                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      March 5, 2013 Session

    STATE OF TENNESSEE EX REL. KATHLENE WALDO v. JENNIFER
                           WALDO

                     Appeal from the Juvenile Court for Roane County
                      No. 19571-JV     Dennis W. Humphrey, Judge


                     No. E2011-02677-COA-R3-CV - Filed April 2, 2013


This is an appeal by a mother from the juvenile court’s judgment finding her in civil
contempt for failure to pay child support and incarcerating her until she paid $400 toward the
arrearage to purge the contempt. Finding the evidence inadequate to support a finding that
the mother had the ability to pay child support when it was due or that she had the ability to
pay $400 at the time of the hearing in order to purge the sentence, we reverse.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                             Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and T HOMAS R. F RIERSON, II, J., joined.

Mark N. Foster, Rockwood, Tennessee, for the appellant, Jennifer Waldo.

Robert E. Cooper, Jr., Attorney General & Reporter, and Warren Jasper, Senior Counsel,
Nashville, Tennessee, for the appellee, State of Tennessee ex rel. Kathlene Waldo.

                                               OPINION

        Just after Jennifer Waldo (“Mother”) gave birth to another child in January 2011, the
State filed a petition for contempt relating to Mother’s two older children, who at the time
were in the custody of Mother’s mother, Kathlene Waldo.1 A hearing on the contempt
petition was scheduled for October 12, 2011, at which time the Child Support Magistrate
(“the Magistrate”) discovered that Mother had not been served with the State’s petition.


        1
         Mother’s brief relates that her mother lost custody of the older children due to drug problems. By
suggestion of death the court was notified that Kathlene Waldo passed away on November 10, 2012.
Upon the petition being served on Mother in court and the Magistrate advising her regarding
the issue of contempt, its consequences, and her right to an attorney, the hearing was
continued for a month. Mother appeared at the rescheduled hearing on November 10, 2011,2
again without an attorney. The Magistrate did not appoint counsel to assist Mother; rather,
he proceeded with the hearing.

        Mother testified that she had not paid her child support because she was unemployed
and homeless. She related that she had been unable to find a job because employers required
a driver’s license, and hers had been stolen. Mother contended that she was unable to replace
the license because she did not have the $8 fee. During the hearing, the State put on proof
addressing Mother’s child support payment history and the arrearage calculation. While
cross-examining Mother, the State did not ask, and Mother did not discuss, how much money
she had or what assets she could secure to pay her child support when it became due. Mother
also did not testify regarding how much money or assets she had at the time of the hearing
that could be utilized to pay her child support arrearage.

        At the conclusion of the proof, the Magistrate did not inquire about how much money
or what assets Mother had at that time that could be utilized to pay the child support
arrearage. Instead, he completed his order/findings and recommendations, finding Mother
in willful contempt and sentencing her to be incarcerated until she paid a purge amount of
$400. The State was awarded a judgment of $4,912 for child support arrearages.

       The Magistrate orally explained to Mother that she had a right to a confirmation
hearing and should request one if she disagreed with his ruling, stating as follows: “[Y]ou
have a right to a confirmation hearing before a Judge of the Roane County Juvenile Court.
At the confirmation hearing, the burden would be on you to show where I have erred in fact
or law. You would want a confirmation hearing if you disagree with my ruling. Do you
want a confirmation hearing?” He did not ask Mother whether she wanted an attorney to be
appointed to advise her regarding the effect of the civil contempt finding or to assist her in
determining whether to request a confirmation hearing. Mother responded that she did not
want a confirmation hearing and that she planned to surrender her parental rights to her
mother. The Magistrate informed Mother that surrendering her parental rights would not
affect her child support obligation unless her mother adopted the children.

       Despite Mother’s statements demonstrating her lack of understanding of the
relationship between the surrender of parental rights, the contempt finding, and the
confirmation hearing, the Magistrate did not further address whether Mother understood the


       2
         By the time of the hearing in November 2011, Mother had surrendered her parental rights to the
child born in January 2011, but not to the two older children.

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consequences of her decision to decline a confirmation hearing. She was not asked to and
did not make any written waiver of her right to a confirmation hearing.3

        After the November 10, 2011 hearing, Mother was immediately incarcerated. The
Magistrate’s ruling was confirmed by the Juvenile Court Judge on November 16, 2011.
Within one week of the hearing, Mother submitted two documents to her jailers requesting
that she be brought back before the trial court and appointed an attorney. Mother did not
appear again in court until December 5, 2011, at which time she was brought before the
Juvenile Court Judge in his capacity as General Sessions Judge for an unrelated proceeding.
At that time, Mother requested the appointment of counsel in the child support matter, was
found to be indigent, and was appointed counsel. Within days, Mother filed a motion to set
aside the contempt order and to hold a confirmation hearing. Additionally, a notice appealing
both the November 10 and November 16, 2011, orders, and a motion for stay pending, were
filed.

       On December 15, 2011, a hearing was held before the Juvenile Court Judge. Mother
again testified that prior to the hearing she had been homeless and unemployed. She also
related that at the time of the hearing, she did not have $400. Mother, who had been in jail
35 days on the contempt finding at that point, testified that she was not being stubborn or
otherwise willfully refusing to comply with the court’s order, and that if she had the $400 to
pay to get out of jail, she would have done it. Instead, Mother noted that she was left only
to hope that her mother or a church was going to raise the money. The State did not rebut
Mother’s testimony.

        Mother further explained to the trial court her previous lack of understanding of the
confirmation hearing process, and requested that the Juvenile Court Judge hold a
confirmation hearing and reverse the Magistrate’s order jailing her until she paid $400
because she did not have the money. The Juvenile Court Judge, however, denied Mother any
relief and returned her to jail. Mother filed a Rule 7 motion seeking a review of the juvenile
court’s denial of her motion to stay pending appeal. On December 20, 2011, we granted the
motion to stay.




        3
          Mother later testified -- without any contrary evidence being introduced by the State -- that she did
not understand at the time of the November 10, 2011, hearing that if she did not request a confirmation
hearing, she would have no other way to appeal or seek reversal of the order that she be jailed indefinitely
until she paid $400. She also did not understand that she could request an attorney to be appointed to assist
her in determining whether to request a confirmation hearing.


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                                               II. ISSUES

      We restate the primary issue4 as follows: Whether the trial court erred in failing to
determine whether or not Mother had the ability to purge herself of the civil contempt.


                                   III. STANDARD OF REVIEW

        Findings of civil contempt are reviewed under an abuse of discretion standard.
Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn.
2008); Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993); Moody v. Hutchison, 159 S.W.3d
15, 25-26 (Tenn. Ct. App. 2004). Reviewing courts will set aside a discretionary decision
only when the court that made the decision applied incorrect legal standards, reached an
illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or
employs 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).

       We review the trial court’s factual findings of civil contempt with a presumption of
correctness unless the evidence preponderates otherwise pursuant to the standard contained
in Rule 13(d) of the Tennessee Rules of Appellate Procedure. Konvalinka, 249 S.W.3d at
357.


                                           IV. DISCUSSION

       As noted by the State, the trial court determined that Mother willfully disobeyed her


       4
           The other issues raised by Mother are restated as follows:

       a. Did the trial court err in entering on November 16, 2011, an order confirming the
       Magistrate’s November 10, 2011, order, although the time to request a confirmation hearing
       had not elapsed.

       b. Did the trial court err in refusing to set aside its November 16, 2011, order where there
       was unrebutted evidence that Mother was, during the time a confirmation hearing could have
       been requested, actively seeking from jail appointment of an attorney and re-consideration
       of the magistrate’s November 10, 2011, decision, and did not understand how to request a
       hearing.



                                                     -4-
child support order by her failure to obtain a replacement driver’s license for $8 in order to
gain employment to pay her child support. The State admits, however, that it failed to
present proof regarding Mother’s ability -- at the time of the hearing -- to make her payments
and to satisfy the purge amount set by the trial court.

        Civil contempt is found “where a person refuses or fails to comply with an order of
a court in a civil case[.]” Sullivan v. Sullivan, 137 S.W.2d 306, 307 (Tenn. 1939). Any
punishment is meted out for the benefit of the party litigant. Id. To find civil contempt in
a case, the plaintiff first must establish that the defendant has failed to comply with a court
order. Chappell v. Chappell, 261 S.W.2d 824, 831 (Tenn. 1952). For the trial court to find
that a failure to comply with an order was contemptuous, the court must first determine that
the defendant had the present ability to pay and determine that the failure was willful. Ahern
v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000). The determination of whether the defendant
violated the order of the court and whether the violation was willful are findings of fact.
Konvalinka, 249 S.W.3d at 357. In order to be imprisoned for civil contempt, the defendant
must have the ability to perform the act she is required to perform to secure her release.
Ahern, 15 S.W.3d at 79. Thus, the court must receive evidence at the hearing regarding what
-- at that time -- the defendant had the present ability to do to bring herself in compliance
with the court’s prior order. Ahern, 15 S.W.3d at 79. Where the trial court does not
determine the defendant’s ability to pay at the time of the hearing but nevertheless orders the
defendant incarcerated, the court “exceed[s] the authority granted to [it] under Tennessee
Law.” Poole v. City of Chattanooga, No. E1999-01965-COA-R3-CV, 2000 WL 310564, at
*5 (Tenn. Ct. App. Mar. 27, 2000).

        The record contains no proof regarding Mother’s ability to pay at the time of the
contempt hearing. Neither the State nor the court asked Mother at the hearing “how much
money she had at the time of the November 10, 2011 contempt hearing that could be utilized
to pay her child support arrearage.” The evidence therefore preponderates against the trial
court’s findings. We conclude that the trial court abused its discretion in holding Mother in
contempt. Consideration of the remaining issues asserted by Mother is pretermitted by our
ruling.


                                    V. CONCLUSION

       The judgment of the trial court holding Mother in contempt and incarcerating her is
reversed and the case remanded. Costs are assessed to the State of Tennessee, ex rel.
Kathlene Waldo.




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      _________________________________
      JOHN W. McCLARTY, JUDGE




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