# FILED
December 17, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk 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. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEAL FROM THE MAURY COUN TY COURT

AT COLUMBI

A, TENNESSEE HONORABL E JIM T. HA MILTON, J UDGE
WILL IAM S. FL

EMING 207 West 8th Street P.O. Box 90 Columbia, Tennessee 38402-0090 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT
L. Bruce Pede

n MOORE & PEDEN 29 Public Square P.O. Box 981 Columbia, Tennessee 38402-0981 ATTORNEY FOR DEFENDANT/APPEL LEE



### REVERSED IN P

ART, MODIFIED AND

AFFIRMED IN

PART, AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCURS: BEN H. CANTRELL , JUDGE WILL IAM C. KOCH, JR., JUDGE-2-

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. )



## O P I N I O N

This appeal seeks reviewof a post-divorce decree judgment entered by the Trial Court
on December 6, 1996, findingthe husban d guilty of conte mpt, adjus ting alim

ony and child support, determining the amount of unpaid arrearage

of each, ordering monthly payments of the adjudicated

arrearage a

nd committing the husband to jail upo n failure t o 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 perm ission to appeal to the Supreme Court, and mandate was issued to the Trial Court. The

August 1 , 1997 judg

ment of thi s Court is no w final.
The Aug ust 1, 1997 , opinion of

this Court r

ead in pe rtinent pa rt as foll ows: The record reveals that Brian McCr ay and I rene Klanseck were both b o rn in Detroit Michigan; that they married in 1972 when the

y w ere both

eighteen years old; that they became the parents of five sons and two daughters; that Mr. McCray wor

ked at a General Moto

rs auto pl ant; and that the wife also worked inter mitten tly d

uring th e marria ge in addition to taking care of h ome a nd family. I n 1990 Brian McCray took ajob at the

Saturn pla

nt in Spring

Hill, and the family moved to Te

nnessee . Shortly

therea fter the ir y ounges t child was diagnosed with cancer. He died in 1992. There had beena

fair amount of domestic strife during the twenty-two y

ears of the part ies’ mar riage , includin g some incident s when the police had to be called. In Ma rch of 1993 an explosive dispute between the parties led Mr. McC ray

to leave the marital home, and his wife to file f o r an ex par

te order of protection. On April 6, 1993, Mr. McCray filed his complaint for abso lute divor ce. Ms. McCray answered and-3- counterclaimed, accusing the petitioner of

cruel and inhuman treatment and in a ppropriate marital conduct, and asking the court to grant her a divorc e fr om bed and board. The counterclaim stated:

“Defendant

herein s eeks a divorce from bed and boa

rd and oppos es an abs olute divorce from the bon ds o f m at ri mo ny; however, alterna

tively , in the discretion of the court, is entitled to an absolute divo rc e 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 fr

om bed and board.” Following a hearing on

May 12, 1993 the

Petition for Order of Pr otection and the Complaint for Divorce were consolidated. The wife was granted custody of the childre

n, withreasonable visitation for the husband. He was a lso ordered to pay child support pen dente li te 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. M cCr ay

was living

with his g irlfrie

nd, Kelly McClarnon, who was four and a half months preg na nt with his child, and Ms. McCray was getting ready

to start nursing school at Columbia State Community College. The proof at tri al ind icated that the loss of her you ngest child had devastated Ire

ne McCray

emotionally, and that she had come under the care of D avid A. B urns, M.D. Her attorney introduced into evidence a letter from Dr. Burns that s ta ted that he was tre ating he r for Att ention De

ficit Hy peract ivity Disorder as well as for depression, and that he has prescribed m ed ication for her condition. Dr. Burns further stated: “... M rs. McCra

y .. . also suf

fers fr om a learning disability, and requires e xtra time and effort to progress and master

concep ts, as well as to ad ju st to ch an ge . N ea rl y e very major change in her life has been ac compan ied by prolonged pe riods of decr eased f uncti onin g, lasting up to six (6) m

onths. “It is my fear that finalizing divorce at the sametime she is to start nursing school would s ignific antly

decrease her chance s at bei n g successful in this demanding endeavor, which is very important

to her being able t

o be self supportive, and to the refore be able

t o function as a divorced mother.”
Mrs. McCray

testifie d that she

would be u

nable to start school on Monday

if the court granted her

a divorce on-4- Fr id ay. On direc t she responded to a question from her attorne y a s follows: Q. Now M s. McCray, do you wan t your husband to come home ? A. I want him -- he can s taywith Ke ll y, and w he n I’m

ready to give h

im his divorce, I’ll

come in and see you a

nd sign the papers. I’m

not read y r ight now . Emotiona

lly I cannot ha

ndle it . I nev er said I

wanted h im to come ho me, I

don’t.
After hearing all the ev

idence, the cour

t stated in an order filed December 22, 1995:

This Court is convinced that the granting of an abs olute divo rce would devast a te Ms. McCray emotionally and psy cholog ically

to the pointthat she will not be able to f

unction, p articula

rly in her ef forts to begin a full-time registered nursing curric ulum. Her testimony, her demeanor, her manner isms in open Court, Mr. McCray’ s admissions t o t his effect, her parent’s te st im on y, all compel the conclusion that the fear expressed by her p

hys ician in his letter admitted into evidence is well founded. The court accordingly

dismissed Mr. McCray’s c omplaintfo r a bs ol ut e d iv or ce an d g ra nt ed Ms . M cC ra y a divorce from bed and board. We do not believe that when reconcilement between the parties is no longer possibl e either party is entitle d to exercise a veto over

the question of divorce. As our Supr eme Court has said: “In a divorce action the d esires of the pa rties, particularly

the part y w ith out fault, are given consideration, but such do not control the action of the court.” Abney v. Abney , 433 S.W.2d 847 (Tenn. 1968). How eve r, having thoroughly reviewed the record, br iefs and arguments of counsel, this court is not convinc e d that the trial court er red in re fusing t o gra nt Ms. McCray an absolute divorce under the unusual ci rcumstances i n existence at the time of trial. Moreover, neither Linger nor the statute, Tenn. Code Ann. § 36-4-102(b) , overri des the basic discretion of the trial courtto grant or deny a divorce in cases such as this.-5- Nonetheless, we note that the parties have now lived apart for more t

han three years, a

nd that Tenn. Code Ann. § 36-4-102 (b) sets o

ut a gro und for di vorce a s follows: The circuit, chancery

or ot hersuch court specially empowered to g ra nt divorc es also has the po wer to gr ant ab solute div orces to either party wh ere there has been a final d ecreeof divorce from bed and board, or o f separa te maintenance for more than two (2) ye ars, upon a pet ition being filed by e ither p arty that sets forth the original decree fo r div orce from bed and board, or separa t e ma int enance, and that the parties have not become reconc iled. The

court g ranti ng the abs olutedivorce shall make a final and co m plete adjudication of the support and pro pert y rights of the parties. However, nothing in th is s ubsection shall preclude the divorce forum fr

om gran ting an a

bsolute divorce before the two ( 2) ye ars has expired. (Emphasis added)

- - - - Should Mr. McCray f

ile a new petition, we see no obstacle to prevent

the trial cour

t from ord

ering a n absolute divorce if it sees fit to do so.

II. Child Support The trial court acknowledged that based upon Mr. McCray’smost re cent income statemen t, the guidelines would require child support of $1,478 per month for four children, butit ordered h im to pay $2,000 per month. The cour t justified its deviation fromthe guidelines by noting that Mr. McCray had ear ned mo re in p revio us years by wor king a substantial amount of overtime at the Saturn plant. The court also consider

ed the fa ct that Mr . McCray

had the e conomic benefit of liv ing with M s. McClar non, who w as also employed with Saturn. Mr. McCray

testifie d th at overtime was no longer as availab le as it had been, because the productive capa city of the plant had bee n increa sed by the addit ion of a th

ird shift, and Friday

and Saturday wor

k was no longer compensated at overtime rates. He sta

ted that he was willing to do Sunday overtime work if that was available, but that a neck injury a nd subsequent

disc surgery

left him with a permanent restriction that limits the num ber of hours that he can work in any one da y. Ms. McCray’s br

other, Ken Klanseck, testified to the contrary that over time was still f

reely availab le at Saturn. Mr. Klanseck works on the same shift as Br ia n M cC ra y, but in a different area of the plant . The tria

l court c haract

e riz ed Mr. Klanseck’s te stimony

as “the c

redible testimony

in this record,” but it is notaltogether clear that the opportunities for-6- overtime in Mr. McCra

y’ s area o f the pla

n are the same as in Mr. Klanseck’s area. Further , the appe llee did not ch allen ge Mr. McCray’ s account

of hisinjur

y. We also do not believe it was appropriate for the trial court to take Ms. McClarnon’s income in to accou nt in settin g child s upport. We therefore reverse t

he trial cour

t’s awar d of child support and remand this ca se to e nable the court to b

ring its order into conform it y w ith the guideline s. Any amount in excess of the guidelines that Mr. McCray may have paid since the date of the orde r a ppealed from will b e applie d to his arrea rages . Mr. McCra y has also argu ed that it was error for the tr ial court to a

ward Ms. McCray

support f

or the pa rties’ seventeenyear old son, Micha el M cCray, who ha s now reached his majority, but who was in the c ustody of the Juvenile Court at th

e time of t hese procee dings. Accordin g to Tenn. Code Ann. § 37-1-151 the parentsmay be liable for the expenses incurre d b y the State in maintaining custody of an unruly or delinquent child. Where a prior child support order exists, the state may cla im the payments ord

e red for the support of that child. We th

erefor e find tha t the tria l court did not err, and we a

ffirm its o rder in th is respe ct. III. Alimony Mr. McCray

expresse d a willing

ness to pa y a li mon y “within reason” and suggeste d t hat any alimony terminat e when Ms. McCray completes nur sing school or after 36 months, whichever comes first. The trial court awarde d Ms. McCr ay $930 per month in fu

turo. On a

ppeal, Mr . Mc Cra y argues that the trial court er red i n ordering rehabilitative al im on y, which is of limited duration, and in setting an am ou nt th at is be yon d h is ab il it y to pa y. Our legislature has expres sed a preference for rehabilitative alimo ny over alimony in futuro wheneve r it is possible for the disadvantaged

spouse to make hi m or hers elf economic ally

independent. Tenn. Code Ann. § 36-6-101(d). Ms. McCra y man aged to work during her mar riage, and she intends to earn h

er nursi ng cer

tific ate, w hich, if s he is success ful, will enable he r to be come self -supporting. We thereforeagree that the tri a l court erred in not ordering modifiabl e rehabilitative a lim o ny. Howeve

r in view o f Ms. McCray’s learning di sa bi li ty, an d other un usual cir cumsta nce s whi ch may prolong

the normal period of rehabilitation, w e believe that the alimony should be ordered for a period of ten yearsfrom the date of thedivorce. Futuremodifications may be made upon the presentation of competent proof

of changed circumst ances. The question of future mod ific ations is to remain w ithin the c ontrol of the trial court. In regard to the question

of the appropriate amount of al im on y, Tenn. Cod e An n. § 35-5-101(d) also sets out the relevant factor s for the

court to c onsider in making its-7- determination. For

the purposesof this ca se, the mo st im portan tfactors are the relative ear ning capacity

of the parties; the duration of the m a rriage; the age, phy sical and mental condition of each party ; and the relative fault of each pa rt y. All these factors suggest that a substantial award of alimony is warranted, and we

affirm the amount determined by the trial court. W e 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. Attor ney Fee s The trial court ordered Mr. McCray to pay attorney fees in th e a mo un t o f $ 8, 00 0 o n b eh al f o f M s. Mc Cr ay. Alt hough ta xi ng at to rn ey f ee s a s p ar t o f c os ts is co nt ra ry t o public p ol ic y in mo st ki nd s o f c as es , s uc h fee s m ay b e properl y allow ed in d ivorce cases as part of the alimony awarded. Raskind v. Raskind , 45 Te nn. App. 583, 325 S.W.2d 617 (1959). An award of attorney fees is approp

riate i n cases where the final decree does not provide the obl ige e withfunds out of which counsel may be paid. H

arwell v. Harwell , 612 S.W.2d 182 (Tenn. App. 1980). In the present

ca se, the di vision of ma rital pro perty does not provide the wife with a source of funds from which to pay her a

ttorney. Mr. McCra

y a rgues t hat he lik ewise does nothave the

resourc es to pay

attorne y f ees, because he has no propert y of any value , and his entire net income is being used to pay alimony , child sup

port and a rrear ages. Since at t orney fees are considered an awar d of al im on y, the tri al court should again consider the relevant factors in 36-5-101(d)(1) before making such an award. The first of these f

acto rs is “[ t] he re la ti ve ea rn in g c ap ac it y, obligation s, ne ed s, an d f in an ci al re so ur ce s o f e ac h p ar ty, including income

f rom pension, profit sharing or retirement plans and all other sources.” We believe that

for purposes of

alimony, the support t hat Mr. McCra

y r eceive s from Ms. M cClarnon ma y b e considered

either a s reducing his need or as a fina ncial resourcethat falls in the category of “allothe r sou rces .” We th er efore do not beli eve that the trial court abused its di sc re ti on in aw ar di ng at to rn ey f ee s t o M s. Mc Cr ay.
The foregoing August 1, 1997, opinion of this Court, which disposed of the a ppeal from the Decemb er 22, 19 95, judg ment of the Trial Cour

t became “the law of the ca se ”, Ladd v. Honda Motor Co. , Tenn. App. 1996, 939 S.W.2d 83, and will be dispositive

of some iss ues in the present appeal.-8- The proc eeding s leading

to the pre sent appe al were as follow s:

On June 17, 1996, the defendant-wife filed a “Motion for Adjudication of Cont empt” which alleged that the husband was in arre ars in payment of support pay ments and prayed that the husband “be adjudged in willful contempt and punished for such according to law and tha t defendant have judgment for all additional ar rearage throug

h the date of hearing.”

On June 26, 1996, the husband moved the Court to reduce child s upport be cause one child had reached majority , becau se husband’s incom e had dimi nished and becau se 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 judgmen

t. Upon motion to alter or amend, on December 7, 1996, the Trial Judge e ntered an order a s follows: It

appear s to the Cour

t that t he Plai ntiff is in willful contempt of this Court’s Order an d should be punished ac co rd in gl y. The Court further finds that a history of this ca se should be made a part of this Order to clarify the Court’s rulin g. These

parties came to Maury

County in order for

the Plaintiff to work atSaturn Corporation. There were seven children born of th

is mar riage, one of them died, and at the time of this divorce he aring, there were four minor child at homeand two other

children in college. The

Defendant, Ire

ne Carol McCray , has not wor ked outside the home, and the Plaintiff, Brian D avid McCr ay , left the

marita l home and moved into the ho m e of his lover, who was then pregnant withhis child and has given birth to this child. The Plaintiff filed for divor

ce on Apr

il 6, 1993, a

nd th e Defe ndant answered by asking the

Court to dismiss the Plaintiff’s divorce complaint. The Defend ant, 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 a m ount 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 pay ment on an arrearage . Since the filing of this divorce through Oc tob er of 1996, the Plaint iff has ac cu mu la te d a n a rr ea ra ge of Th ir ty--9- One Th ousand Six Hundred Twenty-One D ollars and Seventy-Seven

C en ts ($31,621.77) in child support and maintenance. He has agreed to pay Four Hundred Eighty-six Dollars ($486.00 ) per mon th to his girl friend for

the support of their newborn child, and the girl friend is employed at Saturn where she earns TwoTh ou sa nd Tw o H un dr ed Th ir tysix Dollars and Seventy-Seve n Cents ($2,236.77) twice each month. He has named oneof the pa rties’ a dult children who lives with him as conting ent beneficiary of a One Hundred Fifty Thousand Dol lars ($ 150,000.00) life insurance policy he was ordered to maintain wi th the Defendant wife as beneficiary

and has excludedthe minor children as contingent beneficiary

of a One Hundred Fifty Thousand Dollars ($150,000.00) life insur ance po licy

he was or

dered to maintain with the Def

e ndant wife as beneficiary and has excluded the minor children as contingent beneficiaries. He received a Ten Tho

usand Dollars ($1 0,000.00) bonus in Ja nu ar y, 1996 and yet paid only $23.81 toward the arrearage, i.e., for January he pa

id a total of $2,953.81 (excluding clerk’s commission) to appl y toarrearage. He claims to have suffered from dep

ression a nd claims t

o be unable to work availab le overtime due to his neck and bac k. These c laims are not suppor

ted by the cre dible evi dence in

this case. H e has done very

little that the Court ordered him to do. Since the divorce he arin g, one of the four minor children has reached majority and is in fa ct l iving with the Plaintiff, and he is entitled to have his child support adjusted ac co rd in gl y. He also a sks for a decrea se in

the maintenance pay ments to the

Defend ant. IT I S, THEREFORE, ORDERED by the Court that the Plaintiff, Brian David McC ray, be found to be in willful contempt of this Cour

t’s Orde r, and tha t he be se ntenced to six (6) months in the Maury County Jail, or until such time as he purges himself of these arrea rages. I T IS FURTHER ORDERED that this se

ntence b e susp en ded provided the Plaintiff does not fail to comply with the further orders o f this Court listed hereafter. IT IS ORD ERED that t

he Plaintif

f’s child support be set at One Thous and Five Hundr ed Eighty D ollars ($1,580.00) per month pay

able dir ectly to the Defendant twice

each mon th along with maintenance for the Defendant in the amount of Eight Hundred Dollars ($800.00) per mont h and a Two HundredTwenty-F

ive Dollar ( $ 225.00) per month payme nt on t he arrearage s, which the Court finds to be Thirty-one Thousand six Hundred Twenty-One Do ll ar s a nd Se ve nt ySeven Cents ($31,621.77) through Octob er , 1996 for a total monthly payment of Two Thousa

nd Six Hundred Five Dol lars ($2,605.00). IT IS FU RTHER ORDE

RED by the Court t

hat in the eve nt th e Plaintiff misses one payment whe n due, upon application of Defe

ndant, a mittimus shall issue for Plaintiff’s incarceration

in the Maury County

Jail for a period of six (6)-10- months or until

he purges himself of his contempt by pay ing all arrearages a

ccruing since the trial of this cause, such sum to be state d 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 appr oved by the

Court, in the amount of F ourt een Thousand Dollars ($14,000.00), such bond and undertaking o f the surety to be void a nd of no effect upon condition that Plaintiff c omply wi th the orders of this Court set forth he rein. Up on failur

e of Plain tiff to ma ke a sing le pay ment, in full when due, D efe ndant may procee d again st th e cash bo nd or the s urety to enfor

ce and c ollect all arrearages a

ccruing since the trial of this case. On appea l, the app ellant-h

usband pr esents f our issue s of which

the first is: I. Whether

the Tr ial Court erred in requiring the appellant to pay child supp ort in an a

mount that w as in exce ss of the Te nnessee child supp ort guid

elines?
This issue requires this Court to conside

r and app ly th

e “law o f the ca se” as declared in the previousopinion of

this Court, to establi sh th e inc ome 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 a pplicabl e guide

lines.

INCOME

The husband admits $4,80 0.00 in come per month. The

wife insi sts that hisincome should be considered the average of recent y ears. However, the husband testified that and the Trial Court found that his income h ad been involuntarily re duced by phy sical 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 g ross income with $3,427.20 net income.

NUMBER OF CHIL

DREN

The prior opi nion of thi s 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.-11-

Thus, under the

circumst ances st ated in sa id 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 reco rd that the

fourth child is no longer in the custody of the State, but has been releas ed into the

custody of the hus band. The

record does not di sclose the date of said rele ase which must be determined on remand. I t also app ears tha

t the husba

nd has be en order

ed to pay $646.00 per month for the support of another child born out of wedlock. The custodia n of said child is not bef ore this Court in this a

ppeal, and therefore the award of suppor t to her by another court is not subje ct to review by this Court. However, it is to be considered in determining the net income of the husband for establishingthe amoun t of child s upport. T

hus, the ne

t income of the husband for the purpose of fixing his liability to his wife for child support is reduc ed from $3,427.20 to $2,941.20, for which the prescribed support for three c hildren is $1,199.00.

The foregoing child support should be effective as of

the date s when the

designa ted fac ts
came into existence. These dates must be established and applied on remand. Fr om the present record, the total liability of the husband appea rs to be $1,199.00 to his wife and $646. 00 to his live-in c ompanion w

hich amou

nts to $1,84 5.00 total

child supp ort.

Husband’s second and third issues are:

II. Whether

the Trial Court erred in finding appellant in wil lful contempt of court when he did not have the abilit y to meet his su

pport obli gations ? III. Whether

the Trial Court erred

in ordering the appellant to pay a limony of eight hundred ($800.00) dollars per month to the appelle e when th e appell ant did

not have the ability to pay

the amount of alimony awa rded? The third issue must be examined before reaching the second issue.

In our prior

opinion we affirmed an

award o f alimony

to the wif

e of $930 .00 per mo nth for a period of ten y ears. 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 revea l any substantial-12-

change of circ umstance s affecting the obligat ion to pay

alimony sin ce the l ast he aring. Therefore, we think th

e $930.00 award isthe law of

the case and the award should remain at that level until circumstances dictate a change
.

ABIL ITY TO PAY

Husband admits g

ross inco me of $4,8 00.00 per month. He

also admit s that he r esides withthe mothe

r of the c hild born out of wed

lock who i s employ

ed in the s ame industry as the husband. T.C.A. § 36-5-101(a)(2)(B) provides that where a person r eceivin g alimon

y in futuro lives with a thir

d person, there is a

presumpt

ion that the

third per so n is co ntributing to the support of the recipient

of the al im ony. Although the statute doe s not expressly apply to the circumstances of the pres ent case, it is persuasive that the living arrangements of the husband should be considered in respect to the amount of

his income

he need s for his p ersonal

expenses.

The alimony

of $930.0 0 and chil d support o f $1,845. 00 set out h erein ag gregates $2,775.00. The $325. 00 arre arage pay ment incr eases hu sband’s t

ota l monthl y lia

bility 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 e xtent allowed by the guide lines, so that the husba nd cannot effec tively

claim that he has only $3,427.00 income to pay total alim ony, supp ort an d arrea rage of $3,100.00 . This record does not establish the exact amount of his net income after taxes, nor is the rec ord compl ete reg arding annual bo nuses. Th

e rece ipt of ann

ual bonus s h ould be examined on remand. In

any event, should it be f

ound that $ 4,800 is the corr ect month ly 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, a

nd who hasa substan

tial incom

e of her own. I t is difficul

t for us to
see how the husband can claim a hardship when he is paying c

hild support for a child with whom he lives in an amount more than half of w hat h e pay s for the three c hildren li ving with

their-13-

mother. This court does not consider that a r evi sion of the husba nd’s $ 325.0 0 arrea rage 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 awa rd of child support to her to $1,199.00. The parties agree that this cause must be remanded for a new c alculation of the arrearag e because the arrear age was calculated

by the trial court before we issued our prior opinion reducin g the am

ount of mon

thly support. We also held that any over payments the husband ha

d made in the meantime should be applied to the arrearage
.

CONTE MPT

The trial court found the husband t o be in will ful conte mpt and se

ntenced him to six months in jail, or

until such

time as he

purge d himself o f the com bined to tal of $ 31,621.77 of arrearagesin child support and alimony. The cour t suspended the sentence conditioned on the husband’ s complian

ce with th e court’ s adjuste d child sup port and a

limony pay ments.

Tenn. Code An n. § 29- 9-102, et seq. provides for the powers of the courts re garding contempt . Black v. Blount , 938 S.W.2d 394 (Tenn. 1996). Our Supreme Court has described this essen tial powe r of the c ourts as f

ollows: Contempts may be either criminal or ci vil in nature. Civil contempt oc cur s when a p erson re fuses or fails to comply with a court

order and a contem pt action is broug ht to enforceprivate rights. Robinson v. Air Draulics Engineering Co. , 214 Tenn. 30, 37, 377 S .W .2d 908 , 91 1 (1 964 ). If imprisonmentis ord er ed in a ci vil conte mpt case , it is remedial and coercive in character , desig ned to compel the contemnor

to comply

withthe cour

t’s orde r. Complia

nce will result in immedi ate release from prison. Therefore , it has often been sai d that in a

civil con tempt cas e, the co nte mno r “carr ies the ke ys t o his priso n in his own pocket ...” State ex rel. Anderson

v. Daughe rty , 137 Tenn. 125, 1 27, 19 1 S.W. 974 (1917) (interna

l citation s and quota

tions omitte d); see also State v. Turner , 914 S.W.2d 951, 955 (Tenn. Crim. App. 1995).-14- Criminal contempts, on the other hand, are int e nded to preserve thepower a

nd vindica

te the dig nity and autho

rity of the law, and the court as an organ of society. Daughert

y , 137 Tenn. at

127, 191 S.W. at 974; Gunn v. So uth ern Bel l Tel. & Tel. Co ., 201 Tenn. 38, 41-42, 296 S.W.2d 843, 844- 45 (1956). Ther efore, sanctions for criminal contempt are gener ally both punitive and unconditional in nature. Id
. While criminal co ntempt may arise in t he cours e of priv ate civillitigation, such proceedings, “in a very true sen se raise an issue between the p ubl ic and the accused.” Daughert y , 191 S.W. at 97 4 (internal citations and quotations omitted). In the trial of

a criminal contempt case, therefore, guilt of the accused must be established by proof be yond a reason able doubts. Robinson , 377 S.W.2d at 912. Id . at 398.
We are not c ertain w

hat to ca ll th e lo wer cou rt’ s co nt emp t o rde r. It has aspe cts of bot h civiland criminal con tempt. I t a ppears to be more civil, however, because it appears to be designed to induce the husband to perform some act or acts for the be nefit of the wife. Assuming that we are correct about that, an e ssential element of civil contempt is the ability to perf orm the act ordered by t

h e court. State ex rel. Wright v. Upchurch , 194 Tenn. 657, 254 S.W.2d 748 (1953); Gossett v . Gossett, 241 S.W.2d 934 (Te nn. A pp. 1951). In this case, that act is the payment of the entire arrearag e of $31,621.77. There is no finding in the record that the husband has that ability. In a

ddit ion, since bot h p ar ti es ag re e t ha t t he am ou nt of th e a rr ea ra ge s, if

an y, must be re -calcu lated in light of the adjustments made in our prior opinion, it would be i mpossib le at this point to decide what it would take for the husband to purge himself of contempt . So, the se

ntence c annot sta

nd as civi l contemp t.

If the contempt

is crimina

l, we are also of the opinion t

hat the se ntence m ust be reversed. For criminal contempt, guilt must be pr oved beyond a reaso nable dou bt. Robinson v. Air Draulics Engin eering Co ., 377 S.W.2d 908 (Tenn. 1964). The general power of a court of record to punish f

or conte mpt is limite d to ten da

ys i n 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.-15- We already

have held that the amount of the arrearag e, if any, must be re -calculated. Wi thouta record of whether there is a n arrearage in child support or a limony, or bo th, it i s impossible

to decide whether the six month pena

lty f or violating child

support or

ders app lies to the husband. Therefore, w e reverse the sentence for contempt for any past violations of the court’s orders. A determ inati on of any future

violations must be made in any event a nd the parties s hould hav e a fre sh start.
The appe llant-hus band’s f

ourth and final issu e is: IV. Whether

the Tr ial Court erred in determining the amount of suppor

t arrea rage when there wa s no evidence offered to the court that would enab le it to calculate the amount of support arrearage ?
At the hearing, husband admitted that he was order ed to pay $23,924.32 support of which he claims that he paid $15,748.72 leaving an unspecified unpaid bala nce of arrearage to be a

dded to a previou sly

asc ertained but unspecified amount of previously adjudged arrearage. Upon remand, the total amount of support ordered, the totalamount pa id and the total arr earag e should be acc urately asc ertained and made the judgment of the Court, taking into accou nt th e adjustmen

ts made on

appeal b y th

is court.

H usband also claims credit for $325.00 per month clerk’s fee ma de unnecessary

by an agreement

of the parties to dispense with the Clerk’s services. However , the am ount 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 a rrearage.

The Octo ber 16, 1 996, judgment of the Trial Cour

t is modifie d as follo ws:

1. As of

October 16, 1996, t

he liability o f appell ant is based upon a net income of $4,800 per month. This record does not satisfactorily esta blish the effective dates of the number of childre n from time

to time. Up on remand, the Tri al Court w ill hear f urth er ev idence and-16-

adjudicate the effective dates of liability , that is, the date on which Michael beg an to live with his father and

the date of birth of the child of another mother. T

he Trial Court will t

hen compu

te 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 hereaf ter by proof of sufficie nt chang e in circumstance s.

3. The judgment of contempt is vacated.

4. On remand, the Trial Court will determine whether to allow legal e xpenses of

this appeal, and how much.

As modified, the Octob er 16, 19 96, judg ment is af firmed. C osts of thisappeal are taxed agains tthe appellant and his surety . The cause is remanded to the Trial Court for furthe r proceedings in conformity with this opinion.



### REVERSED IN P

ART, MODIFIED AND

AFFIRMED IN

PART, AND REMANDED.

____________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

____________________________ BEN H. CANTRELL , JUDGE

____________________________ WILL IAM C. KOCH, JR., JUDGE-17-

# FILED January 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

BRIAN DAVID McCRAY, ) ) Plaintiff/Appell

ant. ) Maury Chancery

) No. 93-191 VS. ) ) Appeal No. IRENE CAROL KLANSECK McCRAY, ) 01A01-9704-CH-00170 ) Defendant/Appellee. )



## O R D E R

The appellee h as filed a respect ful petition to rehea

r which has been duly considered. The mathemati c al error in quoting of the record and other matters mentioned in the petit

ion are insufficie

nt to alter the decis

ion of this Court. The petition to rehe

ar is respectfully

denied. ENTER ____________

____

__________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

__________________________________ BEN H. CANTRELL, JUDGE

__________________________________ WILLIAM C. KOCH, JR., JUDGE