State of Tenn. v. CREIGHTON

Decision Date07 April 2011
Docket NumberNo. M2010-01171-COA-R3-CV,M2010-01171-COA-R3-CV
PartiesSTATE OF TENNESSEE, ex rel. FRANCES CRAIG CREIGHTON v. WILBUR FOSTER CREIGHTON
CourtTennessee Court of Appeals

OPINION TEXT STARTS HERE

Direct Appeal from the Circuit Court for Davidson County

No. 95D-3220 Carol Soloman, Judge

This is an appeal from the trial court's order, finding Appellant in criminal contempt of court for willful failure to pay his ordered child support. Appellant appeals, alleging that the trial court erred in: (1) denying Appellant a full transcript of the hearing at the State's expense; (2) giving little or no credence to the evidence offered by Appellant's witness; and (3) finding Appellant in criminal contempt for willful failure to pay child support. Discerning no error, we affirm.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Affirmed

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and DAVID R. FARMER, J., joined.

Edward J. Gross, Nashville, Tennessee, for the appellant, Wilbur Foster Creighton.

Robert E. Cooper, Jr., Attorney General and Reporter; Joe Whalen, Associate Solicitor General; Warren Jasper, Senior Counsel, for appellee, State of Tennessee, ex rel. Frances Craig Creighton.

Opinion

Appellant Wilbur Foster Creighton and Francis Craig Creighton were divorced on June 25, 1996, by order of the Davidson County Circuit Court. The final decree of divorce required Mr. Creighton to pay $ 1,000 per month in child support for the three minor children that were born to the marriage. Mr. Creighton was also ordered to provide medical insurance for the children. The order on child support was amended several times. The latest order, entered on September 23, 2008, requires Mr. Creighton to pay $1,320 per month in childsupport.

On March 2, 2010, the State of Tennessee ex rel. Francis Craig Creighton (the "State," or "Appellee") filed a petition for criminal contempt and failure to provide medical insurance against Mr. Creighton.1 The petition, brought under Tennessee Code Annotated Section 299-101 et seq., alleges that Mr. Creighton had an accumulated child support arrearage in the amount of $22,400 as of February 24, 2010. The petition further states that Mr. Creighton is able bodied and capable of pursuing gainful employment. A notice that he was charged with criminal contempt, as well as a show cause order requiring Mr. Creighton to appear in court on March 31, 2010, was filed contemporaneously with the contempt petition. Mr. Creighton filed an affidavit of indigency on March 11, 2010. By order of March 11, 2010, the trial court found Mr. Creighton indigent, and appointed an attorney to represent him at the hearing.2 On April 5, 2010, Mr. Creighton filed an answer to the petition, in which he states that he is medically and mentally unable to work; consequently, Mr. Creighton avers that he is not in willful contempt of court.

The hearing on contempt was held on May 19, 2010, before John Manson, sitting as a Substitute Judge in Judge Carol Soloman's court.3 Immediately before the hearing began, Mr. Creighton's counsel made an oral motion that he be provided a verbatim transcript of the evidence at the State's expense. As grounds for his motion, Mr. Creighton alleged that the proceeding involved "[a] criminal offense wherein the State was seeking incarceration of up to 180 days." Because Mr. Creighton was proceeding as an indigent person, he argued that he was entitled to a full transcription of the evidence at the State's expense. In preparing a full record for this Court's review, the trial court, upon Mr. Creighton's motion to supplement the appellate record, entered an order on December 9, 2010. This order provides that Judge Manson denied Mr. Creighton's request for a full transcript "because the court hasno authority, nor was one cited, to appoint a court reporter on a misdemeanor case." Consequently, there is no transcript of the hearing on the petition for criminal contempt.

Although there is no transcript of the hearing, pursuant to Tennessee Rule of Appellate Procedure 24(c), the appellate record contains a statement of the evidence adduced at the hearing. In addition, the State submitted an affidavit of direct payments (Trial Exhibit 1), showing that Mr. Creighton had paid no child support from September 2008 to the date of the hearing. According to the statement of evidence, Ms. Creighton testified that she and Mr. Creighton were married for thirteen years and that, during that time, Mr. Creighton had not been diagnosed with a mental health disorder, though he had seen a doctor for a mood disorder. Ms. Creighton also testified that Mr. Creighton owned and operated his own tree trimming business.

M r. Creighton's mother, Donnie Creighton, also testified at the hearing. In relevant part, she stated that her son was a graduate of Belmont College and that she did not know of any mental or physical disabilities he had. Donnie Creighton testified that she did not know where her son lived and that she was not sure how he worked or supported himself. However, upon cross examination, Donnie Creighton testified that she had given Mr. Creighton approximately $20,000.00 in 2009 to help support him.

Mr. Forest Osborne testified for Mr. Creighton. He stated that he had worked as a mental health counselor for twenty-seven years. According to the testimony, Mr. Osborne holds a Bachelor's degree in Education, but does not have a degree in mental health, guidance, or counseling. Mr. Osborne testified that he meets with clients, reviews their medical background, and counsels them. Concerning his relationship with Mr. Creighton, Mr. Osborne testified that he had "been assigned to Mr. Creighton when Mr. Creighton came to [Mr. Osborne's] facility." Mr. Osborne met with Mr. Creighton approximately two months prior to the hearing, when he observed Mr. Creighton and reviewed his medical history.4 Mr. Osborne stated that Mr. Creighton's diagnosis was anxiety disorder, mood disorder, and attention deficit disorder. Although Mr. Osborne ultimately opined that Mr. Creighton was unemployable, he did admit that, with consistent medication, a person with Mr. Creighton's diagnosis could be stabilized.

Following the hearing, Judge Manson found Mr. Creighton in contempt of court on eighteen separate occasions, and sentenced him to ten days in jail for each offense, for a total of 180 days. The order is a form order, on which Judge Manson checked certain items. As is relevant to this appeal, Judge Manson checked that "Respondent is guilty of criminal contempt pursuant to T.C.A. Section 20-9-101 and has violated the court's order on 18 occasion."5 Under the heading "Sentencing," Judge Manson checked that "Respondent shall be sentenced to 10 days per offense for a total of 180 days," and specified that "[s]aid sentence is to be served day for day." Judge Manson's order also includes a written finding, namely:

[Mr. Creighton] was clearly aware of the child support order and willfully disobeyed it. The court finds [Mr. Creighton] ab[le] to work and that no medical proof was presented to prove a medical diagnosis of inability to work. The court finds [Mr. Creighton] had money to pay child support but failed to make any payments.

Mr. Creighton was found to owe $35,208 in back child support, and was ordered to pay $257 per month in current child support, plus $216.66 per month toward his arrearage. Judge Manson also modified the support order to reflect that two of the parties' children are emancipated. Following the hearing, Mr. Creighton was immediately remanded to the custody of the Davidson County Sheriff. By Order of May 28, 2010, Judge Carol Soloman confirmed and adopted the ruling of Judge Manson.6

On June 11, 2010, the court entered an amended performance bond, requiring Mr. Creighton to pay $7,500 to secure his performance in payment of $307 per week in child support. Mr. Creighton posted a performance bond in the amount of $7,500 on June 18, 2010, and was released from jail. Mr. Creighton appeals and raises four issues for review; however, we conclude that there are only three issues, which we state as follows:

1. Whether the trial court was required to provide a transcript of the proceedings in this matter, at its expense or at the State's expense?

2. Whether the court was within its discretion to disregard the expert testimony proffered by Mr. Creighton?

3. Whether the trial court's finding of contempt is supported by the evidence?

Before reaching the issues, we pause to review the relevant law on contempt. An act of contempt is a willful or intentional act that offends the court and its administration of justice. Tenn. Code Ann. § 29-9-102; see also Graham v. Williamson, 164 S.W. 781, 782 (Tenn. 1914). Traditionally, contempt has been classified as civil or criminal depending upon the action taken by the court to address the contempt. Title 29, Chapter 9 of the Tennessee Code on Remedies and Special Proceedings provides the grounds for contempt and the remedies available to the court. Tenn. Code Ann. §§ 29-9-102 through 104. As is relevant to the instant case, Tennessee Code Annotated Section 29-9-102 provides:

The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:

* * *

(3) The willful disobedience or resistance of any officer of the said courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of said courts.

In order to find contempt under this statute, a court must find the misbehavior, disobedience, resistance, or interference to be willful.

Following a finding of contempt, courts have several remedies available depending upon the facts of the case. A court can imprison an individual to compel performance of a court order. This is typically referred to as "civil contempt." This remedy is available only when the...

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