                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   January 20, 2004 Session

       KAREN LEE HANEY FLETCHER v. JOHN MARC FLETCHER

               A Direct Appeal from the Chancery Court for Madison County
                  No. 56570     The Honorable Joe C. Morris, Chancellor



                   No. W2003-00715-COA-R3-CV - Filed February 11, 2004


       Husband-appellant appeals order of the trial court holding him in civil contempt and
designating punishment and the order of the trial court denying motion to modify alimony order.
The notice of appeal was filed 30 days from the date of the trial court’s order denying the motion to
modify but the filing was approximately one year after the contempt order. On appeal, we dismiss
the appeal of the contempt order as untimely and affirm the order denying modification.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Dismissed in
                         Part, Affirmed in Part and Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY M. KIRBY , J., joined.

Sam J. Watridge, Humboldt, For Appellant, John Marc Fletcher

David W. Camp, Jackson, For Appellee, Karen Lee Haney Fletcher

                                             OPINION

        Appellee Karen Lee Haney Fletcher (“Wife” or “appellee”) and appellant John Marc Fletcher
(“Husband” or “appellant”) were married in Jackson, Tennessee on February 10, 1986. After
approximately thirteen years of marriage, Wife filed for divorce, alleging irreconcilable differences.
By Final Judgment for Divorce dated January 5, 2000, the chancery court granted the parties an
absolute divorce on the grounds cited in Wife’s complaint. The court’s order further incorporated
the parties’ Marital Dissolution Agreement (“MDA”), dated September 17, 1999.

      The parties’ MDA included the following provisions with regard to child support and
alimony:
         4. CUSTODY & CHILD SUPPORT. Husband and Wife shall
have joint legal custody and control of their minor children though
Wife shall have physical custody. Such care, custody, and control
shall continue with respect to each child until the child reaches
majority or sooner becomes emancipated, subject, however, to the
visitation set forth in this Agreement.

        It is further agreed between the parties that the Husband will
pay $1525 per month as child support to the Wife for support of the
children; it is understood and agreed between the parties that said
child support is modifiable under Tennessee law according to
changing circumstances and increases or decreases in Husband’s
income, and said support may be set according to the Tennessee
Uniform Child Support Guidelines. Child Support payments are due
on or before the first of each month. If payments are not made by the
10th of each month a penalty of 10% shall be added. This child
support shall remain an obligation of Husband until each child
reaches 18 years of age or graduates from high school, whichever is
later. Husband shall claim the children as dependents for purposes of
income tax.

        Wife shall be responsible for purchasing and maintaining a
health insurance policy as well as co-pays and prescriptions for the
children. Husband shall provide and/or pay for all of the following
for both children while each is a minor: 1) all dental expenses, 2) all
psychological expenses not covered by insurance, 3) school tuition,
4) all music lessons, 5) all theater and sports camps, 6) assign a
$500,000 permanent or whole life insurance policy to an irrevocable
trust for the children with Wife as the trustee, and 7) all coinsurance
or deductibles. Husband shall be informed and given opportunity for
input on items 3, 4, and 5 before they occur and shall be sent all bills
on these activities.

******************************************************

       5. SUPPORT AND MAINTENANCE OF SPOUSE.
Husband shall pay to Wife as and for her necessary maintenance and
support, and Wife shall accept in full settlement and satisfaction of
her right, claim, and demand for such support, maintenance, and
alimony against Husband, the following amounts: monthly payments
of $2,850 until a total of $342,000 has been paid. Payments are to
begin on the first of the month after execution of this Agreement. All
payments are due and payable on or before the first of each month


                                  -2-
               and if not paid by the 10th a penalty of 10% shall be due. Husband
               shall have the right to prepay this obligation at any time by giving
               Wife notice in writing sixty days beforehand. Prepayment shall be
               determined on a present value basis by using a standard formula
               approved by and customarily used by First Tennessee National Bank.

                       Husband shall immediately assign an existing $300,000 term
               life policy to Wife for the purpose of securing his debt to Wife.
               Husband shall have the option of reducing the policy to reflect the
               existing debt at that time, after consultation with Wife. Wife shall be
               provided all documentation and releases necessary to remain
               informed of the status of this policy.


        On July 13, 2001, Wife filed a Petition for Contempt against Husband, alleging that appellant
was in “willful and intentional” violation of the parties’ MDA for failure to do the following: (1)pay
alimony; (2) maintain an effective and valid life insurance policy; (3) relinquish the Wife’s mother’s
CD to Wife; (4) “maintain payments” on the parties home at 267 Parksburg Road, Jackson,
Tennessee; and (5) make payments toward the parties’ credit card debt. Wife’s petition further
alleged that Husband was $3,431.46 in arrears on his alimony obligations. Husband filed an Answer
and Counter-Petition to Wife’s petition on November 7, 2001. In his Answer, Husband admitted
to the provisions in the MDA, but maintained that they were “impossible for him to make.”
Husband’s Counter-Petition requested the court to modify all “material parts” of the MDA to
“conform to the changed circumstances of the Husband.” Specifically, Husband asked the court to
modify and reduce his child support obligations, eliminate alimony, and credit him “toward any
arrearage for services he has provided which exceed the terms of the agreement.” Husband cited the
following changed circumstances and allegations of fact in support of his request:

                       Respondent alleges that since the tornado in 1999, he has
               experienced financial reversals as some of his property was lost or
               reduced in value; that he has been forced to sell property at
               compromised values and that he has generally experienced great
               financial hardship.

                       Respondent further alleges that the modification to pay
               alimony is based upon the lack of need of the Petitioner and the
               inability of the Respondent to pay.


       On November 26, 2001, Wife filed a “Motion to Order Immediate Payment of Private School
Tuition,” alleging that Husband had failed to maintain payments on the children’s school tuition.




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Wife requested the court to order immediate payment, and further hold Husband in willful contempt
of the court’s Final Judgment incorporating the parties’ MDA.1
         A hearing on Wife’s Petition for Contempt, Husband’s Answer and Counter-Petition, and
Wife’s Answer to Husband’s Counter-Petition, was held on January 8, 2002. By letter dated January
11, 2002, Chancellor Joe C. Morris informed counsel for both parties of his finding of contempt,
stating:

                           In the above cause, the Court is of the opinion that the
                  Defendant is in contempt of Court, but the Court is willing to
                  consider a plan for the Defendant to purge himself. The averment
                  that the Defendant did not have the capacity to contract on September
                  17, 1999, is not valid. He introduced an income tax return that
                  showed his income for 1998 was minus $86,000. Mr. Fletcher now
                  claims his income is $1,000 per month. His life style does not justify
                  either position.

        The court entered an order on Wife’s petition on February 27, 2002, finding Husband in
willful contempt of the court’s January 5, 2000 order. The court denied Husband’s Counter-Petition
for the reasons stated in Chancellor Morris’s January 11, 2002 letter. The court further calculated
the total amount of arrearages due and payable by Husband as $294,592.79. This total included,
among other obligations, $8,387.50 in child support arrearages, $56,530.00 in alimony arrearages,
and $6,072.00 for private school tuition. With regard to its finding of contempt, the court directed:

                  The Respondent is ordered to present a plan to the court to purge
                  himself of the contempt. The respondent is further ordered to keep
                  all payment obligations to the petitioner current pending submission
                  and approval of Respondent’s plan to purge himself.


        On May 22, 2002, Wife filed a “Petition for Enforcement of Order of Contempt and for Writ
of Attachment.” Wife’s petition alleged that Husband had failed to comply with the court’s February
27, 2002 order, specifically noting that Husband owed $9,556.25 child support, and $71,588.00 in
alimony. Wife calculated Husband’s total amount of arrears as $414,869.50. Wife further requested
that Husband be committed to the county jail “until he purges himself from contempt by paying unto
the Court all child support, alimony, school tuition and attorney fees dues or at least a sum to assure
that past amounts on the mortgage payment be made and all payments be made current.”

       Later that day, the chancery court entered an order granting a writ of attachment and further
ordering Husband to the custody of the Madison County Sheriff. The court’s order declared


         1
           W e note that the court did not specifically rule upon this motion. The court did, however, address Husband’s
failure to pay the children’s private school tuition in its ruling upon W ife’s Petition for Contempt and Answer to
Husband’s Counter-Petition and Husband’s Answer and Counter-Petition.

                                                          -4-
Husband in contempt of court for refusal and failure to comply with the obligations set forth in the
parties’ MDA as incorporated by reference into the court’s Final Judgment for Divorce. The court’s
order further directed that Husband would be committed to the Madison County, Tennessee jail until
such time as he purged himself from contempt by paying all “child support, attorney fees, alimony,
marital debt, mortgage payments, the minor children private school tuition and Certificates of
Deposit.” The court calculated the total amount of arrears due and payable to Wife as $414,869.50.


       In June 2002, Husband filed a Chapter 7 Bankruptcy Petition. On August 29, 2002, he filed
a motion to modify the court’s final orders, presumably the orders of January 5, 2000 and February
27, 2002. Husband’s motion sought a reduction of his child support payments and termination of
alimony on the basis that he did not have sufficient assets to satisfy either obligation. Husband
further averred that his “bankruptcy and financial hardship constitutes material changed
circumstances.”

         A hearing on Husband’s motion was held on November 26, 2002. By order entered February
18, 2003, the court granted Husband’s motion to reduce his child support obligations, and directed
him to “pay child support based on his present income of two thousand and five hundred dollars
($2,500.00) per month in the amount of six hundred and forty-nine dollars ($649.00) per month
effective the date the Motion to Reduce Child Support was filed.” The court further determined that
Husband was obligated to pay Wife $342,000.00 in alimony in solido “over a period of time at the
rate of two thousand eight hundred and fifty dollars ($2,850.00) a month,” and held that Wife was
entitled to a judgment in the amount of any arrearage. The court’s order additionally directed
Husband to make “arrangements to pay to the Plaintiff an additional thirty thousand dollars
($30,000.00) in order to maintain herself if possible.” The court’s order finally directed that
Husband “shall make arrangements to take care of these obligations immediately, if at all possible.”


       On March 14, 2003, Husband filed a Notice of Appeal of the chancery court’s February 27,
2002 and May 22, 2002 orders finding Husband in contempt, and the court’s February 18, 2003 order
denying his request for termination of alimony.

       On April 2, 2003, Husband filed an “Intent to File a Statement of the Evidence.” In June
2003, Husband filed a Statement of the Evidence setting forth the following pertinent facts from the
hearing:2

                         Mr. Fletcher testified that he was behind on his payments but
                 did not have the ability to pay.




        2
          Husband fails to identify whether this evidence was presented at the January 8, 2002 or the November 26,
2002 hearing, or both.

                                                       -5-
              He further testified that he was a heavy drinker at the time of
       the agreement and just really though he could make the required
       payments but he was mistaken.

              He testified that his main source of income was from rental
       property which was $1,000.00 from rental property.

              His income tax return for 1998 exhibited in the court which
       reported an income of $85,296.00.

              He testified that he had invested in real property and a
       combination of deals falling through, tornado damage and undesirable
       property had taken its toll and that he had been advised to file
       bankruptcy but had not.

       ******************************************************

               He testified that he had suffered foreclosure of two parcels of
       real property in May and June of 2001 and had his 1997 Cadillac
       repossessed in July 2001.

                He further testified that when a tornado hit Jackson in 1999,
       it destroyed a Laundromat under construction which demolished what
       was there and he was stuck with washers and dryers which were
       delivered.

               He also had court battles which resulted where liens were filed
       on everything he had by a former partner.
               He further testified that he knew his wife thought he had
       assets hidden but he did not and did not have the means to pay as the
       marital dissolution required.

       ******************************************************

       He testified that his child support should be based upon a monthly
       gross income of twenty-five hundred dollars.

               He further testified that the alimony should be modified or
       terminated because his wife had a Master’s Degree and teaching
       certificate and she did not need the alimony.


Husband presents the following issues for review by this Court:


                                        -6-
               Whether the trial court erred in refusing to modify the prior orders of
               the court to provide for termination of Husband’s alimony
               obligations.

               Whether the trial court erred in holding Husband in contempt.


       Since this case was tried by the court without a jury, we review the case de novo upon the
record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App.
P. 13(d).


        To briefly reiterate, the parties’ MDA provided that Husband would pay Wife “monthly
payments of $2,850 until a total of $342,000 has been paid.” Although not explicitly stated in the
MDA, we classify the parties’ agreement as one for payment of alimony in solido. Alimony in
solido is an award of a definite sum of alimony and “may be paid in installments provided the
payments are ordered over a definite period of time and the sum of the alimony to be paid is
ascertainable when awarded.” Waddey v. Waddey, 6 S.W.3d 230, 232 (Tenn. 1999) (citing McKee
v. McKee, 655 S.W.2d 164, 165 (Tenn. Ct. App. 1983)). We find that the parties’ alimony
agreement meets all of the criteria specified, and thus is correctly classified as an agreement for
payment of alimony in solido.

        It is settled law in Tennessee that final awards of alimony in solido are not modifiable. Day
v. Day, 931 S.W.2d 936, 939 (Tenn. Ct. App. 1996) (citing Brewer v. Brewer, 869 S.W.2d 928
(Tenn. Ct. App. 1993)). The parties’ MDA was incorporated as part of the court’s Final Judgment
for Divorce, entered January 5, 2000. This judgment or decree became final thirty days after its
entry. Husband did not file his Counter-Petition seeking modification of the MDA’s alimony
provision until November 7, 2001. We thus find that Husband failed to timely seek modification
of the MDA’s alimony provision. Husband’s first issue is therefore without merit.


       Husband next asks this Court to consider whether the trial court erred in holding appellant

in contempt. The chancery court’s order on Wife’s Petition for Contempt was entered February 27,

2002, and held Husband in civil contempt for failure to comply with the court’s Final Judgment for

Divorce. The court’s order specifically cited appellant’s repeated failure to pay child support and

alimony, and thereby directed Husband to “present a plan to the court to purge himself of the




                                                -7-
contempt” and “keep all payment obligations to the petitioner current pending submission and

approval of Respondents plan to purge himself.”

        As a result of Husband’s continued noncompliance, Wife filed a Petition for Enforcement
of Order of Contempt and for Writ of Attachment. On May 22, 2002, the chancery court entered an
order granting a writ of attachment and committing Husband to the custody of the Madison County,
Tennessee Sheriff. The court’s order, quoted in its entirety, stated:

                     This cause came to be heard before the Honorable Joe C.
              Morris, Chancellor, holding Chancery Court for Madison County,
              Tennessee, and it appeared satisfactorily to the Court that the
              Respondent, John Marc Fletcher, is guilty of Contempt of Court. The
              Respondent should be committed to the Madison County Jail,
              Madison County, Tennessee until he purges himself from contempt
              by paying Petitioner, child support and past due attorney fees in the
              amount of ________________.

                   IT IS THEREFORE ORDERED, ADJUDGED AND
              DECREED

                      1. That the Respondent, John Marc Fletcher, be and is hereby
              declared in contempt of the order of this court and that he has refused
              and failed to pay child support, attorney fees, alimony, marital debt,
              mortgage payments, the minor children private school tuition and
              Certificates of Deposit. The total amount of arrears due and payable
              to the Petitioner by the Respondent is $414,869.50.

                     2. That the Defendant, John Marc Fletcher, be committed to
              Madison County Jail in Madison County, Tennessee, until he purged
              himself from contempt by paying unto the Court all child support,
              attorney fees, alimony, marital debt, mortgage payments, the minor
              children private school tuition, Certificates of Deposit.

                      3. That the Clerk of the Chancery Court shall issue a Capias
              for the attachment of the body of John Marc Fletcher with a bond to
              be set in the amount of $30,000.00.

                      4. That the Respondent be required to pay the court cost of
              this cause, for which that execution issue.




                                               -8-
        On August 29, 2002, Husband filed a Motion to Modify the court’s final orders. Husband’s
motion sought a reduction in his child support obligations and termination of his alimony payments.
By order entered February 18, 2003, the court decreased Husband’s monthly child support
obligations and directed Husband to pay to Wife “a total of three hundred and forty-two thousand
dollars ($342,000.00) in alimony in solido over a period of time at the rate of two thousand eight
hundred and fifty dollars ($2,850.00) a month.” The court further determined that Wife was entitled
to a judgment in the amount of any alimony arrearage. Husband filed a Notice of Appeal on March
14, 2003, said notice providing:

                      Pursuant to Rule 3, Tennessee Rules of Appellate Procedure,
               the Appellant Marc Fletcher as a matter of right appeals to the
               Tennessee Court of Appeals from the Chancery Court of Madison
               County. The appellant appeals from the Orders which found him in
               contempt and the denial of his Motion to Modify the Court’s orders
               to terminate alimony. The Trial Court held that the Appellant is
               obligated to pay the Appellee Three Hundred Forty-Two Dollars
               ($342,000.00) in alimony at Two Thousand Eight Hundred Fifty
               Dollars ($2,850.00) per month and to pay Thirty Thousand Dollars
               ($30,000.00) immediately.

       In Hall v. Hall, 772 S.W.2d 432 (Tenn. Ct. App. 1989), the appellate court noted:

                      A judgment of contempt fixing punishment is a final
               judgment from which an appeal will lie. State v. Green, Tenn. Cr.
               App. 1984, 689 S.W.2d 189.

                       However, a judgment of contempt without the designation of
               punishment is not a final appealable judgment. T.R.A.P. Rule 3(a); 17
               C.J.S. Contempt § 114, p. 301; 4 Am.Jur.2d Appeal and Error § 170,
               p. 683 and authorities cited therein.

Id. at 436. See also Long v. Long, No. 01A01-9406-CV-00270, 1995 WL 33741, at *3 (Tenn. Ct.
App. Jan. 27, 1995) (citing Hall, 772 S.W.2d at 436; Cooper v. Cooper, 471 N.E.2d 525, 526 (Ohio
Ct. App. 1984) (“finding that ‘there is not a final order’ from which to appeal where the trial court
held the mother in contempt of court but withheld the imposition of sanctions”)).

        The chancery court’s February 27, 2002 order finding Husband in contempt did not designate
punishment for appellant’s failure to comply with the court’s prior orders. For this reason, we find
that the February 27, 2002 order is not a final judgment from which an appeal lies, and therefore
necessarily conclude that Husband’s appeal of this order is not properly before this court.

       Husband also challenges the correctness of the chancery court’s May 22, 2002 order finding
appellant in contempt. Unlike the chancery court’s February 27, 2002 order, we find the court’s


                                                -9-
order of May 22, 2002 to be a final and appealable judgment. The chancery court specifically
ordered Husband’s imprisonment in the Madison County, Tennessee jail until such time as he
“purged himself from contempt by paying unto the Court all child support, attorney fees, alimony,
marital debt, mortgage payments, the minor children private school tuition, Certificates of deposit.”
Thus we find that the court’s order included a designation of punishment sufficient to render the
order a final and appealable judgment.

        Husband did not file a notice appealing the trial court’s May 22, 2002 order until May 14,
2003, nearly one year after entry of the final judgment of contempt. Tennessee Rule of Appellate
Procedure 4(a) provides that an appeal as of right to the appellate court “shall be filed with and
received by the clerk of the trial court within 30 days after the date of entry of the judgment appealed
from....” In light of Rule 4(a), we find that Husband failed to file a timely notice of appeal of the
chancery court’s May 22, 2002 order finding him in civil contempt, thus depriving this Court of
jurisdiction for this issue.


        Accordingly, the appeal of the trial court’s order on contempt is dismissed. The trial court’s
order of February 18, 2003 is affirmed and the case is remanded for such further proceedings as may
be necessary. Costs of appeal are assessed against appellant, John Marc Fletcher, and his surety.




                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                 -10-
