# FILED

February 25, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON

JOHN DONALD BALL, JR. ) ) Plaintiff/Responde

nt/Appellant, ) Hardin General Sessions No. 3360

) v. ) ) MISSY LYNN BALL, ) Appeal No. 02A01-9709-GS-00239 ) Defendant/Petitioner/Appellee. )

APPEAL FROM THE GENERAL SESSIONS COURT

AT SAVANNAH, TENNESSEE

THE HONORABLE MAX SEATON, JUDGE

For the Plaintiff/Respondent/Appellant : For the Defendant/Petitioner/Appellee : Daniel L. Smith Ron E. Harmon Savannah, Tennessee Savannah, Tennessee

AFFIRMED

HOLLY KIRBY LILL

ARD, J.

CONCURS: W. FRANK CRAWFORD, P. J., W.S. ALAN E. HIGHERS, J

.OPINION

This is a post-divorce action in which the wife sought an order of contempt and judgment for an alimony arrearage. The husband was unemployed, alleged he was unable to pay the arrearage

an d sough t an immediate reduction in alimony. The trial court held the husband in contempt and entered a judgment of $10,000 in favor of the wife. The trial court refused to consider the husband’s moti on for a reduction in alimony until he purged himself of his contempt by paying the al imon y arrearage. Husband appeals. We affirm. John Donald Ball, Jr. (“

Husband”) and Mis sy Lynn Ball (“Wife”) were divorced by decree filed October

20, 1995 in the General Sessions Court at Savannah, Tennessee. This decree provided, inter alia , that Husband would pay Wife alimony of $750 per month “until [Wi fe] atta ins the age of 62, dies, remarr

ies, or lives with

a third party as stated in Tennessee Code Annotated Section 36- 5-101(a)(3) (Supp. 1994).” At the time of

the original divorce proceedings, Husband worked in the aerospace industry for Lockheed on a gover nment contract and was earning close to $118,000 per year. After the federal government

terminated that project, Husband retired from Lockheed and obtained a job

with Thiokol that paid $75,000 a year. At thetime of the divorce hearing, therefore, Husband was earning $75,000 per year in salary and was receiving $3302 per month in retirement benefits from

Lockheed. By October 1995, when the divorce decree was entered, Husband had lost his job with Thiokol and was unemployed. At that point, Husband’s only income was his Lockheed retirement benefits. In the divorce decree, Wife was awarded the net proceeds fr om the sale of

the parties’ residence located in Hardin County, Tennessee, one-half of Husband’s vested retiremen t benefits from Lockheed

Corporation, a 1993 Cadillac, her do ll collection, and various household items as the parties agreed. Husban

d was awarded r

eal estate located in Camden County, Georgia, one-half of his vested retirement benefits from Lockheed Corporation, $10,000 from the part ies’ Qualified Deferred Compensation 401k plan in compensation for his interest in the pa rties’ Hardin County, Tennessee residence, a 1992 GMC pickup truck, a boat, and various household items. The balance of the funds from the 401k plan were divided equally between the parties, as were the funds in the parties’ income/growth fun d, checking, and

credit union acc

ounts. The parties’ com

mon stock in Parker and Parsley Petroleu m Compa ny was also divided equally. The trial court awarded each party one-half of the marital debt. At the time of the proceedings below, Husband was fifty-eight years old. He had sent over2

500 resumes to potent ial employers throughout the United States and the world, but remained unemployed. Husband had not pa id alimony for some time. His only source of income was one-half of the Lockheed retirement benefits, $1594.31 per month. Wife filed the present petition for contempt for failure to p ay alimony on September 27, 1996. Husband responded with an answer and counter-petition for modification or termination of the alimony payments because of his continued unemployment. A h earing was held on Wife’s petition for contempt and Husband’s counter-petition for a reduction in alimony. At the hearing, Husband explained why h e had not earlier sought a reduction in alimony. He testified that at the time of the entry of the divorce decre e, he had just rec

ently lost his

job and was optimistic that he would quickly find another one. He stated, I knew that I would not be able to make the alimony payments and at that time . . . it didn’t seem like I h ad given enough cha nce to find a job. A

nd so I opted to continue looking for a job rather than come back into court and ask f or any reli ef when I really hadn’t given it a chance. Hindsight says I made a mistake there. After the hearing, the trial court found Husband in contempt and entered a judgment of $10,000 in alimony arrearage in favor of Wife. The trial court found that Husband’s income had decreased since the marriage, but found further that Husband’s financial condition “was not such as to warrant an immediate reduction in the alimony.” The trial court then stated that, “upon [Husband] bringing all past due alimony payments curren

t, he shall be allow

ed to file a mo

tio n to reduce alimony payments and the Co urt will entertain said mot

ion and reduce hi

s monthly payments to

Five Hundred ($500.00) per month.” From this order, Husband now appeals. On appeal, Husband argues that the trial court erred in holding him in contempt for failure to pay alimony because he does not have the current ability to

make the payments

. He asserts that the trial court should have reduced or terminated the alimony payments in view of the material change in Husband’s financial circumstances. We review the trial

court’s decision

in this case de novo , with a presumption of correctness in the court’s findings of fact. Tenn. R. App. P. 13(d). The presumption of correctness also attaches to the contempt finding in this case. See Johnson v. Johnson , 499 S.W.2d 268, 271 (Tenn. App. 1973).3

Husband argues that the trial court erred in holding him in contempt for failure to pay alimony because, due to his continued unemployment, he does not have the abil ity to pay the alimony. Wife notes that Husband was unemployed when the original decree was entered, and that he neve rtheless entere

d into the divorce d

ecree without c

ontesting the alimon

y payments. It is undisputed that Husband was r epresented by counsel at that time. The trial court found that the contempt allegations were true and that Husband was delinquent in paying his alimony obligation. We examine firs

t whether the evid

ence supports the

trial court’s fin

ding of contempt. A contempt proceeding is not a summary proceeding, but merely a supplemental process by which a court endeavors to enforce its judgment . . . . It is a civil, not a c riminal, contempt proce eding. It is not even necessary to aver in the petition seeking to enforce the decreeby a

contempt procee

ding that the defe

ndant be able to

pay the amount due. Moreover, a failure to comply with such a decre e places the defendant pr ima facie in contempt of

court and puts

upon him the burden of proving his inability to make the payment as direc

ted. This, becaus

e in the original de

cree the courthas necessarily found a present ability to pay. Chappell v. Chappell

, 261 S.W.2d 824, 831, 37 Tenn. App. 242 (1952) (citations omitted). Although a spouse may be h eld in contem pt for failure to pay alimony, he cannot be incarcerated

for contempt if he does not have the present ability to pay such alimony. See Bradshaw v. Bradshaw , 23 Tenn. App. 359, 133 S.W.2d617, 619 (1939). It is well settled that “a failure to comply with

such a decree place

s the defendant p

rima facie in con

tempt of court and

puts upon him the burden of proving his inability to make the payments as directed.” Chappell , 261 S.W.2d at 831. To avoid be ing held in

contempt, the party claiming aninability to pay alim ony must prove that after a good faith effort to pay alimony, he is unable to do so. See Bradshaw , 23 Tenn. App. at 363-64, 133 S.W. 2d at 620; Leona rd v. Leonard , 207 Tenn. 609, 341 S.W.2d 740, 743 (1960). Husband does not dis pute that he is behind in his alimony payments. Wife’s contempt petition, therefore, est

ablishes a prima

facie case of contempt. We must therefore determine whether Husba nd met his burden of ma king a sufficient

showing of his inabi

lity to pay the alim

on y obligation of $750 a month. Husband maintains that he has carried h

is burden. He testified that at the time of the origina

l divorce procee

dings, he was working for Lockheed on a government contract and earning a salary of close to $118,000 per year. The federal government terminated that progr am and Husband retired

from his employment

withLockheed. Husband later acquired a position with4

Thiokol at the same site, e arning $75,000 pe

r year. This

job also involved a government contract. The go vernment and Thiokol eliminated this position in June 1995, after the divorce heari ng, bu t before the trial court signed the final decree. At the hearing of this matter, Husband was unemployed at the age of fif ty-eight. In his testimony, he described his efforts at finding employment. After los ing his job with Thiokol, Husband took part in an empl o yme nt assistance program set up by Thiokol and the federal government. Through this pro gr am, Husband distributed 500 resumes to potential employers throughoutthe world, with no su ccess. Husband also maintained c ontact with local e

mployers, with

no success. He l e ft his resume with the Tennessee state employment agency, as well as the Mississippi state employment agency office. Husband expressed his willingness to accept positions withless title and less salary, also with no success. Husband had supplemented his

income to some extent with odd jobs and painting work. Clearly Husband had actively sought employment. Husband also provided an affidavit of asse ts and expenses.

At the time of the proceedings below, his only income was the monthly retiremen

t benefits from Lo

ckheed and odd jo

bs. Half of the retirement benefits and medical insurance payments are paid directly to Wife from the retirement account, leaving Husb a nd a monthly income of $1,594.31 after payment of the health insurance premiums. This income does not enable Husband to pay a monthly alimony obligation of $750. In the parties’ divorce, however, Husband was awarded one-half of the funds from sev

eral accounts, including a 401k

account, a growth fund account, a checking accou

nt, and a credit un

ion account. Husband was also awarded one-half of the parties’ stock. These assets were not listed on Husband’s affidavit in the proceeding

s below. The rec

ord reflects H

usband’s r

eceipt of these assets in the divorce decree, and does not indicate that he no longer possesses these fu nds. As stated above, Husband has the burden of showing his inability to pay the a limony at issue. See Leonard , 341 S.W.2d at 743. Husband fa iled to carry his

burden of proof that he was unable to pay the arrearage. Consequently, we affirm the trial court’s finding of contempt. Husband also challenges the trial court’s refus al to im mediately termina te or significantl

y reduce alimony. Heasserts that the loss of his job and inability to obtain subsequent employment

are substanti al and mat erial changes of circumstances th

at justify an immedia

te decrease in h

is alimony payments. Husband also argues that Wife no longer has a compelling need for alimony.5

Wife responds that Husband is not entitled to a r eduction i n alimony because of the trial court’s finding of contempt. She argues that Husband has shown no change of circumstances since the original award,

since he was unemployed in October of 1995 when the trial court signed the final decree of divorce. A trial court may, in

its discretion, re

fuse to consider a

request for rel

ief by a party in contempt. “It is a general rule that a party who is in contempt will not be heard by the court, when he wishes to make a motion or ask a favor. . . . His first duty is to purge his contempt. . . .” Hoyle

v. Wilson , 746 S.W.2d 665, 673 (Tenn. 1988) (quoting Bradshaw v. Bradshaw , 23 Tenn. App. 359, 364, 133 S.W.2d 617, 620 ( 1939) (citation om itted)); see also Gossett

v. Gossett , 34 Tenn. App. 654, 657-58, 241 S.W.2 d 934, 936 ( 1951). “A court may properly refuse to hear any application of a party who is guilty of willful contempt of court.” Abney v. Ab ney , 456 S.W. 2d 364, 367 (Tenn. App. 1970). Husband argues that the trial court abused its discretion in denying him relief

from his alimony payments. In Bradshaw v. Bradshaw , 133 S .W.2d 617, 620 (Tenn. App. 1939), the appellate court affirmed

the trial court’s refusal to modify alimony after the husband was found to be in contempt. The husband had been ordered to pay $11 per week in alimony. At the time of the decree, he was earning $32.80 per week. This income

dwindled to $19.52 p

er week and eve

ntually he was laid off, leaving him with only $15 per we ek in unemployment b enefits. The cou

rt in Bradshaw stated, It may be conceded

that he was not at a

ll times able

to pay the whole of

the weekly allowance. In that case he sho ul d have applied to the court for a reduction in the amount. The order was su bject to be modified at any time, and doubtless would have been. Instead of doing so, he absolutely disregarded the order of the court, and made no attempt to pay anything. Id. at 619. In this case

, Husband explain

ed that he did not ea

rli erseek a reduction in alimony because he believed he wo

uldfind work soon and thought he should spend more time searching for employment

before asking the court

for relief. Under these circumstances, we cannot find that the trial court abused its di

s creti on in requiring Husband to purge his contempt before considering a reduction in alimony.6

The decision of the t

rial court is affirmed. Costs are assessed against the Appellant, for which execution may issue, if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRANK CRAWFORD , P. J., W.S.

ALAN E. HIGHERS, J.