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State ex rel. Bass v. Gonzalez-Perez

Court of Appeals of Tennessee, Jackson

May 19, 2017

STATE OF TENNESSEE EX REL. DEEDRA CLIMER BASS
v.
JOSE RAMON GONZALEZ-PEREZ

          Assigned on Briefs January 4, 2017

         Appeal from the Juvenile Court for Shelby County No. J8696 Nancy Percer Kessler, Special Judge

         Jose Ramon Gonzalez-Perez ("Father") appeals the March 7, 2016 order of the Juvenile Court for Shelby County ("the Juvenile Court") finding him in contempt for non-payment of child support. Father raises several issues including whether Father can be held guilty of contempt when benefits Father receives pursuant to 33 U.S.C.A. § 901 et seq., the Longshore and Harbor Workers' Compensation Act, are exempt from "all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt . . . " under § 916 of the Longshore and Harbor Workers' Compensation Act; whether the Longshore and Harbor Workers' Compensation Act preempts inclusion of Father's benefits from the calculation of child support; and whether Father was guilty of contempt for non-payment of child support. We find and hold that although the benefits Father receives are exempt from levy, execution, attachment, etc., Father may be found guilty of contempt; that the Longshore and Harbor Workers' Compensation Act does not preempt the inclusion of the benefits Father receives from the calculation of child support; and that Father had the present ability to pay child support and willfully failed to do so making Father guilty of contempt. We, therefore, affirm the March 7, 2016 order of the Juvenile Court finding Father in contempt for non-payment of child support.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed Case Remanded

          Lee J. Chase, Memphis, Tennessee, for the appellant, Jose Ramon Gonzalez-Perez.

          Herbert H. Slatery, III, Attorney General and Reporter; and M. Cameron Himes, Assistant Attorney General for the appellee, State of Tennessee ex. rel Deedra Climer Bass.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT and KENNY W. ARMSTRONG, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         Father and Deedra Climer Bass ("Mother") are the parents of the minor child Claudia Christina Gonzalez, who was born in February of 1998. In September of 1998 an order was entered directing Father to pay $436.46 per month in child support.

         In 2002, Father was injured on the job, and as a result of those injuries Father receives benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. In November of 2005, Father filed a petition seeking to modify child support. An order was entered in November of 2005, modifying Father's child support obligation to $203 per month plus $25 per month toward existing arrears.

         At some point, the State became involved in this case pursuant to Title IV-D of the Social Security Act. The State filed a petition for contempt for non-payment of child support on September 9, 2014. A hearing was held before a Magistrate. After the hearing, the Magistrate entered Findings and Recommendations on January 7, 2015, which state, in pertinent part:

3. That although benefits under [the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. ("The Act")] are not assignable under 33 U.S.C.A. § 916, the defendant was and is able to pay child support and willfully refused to pay.
4. That the allegations of the petition are sustained.
5. That the defendant is in contempt of this Court.
6. That the defendant has the present ability to purge himself of contempt by making a partial payment on his arrearage in the amount of $5, 000.00, a part of the amount he is in arrears.
7. That the defendant be confined to the Shelby County Jail for 30 days or until he purges himself of contempt by paying to the Clerk of Court the sum of $5, 000.00, a part of the amount he is in arrears, but said sentence shall be suspended until the end of business on December 11, 2014 for the defendant to pay said purge. If the defendant fails to make the purge payment on or before December 11, 2014, an attachment pro corpus shall be issued for the defendant and he will be confined as ordered until he purges himself of contempt by paying $5, 000.00.
8. That beginning on December 1, 2014, the defendant's Longshore and Harbor Workers' Compensations [sic] benefits are to be paid to the defendant through an annuity purchased and paid for by the insurer under the Longshore and Harbor Workers' Compensation Act pursuant to Exhibit 14A included in the defendant's Memorandum of Law and Argument. The monthly sum of the annuity is to be $2, 263.73 plus 1% annual increase for 20 years or life, whichever is longer. The total value of the lifetime payments to the defendant from the annuity are estimated to exceed $1, 000, 000.00 based on the defendant's estimated remaining life expectancy.
9. That payments pursuant to said annuity are assignable, and the defendant's on-going child support of $203.00 per month and $100.00 per month toward the arrears shall be paid by income assignment beginning January 1, 2015, to the Central Child Support Receipting Unit, P.O. Box 305200, Nashville, TN 37229. Payment of arrears at the rate shown above is a minimum payment and does not preclude the petitioner from collecting the judgment by other means, such as tax refund intercept, lien, or levy and execution.

         Father filed a request for a rehearing before a judge on the petition for contempt. A hearing was held before the Juvenile Court[1]. At the hearing, George Leavell testified. Mr. Leavell explained that Father is a quadriplegic, and that Father receives benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. ("the Act"). These benefits are paid through a trust ("the Trust"). Mr. Leavell is the trustee of the Trust, which he explained was established in July or August of 2014. Mr. Leavell stated that the Trust was established because "people were just stealing [Father] blind." He further stated that "keeping [Father] safe and free from predators out there has been a challenge."

         Mr. Leavell testified that Father receives approximately $2, 247 per month from the Trust. When asked how the Trust was handled, Mr. Leavell explained that he "had established a bank account, and the bank has issued an ATM card. And they will put funds on an ATM card so that [Father] can go to an ATM and get the cash to go get the groceries." The bank account is in the name of the Trust and is administered only under Mr. Leavell's auspices.

         Mr. Leavell testified that he pays Father's monthly bills. He stated that he pays a utility bill of about $275 per month, a cable bill of about $115, and a cell phone bill of about $56. Mr. Leavell also pays Father's homeowner's insurance of about $201, and property taxes, which he stated run about $250 per month although they are paid annually. Additionally, Mr. Leavell testified that he pays about $150 for yard work, about $100 for housecleaning, and about $600 for Father's food and general living expenses. Mr. Leavell puts about $400 per month aside for repairs and maintainence on Father's house. Father also has a monthly clothing allowance of about $100.

         Mr. Leavell testified that it has been his experience since the Trust was established that Father's expenses have been running in excess of $2, 000 each month. Mr. Leavell explained that some of that money is budgeted for things like house repairs that will be needed in the future. The house where Father resides was provided and purchased by Liberty Mutual. Mr. Leavell testified that Father lives alone.

         After the hearing, the Juvenile Court entered its detailed order on March 7, 2016, finding and holding, inter alia:

2. The petitioner, Deedra Climer Bass, (hereinafter "Mother") and the defendant, Jose Ramon Gonzalez-Perez, (hereinafter "Father") are the parents of one child together, Claudia Christina Gonzalez, born February . . . 1998.
3. On or about September 25, 1998, this Court ordered Father to pay child support in the amount of $436.46, which included a 5% clerk's fee, resulting in a net child support amount of $415.68 monthly, to begin on September 25, 1998.
4. On or about March 13, 2002, Father sustained permanent injuries and received benefits pursuant to the Longshore and Harbor Workers' Compensation Act, which were payments made directly to Father.
5. On or about November 14, 2005, the original order was modified to decrease child support from $415.68, and Father was ordered to pay child support in the amount of $203.00 monthly, beginning November 1, 2005.
6. The child support order of November 14, 2005, has not been modified.
7. On or about January 12, 2011, the State of Tennessee filed a Petition for Citation for Contempt of Court against Father for non-payment of child support.
8. On or about May 10, 2011, that contempt of court action was dismissed due to Father's "medical condition." The underlying child support order from November 14, 2005, in the amount of $203.00 ...

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