Facts: The State filed a petition for contempt relating to Mother’s failure to pay child support for two children, who at the time were in the custody of Mother’s mother.

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.

The Child Support Magistrate found Mother in civil contempt and sentenced 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.

Mother was immediately incarcerated. The Magistrate’s ruling was confirmed by the Juvenile Court Judge a week later. 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. When Mother next appeared in court a few weeks later, she requested the appointment of counsel, 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.

Ten days later, 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.

The Juvenile Court Judge, however, denied Mother any relief and returned her to jail.

Mother appealed.

On Appeal: The Court of Appeals reversed 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. To find civil contempt in a case, the plaintiff first must establish that the defendant has failed to comply with a court order. 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. The determination of whether the defendant violated the order of the court and whether the violation was willful are findings of fact. 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. 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. 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 exceeds the authority granted to it under Tennessee law.

After reviewing the record, the Court reasoned:

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 [] 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.

Accordingly, the trial court’s judgment was reversed.

State ex rel. Waldo v. Waldo (Tennessee Court of Appeals, Eastern Section, April 2, 2013).

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