# FILED September 11, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) DOROTHY JANE AHERN ( PIEROTTI) ) Shelby County Circuit Court ) No. 134593 R.D. Plaintiff/Appellee. ) ) VS. ) C.A. No. 02A01-9708-CV-00190 ) ROBERT FRANCES AHERN , ) ) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable D’Army Bailey, Judge
John R. Candy , Collierville, Tennessee Garland Erguden , Memphis, Tennessee Attorneys f

or Defendant/Ap

pellant. Robert A. Wampler , Memphis, Tennessee Attorney for Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED IN P

ART, REVERSED IN PA RT AND REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)Defendant Robert Francis Ahern

( the Husband) appeals the trial court’s judgment finding the Husband guilt y of multiple c

ounts of criminal c

ontempt for fail

ing to pay the alimony andchild support obligations set forth in the court’s final divorce decree. We af firm i n part and reverse in part

the trial court’s

judgment.

I. Factual and Proced

ural History

The parties were div

orced in June 1993. T

he final d ivorce decree, w hich incorporated the provisions of the parties’ marital dissolution agreement (MDA), awarded Pla intiff/Appellee Dorothy Jane Ahern Pierotti (the Wife) exclusive custody of the parties’ two minor children. The Husbandagreed to pay

child support in the

amount of $1,346.88

per month

and to furnish the Wife copies of h is c ance led payro ll c heck s an d pa yr oll ledger on a quarterly basis. The Husban

d also agreed to pay 88.5% of (1) the childr en’s private

school tuition, books, and registration and (2) the children’s “uninsured health related care costs.” Per the MDA, the final divorce decree required the Husband to pay

various amounts

to t he W ife as al imo ny in solido , including but not limited to the following amount:

14. The husband shall pay the wife the sum of $32,500 as alimony in solido for her support and maintenanc e. This same shall incur interest at 8% simple annua l in terest compounded annually. The payments shall be a t t he rate of $1000 per month, principal and interest beginning on the LAST day of MARCH , 1993, and on the samedate thereafter until paid. This sum shall not be deductible for tax purposes by

the husband nor inc

ludible in the wife ’s income for tax purposes. Int

erest begins on

3/9/93. This

judgment shall also be agai nst M.S .I. j oin tly a nd s ever all y. No prep ayme nt p enal ty.

M.S. I. referred to Ma

nagement Sy

stems, Incorp

orated. The Husb

and owned all

of M.S.I.’s stock and served as its pre

sident.

In November 1996, the Wife filed a petition for writ of scire facias in which she sought to have the Husband held in c ontempt for his willful and intentional violations of the foregoingsupport

provisions of the final divorce decree. The petition alleged that the Husband had fileda bankruptcy petition in which he sought to discharge the alimony debt to the Wife butthat the debt was determine d to b e nondischargeable. The Wife later amended her petition to ask that theHusbandbe held in both civil and criminal contempt, and she filed a notice that she was seeking to have the Husband held in contempt pursuant to Tennessee CodeAnnotated sections 16-1-103 and 29-9-101 through 29-9-104.

The Husband filed an answer in which he asserted that many of the described debts to the Wife had been discharged at the conclusion of his bankruptcy action. The Wife responded by again amending her petition, this time to ask the trial c ourt to make a determination as to the dischargeabi

lity of the debts pursuant to anorder of the Bankruptcy Court for the Western District of Tennessee; however, the bankruptcy court’s orde r does not appear in the record.

Prior to trial, the case was transferred from Division 8 to Division 5 of the Circuit Courtfor the Thirtieth Jud icial District.Although the Husband previously had demanded a jury trial, he announced that hewould waive his right to a jury trial if Division 5 would accept the transfer of the case and conduct a trial on all of the issues pending in this litigation. Thereafter, the Division 5 trial judge proceeded to conduct a bench trial on the Wife’s contempt petition. Partway through the trial, however, the trial judge, apparently sua sponte , announced that s he was transfer

ring the case back to Division 8. T

he trial judge a

nnounced that:

This Court is of the o pini on that post-divorc e matters, espec

ially in a situation such as th

is one, are moreproperly heard by the judg e who heard the divorce, and this -- and Division 5 is transferring this back to Division 8, which is

now in a posture to a

ccommodate

the parties.

The transfer fol lowed arguments by counsel for the parties concer ning the need to interpret the provisions of the MDA in order to determine the dischargeability of the debts to the Wife.

Neither party objected to the tran sfer back to Division 8. When th e proceedings resumedin Division 8, however, the Husband contended that jeopardy had attached in the trial beforeDivision 5 and that double jeopardy principles prevented his retrial in Division 8. The trial court rejected this argument, ruling that the Husband had waived his double jeopardy argument by failing to raise an objection in Division 5. The Husband then renewed his demand for a jury t

rial, but the trial court ruled that this right also had been waived.At trial, the Wife testified that the Husband had faile d to make alimony payments as required by paragraph 14 o

f the MDA. At the time of the Wife’s petition, the Husband owed the Wi fe $28,271.46 in alimon y. The Wife a

lso testified that th

e Husband owed $1 3,828.12 for th e children’s private school tuition because he had not paid his share of the tuition for four consecutive school years. Finally, the Husband f ailed to pay $3,758.41 for the parties’ son’s braces.

The Husband admitted tha t he had no t paid the amounts alleged to be owed to the Wife. The Husband claimed, however, that he was unable to pay the am

ounts, despite

the fact that his adjusted gross income for each of the two previous year s exceeded $80,000. Since the divorce, the Husband had rema

rried a woman wit

h three children

, and he and his new

wife had a child to gether. The Husband clai med that most of his in

come went toward

paying ch

ild su pport to th e Wife and toward

supporting his new family, including an $1100 mortgage pa yment and

clothing and groceries for

his new wife and four children. Although the Husband claimed that he was unable

to pay the amounts allegedly owed, he acknowledged tha t in 1996 he purchased a new home valued at approximately

$165,000 and that in

1994 or 1995 he pai

d about $5,000 to set

tle a batte ry clai m against him. The Husband denied t hatany amount due for the son’s braces constituted a “healthrelated carecost,” and he sta

ted that the Wife ne

ver had request

ed reimbursemen

t for this amount.

As for his alimony obligation to the Wife, the Husband attempted to testify

that he failed to pay these amounts because he believed the debt was discharg ed in his ban kruptc y proceeding. The trial court r epeatedly sustained the Wife’s objections to this testimony, however, ruling that such testimony was irrelevant. As an offer of

proof, the Husban

d submitted documen

ts from the bankruptcy court which showed (1) tha t the H usband filed his ba nkruptcy pe

tition in Oc tober1993, (2 ) that the Wife filed a proof of claim in the amount of $72,481.95, (3) that the Wife’s claim was treated as a general, unsecured claim, (4) that the Wife received a net distribution of $13,643, and (5) that the Husband r eceived a disch

arge as to all di

schargeable

debts. The Wife’s proof of claim was somew

hat confusing in

that it seemed to ch

aracterize the d

ebt both as a “pro

perty division” and as spousal “support and maintenance.”

At t he trial’s conclusion, the trial court found beyond a reasonable doubt that the Husbandwas guilty of criminal contempt, pur suant to Tennessee Code Annotated section29-9-102(3), for failing to pay the alimony and c hild support obligations set forth in the final divorce decree. The tr

ial court made the

following finding

s and imposed the fo

llowing sentenc

es:

2. That

[the Husband] is in arrears through Decembe r 31, 1997, in the p ay ment of the Court or dered alimony

to [the Wife] in the amount of $28,271.46 which was payable at the rate of $1,000.00 per month. The Court dee ms that each monthly default by [the Husband] is a separate act of criminal contempt

and [the Husband] is sent enced to incarceration for five (5) days for eac h of the twe nty
eight (28) counts of criminal contempt for a total of one hundred and [forty] (140) days incarceration. 3. The Court further finds that [the Husband] is in arrears in the payment

of the Court ordered child support to [the Wife] which includes unpaid school tuition in the amount of $13,828.1 2 through May 1997 and unpaid uninsured health related care c osts for the children in the amount

of $3,758. 48 through November 1996 and the Courtfinds [the Husband] in crimin al contempt for this default and sentences [the Husba n d] to one hundred and eighty days inca rceration for this default, howe

ver this sentence will run concurrently with the senten ce of one hundred fo rty day s incarceratio

n as set forth in paragraph two (2) of this order.
The trial court also awarded the Wife money judgments for the amounts due.

On appeal from the trial court’s judgment of contempt, the Husband contends that the trial court erred in r

ejecting the Hu

sband’s defense

of double jeopardy, in finding that the Husband waivedhis right to a jury

trial, and in

excludin g proof of the Husband’s p rior bankru ptcy proceedin g.

II. Denial of Husband’

s Double Jeopardy Cl

aim

We first find it necessary to addres s the Husband’s double jeopardy argument because, if his argument on this issue is successful, it will effec tivel y pretermit the Husband’s remaining issues on appeal. The double jeopardy clause of the United States Constitution provides t hat no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Tennessee Constitution similarly provides that “no person shall, for the
sameoffence, be twice put in jeopardy of life or limb.” Te

nn. Const. art. I

, § 10. The double jeopardy clauses of the Un

ited States and Ten

nessee constit

utions pro tect against “(1) a second prosecution for the same offense after conviction, (2)a second prosecution for the same offense after1 A manifest necessity exists “only when there is no fea sible and just alternative to halting the proceedings.” State v. Mounce , 859 S.W.2d at 322. We a re unable to disce

rn any nec

essity for the Division 5 judge’s decision to transfer this case back to Division 8. an acquittal and, (3) multiple punishments for the same offense.” State v. Mounce , 859 S.W.2d 319, 321 (Tenn. 1993). In short, a double jeopardy violation arises “when an individual is twice placed in jeopardy for the same offense.” State v. Pennington , 952 S.W.2d 420, 422 (Tenn. 1997)

Our supreme court has recognized that this constitutional protection against double jeopardy attaches to nonsummary criminal contempt procee

dings just as it

attaches to other criminal prosecutions. State v. Winningham , 958 S.W.2d 740, 743 n.4 (Tenn. 1997). Moreover, the court has indicated that, in nonjury proceedings, “jeopardy attaches when the first witness testifies.” State v. Pennington , 952 S.W.2d at 422. Accordingly, a cursory review of the record in t

his case would suggest that the protection against double jeopardy attached beca use the case involved nonsummary

criminal contemp

t proceedin

gs and because the first witness, the Wife, already had testified when the trial judge in Division 5 transferred the case back to Division 8.

Nevertheless,

we reject the Husband’s claim of a double jeopard

y violation be

cause
we conclude that he waived this defense by failing to object to the Division 5 judge’s transfer of the
case back to Div ision 8. C ourts have r ecognized an exception to the proh ibition a ga inst double jeopardy when the

defendant conse

nts to the terminatio

n of the first

proceeding in which jeopardy attaches. State v. Mounce , 859 S.W.2d 319, 321 (Tenn. 1993) (citing United States v. Scot t , 437 U.S. 82 (1978); State v. Knight , 6 16 S.W.2d 593 (Tenn.), cert. denied , 454 U.S. 1097 (1981); Seibert v. State , 542 S.W.2d 381 (Tenn. Crim. App. 1976)). Once jeopardy attaches, the accused has the right,absent a manifes t necessity

for a mistrial, 1 to insist that the case proceed to a conclusion
on the merits. State v. Knight , 616 S.W.2d at 597. By failing to object to an unnecessary

mistrial, “the accused has deliberately elected to forego his right to have guilt or innocence determined by the first trier of fact.” Id . at 596.

In State v. Mounce , oursupreme court held that double jeopardy will not bar a subsequent

prosecution “when a defendant chooses not to ob jec t to the mistrial and give the trial court an opportunity to correct the error” because, in that situation, the defenda nt’s consent may beinferred. State v. Mounce , 859 S.W. 2d at 323. T he court ex plained it s rational e for this h olding:
[T]he rationale

for requiring an objection to a mistake is that it gives the tr ial judge an oppo

rtunity to cu

re a situation that

one or both parties perceive to be in error. A party ought not be p erm itted to stand silently by

while the trial court co

mmits an error in

procedure, and then later re

ly on that error whe

n it is to his advantage to do so. This is why there

is precedent dating back to the last century holding that if an accused fai ls to object to the jury’s discharge upon a defec tive verdict, he is vie wed as having wa

ived the right not

t o b e puton trial again. State v. Ragsdale , 78 Tenn. 671, 672 (188 2); see also , Waddle v. State , 112 Tenn. 556, 82 S.W. 827 (1904) (absence of an objection to the discharge of the jury equates to a wa iver).

State v. Mounce , 859 S.W.2d at 323.

We conclude that the

foregoing ra

tionale applies to t

he facts of this

case and, thus, that the Husband has waived his double jeopardy claim. When the Division 5 trial judge announced, apparently sua sponte , that she was transferring these contempt proceedings ba

ck to Division 8, the Husbandchose to remain si lent at a ti

me when he could have objected to the action taken by the judge. Und er these circumstances, the Husband’s consent to the procedure employed c ould be inferred, and double

jeopardy did not bar

the subsequent criminal contempt proceeding conducted in Division 8. State v. Mounce , 859 S.W.2d at 322-23.

When t he proce edings resumed in Division 8, the Husband suggested that the Division 5 trial judge did not give him the opportunity to make a timely objec tion to the transfer; however, our review of the record does not support such a suggestion. The follow ing exchange took place when th e Division 5 trial jud ge announced t

hat she was trans

ferring the ca

se back to Division 8:

THE COURT: This Courtis of the opinion that post-divorce

matters, especially in a

situation such as this one, are mo re properly heard by the judge who hear

d the divorce, an

d this -- and Division 5 is tra nsferring this back to Division 8, which is now in a p

osture to accommodate the

parties. [WIF E’S COU NSE L]: Y ou m ean t oda y? THE COURT: I mean i mmediately.

I mean righ

t this moment.2 This holding is consistent with rule 23 of the Tennessee Rules of Criminal Procedure,

which provides tha

t, “[i]n all criminal c

ases except small of

fenses, trial sha

ll be by jury

unless the defendant waives a jury trial in writing with the approval of the cour t and the consent of the district attorney general.” Tenn. R. Crim. P. 23. In Te nnessee, the term “small offense” traditionally has been defined “as one in which the punishment cannot exceed a fine of $50.00 and which carries no confinement in a jail or workhouse.” Brown v. Latham , 914 S.W.2d 887,

[WIFE’S COUNSEL]: Okay. Thank y ou, Your Honor. THE COURT: Hand me the jacket, please.

This exchange reveals that the Wife’s counsel had time to ask the trial judge two,albeit brief, questio ns concerning its transfer of the case back to Division 8. Under these circumstances, the Husband’s counsel at least could have registered a brief objection to the trial judge’s ac tion.
III. Denial of Husband’s Demand for Jury Trial
Having concluded that the Husband waived the defense

of double jeopardy , we next must address the contention that the trial court erred in den ying the Husband’s demand for a jury trial. As an initial matter, we reject the trial court’s finding, and the Wife’s argument on appeal, that the Husband effectively waived his demand for a jury trial. Any such waiver by the Husband w as conditioned on a trial being co nducted on all

of the issues in Division 5. After the Division 5 trial judge sua sponte transferred the case back to

Division 8, the Husband timely renewed his demand for a jury trial.

Nevertheless,

we affirm the trial court on this issue because w e conclude that the Husbanddid not have a rig ht to a jury trial in these criminal contempt proceedings. The Tennessee Constitution provides that “the right of tr

ial by jury shall remain inviol

ate.” Tenn. Const

. art. I, § 6. This constitutional provision “preserves the right of trial by jury as that right existed at common law insofar as that law had been adopted and was in force in North Carolina when the territory embrace d in Tennessee was ceded by North Carolina to the United States government.” State v. Dusina , 764 S.W.2d 766, 768 (Tenn. 198 9). Applying

this provision, our supreme court has held that a defendant accusedof a violation of a general crimi

nal statute has the

right to a jury

trial if the poss

ibl e punishmentf

or the of fense includes a fine of more than $50.00 or any confinement. Id .; see also Willard v. State , 130 S.W.2d 99, 100 (Tenn. 1939). 2889 (Tenn. 1996). Although the punishment for criminal contempt may include the confinement of the accused, the supreme court and this court have held that no right to a jury trial exists in criminal contempt proceedings. Taylor Implement Mfg. Co. v. United Steelworke rs , 410 S.W.2d 881, 884 (Tenn. 1966), rev’d

on other grounds

sub nom. , Dyke v. Taylor Implement Mfg. Co. , 391 U.S. 216 (1968); Pass v. State , 184 S.W .2d 1, 3 (Tenn . 1944); Robinson v. Gaines , 725 S.W.2d 692, 694 (Tenn. Crim. App. 1986), overruled on other gr ounds by State

v. Dusina , 764 S.W.2d 766 (Tenn. 1989). In holding that no such right exists, the supreme court explained:

“The general

ruleis that a constitutional guaranty of jury trial does not apply to proceedings to punish for contempt of court whether in a cou rt of

law, a court of equity, a court having criminal jurisdiction, or other court. Punishment for contempt may be summary whether the cont

empt is direct or in

direct, civil or c

riminal, whether the contempt

consis ts in disobedience of an order of the court, ins ul t, or in other condu ct or omission, whet

her the acts constituting the contempt const itute also infrac

tions of the criminal law, although of the grade of felony and whe ther impri sonment or fine is imposed or indemnity of an advers e party is decreed. Due pr ocess does not require a jury trial in such a proceeding.” 31 A m . Jur., sec. 31, p. 579; District of Columbia v. Colts , 282 U.S. 63, 51 S. Ct. 52, 75 L. Ed . 177, 185; In re Debs , 158 U.S. 564, 565, 15 S. Ct. 900, 39 L. Ed. 1092.
“* * * For while it (

the power t o punish for conte mpt) is sparingly to be used, yet the power of courts to punish for

contempts is a necessary

and integral part of the independence of the jud ici ary, and is absolutely essential to the performance of the duties imposed on them by law. * * * “Therehas been general

recognition of t

he fact that the c

ourts are clothed with this power, and must be a uthorized to exercise it without referring the issues of

fact or law to another tr

ibunal or to a jury in th e sametribunal . * * *” (Emphasis ours.) Gompers v. Buck’s Sto ve & R. Co. , 221 U.S. 418, 450, 31 S. Ct. 492, 501, 55 L. Ed. 797, 809, 34 L.R.A., N.S., 874.

Pass v. State , 184 S.W.2d at 3. If this holdingis still the law, the Husband in this case had no right to a jury trial. The Husband i nsists, however, that he was entitled to a jury trial in these criminal contempt proceedings because one of the punishments included his incarceration.

This court has spe

cifically r ejected this arg

ument, reasoning

that:We could not agree that courts have the unlimited power to punis h re sp ondents for criminal cont empt without giving

them a jury tr

ial. We are convinced that one reason why a jury trial was not granted for criminal contempt by

the common law at the time this state adopted its constitution was the

relatively minor punishment the courts imposed for each conviction. As Justice Goldberg said in his dissent in U.S. v. Barnett

, 376 U.S. 681, 84 S. Ct . 984, 12 L. E d. 2d 23 (1964), “My

research, which is confirmed by the authorities cited in the appendix to the opinion of the Court, suggests the following explanation as to why criminal contempts were generally tried without a jury at the time of the con

stitution: th

e pe nalties then authorized and imposedfor criminal contempts were generally mino r; a nd the courts wer e authorized to impose minor cr iminal penalties without a trial by jury for a variety of trivial offenses includ in g, but not limited to, criminal

contempts. At some p oint on the punishmen t scale the court

’s power in criminal contempt cases would clash with the respondent’s right to a jury tr ial. [Foot note omitt

ed]. On the other hand, we do not think the clash occurs at a point on the scale w h ere any incarceration is threatened. Although criminal contempt is a crime, for co

nstitutional purpose

s, it is not the same as a violation of the criminal law. . . . “The proceedin g in contempt is for an offense ag

ainst the court as an organ of public justice, and not for a violat ion of t he criminal law.” State v. Howell , 80 Conn. 668 at ----, 69 A. 1057 at

1058 (1908 ). “Contempt proceedings are sui generis

-- neither a civil action nor a criminal prosecution as ordinarily understood.” Bowdon v. Bowdon , 198 Tenn. 143 at 146, 278 S.W.2d 670 at672 (1955). Thus, a defendant may be jailed for criminal contempt without a trial by jury, but the same defenda nt may dema nd a jury tr

ial in a charge of violating a criminal statute if the statute provides that incarceration is one of the choices for punishment.

Brown v. Latham , No. 01A01-9401-CV- 00 008, 1994 WL 570102, at *2 (Tenn. App. Oct. 19, 1994), aff’d on other grounds , 914 S.W.2d 887 (Tenn. 1996).

In light of the fore

going authorit

ies, w e continue to adhe re to the holding t

hat a defendan t is not entitl

ed to a jur

y trial in a crimin

al contem

pt procee ding in Te

nnessee. We recogni ze that, in affirming this court’s opinion in Brown v. Latham , our supreme cou rt found it unnecessary

to address this issue. Brown v. Latham , 914 S.W.2d 887, 889 (T

enn. 1996 ). We also recogni ze that, in deciding a defendant’s right to a jury trial under the federal constitution, the United States Supreme

Court has abandoned the distinctions traditionally made between criminal contempt andother criminal offenses and instead has examined the seriousness of the penalty for the criminal3 Following Bloom v. Illinois , the United States Supreme Court held that the federal

constitution did not g

uarantee a jury

trial to defenda

nts charged wit

h criminal contemp

t in Tennessee because the maximum penalty was ten day s and, thus, criminal contempt in Tennessee was considered a petty offense. Dyke v. Taylor Implement Mfg. Co. , 391 U.S. 216, 219-20 (1968). The Court also noted that a sentence as long as six months would qualify the criminal contempt as merely a petty offe nse. Id . at 220. Our analysis of the Husband’s right to a jury trial in this case, therefore, is predicated on the right to jury trial provision found in the Tenne ssee Constitution. See Tenn. Const. art. I, § 6.

4 In addition to showing that the Husband failed to pay his share of the parties’ son’s orthodontic expenses, the evidence at trial revealed that the Husband failed to pay his shar e of the children’s tuition for the school years 1993-94, 1994-95, 1995-96, and 1996-97. contempt charged. Bloom v. Illinois , 391 U.S. 194 (1968). 3 We are constrained, however, to follow the prior supreme co

urt decisions of th

is state holding that no such right exists under the Tennessee Constitution. Estate of Schultz v. Munford, Inc. , 650 S.W.2d 37, 39 (Tenn. App. 1982).

Citing Brown v. Latham , the Husband alte rnatively contends that he was entitled to
a jury trial because, in addition to being found in criminal contempt pursuant to the contempt statute (see T.C.A. § 29-9-102 ( 1980)), he also was convicted of

the criminal offe

nseof failing to com

ply witha child support order. See T.C.A. § 36-5-1 04(a) (1996). In Brown v. Latham , our supreme court held that section 36-5-104(a) defined a criminal offense and that a defendant char ge d thereunder

was entitled to a jury trial. Brown v. Latham , 914 S.W.2d at 888. Our review of the pleadings and the judgment in this case, however, reveals that the Husband never was charged with or convicted of a criminal offense under section 36-5-104(a).

The Husband suggests that he must have been tried and c onvicted under section 36-5-104(a) because he was sentenced to 1 80 days inca rceration for failing to comply with the court’s chi ld support order. Section 36-5-104(a) authorizes a punishment of up to six mont h s imprisonment,

while section 29-9

-103(b) authorize

s a pun ish men t of onl y ten days imprisonment. See T.C.A. § 36-5-104(a) (19 96); T.C.A. § 29-9-103 (b) (1980 & Supp. 1996). Unlike the trial court’s findings with regard to the H usband’s failure to pay alimony, the cour t’s order neither specifies the number of insta nces in which the H

usband was found t

o be in contempt for

failing to pay child support nor th

e sentence for e

ach contempt.Accordingly , we are unable t

o determine how the trial court calculated the Husband’s senten

ce for failing

to comply

with the final dec

ree’s child support provisions. 4 In any event, we note that the Husband has not cha llenged the length of h is sentence on appe

al.5 We recognize that the Husband’s corporation, M.S.I., was jointly and se verally liable for the alimony obligation to the Wife and that the Husband’s personal bankruptcy did not extinguish the corporation’s liability. At trial, however, no evidence was introduced to show that the corporation had the ability to satisfy the obliga tion. To the contrary, the Husband testified that the corporation was losing money and that the I.R.S. had filed ta x liens against the corporation’s assets.

IV. Exclusion of Evidence of Bankruptcy Proceedings
Although we affirm the trial court’s rulings on the constitutional issues raised by the Husband, we conclude that the trial court committed reversible error when it excluded evidence of the Husband’s prior bankruptcy proceeding. In order to support a judgment for contempt based on
a defendant’s violation of a prior court order, the defendant’s disobedience or resistance to the c ourt order must have been willful. Haynes v. Haynes , 904 S.W.2d 118, 120 (Tenn. App. 1995); T.C.A. § 29-9-102(3) (19 80). We agree w ith the Husband’s c

ontenti on t hat the proffered evidence was relevant b ecaus e, if proven, it tended to show that the Husband did not willfully violate the trial court’s previous order relative to the Husband’s alimony obligation.

If a debt constitutes alimony, maintenance, or support payme nts to a debtor’s spouse, former spouse, or child, th

e debt is not discha rgeable in ban kruptcy; how

ever, if the debt

is a property settlement, it

is dischargeable. Kimbrough v. Helton , No. 01A01-9507-CH-00318, 1996 WL 47442 7, at * 3 (Ten n. App . Aug. 21, 19 96) (c itin g 11 U. S.C. § 523( a)(5) (B)). If the H usband
can show that, based on the prior bankruptcy proceedings, he reasona bly believed that his obligation to the Wife was in the nature of a property settlement rather than alimony, maintenance, or support payments and, further, that he reasonably believed this obligation was discharge

d in bankruptcy, the Husbandmight have a valid de fense to the Wife’ s charge of cr iminal contempt. 5 See American Cyanamid

Co. v . Rogers , 314 N.E.2d 679, 682 (Ill. App. Ct. 1 974) (noting tha t discharge in bankruptcy

may establish affirm

ative defense to

contempt charg

e); see also Crabtree v. Crabtree , 716 S.W.2d 923, 925-26 (Tenn. App. 1986) (holding that trial court erred in excluding appellant’s testimonyas to her state of mind when she violated previous court order because such evidence was relevant to appellant’s defense to contempt charge). Accordingly , we conclude that thetrial court erred in sustaining the Wife’s objections to the Husband’s testimony on this possible defense.

We recognize that the trial court heard much of the proffered evidence on this subject6 In its judgment of contempt, the trial court ruled that the MDA “speaks for itself” and

tha t “a ll p ayme nts requ ire d of[th e Hu sba nd] to [ the Wif e] a s al imo ny in solido are deemed to be necessary and reasonable support and maintenance.” Neither party challenges the trial court’s ruling that this obligation constituted support and maintenance. We note, however, that the MDA’s descriptio

n of the obligatio

n was not determina

tive of the nature

of the debt or its dischargeability in the subsequent bankruptcy proceedings. LeMasters v. Ross , No. 01A01-970 2-CV-0007 0, 1997 WL 71 7237, at *3 (Tenn. App. Nov. 19, 19 97) (citin g In re Chism , 169 B.R. 163, 169 ( Bankr. W.D. Tenn. 1994)); In re Presler , 34 B.R. 895, 897 (Bankr. M.D. Tenn. 1983). andthat the court was aware of t he prior bankruptcy proceedings. The trial court’s ruling s made clear, however, that the court was refusing to consider any evidence of the ba nkruptcy proceedings because it considere d the evidence to be ir relevant. 6 Inasmuch as the proffered evidence related directly to the Husband’s defense to the contempt charge, we cannot conclude that the trial court’s
error in excluding the ev

idence was harm

less and, thus, we find i

t necessary

to reverse

the contempt order as it pertains to the Husband’s f ailure to pay alimony to the Wife. See Crabtree v. Crabtree , 716 S.W.2d at 92

5-26; T.R.A.P. 36(b) . Westress, however, that our holding on this issue does not affect the trialcourt’s order of contempt with reg

ard to the Husband’s failure to pay child support. On appeal, the Husband does not c ontend that the pri

or bankruptcy

proceedings w

ere relevant to

his child support obligation.

V. Conclusion

That portion of

the trial court’s judgment finding the Husband in criminal contempt for failing to pay alimony

to the Wife is reversed, and this cause is remanded for further p roceedings consistent with this

opinion. In all

other respects,

the trial court’s

judgment is

affirmed. Costs of this appeal are taxed one-half to the Husband and one-half to the Wife, for which execution may iss ue i f nec ess ary.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LILL ARD, J. (Concurs)