Stark v. Stark
| Decision Date | 31 January 2020 |
| Docket Number | No. W2019-00650-COA-R3-CV,W2019-00650-COA-R3-CV |
| Parties | PAMELA D. STARK v. JOE EDWARD STARK |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Shelby County
This is an appeal from an order finding the appellant in civil contempt and ordering her incarcerated until she agreed to remove a social media post. The appellant was incarcerated for four hours before she purged herself of contempt by agreeing to remove the post. On appeal, the appellant challenges the civil contempt finding. Because the appellant has purged herself of civil contempt and was released from incarceration, we deem the issue moot and dismiss this appeal.
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and KENNY W. ARMSTRONG, J., joined.
Pamela D. Stark, Memphis, Tennessee, Pro Se.
Melissa C. Berry, Memphis, Tennessee, for the appellee, Joe Edward Stark.
OPINIONAfter a five-year marriage, Pamela Stark ("Wife") filed a complaint for divorce from her husband, Joe Stark ("Husband") on June 29, 2018. Wife is an attorney and filed her complaint pro se. Husband is a sergeant with the Memphis Police Department.
Tennessee Code Annotated section 36-4-106(d) states that when a petition for divorce is filed and served, the following temporary injunction is in effect against both parties:
(3) An injunction restraining both parties from harassing, threatening, assaulting or abusing the other and from making disparaging remarks about the other . . . to either party's employer.
Tenn. Code Ann. § 36-4-106(d)(3) (emphasis added). The parties are permitted to apply to the court "for further temporary orders, an expanded temporary injunction, or modification or revocation of this temporary injunction." Tenn. Code Ann. § 36-4-106(d)(6).
Husband filed an answer and counter-complaint for divorce. Wife amended her complaint to add "interspousal tort" claims against Husband, including battery and intentional infliction of emotional distress. Wife alleged that she was injured during a physical altercation with Husband days before the complaint for divorce was filed.
On January 15, 2019, Husband filed a petition for a restraining order. Husband alleged that he had recently become aware of a Facebook post made by Wife on December 14, 2018, in which she publicly posted allegations regarding Husband and the alleged incident of domestic violence between them. Husband claimed that Wife's post also disparaged the Memphis Police Department and its investigation of the incident. Husband asserted that Wife's dissemination of these allegations in a public forum would cause him immediate and irreparable injury, including but not limited to loss of employment, demotion, or damage to his reputation within the department. As such, Husband asked the trial court to enter a restraining order directing Wife to remove the Facebook post and to cease and desist from making any future comments, orally or on social media, that might jeopardize his employment or impugn his reputation with the police department. Husband sought an award of attorney's fees incurred in bringing the petition for a restraining order.
Wife filed a response to the petition in which she alleged that her post was critical of the Memphis Police Department, not Husband. She also argued that the restraining order sought by Husband would infringe on her "constitutional rights." The trial court held a hearing on Husband's petition for a restraining order on February 7, 2019. At the outset, counsel for Husband explained that Husband was basically asking the trial court to extend the existing statutory injunctions to specifically address public posts on social media or communication with Husband's employer that would have a detrimental effect on his reputation or employment. Husband submitted as exhibits the Facebook post made by Wife and also an email Wife had sent to the mayor of Memphis about the incident. In the Facebook post, Wife claimed to be "a recent victim of domestic violence at the hands of a Memphis Police Officer," and she criticized the handling of the investigation. Husband testified that his co-workers at the police department saw the Facebook post before he did. He explained that he and Wife have many mutual friends on the social media site because Wife worked as a prosecutor. Husband testified that a special prosecutor from another city was appointed to conduct an investigation regarding the alleged incident of domestic violence involving him and Wife.
Wife's four-page email to the mayor likewise claimed that she was a victim of domestic violence at the hands of Husband and a victim of misconduct by the Memphis Police Department. She identified her husband by name and rank and described her version of the physical altercation between them and the events that followed. Wife asked the mayor to "look into this before it goes further." Husband testified that the city mayor is considered his ultimate boss and employer. He opined that Wife's social media post and email to the mayor constituted harassment and brought his reputation into question.
Wife did not testify but repeated her argument that she had an absolute right to criticize the police department. At the conclusion of the hearing, the trial judge informed Wife that the problem with her argument was the existence of the automatic injunction prohibiting her from "making disparaging remarks about the other [spouse] . . . to either party's employer." See Tenn. Code Ann. § 36-4-106(d)(3) (emphasis added). The trial judge acknowledged Wife's "freedom of speech" argument but emphasized that her email did not convey some general concern about police corruption but instead was in direct reference to Husband. He explained that the references to Husband were "off limits." The trial judge then orally ruled that the Facebook post had to be removed that same day and that Wife would not be permitted to make further allegations on social media or have communication with Husband's employer.
The following exchange occurred between the trial judge and Wife:
Wife was held in custody for four hours before she agreed to remove the Facebook post and was released.
Thereafter, the trial court entered its written order granting Husband's petition for a restraining order. The trial court entered a separate written order finding Wife in direct civil contempt. The order states that at the end of the hearing on the petition for a restraining order, "in open Court, [Wife] advised that the Court may as well [] find her in Contempt as she was not going to take the Facebook post of December 14, 2018 down which had just been ordered." The court noted that it then asked Wife directly whether she was going to abide by the court's order, to which she responded, "No." As such, the order states, the trial court found Wife in direct contempt of court, and she was immediately taken into custody. According to the order, Wife was ordered to be held in custody until she agreed to remove the Facebook post, and after being held in custody for four hours, she agreed to remove the post as ordered. Therefore, the written order states that Wife had already purged her contempt. Wife timely filed a notice of appeal.
Wife presents the following issues, which we have slightly restated, in her brief on appeal:
1. Whether the trial court erred by issuing a restraining order involving matters which were not subject to adjudication or final judgment in the pending divorce and interspousal tort case before the court;2. Whether the trial court erred in finding sufficient proof under Tennessee Rule of Civil Procedure 65.04 to establish either a right or an immediate and irreparable injury, loss, or damage to warrant the restraining order;
3. Whether the trial court erred in issuing a restraining order without employing the proper constitutional analysis associated with Wife's infringed rights;
4. Whether the trial court erred in conducting summary contempt proceedings to impose sanctions for direct civil contempt; and
5. Whether the trial court erred in imposing contempt sanctions before the court's order was actually violated.
In his posture as appellee, Husband asserts that Wife's issues on appeal must be limited to those challenging the contempt order, not the restraining order entered in the context of the underlying divorce action, which remains pending in the trial court.
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