Cash-Only Bonds Disallowed in Tennessee Child Support Enforcement Cases: State ex rel. Haynes v. Daugherty

FactsFather fell behind in paying child support for his three children.

The State of Tennessee, acting on behalf of Mother, petitioned for him to be found in civil contempt.

The parties entered an agreed order providing that an automatic attachment could issue for Father’s arrest if he failed to pay child support for a 30-day period.

Tennessee child supportFather failed to pay as promised. The trial court entered an order for Father’s arrest with a cash bond of $13,413.45, which was the balance owed. The order further provided that, upon payment, the bond funds would be forwarded to the State and applied to Father’s child-support arrearage.

Father was arrested, spent six days in jail, and was released when the State’s attorney agreed to reduce his bond.

Father got a lawyer, and his lawyer moved to quash the “illegal attachment.” Father’s lawyer argued the attachment was illegal because it restricted payment of the bond to cash and effectively sentenced Father to jail until the end of time without ever finding them in contempt and without ever determining whether he could pay.

After Father’s motion was denied, the Court of Appeals granted his request for an extraordinary appeal.

On AppealIn a 2-1 decision, the Court of Appeals reversed the trial court.

Tennessee Code Annotated § 36-5-101(f)(2) permits a court to issue an attachment for a parent in arrears on child support and set a bond of “up to the amount of the arrears.” If the parent fails to appear or violates the child-support order, the bond may be forfeited and applied to the arrearage. Thus, the statute does not expressly permit or forbid cash-only appearance bonds.

Tennessee’s Constitution provides that “all prisoners shall be available by sufficient sureties.”

After a loooooong recitation of the history of bail that includes “Anglo-Saxon England,” “[f]ollowing the Norman Conquest,” “in 1215, Parliament enacted the Statute of Westminster,” and so on, the Court held:

When ascertaining the meaning of “sufficient sureties” in [the Tennessee Constitution], this court is called upon to consider both the letter and spirit of our constitution. . . . [A] cash-only bail requirement can defectively denied bail in many cases. Allowing the court the discretion to require a cash-only appearance bond where a bond with sufficient sureties is a reasonable option would violate the spirit of [the Tennessee Constitution], which is to limit the court’s discretion in determining who is entitled to pretrial release.

The Court also found a cash-only bond suspect on equal protection grounds:

[W]e have determined that the trial court decision to require a cash-only bond violated Father’s right to equal protection . . . , which requires the court to set bail “as low as the court determines is necessary to reasonably assure the appearance of [the] defendant as required.

The Court also found due process issues in this case:

A civil contemnor “carries the keys to his prison in his own pocket. . . .” Because the “ability to pay” question “marks the dividing line between civil and criminal cases,” a determination of the defendant’s ability to pay is the single most important due process protection in civil contempt cases.

* * * * *

[T]he court used Father’s imprisonment as a means to coerce Father’s compliance with the child-support order. However, and so ordering, the trial court had no competent evidence of . . . Father’s ability to pay the arrearage. The clause the court did not properly ensure that Father possessed the key to his prison cell, the court violated Father’s right to due process.

The Court also determined that the trial court did not properly apply Tennessee Code Annotated § 36-5-101(f)(2):

[T]he statute also authorizes the trial court to set the appearance bond up to the amount of the alleged arrears but the amount of the alleged arrears is the maximum that may be set; it should not be the default amount for assuring the defendant’s appearance at future hearings. Instead, [] the amount of the appearance bond should be set as low as reasonably necessary to ensure the defendant’s appearance at trial, and consequently, must be based on evidence regarding the defendant’s financial condition and his status as a flight risk. . . .

As for the forfeiture provision, [the statute] expressly states, “[i]f the obligor parent thereafter fails to appear or fails without good cause to comply with the order of support, such bonds may be forfeited and the proceeds from the bonds paid to the court clerk and applied it to the order of support. Thus, the statute clearly establishes two conditions precedent to forfeiture of a bond. And, because the statute states that the bonds may be forfeited, a forfeiture of the bond is not mandated. When the court ordered the immediate forfeiture of the bond, Father had not failed to appear. Nor did the court have competent evidence before it to determine whether Father had failed without good cause to comply with the order of support. Therefore, when the “Order of Attachment” was issued, there was no basis for the trial court to order the forfeiture of the bond.

Because the trial court failed to identify and apply the appropriate legal principles, both statutory and constitutional, its decision was reversed as an abuse of discretion.

Dissent: Judge McBrayer agreed with the majority it was error to require a cash-only bond, but felt the majority went too far in its blanket prohibition of cash-only bonds:

[A]lthough bail may be mandatory, the trial court maintains some discretion in selecting the appropriate amount and type of bail, which can include cash-only bail.

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I acknowledge that a cash-only appearance bond should be a rare occurrence. But a cash-only bond may be appropriate in some instances. As the State argues, a cash-only bond gives the parent a clear idea of the risk of failing to appear, and in the event the parent does not appear after posting bond, it makes the full bond amount immediately available for payment toward the support owed.

K.O.’s Comment: (1) Kudos to Father’s lawyer, Paul Andrew Justice, III, Esq., on a job well done. This was high-quality lawyering.

(2) If the State seeks permission to appeal, expect the Supreme Court to grant it.

State ex rel. Haynes v. Daugherty (Tennessee Court of Appeals, Middle Section, September 10, 2019).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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