McCray v. McCray

BRIAN DAVID McCRAY, )
)
Plaintiff/Appellant, )
) Maury Chancery
) No. 93-191
VS. )
) Appeal No.
) 01-A-01-9704-CH-00170
IRENE CAROL KLANSECK McCRAY, )
)
Defendant/Appellee. )
FILED
IN THE COURT OF APPEALS OF TENNESSEE December 17, 1997
MIDDLE SECTION AT NASHVILLE
Cecil W. Crowson
APPEAL FROM THE MAURY COUNTY COURTAppellate Court Clerk
AT COLUMBIA, TENNESSEE

HONORABLE JIM T. HAMILTON, JUDGE

WILLIAM S. FLEMING
207 West 8th Street
P.O. Box 90
Columbia, Tennessee 38402-0090
ATTORNEY FOR PLAINTIFF/APPELLANT

L. Bruce Peden
MOORE & PEDEN
29 Public Square
P.O. Box 981
Columbia, Tennessee 38402-0981
ATTORNEY FOR DEFENDANT/APPELLEE

REVERSED IN PART,
MODIFIED AND AFFIRMED IN PART,
AND REMANDED.

HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION

CONCURS:

BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
BRIAN DAVID McCRAY, )
)
Plaintiff/Appellant, )
) Maury Chancery
) No. 93-191
VS. )
) Appeal No.
) 01-A-01-9704-CH-00170
IRENE CAROL KLANSECK McCRAY, )
)
Defendant/Appellee. )

OPINION

This appeal seeks review of a post-divorce decree judgment entered by the Trial Court

on December 6, 1996, finding the husband guilty of contempt, adjusting alimony and child

support, determining the amount of unpaid arrearage of each, ordering monthly payments of the

adjudicated arrearage and committing the husband to jail upon failure to pay any monthly

installment required by the order. On August 1, 1997, this Court filed an opinion disposing of

a previous appeal from an order entered by the Trial Court December 22, 1995. No application

was filed for permission to appeal to the Supreme Court, and mandate was issued to the Trial

Court. The August 1, 1997 judgment of this Court is now final.

The August 1, 1997, opinion of this Court read in pertinent part as follows:

The record reveals that Brian McCray and Irene
Klanseck were both born in Detroit Michigan; that they
married in 1972 when they were both eighteen years old; that
they became the parents of five sons and two daughters; that
Mr. McCray worked at a General Motors auto plant; and that
the wife also worked intermittently during the marriage in
addition to taking care of home and family. In 1990 Brian
McCray took a job at the Saturn plant in Spring Hill, and the
family moved to Tennessee. Shortly thereafter their youngest
child was diagnosed with cancer. He died in 1992.

There had been a fair amount of domestic strife during
the twenty-two years of the parties’ marriage, including some
incidents when the police had to be called. In March of 1993
an explosive dispute between the parties led Mr. McCray to
leave the marital home, and his wife to file for an ex parte
order of protection. On April 6, 1993, Mr. McCray filed his
complaint for absolute divorce. Ms. McCray answered and

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counterclaimed, accusing the petitioner of cruel and inhuman
treatment and inappropriate marital conduct, and asking the
court to grant her a divorce from bed and board. The
counterclaim stated:

“Defendant herein seeks a divorce
from bed and board and opposes an absolute
divorce from the bonds of matrimony;
however, alternatively, in the discretion of the
court, is entitled to an absolute divorce from
the bonds of matrimony as expressly provided
for in T.C.A. 36-4-102 in the event the Court
finds and concludes that Defendant should not
be granted a divorce from bed and board.”

Following a hearing on May 12, 1993 the Petition for
Order of Protection and the Complaint for Divorce were
consolidated. The wife was granted custody of the children,
with reasonable visitation for the husband. He was also
ordered to pay child support pendente lite of $2,570 per
month and spousel support of $930 per month.

The case came to trial on Friday, August 18, 1995. At
that time, Mr. McCray was living with his girlfriend, Kelly
McClarnon, who was four and a half months pregnant with
his child, and Ms. McCray was getting ready to start nursing
school at Columbia State Community College.

The proof at trial indicated that the loss of her
youngest child had devastated Irene McCray emotionally, and
that she had come under the care of David A. Burns, M.D.
Her attorney introduced into evidence a letter from Dr. Burns
that stated that he was treating her for Attention Deficit
Hyperactivity Disorder as well as for depression, and that he
has prescribed medication for her condition. Dr. Burns
further stated:

“... Mrs. McCray ... also suffers from a
learning disability, and requires extra time and
effort to progress and master concepts, as well
as to adjust to change. Nearly every major
change in her life has been accompanied by
prolonged periods of decreased functioning,
lasting up to six (6) months.

“It is my fear that finalizing divorce at the
same time she is to start nursing school would
significantly decrease her chances at being
successful in this demanding endeavor, which
is very important to her being able to be self
supportive, and to therefore be able to
function as a divorced mother.”

Mrs. McCray testified that she would be unable to
start school on Monday if the court granted her a divorce on

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Friday. On direct she responded to a question from her
attorney as follows:

Q. Now Ms. McCray, do you want
your husband to come home?

A. I want him -- he can stay with
Kelly, and when I’m ready to give him his
divorce, I’ll come in and see you and sign the
papers. I’m not ready right now. Emotionally
I cannot handle it. I never said I wanted him
to come home, I don’t.

After hearing all the evidence, the court stated in an

order filed December 22, 1995:

This Court is convinced that the
granting of an absolute divorce would
devastate Ms. McCray emotionally and
psychologically to the point that she will not
be able to function, particularly in her efforts
to begin a full-time registered nursing
curriculum. Her testimony, her demeanor, her
mannerisms in open Court, Mr. McCray’s
admissions to this effect, her parent’s
testimony, all compel the conclusion that the
fear expressed by her physician in his letter
admitted into evidence is well founded.

The court accordingly dismissed Mr. McCray’s
complaint for absolute divorce and granted Ms. McCray a
divorce from bed and board.

We do not believe that when reconcilement between
the parties is no longer possible either party is entitled to
exercise a veto over the question of divorce. As our Supreme
Court has said:

“In a divorce action the desires of the parties,
particularly the party without fault, are given
consideration, but such do not control the action
of the court.”

Abney v. Abney, 433 S.W.2d 847 (Tenn. 1968).

However, having thoroughly reviewed the record,
briefs and arguments of counsel, this court is not convinced
that the trial court erred in refusing to grant Ms. McCray an
absolute divorce under the unusual circumstances in existence
at the time of trial. Moreover, neither Linger nor the statute,
Tenn. Code Ann. § 36-4-102(b), overrides the basic discretion
of the trial court to grant or deny a divorce in cases such as
this.

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 Nonetheless, we note that the parties have now lived
apart for more than three years, and that Tenn. Code Ann. §
36-4-102(b) sets out a ground for divorce as follows:

The circuit, chancery or other such court
specially empowered to grant divorces also
has the power to grant absolute divorces to
either party where there has been a final
decree of divorce from bed and board, or of
separate maintenance for more than two (2)
years, upon a petition being filed by either
party that sets forth the original decree for
divorce from bed and board, or separate
maintenance, and that the parties have not
become reconciled. The court granting the
absolute divorce shall make a final and
complete adjudication of the support and
property rights of the parties. However,
nothing in this subsection shall preclude the
divorce forum from granting an absolute
divorce before the two (2) years has expired.
(Emphasis added)
----
Should Mr. McCray file a new petition, we see no
obstacle to prevent the trial court from ordering an absolute
divorce if it sees fit to do so.

II. Child Support

The trial court acknowledged that based upon Mr.
McCray’s most recent income statement, the guidelines would
require child support of $1,478 per month for four children,
but it ordered him to pay $2,000 per month. The court
justified its deviation from the guidelines by noting that Mr.
McCray had earned more in previous years by working a
substantial amount of overtime at the Saturn plant. The court
also considered the fact that Mr. McCray had the economic
benefit of living with Ms. McClarnon, who was also
employed with Saturn.

Mr. McCray testified that overtime was no longer as
available as it had been, because the productive capacity of
the plant had been increased by the addition of a third shift,
and Friday and Saturday work was no longer compensated at
overtime rates. He stated that he was willing to do Sunday
overtime work if that was available, but that a neck injury and
subsequent disc surgery left him with a permanent restriction
that limits the number of hours that he can work in any one
day.

Ms. McCray’s brother, Ken Klanseck, testified to the
contrary that overtime was still freely available at Saturn. Mr.
Klanseck works on the same shift as Brian McCray, but in a
different area of the plant. The trial court characterized Mr.
Klanseck’s testimony as “the credible testimony in this
record,” but it is not altogether clear that the opportunities for

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overtime in Mr. McCray’s area of the plan are the same as in
Mr. Klanseck’s area. Further, the appellee did not challenge
Mr. McCray’s account of his injury. We also do not believe
it was appropriate for the trial court to take Ms. McClarnon’s
income into account in setting child support.

We therefore reverse the trial court’s award of child
support and remand this case to enable the court to bring its
order into conformity with the guidelines. Any amount in
excess of the guidelines that Mr. McCray may have paid since
the date of the order appealed from will be applied to his
arrearages.

Mr. McCray has also argued that it was error for the
trial court to award Ms. McCray support for the parties’
seventeen year old son, Michael McCray, who has now
reached his majority, but who was in the custody of the
Juvenile Court at the time of these proceedings. According to
Tenn. Code Ann. § 37-1-151 the parents may be liable for the
expenses incurred by the State in maintaining custody of an
unruly or delinquent child. Where a prior child support order
exists, the state may claim the payments ordered for the
support of that child. We therefore find that the trial court did
not err, and we affirm its order in this respect.

III. Alimony

Mr. McCray expressed a willingness to pay alimony
“within reason” and suggested that any alimony terminate
when Ms. McCray completes nursing school or after 36
months, whichever comes first. The trial court awarded Ms.
McCray $930 per month in futuro. On appeal, Mr. McCray
argues that the trial court erred in ordering rehabilitative
alimony, which is of limited duration, and in setting an
amount that is beyond his ability to pay.

Our legislature has expressed a preference for
rehabilitative alimony over alimony in futuro whenever it is
possible for the disadvantaged spouse to make him or herself
economically independent. Tenn. Code Ann. § 36-6-101(d).
Ms. McCray managed to work during her marriage, and she
intends to earn her nursing certificate, which, if she is
successful, will enable her to become self-supporting. We
therefore agree that the trial court erred in not ordering
modifiable rehabilitative alimony. However in view of Ms.
McCray’s learning disability, and other unusual circumstances
which may prolong the normal period of rehabilitation, we
believe that the alimony should be ordered for a period of ten
years from the date of the divorce. Future modifications may
be made upon the presentation of competent proof of changed
circumstances. The question of future modifications is to
remain within the control of the trial court.

In regard to the question of the appropriate amount of
alimony, Tenn. Code Ann. § 35-5-101(d) also sets out the
relevant factors for the court to consider in making its

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 determination. For the purposes of this case, the most
important factors are the relative earning capacity of the
parties; the duration of the marriage; the age, physical and
mental condition of each party; and the relative fault of each
party. All these factors suggest that a substantial award of
alimony is warranted, and we affirm the amount determined
by the trial court. We note that the economic hardship that
Mr. McCray complains of will be somewhat alleviated by the
reduction in his child support obligation discussed above.

V. Attorney Fees

The trial court ordered Mr. McCray to pay attorney
fees in the amount of $8,000 on behalf of Ms. McCray.
Although taxing attorney fees as part of costs is contrary to
public policy in most kinds of cases, such fees may be
properly allowed in divorce cases as part of the alimony
awarded. Raskind v. Raskind, 45 Tenn. App. 583, 325
S.W.2d 617 (1959). An award of attorney fees is appropriate
in cases where the final decree does not provide the obligee
with funds out of which counsel may be paid. Harwell v.
Harwell, 612 S.W.2d 182 (Tenn. App. 1980).

In the present case, the division of marital property
does not provide the wife with a source of funds from which
to pay her attorney. Mr. McCray argues that he likewise does
not have the resources to pay attorney fees, because he has no
property of any value, and his entire net income is being used
to pay alimony, child support and arrearages.

Since attorney fees are considered an award of
alimony, the trial court should again consider the relevant
factors in 36-5-101(d)(1) before making such an award. The
first of these factors is “[t]he relative earning capacity,
obligations, needs, and financial resources of each party,
including income from pension, profit sharing or retirement
plans and all other sources.”

We believe that for purposes of alimony, the support
that Mr. McCray receives from Ms. McClarnon may be
considered either as reducing his need or as a financial
resource that falls in the category of “all other sources.” We
therefore do not believe that the trial court abused its
discretion in awarding attorney fees to Ms. McCray.

The foregoing August 1, 1997, opinion of this Court, which disposed of the appeal from

the December 22, 1995, judgment of the Trial Court became “the law of the case”, Ladd v.

Honda Motor Co., Tenn. App. 1996, 939 S.W.2d 83, and will be dispositive of some issues in

the present appeal.

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 The proceedings leading to the present appeal were as follows:

On June 17, 1996, the defendant-wife filed a “Motion for Adjudication of Contempt”

which alleged that the husband was in arrears in payment of support payments and prayed that

the husband “be adjudged in willful contempt and punished for such according to law and that

defendant have judgment for all additional arrearage through the date of hearing.”

On June 26, 1996, the husband moved the Court to reduce child support because one

child had reached majority, because husband’s income had diminished and because he did not

have the ability to pay the amount of support ordered by the Court.

After a hearing on the foregoing motions, on October 16, 1996, the Trial Judge entered

its judgment. Upon motion to alter or amend, on December 7, 1996, the Trial Judge entered an

order as follows:

It appears to the Court that the Plaintiff is in willful
contempt of this Court’s Order and should be punished
accordingly. The Court further finds that a history of this case
should be made a part of this Order to clarify the Court’s
ruling.

These parties came to Maury County in order for the
Plaintiff to work at Saturn Corporation. There were seven
children born of this marriage, one of them died, and at the
time of this divorce hearing, there were four minor child at
home and two other children in college. The Defendant, Irene
Carol McCray, has not worked outside the home, and the
Plaintiff, Brian David McCray, left the marital home and
moved into the home of his lover, who was then pregnant
with his child and has given birth to this child. The Plaintiff
filed for divorce on April 6, 1993, and the Defendant
answered by asking the Court to dismiss the Plaintiff’s
divorce complaint. The Defendant, because of her religious
beliefs, does not believe in divorce. The Court dismissed the
Plaintiff’s divorce complaint. The Court awarded the
Defendant custody of the children and ordered child support
in the amount of Two Thousand Dollars ($2,000.00) per
month, maintenance for the Defendant wife of Nine Hundred
Thirty Dollars ($930.00) and Three Hundred Twenty-five
Dollars ($325.00) per month as payment on an arrearage.

Since the filing of this divorce through October of
1996, the Plaintiff has accumulated an arrearage of Thirty-

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One Thousand Six Hundred Twenty-One Dollars and
Seventy-Seven Cents ($31,621.77) in child support and
maintenance. He has agreed to pay Four Hundred Eighty-six
Dollars ($486.00) per month to his girl friend for the support
of their newborn child, and the girl friend is employed at
Saturn where she earns Two Thousand Two Hundred Thirty-
six Dollars and Seventy-Seven Cents ($2,236.77) twice each
month. He has named one of the parties’ adult children who
lives with him as contingent beneficiary of a One Hundred
Fifty Thousand Dollars ($150,000.00) life insurance policy he
was ordered to maintain with the Defendant wife as
beneficiary and has excluded the minor children as contingent
beneficiary of a One Hundred Fifty Thousand Dollars
($150,000.00) life insurance policy he was ordered to
maintain with the Defendant wife as beneficiary and has
excluded the minor children as contingent beneficiaries. He
received a Ten Thousand Dollars ($10,000.00) bonus in
January, 1996 and yet paid only $23.81 toward the arrearage,
i.e., for January he paid a total of $2,953.81 (excluding clerk’s
commission) to apply to arrearage. He claims to have
suffered from depression and claims to be unable to work
available overtime due to his neck and back. These claims
are not supported by the credible evidence in this case. He
has done very little that the Court ordered him to do.

Since the divorce hearing, one of the four minor
children has reached majority and is in fact living with the
Plaintiff, and he is entitled to have his child support adjusted
accordingly. He also asks for a decrease in the maintenance
payments to the Defendant.

IT IS, THEREFORE, ORDERED by the Court that
the Plaintiff, Brian David McCray, be found to be in willful
contempt of this Court’s Order, and that he be sentenced to
six (6) months in the Maury County Jail, or until such time as
he purges himself of these arrearages. IT IS FURTHER
ORDERED that this sentence be suspended provided the
Plaintiff does not fail to comply with the further orders of this
Court listed hereafter.

IT IS ORDERED that the Plaintiff’s child support be
set at One Thousand Five Hundred Eighty Dollars ($1,580.00)
per month payable directly to the Defendant twice each month
along with maintenance for the Defendant in the amount of
Eight Hundred Dollars ($800.00) per month and a Two
Hundred Twenty-Five Dollar ($225.00) per month payment
on the arrearages, which the Court finds to be Thirty-one
Thousand six Hundred Twenty-One Dollars and Seventy-
Seven Cents ($31,621.77) through October, 1996 for a total
monthly payment of Two Thousand Six Hundred Five Dollars
($2,605.00).

IT IS FURTHER ORDERED by the Court that in the
event the Plaintiff misses one payment when due, upon
application of Defendant, a mittimus shall issue for Plaintiff’s
incarceration in the Maury County Jail for a period of six (6)

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 months or until he purges himself of his contempt by paying
all arrearages accruing since the trial of this cause, such sum
to be stated in the mittimus. Alternatively, Plaintiff may place
on file with the Clerk and Master a cash bond or surety bond,
such surety bond to be approved by the Court, in the amount
of Fourteen Thousand Dollars ($14,000.00), such bond and
undertaking of the surety to be void and of no effect upon
condition that Plaintiff comply with the orders of this Court
set forth herein. Upon failure of Plaintiff to make a single
payment, in full when due, Defendant may proceed against
the cash bond or the surety to enforce and collect all
arrearages accruing since the trial of this case.

On appeal, the appellant-husband presents four issues of which the first is:

I. Whether the Trial Court erred in requiring the
appellant to pay child support in an amount that was in excess
of the Tennessee child support guidelines?

This issue requires this Court to consider and apply the “law of the case” as declared in

the previous opinion of this Court, to establish the income of the husband, and to review and

revise the decision of the Trial Court in accordance with said opinion, the evidence in this record

and the applicable guide lines.

INCOME

The husband admits $4,800.00 income per month. The wife insists that his income

should be considered the average of recent years. However, the husband testified that and the

Trial Court found that his income had been involuntarily reduced by physical problems. The

evidence does not preponderate against the finding of $4,800.00 per month as of the date of the

hearing. Child support guidelines equate $4,800.00 gross income with $3,427.20 net income.

NUMBER OF CHILDREN

The prior opinion of this Court found that three minor children were living with the wife

and that the husband was also liable for the support of a fourth child in the custody of the State.

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Thus, under the circumstances stated in said opinion, the husband was liable to his wife for the

support of three children and to the State for the custody of the fourth child. However, it appears

from this record that the fourth child is no longer in the custody of the State, but has been

released into the custody of the husband. The record does not disclose the date of said release

which must be determined on remand. It also appears that the husband has been ordered to pay

$646.00 per month for the support of another child born out of wedlock. The custodian of said

child is not before this Court in this appeal, and therefore the award of support to her by another

court is not subject to review by this Court. However, it is to be considered in determining the

net income of the husband for establishing the amount of child support. Thus, the net income

of the husband for the purpose of fixing his liability to his wife for child support is reduced from

$3,427.20 to $2,941.20, for which the prescribed support for three children is $1,199.00.

The foregoing child support should be effective as of the dates when the designated facts

came into existence. These dates must be established and applied on remand. From the present

record, the total liability of the husband appears to be $1,199.00 to his wife and $646.00 to his

live-in companion which amounts to $1,845.00 total child support.

Husband’s second and third issues are:

II. Whether the Trial Court erred in finding
appellant in willful contempt of court when he did not have
the ability to meet his support obligations?

III. Whether the Trial Court erred in ordering the
appellant to pay alimony of eight hundred ($800.00) dollars
per month to the appellee when the appellant did not have the
ability to pay the amount of alimony awarded?

The third issue must be examined before reaching the second issue.

In our prior opinion we affirmed an award of alimony to the wife of $930.00 per month

for a period of ten years. We were careful to point out that the amount should remain within the

trial court’s control, but our examination of the record in this case does not reveal any substantial

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change of circumstances affecting the obligation to pay alimony since the last hearing.

Therefore, we think the $930.00 award is the law of the case and the award should remain at that

level until circumstances dictate a change.

ABILITY TO PAY

Husband admits gross income of $4,800.00 per month. He also admits that he resides

with the mother of the child born out of wedlock who is employed in the same industry as the

husband. T.C.A. § 36-5-101(a)(2)(B) provides that where a person receiving alimony in futuro

lives with a third person, there is a presumption that the third person is contributing to the

support of the recipient of the alimony. Although the statute does not expressly apply to the

circumstances of the present case, it is persuasive that the living arrangements of the husband

should be considered in respect to the amount of his income he needs for his personal expenses.

The alimony of $930.00 and child support of $1,845.00 set out herein aggregates

$2,775.00. The $325.00 arrearage payment increases husband’s total monthly liability to

$3,100.00. The $4,800.00 gross income of the husband is subject to reduction for employment

taxes, but not necessarily to the extent allowed by the guide lines, so that the husband cannot

effectively claim that he has only $3,427.00 income to pay total alimony, support and arrearage

of $3,100.00. This record does not establish the exact amount of his net income after taxes, nor

is the record complete regarding annual bonuses. The receipt of annual bonus should be

examined on remand. In any event, should it be found that $4,800 is the correct monthly income

of the husband, the amount of his income available for his personal expenses will undoubtedly

be more than $327.00, due to the fact that he lives with his paramour, to whom he is paying

$646.00 in child support, and who has a substantial income of her own. It is difficult for us to

see how the husband can claim a hardship when he is paying child support for a child with whom

he lives in an amount more than half of what he pays for the three children living with their

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mother. This court does not consider that a revision of the husband’s $325.00 arrearage

payments is justified at this time.

The judgment of the Trial Court is modified to restore to $930.00 the monthly alimony

to the wife and to change the award of child support to her to $1,199.00. The parties agree that

this cause must be remanded for a new calculation of the arrearage because the arrearage was

calculated by the trial court before we issued our prior opinion reducing the amount of monthly

support. We also held that any overpayments the husband had made in the meantime should be

applied to the arrearage.

CONTEMPT

The trial court found the husband to be in willful contempt and sentenced him to six

months in jail, or until such time as he purged himself of the combined total of $31,621.77 of

arrearages in child support and alimony. The court suspended the sentence conditioned on the

husband’s compliance with the court’s adjusted child support and alimony payments.

Tenn. Code Ann. § 29-9-102, et seq. provides for the powers of the courts regarding

contempt. Black v. Blount, 938 S.W.2d 394 (Tenn. 1996). Our Supreme Court has described

this essential power of the courts as follows:

Contempts may be either criminal or civil in nature.
Civil contempt occurs when a person refuses or fails to
comply with a court order and a contempt action is brought to
enforce private rights. Robinson v. Air Draulics Engineering
Co., 214 Tenn. 30, 37, 377 S.W.2d 908, 911 (1964). If
imprisonment is ordered in a civil contempt case, it is
remedial and coercive in character, designed to compel the
contemnor to comply with the court’s order. Compliance will
result in immediate release from prison. Therefore, it has
often been said that in a civil contempt case, the contemnor
“carries the keys to his prison in his own pocket ...” State ex
rel. Anderson v. Daugherty, 137 Tenn. 125, 127, 191 S.W.
974 (1917) (internal citations and quotations omitted); see
also State v. Turner, 914 S.W.2d 951, 955 (Tenn. Crim. App.
1995).

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 Criminal contempts, on the other hand, are intended
to preserve the power and vindicate the dignity and authority
of the law, and the court as an organ of society. Daugherty,
137 Tenn. at 127, 191 S.W. at 974; Gunn v. Southern Bell
Tel. & Tel. Co., 201 Tenn. 38, 41-42, 296 S.W.2d 843, 844-
45 (1956). Therefore, sanctions for criminal contempt are
generally both punitive and unconditional in nature. Id.
While criminal contempt may arise in the course of private
civil litigation, such proceedings, “in a very true sense raise
an issue between the public and the accused.” Daugherty,
191 S.W. at 974 (internal citations and quotations omitted).
In the trial of a criminal contempt case, therefore, guilt of the
accused must be established by proof beyond a reasonable
doubts. Robinson, 377 S.W.2d at 912.

Id. at 398.

We are not certain what to call the lower court’s contempt order. It has aspects of both

civil and criminal contempt. It appears to be more civil, however, because it appears to be

designed to induce the husband to perform some act or acts for the benefit of the wife. Assuming

that we are correct about that, an essential element of civil contempt is the ability to perform the

act ordered by the court. State ex rel. Wright v. Upchurch, 194 Tenn. 657, 254 S.W.2d 748

(1953); Gossett v. Gossett, 241 S.W.2d 934 (Tenn. App. 1951). In this case, that act is the

payment of the entire arrearage of $31,621.77. There is no finding in the record that the husband

has that ability. In addition, since both parties agree that the amount of the arrearages, if any,

must be re-calculated in light of the adjustments made in our prior opinion, it would be

impossible at this point to decide what it would take for the husband to purge himself of

contempt. So, the sentence cannot stand as civil contempt.

If the contempt is criminal, we are also of the opinion that the sentence must be reversed.

For criminal contempt, guilt must be proved beyond a reasonable doubt. Robinson v. Air

Draulics Engineering Co., 377 S.W.2d 908 (Tenn. 1964). The general power of a court of

record to punish for contempt is limited to ten days in jail and/or a fifty dollar fine. Tenn. Code

Ann. § 29-9-103. In child support cases the punishment may amount to as much as six months

in jail. Tenn. Code Ann. § 36-5-104.

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 We already have held that the amount of the arrearage, if any, must be re-calculated.

Without a record of whether there is an arrearage in child support or alimony, or both, it is

impossible to decide whether the six month penalty for violating child support orders applies to

the husband. Therefore, we reverse the sentence for contempt for any past violations of the

court’s orders. A determination of any future violations must be made in any event and the

parties should have a fresh start.

The appellant-husband’s fourth and final issue is:

IV. Whether the Trial Court erred in determining the
amount of support arrearage when there was no evidence
offered to the court that would enable it to calculate the
amount of support arrearage?

At the hearing, husband admitted that he was ordered to pay $23,924.32 support of which

he claims that he paid $15,748.72 leaving an unspecified unpaid balance of arrearage to be added

to a previously ascertained but unspecified amount of previously adjudged arrearage. Upon

remand, the total amount of support ordered, the total amount paid and the total arrearage should

be accurately ascertained and made the judgment of the Court, taking into account the

adjustments made on appeal by this court.

Husband also claims credit for $325.00 per month clerk’s fee made unnecessary by an

agreement of the parties to dispense with the Clerk’s services. However, the amount saved

thereby is not shown. Upon remand, the amount thus saved should be ascertained and included

and considered in the ascertainment of the amount of arrearage.

The October 16, 1996, judgment of the Trial Court is modified as follows:

1. As of October 16, 1996, the liability of appellant is based upon a net income of

$4,800 per month. This record does not satisfactorily establish the effective dates of the number

of children from time to time. Upon remand, the Trial Court will hear further evidence and

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adjudicate the effective dates of liability, that is, the date on which Michael began to live with

his father and the date of birth of the child of another mother. The Trial Court will then compute

the total amount of child support due from appellant.

2. The $930 per month alimony set by the Trial court on December 22, 1995, and

affirmed by this Court on August 1, 1997, will be continued in effect until revision is justified

hereafter by proof of sufficient change in circumstances.

3. The judgment of contempt is vacated.

4. On remand, the Trial Court will determine whether to allow legal expenses of this

appeal, and how much.

As modified, the October 16, 1996, judgment is affirmed. Costs of this appeal are taxed

against the appellant and his surety. The cause is remanded to the Trial Court for further

proceedings in conformity with this opinion.

REVERSED IN PART,
MODIFIED AND AFFIRMED IN PART,
AND REMANDED.

____________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

____________________________
BEN H. CANTRELL, JUDGE

____________________________
WILLIAM C. KOCH, JR., JUDGE

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