                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                        July 19, 2012 Session

 STATE OF TENNESSEE, EX REL., TONIA M. BERNARD v. ROBERT E.
                          SMITH

                  Direct Appeal from the Chancery Court for Dyer County
                       No. 00C-101     Tony A. Childress, Chancellor


                    No. W2011-01154-COA-R3-CV - Filed October 9, 2012


Appellant/Father appeals the trial court's finding that he was in criminal contempt for failure
to pay child support. Upon review of the record, we reverse and dismiss the criminal
contempt charges.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
                                  and Dismissed

D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.

Martin E. Dunn, Dyersburg, Tennessee, for the appellant, Robert E. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter, William E. Young, Solicitor General
and Warren Jasper, Senior Counsel, Tennessee, for the appellee, State of Tennessee, ex rel.,
Tonia Bernard.

                                   MEMORANDUM OPINION 1




       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       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       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
        In April 2000, Robert E. Smith (“Father”) and Tonia M. Bernard (“Ms. Bernard”)
were divorced by entry of a final decree of divorce. Thereafter, on January 25, 2007, the
State of Tennessee, providing child support enforcement services to Ms. Bernard, filed a
petition in the Dyer County Chancery Court to set child support. Following a hearing, the
trial court entered an order granting Ms. Bernard a judgment for arrears in the amount of
$1,975.38 and set child support at $265.00 per month, with $51.00 of that amount going
toward the arrearage.

       On January 7, 2008, the State filed a petition for contempt against Father. After
conducting a hearing, the trial court entered an order to issue an income assignment and
monitor compliance. Thereafter, on September 11, 2008, Father entered a guilty plea of
contempt for willful failure to pay eighteen child support payments and was sentenced to 180
days in jail. The amount of arrearage was found to be $4,101.38, and child support was set
at $265.00 per month as previously ordered by the trial court.

       On June 23, 2009, the State filed another petition for contempt against Father. At the
hearing on the matter, the trial court heard testimony from witnesses that Father made no
child support payments from January 1 to June 17, 2009, that Father worked during that time
period, and that Father stated that he could make the agreed upon payments. Moreover,
Father testified that he earned about $300 per month working up to three jobs, and that he
was currently living with, and providing support for, his ex-wife and their three children.2
At the conclusion of the hearing, the trial court found that Father had the ability to make
some payments from January through May 2009, but chose to spend money on things that
were not necessities rather than making any payments toward his child support obligation.
Accordingly, on April 14, 2011, the trial court entered a final order concluding that:

       During the period of time from January 1, 2009 through June 17, 2009,
       [Father] had several health issues such as knee and breathing problems.
       Despite these problems, [Father] earned $300.00 per month in income working
       as a DJ during the period of time from January 1, 2009 through June 17, 2009.
       During the period of time from January 1, 2009 through June 17, 2009,
       [Father] used the limited resources he did earn to pay rent and buy food and
       gasoline. During the period of time from January 1, 2009 through June 17,
       2009, [Father]’s brother helped him financially. While [Father] did not have
       lots of money, he used some of the money that he did have to buy cigarettes
       and minutes for a cell phone. Despite having money to buy cigarettes and
       minutes for a cell phone, which the Court does not find to be necess[ities],
       [Father] did not pay one cent (.01¢) of child support in January, February,

       2
           The ex-wife referred to in Father’s testimony was not Ms. Bernard.

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       March, April or May of 2009. In total, [Father] did not make five (5) child
       support payments. Granted, [Father] was not in a financial position to pay the
       entire amount of child support that he was ordered to pay. [Father], however,
       did have the ability to pay at least something when the support payments for
       January, February, March, April and May of 2009 where [sic] due, but instead
       of paying at least something, [Father] made the choice to spend the money he
       could have pay [sic] toward his ordered child support payment on cigarettes
       and minutes for a cell phone. The Court finds that the [State] has proven
       beyond a reasonable doubt that [Father] did not pay any child support during
       the months of January, February, March, April and May of 2009; that he had
       the ability to pay at least some amount in the months of January, February,
       March, April and May of 2009; and that his failure to pay at least some amount
       during the months of January, February, March, April and May of 2009 was
       willful. Accordingly, [Father] is in criminal contempt of the Court’s order for
       failure to pay at least some amount of support in the months of January,
       February, March, April and May of 2009, and [Father] is sentenced to ten (10)
       days for each missed payment, for a total of fifty (50) days; all suspended
       except for ten (10) days. [Father] shall report to the Dyer County jail on May
       20, 2011 by no later than 6:00 p.m. to begin serving of [sic] his ten (10) day
       sentence.

Thereafter, Father timely filed a notice of appeal to this Court.

                         Issue Presented and Standard of Review

        The sole issue presented for our review is whether the trial court erred in finding
Father in criminal contempt for failing to pay child support. We review the trial court’s
findings of fact with a presumption of correctness unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d). Accordingly, we will not reverse the trial court's factual
findings unless they are contrary to the preponderance of the evidence. We review the trial
court's conclusions on matters of law de novo, however, with no presumption of correctness.
Tenn. R. App. P. 13(d). Our review of a trial court's application of the law to the facts is de
novo, with no presumption of correctness. State v. Ingram, 331 S.W.3d 746, 755 (Tenn.
2011).

                                         Discussion

      The willful disobedience of “any lawful writ, process, order, rule, decree, or
command” is punishable as criminal contempt. Tenn. Code Ann. § 29-9-102(3) (2000). A
defendant accused of criminal contempt is presumed to be innocent, and the prosecution

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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, 217 Tenn. 690, 400 S.W.2d 542, 544
(1966)). Once convicted of criminal contempt, however, the defendant loses the presumption
of innocence. Id. Thus, on appeal, the issue becomes 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, 99 S. Ct. 2781, 61 L. Ed.2d 560 (1979); State v.
Davidson, 121 S.W.3d 600, 614 (Tenn. 2003); Black v. Blount, 938 S.W.2d 394, 399
(Tenn.1996)).

      As this Court stated in State ex rel. Martin v. Lynch, No. M2009-00994-COA-R3-JV,
2010 WL 3064365 (Tenn. Ct. App. Aug. 5, 2010):

        The contemptuous offense of willfully failing to pay child support has two
        essential but distinct elements: (1) the defendant had “the ability to pay at the
        time the support was due,” and (2) “the failure to pay was willful.” Murray v.
        Neiswinter, No. M2005-01983-COA-R3-CV, 2007 WL 565823, at *6 (citing
        Tenn. Code Ann. § 29-9-102; quoting Ahern v. Ahern, 15 S.W.3d 73, 79
        (Tenn.2000)). Whether the alleged contemnor had the “ability to pay” and
        whether the failure to pay was “willful” require distinct findings of fact, and
        both must be proven beyond a reasonable doubt in order to find a person in
        criminal contempt.             Id. (citing M artin v. M oats, N o.
        M2004-01921-COA-R3-CV, 2006 WL 2527641, at *2 (Tenn. Ct. App. Aug.
        24, 2006); McPherson v. McPherson, No. M2003-02677-COA-R3-CV, 2005
        WL 3479630, at *4 (Tenn. Ct. App. Dec. 19, 2005)).

Id. at *2. In the case at bar, Father does not dispute the fact that he failed to pay child
support from January 1, 2009 through June 17, 2009. Instead, Father argues that he did not
have the ability to pay the amount of support ordered at the time it was due, and therefore his
failure to pay was not willful.

       At the hearing, the evidence considered by the trial court consisted of the testimony
of four witnesses, namely: (1) Andrea Joy (“Ms. Joy”);3 (2) McKenzie Hughley (“Ms.
Hughley”);4 (3) Father; and (4) Charles Smith (“Mr. Smith”), Father’s brother. Ms. Joy’s


       3
        Although Ms. Joy’s position was not indicated in the record, the State’s brief provides that she
“appears to be the child support clerk at the court.”
       4
           Ms. Hughley’s position was also not indicated in the record, but the State’s brief provides that “she
                                                                                                  (continued...)

                                                       -4-
participation in this matter consisted of only one answer to one question posed by the State.
When asked whether Father made any child support payments from January 1, 2009 through
June 17, 2009, Ms. Joy answered “[n]o.” Ms. Hughley testified that Father told her that he
did not have a full-time job, but did work as a DJ part-time, and on average would work two
to three times each month, earning approximately $75.00 to $100.00 each time. Ms. Hughley
further testified that Father told her that he would have no problem paying the amount of
child support ordered by the trial court.

        Next, Father confirmed that he worked as a DJ part-time during the period of
contempt, and that he earned approximately $300.00 each month. Father discussed the basic
living expenses he incurred each month, which included rent of $150 per week. Also, Father
stated that he was diagnosed with multiple health problems including COPD, valve leakage,
“bad knees”, and a rare blood disease which is causing his spine to fuse together. Father
stated that his health issues caused him a great deal of pain, required him to take numerous
prescription medications, and greatly hindered his ability to get around, much less work.
Father admitted that, during the period of contempt, he purchased gas for transportation,5
minutes for his cell phone, and one or two packs of cigarettes. Moreover, Father testified
that he was on food stamps during the period of contempt, and had applied for Social
Security disability, but his claim had not been approved at the time of the hearing.

       Mr. Smith, Father’s brother, testified at length regarding the financial support he
provided Father during the period of contempt. Mr. Smith often helped Father pay his rent.
Whenever the utilities were turned off at Father’s residence, Mr. Smith paid to have them
turned back on. Since Mr. Smith worried about his brother’s health issues, he gave Father
money for gas and purchased minutes for his cell phone so that they could keep in touch.
Also, Mr. Smith and his wife bought food for Father when he could not afford it, and
sometimes brought Father food from their own home. Furthermore, Mr. Smith often drove
Father to the doctor, paid his co-pay, and paid for the prescriptions that he needed. Father
never borrowed money from Charles to pay for child support.

       After thoroughly reviewing the record, we conclude that the evidence presented was
insufficient for any trier of fact to find beyond a reasonable doubt that Father’s failure to pay
child support was willful, or that he had the ability to pay the amount ordered at the time it


        4
         (...continued)
appears to have been the child support case worker at the time of the March 2010 hearing.”
        5
        Although Father did not own a vehicle during the period of contempt, he testified that he was
engaged at that time, and that he purchased gas for his fiancee’s car so that they would have transportation
when necessary.

                                                    -5-
was due. The trial court ordered Father to pay $265.00 per month in child support. It is
undisputed, however, that Father earned, at most, approximately $300.00 per month. Taking
into account Father’s basic living expenses, including $150.00 per week for rent, it is clear
that Father’s expenses greatly exceeded his income. While we acknowledge that Father
purchased one or two packs of cigarettes and minutes for his cell phone to keep in contact
with his brother during the period of contempt, we do not consider these facts dispositive.
Even the trial court acknowledged in its final order that “[Father] was not in a financial
position to pay the entire amount of child support that he was ordered to pay.” But for the
support of his brother, Father would not have been able to cover the costs of his basic living
expenses. Although the evidence presented by the State established that Father made no
child support payments from January 1, 2009 to June 17, 2009, the evidence was insufficient
to prove that he had the ability to pay the amount ordered at that time, and that his failure to
pay was willful. Accordingly, we reverse the judgment of the trial court. As a result, “[t]he
constitutional provisions against double jeopardy require that the criminal contempt charges
be dismissed.” Cottingham v. Cottingham, 193 S.W.3d 531, 539 (Tenn. 2006) (citing State
v. Hutcherson, 790 S.W.2d 532, 534-35 (Tenn. 1990)); see also State v. Wood, 91 S.W.3d
769, 773 (Tenn. Ct. App. 2002) (“[Criminal contempt] is enough of a crime that the double
jeopardy provisions of the state and federal constitutions prohibit a subsequent contempt
prosecution after a contempt proceeding starts and comes to an inconclusive end in another
court.”) (citing Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000)).

                                         Conclusion

       For the foregoing reasons, we reverse the judgment of the trial court. Due to the
insufficiency of the evidence, the criminal contempt charges are dismissed. Costs of this
appeal are taxed to the Appellee, State of Tennessee, ex rel., Tonia M. Bernard, for which
execution may issue if necessary.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE




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