grounds.  He reasoned that since the charges had been resolved against him, it was a violation of his double jeopardy rights to be tried again on those charges.  When this motion was denied, he brought an interlocutory appeal to the Tennessee Court of Appeals.

The court first noted that even though this was a civil case, since the remedy being sought was criminal contempt, that most of the protections of criminal procedure applied, and this included the rules against double jeopardy.

The first charge to be addressed was the text for which the father had been acquitted in the first proceeding.  The appeals court agreed with the father that the acquittal meant that this charge couldn’t be part of any future contempt proceeding.

The court then turned to the charges that were set aside as a result of the faulty guilty plea.  The mother argued, however, that the father was never acquitted for these charges.  The appeals court agreed with the mother, because the reversal of these charges was merely a procedural matter, and did not constitute an acquittal.  For that reason, jeopardy had not attached for those 133 allegations, and double jeopardy did not bar trying them.

The appeals court also found it significant that the father had not pleaded guilty to any particular count.  The plea was simply for ten unspecified counts out of the 133.  It noted that double jeopardy prevents retrial of the same specific charge, and here, there was no specific charge involved.

On the other hand, there were some counts in the third petition where the mother had specifically agreed that she would not pursue.  This agreement, it held, was enforceable.

For these reasons, the Court of Appeals reversed the trial court’s order in part, but affirmed it in part and remanded.

No. E2017-01190-COA-R9-CV (Tenn. Ct. App. May 29, 2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Child Custody Laws in Tennessee.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.