December 2011 Archives


Burden of Proving Wilfull Unemployment Falls on Party Making Such Claim

December 26, 2011 by The McKellar Law Firm, PLLC

In the case of In Re: Hannah M.N., No. E2010-00342-COA-R3-JV (Tenn. Ct. App. Dec. 2, 2011), the Magistrate for the Juvenile Court of Blount County, Tennessee, held that the child's father was willfully and voluntarily unemployed. Accordingly, the court imputed income to him in order to calculate his child support obligation. The Appellate Court vacated this decision and remanded for further adjudication, showing Tennessee family lawyers how the new standard for this determination works.

This case began by the State filing a petition to set child support on behalf of the Mother in 2008. At a hearing, Father stated he was unemployed but received money from his mother and sister. He also stated in 2007, he made $7.00 per hour and worked forty hours per week and in that in November of 2008 he earned $300 per week at a lawn care service. His testimony regarding employment in previous years included the following: he owned and sold a restaurant in 2005, earning between $8,000 and $10,000 in proceeds; and he worked as a casino manager earning $30.00 per hour. Father had no proof of income for the magistrate at the hearing, even though instructed to do so via the summons served upon him. However, Father did testify that he currently owned a private club where people played cards.

The magistrate imputed income to him of $50,000 per year and to Mother approximately $12,000 per year. Father hired counsel and filed a Tennessee Rules of Juvenile Procedure Rule 34(b) motion asking the court to vacate or modify his obligation, set at $627 per month. The magistrate refused to hear this, stating Father lacked credibility on the issue of how much income he earned from his private club. However, the magistrate did hear Mother's contempt petition against Father, and in his defense he testified that he made $320 per week at the club and his 2008 tax return showed $8,327 in gross income. He was found in contempt and ordered to pay a purge amount of $2,772. Father appealed to the Juvenile Court Judge, who found he had waived his right to a de novo hearing by previously filing his motion to modify or vacate and his appeal was dismissed. Father then appealed to the Court of Appeals.

The Appeals Court pointed out that willful unemployment is a question of fact and the court must consider education, training, ability to work, past and present employment, reasonableness of present job choice and good faith. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2.(iii). The Court stated that Father's lack of proof of income at the first hearing did not give magistrate grounds to impute income. Instead, the party alleging that the other parent is willfully or voluntarily underemployed or unemployed bears the burden of proof. Tenn. Comp. R. & Regs. 1240-2-4.04(3)(a)(2)(ii). Accordingly, the State (acting on behalf of the Mother) had to demonstrate the Father's willful under-or-un-employment. Therefore, the Appeals Court held that the record did not support such a finding against Father for imputed income of $50,000 per year. Therefore, the case is remanded to the Juvenile Court to determine his actual income. The judgment was vacated and the appeal costs were taxed to the State (ex rel. the Mother).


Tennessee Contempt Standard for Orders of Protection Explained

December 1, 2011 by The McKellar Law Firm, PLLC

The Tennessee Court of Appeals recently set out guidelines that Tennessee family law attorneys should note for when a person is to be held in criminal contempt for violating an Order of Protection ("OP") in Furlong v. Furlong, No. E2010-02456-COA-R3-CV.

In 2010, wife's amended OP against her husband allowed texting and email in addition to having husband fix the wife's car between 12:00p.m. and 7:00 p.m. on a specific day. On that day, husband did not arrive until 7:10 p.m. Husband saw wife and some friends in the driveway. He drove away without making physical or verbal contact except for a text asking if the car was already fixed.

Afterward, wife petitioned to hold husband in criminal contempt for violating the OP by driving by after 7:00 p.m. The trial court held husband did violate the Order, sentenced him to 10 days in jail, and extended the OP for 5 years pursuant to T.C.A. § 36-3-605(d). Husband appealed.
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A court has power to punish parties for civil or criminal contempt under T.C.A. § 16-1-103. While T.C.A. §§ 29-9-101 to -108 provides specific punishments, in this case the Appeals Court looked to T.C.A. § 36-3-610(a) which allows courts to punish anyone who violates an OP. To determine whether a party is in contempt, a court looks to 4 elements: (1) order violated was "lawful"; (2) order was clear, specific, and unambiguous; (3) the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order; and (4) the person's violation must be "willful." The elements can also be found in T.C.A. § 29-9-102(3). Lastly, an appellate court will only reverse an order of criminal contempt when, under Tenn. R. App. P. 13(e), the evidence is insufficient to support the trier-of-fact's finding of contempt beyond a reasonable doubt.

The appellate court looked only to the last 2 elements here, namely whether the order was ambiguous and whether the husband's violation was willful. Both elements failed. While the wife argued the husband was supposed to complete the car repair between the times stipulated, the appellate court believed the order could also have been interpreted to mean that husband only had to start the repair between those times. Further, the appellate court concluded no reasonable person in husband's position would have expected to be thrown in jail for simply driving on a public road ten minutes after he had been ordered to be in the driveway. The court also concluded that there was no evidence to prove the husband violated the order willfully. That would have involved proving the husband acted with bad purpose. There was no evidence to show that husband drove by the house to harass or irritate the wife instead of repairing the vehicle. The appellate court consequently reversed the trial court's ruling in its entirety.

Even though wife lost the appeal, husband was not entitled to attorney fees. Under T.C.A. § 36-3-617(a), an abuser, sexual offender, stalker, etc. are only entitled to fees when the petitioner (the wife) knew the allegations were false at the time the petition was filed. Since no evidence to support that existed here, husband was denied attorney fees.