Opinion
No. M2002-02500-COA-R3-CV.
November 4, 2003 Session.
Filed January 6, 2004.
Appeal from the Chancery Court for Williamson County; No. 28527; R.E. Lee Davies, Judge.
Affirmed in Part, Reversed in Part and Remanded.
Robert J. Turner, Nashville, Tennessee, for the appellant, Joseph Randolph Hogue.
Rose Palermo, Nashville, Tennessee, for the appellee, Cher Lynn Hogue.
Frank G. Clement, Jr., J., delivered the opinion of the court, in which William C. Koch, Jr., P.J., M.S., and Patricia J. Cottrell, J., joined.
OPINION
Chancellor found father of minor child, who told child he is gay, in contempt for violating restraining order which prohibited father "from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle." Father appeals, asserting the restraining order was overbroad and/or vague, not issued pursuant to Tenn. R. Civ. P. 65.03, and had expired prior to the alleged offense. While we find the restraining order was issued properly and not overly broad, we find the father's act of telling child he is gay did not violate the restraining order as written.
Appellant presents two issues: 1) Whether the trial court erred in holding father of minor child who told child he is gay in contempt for violating restraining order which prohibited father "from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle." 2) Whether the temporary restraining order was properly issued and whether it expired prior to the alleged offense. A third issue is presented by Appellee, mother of the child, who seeks damages alleging the appeal is frivolous.
Appellant set forth a third issue in his brief, "Whether the trial court erred in amending the temporary parenting plan." At the oral hearing, Appellant's counsel advised that this issue was now moot. Accordingly, it will not be discussed.
This appeal arises out of a divorce proceeding in the Williamson County Chancery Court. On February 6, 2002, Cher Lynn Hogue, mother of the couple's minor child, filed a complaint for divorce alleging irreconcilable differences and inappropriate marital conduct. In the complaint she alleged that her husband Joseph Randolph Hogue, Jr., Appellant and father of the minor child, left the marital home, his wife and child to "pursue his gay lifestyle." She further alleged that her husband would expose their son to his new lifestyle, that such exposure was against the advice of the child's counselor and requested a restraining order to prevent such.
A Temporary Restraining Order was entered the day the Complaint was filed, which reads in pertinent part:
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Husband, Joseph Randolph Hogue, Jr., shall be and he hereby is RESTRAINED, pending a final hearing in this cause, from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle.
On August 2, 2002 Wife filed a Petition for Contempt alleging that Husband had violated the restraining order by allowing the child to be in the presence of the father's "gay lover" at Husband's apartment and at church and that Husband told the child that he was gay. In a separate document entitled "Notice," Wife's attorney informed Husband that he was being charged with criminal contempt and that he had certain constitutional rights. The Complaint alleges that Husband made statements such as "when someone is gay, they are born like that;" that his boyfriend is in love with him; that "Sean (Husband's boyfriend) is attracted to big men;" and that he (Husband) thought his son was old enough to understand about his father's lifestyle. Further, Wife alleged that Husband's boyfriend's shoes are in the child's closet at Husband's apartment and that his clothes are scattered about the apartment.
On September 16, 2002 the Chancellor found Husband to be in contempt for telling his son that he was gay and sentenced him to serve two days in the Williamson County Jail. The Chancellor also modified the parenting plan by eliminating all of Husband's Thursday night visitations with his son, limiting Tuesday night visitations, and authorizing Wife to make all decisions regarding their son with the exception of emergency decisions that may arise while Husband and his son were visiting.
The Chancellor found the other alleged instances, such as where the child saw his father's boyfriend at the apartment and at church, were not willful violations of the order; therefore, the Chancellor did not hold Husband in contempt for those alleged instances.
Standard of Review
Our standard of review in this non-jury case is de novo upon the record of the proceedings below and there is no presumption of correctness with respect to the Trial Court's conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996) and T.R.A.P. 13(d). The Trial Court's factual findings are, however, presumed to be correct and we must affirm such findings absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993). See City of Knoxville v. Entertainment Resources, LLC, 2003 WL 22762195, *3 (Tenn. Ct. App. 2003).
Analysis
The first issue is whether the temporary restraining order entered by the Court was overly broad and/or vague and, specifically, whether the order provided sufficient notice to Husband that he could not tell his son that he was gay.
"The matter of determining and dealing with contempts is within the court's sound discretion, subject to the absolute provisions of the law and its determination is final unless there is plain abuse of discretion." Robinson v. Air Draulics Engineering Co., 377 S.W.2d 908, 912 (Tenn. 1964) (citing 17 C.J.S. Contempt § 57, page 131). See also Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993). In its review, the appellate court should not simply substitute its judgment for the trial court's. White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). An appellate court's review should determine whether the trial court's decision is properly based in law and fact and not arbitrary, illogical, or unconscionable. State v. Brown Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn. 2000). An appellate court may reverse the trial court if the trial court did not correctly construe or apply the proper legal principles. White at 223.
Tenn. R. Civ. P. 65.02(1) reads, "Every restraining order or injunction shall be specific in terms and shall describe in reasonable detail, . . . the act restrained or enjoined." (emphasis added). This rule is "designed to protect persons from vague, loosely-drafted restraining orders and preliminary injunctions that do not give the addressee clear guidance of the conduct prohibited or compelled." Robert Banks, Jr. June F. Entman, Tennessee Civil Procedure § 4-3(e), p. 118 (1999).
The specificity requirements of Tenn. R. Civ. P. 65.02(1) are identical to Fed.R.Civ.P. 65(d) which is helpful since Tennessee has very limited case law construing the specificity requirements of Tenn. R. Civ. P. 65.02(1) while there are numerous Federal cases dealing with this requirement. Id. at 4-3(e). Fed.R.Civ.P. 65(d) established a drafting standard such that "an ordinary person reading the court's order should be able to ascertain from the document itself exactly what conduct is proscribed." Wright, Miller Kane, Federal Practice and Procedure Civil 2d § 2955. The standard of specificity is such that the enjoined party must be able to ascertain from the order itself exactly what acts are prohibited. Sanders v. Air Line Pilots Ass'n, Intern., 473 F.2d 244, 247 (C.A. 2d 1972). According to Wright and Miller, the language in 65(d) "strongly suggests that only those acts specified by the order will be treated as within its scope and that no conduct or action will be prohibited by implication" and that "all omissions or ambiguities in the order will be resolved in favor of any person charged with contempt." Wright at § 2955, p. 310. Since violation of an injunction is a penal offense, injunctions should be construed like penal and criminal statutes — strictly in favor of the person charged with violating the injunction. 43 A C.J.S. Injunctions § 243, p. 537 (1978).
The specificity requirements of Rule 65(d) are not merely technical requirements. Schmidt v. Lessard, 414 U.S. 473,476, 94 S.Ct. 713, 715, 38 L.Ed.2d 661, 664 (1974). Specificity is required for several reasons. First, if an injunctive order is too vague or general it is difficult to obey and difficult to enforce; thus there is a risk that the order could either be oppressive or ineffectual. Wright at § 2955, p. 316-317. For example, a bold person faced with a vague order may forge ahead with the very kind of conduct the court was trying to prevent; whereas a less aggressive person may refrain from conduct that the court did not intend to prohibit out of a fear of being punished. Id. at § 2955, p 320. Second, specificity is required because courts take violation of an injunctive order seriously and severe punishment may be imposed on a violator. Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 439, S.Ct. 2697, 2706, 49L.Ed.2d 599, 610 (1976). Third, in that punishment under the court's powers of contempt awaits the violator, fair notice should be provided to the restrained party. Wright at § 2955, p. 321. "Since an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed." Schmidt v. Lessard, 414 U.S. at 476, 94 S.Ct. at 715, 38 L.Ed.2d 661, 664 (1974).
A further concern with broad injunctions is the fear that a constitutionally protected right may be prohibited. Wright at § 2955, p 325. An example of this infringement occurred in Consolidation Coal Co. v. Disabled Miners of Southern West Virginia, 442 F.2d 1261, 1267(C.A. 4th, 1971) certiorari denied 404 U.S. 911, 92 S.Ct. 228, 30 L.Ed.2d 184 where the court prohibited miners from picketing or in "any other manner" interfering with operation of the mines or "inducing" the plaintiffs employees to withhold their services. The court concluded that such an order was too broad because their was no qualification such as "inducing by force and violence" and thus "pure expressions of opinion" would be prohibited causing First Amendment rights to be infringed. The United States Supreme Court analyzed a court's contempt powers coupled with a vague order and reasoned:
The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid.
International Longshoremen's Association, Local No. 1291 v. Philadelphia Marine Trade Assoc. 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236, 245 (1967).
Examples of how Tennessee courts have dealt with the specificity requirements of Rule 65.02(1) are limited. In City of Knoxville v. Entertainment Resources, the court found that an injunction that prohibited a party "from operating an adult bookstore" while the case was pending violated Tenn. R. Civ. P. 65.02(1) because it failed to specify "in reasonable detail . . . the act . . . enjoined." The violation of Rule 65.02(1) flowed from the court's holding that the definition of "adult bookstore" in the ordinance at issue was unconstitutionally vague. City of Knoxville v. Entertainment Resources, LLC., No. E2002-01143-COA-R3-CV, 2003 WL 22762195 at *8 (Tenn. Ct. App. Nov. 21, 2003).
In a case where an injunction required a business operator to remove items from property within a reasonable time and not place any further items on the property, the court examined whether the requirement of action "within a reasonable time," and "as soon as reasonably proper" failed to comply with Rule 65.02(1)'s specificity requirement. Interpreting Rule 65.02(1), the court found that this portion of the injunction did not meet the rule's requirements stating, "the purpose of Rule 65 is to ensure that parties subject to an injunction are properly apprised of their obligations, we hold that courts are bound to use an objective standard in setting a time period under which a party must labor." Cooper Management, LLC v. Performa Entertainment, Inc., No. W2001-01134-COA-R3-CV, 2002 WL 1905318 at *3 (Tenn. Ct. App. August 15, 2002).
In State v. Jackson, 16 S.W.3d 797 (Tenn. Ct. App. 1999), the court dealt with an injunction prohibiting the "lewd and obscene exhibition of the genitals." In finding that the injunction was a prior restraint that violated the First Amendment, the court was concerned that the order did not specify what activities were lewd and obscene even though the order's intent was to enjoin specific acts. The order, the court considered, attempted to prohibit a "future undescribed activity," yet there had been no identification of the specific act and no determination that the enjoined act was obscene, thus putting the business operator in the precarious position of operating a business without knowing what act would or would not be permitted. Id. at 803-804.
In this case, we find that the prohibition against "taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle" is not so vague or overly broad as to be unenforceable. However, we find that it did not put Husband on notice that he was restrained from telling his son that he was gay. We do not read the restraining order to prohibit a statement by the father that he is gay. Thus, Husband did not have notice that he was prohibited from telling his son he was gay and therefore cannot be held in contempt for doing so.
Wife has argued that Husband's act of telling his son that he was gay was against the advice of their child's counselor. While Husband violated the understanding he had with his child's counselor, this understanding is not the equivalent of an order of the court, thus Husband's violation of this understanding is not a contemptuous act.
II.
The second issue presented by Appellant reads, "Whether the trial court erred in issuing a temporary restraining order restraining the husband from `taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle.'" In furtherance of this issue, Husband argues that the restraining order was not properly issued and that it was not in effect when the alleged offense occurred.
Since we have already ruled that the restraining order is not too broad or vague to be enforceable, we will limit our discussion to the two subcategories argued within this issue. Husband contends that the issuance of the restraining order violated the provisions of Tenn. R. Civ. P. 65.03. His primary argument is that Wife made no showing "by verified complaint or affidavit that the applicant's rights are being or will be violated by the adverse party and the applicant will suffer immediate and irreparable injury, loss or damage before notice can be served and a hearing had thereon." Tenn. Civ. R.P. 65.03(1). Specifically, Husband asserts that the order was issued based solely on the child's counselor's recommendation that the child not be informed of his father's new lifestyle. Husband further contends that the order is defective in that it is not "indorsed with the date and hour of issuance" by the judge as required by Tenn. R. Civ. P. 65.03(3) and that the order at issue in this case would have expired after fifteen days, thus the order was not in effect when Husband allegedly violated it.
Wife principally counters asserting that Tenn. R. Civ. P. 65.07 is an exception to the requirements of Tenn. R. Civ. P. 65.03 which gives trial judges broad discretion with respect to the issuance of restraining orders in domestic relations cases. The trial judge, Wife asserts, based its decision to issue the order on Wife's sworn complaint which references the counselor's recommendation to both Husband and Wife that it would not be advisable for the child to be made aware of Husband's lifestyle.
Tenn. R. Civ. P. 65.07 provides:
The provisions of this Rule shall be subject to any contrary statutory provisions governing restraining orders or injunctions. In domestic relations cases, restraining orders or injunctions may be issued upon such terms and conditions and remain in force for such time as shall seem just and proper to the judge to whom application therefor is made, and the provisions of this Rule shall be followed only insofar as deemed appropriate by such judge. (emphasis added).
In Wilson v. Wilson, the court commented on the relationship between Tenn. R. Civ. P. 65.07 and the other provisions of Rule 65 stating," After laying down rules about restraining orders and temporary injunctions and providing certain procedural safeguards, Rule 65, Tenn. R. Civ. Proc. then provides that the procedural safeguards may be ignored in domestic relations cases if the trial court deems it just and proper to do so." Wilson v. Wilson, 987 S.W.2d 555, 565 (Tenn. Ct. App. 1998).
Based on the provisions of Rule 65.07, Tenn. R. Civ. P. and this court's view of it in the Wilson case, we find that the temporary restraining order was properly issued.
As for Husband's argument that the order was not in effect when he is alleged to have broken the order, the restraining order provided that Husband was restrained "pending a final hearing in this cause." Rule 65.07, Tenn. R. Civ. P. expressly provides that in domestic relations cases restraining orders may remain in force for such time as shall seem just and proper to the trial judge. Accordingly, the restraining order was in effect pursuant to the exception for domestic relations cases. See State v. George, 968 S.W.2d 896, 897 (Tenn. Crim. App. 1997) wherein a temporary restraining order was to remain in effect "pending a final hearing in this cause" and the offense in question occurred approximately 3 months after the order was issued. The court found that the order was valid and still in effect, citing Tenn. R. Civ. P. 65.07. George at 897.
III.
The final issue on appeal is Wife's prayer for damages, claiming this to be a frivolous appeal. In that Husband prevailed in large part, the appeal is not frivolous. Therefore, we deny Wife's request for damages.
In Conclusion
In conclusion, we reverse the Chancellor's finding of contempt and we affirm the Chancellor's issuance of the restraining order and find that the order has not expired and remains in effect. Costs are assessed equally against Husband and Wife.