# FILED Nov. 25, 19 96 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT JACK SON

BRENDA BAILEY LOYD, ) ) Plaintiff /Appella nt, ) Madison County Chancery No. 41548 ) vs. ) ) WENDELL RAY LOYD, ) Appeal No. 02A01-9504-CH-00084 ) Defendant/Appellee. )

APPEAL FROM THE MADI SON COUNTY CHANCERY COURT

AT JACKSON, TENNESSEE

THE HONORABLE JOE C. MORRI S, CHANCELLOR
For the Plaintiff/Appellant : For the Defendant/Appellee : Mary Jo Middlebrooks Wendell Ra y L oyd , Pro Se Jackson, Tennessee Jackson, Tennessee

REVERSED AND REMANDED

HOLL Y KIRBY L

IL LARD, JUDGE

CONCUR:
W. FRANK CR

AWFORD, P. J., W.S.
AL AN E . HI GHE RS, J
.OPINION

This case involves c ontempt pr

oceedings brou ght ag ainst Wendell Ray L

oyd (“Husba

nd”) by Brenda Bailey

Loyd (“Ex-Wife”) for failure to pay alimony. The trial court f ound that Husband didnothave the pre sent a bilit y t o pay and t here fore coul d not b e inc arce

rate d for cont empt. We
revers e and re

mand for further procee dings. Husband and Ex-Wife were divorced in 1991. In its Fina l Decree, the trial court did not
a ward alim ony to Ex-Wife. I nstead, the court awarded her L oyd’s Telephone , Inc., the telephone sales an d installa

tion busine ss that she and Husband had run, which the court valued at the time at $287,884. It awarded

Husband the marital residence, a car, some shop equipment, and two IRA’s worth $11,301 .96 each. The court also ordered the pa rties to equally divide their fur niture and applianc es and to e ach pay his own att

orney ’s fees
. Ex-Wife appealed

to this Court the division of property and the failure to award her alimony and attorney’sfees. Loyd v. Loyd , 860 S.W.2d 409, 410 (Tenn. App. 1993). She maintained that she lacked the technical experience to succe ssfully run the business. Id. at 412. Ex-Wi fe also alleged that Husband had drained the business of i ts val ue, formed a new telephone sales and installation business, gone in to direc t competit

ion with he

r, stolen customer s, and not co operate d in transferring to her the assets of L oyd’s Telephone , Inc. Id. at 410-11. This Court found in favor of Ex-Wife. Id. at 412-13. The business was awarded to Husband,
as well as the shop equipment and the car. Ex-Wife was awarded the marital re sidence, both of the IRA’s (or their cash equivalent in the eventuality that

Husband had liquidated them), and $99,000,
as an equitable distribution of the marital estate. Husband was ordered to pay the $99,000 awarded to Ex-Wife in monthly installments of $412.50 per month. The pay ments wer

e to beg in on May 1, 1993, and continue for either twenty years or until Ex-Wife’s death, whichever occurred first. Id. at 412. In addition, Ex-Wife was awarded $1,000 per month in alimony , the payments to begin May 1, 1993, and continue until her death or remarriag e. Id. at 413. Subsequently, Husband filed a motion asking the trial court to

su sp en d o r r ed uc e a li mo ny. One of the supporting reasons for the motion was that H

usband’sphy sical pro

blems had

resulted in
a reduced income, adversely aff ecting his ability to pay

alimony. I

n response, Ex-Wife filed a motion for contempt, alleging that Husband had failed to make any of the or dered mo nthly

pay ments, had failed to

surrend er the I RA inhis possession (Ex-Wife already had possession of the other IRA),2

had failed to

surrend er the ma rit al residence, had stripped the marital residence of fixtures and otherwis e vandalized it, had failed to pay r eal estate taxes on the marit al reside nce during the time in which he inhabited it, and had failed to pay a note o wed by

Loyd’s Telepho ne, I

nc., to F irst AmericanBank. E

x-Wife also

file d a motion to dismiss Husband’s petition to reduce or suspend al im on y, arguing that Husband was in contempt and that his mot

ion should

not be heard until he had purged himself of contempt. At the hearing on the parties’ motions, Ex-Wife testified in support of the allegations in her contempt motion. Husband testified that he had not yet re

ceived from Ex-Wife all of the assets of Loyd’s Telephone, Inc., and that the marital fur niture had not yet bee

n equitably divided. He also testified that he ha

d remar ried. Hisnew wife , Kitty

Loy d (“Wife” ), had bought a h ousefor the two of them, mak

in g the down pay

ment out of

her own m

oney . The hous e had be en placed solely in Wife’s name, and Husband testified that this was done “[b]ecause I didn’t want Brenda [Ex-Wife] to get it.” Husband

also testified that he had previously cashed the IRA in his possession in order to pay ac countant’s and attorney ’s fees. Since the divorce, Husband’s new business, Mode rn Telephone Syst

ems, had purchased two vehicles, a van and a new Fo

rd Tauru s. He and

Wife both drove the Ford

Taurus. Husband claimed that his income had declined because he had been having trouble with his ba

ck and knees, tha

t he had been unable

to pay alimony as a result, and that he was willing t o work out

a pay ment plan if the court would a

llow it. After the hearing, the trial court wrote a le tter to the parties’ attorney s. In the letter, the trial judge informed the parties that Husband would have to be brought current on the obligations ordered by the Court of Appea

ls before his motion to reduce alimony would be considered. Several months later, Ex-Wife filed another motion asking the trial court to find Husband in contempt . The motion stated that Husband had still fa iled to mak e any of the required pa

yme nts. Ex-Wife allege d that Husb and had s till not pai d anything towa rds the amount of the IRA that he had cashed, that he hadnot paid any of the de linquent taxes, and that the note on Loyd’s Telephone had notbeen satis fied . Alth ough

Husba nd ha d giv en Ex- Wife p osse ssion of the mari tal r eside nce, ExWife stated that drapes and window shutters had been re moved; bui lt-in appl

iances, light fixtu

res, and built-in c abinets were removed; the central heat a nd air unit had been removed and replac ed with3

an inopera

ble unit t hat could not be repaired; there was interior damag e to the house; and various personal items belonging to Ex-Wife were missing. At the hearing on the

motion for

contempt , Husband

testifie d that in

September of 1993 he had had surgery

on his knees and had been at home recove ring for approximately

eight weeks, during which time he ha

d been a ble to do very little work. Husband c laimed tha t he suff ered fr om arthri tis in both his knees and hands. There was no medical documentation or other

support of Husband’s alleged medical problems admitted as evidence at the hearing . Husband also testified that he was the only salesperson for

his company

and that the pain in his knees, which had continued despite the
su rg er y, made it difficult for him to make service calls. Consequently , his personal income had decreased dramatically, a s had the earnings of his business, Modern Telephone Sy stems. However, when asked on cross-examination why he had made no attempts to pay alimony prior to the onset of his medical problems, Husband said only , “I can’t explain it.” Husband testified that

he had tw o employ

ees, bes ides Wife, to install telephone equipment and handle r

elated w ork. He a

lso testified that he could drive around town, that he could make sales calls, and that the surgery on his knee s had bee n an arthroscopic procedure. Husband state d that Wife owned half of Modern Telephone Systems and that

she earned $250 a week from the c ompany for bookkeeping, driving Husband on out-of-town assig nments, and otherwis e being of general assistance, all while additionally e mployed elsewher

e. Ex-Wife testified that she had seen Husband driving around to wn inthe company va n. She also testified that, though Husband had been limping in the courtroom, she ha d seen him walking into the post office the previous day without a limp. The tria l court fo und Husba

nd in conte

mpt. The c ourt found him in arrears for a

period of ten months for

the total s um of $14,1 25 ($1,00 0 per mont h in alimony

plus $412. 50 per mon

th in pay ments representing the division of marital pr op erty). The

court ordered Husband to pay the
arreara ge by a date c ertain or work out an acceptable pay ment plan with Ex-Wife. If he failed to do
so he would be placed

in the county workhouse until he ha d purged himself of contempt. Husband failed to pay the a

rrearage or off

er any pa yment plan and wa s subsequently incarc erated.4

After having served a little over twomonths in the county workhouse , Husband moved for
a stay of the court’s judg

ment. The

trial cou rt relea sed him

on his own recognizance on April 15, 1994, pending further proceeding s. A hearing ensued on October 4, 1994. At this hearing, Husband presented the expert testimony of his account ant, Re x Baker (“Baker”). Baker had

prepared a compiled financial statement for the first eight months of

1994 for Wendell Loy d Enterpr ises, I nc., d/b/a Modern T ele pho ne Sy stems. Ac cording to Bake r, the bus iness showed a profit of $1,113 fo

r the fir st eight mo nths, but du e to prior ye ars’ loss es, the stockholder equity was at a de

ficit of over $7,000. Baker also presented the c orporation’s tax returns for 1993 and testified that they

revealed that Husband and Wife had been paid a total of $33,024 in salaries during 1993. Husband testifie d that he s till suffe red pain in his knee s and his ba

ck and wa s unable t

o do the phy sical wor

k demande

d by service calls at his business. He claimed that he had undergone a heart catheterization and had

tried to slow down since then to keep his stress levels low. He testified further that he injured his left hand in a table saw accident. Husband of fered no medical records or other evidence t

o substant

iate thes e claims. Husband testified that

he valued his business at $55,000 to $60,000. He stated that he had givenWife 50% of

the company stock in exchang e for a used car worth approximately $2,000. He admitted that Wife drew a s alary while e mployed at two other jobs but explained that both of her other jobs were part-time. Husband stated that, as of the date of the h earing, Wife was working solely for ModernTelephone Systems. He te stified that he had recently brought a competitor, Aaron Gilbertson (“Gilbertson”), into the business. In exchang e for a work van which Husband valued

at about $2,850 and some tools and equipment, Husband gave Gilber t son 33% of the corporation’s stock. Gilberts on’s 33% s hare of the stock came out o f Husb and’s share of stock--Wife retained her 50% share. In addition, the company boug ht Gilbertson a new automobile, but Husband claimed that Gilbertson had agreed to a reduction in salary as a mea ns of paying

for the vehicle. Husband testified that the house he and Wife lived in had been purchased after the Court of Appeals ’ decision hadbeen filed but that Wife had purchased it with her own money . He admitted5

that he had pa

id about $9 00 or $1,0 00 in cash for a new fence

for the h ouse. Hus band also paid approximately $200 in cash for pa int and bought $5,000 worth of carpet on credit. Husband submitted several exhibits indicating his salary and Wife’s salary

during 1993 and the first eight

months of 1994. In addition, he submitted a self-compiled brea kdown of his month

ly living expenses and his total debts as of Octob er 1, 199 4. He subm itted an e xhibit showin g that hi s monthly expenses, joint with Wife, were $2,868.40 per month and that the total debts for Husband and Wife together were $18,896.79. This list did not include the mortgag e on Husband’s house, titled in Wife’s n ame, but t he house pay me nt was incl uded among Husband’s monthly living expenses. Husband t

estified that afte r pay ing thei r bills ea ch month, h

e and Wife

were le ft with ab ou t $ 28 0 s ur pl us fr om wh ic h t o p ay a li mo ny. The re co rd in th is ca us e i nc lu de s t he hi st or y of Husb and’s salary and Wife’s salary

from Modern Telephone. Prior tothis Court’ s previou s decisio n in this ca se, Husba nd consist ently paid himself $615.05 pe

r week. In July , 1993, ap proximatel

y th ree mont hs after this Court e

ntered its previous decision, in which Husband was ordered to begin pa ying a limony to Ex-Wife, H usb and decreased his income f

rom the ne

w busines s from $615.05 per week to $615.05 per month, with the exception of September 1993, the month of Husband’ s arthr oscopic p rocedur e, in which he paid himself $1,230.10. Husband attribu ted the de crease in his salary to his physical problems. He continued receiving $615.05 per month through Fe bruary, 1994, until the trial cou rt ordere d him committed to the workhouse for failure to make the pay ments ordered by

this Court. The trial court released Husband on April 14, 1994. In June, 1994, he received a total of $913.91. Therea fter, he began receiving $298.86 per week fr om his business, nearly twice the sa lary he made

before h i s incarceration. Prior to March, 1993, the new busin ess paid Wife $171.42 per week for bookkeeping a nd assisting Husband, while she also was holding at lea st one ot her par t-t im e jo b. In March 1993, her salary increa sed to $250

per wee k. She wasnot paid

for Christmas week in 1993, during which she appare ntly held sea sonal re

tail emplo yme

nt, but sh e received

a Ch ris tm as b onu s of

$29 2.3 7. In August 1994, Wife’s salary increased to $430 per week.6

The trial court took the matter un d er advisement, made specific findings in a letter dated December

1, 1994, and subsequently, on F eb ruary 3, 199 5, enter

ed an ord er incor porating those finding s: “The Court can

not find th at Mr. L

oyd willfully deple ted the business which was previous ly

awarded to Ms. Loy

d, since there were no restrictions on Mr. Loyd enteri ng into a com

petitive business. A

t the pre sent time, Mr. L oyd does not hav e sufficient funds t o purge himself of contempt, which puts him in the position of owing the ar rearage on the alimony payments, but being

unable to pay them. The paymen ts on the $99,0 00 indebtedness ar e upon a d

ivision of p

roperty which Ms. Loyd insists has no value. An IRA was converted du ring the pendenc y of

this case for which Mr. L

oyd is indebted to Ms. Loy d. The Court was not advised of any conversion of this account in a timely manner, by

mistake or for whatever reason. Mr. L oyd is indebte d to Ms. L

oyd for the u npaid re al estate

taxes. There is a note outs tandingat the First American Bank, but the evidence is not conclusive as to when the debt was incurred, or who is responsible. Mr. L oyd has bee n placed i n willful contempt previously by this Court, and has been punished ac co rd in gl y. Perhaps the parties could agree upon a pay ment schedule by

Mr. Loy d for the IRA, taxes, and the alimony that had a ccrued before Mr. Loy

d’s motion for modification was filed in September, 1993. Since Mr. Loy d is not capable of

purging himself of contempt , the Cour t has reconsidered its decision that it would not consider Mr. Loyd’s motion for modification until he did so. Further, Mr. Loy d is in arrears as per Orde r of F ebru ary 7, 199 4, in t

he am ount o f $1, 412.5 0 [sic ], and this figu re should be considered in any

payment schedule
. Future alimony

from Fe bruary 7, 1994, w ill be con sidered after any payment proposal is presented to the Court if such can be reache d between the parties.” (The February

7, 1994 order makes it clear that the ar rearage re ferred to was $14,125, rather than $1,412.50.) The February 3, 1995 order noted that, during the period after the December

1, 1994 findi ngs of fact, Ex-Wife had renewed a previous settlement offe r to Husband. Husband refused the offer and did no t make an

y c ounterof

fer or p roposal, in contravention of the tri al court ’s direc tions. The trial cou

rt later made its order final pursuant to Tenn. R. Civ. P. 54.02. It is from this orderExWife now a

ppeals. Our review of findings of

fact by the tr

ial court in this cas e is de novo upon the r ecord, with
a presumption of c or rectness unless the evidence prepondera tes otherwise. No presumption of correctness attaches to the tria l court’sholdingsof law. T enn. R. Ap p. P. 13(d); Abney v. Abney , 61 Tenn. App. 531, 541, 456 S.W.2d 364, 369 (1970).7

The law regarding conte

mpt of court fo r failur e to pay alimony is well settled in Tennessee. Tenn. Code Ann. § 29-9-102(3) provides that Tennessee courts may find contempt of court for “[t]he willful disobedience or resistance of any officer of the said courts, party , juror, witness, or any other person, to any lawful wr

it, process, order, rule, decree, or command of

said courts.” A spouse who refuses to pay court-or

dered alimony can be inc arcerated for contempt until he purg es the contempt by paying the arrearage. Loy v. Loy , 32 Tenn. App. 470, 479, 222 S.W.2 d 873, 87 7 (1949). Ge ne ra ll y, however, the spouse cannot be incarce rated for contempt if he

does not have the present ability to pay the alimony
. Bradshaw v. Bradshaw , 23 Tenn. App. 359, 362, 133 S.W.2d 617, 619 (1939). If he is able to perfor m in part, the court may inca rce rate him until he performs to that extent. Mowery v

. Mowery , 50 Tenn. App. 648, 654, 363 S.W.2d 405, 408 (1962). To avoid being held in contempt, the spouse claiming an inability to pay

alimony bearsthe burden of demonstrating that “acting in good faith, and with an honest purpose to comply with the order of the court, he w as unable to do so.” Bradshaw, 23 Tenn. App. at 363-64, 133 S.W.2d at 620. Such a spouse cannot willfully bring about his own inability to pay the alimony and then use that inability to avoid being held in contem pt. Id. at 362-363, 133 S.W.2d at 619-20. For example, a spouse cannot refuse to pay

alimon y w hile he is employed and then, a fter he has lost his job and spent all his money, use his poverty as an excuse for

being unable to pay
. Id. at 362, 133 S.W.2d at 619. In Bradshaw , the Cour t noted: “If he [the husband] can establish that he is actually unable to comply with the decree and that such inability has not been broug ht about purposely as a r

esult of his own intentional conduct, such facts will constitute a perfect defens e to the a

pplicatio n to have him punishe d for con tempt. Furthermore, even after c ommitment he is entitled to be discharge d if he ca

n establis h bona fid

e inabilit y to pay . But whe

n his abilit

y to pay may

be drawn from the evidence and reasonable deductions therefrom, it is not erroneous to decline to discharge him from confinement. Where it appe ars that he once possessed the means of comply ing, but wilfully

impoveris hed himself with the idea of thus defeating the allowance, it is evident that his inabi l ity to pay cannot constitute a defen se. . . . I

t seems to be the general practice , however, not to accept present lack of money a s a defense for failure to p ay past insta

lment of a

limony if there has been any

material income.” Id. at 363, 133 S.W.2d at 619-20 (quoting with approval 17 Am. Jur. § 671, at 510-11). In addition, “inabilit y to pa y by r eason of obligations incurred as a result of r emarriage is no defense to a contempt proceeding for failure to pay alimony to a former wife.” Johnson v. Johnson , 499 S.W.2d 268, 271 (Tenn. App. 1973).8

Husband’s conduct in this case demonstrates a sy stematic determination not to pay any of the alimony ordere d. The record shows that Husband has never made a single pay

ment to Ex-Wife,
even prior to any cla

im of inability to pay . The trial court noted that there were no restrictions on Husband entering into a competitive business, and from that fact concluded that Husband had not willfu lly depleted the original business awarded to Ex-Wife. While Husband’s conduct did not violate specific prohibitions, it clearly e videnc ed his inte

nt to keep Ex-Wife from acquiring any assets of significant

value. T his is further

confirmed by

Husband’ s conduc t with reg ard to the house awarded to Ex-Wife in this Cour

t’s previous deci sion. Husb and fina lly t urned ov er the house to ExWife, but not before stripping it of items such as built-in appliances and cab inet s and othe rwise vandalizing it, demonstrating an intent to diminish the value of the house before giving possession to Ex-Wife. In addition, Husband has consistently put assets in the nam

es of othe r person s or entiti es in order to p lace them out of reach of Ex-Wife. Half of the stock of his new busine ss was given t o Wife in ex change for a used vehicle of minimal value. Another 33% of the stock was given to a new employee, leaving Husband with only 17% of the stock

in his name. The home he shares with Wife is titled in Wife’s name, although Husband includes the monthly house payment among

the joi n t debts list ed to demonstrate his inability to pay . Meanwhile Husband purchased items such as fencin g, paint, and carpe

ting for his new ho me with

Wife. Vehicles utilized by Husband for pe rsonal
as well as business use were purchased by his new competing business, thereby placing them

beyond Ex-Wife’s reach. This course of conduct must be considered as backg round to the evidence of Husband’s alleged inability to pay . Central

to Husban d’s claim

of inabili ty to pay are

his physical difficulties and his decreased income from his new bu siness. Hu sband cla ims that va

rious phy sical pro

blems,
su ch as an arthroscopic surgical proc edure performed on his knees, pain in his back, and a heart catheterization, have diminished his ability to do the phy sical work associated with his business. The record includes no medical documentation or phy sician’stestimony

to support his claim. However,
even i f his claim of physical impediments is deeme d credible, by his own te stimony it does not prevent him from c ontributing substa ntia ll y t o the business and e arning a living , albeit w ith assistanc e from oth

er emplo ye es. Moreove r, the his tory

of income

from the n

ew busine ss to Wife, aswell as Husba nd, must9

be considered. Since shor tly a fter thisCourt’s previous decision ordering Husband to pay alimony to Ex-Wife , the business has almost invariably paid Wife a g reater monthly sa

lary than Husba

nd, altho ugh her work is in a support role, doing bookkeeping and assisting Husband, and she w as also employed elsewhere dur

ing much of the time. This is incongruous at best. Further, under Husband’s direction, the salaries paid to him and to Wife from the business appear to fluctua

te in response to Husban d’s need s. For example, Husband had the business double his salary during the month he hadth e ar th ros cop ic p roc edu re o n hi s kn ees . In addition, Husband d irected the busine ss to signific antly

increa se his sa

lary within two months after the trial court released him from i ncarceration, although he was released bec ause he allegedly could not make payme

nts on hi s
arreara ge to purge

hims elf of contempt. Shortly after that, Husband increased Wife’s salary from $250 per week to $430 per week. Husband testified that this incr ease was “ [t ]o try to offset our outgoing expenses and to keep from having to file bankruptcy.” During this time Hu sband ha s not made a single al im on y p ayment to Ex-Wife. When directed by the

trial court to submit a proposed payme nt schedule, he has refused to do so. As noted in Bradshaw , the burden of pro of is on Husband “to show that, acting in good faith, and with a

n honest pu

rpose to c omply

with the or

der of the court, he was unable to do so. ” Bradshaw , 23 Tenn. App. at 363-64, 133 S.W.2d at 620. From our review of the record, Husband has failed to

carry this burde

n. In deed, it i s clear

from the record tha t Husband has depleted the
v alue of any

assets tur ned over to Ex-Wife, t

itled asse ts within hiscontrol in

the name of his n e w wife or his new business to keep them out of Ex-Wi fe’s reach, failed to attempt any alimony pay ments prior to the onset of h is alleg ed medic al proble

ms, exagg erated

the impac t of his physical difficulties, and manipulated the stream of income from his new business. The record demonstrates that Husband has the ability to perfo rm, at lea st in part, his court

ordere d obliga

tion to make pay

ments toEx-Wife and to purge himself of contempt. Husband has failedto carry

his burden of

pr oo f t ha t, in go od fa it h, he is un ab le to co mp ly. The evidence indicates that any inability

to pay is primarily

a result of Husband’s willful conduct. Under thes e circumst ances, Husband’ s claimed inability to pay cannot be

used as a defense to incarceration for1 In itsFinal Or der on Mot

ion for Con

tempt, the trial cou rt indica ted a will ingnessto consider Husband’s motion for a reduction in alimony . Therefore, the trial court has not y et issued an order on reduction of alimony and the only issue proper ly before this Court involves Husband’ s contemp t for not p aying the a rrear age ow ed Ex-Wife . Accor dingly , we do not

address the issue of reduction in alimony. 10 conte mpt. In the pas t, th is Co urt, q uoti ng Gibson’s Sui ts in Chancer

y , has n oted t he fol lowi ng: “The power to

punish for

contempt is one of the highest preroga tives of a Court of Justice; and, upon its bold and prudent exercise, depend the respect, the dignity, and e fficiency of Courts as arbiters of human rights. The mandates of a Court o f Chancery must in all cases be obeyed, according to the spirit of the de cr ee , p ro mp tl y, faithfully and without question or evasion
. The party, upon w hom the order or command of the Court operates, is not allowed to speculate upon t he Equity of the bill, or the legality or

regularity

of the order, or decree, or of the writ issued thereon; but his simpl e duty

is to obey ; and whe

n he disobe

ys it is a duty

the Court o wes, to itself and to the public, to punish him at once.” Johnson v. Johnson , 499 S.W.2d 268, 271-72 (Tenn. App. 1973). The trial court

shall order a pay

ment plan for the reduction and eventual elimination of the arrearage, which includes $14,125 in past-due alimony a nd division of prop er ty p ayments, $11,301.96 for the liquidated IRA, and any back taxes on the marital residence for which Husband is responsible. Based on the amount of sal ary Husba

nd received prior to this Court’s previous decision, $2,460.20

per month , the plan

should re quire pa

yme nts of at le ast

$300 per month. This payment shall be in

addition to

the $412. 50 per mon

th payment

toward the division of property and the $1,00 0 per mont

h alimony previous ly o

rdered by t his Court. 1 If Husband fails to abide by the payment schedule

ordered by

the tria l court, he should be immediate

ly incarcerated for contempt, unless he pre sents very substantial new e vidence to the
co nt ra ry. Wif e has requested costs and attorney ’s fees for this appeal. We find such an awa r d appropriate and remand the case to the tria l court for determination of an amount. In sum, we find that t

he evide nce pre pondera tes aga inst the trial court’s finding that Husband is unable to purge himself of contempt, and this finding is reve rsed. The case is remanded to the trial court to establish a payment sche dule consistent with this Opinion an d to enfo rce the pay ment schedule by incarc eration for contempt if necessary . The trial court is further directed to determine the appropriate amount of costs and attorney ’s fees to be awarded to Ex-Wife for this appeal.11

The decision of

the trial court is rev ersed, and th e case i s rema nded f or furt her pro ceedin gs consistent with this Opinion. Costs are taxed to Appellee , for which exe cution ma y is sue if
ne ce ss ar y.

HOLLY KIRBY LILLARD, J.
CONCUR:
W. FRAN K CRAWF ORD, P. J., W.S.
ALAN E. HIGHERS, J.