### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Februar y 11, 2 005 Session LESLEY LAPOINTE WALKER v. KENNE TH WAYNE WALKER

Appeal from the Circuit Court for Davidson County No. 01D-807 Muriel Robinson, Judge

No. M2004-00159-COA-R3-CV - Filed June 20, 2005 Appellant was h eld in

criminal c ontempt of

cour t for fail ure t o pay alimony . We affirm

the action of the tri al court

and find t

he appe al to be f

rivolous. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir cuit Cour t Affirme d and Remanded W IL LI AM B. C AIN , J., delivered the opinion of the c ourt, in which W IL LI AM C. K OCH , J R ., P.J., M.S., and F RANK G. C LEMENT , J R ., J., joined. Robin McKinney, Jr., Nashville, Tennessee , for Appellant, Kenneth Way ne Walker. D.Scott Parsley, Nashville, Tenne ssee, for Appellee, L esley LaPointe Walker. OPINION This case involves an extensive series of post-d ivorce proceed

ings re lative toalimony. The Final Decree o f Divo rce was entere d on No vembe r 8, 20 01, pr ovid ing, among other things, that Mr. Walker would pay to Mrs. Walk

er the su m of $2,000

per month

in alimony

until dea thor remarriage. No appeal was taken

from this j udgmen

t, and exac

tly one yea r later on November 8, 2002, following a hearing , Mr. Walke

r was fou nd to be in

criminal contempt of court for failure to pay his alimony inthe months of

July, August, September, October and November 2002, and was sentenced to five separa te terms of 10 days e ach totaling 50 day s in the MetropolitanDavidson County Jail. The court further found that he was voluntarily underemploy ed and rendered a judgment a gainst Mr. Walker fo r $ 10 ,0 00 re pr es en ti ng th e u np ai d a li mo ny. His incarceration was stay ed pending appeal which he timely perfected. On

Ja nu ar y 28, 2005, this Court entered

its judgment affirming the trial court’s finding of voluntary unemploy

ment and affirming his contempt convictions for July and August 2002. His convictions for contempt of September, Oct ober a nd November 2002 were vacated for lack of adequate notice. The case was remande d to the tri al court for fur ther pro ceeding s.-2-

While the case involving July, Aug ust, September, October

and November of 2002 was on appeal to this Court, extensive further proceedings occur red in the trial court. On December 3, 2002, Ms. Walker fi led a Peti

tio n for Willf

ul Criminal Contempt alleging Mr. Walker’s failure to pay alimony in December 2002 in the a mount of $2 ,000. Filed with this Petition was a notice to Mr. Walk er prov idin g:

1. That you are

hereby c harged with CRIMI

NAL CONTEMPT pursuant to T.C.A. §29-9-101, et seq. 2. As said charge is in the nature of the c riminal contempt, you have certain constituti onal rig

hts and sa id Plaintif f hereby gives notic e of those rights: (a) You have

th e right to be represented by counsel and if you a

re unable to afford one, counsel shall be appointed for y ou. (b) You have the right to have guilt proven a gainst you be yo nd a reasonable doubt with the burden of proof being on the Plaintiff. (c) You have the right against self-inc rimination, which includes the right to remain silent as to the allegations of criminal contempt filed a gainst you. (d) You have the right

to a presumption of

innocenc e until suc

h time as the al legati ons of g

uilt are proven be

yon d a reas onable do

ubt. (e) You have all other

rights afforded to any

other individual charged with violation of a criminal statute. 3. This information is to serve as notice to the Responde nt of his cons titutional rights in compliance with the case law of the State of Te nnessee regar ding cr iminal con

tempt. On December 19, 2002, Ms. Walker filed a motion to set for hearing a previo us motion to alter or amend the Final Divorce Decre e pursuant to Tennessee Rule of Civil Procedure 60 relative to monies received by

Mr. Walke

r from his 401(k) account. On January 13, 2003, Ms. Walker filed a petition for

criminal contempt for failure to pay alimony in theamount of $2,000 in January 2003 together with the same notice to Mr. Walker as had been filed with the previous contempt petition. OnFebruary

4, 2003, Ms. Walker filed a similar criminal contempt petition relative to failure to pay alimony in the amount of $2,000 for February of 2003 accompanied by

the same notice of criminal contempt to Mr. Walker. On February 21, 2003, following a February 12 hearing , the tri al court entere d an or der rel ative to th e Rule 60 Mot ion p rovid ing:

1. The Court finds that the Rule 60 Motion is properly filed and prop erly before this Court. The Court finds that Mr. Walker, as has been his custom and-3-

habit, was deceptive at the trial and misled this court as relates to the existence of the 401-K/Pr ofit Shar ing Acc ount. 2. The Court

finds onc e aga

in, as it ha s previou sly , that Mr. Walker is nota credible witness. It is, there fore, ORDERED, AD JUDGED A ND DECREED that Lesley Lapointe Walker is hereby awarded a judgment

against Kenneth Way

ne Walker, inthe amount

of $10,457.33 as her share of the 401-K/Pension Plan which was liquidated by Mr. Walker a nd received by

him on or about May 10, 2002. 3. The Court

finds tha t it is proper t

o set pay ments on th

is judgme nt to be paid by Mr. Wa lk er t o Ms . W alk er. It is, therefore, ORDERED, A DJUDGED AND DECREED that Mr. Wa lker sha ll pay directly to Ms. Walk

er the sum of $250.00 per month on the above-reference d judgment, beginning March 1, 2003, a nd the 1st of each and every

month until the same is liquidated. 4. It is further ORDERED that this ju dgment shall acc

umulate in

terest at 10% interest pursuant to statute upon this Order becoming thirty (30) days old. 5. Th e C ou rt fu rt he r f in ds th at th is is a d iv is io n o f m ar it al pr op er ty. OnMarch 4, 2003, Ms. Walker filed a criminal contempt petition alleging f ailure to pay alimony for March 2003 in the amount of $2,000. This petition was accompanied by the same notice of criminal contempt to Mr. Walker as was previously filed with the other contempt petitions. On March 12, 2003, the parties reached an ag reement relative to the pending petitions for contempt, and all pending petitions for contempt were dismissed by order of the cour t. On Apri l 3, 2003, M s. Walker filed a p etition for crimina l contemp t relativ e to alleged failure of Mr. Walker to pay alimony for April 2003 in the amo

unt of $2,0 00. This petition w as accompanied by the same notice of criminal contempt to Mr. Walker as had been filed in previous petitions for contempt. On April 17, 2003, Ms. Walker filed a petition for contempt charging Mr. Walker with violation of a restraining order previously entered re lati ve to abusing and harassing her. T his petition further charged Mr. Walker with criminal contempt for failure to pay the $250 per month relative to the 401-K Pension Plan as had been ordered

by the court

on February

12, 2003. It was allege d that he had failed to pay the payments due Mar

ch 1 and April 1 of 2003 in the amount of $250 each. This contempt petition was accompanied by

the same notice as had previously been forwarded to Mr. Walker with the other contempt petitions. On May 14, 2003, Ms. Walker filed a criminal contempt petition relative to the alleged failure to pay

the May 2003 al i mony in the amount of $2,000. This petition was accompanied

by the same notice a s had been forwarded to Mr. Walker with the previous criminal contempt petitions. By order

of May 19, 2003, the Honora ble J. Robin McKinney, Jr. was allowed to withdraw as attorney

for Mr. Walker. OnMay 29, 2003, pending contempt petitions were to be heard before the trial court, but on that day the mother of Mr. Walker appeared to inform the court that he had checked himself into the MiddleTennessee MentalHealth Institute on the previous day. The

case was reset for June 5, 2003.-4-

OnJune 27, 2003, another petition for willful criminal contempt was filed for the allege d failure of Mr. Wa lk er t o pa y ali mo ny fo r J une 200 3 i n t he a mo unt of $ 2,0 00. Itwas further allege d in this petition that Mr. Walker had failed to pay the June 2003 payment rela tive to the 401-K/Pension Plan and was in criminal contempt for such failure. The same notice a s was filed with previous criminal contempt petitions was forwarded to Mr. Walker. OnJune 26, 2003, the court conducted a hearing as to the criminal contempt petitions filed by Ms. Walker on May 14 and April 17. The court entered its order on July 14, 2003. The order containe d the following pr ovisions: 1. It is, t

h erefore, ORDERED, A DJUDGED

AND DECR

EED that Defend ant Kenneth

Wayne Walker is here

by found guilty of c

riminal contempt for failure to p ay alimony

on April 1, 2003, May1, 2003, in the amount of $2,000.00 each month, failure to make his $250.00 payme nt on the arr earage on March 1, 2003, April1, 2003, May 1, 2003, and his violation of the Court’s Restraining Order by going around Ms. Walker’s person and fur ther causing damage to he r automobile. 2. It is ORDERED, A DJUDGED

AND DECR

EED that Lesley LaPoi nte Walke

r is awarded a judgment in the amount of $4,750.00 which amount is reduced to judgment, for which let execution if necessa ry . This judg

ment is compr ised o f the f

ollo wing: April 2003 Alimony $2,000.00 May 2003 Alimony 2,000.00 March 2003 Arrearag e Payment 250.00 April 2003 Arrearage Pay ment 250.00 May 2003 Arre arage Pay

ment 250.00

$4,750.00 3. The Court, after considering all relevant factors, finds that Defendant is in willful criminal

contempt

of this Cour

t’s Orde r for the above vio lations. However, the Court will se nt en ce Mr . W al ke r t o f or ty ( 40 ) d ays , d ay f

or da y, incarc eration

in the Metr

opolitan D avidson Co

unty Jail for his

criminal contempt

. 4. The Court

makes the following findings of facts: The Court finds that Mr. Walker has set upon a course of conduct from day one i n this court not to pay alimony or the amount he owes for the 401K division. The Court further will make a finding once again that Mr. Walker is not cre dible witness. The Cour t finds th at Mr. Walker is a violent person. Further, that he is a clear and present dange r to Ms. Walker. The Court has further admonishe d Mr. Walke r that he still is unde

r this Court’s Restrain

ing Ord er. Fur ther, this Court makes the finding that Mr. Walker has a volatile and violent temper. This Court further finds that it shall entertain counsel’s request for attorney ’s fees, finding that the same had been held in abey

ance pending-5-

Mr. Walker making his alimony pa yments pursuant to the

pre vious petitions for contempt that Ms. Wal

ker had f iled. I t appear ing to the Court, after a review of the applicationfor

fees submitted in this matter, that the following award is appropriate. It is, therefore, ORDERED, ADJUDG ED AND DEC REED that D. Scott Parsley is awarded [an] attorney ’s fees in the amount of $2,500.00 , again st Kenneth Wayne Walker, which amount

is awarded as additional support necessary for the wife in the bringing of the previous petitions for contempt and those encompassed in this Order, wh ic h a mo un t i s r ed uc ed to ju dg me nt , f or wh ic h l et ex ec ut io n i ss ue , i f n ec es sa ry. The certificate of service on this Order indica tes that Mr. Walker was represented by attorney Matthew Mayo. On Jul y 21, 2003 , Ms. Walk er fil ed an am ended Peti tion for Co ntemp t reci ting that he r petition of June 27, 2003, had not been served and then asserting that Mr. Walker was in criminal contempt for fail ure to pa y the June 2003 and the July 2003 alimony pay

ments in the amount of $2,000 each. It was fur

ther alleged

that he was in criminal contempt for failure to pay the June and July payments of $250 ea

ch relative to the 401(k) plan as required by the court’s Order of Februar y 21, 2003. This Petition was accompanied by the same notice to Mr. Walker as had been provided in previo us crimina

l contemp t petitions

. OnSeptem ber 22, 2003, Ms. Walker filed another criminal contempt petition alleging the failure of Mr. Walker to pay the alimony pay

ments due August and September of 2003 and further alleging his failure to pay the August and September pay ments of $250 each relative to the 401(k) plan. This petition was accompanied by the same notice of

criminal contempt as had previously been filed with other pe titions. OnNovember 12, 2003, Ms. Walker filed a criminal contempt petition alleging Mr. Walker had willfully failed

to pay the Octob er 2003 a

nd Novemb er 2003 a

limony pay ments in the amount of $2,000 each and further alleging that he had willfully failed to pa y the October

and Novembe r pay ments of $250 each relative to the 401(k) plan. This petition for crimina l c ontempt was accompanied

with the same notice to Mr. Walker a s had bee n filed wi th previo us contem pt petition s. At this point, J. Robin McKinney, Jr. re-entered the case as attorney

for Mr. Walker and filed anAnswer to Amended Petition for Contempt. This answer involved general denials to gether

with anaffirmative d efense that he could not be imprisoned for civil debt because of Article 1 section XVII I of the Tennessee

Constitution. Following a November 13, 2003, hearing before substitute

Judge Jack Norman, Jr., an order was ent ered pr ovid ing: 1. It is ORDERED, A DJUDGED

AND DECR

EED that the Court will not find Mr. Wal ke r in criminal contempt of the Court’s Order for

failure to pay

alimony in the month s of June, July-6- and Augus t due to the fact according to his testimony that he was incarcerated

in the Metr

o Jail in July , (sic) July

and August of 2003. The C ourt, however, does find that he was not incarce rat ed i n September

of 2003 and therefore the C ourt find s, after all relevant testimony and proof, that he is in willful criminal contempt of the Final Decree in this matter and the subsequent Order as relates to the judgment payments for

failure to pay

either payme

nt in September of 20 03, for two separate violations. It is, there fore, OR DERED , ADJUDG

ED AND DECR

EED that Defendant, Kenne th Wa yne Walker, is in willful criminal contempt of this Court’s Final Decree for failure to pay

alimony in theamount of $2,000.00 for the month of Septembe

r 2003, a nd is sente

nced toten (10) day s in Metropolitan Davidson County Jail. 2. It is further ORDERED, A DJUDGE D AND DECREED that Defendant

is in willful criminal contempt of this Court’s Order of February 21, 2003, for failure to pay

the judgment pay

ment of $250. 00 for

the month of September of 2003, and is there fore sentenced to ten (10) days in the Metropolitan Davidson County Jail for his criminal contempt. It is, ther efore , ORDERED, A DJUDGED AND DECREED that Defendant, Kenneth Way ne Walker, is sentenced to a total sentence of twenty (20) da ys in the Metropolitan Davidson County Jail for hi s two violations of the Court’s Order as stated above. 3. The Court, as stated earlier, does not find the Defenda ntin criminal contempt for failure to make the alimony payments in June, July a

nd Augu st

due to his i ncarceration, but has found him in criminal contempt for September 20 03 fo r failure to pay as orde

red. It is, therefore , ORDER ED, ADJ UDGED AND DECREED that Plaint

i ff , Les ley LaPoi nte Walke

r, is awa rded a ju dgment a gainst Def endant in the amount of $8,000.00 for alimony for the months of June, Jul y , August and September, 2003, against Kenneth Way ne Walker, which am o unt is re du ce d t o j ud gm en t f

or wh ic h l et ex ec ut io n i ss ue if ne ce ss ar y. 4. The Court further

finds tha t Defend ant has not presen

ted any credibl e proof as to why the pay

ments have not been made as ordered for September 2003 and no pr oo f a s t o a ny a ll eg ed di sa bi li ty. 5. T he Court further finds that an attorney ’s fees for coun sel’ s representation

of Ms. Walk

er in this matter is appropr ia te. It is, therefore, ORDERED, ADJUDG

ED AND DEC REED that D. Sc ott Parsl ey i s awarded an attorney’s fee in the amount

of $898.0 4, aga

inst Defe ndant, Kenneth Wayne Walker, whichis awarded as addit ional alimony with the intent that the same is a nondisch arge able support ob ligation in the eve

nt of bank

ruptcy . It is

furth e r-7-

ORDERED, ADJUDG

ED AND DEC REED that t hi s amount is r

educed to ju dg me nt fo r w hi ch le t e xe cu ti on is su e, if ne ce ss ar y. OnDecember 18, 2003, Ms. Walker filed an additional Petition for Crimina l Contem pt alleging failure of Mr. Walker to pay the alimony payment due for

December of 2003 in the amount of $2,000. The Petition fur ther alleged willful criminal contempt for failure to pa y the Dec ember 2003 installment of $250 relative to the 401(k) plan. This Petition for Contempt was accompanied by the same notice as had previously been served on Mr. Walker wi ththe other

contempt petitions. OnJanuary 4, 2004, Mr. Walker answe red this contempt petition with a general denial and the same affirma tive def ense re lative to i

mprisonme

nt for civ il debt. The case wa s heard before Judge Muriel Robinson on January 15, 2004, and on February

3, 2004, the tr ial co urt en tered i ts ord er fin ding:

It is, therefor e, ORDERED, ADJUDGED AND DECR EED that Defendant , Kenneth Way ne Walker , is found i

nwillful criminal contempt of this Court’s Order for failure to pay

alimony as ordere d an d failur e to pay the a rrearage pay

ment as ordered and is sentenced to fort

y (40) day s in the Metro Jail for his six separ

ate violations of the Final Decree of Novembe r 8, 2001, ordering pay

ment of alimony and the Order of February

21, 2003, requiringpayments of $250.00per month on the arrearage judg

ment of $10,457.33. The Court

makes the

following

specific finding s of fact: 1. The C ourt fin ds that the Defendant is able-bodied and capable of paying the alimony, but

willfully fails to do so. The Court find s that he a

ppeare d this day an d appears healthy

to the Court. Further, Mr. Walker has not even attempted to look for work. 2. The Court

finds tha t his parents

pay his child su

pport for him to his first wife for his child and

does so in a

timely manner, along w

ithhis co st of h ousi ng, food, and attorne

y’ s fees f or him, however the

y do not pay his alimony

for him. 3. The Court finds that Mr. Walker continues to defy the orders o f this Court. He has quit his job a nd reduc ed his inc ome to zero and lives with his parents

. 4. The Court finds that Mr. Walker files pleading s on the da te of court suchas this date the petition to modify his alimony

obligations and then non-suits the same the same day. Further, he filed on this date a motion to continue after the Court continued this matter December 19, 2003, at Defenda nt’s request. It is, therefore , ORDERED that the motion to continue is denied.-8- 5. The Court finds that Mr. Walker does not pay a ny amount of alimony or ar re ar ag e p aym en t, le t a lo ne th os e a mo un ts th at he is or de re d t o p ay. 6. The Co urt finds t hat this Court has found Mr. Walker guilty of contempt on three previous occasions and as i s his course of conduct, he immediate ly files an ap pe al . S pe ci fi ca ll y, he was found guilty of contempt on November 8, 2002, July 14, 2003 and November 20, 2003, for failure to pay

alimony. On Febr

uary 21, 2003, this Court awarded a judgment to Ms. Walker of $10,457.33 for her part of the 401K/pro fit

sharing plan Husb and had w

ith his pre

vious e mployer, which he liquidated subsequent to the entry

of the Final Decree of

Divorce after his testimony at the divorce trial that it did no t exist. The c ourt found Mr. Walker to not be a credibl e wit

ness for mi sleading

the Court a s to the exist ence of the 401K/

profit sharing accoun t. 7. The Court finds that Mr. Walker has engage d in a course of conduct inan attempt to impover

ish himself in

an attempt to allevi ate his alimony obligation. The Court further finds that he has set upon a course of conduct to defy the orders of the Court from day one

. 8. The Court finds that he does not presenton scintilia of evidence re ga rd in g a ny c la im ed di sa bi li ty. 9. Finally, the Court findsthat Mr. Wa lker’s c laims of disability are not credible. 10. The proof further shows that Ms. Walker is disabled, t hat she d oes ha ve an ob vi ou s, se ve re im pe di me nt in he r s pe ec h a nd th at sh e n ee ds th e a li mo ny. I t is, therefore, ORDERED, ADJUDGE D AND DEC REED that Def endant, Kenneth Wayne Walker, is hereby sentenced to forty

(40) days in the Me

tropolitan Da vi ds on Co un ty J ai l t o b e s er ve d d ay f or da y. It is ORDERED, A

DJUDGED

AND DECR

EED that Defendant

is guilty of six (6) viola

tions of the

previous orders o f this Cour

t for fai lure to pa

y a limony in the amount

of $2,000.00 the months of October, November and Decembe r, 2003, for a total of $6,000.00 due. It is, therefore , ORDERED, AD JUDGED AND DECREED that L esle y LaPoi nte Walke

r is here by a warded a judgme

nt agai nst Kenneth Wayne Walker in the amount of $6,00 0.00 f or past due alimony, which am ou nt is re du ce d t o j ud gm en t f or wh ic h l et ex ec ut io n i ss ue , i f n ec es sa ry. The Court finds that D efenda nt is gu ilty of wi llful criminal contempt for failure to make hi s arrea

rage p ay ments o n the previ ously ordered judg ment in the amount of $250.00 a month for the months of October, November and Dece mber,-9-

2003. The Court

consider ing his six (6 ) separate violations of the Court’s Order, however, sentenc es him to forty (40) day s in the Metropol itan Davi dson County Jail, to be served day

for day a s stated above. On Febr uary 13, 2004, M

r. Walker perfected a time ly a

ppeal. A more egregious example of unbridled contempt for the judicial processes can scarcely be imagined than that which is be fore t he court in this case. Certain matters were settled by the previous appeal: 1. Shortly after his divorce , he quit his job at a mechanical engineer ing firm where he was earning $52,000 a y

ear and took a job driving an airport van a t $12,600 a year

. 2. On Januar

y 28 , 2005, this

Court aff irmed the trial cou rt’s find ing that he was wi llfully

and voluntar ily underemployed a

nd his $2,000 monthly alimony obligation continued in full force and effec t. His asser

tions that h

is previo us appea l was not frivolous we re sustained under a finding “while we are singula rly unswayed

by M r. Walker ’s prote stations of penury , we have sustaine d his challenge to the validity

of three of his five criminal contempt convictions.” LesleyLaPointe Walker v. Kenneth W ayne Walker , M2002-02786-COA-R3-CV – filed January 28, 2005. The heari ng of January 15, 2004, indicated that nothing substantial had changed since the Nov ember

2002 hearing from which the previous appea l was taken. An explanation of how Mr

. Walker had been living throughout theperiod from November 2002 until the hearing of January 15, 2004, was es tabli shed b y Mr. Wal ker’s f ather a t the J anuary 15, 2004, hearin g. Q. State your name if y ou would, please, sir. A. Tim Walker. Q. And y

ou are the fathe

r of Mr. K

enneth Wa

lker; is that righ

t? A. Yes, sir. Q. Does your son live with y ou? A. Yes, he d

oes. Q. And do y

ou pay all of his e

xpenses? A. Yes, I do. Q. What expenses do you provide on behalf of your son?-10-

A. I provide food , shelter , pay his child su

pport. Q. How much child support do you pay on behalf of y

our son? A. $362 a month. Q. And have

you consiste ntly made thos e pay

ments for him? A. Yes, I have. Q. All right, sir. You provide him an automobile to drive?

. . . THE WITNESS: Excuse me. I provide an automobile, as needed. BY MR. PARSLEY: Q. All righ

t. And y ou provide

his gaso line for h

im? A. As needed. Q. Ok ay. Gi ve hi m s pe nd in g m on ey? A. If he

needs it, ye s. Q. How much s

pending money on avera ge a we ek do y

ou give him? A. I don ’t keep c ount of it. I just – – if he ne eds money

, I give it to him

. Q. What he needs, you give to him, don’t you? A. As he needs it, ye s, sir.

. . . Q. Let me ask y

ou this. You pay for his attorney s’ fees, don’t y

ou? A. Yes, I do. Q. Howmuch have

you spent on a

ttorney s’ fees in the last ye ar on behalf of your son?-11-

A. I don’t have that with me. Q. Just

approxima

tely would be f

ine, Mr. Wa

lker. I know it’s hard t o say pr ec is el y. A. I am going

say, approximately, $3500. Q. All right. And the $10,000 cash bond he made bac k last y ear, did you come up with tha

t $10,000 c ash for h

im? A. A portion o f it. Q. How much portion did you come up with? A. $3,000, I think. Q. And the remaining $7,000, did he come up with that cash himself? A. He sold the last of the automobiles that he had at that time a

nd came u

p with th e m on ey. Q. Ok ay. THE COURT : Why are y ou supporting your son, Mr

. Walker ? THE WITNESS: Well, because he has no meansto support himself right now, your

Honor. THE COURT : And why is that? THE WITNESS: Because he’s f ighting severe depre ssio n, alcoholi sm, and is una

ble phy sically to hold a job to make any money, and so I

have to do what I have to do to take ca re of my son. BY MR. PARSLEY: Q. Let me

ask y ou this. THE COURT: And how old is your son? THE WITNESS: He’s 41.-12- THE COURT: So y’all just let him sit around and d o noth ing? THE WITNESS: At this time, we take care of him because, again, phy sically, he’s una ble to, and his doctor is still treating him for severe depress ion and al coholism.

TH E C OU RT : O ka y. THE WITNESS: And until he’s phy sically able – – THE COURT: You

can’t ma ke a medi cal diag

nosis bec ause you are not the doctor. But it is your testimony , that he’s not working, and y ’all are pay ing his bi lls? THE WI TNESS: Yes , ma’am. BY MR. PARSLEY: Q. Did you give

him money to buy

his Christmas present for his child? A. I bought Christmas presents for his child. At the conclusion of the January 15, 2004 he aring, the trial court observed:

THE COURT: . . . He has quit his job, reduced his income to zero, lives with his parents. He’s able-bodied and 41 y ears old. The parents testified that they pay all his bills and child support under a former order. They do not, howeve r, pay the alimony

award in this case for their son. The Court further finds Mr. Walker has set upon the Court to defy the orde

rs of this court from day one . He’s never complied with it. As a

matter of fact, he uses direction through his attorney

to continue to defy the or d ers of thi s Court, filing plead ings o n the d ate of t he hear ing, t hen, w ithd rawin g them d uring t he hear ing. The Court finds he’s defiant, that he’s not dealing fairly with the petitioners or the Court’s system or the a ttorneys that are

involved. . . .

. . . THE COURT: We have several petitions for contempts that have been granted by

the Court that are in the process of appeal which enable Mr. Walker to further defy

the order of the Court. He has po pularized himself by

his attempts in-13-

Co urt. There’ s not one si ngle shr ed of evi dence, actually

, that he s uffers from a n y de pr es si on or me di ca l d is ab il it y. He comes before the Court alway s neatly dresse d, able-bodied, and the Court has no other

alternative but to conclude that he is not a credible witness, that he has set upon the course and designs of the court to further defeat orders of this Court and th e p aym en t o f a li mo ny. An y am ou nt , h e w on ’t pa y. The proof further shows that Ms. Walker is disab led, that s he does have a severe impedimen

t in her sp eech, that s he needs alimony, a nd the Court hereby awards in the amo

unt of $6,0 00, sente

nces him in

the Metro

jail on the se counts

of failure to pay. All of this rece nt failure to pay ha s been well withi n the year of limitations

. This is an add on to the prior judgments, which puts the alimony award due in excess of 20 some odd thousand dollars, costs to Ms. Walker. Mr. Walker was then taken into custody and subsequently re leased on bond while

this appeal is pen ding. Specific ally

in the February

3, 2004, Order of the court follo wing t he Ja nuary 15 h earing, the court found Mr. Walker in criminal contempt of court for failure to pay the October, November and December

2003 insta

llments of alimony in the amo

unt of $2,0 00 each . He was a lso found guilty of willful criminal contempt for failure to pay the October, November and December installments of $250 per month relative to the 401(k) plan. He was then sentenc ed to forty (4 0) days in the MetropolitanDavid son C ount y Jail t o be se rved d ay for day for t hese fi ndin gs of criminal contempt

. As his first issue, Appellant asserts that Ms. Walker

failed to comply with Tennessee Ru

le of Civil Procedure 8.05 in her petitions for criminal contempt . The posi

tion of App ellant is l ess than impressive. The rule does not require the statute to be quoted in the petiti on. The pe

titioner m ust “. . . either specifically

refer to the statute or state all the facts nec es sa ry t o constitute such breach so that the o ther par

ty can be duly a

pprised of the sta tutory violation c

harge d. The pe

tition plai nly named Te nnessee Code Anno tated se ctions 29- 9-102 and 29-9-10 3. The issu e is withou

t merit. Appellant next asserts t hat the c ourt err

ed in find ing hiscontempt to be willful, asserting that his father had testified that he was “ . . . incarcerated for the months of November and December and could, therefore, no t w or k. ” T hi s i s a mi sc ha ra ct er iz at io n o f h is fa th er ’s te st im on y, even if the court accepted su ch te st im on y. He was, at best, incarcerated f rom November 13 to December 5. The trial court found that

he is willful ly unemploy ed prior to the previous appeal, and such a situation has obviously continued

to the present day . The evidence is overwhelming that Mr. Walker’s conduct is willful, and the is sue is without merit.-14-

Appellant next asserts that the trial court erred in finding him in willful contempt for failure to pay the $250- per-mon th pay ments as to

the 401(k) plan. The 401(k) plan provisions of the final judgment do not res ult in simply

an ordina ry civildebt. Mr. Walker perjured himself and misled the court prior to the final decree of November 8, 2001. In its

order f inding Mr . Walker in

contempt , the court referenced its Febr uary 2002 orde

r sustaining the Rule 60 motion: OnFebruary

21, 2003, this c ourt awa

rded a ju dgment t o Ms. Walker of $10,45 7.33 for her part of the 401 K/profit

sh ari ng plan Husban d had with his previous employer, w hich he liquidated subsequent

t o the ent ry

of the Fi

nal Decree of D ivorce a fter his testimony at the div orce tr

ial that it d

id not exist. The issue is without me

rit. The last issue by

Appellan t is the trial court’s refusal to allow Appellant to make an offe r of proof on the re cord. I

t i s apparent from the testimony tha t the offer of proof would have been no more than the testimony of Mr. Walker’s f ather as to various illnesses allege dly afflict ing hisson and preventinghim fromattaining gainful employ ment. Counsel for Mr. Walker was fully cog

nizant of the impossibility of his position during the testimony of the father. He did not havean y medical proof to s upport the

allege d condition of Mr. Wa lker. Sai d counse l: Judge, my problem is – – and I know the court’s position would be that taking a doctor’ s deposition, it take s an act o f cong ress to get one. We ha

ve been try ing to do that, Judge, but I can’t have credible proof without a doctor’s – – without an evidentiary de

position of the doctor. Thesecriminal contempt citations had been pend ing for months prior to the January 15, 2004, hearing and cou nsel hadample time

to procur e the nec essary

medical d

eposition . The con

text in which the so-called offer of proof wa s to be made is re vealing . While Mr. Tim Walker, the father of Appellant, was testify

ing, the following occurred: Q. Based

upon your

physical observa

tion, is he – – in your lay

opinion, is

he physically unable to work?

MR. PARSLEY: I object, your Honor. He’s not qualif ied to make tha t. THE COURT: Sustain the objection.

MR. MCKINNEY: J udge, I would like to make a n offer of proof on t hat. THE COURT: Overruled.-15- MR. MCKINNEY: You are ove rruling the off

er of pro of, your Honor? THE COURT: Of course. Under Te nnessee Rule of Evidence 1 03, it is provided in pe rtinent pa rt: Rule 103. Rulings on evidence. — (a) Effect of Erroneous Ruling. — Error may not be predicated upon a ruling which ad mits or exclude s evidenc e unless a substantial right of the party is affected, and (1) Objection. — In case the r uling is one admitting evidence, a timely objectionor motion to strike appears of record, s tati ng the specific ground of objection if the specific ground was not appar ent from the context; or (2) Offer of Proof. — I

n case the ruling is one excluding evi d ence, the substanc e of the evidence and the specific evidentiary basis supporting admission were ma de known t

o the cour t by offer or were a

pparent from the c ontext. While in certain instances, with the proper foundation, a lay witness may provide opinion te st im on y, see Tenn. R. Evid. 701, the basis for the proffered lay opinion was “ . . . apparent from the context” surrounding the request to make an offer of proof unde r Rule 103. After acknowledging that “ . . . I can’t have credible proof without a doctor’ s – – without an evidentiary de position of the doctor,” counsel attempts to obtain the lay opinion of Mr. Walker’ s father. His tender of proof from this layman is made appar ent by his question: Q. Based

upon y our phy sical obs ervation, is he – – in you lay opinion, is he physically

unable to work? This Court has held: The court did

not allow o ffers o f proof on these excluded witnesses. In Alleyv. State, 882 S.W.2d 810, 815 (Tenn.Crim.App. 1984) , the general rule was stated that “assuming an offer of proof has been reasonably

made, it is error

for the trial court to refuse to permit counsel to state what evidence he is offe ring.” “The purpose of

an offer is two-fold. First, the proof informs the trial court what the part y inte nds to prove . . . [s]econd, an offer creates a rec ord so that an appella te co ur t can determine whether there was r eversible error in excluding the evidence.” State

v. Torres, 2001 No. E1999-00866-CCA-R3-DD, 2001 WL 245137, *32 (Tenn.Crim.App. Mar. 13, 2001). From the record before the Court, the offe r of proof as to Mr. Head concerne d some conversation he had with Mr. Johnson outside the courtroom at one of the hearin gs in July. As to the testimony of the three children, the trial court examined-16-

writtenquestions and answers invo lving the three children and while the court disallowed

the testimony of the children, these questions and

answers appear in the record

. Assumin g the testimony of the children would be consistent with the question s and answ ers appe aring i n the rec ord, it is di fficult t o see how

su c h testimony could have af

fected the outcome of the case. Alth ough it was error for the trial judge to ref use the offers o f proof, it is apparent from the context of the record that the o ffers of proof in the present case, more probably

than not, would

not have affected

the judgment in the case or resulted in prejudice to the judicial process. Tenn.R.App.P. 36(b). Johnson v. Johnson , 2001 WL 980737, *9 (Tenn.Ct.App.). The ci rcumst ances surrounding the exclusion sugge st that Appellant was offering lay testimony of his alleged phy sical and emotional inability to work. Assuming that lay te stimony of the elder Walker would be ad missible a s to whethe

r or not th e younger

Walker wa s “physically unable to work,” the weight to be given such testimony would rest entirely in the discr etion of the trial court, this in the face of this trial court’s own observation that Mr. Walker “. . . comes before the court alway s neatly dresse d, able-bodied, . . .” and offers no medica

l proof a t all that h e is in any way disabled . Under t

he record in this c ase, tha

t which wo

uld have been included in Mr. Walker’s offer of proof is clear ly apparent from the context in which the offer was made, a nd the trial court did not err in declining to further consider the lay testimony of Walker, the elder

. Appellant urg es th at, inasmuch as this appeal involves his numerous criminal contempt citations , the right to direct appeal under the Rules of Criminal Procedu re is implicate d. As a re sult, argues the appe llant, fr

ivolous ap

peal damages a

re not av ailable. No case law is cited

from this or any other jur isdiction i n support o f this asse

rtio n. The noti ce issues on which alone he obtained relief on his previous appeal are absent in this record. The a

ppeal in t his case is frivolous and had no reasonable chance of succ ess. Bursack v. Wilson , 982 S.W.2d 341, 345 (Tenn.Ct.App.1998 )

. Tenn.Code Ann. § 27-1-122. The judgment of

the trial court is in all respects affirmed, and the case is remanded to the trial co urt for further proceedings including the assessment of reasonable attorney ’s fees and cost s pursuant to Tenne ssee Code

Annotate d section

27-1-122 . Costs of a

ppeal ar e assess ed aga

inst Appellant, Kenneth Wayne Walker.

___________________________________ WILL IAM B. CAI

N, JUDGE