Tenn. Husband Escapes Jail By Keeping Bank Statement Out of Evidence
Tennessee law case summary on evidence and contempt in post-divorce and family law from the Court of Appeals.
William Patton v. Cheri Patton – Tennessee divorce evidence and contempt
The husband filed for divorce in 2006, and an order for temporary support was entered five years later. That order required the husband to pay $1,000 per month in support. The husband agreed to make those payments, but failed to do so.
In 2012, the wife filed a petition for contempt, and a hearing on both the divorce and the contempt petition was held in December 2012. During the morning of the hearing, the wife testified, and her attorney offered the husband’s 2011 tax return and a partial bank statement. The husband’s attorney objected to the bank statement, but the objection was overruled. The wife offered no information to authenticate any of the documents.
The trial court found the husband in criminal contempt for failure to make five of the payments, but found that there was insufficient evidence of the other five charges. It sentenced him to 50 days in jail, but stayed all but 15 days of the sentence. The trial court then announced that the divorce hearing would start after lunch, and ordered the husband to be detained. During the lunch break, the husband’s attorney filed a notice of appeal to the Tennessee Court of Appeals. Following the short divorce hearing, the trial court stayed the sentence pending the appeal.
The husband argued that the evidence should not have been admitted, and that it was error to jail him for contempt due to lack of evidence. He also argued that it was error to detain him immediately without setting a bond.
The Court of Appeals first examined whether it was proper to admit the bank statement copy. The husband argued that it had not been properly authenticated, and thus constituted hearsay. There is an exception to the hearsay rule for business records, as long as they are properly authenticated. The record must be authenticated by the testimony of a qualified person or another process such as an affidavit of the record’s custodian. In this case, there was no such testimony. In fact, when asked whether she could identify the document, the wife replied, “no.” Therefore, the Court of Appeals held that it was error to admit the document, and it should not have been considered.
On the issue of the correctness of the contempt finding, the Court of Appeals first noted that one of the elements of the offense is that the husband had the ability to pay at the time the support was due, and that the failure was willful. In this case, the only evidence of ability to pay was the bank statement, which was insufficient. The tax returns showing an income of $8,000 were before the court, but the Court of Appeals held that this was insufficient evidence to show the husband’s ability to pay.
The Court of Appeals did not consider the issue of whether the trial court should have set bond. First of all, the husband did not object at the time. Also, the Court of Appeals held that the issue was moot, since the lunchtime detention had ended, and there was no meaningful relief that the Court of Appeals could have provided.
For these reasons, the Court of Appeals reversed the trial court.
No. M2012-02747-COA-R3-CV (Tenn. Ct. App. Sept. 25, 2013).
See original opinion for exact language. Legal citations omitted.
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