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Posted by: Tanja Trezise on Jun 10, 2013

Head Comment: CORRECTION: On page one (1) of the opinion Trial Judge has been corrected to Joshua L. Rogers, Child Support Magistrate.

Court: TN Court of Appeals

Attorneys 1:

Paul A. Justice, III, Franklin, Tennessee, for the appellant, Donald Howard.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter, Warren A. Jasper, Lead Counsel, and Jennifer L. Cole, Nashville, Tennessee, for the appellee, State of Tennessee ex rel. Tonya Dotson.

Judge(s): CLEMENT

The father of one child appeals the trial court’s finding of ten counts of criminal contempt for failing to pay ten weekly child support payments and the imposition of consecutive sentences of ten days for each count for a total sentence of 100 days in jail. Petitioner introduced little evidence other than proof that the father had not paid child support; the father defended the petition insisting he did not have the ability to pay support. Medical records introduced into evidence, along with the testimony of the father and his optometrist, established that the father suffered from an autoimmune medical condition that substantially impairs his vision and prevents him from working in bright light, including sunlight, and from working in a hot environment. Additionally, the father has a tenth grade education and is a convicted felon, facts which further impair his employability. Considering the evidence in the light most favorable to the prosecution, we are unable to conclude that a trier of fact could have found beyond a reasonable doubt that the father had the ability to pay and that his failure to pay support was willful. Accordingly, his conviction of ten counts of contempt for willfully failing to pay child support is reversed.