                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                              Assigned on Briefs November 14, 2011

  STATE OF TENNESSEE EX REL. CHARMAINE EASON v. PHILLIP L.
                         SWINGER

                      Appeal from the Juvenile Court for Davidson County
                         No. AC114154     Betty Adams Green, Judge


                   No. M2010-01347-COA-R3-JV - Filed February 22, 2012


Father appeals from his conviction of eighteen counts of criminal contempt for willful failure
to pay bi-weekly child support obligations over a thirteen-month period. The record
demonstrates that Father was hospitalized and incarcerated for a portion of the relevant
period, and unable to make some of the payments, but the evidence proves his guilt beyond
a reasonable doubt to sixteen (16) counts. We therefore, affirm the conviction of sixteen (16)
of the eighteen (18) counts of criminal contempt and revise the total sentence from 180 days
to 160 days.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                         Affirmed in Part; Reversed in Part

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

Jonathan Sacks, White House, Tennessee, for the appellant, Phillip L. Swinger.

Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Associate Solicitor
General; and Marcie E. Green, Assistant Attorney General, for the appellee, State of
Tennessee ex rel. Charmaine Eason.

                                                  OPINION

      This appeal arises from a Petition for Contempt filed on July 30, 2009, by the State
of Tennessee ex rel. Charmaine Eason, the mother of the parties’ child.1 In the Petition, the


       1
           The mother of the child at issue was receiving Title IV-D services; therefore, the State was entitled
                                                                                                  (continued...)
State alleged that Father was in willful violation of a November 2005 court order requiring
Father to pay child support of $72.46 bi-weekly and an additional $30 bi-weekly to reduce
an arrearage judgment.

        The Petition, which incorporated by reference Exhibit A, a report of payments
received since November 22, 2005, stated that only five payments were received through
March 23, 2006 and that no payments of any amount were received after that date. Father
was previously held in contempt for failure to pay child support after March 23, 2006 and
prior to July 1, 2008; therefore, the parties stipulated that the relevant time period in question
was limited to July 1, 2008 through July 30, 2009. Following a trial before the juvenile court
magistrate, Father was found guilty of eighteen counts of criminal contempt and sentenced
to 10 days for each conviction for a total sentence of 180 days, to run consecutively.

        Father appealed that ruling to the juvenile court. A trial de novo was held before the
juvenile court judge on May 20, 2010. The report of child support payments made since
November 22, 2005, was admitted into evidence without objection. Ms. Eason testified that
she had not received any other child support payments from Father, that he had been
hospitalized for one month in 2008, that he had held several jobs intermittently because she
had received notices that his wages were being garnished, and that he had a drug and alcohol
addiction. Sonja Morrell, the mother of Father’s other four children, ages 17, 15, 13 and 10,
testified that she had known Father for 19 years and continued to see him on a frequent basis,
even driving him to work on occasion during the period in question.2 She also testified that
during 2008 he had frequent bouts with stomach problems, which she understood to pertain
to pancreatitis, and for which he was frequently hospitalized. She stated that Father had
worked for Maxwell House hotel,3 Jones Super Savers store, an Amoco dealer, and Krystal
restaurant, but some of these jobs were part-time and were not during the period in question.
She also testified that there were periods of time that he could not work due to his stomach
pain and his addictions. Shereka Swinger, Father’s sister, also testified at trial. Ms. Swinger
testified that Father was hospitalized for one month in July of 2009 for his pancreatitis, that
he was delusional and hallucinating, that he was in the ICU, and that he was on a ventilator.
Ms. Swinger also testified that her brother had an alcohol abuse problem. Following the
conclusion of the trial, the trial court entered an order on June 10, 2010, finding Father guilty



        1
          (...continued)
to bring this action pursuant to Tenn.Code Ann. § 71-3-124(c), 42 U.S.C. § 654(4), and 45 C.F.R. § 302.33.
        2
            She charged a fee for driving him to work.
        3
       Testimony by Ms. Eason was that Father worked at the Maxwell House hotel in 2003 or 2004 and
Ms. Morrell testified that Father worked at Krystal during 2006.

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of eighteen counts of criminal contempt and ordering Father to serve the 180-day sentence
imposed by the juvenile court magistrate. Father filed a timely appeal.

                                             I SSUES

        Father asserts the evidence is insufficient to establish that he had the ability to pay
child support during the relevant time frame, July 1, 2008 through July 30, 2009, and thus
his failure to pay was not willful. He asserts that the court erred by concluding that his ability
to work at a time prior to the period at issue was sufficient to prove his guilt for failing to pay
support during the relevant time frame.

                                           A NALYSIS

                                                I.

        The willful disobedience of a lawful court order or decree is punishable as criminal
contempt. Tenn. Code Ann. § 29-9-102(3). The maximum sentence for each act of criminal
contempt is ten days of confinement in jail and the maximum fine is $50.00. Tenn. Code
Ann. § 29–9–103. The person accused of criminal contempt is presumed to be innocent and
the prosecution bears the burden of proving guilt beyond a reasonable doubt. Cottingham v.
Cottingham, 193 S.W.3d 531, 538 (Tenn. 2006) (citing Shiflet v. State, 400 S.W.2d 542, 544
(Tenn. 1966)). If the defendant is accused of failing to make support payments required by
order or decree, the prosecution must prove beyond a reasonable doubt that the person
charged with contempt had the ability to pay support at the time it was due and that the
failure to pay was willful. Cottingham, 193 S.W.3d at 538 (citing Ahern v. Ahern, 15 S.W.3d
73, 79 (Tenn. 2000)).

       Once convicted of criminal contempt, the defendant loses the presumption of
innocence. Id. Thus, on appeal, the issue is whether, considering the evidence in the light
most favorable to the prosecution, any trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Id. (citing Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 319 (1979); State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003);
Black v. Blount, 938 S.W.2d 394, 399 (Tenn. 1996)).

                                                II.

       Father contends that the evidence was insufficient to establish that he had the ability
to pay child support from July 1, 2008 through July 30, 2009, because of the uncontroverted




                                                -3-
testimony that he was hospitalized for the month of July 2009, and an Exhibit,4 which proved
he was incarcerated from July 21, 2008 to November 13, 2008. We agree.

       The evidence established that Father was incarcerated from July 21, 2008 through
November 13, 2008, and hospitalized for the month of July 2009. Calculating the weeks in
a manner favorable to Father,5 we find the State failed to prove that Father had the ability to
pay support for twenty-four (24) weeks. Support was to be remitted bi-weekly, thus, the
evidence failed to establish beyond a reasonable doubt that Father had the ability to make
twelve (12) bi-weekly support payments that were due during the relevant period.

       There were fifty-six (56) weeks during the period of time at issue, from July 1, 2008
through July 30, 2009. Thus, Father was obligated to remit twenty-eight (28) bi-weekly
payments during this period. He remitted none. We have already determined that the
evidence fails to establish that Father had the ability to pay twelve (12) of the bi-weekly
support payments. Accordingly, we must determine if the evidence is sufficient to establish
beyond a reasonable doubt that Father had the ability to pay some or all of the other sixteen
(16) bi-weekly payments that were owing during this time period.

                                                  III.

        Father contends that the trial court erred by concluding that his ability to work prior
to the period at issue was sufficient to establish that he had the ability to pay support during
the relevant time frame. We find no merit to this contention.

        Several witnesses testified that Father worked numerous jobs for years and that the
only time he was unable to work was when he was ill or when he abused drugs and alcohol,
the latter of which does not excuse him of his obligation to pay support. Considering the
evidence in the light most favorable to the prosecution, we have determined that a trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. See
Cottingham, 193 S.W.3d at 538; see also State v. Davidson, 121 S.W.3d at 614. We,
therefore, find the evidence sufficient to establish that but for the twenty-four weeks he was
incarcerated and in the hospital, Father had the ability to pay support.

      The trial court found Father guilty of eighteen (18) counts of criminal contempt. We
determined the evidence only establishes that he is guilty of sixteen (16) counts. Accordingly,


       4
           The Exhibit is an Inmate Charge Summary from the Davidson County Sheriff’s Office.
       5
          This takes into consideration that Father may have been unable to work a few days immediately
prior to being admitted to the hospital and following discharge.

                                                  -4-
we reverse the finding of guilt of two (2) of the counts and affirm the finding of guilt for the
remaining sixteen (16) counts of criminal contempt. In that Father does not challenge the
manner of sentencing, we shall not consider whether the imposition of sixteen consecutive
sentences for the maximum of ten days each was excessive. See Thigpen v. Thigpen, 874
S.W.2d 51, 54 (Tenn. Ct. App. 1993).

                                        In Conclusion

       The judgment of the trial court is reversed in part and affirmed in part and remanded
with costs of appeal assessed against the appellant, Phillip L. Swinger.


                                                        ______________________________
                                                        FRANK G. CLEMENT, JR., JUDGE




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