However, because subject matter jurisdiction "involves a court's lawful authority to adjudicate a particular controversy," seeOsborn v. Marr , 127 S.W.3d 737, 739 (Tenn. 2004), this Court shall, pursuant to Tennessee Rule of Appellate Procedure 13(b), "consider whether the trial and appellate court have jurisdiction over the subject matter, whether or not presented for review." In support of his jurisdictional argument, Father relies on this Court's opinion in Loy v. Loy , 32 Tenn. App. 470, 222 S.W.2d 873 (Tenn. Ct. App. 1949), perm. app. denied (Tenn. July 9, 1949). Loy is highly factually distinguishable in that it involved a second impermissible arrest on a contempt charge already resolved by final judgment and did not involve a de novo rehearing of a magistrate's decision.
2003); Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000); Loy v. Loy, 222 S.W.2d 873, 877-78 (Tenn. Ct. App. 1949). A judgment of contempt "must contain an affirmative finding of defendant's ability to pay."
In neither of these two opinions is the question of jurisdiction mentioned and the Court and counsel assumed, evidently, that the appeals should follow the procedure prescribed for appeals in criminal cases. In Loy v. Loy, 32 Tenn. App. 470, 222 S.W.2d 873, which dealt with the validity of a bail bond given by the defendant in a divorce suit who had been cited for contempt, the appeal was perfected to the Court of Appeals who accepted it, again without mentioning the matter of jurisdiction. A proceeding to forfeit a bail bond and to pronounce judgment thereon is a statutory proceeding.
The trial court had no power or jurisdiction to proceed against Hooks and hold him in contempt merely because a judge, after a hearing, entered an order which recited that Hooks shall be 'held in continuing contempt.' See Loy v. Loy, 32 Tenn. App. 470, 222 S.W.2d 873 (1949). I would discharge the Relator, Hooks.
The petitioner here, the husband, says, and his argument is based upon authority, that the decree as brought to the Court of Appeals and consequently to this Court is void because it makes no finding that the defendant was able to comply with the decree. In support of this argument the petitioner cites Crowder v. Hayse, 9 Tenn. App. 55; Loy v. Loy, 32 Tenn. App. 470, 222 S.W.2d 873; and Chappell v. Chappell, 37 Tenn. App. 242, 261 S.W.2d 824. The first of these cases, the Crowder case, so held in unmistakable terms.
Doe v. Bd. of Prof'l Responsibility, 104 S.W.3d 465, 474 (Tenn.2003) ; Loy v. Loy, 32 Tenn.App. 470, 222 S.W.2d 873, 877–78 (1949). Wife's Petition for Contempt addressed Husband's failure to pay pendente lite alimony for September and October 2011.
Persons who have failed to make payments required by a previous court order may be held to be in civil contempt only if the court concludes, by a preponderance of the evidence, that they have not made the payments even though they have the present ability to do so. Doe v. Bd. of Prof'l Responsibility, 104 S.W.3d at 474; Ahern v. Ahern, 15 S.W.3d at 79; Loy v. Loy, 222 S.W.2d 873, 877-78 (Tenn. Ct. App. 1949).McPherson, 2005 WL 3479630 at *3-4.
The power to punish for contempt may be exercised only within the fixed rules of law. Loy v. Loy, 32 Tenn. App. 470, 222 S.W.2d 873 (Tenn. App. 1949). Public service is not one of the options a court may select in imposing punishment for criminal contempt.
Thus, before sentencing an individual to jail for civil contempt for failure to make payments required by a previous court order, the trial court must affirmatively find that the individual has the present ability to make the required payments.Id. (citingLoy v. Loy, 32 Tenn. App. 470, 479-80, 222 S.W.2d 873, 877-78 (1949)); see alsoSmith v. Smith, No. M2001-02231-COA-R3-CV, 2003 WL 21230980, at *3 (Tenn.Ct.App. M.S., filed May 29, 2003). In Leonard v. Leonard, 207 Tenn. 609, 619-20, 341 S.W.2d 740, 745 (Tenn.
Persons who have failed to make payments required by a previous court order may be held to be in civil contempt only if the court concludes, by a preponderance of the evidence, that they have not made the payments even though they have the present ability to do so. Doe v. Bd. of Prof'l Responsibility, 104 S.W.3d at 474; Ahern v. Ahern, 15 S.W.3d at 79; Loy v. Loy, 32 Tenn. App. 470, 479-80, 222 S.W.2d 873, 877-78 (1949). . . . .