MARY E. LESSLEY,                      )
                                      )
       Petitioner/Appellee,           )       Appeal No.
                                      )       01-A-01-9710-CV-00617
v.                                    )
                                      )       Robertson Circuit
CHARLES SHOPE, JR.,                   )       No. DR-7862
                                      )
       Respondent/Appellant.          )

                                                          FILED
                                                             July 17, 1998
                     COURT OF APPEALS OF TENNESSEE
                                                         Cecil W. Crowson
                                                        Appellate Court Clerk

     APPEAL FROM THE CIRCUIT COURT FOR ROBERTSON COUNTY

                         AT SPRINGFIELD, TENNESSEE


              THE HONORABLE CAROL CATALANO, JUDGE




JOHN KNOX WALKUP
Attorney General & Reporter

SUE A. SHELDON
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 5th Avenue, North
Nashville, Tennessee 37243
       ATTORNEYS FOR PETITIONER/APPELLEE



COLLIER W. GOODLETT
Assistant Public Defender
19th Judicial District
109 S. Second Street
Clarksville, Tennessee 37040
       ATTORNEY FOR RESPONDENT/APPELLANT




                              REVERSED AND REMANDED




                                               WILLIAM B. CAIN, JUDGE
                                OPINION
         This case involves an appeal from an order of the Circuit Court of
Robertson County, Tennessee, imposing a fifty dollar ($50.00) fine upon the
appellant together with a ten (10) day jail sentence for contempt of court in
failing to pay child support.


         At the behest of the District Attorney's Office on July 3, 1997, Judge
Carol Catalano issued an order of attachment for the body of the appellant,
Charles Shope, Jr., reciting as follows:
         You are hereby commanded to arrest the above named
         Respondent and have him appear on August 20, 1997 at 1:30
         P.M. before the CIRCUIT Court for ROBERTSON County,
         Tennessee to answer a charge that you are in contempt of
         court for failing to comply with the orders of the Court to-
         wit: the payment of child support and/or failure to appear for
         Court. At the above hearing, if you are found to be in
         contempt of court, the District Attorney's Office will request
         incarceration.



          The attachment was issued pursuant to Tennessee Code Annotated
section 36-5-405(d) and bond was set in the amount of ". . . $2,500.00 cash".


          Appellant was arrested on said attachment on July 14, 1997, with
hearing set for 1:30 p.m., August 20, 1997.


          On July 23, 1997, appellant filed a pro se petition for a writ of habeas
corpus in the Circuit Court for Robertson County, Tennessee, asserting a right
to immediate release from confinement.


          On July 25, 1997 appellant filed an affidavit of indigency before
Honorable John H. Gasaway, Jr. Judge Gasaway entered an order that same day
finding appellant indigent, appointing counsel and providing as follows:




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         IN THIS CAUSE, it appearing to the court that the
         Defendant is before the Court on a charge of Contempt for
         failure to pay child support and
         It further appearing to the Court that the defendant is
         indigent and unable to employ counsel and is thereby
         qualified for appointed legal counsel,
         It is therefore ordered by the Court that the Public Defender,
         a member of the Robertson County Bar Association is hereby
         appointed to represent the siad (sic) defendant.



          This order further provided in a hand written addendum from Judge
Gasaway bearing the same date:
          The court further orders that the current cash bond of $2,500
          be converted to a recognizance bond of $2,500. Further, the
          current hearing date of August 20, 1997 at 1:30 p.m. shall
          remain as set. A copy of this order shall be delivered to the
          public defender and to the respondent, receipt to be
          acknowledged by the respondent. Writ of habeas corpus
          denied.

          On August 16, 1997, still acting pro se, the appellant filed an extensive
motion to dismiss on various constitutional and statutory grounds.


          The petition for contempt was heard on September 17, 1997 and an
"appearance mittimus" was issued by Judge Catalano on September 17, 1997
with a hand written notation "ten days to serve w/ credit for time served."


          On September 18, 1997, the appellant, again acting pro se, filed a
notice of appeal from the judgment of September 17. On that same date he
likewise filed a notice that no transcript or stenographic record of the proceeding
of September 17, 1997 would be filed on the appeal.


          On September 25, 1997 Judge Catalano entered an order approved for
entry by John H. Lynch, child support attorney for the District Attorney's Office,
which provided as follows:
               This cause came on to be heard on the 17th day os (sic)
          September, 1997, before the HONORABLE CAROL
          CATALANO, Judge of the DOMESTIC RELATIONS
          COURT, upon an Attachment, the Respondent appearing in
          person. It appearing that $1,104.76 has been paid in this


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          matter since the Respondent was ordered to pay $50.00 (plus
          5% clerks fee), per week beginning August 20, 1991. The
          arrearage now owing in this matter is $18,149.99 including
          a previous judgment awarded on 6-05-96. The last payment
          made was on 3-25-92.
               IT IS THEREFORE ORDERED, ADJUDGED, AND
          DECREED by the Court that the Respondent is found in
          contempt and is sentenced to spend 10 days in the Robertson
          County Jail. Siad (sic) sentence is to be suspended to 10
          days already served. The Petitioner is awarded a judgment
          for $18,149.99 (plus 5% clerks fee), the amount of back
          support owing in this matter.
               The Respondent shall pay $50.00 per week (plus 5%
          clerks fee), and $25.00 per week (plus 5% clerks fee) on the
          arrearage owing in this matter beginning 9-26-97.
          Respondent is to pay a $50.00 fine plus any Court costs in
          this matter by 10-17-97.



          Appellant had filed his pro se notice of appeal to the Court of Criminal
Appeals. On October 28, 1997 that court acknowledged that it was without
jurisdiction to consider the appeal under Tennessee Code Annotated § 16-5-108
and transferred the case to this court pursuant to Tenn. R. App. P. 17.


          On December 3, 1997, this court ordered that the trial judge certify the
following question for review, "whether the appellant was represented by
counsel or whether he executed a written waiver of his right to the aid of counsel
after being advised in open court of said right."


          On December 10, 1997 Judge Catalano responded to this court's order
by certifying, "that the record is silent as to whether the appellant was
represented by counsel and that there is no written waiver of the appellant's right
to the aid of counsel."


          On December 11, 1997, an order was entered in this court extending the
time for the filing of the appellant's brief through January 12, 1998. On January
22, 1998, public defender Michael R. Jones was granted thirty (30) days within
which to file a brief on behalf of the appellant. On January 23, 1998, Sue A.
Sheldon on behalf of the Attorney General of Tennessee filed a notice of
appearance before this court. On April 22, 1998, Honorable Collier W. Goodlett,

                                        -4-
Assistant Public Defender, filed a brief in this case on behalf of the appellant and
therein waived oral argument. On May 22, 1998, Honorable Sue A. Sheldon on
behalf of the Attorney General of Tennessee filed a brief of the appellee also
waiving oral argument.


          Such is the state of the record before this court.


          Appellant asserts in part the following:
              ASSIGNMENT OF ERROR NUMBER ONE: THAT
          THE CHANCERY COURT, AFTER HAVING
          APPOINTED COUNSEL TO REPRESENT THE
          RESPONDENT, ERRED IN PROCEEDING WITHOUT
          COUNSEL PRESENT FOR THE RESPONDENT.
              ASSIGNMENT OF ERROR NUMBER TWO: THAT
          THE CHANCERY COURT AFTER HAVING APPOINTED
          COUNSEL TO REPRESENT THE RESPONDENT ERRED
          IN SENTENCING THE RESPON D E NT TO
          INCARCERATION WHEN COUNSEL FAILED TO
          APPEAR TO REPRESENT THE RESPONDENT AND THE
          RESPONDENT HAVING NOT WAIVED HIS RIGHT TO
          COUNSEL.



          Counsel thereupon briefs extensively and convincingly these issues
acknowledging his debt to academic sources. Says counsel:
               We have all drunk from wells we did not dig. Anon.
          Counsel has drunk deeply and shamelessly from the
          following wells: 30 Wm. & Mary L. Rev. 627, Spring, 1989,
          THE RIGHT TO APPOINTED COUNSEL FOR INDIGENT
          CIVIL LITIGANTS: THE DEMANDS OF DUE PROCESS,
          William L. Dick, Jr.; 50 U. Chi. L. Rev. 326, Winter, 1983,
          THE INDIGENT DEFENDANT'S RIGHT TO COURT-
          APPOINTED COUNSEL IN CIVIL CONTEMPT
          PROCEEDINGS FOR NONPAYMENT OF CHILD
          SUPPORT, Robert Monk; 9 St. Thomas L. Rev. 767, Spring
          1997, INDIGENT CONTEMNORS BEWARE:                       IN
          FLORIDA, YOU MAY BE INCARCERATED WITHOUT
          BEING APPOINTED COUNSEL!, Neal G. Bourda; 14 N.M.
          L. Rev. 275, Spring, 1984, FATHERS BEHIND BARS:
          THE RIGHT TO COUNSEL IN CIVIL CONTEMPT
          PROCEEDINGS, Michele Hermann and Shannon Donahue.



          In brief before this court the state concedes and this court agrees that


                                        -5-
the contempt charged in this case was criminal contempt and that the trial court
having appointed counsel for the defendant could not then proceed to try the
merits of the criminal contempt petition in the absence of appointed counsel and
without a waiver by the appellant of his right to counsel. Rule 13 Tenn. Sup. Ct.
Rules; Storey v. Storey, 835 S.W.2d 593 (Tenn. App. 1992).


            Appellant asserts three other issues on appeal; in view of our reversal
on other grounds we find consideration of these issues to be unnecessary.


            This court does not attempt in this case to determine the parameters
within which indigent defendants are entitled to appointed counsel in civil or
criminal contempt cases based upon failure to pay child support. We only
determine that in this case, where the trial court has found indigency and
appointed counsel, that it is improper to proceed with the merits of criminal
contempt in the absence of that appointed counsel, without first securing a
knowing waiver from the appellant of his right to be so represented.


            The judgment of the trial court finding the appellant in criminal
contempt and sentencing him to incarceration for a fixed period of time is
reversed, and the cause is remanded to the trial court for further proceedings not
inconsistent with this opinion. Costs of this appeal are assessed against the
appellee.




________________________________
                                               WILLIAM B. CAIN, JUDGE



CONCUR:



__________________________________
BEN H. CANTRELL, JUDGE




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__________________________________
WILLIAM C. KOCH, JR., JUDGE




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