                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               November 6, 2013 Session

         PRISCILLA LEE SLAGLE v. LAWRENCE FRED SLAGLE

         Appeal from the Probate & Family Court for Cumberland County
         No. 17140   John R. Officer, Special Judge Sitting By Interchange


             No. E2013-01480-COA-R3-CV-FILED-FEBRUARY 18, 2014


Lawrence Fred Slagle (“Husband”) appeals the Trial Court’s finding that he has the ability
to pay to purge his civil contempt. We find no error in the Trial Court’s determination that
Husband failed to make a prima facie showing that he had an inability to pay the purge
amount, and we affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate & Family Court
                            Affirmed; Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and J OHN W. M CC LARTY, J., joined.

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Lawrence Fred Slagle.

Randal R. Boston and Kevin D. Poore, Crossville, Tennessee, for the appellee, Priscilla Lee
Slagle.




                                         OPINION

                                        Background

               Priscilla Lee Slagle (“Wife”) and Husband are divorced. During the pendency
of the divorce suit in 2009, the Trial Court found Husband to be in civil contempt for failing
to comply with discovery requests and for dissipating marital assets. Husband appealed to
this Court, and in Slagle v. Slagle (“Slagle I”), we affirmed the judgment as to the contempt.1
Slagle v. Slagle, No. E2012-00785-COA-R3-CV, 2011 Tenn. App. LEXIS 281 (Tenn. Ct.
App. April 30, 2012), no appl. perm. appeal filed. In order to provide background with
regard to the issue involved in this appeal, we note that in Slagle I we quoted from the Trial
Court’s final decree stating:

               The Court[] previously found [Husband] to be in willful contempt of
        injunctions contained in with [the] Divorce Complaint in May 2007,
        specifically the transfer of $498,154.81 in marital assets[,] after receiving the
        Summons of Complaint[,] in the previous Order . . . entered on September 22,
        20[09]. An additional $110,000 was proven to have been taken by [Husband]
        at the December 3, 2010 hearing.

               [Husband] was given the opportunity to purge himself of the willful
        contempt by depositing no less than $498,154.81 with the . . . Court . . . on or
        before October 15, 2009 or alternatively to turn himself into the . . . Justice
        Center . . . until such time that he tendered the amount withdrawn.

              As of the . . . final hearing . . ., [Husband] has continued to be in
        contempt of the Court’s September 2009 Order by failing to abide by the
        Court’s Order to tender the funds or turn himself in . . . for incarceration.

Slagle I, 2012 Tenn. App. LEXIS 281, at **17-18 (footnote omitted).

              Husband failed to tender the money or turn himself in on or before October 15,
2009, and instead “fled the court’s jurisdiction to avoid being jailed for contempt . . . .” Id.
at *26. The Trial Court issued a Mittimus on October 16, 2009 for Husband to be jailed
“UNTIL HE IS ABLE TO PURGE HIMSELF IN THE AMOUNT OF $498154.81 OR
UNTIL FURTHER ORDERS OF [THE TRIAL COURT].” Husband was arrested and jailed
on February 28, 2013.

              After Husband was arrested, the Trial Court held a hearing and entered an order
on April 1, 2013 finding and holding, inter alia:




       1
       In Slagle I, we reversed “that part of the judgment barring contact between Husband and the child
and downwardly adjust[ed] the award of alimony to $3,200 per month,” and affirmed the remainder of the
judgment. Slagle I, 2012 Tenn. App. LEXIS 281, at *2.

                                                  -2-
       3. That based upon hearing Mr. Slagle testify in August 2009 and today, the
       Court cannot in good conscious [sic] award any level of credibility to Mr.
       Slagle and in fact awards no credibility to Mr. Slagle’s testimony at all.

       4. Mr. Slagle testified that he had no assets other than a mutual fund and an
       unencumbered condo in Ft. Myers, Florida. Based upon a letter from U.S.
       Bank entered as an exhibit to his testimony dated in [sic] November 8, 2012,
       it was apparent that Mr. Slagle’s current balances total more that [sic]
       $150,000 on deposit with U.S. Bank on the date letter [sic] was produced. The
       letter also indicated that Mr. Slagle has held several types of accounts with
       U.S. Bank including personal and business checking accounts, certificates of
       deposit, loans, investments and business credit cards. The letter further
       indicated Mr. Slagle has had deposit balances in the past totaling $500,000.

       5. Furthermore, the Court finds that Mr. Slagle became very upset when the
       letter was discovered by Counsel for Mrs. Slagle and commented to the Court
       that the letter was a personal record and should not have been provided.

       6. That Lawrence Fred Slagle, Jr. continues to be found in civil contempt of
       this Court’s prior Order and shall remain in custody of the Cumberland County
       Sheriff’s Department until such time that he purges the contempt by paying
       into the clerk of the Court the sum of $498,154.81[.]

              Husband filed a motion to reconsider. The Trial Court held a hearing on
Husband’s motion to reconsider on June 10, 2013 and allowed Husband the opportunity to
present evidence at this hearing. The Trial Court entered its order on June 21, 2013 denying
Husband’s motion to reconsider and incorporating by reference its findings announced from
the bench, which provide, in pertinent part:

              Every time Mr. Slagle has testified, his attitude and credibility have
       disturbed me. The proof has shown in this case that there has been a
       significant amount of money in Mr. Slagle’s possession. The proof has been
       such that I think the plaintiff has shifted the burden so to speak, that Mr. Slagle
       could give some proof, some credible proof as to what’s happened to this
       money. He’s taken the 5th Amendment. He’s said there’s no record, he’s
       dealing with cash transactions of hundreds of thousands of dollars and he’s
       asking us to take his word. And his word have [sic] proven to have very little
       value.




                                               -3-
               The credit card accounts don’t concern me at all. The fact that he’s got
       assets that he could, that he admits to having, that he could use possibly to
       convince this Court to give him some relief. The fact that he refuses to do so,
       you know, I think are very important factors.

Husband appeals to this Court.

                                          Discussion

               Although not stated exactly as such, Husband raises one issue on appeal:
whether the evidence preponderates against the Trial Court’s finding that Husband has the
ability to pay $498,154.81 to purge his contempt. Husband also filed a motion seeking to
have this Court recognize post-judgment facts regarding the alleged fact that Wife executed
upon Husband’s retirement account.

             We first address Husband’s motion to consider post-judgment facts. Rule 14
of the Tennessee Rules of Appellate Procedure provides, in pertinent part:

       Rule 14. Consideration of Post-Judgment Facts in the Appellate Court.
       – (a) Power to Consider Post-Judgment Facts. – The Supreme Court, Court of
       Appeals, or Court of Criminal Appeals on its motion or on motion of a party
       may consider facts concerning the action that occurred after judgment.
       Consideration of such facts lies in the discretion of the appellate court. While
       neither controlling nor fully measuring the court’s discretion, consideration
       generally will extend only to those facts, capable of ready demonstration,
       affecting the positions of the parties or the subject matter of the action such as
       mootness, bankruptcy, divorce, death, other judgments or proceedings, relief
       from the judgment requested or granted in the trial court, and other similar
       matters. . . .

Tenn. R. App. P. 14.

              The alleged post-judgment facts Husband seeks to have this Court recognize
are heavily fact-dependent and have no bearing on whether the Trial Court erred in finding
that Husband failed to prove an inability to pay the purge amount. In fact, if Wife was able
to successfully execute upon an account of Husband’s as Husband claims, and we make no
finding regarding the truth of Husband’s allegation, such a fact would seem to support the
Trial Court’s finding that Husband had assets with which to pay the purge amount. In the
exercise of our discretion, we decline to recognize the alleged post-judgment facts and deny
Husband’s motion.

                                              -4-
             We next consider Husband’s issue regarding whether the evidence
preponderates against the Trial Court’s finding that Husband has the ability to pay
$498,154.81 to purge his contempt. Husband was found to be in civil contempt, and this
finding was affirmed in Slagle I. Slagle, 2012 Tenn. App. LEXIS 281.

             As this Court explained in State ex rel. Murphy v. Franks:

      [C]ivil contempt is utilized “where a person refuses or fails to comply with an
      order of court in a civil case; and punishment is meted at the instance and for
      the benefit of a party litigant.” Sullivan, 137 S.W.2d at 307; see also Pivnick,
      Tenn. Circuit Court Practice § 3:19 (2010 ed). As stated by our Supreme
      Court, “[i]f imprisonment is ordered in a civil contempt case, it is remedial and
      coercive in character, designed to compel the contemnor to comply with the
      court’s order.” Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996). In a civil
      contempt case, the contemnor “carries the keys to the prison in his own pocket.
      . . .” Id. (citations omitted). Persons found to be in civil contempt, may purge
      themselves of contempt by complying with the court’s order. Ahern, 15 S.W.
      3d at 78. Civil contempt, contrary to criminal contempt, only requires that the
      defendant be given notice of the allegation and an opportunity to respond.
      Flowers, 209 S.W.3d at 611. To find civil contempt in a case such as this, the
      petitioner must establish that the defendant has failed to comply with a court
      order. Chappell v. Chappell, 37 Tenn. App. 242, 261 S.W.2d 824, 831 (Tenn.
      1952). Once done, the burden then shifts to the defendant to prove inability
      to pay. Id. If the defendant makes a prima facie case of inability to pay, the
      burden will then shift to the petitioner to show that the respondent has the
      ability to pay. State ex rel. Moore v. Owens, No. 89-170-11, 1990 Tenn. App.
      LEXIS 74, 1990 WL 8624 (Tenn. Ct. App. February 7, 1990)(reversing a
      finding of contempt upon holding that respondent’s testimony of inability to
      pay was unimpeached and uncontradicted by the petitioner); see also Garrett,
      Tenn. Practice Tenn. Divorce, Alimony & Child Custody § 16-4 (2009).

                                           ***

             Findings of civil contempt, on the other hand, are reviewed under an
      abuse of discretion standard. Konvalinka v. Chattanooga-Hamilton County
      Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008). As stated by our Supreme
      Court:

                    An abuse of discretion occurs when a court strays beyond
             the framework of the applicable legal standards or when it fails

                                             -5-
              to properly consider the factors customarily used to guide that
              discretionary decision. State v. Lewis, 235 S.W.3d 136, 141
              (Tenn. 2007). Discretionary decisions must take the applicable
              law and relevant facts into account. Ballard v. Herzke, 924
              S.W.2d 652, 661 (Tenn. 1996). Thus, reviewing courts will set
              aside a discretionary decision only when the court that made the
              decision applied incorrect legal standards, reached an illogical
              conclusion, based its decision on a clearly erroneous assessment
              of the evidence, or employs [sic] reasoning that causes an
              injustice to the complaining party. Mercer v. Vanderbilt Univ.,
              134 S.W.3d 121, 131 (Tenn. 2004); Perry v. Perry, 114 S.W.3d
              465, 467 (Tenn. 2003).

       Id. In reviewing the trial court’s finding of civil contempt, we review its
       factual findings with a presumption of correctness unless the evidence
       preponderates otherwise pursuant to the standard contained in Tennessee Rule
       of Appellate Procedure 13(d). Id. at 357.

State ex rel. Murphy v. Franks, No. W2009-02368-COA-R3-JV, 2010 Tenn. App. LEXIS 307,
at **10-14 (Tenn. Ct. App. April 30, 2010), no appl. perm. appeal filed. “The burden is on
the contemnor to show inability to perform, and where the alleged contemnor has ‘voluntarily
and contumaciously brought on himself disability to obey an order or decree, he cannot avail
himself of a plea of inability to obey as a defense to a charge of contempt.’” Evans v.
Abdullah, No. 01A01-9802-CV-00098, 1999 Tenn. App. LEXIS 42, at *2 (Tenn. Ct. App.
Jan. 20, 1999), Rule 11 appl. perm. appeal denied June 7, 1999 (quoting Bradshaw v.
Bradshaw, 133 S.W.2d 617, 619 (Tenn. App. 1939)).

               Husband does not, and can not, argue in this appeal that the Trial Court erred
in holding him in contempt. The finding of contempt was affirmed in Slagle I, and is the law
of the case. Slagle, 2012 Tenn. App. LEXIS 281. Wife proved that Husband failed to
comply with an order of the Trial Court, and the Trial Court found that Husband had the
ability to pay at the time the contempt was imposed.

              Instead, what Husband is arguing in this appeal is that the Trial Court erred in
finding that Husband continues to have the ability to pay. We note that the Trial Court found
that Husband had the ability to pay at the time the contempt was imposed, but that instead
of paying Husband fled and avoided the jurisdiction of the court for several years. Husband
now claims that he no longer has the money. The Trial Court, however, found that Husband
has provided no “credible proof as to what’s happened to this money.”



                                             -6-
               The Trial Court held not one, but two hearings during which Husband was
allowed to present evidence regarding his alleged inability to pay the purge amount, among
other things. After hearing Husband’s evidence and carefully considering it, the Trial Court
found that it “cannot in good conscious [sic] award any level of credibility to Mr. Slagle and
in fact awards no credibility to Mr. Slagle’s testimony at all.”


              Our Supreme Court has instructed:

       When credibility and weight to be given testimony are involved, considerable
       deference must be afforded to the trial court when the trial judge had the
       opportunity to observe the witnesses’ demeanor and to hear in-court testimony.
       Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997) (quoting
       Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)). Because trial
       courts are able to observe the witnesses, assess their demeanor, and evaluate
       other indicators of credibility, an assessment of credibility will not be
       overturned on appeal absent clear and convincing evidence to the contrary.
       Wells v. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).

Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn.
2011).

                The Trial Court had the opportunity to observe Husband and to hear Husband’s
in-court testimony, and the Trial Court found Husband to be completely not credible. We
give the Trial Court’s finding regarding Husband’s credibility great weight on appeal. We
also find that the evidence certainly is not clear and convincing to the contrary as to the Trial
Court’s assessment of Husband’s total lack of credibility.

              The Trial Court also specifically found:

       4. Mr. Slagle testified that he had no assets other than a mutual fund and an
       unencumbered condo in Ft. Myers, Florida. Based upon a letter from U.S.
       Bank entered as an exhibit to his testimony dated in [sic] November 8, 2012,
       it was apparent that Mr. Slagle’s current balances total more that [sic]
       $150,000 on deposit with U.S. Bank on the date letter [sic] was produced. The
       letter also indicated that Mr. Slagle has held several types of accounts with
       U.S. Bank including personal and business checking accounts, certificates of
       deposit, loans, investments and business credit cards. The letter further
       indicated Mr. Slagle has had deposit balances in the past totaling $500,000.



                                               -7-
       5. Furthermore, the Court finds that Mr. Slagle became very upset when the
       letter was discovered by Counsel for Mrs. Slagle and commented to the Court
       that the letter was a personal record and should not have been provided.

              Husband had the burden of proving his inability to pay the purge amount. The
Trial Court implicitly found that Husband did not carry his burden of making a prima facie
case showing that he had an inability to pay the purge amount. As such, the burden never
shifted to Wife to show Husband’s continuing ability to pay. We find no error in the Trial
Court’s finding that Husband failed to carry his burden of making a prima facie case showing
he had an inability to pay the purge amount, and we, therefore, affirm the Trial Court’s
judgment.

               We note that Wife asks in the conclusion section of her brief for this Court to
award her attorney’s fees “for the continuation of frivolous pleadings.” Wife, however,
failed to properly raise this as an issue in her statement of the issues. As this Court has
stated: “Courts have consistently held that issues must be included in the Statement of Issues
Presented for Review required by Tennessee Rules of Appellate Procedure 27(a)(4). An
issue not included is not properly before the Court of Appeals.” Hawkins v. Hart, 86 S.W.3d
522, 531 (Tenn. Ct. App. 2001). As Wife failed to include the issue of frivolous appeal in
her statement of the issues, this issue has been waived.

                                        Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Lawrence Fred Slagle, and his surety.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




                                             -8-
