In re Throneberry

754 S.W.2d 633, 1988 Tenn. Crim. App. LEXIS 138
CourtCourt of Criminal Appeals of Tennessee
DecidedMarch 18, 1988
StatusPublished
Cited by6 cases

This text of 754 S.W.2d 633 (In re Throneberry) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Throneberry, 754 S.W.2d 633, 1988 Tenn. Crim. App. LEXIS 138 (Tenn. Ct. App. 1988).

Opinion

OPINION

WADE, Judge.

Appellant, the defendant in a divorce action instituted by his now ex-wife, appeals from two (2) separate rulings of the trial court finding him in contempt.

On April 8, 1987, the trial court initially found the appellant in violation of court orders requiring him to maintain his wife’s health insurance and prohibiting him from harassing his wife. Appellant was sentenced to 10 days in jail on each of these counts. Additionally, the trial court revoked a previously suspended five day sentence for contempt thereby requiring a total of twenty-five days in jail.

In the second proceeding, appellant was sentenced to six months in jail for failing to pay, among other things, his child support as previously ordered by the court.

On both of these matters, the appellant questions the sufficiency of the evidence. As to the second, he raises the additional issue of whether he was denied an impartial hearing. That the contempt is criminal in nature and therefore within the jurisdiction of this court is not at issue.

The judgment of the trial court is affirmed.

The divorce in this case was a complicated, lengthy affair. The wife had filed prior contempt petitions on several occasions. A history of the litigation is necessary to an appropriate determination of the issues presently before this court.

On January 16, 1986, the trial court enjoined the appellant from seeking entrance to his wife’s residence without her consent. The court further ordered the appellant to pay temporary support for his family and to maintain all insurance policies covering his family.

The following month, the court held the appellant in contempt but declined to impose any sanctions. The trial court again admonished the appellant not to enter his wife’s residence or communicate with her when returning the children from their visitation.

On April 3, 1986, the court gave warning to the appellant to timely pay house payments and to immediately pay the arrear-ages that had accrued. Again, the court admonished the defendant to stay outside the residence.

On June 16, 1986, the trial court found the appellant in contempt for creating a disturbance at his daughter’s school and sentenced him to 10 days in jail, five of which were later suspended. The order required that he not harass his wife.

On April 8, 1987, a hearing was held on the first charges of contempt now before this court. The basis for the petition was an incident that occurred one month earlier when appellant was returning the children from their regularly scheduled visitation. On this occasion, one of the two children was asleep in appellant’s arms so he requested that his wife come to the door and take the child from him. Upon her return to the apartment, she found appellant inside the doorway. According to testimony, he was standing there, grinning, whereupon she told him to get out of her house. When he did not leave, she either kicked or nudged the defendant with her bare foot. The appellant turned and ran out of the apartment.

Approximately two weeks later, Cynthia Throneberry was arrested on a warrant for assault sworn out by appellant. She posted a personal appearance bond and was given a court date. When her husband [635]*635failed to appear at trial, the case was dismissed.

Later, at the behest of the appellant, his wife was arrested on the same charge, again posted bond and received a court date. On this occasion, the appellant did appear and testified against his wife. The case was dismissed.

The appellant was consequently charged with contempt for the harassment of his wife as well as his failure to maintain her health insurance. Although the harassment issue was contested, the appellant conceded the cancellation of insurance; he claimed he was unaware of the prior order requiring him to maintain the policies. Appellant was found in willful contempt on each issue.

The second petition was based upon an order requiring the appellant to pay $1,500 per month in child support, $300 per month in rehabilitative alimony and $400 per month for a car payment. On August 6, 1987, the court held his failure to pay support to be an intentional, willful and malicious disregard of the previous order. Appellant had, in fact, made no payments between April and August of 1987 except for one payment of $150 made a few days before the hearing (and apparently after the petition for contempt). During this period, appellant made a wage of ten dollars an hour and worked forty hours a week. Appellant contended that he was financially unable to make these payments and that, in the alternative, he believed these amounts were being satisfied out of wage assignments and his partnership property as the court had previously ordered.

Concurrent with this appeal is the appeal by the appellant to the Court of Civil Appeals, Middle Section, in Cynthia Ann Richards Throneberry v. John Beckham Throneberry, No. 87-340-11, challenging, among other things, the propriety of the judgment awarding in excess of $2,000 per month in support and alimony. It is not within the jurisdiction of this court to determine whether the amount awarded was excessive under these facts.

All courts have the power “[t]o compel obedience to its judgments, orders and process.” 1 Each is vested with the “power to punish for contempt.”2

Generally, the circuit and chancery courts are limited in punishment to a fine of fifty dollars ($50.00) and imprisonment not in excess of ten (10) days.3 The exception to this rule is as follows:

Failure to comply with child support order — Criminal sanctions, (a) When any person, ordered to provide support and maintenance for a minor child or children, shall fail to comply with the order or decree, such person may, in the discretion of the court, be punished by imprisonment in the county workhouse or county jail for a period not to exceed six (6) months.

T.C.A. § 36-5-104.

The trial court sentenced the maximum punishable imprisonment on each of the two counts in the first proceeding, or a total of twenty (20) days. This appeal neither addresses the previous finding of contempt wherein the court revoked the suspension of the five (5) day balance of the sentence nor raises any question about the criminal nature of the proceeding. The appellant received the maximum imprisonment of six (6) months for his failure to provide child support and maintenance.

I

The appellant contends that the evidence is insufficient to support the findings of the court. Under our law, the determinations of the trial judge on questions of fact are to be given the weight of a jury verdict and are conclusive on appeal unless the appellate court finds that the evidence preponderates against his findings. Clenny v. State, 576 S.W.2d 12 (Tenn.Cr.App.1978).

The burden is on the appellant to show that the evidence preponderates [636]*636against the findings of the trial judge. State v. Nixon, 669 S.W.2d 679, 694 (Tenn.Cr.App.1983).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sherry Lynn Dalrymple v. Shawn Patrick Dalrymple
Court of Appeals of Tennessee, 2017
State of Tennessee v. Thomas E. Cowan, Jr.
Court of Criminal Appeals of Tennessee, 2001
State v. Carl Preston Durham
Court of Criminal Appeals of Tennessee, 2000
Jackie William Crowe v. State
Court of Criminal Appeals of Tennessee, 2000
Herrera v. Herrera
944 S.W.2d 379 (Court of Appeals of Tennessee, 1996)
State v. Adkisson
899 S.W.2d 626 (Court of Criminal Appeals of Tennessee, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
754 S.W.2d 633, 1988 Tenn. Crim. App. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-throneberry-tenncrimapp-1988.