### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Ass ig ne d o n B rie fs Apri l 2 8, 2 00 9

STATE OF TENNESS EE, E X R E L 

### ., JANICE L. BANE v . WI LLI AM E. JARVI S

Appeal f rom the Circ uit Court for Davidson County No. 93-D- 4205 Muriel Robinson , Judge

No. M2008- 01428-COA-R 3-CV - F iled Jul y 24, 2009

Fa ther appea ls order finding him in contempt of court and sentenc ing him to a total o f 1 8 0 day s incar cer ation. Finding no err or, we aff irm.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

R I C H A R D H. D I N K I N S , J ., delivere d the opi nion of t he court, in which P A T R I C I A J

. C O T T R E L L , P.J
., M.S., and F R A N K G. C L E M E N T , J R ., J . joined.

Wil liam E. J arvis, He ndersonville, TN, Pro Se.

Robert E. Cooper, J r., Attorney Genera l and Reporter
, and Warren A. J asper , Senior Counsel, Nashville, Tenne ssee, f

or the a ppellee, State of

Tenne ssee e x rel., Janice L . Ba ne.

MEMORAN DUM OP INION 1

This appea l arises out of a finding that Wil liam J arvis was in wilful contempt of the Four th Circuit Court for Davidson County by virtue of his f ailure to pa

y child support in acc ordanc e with the order s of the court and his sentenc e to 180 day s in jail. The proce eding g iving rise to the finding of contempt was the fifth such proce eding instit uted ag ainst Mr. J arvis, who was d i v o rced from J anice Ba ne in 1995. Mr. J arvis was desig nated as the al t er n at i ve residential pare nt of t heir child

T e n n

. R

. C t

. A p p

. 1 0 s t a t e s : 1

T h i s C o u r t , w i t h t h e c o n c u r r e n c e o f a l l j u d g e s p a r t i c i p a t i n g i n t h e c a s e , m a y a f f i r m , r e v e r s e o r m o d i f

y t h e a c t i o n s o f t h e t r i a l c o u r t b y m e m o r a n d u m o p i n i o n w h e n a f o r m a l o p i n i o n w o u l d h a v e n o p r e c e d e n t i a l v a l u e

. W h e n a c a s e i s d e c i d e d b y m e m o r a n d u m o p i n i o n i t s h a l l b e d e s i g n a t e d

“ M E M O R A N D U M O P I N I O N
, ” s h a l l n o t b e p u b l i s h e d
, a n d s h a l l n o t b e c i t e d o r r e l i e d o n f o r a n y

r e a s o n i n a n y u n r e l a t e d c a s e

.and, at the time of the contempt proce eding
, was under an obliga tion to pay child support bi-monthly

in the amount of $180.00 and to provide medical insura nce f or the c hild.

The Petition for Contempt, amende d as of the day of the hear ing, alleg ed that Mr. J arvis was in arr ear s as of J une 5, 2008 in the amount of $10,327.85 and soug ht, inter alia, a judgme nt in that
amount and a finding that M r. J arvis be found in criminal contempt and sentenc ed to ten day s’ incar cer ation for each finding of contempt, not to exceed six m o n t h s

. Upon findi ng Mr. J arvis to be indig ent, the trial c ourt appointed c ounsel to repr esent him.

Trial of the petition was held on J une 5, 2008. Proof at the trial included testimony that Mr. J arvis held a Maters Deg ree and was cer tified to teac h colleg e and/or private high school; that he was then employ ed tea ching music and with the Tenne ssee Protec tion Age ncy ; that he had pa id a total of $12,192.165 in child support since being cited for contempt in 2004, including a total of $720.00 in 2007 and $63.00 in 2008. The court found Mr. J arvis in contempt on 18 occa sions, sentenc ed 2 him to ten day s’ imprisonment for eac h finding of contempt, to be serve d on wee kends and enter ed judgme nt for the a

rre ars in child support of $10,327.85.

Mr. J arvis appe als, raising the following issues:

1. Whether being a poor and unemploy ed person that [si c] is unable to pay chil d support pay

ments on time constitute ‘Criminal Cont empt’? 2. Whether the 180 day s in jail [constit utes] crue l and unusual punishment for being unemploy ed and poor

for r easons that a

re be y ond my

power s? 3. Whether my level of education with a Mas ters Deg ree and inability to obtain employ ment to meet the child support pay ments [are] consider ed t o be ‘Criminal Contempt’? 4. Whether the 180 day s jail sentenc e is a disproportional [si c] sentenc e for a char g e that fails to comply

with Rule 42 of Tenne ssee Rules of Criminal Proce dure.

The Tenne ssee Gene ral Assembly has empower ed the courts of this state to infl i ct punishments for contempts of court. Konvalinka v. Chattanooga-Hamilton County Hosp. A u th

. , 249 S.W .3d 346, 354 (Tenn. 2008). One of the s tatutory provisions enac ted by the L eg islature allows a cha rg e of c ontempt for the “willful disobedience or resistanc e of a ny office r of the suc h courts, .

. . to any lawful

. . . order
, . . . or command o f such courts.” Tenn. Code Ann. § 29-9-102( 3). Criminal contempt convictions are punitive in char acte r. Thigpen v. T higpen
, 874 S

. W

. 2d 51, 53 (Tenn. Ct. App. 1993). The primary purpose of a cr iminal contempt conviction is to vindi cate the court’s authority

. Id

. (citing Gunn v. Southern Be ll Tel. & Tel. Co. , 296 S.W .2d 843, 844 (1956); Garrett v. Forest L a wn Mem orial Gardens
, 588 S.W .2d 309, 315 (Tenn. Ct. App. 1979)). Whil e criminal conte mpts may

arise in the course of private civil litigation, s uch procee dings, “in a ver y true sense raise an issue betwee n the public and the acc used.” Daugherty
, 191 S.W

. at 974. I n the

T h e s e f a c t s a r e t a k e n f

r o m t h e S t a t e m e n t o f t h e E v i d e n c e

. 2

-2-trial of a criminal contempt case , there fore
, g uilt of the acc used must be established by proof bey ond

a re asonable doubt. Robinson , 377 S.W .2d at 912.

The rec ord in this case is clea r bey ond a rea sonable doubt that Mr. J arvis has failed to comply with the court’s order that he pay child support and provide insurance cover ag e for his child; indeed, he contests neither the fac t of his non-pay ment nor the amount of the arr ear ag e. The court found him
to be under- employ ed, very educated and capa ble of keeping curr ent in the modest child support pay ments, fi n d i n gs t h at are fully supported in the rec ord. To the extent Mr. J arvis’ employ ment condition and financ ial state may justify relief from the court’s order
, he has not soug ht same. The court’s f inding of contempt is aff

irmed.

The imposit ion of ten day s’ imprisonment for ea ch fi nding of contempt is specific ally authorized by Tenn. Code Ann. § 29-9-103 and, co n t ra ry t o Mr. J arvis’ arg ument, is not disproportionate to the offe nse. This was the fifth proce eding to compel Mr. J arvis to comply with the court’s order s; eac h prior proce eding had resulted in his pay ment of the arr ear ag e on or near the date of the hea ring

. The judg ment of the trial c ourt is AFF I RMED in all respec ts.

Costs of this appea l are taxed ag ainst Wil liam E. J arvis for which ex ec ution may issue if

nece ssary

.

___________________________________ RI CHARD H. DI

NKI NS, J UDGE

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