Brief on Jailing Child Support Debtors Contemnors in Unconstitutional Debtor Prisons

TABLE OF AUTHORITIES

U. S. Supreme Court Cases

Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624 (1988). 20, 27

International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 829, 129 L. Ed. 2d 642, __ 114 S. Ct. 2552, __ (1994). 23, 24

Shillitani v. United States, 384 U.S. 364 (1966)....... 10

United States v. Bajakajian, 118 S.Ct. 2028, 2046 (1998) (Kennedy, J., dissenting).. 16

U. S. Courts of Appeals Cases

Banks v. United States, 614 F.2d 95, 100 n.13 (6th Cir., 1980) 15

United States v. Campbell, 73 F.3d 362, ____ (6th Cir.,1995). 25

Tennessee Supreme Court Cases

Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996) 10

Going v. Going, 148 Tenn. 522, 256 S.W. 890 (1923). 15, 19

Leonard v. Leonard, 207 Tenn. 609, 341 S.W.2d 740 (Tenn. 1960)........... 10, 19

Rast v. Terry, 532 S.W.2d 552, 555 (Tenn. 1976)........... 36, 38

Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542 (1966) 27

State v. Dusina, 764 S.W.2d 766 (Tenn. 1989)........ 17

Tennessee Court of Appeals Cases

Bradshaw v. Bradshaw, 23 Tenn.App. 359, 133 S.W.2d 617, 619 (Tenn.App.1939).............. 10

Garrett v. Forest Lawn Memorial Gardens, 588 S.W.2d 309, 315 (Tenn. Ct. App. 1979) 20

Haury and Smith Realty Co. v. Piccadilly Partners, I, 802 S.W.2d 612, 616 (Tenn. Ct. App. 1990) 37

McCray v. McCray, No. 01-A-01-9704-CH-00170, (Tenn. Ct. App. Aug. 1, 1997).... 27

Sherrod v. Wix, 849 S.W.2d 780, 786-787 (Tenn. Ct. App. 1992) 26

State ex rel. Everson v. Gooch and State ex rel. Alderson v. Gentry, Nos. 89-164-II and 89-130-II, 1990 WL 3976 (Tenn. Ct. App. Jan. 24, 1990) (reprinted in the addendum of cases) 15, 22, 23

State ex rel. Richardson v. Richardson, No. 01-A-01-9706-CV00274 (Tenn. Ct. App., Sept. 23, 1998) (no Tenn. R. App. P. 11 application filed).......... 12

Stevenson v. Stevenson, No. 01A01-9701-CV-00032, Internet: http://www.tsc.state.ten.us/ tca/981/stevenso.htm (Tenn. Ct. App., Jan. 28, 1998) . 19, 21, 30

Storey v. Storey, 835 S.W.2d 593, 599 (Tenn. Ct. App. 1992) 26

Turner v. Turner, 919 S.W.2d 340, 343 (Tenn. Ct. App. 1995), perm. to appeal denied Feb. 26, 1996 .. 35, 36, 38

Virostek v. Virostek, No. 02A01-9601-CH-00019 (Tenn. Ct. App. May 6, 1997)........ 26

Walker v. Walker, No. 02A01-9209-CH-00263 (Tenn. Ct. App. 1993) (aff’d 914 S.W.2d 887 (Tenn. 1996))............ 26, 27

Cases from Other States

Bendixen v. Bendixen, 962 P 2d 170 (Alaska 1998).............. 5, 39

Bresch v. Henderson, NO. 2D00-1193, (Fla. 2d DCA 2000) (reprinted in the addendum of cases filed with this brief)... 30

Clark v. Manning, 721 So.2d 793, 794-795 (Fla. Ct. App. 1998)................. 34

Ex parte Rojo, 925 S.W.2d 654 (Tex. 1996).... 5, 14

Gregory v. Rice, 727 So. 2d 251 (Fla. 1999).... 5, 24

Hughes v. Dept. of Human Resources, 269 Ga. 587, 502 S.E.2d 233 (Ga. 1998)... 5, 11

In re Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208 (Fla. 1998).. 5

In re Luebe, 983 S.W.2d 889 (Tex Ct. App. 1999) 22

In Re: Nichols, 749 So. 2d 68 (Miss. 1999)........... 13, 14

Jones v. Hargrove, 516 So. 2d 1354 (Miss. 1987) 13

Lynch v. Lynch, 342 Md.509, 677 A.2d 584 (1996). 12, 13, 21

Savage v. Ingram, 675 So. 2d 892, __ (Ala. Civ. App. 1996).... 6, 11

Sheehan v. Ryea, 757 A.2d 467, __ (Vt. 2000)... 5

State ex rel. Britton v. Workman, 176 W. Va. 586, 346 S.E.2d 562 (1986 ). 5

Tennessee Statutes and Rules

Tenn. Code Ann. § 27-3-128........... 37

Tenn. Code Ann. § 29_9_104 20

Tenn. Code Ann. § 36-5-101(a)(1)... 35

Tenn. Code Ann. § 36-5-101(e)(1)... 36

Tenn. Comp. R. & Regs. r. 1240-2-4-.02(3) 34, 35, 38

Tenn. Comp. R. & Regs. r. 1240-2-4-.03(5) (1994)................. 35

Tenn. Comp. R. & Regs., ch. 1240-2-4-03(3)(c)..... 23

Tenn. R. App. P. 13(b), (d) 37

Tenn.Code Ann. § 37-1-104(d)(1) (1996)......... 1

Tenn.Code Ann. § 37-1-159 (1996).. 1

Tennessee Constitution, Art. I, Sect. 16................. 16

Tennessee Constitution, Art. I, Sect. 18................. 16

Tennessee Constitution, Article I, § 21................. 31

Tennessee Constitution, Article I, § 33................. 31

QUESTIONS PRESENTED

I. Is incarceration for civil contempt an appropriate remedy to enforce child support orders against impoverished debtors, who cannot afford to pay child support immediately and who have no immediate offers of employment that they are willfully refusing to accept?

II. Do the United States and Tennessee Constitutions prohibit Tennessee from creating debtor prisons, in which indigent citizens who owe a civil debt are incarcerated for civil contempt, yet they have little or no income with which to comply with the court's child support orders and little or no funds to pay any amount required to purge their contempt and secure their own release from jail?

III. Did the trial court abuse its discretion by selecting a $100 purge amount in its Nov. 30, 2000, order of incarceration for civil contempt against the appellant, when the record contains no evidence that the appellant had immediate control over $100 at the instant of her incarceration, and thus the appellant could not take any action to secure her own release from jail?

IV. Did the trial court abuse its discretion by following procedures for a civil contempt hearing on Feb. 4, 1999, and Aug. 30, 2000, when both the state and the trial court were motivated to punish the alleged contemnor for past behavior and not to coerce her into taking some action then within her control?

V. Despite the fact that the trial court upon rehearing lowered the original civil contempt purge amount from $1,000 to $100 nunc pro tunc, was Gwen Knox wrongfully incarcerated for eights days in February 1999, in violation of her constitutional rights, and thus entitled to compensatory damages?

VI. Did the trial court’s decisions on Feb. 4, 1999, and Nov. 30, 2000, concerning the appellant's mother providing child care services without compensation violate the federal and Tennessee constitutional prohibitions against slavery, and further constitute an abuse of discretion in that the trial court had neither subject matter nor personal jurisdiction over the appellant's mother?

VII. Did the trial court abuse its discretion when (1) it ordered on Feb. 4, 1999, and reiterated by order of Nov. 30, 2000, that the appellant should pay approximately $225/month in child support when the preponderance of evidence showed her monthly income was $0/month, (2) the trial court refused to modify the appellant’s child support obligation despite significant changes in her economic circumstances, (3) the trial court continued its prior Order revoking the appellant's driver's license, even after the purge amount had been paid, and (4) the trial court ordered that the appellant's child support obligation should continue even during the period in which the appellant was confined to jail?

VIII Did the trial court commit reversible error by relying on inadmissible hearsay instead of evidence offered by testimony or exhibit, incorporating conclusions from this hearsay into the final order, and thereby thwart the Tennessee Rules of Evidence?

JUDGMENT BELOW

The judgment of the Anderson County Juvenile Court, case no. J-16681, is contained in the record. [Order, R. 19-22]. This brief will cite to the archived record from the prior case, State v. Knox, E1999-00205-COA-R3-CV (1999) using the form [Arch. R. XX - XX].

JURISDICTION

This court has jurisdiction to hear this appeal under Tenn.Code Ann. § 37-1-159 (1996), the trial court having entered final judgment on Nov. 30, 2000. Appellant filed timely Notice of Appeal on Dec. 4, 2000. The Anderson County Juvenile Court had subject matter jurisdiction to hear this case under Tenn. Code Ann. § 37-1-104(d)(1) (1996).

STATEMENT OF THE CASE

By failing to address the major substantive issues that the appellant raised in her original appeal in 1999, the Tennessee Court of Appeals created needless, expensive, repetitive, and prolonged litigation over the continued pattern and practice of Tennessee trial courts to create unconstitutional debtor prisons for indigent child support debtors. In 1998, having received little child support payments from the appellant, the State of Tennessee Child Support Enforcement Office, acting on behalf of appellee Mickey Phillips, petitioned for the appellant to be held in civil contempt. [Petition, Arch. R. 32-35]. A contempt hearing was scheduled for July 9, 1998, at which time the hearing was continued, the appellant filed an affidavit of indigency and requested the appointment of counsel.

After initially appointing other counsel, the trial court reassigned the present counsel, Michael Guth, to represent Gwen Knox by Order entered Feb. 1, 1999. [Order, Arch. R. 60]. The contempt petition was heard on Feb. 4, 1999, at which time counselor Guth filed a "Petition to Vacate or Modify Order" [Pet., Arch. R. 28-29],[1] as per Rule 34 of the Tenn. R. of Juv. Procedure, and raised various constitutional objections to incarcerating the appellant. The appellant was found in contempt of court and sentenced to 30 days in jail with a purge clause of $1,000. [Order, Arch. R. 61-63]. The appellant remained involuntarily incarcerated for 8 days until her mother paid $1,000 to purge the contempt against the appellant. [Affidavit, Arch. R.96-97].

Although unstated in the Order entered on Feb. 4, 1999, the attorney for the state of Tennessee indicated that she would review the appellant's progress after she had been released from jail for 60 days, and if little or no child support payments were made, she would again seek the appellant's incarceration. [Transcript of Feb. 4, 1999, hearing (hereinafter Transcript), pp. 58-61]. On March 1, 1999, appellant filed a second Petition to Vacate and Modify the Court's Orders. [Pet., Arch. R. 67-86]. Despite repeated requests by the appellant's counsel that the trial court comply with Tenn. Rule of Juv. Proc. 34(e)(1) and hear the petition within 30 days, the trial court set the hearing for May 6, 1999, at which time the court granted the State's request for summary judgment to dismiss the second petition on procedural grounds (a lack of statutory authority permitting counsel to ask the court to reconsider its prior decision). [Order, Arch. R. 95]. Appellant filed a timely notice of appeal eight judicial days later on June 3, 1999. [Notice, Arch. R. 98].

In a unanimous decision, the Court of Appeals reversed the trial court and remanded the case for rehearing on the appellant-respondent’s motion (petition) to amend the trial court’s orders. [Opinion, filed Feb. 25, 2000]. However, the Court of Appeals addressed none of the significant substantive issues raised on appeal and thereby provided the trial court with no guidance on these issues on remand. Given that lack of guidance, it comes as no surprise that this case would return to the Court of Appeals within a year. After rehearing the motion, the trial court reduced the purge amount from $1,000 to $100, reduced the sentence from 30 days to 10 days incarceration, and entered its final order nunc pro tunc on Nov. 30, 2000. [Order, R. 19-22]. The appellant filed timely notice of appeal four days later. [Notice, R. 16].

STATEMENT OF FACTS

In 1989, the appellant, Gwen Knox, was an unmarried 15-year old minor when she gave birth to her daughter Kelly Phillips. At the time of Kelly's birth her father, Mickey Phillips, the appellee, was an unmarried man who would turn age 18 the following month. The appellant dropped out of high school and subsequently had three additional children, none of whom are related to Mickey Phillips. Although poor and uneducated, the appellant has tried to the best of her ability to earn income and pay child support. In 1998, the state's attorney tried unsuccessfully to have the appellant found in contempt for failing to comply with the court's child support orders. [Notices, Arch. R. 30, 36, 41, 53]. The show cause hearings were scheduled and continued for a variety of legitimate reasons.

Both the trial court and the attorney for the State of Tennessee Child Support Enforcement Office became angry with the appellant, who they perceived to be ignoring the court's orders, lying to the court about her past employment opportunities, and generally loafing around. Throughout the period in which the appellant has had a child support obligation, she has been struggling to find work, paying for her living expenses, successfully rearing her other three children, and dealing with legal exigencies in her life such as an arrest warrant [Order, Arch. R. 52; Appearance Bond, Arch. R. 54] and various orders of the Anderson County Juvenile Court.

The state's attorney and the trial court blamed the appellant for delays in the court proceedings that were beyond her control. In the fall of 1998 at great inconvenience (she had to arrange for transportation, a driver, and a babysitter), the appellant traveled from Lake City to Oak Ridge on a Sunday to meet with her appointed counsel, Anne Mostoller, by pre-arranged appointment, but Anne Mostoller was not in her office. In another instance in 1998, the appellant never received notice [Notice, Arch. R. 41] and consequently did not attend a hearing on the State's contempt petition. Both the trial court and the State's attorney reacted angrily towards the appellant as a result of her absence from the hearing and the delays in finding her adequate representation.

At the contempt hearing on Feb. 4, 1999, the State's attorney was livid in expressing her outrage against the appellant to the court, and the trial court adopted a punitive tone with respect to the appellant. [Transcript, pp.53-57]. The trial court suspended the appellant's license to drive an automobile as punishment for failing to pay child support. [Order, Arch. R. 95]. Despite her protests that she had no funds to pay the amount required to purge herself of contempt, the appellant was led off sobbing to the Anderson County jail, where she remained for 7 nights and 8 days until her mother raised the necessary funds from the appellant’s grandmother to pay the $1,000 purge amount and free the appellant from jail. While in jail, the appellant was denied access to her prescription drugs and practically suffered a nervous breakdown. She also was at risk of losing her HUD-subsidized housing by failing to reside in it, a necessary criterion for the HUD support.

At the present time, the appellant lives in mortal fear that she will again be haled into court and incarcerated by the trial court. The Child Support Enforcement Office is now attempting to have the appellant incarcerated again at a hearing scheduled for June 10, 2001. Counsel for the appellant will likely file a motion for a stay of that proceeding with both the Court of Appeals and the federal district court in Knoxville. Despite being hospitalized and beginning GED classes to earn a high school equivalency diploma, appellant did find limited work in 1999 and 2000 and paid over $1500 in child support since being released from jail in Feb. 1999. The $1,500 reflects more than 50% of the appellant’s earned income in this same period! As of April 2001, the appellant is enrolled in full-time GED classes and not employed, but she still found some means to pay child support of $654 on April 23, 2001.

Furthermore, the trial court has ordered the appellant to pay installments on more than $5,700 in child support arrearage or face further contempt citations and incarceration. If the trial court had complied with the applicable Tennessee child support guidelines, Gwen Knox’s child support arrearage would be only a small fraction of that amount, probably less than $1000.

SUMMARY OF THE ARGUMENT

This case presents issues of first impression to the Tennessee appellate courts. In the past few years, the supreme courts of Georgia,[2] Florida,[3] Texas,[4] Mississippi,[5] Maryland,[6] Vermont,[7] West Virginia,[8] and Alaska[9] (as well as appellate courts in

Alabama,[10] and New Jersey,[11]/clt/w/o/woodb01/CS/Law/NJ%20Case%20citation%20and%20specific%20incident.htm (bold added). among numerous other states) have all decided issues raised by this appeal to the appellant’s favor. The general trend of American jurisprudence is to restrain the draconian measures employed by child support enforcement offices against indigent, impoverished child support debtors. The Tennessee Court of Appeals can choose to ignore this persuasive authority and pretend the Tennessee Supreme Court would uphold the constitutionality of debtor prisons and other outrageous practices adopted by child support enforcement agencies in Tennessee. However, such a decision would set back the law of Tennessee to the Eighteenth Century. With the case at bar, the Tennessee Court of Appeals can either strike down the state-wide practice of jailing indigent and impoverished child support debtors under the guise of civil contempt, or it can watch its indecision be reversed on appeal.

Incarceration for civil contempt is an inappropriate remedy to enforce a child support order against an impoverished party. Civil contempt should be reserved for situations in which the contemnor is refusing at that instant to take some action within her control to comply with the court's order. The classic example of justified incarceration for civil contempt is a party who refuses to answer questions as instructed by a judge, the party is held in contempt and incarcerated, but the party can obtain her own release by choosing to answer the questions. Incarceration may be appropriate for the stereotypical "deadbeat dad," who has income and assets to pay child support but stubbornly refuses. Incarceration for civil contempt is not appropriate for a "destitute dad" or "destitute mom," such as the appellant, who has no ability to secure her own release from jail by paying a contempt purge amount.

Both the United States and the Tennessee constitutions prohibit any agency of the state from creating debtor prisons, in which indigent parties who owe a civil debt are punished with incarceration. The Tennessee trial courts, at the behest of attorneys for Child Support Enforcement as agents for the state of Tennessee, now operate throughout the state an active, although unconstitutional, debtor prison regime populated with destitute citizens who owe child support. These debtor prisons comprise good, honest, law-abiding citizens who are being traumatized and irreparably injured by incarceration and abusive collection tactics of the Child Support Enforcement offices.

The United States Supreme Court has stated unequivocally that a contemnor who is incarcerated for civil contempt must hold the keys to the jail in her pocket: the contemnor must have the means within her control to take some action that will secure her release from jail. Tennessee courts that fail to apply that standard to their civil contempt proceedings have trammeled on the federal constitutional rights of its citizens. The trial court abused its discretion by selecting a $100 purge amount in its Order of incarceration for civil contempt, when the record bears no evidence that the appellant had immediate control over that amount of money – either at the instant of her incarceration or during the period in which she was incarcerated.

The trial court abused its discretion by holding a punitive contempt hearing under the guise of a "civil contempt hearing." Both the state and the trial court were primarily motivated to punish the appellant for her past behavior, not to coerce her into taking some remedial action within her control at that moment. All of the state's arguments at the Feb. 4, 1999, and Aug. 30, 2000, hearings were directed at the appellant's behavior from the prior year and half. In holding a contempt hearing for the purpose of scrutinizing the appellant’s past behavior, the trial court transformed its proceeding into a criminal contempt hearing, yet it failed to afford the appellant her constitutional right against self-incrimination, failed to place the burden of proof on the state, and failed to require the state to prove its case beyond a reasonable doubt.

Gwen Knox needs declaratory relief that she was wrongfully incarcerated for eight days in February 1999 in violation of her constitutional rights. The trial court's Order finding the appellant guilty of civil contempt must be reversed. Gwen Knox did nothing to justify a finding of civil contempt. The appellant was not withholding cash and refusing to make child support payments, and she was not willfully refusing to accept any employment that was pending at the time of the contempt hearings. She had no control over whether potential employers would offer her a job at the instant of incarceration, and thus she could not legitimately be incarcerated.

Furthermore, the overwhelming evidence in the record, including four sworn affidavits of indigency approved by the trial court, points to the appellant being not merely indigent, but destitute and impoverished. Following the example of the Supreme Court of Florida, the Tennessee Court of Appeals needs to prepare a new detailed court procedure instructing Tennessee trial courts when they must refrain from finding alleged child support obligors in civil contempt due to their inability to pay. The appellant also needs declaratory relief that the state of Tennessee and the trial courts lack authority to establish debtor prisons, even to enforce child support orders.

The trial court abused its discretion by ordering the appellant to demand her mother care for the appellant's three small children without compensation so that the appellant could look for employment and go to work. The trial court lacked subject matter and personal jurisdiction over the appellant's mother. The mother was denied an opportunity to testify as to her availability to provide daycare. Requiring a person to provide daycare services for children without compensation is a form of slavery. The Thirteenth Amendment to the United States Constitution and Art. I § 33 of the Tennessee Constitution prohibit any form of slavery. The trial court did not offer to pay for the costs of daycare. It simply issued a judicial fiat that child care services would not be an obstacle to the appellant getting employment and expected all those affected to comply with its fiat.

The trial court abused its discretion by setting a monthly child support obligation for the appellant at $225/month, without regard to the appellant's actual earning capacity and without taking into consideration the negative impact on presumed earnings of the appellant's lack of education, her age, her unstable work history, the fact that her driver's license was suspended by the trial court -- and left suspended by the Court of Appeals -- or the fact that she might occasionally be late or absent from work due to one of her children's illness. The trial court abused its discretion by failing to modify the child support obligation when the appellant’s economic circumstances changed significantly, such as when Ms. Knox was discharged by her employer and suffered prolonged unemployment or when she enrolled in GED classes.

The trial court committed reversible error by relying on inadmissible hearsay in its final order. The trial court obtained information outside of the contempt hearings and court record, and thus denied the appellant her federal and state due process right to challenge and rebut this information. In the process, the trial court inadvertently thwarted the Tennessee Rules of Evidence. For example, the trial court’s final judgment mentions “Respondent . . . does not and never has had a driver’s license. . . .Respondent has had at least 3 other jobs since being ordered to pay child support, one [of] which (Allied) she never showed up for work.” [Order, R. 21]. None of those facts, even if true, were included in the testimony at the contempt hearings held on Feb. 4, 1999, and Aug. 30, 2000, nor can they be found in any exhibits in the record or archived record in this case. It appears the trial court investigated the appellant sua sponte, contacted the police department or the Division of Motor Vehicles, and drew his own conclusions from hearsay facts, not introduced into evidence, alleged by the opposing counsel during oral argument on Feb. 4, 1999.

STANDARD OF REVIEW

In this non-jury case, the appellate court’s review is de novo upon the record of the proceedings below. Tenn. R. App. P. 13(d). The trial court's factual findings are presumed correct "unless the preponderance of the evidence is otherwise." Id. The presumption of correctness, however, does not extend to the trial court's conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

ARGUMENT

I. INCARCERATION FOR CIVIL CONTEMPT IS AN INAPPROPRIATE REMEDY TO ENFORCE A CHILD SUPPORT OBLIGATION AGAINST AN IMPOVERISHED AND INVOLUNTARILY UNEMPLOYED PARTY.

The issue of whether civil contempt is an appropriate remedy to enforce a child support order against a destitute party is one of first impression for both the Tennessee Court of Appeals and the Tennessee Supreme Court. To be imprisoned for civil contempt, the contemnor must be able to perform the act required to gain his or her release. Leonard v. Leonard, 207 Tenn. 609, 341 S.W.2d 740 (Tenn. 1960) (emphasis added). In civil contempt, it is often said that the convicted person holds the keys to the jail in her own pocket. See Shillitani v. United States, 384 U.S. 364 (1966). The burden is on the contemnor to show inability to perform, and where the alleged contemnor has "voluntarily and contumaciously brought on himself disability to obey an order or decree, he cannot avail himself of a plea of inability to obey as a defense to a charge of contempt." Bradshaw v. Bradshaw, 23 Tenn.App. 359, 133 S.W.2d 617, 619 (Tenn.App.1939) (citations omitted).

A person who is unemployed due to a lack of education, a lack of means of transportation, a lack of required skills, and time constraints in rearing her small children is NOT “voluntarily and contumaciously” bringing unemployment on herself.[12] The trial court held “Respondent’s voluntary and willful failures or refusal to diligently seek a job or fail to keep and maintain a job though she had the ability to do so prevents her from asserting inability to pay as a defense to this contempt action.” [Order, R. 21]. That statement demonstrates the trial court’s own lack of understanding of CIVIL contempt and its abuse of discretion. In characterizing the appellant as willfully underemployed, the trial court was focusing on past behavior and attempting to punish the appellant, which are wholly inappropriate for a civil contempt hearing.

When “inability to pay” equates to “inability to secure one’s own release from jail,” then “inability t