                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                         October 15, 2010 Session

  STATE OF TENNESSEE EX REL. MICHAEL OVERTON v. KIMBERLY
                            ROBB

                      Appeal from the Juvenile Court for Dickson County
                         No. 41-86392    A. Andrew Jackson, Judge


                    No. M2010-00319-COA-R3-JV - Filed October 25, 2010


The defendant was found in civil contempt for failure to pay child support and sentenced to
serve 180 days in jail unless she purged her contempt with the payment of $2,200. Finding
the evidence inadequate to support a finding that the defendant had the ability to pay child
support when it was due or that she had the ability to pay $2,200 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

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.

James L. Baum, Burns, Tennessee, for the appellant, Kimberly Robb.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
and Warren Jasper, Senior Counsel, for the appellee, State of Tennessee.

                                   MEMORANDUM OPINION 1



       1
           Tenn. R. Ct.App. 10 states:

       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       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited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.
      On November 25, 2008, the State of Tennessee filed a petition for contempt against
Kimberly Robb, the mother of two minor children, for failure to pay child support. Ms. Robb
was obligated under a May 2003 order to pay $286 per month in support of her two children,
who were in the custody of their father, Michael Overton. The State sought both civil and
criminal contempt.

       The first hearing on the petition was held on December 4, 2009. At the time, Ms.
Robb was incarcerated in the Dickson County jail on a probation violation. She was
transported from the jail to attend the December 4 hearing. Ms. Robb was not represented
by counsel at the hearing for contempt; that fact notwithstanding, the hearing proceeded. At
the conclusion of the hearing, the juvenile court entered an order finding Ms. Robb in civil
contempt and sentencing her to 5 months and 29 days in jail to be served consecutively with
her probation violation, which could be purged by payment of $2,000. The trial court also
granted a judgment of $17,806 for child support arrearages.

        On December 20, 2009, the juvenile court determined that Ms. Robb was indigent and
counsel was appointed to represent her. The following day, on December 21, 2009, a second
hearing occurred; however, no evidence was introduced at this hearing. The attorneys were
merely allowed to make oral arguments; moreover, Ms. Robb’s attorney had no way of
knowing what transpired at the first hearing as there was no transcript of the evidence or
statement of the evidence from the first evidentiary hearing. Further, the juvenile court relied
on its recollection of the evidence presented at the first hearing.

       On December 29, 2009, the juvenile court issued an order finding Ms. Robb in civil
contempt for willful failure to pay child support and sentencing her to 180 days in jail, which
could be purged by payment of $2,200.2 The court again awarded $17,806 for child support
arrearages. Ms. Robb filed a timely appeal.

        Ms. Robb presents the following issues on appeal: (1) Whether sufficient evidence
was presented to support a finding of civil contempt; (2) Whether the trial court erred by
failing to affirmatively determine if Ms. Robb had the present ability to comply with the
court’s order or providing her an opportunity to present evidence of her inability to comply;
and (3) Whether the sentence imposed by the trial court was excessive.

                                                 A NALYSIS

     A trial court is authorized pursuant to Tenn. Code Ann. § 29-9-102(3) to find a person
who willfully disobeys a court order in contempt of court. To find a party in contempt for

       2
           In the same order the court struck the previous order of contempt.

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failure to pay child support, “the court must first determine that [the party] had the ability to
pay at the time the support was due and then determine that the failure to pay was willful.”
Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000). If the court finds a party in contempt, the
court has “several remedies available depending upon the facts of the case.” Id.

       A court can imprison an individual to compel performance of a court order.
       This is typically referred to as “civil contempt.” This remedy is available
       only when the individual has the ability to comply with the order at the
       time of the contempt hearing. Thus, with civil contempt, the one in
       contempt has the “keys to the jail” and can purge the contempt by
       complying with the court’s order. In civil contempt, the imprisonment is
       meted out for the benefit of a party litigant.

Ahern, 15 S.W.3d at 79 (citations omitted) (emphasis added).

       There is no evidence in this record to support a finding that Ms. Robb had the ability
to pay child support when the support payments at issue were due. Moreover, there is
evidence in the record to support a finding that she did not have the ability to pay $2,200 to
purge her sentence for civil contempt. This is evident both from the fact that she was in jail,
where she had been for seven months, and that she was seeking social security disability
benefits based on the contention that she could not work, and there is no evidence in the
record to the contrary.

       For these reasons, inter alia, the judgment of the trial court is reversed.

                                       I N C ONCLUSION

       The judgment of the trial court is reversed, and this matter is remanded with costs of
appeal assessed against the appellee, the State of Tennessee.




                                                        ______________________________
                                                        FRANK G. CLEMENT, JR., JUDGE




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