Ahern v. Ahern

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
(HEARD AT MEMPHIS)
FILED
March 20, 2000

Cecil Crowson, Jr.
Appellate Court Clerk
FOR PUBLICATION

Filed: March 20, 2000

DOROTHY JANE AHERN (PIEROTTI), )
)
PLAINTIFF-APPELLEE, ) SHELBY COUNTY CIRCUIT
)
v. ) Hon. D’Army Bailey, Judge
)
ROBERT FRANCIS AHERN, ) No. W1997-00233-SC-R11-CV
)
DEFENDANT-APPELLANT. )

FOR DEFENDANT-APPELLANT: FOR PLAINTIFF-APPELLEE:

JOHN R. CANDY ROBERT A. WAMPLER
Collierville MARK A. FULKS
Memphis
GARLAND ERGÜDEN
Memphis

W. MARK WARD
Memphis

OPINION

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

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. W e also

conclude that the defendant was not entitled to a jury trial under Tenn. Code

Ann. § 29-9-102.1

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.

1
Oral argument was heard in this case on November 17, 1999, in Memphis, Shelby
Coun ty, Tenne ssee, a s part of th is Court’s S.C.A.L .E.S. (Supreme Court Advancing Legal
Education for Students ) project.

2
 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.

3
 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

4
support and alimony.2 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.”3 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.4 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, 1996.5 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.

2
The judge also ruled that the objection to the bankruptcy court’s order of reference for an
interpretation of the MDA was waived. The judge found that the MDA “speaks for itself” and that
the alim ony order ed in the M DA wa s nece ssary an d reaso nable.

3
The trial court found that between the years 1994 and 1997 Ahern earned $80,000
annually; he served as the president and owner of a software management company; he was
paying a $135,000 mortgage on a house valued at $170,000; and he paid $5,000 to a woman who
alleged tha t Ahern p hysically abus ed her.

This ruling calls into que stion Jud ge Bailey’s ap pointm ent of the p ublic defe nder’s of fice.
Acc ordin g to th e brie fs file d by A hern , he is repre sen ted b y three attorn eys, J ohn R. C and y,
Collierville, Garland Ergüden, M emphis, and W . Mark W ard, Memp his. An order in the record
indicates that a “public defender” was appointed to represent Ahe rn, but the order did not identify
an at torne y by nam e. No affid avit su ppo rting th e def end ant’s indige ncy an d righ t to pu blic
repr ese ntatio n is on file. It is u ncle ar wh ethe r an a ttorn ey fro m th e pub lic def end er’s o ffice is
representing Ahern.

4
W e not e tha t the tr ial cou rt fou nd ea ch fa ilure to pay a m onth ly insta llme nt of a limo ny to
be a separate act of contempt and imposed consecutive sentences for each “count.” The
appropriateness of creating multiple counts to impose more than a 10-day sentence under Tenn.
Code Ann. § 29 -9-103 is not an iss ue that is pr esently bef ore us.

5
In paragraph 2 of the trial court’s order, Ahern was found to be in arrears on alimony
through December 31, 1997, and in paragraph 6 he was found to be in arrears through December
31, 1996. Since the trial court’s order was entered on July 22, 1997, the date in paragraph 2
appears to be a typographical error. The award of $28,271.46 represents the arrearage through
December 31, 1996.

5
 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. 6 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

6
The Court of Appeals held the evidence of Ahern’s bankruptcy was relevant because the
disobedience to a court order must be wilful for the trial court to find contempt under Tenn. Code
Ann. § 29-9-102(3). According to Ahern, he believed that the alimony debt had been discharged
in his b ank ruptc y. The cour t reas one d tha t the p roffe red te stim ony te nde d to s how that A hern did
not wilfully violate the trial court’s ord er.

6
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 be construed to extend to any except the following
cases:

(1) The willful misbehavior of any person in the
presence of the court, or so near thereto as to
obstruct the administration of justice.

(2) The willful misbehavior of any of the officers of
said courts, in their official transactions.

(3) The willful disobedience or resistance of any
officer of the said courts, party, juror, witness, or any
other person, to any lawful writ, process, order, rule,
decree, or command of said courts.

(4) Abuse of, or unlawful interference with, the
process or proceedings of the court.

(5) Willfully conversing with jurors in relation to the
merits of the cause in the trial of which they are
engaged, or otherwise tampering with them.

(6) Any other act or omission declared a contempt by
law.

Thus, to find contempt under this statute, a court must find the

misbehavior, disobedience, resistance, or interference to be wilful. For the court

7
to find that Ahern’s failure to pay alimony and child support was contemptuous,

the court first must determine that Ahern had the ability to pay at the time the

support was due and then determine that the failure to pay was wilful.

After a finding of contempt, courts have several remedies available

depending upon the facts of the case. A court can imprison an individual to

compel performance of a court order. This is typically referred to as “civil

contempt.” This remedy is available only when the individual has the ability to

comply with the order at the time of the contempt hearing. Tenn. Code Ann.

§ 29-9-104;7 see also Garrett v. Forest Lawn Memorial Gardens, 588 S.W.2d

309, 315 (Tenn. Ct. App. 1979). Thus, with civil contempt, the one in contempt

has the “keys to the jail” and can purge the contempt by complying with the

court’s order. Tenn. Code Ann. § 29-9-104; Garrett, 588 S.W.2d at 315. In civil

contempt, the imprisonment is meted out for the benefit of a party litigant. See

Shiflet v. State, 217 Tenn. 690, 693, 400 S.W.2d 542, 543 (1966).

A court can also imprison and/or fine an individual simply as punishment

for the contempt. This remedy is commonly referred to as “criminal contempt.”

Unless otherwise provided, the circuit, chancery, and appellate courts are limited

to imposing a fine of $50.00 and to imprisoning an individual for not more than

ten days. Tenn. Code Ann. § 29-9-103.8 A party who is in criminal contempt

7
Tennessee Code Annotated § 29-9-104 provides:

Om ission t o perfo rm ac t. – (a) If the contempt consists in an
omission to perform an act which it is yet in the power of the
person to perform , he m ay be im prisone d until he pe rform s it.
(b) The person or if same be a corporation, then such person or
corporation can be separately fined, as authorized by law, for
each day it is in contempt until it performs the act ordered by the
court.

8
Tenn essee Code Annota ted § 29- 9-103 p rovides:

Punis hme nt.– (a) The punishment for contempt may be by fine
or by imp risonm ent, or both .
(b) W here not o therw ise sp ecia lly prov ided, the c ircuit, c han cery,
and appellate courts are limited to a fine of fifty dollars ($50.00),
and imprisonment not exceeding ten (10) days, and, except as
provided in § 29-9-108, all other courts are limited to a fine of ten
dollars ($1 0.00).

8
cannot be freed by eventual compliance. See Shiflet, 217 Tenn. at 693, 400

S.W.2d at 543.

In addition to the contempt provisions in Title 29, the legislature has

provided a specific statute to address the situation in which an obligor fails to

comply with a child support order. Tennessee Code Annotated § 36-5-104

states:

(a) Any person, ordered to provide support and
maintenance for a minor child or children, who fails to
comply with the order or decree, may, in the
discretion of the court, be punished by imprisonment
in the county workhouse or county jail for a period not
to exceed six (6) months.

(b) No arrest warrant shall issue for the violation of
any court order of support if such violation occurred
during a period of time in which the obligor was
incarcerated in any penal institution and was
otherwise unable to comply with the order.

Pierotti asked the trial court to find Ahern in both civil and criminal

contempt pursuant to Tenn. Code Ann. §§ 16-1-103, 29-9-101–106. The trial

court found that Ahern had the ability to meet his financial obligations “at all

times since the entry of the Final Decree.” The court found that Ahern’s failure to

pay was “deliberate, calculated and willful” because Ahern had the ability to pay

alimony and child support. The court concluded that Ahern was guilty of criminal

contempt.

The trial court’s order cited Tenn. Code Ann. § 29-9-102(3) as the basis

for the contempt convictions but did not cite the specific sentencing provisions

upon which it relied. As to the failure to pay child support, the trial court

sentenced Ahern to 180 days, or six months, in jail. Under Tenn. Code Ann.

§§ 29-9-102(3), -103, the trial court was without authority to issue such a

sentence. Tennessee Code Annotated § 29-9-103 specifically limits circuit

courts to a maximum of a $50 fine and ten days in jail. While Tenn. Code Ann.

9
§ 36-5-104 does provide for a penalty of up to six months in jail for failure to pay

child support, that provision was neither relied upon by Pierotti nor cited by the

trial court in its ruling. Although the Court of Appeals correctly noted that Ahern

did not appeal the length of his sentences, his double jeopardy claim has the

potential to invalidate both the sentence imposed for failure to pay child support

and the sentence imposed for failure to pay alimony.

B. Double Jeopardy

Ahern argues that protections against double jeopardy prohibited his trial

for criminal contempt in Division 8 after the termination of his first trial in Division

5 without his consent. We agree.

The double jeopardy clause of the Fifth Amendment to the United States

Constitution, applicable to the states through the Fourteenth Amendment,

provides that no person shall "be subject for the same offense to be twice put in

jeopardy of life or limb . . . ." U.S. Const. amend. V, amend. XIV. Article 1, § 10

of the Tennessee Constitution provides that "no person shall, for the same

offence, be twice put in jeopardy of life or limb."

Tennessee law is settled that constitutional provisions against double

jeopardy protect an accused against a second prosecution for the same offense

after conviction, a second prosecution for the same offense after an acquittal,

and multiple punishments for the same offense. State v. Pennington, 952

S.W.2d 420, 422 (Tenn. 1997); State v. Mounce, 859 S.W.2d 319, 321 (Tenn.

1993); Whitwell v. State, 520 S.W.2d 338, 341 (Tenn. 1975). In jury

proceedings, jeopardy attaches when the jury is sworn. Pennington, 952 S.W.2d

at 422; State v. Knight, 616 S.W.2d 593, 595 (Tenn. 1981). In non-jury

proceedings, jeopardy attaches when the first witness testifies. Crist v. Bretz,

437 U.S. 28, 37, 98 S. Ct. 2156, 2162, 57 L. Ed. 2d 24 (1978); Pennington, 952

10
S.W.2d at 422. In this case, Pierotti testified in Division 5 prior to the transfer to

Division 8.

1. Consent

There are recognized exceptions to the prohibition against double

jeopardy. For example, a retrial is permitted when the defendant has actively

sought or consented to a mistrial. United States v. Scott, 437 U.S. 82, 93, 98 S.

Ct. 2195, 57 L. Ed. 2d 65 (1978); Knight, 616 S.W.2d at 596; State v. Nixon, 669

S.W.2d 679, 681 (Tenn. Crim. App. 1983). “In such a case the accused has

deliberately elected to forego his right to have guilt or innocence determined by

the first trier of fact.” Knight, 616 S.W.2d at 596.

Pierotti argues that Ahern essentially consented to the transfer and the

retrial by not objecting in Division 5 when Judge Robilio announced she was re-

transferring the case to Judge Bailey. Pierotti argues that this consent is

supported by Ahern’s failure to object coupled with his assertions that there were

ambiguities that needed to be resolved by determining the original court’s intent.

Pierotti was the first witness called to testify in Division 5. After a short

recess during her testimony, Judge Robilio announced sua sponte that she was

returning the case to Judge Bailey 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 . . . .” When asked by Pierotti’s

counsel when the transfer would take place, the trial court said the case was

being transferred immediately. A recess was taken and the proceedings

recommenced in Division 8. After Pierotti’s counsel advised Judge Bailey as to

the status of the case, Ahern’s counsel objected to the trial of the case in

Division 8 on double jeopardy grounds. Alternatively, he renewed his request for

a jury trial. The trial court overruled Ahern’s objection and ruled that his right to a

11
jury trial had been waived. Judge Bailey conducted a trial, found Ahern guilty of

contempt, and sentenced him to confinement.

The record reflects that there was little time for Ahern’s counsel to object

when Judge Robilio announced the transfer back to Division 8. Pierotti’s counsel

was able to ask for a clarification as to when the transfer would take place, but

Ahern’s counsel simply does not appear to have had an opportunity to object

until the parties appeared in Division 8. As soon as Judge Robilio answered one

question, she asked for the case file to complete the transfer. We conclude that

Ahern did not consent to the transfer to Division 8.

2. Manifest Necessity

Manifest necessity is another exception to the prohibition against double

jeopardy. Mounce, 859 S.W.2d at 321. Examples of manifest necessity include

the inability of a jury to render an impartial verdict, id.; Nixon, 669 S.W.2d at 681;

Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977); a jury’s inability

to reach a verdict, Mounce, 859 S.W.2d at 321; and misconduct by defense

counsel leaving no feasible alternative except to halt the proceedings, see

Arizona v. Washington, 434 U.S. 497, 514-516, 98 S. Ct. 824, 834-35, 54 L. Ed.

2d 717 (1978); United States v. Dinitz, 424 U.S. 600, 611-612, 96 S. Ct. 1075,

1081-82, 47 L. Ed. 2d 267 (1976). “When a mistrial is declared because of a

manifest necessity, double jeopardy is not violated when the defendant is retried

even if he objected to the mistrial.” Mounce, 859 S.W.2d at 321.

Pierotti contends that there was a manifest necessity to declare a mistrial

and transfer the case. Pierotti contends that Ahern made repeated assertions in

Division 5 that the MDA and a master’s report referenced in the MDA were

ambiguous as to whether payments to Pierotti were alimony or property division.

Pierroti argues that Judge Bailey was in a better position to resolve these issues

12
because of the long history of litigation between the parties. This controversy,

Pierotti contends, created the manifest necessity that allowed the transfer and

retrial in Division 8.

We point out that this divorce was based upon irreconcilable differences

and involved an MDA. In an irreconcilable differences divorce under Tenn. Code

Ann. § 36-4-103(3)(b), the trial court approves the agreement of the parties

unless the court finds the agreement does not equitably divide the parties’

marital property or does not adequately and sufficiently provide for the support of

the parties’ children. The “intent” of the trial court is expressed through the trial

court’s approval and incorporation of the MDA into the divorce decree. Tenn.

Code Ann. § 36-4-103. In the event the MDA is ambiguous, it is the intent of the

parties that is relevant, not the intent of the trial judge. The record is devoid of

evidence that would permit a conclusion that Division 8 was in a better position

to decide the issues presented. Moreover, the record does not reflect that the

trial judge in Division 5 was unable to hear the case and decide the issues.

Accordingly, there was no manifest necessity to transfer the case.

The record clearly demonstrates that the first witness had begun to testify

in the non-jury trial in Division 5. Thus, we find that jeopardy attached. There

was neither consent by Ahern nor a manifest necessity to declare a mistrial and

to transfer the case. We hold that the trial court in Division 8 erred in denying

Ahern’s motion. Accordingly, we hold that the convictions for criminal contempt

for failure to pay alimony and child support are reversed and the sentences are

vacated.

C. Jury Trial

We will next address whether Ahern is entitled to a jury trial for criminal

contempt under Tenn. Code Ann. § 29-9-102. In Brown v. Latham, this Court

13
distinguished the contempt provisions in Tenn. Code Ann. § 29-9-102 from Tenn.

Code Ann. § 36-5-104(a). Brown, 914 S.W.2d at 889. Tennessee Code

Annotated § 36-5-104 addresses only the failure to pay child support. The

punishment for violation of this statutory provision is the equivalent of

punishment for committing a misdemeanor offense. Brown, 914 S.W.2d at 888.

Unlike Tenn. Code Ann. § 36-5-104(a), contempt provisions of Tenn.

Code Ann. § 29-9-102 are used to vindicate the authority of the courts either by

punishment or by forcing compliance. Brown, 914 S.W.2d at 888.9 The

“offenses” enumerated in Tenn. Code Ann. § 29-9-102 are wilful affronts to the

court and include the wilful misbehavior of an individual in the court’s presence,

the wilful disobedience of an individual to a court order, abuse of or unlawful

interference with the court proceedings, and jury tampering. Regardless of the

form of the remedy or punishment, it is the court and its administration of justice

that are offended by an act of contempt. As this Court said long ago in Graham

v. Williamson:

The power of courts to punish for contempt is of
immemorial antiquity, and is inherent in all courts as a
necessary power belonging to them in order to enable
them to accomplish the purposes for which they were
designed; that is, the orderly trial and decision of
causes, the enforcement of public order, the
prevention of interferences with their proceedings,
and the enforcement of the due respect belonging to
them as institutions of the country.

Graham, 164 S.W. 781, 782 (Tenn. 1914) (emphasis added).

The general rule is that a constitutional guaranty of
jury trial does not apply to proceedings to punish for

9
State v. Dusina, 764 S.W .2d 766 ( Tenn . 1989), do es not ap ply to the facts of this cas e.
In Dusina, this C ourt h eld th at the right to a jury tr ial und er the Ten nes see cons titution is well
established for a violation of general criminal statutes where a fine of more than $50 or any
confine men t of the acc used m ay be im posed . Id. at 768. “The right to trial by jury was not
unlimited. For example, it did not include equity cases or cases involving summary punishment
for contempt of court even though confinement in a jail or workhouse might be imposed as
punishmen t.” Id. We point out that this case does not involve a violation of a general criminal
statute. At issue here is the violation of a court order.

14
 contempt of court whether in a court of law, a court of
equity, a court having criminal jurisdiction, or other
court. Punishment for contempt may be summary
whether the contempt is direct or indirect, civil or
criminal, whether the contempt consists in
disobedience of an order of the court, insult, or in
other conduct or omission, whether the acts
constituting the contempt constitute also infractions of
the criminal law, although of the grade of felony and
whether imprisonment or fine is imposed or indemnity
of an adverse party is decreed. Due process does not
require a jury trial in such a proceeding.

Pass v. State, 184 S.W.2d 1, 3 (Tenn. 1944). The power to address violations

as contempt belongs to the courts. We conclude that one charged with criminal

contempt under Tenn. Code Ann. § 29-9-102 is not entitled to a jury trial.

III. CONCLUSION

The constitutional protections against double jeopardy prohibited Ahern’s

retrial in Division 8 after testimony had already been taken in another proceeding

in Division 5. Accordingly, the convictions for criminal contempt are reversed

and the sentences vacated. We also conclude an individual charged with

contempt under Tenn. Code Ann. § 29-9-102 is not entitled to a jury trial when

the remedy sought is that of criminal contempt. This case is remanded to the

trial court for further proceedings consistent with this opinion.

The costs of this appeal are taxed against Dorothy Jane Pierotti for which

execution may issue if necessary.

JANICE M. HOLDER, JUSTICE

Concurring:

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

15