In the case titled Patton v. Patton, No. M2012-02747-COA-R3-CV, Slip Copy, 2013 WL 5434668 (Tenn. Ct. App. Sept. 25, 2013) Tennessee family law attorneys learn how a bank document must be authenticated to qualify as a business record exemption in regards to hearsay rules; what is needed to prove criminal contempt in regards to non-payment of pendente lite support in a divorce matter; and when the court is required to set bond in regards to detaining an individual for criminal contempt.
Husband and Wife filed for divorce, and an agreed order was entered ordering Husband to pay $1,000 per month in pendente lite support. However, Husband never made these payments. Wife filed a Petition for Contempt and a hearing was set for the same day as the divorce.
At the hearing for the contempt, Wife was the only witness to testify. She stated that she never received any pendente lite support payments from Husband. Wife's attorney showed her documents garnered via discovery that included a tax return and photo copy of what was purported to be Husband's bank statement. Husband's attorney objected to the bank statement being entered into evidence; however, the court overruled the objection. Wife did not provide any information to authenticate the documents, and, while Husband was at the hearing, he did not testify.
The court found Husband to be in contempt for failure to remit five pendente lite support payments. Husband was sentenced to ten days for each count. However, the court stayed all but fifteen days of jail time. The court then ordered Husband detained during a lunch recess, and advised they would hold the divorce hearing after the break. During the lunch recess, Husband's attorney filed a notice of appeal from the findings of the court on the contempt hearing. Upon returning from the lunch break, Husband was brought back into court, and the hearing for the divorce was held. Wife was granted the divorce, the court acknowledged that Husband's counsel filed the notice of appeal for the contempt and granted a stay of the sentence pending the appeal.
On appeal, Husband raised three issues. He averred the trial court erred in allowing the bank statements into evidence without being properly authenticated, in finding Husband in criminal contempt, and in detaining Husband in a holding cell following the finding of the criminal contempt without immediately setting bond.
According to Tennessee Rules of Evidence 803(b) or 901, "[t]he determination of whether a hearsay statement is admissible through an exception to the hearsay rule is left to the sound discretion of the court." State v. Stout, 46 S.W.3d 689, 697 (2001) states that an appellate court "will not reverse the ruling of the trial court absent a showing that this discretion has been abused."
Tennessee Rules of Evidence 803(6) sets the standard regarding hearsay exceptions involving "records of regularly conducted activity. It mandates that business records may be submitted into evidence when properly authenticated and the document(s) otherwise satisfy the other rules of evidence. Tennessee courts have recognized five criteria that must be satisfied in order for documents to be admissible under the business records exception. They are as follows:
1. The document must be made at or near the time of the event recorded;
2. The person providing the information in the document must have firsthand knowledge of the recorded events or facts;
3. The person providing the information in the document must be under a business duty to record or transmit the information;
4. The business involved must have a regular practice of making such documents; and
5. The manner in which the information was provided or the document was prepared must not indicate that the document lacks trustworthiness.
Simpkins v. Simpkins, 374 S.W.3d 413, 419 (Tenn Ct. App. 2012) (quoting Neil P. Cohen, Sarah Y. Sheppard, Donald F. Paine, Tennessee Law of Evidence § 8.11(10) (6th ed.2011)). Further, "[a] business record may be authenticated by either providing the testimony of a qualified person or by using a certification process either in compliance with Tennessee Rule of Evidence 902(11) or a statue authorizing such certification." Id.
In the case at bar, the disputed bank document was a statement from Regions Bank for one month titled "Transactions," but it did not have the account holder's name on the document. The appellate court reviewed Wife's testimony at the contempt hearing and found that her testimony was insufficient to authenticate the document. This coupled with no identifying markers on the document to designate that it belonged to Husband led the appellate court to determine that the trial court erred in allowing the statement into evidence.
In regards to the criminal contempt, once a person is held in criminal contempt the presumption of innocence is no longer in effect. Therefore, on appeal, the court had to determine, when considering the evidence in a light most favorable to the prosecution, any trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
In this case, the appellate court found Wife's testimony established that Husband failed to pay the pendente lite support obligation. However, Wife also had to establish that Husband had the ability to pay said support and that his failure to do so was willful. Due to the bank statement being deemed inadmissible and Husband's tax return showing an income of $8,138, the appellate court found that no trier of fact would find beyond a reasonable doubt that Husband had the ability to pay $1,000 per month in pendente lite support to Wife. The trial court's decision was reversed.
As far as no bond being set, the appellate court found that the issue was moot as the court could offer no meaningful relief. However, it pointed out that Husband's attorney did not request or bring up the issue of the bond with the trial court and, therefore, could not be heard on appeal.