1

Rule 10 ( Court of A ppeals). Memorandum Opinion . -- (b) The C ourt, with the co ncurrence of all judges participating in the case , may af

firm,reverse or modify t he actions of th

e trial court by memorandum opini on when a f

ormal opini

on would have no p recedenti al value. W hen a case is deci ded by memorandum opinion it s hall be design

ated “MEMORANDUM OPIN ION,” sh all not be pu blished, and shall not be cite d or relied o n for any reaso n in a subsequent unrelated case
. 

# FILED January 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE WESTERN SECTION AT NASHV ILLE SHELLEY SUE STEVENSON, ) From the Davidson County Circuit Court ) at Nashville, Tennessee Plaintiff/Appellee, ) ) Honorable M uriel J. R obinson, J udge VS. ) ) Davidson Circuit No. 93D-3651 MICHAEL KINGSTON STEVENSON, ) Appeal No. 01A01-9701-CV-00032 ) Defendant/Appe

llant. ) REVERSED IN PART, AFFIRMED IN PART

) AND REMANDED ) ) Louise R. Fonte

cchio ) Nashville, Tennessee ) Attorney for Appellant ) ) Mike W. Binkley ) Nashville, Tennessee ) Attorney for Appellee
MEMORANDUM OP

INION 1 FARMER, J. Shelley Sue Stev enson (Wife) and Michael Kingston Stevenson (Husband) were divorced by final decree entered on November 18, 1994. Wife was awarded custody of the parties’ two minor childr en, a lim ony in futuroand child support. Husband was also ordered to pay the uncovered medical expenses of the Wife. Husbandappealed to this court and we remanded the case to further develop the basis of the trial court’s award o f chil d support with regard to the child support guidelines. During the pendency of the appeal, the

trial court found

Husband in civil

contempt for failure to pay

alimony. Hus

b and subsequently

filed a petition to c

hange custody

and a motion to
mo difyali mon y a nd Wife filed a second petition for contempt against Husband. The trial court deniedHusband’s petition s to change cust

ody and to re

duce alimony

, but did find Husban

d in civil contempt a second time for continued nonpayment

of alimony. Pu

rsuant to remand from this Co

urt, the trial court determined Husband ’s earning capacity a t $62,000 annually

and established hi

s obligation for child support at $800 per m o nth and his obl igat ion of al imo ny in futuroat $700 a month. On appeal, Husband challenges each of the findings of the trial court, including the finding2

of contempt and the award of medical expenses. Wife requests her attorn ey fees on ap

peal. We
reverse the trial court on t

he issue of contem

pt, but affirm its

decision on all other issues and remand for determinatio

n of Wife’s attorne

y fees. The facts of

this case are complicated, made further complex by the

prior appeal to th

is court. This court has expoundedupon the facts of this case in Stevenson v. Stevenson , No. 01A01-9506- CV-00230, 1995 WL 681179 (Tenn. App. Nov. 17, 1995) and for the sake of judici

al economy w

ill only furthe

r relate such fa

cts as are rele

vant to this second a

ppeal. At the original divorce hearing, the proof established that Husband work ed in the family business, which involvedthe management of several properties. He testified that he resides rent free withthe family

and is provided transportation and $200 a week for maintaining the various family properties. It is not disputed that Husband’s family

makes his child

support pay

ments and paid his legal and expert

fees in this matter. However, throughout both trials and both appeals, Husband has refused to pay his othe

r obligations. As

a result, the tria

l court held Husba

nd in contempt on Aug

ust 31, 1995 for failure to pay alimony, a $7,700 a rrearage, and failure to pay pa st due insurance premiums ($342) for Wife. The trialcourt sentenced Husband to jail

for civil contempt, but allowed him to p urge him sel f by p aym ent of th e current month’s alimony and the past due insurance premiums, i.e., $1,042, because the arrearage was subject to change on appeal. In that

first appeal, we affirmed the trial court’s calculation of Husband’s arrearage of alimony. In May 1996, Wife filed a second petition for contempt alleging that Husband had refused to pay any

of his prior

alimony obligation ($7,700), and had refused to pay hi s current

alim ony obligation ($6,300). The trial court set a hearing for all pending matter s for June 24, 1996. The Husband, thr ough off er of pro of, put on e vid ence of s ever al e xpe rts rega rdi ng hi s ear nin g cap aci ty. Husbandalleged

that his earning

capacity c

ould not support the trial court’s awards of alimony and child support. Husband contended that the proof established his earning capacity at no more than $25,000. After hearing all the evidence, the trial court held that Husband’s current circumstances were exactly the same as they were at the final hearing of divorce and as they were at the August 31, 1995 contempt hearing. In setting child support pursu ant to the remand from the first appeal, the trial court found Husband’s e

arning capac

ity to be $62,0

00. The trial cour

t expressly

found that Husband
was not a credible wit

ness, that he rema

ined under-emplo

yed, that he

was in full control of his a

bility3

to earn income an

d that he had funds

available to him fr

om other sources.
I. Change of Custody Our review of the factual

findings of

the trial court in a child custody case are de novo with
a presumption of cor

rectness, unless

the prepondera

nce of the evide

nce requires oth

erwise. Rule 13(d) T.R.A.P.; Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984) . The law regarding
m odification of custody is well-establishe

d that there must be

a material chan

ge of circums

tance s in the time period since the ini tial award of c ust ody i n or der t o wa rran t a c han ge of cus tod y. Musselman v. Acuff

, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). The trial judge was well aware of this standard and we do not find the evidence pr eponderates ag

ainst her finding

with regard to
cus tod y.

II. Modification of Alim ony Our review of the trial court’s decision rega rding whether t

o modify alimo

ny is also de novo witha presumption of correctness, unl ess the pre ponderance of the evidence requires otherwise. Jones v. Jones , 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989). In similar fashion to our analysis for modification of cu sto dy, our legislature has decreed that a modification of alimony also requires “a substantial and material change of circumstances”. Tenn. Code Ann. § 36-5-101(a)(1 ) (1996 & Supp. 1997). The party seeki ng the change has the burden of proving the material chang

e of circumstanc

es. Elliot v. Elliot , 825 S.W.2d 87, 90 (Tenn. Ct. App. 1991). Furthermore, the “[c]hanges in circumstances are not material if such changes were contemplated by the parties at the

time they en

tered into the alim

ony and suppo

rt agreeme

nt.” Seal v. Se al , 802 S.W.2d 617, 620 (Tenn. Ct. App. 1990). That is, the “change in circumstances must have occurred since the original award.” Brewer v. Brewer, 869 S.W.2d 928, 935 (Tenn. Ct. App. 1993). The trial court, in

the case before us, specifically found that Husband’s circ umstances were essentially

unchanged

even from the dat

e of the origina

l divorce decre

e, some twenty

months later. The Husband remains willfully under employed and we find no evidence in the record which indicates a material chan ge of circumsta

nces sufficient

to find th e trial court in error. Wit hout a change of circum stances, Husband is simply reasserting the arguments presente d in the original hearing which have been fully litigated. Therefore, we find the Husband’s issue without merit and4

affirm the decision of the trial court.
III. Child Support The applicable statute regarding modification of child support is Tenn. Code Ann. § 36-5- 101(a)(1), whic

h reads in pertine

nt part: In cases involving child support, upon application of either party, the cour t shalldecr ee an incr ease or decrease of such allowance when there is found to be a significan

t variance, as de

fined in the child s

upport guidelin

e s establishedby subse

ction (e) , between the guidelines and the amount of support currently ordered

unless the variance has resulted from a p reviously court-ordered

deviation from the guidelines and the circumstances which caused the deviation have not changed. Tenn. Code Ann. § 36-5-101(a)(1) (1996 & Supp. 1997). In the first trial, the trial court made findin gs regarding

the relative ea

rning capaciti

es of the parties
. Although Husband worked f or his family

and only ea

rned $800 per mont

h in sal ary, there was proof in the record that his skills and abilities weresuch th at his earning capacity was between $49,000 and$97,000. The trial court deviated from thechild support guidelines by awarding Wife less than the amount allowed by the guidelines, but this deviation was due to its award of $700 per month in alimony to Wife. Even though this award o f ch ild support was based on earning capacity rather than a ctual earnings, such a basis is

proper. See Garfinkel v. Garfinkel , 945 S.W.2d 744, 747-48 (Tenn. Ct. App. 1996). T her efore, since we have a court-ordered deviation, the issue becomes whether the re has been a change in the circumstances which caused the deviation. Husband cites the fact that he no longer has access to the amounts of cash that he once had acces s to as bein g a sufficien t change of circumstances to justify a modification of child support. However, Husband’s lack of access to his family’s resources does not diminish his earning capacity , only his income. The trial court found that Husband was willfully underemployed because he chose to work for his family rather than on the open market. This court has said that “if there is a finding of willful
or voluntary un

deremploym

e nt, the c ourt should set child support based on a finding of earning potential.” Herrera v. Herrera, 944 S.W.2d 379, 387 (Tenn. Ct. App. 1996). Therefore, we find Husband’s third issue to be without merit and affirm the trial court’s decision.
IV. Contempt5

“The matter of

determining and dealing with contempt is within the court’s sound discretion.” Robinson v. Air Draulics Eng’g Co. , 214 Tenn 30, 37, 377 S.W.2d 908, 912 (Tenn. 1964). As such, the trial court’s “determination is final unless there is plain abuse of discretion.” Id. Our review of the case law regarding the issue of incarceration for c ontempt convinces us that there
can be no impr isonment for civil c ontempt without a fi

nding that the co

ntemnor has the ab

ility to
c omply with the required order. See Leonard v. Leonard, 341 S.W.2d 740, 743-44 (Te nn. 1960) , Going v. G oing , 2 56 S.W. 890, 899 (Tenn. 1923), State ex rel. Moore v. Owens , 1990 WL 8624 (Tenn. Ct. App. 1990). The contemnor cannot be forced to borrow the funds, nor can his

family be forced to satisfy his duty. Netherton v. Netherton , 1993 WL 49556 (Tenn. Ct. App. 1993). In the case before us , there was no finding that Husband had the ability to purge himself of the $23,700 obligation of alimony and attorney fe es. Despite the fact that Husband’s father immediately

paid the required amount and thereby purged Husband of contempt, we find that the trial court’s senten ce of incarceration for Husband for civil contempt was in error. We therefore reverse the finding of the trial court on the issue of contempt.
V. Attorney Fees Wife contends that the Husband’s appeal of the trial court’s decision regarding custody and alimony was frivolous. In view of the fact that we have reversed the finding of contempt, we do not find thi s appeal to be frivolous. However, we do find that Wife is entitled to her attorney’s fe e s incurred on appeal. As this Court said in Sherrod v. Wix , 849 S.W.2d at 785 (Tenn. App. 1992) while ability to pay is certainly a fac

tor to be considered, the purpose of an award of attorney’ s fees in custody or support proceedings is to protect the children’s lega l remedies, not those of the custodial parents. Requirin g parents who pr

ecipitate custod

y or support p

roceedings to u

nderwrite the cost of their claims or the cost if their cl aims are ul timately fou nd to be unwarran

ted is appropriate as a matter of policy. It results that the judgment of the trialcourt’s finding Husband in contempt is reversed and the judgment

of the trial court

is in all other respects affirmed. This cause is remanded to the trial court for a hearing to dete

rmine Wife’s rea

sonable attorney

’s fees incurre

d on appeal. Costs of

this app eal are t axe d to the Hus ban d, f or w hic h ex ecut ion may i ssu e ifnece ssa ry.6 FARMER , J.

CONCUR:

LIL LARD, J.

LEWI S, J.