STATE OF TENNESSEE, ex rel.      )
PEGGY A. RICHARDSON,             )
                                 )
       Plaintiff/Appellee,       )      Appeal No.
                                 )      01-A-01-9706-CV-00274
v.                               )
                                 )      Davidson Circuit
MICHAEL W. RICHARDSON,           )      No. 88D-1286
                                 )
       Defendant/Appellant.      )
                                 )                  FILED
                                                   September 23, 1998
                   COURT OF APPEALS OF TENNESSEE
                                                   Cecil W. Crowson
                                                  Appellate Court Clerk

     APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

                       AT NASHVILLE, TENNESSEE


             THE HONORABLE MURIEL ROBINSON, JUDGE



JOHN KNOX WALKUP
Attorney General & Reporter

KIMBERLY M. FRAYN
Assistant Attorney General
General Civil Division
425 Fifth Avenue North
Cordell Hull Building, 2nd Floor
Nashville, Tennessee 37243-0499
      ATTORNEYS FOR PLAINTIFF/APPELLEE



CLARK LEE SHAW
2525 Lebanon Road
Nashville, Tennessee 37214
      ATTORNEY FOR DEFENDANT/APPELLANT




                       REVERSED AND REMANDED




                              WALTER W. BUSSART, SPECIAL JUDGE
                                             OPINION
                     Appellant Michael Richardson is the former husband of Peggy
           Richardson and they are the parents of the minor child whose financial support
           is the basis for this case. The State of Tennessee ex rel Ms. Richardson filed a
           petition for contempt seeking a judgment for the accumulated arrearage in child
           support. The lower court found Mr. Richardson in criminal contempt of court
           pursuant to Tennessee Code Annotated sections 29-9-102 and 29-9-1031 and
           granted an arrearage judgment against him in the amount of $18,194.58. He has
           appealed to this court.


                     The parties were divorced in 1988 at which time Ms. Richardson
           (hereinafter "the Mother") obtained full custody of the parties' minor child. At
           this time, Mr. Richardson (hereinafter "the Father") was ordered to pay child
           support at the rate of $85 per week. Due to the Father's failure to meet his
           support obligations over the past years, the Mother has filed three contempt
           actions prior to the filing of the instant one on August 12, 1996.


                     After this contempt action was brought, the Father filed three motions.
           First, he moved that the court order the Mother to elect whether she was
           proceeding under criminal or civil contempt. The Father's second motion
           involved a request that the court strike all pleadings in the Petition attempting to
           punish him pursuant to sections 29-9-102 and 29-9-103 of the Tennessee Code
           because there is a more specific statute for the purpose of punishing failure to
           pay child support. Finally, the Father moved the court to order the Mother to
           disqualify private counsel from prosecution of criminal contempt. The court


       1
         Tenn. Code Ann. § 29-9-102 provides in pertinent part:
The power of the several courts to issue attachments, and inflict punishments for contempt of
court, shall not be construed to extend to any except the following cases: . . . (3) The willful
disobedience or resistance of any officer of the said courts, party, juror, witness, or any other
person, to any lawful writ, process, order, rule, decree, or command of said courts. . . .
        Tenn. Code Ann. § 29-9-103 states as follows:
(a) The punishment for contempt may be by fine or by imprisonment, or both.
(b) Where not otherwise specially provided, the circuit, chancery, and appellate courts are limited
to a fine of fifty dollars ($50,00), and imprisonment not exceeding ten (10) days, and, except as
provided in § 29-9-108, all other courts are limited to a fine of ten dollars ($10.00).


                                                      -2-
granted only the first request, and in response, the Mother filed a notice on
January 31, 1997 that she was proceeding under criminal contempt.


          At trial, the Mother testified that during her marriage to the Father, he
worked in various jobs involving construction work, landscaping, gutter cleaning
and general labor. In an effort to locate the Father for purposes of collecting
child support, the Mother testified that she distributed around certain areas of
Nashville a "wanted" flyer with the Father's picture and her phone number on it.
Three people contacted the Mother due to the flyer one of whom was Sue Dush,
a witness at trial.


          During the trial, Ms. Dush identified the Father as the man who had
done a landscaping job for her in the summer of 1996 between June 15 and the
end of June. Ms. Dush stated that she initially met and hired the Father when he
stopped by her home in a "beat up light blue car" and offered landscaping
services. She said that the Father had a beard. According to Ms. Dush, it was
the Father who rendered a computer design for her yard, a copy of which was
entered at trial as exhibit number three. Ms. Dush stated that the man she hired
did a good job taking approximately two days working in the late afternoons.
She said that she paid him $1700 cash which included $800 for labor. On cross-
examination, Ms. Dush agreed that she had no documented proof as to where she
got the $1700 but that it must have come from her credit union. She stated that
the man had a brown truck in addition to his light blue car and that there was
another man helping him. When the Father's attorney showed her photographs
of two vehicles entered into evidence as exhibits six and seven, she denied
having seen either of these.


          David Courlas testified that he was a volunteer minister with Resolve
Ministries Association which is a crises intervention group focussing on family
counseling and marital rehabilitation. He stated that the Father had been referred
to his organization by a church in June of 1995. Mr. Courlas brought to the court
records of his interaction with the Father for the latter half of June of 1996. This
document, which was entered as an exhibit, reflected that the Father along with
his current wife, Linda Richardson, and son were at Mr. Courlas' home for a

                                        -3-
Bible study from 6:00 p.m. until 10:00 p.m. on June 15, 1996. Mr. Courlas met
again with the Father in the afternoon of June 17 from 1:30 until about 4:30 to
discuss the Father's ongoing financial needs. Mr. Courlas' wife then took the
Father to a gas station to put $10 worth of gas in his car. On the next day, June
18, Mr. Courlas was with the Father from 2:00 to 5:30. They met again on June
19 from 1:00 to 5:00 to discuss the Father's eligibility for Social Security
benefits. On June 20, from 2:00 to 4:00, the Father and his wife Linda were in
the Hickory Hollow Mall area at a nursing home as participants in a concert
organized under Resolve Ministries during which Linda sang to the nursing
home residents. On June 21, Mr. Courlas met with the Father again from 1:00
to 4:00 and they discussed the Father's needs for food and gasolene. Mr. Courlas
did not see the Father over the weekend of June 23 and 24. However, on
Monday June 24, Mr. Courlas was contacted by an ordained minister, Mr.
Ashworth, regarding the Father's erratic behavior. They were concerned that the
Father was not doing his part to receive support from the state in the form of food
stamps, AFDC and Tenn Care. Mr. Courlas met the Father at Shoney's in
Madison from 6:30 to 8:30 to discuss these matters. Again on June 25, the two
met briefly at 1:00 in the afternoon. On June 27, there was another nursing home
concert in the Green Hills area at which the Father and his wife Linda were
present from 1:30 to 3:30. On June 28, the couple met from 11:30 to 3:30 with
Mr. Courlas at his home where he counseled them on marital issues as well as
their need to enroll in certain government programs.


          Mr. Courlas assessed the Father's behavior during this time as "[v]ery
jittery, very nervous, hard to keep his mind on anything and concentrate. . . . he
believed that all state organizations, social security, the human services and
everyone was conspiring against him. He had a difficulty, has to ask a question
a hundred times, compulsive type behavior, does not accept what you tell him,
you have to just keep on him to see any kind of real change."         Mr. Courlas
testified that the Father had a difficult time doing anything without his wife
Linda there. Furthermore, it was Mr. Courlas' testimony that the Father did not
have a computer on which he could have rendered a drawing such as the one
entered into evidence as the blueprint for Ms. Dush's landscaping.



                                        -4-
         On cross-examination, Mr. Courlas testified that, during the time that
Resolve Ministries was involved with the Father, he was not responsible for rent
or mortgage as his home was provided by a relative. He stated that Resolve
Ministries and other charity organizations provided the majority of food that the
Father and his family needed during this time. The organization also frequently
gave them clothing and referred them to other such providers. Mr. Courlas
agreed that he only gave the Father a total of $15.00 for gasolene.


         Mr. Courlas identified photographs of two cars as those of the Father.
He testified that the sky blue Ford LTD in the picture entered as exhibit number
seven was the one that the Father drove currently as well as in June of 1996.
Mr. Courlas stated that the Father owned neither a brown truck nor a Roto-tiller.
He asserted that he had been in the Father's home frequently and there was no
room for such equipment. Mr. Courlas had seen the Father's equipment which
consisted of a small trailer and a lawn mower. Even this equipment was sold
after spring of 1996 in order to buy food for the family.


         Mr. Courlas testified that at the time of trial in February of 1997, he had
an ongoing relationship with the Father. He continued to see the Father many
days during the week and they conversed by telephone on days when they did not
meet. Regarding the June 27 nursing home concert, Mr. Courlas testified that
the Father was in his blue car that day and that he remembered this because the
Father helped load the equipment after the concert. Afterwards, they all went to
Wendy's in the Green Hills area and Mr. Courlas bought dinner for them. Mr.
Courlas testified that the Father's wife Linda was present with him at all of the
meetings except for the June 24 meeting at Shoney's. Mr. Courlas said that he
often had knowledge of the Father's whereabouts because the Father "is a chronic
telephoner because he had a hard time dealing with things on a moment to
moment basis." The phone logs of Resolve Ministries showed that the Father
called an average of six times a day.


         Melody Courlas, the wife of David Courlas, confirmed that she also
met with the Father on June 15, June 17, June 18, June 19, June 21, June 27 and
June 28 and that she was not present when her husband met with the Father for

                                        -5-
counseling sessions at Shoney's. She stated that she had purchased food and
gasolene for the Father many times several of which occurred between June 15
and June 20. She identified the light blue car in exhibit seven as the one which
the Father was driving in June of 1996. She testified that the Father did not have
a beard in June on 1996 nor had he ever had a beard in the two years since she
had known him.


          Richard Ashworth, who also served with Resolve Ministries, testified
that he had been with Mr. Courlas several times during counseling sessions with
the Father at Shoney's. Though he did not know specific dates, these sessions
usually lasted two to three hours. They usually discussed financial matters. Mr.
Ashworth testified that "quite a few times [he] bought [the Father] groceries and
put gas in his car when they would be doing bad, which was pretty often." Mr.
Ashworth testified that the Father's current wife does not work to his knowledge.


          The Father's current wife, Linda Richardson, was called to the stand.
She stated that she and the Father are the parents of one child whose name is
Buddy. In June of 1996, Buddy was in day care in Donelson. As the Mother did
not drive, it was the Father's responsibility to pick up the child. During the day,
the Father would try to find money to pay the bills. She said that she never
received $1700 from a landscaping job that he did. She said that she was
basically with the Father from June 15 to June 30 except for sometimes he would
meet with Mr. Courlas without her. She did not recall her husband going door
to door seeking landscaping jobs. It was Ms. Linda Richardson's position that
there was no way that her husband could have done a landscaping job without
her knowing about it. She said that they did not own a brown truck or a Roto-
tiller. When asked what bills had to be paid, the Mother mentioned an electric
bill, a water bill and a phone bill. In addition, there was the cost of food in June
of 1996 because they were not getting food stamps at that time. She testified that
they got clothing from churches. She said that her father paid the $800 per
month for child care. Linda Richardson testified that, during June of 1996, her
husband got almost all of the money to pay for the bills from Mr. Courlas. She
confirmed that she had sung once or twice at nursing homes recalling specifically
the two nursing homes that Mr. Courlas had mentioned in his testimony. She

                                        -6-
said that the reason that her child Buddy stays in a day care is that she and her
husband both have mental illnesses.


         The parties stipulated the testimony of Sherry Hesson, the owner of the
child's day care, that the Father picked up the child between 5:30 and 6:00 p.m.
from June 15 to June 30, 1996. Ms. Hesson's testimony was that the Father was
driving a light blue Ford and that he had no beard when he picked up the child
during these dates.


         Following a bench trial, the trial court found the Father had the ability
to pay child support but did not and therefore was guilty of at least nine counts
of willful contempt pursuant to section 29-9-101 of the Tennessee Code. The
court further found the Father's payments to be in arrears in the amount of
$14,110.90 on the previous judgment plus $4,083 in additional child support for
a total of $18,194.58. The court sentenced the Father to ten days of jail per
violation for a total of ninety days. Based on Sue Dush's positive identification
of the Father as the man to whom she paid $1700 for a landscaping job, the court
found that the Father was "able to produce income separate and apart from his
SSI benefits." In addition, the court made the following statement:

         [E]ven from the testimony of the [Father's] alibi witnesses,
         the [Father's] time was not totally accounted for and the
         [Father] could have performed the work as testified by the
         [Mother's] witness.

The court granted the Father's motion to stay his ninety-day sentence pending
appeal but ordered that the child support obligations remain in effect.


         On appeal, the Father has raised several issues. Primarily, he insists
that criminal contempts carrying any penalty of confinement require that a
defendant be given the rights of any criminal defendant including a jury trial.
Further, the Father claims that he was denied the fundamental constitutional right
to an independent unbiased prosecution because the prosecuting attorney in this
case was hired by a private law firm through a contract with the state. The Father
also contends that the trial court erred in using the general contempt statutes of
sections 29-9-102 and 29-9-103 of the Tennessee Code to impose contempt


                                       -7-
           sanctions when there exist specific statutes for the purpose of punishing a failure
           to pay child support such as Tennessee Code Annotated section 36-5-104(a) and
           section 39-15-101. Finally, the Father asserts that the court erred in sentencing
           him to consecutive sentences.


                     The Father's first issue of whether or not he should have been granted
           a jury trial on his criminal contempt charges is based upon the Supreme Court
           cases of Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968)
           and International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 114
           S.Ct. 2552, 129 L.Ed.2d 642 (1994). In Bloom, the Court held that prosecutions
           for serious criminal contempt are subject to the jury trial provisions of Article III,
           § 2 of the United States Constitution2 and the Sixth Amendment3 applied to the
           states through the due process provisions of the Fourteenth Amendment. Petty
           contempts, on the other hand, need not be tried by a jury. Bloom, 391 U.S. 194,
           88 S.Ct. 1477, 20 L.Ed.2d 522. Courts "are to look to the penalty actually
           imposed as the best evidence of the seriousness of the offense." Id. 391 U.S. at
           211, 88 S.Ct. at 1487, 20 L.Ed.2d at 534. The court "need not settle 'the exact
           location of the line between petty offenses and serious crimes,'" however a crime
           punishable by imprisonment of two years is a serious offense. Id. (quoting
           Duncan v. Louisiana, 391 U.S. 145, 161, 88 S. Ct. 1444, 1454, 20 L.Ed.2d 491,
           503 (1968)). Subsequently in Bagwell, the Court asserted that more than six
           months imprisonment would be a serious criminal contempt warranting a jury
           trial. Bagwell, 512 U.S. at 826-27, 114 S.Ct. at 2557 (citing Bloom, 391 U.S. at
           199, 88 S.Ct. at 1481 and Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697,
           2701-02, 41 L.Ed.2d 897 (1974)).


                     The Tennessee Supreme Court has established that our state
           constitution's right to jury trial is even broader than the federal right. In State v.
           Dusina, 764 S.W.2d 766 (Tenn. 1989), the court interpreted the term "small
           offense" as used in Tennessee Rule of Criminal Procedure 23 which provides in


       2
        "The Trial of all Crimes, except in Cases of Impeachment shall be by Jury . . . " U.S.
Const. art. III, § 2.
       3
          "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury . . . " U.S. Const. amend. VI.

                                                        -8-
    pertinent part that "[i]n all criminal cases except small offenses, trial shall be by
    jury." (emphasis added). The court overruled the lower court's adoption of the
    federal definition for small offense which included a jail sentence of six months
    or less. Id. at 768 (citing Bloom, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522).
    The court noted that "the term 'small offense' has traditionally been defined in
    Tennessee as one in which the punishment cannot exceed a fine of $50.00 and
    which carries no confinement in a jail or workhouse." Id. at 768. Stating that
    "Article I, Section 6 of the Constitution of Tennessee preserves the right of trial
    by jury as that right existed at common law," the court asserted that "[f]or
    violation of general criminal statutes, however, where a fine of more than $50.00
    or any confinement of the accused may be imposed, the right to jury trial under
    the Tennessee constitution is well-established." Id.


              In Brown v. Latham, 914 S.W.2d 887 (Tenn. 1996), the court held that
    a defendant charged with violating section 36-5-104(a) of the Tennessee Code4
    for the failure to comply with a child support order was entitled to a jury trial
    under the reasoning of Dusina. The court determined that section 36-5-104(a)
    at issue in Brown defines a criminal offense. Id. at 888. The court then
    compared that statute to the statutes at issue in this case, sections 29-9-102 and
    29-9-103 of the Code, indicating that these latter parts of the code are not
    criminal offenses for which defendants are entitled to jury trials. Id. at 888-89.


              Section 36-5-104(a) . . . states the essential indicia of a
              criminal offense. Its violation is not declared to be a
              contempt as contemplated by Tenn. Code Ann. § 29-9-102
              (1980). Its stated purpose is not to compel performance but
              to punish for non-performance by imprisonment for a definite
              period of time. The language of subsection (b), "[n]o arrest
              warrant shall issue" under certain conditions, indicates a
              criminal proceeding. The penalty imposed, imprisonment for
              a period of time not to exceed six months, conforms with the
              definition of a misdemeanor stated in Tenn. Code Ann. §
              39-11-110 (1991), which provides, "... all violations of law
              punishable by fine or confinement for less than one (1) year,

4
 This statute provides as follows:
(a) Any person, ordered to provide support and maintenance for a minor child or
children, who fails to comply with the order or decree, may, in the discretion of
the court, be punished by imprisonment in the county workhouse or county jail for
a period not to exceed six (6) months.

                                             -9-
                     or both, are denominated misdemeanors." The punishment
                     authorized far exceeds the $50 fine and ten days
                     imprisonment provided in Tenn. Code Ann. §§ 29-9-102,
                     103, which are the sanctions traditionally utilized to
                     vindicate the authority of the courts.
           Id. at 888. Indeed, based upon the distinction drawn in Brown, the Court of
           Appeals has, in an unpublished opinion, refused to extend the right of a jury trial
           to a charge of criminal contempt under Tennessee Code Annotated section 29-9-
           103. Perkerson v. Perkerson, No. 01A-01-9602-CV-00059, 1996 WL 426807
           (Tenn. Ct. App. 1996). This court held that a statute imposing a fifty dollar fine
           or ten days in jail does not entitle the accused to a jury trial.


                     In the case before us, the court found that the Father was guilty of
           willful criminal contempt pursuant to section 29-9-101 because he "had the
           ability to pay, but did not do so." Based upon the cases of Brown and
           Perkerson, we find that a contempt charge under section 29-9-101 does not
           entitle a defendant to a jury trial.5 The court's language indicated that it found
           that the Father had the financial ability to pay these funds but that he had refused
           to do so. The problem here lies not in the court's denial of a jury trial for a
           finding of contempt under section 29-9-101 but rather in the fact that there was
           no proof that the Father had the financial ability to pay. The Mother did attempt
           to show that the Father had the ability to produce income; however, as shown in
           the remainder of this opinion, she failed to establish this.


                     Thus, we turn to a review of the issue of the sufficiency of the
           evidence. The burden of proof rests with the State of Tennessee to show beyond
           a reasonable doubt that the Father is guilty of criminal contempt. Black v.
           Blount, 938 S.W.2d 394, 398 (Tenn. 1996); see also International Union,
           United Mine Workers v. Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 2557, 120
           L.Ed.2d 642 (1994). As stated, the lower court found the Father had the ability
           to pay child support but did not and therefore was guilty of at least nine counts
           of willful contempt. After a careful review of the record, and adherence to Rule


       5
        The Father was sentenced to nine counts of contempt for an aggregate jail sentence of
ninety days. As this matter can be resolved on the lack of sufficient evidence, we leave for
another day the issue of whether there is a point at which an aggregate sentence under section 29-
9-101 might become lengthy enough to merit a trial by jury.

                                                     -10-
13(d), Tenn. R. App. P., we disagree and conclude that the State has failed to
meet its burden to show that the Father had the financial ability to comply with
the child support order.


         In his opening statement, the Mother's attorney conceded that the
Father was disabled and that he received social security benefits. It was clear
that the Mother was not arguing that child support could be assessed against this
social security money; rather, it was the Mother's position that the Father was
capable of engaging in other work and indeed that he had done so. The record
reveals that the only testimony with regard to the Father's ability to produce
income is that from Sue Dush. As stated, Ms. Dush claimed that she paid the
Father $1700 in cash for a landscaping job which took approximately two days
during the period between June 15 and the end of June in 1996. Based upon this
limited exposure, Ms. Dush made an in-court identification of the Father stating
that he, in June of 1996, had a beard.


         Ms. Dush's testimony was not confirmed in any way by the rest of the
proof. In fact, other evidence contradicted it. For instance, Ms. Courlas stated
that the Father did not have a beard in June of 1996. This was corroborated by
the stipulated testimony of Sherry Hesson, the owner of the day care where the
Father's child stayed. In addition, Ms. Dush did not recognize either of the
photographed vehicles in exhibits six and seven as those used by the man who
landscaped her yard while both Mr. and Ms. Courlas claimed that these vehicles
were the only ones that the Father owned in June of 1996. Moreover, Mr.
Courlas said that, in June of 1996, the Father did not have a computer capable of
producing the design that was given Ms. Dush nor did he have the appropriate
equipment for the actual landscaping work which was done in Ms. Dush's yard.
Though Mr. Courlas spent significant time with the Father in the latter half of
June of 1996, he was not aware that the Father worked for Ms. Dush. Finally,
Ms. Linda Richardson stated that there was no way that her husband could have
done a landscaping job without her knowing about it.


         Further, there was evidence that the Father was incapable of such work.
As stated, Mr. Courlas found the Father to be jittery and nervous. He said that

                                         -11-
he had a difficult time concentrating and that he had to ask questions "a hundred
times, compulsive type behavior." Mr. Courlas also testified that the Father "had
a hard time dealing with things on a moment to moment basis." In addition, he
said that the Father had a difficult time doing anything without his wife Linda
present. It was Linda Richardson's testimony that both she and the Father
suffered from mental illnesses.


            Finally, there was no proof that the Father had in his possession
sufficient funds to pay the judgment against him. In fact, the evidence was that
the Father had very little money. Mr. Courlas testified that the Father was not
responsible for rent or mortgage as his home was provided by a relative. Mr.
Courlas stated that Resolve Ministries and other charity organizations provided
the majority of food that the Father and his family needed during the time that the
Father was involved with Resolve. The Father's wife Linda confirmed that
churches gave clothing to her family and that, at least for June of 1996, Resolve
Ministries gave them money to pay their bills. Linda testified that the $800 per
month cost of child care for the Father's and her child was paid for by her own
father.


            In conclusion, we find that there remains a substantial and reasonable
doubt that the Father was able to earn enough income or that he was in
possession of sufficient funds to meet his support obligations. Thus, we find that
there was insufficient evidence to conclude that the Father was guilty of criminal
contempt. Based upon this decision, we do not reach the remaining issues raised
by the Father. The lower court's decision to hold the Father guilty of nine counts
of contempt under Tennessee Code Annotated section 29-9-101 is reversed, and
this cause is remanded to the trial court for further proceedings in accordance
herewith.




________________________________


                                        -12-
                                          WALTER W. BUSSART, SPECIAL JUDGE



CONCUR:


______________________________________
HENRY F. TODD, PRESIDING JUDGE, M.S.


______________________________________
BEN H. CANTRELL, JUDGE




                                   -13-
