TN Court Released Homeless Mom Jailed for Failure to Pay Child Support

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

State of Tennessee ex rel. Kathlene Waldo v. Jennifer Waldo – Tennessee divorce child support, contempt

Shortly after she gave birth to a third child, the State of Tennessee filed a petition for contempt against the mother for failing to pay child support for her first two children, who were then in the custody of the mother’s mother.  The trial court in Roane County did not appoint counsel to assist the mother and conducted the hearing.  The mother testified that she had been unable to pay because she was unemployed and homeless, that she was unable to get a job because she didn’t have a driver’s license, and that she was unable to replace the license because she didn’t have the $8 fee.  However, no evidence as to the mother’s actual assets was given by either side.  The magistrate found the mother guilty of contempt, and ordered her jailed until she paid $400 to purge the contempt.  The magistrate informed her that she had the right to a confirmation hearing, but the mother said that she did not request one.

About a month later, she advised the jailers that she wanted a hearing, and one was eventually held.  She then testified that she did not have $400 and was not merely being stubborn.  She stated that her only hope of getting the $400 was the slim possibility that her mother’s mother would pay it, or that a church would take pity on her and pay it.  (The Court of Appeals noted that the children were subsequently removed from the mother’s custody, and that the mother’s mother died during the pendency of the appeal.)  The mother also testified that she had not understood the previous proceedings.  The Juvenile Court Judge denied any relief and had the mother returned to jail.  The mother appealed to the Tennessee Court of Appeals, which granted a stay of her sentence pending the appeal.

For one to be jailed for contempt, it is necessary that there be a willful failure to obey a court order.  But in this case, the State admitted on appeal that there had been no evidence of the mother’s ability to pay.  The Court of Appeals noted that ability to pay is an essential element of the offense of contempt, since the failure must be willful.

In this case, there was no evidence in the record of the mother’s ability to pay.  Neither the State nor the Magistrate asked the mother how much money she had.  Therefore, the evidence preoponderated against the trial court’s finding, and the Court of Appeals reversed.  The Court of Appeals also assessed the costs of appeal against the State of Tennessee.

No. E2011-02677-COA-R3-CV (Tenn. Ct. App. Apr. 2, 2013).

See original opinion for exact language.  Legal citations omitted.

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