Tadd Timothy Brown v. Dawn Veronica Brown ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 1, 2016
TADD TIMOTHY BROWN v. DAWN VERONICA BROWN
Appeal from the Chancery Court for Williamson County
No. 39251 Deanna B. Johnson, Chancellor
No. M2015-01318-COA-R3-CV – Filed August 26, 2016
This appeal arises from a finding of criminal contempt in a child support matter. Dawn
Veronica Brown (“Mother”) filed a petition for contempt against her ex-husband Tadd
Timothy Brown (“Father”) in the Chancery Court for Williamson County (“the Trial
Court”). In her petition, Mother alleged numerous violations by Father of the parenting
plan and marital dissolution agreement, including that Father had failed to pay child
support toward their minor child (“the Child”). After a trial, the Trial Court found Father
guilty on twelve counts of criminal contempt. Father appeals. We find and hold that the
evidence is sufficient to sustain Father‟s convictions for failure to pay child support.
However, we reverse the count found against Father for his refusal to turn the Child over
to maternal relatives rather than Mother over one specific summer week, and modify his
sentence accordingly. Otherwise, we affirm the judgment of the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed, in Part, and, Reversed, in Part
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and BRANDON O. GIBSON, JJ., joined.
Judy A. Oxford, Franklin, Tennessee, for the appellant, Tadd Timothy Brown.
Angela R. Hoover, Franklin, Tennessee, for the appellee, Dawn Veronica Brown.
OPINION
Background
Mother and Father were divorced in March 2011. The parties‟ final decree
of divorce incorporated a parenting plan that, among other things, required Father to pay
child support to Mother for the Child, born 2002, in the amount of $357.00 per month. In
addition to the $357.00 per month child support, the parenting plan and final child
support order provided that Mother was to be permitted to retain the Child‟s Social
Security Benefits of $633.00 per month related to Father‟s Social Security disability, and
that these Social Security funds were to be used solely for the benefit of the Child. Father
was disabled as a result of a work-related injury from 1988. Mother was named primary
residential parent of the Child. Mother paid $350.00 per month to Father in transitional
alimony. In March 2012, Father filed a petition to modify the parenting plan to adjust his
child support obligation. This petition never was acted upon.
In November 2013, Mother filed a petition for contempt against Father.
Mother alleged numerous violations of the parenting plan. Relevant to the issues on
appeal, Mother alleged that Father willfully failed to pay his child support and that he had
failed to give Mother her visiting time in the summer of 2013. This matter was not tried
until February 2015.
Father testified that he believed, despite what the parenting plan said, that
the $357.00 he owed in child support per month actually should be subsumed into the
$633.00 that went to the Child from his Social Security disability benefits. Father stated
that he paid the $357.00 at first because he believed Mother needed it. Father remarried
and adopted his current wife‟s two children, which caused the Social Security allocation
to be reduced by two-thirds to the Child to $222.00 per month. According to Father, it
was his understanding that so long as the total amount he paid Mother for child support,
including the Social Security payment, equaled $357.00, he was adhering to his
obligations. With respect to the summer of 2013 incident, Father testified that he
originally had no issue with the Child going with her maternal relatives for the week the
Child was scheduled to be with Mother. Because Father became concerned that the
maternal relatives would not return the Child to him for his final two weeks of visitation,
he refused to allow the visit.
Mother testified that Father had failed to pay the full $357.00 from
November 2011 through April 2013. Mother stated that Father‟s refusing to pay the full
amount coincided with Mother‟s ceasing to pay him alimony because of Father‟s
remarriage. Mother also testified that Father had a practice of working side jobs which
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significantly augmented his reported income. However, Father denied this categorically,
and there was no additional evidence presented that he worked side jobs.
In March 2015, the Trial Court entered an order finding Father guilty of
criminal contempt. The Trial Court found that Father had failed to pay the full required
amount of child support for eleven different months for a total of eleven counts. The
Trial Court also found Father guilty on one count of criminal contempt for refusing to
turn the Child over to maternal relatives in the summer of 2013. The Trial Court
sentenced Father to 120 days in jail to be served consecutively, all but five days
suspended. The Trial Court stated, in part:
At the Hearing on the Contempt Petition, Father claimed he stopped
paying the Child Support because he believed the Social Security disability
benefits Mother was receiving on behalf of the child should take the place
of the Child Support. Father claimed he was given this advice by his
attorney. The Court does note that on March 14, 2012, Father filed a
Petition to Modify the Parenting Plan arguing that the Child Support
Worksheet is incorrect because it improperly accounts for the Social
Security disability benefits. However, that Petition was never heard. Thus,
Father was still under an obligation to pay $357.00 per month as agreed to
in the Parenting Plan and Marital Dissolution Agreement and as Ordered in
the Final Divorce Decree.
Moreover, the Court finds that Father‟s claim that he was instructed
by his lawyer to make only partial payments is not credible. Father failed to
subpoena his lawyer to testify regarding such claims. Therefore, Father‟s
story could not be challenged. Also, Mother‟s attorney has represented her
throughout the entirety of this case. She informed the Court that the
Petition to Modify the Parenting Plan Father had filed was dismissed by
Father‟s previous attorney. In addition, the timing of Father‟s sudden
ceasing of Child Support payments defeats his credibility. He had been
paying $357.00 per month for nearly a year. Then, when Mother stopped
paying Alimony (which was $350.00 per month), Father almost
immediately stopped paying Child Support and a month later he filed a
Petition to Modify the Parenting Plan. Finally, Father‟s general demeanor
while testifying leads the Court to find that Father is not credible on this
issue.
On March 22, 2013, Father emailed Mother and advised her that
their daughter‟s portion of the Social Security Disability benefits would be
decreased to $222.00 per month. This reduction occurred because Father
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adopted his new wife‟s two children. At the Hearing, Father admitted that
he knew that adopting two additional children would decrease the amount
of Social Security benefits [the Child] would receive. Father gave no
viable explanation for his decision to adopt two additional children despite
it reducing [the Child‟s] benefits other than to say “it was the right thing to
do.” In that same email, Father informed Mother that, because of this
benefits decrease to [the Child], he would begin paying $135.00 per month,
which would be the difference between $357.00 and $222.00. So, in April
of 2013, Father began making partial payments of $135.00 per month in
Child Support.
Ultimately, based on the parties‟ testimony, the Court finds that
Father willfully did not pay any child support for the months of November
of 2012, December of 2012, January of 2013, February of 2013, and March
of 2013. In addition, the Court finds that Father willfully paid only $135.00
per month for the months of April through September of 2013. Therefore,
Father willfully failed to pay the full amount of Child Support Ordered,
$357.00 per month, on eleven (11) different occasions. The Court finds
that Father had the ability to pay all of this Child Support as he was
continuing to receive his Social Security benefits from the Federal
Government.
***
In the instant case, Father‟s excuse that his lawyer told him he did
not have to pay $357.00 per month is not a defense to ignoring the Court‟s
Order to pay it. First of all, the Court does not find Father‟s testimony that
his lawyer told him not to pay $357.00 per month in Child Support to be
credible. Father‟s demeanor and testimony at trial was not credible. In
addition, the circumstances under which Father failed to pay the Child
Support leads the Court to disbelieve Father‟s “my lawyer told me to”
defense. Father paid $357.00 per month for nearly a year. During this
entire time, Mother was receiving the $633.00 per month for Social
Security benefits for [the Child]. Then, in November of 2011, Mother
stopped paying Alimony to Father because he re-married. Father almost
immediately stopped paying Child Support. Then, in March of 2012,
Father filed a Petition to Modify Child Support. However, that Petition was
never heard by the Court. According to Mother‟s attorney, that Petition
was withdrawn in open Court. As Father failed to bring his former lawyer
to Court to testify about the matter or to submit an Affidavit about it, the
Court has before it only the statements of Mother‟s attorney.
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It is also noteworthy that, during the Mediation, Mother raised
allegations that Father was making money “on the side” in addition to the
Social Security Disability benefits he received from the federal
Government. During the bargaining process and the give-and-take of the
Mediation, Mother compromised those allegations of Father earning money
“on the side” and agreed to a lesser income for Father in exchange for
receiving $357.00 per month in Child Support and the $633.00 per month
for the child‟s social security disability benefits.
As discussed above, on March 22, 2013, Father emailed Mother and
advised her that their daughter‟s portion of the Social Security Disability
benefits would be decreased to $222.00 per month. This reduction
occurred because Father adopted his new wife‟s two children. At the
Hearing, Father admitted that he knew that adopting two additional children
would decrease the amount of social security benefits [the Child] would
receive. Father gave no viable explanation for his decision to adopt two
additional children despite it reducing [the Child‟s] benefits other than to
say “it was the right thing to do.” In that same email, Father informed
Mother that, because of this benefits decrease to [the Child], he would
begin paying $135.00 per month, which would be the difference between
$357.00 and $222.00. So, in April of 2013, Father began making partial
payments of $135.00 per month in Child Support.
Ultimately, based on the parties‟ testimony, the Court finds that
Father did not pay any child support for the months of November of 2012,
December of 2012, January of 2013, February of 2013, and March of 2013.
In addition, the Court finds that Father paid only $135.00 per month for the
months of April through September of 2013. Therefore, Father failed to
pay the full amount of Child Support Ordered, $357.00 per month, on
eleven (11) different occasions. Based on the foregoing, the Court finds
that Father had the ability to pay the full amount of Child Support on all of
those eleven (11) different occasions at the time the support was due. In
addition, the Court finds that Father‟s failure to pay the full amount of
Child Support on those eleven (11) different occasions was willful.
***
During the litigation, Father moved to Maine. The Parenting Plan
requires that Father provide transportation to and from Maine at the
beginning and end of his summer parenting time. At the time of the
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divorce, [the Child] was eight (8) years old. Initially, Mother allowed [the
Child] to travel on the airplane by herself. However, [the Child] was afraid
of flying by herself. Accordingly, in approximately November of 2012,
Mother decided not to require [the Child] to fly by herself and, instead, told
Father that he would need to fly to Nashville to get her.
The Parenting Plan provides that, for the summer of 2012, Father
would have parenting time in Maine for three non-consecutive weeks and
Mother would have parenting time for one week in Maine at the end of the
first or second week of Father‟s parenting time. Then, beginning in the
summer of 2013, Father is to have parenting time for four non-consecutive
weeks in the summer in two-week blocks, with Mother having one week of
parenting time in Maine at the end of Father‟s first two-week block.
According to Father‟s own testimony, the intention of this arrangement was
so that [the Child] could visit with her aunt (Mother‟s sister) and the rest of
Mother‟s family, who also live in Maine, during that period of time.
In the summer of 2012, [the Child] did spend that one week time
period with Mother‟s sister. However, in 2013, Father refused to allow [the
Child] to leave his house with Mother‟s sister. Instead, Father kept [the
Child] with him during that time, which was actually Mother‟s week, and
then kept [the Child] another two weeks, for a total of five weeks that
summer. Father claimed his reason for not allowing [the Child] to go with
her aunt was that he believed the aunt would not return [the Child] to him.
Mother testified Father‟s action in this regard was in retaliation for Mother
refusing the previous November to allow [the Child] to fly alone. The
Court finds Mother to be credible on this issue. Based on this evidence
presented at trial, including the credibility and demeanor of the witnesses,
the Court finds, beyond a reasonable doubt, that Father willfully violated
this portion of the Final Decree.
Father filed a motion to alter or amend judgment. The Trial Court denied Father‟s
motion with respect to child support, visitation, and excessiveness of sentence.1 Father
filed an appeal to this Court.
1
In its order on Father‟s motion to alter or amend, the Trial Court makes reference to a 130 day total
sentence for Father. We believe this to be an error because in the Trial Court‟s earlier order it found
Father guilty on twelve counts of criminal contempt for a total sentence of 120 days, all but five
suspended. Both parties also state in their briefs that the sentence is 120 days rather than 130.
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Discussion
Although not stated exactly as such, Father raises the following three issues
on appeal: 1) whether the Trial Court erred in finding Father guilty beyond a reasonable
doubt of criminal contempt for non-payment of child support; 2) whether the Trial Court
erred in finding Father guilty beyond a reasonable doubt of criminal contempt for
refusing to turn the Child over to maternal relatives for one week of visitation during the
summer; and, 3) whether Father‟s sentence is excessive. Mother attempts to request in
the next to last sentence of her brief her attorney‟s fees incurred on appeal.
In Moody v. Hutchison we explained:
The first issue we will address is Defendant‟s claim that Plaintiff
failed to prove he was guilty of criminal contempt beyond a reasonable
doubt. As this Court recently observed in Barber v. Chapman, No. M2003-
00378-COA-R3-CV, 2004 Tenn. App. LEXIS 111 (Tenn. Ct. App. Feb. 23,
2004), no appl. perm appeal filed:
In a criminal contempt case, the guilt of the accused
must be established beyond a reasonable doubt. Black v.
Blount, 938 S.W.2d 394 at 398 (Tenn. 1996) (citing Robinson
v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d
908, 912 (Tenn. 1964)). However, on appeal, individuals
convicted of criminal contempt lose their presumption of
innocence and must overcome the presumption of guilt.
“Appellate courts do not review the evidence in a light
favorable to the accused and will reverse criminal contempt
convictions only when the evidence is insufficient to support
the trier-of-fact‟s finding of contempt beyond a reasonable
doubt.” Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct.
App. 1993) (citing Tenn. R. App. P. 13(e)). Furthermore,
appellate courts review a trial court‟s decision of whether to
impose contempt sanctions using the more relaxed abuse of
discretion standard of review. Hawk v. Hawk, 855 S.W.2d
573, 583 (Tenn. 1993).
Barber, 2004 WL 343799, at *2, 2004 Tenn. App. LEXIS 111, at *8.
Accord, Freeman v. Freeman, 147 S.W.3d 234, 242 (Tenn. Ct. App. 2003),
appl. perm. appeal denied March 22, 2004 (“Appellate Courts review a
trial court‟s decision to impose contempt sanctions using the more relaxed
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„abuse of discretion‟ standard of review.… The court of appeals has
„appellate jurisdiction over civil or criminal contempt arising out of a civil
matter.‟ See T.C.A. § 16-4-108(b)…”).
Moody v. Hutchison, 159 S.W.3d 15, 25-26 (Tenn. Ct. App. 2004).
To sustain a finding of criminal contempt for failure to pay child support,
the petitioner must prove beyond a reasonable doubt that the parent had the ability to pay
support when it was due and that his or her failure to pay the required support was
willful. Cottingham v. Cottingham, 193 S.W.3d 531, 538 (Tenn. 2006).
Our Supreme Court has given guidance with regard to discretionary
decisions stating:
The abuse of discretion standard of review envisions a less rigorous
review of the lower court‟s decision and a decreased likelihood that the
decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility,
288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86
S.W.3d 189, 193 (Tenn. Ct. App. 2000). It reflects an awareness that the
decision being reviewed involved a choice among several acceptable
alternatives. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct.
App. 1999). Thus, it does not permit reviewing courts to second-guess the
court below, White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.
App. 1999), or to substitute their discretion for the lower court‟s, Henry v.
Goins, 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998). The abuse of discretion standard of review
does not, however, immunize a lower court‟s decision from any meaningful
appellate scrutiny. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211
(Tenn. Ct. App. 2002).
Discretionary decisions must take the applicable law and the relevant
facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d
652, 661 (Tenn. 1996). An abuse of discretion occurs when a court strays
beyond the applicable legal standards or when it fails to properly consider
the factors customarily used to guide the particular discretionary decision.
State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its
discretion when it causes an injustice to the party challenging the decision
by (1) applying an incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526 (Tenn.
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2009); Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249
S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of
Nashville, 154 S.W.3d at 42.
To avoid result-oriented decisions or seemingly irreconcilable
precedents, reviewing courts should review a lower court‟s discretionary
decision to determine (1) whether the factual basis for the decision is
properly supported by evidence in the record, (2) whether the lower court
properly identified and applied the most appropriate legal principles
applicable to the decision, and (3) whether the lower court‟s decision was
within the range of acceptable alternative dispositions. Flautt & Mann v.
Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008)
(quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co.,
No. 87-136-II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988) (No
Tenn. R. App. P. 11 application filed)). When called upon to review a
lower court‟s discretionary decision, the reviewing court should review the
underlying factual findings using the preponderance of the evidence
standard contained in Tenn. R. App. P. 13(d) and should review the lower
court‟s legal determinations de novo without any presumption of
correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn.
Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d at 212.
Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010).
The first issue we address is whether the Trial Court erred in finding Father
guilty beyond a reasonable doubt of criminal contempt for non-payment of child support.
Father has two main arguments on this issue: (1) that Mother failed to prove Father‟s
ability to pay; and (2) that Father had a pending petition to correct the amount of child
support he was required to pay pursuant to the parenting plan.
With respect to Father‟s ability to pay, the evidence in the record is that
Father receives approximately $1,100.00 per month in Social Security disability.
Father‟s medications cost around $400.00 per month. Mother testified that, during the
time child support was due, Father worked side jobs that swelled his income to over
$3,000.00 per month. Father denied that he did any work on the side. The Trial Court
specifically found Father to be not credible. Mother never makes it clear exactly how she
knows what side jobs Father works. However, whether Father worked side jobs or not,
the issue remains whether Father had the ability to pay and whether he willfully refused
to pay. Even were we to discount Mother‟s testimony that Father worked on the side, it
remains undisputed that Father drew Social Security disability income. Father correctly
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notes that it is insufficient in a case of criminal contempt merely to show non-payment of
child support. There must be a showing of willfulness.
In our view, the evidence shows, as found by the Trial Court, that Father
stopped making child support payments not because of an inability to pay, but rather
because he was unhappy with his child support obligation as required in the original
parenting plan. Father, in his brief, asserts that “[w]hen Father was no longer receiving
alimony from Mother, he did not have the funds with which to pay child support above
and beyond what the SSA was paying Mother for support of the child.” This contradicts
Father‟s stated rationale at other points in this case. As found by the Trial Court, “[a]t the
Hearing on the Contempt Petition, Father claimed he stopped paying the Child Support
because he believed the Social Security disability benefits Mother was receiving on
behalf of the child should take the place of the Child Support.” The Trial Court found
further that “Father had the ability to pay all of this Child Support as he was continuing to
receive his Social Security benefits from the Federal Government.” The evidence does
not preponderate against this finding. Father made the $357.00 per month child support
payments until late 2011. Father clearly was aware of his obligation as established in the
parenting plan. Father continued to receive his Social Security disability payments
thereafter. Mother did stop making alimony payments upon Father‟s remarriage as
allowed under the marital dissolution agreement, but the terms of the parenting plan were
still in effect. If Father wished to challenge the amount of his child support, he should
have done so through the courts rather than simply deciding to stop paying the full
amount on his own.
Father then points to a petition he filed to alter his child support obligation.
The record does reflect that Father filed a petition regarding his child support in March
2012. However, the record does not reveal the disposition, if any, of this petition.2 We
do not agree with Father‟s argument that his petition, apparently at least abandoned as
best we can tell by the record, means that Father can unilaterally disregard his court
ordered child support obligation. We affirm the Trial Court in its finding that Father,
despite having the ability to pay, willfully failed to pay the required amount of $357.00
per month in child support on eleven distinct occasions.
The next issue we address is whether the Trial Court erred in finding Father
guilty beyond a reasonable doubt of criminal contempt for refusing to turn the Child over
to maternal relatives for Mother‟s one week of visitation in the summer of 2013. The
Court found Father guilty on one count for his refusal to turn the Child over to a maternal
aunt and uncle for one week during the summer of 2013. The parties‟ parenting plan
2
Mother‟s counsel represented that Father dismissed the petition in court. However, we have no
evidence in the record one way or the other.
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required that Mother have one week of visitation at that particular time. Father argues
that Mother could not delegate her parenting time to her relatives and that he therefore
was justified in refusing to turn the Child over to the maternal relatives. Father points out
that in 2014, a different judge, Judge Martin, issued an order in this case stating in part
that: “Mother may not delegate the middle week of the summer parenting schedule to
someone else. The Court expects Mother to be with the child for the entire week of
Father‟s summer parenting time.” While Judge Martin‟s order came one year after the
controversy at issue but before the contempt hearing, we find it unjust to find Father‟s
conduct willful and to penalize Father for refusing to turn the Child over to Mother‟s
relatives rather than Mother when a different judge acting in this case ruled expressly that
under the parenting plan Mother was not entitled to delegate her week to anyone else.
We reverse the Trial Court‟s finding of criminal contempt against Father on this count.
The final issue of Father‟s we address is whether Father‟s sentence is
excessive. In Simpkins v. Simpkins, 374 S.W.3d 413 (Tenn. Ct. App. 2012) this Court
modified a sentence we deemed to be excessive. We stated as follows:
Although the record clearly established Husband‟s guilt of all
fourteen counts of criminal contempt, that fact alone does not justify the
imposition of the maximum sentence of ten days for each conviction or that
all of the sentences run consecutively to each other for an effective period
of confinement of 140 days. To the contrary, there is a presumption in favor
of concurrent sentencing as distinguished from consecutive sentencing. See
State v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987) (holding that
consecutive sentences should not routinely be imposed in criminal cases
and the aggregate maximum of consecutive terms must be reasonably
related to the severity of the offenses involved). Further, the record
suggests the trial court did not consider the statutory criteria when
determining whether Husband‟s multiple sentences should be served
concurrently or consecutively. See Tenn. Code Ann. § 40-35-115(a) (“If a
defendant is convicted of more than one (1) criminal offense, the court shall
order sentences to run consecutively or concurrently as provided by the
criteria in this section.”). Tennessee Code Annotated § 40-35-115(b)
provides that the court may order sentences to run consecutively if the court
finds by a preponderance of the evidence that:
(1) The defendant is a professional criminal who has knowingly devoted
the defendant‟s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
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(3) The defendant is a dangerous mentally abnormal person so declared by
a competent psychiatrist who concludes as a result of an investigation prior
to sentencing that the defendant‟s criminal conduct has been characterized
by a pattern of repetitive or compulsive behavior with heedless indifference
to consequences;
(4) The defendant is a dangerous offender whose behavior indicates little or
no regard for human life and no hesitation about committing a crime in
which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and
victim or victims, the time span of defendant‟s undetected sexual activity,
the nature and scope of the sexual acts and the extent of the residual,
physical and mental damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
The only statutory factor that applies to Husband is that he is
sentenced for criminal contempt. While this may justify consecutive
sentencing, at least in part, this factor alone does not justify the imposition
of the absolute maximum sentence of 140 days. As we noted above,
“[a]lthough statutory criteria may support the imposition of consecutive
sentences, the overall length of the sentence must be „justly deserved in
relation to the seriousness of the offense [s],‟ and „no greater than that
deserved‟ under the circumstances.” Sneed, 302 S.W.3d at 828 (internal
citations omitted).
***
We do not condone any of Husband‟s conduct and agree with the
trial court that incarceration is appropriate based upon the facts of this case;
however, his contemptuous acts do not justify the imposition of the
maximum sentence of ten days for each and every count, or consecutive
sentencing for all fourteen counts. Having considered the facts of this case,
we find the imposition of an effective sentence of 140 days is excessive,
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especially because only one of the factors in Tennessee Code Annotated §
40-35-115(b) applies.
Simpkins, 374 S.W.3d at 424-25.
The evidence in the record on appeal reflects that Father willfully refused to
pay in full his child support as required despite having the ability to pay. While Father
objected to the amount of his child support in connection with his Social Security
disability income to the Child, there nevertheless was a lawful order requiring Father to
pay. Unlike Simpkins, here the Trial Court specifically considered the statutory criteria
under Tenn. Code Ann. §§ 40-35-115(a) and 40-35-115(b). Father‟s belief that he should
be given credit for the Social Security disability payment to the Child did not permit him
to unilaterally stop paying the full amount of child support absent a judicial order. The
importance of a parent paying his or her court ordered child support timely cannot be
overstated. This policy is supported by the General Assembly‟s including in Tenn. Code
Ann. § 40-35-115(b) the specific provision allowing a court to order sentences to run
consecutively if the court finds that “the defendant is sentenced for criminal contempt.”
Given all this, including considering the totality of all the circumstances of this case, we
find no reversible error by the Trial Court and, therefore, Father‟s sentence of 10 days for
each of the eleven counts to be served consecutively is not excessive.
Having reversed one of twelve counts found against Father, we affirm
Father‟s conviction and sentence of 110 days in jail with all but five days suspended.
The Trial Court‟s decision that Father‟s sentences are to be served consecutively also is
affirmed.
As a final matter, we decline to award Mother her attorney‟s fees incurred
on appeal. While Mother asks for her attorney‟s fees in the next to last sentence of her
brief, Mother never set that out as a separate issue in her statement of issues as required.
Additionally, Mother makes no argument as to why she is entitled to her attorney fees in
this case.
Conclusion
The judgment of the Trial Court is affirmed, in part, and, reversed, in part,
and this cause is remanded to the Trial Court for collection of the costs below. The costs
on appeal are assessed against the Appellant, Tadd Timothy Brown, and his surety, if
any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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