### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August, 8, 2001 Sess

ion BRENDA JANE (THOMPSON) TU RNBO v. JOE LARRY TURNBO Appeal from the Chancery Court for Wayne County No. 8490 Stella Hargrove, Judge

No. M2000-02415-COA-R3-CV - Filed October 5, 2001

A divorce judgment rendered June 5, 1992 required the appella nt to pay, inter alia , the sum of $185,000 to his wife “as a fair and equitable division of the marital property.” The appellant elected recalcitrance

rather than compliance, and failed to pay. He was found in civil contempt in September 2000 and ordered

to be confined unt

il he purged himse

lf of contempt. We a

ffirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W ILLI AM H. I NMAN , S R
. J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S. and W ILLI

AM C. K OCH , J R ., J., joined. William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Joe Larry Turnbo. James Y. Ross, Sr., Waynesboro, Tennessee, for the appellee, Brenda Jane (Thompson) Turnbo. OPINION
I. The Chancery Court

for Wayne County rendered a plenary decree on June 5, 1992 awarding Brenda Jane Turnbo a divor

ce from the appe

llant after findi

ng that without pr

ovocation he viole

ntly abusedhis wife “to a degree this court has rarely seen,” and “indulged in conduct and indig nities towards [wife] that need not be enumerated. . . .”
Wife was awarded a divorce, custody of a child, monthly alimony, and $185,000

cashto equalize a division of marital assets. The parties owned substantial assets, including 18.85 acres in Florence, Alabama; Turnbo M otor Express, I

nc.; and a Piper airplane which were awarded to the appellant. We do not deem it necessa ry to pa rticular ize the division of marital assets other than as recited.1 This alleged agr eement was not reduc

ed to writi

ng nor was it approved by the court. For manifest reasons we will not further n otice it.

2 The reco rd does n ot reflect the rea son for the ino rdinate dela y in the entry of jud gment. -2- The appellant appea

led the judgment.

He excoriated the trial judge; the case was remanded for further findings, and the

judgment was ultimately affirmed by opinion of this Court filed July 1, 1998.
On May 22, 2000, wife filed a peti

tion allegin

g tha t Mr. Turnbo was in contempt of the Chancery Court for failing

to pay “any

amount of the $185,

000 plus statutory

in terest which has accrued since February 5, 1993.”
Mr. Turnbo filed an answer a nd counte

r-claim alleging that he and his former wife had “entered into an agreement 1 whe reby [he] would pay unto his wife $50,000 thirty day s from the hearing which would cover all attorney

fees and proper

ty division and $25,000 in twelve months.” By cou nte r-cl aim he s ough t a r edu cti on i n mo nth ly al imo ny. The petition for

contempt was heard on

August 31, 2000. T

he appellant was

found to be in civilcontempt for failing and refusing to pay the amount order ed which hi s counsel described as alimony in solido , and h e was incarcera ted until he purge

d himself of conte

mpt. We consider it appropriate

to reproduce some of the Chancellor’s findings which were incorporated in a judgment entered September 28, 2000. 2
5. That

the Plaintiff/Respondent claimed to be without the ab ility to pay the obligation of One Hundred Eight-five Thousand and 00/100 ($185,000) Dollars, which represen

ts a portion of the Defendant/Petitioner’s division of t he ma rital assets of the parties at the divorce proceeding, to the Defendant/Petitioner, but failed to offer any cr edibleproof to support thi s contention.
6. That the Plaintiff/Respondent raised basically

the same financial proble

ms, previously relied upo n during the divorce proceeding, to describe his personal and business financia

l circumstances,

yet the over

all size and income

of the closely held corporation of the Plaintiff/Respondent, as well as his personal assets and income, has grown enormously in size and inc ome since such divorce proceedings a

nd, therefore,

he failed to offe

r any cred

ible proof to support this contention.
7. That

the Plaintiff/Respo

ndent claimed to ha

ve a recent loss i

n profit due to fuel and tax incre ases, but failed to offer a ny credible

proof to support thi

s contention.-3-

8. That

the Plaintiff/Respondent

has hidden, and/or attempted to hide, assets in order to avoid having to pay

the obligation owed to the Defendant/Petitioner as previously o

rdered by the Court, and the Pl

aintiff/Respondent , based on the reasons set f

orth hereinabov

e is not a credible

witness.
9. That

the Plaintiff/Respondent willfully and intentionally fa iled a nd refused to provide d i scovery, in

cluding product

ion of financial a

nd other record

s, requested by the Defe

ndant/Pe titio ner, and ordered by the Court to be produced prior to this hearing date and, by doing so, the Plaintiff/Respondent has created a hardship on the abi lity of the Defendan

t/Petitioner to comp

letely d eterm ine the assets, income and financial re

sources of th

e Plaintiff/Respondent and, further, interfered with the ability of the Court to determine the past and prese nt ability of the Plaintiff/Re

spondent to comply with the previous o

rders of the Cour

t. 10. That

the Plaintiff/Respo

ndent had the ability to produce the financial and other records as previously ordered by the Court and, there f

ore, he is in willful and intentio

nal civil contempt o

f the Orders of th

is Court.
11. That

the Pla int iff

/Re spo nde nt w ill ful ly and in tentionally failed and refused to pay the sum of

One Hundred Eig

hty-five Th

ousand ($185,000. 00) Dollars, representing a portion of the division of mari tal assets awarded to the Defendant/Petiti

oner, as previou

sly ordere d by the Court

. 12. That

the Plaintiff/Respondent

had the ability

in the past, as well

as p res ent ly, to pay the sum of

One Hundred Eighty-five Thousand ($185,000.00) Dollars to the Defendant/Petitioner and, therefore , he is i n willful and intent ional civil contempt of the Or

ders of this Court.
13. That

the Plaintiff/Petitioner is hereby ordered to pay the sum of O ne Hundred Eight-five Thousand and00/100 ($185,000.0 0) Dollars,plus statutory

postjudgment intere st of ten (10%) percent and any outstanding attorney fees incurred by the D efendant/Petitioner in relation to this case, to the Defendan t /Petitioner, and Judgment is hereby awarded for said amount against the Plaintiff/Respondent in favor of the Defendant/Petitioner.
14. Tha tthe Plaintiff/Respo ndent is in Civil Contem pt of the Orders o

f th i s Court, and he shall be incarcerated in the Wayne C ounty Jail

until he otherwise purges himself of

Contempt by complying with the previous orders of this Court as set forth herein. In ot her words, the Plaintiff/Respondent holds the keys to t he j ail in h is h and , an d ma y cause himself to be immediately

released from custody by c omplying with the pr

eviou s Orders of the Court as aforesaid.3 Although signed by

the Chance

llor on Se

ptember 1, 2000 i

t was not entered u

ntil S eptember 8,2000.
4 A de minim is error, som ewhat revela tory. 5 An Agree d Orde r cannot be appealed

. Kelly v. Walker , 208 Tenn. 388 (1961 ). -4- These findings are supported by the grea t weight of the evidence.
On September 1, 2000 [the day after the hearing on the petition for contempt which resulted in Mr. Turnbo’s confinement] the case was agai n before the court “upon the agreements and stipulations of the parties.”
The Order entered 3 recites that the p arties have “en

tered into a resolution of the issues at the present time” and provides that

Mr. Turnbo “be granted

a furlough from the Wayne County jail for September

5, 2000 until 5:00 p.m.” This order, which was approved by counsel, provided that the incarceration

of Mr. Turnbo shall be suspended provided he makes payment of $100, 000 to the plaintiff before the close of business September 5, 2000, and pays his wife ’s attorney

fees. The order further provides that Mr. T urnbo will p ay his forme r wife $5,000 per

year for 1 0 years an

d will continue to pay alimony as ordered until his former w ife reaches the age of 66.
The order ne

xtprovides “[f]ailure to make said payments will result in the ruling of the Court announced

August 31, 2000 less any payments made. Reinstate ment will not result

in incarceration without further proceedings.”
For reasons not explicated in the Or der, or the record, wif

e agreed to ac

cept $150,000 in settlement

of the amount of about $350,000 owing to her; even so, having accompl ished this feat, Mr. Turnbo’s recal

citrance rema

ined uppermost and

he, apparently

, did not pay th

e reduced amoun

t. In lieu, he appe aled to the Court of Chancery A

ppeals 4 the September 28, 2000 Judgment and the September

8, 2000 Order. 5 Since the latter Order provides, in effec t, that it has no eff icacy if its terms are not complied w

ith, we will treat it

as nonefficacious and focus on the September 28, 2000 judgment.
II. The appellant presents for review the issues of whether the “court erred i n fin ding the alimony in solido obligation of the appellant proper grounds for incarceration” and that he had the ability to purge himself

of contempt. He a

rgues t hat Article I , Section 18 of the Tennessee Constitution “says there shall be no imprisonment for a civil debt.” The obligation of the appellant is a civil one ordered to be paid by a court following a judicial process, and the court has the power to enforce its dec

rees provided the

evidence is clea

r that the appella

nt has the ability to pay. See, Mackey v. Cumerloto , 12 TAM 36-15 (Tenn. Ct. App. 1987). The trial judge f ound in no uncerta

in terms that the appellan

t had the ability

to comply, but

refused to do so. T

he record refl

ects that his refusal is contumacious and cannot be tolerated. In 1 991 the appellant’s business generated a net p rofit in excess of $400,000: in 1998 the business, a trucking company, owned 46 Freightline r-5-

trucks, had 45 employ

ees and grosse

d in excess of $4,600

,000. In additi

on, t he appellant owns valuable real estate in Tennessee and Alabama, various personal vehicles and other personalty and, with his present wif

e, enjoys a

substantial income

from Turbo Motor E

xpress. Appellate review is de novo on the record wit h a presum ption of correctness unless the evidence preponderates against the judgment. Rule 13(d) T.R.A.P. We find that the evidence does notpreponderate against the judgment finding the appellant in willful civil contempt and ordering him to be incarce

rated, and that he

has the present a

bility to purg

e himself of conte

mpt. The judgment

is affirmed and the case is remande d to the Chancery

Court for Way

ne County for such further proceedings as the Chancellor deems necessary , including the award of attorney fees on appeal. The costs are assessed to appellant and the sureties of his bond for which execution may iss ue i f nec ess ary.

___________________________________ WILLIA M H. INMAN, SENIOR JUDGE