TN Dad Given 140 Days in Jail to Think About Child Support Obligation
Tennessee child support law case law summary on child support collection from the Court of Appeals.
In the Matter of Faith A.F. – Tennessee divorce child support collection and enforcement
At the time of the parents’ divorce, the father was named the primary residential parent. In 2009, the mother was named the primary residential parent, and the father was denied his request to relocate out of state with the child. He appealed those rulings to the Tennessee Court of Appeals, which affirmed in 2011.
In 2011, the trial court entered another order. The trial court found that the father was a manipulator who was honest when it suited him, but manipulative and untruthful when it doesn’t. The trial court found that him in civil contempt for failing to pay child support when he had the ability to do so. The court gave the father “a good bit of time to think about that,” and sentenced him to five days for each month of unpaid child support, a total of 140 days. The court further ordered that he could cure the contempt by paying $24,189 in past due support. Of the sentence, a minimum of 10 days was to be served, regardless of whether any amount was paid. The father was taken into custody at the conclusion of the hearing, and appealed to the Tennessee Court of Appeals.
The father first argued that the 10-day sentence for criminal contempt should be reversed because he did not receive the proper notice and opportunity for a hearing as required by the Tennessee Rules of Criminal Procedure. The Court of Appeals acknowledged the trial court’s frustration with the father, but agreed that the trial court had failed to follow the Rules of Criminal Procedure. Since the contempt had not been committed in the presence of the judge, these rules require a notice which had not been given. Even though the trial court had stated that criminal contempt would probably follow, this notice was insufficient under the rules. Therefore, the 10-day criminal contempt sentence was vacated.
The father also argued that the civil contempt should be reversed, because he had filed bankruptcy. He argued that the civil contempt should have been stayed because of the automatic bankruptcy stay. The Court of Appeals disagreed. Because the trial court’s order made clear that this amount would not be paid from the bankruptcy estate, the Court of Appeals found that the procedure had been proper.
The father also argued that he had no ability to pay. The father had presented some evidence as to his finances, but the trial court found that this evidence lacked credibility, and even included perjured testimony. Based upon its review of the evidence, the Court of Appeals agreed with the trial court that the father had failed to meet his burden of establishing that he was unable to pay. The Court of Appeals also examined the evidence and concluded that there was no error in establishing the purge amount at $24,128.98. This was a correct calculation of the arrearage, and there was no evidence that the father was unable to pay this amount.
The father also argued that the trial court should not have suspended his parenting time. The trial court had found that the father had engaged in a “disregard for the welfare of the minor child”, and the Court of Appeals agreed. For example, the father had been ordered to have his parenting time supervised and in a public location, but he had ignored these requirements. He had also interrogated the child about her testimony, in violation of court orders.
The Court of Appeals noted that the trial court has broad discretion, and that the order in this case was within that discretion.
Finally, the father argued that the trial court had erred in setting the father’s child support obligation at $803 per month. Once again, the Court of Appeals noted that the father had presented to evidence contrary to the court’s findings. The only evidence he had presented had been deemed unreliable, and that the trial court had properly imputed income to him.
The Court of Appeals did remand the case for a re-computation of the mother’s attorney fees, since the original calculation was unclear.
No. M2011-02563-COA-R3-JV (Tenn. Ct. App. July 26, 2013).
See original opinion for exact language. Legal citations omitted.
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