Ahern v. Ahern

• Decision Date: 17 March 2000
• Docket Number: 97-00233
• Citation: 15 S.W.3d 73
• Parties: DOROTHY JANE AHERN (PIEROTTI),v ROBERT FRANCIS AHERN,IN THE SUPREME COURT OF TENNESSEE AT JACKSON (HEARD AT MEMPHIS) FOR PUBLICATION FOR: JOHN R. CANDY, Collierville, GARLAND ERGDEN, Memphis, W. MARK WARD, Memphis FOR: ROBERT A. WAMPLER, MARK A. FULKS Memphis SHELBY COUNTY CIRCUIT, Hon. D'Army Bailey, Judge JANICE M. HOLDER, JUSTICE Concurring: Anderson, C.J., Drowota, Birch, and Barker, J.J. O P I N I O N AFFIRMED IN PART; REVERSED IN PART. HOLDER, J. We granted this appeal to determine: 1) whether the constitutional protections against double jeopardy prevented the defendant's retrial for criminal contempt after testimony had been taken by one judge and the case was then transferred to a second judge; and 2) whether the defendant was entitled to a jury trial when the defendant was tried for criminal contempt under Tenn. Code Ann. 29-9-102 et seq. (1980). We conclude that the constitutional protections against double jeopardy prohibited the defendant's retrial for criminal contempt because testimony was taken prior to the transfer of the case to a second judge. Accordingly, we reverse the defendant's convictions and vacate his sentences. We also conclude that the defendant was not entitled to a jury trial under Tenn. Code Ann. 29-9-102.(FN2) I. FACTUAL and PROCEDURAL BACKGROUND Dorothy Jane Ahern Pierotti ("Pierotti") and Robert Francis Ahern ("Ahern") were divorced
• Court: Tennessee Supreme Court

DOROTHY JANE AHERN (PIEROTTI), PLAINTIFF-APPELLEE v ROBERT FRANCIS AHERN, DEFENDANT-APPELLANT

No. W1997-00233-SC-R11-CV

IN THE SUPREME COURT OF TENNESSEE AT JACKSON

(HEARD AT MEMPHIS)

FOR PUBLICATION

FOR DEFENDANT-APPELLANT: JOHN R. CANDY, Collierville, GARLAND ERGDEN, Memphis, W. MARK WARD, Memphis

FOR PLAINTIFF-APPELLEE: ROBERT A. WAMPLER, MARK A. FULKS Memphis

SHELBY COUNTY CIRCUIT, Hon. D'Army Bailey, Judge

JANICE M. HOLDER, JUSTICE

Concurring: Anderson, C.J., Drowota, Birch, and Barker, J.J.

O P I N I O N

AFFIRMED IN PART; REVERSED IN PART. HOLDER, J.

We granted this appeal to determine: 1) whether the constitutional protections against double jeopardy prevented the defendant's retrial for criminal contempt after testimony had been taken by one judge and the case was then transferred to a second judge; and 2) whether the defendant was entitled to a jury trial when the defendant was tried for criminal contempt under Tenn. Code Ann. 29-9-102 et seq. (1980).

We conclude that the constitutional protections against double jeopardy prohibited the defendant's retrial for criminal contempt because testimony was taken prior to the transfer of the case to a second judge. Accordingly, we reverse the defendant's convictions and vacate his sentences. We also conclude that the defendant was not entitled to a jury trial under Tenn. Code Ann. 29-9-102.²

I. FACTUAL and PROCEDURAL BACKGROUND

Dorothy Jane Ahern Pierotti ("Pierotti") and Robert Francis Ahern ("Ahern") were divorced June 25, 1993. A marital dissolution agreement ("MDA") was approved by Circuit Judge D'Army Bailey in Division 8. The divorce decree incorporating the MDA gave Pierotti sole custody of the couple's two children. The MDA also directed Ahern to pay monthly child support, a majority (88.5%) of the health-related costs not covered by insurance, and a majority (88.5%) of the children's school tuition. Ahern was required to pay Pierotti alimony in solido in the sum of $63,751 payable in monthly installments of $1,000.

On November 4, 1996, Pierotti filed a petition for writ of scire facias alleging that Ahern was in wilful contempt of the court's order directing him to pay alimony and child support. In February 1997, Pierotti amended the petition seeking to have Ahern found in both civil and criminal contempt. Ahern denied that he was in contempt and demanded a jury trial. He contended that many of the debts alleged by Pierotti were discharged in his bankruptcy action which was final on January 3, 1996. He further alleged that he had not been asked to pay for any health-related bills for his children and additionally argued that orthodontic care was not an expense contemplated by the final divorce decree.

On March 17, 1997, Pierotti filed a notice asking the court and jury to find Ahern in civil and criminal contempt of the court order and to punish him accordingly under Tenn. Code Ann. 16-1-103, 29-9-101-106. Pierotti also asked the court for a hearing to determine the dischargeability of Ahern's pre-bankruptcy petition debts.

Judge Bailey, who had approved the MDA, transferred the case to Circuit Judge Kay Robilio in Division 5 prior to the trial for contempt. After transfer of the case, Ahern waived his right to a jury trial. Judge Robilio began the trial and heard testimony from Pierotti. During the proceedings, counsel for the parties argued over both the need for an interpretation of the provisions in the MDA and the dischargeability of the debts in Ahern's bankruptcy. After a recess taken during Pierotti's testimony, Judge Robilio sua sponte transferred the case back to Division 8 stating:

This Court is of the opinion that post-divorce matters, especially in a situation such as this one, are more properly heard by the judge who heard the divorce, and this - and Division 5 is transferring this back to Division 8, which is now in a posture to accommodate the parties.

When Pierotti's counsel asked, "You mean today?" the judge responded, "I mean immediately. I mean right this moment." The attorney thanked the judge, and the judge asked for the case file. The transcript indicates the proceedings then recommenced in Division 8 before Judge Bailey.

After Pierotti's counsel gave Judge Bailey a history of the case, Ahern's counsel objected to the case proceeding before Judge Bailey and sought either dismissal on double jeopardy grounds or a retransfer to Division 5. Ahern's counsel argued that jeopardy had attached when the first witness testified in Division 5. Judge Bailey ruled that Ahern's double jeopardy claim was waived. Ahern renewed his request for a jury trial. Judge Bailey ruled that Ahern had waived his right to a jury trial as well. During the bench trial in Division 8, the proof demonstrated that Ahern failed to make payments for his children's school tuition, his son's braces, and some other dental expenses not covered by insurance. Ahern attempted to testify that the alimony obligation had been discharged in his bankruptcy action. Pierotti's counsel objected to the testimony, and Judge Bailey ruled that the testimony was irrelevant. Ahern testified that he did not have the money to make payments because he was paying his monthly child support, supporting his new wife and four children, and paying a mortgage.

Ahern made an offer of proof demonstrating that he filed his bankruptcy action in October 1993; that Pierotti filed a claim in the amount of $72,481.95; that the claim was treated as a general, unsecured claim; that Pierotti received a distribution of $13,643 through the bankruptcy court; and that Ahern received a discharge as to all dischargeable debts. Pierotti's proof of claim characterized the debt as both a division of property and as spousal support and maintenance.

Judge Bailey issued a written order July 22, 1997, finding Ahern guilty of criminal contempt beyond a reasonable doubt for failure to pay both child support and alimony.³ The only basis cited for the finding of criminal contempt was Tenn. Code Ann. 29-9-102(3) (allowing the court to punish for contempt of court for "the wilful disobedience or resistance of any . . . party . . . to any lawful . . . order of [the] court."). The trial judge found that Ahern had the ability to meet his financial obligations "at all times since the entry of the Final Decree."⁴ The judge characterized the contempt as "deliberate, calculated and willful." The court deemed each failure to pay monthly alimony a separate act of criminal contempt. Ahern was sentenced to five days for each of the twenty-eight "counts" of contempt for a total of 140 days.⁵ With regard to the contempt for the children's unpaid school tuition and health-related costs, the court imposed a 180-day sentence to run concurrently with the 140-day sentence. The trial court awarded Pierotti a money judgment for $17,586.60 representing $13,828.12 in unpaid school tuition through May 1997 and $3,758.48 for unpaid health-related costs through November 1996. The trial court also awarded Pierotti a money judgment of $28,271.46 for unpaid alimony through December 31, 1996.⁶ The judgment is against Ahern and his software company, which guaranteed the payment of the alimony in the MDA. Pierotti was also awarded attorney's fees.

Ahern appealed the judgment to the Court of Appeals arguing that his right to be free from double jeopardy was violated, his right to a jury trial was violated, and the exclusion of proof regarding his prior bankruptcy was improper. Affirming the trial court in part, the appellate court ruled that Ahern waived his double jeopardy claim by failing to object in Division 5 when the case was transferred to Division 8. As to the jury trial issue, the appellate court ruled that Ahern did not have a right to a jury trial in a criminal contempt proceeding. Lastly, the appellate court ruled that the trial court committed reversible error by excluding evidence of Ahern's prior bankruptcy proceeding.⁷ Based upon the evidentiary error, the court reversed the finding of criminal contempt for failure to pay alimony and remanded the case to the trial court. Additionally, the appellate court noted that it was unable to determine how the trial court arrived at the jail sentence for contempt for failure to pay child support under the statute cited in the order. The court resolved the question by concluding that Ahern had not challenged the length of his sentence on appeal. Thus, that conviction and sentence remained intact.

II. ANALYSIS

In this Court, Ahern argues that protections against double jeopardy prohibited his retrial in Division 8. As to the allegations of criminal contempt based upon his failure to pay child support, he contends that he had the right to a jury trial because of the possibility of confinement. In the alternative, he argues that he had a right to a jury trial under Brown v. Latham, 914 S.W.2d 887 (Tenn. 1996), because it appeared that he was sentenced for failure to pay child support under Tenn. Code Ann. 36-5-104(a) as opposed to the general contempt provisions under Tenn. Code Ann. 29-9-102-103. Neither party addressed the appellate court's ruling reversing and remanding to the trial court because of the exclusion of evidence of Ahern's prior bankruptcy proceeding.

A. Applicable Statutory Provisions for Contempt

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, 164 S.W. 781, 782 (Tenn. 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...