# Louise Ann Mawn v. Gregg Thomas Tarquinio

> Court of Appeals of Tennessee · March 27, 2020

URL: https://www.frixlaw.com/law-library/cases/4520211

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** March 27, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Presiding Judge J. Steven Stafford
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4520211

## How later opinions describe it (automated extraction)

- noting that such a presumption is unconstitutional “even if it is disputable or rebuttable”

## Opinion text

03/27/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 10, 2020 Session

LOUISE ANN MAWN v. GREGG THOMAS TARQUINIO

Appeal from the Circuit Court for Davidson County
No. 17D372 Phillip R. Robinson, Judge
___________________________________

No. M2019-00933-COA-R3-CV
__________________________________

During the pendency of a divorce, Husband was convicted of six counts of criminal
contempt for violating the statutory injunction under Tennessee Code Annotated section
36-4-106(d). On appeal, Husband contends that the trial court erred in finding that he
willfully violated the statute. Because we are unable to determine if the trial court applied
an impermissible conclusive presumption to find that Husband was aware of his
obligations under the statutory injunction, we vacate and remand to the trial court for
reconsideration.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY ARMSTRONG, JJ., joined.

Joshua G. Strickland and D. Scott Parsley, Nashville, Tennessee, for the appellant, Gregg
Thomas Tarquinio.

Joshua V. Lindsey and April W. Nemer, Nashville, Tennessee, for the appellee, Louise
Ann Mawn.

OPINION

I. BACKGROUND

Plaintiff/Appellee Louise Ann Mawn (“Wife”) filed a complaint for divorce from
Defendant/Appellant Gregg Thomas Tarquinio (“Husband”) on March 6, 2017. On
March 13, 2017, Attorney Gregory D. Smith (“Initial Attorney”) filed a notice of
appearance on behalf of Husband. On the same day, the complaint, a summons, and a
copy of the temporary statutory injunction under Tennessee Code Annotated § 36-4-
106(d) were served on Initial Attorney. On April 26, 2017, new counsel was substituted
for Husband by agreed order. Wife thereafter filed an amended complaint. In addition to
the grounds of irreconcilable differences and inappropriate marital conduct alleged in the
first complaint, the amended complaint also alleged cruel and inhumane treatment by
Husband. Wife filed a motion for an accounting, to allocate payment of expenses, and for
support pendente lite on January 17, 2018. Then, on February 2, 2018, Husband filed a
motion to require Wife to return certain funds that she had taken from the parties’ joint
accounts; the motion indicated that Wife’s actions “likely violated the statutory
restraining order issued when [Wife] decided to file for divorce[.]” On or about March
14, 2018, Husband’s second counsel withdrew and his current counsel was substituted.
On March 21, 2018, Husband filed an answer to Wife’s amended complaint, as well as a
counter-complaint for divorce.

On April 17, 2018, Wife filed a motion to enforce the statutory injunction and to
compel the return of marital funds that Husband had allegedly withdrawn from the
parties’ bank accounts. On June 18, 2018, the trial court temporarily enjoined Husband
from withdrawing any funds from the parties’ four children’s college savings plans that
were in his name. In the meantime, Wife filed a second amended complaint on May 24,
2018, alleging adultery as an additional ground for divorce. Wife thereafter filed a motion
seeking access to Husband’s electronic devices for purposes of discovery; there was a
concern that Husband was deleting messages from his paramour.

Wife’s issues with regard to Husband’s financial withdrawals and alleged
spoliation of evidence came to a head when Wife filed two separate criminal contempt
petitions against Husband in August and October 2018, both alleging that Husband had
willfully violated the statutory injunction. Specifically, the August 2018 petition alleged
the following counts of criminal contempt: (1) the willful deletion of all text messages
between Husband and his paramour following the filing of the divorce complaint on
March 6, 2017; (2) the willful deletion of all email messages between Husband and his
paramour following the filing of the divorce complaint on March 6, 2017; (3) a
$12,000.00 withdrawal on February 5, 2018, from one of the college savings plans set up
for the parties’ daughter; (4) a $6,700.00 withdrawal on March 6, 2018, from one of the
college savings plans set up for the parties’ other daughter. Wife asked that Husband be
sentenced to ten days in jail and a $50.00 fine for each count. The October 2018 petition
alleged two additional counts of criminal contempt: (1) a $6,600.00 withdrawal on April
5, 2018, from one of the college savings plans set up for the parties’ son; and (2) a
$6,600.00 withdrawal on April 5, 2018, from one of the college savings plans set up for
the parties’ other son. Thus, Wife’s two petitions essentially alleged that Husband had
willfully withdrawn funds from each of the parties four children’s college savings plans
without her knowledge or consent. Again, Wife asked for the maximum incarceration and
fine for these alleged violations. On December 21, 2018, Husband filed his own petition
for criminal contempt against Wife, alleging various violations of the parties’ temporary
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parenting plan.

Wife’s contempt petitions were heard together on March 7, 2019. The evidence
presented concerned Husband’s spoliation of evidence and his action in cashing out the
children’s savings funds. At trial, Husband claimed that he was unaware of the statutory
injunction. According to Husband, he was not served personally with the divorce
complaint nor did he authorize Initial Attorneys to accept service on his behalf. Husband
further testified that he had no discussions with any of his attorneys about the statutory
injunction until preparation for the contempt hearing. Husband admitted, however, that he
took money from the college savings accounts. According to Husband, this was a typical
practice throughout the marriage and the money would be repaid once the marital home
was sold. Husband also admitted to deleting messages from his paramour but again
claimed that this was his typical practice. During her testimony, Wife admitted that she
had taken out approximately $600,000.00 in loans while the divorce was pending and that
on one occasion the parties had withdrawn from a college savings plan to pay a tax debt.
During the trial, the trial court provided Husband with a copy of the statutory injunction
and advised him to read it upon his journey home.

At the conclusion of the trial, the trial court orally found Husband guilty of all six
counts of contempt—two from spoliation and four for depleting the college savings
accounts. The trial court sentenced Husband to twenty-six days of incarceration. In its
oral ruling, the trial court indicated that if the funds were repaid, it would consider
suspending Husband’s sentence. The trial court also indicated that it would consider an
appeal bond. Husband’s counsel indicated that he would be unable to repay the funds
absent the sale of the marital home. Husband thereafter filed a motion to alter or amend
the trial court’s judgment. Husband alternatively asked that the sentence be stayed
pending appeal. Wife responded in opposition to the motion. On April 18, 2019, the trial
court entered a written order allow Husband to post a bond pending appeal; Husband
thereafter posted the required bond. The trial court entered its written order finding
Husband guilty of contempt on April 30, 2019. Husband’s notice of appeal was filed on
May 28, 2019. Husband thereafter filed a notice that he was striking his motion to alter or
amend.

II. ISSUES PRESENTED
Husband raises three issues in this appeal, which we reorder and slightly restate:

1. Whether the trial court’s order complied with Rule 52.01 of the Tennessee Rules
of Civil Procedure.
2. Whether the trial court erred by finding Husband guilty of criminal contempt
beyond a reasonable doubt for willfully violating the statutory injunction.
3. Whether the sentence imposed is excessive.

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III. STANDARD OF REVIEW
This case was resolved by bench trial. After a bench trial, a trial court’s findings of
fact are reviewed “de novo upon the record of the trial court, accompanied by a
presumption of the correctness of the finding, unless the preponderance of the evidence is
otherwise.” Tenn. R. App. P. 13(d). A trial court’s conclusions of law are entitled to no
presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008)
(citing Langschmidt v. Langschmidt, 81 S.W.3d 741, 744–45 (Tenn. 2002)). On appeal,
great weight is given to “the trial court’s factual findings that are determined on
credibility.” Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415, 424
(Tenn. Ct. App. 2005) (citing In re Estate of Walton, 950 S.W.2d 956, 959 (Tenn.
1997)).

IV. DISCUSSION
A.

As an initial matter, we address Husband’s argument that the trial court’s order
does not comply with Rule 52.01. Rule 52.01 of the Tennessee Rules of Civil Procedure
requires that trial courts make findings of fact and conclusions of law to support their
rulings following bench trials. Tenn. R. Civ. P. 52.01 (“In all actions tried upon the facts
without a jury, the court shall find the facts specially and shall state separately its
conclusions or law and direct the entry of the appropriate judgment.”). Rule 52.01 “is
‘not a mere technicality.’” Babcock v. Babcock, No. E2014-01670-COA-R3-CV, No.
E2014-01672-COA-R3-CV, 2015 WL 1059003, at *6 (Tenn. Ct. App. Mar. 9, 2015)
(quoting In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *8 (Tenn.
Ct. App. May 15, 2009)). No bright-line test exists to determine whether factual findings
are sufficient, but the findings of fact must include as many facts as necessary to express
how the trial court reached its ultimate conclusion on each factual issue. Lovlace v.
Copley, 418 S.W.3d 1, 35 (Tenn. 2013) (citing 9C Charles A. Wright et al., Federal
Practice and Procedure § 2571, at 328 (3d ed. 2005)).

After a thorough review of the trial court’s order, we conclude that it is sufficient.
The trial court’s order spans over six pages. Therein, the trial court discusses the issuance
of the statutory injunction, the fact that the injunction was served on Husband’s initial
attorneys, and that these attorneys accepted service on Husband’s behalf. The trial court
next dispensed with Husband’s contention that he had no notice of the injunction,
specifically finding that Husband had notice of the injunction and that it was valid,
enforceable, and unambiguous. The trial court next considered each of the six counts of
contempt, finding the proof presented of each violation of the statutory injunction beyond
a reasonable doubt. Although the trial court certainly could have included additional facts
concerning each violation, it appears from the record and Husband’s brief that he
generally does not dispute that he took the actions that Wife asserts were contemptuous,
but only whether he did so with the proper mens rea. As such, we must conclude that the
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trial court’s order is sufficient to facilitate appropriate appellate review.

B.

Husband next contends that the trial court erred in finding that he was guilty of
criminal contempt beyond a reasonable doubt. Tennessee Code Annotated section 29-9-
102 authorizes courts to “inflict punishments for contempts of court” for, inter alia, “[t]he
willful disobedience or resistance of any officer of the such courts, party, juror, witness,
or any other person, to any lawful writ, process, order, rule, decree, or command of such
courts[.]” Tenn. Code Ann. § 29-9-102(3). In this situation, “[t]here are three essential
elements to criminal contempt: ‘(1) a court order, (2) the defendant’s violation of that
order, and (3) proof that the defendant willfully violated that order.’” Pruitt v. Pruitt, 293
S.W.3d 537, 545 (Tenn. Ct. App. 2008) (citing Foster v. Foster, No. M2006-01277-
COA-R3-CV, 2007 WL 4530813, at *5 (Tenn. Ct. App. Dec. 20, 2007)). In addition, the
plaintiff must show the following four elements: (1) the order allegedly violated was
lawful; (2) the order was clear and unambiguous; (3) the individual charged did in fact
violate the order; and (4) the individual acted willfully in so violating the order.
Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 354–55
(Tenn. 2008); Furlong v. Furlong, 370 S.W.3d 329, 336 (Tenn. Ct. App. 2011) (stating
that the four-element analysis outlined in Konvalinka applies to criminal and civil
contempt actions). As this Court has previously explained,

A person charged with criminal contempt is “presumed innocent and
may not be found to be in criminal contempt in the absence of proof beyond
a reasonable doubt that they have willfully failed to comply with the court’s
order.” Long v. McAllister-Long, 221 S.W.3d 1, 13 (Tenn. Ct. App. 2006)
(citing Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996); Thigpen v.
Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993)). If the defendant is
found guilty by the trial court, the defendant has the burden on appeal of
illustrating why the evidence is insufficient to support the verdict of guilt.
Black, 938 S.W.2d at 399. When the sufficiency of the evidence in a
criminal contempt case is raised in an appeal, this court must review the
record to determine if the evidence in the record supports the finding of fact
of guilt beyond a reasonable doubt, and “if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt”
we are to set aside the finding of guilt. See Tenn. R. App. P. 13(e)
(directing that “findings of guilt in criminal actions shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt”).

Pruitt, 293 S.W.3d at 545–46.

The court order at issue in this case is the statutory injunction issued in all
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Tennessee divorces pursuant to Tennessee Code Annotated § 36-4-106(d). This
injunction prevents parties to a divorce from, inter alia, “transferring, assigning,
borrowing against, concealing or in any way dissipating or disposing, without the consent
of the other party or an order of the court, of any marital property.” Tenn. Code Ann. §
36-4-106(d). The injunction further prohibits “both parties from hiding, destroying or
spoiling, in whole or in part, any evidence electronically stored or on computer hard
drives or other memory storage devices.” The statutory injunction goes into effect either
“upon personal service of the complaint and summons on the respondent or upon waiver
and acceptance of service by the respondent[.]”

Husband essentially admitted at trial that he had both deleted messages between
himself and his paramour and removed money from the parties’ college savings funds
following the filing of the divorce decree and the issuance of the statutory injunction. As
such, the first two elements of criminal contempt are met in this case. See Pruitt, 293
S.W.3d at 545. In addition, although Husband argued in the trial court that the statutory
injunction was not a lawful unambiguous order, he appears to have abandoned that
argument on appeal.1 See Konvalinka, 249 S.W.3d at 354–55. The sole issue related to
Husband’s guilt therefore concerns whether Husband’s violation of the statutory
injunction was willful.

Tennessee’s seminal case on contempt is Konvalinka v. Chattanooga-Hamilton
Cty. Hosp. Auth., 249 S.W.3d 346 (Tenn. 2008). Therein, the Tennessee Supreme Court
explained that the willfulness element is not identical in the context of a civil and
criminal contempt:

The word “willfully” has been characterized as a word of many meanings
whose construction depends on the context in which it appears. Spies v.
United States, 317 U.S. 492, 497, 63 S.Ct. 364, 87 L.Ed. 418 (1943);
United States v. Phillips, 19 F.3d 1565, 1576–77 (11th Cir.1994). Most
obviously, it differentiates between deliberate and unintended conduct.
State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust, 209
S.W.3d at 612. However, in criminal law, “willfully” connotes a culpable
state of mind. In the criminal context, a willful act is one undertaken for a
bad purpose. Bryan v. United States, 524 U.S. 184, 191, 118 S.Ct. 1939,
141 L.Ed.2d 197 (1998); State v. Braden, 867 S.W.2d 750, 761 (Tenn.
Crim. App. 1993) (upholding an instruction stating that “[a]n act is done
willfully if done voluntarily and intentionally and with the specific intent to

1
When questioned, Husband again raised this argument at oral argument. Because this issue was
not raised and properly supported in Husband’s appellate brief, it is waived. See Skaan v. Fed. Exp.
Corp., No. W2011-01807-COA-R3-CV, 2012 WL 6212891, at *7 (Tenn. Ct. App. Dec. 13, 2012) (citing
Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)) (holding that an argument raised at
oral argument but not properly briefed was waived on appeal).

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do something the law forbids”).
In the context of a civil contempt proceeding under Tenn. Code Ann. § 29-
2-102(3), acting willfully does not require the same standard of culpability
that is required in the criminal context. State ex rel. Flowers v. Tenn.
Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d at 612. 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.
State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust, 209
S.W.3d at 612 (citations omitted). Thus, acting contrary to a known duty
may constitute willfulness for the purpose of a civil contempt proceeding.
United States v. Ray, 683 F.2d 1116, 1127 (7th Cir.1982); City of Dubuque
v. Iowa Dist. Ct. for Dubuque County, 725 N.W.2d 449, 452 (Iowa 2006);
Utah Farm Prod. Credit Ass’n v. Labrum, 762 P.2d 1070, 1074 (Utah
1988).

Konvalinka, 249 S.W.3d at 357 (footnote omitted).

Based on the language of Konvalinka, Husband contends that the evidence is
insufficient to prove his guilt beyond a reasonable doubt because Wife did not show that
he acted willfully, as he alleges that he did not have actual knowledge that his actions
were unlawful. As we perceive it, Wife’s contentions are two-fold. First, Wife asserts that
the willfulness standard should not be interpreted to require knowledge of unlawfulness.
In the alternative, however, Wife asserts that Husband’s knowledge in this case was
shown through the service of the injunction on Initial Attorney.

In support of her first argument, Wife contends that this Court should apply the
definition of willfulness utilized by the Tennessee Supreme Court in State v. Casper, 297
S.W.3d 676 (Tenn. 2009). In Casper, the defendant was charged with nineteen counts of
sale of securities by an unregistered broker-dealer or agent in violation of the Tennessee
Securities Act. Id. at 678. In particular, the statute required the state to prove that the
defendant acted willfully. At trial, the defendant claimed that he was unaware of the
registration requirement in this situation and therefore that he did not act willfully. Id. at
679. The jury convicted the defendant on fifteen counts, but the Court of Criminal
Appeals reversed, holding that the prosecution was required to prove not only that the
defendant intentionally sold the securities, but also that the defendant was “‘aware that
his or her conduct [wa]s prohibited by [the statute], and yet nevertheless intentionally
[sold] the security knowing he or she [wa]s violating the law.’” Id. at 682 (quoting State

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v. Casper, No. M2006-02538-CCA-R3-CD, 2008 WL 2648954, at *10 (Tenn. Crim.
App. July 3, 2008)).

The Tennessee Supreme Court reversed the decision of the Court of Criminal
Appeals and reinstated the jury verdict. Id. at 677. In reaching this result, the Tennessee
Supreme Court first noted that the term willfully “does not have a plain meaning” and has
been defined differently depending on its context. Id. at 688. Rather, “‘[t]he word
‘willfully’ has been characterized as a word of many meanings whose construction
depends on the context in which it appears.’” Id. (quoting Spies v. United States, 317
U.S. 492, 497, 63 S.Ct. 364, 87 L.Ed. 418 (1943)). The court noted some contexts where
willfully was defined as requiring as little as action that is simply the product of free will,
see In re M.L.P., 281 S.W.3d 387, 392 (Tenn. 2009), to requiring as much as purposeful
violations of orders that include an “element of perverseness.” Rogers v. Kroger Co., 832
S.W.2d 538, 541 (Tenn. 1992). Moreover, although the Court noted that in the criminal
context, willful also connotes an action taken for a bad purpose, this definition likewise
“defies clear understanding and depends heavily upon context.” Casper, 297 S.W.3d at
688. As such, even in the criminal context, the Court noted that the term willfully has
been defined broadly as “an act done with a bad purpose; without justifiable excuse;
stubbornly, obstinately, perversely. The word is also employed to characterize a thing
done without ground for believing it is lawful, or conduct marked by careless disregard
whether or not one has the right so to act.” Id. (citing Bryan, 524 U.S. at 191 n.12
(quoting United States v. Murdock, 290 U.S. 389, 394–95, 54 S.Ct. 223, 78 L.Ed. 381
(1933) (citations omitted))).

Accordingly, the Tennessee Supreme Court ruled that the Court of Criminal
Appeals’ use of caselaw outside the securities context was not persuasive of the proper
interpretation of the Tennessee Securities Act. Id. (citing Ratzlaf v. United States, 510
U.S. 135, 114 S. Ct. 655, 126 L. Ed. 2d 615 (1994) (requiring knowledge that action was
unlawful with regard to a financial crime); Cheek v. United States, 498 U.S. 192, 111 S.
Ct. 604, 112 L. Ed. 2d 617 (1991) (holding that the jury should be permitted to consider a
defendant’s belief that a law was not applicable in determining whether the defendant
acted willfully)). Instead, the court held that the proper focus was caselaw interpreting
statutes from other jurisdictions that likewise derive from the 1956 Uniform Securities
Act. According to the Tennessee Supreme Court “[t]he clear majority of state courts,
when considering criminal prosecutions for either the sale of unregistered securities or
the sale of securities by an unregistered individual, have held that the state need not prove
that the accused knew his acts were illegal in order to behave willfully.” Id. at 692 (citing
cases). In adopting the majority approach, our high court relied on two important
considerations. First, the plain language of the relevant statute indicated that
“imprisonment” was not an available punishment “if the person proves that the person
had no actual knowledge of the rule or order.” Id. at 693 (citing Tenn. Code Ann. § 48-2-
123(a)). “By stating that the level of punishment for violations of the rules and
regulations promulgated under the 1980 Securities Act is subject to a heightened
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knowledge requirement, the legislature sent a clear signal that such a requirement does
not exist for violations of the Act itself.” Id. Second, the majority rule was consistent
with the remedial purpose of the statute to protect the public from fraud, which statute is
to be liberally construed to effectuate its purpose. Id. (citing King v. Pope, 91 S.W.3d
314, 323–24 (Tenn. 2002)). Thus, the Tennessee Supreme Court held that knowledge that
the defendant’s action was unlawful was not required to show that the defendant acted
willfully under the relevant statute.

Wife asks this Court to likewise hold that knowledge of unlawfulness is not
required to prove willfulness in the criminal contempt context. As noted by the Casper
court, however, the definition of willfulness is highly dependent on the context. See
Casper, 297 S.W.3d at 689 (explaining that “context is essential to determining the
statutory meaning of the words ‘willful’ or ‘willfully’”). Cases involving criminal
contempt are therefore better sources from which to define this term. And these cases
have generally concluded that willfulness in the criminal contempt realm suggests an
element of knowledge. For example, the Tennessee Court of Criminal Appeals offered
this explanation of the willfulness required to sustain a finding of criminal contempt
based on the holding in Konvalinka:

We read the supreme court’s articulation of the varying standards for
willfulness in Konvalinka, and its express limitation of the “intentional or
voluntary” standard to civil contempt proceedings, to indicate that
something more is required for willfulness in the context of a criminal
contempt proceeding. Although the court did not specifically state that the
standard for willfulness in a criminal contempt proceeding is “a culpable
state of mind” equivalent to “a bad purpose,” it used those standards to
distinguish between willfulness “[i]n the criminal context” and the standard
it adopted for civil contempt. Id. We therefore conclude that in order for a
party’s disobedience of a court order to be “willful” and subject to criminal
contempt under section 29-9-102(3), the act must be “done voluntarily and
intentionally and with the specific intent to do something the law forbids.”
See id. (quoting State v. Braden, 867 S.W.2d 750, 761 (Tenn. Crim. App.
1993)). In other words, the contemnor’s act must be “undertaken for a bad
purpose.” Id. (quoting Bryan, 524 U .S. at 191); see also [In re] T.C.H.,
No. M2009-01230-COA-R3-JV, 2010 WL 1254349, at *6 [Tenn. Ct. App.
March 31, 2010)] (“‘Willful’ means that the violation of the court’s order
was committed intentionally, with knowledge that the act was in violation
of the court[’]s order, as distinguished from an accidental, inadvertent or
negligent violation of an order. In other words, it must be shown that the
defendant intentionally and deliberately disobeyed the court order.”)
(quotation marks, citations, and brackets omitted).

State v. Smith, No. E2009-00202-CCA-R3-CD, 2010 WL 5276902, at *6 (Tenn. Crim.
-9-
App. Dec. 17, 2010), perm. app. denied (Tenn. May 27, 2011). Although Smith is not a
published case, permission to appeal was denied by the Tennessee Supreme Court. As
such, we find its reasoning highly persuasive. See Tenn. Sup. Ct. R. 4(g)(1) (providing
that unpublished opinions are merely persuasive authority in unrelated cases); cf.
Williams v. City Of Milan, No. W2010-00450-COA-R9-CV, 2011 WL 538868, at *5
(Tenn. Ct. App. Feb. 16, 2011) (noting that an unpublished case, while not controlling
authority, was “highly persuasive” under the circumstances). Moreover, decisions from
this Court have followed similar reasoning to conclude that a more culpable state of mind
is required to prove criminal contempt rather than civil contempt. As this Court has put it,
[I]n the context of criminal contempt, willfulness has two elements: (1)
intentional conduct; and (2) a culpable state of mind. See State v. Beeler,
387 S.W.3d 511, 523 (Tenn. 2012); Konvalinka, 249 S.W.3d at 357.
Willful disobedience of any court order “entails an intentional violation of
a known duty. . . .” Beeler, 387 S.W.3d at 523 (emphasis in original) (citing
In re Sneed, 302 S.W.3d 825, 826 n. 1 (Tenn. 2010)). The statutory
definition of intentional conduct is found in Tennessee Code Annotated
section 39-11-302(a) (2010): “‘Intentional’ refers to a person who acts
intentionally with respect to the nature of the conduct or to a result of the
conduct when it is the person’s conscious objective or desire to engage in
the conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a). To
satisfy the culpable state of mind requirement, the act must be “undertaken
for a bad purpose.” Konvalinka, 249 S.W.3d at 357. In other words, willful
disobedience in the criminal contempt context is conduct “done voluntarily
and intentionally and with the specific intent to do something the law
forbids.” Id. (quoting State v. Braden, 867 S.W.2d 750, 761 (Tenn. Crim.
App. 1993) (upholding this definition of willful misconduct for criminal
contempt)).

Duke v. Duke, No. M2013-00624-COA-R3-CV, 2014 WL 4966902, at *31 (Tenn. Ct.
App. Oct. 3, 2014); see also Levoy v. Levoy, No. M2018-01276-COA-R3-CV, 2019 WL
6331247, at *3 (Tenn. Ct. App. Nov. 26, 2019) (requiring both intentional conduct and a
culpable state of mind to prove criminal contempt); Renken v. Renken, No. M2017-
00861-COA-R3-CV, 2019 WL 719179, at *6 (Tenn. Ct. App. Feb. 20, 2019) (same);
Howell v. Smithwick, No. E2016-00628-COA-R3-CV, 2017 WL 438620, at *4 (Tenn.
Ct. App. Feb. 1, 2017) (same); In re Carolina M., No. M2014-02133-COA-R3-JV, 2016
WL 6427853, at *5 (Tenn. Ct. App. Oct. 28, 2016), perm. app. denied (Tenn. Feb. 15,
2017) (same). Indeed, in its most recent pronouncement on this issue, the Tennessee
Supreme Court has indicated that criminal contempt requires “an intentional violation of
a known duty.” State v. Beeler, 387 S.W.3d 511, 523 (Tenn. 2012) (second emphasis
added) (citing In re Sneed, 302 S.W.3d 825, 827 (Tenn. 2010) (noting that willful is
equivalent to intentional under Tenn. Code Ann. § 39-11-302(a) (“’Intentional’ refers to a
person who acts intentionally with respect to the nature of the conduct or to a result of the
conduct when it is the person’s conscious objective or desire to engage in the conduct or
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cause the result.”))). But see Mobley v. Mobley, No. E2012-00390-COA-R3-CV, 2013
WL 1804189, at *18 (Tenn. Ct. App. Apr. 30, 2013) (stating that willful in the criminal
context can mean “undertaken with a bad purpose,” but it can also mean “‘a thing done
without ground for believing it is lawful; or conduct marked by careless disregard
whether or not one has the right so to act. . . .’” (quoting Casper, 297 S.W.3d 687–88)).

Additionally, many cases upholding criminal contempt convictions mention that
the contemnor had knowledge of the order that was being violated. See, e.g., Levoy, 2019
WL 6331247, at *3 (“The evidence at trial supports a finding that Father’s violations of
the plan were willful. He was aware of the provisions of the parenting plan.”); Renken,
2019 WL 719179, at *6 (“Father knew that he was required to provide Mother with a
working phone number to contact the children.”); cf. Mobley, 2013 WL 1804189, at *18
(noting mother’s argument in the contempt trial was that she had complied with the trial
court’s order to the best of her ability and understanding, not that she did not have notice
of the order allegedly violated). The parties do not cite a single case wherein a criminal
contempt conviction was sustained in the absence of proof that the contemnor had some
knowledge of the allegedly violated order or writ.

Moreover, this court has previously defined the term willful in other contexts as
containing an element of knowledge; for example, in the context of termination of
parental rights, the willful failure to support requires proof that the parent be “aware of
his or her duty to support[.]” In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004).2
As such, we continue to believe that in order to successfully prosecute a claim for willful
violation of a lawful order or writ, the prosecuting party must show that the contemnor
acted both intentionally and with a bad purpose, i.e., that the contemnor acted with
knowledge that his actions were unlawful. Indeed, several sources outside our jurisdiction
likewise require knowledge as a prerequisite to willfulness in this context. See, e.g.,
Bryan v. United States, 524 U.S. 184, 191–92 (1998) (quoting Ratzlaf v. United States,
510 U.S. 135, 137 (1994)) (explaining that the bad purpose element of the willfulness
inquiry requires proof “that the defendant acted with knowledge that his conduct was
unlawful”); United States v. Phillips, 527 F. Supp. 1361, 1364 (N.D. Ill. 1981) (“In order
to mount a successful prosecution for criminal contempt, the government must prove that
the defendant had actual knowledge of a specific court order and that he or she wilfully
2
The statute that the In re M.J.B. court was interpreting has been amended in recent
years to remove the “willful” means rea from this ground for termination. See 2018 Tenn. Laws
Pub. Ch. 875 (H.B. 1856), eff. July 1, 2018 (“Tennessee Code Annotated, Section 36-1-102(1),
is amended by deleting the words “willful” and “willfully” wherever they appear[.]”); see also
Tenn. Code Ann. § 36-1-102(a)(1)(A) (2019) (defining abandonment as failure to support in the
relevant time period). The change in the statute does not alter this Court’s holding that in order to
show willfulness in the context of a failure to support, the parent must be aware of his or her duty
to support. As discussed infra, however, this knowledge may be established via a statutory
presumption. See generally Tenn. Code Ann. § 36-1-106(1)(H) (presuming that parents know of
their duty to support their children).
- 11 -
disobeyed its terms.”); Freeman v. Superior Court, 44 Cal.2d 533, 537, 282 P.2d 857
(Cal. 1955). (“[T]he alleged contemner’s notice or knowledge of the order that he is
charged with violating is a jurisdictional prerequisite to the validity of a contempt
order.”); Thomas v. Thomas, 569 P.2d 1119, 1121 (Utah 1977) (“Accordingly, in order
to justify a finding of contempt and the imposition of a jail sentence, it must appear by
clear and convincing proof that: (1), the party knew what was required of him; (2), that he
had the ability to comply; and (3), that he wilfully and knowingly failed and refused to do
so.”); 17 C.J.S. Contempt § 14 (“Under some authority, contempt is a proper sanction
only for willful misconduct or willful disobedience, requiring evidence of conduct that is
intentional and deliberate with a bad or evil purpose. . . . A contemnor acts with wrongful
intent if he or she knows or should reasonably be aware that his or her conduct is
wrongful, and mere inadvertence or honest mistake will not constitute contempt.”)
(footnotes omitted).

Still, the “bad purpose” standard “does not foreclose the possibility of a well-
intentioned or caring motive.” Duke, 2014 WL 4966902, at *32 (citing Thigpen v.
Thigpen, 874 S.W.2d 51, 54 (Tenn. Ct. App. 1993) (finding criminal contempt even
though mother was “following her maternal desire to help her son avoid a disturbing
situation.”)). Rather, “[t]he ‘bad purpose’ requirement addresses the actor’s mens rea—
their intent to act as the law forbids.” Id. Thus, we have held that a parent committed
criminal contempt by sending disparaging emails to his co-parent, even though the parent
acted out of subjective concern for his children’s welfare, when the evidence showed that
the parent “was also aware that his acts would violate the trial court’s directives.” Id.
(noting, as to another count of criminal contempt, that the parent “does not claim that he
was unaware of his obligation to refrain from making derogatory remarks about Mother
in the children’s presence”). We have come to an opposite conclusion, however, where a
child’s guardian ad litem sent an email containing protected, confidential information in
technical violation of a state statute. In re Carolina M., 2016 WL 6427853, at *5–6. In
that situation, we held that the evidence did not establish that the guardian ad litem acted
with “ill intent.” Id. at *6.

Husband contends that his actions in this case were not willful as that term is
defined in the criminal contempt context because he likewise did not act with ill intent or
a bad purpose. In fact, Husband argues that he acted innocently because he was unaware
of the issuance and contents of the statutory injunction. In the absence of knowledge that
his conduct was unlawful, Husband asserts that he cannot be found to have acted in
willful disobedience to the injunction. The trial court rejected Husband’s argument at
trial, finding that Husband was notified of the statutory injunction through service on his
counsel. In particular, the trial court’s written order provides as follows:

The Court finds that [Husband] engaged the services of [Initial
Attorney] on or before March 13, 2017. The Court bases this finding on
evidence in this cause, being the Notice of Appearance filed by [Initial
- 12 -
Attorney], which was made an exhibit in this matter. The Court finds that
[Initial Attorney] entered a Notice of Appearance on March 13, 2017. The
Court further finds that counsel for Husband accepted service on his behalf
on March 13, 2017, which the Court finds contained the Complaint for
Divorce, the statutory injunctions pursuant to [§] T.C.A. 36-4-106(d), and a
Summons.
The Court further finds that despite [Husband] claiming to have no
knowledge of the statutory injunctions, [Husband] is charged with actual
knowledge, having engaged counsel and authorized counsel to accept
service on his behalf. The Court finds that the statutory injunctions in this
cause were served as required under T.C.A. [§] 36-4-106(d) and are valid,
enforceable and unambiguous Orders of this Court.

Thus, while the trial court’s order speaks of “actual knowledge,” it is clear that the trial
court found that Husband’s knowledge came not from his own personal knowledge of the
contents of the order, but from knowledge to his attorneys that was imputed to Husband.
At oral argument, Wife confirmed that other than this imputed knowledge, there was no
proof of actual knowledge at trial.

Wife contends, however, that the knowledge imputed to Husband through service
on Husband’s attorneys is sufficient to sustain Husband’s conviction for criminal
contempt. In support, she notes the plain language of section 36-4-106(d) provides that
the injunction is effective upon not only personal service on the respondent spouse, but
also “upon waiver and acceptance of service by the respondent[.]” Here, although
Husband testified that he never expressly authorized Initial Attorney to accept service on
his behalf, there is no dispute that the complaint, summons, and statutory injunction were
served on Initial Attorney, and Husband never lodged any objection to personal
jurisdiction over him due to lack of service. Cf. Landers v. Jones, 872 S.W.2d 674, 676
(Tenn. 1994) (“Waiver occurs . . . if there is no objection to personal jurisdiction in the
first filing, either a Rule 12 motion or an answer.”). Moreover, Tennessee law is well-
settled “that knowledge obtained by an attorney during the course and in the scope of his
or her representation of a particular client is conclusively imputed to the client as a matter
of law.” Boote v. Shivers, 198 S.W.3d 732, 742 (Tenn. Ct. App. 2005) (citing Bellar v.
Baptist Hosp., Inc., 559 S.W.2d 788, 789 (Tenn. 1978)). As we have previously
explained:

[A] “person generally is held to know what his attorney knows and should
communicate to him, and the fact that the attorney has not actually
communicated his knowledge to the client is immaterial.” Smith v. Petkoff,
919 S.W.2d 595, 597–98 (Tenn. Ct. App. 1995); accord Lane-Detman,
L.L.C. v. Miller & Martin, 82 S.W.3d 284, 296 (Tenn. Ct. App. 2002).
Once it has been established that the attorney obtained the relevant
knowledge during the course of representing the client, “the constructive
- 13 -
notice thereof to the client is conclusive, and cannot be rebutted by showing
that the attorney did not in fact impart the information so acquired.” Smith
v. Petkoff, 919 S.W.2d at 597–98; accord Winstead v. First Tenn. Bank
N.A., Memphis, 709 S.W.2d at 632.

Boote, 198 S.W.3d at 742.

Still, we are not convinced that simply because the statutory injunction becomes
effective upon “waiver and acceptance of service” that a defendant may be found in
criminal contempt for failure to comply when there is no proof that the defendant had
knowledge of the injunction’s prohibitions. Importantly, while the injunction served on
Husband’s counsel states that “[v]iolation of this statute may result in a finding of
contempt of court[,]” nothing in section 36-4-106(d) states that a criminal contempt
petition against a defendant spouse can be prosecuted on “acceptance of service” by a
defendant’s counsel alone. As such, we cannot conclude that this issue may be resolved
solely by reference to section 36-4-106(d).3

Whether knowledge imputed by operation of law is sufficient to sustain a finding
of willfulness in the criminal contempt context has not been the subject of considerable
analysis by Tennessee courts. Our research has revealed one case that somewhat
considers this issue, O’Rourke v. O’Rourke, 337 S.W.3d 189 (Tenn. Ct. App. 2009). In
O’Rourke, following years of torturous litigation, the trial court entered a modified
parenting plan naming father primary residential parent and giving him sole authority
over major decisions. In contrast to the statutory rights provided by Tennessee Code
Annotated section 36-6-101(a)(3)(B), the modified plan also provided each parent with
the right to an itinerary and emergency contact information in the event the children left
the Nashville area overnight. Id. as 191. Soon, however, father filed a petition for
criminal contempt against mother for violations of the modified parenting plan. Id. In
particular, father alleged that the mother had removed the children overnight without
providing an itinerary or emergency contacts and failed to return the children to school on
time. Father further asserted that mother was aware of the modified parenting plan’s
requirements because this issue had arisen previously, and he had previously objected. Id.
at 191–92.

Mother answered father’s petition but did not deny that she had taken the actions
alleged by father. Rather, mother asserted that the “modification to the statutory
requirement of notice was ‘hidden from cursory examination of the parenting plan’ and
that it was ‘a hidden trap waiting to be sprung.’” Id. at 192. Thus, mother argued that she
had not willfully disobeyed the modified parenting plan because she was not aware of its

3
That is not to say that a spouse may not seek other recourse against a spouse for violation of the
statutory injunction. This opinion analyzes only the situation wherein a spouse seeks to hold his or her
former partner in criminal contempt for a violation of the statutory injunction.
- 14 -
specific requirements. Following a hearing, the trial court nevertheless found mother
guilty of two counts of criminal contempt and sentenced her to a short incarceration. Id.

The Court of Appeals affirmed the decision in a split opinion. The majority
concluded that despite mother’s argument otherwise, the modified parenting plan was
clear and unambiguous, and that mother had violated the plan. Id. at 194. Relevant to this
case, the majority rejected mother’s contention that her alleged violations of the plan
were not willful because she did not understand that the plan modified the standard rights
allotted parents by statute. Id.

On this point, the dissent disagreed. Rather, Judge Holly Kirby opined that
Mother’s lack of awareness of the modified parenting plan’s requirements undermined
any willfulness required to sustain a conviction for criminal contempt:

If the alleged contemnor in fact did not have knowledge of the terms of the
order that was violated, I believe that this precludes a finding that her
violation of the order was willful. In this case, the trial court's holding was
premised on its conclusion that [mother] believed, after consulting with her
attorney at the time, that the order did not require her to notify [father] of
the trip. In light of this, I believe that the intent element has not been
satisfied, and I would reverse the finding of criminal contempt on that
basis.

Id. at 197 (J. Kirby, dissenting).4 Moreover, Judge Kirby rejected the notion “that
constructive knowledge of the terms of the trial court’s order may be sufficient to support
a finding of criminal contempt.” Id. at 196. Although Judge Kirby noted that previous
cases had rejected as a defense to contempt that a contemnor was acting on the advice of
counsel, Judge Kirby dismissed these cases as outdated and improperly grouping together
both civil and criminal contempt. Id. at 196–97 (citing Garrett v. Forest Lawn Memorial
Gardens, Inc., 588 S.W.2d 309, 315 (Tenn. Ct. App. 1979) (citing Robinson v. Air
Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908 (Tenn. 1964)).5 Rather, Judge
Kirby opined that the willfulness element of criminal contempt must be shown by proof
that the violation of the court’s order “‘was committed intentionally, with knowledge that
the act was in violation of the court order, as distinguished from an accidental,
4
In 2014, Justice Kirby was elevated to the Tennessee Supreme Court.
5
We note that nothing in either Garrett or Robinson indicate that the alleged contemnor was not
aware of the allegedly violated order. See generally Robinson, 214 Tenn. 30, 377 S.W.2d at 910–11
(involving willful misbehavior, rather than violation of a lawful order); Garrett, 588 S.W.2d at 315
(involving violation of a contract with no discussion of whether the contemnor was not aware of the terms
of the contract). Rather, the only question was whether an act was willful when a contemnor violated a
known duty on the advice of counsel. The issue here is not that Husband was aware of the statutory
injunction, but chose to violate it based on counsel’s advice, but that he was completely unaware of the
injunction’s prohibition because the injunction had not been discussed with him by Initial Attorney. As
such, these cases do not resolve the issue presented in this case.
- 15 -
inadvertent or negligent violation of an order.’” Id. at 197 (quoting 17 C.J.S. Contempt §
14); cf. In re Sydney, 2010 WL 1254349, at *6 (adopting this definition of willfulness);
see also Smith, 2010 WL 5276902, at *6 (citing In re Sydney’s definition of willfulness
favorably).

The implications of O’Rourke on this case are murky at best. Importantly, the
Court of Appeals concluded that mother’s argument that she did not have notice of the
relevant parenting plan provision was not supported by the evidence, where electronic
communications between father and mother demonstrated that mother was aware of her
duty to provide an itinerary to father prior to her violation. Thus, “[e]ven if lack of
knowledge of an unambiguous and clear order might be considered to excuse non-
compliance with that order, the communications contained in the record clearly
demonstrate that [mother] was aware that the trial court’s order required her to provide
[father] with a travel itinerary and contact information if she took the children out of the
Nashville area overnight. The order is unambiguous, and [mother] was aware of its
provisions in September 2007.” Id. at 194–95. Thus, the majority opinion cannot be read
to conclude that either no notice or even constructive notice was sufficient to sustain the
criminal contempt conviction; rather, the majority clearly held that mother had actual
notice of the terms of the modified parenting plan prior to the alleged violations. As such,
it does not resolve the dispute in this case.

There is also no clear majority in the states that have likewise considered this
issue. Some courts have indicated generally that constructive knowledge is sufficient to
sustain a contempt violation. See, e.g, Bangaly Estate of Sissoko v. Baggiani, 81 N.E.3d
558, 572 (Ill. App. Ct. 2017) (imputing the knowledge of counsel to the client in a
criminal contempt proceeding); Kaeding v. Collins, 668 N.E.2d 572, 577 (Ill. App. Ct.
1996) (“Criminal contempt requires that the offender have actual or constructive
knowledge of what conduct is forbidden; intent or, at least, knowledge of the nature of
the act is necessary.”); Coloma Charter Twp. v. Berrien Cty., 894 N.W.2d 623, 632–33
(Mich. Ct. App. 2016) (holding that reasonable doubt was present when there was no
evidence that any county employee had actual notice of the order violated and there was
no proof of service on any person from which knowledge could be imputed); Kearney
Credit v. Davis, No. 170884, 1996 WL 33359090, at *1 (Mich. Ct. App. Sept. 13, 1996)
(“Defendant contends that there was no proof that he had actual knowledge of the
protective order he was charged with violating. There was evidence that defendant’s
attorney was present at the underlying hearing and approved the protective order, and an
attorney’s knowledge is generally imputed to his client.”). Other courts and judges,
however, have indicated that constructive knowledge may be insufficient to sustain a
criminal contempt conviction. See, e.g., Int’l Jai-Alai Players Ass’n v. Sports Palace,
Inc., 564 So. 2d 281, 283 (Fla. Dist. Ct. App. 1990) (“We reject this argument, finding
IJAPA’s constructive knowledge of a public record an insufficient basis to sustain a
criminal contempt order.”); Kunzler v. O’Dell, 855 P.2d 270, 277 (Utah Ct. App. 1993)
(Bench, J., dissenting in part) (“Imputed knowledge is an insufficient mens rea for
- 16 -
criminal contempt.”).

At least one jurisdiction has held that to apply this rule as a conclusive
presumption in the criminal contempt context would run afoul of the presumption of
innocence:

The general rule of agency, that notice to or knowledge possessed by an
agent is imputable to the principal, applies for certain purposes in the
relation of attorney and client. The rule rests on the premise that the agent
has acquired knowledge which it was his duty to communicate to his
principal, and the presumption is that he has performed that duty. While
under our law the presumption is deemed conclusive for the purposes of
civil actions, we do not believe that it should be given that effect for the
purpose of a proceeding of a criminal nature, such as a contempt
proceeding. On the other hand, there appears to be no valid objection to
treating the presumption as a disputable presumption for the purpose of a
contempt proceeding.

Freeman v. Superior Court, San Diego Cty., 282 P.2d 857, 860 (Cal. 1955) (citations
omitted).

The California Court of Appeals recently reaffirmed its high court’s holding,
ruling that while a court can employ a permissive inference that an attorney’s notice was
imputed to a client, it is error for the court to apply such a rule as a mandatory
presumption. See In re Ivey, 102 Cal. Rptr. 2d 447, 456 (Cal. Ct. App. 2000) (noting that
such a presumption is unconstitutional “even if it is disputable or rebuttable”). In
support, the California court noted that conclusive presumptions have been held
unconstitutional in the criminal context by the United States Supreme Court. Id. (citing
Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 637–38, 108 S. Ct. 1423, 99 L. Ed.
2d 721 (1988) (holding a mandatory presumption of ability to pay is unconstitutional in a
quasi-criminal matter such as criminal contempt)). Because the record showed that the
trial court applied only a permissive inference and evidence was presented from which it
could be inferred that father’s attorney informed him of the subject orders, the California
Court of Appeals affirmed the trial court’s finding that the father had willfully violated
the orders at issue. Id. (“From this behavior, one can reasonably infer that father had
knowledge of the orders at or near the time the orders were made and deliberately chose
to ignore the orders until he was faced with criminal contempt proceedings.”). Other
jurisdictions appear to likewise consider the context of the notice, rather than applying a
conclusive presumption that knowledge was imputed through service on a third-party.
See, e.g., United States v. Phillips, 527 F. Supp. 1361, 1365 (N.D. Ill. 1981) (“In sum,
the Court may reasonably conclude that the defendants either personally saw the Court’s
order or were sufficiently aware of the purport of the order so that actual knowledge or
notice of the terms of the order directing them to return to work immediately may be
- 17 -
imputed to them.”).

Tennessee courts define presumptions in a similar manner to that employed in
California. For example, as early as 1958, the Tennessee Supreme Court recognized “the
general trend of authority” that “‘[a] presumption of law is an inference which, in the
absence of direct evidence on the subject, the law requires to be drawn from the existence
of certain established facts.’” Marie v. State, 319 S.W.2d 86, 89 (Tenn. 1958) (quoting
31 C.J.S. Evidence § 117, p. 731). “‘A presumption is a substitute for evidence[.]’” Id.
(quoting Siler v. Siler, 277 S.W. 886, 887 (Tenn. 1925)). In particular, “‘[a] presumption
of fact is that mental process by which the existence of one fact is inferred from proof of
some other fact or facts with which experience shows it is usually associated by
succession of coexistence.’” Deavers v. Deavers, 457 S.W.2d 618, 623 (1970) (quoting
Cox v. Nance, 143 S.W.2d 897 (Tenn. Ct. App. 1940)). Clearly, a finding that Husband
had notice of the statutory injunction by virtue of proof that his attorney was served
meets the definition of a presumption or inference of fact. Cf. Garner’s Dictionary of
Legal Usage 704 (3d ed. 2011) (defining “presumption” as a legal inference or
assumption that a fact exists, based on the known or proven existence of some other fact
or facts). Importantly, this court has previously characterized this rule as an inference of
fact. See Winstead v. First Tennessee Bank N.A., Memphis, 709 S.W.2d 627, 632–33
(Tenn. Ct. App. 1986) (quoting Thompson on Real Property, Vol. 8, § 4328 (1963) (“The
law, following the inference of fact, conclusively presumes the agent to have performed
this duty of informing his principal, and the latter is therefore affected with knowledge of
all the material facts of acting in the course of his employment and within the scope of
his authority.”); see also Boote, 198 S.W.3d at 742 (characterizing the imputation as
“conclusive[]” and stating that it “cannot be rebutted”). Indeed, at oral argument, even
Wife characterized the trial court’s finding of notice in this case on the rule that a client is
“presumed to know and be bound” by the information communicated to his or her
counsel “as a matter of law.”

Presumptions and inferences are, of course, common place in our jurisprudence.
See generally County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213,
60 L.Ed.2d 777 (1979) (“Inferences and presumptions are a staple of our adversary
system of factfinding. It is often necessary for the trier of fact to determine the existence
of an element of the crime—that is, an ‘ultimate’ or ‘elemental’ fact—from the existence
of one or more ‘evidentiary’ or ‘basic’ facts.”). They are usually divided into two distinct
categories, “the entirely permissive inference or presumption” and the “mandatory
presumption.” Id. at 157. A permissive inference “allows—but does not require—the trier
of fact to infer the elemental fact from proof by the prosecutor of the basic one and which
places no burden of any kind on the defendant.” Id. In contrast, a mandatory presumption
“tells the trier that he or they must find the elemental fact upon proof of the basic fact, at
least unless the defendant has come forward with some evidence to rebut the presumed
connection between the two facts.” Id. This Court often applies a conclusive presumption
in termination of parental rights cases with regard to a parent’s knowledge of his or her
- 18 -
duty to support. See, e.g., In re Braxton M., 531 S.W.3d 708, 724 (Tenn. Ct. App. 2017)
(“[I]t is well settled in Tennessee that every parent is presumed to have knowledge of a
parent's duty to support his or her minor children regardless of whether a court order to
that effect is in place.”) (citing Tenn. Code Ann. § 36-1-106(1)(H) (“Every parent who is
eighteen (18) years of age or older is presumed to have knowledge of a parent’s legal
obligation to support such parent’s child or children[.]”)).

The use of presumptions in criminal actions, however, is circumscribed by the
defendant’s constitutional rights. In particular, the United States Supreme Court has held
that mandatory, conclusive presumptions conflict with the presumption of innocence in
criminal cases “‘which the law endows the accused and which extends to every element
of the crime.’” Sandstrom v. Montana , 442 U.S. 510, 522, 99 S. Ct. 2450, 2458, 61 L.
Ed. 2d 39 (1979), holding modified on other grounds by Boyde v. California, 494 U.S.
370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (quoting Morissette v. United States, 342
U.S. 246, 275, 72 S.Ct. 240, 96 L.Ed. 288 (1952)); see also Carella v. California, 491
U.S. 263, 268, 109 S. Ct. 2419, 2422, 105 L. Ed. 2d 218 (1989) (Scalia, J., concurring)
(“The Court has disapproved the use of mandatory conclusive presumptions not merely
because it conflicts with the overriding presumption of innocence with which the law
endows the accused, but also because it invades the fact-finding function which in a
criminal case the law assigns solely to the jury[.]” (internal citations and alterations
omitted)) (quoting Sandstrom, 442 U.S. at 523); United States v. U.S. Gypsum Co., 438
U.S. 422, 435, 98 S. Ct. 2864, 2872, 57 L. Ed. 2d 854 (1978) (“[A] defendant’s state of
mind or intent is an element of a criminal antitrust offense which must be established by
evidence and inferences drawn therefrom and cannot be taken from the trier of fact
through reliance on a legal presumption[.]”); cf. Marie v. State, 204 Tenn. 197, 204, 319
S.W.2d 86, 89 (Tenn. 1958) (quoting Underhill’s Criminal Evidence, 5th ed., § 43, p. 66)
(“‘So, though the decisions are not harmonious, the better and more reasonable view is
that the law will not countenance any presumption, which by overcoming the
presumption of innocence will cast the burden of proving his innocence upon the
defendant.’”). As such, in a criminal action, “in order to pass constitutional muster,” only
permissive inferences are permitted. Lowe v. State, 805 S.W.2d 368, 372 (Tenn. 1991)
(“We conclude, however, in order to pass constitutional muster, however, an instruction
given to the jury pursuant to the statute would have to be phrased in terms of a permissive
inference. The jury instruction given at the petitioner’s trial in this case was not so
phrased, and it follows that it violated federal due process requirements.”).

Even contempt proceedings that are characterized as criminal are not truly
criminal actions. Rather, criminal contempt is “quasi criminal in character.” State v.
Daugherty, 191 S.W. 974, 974 (Tenn. 1917); see also Baker v. State, 417 S.W.3d 428,
439 n.11 (Tenn. 2013) (describing criminal contempt as “quasi-criminal”). As such,
Tennessee courts have held that litigants charged with criminal contempt under
Tennessee Code Annotated section 29-9-102 are not entitled to the full panoply of rights
afforded to criminal defendants. See Baker, 417 S.W.3d at 439 (holding that those
- 19 -
convicted of criminal contempt are not entitled to seek post-conviction relief, but must
utilize the rules for seeking relief from judgment under the Tennessee Rules of Civil
Procedure); Ahern v. Ahern, 15 S.W.3d 73, 82 (Tenn. 2000) (concluding that “one
charged with criminal contempt under Tenn. Code Ann. § 29-9-102 is not entitled to a
jury trial”); State, ex rel. Creighton v. Creighton, No. M2010-01171-COA-R3-CV, 2011
WL 1344638, at *5 (Tenn. Ct. App. Apr. 7, 2011) (holding that those charged with
criminal contempt are not entitled to a state-funded court reporter); State v. Wood, 91
S.W.3d 769, 773 (Tenn. Ct. App. 2002) (holding that criminal contempt need not be
initiated by indictment or presentment).6 What is identical in both a criminal contempt
action and a criminal prosecution is the defendant’s presumption of innocence and the
reasonable doubt standard of proof. See Black v. Blount, 938 S.W.2d 394, 398 (Tenn.
1996) (“In the trial of a criminal contempt case, therefore, guilt of the accused must be
established by proof beyond a reasonable doubt.”); Thigpen v. Thigpen, 874 S.W.2d 51,
53 (Tenn. Ct. App. 1993) (“Persons charged with criminal contempt are presumed
innocent, and the [prosecuting party] must prove them guilty beyond a reasonable
doubt.”). Thus, one of the foundations for the United States Supreme Court’s prohibition
on mandatory, conclusive presumptions in the criminal context is present in a criminal
contempt prosecution in this State. See Sandstrom, 442 U.S. at 523; see also Carella, 491
U.S. at 268 (noting that both the right to a jury trial and the presumption of innocence
require a prohibition on mandatory conclusive presumptions in criminal cases); cf. Marie,
319 S.W.2d at 89 (suggesting that mandatory presumptions conflict with the presumption
of innocence). For this reason, we must likewise conclude that a mandatory, conclusive
presumption of fact as to notice is prohibited in this context.

As detailed above, the trial court’s finding that Husband was aware of the
provisions of the statutory injunction appear to rest entirely on the imputation of notice
from Initial Attorney to Husband. Nothing in the trial court’s order indicates that the trial
court considered other evidence presented by Wife from which notice could be inferred,7
or Husband’s evidence that he was never actually provided any notice of the statutory
injunction and that he believed that his actions were appropriate because he had taken
similar actions during the marriage. As such, we are unable to determine whether the trial
court applied a mandatory, conclusive presumption as to notice or merely a permissible
inference. If the trial court applied a mandatory, conclusive presumption in finding that
Husband had notice of the statutory injunction and therefore that his violation of the

6
Tennessee courts have held that certain additional protections are required when the defendant is
charged with contempt under Tennessee Code Annotated section 36-5-104, related to non-payment of
child support. See Brown v. Latham, 914 S.W.2d 887 (Tenn.1996) (holding that a defendant charged
under 36-5-104 is entitled to a jury trial); State v. Hill, No. M2011-02233-CCA-R3-CD, 2012 WL
3834066 (Tenn. Crim. App. Sept. 5, 2012) (no perm. app. filed) (holding that because section 36-5-104 is
a “general criminal statute,” defendants are entitled to grand jury indictments).
7
For instance, Wife points to motions filed by Father that cite the statutory injunction. The record
does contain at least one motion filed by Father prior to the removal of the funds from the college savings
accounts that does mention the statutory injunction and suggests that Wife’s actions may have violated it.
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injunction was willful, the trial court’s decision would be in error. If, however, the trial
court merely applied a permissive inference on this issue, the trial court’s finding that
Husband willfully violated the statutory injunction can be sustained. See Lowe, 805
S.W.2d at 372 (allowing only permissive inferences in criminal actions). Given the novel
nature of this case and the heavy interests involved, we believe the best course of action
is to vacate the trial court’s judgment and remand to allow the trial court to reweigh the
evidence as to Husband’s willfulness in light of this Opinion. See Konvalinka, 249
S.W.3d at 357 (“Determining whether the violation of a court order was willful is a
factual issue that is uniquely within the province of the finder-of-fact who will be able to
view the witnesses and assess their credibility.”); see also Coleman v. Olson, 551 S.W.3d
686, 697 (Tenn. 2018) (vacating the judgment of the trial court and remanding for
reconsideration after “adopting a new approach” to deciding the question at issue); cf.
Burris v. Burris, 512 S.W.3d 239, 257–58 (Tenn. Ct. App. 2016) (vacating the court’s
judgment sentencing a party for criminal contempt and remanding for “written findings
of fact and conclusions of law to support its ruling finding [m]other guilty of thirty-seven
counts of criminal contempt”); Williams v. Singler, No. W2012-01253-COA-R3-JV,
2013 WL 3927934, at *18 (Tenn. Ct. App. July 31, 2013) (vacating the finding of
contempt and remanding for “factual findings as to specific instances of contempt during
the relevant time period, including factual findings to support a holding of willfulness”).
In its discretion, the trial court may consider new evidence as to this issue. Any new order
issued by the trial court shall fully comply with Rule 52.01 of the Tennessee Rules of
Civil Procedure. All other issues are pretermitted.

V. CONCLUSION
The judgment of the Davidson County Circuit Court is vacated, and this case is
remanded for further proceedings consistent with this Opinion. Costs of this appeal are
taxed one-half to Appellant Gregg Thomas Tarquinio, and one-half to Appellee Louise
Ann Mawn, for all of which execution may issue if necessary.

_________________________________
J. STEVEN STAFFORD, JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4520211. Public record. Not legal advice.