Keith Pfister v. Tammy Searle (Moretti) ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 5, 2001 Session
KEITH PFISTER v. TAMMY SEARLE (MORETTI);
IN RE: A. S., A MINOR
Appeal from the Juvenile Court for Williamson County
No. 21110 Lonnie Hoover, Judge
No. M2000-01921-COA-R3-JV - Filed March 28, 2001
The appellant appeals from the trial court’s judgment finding her in criminal and civil contempt for
violation of an order establishing visitation for the father of her child. Because the appellant was not
provided the notice required for criminal contempt, we vacate that holding; because the appellant
complied with the court’s order to produce her child, thereby purging her civil contempt, that
judgment is now moot, and we decline to address it.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in Part, Vacated in Part, and Remanded
PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., and
WILLIAM B. CAIN , JJ., joined.
Sandra Jones, Nashville, Tennessee, for the appellant, Tammy Searle Moretti.
P. Edward Schell, Franklin, Tennessee, for the appellee, Keith Pfister.
OPINION
This appeal involves issues of civil and criminal contempt arising from alleged violations of
a child visitation order. The parties, never married to each other, are parents of a daughter born in
1996. Since the parents’ breakup, they have been involved in protracted and bitter disputes over
their child. The mother was awarded custody in February of 1998, and visitation was awarded to the
father.
The mother married, and she and her husband obtained court approval to relocate to
California with the child in June 1999.1 As part of that relocation order, the trial court modified a
prior visitation order and fashioned a visitation schedule which gave the father five days per month,
four consecutive weeks in the summer, one week at Christmas, and alternating holidays with the
child. The mother was to provide transportation and a chaperone for the travel to Tennessee, and
the father was to provide the same when the child returned to California. If the father chose to visit
the child in California, he was to cover his own travel expenses. With regard to the monthly
visitation, the order provided, “The father shall give the mother notice of his next visit in writing no
later than the day that each monthly visitation end.”
Less than full cooperation, difficult communications, a series of changed plans and
misunderstandings ensued, resulting in the father filing a petition for contempt in January of 2000,
which also sought to modify visitation. He alleged the mother had interfered with his visits and
refused to provide him with the address and telephone number of the child’s residence. He amended
his petition in March, 2000, and asked for custody of the child. The hearing was held March 9, 2000,
and the final order was entered March 16. All parties agreed that the father had neither visited nor
spoken to his daughter between a visit on August 1999, and the hearing in March 2000. They
disagreed on the cause.
Because the issues before this court are resolved without regard to preponderance of the
evidence questions, we need not detail the specifics of the testimony regarding the six months of
visitation missed by the father. As might be expected, the parties sharply disagreed on their
interpretation of events. Nonetheless, it is clear that the mother unilaterally established certain
requirements for the visits and did not provide the father a telephone number where he could reach
his child. His last request to visit was delivered by a letter from his attorney asking for visitation
between February 9, the date of the letter, and March 9, the date of the hearing which the mother was
to attend. The mother did not respond to this request and did not bring the child with her to
Tennessee.
The trial court found that the father had done all he could to visit the child, and that the
mother had done all she could to prevent the visits and to alienate the child. The court then found
the mother in criminal contempt of court for each visit the father missed and sentenced her to sixty
days in jail. The court stayed the sentence “for so long as Mrs. Moretti complies with the Orders of
this Court. In the event Mrs. Moretti fails to comply with the Orders of this Court the stay of the
sentence will be lifted and she will be required to serve the sentence in full.”
The court further found the mother to be in civil contempt, and ordered her jailed until she
had the child delivered to the Williamson County Criminal Justice Center. The court altered the
visitation schedule, so that the father had substantially longer, but less frequent, visits with the child.
1
See Searle v. Pfister, No. M2000-00731-COA-R3-CV, 2000 W L 1862841 at *1 (Tenn. Ct. App. Dec. 21,
2000) (no Tenn. R. App. P . 11 application filed).
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The court also ordered each party to “keep the other party advised at all times of their respective
addresses, telephone number, fax numbers, and e-mail addresses.”
I.
The mother challenges the findings of criminal and civil contempt. In Ahern v. Ahern, 15
S.W.3d 73 (Tenn. 2000), our Supreme Court explained the basis for a court’s exercise of its
contempt powers and distinguished between the two types:
An act of contempt is a wilful or intentional act that offends the court and its
administration of justice. Tenn. Code Ann. § 29-9-102; see Graham v. Williamson,
128 Tenn. 720, 164 S.W. 781, 782 (1914). Traditionally, contempt has been
classified as civil or criminal depending upon the action taken by the court to address
the contempt. Title 29 Chapter 9 of the Tennessee Code on Remedies and Special
Proceedings provides the grounds for contempt and the remedies available to the
court. Tenn. Code Ann. §§ 29-9-102-104. Tennessee Code Annotated § 29-9-102
provides:
The power of the several courts to issue attachments, and inflict
punishments for contempts of court, shall not be construed to extend
to any except the following cases:
***
(3) The willful disobedience or resistance of any officer of the said
courts, party, juror, witness, or any other person, to any lawful writ,
process, order, rule, decree, or command of said courts.2
***
After a finding of contempt, courts have several remedies available depending upon
the facts of the case. A court can imprison an individual to compel performance of
a court order. This is typically referred to as “civil contempt.” This remedy is
available only when the individual has the ability to comply with the order at the time
of the contempt hearing. Tenn. Code Ann. § 29-9-104; see also Garrett v. Forest
Lawn Memorial Gardens, 588 S.W.2d 309, 315 (Tenn. Ct. App. 1979). Thus, with
civil contempt, the one in contempt has the “keys to the jail” and can purge the
contempt by complying with the court’s order. Tenn. Code Ann. § 29-9-104;
Garrett, 588 S.W.2d at 315. In civil contempt, the imprisonment is meted out for the
2
The court also noted, in addition, that “Tennessee Code Annotated § 29-9-104 provides . . . (a)If the contempt
consists in an omission to perform an act which it is yet in the power of the person to perform, he may be imprisoned
until he performs it.” Ahern , 15 S.W.3d at 78 n. 7.
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benefit of a party litigant. See Shiflet v. State, 217 Tenn. 690, 693, 400 S.W.2d 542,
543 (1966).
A court can also imprison and/or fine an individual simply as punishment for the
contempt. This remedy is commonly referred to as “criminal contempt.” Unless
otherwise provided, the circuit, chancery, and appellate courts are limited to
imposing a fine of $50.00 and to imprisoning an individual for not more than ten
days. Tenn. Code Ann. § 29-9-103. A party who is in criminal contempt cannot be
freed by eventual compliance. See Shiflet, 217 Tenn. at 693, 400 S.W.2d at 543.
Ahern, 15 S.W.3d at 78-79.
II.
On appeal, the mother first challenges the court’s holding finding her in criminal contempt.
She argues that she was never given notice that she was charged with criminal contempt or was
subject to punishment for criminal contempt. Specifically, she asserts that the Petition and Amended
Petition for contempt failed to meet the notice requirements imposed by the due process clauses of
the United States and Tennessee Constitutions and Tenn. R. Crim. P. 42.
If the alleged contempt is criminal in nature, the party is entitled to all the constitutional
protections of any criminal defendant, including the presumption of innocence; the “beyond a
reasonable doubt” standard of proof, the protection against self-incrimination, and notice. Storey
v. Storey, 835 S.W.2d, 593, 599 (Tenn. Ct. App. 1992). We have addressed the notice requirements
previously:
With regard to notice, the United States Supreme Court stated in Gompers3 that
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 446, 31 S.Ct. at 500, 55 L.Ed. at 807-08.
In addition, Rule 42(b) of the Tennessee Rules of Criminal Procedure requires that
a criminal contempt be prosecuted on notice, which “shall state the time and place
3
Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 Led 7 97 (1911).
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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.” Tenn. R. Crim. Proc. 42(b) (emphasis added).
Storey, 835 S.W.2d at 599-600.
The father agrees that the petition did not comply with the notice requirements applicable to
a charge of criminal contempt because, among other things, it did not provide notice that the father
was seeking sanctions for criminal contempt. We agree that the notice was insufficient to sustain
a conviction of criminal contempt. Accordingly, we vacate the judgment of criminal contempt.
III.
Ms. Moretti was also ordered to be held in jail until she produced the child, who was in
California, for visitation with the father. Because Ms. Moretti had the “keys to jail” and could be
released upon compliance, this action by the trial court was enforcement of its orders through civil
contempt.
With regard to its determination that this action was necessary to gain compliance with its
visitation orders, the court stated:
In addition to that, I find that she is in ongoing contempt by not allowing this man to
visit with the child, and I’m going to order that she be jailed immediately and held
in detention–held in the jail until she produces the child. Once the child is produced,
I’m going to allow Mr. Pfister to have 15 days with the child. Then Mr. Pfister will
return the child to California.
With regard to the civil contempt finding, the mother asserts that the evidence does not
support a conclusion that she willfully violated the visitation order and claims that the father was
equally at fault and that the visitation order was confusing and difficult to apply in actual situations.
The father argues that the trial court’s factual findings are supported by the evidence and that the
civil contempt finding is moot since the mother was released when the child was brought to
Tennessee the next day.
We agree with the father that the issue of the mother’s civil contempt is now moot. She was
incarcerated until she produced the child for visitation with the father. She apparently did so the next
day. Therefore, the mother has complied with the court’s order she now seeks to have us vacate.
The record includes no request for relief from the incarceration for civil contempt during the period
of incarceration. Because the mother has chosen to purge herself of the contempt and to comply with
the court’s condition for release, there is no relief this court can now provide her. “[A] case will be
considered moot if it no longer serves as a means to provide some sort of relief to the prevailing
party.” Ford Consumer Finance Co., Inc. v. Clay, 984 S.W.2d 615, 616 (Tenn. Ct. App. 1998) The
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validity of the trial court’s order finding her in civil contempt is moot. Accordingly, we will not
address it.
IV.
Therefore, we vacate the judgment of criminal contempt and decline to address the order
finding Ms. Moretti in civil contempt. Costs are taxed equally to the parties for which execution
may issue if necessary. This cause is remanded to the trial court for such further proceedings as may
be necessary.
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PATRICIA J. COTTRELL, JUDGE
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