An attorney, who was representing herself in her divorce action, appeals the trial court’s finding that she was in direct contempt of court. She insists her conduct was not contemptuous and it did not disrupt the orderly progress of the hearing. She also challenges the procedure bywhich the trial court conducted the summary contempt hearing, asserting it was erroneously held hours after the successful completion of the hearing in which she was allegedly in contempt of court. She also challenges the sufficiency of the evidence and contends the trial court erred by basing its finding of contempt on extraneous evidence instead of relying solely on knowledge the judge obtained through his own senses, his sight and hearing. A trial court has the authority to punish direct contempt summarily but only in exceptional circumstances when necessary to“act swiftly and firmly to prevent contumacious conduct from disrupting the orderly progress” of a court proceeding. Danielsv.Grimac,342 S.W.3d 511, 517 (Tenn. Ct. App. 2010); State v. Turner, 914 S.W.2d 951, 956-57 (Tenn. Crim. App. 1995); Robinson v. Air Draulics Eng’g Co., 377 S.W.2d 908, 911-12 (Tenn. 1964). The transcript of thehearingrevealsnoexceptionalcircumstances and no conduct that obstructed the administration of justice. To the contrary, all issues at the hearing during which the alleged contemptuous conduct occurred were ruled upon, and the hearing concluded hours before the commencement of the summary contempt hearing. Based on these facts, Plaintiff was entitled to a hearing upon proper notice pursuant to the procedures of Tenn. R. Crim. P. 42(b). See Grimac, 342 S.W.3d at 517-18 (citing Turner,914S.W.2dat 959 n. 11). Therefore, the court erred by conducting a deferred summary contempt hearing. Furthermore, the trial court found the attorney in contempt, “in willful misbehavior in her official transactions by appearing in Court intoxicated,” based on extrinsic evidence, urinalysis results, obtained after the hearing in question,not on conduct the court observed in the courtroom. Tennessee Rule of Criminal Procedure42(a),which governs the procedure by which a judge may summarily punish a person for criminal contempt,limits the evidence that may be considered to conduct the judge “saw or heard” in the courtroom. See Wilson v. Wilson, No. 03A01-9104-CH-00126, 1992 WL 200971, at *4 (Tenn. Ct. App. Aug. 21, 1992). Because the finding of intoxication was based on extrinsic evidence, the criminal contempt judgment must be reversed. The record also reveals the extrinsic evidence, thetest results the court relied upon, was unreliable, for it was only designed to test the“presence”of any alcohol for persons in recovery, not whether a person was “intoxicated.” Therefore, the judgment of criminal contempt is reversed and the case is dismissed.
Case Number
M2013-02003-COA-R3-CV
Originating Judge
Judge Philip E. Smith
Case Name
Cynthia McKenzie v. Jason McKenzie
Date Filed
Dissent or Concur
No
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