Freeman v. Freeman

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 6, 2003 Session

DONALD COPELAND FREEMAN v. LYNN DONNELL FREEMAN

A Direct Appeal from the Circuit Court for Davidson County
No. 83D-339 The Honorable Muriel Robinson, Judge

No. M2002-02558-COA-R3-CV - Filed September 16, 2003

This appeal involves a former husband’s attempt to modify or terminate an alimony award
to his former wife because of a change of circumstances. Primarily, husband asserts that he is
retired, and his income and assets have been drastically reduced to the extent that he is unable to pay
the alimony awarded. Wife filed a petition to hold husband in contempt for his failure to pay the
alimony installments accrued. After a non-jury hearing, the trial court dismissed husband’s petition
and granted wife’s petition holding husband in civil contempt of court. Husband appeals. We
affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY M. KIRBY, J., joined.

Clark Lee Shaw, Nashville, For Appellant, Donald Copeland Freeman

Thomas K. Bowers, Nashville, For Appellee, Lynn Donnell Freeman

OPINION

This case involves a petition to terminate or modify an award of alimony and an opposing
motion for contempt for failure to comply with a court order. Appellant Donald Copeland Freeman
(“Husband”) and appellee Lynn Donnell Freeman (“Wife”) were divorced on September 12, 1984,
after 27 years of marriage.1 The trial court’s Final Decree of Divorce, inter alia, ordered Husband
to pay Wife $1,200.00 per month alimony in futuro, such payments to be made until the death or
remarriage of appellee.

1
The trial court awarded W ife an ab solute d ivorce on the grounds of “crue l and inhuman treatm ent.”
 Husband filed a petition on May 23, 20012 to modify or terminate his alimony obligation on
the following grounds:

a. The Petitioner is nearly 70 years old and no longer able to practice
dentistry due to deteriorating hand eye coordination as a result of the
aging process.

b. The Petitioner has had colon cancer which forced him to sell his
dental practice and cease practicing dentistry on a full time basis.

c. Petitioner has attempted to practice dentistry on a part time basis
without success due to his age.

d. The Petitioner is entitled and has a right to be able to retire due to
his age and to have his alimony reduced or terminated to
accommodate same.

e. The Respondent’s need for alimony has been reduced or terminated
due to her change in circumstances.

f. The Petitioner does not have the ability to continue [to] pay
alimony through no fault of his own.

On November 20, 2001, Wife filed a Petition for Contempt against Husband, asserting that
Husband willfully and deliberately violated the trial court’s September 12, 1984 Final Decree by
failing to pay alimony for the months of October and November, 2001. Wife’s petition charges
Husband with both civil and criminal contempt, and seeks a judgment against Husband in the
amount of $2,400.00, for two months alimony plus reasonable attorney’s fees.

Husband’s Answer to Wife’s Petition for Contempt asserts several affirmative defenses,
including the defenses that he did not “have the present ability to pay the amount demanded under
a civil contempt prosecution,” and that Wife failed to elect “whether she is proceeding on civil or
criminal contempt.” Husband further noted, in reliance upon a 2001 Tennessee Supreme Court
decision, that retirement may constitute a “substantial and material change in circumstances so as
to permit modification of a spousal support obligation.”

2
This is Husb and’s second petition to termina te his alimony obligation. The previous petition was filed January
25, 1998 alleging change of circumstances rendering Husband financially unable to pay the alimony. After an evidentiary
hearing, the trial court den ied H usband’s petition, finding various facts establishing that W ife is still in need of the
alimony award and that there had been no change of circumstances rendering H usband finan cially unable to com ply with
the award.

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 The trial court held a hearing on Wife’s contempt petition on January 10, 2002. In an Agreed
Order filed January 30, 2002, the trial court decreed in pertinent part:

This matter came to be heard before the Honorable Muriel
Robinson, Judge, on the10th day of January, 2002, upon an order for
the Respondent to show cause, if any he has, why he should not be
held in civil or criminal contempt for his failure to comply with the
order of the Court to pay alimony to the Petitioner, and upon
announcement to the Court of the terms and provisions of the
agreement of the parties, upon representations by counsel and the
record of the case as a whole, it appears to the Court that the
following order is well taken:

IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the Respondent is guilty of civil contempt in
violating the order of the Court to pay alimony to the Petitioner for
the months of October, November and December, 2001, and for the
month of January, 2002 in the amount of $1,200.00 for each aforesaid
month or for a total of $4,800.00.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Petitioner is hereby awarded a judgment against the
Respondent in the amount of $4,800.00, for which execution may lie
if necessary.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Petitioner is hereby awarded judgment against the
Respondent in the amount of $850.00 for reimbursement of her
reasonable attorney fees, for which execution may lie, if necessary.

In addition to these awards, the trial court also granted Wife a lien against Husband’s real property
located at 106 Greenwood Avenue, Lebanon, Tennessee, in the amount of $5,650.00.

Wife filed a second Petition for Contempt on August 30, 2002, asserting that Husband failed
to pay alimony for the months of February, March, April, May, June, July, and August, 2002, in
“willful and deliberate contempt of the Court’s order.” Wife’s petition again charged Husband with
civil and/or criminal contempt and sought judgment against appellant for $8,400.00, the unpaid
alimony, and an award for attorney’s fees.

On September 10, 2002, the trial court entered an order to show cause which states:

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 1. You are hereby ordered to show cause, if any you have,
why you should not be found guilty of civil or criminal contempt for
failure to pay alimony as ordered by this Court for the months of
February, March, April, May, June, July and August of 2002 and be
incarcerated for 10 days consecutively on each contempt, for a total
of 70 days in the Davidson County Jail pursuant to T.C.A. 29-9-103
or imprisoned until you purge your contempt pursuant to T.C.A. 29-
98-104, pending further orders of the Court.

2. You are hereby ordered to show cause, if any you have,
why the Petitioner should not have judgment against you for
$8,400.00 and any further amounts owed at the time of the final
hearing of this cause, pending further orders of the Court.

3. You are hereby ordered to show cause, if any you have,
why the Petitioner should not be awarded her reasonable attorney fees
and costs for prosecuting this contempt, pending further orders of the
Court.

By agreed order entered September 25, 2002, Husband’s petition and the show cause hearing
for the petition for contempt were set for trial on October 10, 2002.

A hearing was held as scheduled. By Order filed October 22, 2002, the court found Husband
guilty of civil contempt for failure to pay alimony pursuant to the terms set forth in the court’s order.
The court dismissed Husband’s petition and awarded a judgment in favor of Wife in the amount of
$10,800.00, representing the total amount of unpaid alimony owed by Husband. In support of its
ruling, the court reiterated its findings of fact from the court’s October 4, 1999 order, and cited the
following additional facts:

[Wife] still has need for alimony.

******************************************************

[Husband] has a right to retire, and he can retire voluntarily.

******************************************************

[Husband] should have taken his Court ordered alimony obligation
into consideration with his retirement, with his disposition of his
pension and so forth.

[Husband] did not adequately prepare his case to present to the Court.

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 Court must adjudicate on the proof presented to it.

[Husband] has miserably failed to adequately prove his case.

[Husband] is evasive.

[Husband] claims he does not know the basic elements of his income
or financial situation.

[Husband] simply says, “I can’t pay.”

To expect the Court to accept that position is unreasonable.

[Husband] does not know what his corporation’s assets are even
though he is the one who owns the corporation.

In addition to the judgment for alimony, the trial court awarded Wife a second lien on Husband’s real
property in the amount of $10,800.00, and ordered Husband to pay $2,500.00 toward Wife’s
attorney’s fees.3

Husband appeals,4 presenting the following issues for review, as stated in his brief:

1. The Trial Court committed reversible error when it failed to reduce
or terminate alimony in futuro.

2. The Trial Court committed reversible error when it found
Appellant in contempt.

3. The Trial Court committed reversible error when it awarded
Appellee her Attorney Fees.

4. The Appellant should be awarded his attorney fees on appeal and
in the Trial Court.

Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the

3
The cou rt’s order directed W ife’s attorne y to file an affidavit of his legal fees with the co urt. Wife’s counsel
complied with the court’s order, and filed an affidavit on October 22, 2002 , stating that his total bill for legal services
rendered in this matter was $5,200.00.

4
Husband filed a No tice of Appeal on October 10 , 2002, immediately following the trial court’s ruling from
the benc h on H usband’s sec ond petition for mo dification or termination of alimony, and Wife’s second petition for
contempt.

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evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App.
P. 13(d).

I.
Husband’s first issue for review is whether the trial court erred in refusing to modify or
terminate his alimony obligations to Wife.

T.C.A. § 36-5-101(a)(1) (Supp. 2002) provides that a court may not modify or terminate a
spousal support award without first finding that a “substantial and material change in circumstances”
has “occurred since the entry of the original support decree.”

The party seeking relief on the grounds of a substantial and material change in circumstances
has the burden of proving such changed circumstances warranting an increase or decrease in the
amount of the alimony obligation. Seal v. Seal, 802 S.W.2d 617, 620 (Tenn. Ct. App. 1990).

In Bogan v. Bogan, 60 S.W.3d 721 (Tenn. 2001), our Supreme Court stated:

[A] change in circumstances is considered to be “material” when the
change (1) “occurred since the entry of the divorce decree ordering
the payment of alimony,” Watters v. Watters, 22 S.W.3d 817, 821
(Tenn. Ct. App. 1999), and (2) was not “anticipated or [within] the
contemplation of the parties at the time they entered into the property
settlement agreement,” id.; see also McCarty v. McCarty, 863
S.W.2d 716, 719 (Tenn. Ct. App. 1992); Elliot v. Elliot, 825 S.W.2d
87, 90 (Tenn. Ct. App. 1991). Moreover, a change in circumstances
is considered to be “substantial” when it significantly affects either
the obligor’s ability to pay or the obligee’s need for support. See
Bowman v. Bowman, 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991).

Id. at 728.

The primary issue in Bogan was “whether a good faith retirement, though voluntary and
foreseeable, may constitute a substantial and material change in circumstances warranting a
reduction in spousal support obligations.” Id. at 727. The Court held:

[T]hat an objectively reasonable retirement, taken in good faith and
without intent to defeat the support obligation, does constitute a
substantial and material change in circumstances so that a
modification of support obligations may be considered. We also
hold, however, that actual modification of the award, if any, is
addressed to the trial court’s discretion after considering the relevant
factors listed in Tennessee Code Annotated section 36-5-101(d).

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Id. at 727.

Upon examination of the record and the testimony in this case, we find that Husband did not
satisfy his burden of proving that his retirement constituted a substantial and material change of
circumstances so as to justify termination or modification of his spousal support obligation. We find
that Husband provided inadequate proof that his current situation varies substantially and materially
from his circumstances on September 12, 1984, the date of the court’s Final Decree of Divorce and
initial award of alimony.

We do not dispute that Husband certainly has a right to retire or that he would conceivably
be entitled to a modification or termination of his support obligation if he introduced sufficient
evidence into the record to demonstrate that his retirement, in fact, resulted in a substantial and
material change in circumstances and that such retirement was “objectively reasonable” under the
“totality of the circumstances.” See Bogan, 60 S.W.3d at 729.

Although Husband filed an Income and Expense Statement on October 10, 2002 detailing
his monthly expenses for the year 2002,5 there is no evidence in the record as to Husband’s income
or expenses as of September 12, 1984, the date of the trial court’s Final Decree of Divorce ordering
Husband to pay Wife $1,200.00 in monthly support. Husband’s income tax returns for the years
2000 and 2001 were entered as exhibits in this case, listing annual total income for these years as
$81,900.00 and $69,779.00 respectively. 6 Again, there is no evidence in the record as to Husband’s
individual income for 1984 nor was the proof sufficient for establishing his individual income for
2000 and 2001.

Husband’s Income and Expense Statement further fails to include monies earned for

sculptures sold by appellant as part of his net monthly income, listing as Husband’s only income the

$1,082.00 in social security payments he receives each month.7 Husband testified that he was paid

$4,500.00 for a sculpture that he created. When questioned as to payments or commissions received

5
Husband lists his total expenses as $965 .00 p er mo nth. This amo unt do es not include the $1 ,200 .00 in
monthly support owed to W ife pursuant to the court’s Final Decree o f Divo rce. We note that this statement does not
include as expenses tithes made by Husband to his church. Husband testified that he gave $8,500.00 to his church over
a period of appro ximately two years. These tithes, according to Husb and, cam e from his individual funds.

6
We note that Husband filed joint income tax returns for these years, including income earned by his current
wife, Mary Freeman.

7
In testifying that his primary source of income consists of monthly social security benefits, Husband noted
that he has no remaining pe nsion incom e, having dep leted the se funds for the p urpo se of paying taxes and alimony.

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for other sculptures, Husband failed to refute or explain whether he had in fact received a $10,000.00

commission for one work, and an undisclosed sum for another.

The trial court’s Final Order denying Husband’s second petition for termination or
modification of alimony, notes that Husband had a successful dental practice which he eventually
sold for $180,000.00,8 and notes that Husband had paid off all of his individual and business debts.
There is no evidence in the record to indicate whether any of the $180,000.00 received by appellant
for the sale of his practice still remains, aside from Husband’s vague assertion that his primary
source of income is the social security payments that he receives each month.

With regard to physical assets, the court’s Final Decree of Divorce noted that Husband owned
“motorcycles and vehicles” in addition to the 106 Greenwood Avenue property. The court’s decree
additionally awarded Husband a sole interest in real property identified as “an Auto Parts Building
located in Lebanon, Tennessee, [and] a lot located on Donelson Pike in Donelson, Tennessee.”
Husband has provided no evidence as to the value of the motorcycles, vehicles, Auto Parts Building,
or Donelson Pike lot, nor is there any evidence as to whether Husband still owns said property.

Husband acknowledges that he owns his home located at 106 Greenwood Avenue, Lebanon
Tennessee. According to Husband, the home was valued at $89,000.00 in 1999. Husband further
testified that he filed a Corporate Tax Return in 2001 listing $11,000.00 in corporate assets from his
orthodontics practice but, when questioned, was unable to identify the nature of his corporate assets.

Prior to the parties’ divorce, the court noted that Husband was “a very successful” and “well
respected dentist.” In his initial petition to terminate alimony, Husband noted that he was forced to
sell his “dental practice due to health related problems.” Husband’s second petition elaborates on
this point, stating that “Petitioner has had colon cancer which forced him to sell his dental practice
and cease practicing dentistry on a full time basis.” In denying Husband’s petitions, the trial court
twice noted that “Petitioner offered no competent medical testimony to substantiate his allegation
of ill health.”

The record reveals conflicting testimony and evidence presented by Husband regarding his
ability and present intent to continue working in the orthodontics field. Husband testified on direct
examination that he was in “pretty good health,” but noted that he did not think he should be engaged
in the practice of orthodontics. Husband’s second petition noted several reasons supporting his
decision to retire from practice, including the fact that “Petitioner is nearly 70 years old and no
longer able to practice dentistry due to deteriorating hand eye coordination as a result of the aging
process.” In explaining why he recently ceased working for another doctor, Husband testified:

Q: You parted ways with Dr. Anderson?

8
In his initial pe tition to term inate alimony, Husband stated that he was paid in installments for his practice,
the last installment payment being received in June 1998.

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 A: He said I was from a different era.

Q: Different era. In other words, instead of those nasty bands and
stuff you put on my teeth when I was 16, they’ve got some fancy
ways of doing it now and you don’t know how to do that, do you?

A: Oh, I just couldn’t come up to snuff, whatever.

On cross examination, Husband testified that his license to practice orthodontics was “in the
process of being renewed.” Husband provided no explanation for his decision to renew the license
in light of statements that he was unable or unwilling to continue practicing. In conflict with earlier
statements made during his direct examination, Husband further testified that he was able to work,
stating:
Q: You don’t have a medical expert to say you can’t work; you can
work if you wanted to, is that right?

A: Yes, I can. If I had a place to work.

The trial court found that appellant was “evasive” in his answers before the court, and the
record supports this finding. When the resolution of the issues in a case depends upon the
truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses in their
manner and demeanor while testifying is in a far better position than this Court to decide those
issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker,
957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any
witness’s testimony lies in the first instance with the trier of fact, and the credibility accorded will
be given great weight by the appellate court. See id.; In re Estate of Walton v. Young, 950 S.W.2d
956, 959 (Tenn. 1997).

From the plain language of the court’s Final Order, it is apparent that the trial judge found
Husband to be lacking in credibility, and was thereby unwilling to assign faith or weight to
Husband’s testimony regarding changed circumstances. We find no evidence in the record to
indicate that the trial judge abused her discretion in refusing to credit Husband’s testimony.

The record indicates that Husband failed to present sufficient evidence to prove that his
retirement constitutes a substantial and material change in circumstances such as to justify
termination or modification of his support obligation. Husband has provided no evidence or
testimony of what his income and expenses were at the time the trial court first ordered payment of
alimony, has failed to explain or account for various physical assets and pieces of real property
recognized, and was evasive in explaining his present income. He failed to introduce reliable
evidence of his current income, neglecting to account for monies earned from sculptures sold and
commissioned, and failing to identify $11,000.00 in corporate assets. Finally, Husband has provided
conflicting evidence as to his abilities and intentions to continue working in the orthodontics field.
Quite simply, Husband has failed to provide a factual basis from which this Court can compare his

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circumstances as they existed at the time of the trial court’s Final Decree of Divorce ordering
payment of alimony, to his present day circumstances.

II.

Husband next presents the issue of whether the trial court “committed reversible error when
it found Appellant in contempt.” Specifically, Husband asserts that the trial court erred in finding
him in civil contempt of court where Wife’s contempt petitions failed to elect either civil or criminal
contempt, instead charging him with both.

It is undisputed that Wife’s contempt petitions charge Husband with both civil and criminal
contempt. The trial court, in ruling upon Wife’s petitions, twice found Husband in civil contempt
for failure to pay alimony in accordance with the court’s order. The trial court’s Final Order of
October 22, 2002, finding Husband guilty of civil contempt pursuant to Wife’s second contempt
petition, stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Petitioner is guilty of willful civil contempt for his failure to
pay alimony to the Respondent as ordered by the Court.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Petitioner is hereby ordered immediately into custody and
shall be released only upon satisfaction of the following conditions:

1) Post proper appeal notice.

and/or

2) Petitioner shall remain in custody until he pays the
October, 2002, alimony payment of $1,200.00 to the
Respondent in the event of no appeal.9

T.C.A. § 29-9-102 (2000) authorizes Tennessee courts to inflict punishment for contempts
of court in specific cases and, as pertinent herein, provides:

29-9-102. Scope of power. – The power of the several courts
to issue attachments, and inflict punishments for contempts of court,
shall not be construed to extend to any except the following cases:

* * *

9
W e note that the Final Order entered as part of the Technical Record in this case includes written changes from
the trial jud ge. T he quoted language reflec ts the changes m ade by the trial judge to the order prior to entry.

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 (3) The willful disobedience or resistence of any officer of the
such courts, party, juror, witness, or any other person, to any lawful
writ, process, order, rule, decree, or command of such courts.

“Appellate courts review a trial court’s decision to impose contempt sanctions using the more
relaxed ‘abuse of discretion’ standard of review.” McDowell v. McDowell, No.
M2000-00164-COA-R3-CV, 2001 WL 459101, at *5 (Tenn. Ct. App. May 2, 2001) (quoting
Sanders v. Sanders, No. 01A01-9601-GS-00021, 1997 WL 15228, at *3 (Tenn. Ct. App. Jan. 17,
1997) (citing Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993))). The court of appeals has
“appellate jurisdiction over civil or criminal contempt arising out of a civil matter.” See T.C.A. §
16-4-108(b) (1994).

There is no real dispute in this case that Husband’s failure or refusal to comply with the

court’s decree ordering payment of alimony constituted civil contempt.10 Rather, Husband’s

allegation of error is premised on the assertion that Wife’s contempt petitions wrongfully and

10
In her concluding statements from the bench, the trial judge explained her finding of civil contempt, noting:

I find that [Husband is] in willful contempt for failure to pay. This is civil
contemp t. And he’s going to be taken into custody.

As soon as he comp lies with this order and pays the October [alimo ny]
payment, then he’ll be released. Now –

MR. SHA W : That’s not in the plead ings, Yo ur Honor. I object to tha t. That’s not
in the pleadings.

THE COU RT: W ell, let’s see what the pleadings are. And you should have –

MR . SHAW : Criminal contempt. That’s what I thought we were prosecuting.

MR. BOW ERS: This is civil or criminal –

TH E COU RT : It’s better for him to be in civil contempt.

MR . SHAW : Ma’am – all right. I’ve entered my objection.

THE COU RT: All right. Civil contempt. We’re going to take him into custody
until he co mplies with the o rder which m eans m akes the October paym ent.

The trial court’s Final Ord er of O ctober 22 , 200 2 reflec ts the court’s finding of civil co ntemp t.

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unconstitutionally charged appellant with both civil and criminal contempt. Husband asserts that

Wife is required to elect to proceed on either criminal or civil contempt prior to trial, citing Cooner

v. Cooner, No. 01-A-01-9701-CV00021, 1997 WL 625277 (Tenn. Ct. App. Nov. 14, 1997), as

authority for this contention.

In Cooner, former husband brought a contempt petition against former wife charging
criminal and civil contempt on the grounds that wife deprived husband of several physical
possessions and further refused to return the parties’ minor child to husband’s custody. Id. at *2.
The trial court determined that wife’s conduct constituted a willful and “flagrant disregard” of the
court’s orders, and thereby found her in criminal contempt. Id. at *3. Upon reading the appellate
court’s rendition of the procedural background in Cooner, we find no reference to the trial court’s
handling of former husband’s civil contempt charge. Former husband’s civil contempt charge was
apparently not considered by the appellate court.

Former wife appealed the trial court’s finding of criminal contempt. Id. The appellate court
reversed the trial court’s finding of criminal contempt on substantive and procedural grounds, finding
that former wife did not receive proper notice of the criminal contempt charge pursuant to Tenn. R.
Crim. P. 42(b). Id. at *7. With regard to the procedural errors committed in the trial court, the
appellate court noted:

Civil and criminal contempt proceedings should not be tried
simultaneously because of the significant differences in the respective
burdens of proof and procedural rights accorded to the person accused
of contempt. Proceedings of indirect criminal contempt cannot be
commenced without the notice required by Tenn. R. Crim. P. 42(b).
Giving this notice at an early stage eliminates any possible confusion
concerning the nature of the proceedings and better enables the
alleged contemner to invoke his or her procedural rights. Jones v.
Jones, App. No. 01A01-9607-CV-00346, 1997 WL 80029, at *3
(Tenn. Ct. App. Feb. 26, 1997) (No Tenn. R. App. P. 11 application
filed).

******************************************************

The procedure employed by the trial court in this case was
fundamentally flawed because of the lack of notice required by Tenn.
R. Crim. P. 42(b) and because the trial court was apparently
attempting to consider Mr. Cooner’s petitions for criminal contempt
and for civil contempt simultaneously. Even though Ms. Stephens

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 did not frame the issue precisely in these terms, we should take it up
in order to prevent prejudice to the judicial process and because the
procedural oversight involved substantial rights and more likely than
not affected the outcome of the proceeding.

Id. at *6-7.

In the case at bar, while Wife’s petition charged Husband with both civil and criminal
contempt, the record reflects that the trial court did not attempt to try adjudicating both contempts
simultaneously but confined her attention to civil contempt only. The mere allegation in Wife’s
petition seeking both civil and criminal contempt does not prejudice the judicial process and allows
the petitioner to elect to proceed on one or the other, providing, of course, that the proper notice is
afforded to the respondent. In this case, a show cause order was issued by the trial court, and
Husband failed to show good cause why he should not be found in civil contempt. The trial court
properly acted accordingly. The trial court did not commit reversible error in adjudicating the issue
of civil contempt pursuant to Wife’s petition and the show cause order.

III.

We combine Husband’s final two issues, addressing first Husband’s question of whether the
trial court erred in awarding Wife attorney’s fees. The trial court’s decision to award attorney’s fees
is considered an award of alimony. Long v. Long, 957 S.W.2d 825, 829 (Tenn. Ct. App. 1997). An
appellate court will not interfere with the trial court’s decision to award attorney’s fees unless it is
shown that “manifest injustice would be done if the award is allowed to stand.” Id. Based on our
reading of the record and the transcripts in this case, we are unable to find that the trial court abused
its discretion in awarding Wife attorney’s fees. Husband knowingly failed to comply with a court
order directing him to pay alimony support in the amount of $1,200.00 per month. Moreover, Wife
was the prevailing party with regard to the contempt petitions and Husband’s petitions to terminate
or modify alimony. For these reasons, we affirm the trial court’s award of attorney’s fees to Wife.

With respect to Husband’s request for payment of attorney’s fees incurred by appellant at the
trial and appellate court levels, we find no evidence in the record to indicate that the trial court
abused its discretion in failing or refusing to award Husband, as the non-prevailing party, attorney’s
fees. We therefore find Husband’s final issue without merit.

IV.

The Final Order of the trial court is affirmed, and the case is remanded to the trial court for
such further proceedings as may be necessary. Costs of the appeal are assessed to appellant, Donald
Copeland Freeman, and his surety.

__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

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