How to be Notified and Properly Served a Contempt Citation After Failing to Appear in Court

February 20, 2020

Written by: Lauren Kisner

In order to effectually exercise its powers, every court in Tennessee has the power to punish for contempt, as provided by Tennessee Code Annotated (T.C.A.) §16-1-103. To hold someone in contempt means to punish those who willfully disobey or resist lawful writ, process, court order or rule, decree. For example, failing to show up for a hearing, after proper notice and service of notice, would be grounds to hold someone in contempt. A recent case fleshes out this concept in greater detail.

In re Ethan R., a mother petitioned for full custody of her son, after learning he overdosed on prescription pills and was hospitalized, while staying with his father in another state. The court awarded the mother full custody, declaring the son to be neglected by the father. In re Ethan R., No. W2010600201COAR3CV, 2017 WL 3396544, at *1 (Tenn. Ct. App. Aug. 8, 2017). After the father appealed the verdict and the mother subsequently filed a motion to dismiss, the court entered a final judgment to reset the parenting schedule and grant the father partial custody. On August 26, 2015, the father filed a contempt petition, alleging that the mother refused to allow visitation or contact with his son, and therefore, disobeyed court orders regarding custody. Id. at *2. On September 11, the day of the hearing, the father and his counsel were present, but the mother failed to appear in person or by counsel. Id.

A notice signed and dated by the Circuit Court clerk was mailed by the father’s counsel to the mother’s place of employment, to inform her that the hearing on the petition for Citation of Contempt was reset for October 5. Id. at *3. On the FedEx receipt, the father’s attorney was listed as the shipper, the mother as the recipient, and noted that the delivery method required the mother’s signature. Id. The notice signed by a paralegal working with the mother’s attorney was returned, which indicates that the notice was delivered to mother at her place of employment. Id.

On October 1, 2015, the mother filed a motion to dismiss petition for citation of contempt. Id. She claimed the following: on September 9, 2015, after returning from an out of town trip after a long holiday weekend, she discovered the FedEx package left at front door, which copy of contempt petition filed on August 26, 2015 and a blank return receipt; on September 28, she received a phone call from an attorney informing her that the hearing was scheduled for October 5; and that she had not been served with any summons about the father’s petition of contempt or received any court order before that phone call. Id.

Accordingly, the hearing on the contempt petition was reset for December 4; the mother failed to appear. Id. at *4. Eleven days later, the court held that due to the mother’s absence her actions rose to the level of criminal contempt, because she willfully and intentionally violated the orders of the court without just cause or excuse. Id. at *5. Moreover, the mother had been properly notified, per Tennessee Rule of Criminal Procedure 42(b). A criminal notice shall state the time and place of hearing; allow the alleged wrongdoer a reasonable time to prepare a defense; and state the essential facts of the criminal contempt charge and describe it as such. Id. An adequate notice must include what crime the accused is being charged, enable the accused to understand the purpose of the charge is to punish for failing to adhere to a court order, and sufficiently help the accused to understand the nature of the accusation, which includes clearly and unambiguously stating the court order that was allegedly violated. Id. at *6. The mother received a package on September 9 that contained a copy of the contempt petition, marked with a filing date and read, “to determine whether [the mother] is in contempt of the Court’s orders and should be punished as provided by law, including but not limited to, confinement in jail for civil contempt until purged of contempt and criminal contempt pursuant to T.C.A. §29-9-102.” Id. at *7. Therefore, from September 9 when the mother received the contempt petition to December 4 when the hearing was rescheduled, the mother had a reasonable time to contact the court and prepare a defense.

The court also held that the petition was properly served in accordance with Tennessee Rule of Civil Procedure 4.03Id. at *7. Service of a contempt petition must be made by the judge upon the attorney or the party, with a copy of the document served, or by mailing it to the party’s last known address, or by leaving a copy with the county clerk. Id. The Rules of Criminal Procedure also demand that proof of service be made, under Rule 5.03: “Proof may be by certificate of a member of the Bar of the Court or by affidavit of the person who served the papers, or by any other proof satisfactory to the court.” Id. at *8. The mother testified that on September 9, 2015, she discovered a FedEx package left at front door which contains a copy of contempt petition filed by Father dated August 26, 2015 with a blank return receipt. Id. Attached as Exhibit One to her motion is a copy of a certificate of service executed by Father’s counsel, attesting that on August 26 “the foregoing Notice of Setting has been forwarded… via hand-delivery, electronic transmission, or United States Postal Service.” Id. In addition, Mother filed another motion to dismiss the petition on November 24, which showed acknowledgement of the hearing set for December 4. Id.

To hold someone in contempt means to punish those who willfully disobey or resist lawful writ, process, court order or rule, decree. The court has the power to hold someone in contempt for failure to appear for a hearing, so long as the court has properly served and notified the wrongdoer as provided by statute. The contempt petition must include direct language and specific grounds to be charged with contempt. For the foregoing reasons, the mother was properly served at her last known address and lawfully notified of the hearing in accordance with Tennessee Rule of Civil Procedure 5.03.