Brief on Jailing Child Support Debtors Contemnors in Unconstitutional Debtor Prisons

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 to pay” unambiguously becomes an absolute defense to incarceration for civil contempt under both U.S. and Tennessee constitutional law. Leonard, supra, 207 Tenn. at 609, Shillitani, supra, 384 U.S. at 364. For a destitute person, civil contempt is an inappropriate remedy to secure payment of a child support obligation: the party cannot be coerced into paying child support that instant, because she has no funds to pay it. Under such circumstances, incarcerating the appellant, and other destitute child support debtors similarly situated, serves no purpose at all. Tennessee’s Court of Appeals lags behind the courts of our neighboring states in recognizing this fact.

"The law in Alabama is well settled that imprisonment for contempt should never be imposed by a judge where the failure to pay . . ., is not from contumacy, but from inability to comply with the order." Ex parte Talbert, 419 So. 2d 240, 241 (Ala. Civ. App. 1982). See also Boykin v. Boykin, 659 So. 2d 664 (Ala. Civ. App. 1995). When the punishment no longer has any coercive effect, it becomes impossible to enforce. Id. "Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process." Id. Therefore, although one may be guilty of contempt for failing to comply with a court's order imposing a child support obligation, "imprisonment as a means of coercing payment, may not be imposed if there is shown a present inability to pay." Ex parte Talbert, 419 So. 2d at 241."

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

A trial court, however, may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Poole v. Wright, 188 Ga. 255, 258 (3 S.E.2d 731) (1939). Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to pay. Carlton v. Carlton, 44 Ga. 216, 220 (1871); see also Dan E. McConaughey, Georgia Divorce, Alimony and Child Custody, §§ 14-6 (1997). As we have long held, "the moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party." Carlton, 44 Ga. at 220. Because the purpose of civil contempt is to provide a remedy and to obtain compliance with the trial court's orders, the justification for imprisonment is lost when that compliance is impossible. The trial court found and DHR admits that Hughes lacks the ability to purge himself because he lacks money and property and his only source of income is manual labor. Under these circumstances, the trial court abused its discretion in continuing Hughes' incarceration for civil contempt. Judgment reversed. All the Justices concur.

Hughes v. Dept. of Human Resources, 269 Ga. 587, ___, 502 S.E.2d 233, ___ (Ga. 1998) (bold added). Incarcerating the appellant did not lead her to transfer money to the appellee, because she had no funds to transfer. Incarcerating the appellant did not coerce her into accepting employment she was then willfully refusing to accept.[13] In fact, the appellant received no job offers immediately prior to her contempt hearing, nor did she receive any offers for many months after her release from jail. The appellant acknowledges that the unreported Court of Appeals decisions cited in this brief do not serve as binding precedents for this court. In the unreported case below, the Tennessee Court of Appeals has already held that criminal contempt is an inappropriate remedy to enforce child support against an indigent party:

[T]the lower court found the Father had the ability to pay child support but did not and therefore was guilty of at least nine counts of willful contempt. After a careful review of the record, and adherence to Rule 13(d), Tenn. R. App. P., we disagree and conclude that the State has failed to meet its burden to show that the Father had the financial ability to comply with the child support order. . . . Finally, there was no proof that the Father had in his possession sufficient funds to pay the judgment against him. In fact, the evidence was that the Father had very little money. . . . In conclusion, we find that there remains a substantial and reasonable doubt that the Father was able to earn enough income or that he was in possession of sufficient funds to meet his support obligations. Thus, we find that there was insufficient evidence to conclude that the Father was guilty of criminal contempt.

State ex rel. Richardson v. Richardson, No. 01-A-01-9706-CV00274 (Tenn. Ct. App. 1998) (reprinted in the addendum filed concurrently with this brief). The time has long been overdue for the Court of Appeals to extend the ruling of Richardson to the sanction of civil contempt against indigent child support debtors.

Because this issue presents one of first impression for the Tennessee appellate courts, it is appropriate to look to guidance from other states. Following the highest court of the state of Maryland in its unanimous decision in Lynch v. Lynch, 342 Md.509, 677 A.2d 584 (1996), and its numerous progeny, the appellant invites the Tennessee Court of Appeals to resolve the issue now before the court by holding: (1) A defendant who lacks the present financial ability to comply with a child support order, whether or not that inability is purposeful, may neither be held in civil contempt nor imprisoned. Alternatively, the court may wish to hold: (2) In child support cases, the defendant's inabilty to pay precludes imprisonment for civil contempt, and an unintentional inability to pay precludes imprisonment for either civil or criminal contempt.

The Maryland high court's reasoning is particularly germane to the issue confronting the Tennessee Court of Appeals in this appeal:

[T]he goal of civil contempt proceedings, to coerce compliance with a court order entered primarily for the benefit of private parties to a suit, cannot be accomplished when the responsible party is unable, for whatever reason, to comply. The same is true in the case of court-ordered child support payments. If the responsible party does not have the money, or any means of obtaining it, payment cannot be coerced. Indeed, this is true whether the responsible party chose intentionally to frustrate the court order, as, for example, acting in bad faith, to impoverish him or herself, or whether his or her inability is unintentional. . . .Whether a defendant has failed to pay court ordered support when he or she had the ability to do so and whether that defendant has, in bad faith, caused his or her own present inability to comply, with the intent of frustrating the court order, are material, and indeed, necessary, considerations bearing on whether a defendant should be punished. Those considerations do not address whether the defendant is in civil contempt, the object of which is remedial - to force compliance. Even if the present inability to comply is the product of the defendant's bad faith, compliance still cannot be coerced by civil contempt.

Lynch v. Lynch, 342 Md.509, 521_22, 677 A.2d 584, 590 (1996).

Similarly, the Supreme Court of Mississippi noted that a public policy exception exists to the Mississippi constitutional prohibition against incarcerating someone for failing to pay a civil debt. Child support obligations and alimony are two such exceptions that may be enforced with contempt proceedings. However, even when a public policy exception is found, such as child support enforcement, “we have held that an individual must be given the opportunity to show he or she is without the present ability to discharge the obligation, and thereby avoid being held in contempt. Jones v. Hargrove, 516 So. 2d 1354 (Miss. 1987).” In Re: Nichols, 749 So. 2d 68, __ (Miss. 1999). This case reflects numerous Mississippi Supreme Court precedents including Jones v. Hargrove , 516 So. 2d 1354 (Miss. 1987), where the Court stated:

The law is well settled that upon establishment of a prima facie case of contempt, the defendant may avoid judgment of contempt by establishing that he is without present ability to discharge his obligation, but he has the burden of proving his inability to pay, and such a showing must be made with particularity and not in general terms. Clements v. Young , 481 So.2d 263, 271 (Miss.1985). Nothing in this opinion should be construed to challenge these basic principles. It is also a well-settled rule in this state that the court's power to commit a person to jail until he complies with the terms of a decree depends upon his present ability to comply with the decree. Wilborn v. Wilborn, 258 So. 2d 804, 805 (Miss.1972).

516 So.2d at 1357. Civil contempt is an inappropriate enforcement mechanism against impoverished and indigent parties, who lack the “present ability” to pay child support or pay a purge amount for civil contempt and secure their own release from jail. The Mississippi Supreme Court summarized this point nicely in its concluding sentence in Nichols: “The (appellees) are free to collect the judgment by execution, garnishment or any other available lawful means so long as it does not include imprisonment.” In Re: Nichols, 749 So. 2d 68, __ (Miss. 1999).

To understand why civil contempt is inappropriate to enforce child support orders upon an indigent party, consider a classic example of coercive civil contempt: the jailing of Susan McDougal for failing to answer questions from the Whitewater Special Prosecutor. In theory, Susan McDougal could have secured her own release from jail by agreeing to answer those questions. Susan McDougal theoretically 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 secure her own release from jail in February 1999 was to pay $1,000, and she did not have access to or control over that much money. Gwen Knox was impoverished, and that is an objective fact clearly established by her affidavits and proven by events based on the length of time she remained incarcerated when she desperately wanted her freedom. See Ex parte Rojo, 925 S.W.2d 654, ___ (Tex. 1996) (citing In re Dustman, 538 S.W.2d at 410 (duration of relator's incarceration corroborates her indigency and inability to pay)).

II. THE TRIAL COURT'S PRIOR ORDERS IN THIS CASE AND OTHERS SIMILARLY SITUATED HAVE CREATED AN UNCONSTITUTIONAL DEBTORS' PRISON REGIME

Neither the trial court nor the opposing counsel ever addressed appellant's contention that her incarceration amounted to an unlawful debtor's prison. The following quotation from the Sixth Circuit[14] summarizes succinctly the injustice visited upon the appellant and other similarly situated destitute child support debtors throughout Tennessee.

The government faulted her for not trying to make arrangements to slowly pay back the $235.00 she was ordered to pay. The government does not explain what arrangements a welfare mother with one child could make to repay a debt on a total income of $135.00 a month. The attitude and beliefs of the United States Attorney's Office for the Western District of Kentucky notwithstanding, there are no debtor's prisons in this country.

Banks v. United States, 614 F.2d 95, 100 n.13 (6th Cir., 1980). Similarly in this case, the state's attorney faulted Ms. Knox for not trying to make arrangements to pay more child support and reduce the arrearage that she had been ordered to pay. The government did not explain what arrangements a welfare mother with three dependent children under age 5 could make to repay a debt on a total income of $55 a month.[15] The attitude and beliefs of the Child Support Enforcement attorneys notwithstanding, there can be no debtor's prisons in Anderson County or any other county in Tennessee.

The Tennessee Supreme Court has stated in Going v. Going, 148 Tenn. 522 at 552, 256 S.W. 890 at 898 (1923) that a debtor, such as Ms. Knox, cannot be imprisoned merely for failing to find work with which to pay the arrearage. And as late as 1990, this judicial prohibition of debtor prisons was endorsed and followed by the Tennessee Court of Appeals:

The State argues that under the circumstances of these cases, the respondents must show (with proof beyond their mere oral testimony) that they cannot borrow the money with which to purge themselves of the contempt. See Ex Parte Hennig, 559 S.W.2d 401 (Tex. Civ. App. 1977); Ex Parte Rine, 603 S.W.2d 268 (Tex. Civ. App. 1980). Our Supreme Court, however, considered and rejected that argument in Going v. Going, 148 Tenn. 522 at 552, 256 S.W. 890 at 898 (1923). In that case the court stated the proposition in this way: "Some courts, indeed, have gone to the length of saying that a husband who has no property, but is able to work, must be imprisoned, the theory being that this will put the pressure on him to raise the money somehow." Relying on decisions from South Carolina, Alabama, and California, the Court in Going adopted what it called the "contrary and ... better reasoned" view of the question. The Court went so far as to quote with approval decisions from those other states that indicated a person could not be imprisoned merely for the failure to find work with which to pay the arrearage.

State ex rel. Everson v. Gooch and State ex rel. Alderson v. Gentry, 1990 WL 3976 at p.2 (Tenn. Ct. App. 1990) (emphasis added) (reprinted in the addendum of cases).

In the appeal now before the court, the trial court declared that Ms. Knox was an "able-bodied" person and concluded that she was willfully underemployed.[16] Such summary conclusions by the court cannot form the basis for incarcerating someone for civil contempt. A lack of job opportunities for people without vocational or college educations is an economic reality, and no judicial fiat will cure this economic circumstance. Appellant asserts that a debtor's prison regime, in which impoverished and unemployed people are sentenced to jail for failing to pay civil debts [child support] far beyond their means, violates both the Due Process Clause of the Fourteenth Amendment as well as the Cruel and Unusual Punishment Clause of the Eighth Amendment (as applied to the states through the Due Process Clause of the Fourteenth Amendment) to the U.S. Constitution. In addition to the Cruel and Unusual Punishments Clause, the Eight Amendment also contains the Excessive Fines and Excessive Bail Clauses.[17] Together these three clauses mandate fair and just sentencing, and a debtor prison sentence is neither fair, nor just.

Furthermore, Art. I, Sect. 18 of the Tennessee Constitution proscribes the state legislature from enacting any law that would create a debtor prison. It follows that if the Tennessee legislature cannot pass any law authorizing a court to create a debtor prison regime, and Tennessee trial courts lack the inherent authority to create such a regime, then the Anderson County Juvenile Court lacked authority to create a debtor prison for Gwen Knox and abused its contempt power.

Finally, Art. I, Sect. 16 of the Tennessee Constitution prohibits cruel and unusual punishments. The Tennessee Supreme Court has frequently interpreted the Tennessee Constitution as conferring more rights upon citizens than do the similar sections of the United States Constitution. See, e.g., State v. Dusina, 764 S.W.2d 766 (Tenn. 1989) (holding that our state constitution's right to jury trial is even broader than the federal constitutional right). Given the appellant lacked funds to purge herself of civil contempt, then the appellant’s eight-day incarceration was a cruel and unusual punishment in violation of Art. I, Sect. 16 of the Tennessee Constitution.

In response to these arguments, the AG previously argued "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’s original brief filed in 1999 at 16]. 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, and the Tennessee Constitution contains a specific prohibition against them.

Nevertheless, the AG's cavalier attitude towards incarcerating destitute, impoverished, and indigent child support obligors has not escaped the notice of legal commentators.

The entire arena of Family Law has become a domain of Constitutional violations and usurpation of civil rights. What a normal person would consider a Debtor's Prison has been instituted. To usurp the Constitution, the courts have "legislated" a perversion of the law declaring "contempt" as the new Debtor's Prison Mantra by stating it is not a debtor's prison because the jailing for contempt can be remedied upon clearing the contempt (i.e. paying the DEBT! (aka Debtor's Prison)). One man who earns $70 a week as a street musician is in jail now and will NOT be allowed to get out unless he can come up with $28,000. [63] . . . A California appeals court also declared that some Child Support incarcerations were a violation of the 13^th Amendment for involuntary servitude.[64]. . . . Nearly every state has legislation to seize bank accounts and real property without a court order (for “child” support) eliminating due process without a sworn statement that the money is owed. In child support politics, the Constitution has become passé and encumbers or impedes the cash machine that has been created. In this entire domain of “Family Law” the Constitution as we know it has ceased to exist. "State judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights."[67] Many "deadbeat" [parents] are just plain “deadbroke”.[69] They are humiliated and bankrupted by a system that hides "alimony" in child support payments. . . .The deadbeat dad myth, is just that, a myth. [Non-custodial parents] want accountability and equity in a system that is both unconstitutional and out of control.[71]. [Non-custodial parents] are being destroyed by a system that seeks to squeeze every ounce of money possible before discarding them, with disdain for [their] essential roles as nurturing parents, protectors, role models, and caretakers of their children. A [non-custodial parent] in Canada (a country with similar custody policies and child support “guidelines” as the US) recently killed himself after being ordered to pay TWICE his income in support payments [72].

Footnotes: [63] Man is jailed again in Child Support battle, The [New Jersey] Star Ledger, Timothy O’Conner, March 19, 2000. [64] LLR No. 9609060.CA Moss V. Moss, September 25, 1996. [67] Goss v. State of Illinois, 312 F2d. 1279 (US App Ct, Illinois, 1963). [69] Some 'Deadbeat' Dads Are Dead Broke, David Crary, Associated Press, November 7, 1999 [71] Father’s protests deserve airing, Kathleen Parker, USA Today, November 8, 1999 [72] Anti_Male Bias in Family Courts blamed for Man’s Suicide, couldn’t afford support payments, backers say, Donna Laframboise, National Post, March 23, 2000.

Joint Statement of Dr. Richard Weiss, Director of Children’s Rights Council of Alabama, and William Wood, Coordinator for the Children’s Legal Foundation and the Justice Coalition, concerning H.R. 1488, The "Hyde_Woolsey" Child Support Bill, March 16, 2000, Human Resources Subcommittee of the House Ways and Means Committee, Washington, D.C., (bold added).

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) (bold added). The article goes on to describe deplorable debt collection practices, similar to 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) (bold added). This law review article is a fantastic piece of forward-looking research. A copy of the law review article in its entirety was attached to the appellant’s reply brief [Reply Brief, Arch. R] submitted in 1999 and is thus contained in the archived record.

The appellant urges the Tennessee Court of Appeals to strike down the statewide practice of incarcerating indigent child support debtors as unconstitutional, before a federal court has to intervene and enforce these citizens’ FEDERAL rights against debtor prisons.

III. THE PURGE AMOUNT SET BY THE TRIAL COURT VIOLATED BOTH FEDERAL AND TENNESSEE LAW, BECAUSE THE APPELLANT DID NOT HAVE ACCESS TO THAT MUCH MONEY AND THEREFORE DID NOT HAVE THE MEANS TO SECURE HER OWN RELEASE.

Our review of the case law regarding the issue of incarceration for contempt convinces us that there can be no imprisonment for civil contempt without a finding that the contemnor has the ability to comply with the required order. See Leonard v. Leonard, 207 Tenn. 609, 341 S.W.2d 740, 743-44 (Tenn.1960), Going v. Going, 148 Tenn. 522, 256 S.W. 890, 899 (Tenn.1923). The contemnor cannot be forced to borrow the funds, nor can his family be forced to satisfy his duty. Stevenson v. Stevenson, No. 01A01-9701-CV-00032 (Tenn. Ct. App., 1998) (citing Netherton v. Netherton, 1993 WL 49556 (Tenn. Ct. App. 1993)).

After a finding of contempt, courts have several remedies available depending upon the facts of the case. A court can imprison an individual to compel performance of a court order. This is typically referred to as “civil contempt.” This remedy is available only when the individual has the ability to comply with the order at the time of the contempt hearing. Tenn. Code Ann. § 29_9_104;[18] see also Garrett v. Forest Lawn Memorial Gardens, 588 S.W.2d 309, 315 (Tenn. Ct. App. 1979). Thus, with civil contempt, the one in contempt has the “keys to the jail” and can purge the contempt by complying with the court’s order. Tenn. Code Ann. § 29_9_104; Garrett, 588 S.W.2d at 315.

In Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624 (1988), the only case concerning failure to pay child support that the United State Supreme Court has heard, the high Court indicated that a sentence of incarceration for a definite period of time coupled with a purge clause was a constitutionally permissible sanction for civil contempt. "Any sentence must be viewed as remedial, and hence civil in nature, if the court conditions release upon the contemnor's willingness to [comply with the order]." Id. at 635, (citations and internal quotations omitted). However, the Supreme Court went on to clarify

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.

Id. at 638.

This case law indicates that under a civil contempt order, the appellant could not be jailed absent proof in the record that she actually possessed the total funds necessary to purge her contempt and secure her own release at the instant of incarceration. In its contempt hearing of Aug. 30, 2000, the court made no findings that Ms. Knox had adequate funds in checking or savings accounts or any other assets that could be used to satisfy the court's purge clause of $100. Indeed, Ms. Knox had no such funds at her disposal. Declarations that someone is "able-bodied" and capable of producing income in the past are wholly inapposite to the findings that the contemnor has – to quote the aphoristic phrase – “the keys to the jail in her pocket.”

The trial court cannot substitute its own subjective opinion about the contemnor’s ability to pay the $100 purge amount; the trial court must base its opinion on objective facts.

There is absolutely no evidence in this case on the basis of which it could be concluded that the respondent had a present ability to pay the purge amount. The respondent testified, without contradiction and without cross-examination, that aside from $20, she had no income or assets, and no way of raising the purge amount. Moreover, the trial court found that she did not have the present financial ability to comply with the purge provision. It made clear, at the hearing on the motion for reconsideration, that the basis for its finding was "not because she had $500.00 in her pocket," or that she could raise it from assets or property she possessed, but because of the respondent's discretionary lifestyle. It was on that basis that the court inferred that the respondent would be able to acquire the monies with which to purge her contempt. Significantly, the court believed she would get the money from persons who had no legal obligation to support her or her children. Indeed, by resting its fact finding on the discretionary lifestyle rationale, the court necessarily found that the respondent had no present financial ability to comply; rather, she was dependent upon the largess and good wishes of those persons who made her discretionary lifestyle possible, the very antithesis of present financial ability.

Lynch v. Lynch,342 Md.509, ___, 677 A.2d 584, ___ (1996).

To his credit, the trial court judge Ronald Murch on rehearing did lower the purge amount to $100 from the $1000 amount originally set by Anderson County Juvenile Judge Pat Hess. The trial court attorney for the state of Tennessee argued in open court on Aug. 30, 2000, that if Gwen Knox pleaded with her mother for cash, and her mother could raise the cash from the appellant’s grandmother, then that somehow vindicated the trial court's original finding that Gwen Knox had $1,000 at her disposal! But neither Gwen Knox's mother nor her grandmother had any legal obligation to support Gwen Knox or her children. In applying the relevant case law from Tennessee, the trial court should have looked to Gwen Knox's present ability to pay, not the largesse of her friends and relatives.

In the case before us, there was no finding that Husband had the ability to purge himself of the $23,700 obligation of alimony and attorney fees. Despite the fact that Husband's father immediately paid the required amount and thereby purged Husband of contempt, we find that the trial court's sentence of incarceration for Husband for civil contempt was in error. We therefore reverse the finding of the trial court on the issue of contempt.

Stevenson v. Stevenson, supra, (Tenn. Ct. App., 1998) at 4. Similarly, despite the fact that appellant’s mother paid the required purge amount, the trial court's Nov. 30, 2000, nunc pro tunc finding of civil contempt and sentence of incarceration were both in error and must be reversed as a matter of law.

Furthermore, neither the state nor the trial court had any authority to require the appellant, who lacked collateral and any obvious means of repaying a loan, to borrow money from her mother, grandmother, or anyone else in order to satisfy a civil contempt order. State ex rel. Everson v. Gooch and State ex rel. Alderson v. Gentry, 1990 WL 3976 (Tenn. Ct. App. 1990); In re Luebe, 983 S.W.2d 889 (Tex Ct. App. 1999) (In determining indigency in this quasi-criminal contempt proceeding [for failure to pay child support], the trial court is to look at the individual’s financial status and not that of relatives or other sources.).

Appellant averred to the court in her affidavit of indigency dated Dec. 17, 1998, that she was impoverished. [Aff., Arch. R. 56-57]. She was unemployed on Feb. 4, 1999, and had been involuntarily unemployed for most of the preceding year. Appellant had virtually no income (consisting of $226/month in AFDC, $400/month in food stamps, and $55 in unemployment compensation) and no assets. Appellant's impoverished condition was expressly and plainly articulated to the trial court during the hearing on Feb. 4, 1999, at which time the appellant's testimony reiterated the facts contained in her affidavit of indigency dated Dec. 17, 1998. [Aff., Arch. R. 56-57]. Appellant had no change in income or assets at the time the petition to modify or vacate prior orders was reheard on Aug. 30, 2000.

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) (emphasis added). On the basis of ability to pay alone, the Tennessee Court of Appeals must reverse the trial court's Order of Nov. 30, 2000.

While the respondents have the burden to establish their defenses of inability to pay, Leonard v. Leonard, 207 Tenn. 609, 341 S.W.2d 740 (1960), we are of the opinion that the respondents have carried that burden when they have been ordered to pay judgments of $3,481.16 and $3,128.35 respectively and they have testified that they have no assets.

State ex rel. Everson v. Gooch and State ex rel. Alderson v. Gentry, 1990 WL 3976 (Tenn. Ct. App. 1990). Similarly, appellant Gwen Knox has carried her burden of establishing the defense of inability to pay when the court, by nunc pro tunc order entered on Nov. 30, 2000, held that she be incarcerated for ten days or until she pays $100, and she has previously testified and averred by affidavit that she then had $0 in monthly income and no assets.[19]

IV. THE TRIAL COURT’S ORDER MUST BE REVERSED, BECAUSE IT REFUSED TO REINSTATE THE APPELLANT’S DRIVER’S LICENSE, EVEN AFTER THE PURGE AMOUNT HAD BEEN PAID.

Under International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 829, 129 L. Ed. 2d 642, __ 114 S. Ct. 2552, __ (1994), regardless of whether the sanction is incarceration, garnishment of wages, additional employment, the filing of reports, additional fines, the delivery of certain assets, the revocation of a driver's license, or other type of sanction, the court must provide the contemnor with the ability to purge the contempt. If that purge condition is met, the sanctions must be lifted. The trial court, the Child Support Enforcement Office of Anderson County, and the Tennessee Attorney General have willfully refused to apply this binding U.S. Supreme Court authority. As punishment for failing to pay child support, the trial court revoked the appellant's driver's license on Feb. 4, 1999. [Order, Arch. R. 61-63]. Eight days later, the appellant’s mother paid the purge amount, and the appellant was released from jail. Upon hearing the appellant’s second petition [Petition, Arch. R. 67-86], which requested that the appellant’s driver’s license be reinstated, the Child Support Enforcement attorney argued against reinstating the driver’s license, [State’s Response, Arch. R. 87-94], and the trial court refused to grant this relief [Order, Arch. R. 95].

In a motion before this court, the appellant renewed her appeal to eradicate the revocation of her driver’s license. [Motion, filed June 19, 1999]. The Attorney General’s office argued in opposition to the motion, and Judge Susano denied the motion as “not well taken.” [Order, filed July 7, 1999].

It is possible that Bagwell might be one of those rare instances of a U.S. Supreme Court decision, e.g., interpreting the federal rules of civil procedure, that is not binding upon the states. In that event, the trial court, the Child Support Enforcement Office of Anderson County, the Tennessee Attorney General, and Judge Susano would all be justified in adopting their positions that the trial court had the authority to continue its order revoking the appellant’s driver’s license, even after her contempt had been purged. However, the Supreme Court of Florida has already declared convincingly that Bagwell indeed does bind state courts.

Under Bagwell, regardless of whether the sanction is incarceration, garnishment of wages, additional employment, the filing of reports, additional fines, the delivery of certain assets, the revocation of a driver's license, or other type of sanction, the court must provide the contemnor with the ability to purge the contempt; that is, if the contemnor satisfies the underlying support obligation, the sanctions must be lifted. If the court finds that the contemnor's conduct is serious enough to warrant punishment, then a criminal contempt proceeding is the appropriate remedy under which the contemnor is entitled to the appropriate due process protections available in criminal cases. While these principles appear to be fairly straightforward, cases reflect that courts often fail to apply the principles properly.

Gregory v. Rice, 727 So. 2d 251, 254 (Fla. 1999). The appellant is confident that should this case reach the Tennessee Supreme Court, that court would agree that once the purge amount was paid, the trial court’s civil contempt sanctions (including revocation of the appellant’s driver’s license) should have been lifted.

Furthermore, because the appellant occupies the moral and legal high ground on this issue, she can also collaterally attack the legitimacy of the trial court’s original order revoking her driver’s license. Revoking the appellant’s driver’s license, which in this case amounted to revoking her ability to receive a driver’s license, compounded the problems she faced in trying to find work, obtain employment, and comply with the trial court’s child support order. Many employers, if not most, would want to copy a new employee’s driver’s license to verify his or her address and to protect the employer against being unable to track the new employee down in the event of some employee misconduct.

It compounded the appellant’s difficulties in reaching the county courthouse to file an appeal of the trial court’s abuse of its discretion and thereby reduced the chances of the appellant receiving substantive and procedural due process. By placing yet another burden on the appellant’s ability to get from her home to a place of employment on a regular basis, the Anderson County Juvenile Court practically guaranteed the following chain of events would occur. (1) Ms. Knox would remain unemployed due to her inability to borrow someone’s car and drive to work with a regular means of transportation. (2) Her unemployed status would mean that she lacked funds to pay child support. (3) If the appellant did not pay child support, the trial court would again hold her in contempt and incarcerate her. The relevant case law indicates the trial court abused its discretion by imposing a burden so onerous on the appellant as to cause ultimately her permanent incarceration.

This is a classic case where there is a loss of common sense in the application of a statute. . . . It is within the province of the district court to correct this error and to permanently correct Campbell's records so that any fine imposed upon Campbell does not become so onerous as to result in Campbell's permanent incarceration in a virtual debtor's prison.

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

The Court of Appeals needs to provide some "common sense" to this trial court’s orders concerning the revocation of the appellant’s driver’s license. The Court of Appeals should hold that the trial court abused its discretion by placing such an onerous burden on the appellant ( revocation of her license to drive an automobile) as to ensure that the appellant would not be able to comply with its prior support orders, and separately, abused its discretion by refusing to vacate that order even after the civil contempt had been purged.

V. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY HOLDING A PUNITIVE (CRIMINAL) CONTEMPT HEARING AGAINST THE APPELLANT WHILE LABELING IT AS A CIVIL CONTEMPT HEARING.

The threshold issue in every appeal from a finding of contempt is whether the contempt is civil or criminal. The answer turns on the conduct involved, the actual nature of the proceeding, and the sanctions imposed -- not on the labels of "civil" or "criminal" affixed by the state or the trial court. Sherrod v. Wix, 849 S.W.2d 780, 786-787 (Tenn. Ct. App. 1992) (action treated as a criminal contempt proceeding even though the trial court characterized it as a civil contempt proceeding). Making the distinction is essential because doing so determines the procedure to be followed and the constitutional protections to be afforded the alleged contemner. Storey v. Storey, 835 S.W.2d 593, 599 (Tenn. Ct. App. 1992).

In the first three sections of this brief, the appellant has argued that she lacked the funds to purge the contempt and secure her own release from jail. Under those circumstances, the trial court’s order of incarceration for 10 days became a de facto determinate sentence of incarceration. The relevant case law indicates that fact alone transformed her sentence from civil into criminal contempt.

While the chancellor did not ever place the label "criminal contempt" on the conduct of Husband, by this determinate sentence he did affix such a label. In addition, the appropriate notice requirements pertaining to a criminal contempt proceeding were not complied with. Accordingly, we are of the opinion that while the chancellor was correct in finding Husband in contempt of court, he was in error in making the contempt criminal in nature. We therefore reverse the chancellor insofar as the determinate jail sentence is concerned, notwithstanding the fact that it was suspended.

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

The labels affixed to the proceeding or to the relief imposed under state law are not controlling. The character and purpose of the punishment imposed generally serves to distinguish criminal from civil contempt proceedings. "[T]he critical feature that determines whether the remedy is civil or criminal in nature is not when or whether the contemnor is physically required to set foot in jail, but whether the contemnor can avoid the sentence imposed on him, or purge himself of it, by complying with the terms of the original order." Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 635 (1988). Punishment for criminal contempt is punitive in character; it is imposed to vindicate the authority of the law. State ex rel. Anderson v. Daugherty, 191 S.W. 974 (Tenn.1917). Punishment is imposed unconditionally and the respondent cannot escape by purging himself of the contempt. Punishment for civil contempt, on the other hand, is imposed for the benefit of a party litigant. "If imprisonment be ordered it is remedial and coercive in character, having relation to the compelling of the doing of something by the contemnor which when done will work his discharge." Id. at 974.

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

We are not certain what to call the lower court's contempt order. It has aspects of both civil and criminal contempt. It appears to be more civil, however, because it appears to be designed to induce the husband to perform some act or acts for the benefit of the wife. Assuming that we are correct about that, an essential element of civil contempt is the ability to perform the act ordered by the court. State ex rel. Wright v. Upchurch, 194 Tenn. 657, 254 S.W.2d 748 (1953); Gossett v. Gossett, 241 S.W.2d 934 (Tenn. App. 1951). . . . There is no finding in the record that the husband has that ability. . . . So, the sentence cannot stand as civil contempt.

McCray v. McCray, No. 01-A-01-9704-CH-00170 (Tenn. Ct. App. 1998).

In this section, the appellant argues that the trial court’s punitive intent and motivation transformed the trial court's de jure civil contempt hearing into a de facto punitive criminal contempt hearing, independent of the determinate sentence imposed on the appellant. The appellant was sent to jail as punishment for failing to pay child support in the past when she either worked or allegedly could have found work. The trial court expressed its punitive motive as follows. “Respondent has willfully failed to maintain or seek a job(s) having voluntarily quit employment at least twice without sufficient reason to do so, and having failed to diligently seek other employment.” [Order, R. 21] The court’s motive to punish past behavior transformed the appellant’s civil contempt proceeding into one for criminal contempt, with the panoply of substantive and procedural due process rights and protections owed to the criminally accused under both the state and federal constitutions. Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542 (1966); Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624 (1988); Walker v. Walker, No. 02A01-9209-CH-00263 (Tenn. Ct. App. 1993) (aff’d 914 S.W.2d 887 (Tenn. 1996)).

The Attorney General (AG) of Tennessee previously argued in this appeal that the record contained no evidence that “Ms. Knox was involuntarily unemployed and the court must presume that the evidence supported the juvenile court's finding that the appellant was `in willful contempt of orders . . . for failing to pay support when [she] had the ability to do so.'" [Appellee’s original Brief at 15-16]. But the AG has missed the point entirely. He is focused on PUNISHING the appellant for some hypothetical past ability to pay, rather than on PERSUADING Gwen Knox to pay child support using funds then within her control on the day of the civil contempt hearing. The AG avidly endorses the trial court's corrupted use of its civil contempt power to punish the appellant for being too poor to own a car and drive herself to work, not to coerce her into taking some action within her immediate control. The AG is endorsing the use of punitive, criminal contempt sanctions under the guise of civil contempt, and that conflated logic leads automatically to unconstitutional forms of incarceration.[20]

If the trial court intended to punish Gwen Knox for failing to pay child support in the past, then the trial court used the incorrect standard of proof and the incorrect burden of proof at its hearing on Feb. 4, 1999, and at its re-hearing on Aug. 30, 2000. In short, the trial court must be reversed for improperly conflating the procedures of a civil contempt hearing with the motives and penalties for criminal contempt.

VI. THE TRIAL COURT VIOLATED THE APPELLANT'S CONSTITUTIONAL RIGHTS, AND THE APPELLANT NEEDS DECLARATORY RELIEF FROM THIS COURT THAT SHE WAS NEVER GUILTY OF CIVIL CONTEMPT.

An actual controversy has arisen and now exists between appellant, and other destitute child support obligors across the state of Tennessee, and the juvenile courts and other state trial courts concerning the trial court's authority, duties, and obligations. To the extent the appellant was neither (1) willfully refusing to accept employment nor (2) willfully withholding funds at her disposal instead of paying child support, then the appellant could NOT be found guilty of civil contempt. Furthermore, the appellant contends that her inability to pay child support or the purge amount selected by the trial court was an absolute defense to incarceration for civil contempt.

In contrast, the trial court disputes these contentions and contends instead that (1) it can find someone guilty of civil contempt for what it erroneously infers as non-diligent efforts to comply with the court’s order in the past, regardless of the party’s present willingness to comply, (2) it can incarcerate any civil contemnor and subjectively choose any purge amount it deems fair -- regardless of the established, objective record of a party’s present inability to pay; (3) it can impute the ability to pay any purge amount it selects to an alleged contemnor just as easily and with the same unbridled discretion that it uses to impute income to a voluntarily unemployed child support obligor; and (4) the trial court's (specious) findings that the appellant failed to maintain employment due to willfullness, rather than the fact that she lacked any means of transportation to and from work, are correct.

The appellant desires an appellate court determination of her statutory and constitutional rights and the duties and obligations of the trial court. The appellant would ask the Court of Appeals to provide declaratory relief that the trial court made numerous errors that rendered unconstitutional its Order of Nov. 30, 2000, for civil contempt: (1) the trial court failed to identify some action or instruction by the court that the appellant was willfully refusing to obey at the time it found her guilty of CIVIL contempt; (2) the trial court incarcerated the appellant but failed to identify some action that the appellant was capable of undertaking to secure her own release from jail; (3) the trial court chose a $100 purge clause amount without any regard to the appellant's actual ability to pay and without one shred of evidence in the record that she had $100 within her control at the instant of incarceration; (4) the trial court incarcerated Ms. Knox to punish her, not to coerce her into taking some action, e.g., withdraw money from a savings account and use the funds to pay child support; (5) the trial court applied the wrong procedures and standards of proof for a contempt hearing designed to punish the alleged contemnor; and (6) the appellant was wrongfully incarcerated for seven nights and eight days by the Anderson County Juvenile Court in Feb. 1999, for which she is entitled to compensatory damages.

Declaratory relief is necessary and appropriate at this time and under these circumstances so that other juvenile courts do not repeat the same mistakes as those of the Anderson County Juvenile Court in its contempt hearings against the appellant and other destitute child support obligors in Anderson County. Following the example set by the Supreme Court of Florida, the appellant requests the Tennessee Court of Appeals specify in this decision a detailed set of step-by-step procedures that the Tennessee trial courts must follow if they are attempting to incarcerate an indigent child support debtor for civil contempt.

To eliminate any confusion regarding the procedures to be followed or the findings necessary in order to legally impose incarceration for civil contempt in the context of child support enforcement, in 1998, our supreme court adopted Florida Rule of Family Law Procedure 12.615. That rule sets out detailed procedures that must be followed before a person can be found in civil contempt for failure to pay child support and additional requirements that must be met before a contemnor can be jailed. In adopting this rule, the court noted that the rule was "created to assist the trial courts in ensuring that the due process rights of alleged contemnors are protected." See Fla. R. Fam. Law P. 12.615 commentary.

Rule 12.615 clearly provides that an order providing for incarceration as a coercive sanction for civil contempt shall not only set a purge amount but shall include "a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding." See Fla. R. Fam. Law P. 12.615(e). . . . [W]e note that rule 12.615(d) provides detailed guidelines outlining the findings that must be made in an order of civil contempt and requiring the order to contain a recital of the facts on which those findings are based. . . .

We are deeply troubled that circuit courts continue to illegally incarcerate people for civil contempt in the face not only of ample case law, but also a rule which clearly delineates the procedures that should be followed in order to ensure that the due process rights of alleged contemnors are protected. As the Supreme Court noted when issuing a public reprimand to a judge found to have improperly exercised his contempt powers, "[a]lthough the contempt power is an extremely important power for the judiciary, it is also a very awesome power and is one that should never be abused." See In re Inquiry Concerning Perry, 641 So. 2d 366, 368 (Fla. 1994). We therefore once again repeat our admonishment that there are dangers not only to litigants but to trial judges as well when contempt powers are abused. See Conley v. Cannon, 708 So. 2d 306 (Fla. 2d DCA 1998); Blalock v. Rice, 707 So. 2d 738 (Fla. 2d DCA 1997). Petition for writ of habeas corpus granted.

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

VII. THE TRIAL COURT ABUSED ITS DISCRETION BY HOLDING THAT APPELLANT'S MOTHER COULD PROVIDE DAY CARE SERVICES WITHOUT COMPENSATION SO AS TO ENABLE THE APPELLANT TO WORK AND SATISFY THE TRIAL COURT'S ORDERS.

Whereas the trial court declared “Respondent had services of child care available to her including her mother.” [Order, R. 21], the Court of Appeals has said in contrast "nor can [a contemnor's] family be forced to satisfy his duty" Stevenson v. Stevenson, No. 01A01-9701-CV-00032 (Tenn. Ct. App., 1998) (citing Netherton v. Netherton, 1993 WL 49556 (Tenn. Ct. App. 1993)). The trial court would like to create a fictional world in which Gwen Knox was freely able to pursue work without any barriers to employment, such as caring for her three young children who live with her. Thus, to create this fictional world, the trial court illegitimately conscripted the appellant’s mother to provide day care services without compensation. The trial court might just as well as have created a fictional fairy godmother to transport the appellant to work in a pumpkin carriage, like Cinderella.

The appellant's mother is not a party to this litigation; she did not testify during the contempt hearings. The trial court had no authority to presume, and thereby issue a finding of fact, that the appellant's mother would be available to care for appellant's young children – day or night or both – so as to remove any obstacle to the appellant being ready for work. That amounted to a denial of both substantive and procedural due process to the appellant’s mother. Recall the appellant is impoverished, owns no vehicle, and had no means of transportation to and from these hypothetical employers mentioned by the trial court – some of whom were located 15 miles from her home. Furthermore, even assuming arguendo that the appellant’s mother was willing to provide child care services without any compensation, Gwen Knox had no means of getting her children to her mother’s home for child care,. Her mother lived in Clinton approximately 13 miles away from the appellant in Lake City.

The trial court's judicial fiat conscripting the services of the appellant's mother without compensation violated the following sections of the United States Constitution: (1) the Fifth Amendment Takings Clause ) proscribing the government from taking private property without just compensation, as applied to the states through the Due Process Clause of the Fourteenth Amendment; (2) the Thirteenth Amendment, because mandating the performance of services without compensation is a form of slavery; and (3) the Due Process Clause of the Fourteenth Amendment ) the appellant's mother was not a party and had no opportunity to testify concerning her availability to provide uncompensated day care services.

The trial court's judicial fiat conscripting the services of the appellant's mother without compensation violated the following sections of the Tennessee Constitution: (1) Article I, § 21, which provides no one's services or property shall be taken without her consent or compensation; and (2) Article I, § 33, which prohibits slavery.

In response to these arguments, the AG stated "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’s Brief, Arch. R., at p.17 of the brief]. The appellant sharply rejects the AG's innocuous characterization of the court's order of incarceration. The record in this case contains not one shred of evidence concerning any purported day care services the Tennessee Department of Human Services (DHS) would provide to the appellant free of charge. The appellant was denied federal DUE PROCESS to challenge and rebut such dubious hearsay that was adopted as a factual assumption by the trial court.

The trial court’s assumption about DHS-paid daycare service was illusory. At the time of the original contempt hearing, and the order signed Nov. 30, 2000, was entered nunc pro tunc for the hearing of Feb. 4, 1999, the appellant lived in a remote part of Lake City. The DHS provides no transportation services from what was then Gwen Knox’s home to any day care center (in Lake City, Clinton, or any other part of the state), and then returns to pick up these children and bring them home each day – all free of charge to the appellant. Without a means of transporting her children to and from the day care facility, any purported day care benefit offered by DHS was illusory and afforded the appellant no benefit.

The transcript of the hearing on Feb. 4, 1999, contains the following exchange between Gwen Knox and the trial court judge:

THE COURT: Were you trying to say that you were entitled to some kind of daycare supplement when you have a job?

THE WITNESS: Yes.

THE COURT: And what is that under?

THE WITNESS: DHS office.

[Transcript, p. 25]. By that testimony, Gwen Knox was attempting to say that if she was lucky enough to find a job, DHS would either supplement or pay for her child day care services while she worked. But the catch was that the employer and job had to be close to the day care facility (Douglas Cherokee), so that whoever was picking her up from her home and taking her to work (as well as the return trip) could drive by the day care center and allow Gwen to drop off and retrieve her children.

But the trial court and the state’s attorney twisted the appellant’s words and meaning to imply that no matter where she obtained employment – even if it was 15 miles in the opposite direction of the Douglas Cherokee daycare center – Gwen Knox had free day care services at her disposal. Obviously, without a car, it was impossible for Gwen Knox to get her children to day care each morning and retrieve them from day care each evening before 6 PM, unless she worked in the proximite vicinity of the day care center AND the person driving her did not mind the diversion to the day care center.

Furthermore, the trial court’s order stated that the appellant quit one job, because the employer shifted her schedule to the night shift. [Order, R. 21]. Certainly, no DHS “day care” or child care services are offered in the evenings and all night to enable indigent custodial parents, such as Gwen Knox, to accept positions working on a night shift.

When subjected to challenge and closer scrutiny, the trial court’s assertion of useful DHS child care benefits available to the appellant appears factually erroneous and ignores the preponderance of the evidence. DHS did not provide any service that the appellant was capable of utilizing given her lack of resources and non-ownership of an automobile. Therefore, the trial court’s only viable solution, by hook or by crook, for the day care of the appellant’s children was the appellant’s mother. The trial court sought to entangle the appellant’s mother improperly into this child support litigation and committed reversible error in the process.

VIII. THE TRIAL COURT ABUSED ITS DISCRETION BY SETTING AN EXCESSIVELY HIGH CHILD SUPPORT OBLIGATION FOR THE APPELLANT AND IN REFUSING TO MODIFY THE OBLIGATION DESPITE SIGNIFICANT CHANGES IN HER ECONOMIC CIRCUMSTANCES.

The trial court committed reversible error by repeatedly denying the appellant's request to modify her child support obligation despite significant changes in her economic circumstances, such as being discharged and remaining unemployed. [Order, Arch. R. 61-63; Order, Arch. R. 95; Order, R. 19-22]. The request to modify her child support obligation is contained in the appellant's original petition [Petition, Arch. R. 28-29], the oral testimony at the Feb. 4, 1999, hearing; the appellant’s second petition [Petition, Arch. R. 67-86], and the appellate briefs in this record [Appellant’s Brief and Reply Brief, Arch. R.] – all of which the trial court had at its disposal upon the mandated rehearing of the appellant’s petition to modify the orders [Pet., Arch. R. 67- 86] on Aug. 30, 2000.

In this case the state established that the lower court had previously determined the petitioner to have the ability to pay the purge amount. Petitioner responded by presenting a sworn affidavit that he had no money or assets and additionally testified that he had not earned income for the previous five months. The state's cross-examination of petitioner, although rich in sarcasm and disbelief, did not elicit any information which can be said to negate his repeated assertions that he had no income and no assets. We therefore conclude that the petitioner's unrebutted affidavit and sworn testimony were sufficient to establish his inability to pay the purge amount. In the absence of any additional evidence of an ability to pay the lower court was without authority to incarcerate him.

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

During the Feb. 4, 1999 hearing, the appellant reiterated the facts contained on her affidavit of indigency [Aff., Arch. R. 56-57], testified that she had a gross income of approximately $55 in unemployment compensation lasting only through the month of February 1999, excluding AFDC and food stamps. Neither the appellee Mickey Phillips nor the State of Tennessee produced any evidence to the contrary. Both appellees alleged that Ms. Knox was hiding income from unspecified part-time or temporary jobs. But upon cross examination, the appellees’ bald allegations were shown to be nothing more than idle speculation and inadmissible hearsay. No new testimony was introduced at the rehearing on Aug. 30, 2000.

The current Tennessee child support guidelines require that decisions to modify existing child support orders must be based on a comparison of the amount of the existing support obligation and the amount that the obligation would be if it were based on the obligor parent's current income. A modification must be made if the existing support obligation varies by fifteen percent or more from the amount that the obligation would be based on the obligor parent's current income. Tenn. Comp. R. & Regs. r. 1240-2-4-.02(3). In cases where the variance equals or exceeds fifteen percent, the guidelines permit trial courts to refuse to decrease child support in only two circumstances: (1) when the obligor parent is "willfully or voluntarily unemployed or under-employed" and (2) if the variance results from "a previous decision of a court to deviate from the guidelines and the circumstances which caused the deviation have not changed." Tenn. Comp. R. & Regs. r. 1240-2-4-.02(3).

Determining the amount of the noncustodial parent's income is the most important element of proof in a proceeding to set child support. An accurate determination of this income is necessary both when setting initial support and when considering requests for modification of an existing support obligation. The noncustodial parent's income is, in fact, doubly important in a modification proceeding, because the child support guidelines require the courts to examine the basis for the current support order and the noncustodial parent's current income.

The current child support guidelines require obligor parents with one child to support, to pay twenty-one percent of the "net income" as defined in the guidelines for child support. See Tenn. Comp. R. & Regs. r. 1240-2-4-.03(5) (1994). The net monthly income of a person earning $55 for four months of unemployment insurance would be $55 for the first four months and $0 thereafter. Thus an obligor parent's child support obligation for one child is 21% of $55 which equals approximately $11.55 for four months and $0 thereafter. This amount is much less than the appellant's current child support obligation of $225/month sanctioned by the trial court.

The mere fact that Ms. Knox's current child support exceeds the amount of support required by the guidelines does not necessarily mean that the trial court should have lowered Ms. Knox's monthly child support payments. Trial courts are required to modify child support obligations only when there is a "significant variance" between the amount of support required by the guidelines and the amount currently ordered. Tenn. Code Ann. § 36-5-101(a)(1). When the child support obligation exceeds $100 per month, the guidelines define a "significant variance" as one of at least fifteen percent. See Tenn. Comp. R. & Regs. r. 1240-2-4-.02(3).

Ms. Knox's current $225 per month child support obligation is more than fifteen percent higher than the amount she is required to pay under the current child support guidelines.[21] She is, therefore, entitled to a prospective reduction in her child support unless the current variance is the result of her voluntary unemployment or underemployment or is due to a previous decision to deviate from the guidelines. See Tenn. Comp. R. & Regs. r. 1240-2-4-.02(3). The record contains no evidence that Ms. Knox is now or was ever purposely underemployed or that the trial court ever had any evidence to support specific findings that Ms. Knox's child support should not be consistent with the amount required by the guidelines. Accordingly, on remand the trial court should either set Ms. Knox's child support in accordance with the guidelines or set out specifically in writing pursuant to Tenn. Code Ann. § 36-5-101(e)(1) the reasons why the application of the guidelines would be unjust or inappropriate in this case.

The record contains little information with regard to the basis of the trial court's Nov. 30, 2000, 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); Turner v. Turner, 919 S.W.2d 340, 343 (Tenn. Ct. App. 1995) (perm. to appeal denied Feb. 26, 1996).

The trial court's Nov. 30, 2000, decision with regard to child support could have been based on three alternative rationales. The first alternative is that a straight application of the guidelines would have yielded $225.00 based on the number of children to be supported and the evidence concerning Ms. Knox's income at the time. The second alternative is that the trial court could have found that Ms. Knox understated her income in 1997 and 1998 and 1999, therefore, concluded that her income was more than otherwise shown by the proof. The third alternative is that the trial court could have decided that the facts warranted deviating from the guidelines.

It is unlikely that the original amount of Ms. Knox's child support was based on the proof of her 1997 or 1998 income. Under the child support guidelines, Ms. Knox's monthly gross income would have to have been approximately $1,050 to justify requiring her to pay $225 per month to support one child. The Record shows that Ms. Knox filed an affidavit of indigency on July 9, 1998, showing her only income was AFDC and Food Stamps. [Aff., Arch. R. 37-39]. Similarly, she filed an affidavit of indigency on Dec. 17, 1998, which showed her only income was AFDC, Food Stamps, and $55 in unemployment for four months. [Aff., Arch. R. 56-57]. These uncontested affidavits prove the appellant's income in 1998 does not come close to $1,050/month in gross income.

With regard to the second alternative, the record contains no indication that the trial court based its decision on its belief that Ms. Knox had understated her income. The court in its order of November 30, 2000, criticized the appellant for not earning more income and maintaining employment. However, the court took no judicial notice of the fact that during 1999 - 2001, the appellant was enrolled in GED classes to earn a high school diploma. The court's findings do not produce one shred of evidence to support an opinion that Ms. Knox's actual income was more than she averred in her affidavits. It is not sufficient for the trial court to speculate on alternative sources of income; the trial court must have concrete evidence ) more than just the trial court's own misgivings and predilections, more than just hearsay offered by the opposing counsel ) if it chooses to assign another income level to the obligor parent.[22]

The third alternative is that the trial court could have decided to deviate from the child support guidelines. The record contains no findings by the trial court that applying the child support guidelines to Ms. Knox would have been inappropriate or unjust. Without these findings, the Court of Appeals can only conclude that the trial court did not decide to deviate from the guidelines.

The appellant hereby challenges the validity of the Nov. 30, 2000, child support order, and the previous orders that assigned a child support obligation of $225/month to the appellant. The appellant must have a means to challenge the trial court's finding that she was willfully underemployed or that the facts of the case required deviation from the guidelines. Otherwise, the appellant’s federal due process rights would be violated. The Court of Appeals hears these challenges de novo and is empowered, when necessary, to grant the parties the relief to which they are entitled under the applicable law and the facts of the case. See Tenn. R. App. P. 13(b), (d). The appellant is currently enrolled in GED classes full-time and has a legitimate reason for not being employed (including a lack of transportation to get to any employer). The present record contains sufficient evidence to enable the Court of Appeals to determine the amount of Ms. Knox's present income ($0/month) and, therefore, to determine whether a significant variance exists between the amount of her current child support obligation ($225/month) and the amount of support that would be required based on her present income ($0/month). The appellant filed an affidavit of indigency on Dec. 4, 2000 [Aff., R. 27-28], that shows her only income at present is AFDC and food stamps. Accordingly, the trial court’s denial of Ms. Knox's petition for modification in her child support obligation must be VACATED, and the trial court must be given SPECIFIC instruction to set a child support obligation consistent with the guidelines. If there is a significant variance, then the court should comply with Tenn. Comp. R. & Regs. r. 1240-2-4-.02(3), unless it makes a written finding to support deviating from the guidelines.

The AG claims that in the absence of evidence in the record to the contrary, "this Court must presume that, to the extent the juvenile court found that Ms. Knox hid income, the facts supported that decision." [Arch. R., Appellee’s Brief filed in 1999, at 17]. The appellant has three arguments in response. FIRST, the allegation arose from the appellee Mickey Phillips, who clearly has self-interest in getting more and more child support. Mr. Phillips is a person of questionable character and credibility, and he offered no proof that the appellant earned more income than what she claimed. Phillips and his counsel, the Child Support Enforcement Attorney, merely repeated hearsay and their own speculations.

SECOND, the record contains insufficient information as to the reasons the trial court continued 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); Turner v. Turner, 919 S.W.2d 340, 343 (Tenn. Ct. App. 1995), (perm. to appeal denied Feb. 26, 1996). 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 obligation from a woman with three small children at home, no means of transportation, and whose only income was AFDC and food stamps.

THIRD, the trial court has ratified and approved Gwen Knox's affidavits of indigency at four separate periods of time. [Aff., Arch. R. 37-39, Arch. R. 56-58, Arch. R. 96-97, R. 27-28]. The trial court never once entered any judicial finding that the information contained in the affidavits was inaccurate or that the court had evidence that the appellant hid income. The AG's claim at this late date that the appellant hid income sounds like retrospective rationalization of the court's invalid child support amount of $225/month for an impoverished parent.

IX. THE TRIAL COURT ABUSED ITS DISCRETION BY SETTING THE CHILD SUPPORT OBLIGATION TO CONTINUE AT THE SAME AMOUNT EVEN WHILE THE APPELLANT WAS INCARCERATED.

Furthermore, the trial court committed reversible error when it required the appellant to pay the same amount in child support while she was incarcerated as when she was free. The trial court and the AG contend that appellant's willful behavior led to her incarceration. But both the trial court and the AG have been confused (and remain confused) about what constitutes willful conduct in a CIVIL contempt hearing. No Tennessee precedent is directly on point. Therefore, the Court of Appeals should look to persuasive authority from another state. The Supreme Court of Alaska has recently decided this issue in the appellant's favor.

These considerations lead us to conclude that the superior court erred in refusing to modify Michael's child support payments on the sole ground that his incarceration is often a foreseeable consequence of criminal misconduct and all criminal acts are in some sense voluntary, non-custodial parents who engage in criminal misconduct seldom desire the enforced unemployment that accompanies incarceration; nor can they alter their situation; and, in stark contrast to parents who consciously choose to remain unemployed, jailed parents rarely have any job prospects or potential income. Equating incarceration to voluntary unemployment would require us to ignore these significant, real-life distinctions.

Bendixen v. Bendixen, 962 P 2d 170, __ (Alaska, Aug.7, 1998).

Unlike the Supreme Court of Alaska, the Anderson County Juvenile Court chose to ignore these significant, real-life distinctions. The trial court ordered Gwen Knox to pay the same amount in child support while she was incarcerated for up to 30 days as if she had been free to seek and obtain employment. Separately, as a matter of law, the trial court's order must vacated as it pertains to the child support obligation due by the appellant while she was incarcerated.

X. THE TRIAL COURT ABUSED ITS DISCRETION BY RELYING ON HEARSAY, INSTEAD OF PROOF OFFERED BY TESTIMONY OR EXHIBIT, DENIED THE APPELLANT HER DUE PROCESS RIGHT TO CHALLENGE THESE FACTUAL INACCURACIES, AND THEREBY THWARTED THE TENNESSEE RULES OF EVIDENCE.

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 preponder-ance of the evidence is otherwise." Id. The trial court incorporated inadmissible hearsay into its findings and final order. As a first example, the trial court stated in its order of Nov. 30, 2000, “Respondent . . . does not and has never had a drivers [sic] license.” [Order, R. 21]. While Judge Murch is to be commended for taking time to listen to the taped hearings in this matter and for reading the record in some detail, nevertheless he should not consider, or worse base his final order on, information obtained outside of the court proceedings. The fact that Gwen Knox has never had a driver’s license is contained nowhere in the record, nor was it ever stated in any oral testimony or argument. Apparently, Judge Murch contacted the local police department or the Tennessee Division of Motor Vehicles and obtained information about the appellant, Gwen Knox. Otherwise, how could he have known as of Nov. 30, 2000, that Gwen Knox still did not have a driver’s license or that she did not have one at the time of the contempt hearing in Feb. 4, 1999?

As a second example, Judge Murch wrote “Respondent has had at least 3 other jobs since being ordered to pay child support, one which [sic] (Allied) she never showed up for work.” [Order, R. 21]. The record in this case contains no testimony or other proof that Gwen Knox never showed up for work at Allied. In fact, Gwen Knox did show up and did work for Allied. The information about Allied is contained in the opposing counsel’s hearsay-riddled oral argument at the contempt hearing.[23] The appellant denies the truth of this factual finding. Furthermore, the appellant has a federal due process right in expecting the trial court to know the difference between hearsay and admissible evidence and to base its all-important final order on admissible evidence, not the biased hearsay of the opposing counsel.

The record in this case contains four affidavits of indigency signed by the appellant. [Aff., Arch. R. 37-39, Arch. R. 56-58, Arch. R. 96-97, R. 27-28]. Each of these affidavits indicates that the appellant owned no assets, in particular she owned no automobile which could transport her to and from work. Accordingly, the preponderance of the evidence in the record is that Gwen Knox had no means of transportation, reliable or otherwise, to get to work. The appellant was left in the position of having to beg for rides from friends and co-workers to get to her employers. The three judges on this review panel need only reflect a moment on how willing their own friends and co-workers would be to picking up the judges and driving them to work, and then picking them up at work and driving them home, Monday through Friday of each week. Obviously, those free rides would be a strain on any friendship, and no judge could expect these arrangements to persist.

As a third example of relying on hearsay, the final order states the appellant “willfully failed to maintain or seek a job(s) having voluntarily quit employment at least twice without sufficient reason to do so.” [Order, R. 21]. Factually, the appellant did not voluntarily quit those jobs; she involuntarily quit those jobs when she could no longer locate someone willing to drive her to work. The preponderance of the evidence in the record is that a person who owns no automobile would be dependent on the largesse of friends and co-workers to get to and from work. The absence of transportation to the employer, which can be reasonably inferred from the record, presents an entirely different picture of the appellant diligently pursuing work within her limited means, and yet being discharged or having to quit positions for a lack of transportation. One of the employers, Eagle Bend, was located 15 miles from the appellant’s home. The appellant had no one willing to drive her to work on a night shift and no one to care for her children at night. Due process of law, FEDERAL and state, requires the trial court to address the appellant’s lack of transportation to and from employment and to and from a day care or night care center in its order.

On remand, Judge Murch should be instructed to enter factual findings concerning the appellant’s means of transportation to get to and from these hypothetical employers, before he erroneously concludes that she willfully quit work without sufficient reason. He should, at a bare minimum, give the appellant the opportunity to rebut hearsay information that he learned about the appellant either from sources outside the court (police department) or from biased sources in court.

CONCLUSION

WHEREFORE, the appellant, Gwen Knox, prays for relief as follows:

1. That the Court of Appeals permanently enjoin, on a state-wide basis, the Attorney General of Tennessee and his agents in the Child Support Enforcement Offices for each county, from petitioning Tennessee trial courts to incarcerate indigent child support debtors who lack funds to pay child support in compliance with court orders.

2. That this case be remanded to the trial court with instructions 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.

3. That this case be remanded to the trial court with the instruction that the $1,000 paid by the appellant's mother to purge the appellant of contempt be refunded to appellant's mother.

4. That this case be remanded to the trial court with the specific instruction that the trial court's prior orders revoking the appellant's driver's license be vacated, and the appellant's ability to apply for and receive a driver's license be restored.

5. That this case be remanded to the trial court with specific instruction that the trial court lacks jurisdiction over the appellant’s mother, and the trial court cannot make any finding that the appellant’s mother is capable of providing child care services without compensation, and that the trial court must enter specific findings of how a party, who has no means of transportation, can utilize any day care benefits provided by the Tennessee Department of Children Services.

6. That this case be remanded with specific instruction to the trial court to set the appellant’s child support obligation to $0/month, based on her current earnings and enrolled student status, or enter findings that justify why the trial court is choosing to depart from the Tennessee child support guidelines. Furthermore, the trial court must conduct a hearing to adjust downward the arrearage owed by the appellant to reflect the trial court’s failure to apply the correct obligtion to the appellant from the time of its original support order. Furthermore, as a matter of law, the appellant’s child support was suspended during the period in which the trial court incarcerated her.

7. That this case be remanded with instructions to the trial court to conduct a hearing in which the appellant is given her due process right to rebut the hearsay discussed in Section X of this brief.

8. For declaratory and injunctive relief against the Anderson County Juvenile Court and the Child Support Enforcement Division, Department of Human Services, State of Tennessee.

9. That the court approve a fee award of $1,000 plus reimbursement of postage and copying charges, as allowed by statute, for the appellant’s counsel.

Respectfully submitted this 24th day of May, 2001.

___________________________________

Michael A. S. Guth, Ph.D., J.D.

Counsel for Appellant

BPR # 019093

116 Oklahoma Ave.

Oak Ridge, TN

37830-8604

Phone: (865) 483-8309

e-mail: mike@michaelguth.com

Certificate of Service

I certify that a copy of the appellant's revised brief was mailed to Stuart F. Wilson-Patton, Asst. Atty Gen, 2nd Floor, Cordell Hull Building, 425 Fifth Ave. North, Nashville, TN, 37243-0499 on this 24th day of May, 2001. He previously received a copy of the addendum of cases filed concurrently with this revised brief by service on April 6, 2001.

_____________________________

Dr. Michael A. S. Guth

[1]Judge Susano, in an opinion for the Court of Appeals filed on Feb. 25, 2000, incorrectly stated that this Petition to Vacate or Modify Order was filed back in 1998. The appellant’s archived brief had correctly advised the court that the petition was filed on Feb. 4, 1999.

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

[3]Gregory v. Rice, 727 So. 2d 251 (Fla. 1999); In re Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208 (Fla. 1998).

[4]Ex parte Rojo, 925 S.W.2d 654, ___ (Tex. 1996) (“We conclude that Rojo conclusively established his inability to pay the $19,500 arrearage and attorney's fees. His uncontradicted testimony demonstrates that he has no cash, savings or borrowing power, and that his earnings are very limited. While there is no direct evidence of the value of Rojo's 1986 van, we conclude that, under the circumstances of this case, this does not negate his inability-to-pay defense. The van is ten years old, and Rojo testified in general terms that he could not raise the money to pay the arrearage, which is corroborated by the fact that he has spent over eight months in custody, including six months after completing his criminal contempt sentence. See In re Dustman, 538 S.W.2d at 410 (duration of relator's incarceration is some corroboration of his uncontra-dicted testimony). Rojo's ex-wife argues that he should have sought a regular job that would have paid more than the meager sums he was netting with his duct-cleaning business. This factor, while possibly relevant to the criminal contempt sanction, see Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145, 147 (Tex. 1948), does not bear on the question of whether Rojo had the ability, when the trial court committed him, to purge himself of the civil contempt. For the foregoing reasons, we direct that relator be discharged from custody.”) (boldface added)

[5]In Re: Nichols, 749 So. 2d 68, (Miss. 1999).

[6]Lynch v. Lynch, 342 Md.509, 677 A.2d 584 (1996). A Maryland court may not incarcerate Gwen Knox for civil contempt unless she has the present ability to purge the contempt. Before incarceration is imposed, the contemnor must be provided with the opportunity to show that he or she is unable, rather than unwilling, at that time, to make the court_ordered payments. Again, the court may not incarcerate the civil contemnor "[u]ntil he [has been] given an opportunity to show that he had neither the estate nor the ability to pay his obligation and failed to make such a showing." Johnson v. Johnson, 241 Md. 416, 420, 216 A.2d 914, 917 (1966). See also Rutherford, 296 Md. at 357, 464 A.2d at 233 (holding that failure to comply with a support order in the past, even in bad faith, does not justify incarceration of a civil contemnor if he is presently unable to comply with the order) (boldface added); Soldano v. Soldano, 258 Md. 145, 146, 265 A.2d 263, 264 (1970) ("[I]mprisonment may be avoided by a showing that one has neither the money nor ability to pay."). Because the contemnor’s ability to comply is the key to the jail cell, without the present ability to pay, the contemnor holds no key to the jailhouse door. See Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla. 1985). If a defendant is unable pay a purge provision, no amount of time in prison will induce compliance.

[7]Sheehan v. Ryea, 757 A.2d 467, __ (Vt. 2000) (Indigent child support debtor ordered released from incarceration, because “the [trial] court failed to provide defendant with ‘a key to the jail,’ except to pay an amount of money.”)

[8]State ex rel. Britton v. Workman, 176 W. Va. 586, 346 S.E.2d 562 (1986 ) (civil contempt imprisonment for failing to make child support payments is improper where the parent obliged to make the payments is unable to pay the amount required to purge the contempt).

[9]Bendixen v. Bendixen, 962 P 2d 170 (Alaska 1998).

[10]Savage v. Ingram, 675 So. 2d 892, __ (Ala. Civ. App. 1996) ( "When a parent is ordered to pay child support and fails to do so, a lack of ability to pay a delinquent amount is a complete defense to a civil contempt proceeding regarding the delinquent child support." Carr v. Broyles, 652 So. 2d 299, 301 (Ala. Civ. App. 1994)(bold added)).

[11]“The record before us is devoid of any evidence that defendent has assets that can be used to satisfy the release amount ordered by the court. Indeed, the judge made no such finding, and, thus, violated the rule of Pierce v. Pierce, 122 N.J. Super. 359 (App. Div. 1973). The recent amendment to R. 1:10-3 makes "clear that enforcement by incarceration was never intended to create a so-called debtor's prison.” Pressler, Current N.J. Court Rules, comment R. 1:10-3.” News story from the Internet citing unidentified recent decision from the N.J. Appellate Division. Internet reference: http://personal.clt.bellsouth.net

[12]Indeed, even highly educated scientists and engineers laid off from government facilities in the appellant’s home county have frequently remained unemployed for long periods of time.

[13]Incarcerating the appellant only made matters worse, because it was impossible for her to seek employment or earn income while incarcerated. In addition, she was so shaken up from her jail experience that she was mentally unfit to work for weeks after her release.

[14] If the Tennessee state courts do not respect the appellant’s federal rights, this case may be removed to the federal district court, and this Sixth Circuit decision would be a respected and binding precedent on that U.S. district court.

[15] The gross income used to calculate the child support obligation must exclude any means-tested public assistance such as the $226 AFDC and the $400/month in food stamps found on Ms. Knox's affidavit of indigency dated 12-17-98. [Aff., Arch. R. 56-57]. Excluding those two items leaves just $55/month for two remaining months for measurable gross income at the time of the Feb. 4, 1999 contempt hearing. As shown on her June 3, 1999 Affidavit of Indigency, [Aff., Arch. R. 96-97], Ms. Knox no longer has even $55/month in unemployment compensation. Her present income consists solely of AFDC and Food Stamps.

[16] Of course, nothing in the court's order cured the facts that Ms. Knox lacks a high school education, has no means of transportation to and from work, has an unstable work history, and occasionally must take time off from work when her dependent children are ill. Furthermore, the trial court revoked her Tennessee license to drive an automobile. All of these factors would have a deleterious effect on Ms. Knox's chances for obtaining and retaining employment. Ignoring these factors in Ms. Knox's background, as the trial court did, led to a serious denial of due process.

[17] Justice Kennedy has explained how the latter two clauses might affect a modern court's interpretation of the unconstitutionality of debtor prisons.

One of the main purposes of the ban on excessive fines was to prevent the King from assessing unpayable fines to keep his enemies in debtor's prison. See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 267, 109 S.Ct. 2909, 2916, 106 L.Ed.2d 219 (1989); 4 W. Blackstone, Commentaries on the Laws of England 373 (1769) ("[C]orporal punishment, or a stated imprisonment, ... is better than an excessive fine, for that amounts to imprisonment for life. And this is the reason why fines in the king's court are frequently denominated ransoms ... .") Concern with imprisonment may explain why the Excessive Fines Clause is coupled with, and follows right after, the Excessive Bail Clause.

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

[18] Tennessee Code Annotated § 29_9_104 provides:

Omission to perform act. – (a) 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.

(b) The person or if same be a corporation, then such person or corporation can be separately fined, as authorized by law, for each day it is in contempt until it performs the act ordered by the court.

[19] The $226 in AFDC and $400 in food stamps monthly support is excluded from the calculation of gross income used to determine the child support obligation. Gross income excludes the following: "child support payments received by either parent for the benefit of other children; benefits received from means-tested public assistance programs otherwise exempt by federal law or regulation such as aid to families with dependent children (AFDC) and food stamps or Supplementary Security Income (SSI)." Tenn. Comp. R. & Regs., ch. 1240-2-4-03(3)(c); Richards, Tennessee Family Law § 10-7(c), "Obligor's Income," (1997).

[20] If the AG wanted to punish the appellant for being able-bodied and not employed, then it should have used criminal due process procedures: (1) the burden of proof would have been on the state to prove willful contempt, (2) the standard of proof would have been beyond a reasonable doubt, and (3) the appellant would have enjoyed a Fifth Amendment right against self-incriminating testimony, among other procedural rights.

[21] The calculation concerning whether a significant deviation exists must be based on the amount of the previously ordered support and the amount currently required by the guidelines. Turner v. Turner, 919 S.W.2d 340, 343 (Tenn. Ct. App. 1995), perm. to appeal denied Feb. 26, 1996. The difference between Ms. Knox's current child support obligation ($225/month) and the amount of support required by the guidelines (21% of $0/month = $0/month) is $225, and this amount clearly deviates from the amount of support required by the guidelines by more than 15%.

[22]Appellant believes the record in this case contains adequate information for the court to give her the relief she requests, namely a modification in her monthly child support obligation. In cases where the record indicates that more satisfactory proof can be presented, the Court of Appeals has invoked Tenn. Code Ann. § 27-3-128 (1980) to remand the case for more satisfactory evidence to enable the trial court to render a more appropriate decision. Haury and Smith Realty Co. v. Piccadilly Partners, I, 802 S.W.2d 612, 616 (Tenn. Ct. App. 1990).

[23]From the Transcript at 43: “THE COURT: Which (sic) those jobs are what? MS. ROGERS: Waffel House four months ago, she refused to work night shift and quit that job; Allied, one month ago, she didn’t show up so they fired her; she was fired from Mustang; she was – Burger King fired her because she was late to work. She’s had job after job after job, apparently has no skills to be hired on and to keep the job, but for the fact that she won’t go to the job or work the shifts they request that she does.”

Dr. MICHAEL A. S. GUTH Attorney at Law Ph.D. (Economics), J.D. Univ. of Tenn. Licensed in Tennessee since 1998 send e-mail (E-mail is quickest method of contact).Hours: Monday - Friday: 9:30 AM - 6 PM, Saturday & Sunday 1 PM - 6 PM. 116 Oklahoma Ave. Oak Ridge, TN 37830-8604 Phone: (865) 483-8309

Dr. MICHAEL A. S. GUTH
Attorney at Law
Ph.D. (Economics), J.D. Univ. of Tenn.
Licensed in Tennessee since 1998
send e-mail
(E-mail is quickest method of contact).
Hours: Monday - Friday: 9:30 AM - 6 PM,
Saturday & Sunday 1 PM - 6 PM.

116 Oklahoma Ave.
Oak Ridge, TN
37830-8604
Phone: (865) 483-8309