# FILED

May 6, 1997 Cecil Crowson, Jr

. App ellate C ou rt Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTER N SECTION AT J ACKSON

______________________________________________________________________________ JUDY MARG ARET JACK SON Shelby Chancery No. 21460-2 VIROSTEK, C.A. No. 02A0 1-9601-CH-000

19 Plaintiff, Hon. Floyd Pe ete, Chancel lor v. JAMES R. VIROSTEK, Defe nda nt. MIM I PHILLI PS, Norwood, Philips, Deboo, Ho ward & Grubb, Memphis, Attorney for Plaintiff. ROB ERT A. TA LLE Y, Br

own , Bra she r, & S mi th, M em phi s, Attor ney f or De fend ant. REVERSED IN PART AND AFFIRMED IN PART Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. Judy Margaret Jackson Virostek (“Wife” ) filed suit for divorce in the Chancery Court of Shelby County against James R. Virostek (“Husband”). Following a bench trial the chancellor entered a dec ree awarding Wife a divorce on the grounds of irreconcilable differences. The divorce decree also incorporate d therein by reference a Marital D issolution Agreeme nt (“MDA ”) awa

rding cus tody of the

parties’ minor chil d to Wife a s well as p

roviding t hat Husba

nd would pa

y child sup

port alon g with rehabilitative alimony to Wife. Thereafter Husband f iled a motion to modify the divorce decree relative to the payme nt of child support and alimony. Wife responded with a counter-petition seeking to have Husband held in contempt for failure to abide by the terms of the MDA. Following a hearing the chancellor denied H usband’s petition to

modify re

lative to t he payme nt of alimo ny and ch

ild suppor

t. The court also found Husband in contempt of court for failing to abide by the provisions of the MDA, ordere d Husband

to disper se funds f

rom the tr ust account of the

parties’ minor son to satisfy an outstanding tuition balance at the son’s private school and ordered Husba nd to pay Wife’s attorney fees, approximating $15,000.00. On appeal Husband presents four issues for our c onsideration: whether the chance llor err ed in: (1) denying H

usband’spetition to

modify the

MDA rela

tive to2

paying alimony and child support; (2) finding Husband in contempt of court for failure to pay child support and alimony; (3) requiring Husband to pay his minor son’s high school tuition from a trust fund under his control; and (4) awarding Wife attorne y fees. For the reasons hereafter stated, we reverse the decree of the

chancellor in part and otherwise affirm. The basic facts are not in dispute. The parties wer e married for twenty-six years prior to their separation and divorce in the spring of 1993. A son was born to the marriage, who was sixteen years old at that time. At the time of the sepa ration, Husband w as employ ed as Sen ior Vice -Preside

nt of Reta il Banking a

t Community Bank in Germantown, and was earning $79,500.00 per yea r. Husband had been employed in the banking business since 1966. He had worked his way up in the industry a t banks thr

oughout the

nation, ha

ving chan ged jobs te

n times ove

r the cou rse of twenty years. Wife, slightly younger than Husband, remained a homemaker during the course of the marriage. Following the divorce, Wife was granted a four-year college scholarship at Carnegie-Mellon University in Pittsburgh, Pennsylvania, which necessitated tha

t she and t

he parti es’ son mo ve to Penn sylvania . Upon movi ng to Pittsburgh, Wife enrolled their son in a private high school. The annual tuition approximated $7,500.00 per year. Some six months following the divorce in September 1993, Husband was involuntarily terminated from his position at Community Bank. He negotiated a

severa nce pac kage wor th $21,000 .00 that w as paid to him two we eks afte

r his terminat ion. Thre e days af

ter term ination Hu sband signed a Petit ion to Temp orarily Suspend Child Support and Alimony Payments and to Modify the Final Decree, which was filed three weeks later. Husband a sserted his involuntary termination as grounds for modification. Three weeks after his termination Husband left Me mphis for Pompano Beach, Florida, where he moved in with his paramour, Ms. Gwyn Huggins. In January 1994, Husband accepted a job as a secur ities broker selling stocks and bond mutual funds on a straight commission. Husband earned approximately $8,000.00 from this employment over the next three months. At that time he accepted a similar position with the3

brokerage subsidiary of First Union Bank, where he was pa id a draw of $3,000.00 per month. In addition he received nearly $15,000.00 in March 1994 from the sa le of stock options he held in Community Bank, his former employer. By March 1994, Husband had fallen behind in making his child support and alimony pa

yments to W

ife. Wif e filed a counter -petition to Husban d’s petiti on to modify, se eking to ha

ve Husba nd held in c ontempt of

court fo r failing to timely c omply with the te

rms of the

MDA, as w ell as see

king attor ney fee s and cost s incurr

ed in contesting Husband’s petition. Following a hearing the chancellor entered an or der denying Husband’s petition to suspend or modify alimony and child support payments, finding that Husband failed

to carr y the burd

en of pro of showin g a substa ntial and materia l change in circumstances, and also finding that while Husband showed a re duction in income, he failed to show a reduction or alteration in his earning capa city. The chancellor found Husband i n contemp t of cour t, but held

punishmen

t in abeya nce. The amount of

past due alimony and child support was reduced to judgment, totaling $8,075.00. At that hearing the chancellor f

ailed to a ct on Wif e’s req uest for attorne y fees. Wife sub sequentl

y filed a motion see

king to hav e the cou

rt order Husband t

o disperse funds from their child’s trust account to pay an outstanding balance for tuition owed to a private school in Pittsburgh. Husband filed a notice of appeal from the original order of the trial court. This court dismissed Husband’s appeal on the gr ounds that the o rder ap pealed f rom was no t a final j udgment. After the court granted Wife’s motion to require H usband to pay their son’s delinquent high school tuition, Wife filed a motion calling upon the court to issue a final, appealable order, noting that the court had not ruled on the ma tter of Husband’s contempt, nor had the court acted upon Wife’s re quest for attorney fees. The motion additiona lly recit ed that Hu sband wa s still in co ntempt an d that he h ad marr ied his paramour. Following a

hearing the chancellor e

ntered a final ord er that r eaffir med his previousorders, found Hus band in co ntempt of t he order s of that c ourt, with punishment set at three days confinement in the Shelby County jail, with sentence4

suspended. In addition, the court ordered Husband to pay Wife ’s attorney fees in the amount of

$14,859.6 7 and ord

ered Hu sband to e

ncroach upon the

investmen

t funds in his contr ol to pay the delinqu ent tuition fees re lative to h is child’seducati on. This appeal followed. I. The Failure to Reduce Alimony and Child Support. For the sake of judicial convenience and economy we will consider Husband’s first two issues together—that of the trial court’s refusal to modify the alimony and child support payments. The MDA entered into between the parties pr ovided that Husband w ould pay W

ife reh abilitativ e alimony in the amo unt of $1,7 50.00 a mo nth for two months, followed by $1,500.00 per month for the next 46 months. Thereafter, Husband w ould pay W

ife $1,80 0.00 per

month as pe

riodic a limony for

72 months, with the payme

nts then r educed to $1,200. 00 per mon

th for the next 60 mon

ths. Payme

nts would thereafter be reduced to $700.00 pe r month and would be paid as alimony in futuro , with a condition that the monthly payments would decrease dollar for dollar as Wife’s earnings exceeded $1,200.00 pe r month. Paragra ph 9 of the

MDA provi des in per

tinent pa rt as foll ows: It is the express intention of the parties that this award of alimony is for the purpose of rehabilitating Wife, assisting with her education and living expenses while she prepares for he r career. The parties expr essly intend that this a ward sha ll not be mod

ifiable f or any fu ture cir cumstanc es, except t hat all pa yments wil l cease

in the eve

nt of the W

ife’s de ath. Said temporary alimony may be subjected to modification in the event of an involunta ry termin ation of H

usband’scurren

t employme

nt.

Husband c ontends th at in acc ordance with the la

nguage in the para graph se t forth above, in asmuch a s the proo f shows tha t he was in

voluntar ily termin ated fr

om his employment, the provisions of paragraph 9 became eff ective leaving as the only matter left for the court to determine how much his alimony payments would be reduce d. He contendsin the alte

rnative that shoul d his inter

pretatio n of this a

greeme nt be inco rrect, then and in that eve

nt he has s hown a sub stantial a nd mater ial chan ge in cir

cumstanc es. In finding that Husband had failed to carry his burden of proof in this regard, the trial court obviously did not construe this paragraph in the same manner as Husband did. We a

gree wit h the cons truction r

endere d by the tr

ial cour t. The lan guage in5

question m

erely pr ovided tha

t if Husba nd was inv oluntaril

y termina ted, he c ould petition the court to modify the alimony payments. Accordingly, this court will look at this matter in light of the statutory and case law of this state—that is, whether Husband has carried the burden of proving that there ha d been a substantial and material change in his financial circumstances. We give wide latitude to an alimony award of a trial cour t. Cranford v. Cranford , 772 S.W.2d 48, 50 (Tenn. App. 1989). Our scope of review of findings of the trial court in th

is regar d is de novo review of the record presente d to us. Absent an error of law, the findings of fact of the trial c ourt come to this court with a presumption of corr ectness and we mu st affir m unless we

find that t

he prepo nderanc e of evid ence is otherwise. 13(d) T.R.A.P.. Husband’ s motion be fore the trial cou rt sought to

tempora rily suspe nd his alimony and child support payments for a reasonable period of time until he obtained new emplo yment and , in additio n, to modif y the chil d support a

nd alimony

payments that were to begin some time in the future “to a reasonable amount based upon the financial circumstances of the parties.” I n his argument before the chancellor Husband’s attorney conceded that there wa s no question but that the needs as shown by Wife were real and dese

rving. Therefore in examining this sub-issue we look only at any real changes in the ability to pay on the part of Husband and to a scertain whether or not these change s, if any, were bo th substan tial and ma

terial. It is undisp

uted that immediate

ly followi ng his loss o f employme nt with Community Bank in September 1993, that his earnings declined substantially. The record reflects that at this time Wife and the par ties’ son had moved to Pittsburgh, where she had begun her college e ducation. Shortly after his employment was terminat ed Husba nd broke the leas e on his ap artment i n Memphis a nd moved to Pompano Beach, Florida where he moved in with his girlfriend. Husband testified that after reaching Florida he sent out resumes all over the southeast, but received no favorable responses. Eventua lly he obta

ined a job with a bro

kerage firm in Flor

ida wher e his only compensa tion was st

raight c ommission, with no dra w. He tes tified tha

t for the f irst6

three months of 1994 he earned $500.00, $3,600.00 and $3,000.00, respectively. In May 1994, Husband took a similar job with the brokerage division of First Union Bank, which pa id a $3,00 0.00 per

month dra

w for the first thr ee months . Also dur

ing this period he exercised his stock options on Community Bank stock, receiving approximately $33 ,000.00 f rom the sa

le of tha t stock. Of

this amoun

t he paid $17,000.00 to his brother to repay a loan taken out to purchase the stock. He paid no alimony in February, but paid some child support. With the money from the sale of the bank stoc k, while he paid som

e arre arage, he used a

substantia

l amount to p ay debts and loans

. Husband a

dmitted tha

t shortly a

fter his t erminati on Community

Bank paid

him $21,000.00 in severance pay, but that nevertheless he pr oceeded to file this petition. He further admitted t

hat the to tal depos its to his ba nk account from O ctober 6 , 1993 to August 15, 1994 were $61,262.00. He states that of this amount $32,250.00 came from the exercise of his stock option with the ensuing sale thereof, with $17,000.00 as aforesaid being paid to brother. He paid $6,800.00 to America n Express. He stated further that he was current at that time on child support and alimony, but from Mar ch 1994 to the date of trial in August 1994, he fell into arrears some $7,600.00. The record reflects that for the per iod January through August, he owed a total of $12,500.00 in combined alimony and child support, but paid only $4,900.00. While Hus band’s mo nthly inco me had be en substa ntially re duced, n onethele ss, during this period of time Husband found himself with substantial amounts of cash on hand, both from his severance pay and the sale of Community Bank stock. Husband, along with Wife, negotiated and agreed to the provisions in the MDA rela tive to the payment of alimony. While he had petitioned the court for temporary te rmination and reduction, he had no clearance f rom the court to renege on his obligation to his former Wife for the sake of paying debts. We re solve this issue in favor of Wife. We now address the other sub-issue involved in this particular matter, that of the refusal of the chancellor to grant Husband r elief in his child support payments, which had been set by the MDA at $1,000.00 per month. In the chance llor’s order on the petition to temporarily suspend and modify, the court said:7 The Court further finds that the Petition to Suspend or Modify Alimony and Child Support Payments should be denied. Again, in so finding, the Court notes that the burden of showing a substantial and material change in circumstances was not met. . . .

In Jones v. Jones , 870 S.W.2d 281 (Tenn. 1994), our supreme court held that the Child Support Guidelines (hereafter “CSG”) codified as T.C.A. § 36-5-101( e)(1) et seq ., expressly provide that they are to be applied in any action brought to establish or modify ch

ild suppor

t. Prior to J

uly 1, 1994 , trial co

urts coul d modify e

xisting ch ild support or

ders bas ed upon a

showing of

“a substa ntial and materia l change in circumstances.” See T.C.A. § 36-5-101(a)(1)(1991)(Amended 1994) . However, the legislature replaced this standard in 1994 with a more prec ise one now popularly known as the “significant variation” test, which requires the cour t to decree “an increase or decrease of such allowance when there is found to be a significant variance, a s defined in the Child Support Guidelines . . . between the guidelines and the amount of support currently ordered. . . .” Turner v. Turner , 919 S.W.2d 340, 343 (Tenn. App. 1995). In accordance with the amended statute, the Department of Human Services promulgated a public necessity rule that set forth a “significant var iation” rule for the courts to employ under these circumstances. Both the amended statute and the amended rule became effective July 1, 1994. The earlier of the two hearings that led to the trial cour t’s order took place on August 18, 1994. It is conceded by Wife in her brief and we likewise affirm that the “significant variation” test set out in the current CSG as amended should have be en applied by the chancellor, rather than the ea rlier guideline of “substantial and material change in circumstances.” Accor dingly, we reverse the decree of the chancellor denying Husband’s petition to temporarily terminate and modify the MDA as it relates to child support, and upon remand, respectfully direct the chanc ellor to conduct an evidentiary hearing under the current CSG in order to ascertain what, if any, modifications need to be made in the child support payments for the specific per iod involved under the proof as presented. While we see nothing in this record to justify a complete temporary termination of child support payments, we leave this matter to the8

chance llor as we ll. II. The Contempt of Court Issue. Husband contends that the trial court erred in finding him in contempt of court for fail ure to time

ly pay ali mony and child suppor t pursuan t to the MDA . At the time of trial the record reflects that Husband owe d $3,040.00 for child support and $4,560.00 for alimony. A finding of contempt by the trial court comes to us on appeal with the presumption of correctness. Johnson v. Johnson , 499 S.W.2d 268 (Tenn. App. 1973). In addition, a failure to comply with a decree for the payment of alimony places the obligor prima faci e in contem pt of cour t and puts u

pon him the

burden o f proving

his inability to make the payments as directed. Chappell v . Chappell , 261 S.W.2d 824, 831 (Tenn. App. 1952). Following the hearing on contempt, as well as other matters, the chancellor entered an interim order, which contained the f ollowing pertaining to the contempt charge:

1. That the Petitioner James R. Virostek is in willful contempt of this Court’s Order on t

he payme nt of alimo ny and ch

ild suppor

t. In so finding, the Court specifically notes that the burden of proof was upon Mr. Viros tek to show

his inability to make

the Court O

rdered payments , and that M

r. Virost ek faile d to show a

n ability to

make payments, whi le clearly showing the ability t

o dischar ge his per sonal deb ts. In so finding, the Court further notes that the public policy of Tennessee is to punish by contempt the party who, through willful disobedience or obstinacy, refuses to comply with a Court Order. The chancellor held in abeyance the specific punishment for contempt pending further orders of the court. In its final order, the chanc ellor sentenced Husband to three days confinement in the Shelby County jail, but with the sentence to be suspended. From reviewing this record, we are of the opinion that the evidenc e does not preponderate against the finding of the chance llor that Husband was in willful contempt of that c ourt’s or

ders relative to t

he payme nt of alimo ny as wel l as child s upport. T his failure by Husband is a “civil conte mpt proce eding” a

nd the cou

rt had no a

uthority in our opinion to commit Husband to jail for a definite period of time, but only could have committed him for an indeterminate sentence until the amount of alimony in arrear s9

was paid. While the chancellor did not ever place the label “criminal contempt” on the conduct of Husband, by this determinate sentence he did af fix such a label. In addition, the appropriate notice requirements pertaining to a c riminal contempt proceeding were not complied with. Accordingly, we are of the opinion that while the chance llor was correct in finding Husband in contempt of court, he was in err or in making the contempt criminal in nature. We therefore r everse the chancellor insofar a s the determinate jail sentence is concerned, notwithstanding the fa ct that it was suspended. III. The Cust

odial Trust Fund. Husband contends that the trial court was in error in requiring him to encr oach upon a trust fund of the parties’ son for the purpose of paying an outstanding tuition balance incurred at a private high school a fter Wife and son moved to Pittsburgh. Husband c ontends th at the funds in this a ccount w ere a gi ft to their son from a

greataunt for the express purpose of assisting the parties in paying the son’s college education. During the marriage the parties had by choice se nt their son to a private high school in Memphis. The record shows that on previous occasions, while yet marrie d, the part ies had in vaded thi s trust fun d in order to pay high

school tuition for th

eir child when livin g in Memphi s. The co ntention b y Husband that this f

und was f or the sol e use of the son’s college education is not persuasive. Under the circumstances, we are of the opinion that the trial court did not abuse its discretion in directing in this one instance that the b alance

of a yea r’s tuitio n be paid f

rom this fu

nd. This iss ue is without me

rit. IV. Wife’ s Attorn ey Fees . The tria l court is g iven wide

discreti on in the a

llowance of attorn ey fees , considered in divorce cases to be a form of alimony. This court will not interfere except upon a showing of an abuse of discretion by the trial cour t. Threadgill v. Threadgill 740 S.W.2d 419, 426 (Tenn. App. 1987). It is Husband’s contention that the trial court abused its discretion in directing Husband to pay Wife’s attorney f ees incurred in defending the petition to modify filed by Husband. We are of the opinion that this issue is without merit. In Cranford v. Cranford ,10

772 S.W.2d 48 (Tenn. App. 1989) this court reversed the trial court’s decision to award wife only one-half of her attorney fee s in connection with her resistance to husband’s efforts to terminate the court-ordered a limony, and awarded wife the full amount of her

attorne y fees, i ncluding t

hose fee s incurr

ed on app eal, noti ng that wif e in that c ase lacked the resources to pay her lega l fees and incurred them only because of husba nd’s efforts to terminate his support obligation. Id. at 52. In the case before us, the rec ord is clear that Wife has virtually no assets to speak of from w hich to pa y these f ees. She is curre ntly seek ing to obta

in a colle ge degre

e so as to develop her financial independence. W ife has been forced to incur these e xpenses only because of Husband’s efforts to terminate a nd/or modify his child support and alimony obligations, the grounds for which are suspect, to say the least. In our opinion the trial court did not abuse its discretion in ordering the payment of Wife’s lega l fees for expenses incurred. Wife has also asked this court to award her a ttorney fees for legal expenses incurred in connection with this appeal. We are of the opinion that she is entitled to be compensated for these expenses. Upon rema nd, the trial court is directed to hold an appropriate hearing and ascerta in the amount of her attorney fees Husband should be ordered to pay. The decree of the t

rial court sentencing Husband t o three days in jail is

rev ers ed. Th e de cre e de ny ing Hu sba nd’ s p et it io n t o t erm ina te an d mo dif

y c hild support payments is

reversed. Thi s matter is reman ded to the Chancery Cour t of Shelby County for a hear ing in keeping with t

he provisions of t

his opinion. The decree of

the t rial court

is ot herwise af

firmed. Wife is ent

itled to at

torney fees fo r service rendered on appeal. The chancell or is directed on remand to conduct a hearing to determine the amount . Cost s in th is cause o n appea l are tax ed to Husband, for which execution ma y issue, if nec essary.

________________________________________ TOMLIN, Sr. J.11 ________________________________________ CRAWFORD, P. J. (CONC URS)

________________________________________ FARMER, J. (CONC URS)