Can a Tennessee court enter a civil contempt order by default when the alleged contemnor was served but didn't show up or respond?

Subject

Opinion No. 15-36, Orders of Contempt for Violating Court Order and Failure to Appear, April 21, 2015

Plain-English summary

A state senator asked whether a Tennessee court can enter a civil contempt judgment by default if the alleged contemnor was served with notice of a contempt motion or petition, given a hearing date, and then failed to appear or respond. The AG said yes. Civil contempt actions are private-rights enforcement, distinct from criminal contempt (which carries punitive sanctions and stronger procedural protections). Tennessee Rule of Civil Procedure 55.01 governs default judgments and does not bar default in civil contempt actions, but it requires that the party against whom the default would be entered be given written notice of the hearing at least five days in advance. So with proper service plus the Rule 55 notice plus an actual opportunity to respond, the court can enter a default contempt judgment when the alleged contemnor does not appear or defend.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Civil contempt is a tool for enforcing a litigant's private rights, often the right to receive child support, alimony, or other court-ordered relief. Tennessee courts have inherent power to punish for contempt (Tenn. Code Ann. § 16-1-103), but the power is limited to the conduct in Tenn. Code Ann. § 29-9-102. Two categories matter here: willful misbehavior obstructing justice (§ 29-9-102(1)) and willful disobedience of a court order, rule, decree, process, or command (§ 29-9-102(3)). Tenn. Code Ann. § 29-9-108 empowers local judges to impose contempt sanctions on persons who fail to appear in response to a citation on the day designated for the hearing.

The civil-vs-criminal contempt distinction matters because criminal contempt sanctions are punitive, and the contemnor is entitled to greater due process (State ex rel. Flowers v. Tenn. Trucking Assn. Self-Ins. Trust, 209 S.W.3d 602, 611 (Tenn. App. 2006)). Civil contempt is coercive (often a "purge" provision allows the contemnor to avoid sanction by complying with the order). Procedural protections are less elaborate but still must include adequate notice and an opportunity to be heard.

Tennessee Rule of Civil Procedure 55.01 allows default judgments when a party against whom relief is sought fails to plead or otherwise defend. Rule 55 makes exceptions (no default against an unrepresented minor or incompetent person), but does not exclude civil contempt. Rule 55.01 requires written notice at least five days in advance of the scheduled hearing date.

In State v. Thomason, 2006 Tenn. App. LEXIS 205 (Tenn. Ct. App. March 27, 2006), the Court of Appeals noted (without criticism) that a trial court had entered a default contempt judgment against a father who had been properly served but failed to appear for the contempt hearing on a child support petition.

The pivotal due process requirement comes from State ex rel. Flowers: the alleged contemnor must have been "provided with adequate notice of the allegation and the opportunity to respond." Once notice and the opportunity are provided, the contemnor's choice not to appear or respond opens the door to a default judgment of civil contempt and "appropriate relief."

Common questions

Does this apply to criminal contempt?
No. The AG explicitly excluded criminal contempt. Criminal contempt sanctions are punitive, and the contemnor is entitled to substantially more due process, including the right to a hearing where the prosecution has to prove the elements of contempt beyond a reasonable doubt.

What kind of sanctions can a civil contempt default judgment include?
Whatever is "appropriate" relief in the underlying case. Often that includes ordering compliance with the original order, payment of arrearages, attorney's fees, and sometimes coercive incarceration (with a purge provision letting the contemnor get out by complying).

What if the alleged contemnor was served but didn't actually receive the notice?
The opinion turns on "proper" service. Whether service was proper, and whether the alleged contemnor in fact had a meaningful opportunity to respond, are fact-specific questions a court would need to evaluate before entering the default judgment.

Can the default judgment be set aside?
Tennessee Rule of Civil Procedure 55.02 permits set-aside motions on a showing of good cause. The AG did not address that mechanism specifically.

Citations

Tenn. Code Ann. § 16-1-103 (court power to punish contempt); Tenn. Code Ann. § 29-9-102 (kinds of conduct that count as contempt); Tenn. Code Ann. § 29-9-108 (failure to appear); Tenn. R. Civ. P. 55.01 (default judgments); State ex rel. Flowers v. Tenn. Trucking Assn. Self-Ins. Trust, 209 S.W.3d 602 (Tenn. App. 2006); State v. Thomason, 2006 Tenn. App. LEXIS 205.

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-36.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 21, 2015
Opinion No. 15-36

Orders of Contempt for Violating Court Order and Failure to Appear

Question 1

If a person has been properly served with a motion or petition for civil contempt based on an alleged failure to comply with a court order but then fails to appear on the date designated in the notice for the court hearing and fails to file a response or otherwise defend, may the court enter an order of contempt by default without providing further notice or conducting a hearing?

Opinion 1

Yes. A court has authority to enter a default judgment of contempt in a proceeding for civil contempt if the alleged contemnor fails to respond or appear, as long as the alleged contemnor has been provided with proper notice and the opportunity to respond.

ANALYSIS

Civil contempt actions are brought to enforce the private rights of a litigant. Every Tennessee court is vested with the power to punish for contempt. Tenn. Code Ann. § 16-1-103. That power is limited to imposing sanctions for the conduct specified in Tenn. Code Ann. § 29-9-102, which includes willful misbehavior in the presence of or near the court if that behavior obstructs the administration of justice, Tenn. Code Ann. § 29-9-102(1), and willful disobedience of a court order, rule, decree, process, or command. Tenn. Code Ann. § 29-9-102(3). Thus, willful failure to appear without just cause in response to a petition or motion for contempt constitutes contempt. See, e.g., Tenn. Code Ann. § 29-9-108 (empowering local judges to impose contempt sanctions on persons who fail to appear in response to a citation on the day designated for the hearing).

This Opinion does not deal with criminal contempt proceedings. In criminal contempt proceedings the sanctions that may be imposed are punitive in nature, and the contemnor is thus entitled to due process protections that are different from and far greater than the procedural safeguards in civil contempt actions. State ex rel. Flowers v. Tenn. Trucking Assn. Self-Ins. Trust, 209 S.W.3d 602, 611 (Tenn. App. 2006).

When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend as provided by the Tennessee Rules of Civil Procedure the court may enter judgment by default. Tenn. R. Civ. P., Rule 55.01. Although Rule 55.01 makes certain exceptions, for example, default judgments may not be entered against unrepresented infants or incompetent persons, it contains no prohibition on the entry of an order of civil contempt by default. Rule 55.01 also specifies certain procedures that must be followed before a default judgment may be entered. Most notably, the party against whom the default judgment is rendered must have been served with written notice at least 5 days in advance of the scheduled hearing date.

Thus, as long as the proper procedure is followed, and with certain limitations specified in Rule 55, a court may enter a civil contempt order by default if the alleged contemnor fails to appear or otherwise defend. The alleged contemnor must have been provided with adequate notice of the allegation and "the opportunity to respond." State ex rel. Flowers v. Tenn. Trucking Assn. Self-Ins. Trust, 209 S.W.3d 602, 611 (Tenn. App. 2006) (emphasis added). If the alleged contemnor is given notice and then chooses not to avail himself of the opportunity to respond by failing to appear or file a written response, the court may enter a default judgment of civil contempt and award appropriate relief. See State v. Thomason, 2006 Tenn. App. LEXIS 205, *3 (Tenn. Ct. App. March 27, 2006) (noting without criticism that the trial court had entered a default contempt judgment against father after finding that he had been properly served but had failed to appear for the hearing on mother's petition that he should be held in contempt for failure to pay child support as ordered).

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

MICHAEL A. MEYER
Deputy Attorney General

Requested by:
The Honorable Mike Bell
State Senator
309 War Memorial Building
Nashville, TN 37243