These cases, which were consolidated on appeal, arose from proceedings on petitions for contempt for failure to make child sup
Pursuant to a decree of divorce, Fred De Loаch Latham was ordered to make certain child support payments. Subsequently, his former wife, Susan Latham (Brown), was awarded a judgment for arrearage and a wage assignment issued to Latham’s employer. In response to a petition for contеmpt seeking the imposition of a fine and incarceration, Latham filed a third-party complaint against his employer claiming the support payments had been deducted from his wages. Latham also made a motion that the contempt proceedings be tried before a jury. Similarly, Clint Monroe Walker was charged upon a petition for contempt which sought his incarceration pursuant to Tenn.Code Ann. § 36-5-104(a). Walker also moved for a jury trial.
The trial courts denied the motions for a jury trial. On interlocutory appeals granted by the Court of Appeals, that court reversed and held that a person charged under Tenn. Code Ann. § 36-5-104(a) is entitled to a jury trial.
The Attorney General, who appeared as amicus curiae in the Latham case and prosecuted the petition for contempt on behalf of thе State in the Walker case, asserts on behalf of the prosecution that the Court of Appeals erred in holding the resрondents are entitled to trial by jury. The State insists that Tenn.Code Ann. § 36-5-104(a) only provides sanctions for failure to obey a court order and does not define a criminal offense. It further insists that there is no right to a jury trial in contempt proceedings.
The respondents say the Court of Appeals reached the right conclusion, that they are entitled to jury trials, but contend that the Court of Appeals erred in basing its decision on the finding that Section 36-5-104(a) is a criminal statute rather than a contempt statute.
The decision of this Court is that Section 36-5-104(a) defines a criminal offense and the respondents are entitled to jury trials. The statute states the essential indicia of a criminal offense. Its violation is not declared to be a contempt as contemplated by Tenn. Code Ann. § 29-9-102 (1980). Its stated purpose is not to compel performance but to punish for non-performance by imprisonment fоr a definite period of time. The language of subsection (b), “[n]o arrest warrant shall issue” under certain conditions, indicates a criminal proceeding.
The respondent is entitled to a jury trial on the charge. In State v. Dusina,
For violation of general criminal statutes, however, where a fine of more than $50.00 or any confinement of the accused may be imposed, the right to jury trial under the Tennessee constitution is well-established.
Id. at 768. In that case the Court, overruling a decision of thе Court of Criminal Appeals adopting the federal definition of a small offense, stated:
We respectfully disagree with the Court of Criminal Appeals, however, in its decision in this case and in the case of Robinson v. Gaines,725 S.W.2d 692 (Tenn.Crim.App.1986) that a “small offense” under Tennessеe law can include a term of imprisonment up to six months. In the two cases the Court of Criminal Appeals adopted the definition of a small offense under the United States Constitution as interpreted by the United States Supreme Court. This definition includes offenses in which there may not be a fine in excess of $50.00 or a jail sentence of more than six months. In such eases the United States Suprеme Court has held that there is no right to a trial by jmy under the federal constitution.
The term “small offense” has traditionally been defined in Tеnnessee as one in which the punishment cannot exceed a fine of $50.00 and which carries no confinement in a jail or wоrkhouse.
Id. at 768 (citations omitted). For the purposes of these cases, Tenn.Code Ann. § 36-5-104(a) is a “general criminal statute.” Consequently, the decision of the Court of Appeals holding that the respondents are entitled to a jury trial is affirmed.
Pretermitted arе the additional issues raised by the respondents: the constitutional limitations on a court’s authority to punish for contempt; the distinсtion between a criminal offense and a criminal contempt; the relevance of the Thirteenth Amendment to the United States Constitution and Article I, Section 38 of the Tennessee Constitution to incarceration for any purposes other than punishment for a crime; and the practice of allowing counsel for an interested party (other than the State) to prоsecute criminal con-tempts.
Costs are taxed against the State.
Notes
. Tenn.Code Ann. § 36-5-104. Failure to comply with child support order — Criminal sanctions. — (a) Any person, ordered to provide support and maintenance for a minor child or children, who fails to comply with the order or decrеe, 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.
(b) No arrest warrant shall issue for the violation of any court order of support if such violation occurrеd during a period of time in which the obligor was incarcerated in any penal institution and was otherwise unable to comply with thе order.
. See Rule 4, Tenn.R.Crim.P.; Tenn.Code Ann. § 40-6-201 et seq. Section 40-6-201 defines an arrest warrant:
A warrant of arrest is an order, in writing, stating the substance of the complaint, directed to a proper officer, signed by a magistrate, and commanding the arrest of the defendant.