______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Plaintiffs-Appellees,
Defendant-Appellant.
______________________________________________________________________________
______________________________________________________________________________
Dr. Michael A. S. Guth
Counsel for Appellant
116 Oklahoma Ave.
Oak Ridge, TN 37830-8604
ORAL ARGUMENT REQUESTED Phone: (423) 483-8309
e-mail: mike @ michaelguth.com
Page
TABLE OF AUTHORITIES iii
STATEMENT OF THE FACTS 1
SUMMARY OF THE ARGUMENT 3
ARGUMENT 4
I. THE APPELLANT'S SECOND PETITION WAS AUTHORIZED BY TENN. R. CIV. P. 59.04, AND IT AUTOMATICALLY EXTENDED THE THIRTY-DAY PERIOD FOR FILING AN APPEAL. 4
A. Rule 59.04 of the Tennessee Rules of Civil Procedure Specifically Tolls the Period for Filing an Appeal, and the relief sought by the Appellant's Second Petition Comes Within the Purview of Rule 59.04. 4
B. A Party Appearing Before the Anderson County Juvenile Court Has a Reasonable Expectation that the Presiding Judge Would be Familiar with Tenn. R. Civ. Proc. 59.04. 5
C. Rule 34 of Tennessee Rules of Juvenile Procedure Subsumes Elements of Rules 59 and 60 of the Tenn. R. of Civ. Proc. 7
D. The Appellant's Second Petition identified a crucial error/mistake of FACT, and was not limited to addressing errors in interpreting the law. 8
E. Additional Factual Proof Available in the Record to Support the Appellant's Second Petition and demonstrate the trial court's error in fact determination. 9
II. THE APPELLANT'S THREE AFFIDAVITS OF INDIGENCY, WHICH ARE CONTAINED IN THE RECORD AND WHICH WERE RATIFIED AND APPROVED BY THE TRIAL COURT, PROVIDE ALL THE FACTUAL BASIS NECESSARY TO SUPPORT THE APPELLANT'S ARGUMENTS. 11
CONCLUSION 17
Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624 (1988) 8
Shillitani v. United States, 384 U.S. 364 (1966) 8
Rast v. Terry, 532 S.W.2d 552, 555 (Tenn. 1976) 16
State v. Mounce, 859 S.W.2d 319, 323 (Tenn. 1993) 4, 5
Evans v. Abdullah, No. 01A01-9802-CV-00098 (Ct. App. Tenn. 1999) 17
Myers v. Thomas, App. No. 01-A-01-9111-CH-00412, slip op. at 4, 17 T.A.M. 15-15 (Tenn. Ct. App. Mar. 25, 1992), perm. app. denied (Tenn. Sept. 14, 1992) 16
State ex rel. Everson v. Gooch and State ex rel. Alderson v. Gentry, 1990 WL 3976 (Tenn. Ct. App. 1990) (no Rule 11 appeal to the Tenn. Supreme Court shown on Westlaw 1990 WL 3976) 9
Evans v. Abdullah, No. 01A01-9802-CV-00098 (Ct. App. Tenn. 1999) 17
Myers v. Thomas, App. No. 01-A-01-9111-CH-00412, slip op. at 4, 17 T.A.M. 15-15 (Tenn. Ct. App. Mar. 25, 1992), perm. app. denied (Tenn. Sept. 14, 1992) 16
State ex rel. Everson v. Gooch and State ex rel. Alderson v. Gentry, 1990 WL 3976 (Tenn. Ct. App. 1990) (no Rule 11 appeal to the Tenn. Supreme Court shown on Westlaw 1990 WL 3976) 9
The appellant has filed a Statement of Evidence to reiterate the lack of a factual basis for the trial court's decision [R. 62] to incarcerate the defendant-appellant and that she was capable of paying a $1,000 purge clause. The Attorney General correctly notes that the trial court approved the appellant's affidavit of indigency on July 9, 1998 [R. 37-39]. The trial court did not raise any objection to the affidavit of indigency or question its validity; the trial court ratified the contents of the affidavit by appointing counsel. [R. 37-39]. The trial court entered no finding that the appellant had access to $1,000.
On December 17, 1998, the Attorney General correctly notes that the trial court approved the appellant's second affidavit of indigency. The trial court entered no finding that the appellant had access to $1,000 at the time it approved the affidavit. The trial court ratified the contents of the affidavit by appointing counsel to represent the indigent defendant-appellant. [R. 56-58].
The trial court's order of incarceration entered on Feb. 4, 1999 [R. 62] failed to state under what statute the defendant-appellant's incarceration was authorized, failed to state whether the contempt was civil or criminal, and contained no statement of any evidence whatsoever that contradicted the appellant's prior affidavits of indigency or otherwise justified the $1,000 purge clause amount. [R. 61-62].
The Attorney General correctly notes that on March 2, 1999, the trial court received a copy of the appellant's "Second Petition to Vacate and Modify the Court's Orders" within 30 days of its order of Feb. 4, 1999, from which relief was sought by that Second Petition. [R. 66-68] The Attorney General correctly notes that the Second Petition contained a handwritten notation on the Second Petition indicated that the Tenn. R. of Juv. Proc. required a hearing on that petition within 30 days. [R. 66]. However, the Attorney General failed to evince the fact that the trial court chose to disregard the 30-day hearing requirements of Tenn. R. of Juv. Proc., Rule 34 e(1) [entire Rule 34 printed at pp. 9-10 of the Appellant's Brief] and assigned the petition to be heard at its convenience. Despite repeated requests in March 1999 from appellant's counsel that the court hear the Second Petition in 30 days, the trial court chose to disregard the Tennessee Rules of Juvenile Procedure.
On June 3, 1999, the trial court received another affidavit of indigency from the appellant, which it approved and ratified by appointing counsel for the appellant's appeal to this court. [R. 96-97, 99]. The trial court entered no findings that the appellant had access to $1,000 at the time of it ratified the contents of the affidavit of indigency. [R. 96-97, 99].
All three affidavits of indigency in this case present essentially the same economic circumstances and sources of income for the appellant. All three affidavits of indigency reflect the fact that the appellant had access to very little money at all and certainly did not have access to $1,000 at any time in the period Sept. 10, 1998 (when the first of three affidavits of indigency were filed) to June 3, 1999 (when the last of three affidavits of indigency were filed). [R. 37-39, 56-58, 96-97].
In September 1999, the appellant Gwen Knox entered the Oak Ridge hospital for surgery, and when she returned home, she learned that an arsonist had burned her trailer home to the ground. She lost what few items of personal property she owned (clothes, furniture, etc.) in that fire. She remains in impoverished circumstances reflected by her last affidavit of indigency in this matter [R. 96-97] and is seeking public housing assistance. She continues to suffer from the trial court's revocation of her driver's license. [R. 62].
The Attorney General essentially restates the same arguments in his brief that he made in his failed Motion to Dismiss in this matter. The appellant's reply will necessarily repeat some of the same arguments contained in her Opposition to that motion.
The Attorney General claims that the appellant has "misapprehended" the distinction between mistake and legal error. But in fact, the distinctions in this case turn on the difference between mistake in objective, verifiable facts versus mistakes in interpretation of the law versus a mistake about the existence of contradictory case law authority. The central issue in this case concerns a single objective fact: whether the appellant, Gwen Knox, had access to $1,000 to secure her own release from jail.
Second, the Attorney General argues that the appeal is untimely. The appellant responds that Rule 59.04 of the Tennessee Rules of Civil Procedure provides authority for the submission of a Second Petition to Modify the Court's Orders, and that provision would toll or extend the period required to file an appeal. The Attorney General even concedes that a Rule 59.04 Motion would have that effect. The appellant is not to blame for the trial court's decision to hear that petition/motion more than 60 days after it was filed, rather than within 30 days as required by the Tenn. R. of Juv. Proc. Timely notice of appeal was filed within 8 judicial days [R. 98] of the trial court's final order dismissing that petition entered on May 21, 1999. [R. 95].
Third, the Attorney General claims that the absence of evidence in this case supports the trial court's decision. To the contrary, the record in this case comprises three affidavits of indigency filed by the appellant, and those affidavits strongly support the appellant's claims. The appellant has filed a Statement of the Evidence concurrently with this Reply Brief, but it merely restates the absence of any other evidence already identified in the appellant's Brief and the appellant's Opposition to the Motion to Dismiss.
I. THE APPELLANT'S SECOND PETITION WAS AUTHORIZED BY TENN. R. CIV. P. 59.04, AND IT AUTOMATICALLY EXTENDED THE THIRTY-DAY PERIOD FOR FILING AN APPEAL.
A. Rule 59.04 of the Tennessee Rules of Civil Procedure Specifically Tolls the Period for Filing an Appeal, and the relief sought by the Appellant's Second Petition Comes Within the Purview of Rule 59.04.
Tenn. Rule of Civ. Procedure Rule 59.04 provides for post-judgment relief by authorizing parties to move for an order that would alter or amend judgment. The Attorney General concedes that a motion to alter or amend judgment is one of the four motions that automatically extends the 30-day period for filing an appeal. "The thirty day time period may be extended by filing one of only four motions filed under the Tennessee Rules of Civil Procedure: a Rule 50.02 motion for a directed verdict, a Rule 52.02 motion to amend or make additional findings of fact, a Rule 59.02 motion for a new trial, and a Rule 59.04 motion to alter or amend the judgment." Attorney General's Motion to Dismiss the Appeal submitted on Aug. 17, 1999, at page 4.
The appellant's second petition [R. 67-86] was captioned as a petition to vacate and modify the court's order of judgement entered on Feb. 4, 1999. The word "modify" in the appellant's caption of her second petition means "alter or amend" the judgment/order on Feb. 4, 1999. The relief sought in the petition was to amend the court's finding of a $1,000 purge clause amount, amend the court's revocation of the appellant's driver's license, amend the child support arrearage amount, amend and reduce the appellant's monthly child support obligation consistent with the Tennessee guidelines, etc. That petition comes under the purview of Tenn. R. Civ. P. 59.04.
The Tennessee Supreme Court requires parties who find an error in the trial court's conduct of a hearing to bring that error to the attention of the trial judge. State v. Mounce, 859 S.W.2d 319, 323 (Tenn. 1993). Otherwise, there will be needless appeals clogging up the Court of Appeals docket, when these matters could have been addressed and potentially resolved by the trial courts. The Attorney General is once again asking you to penalize Ms. Knox by dismissing her claim, when she took the extraordinary step of giving the trial court an opportunity to correct its various errors in fact determination contained in its judgment entered on Feb. 4, 1999. It would be grossly unfair to penalize a party for requesting a trial court to correct its own factual determination error prior to appeal. That would create a terrible public policy for the Court of Appeals to establish and it would violate the spirit, if not the letter, of the law established by our Supreme Court in State v. Mounce, 859 S.W.2d 319, 323 (Tenn. 1993).
The court entered an order in this case on Feb. 4, 1999. [R. 61-62]. The defendant-appellant filed her Second Petition [R. 66-86] seeking relief from the Feb. 4, 1999 order approximately 26 days later on March 2, 1999. The Attorney General concedes that the appellant's "time to file a notice of appeal of the February 4, 1999, contempt order ran [until] March 6, 1999." (Appellee Brief at 14). Therefore, this petition or motion [R. 66-86] was filed within the 30-day time period for an appeal. Because it fell within the purview of Tenn. R. Civ. P. 59.04, it tolled or extended the period for filing an appeal until Judge Hess arranged a date at her convenience to hear the petition. Judge Hess entered her decision on that Second Petition on May 21, 1999, [R. 95] and the notice of appeal was filed eight judicial days after that decision [R. 98]. Therefore, the appellant's appeal was timely filed within the 30 days required for an appeal.
B. A Party Appearing Before the Anderson County Juvenile Court Has a Reasonable Expectation that the Presiding Judge Would be Familiar with Tenn. R. Civ. Proc. 59.04.
When the appellant filed her second petition, the State of Tennessee responded by offering a motion to dismiss the second petition at the time of the hearing. Thus, the legal posture of the May 6, 1999 hearing became a motion to dismiss/motion for summary judgment with opposition provided by the arguments contained in the appellant's second petition. When a trial court is facing a summary judgment motion, it is obligated to consider the facts in the case in a light most favorable to the party opposing the dismissal/summary judgment. The trial court is obligated to consider whether the claims, contained in her second petition [R. 66-86], of the party opposing the summary judgment motion were valid or viable not only under the legal theory or statutory authority advanced by that party, but also under any legal theory or statute known to court.
A party to a civil trial in a Tennessee state court, such as the Anderson County Juvenile Court, has a reasonable expectation that the presiding judge would be familiar with the Tennessee Rules of Civil Procedure, specifically Rule 59.04. Therefore, the trial court should have considered whether the appellant's second petition was authorized by Tenn. R. Civ. P. 59.04, rather than holding no statutory authority allowed the court to hear such a petition. [R.95]. The appellant should have been given an opportunity to argue her claims on their merits, and not denied that opportunity due to the trial court's unfamiliarity with Rule 59.04.
The trial court claimed it lacked any knowledge of any rule of civil procedure or juvenile procedure that would have allowed a petition or motion to amend the court's judgment. Yet trial courts make mistakes and errors just like any fallible human. Obviously, the legislators and judges who drafted the rules of civil procedure for every jurisdiction provided a means for parties to redress errors or mistakes by the court. No trial court judge should consider herself infallible or that once she has determined facts, no one has a right to request amendments or modifications to those factual determinations. Judge Hess should have heard the appellant's Second Petition under authority of Rule 59.04, but she refused to do so.
C. Rule 34 of Tennessee Rules of Juvenile Procedure Subsumes Elements of Rules 59 and 60 of the Tenn. R. of Civ. Proc.
Rule 34 of the Tenn. R. Juv. Proc. has been reprinted in the Appellant's Brief at pp. 9-10. Juv. Rule 34 contains the "motion to amend judgment" authority of Tenn. R. Civ. P. 59 but also some of the post-judgment relief mentioned in Tenn. R. Civ. P. 60. Much of the appellee's brief is devoted to arguments about the inapplicability of Rule 60 to the appellant's Second Petition [R. 66-86]. But the Attorney General concedes that the primary case law authority upon which he relies, "Brumlow, of course, does not apply directly address a motion filed under Tenn. R. Juv. P. 34, and no such case was found." [Appellee Brief at 14].
The appellee's brief argues at length that a petition or motion filed under Rule 34 of the Tenn. R. Juv. P. would not toll the thirty-day period for filing an appeal. But he goes on to state "It appears that the Rules of Civil Procedure, rather than the Rules of Juvenile Procedure, apply to motions filed in the trial court in this case." The appellant accepts the Attorney General's declaration of court procedure law, because it means the Attorney General must concede that the Second Petition [R. 66-86] is governed by the Tenn. Rules of Civil Procedure.
The Second Petition [R. 66-86] was captioned "Respondent's Second Petition to Vacate or Modify the Court's Orders." That petition or motion best fits within the Tenn. Rules of Civil Procedure under Rule 59.04 (Motions to Alter or Amend Judgments) (1) not under Rule 60.02. And as previously mentioned, the Attorney General has already conceded that a Rule 59.04 Motion is one of four motions that automatically extends the period for filing an appeal. ("If one of the listed motions is timely filed, the time to file an appeal runs from the entry of the order granting or denying the motion." Appellee Brief at 12).
D. The Appellant's Second Petition identified a crucial error/mistake of FACT, and was not limited to addressing errors in interpreting the law.
The term "mistake" under Rule 59 is not limited to mistaken identity or other matters that would render a contract void ab initio. Rather, it broadly covers errors or mistakes in fact as well as such mistakes as whether Anderson County, Tennessee, was exempted from the constitutional ban on debtor prisons.
While the appellant's Second Petition presented the trial court with a plethora of appellate court decisions adverse to the trial court's ruling, the linchpin of that petition was that the trial court erred in deciding a critical fact. That fact is so important that it can be said this entire appeal rests on a single question: did the appellant Gwen Knox have access to or control over $1,000 at the instant she was incarcerated? If the answer to that question is "No," then the trial court's order must be invalidated, because it transforms the trial court's incarceration sentence into a punitive criminal contempt sentence. If the answer is "no," then the trial court's order violates numerous binding U.S. Supreme Court and Tennessee appellate court precedents upon that court, cited in the appellant's brief, that require a civil contemnor to have the keys to the jail in her pocket: a civil contemnor must be able to take some action solely within her power and control to obtain her own release. See Shillitani v. United States, 384 U.S. 364 (1966); Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 638 (1988) ("Our precedents are clear, however, that punishment may not be imposed in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983); Shillitani, supra, 384 U.S., at 371, 86 S.Ct., at 1536; Oriel, 278 U.S., at 366, 49 S.Ct., at 175.").
If the Court of Appeals agrees that (1) the appellant's three affidavits of indigency [R. 37-39, 56-58, 96-97] were ratified and approved by the trial court, as the Attorney General repeatedly states in his appellee brief, and (2) the only evidence on the ability to pay contained in the record are these three uncontradicted affidavits, then on the ability to pay alone the Court must reverse the trial court as explained by Tennessee case authority below:
In order to imprison a person for civil contempt, the contemnor must have the ability to perform the act he is ordered to perform. Cash v. Quenichett, 52 Tenn. 737 (5 Heisk.) (1971); Leonard v. Leonard, 207 Tenn. 609, 341 S.W.2d 740 (1960); State ex rel. Wright v. Upchurch, 194 Tenn. 657, 254 S.W.2d 748 (1953); Loy v. Loy, 32 Tenn. App. 470, 222 S.W.2d 873 (1949). Our statutes, which have been held to govern the authority of the court to punish for contempt, Scott, et al. v. State, 109 Tenn. 390, 71 S.W. 824 (1902), recognized this requirement: `If the contempt consists in an omission to perform an act which it is yet in the power of the person to perform, he may be imprisoned until he performs it.' Tenn. Code Ann. § 29-9-104 (1980). The only proof on the ability of the respondents to pay the judgments awarded against them came from the respondents themselves. Mr. Gooch testified that his only income was from part-time employment as a janitor at a salary of $3.35 per hour, and that he had no other assets. Mr. Gentry testified that he was formerly employed as a clerk at a salary of $4.50 per hour; that his salary was his only income; and that his only asset was a broken down automobile. On the basis of the ability to pay alone, we are of the opinion that these judgments must be reversed. . . . [W]e are of the opinion that the record supports the respondent's defense in each case: that he does not have the present ability to pay the judgment.
State ex rel. Everson v. Gooch and State ex rel. Alderson v. Gentry, 1990 WL 3976 (Tenn. Ct. App. 1990) (no Rule 11 appeal to the Tenn. Supreme Court shown on Westlaw 1990 WL 3976) (emphasis added).
E. Additional Factual Proof Available in the Record to Support the Appellant's Second Petition and demonstrate the trial court's error in fact determination.
Both the Court of Appeals and the trial court could infer from the record in this case that Gwen Knox lacked the $1,000 to pay the purge amount and obtain her release from jail pursuant to the trial court's order of incarceration. [R. 62]. FACT 1. Gwen Knox is caring for her three small children each of whom is under age 5 and identified by name on the appellant's affidavits. [R. 37-39, 56-58, 96-97]. The appellant was the sole custodial parent of these three minor children at the time of her incarceration. INFERENCE 1: No mother with three small children under her sole care would remain in jail if she could have obtained her own release. FACT 2: Gwen Knox remained involuntarily confined in jail for eight days. [R. 69]. INFERENCE 2: Gwen Knox lacked control over or access to $1,000 to obtain her own release, or she would have used that money to secure her release on the first day of her incarceration.
FACT 3: The money used to obtain Gwen Knox's release can be traced to her grandmother. [R. 69]. (2) INFERENCE 3: Some innocent party had to arrange payment for Gwen Knox to get out of jail, because after eight days Gwen Knox still did not have $1,000 to pay the purge amount required to secure her own release from jail.
The Attorney General asserts "Ms. Knox failed to show `mistake' as the word is meant in the rules. Ms. Knox merely adduced legal arguments against the juvenile court's application of the law." (Appellee Brief at 11). Obviously, the appellant used undeniable facts to show that the trial court mistakenly held she had access to $1,000. All of the preceding facts and inferences based on those facts are contained in the appellant's Second Petition. [R. 66-86]. The Attorney General has not read that Second Petition carefully, or he would not assert that it "merely adduced legal arguments."
II. THE APPELLANT'S THREE AFFIDAVITS OF INDIGENCY, WHICH ARE CONTAINED IN THE RECORD AND WHICH WERE RATIFIED AND APPROVED BY THE TRIAL COURT, PROVIDE ALL THE FACTUAL BASIS NECESSARY TO SUPPORT THE APPELLANT'S ARGUMENTS.
The Attorney General unfairly states the absence of evidence in the record "deprives [the appellant] of any factual basis to support her arguments. . . and deprives this Court of any factual basis to judge her arguments." [Appellee Brief at 15]. But this Court is blessed with three affidavits of indigency in the record. [R. 37-39, 56-58, 96-97]. Moreover, the Attorney General concedes that those affidavits must be accurate, because he notes the trial court ratified the contents of the affidavits by approving the appointment of counsel for the defendant-appellant each time an affidavit of indigency was so filed. The Court of Appeals can see from the record that the trial court entered no findings on any of its orders concerning these affidavits that the appellant had assets of or access to $1,000.
The Attorney General's arguments for why this Court should not consider the appellant's remaining seven causes of action can easily be refuted as follows. First, the Attorney General [hereafter "AG"] writes "neither the second petition nor the record contain the facts necessary to sustain a finding that the contempt order was obtained by `mistake.'" [Appellee Brief p.15]. The trial court sentenced the appellant to jail for thirty days with a civil contempt purge clause of $1,000. [R. 62]. As the appellant has already argued at length, the trial court was mistaken and grossly mistaken about the appellant's ability to pay that amount. The facts, not legal interpretations, contained in her two affidavits [R. 37-39, 56-58] prior to the incarceration order, as well as the facts and circumstances of her eight-day incarceration ordeal and the ransom paid by her grandmother [R.69], all establish beyond cavil that the appellant lacked control over $1,000. We are talking about objective, verifiable facts, not subjective interpretations of the law.
Second, the AG writes "Ms. Knox asserts that incarceration is inappropriate when a contemnor is impoverished and involuntarily unemployed. . . .However, absent a transcript or statement of the evidence, there is no evidence that Ms. Knox was involuntarily unemployed. This Court must presume that the evidence supported the juvenile court's finding that she was `in willful contempt of orders . . . for failing to pay support when [she] had the ability to do so.'" [Appellee Brief at 15-16]. Here the AG has missed the point entirely. He is implicitly endorsing the trial court's use of its civil contempt power to punish the appellant for past behavior: the AG is endorsing the use of punitive, criminal contempt sanctions under the guise of civil contempt.
In motions and briefs before this court, the AG has repeatedly used the appellant's term "plethora" to describe the case law contained in her second petition and brief that distinguishes between civil contempt and criminal contempt sanctions. Apparently, the AG has not read that plethora of decisions, or he would recognize that a court's civil contempt power is never used to punish a party, but rather to coerce the party into taking some action within that party's control. (3)
The classic example of civil contempt is the jailing of Susan McDougal for failing to answer questions from the Whitewater Special Prosecutor. Susan McDougal could have secured her own release from jail by agreeing to answer those questions. Susan McDougal had the power to obtain her own release, i.e., she had the keys to the jailhouse in her pocket. In contrast, Gwen Knox did not have the power to obtain her own release from incarceration. The only way she could get out of jail was to pay $1,000, and she did not have anywhere near that kind of money. Gwen Knox was impoverished, and that is an objective fact established by her affidavits and proven by events based on the length of time she remained incarcerated.
In his third point, the AG states "Ms. Knox asserts that the juvenile court's orders created an unconstitutional debtor's prison. . . . She bases her attack on what she labels the juvenile court's `summary conclusion' that she was `able-bodied' and `willfully underemployed.'" [Appellee Brief at 16]. Here the AG has erroneously stated the entire gist of the appellant's debtor prison argument.
A debtor prison occurs when a party owes a civil debt to another, that party lacks the income or assets to pay that debt regardless of whether the inability to pay is willful or involuntary, and a court sentences the party to prison with or without a purge clause calling for payment, which the party could not afford to pay in any event. The United States abandoned the practice of creating debtor prisons in the 1830s and 1840s [See Debtor's Prison--A Little History, reprinted in the appendix], and the Tennessee Constitution contains a specific prohibition against them as cited in the appellant's brief at p.19.
Nevertheless, the AG's cavalier attitude towards incarcerating destitute, impoverished, and indigent child support obligors has not escaped the notice of legal commentators. In principle, our country does not tolerate debtor prison regimes for any type of civil debt. In practice, some jurisdictions, such as Tennessee, have reinvented these prison regimes for destitute child support debtors.
The demonization of noncustodial parents is used to justify all manner of inhumane treatment. Sylvia Folk, a noncustodial mother, testified before Congress that she was incarcerated for seventy-two days for nonpayment. The judge candidly acknowledged his awareness that she lacked the money to pay but vowed to, and did, hold her until the ransom was paid by her church. Ms. Folk's treatment is by no means uncommon. As Family Court Judge L. Mendel Rivers, Jr., explained: "The problem is, chronic non-supporters do not have dependable jobs, nor tax refunds, nor seizable property. That's why they are chronic. . . . As cruel as it sounds, the one remedy that almost always works is incarceration. We family court judges call it "the magic fountain." . . . Of course, there is no magic. The money is paid by his mother, or by the second wife, or by some other innocent who perhaps had to liquidate her life's savings."
The theory is that child support is set to meet the child's needs within the limits of the obligor's ability to pay. When the difference between theory and reality is so great that the required revenue can only be generated through medieval kidnappings for ransom, in the style of Judge Rivers, the system must ultimately collapse of its own weight. This is exactly what is happening.
Ronald K. Henry, Child Support at a Crossroads: When the Real World Intrudes Upon Academics and Advocates, 33 Family Law Quarterly 235, 240 (Spring 1999) (citations omitted). The article goes on to describe deplorable debt collection practices, not unlike those experienced by the appellant in the case at bar.
Every year the federal and state governments spend more money on child support enforcement only to report larger caseloads, backlogs, and arrearages. The collection tactics practiced for child support debt are tolerated for no other form of debt in American society, yet after every round of new coercions, we find that the problem has only worsened. We have delayed the realization that child support obligations imposed on low-income obligors are not sustainable but the truth cannot be suppressed forever. Frontline enforcement workers who begin with zeal their crusade against deadbeats end up reporting that "I just couldn't stand what they were doing to people. I got a call from a homeless shelter and was told that I had put a man and . . . his four children on the street because I had put an enforcement order . . . for 50% of his income. I was devastated. That was the beginning of the end for me, because I think that was the first time I was in touch with the ramifications of what I was doing."
Ibid., at 240 - 241, (quoting former Los Angeles deputy district attorney Elisa Baker). That law review article is such a fantastic piece of forward-looking research that the appellant has chosen to reproduce the entire article for this court's consideration and include it in the appendix to this Reply Brief.
It is only a matter of time before either the Tennessee Court of Appeals declares this practice unconstitutional, or a child support incarceration case from a state like Tennessee reaches the United States Supreme Court. Then the U.S. Supreme Court will bring Tennessee into line with the decisions of the Supreme Courts of Maryland and Alaska, included in the addendum of cases to the Appellant's Brief, that have outlawed these barbaric debtor prisons.
The AG's fourth, fifth, and sixth points are of the general flavor "Ms. Knox asserts that the $1,000 purge clause . . . was unconstitutional because she did not have access to that much money, and therefore was unable to comply with the contempt order." The AG responds each time by saying something like "Absent a transcript or statement of the evidence, this Court must presume that Ms. Knox was able to pay the purge clause [or comply with the contempt order.]" [Appellee Brief at 16].
The appellant responds to all these points by repeating her argument that the affidavits [R. 37-39, 56-58] establish her inability to pay $1,000; these affidavits were ratified and approved by the trial court (in appointing counsel for the defendant-appellant) without any finding that the appellant had any cash or access to $1,000; and the events that transpired including the length of the eight-day incarceration all establish (1) that the appellant lacked control over $1,000, (2) the appellant was unable to secure her own release from jail, and (3) the appellant was unable to comply with the trial court's purge clause in the order of incarceration.
In his seventh point, the AG states "this Court must presume that the facts supported that the juvenile court did no more than find that Ms. Knox's mother simply was one of two sources of child care available to Ms. Knox." [Appellee Brief at 17]. The appellant sharply rejects the AG's innocuous characterization of the court's order of incarceration which states "[The appellant] . . . has two sources of child care for her 3 children while she works (her mother and DCS benefits)." [R. 63]. To the best of the appellant's knowledge, DCS (the Tennessee Department of Children's Services) will enroll parents such as Gwen Knox in a program in which DCS provides day care services while the enrollee volunteers her time for some DCS-specified project. Furthermore, DCS does not provide transportation to and from the day care, and the appellant's driver's license was suspended by order of the trial court. If the appellant were to work for a salaried job, such as a minimum-wage job at a fast food restaurant, then DCS would offer little or no child day care benefits.
In any event, the DCS benefits options amounted to no day care assistance for the appellant. That left the appellant, Gwen Knox, in the precarious situation of either (1) conscripting her mother, Carolyn Knox, into providing day care assistance without compensation and looking for work, or (2) risk going to jail again by staying at home to care for her children and not secure work. A simple dose of reality would convince any neutral observer that the trial court's order in effect conscripted the appellant's mother into providing day care service without compensation, which is a form of slavery abolished by the Thirteenth Amendment as applied to the states through the Fourteenth Amendment to the U.S. Constitution. The appellant reiterates her arguments found in pp. 30-31 of the Appellant's Brief.
In his eighth point concerning the court's order of $225/month child support obligation, the AG claims that unsubstantiated bald allegations without any further evidence are enough that "this Court must presume that, to the extent the juvenile court found that Ms. Knox hid income, the facts supported that decision." [Appellee Brief at 17]. The appellant has three arguments in response. First, the allegation arose from the appellee Mickey Phillips, who clearly has biased motives and intended to harass the appellant with his testimony. Mr. Phillips had no proof that the appellant earned more income than what she claimed, he only offered testimony about his speculations.
Second, the record contains little information with regard to the basis of the trial court's Feb. 4, 1999 decision to continue with the appellant's child support obligation at $225 per month. None of the prior proof was in the record, and thus it would have been inappropriate for the trial court to rely on its memory of the proof in these prior proceedings. See Rast v. Terry, 532 S.W.2d 552, 555 (Tenn. 1976); Myers v. Thomas, App. No. 01-A-01-9111-CH-00412, slip op. at 4, 17 T.A.M. 15-15 (Tenn. Ct. App. Mar. 25, 1992), perm. app. denied (Tenn. Sept. 14, 1992). Yet despite the absence of any proof in the record on income from any other source, the trial court in this case relied on its memory, or worse it prefabricated alleged income, to justify the $225/month child support for a woman whose only income was AFDC and food stamps.
Third, the trial court has ratified and approved Gwen Knox's affidavits of indigency at three separate periods of time. [R. 37-39, 56-58, 96-97]. The trial court never once was any judicial finding that the information contained in the affidavits was inaccurate or that the court had evidence that the defendant-appellant hid income. The AG's claim at this late date that the appellant hid income sounds like retrospective rationalization to justify the court's invalid child support amount of $225/month for a party with such meager income.
Finally, the AG cites Evans v. Abdullah, No. 01A01-9802-CV-00098 (Ct. App. Tenn. 1999)in support of his side. The appellant has already distinguished her case from Abdullah and refers the Court to page 14 of the Appellant's Brief. Nevertheless, in Abdullah, the trial judge noted that the appellant was supporting another woman, with whom he had two more children, and had also taken a trip abroad. He also inherited a one-sixth interest in a home, in which he apparently was living rent free. In contrast, Ms. Knox is barely able to make ends meet and support her three minor children. She is not supporting any other adult. She lives in subsidized public housing and has taken no trips abroad or otherwise spent money on luxury purchases. Ms. Knox lives well below the federal poverty guidelines, and all of her income goes towards purchasing the basic necessities of life for herself and her children.
WHEREFORE, the appellant, Gwen Knox, prays for relief as follows:
1. That the appellant's conviction for civil contempt be reversed and all records pertaining to her wrongful incarceration be expunged from both the trial court's file and the files in the Anderson County Sheriff's office.
2. That the $1,000 paid by the appellant's mother to purge the appellant of contempt be refunded to appellant's mother.
3. That the trial court's prior orders revoking the appellant's driver's license be vacated and the appellant's driver's license be restored.
4. For declaratory and injunctive relief against the Anderson County Juvenile Court and the Child Support Enforcement Division, Department of Human Services, State of Tennessee.
5. For a reduction of her monthly child support obligation consistent with the Tennessee guidelines as explained in pp. 31 - 36 of the Appellant's Brief.
5. That her counsel be awarded the maximum fee allowed by law ($2,000) for the time (more than 90 hours) he has put into this case. See Motion, with Affidavit, to Declare this Case Complicated With Respect to Counsel's Fee, filed on June 30, 1999 for supporting arguments.
6. For such other and further relief as this Court may deem proper.
Respectfully submitted this 25th day of October, 1999.
___________________________________
Dr. Michael A. S. Guth
Counsel for Appellant
BPR # 019093
116 Oklahoma Ave.
Oak Ridge, TN
37830-8604
Phone: (423) 483-8309
e-mail: mike @ michaelguth.com
I certify that a copy of the appellant's reply brief was mailed to Douglas Dimond, Asst. Atty Gen, 2nd Floor, Cordell Hull Building, 425 Fifth Ave. North, Nashville, TN, 37243-0499 on this 25th day of October, 1999.
_____________________________
Dr. Michael A. S. Guth
1. Debtor's Prisons -- A Little History, Internet:http:///wwww.nolo.com/mt/7g.html.
2. Ronald K. Henry, Child Support at a Crossroads: When the Real World Intrudes Upon Academics and Advocates, 33 Family Law Quarterly 235 (Spring 1999).
3. Texas Civil Digest report on In Re Luebe (01-98-01371-CV) (Texas Supreme Court, February 17, 1999).
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Plaintiffs-Appellees,
Defendant-Appellant.
______________________________________________________________________________
______________________________________________________________________________
Dr. Michael A. S. Guth
Counsel for Appellant
116 Oklahoma Ave.
Oak Ridge, TN 37830-8604
Phone: (865) 483-8309
e-mail: mike @ michaelguth.com
1. Affidavits of Indigency signed by the Appellant. [R. 37-39, 56-58, 96-97]
2. Opposing affidavits of the appellees Mickey Phillips or State of Tennessee: NONE.
3. Affidavits of any third party: NONE.
4. Oral testimony or written reports of Gwen Knox's past employers: NONE.
5. Oral testimony or written reports of Gwen Knox's current employers: NONE.
6. Oral testimony or written reports of Gwen Knox's prospective employers: NONE.
7. Bank account statements of Gwen Knox or any other third party: NONE.
8. Credit reports on Gwen Knox or any other third party: NONE.
9. Private investigator reports: NONE.
10. State or public investigator reports: NONE.
11. Stock broker, investment advisor, or other financial services industry reports or account statements: NONE.
12. Credit card reports or account statements: NONE.
13. Contract for day care services: NONE.
14. Oral testimony of Gwen Knox at hearing on 2/4/99: Defendant-Appellant reiterated the accuracy of the facts contained in her affidavit of indigency. She testified that she had been largely unemployed over the past year, that she was currently living in her own trailer home with her three small children each of whom was under age 5, that she was receiving AFDC, and that she was struggling to find employment. Under cross examination the appellant did not retract any of this information.
15. Oral testimony of Plaintiff-Appellee Mickey Philips at hearing on 2/4/99: The appellee testified that he heard the appellant had earned income that she did not report to the court. He testified that he had seen the appellant working at a club called "Raymond's." On cross examination, the appellee conceded that he did not have first-hand knowledge that the appellant had worked anywhere and earned income. Rather he had second-hand, hearsay reports to that effect. He had no proof that the appellant earned any income at "Raymond's."
16. Redirect oral testimony of Defendant-Appellant Gwen Knox on 2/4/99: The appellant denied working at "Raymond's," and she denied that she had earned additional income that had not been reported to the court.
This Statement of the Evidence was prepared by the appellant's counsel based on his recollections of the hearings held on Feb. 4, 1999, and May 6, 1999. This Statement of the Evidence is accurate to the best of counsel's knowledge and recollection. Respectfully submitted this 25th day of October, 1999.
___________________________________
Dr. Michael A. S. Guth
Counsel for Appellant, BPR # 019093
116 Oklahoma Ave.
Oak Ridge, TN 37830-8604
Phone: (865) 483-8309
I certify that a copy of the Notice of Statement and Appellant's Statement of the Evidence was mailed to Douglas Dimond, Asst. Atty Gen, 2nd Floor, Cordell Hull Building, 425 Fifth Ave. North, Nashville, TN, 37243-0499 on this 25th day of October, 1999.
_____________________________
Dr. Michael A. S. Guth
|
|
Dr. MICHAEL A. S. GUTH |
|
|