Facts: The trial court found Father guilty of five separate counts of criminal contempt for failure to pay child support and sentenced him to 50 days in jail. Father appealed the sentence.

On Appeal: The Court of Appeals modified the trial court’s sentence.

Tennessee Code Annotated § 29-9-102(3) authorizes courts to find persons who willfully disobey court orders to be in contempt of court. To find a party in contempt for failure to pay child support, the court must first find that the party had the ability to pay at the time the support was due and then determine that the party’s failure to pay was willful. If a party knowingly engages in contemptuous conduct, sanctions are appropriate, including incarceration, if justified by the circumstances. A person can be sentenced to up to ten days in jail for each violation pursuant to Tennessee Code Annotated § 29-9-103(b).

When multiple counts are involved, the court must determine whether the sentences should run consecutively or concurrently to one another. Consecutive sentencing is appropriate if certain criteria set forth in Tennessee Code Annotated § 40-35-115(b) are present. Even in cases where consecutive sentencing is deemed appropriate, the court must still consider whether the overall length of the sentence is appropriate in relation to the seriousness of the offenses, and verify that the sentence is no greater than that deserved under the circumstances. In making this determination, the court must generally consider the seriousness of the contempt and the deliberate manner of the defendant’s conduct. In addition, the court should considered the following factors: (1) whether the  defendant’s conduct was repetitive or isolated; (2) the length of time that the defendant’s conduct occurred; (3) whether the defendant’s conduct was for personal benefit; (4) whether the defendant’s conduct subjected others to great risk; and (5) whether the defendant made efforts to remedy the effects of the conduct.

After reviewing the record and the above-cited factors, the Court concluded that

Father’s acts do not justify the imposition of the maximum sentence of ten days for each count of criminal contempt. Although Father failed to satisfy his child support obligation over a period of five months, we do not see a pattern in Father’s conduct. The record demonstrates that, in the months preceding the contempt petitions, Father satisfied his court-ordered child support obligation. Also, Father has continued to make some payments to Mother during the contempt period, albeit in an untimely manner and not in the full amount.

The Court modified Father’s sentence to five days’ incarceration for each violation, resulting in a net sentence of 25 days in jail.

Rutledge v. Kelly (Tennessee Court of Appeals, Middle Section, August 28, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.