IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 13, 2018 Session

AMY BRASFIELD MARLOW v. JOSEPH CHARLES MARLOW

Appeal from the Circuit Court for Knox County

No. 125184 Gregory S. McMillan, Judge

No. E2017-01190-COA-R9-CV

This appeal arises from three post-divorce petitions for criminal contempt against Father 

in which Mother asserts over 200 separate counts. The principal issues on appeal pertain 

to the Double Jeopardy Clause of the United States and Tennessee Constitutions. 

Following a three day trial on the first petition, Father was found to be in criminal 

contempt of 60 counts. After Mother filed her second petition in which she alleged 133 

additional counts of contempt, the parties appeared in court to announce a settlement 

pursuant to which Father would plead guilty to 10 unspecified counts with the remaining 

counts to be dismissed. Without advising and questioning Father before accepting a plea 

as Tenn. R. Crim. P. 11(b) requires, the trial court approved the agreed order, finding 

Father in criminal contempt of 10 unspecified counts. After Mother filed her third 

petition for criminal contempt, Father filed a “Motion to Alter or Amend and/or Rule 

60.02 Motion to Set Aside Most of the Criminal Contempt Findings and Holdings in this 

Cause,” contending all but two of the 60 initial convictions were constitutionally flawed. 

As for the first 58 convictions, Father argued the notice of criminal contempt failed to 

specifically state essential facts concerning each ground as required by Tenn. R. Crim. P. 

42(b). With regard to Father’s guilty plea to 10 additional counts, Father contended the 

plea and sentence were fatally flawed because the trial court failed to ascertain whether 

Father’s guilty plea was knowingly and voluntarily entered as Tenn. R. Crim. P. 11(b)

requires. The trial court vacated 55 of the 60 initial convictions, finding the notice of 

criminal contempt failed to state essential facts as required by Tenn. R. Crim. P. 42(b); 

however, the order that followed held Father in criminal contempt for sending a text to 

Mother at 10:11 a.m. on June 20 for which Father had been acquitted following trial. The 

court also set aside Father’s guilty plea to 10 of the 133 additional counts in the second 

petition because the court failed to advise and question Father before accepting a plea as 

required by Tenn. R. Crim. P. 11(b). The trial court also ruled, over Father’s objections,

that Mother could prosecute Father on all 133 counts in the second petition. In this 

appeal, Father contends the trial court violated the constitutional prohibitions against 

double jeopardy by (1) finding Father guilty of a count of criminal contempt for which he 

had been acquitted following trial, and (2) allowing Mother to prosecute her second 

05/29/2018
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petition. Because double jeopardy prohibits a prosecution after an acquittal on the same 

count, we vacate Father’s conviction for criminal contempt for sending a text to Mother 

at 10:11 a.m. on June 20. As for allowing Mother to prosecute all 133 counts in her 

second petition, the agreed order, in which Father pled guilty to 10 counts, failed to 

specifically identify any of the counts for which Father pled guilty or any of the counts 

for which he was acquitted; therefore, jeopardy did not attached to any of the 133 counts. 

Accordingly, we affirm the trial court’s decision allowing Mother to prosecute the 133 

counts in her second petition.

Tenn. R. App. P. 9 Interlocutory Appeal; Affirmed in Part, Reversed in Part, 

Vacated in Part and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which CHARLES 

D. SUSANO JR. and JOHN W. MCCLARTY JJ., joined.

Wanda G. Sobieski, Diane M. Messer, and Caitlin Elledge, Knoxville, Tennessee, for the 

appellant, Joseph Charles Marlow.

Kevin W. Shepherd and D. Chris Poulopoulos, Maryville, Tennessee, for the appellee,

Amy Brasfield Marlow.

OPINION

Amy Marlow (“Mother”) and Joseph Marlow (“Father”) divorced on October 2, 

2012, and a Permanent Parenting Plan was incorporated into the parties’ Final Decree of 

Divorce. 

On June 19, 2014, Mother filed a petition for criminal contempt (“Petition 1”),1

alleging Father violated the following provision in the permanent parenting plan:

Both parents are entitled to be free of derogatory remarks made about such 

parent or such parent’s family by the other parent to or in the presence of 

the child. T.C.A. § 36-6-101(6).

Petition 1 was tried over three days on September 8, 9, and 15, 2015. At the 

conclusion of the trial, the court found Father guilty of 60 separate counts of criminal 

contempt. In its oral ruling, which was incorporated into the trial court’s final order of 

October 15, 2015, the trial court identified each communication with specificity that 

constituted an act of contempt. Five of the 60 counts for which Father was found in 

criminal contempt pertained to Father’s communications on June 20, 2015. Specifically, 

 

1 Mother amended the petition twice, once on March 25, 2016, and once on August 18, 2015.
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the court found Father guilty of criminal contempt for sending texts to Mother at 9:53

a.m., 11:07 a.m., 11:26 a.m., 11:42 a.m., and 8:25 p.m. One of the counts for which 

Father was acquitted was for a text sent to Mother at 10:11 a.m. on June 20, 2015, which 

is significant for reasons discussed below. 

The trial court sentenced Father to ten days for each offense, for a total of 600 

days of incarceration; however, the court ordered that Father serve eight days, with 592 

days suspended, provided Father complied with the court’s orders in the future.

In the interim, Mother filed a Petition to Modify Permanent Parenting Plan and on

August 19, 2014, the parties entered into a Temporary Parenting Plan that read in 

pertinent part:

[Father] is enjoined and restrained from sending email and texts to 

[Mother] with offensive language about [Mother], for the purpose to harass 

[Mother], or without a legitimate purpose of communication about the 

children.

On February 5, 2016, Mother filed her second petition for criminal contempt

which contained 133 counts (“Petition 2”).2Instead of trying the issues, the parties came 

to an agreement regarding Petition 2, and presented an agreed order to the trial court 

pursuant to which Father would plead guilty to 10 unspecified counts, with a sentence of 

10 days for each count, and the remaining counts would be dismissed. The agreement 

additionally provided that, in exchange for Father’s guilty plea, Father’s 100-day

sentence for the 10 unspecified violations would be suspended. The agreed order also 

provided that Father’s 592-day suspended sentence arising from Petition 1 would be held 

in abeyance subject to his strict compliance with court orders.

Additionally, the parties agreed to modifications to the parenting plan, which 

included prohibiting Father from visiting the children at school without Mother’s written 

consent and limiting Father to three phone calls per week with the children. The 

agreement also prohibited Father from coming within “visual distance” of Mother’s 

residence and five other specified locations without Mother’s express written consent.

The trial court approved the parties’ agreed order, which included Father’s guilty plea; 

however, the court did not conduct a plea colloquy as required by Tenn. R. Crim. P. 11 to 

determine if Father’s guilty plea was knowingly, voluntarily, and intelligently entered. 

The agreed order was entered on May 26, 2016.

 

2

The alleged acts of contempt in Petition 1 pertained to the prohibition against derogatory 

remarks made in the presence of the child while the alleged acts of contempt in Petitions 2 and 3 mostly 

pertained to Father sending email and texts to Mother with offensive language about Mother in violation 

of the injunction in the Temporary Parenting Plan.
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On July 7, 2016, Mother filed a third petition for contempt (“Petition 3”) alleging 

thirteen counts against Father, most of which concerned alleged violations of provisions 

in the May 2016 agreed order. Father filed an answer to Mother’s petition and also filed a 

counter-petition for contempt alleging 48 counts against Mother. 

Additionally, and more pertinent to this appeal, Father filed a Motion to Alter or 

Amend and/or Rule 60.02 Motion requesting that the trial court reverse 58 of the 60 

counts of criminal contempt found against Father in the court’s October 2015 decision, 

arguing they were constitutionally flawed on due process grounds because the notice of 

criminal contempt failed to specifically state essential facts as required by Tenn. R. Crim. 

P. 42(b). In the same motion, Father also sought relief from the May 2016 agreed order in 

which he pled guilty to 10 counts, contending the plea and sentence were fatally flawed 

because the trial court failed to ascertain whether Father’s guilty plea was knowingly and 

voluntarily entered as Tenn. R. Crim. P. 11(b) requires.

The trial court agreed, in part, and on January 18, 2017, entered an order that read 

in pertinent part:

In the Court’s Order entered October 15, 2015, the Court found that Father 

had sixty violations of the Order of Protection. Within those original sixty 

instances of contempt, the Court finds and holds that . . . five violations 

were properly pled and were proved beyond a reasonable doubt. The Court 

finds that Father should be sentenced to Fifty (50) days of incarceration for 

these five instances of contempt. In determining that sentence, the Court 

has taken into account the provisions of Tennessee Code Annotated § 40-

35-115. By a preponderance of the evidence, the Court finds that 

consecutive sentencing is appropriate in that the Father is being sentenced 

for criminal contempt (Tenn. Code Ann. § 40-35-115(7)), that the Father’s 

conduct had previously been addressed by the Court and the Court’s own 

expert, and that Father, despite the clear instruction of this Court engaged in 

behavior that, but for the failure of Mother’s pleading, would have 

supported the Sixty (60) violations found by this Court in its original order. 

Father has served eight days of the sentence and there are Fifty-two days 

that are being held in abeyance.

The five violations the court found to have been properly pled and proved beyond 

a reasonable doubt were communications between Mother and Father at 9:53 a.m. on 

June 20, 10:11 a.m. on June 20, 7:00 a.m. on June 22, 7:10 a.m. on June 22, and 9:55 

a.m. on June 22, 2015. Thus, the trial court held Father in criminal contempt for these 

five counts, imposed a sentence of 50 days, and vacated Father’s convictions on the other 

55 counts. However, one of the five counts the court determined was properly pled and 

proved, the count pertaining to the 10:11 a.m. text on June 20, 2015, was not among the 
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60 counts for which Father was found guilty in the October 2015 order. To the contrary, 

and significantly, Father had been acquitted on this count pursuant to the October 2015 

order.

In the same order, the trial court also set aside the May 26, 2016 agreed order 

pursuant to which Father pleaded guilty to 10 unspecified counts. The trial court’s 

reasons for setting aside the guilty plea read in pertinent part:

After reviewing the applicable law, the Court finds that Father’s guilty plea 

entered on May 27, 2016 cannot stand. The Court did not comply with Rule 

11(b) of the Tennessee Rules of Criminal Procedure. Father now asserts 

that, at the time he entered into the plea that he “was in no position to 

negotiate anything. I just had to give in to whatever was demanded.” While 

that belief alone is not dispositive and does not require the plea to be set 

aside, it is something Father should have been able to express to the Court 

if the procedures required by Rule 11(b) had been observed. Had the 

procedure been followed, the Court could have advised Father of the rights 

he had under Rule 11(b) and determined whether Father’s plea was 

knowingly and voluntarily made. The Father’s guilty plea is hereby set 

aside. Counsel for Father asserts that, if the Court vacates Father’s guilty 

plea, he cannot be prosecuted for the allegations of contempt to which he 

pleaded guilty. The Court finds that this position is in error.

Shortly thereafter, Father filed a motion to dismiss Counts 1, 4, 5, 6, and 10 in

Petition 3 because each count was based on Father’s alleged violations of provisions of 

the May 2016 agreed order that included the guilty plea that the court had since set aside. 

It was Father’s contention that all of the provisions in the order were nullified when the 

trial court set aside the guilty plea because the guilty plea formed the basis of the parties’

agreement. As Father stated in his motion to dismiss:

8. It is well established that an agreed order is a binding contract 

representing the achievement of an amicable result in pending litigation. 

Demquarter Healthcare Investors, LP v. OP Chattanooga, LLL, No. 

E2016-00031-COA-R3-CV, 216 Tenn. App. LEXIS 1001, December 29, 

2016 at *18. Because a substantial and material term of that contract failed 

and because over five hundred (500) of the suspended days were voided, it 

is the position of Mr. Marlow that the entire May 2016 Order is void.

The trial court denied the motion.

Father then filed a Tenn. R. App. P. 9 Motion for Interlocutory Appeal on two 

grounds. First, Father argued that the court violated the double jeopardy provision in both 

the federal and state constitutions by making new findings of criminal contempt in its 
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January order. Second, Father argued that the court’s decision to set aside only part of the 

May 2016 agreed order and to put Father on trial for all of the original contempt charges 

related to the May 2016 agreed order implicated double jeopardy as well. The trial court 

granted Father’s motion, and by order entered on August 7, 2017, we granted Father’s 

Tenn. R. App. P. 9 appeal for the limited purpose of determining “whether the 

prosecution of [Father] on the various charges of criminal contempt arising out of the 

proceedings below violates state and federal constitutional prohibitions against twice 

being placed in jeopardy for the same offense.”

ANALYSIS

Constitutional questions are issues of law which we review de novo with no 

presumption of correctness given to the trial court’s legal conclusions. Waters v. Farr, 

291 S.W.3d 873, 882 (Tenn. 2009). 

“Although contempt proceedings are traditionally classified as ‘civil’ or 

‘criminal,’ in point of fact, contempt proceedings are neither wholly civil nor criminal in 

nature and may partake of the characteristics of both.” Baker v. State, 417 S.W.3d 428, 

435 (Tenn. 2013). Because criminal contempt has both civil and criminal elements, 

defendants in criminal contempt proceedings are afforded some, but not all, of the same 

constitutional protections as criminal defendants. Id. at 436. Our Supreme Court has held

that the double jeopardy protections provided by the Fifth Amendment to the United 

States Constitution and Article I, Section 10 of the Tennessee Constitution apply to 

defendants in criminal contempt proceedings. Ahern v. Ahern, 15 S.W.3d 73, 80 (Tenn. 

2000). 

Article I, Section 10 of the Tennessee Constitution provides “[t]hat no person 

shall, for the same offense, be twice put in jeopardy of life or limb.” The double jeopardy 

protections offered by the state and federal constitutions are “co-extensive.” State v. 

Watkins, 362 S.W.3d 530, 548 (Tenn. 2012). Double jeopardy protects criminal 

defendants against “(1) a second prosecution following an acquittal; (2) a second 

prosecution following a conviction; and (3) multiple punishments for the same offense.”

Id.

I. THE 10:11 A.M. TEXT ON JUNE 20, 2015

Father argues, and Mother concedes, that one of the trial court’s findings of 

contempt in its January 2017 order violates double jeopardy.3 We also agree.

 

3 Mother states in her brief, “Appellee acknowledges that this single contempt is possibly barred 

by Double Jeopardy.”
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Mother alleged in Petition 1 that Father violated a provision in the parenting plan 

by sending a specific text on June 20, 2015 at 10:11 a.m. After a trial, the court found in 

its October 2015 order that Father was guilty of 60 counts of criminal contempt, which 

included five texts Father sent to Mother on June 20, 2015—texts sent at 9:53 a.m., 11:07

a.m., 11:26 a.m., 11:42 a.m., and at 8:25 p.m. The count pertaining to the text sent at 

10:11 a.m. on June 20 was not one of the counts for which Father was found to be in 

contempt; thus, Father was acquitted of this alleged offense. 

In the order entered in January 2017, the trial court vacated all but five of the 60 

counts of contempt found in the October 2015 order but held that Father’s text to Mother 

at 10:11 a.m. on June 20, 2015, was contemptuous. Because double jeopardy protects 

criminal defendants against a second prosecution for the same offense following an 

acquittal, the conviction of criminal contempt for sending the 10:11 a.m. text to Mother 

must be vacated.

II. THE PLEA AGREEMENT

Father argues that the trial court acquitted him of 10 counts of criminal contempt 

when it set aside his guilty plea; therefore, double jeopardy prevents further prosecution 

of these charges. Father also contends the counts for criminal contempt in Petition 3 that 

are based on other provisions of the May 2016 agreed order must be dismissed. 

Specifically, he argues that a plea agreement is a contract, the plea deal was a significant 

element of the agreed order and, therefore, the agreed-upon provisions on which Mother 

relies in prosecuting Petition 3 were invalidated when the plea agreement was set aside. 

For her part, Mother argues that double jeopardy does not prevent her from 

prosecuting all 133 counts in Petition 2 because Father was not acquitted of these 

charges. Instead, the guilty plea was set aside on procedural grounds, as distinguished 

from a finding of insufficient evidence, which would constitute an acquittal. As for 

enforcing the remaining provisions of the agreed order, Mother insists the terms of the 

plea agreement are severable and enforceable.

We agree with Mother’s argument that she is not barred based on double jeopardy 

from prosecuting Petition 2 because the guilty plea was set aside on procedural grounds; 

not on a finding the evidence was insufficient to support a conviction. We have also 

determined that double jeopardy has not attached to any of the 133 counts in Petition 2 

because the agreed order failed to identify the specific counts of criminal contempt to 

which Father pleaded guilty. As for the remaining provisions of the agreed order, we 

agree with Father, having determined that the provisions upon which Mother relies in 

prosecuting Petition 3 are not severable. 

In State v. Hutcherson, 790 S.W.2d 532 (Tenn. 1990), our Supreme Court 

considered whether a defendant could be retried following a reversal of the conviction on 
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appeal. In its analysis of the issue, the court noted the United States Supreme Court had 

reaffirmed the rule that 

where the reversal is for trial error, the case may be remanded for a new 

trial without violating the Double Jeopardy Clause, but where an appellate 

court finds the prosecution’s proof on the issue of guilt or innocence of 

defendant was insufficient to convict, Double Jeopardy commands a 

dismissal.

Id. at 534 (citing Burks v. United States, 437 U.S. 1 (1978)).

After stating that the issue in Hutcherson was whether failure to establish venue is 

trial error or insufficiency of evidence, the court found “clues” in the Burks Court’s 

examination of the rationales behind the two types of reversals and quoted from that 

decision:

In short, reversal for trial error, as distinguished from evidentiary 

insufficiency, does not constitute a decision to the effect that the 

government has failed to prove its case. As such, it implies nothing with 

respect to the guilt or innocence of the defendant. Rather, it is a 

determination that a defendant has been convicted through a judicial 

process which is defective in some fundamental respect, e.g., incorrect 

receipt or rejection of evidence, incorrect instructions, or prosecutorial 

misconduct. When this occurs, the accused has a strong interest in 

obtaining a fair re-adjudication of his guilt free from error, just as society 

maintains a valid concern for insuring that the guilty are punished. See

Note, Double Jeopardy: A New Trial After Appellate Reversal for 

Insufficient Evidence, 31 U.Chi. L. Rev. 365, 370 (1964).

The same cannot be said when a defendant’s conviction has been 

overturned due to a failure of proof at trial, in which case the prosecution 

cannot complain of prejudice, for it has been given one fair opportunity to

offer whatever proof it could assemble. Moreover, such an appellate 

reversal means that the government’s case was so lacking that it should not 

have ever been submitted to the jury. Since we necessarily afford absolute 

finality to a jury’s verdict of acquittal—no matter how erroneous its 

decision—it is difficult to conceive how society has any greater interest in 

retrying a defendant when, on review, it is decided as a matter of law that 

the jury could not properly have returned a verdict of guilty.
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Id. at 534-35 (quoting Burks, 437 U.S. at 15-16).4

It is undisputed that the court set aside Father’s guilty plea to 10 counts of criminal 

contempt on procedural grounds, the trial court’s failure to ascertain whether Father’s 

guilty plea was knowingly and voluntarily entered as Tenn. R. Crim. P. 11(b) requires, 

not on a finding that the evidence was insufficient. Accordingly, the setting aside of the 

guilty plea on procedural grounds does not prevent Mother from prosecuting the counts 

that the court set aside. 

In addition to the foregoing reasoning, it is significant that Father did not plead 

guilty to any specific charges; to the contrary, he pled guilty to ten unspecified counts of 

criminal contempt. This is significant because double jeopardy prohibits retrial on the 

same specific charge following an acquittal or a conviction. See State v. Clark, No. 

M2010-00570-CCA-R3-CD, 2012 WL 3861242, at *23 (Tenn. Crim. App. Sept. 6, 

2012), aff’d, 452 S.W.3d 268 (Tenn. 2014) (requiring the prosecution to elect the 

particular offense for which a conviction is sought “protects a defendant against double 

jeopardy by prohibiting retrial on the same specific charge.”); see also State v. Adams, 24 

S.W.3d 289, 294 (Tenn. 2000). Because it cannot be established which 10 of the 133 

counts Father pled guilty to, and all 10 convictions have been set aside for procedural 

reasons, jeopardy has not attached to any of the 133 counts set forth in Petition 2. 

Accordingly, Mother may prosecute any or all of the counts in Petition 2. 

For a different reason, the same cannot be said for all of the counts in Petition 3, 

specifically Counts 1, 4, 5, 6, and 10. In the May 2016 agreed order, Mother promised not 

to prosecute the counts of criminal contempt alleged in Petition 2, and in exchange, 

Father not only agreed to plead guilty to 10 counts of contempt, he also agreed to, inter 

alia, limit the number of phone calls he made to his children, limit the time he could 

spend with his children, and limit the places he could travel. After setting aside Father’s 

guilty plea to 10 counts of contempt, the court relieved Mother of her obligations under 

the agreed order, including her promise not to prosecute Petition 2, while holding Father 

to his remaining promises under the agreement, some of which form the basis of the 

counts in Petition 3. We have determined this was error for the following reasons.

As our Supreme Court explained in State v. Howington, 907 S.W.2d 403, 407 

(Tenn. 1995), “Plea agreements, unlike immunity agreements, have been treated as 

contracts and are enforceable once the condition precedent is met; that is, the trial judge 

accepts the agreement.” (citations omitted). “This is consistent with basic contract 

 

4

Our Supreme Court in Hutcherson also noted that the Burks Court quoted with approval from 

United States v. Tateo, 377 U.S. 463 (1964) “that the Double Jeopardy Clause does not preclude retrying 

a defendant whose conviction is set aside because of an error in the proceedings.” Id. at 535 (emphasis in 

original).
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principles that an agreement does not become binding until the condition precedent has 

been met.” Id. (citations omitted). Here, the condition precedent was the trial court’s 

approval of the plea agreement, the terms of which were set forth in the agreed order. 

Although the trial court initially approved the agreement, the court subsequently 

rescinded its approval by setting aside the guilty plea, thereby rendering the plea 

agreement a nullity. 

“A conditional contract is a contract whose very existence and performance 

depends upon the happening of some contingency or condition expressly stated therein.”

Covington v. Robinson, 723 S.W.2d 643, 645 (Tenn. Ct. App. 1986) (quoting Real Estate 

Management v. Giles, 293 S.W.2d 596, 599 (1956)). Moreover, “[n]o liability under the 

contract attaches to either party until such condition precedent is fulfilled. Id. (citing 

Strickland v. City of Lawrenceburg, 611 S.W.2d 832 (Tenn. Ct. App. 1981)). By setting 

aside the plea agreement set forth in the May 2016 agreed order, the court revoked its 

approval of the agreement, which was essential to the contract being fulfilled. As a 

consequence, neither Mother nor Father is liable under the agreement. See id.; see also

Strickland, 611 S.W.2d at 837. Accordingly, the other provisions of the agreed order 

cannot be enforced against Father in the prosecution of Petition 3.

5

IN CONCLUSION

The judgment of the trial court is affirmed in part, reversed in part, and vacated in 

part, and this matter is remanded to the trial court for further proceedings consistent with 

this opinion. Costs of appeal are assessed equally against Amy Brasfield Marlow and 

Joseph Charles Marlow.

________________________________

 FRANK G. CLEMENT JR., P.J., M.S.

 

5

Because the essential condition precedent to the conditional contract has failed, Mother’s 

request to sever the guilty plea and enforce the remainder of the contract is mooted.