Tennessee Dad Sentenced to 50 Days Jail for Not Paying Child Support

Tennessee child support law case law summary on child support collection from the Court of Appeals.

Sonya Frances Kelly Rutledge v. Dan Kenneth Kelly – Tennessee child support collection laws

Sonya Frances Kelly Rutledge, the mother, and Dan Kenneth Kelly, the father, were divorced in December 2005.  They had one child.   The parenting plan incorporated in the final divorce decree named the mother the primary residential parent and the father had regular parenting time with the child.  The father was ordered to pay $942.00 per month in child support.  A series of modifications were made to the child support amount and in January 2010 it was set once again at $850.00 per month.   In late 2010, the mother filed petitions for criminal contempt against the father, for failure to pay 7 months of child support.  Two months were paid prior to the trial but the father was found guilty of contempt for not paying the additional five months of support.  The father was sentenced to fifty days (10 days for each of the five months remaining of unpaid child support) but was released after 10 days pending full payment of the debt.

According to Tennessee law, a parent who owes child support may be required to pay.  A person who does not pay child support may be found in contempt of court.    The plaintiff, however, must first prove that the non-paying parent had both the ability to pay the support and that the failure to pay was willful, or intentional.

The father appealed the lower court decision, arguing that the court had not adequately found that he had the ability to pay child support.   During the trial, the mother presented the husband’s bank records for his joint account with his current spouse, as well as checks he received from his current employer.   While it was not easy to distinguish deposits made by the father from those made by his wife, the court found that a review of the checks he received from his employer demonstrated he had the ability to pay child support.    The father’s child support payments came due on the first of each month.  A review of the checks he received for the month prior to each due date showed that he received sufficient funds from his employer to cover the next month’s payment.  For example, in June 2010 the father received a total of $2,366 from his employer, which was sufficient to cover his child support award of $850.00 due July 1, 2010.  The court found that the father had sufficient funds for all five months in which he had not paid.

The father, in turn, made no claims, nor did he offer any evidence to show that he had other financial obligations that took precedence over his child support obligations.  He merely stated that the child support award was too high, since he had other expenses.   The court held that other expenses do not excuse a parent from their obligations to their children and the fact that a parent spends money on other bills and expenses indicates an ability to pay child support.   The appeals court supported all of these findings of the lower court and affirmed the ruling that the father was in contempt of court.

The appeals court only disagreed with the sentencing given to the father.   The appeals court found the sentencing – consecutive punishments of 10 days each for each month of nonpayment – excessive.  While consecutive sentencing is often given in criminal contempt cases, the court also considers the entire length of the sentence and whether it is justified for the particular circumstances.   The court must also consider whether the person’s conduct was repetitive or isolated, the length of time of the conduct, whether there was personal benefit to the defendant, if the conduct subjected others to risk of harm and if the defendant tried to remedy the conduct.

In this case, the appeals court held that a sentence of 10 days (the maximum amount permitted by law) for each month of non-payment, was excessive.  Other than those five months, the father regularly paid child support and continued to make some part of the payments during the contempt proceedings.   The court therefore lowered the sentencing to five days for each month of non-payment, for a total of 25 days of jail time.

No. M2011-02065-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2012)

See original opinion for exact language.  Legal citations omitted.

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