I. INCARCERATION FOR CIVIL CONTEMPT IS AN INAPPROPRIATE REMEDY TO ENFORCE A CHILD SUPPORT OBLIGATION AGAINST AN IMPOVERISHED AND INVOLUNTARILY UNEMPLOYED PARTY.

The issue of whether civil contempt is an appropriate remedy to enforce a child support order against a destitute party is one of first impression for both the Tennessee Court of Appeals and the Tennessee Supreme Court. To be imprisoned for civil contempt, the contemnor must be able to perform the act required to gain his or her release. Leonard v. Leonard, 207 Tenn. 609, 341 S.W.2d 740 (Tenn. 1960) (emphasis added). In civil contempt, it is often said that the convicted person holds the keys to the jail in her own pocket. See Shillitani v. United States, 384 U.S. 364 (1966). The burden is on the contemnor to show inability to perform, and where the alleged contemnor has "voluntarily and contumaciously brought on himself disability to obey an order or decree, he cannot avail himself of a plea of inability to obey as a defense to a charge of contempt." Bradshaw v. Bradshaw, 23 Tenn.App. 359, 133 S.W.2d 617, 619 (Tenn.App.1939) (citations omitted).

A person who is unemployed due to a lack of education, a lack of means of transportation, a lack of required skills, and time constraints in rearing her small children is NOT