Dorothy Ahern v. Robert Ahern

IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________

FILED

) September 11, 1998

DOROTHY JANE AHERN (PIEROTTI) ) Shelby County Circuit Court

) No. 134593 R.D. Cecil Crowson, Jr.

Appellate C ourt Clerk

Plaintiff/Appellee. )

)

VS. ) C.A. No. 02A01-9708-CV-00190

)

ROBERT FRANCES AHERN, )

)

Defendant/Appellant. )

)

______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.

Honorable D’Army Bailey, Judge

John R. Candy, Collierville, Tennessee

Garland Erguden, Memphis, Tennessee

Attorneys for Defendant/Appellant.

Robert A. Wampler, Memphis, Tennessee

Attorney for Plaintiff/Appellee.

OPINION FILED:

AFFIRMED IN PART, REVERSED IN PART 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 guilty of multiple counts of criminal contempt for failing to pay the alimony

and child support obligations set forth in the court’s final divorce decree. We affirm in part and

reverse in part the trial court’s judgment.

I. Factual and Procedural History

The parties were divorced in June 1993. The final divorce decree, which incorporated

the provisions of the parties’ marital dissolution agreement (MDA), awarded Plaintiff/Appellee

Dorothy Jane Ahern Pierotti (the Wife) exclusive custody of the parties’ two minor children. The

Husband agreed to pay child support in the amount of $1,346.88 per month and to furnish the Wife

copies of his canceled payroll checks and payroll ledger on a quarterly basis. The Husband also

agreed to pay 88.5% of (1) the children’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 the Wife as alimony 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 maintenance. This same shall incur

interest at 8% simple annual interest compounded annually. The

payments shall be at the rate of $1000 per month, principal and

interest beginning on the LAST day of MARCH, 1993, and on the

same date thereafter until paid. This sum shall not be deductible for

tax purposes by the husband nor includible in the wife’s income for

tax purposes. Interest begins on 3/9/93. This judgment shall also be

against M.S.I. jointly and severally. No prepayment penalty.

M.S.I. referred to Management Systems, Incorporated. The Husband owned all of M.S.I.’s stock and

served as its president.

In November 1996, the Wife filed a petition for writ of scire facias in which she

sought to have the Husband held in contempt for his willful and intentional violations of the

foregoing support provisions of the final divorce decree. The petition alleged that the Husband had

filed a bankruptcy petition in which he sought to discharge the alimony debt to the Wife but that the

debt was determined to be nondischargeable. The Wife later amended her petition to ask that the

Husband be 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 Code Annotated 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 court to make a determination as to the

dischargeability of the debts pursuant to an order of the Bankruptcy Court for the Western District

of Tennessee; however, the bankruptcy court’s order does not appear in the record.

Prior to trial, the case was transferred from Division 8 to Division 5 of the Circuit

Court for the Thirtieth Judicial District. Although the Husband previously had demanded a jury trial,

he announced that he would 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 she was transferring the case

back to Division 8. The trial judge announced that:

This Court is of the opinion that post-divorce matters, especially in

a situation such as this one, are more properly heard by the judge who

heard the divorce, and this -- and Division 5 is transferring this back

to Division 8, which is now in a posture to accommodate the parties.

The transfer followed arguments by counsel for the parties concerning 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 transfer back to Division 8. When the proceedings

resumed in Division 8, however, the Husband contended that jeopardy had attached in the trial

before Division 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 trial,

but the trial court ruled that this right also had been waived.

At trial, the Wife testified that the Husband had failed to make alimony payments as

required by paragraph 14 of the MDA. At the time of the Wife’s petition, the Husband owed the

Wife $28,271.46 in alimony. The Wife also testified that the Husband owed $13,828.12 for the

children’s private school tuition because he had not paid his share of the tuition for four consecutive

school years. Finally, the Husband failed to pay $3,758.41 for the parties’ son’s braces.

The Husband admitted that he had not paid the amounts alleged to be owed to the

Wife. The Husband claimed, however, that he was unable to pay the amounts, despite the fact that

his adjusted gross income for each of the two previous years exceeded $80,000. Since the divorce,

the Husband had remarried a woman with three children, and he and his new wife had a child

together. The Husband claimed that most of his income went toward paying child support to the

Wife and toward supporting his new family, including an $1100 mortgage payment 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 that in 1996 he purchased a new home valued at

approximately $165,000 and that in 1994 or 1995 he paid about $5,000 to settle a battery claim

against him. The Husband denied that any amount due for the son’s braces constituted a “health-

related care cost,” and he stated that the Wife never had requested reimbursement 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 discharged in his bankruptcy

proceeding. The trial court repeatedly sustained the Wife’s objections to this testimony, however,

ruling that such testimony was irrelevant. As an offer of proof, the Husband submitted documents

from the bankruptcy court which showed (1) that the Husband filed his bankruptcy petition in

October 1993, (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 received a discharge as to all dischargeable debts. The Wife’s

proof of claim was somewhat confusing in that it seemed to characterize the debt both as a “property

division” and as spousal “support and maintenance.”

At the trial’s conclusion, the trial court found beyond a reasonable doubt that the

Husband was guilty of criminal contempt, pursuant to Tennessee Code Annotated section

29-9-102(3), for failing to pay the alimony and child support obligations set forth in the final divorce

decree. The trial court made the following findings and imposed the following sentences:

2. That [the Husband] is in arrears through December 31,

1997, in the payment of the Court ordered 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 deems that each monthly default by [the

Husband] is a separate act of criminal contempt and [the Husband] is

sentenced to incarceration for five (5) days for each of the twenty-

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 $13,828.12 through

May 1997 and unpaid uninsured health related care costs for the

children in the amount of $3,758.48 through November 1996 and the

Court finds [the Husband] in criminal contempt for this default and

sentences [the Husband] to one hundred and eighty days incarceration

for this default, however this sentence will run concurrently with the

sentence of one hundred forty days incarceration 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 rejecting the Husband’s defense of double jeopardy, in finding that the Husband

waived his right to a jury trial, and in excluding proof of the Husband’s prior bankruptcy proceeding.

II. Denial of Husband’s Double Jeopardy Claim

We first find it necessary to address the Husband’s double jeopardy argument

because, if his argument on this issue is successful, it will effectively pretermit the Husband’s

remaining issues on appeal. The double jeopardy clause of the United States Constitution provides

that 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

same offence, be twice put in jeopardy of life or limb.” Tenn. Const. art. I, § 10. The double

jeopardy clauses of the United States and Tennessee constitutions protect against “(1) a second

prosecution for the same offense after conviction, (2) a second prosecution for the same offense after

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 proceedings 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 this case

would suggest that the protection against double jeopardy attached because the case involved

nonsummary criminal contempt proceedings 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 jeopardy violation because

we conclude that he waived this defense by failing to object to the Division 5 judge’s transfer of the

case back to Division 8. Courts have recognized an exception to the prohibition against double

jeopardy when the defendant consents to the termination of the first proceeding in which jeopardy

attaches. State v. Mounce, 859 S.W.2d 319, 321 (Tenn. 1993) (citing United States v. Scott, 437

U.S. 82 (1978); State v. Knight, 616 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 manifest 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, our supreme court held that double jeopardy will not bar a

subsequent prosecution “when a defendant chooses not to object to the mistrial and give the trial

court an opportunity to correct the error” because, in that situation, the defendant’s consent may be

1

A manifest necessity exists “only when there is no feasible and just alternative to halting

the proceedings.” State v. Mounce, 859 S.W.2d at 322. We are unable to discern any necessity

for the Division 5 judge’s decision to transfer this case back to Division 8.

inferred. State v. Mounce, 859 S.W.2d at 323. The court explained its rationale for this holding:

[T]he rationale for requiring an objection to a mistake is that it gives

the trial judge an opportunity to cure a situation that one or both

parties perceive to be in error. A party ought not be permitted to

stand silently by while the trial court commits an error in procedure,

and then later rely on that error when 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 fails to object to the jury’s discharge upon a

defective verdict, he is viewed as having waived the right not to be

put on trial again. State v. Ragsdale, 78 Tenn. 671, 672 (1882); 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 waiver).

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

We conclude that the foregoing rationale applies to the 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 back to Division 8, the

Husband chose to remain silent at a time when he could have objected to the action taken by the

judge. Under these circumstances, the Husband’s consent to the procedure employed could 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 the proceedings resumed in Division 8, the Husband suggested that the

Division 5 trial judge did not give him the opportunity to make a timely objection to the transfer;

however, our review of the record does not support such a suggestion. The following exchange took

place when the Division 5 trial judge announced that she was transferring the case back to

Division 8:

THE COURT: This Court is of the opinion that post-divorce

matters, especially in a situation such as this one, are more properly

heard by the judge who heard the divorce, and this -- and Division 5

is transferring this back to Division 8, which is now in a posture to

accommodate the parties.

[WIFE’S COUNSEL]: You mean today?

THE COURT: I mean immediately. I mean right this

moment.

[WIFE’S COUNSEL]: Okay. Thank you, 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,

questions 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 action.

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 denying 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 was

conditioned on a trial being conducted 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 we conclude that the

Husband did not have a right to a jury trial in these criminal contempt proceedings. The Tennessee

Constitution provides that “the right of trial by jury shall remain inviolate.” 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 embraced

in Tennessee was ceded by North Carolina to the United States government.” State v. Dusina, 764

S.W.2d 766, 768 (Tenn. 1989). Applying this provision, our supreme court has held that a defendant

accused of a violation of a general criminal statute has the right to a jury trial if the possible

punishment for the offense 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).2

2

This holding is consistent with rule 23 of the Tennessee Rules of Criminal Procedure,

which provides that, “[i]n all criminal cases except small offenses, trial shall be by jury unless

the defendant waives a jury trial in writing with the approval of the court and the consent of the

district attorney general.” Tenn. R. Crim. P. 23. In Tennessee, 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,

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 Steelworkers, 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 grounds by State v. Dusina, 764 S.W.2d 766 (Tenn.

1989). In holding that no such right exists, the supreme court explained:

“The general rule is that a constitutional guaranty of jury trial

does not apply to proceedings to punish for contempt of court

whether in a court of law, a court of equity, a court having criminal

jurisdiction, or other court. Punishment for contempt may be

summary whether the contempt is direct or indirect, civil or criminal,

whether the contempt consists in disobedience of an order of the

court, insult, or in other conduct or omission, whether the acts

constituting the contempt constitute also infractions of the criminal

law, although of the grade of felony and whether imprisonment or

fine is imposed or indemnity of an adverse party is decreed. Due

process does not require a jury trial in such a proceeding.” 31 Am.

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 to punish for contempt) 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 judiciary,

and is absolutely essential to the performance of the duties imposed

on them by law. * * *

“There has been general recognition of the fact that the courts

are clothed with this power, and must be authorized to exercise it

without referring the issues of fact or law to another tribunal or to

a jury in the same tribunal. * * *” (Emphasis ours.) Gompers v.

Buck’s Stove & 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 holding is still the law, the Husband in this case had no right

to a jury trial. The Husband insists, 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 specifically rejected this argument, reasoning that:

889 (Tenn. 1996).

We could not agree that courts have the unlimited power to punish

respondents for criminal contempt without giving them a jury trial.

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. Ed. 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 constitution: the penalties then

authorized and imposed for criminal contempts were

generally minor; and the courts were authorized to

impose minor criminal penalties without a trial by jury

for a variety of trivial offenses including, but not

limited to, criminal contempts.

At some point on the punishment scale the court’s power in

criminal contempt cases would clash with the respondent’s right to a

jury trial. [Footnote omitted].

On the other hand, we do not think the clash occurs at a point

on the scale where any incarceration is threatened. Although criminal

contempt is a crime, for constitutional purposes, it is not the same as

a violation of the criminal law. . . . “The proceeding in contempt is

for an offense against the court as an organ of public justice, and not

for a violation of the 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 at 672 (1955). Thus, a defendant may be jailed for

criminal contempt without a trial by jury, but the same defendant may

demand a jury trial 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-00008, 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 foregoing authorities, we continue to adhere to the holding that a

defendant is not entitled to a jury trial in a criminal contempt proceeding in Tennessee. We

recognize that, in affirming this court’s opinion in Brown v. Latham, our supreme court found it

unnecessary to address this issue. Brown v. Latham, 914 S.W.2d 887, 889 (Tenn. 1996). We also

recognize 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

and other criminal offenses and instead has examined the seriousness of the penalty for the criminal

contempt charged. Bloom v. Illinois, 391 U.S. 194 (1968).3 We are constrained, however, to follow

the prior supreme court decisions of this 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 alternatively 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 offense of failing to comply

with a child support order. See T.C.A. § 36-5-104(a) (1996). In Brown v. Latham, our supreme

court held that section 36-5-104(a) defined a criminal offense and that a defendant charged

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 convicted under section

36-5-104(a) because he was sentenced to 180 days incarceration for failing to comply with the

court’s child support order. Section 36-5-104(a) authorizes a punishment of up to six months

imprisonment, while section 29-9-103(b) authorizes a punishment of only ten days imprisonment.

See T.C.A. § 36-5-104(a) (1996); T.C.A. § 29-9-103(b) (1980 & Supp. 1996). Unlike the trial

court’s findings with regard to the Husband’s failure to pay alimony, the court’s order neither

specifies the number of instances in which the Husband was found to be in contempt for failing to

pay child support nor the sentence for each contempt. Accordingly, we are unable to determine how

the trial court calculated the Husband’s sentence for failing to comply with the final decree’s child

support provisions.4 In any event, we note that the Husband has not challenged the length of his

sentence on appeal.

3

Following Bloom v. Illinois, the United States Supreme Court held that the federal

constitution did not guarantee a jury trial to defendants charged with criminal contempt in

Tennessee because the maximum penalty was ten days 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 offense. 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 Tennessee

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 share of the

children’s tuition for the school years 1993-94, 1994-95, 1995-96, and 1996-97.

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 court

order must have been willful. Haynes v. Haynes, 904 S.W.2d 118, 120 (Tenn. App. 1995); T.C.A.

§ 29-9-102(3) (1980). We agree with the Husband’s contention that the proffered evidence was

relevant because, 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 payments to a debtor’s spouse,

former spouse, or child, the debt is not dischargeable in bankruptcy; however, if the debt is a

property settlement, it is dischargeable. Kimbrough v. Helton, No. 01A01-9507-CH-00318, 1996

WL 474427, at *3 (Tenn. App. Aug. 21, 1996) (citing 11 U.S.C. § 523(a)(5)(B)). If the Husband

can show that, based on the prior bankruptcy proceedings, he reasonably 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 discharged in bankruptcy, the

Husband might have a valid defense to the Wife’s charge of criminal contempt.5 See American

Cyanamid Co. v. Rogers, 314 N.E.2d 679, 682 (Ill. App. Ct. 1974) (noting that discharge in

bankruptcy may establish affirmative defense to contempt charge); see also Crabtree v. Crabtree,

716 S.W.2d 923, 925-26 (Tenn. App. 1986) (holding that trial court erred in excluding appellant’s

testimony as 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 the trial 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 subject

5

We recognize that the Husband’s corporation, M.S.I., was jointly and severally 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 obligation. To the contrary, the Husband testified

that the corporation was losing money and that the I.R.S. had filed tax liens against the

corporation’s assets.

and that the court was aware of the prior bankruptcy proceedings. The trial court’s rulings made

clear, however, that the court was refusing to consider any evidence of the bankruptcy proceedings

because it considered the evidence to be irrelevant.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 evidence was harmless and, thus, we find it necessary to reverse the contempt

order as it pertains to the Husband’s failure to pay alimony to the Wife. See Crabtree v. Crabtree,

716 S.W.2d at 925-26; T.R.A.P. 36(b). We stress, however, that our holding on this issue does not

affect the trial court’s order of contempt with regard to the Husband’s failure to pay child support.

On appeal, the Husband does not contend that the prior bankruptcy proceedings were 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 proceedings

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

issue if necessary.

____________________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

______________________________

LILLARD, J. (Concurs)

6

In its judgment of contempt, the trial court ruled that the MDA “speaks for itself” and

that “all payments required of [the Husband] to [the Wife] as alimony 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 description of the obligation was not determinative of the nature of the debt or its

dischargeability in the subsequent bankruptcy proceedings. LeMasters v. Ross, No.

01A01-9702-CV-00070, 1997 WL 717237, at *3 (Tenn. App. Nov. 19, 1997) (citing 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).