               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                July 24, 2015 Session

              STATE OF TENNESSEE EX REL. JUDY JOHNSON
                       v. HAROLD NEWMAN, JR.

                  Appeal from the Chancery Court for Roane County
                  No. 16161   Frank V. Williams, III, Chancellor


           No. E2014-02510-COA-R3-CV-FILED-SEPTEMBER 23, 2015


In this child support arrearage case Harold Newman, Jr. (“Respondent”) appeals the
December 23, 2014 order of the Chancery Court for Roane County (“the Trial Court”)
finding Respondent in civil contempt and ordering that Respondent be incarcerated in the
Roane County Jail until he pays a purge amount of $150.00. We find and hold that no
evidence was produced showing that Respondent had the present ability to pay $150.00,
or any amount, and, therefore, the order finding Respondent in contempt and sentencing
him to incarceration was in error. We reverse that portion of the Trial Court‟s December
23, 2014 order finding Respondent in civil contempt and sentencing Respondent to
indefinite incarceration in the Roane County Jail with the ability to purge himself of
contempt by making a $150.00 purge payment and remand this case to the Trial Court for
further proceedings.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
               Reversed, in part; Affirmed, in part; Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and JOHN W. MCCLARTY, J., joined.

Allison M. Rehn, Harriman, Tennessee, for the appellant, Harold Newman, Jr.

Herbert H. Slatery, III, Attorney General and Reporter; and Rebekah A. Baker, Senior
Counsel for the appellee, State of Tennessee ex rel. Judy Johnson.
                                   MEMORANDUM OPINION1


       In April of 2014, the State of Tennessee ex rel. Judy Johnson (“the State”) filed a
Petition for Civil Contempt alleging, in pertinent part, that the Trial Court had entered an
order requiring Respondent to pay $264.00 per month in current child support and
$109.50 per month in child support arrears and that Respondent had failed to pay and was
in willful contempt of court.2 After a hearing the Magistrate entered its Findings and
Recommendations on September 18, 2014, inter alia, awarding the State a judgment
against Respondent in the amount of $8,126.70 for child support arrearages as of August
31, 2014. The September 18, 2014 Findings and Recommendations also found
Respondent in contempt of court, but reserved sentencing for a future hearing. On
October 10, 2014 the Trial Court entered its order confirming the September 18, 2014
Findings and Recommendations.

       After a hearing on the issue of sentencing, the Magistrate entered an order on
December 17, 2014 that, inter alia, sentenced Respondent to indefinite incarceration in
the Roane County Jail for civil contempt with the ability to purge himself of contempt by
making a $150.00 purge payment. On December 23, 2014 the Trial Court entered its
order adopting and confirming the December 17, 2014 Findings and Recommendations.3

        Respondent appeals to this Court raising an issue regarding whether Respondent
could be held in civil contempt and incarcerated when no evidence was presented that
Respondent had the ability to make a purge payment, or any payment at all. With regard
to civil contempt, this Court explained in State ex rel. Murphy v. Franks:



1
  Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum
opinion when a formal opinion would have no precedential value. When a case is decided by
memorandum opinion it shall be designated „MEMORANDUM OPINION,‟ shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.”
2
  The record on appeal contains a petition for civil contempt filed by the State on April 29, 2009. An
Administrative Order for Modification of Current Support was entered on May 2, 2012. The record also
contains a petition for civil contempt filed by the State on February 12, 2015, after the appeal was filed to
this Court in this case.
3
  Respondent filed a motion for stay pending appeal, which the Trial Court denied. Respondent was
incarcerated on December 17, 2014. Respondent then filed a motion with this Court seeking review of
the Trial Court‟s denial of a stay. By order entered January 9, 2015 this Court ordered, inter alia, that
Respondent be immediately released from custody on his own recognizance and ordered Respondent to
“make all periodic payments ordered by the judgment and due and payable after the date of entry of this
order while this appeal remains pending.”
                                                       2
[C]ivil contempt is utilized “where a person refuses or fails to comply with
an order of court in a civil case; and punishment is meted at the instance
and for the benefit of a party litigant.” Sullivan, 137 S.W.2d at 307; see
also Pivnick, Tenn. Circuit Court Practice ' 3:19 (2010 ed). As stated by
our Supreme Court, “[i]f imprisonment is ordered in a civil contempt case,
it is remedial and coercive in character, designed to compel the contemnor
to comply with the court‟s order.” Black v. Blount, 938 S.W.2d 394, 398
(Tenn. 1996). In a civil contempt case, the contemnor “carries the keys to
the prison in his own pocket. . . .” Id. (citations omitted). Persons found to
be in civil contempt, may purge themselves of contempt by complying with
the court‟s order. Ahern, 15 S.W. 3d at 78. Civil contempt, contrary to
criminal contempt, only requires that the defendant be given notice of the
allegation and an opportunity to respond. Flowers, 209 S.W.3d at 611. To
find civil contempt in a case such as this, the petitioner must establish that
the defendant has failed to comply with a court order. Chappell v.
Chappell, 37 Tenn. App. 242, 261 S.W.2d 824, 831 (Tenn. 1952). Once
done, the burden then shifts to the defendant to prove inability to pay. Id.
If the defendant makes a prima facie case of inability to pay, the burden
will then shift to the petitioner to show that the respondent has the ability to
pay. State ex rel. Moore v. Owens, No. 89-170-11, 1990 WL 8624 (Tenn.
Ct. App. February 7, 1990)(reversing a finding of contempt upon holding
that respondent‟s testimony of inability to pay was unimpeached and
uncontradicted by the petitioner); see also Garrett, Tenn. Practice Tenn.
Divorce, Alimony & Child Custody ' 16-4 (2009).

                                     ***

       Findings of civil contempt, on the other hand, are reviewed under an
abuse of discretion standard. Konvalinka v. Chattanooga-Hamilton County
Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008). As stated by our Supreme
Court:

             An abuse of discretion occurs when a court strays
       beyond the framework of the applicable legal standards or
       when it fails to properly consider the factors customarily used
       to guide that discretionary decision. State v. Lewis, 235
       S.W.3d 136, 141 (Tenn. 2007). Discretionary decisions must
       take the applicable law and relevant facts into account.
       Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996). Thus,
       reviewing courts will set aside a discretionary decision only
       when the court that made the decision applied incorrect legal
                                       3
             standards, reached an illogical conclusion, based its decision
             on a clearly erroneous assessment of the evidence, or employs
             [sic] reasoning that causes an injustice to the complaining
             party. Mercer v. Vanderbilt Univ., 134 S.W.3d 121, 131
             (Tenn. 2004); Perry v. Perry, 114 S.W.3d 465, 467 (Tenn.
             2003).

      Id. In reviewing the trial court‟s finding of civil contempt, we review its
      factual findings with a presumption of correctness unless the evidence
      preponderates otherwise pursuant to the standard contained in Tennessee
      Rule of Appellate Procedure 13(d). Id. at 357.

State ex rel. Murphy v. Franks, No. W2009-02368-COA-R3-JV, 2010 WL 1730024, at
**3-4 (Tenn. Ct. App. April 30, 2010), no appl. perm. appeal filed. “The burden is on
the contemnor to show inability to perform, and where the alleged contemnor has
„voluntarily and contumaciously brought on himself disability to obey an order or decree,
he cannot avail himself of a plea of inability to obey as a defense to a charge of
contempt.‟” Evans v. Abdullah, No. 01A01-9802-CV-00098, 1999 WL 20777, at *1
(Tenn. Ct. App. Jan. 20, 1999), Rule 11 appl. perm. appeal denied June 7, 1999 (quoting
Bradshaw v. Bradshaw, 133 S.W.2d 617, 619 (Tenn. App. 1939)).

        The statement of the evidence in the record on appeal shows that Respondent
testified that he had been unemployed for months prior to the December 17, 2014 hearing
and was unable to pay child support; that Respondent lived in an outbuilding on his
sister‟s property and had no rent obligation; that Respondent had been offered a job as a
cook at Waffle House in Knoxville to begin on December 8, 2014, but that he was
arrested on December 5, 2014 before he could start work; that at that time of his arrest
Respondent had $0.71 in his pocket, which constituted the only funds Respondent had to
pay child support; that Respondent owned no possessions which could be used to pay the
child support arrearage as he had scrapped his truck to make a previous purge payment;
that Respondent had no family members or friends on whom he could rely to pay a bond
or a purge amount; and that the State put on no proof other than the arrearage calculation
and its cross-examination of Respondent. The State concedes in its brief on appeal that
no evidence was produced that Respondent had the current ability to pay the $150.00
purge amount, that Respondent had produced evidence of his inability to pay, and that the
portion of the Trial Court‟s order committing Respondent to jail “cannot be sustained.”

       Given all of the above, we find that the portion of the Trial Court‟s order finding
Respondent in civil contempt and committing Respondent to jail until payment of the
purge amount was error. We, therefore, reverse that portion of the Trial Court‟s order
finding Respondent in contempt and committing Respondent to incarceration in the
                                            4
Roane County Jail for civil contempt with the ability to purge himself of contempt by
making a $150.00 purge payment. The remainder of the Trial Court‟s December 23,
2014 order confirming the December 17, 2014 order is affirmed, and this cause is
remanded to the Trial Court for further proceedings as necessary and consistent with this
Opinion and for collection of the costs below. The costs on appeal are assessed against
the appellee, the State of Tennessee ex rel. Judy Johnson.




                                               _________________________________
                                               D. MICHAEL SWINEY, JUDGE




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