                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                February 15, 2011 Session

           MELODY JENNINGS BOWERS v. DANIEL R. BOWERS

              Direct Appeal from the Circuit Court for Davidson County
                       No. 07D-689      Carol Soloman, Judge


                  No. M2010-00311-COA-R3-CV - Filed April 7, 2011


Alleging Husband’s failure to pay child support and alimony as required, Wife filed petitions
for contempt. The trial court found Husband guilty of seven counts of willful criminal
contempt and entered a judgment against him for unmet obligations. On appeal, Husband
claims the trial court erred in finding him in contempt, in imputing a $1,000 per month
income to Wife, in upholding his work-related childcare obligation, in denying his counter-
petition to modify spousal and child support, and in excluding certain witness testimony. He
also argues that he was denied a hearing regarding Wife’s attorney fees. Because the trial
court failed to make a finding regarding Husband’s ability to pay, we reverse Husband’s criminal
contempt conviction. Additionally, we find the trial court erred in upholding the work-
related childcare award, and we remand for a determination of Husband’s retroactive credit
for amounts paid subsequent to the filing of his petition to modify and for a recalculation of
his future support obligations. However, we find that the trial court did not err in imputing
Mother’s income, in refusing to allow Father’s witness to testify, nor in awarding Wife her
attorney fees without a hearing.


  Tenn. R. App. 3; Appeal as of Right; Judgment of the Circuit Court Reversed in
                      Part and Remanded; Affirmed in Part

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.

Stephen Nunn, Nashville, Tennessee, for the appellant, Daniel R. Bowers

Gregory D. Smith, Nashville, Tennessee, for the appellee, Melody Jennings Bowers
                                                    OPINION

                                   I.   F ACTS & P ROCEDURAL H ISTORY


        Melody Jennings Bowers (“Wife”) and Daniel R. Bowers (“Husband”) divorced in
March 2008 after an approximate thirteen-year marriage. They have two minor children. At
the time of the divorce, Husband was ordered to pay, beginning March 1, $2005 per month
in child support, which included $789 for work-related child care, and $1500 in rehabilitative
alimony “due and payable on the first day of each month . . . for a period of 36 months.”
Husband’s monthly gross income was shown on the child support worksheet as $7,000, and
Wife’s was shown as $2,000.

        In May 2008, Wife filed a contempt petition alleging, among other things, that
Husband was $4,515 in arrears in his child support and/or alimony obligation.1 In January
2009, Wife filed a supplemental contempt petition explaining that after her original petition
was filed, Husband “met some of his outstanding obligations . . . and [therefore Wife] elected
not to aggressively pursue [Husband] for the remaining unmet obligations.” However, she
claimed that Husband’s payments were late in April, May, September, October and
November of 2008, that he paid no alimony or child support in December 2008, and that he
paid no alimony and only one-half of his child support obligation in January 2009. Husband
then filed2 a “Counter-Petition to Modify Custody, Child Support, and Visitation” alleging
his income had decreased while Wife’s had increased, and also arguing that his payment for
work-related child care should be eliminated because Wife was staying home with the
children. In July 2009, Wife filed an amended supplemental contempt petition, alleging that
of the $21,030 he owed in alimony and child support from February to July 2009, Husband
had paid only $9,610. Wife’s amended petition alleged a total arrearage of $18,347.98 since
the time of the parties’ divorce.3

       Following a two-day trial, the trial court entered an order on October 28, 2009, finding
Husband guilty of six counts of willful criminal contempt for “failure to pay alimony and
child support in a timely and complete manner in July (2 counts), August (2 counts) and
September (2 counts) of 2009,” and guilty “of one count of willful criminal contempt . . . for

          1
       Wife’s petition notes that the checks she received failed to specify for which obligation Husband’s
payments were made.
          2
              The document included in the record contains no file stamp, however the parties do not dispute its
filing.
          3
              Wife’s amended petition further claimed that none of the payments was timely made. .

                                                        -2-
his failure to pay his share of the children’s uncovered medical expenses incurred in July
2009.” The trial court sentenced Husband to seventy days incarceration, with sixty-six days
suspended “pending strict compliance . . . of all future alimony and child support
obligations[.]” It further entered a $20,551.55 judgment against Husband for unpaid alimony,
child support, medical and other expenses, it awarded Wife $23,360 for attorney fees and
expenses, and it dismissed Husband’s counter-petition finding no substantial and material
change in circumstances to modify the parenting plan, nor any “legal or equitable reason” to
modify Husband’s alimony or child support obligations.

       Husband filed a motion to alter or amend on November 25, 2009, based on the
exclusion of witness testimony, his alleged inability to timely meet his obligations, and the
award of attorney fees to Wife without a hearing. The trial court denied Husband’s motion,
and Husband timely appealed.

                                  II.   I SSUES P RESENTED

       Husband presents the following issues for review:

1.     Whether the trial court erred in finding Husband in criminal contempt;

2.     Whether the trial court erred in imputing only $1,000 per month in income to Wife;

3.     Whether the trial court erred in upholding the work-related childcare award;

4.     Whether the trial court erred in failing to modify the alimony and child support
       obligations;

5.     Whether the trial court erred in denying Husband a hearing on attorney fees; and

6.     Whether the trial court erred in refusing to allow Father’s witness to testify.

Additionally, Wife presents the following issue:

1.     Whether Wife should be awarded attorney fees on appeal.


        For the following reasons, we reverse Husband’s criminal contempt conviction.
Because we find the trial court erred in upholding the work-related childcare award, we
remand for a determination of Husband’s retroactive credit for amounts paid subsequent to
the filing of his petition to modify and for a recalculation of his future support obligations.

                                              -3-
However, we find that the trial court did not err in imputing Mother’s income, in refusing to
allow Father’s witness to testify, nor in awarding Wife her attorney fees without a hearing.


                                III.   S TANDARD OF R EVIEW


       On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d) (2010); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence
to preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999)). When the trial court makes no specific findings of fact, we review the record to
determine where the preponderance of the evidence lies. Ganzevoort v. Russell, 949 S.W.2d
293, 296 (Tenn. 1997) (citing Kemp v. Thurmond, 521 S.W.2d 806, 808 (Tenn. 1975)). We
review a trial court’s conclusions of law under a de novo standard upon the record with no
presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct.
App. 1989)).

                                       IV. D ISCUSSION

                                        A. Contempt

         On appeal, Husband identifies two bases for reversing the trial court’s finding of
criminal contempt: the trial court’s order contains no finding regarding Husband’s ability to
pay and Husband was manifestly unable to timely meet his obligations. “An act of contempt
is a wilful or intentional act that offends the court and its administration of justice.” Ahern
v. Ahern, 15 S.W.3d 73, 78-79 (Tenn. 2000) (citing Tenn. Code Ann. § 29-9-102; Graham
v. Williamson, 164 S.W. 781, 782 (Tenn. 1914)). Tennessee Code Annotated section 29-9-
102 authorizes courts to inflict punishments for contempts of court for the following:
       (1) The willful misbehavior of any person in the presence of the court, or so
       near thereto as to obstruct the administration of justice.

       (2) The willful misbehavior of any of the officers of said courts, in their
       official transactions.

       (3) The willful disobedience or resistance of any officer of the said courts,


                                              -4-
       party, juror, witness, or any other person, to any lawful writ, process, order,
       rule, decree, or command of said courts.

       (4) Abuse of, or unlawful interference with, the process or proceedings of the
       court.

       (5) Willfully conversing with jurors in relation to the merits of the cause in the
       trial of which they are engaged, or otherwise tampering with them.

       (6) Any other act or omission declared a contempt by law.

“Thus, to find contempt under this statute, a court must find the misbehavior, disobedience,
resistance, or interference to be wilful.” Ahern, 15 S.W.3d at 79. To find a party’s failure
to pay alimony and/or child support contemptuous, “the court first must determine that [the
obligor] had the ability to pay at the time the support was due and then determine that the
failure to pay was wilful.” Id. Ability to pay may not be implied from a finding of
willfulness. See Martin v. Moats, No. M2004-01921-COA-R3-CV, 2006 WL 2527641, at
*2 (Tenn. Ct. App. Aug. 24, 2006). Instead, “willfulness and ability [to pay] are two distinct
findings and [] both must be found in order to hold that a failure to pay [] is contemptuous.”
Id. (citing Ahern, 15 S.W.3d at 79; Cottingham v. Cottingham, 193 S.W.3d 531, 538 (Tenn.
2006)).


      In response to Husband’s argument otherwise, Wife contends that the trial court did
make the requisite finding regarding Husband’s ability to pay, citing the following statements
made at trial:


       The Court: I find him willful.
       [Husband’s counsel]: Before you even get to willfulness, though, if there’s not
       an ability to pay - -
       The Court: He works. He presented witnesses who testified he’s a tennis pro.
       You put them on.
       [Husband’s counsel]: And the amount of money that he makes - -
       The Court: Is enough to pay the bills, his child support and his alimony. . . .


The trial court’s order, however, makes findings regarding wilfulness only, and does not
address Husband’s ability to pay. “It is well settled that a trial court speaks through its
orders.” Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1997); see also In re
Adoption of E.N.R., 42 S.W.3d 26, 31 (Tenn. 2001) (“[T]he court speaks through its order,


                                              -5-
not through the transcript.”). Because the trial court’s order fails to address Husband’s
ability to pay, we find that the trial court did not make the requisite determinations for a
contempt conviction, and therefore we must reverse such conviction. We need not address
Husband’s arguments regarding manifest inability to pay.


                                          B.     Wife’s Income

         As we stated above, at the time of the divorce, Wife’s gross monthly income was set
at $2,000. Husband contends that the trial court, in determining whether a modification of
his child support obligation was warranted, erred in imputing an income of only $1,000 per
month to Wife. Instead, Husband argues that Wife is underemployed, and therefore, that the
trial court should have imputed to her an income of approximately $28,000 to $30,000 per
year based upon her earning potential. Wife contends that the trial court appropriately
utilized her $2,000 per month income in making its determination.

        In dismissing Husband’s counter-petition, the trial court stated only that “there are no
substantial and material changes of circumstances which justify any modifications to the
parenting plan arrangements in this case,4 nor is there any legal or equitable reason to modify
Mr. Bowers’ alimony and/or child support obligations.” The order does not address either
party’s income, and the trial court’s statements at trial offer no insight as to the income
utilized for Wife:

       [Husband’s counsel]: We would like Your Honor to consider in our cross
       petition because of the change in his income which does meet the 15 percent -
       -

       The Court: It’s over $10,000 to meet it. I’ve already figured it out.

       [Husband’s counsel]: The calculation, as I ran, Your Honor, if you impute
       some income to [Wife], it does seem to meet that criteria.

       The Court: I’m not imputing it right now, because he’s not paid her the money
       as a job to do the child care. She has $1,000 most of the time. When she starts
       working - - you know, even with her $1,000 is not half of the 15 percent.

From these statements, we cannot determine whether the trial court set Wife’s income at
$1,000 per month, refusing to impute to her the original $2,000 income, or whether it simply

       4
           Husband does not appeal the trial court’s refusal to modify the parenting plan arrangements.

                                                     -6-
refused to impute additional income beyond the $2,000 amount. Either way, we find the trial
court did not err.

        Just prior to the parties’ divorce, Wife, who holds a bachelor’s degree in early
childhood education, was employed in commercial real estate earning $39,000 per year. Due
to the economy, however, Wife lost her job. Shortly thereafter, Wife was offered a position
working sixty hours per week, earning approximately $30,000 per year. According to Wife,
the hours were inflexible and required third-party childcare. Because Husband was not
meeting his child support obligations, Wife claims she would have “lost money” by taking
the job. Thus, Wife did not accept the position but instead sought employment exclusively
with Metro Nashville Public Schools, where her children are enrolled, while seeking to
renew her teaching license and while preparing to enter graduate school to earn a Master of
Arts teaching English Language Learners. Because Wife was not hired by Metro, in May
2009, she began cleaning houses, earning approximately $1,000 per month.

        “The fairness of a child support award depends on an accurate determination of both
parents’ gross income or ability to support. Thus, the Guidelines set forth the method to be
used by courts in determining the gross income of each parent.” Massey v. Casals, 315
S.W.3d 788, 795 (Tenn. Ct. App. 2009) (citing Tenn. Comp. R. & Regs. 1240-02-04-
.04(3)(a)). Typically, gross income equals a parent’s earning capacity or ability to support.
Id. However, courts may “impute” income not actually earned when a parent is willfully or
voluntarily underemployed “based on the premise that parents may not avoid their financial
responsibility to their children by unreasonably failing to exercise their earning capacity.”
Id. (citing Tenn. Comp. R. & Regs. 1240-02-04-.03(a)2(i)(I)). “‘The determination of
whether a particular parent is willfully and voluntarily . . . underemployed is fact-dependent,
and can only be made after consideration of all the circumstances surrounding that parent’s
past and present employment or business activities.’” Parris v. Parris, No. M2006-02068-
COA-R3-CV, 2007 WL 2713723, at *12 (Tenn. Ct. App. Sep. 18, 2007) (quoting Ralston
v. Ralston, No. 01A01-9804-CV-00222, 1999 WL 562719, at *3 (Tenn. Ct. App. Aug. 3,
1999)). “The Guidelines do not presume that any parent is willfully and/or voluntarily under
or unemployed. The purpose of the determination is to ascertain the reason for the parent’s
occupational choices, and to assess the reasonableness of these choices in light of the
parent’s obligation to support his or her child(ren) and to determine whether such choices
benefit the children.” Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii).


      Although in her current occupation Wife earns substantially less than she did just prior
to the time of the divorce, we cannot say that Wife is willfully and voluntarily
underemployed. Wife testified that during the twenty months since the parties’ divorce,
Husband timely paid his child support and alimony obligations only three times. Based on


                                              -7-
the non-receipt of this money, Wife claims she was unable to contract for childcare, causing
her to lose at least one job opportunity, and essentially forcing her to seek work from home
or with a flexible schedule so that she could provide the childcare herself. The record reveals
that Wife began cleaning houses only after her significant efforts to obtain a position with
Metro Nashville Public Schools failed. Additionally, it shows that after Wife began cleaning
houses, she continued to seek employment with Metro, she completed her CEUs to renew her
teacher’s license, and she was accepted into graduate school. Based on the evidence
presented, we find Wife’s occupational choice reasonable. Accordingly, we find that the trial
court did not err in refusing to impute income beyond $2,000 per month to Wife, nor did it
err if it reduced Wife’s income to $1,000 per month.5

                               C.    Work-Related Childcare Award

        As set forth above, Husband’s $2,005 monthly child support obligation included $789
for work-related childcare. Husband contends that because Wife, herself, rather than a third
party, provided childcare, that he is entitled to a retroactive credit for all child support
payments made, subject to documentation from Wife regarding third-party care. Wife admits
that she cares for the children; however, she argues that she was forced to do so because
Husband’s failure to timely make child support payments left her without the money to hire
a third-party caregiver, which, in turn, limited her employment opportunities. Terminating
his work-related childcare obligation, she argues, would reward Husband for failing to
comply with his child support obligation.

       While we empathize with Wife, we are constrained to follow the law,6 which,
regarding the work-related child care award, provides as follows:

        If either parent or the non-parent caretaker is the provider of childcare services
        to the child for whom support is being determined, the value of those services
        shall not be added to the basic child support obligation when calculating the
        support award.

Tenn. Comp. R. & Regs. 1240-02-04.04(c)(3) (emphasis added). Because Wife is the


        5
         On appeal, Wife does not argue that the trial court should have set her income at less than $2,000.
Coupled with our finding that income beyond $2,000 should not be imputed to Wife, we find it unnecessary
to set Wife’s income at either $1,000 or $2,000 per month, as neither amount warrants reducing Husband’s
child support obligation.
        6
       Administrative rules and regulations have “the force and effect of law in Tennessee.” Swift v.
Campbell, 159 S.W.3d 565, 572 (Tenn. Ct. App. 2004) (citing Kogan v. Tenn. Bd. Of Dentistry, No.
M2003-00291-COA-R3-CV, 2003 WL 23093863, at *5-6 (Tenn. Ct. App. Dec. 30, 2003)).

                                                    -8-
provider of childcare services, we find the trial court erred in upholding the work-related
childcare award. Husband is entitled to a retroactive credit for amounts paid subsequent to
the filing of his petition to modify, subject to any arrearage owed. We remand for such
determination.

                                         D.    Failure to Modify

       Based on his arguments regarding termination of the work-related childcare award and
imputation of Wife’s income, Husband contends that the trial court erred in denying his
petition to reduce both his spousal7 and child support8 obligations.

        Above, we rejected Husband’s argument that income beyond $2,000 per month should
be imputed to Wife. Thus, her income may not provide a substantial and material change in
circumstances to reduce Husband’s spousal support obligation. However, because the trial
court erred in upholding the work-related childcare award, we must remand to the trial court
for a recalculation of his support obligations.

                                      E.      Attorney Fees at Trial


        At trial, Wife was awarded $23,360 for attorney fees and expenses “incurred in the
prosecution of her contempt actions and the defense of [Husband’s] counter petitions[.]”
Before this Court, Husband argues that the award of attorney fees was error, as he was denied
a hearing in which he could “cross examine and [] present evidence on the issue.”


       Pursuant to Tennessee Code Annotated section 36-5-103(c), a trial court may, in its
discretion, award a reasonable attorney fee to a person who is required to return to court to
enforce a spousal or child support order. Additionally, the parties’ MDA, incorporated in the
divorce decree, provides for an award of attorney fees to a party enforcing the agreement.
“The award of attorneys’ fees is within the trial court’s discretion.” Huntley v. Huntley, 61
S.W.3d 329, 341 (Tenn. Ct. App. 2001) (citing Richardson v. Richardson, 969 S.W.2d 931,
936 (Tenn. Ct. App. 1997)). Therefore, unless it “‘affirmatively appears that the trial court’s


        7
        An award of rehabilitative alimony is subject to modification based upon a showing of a substantial
and material change in circumstances. Tenn. Code Ann. § 36-5-121(e)(2).

        8
           A child support order is modifiable based upon a showing of a significant variance, that is, “at least
a fifteen percent (15%) change between the amount of the current support order (not including any deviation
amount) and the amount of the proposed presumptive support order[.]” Tenn. Comp. R. & Regs. 1240-2-4-
.05(2)(c).

                                                      -9-
decision was against logic or reasoning, and caused an injustice or injury to the party
complaining,’” we will not reverse the trial court’s decision on appeal. Id. (quoting Marcus
v. Marcus, 993 S.W.2d 596, 601 (Tenn. 1999)).
       Husband’s motion for a hearing regarding attorney fees reads in its entirety as follows:
       [Husband] herewith moves the Court for a hearing on the award of attorney
       fees in this cause and as grounds for this motion would show that the right to
       a hearing was granted by the Court at the time of trial.


The motion did not state why an award was inappropriate, and more importantly, it failed to
set a date for the requested hearing. In his brief, Husband acknowledges that he never
“formally set” the motion for a hearing, but he claims that his request for a hearing was “de
facto denied by the trial court’s denial of the motion to alter or amend.”


       We reject Husband’s contention that he was denied the opportunity to cross examine
witnesses or to present evidence regarding attorney fees. We note that Husband’s motion
acknowledges the court’s willingness to conduct a hearing, and it is Husband who failed to
take action to set the hearing. Our rules do not require that “relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.” Tenn. R. App. P. 36(a). The award of
attorney fees is affirmed.


                                  F.   Witness Exclusion


        At trial, Husband attempted to call as a witness Deborah Denson, whom he describes
as “a friend of [his] who has specialized expertise in accounting, including experience as a
Chief Financial Officer, and who had specific knowledge of [his] personal accounts.”
However, because Husband’s counsel admittedly sent Ms. Denson a transcript of the opening
statements in the case, the trial court refused to allow her to testify.


        On appeal, Husband argues that exclusion was improper because “the Rule,”
Tennessee Rule of Evidence 615, had not been invoked. However, he maintains that if the
Rule had been invoked exclusion was, nonetheless, unnecessary as Ms. Denson never read
the transcript and her testimony which related only to Husband’s financial situation could not
have been affected by opening statements.




                                             -10-
        Tennessee Rule of Evidence 615 provides in relevant part:
        At the request of a party the court shall order witnesses, including rebuttal
        witnesses, excluded at trial or other adjudicatory hearing. In the court's
        discretion, the requested sequestration may be effective before voir dire, but
        in any event shall be effective before opening statements. The court shall order
        all persons not to disclose by any means to excluded witnesses any live trial
        testimony or exhibits created in the courtroom by a witness.

(emphasis added). The trial court has “wide discretion in determining whether to exclude
a witness suspected of violating the Rule.” State ex rel. Com’r of Dept. of Transp. v.
Williams, 828 S.W.2d 397, 401 (citing State v. Moffett, 729 S.W.2d 679 (Tenn. Crim. App.
1986); Paine, Tennessee Law of Evidence § 615.5 (1990)).

        The parties disagree as to whether the Rule was invoked–Wife claims it was, Husband
claims it was not. The transcript does not state that the Rule was in place when opening
statements were made.9 However, at trial, when Wife’s counsel objected to Ms. Denson
being called as a witness stating that “we had called the rule at the close of the case last
week[,]” Husband’s counsel responded only by claiming ignorance that opening statements
could not be disclosed. Moreover, when the trial court stated that Ms. Denson would “not
be allowed to testify under the rule[,]” and that “She was under the rule. . . . All this is under
the rule[,]” Husband’s counsel responded only by accepting blame for the disclosure error.
Husband made no offer of proof regarding the testimony Ms. Denson would have provided,
and his brief states only that her testimony “would have been useful in elaborating on
[Husband’s] financial situation.”

       Based on the record before us, including the trial court’s finding that Husband lacked
credibility,10 it appears that the Rule was invoked in this case. Ms. Denson’s receipt of
opening statement transcripts violated the Rule. We find, regardless of whether Ms. Denson
read the transcripts or whether her testimony could have been affected by such, that the trial
did not abuse its “wide discretion” in disallowing her testimony.




        9
          At the hearing on Husband’s motion to alter or amend, the trial court stated that “I think there was
a rule called. . . . And it was probably at the beginning before the proceeding started”


        10
            In its order, the trial court stated “The Court further finds that [Husband] was not a credible witness
in this trial and did not tell the truth to the Court while under oath.”

                                                       -11-
                                   G.    Attorney Fees on Appeal

        Finally, we address Wife’s request for appellate attorney fees pursuant to both
Tennessee Code Annotated section 36-5-103 and the parties’ divorce decree.11 “An award
of appellate attorney’s fees is a matter within this Court’s sound discretion.” Chaffin v.
Ellis, 211 S.W.3d 264, 294 (Tenn. Ct. App. 2006) (citing Archer v. Archer, 907 S.W.2d 412,
419 (Tenn. Ct. App. 1995)). When considering a request for attorney fees on appeal, we
consider the requesting party’s ability to pay such fees, his success on appeal, whether he
sought the appeal in good faith, and any other equitable factors relevant in a given case. Id.
(citing Darvarmanesh v. Gharacholou, No. M2004-00262-COA-R3-CV, 2005 WL 1684050,
at *16 (Tenn. Ct. App. July 19, 2005)). Because each party was successful on some issues
in this appeal, we find it equitable to decline to award attorney fees.


                                          IV. CONCLUSION

        For the aforementioned reasons, we reverse Husband’s criminal contempt conviction.
Because we find the trial court erred in upholding the work-related childcare award, we
remand for a determination of Husband’s retroactive credit for amounts paid subsequent to
the filing of his petition to modify and for a recalculation of his future support obligations.
However, we find that the trial court did not err in imputing Mother’s income, in refusing to
allow Father’s witness to testify, nor in awarding Wife her attorney fees without a hearing.
Costs of this appeal are taxed equally to Appellant, Daniel R. Bowers, and his surety, and to
Appellee, Melody Jennings Bowers, for which execution may issue if necessary.




                                                          ALAN E. HIGHERS, P.J., W.S.




        11
          We note that the divorce decree provides for attorney fees “incurred in prosecuting or defending”
an action “to procure enforcement of any of [its] provisions[.]” It does not speak directly to appeals.

                                                   -12-
