Wiseman Bray PLLC is open for business.
While COVID-19 has caused us to change how we interact with each other, we continue to remain fully operational, providing full service to our clients.
All of our associate attorneys are working remotely full time and our staff is functioning on a rotating basis thereby limiting the number of people in the office to no more than 5.
Please call us today if you would like to schedule a telephone or videoconference.
What is a “contempt” proceeding? - Attorneys – Wiseman Bray PLLC

What is a “contempt” proceeding?

What is a “contempt” proceeding?Tennessee Code Annotated § 29-9-102(3) authorizes courts to find a person who willfully disobeys “any lawful writ, process, order, rule, decree, or command” of a court to be in contempt of court. As punishment for being in contempt, Tennessee Code Annotated § 29-9-103 provides in relevant part:

(a) The punishment for contempt may be by fine or by imprisonment, or both.

(b) Where not otherwise specially provided, the circuit, chancery, and appellate courts are limited to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten (10) days…

A court may utilize the remedy of incarceration for either civil or criminal contempt.

What is the difference between civil and criminal contempt?

With civil contempt, the court can incarcerate the individual in order to compel performance of the court’s order. In effect, the individual has the “keys to the jail” and can purge the contempt by complying with the court’s order. For example, if an individual is in contempt for failing to pay child support, he or she can “purge” the contempt by paying the money owed.

In contrast, punishment for criminal contempt is punitive in character; it is imposed to vindicate the authority of the law. 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 individual later complies with the court’s order. For example, an individual that withholds parenting time from another parent cannot “purge” this contempt by making up the missed time. Instead, he or she may be sent to jail to punish the individual.

What are the requirements for a court to hold someone in contempt?

Contempt claims based upon an alleged disobedience of a court order have four essential elements. First, the order alleged to have been violated must be “lawful.” Second, the order alleged to have been violated must be clear, specific, and unambiguous. Third, the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order. Fourth, the person’s violation of the order must be “willful.”

The threshold issue in any contempt proceeding is whether the order alleged to have been violated is “lawful.” A lawful order is one issued by a court with jurisdiction over both the subject matter of the case and the parties. An order is not rendered void or unlawful simply because it is erroneous or subject to reversal on appeal. Erroneous orders must be followed until they are reversed. However, an order entered without either subject matter jurisdiction or jurisdiction over the parties is void and cannot provide the basis for a finding of contempt.

The second issue involves the clarity of the order alleged to have been violated. A person may not be held in civil contempt for violating an order unless the order expressly and precisely spells out the details of compliance in a way that will enable reasonable persons to know exactly what actions are required or forbidden. The order must, therefore, be clear, specific, and unambiguous.

The third issue focuses on whether the party facing the civil contempt charge actually violated the order. The burden of proof needed to find that a person has actually violated a court order is a preponderance of the evidence.

The fourth issue focuses on the willfulness of the person alleged to have violated the order. The word “willfully” most obviously means a difference between deliberate and unintended conduct. In criminal law, “willfully” connotes a culpable state of mind. In the criminal context, a willful act is one undertaken for a bad purpose.

What is “willful” conduct for civil contempt?

In the context of a civil contempt proceeding, acting willfully does not require the same standard of culpability that is required in the criminal context. Rather, willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is ‘willful’ if it is the product of free will rather than coercion. Thus, a person acts ‘willfully’ if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing.

Thus, acting contrary to a known duty may constitute willfulness for the purpose of a civil contempt proceeding. Determining whether the violation of a court order was willful is a factual determination made by the Court which is able to view the witnesses and assess their credibility.  After determining that a person has willfully violated a lawful and sufficiently clear and precise order, the court may, in its discretion, decide to hold the person in civil contempt.