                IN THE COURT OF APPEALS OF TENNESSEE




MARY CAMILLE GIVLER,              )   C/A NO. 03A01-9702-CV-00061
                                  )
            Plaintiff-Appellant, )
                                  )
                                  )
                                                   FILED
v.                                )
                                  )                September 30, 1997
                                  )
                                  )                Cecil Crowson, Jr.
DEAN   MARK GIVLER,               )                Appellate C ourt Clerk
                                  )
            Defendant-Appellee.   )
                                  )
                                  )
                                  )   APPEAL AS OF RIGHT FROM THE
                                  )   BLOUNT COUNTY CIRCUIT COURT
                                  )
                                  )
MARY   CAMILLE GIVLER,            )
                                  )
            Plaintiff-Appellant, )
                                  )
                                  )
v.                                )
                                  )
                                  )
                                  )
DEAN   MARK GIVLER and wife,      )
ALMA   GIVLER,                    )
                                  )   HONORABLE W. DALE YOUNG,
            Defendants-Appellees. )   JUDGE




For Appellant                          For Appellees

JANET L. HOGAN                         DEAN M. GIVLER, Pro Se
Hogan & Hogan, P.L.L.C.                Friendsville, Tennessee
Knoxville, Tennessee
                                       ALMA GIVLER, Pro Se
                                       Friendsville, Tennessee




                           OPINION
REVERSED IN PART
AFFIRMED IN PART
REMANDED WITH INSTRUCTIONS                                    Susano, J.

                                  1
            This is a post-divorce case.        Mary Camille Fraley

(“Wife”) seeks a finding that her former husband, Dean Mark

Givler (“Husband”), is in civil contempt of court because of his

alleged failure to obey the trial court’s order to pay her

alimony in futuro of $500 per month.         By way of a counter-

petition, Husband seeks to terminate his alimony obligation; his

application is predicated on an alleged change in the parties’

circumstances.     Following a bench trial, the court below denied

Wife’s motion for contempt; decreed that Husband’s alimony

obligation was “suspended from and after May 23, 1996"; and

dismissed Wife’s “Creditors Bill,” a lawsuit that had been

transferred to the trial court from the Blount County Chancery

Court.1   Wife appealed, arguing that the trial court erred in

denying her motion for contempt and in dismissing her suit in

chancery.    She also contends that the trial court committed error

when it, in effect, terminated Husband’s alimony obligation.                She

seeks attorney’s fees incurred in connection with this appeal.



            Our review is de novo; however, the record of the

proceedings below comes to us accompanied by a presumption that

the trial court’s findings are correct.          Rule 13(d), T.R.A.P.        We

must honor this presumption unless the evidence preponderates

against those findings.       Id.   The trial court’s conclusions of

law are not afforded the same deference.          Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).




      1
       The trial court also denied Husband’s motion styled “Conspiracy to
Defraud the Court” which sought punitive damages of $60,000, and Wife’s
“Motion to Tax Costs and Expenses on [Husband’s] Motion for Conspiracy.”
Neither party has raised any issues with respect to these rulings.

                                      2
                     I.   The Divorce Judgment



          Wife filed a complaint for a bed and board divorce on

June 3, 1989. She subsequently sought, and was granted, an

absolute divorce by decree entered August 16, 1989.     The divorce

was granted pursuant to the parties’ T.C.A. § 36-4-129

stipulation.   At the final hearing, the parties presented proof

regarding an equitable division of their property and debts.

These issues were taken under advisement by the trial court.     It

decided these remaining issues in a memorandum opinion filed

October 4, 1989, which memorandum was subsequently memorialized

by a final decree entered October 27, 1989.      As pertinent here,

the trial court found that Husband’s “benefit of $1,659.93 per

month under his pension-retirement plan with the City of

Naperville, Illinois, [was] a marital asset,” but concluded that

the “equities of [the] case” were such that the pension should be

awarded totally to Husband.



          On appeal to this court, a panel of the Western Section

modified the trial court’s judgment, see Givler v. Givler, C/A

No. 181, 1990 WL 188676 (Court of Appeals, Western Section at

Knoxville, December 3, 1990), by decreeing as follows:



          . . . we award the plaintiff $500 monthly in
          the form of alimony in futuro. This award
          shall continue only as long as defendant is
          alive and the time for payment shall
          correspond to defendant’s monthly receipt of
          his pension check. Payment to plaintiff
          shall be within one week from defendant’s
          receipt of his pension allowance each month.




                                 3
Id. 1990 WL 188676 at *4.2           On remand, the trial court entered an

order on February 4, 1991, setting forth the modification decreed

by this court.3



                     II.    Prior Post-Divorce Proceedings



               Prior to filing the subject motion for civil contempt,

Wife had, on at least two occasions, filed motions seeking to

enforce the trial court’s alimony decree.              One motion was

resolved by the entry of an agreed order on October 7, 1992,

under the terms of which Husband agreed to pay $15,000 to satisfy

all alimony due through September 30, 1992.4               A subsequent motion

was addressed by the entry of an order on July 19, 1993, awarding

Wife a judgment for an alimony arrearage of $2,500.               In neither

of these proceedings did the trial court find Husband in willful

contempt, despite his acknowledgement in both cases that he had

not paid the alimony ordered by the court.



                           III.   The Current Proceedings



               The current litigation began when Wife filed a motion

for civil contempt on February 16, 1996.             In denying Wife’s

motion, the trial court made the following findings:


     2
       We note, in passing, that Husband contends his pension is not subject
to attachment or execution under Illinois law. While this is not clear from
the record, it may explain why the pension was not apportioned between the
parties.
      3
       A subsequent appeal to this court was required to establish the
effective date of our modification. In an opinion filed September 3, 1991, we
held that the modification was effective October 27, 1989, the date of the
trial court’s property division decree. See Givler v. Givler, C/A No. 03A01-
9104-CV-00134, 1991 WL 167155 (Court of Appeals, Eastern Section at Knoxville,
September 3, 1991).
      4
          This payment was apparently made as agreed to.

                                          4
          It is clear from the proof that Defendant has
          utilized his only source of income, his
          retirement pension, for the payment of other
          debts, including his living expenses.
          Despite the fact that the Court finds that
          Mr. Givler took available funds and diverted
          them to the payment of other debt obligations
          instead of complying with the Court-imposed
          obligation to make regular periodic payment
          of alimony, the Court is unable to find that
          Mr. Givler is in willful contempt of the
          Court’s order.



The trial court “suspended” Husband’s alimony obligation, finding

that



          . . . Defendant suffers from heart disease,
          resulting in the total blockage of one artery
          and the partial blockage of two additional
          arteries. The undisputed testimony of record
          is that Defendant’s heart condition is acute
          and that it prohibits him from engaging in
          gainful employment, at this time.

          Defendant’s health condition constitutes a
          substantial and material change in
          circumstances and the Court is of the opinion
          that Defendant’s alimony obligation should be
          suspended from and after May 23, 1996 and
          until further orders of the Court.



Finally, as pertinent here, the court dismissed Wife’s complaint

in chancery seeking the appointment of a receiver of Husband’s

assets, which complaint is based on his alleged efforts to

defraud his creditor, i.e., his former wife.   In so doing, the

trial court stated that Wife had failed to establish that Husband

had “employed any fraudulent conveyances of property or other

devices . . . for the purpose of hindering and delaying

creditors.”




                                5
                        IV.   Wife’s Suit in Chancery



              Wife’s complaint in chancery alleges that Husband and

his present wife, Alma Givler, who was also named as a party

defendant in the chancery complaint, have “devised and entered

into a scheme to defraud or constructively have defrauded” Wife

with respect to Husband’s alimony obligation.             The complaint

relies upon the provisions of T.C.A. § 29-12-101:



              Any creditor, without first having obtained a
              judgment at law, may file his bill in
              chancery for himself, or for himself and
              other creditors, to set aside fraudulent
              conveyances of property, or other devices
              resorted to for the purpose of hindering and
              delaying creditors, and subject the property,
              by sale or otherwise, to the satisfaction of
              the debt.



The complaint seeks the appointment of a receiver and alleges

that Wife is entitled to the remedies set forth in T.C.A. §§ 66-

3-310 and 66-3-312.5


     5
         These Code sections provide as follows:

              Where a conveyance or obligation is fraudulent as to a
              creditor, such creditor, when the claim has matured,
              may, as against any person except a purchaser for fair
              consideration without knowledge of the fraud at the
              time of the purchase, or one who has derived titled
              immediately or mediately from such a purchaser.
              (1) Have the conveyance set aside or obligation
              annulled to the extent necessary to satisfy the
              creditor’s claim; or
              (2) Disregard the conveyance and attach or levy
              execution upon the property conveyed.

T.C.A. § 66-3-310.

              Where a conveyance made or obligation incurred is
              fraudulent as to a creditor whose claim has not
              matured, the creditor may proceed in a court of
              competent jurisdiction against any person against whom
              the creditor could have proceeded had the claim
              matured, and the court may:
              (1) Restrain the defendant from disposing of the
              defendant’s property;
              (2) Appoint a receiver to take charge of the property;
              (3) Set aside the conveyance or annul the obligation;
              or
              (4) Make any order which the circumstances of the case

                                        6
            Our review of the record does not persuade us that the

evidence preponderates against the trial court’s finding that

Wife failed to prove, by a preponderance of the evidence, that

Husband has engaged in “fraudulent conveyances of property, or

other devices resorted to for the purpose of hindering and

delaying creditors,...”      See T.C.A. § 29-12-101.    In deciding

this matter, the trial court obviously believed Husband and his

wife when they testified that they did not place their new

residence in their joint names or establish their bank accounts

in Tennessee and Illinois for the purpose of fraudulently placing

Husband’s assets beyond the reach of execution.        “[O]n an issue

which hinges on witness credibility, [the trial court] will not

be reversed unless, other than the oral testimony of the

witnesses, there is found in the record clear, concrete and

convincing evidence to the contrary.”      Tennessee Valley Kaolin v.

Perry, 526 S.W.2d 488, 490 (Tenn.App. 1974).         We are unable to

say that the transactions -- in and of themselves -- belie the

testimony of Husband and his present wife that the transactions

in question were not fraudulent in nature or not otherwise such

as to trigger the application of T.C.A. § 29-12-101.        Wife’s

issue as to the complaint in chancery is found to be without

merit.



                       V.   Termination of Alimony




            may require.

T.C.A. § 66-3-312.

                                    7
          Wife contends that the trial court erred when it

“suspended” Husband’s alimony obligation effective May 23, 1996,

the date on which he filed his counter-petition.      We agree.



          A “court may decree an increase or decrease of [an]

allowance [of spousal support] only upon a showing of a

substantial and material change of circumstances.”      T.C.A. § 36-

5-101(a)(1).   The requirement of a substantial and material

change of circumstances is consistent with the legal principle

that a court decree is res judicata as to the facts existing at

the time of the earlier decree.       Hicks v. Hicks, 176 S.W.2d 371,

374-75 (Tenn.App. 1943).   In Elliot v. Elliot, 825 S.W.2d 87

(Tenn.App. 1991), we addressed the principles applicable to a

petition to modify an alimony award:



          The party seeking relief on the grounds of
          changed circumstances has the burden of
          proving the changed circumstances justifying
          an increase or decrease in the amount of the
          alimony award. (citation omitted). The
          change in circumstances must be shown to have
          occurred after the entry of the divorce
          decree, and must not have been foreseeable at
          the time the decree was entered into.
          (citation omitted). Changes in circumstances
          are not material if such changes were in the
          contemplation of the parties at the time they
          entered into the Support and Alimony
          Agreement. (citation omitted).



Id. at 90.



          In determining where the preponderance of the evidence

lies on the question of whether Husband’s alimony obligation

should be suspended or terminated, we focus on the parties’



                                  8
circumstances at the time of the divorce and those existing at

the time of the most recent hearing below.



              At the time of the divorce, Husband’s pension was

$1,659.93; by the time of the most recent hearing, it had

increased to $2,139.        Wife was employed in October, 1989; through

no fault of her own, she was unemployed when this matter was

heard on August 13, 1996.         Since the divorce, Husband and his new

wife have moved into a new, very attractive6 house containing

over 2,700 square feet.         In 1995, they built a 1,089 square foot

addition to accommodate Husband’s woodworking business.7                While

Husband’s monthly expense payments total $2,217.39, many of the

items on his list are joint expenses.            The present Mrs. Givler

earns approximately $15,000 gross per year.             In fairness, some of

these expenses -- such as the first mortgage -- are properly

allocated fifty percent as a charge against her income.



              Since the divorce, Husband and his wife have purchased

a $7,000 van and built the previously-mentioned addition to their

house at a cost of $33,000.



              Husband relies, as did the trial court, upon his heart

disease as justification for the “suspension” of his alimony.

The evidence preponderates against such a finding.                 In the first

place, Husband’s basic heart problem is not a change in

circumstances; Husband suffered a heart attack in 1987, prior to



     6
         A photograph of their house was received into evidence.
     7
       Husband was “unable” to give even an estimate of his income from
woodworking. We can only assume there was some net income to justify building
a $33,000 addition to the house to accommodate this business venture.

                                        9
the divorce.        Furthermore, his heart disease does not prevent him

from receiving his pension check or from pursuing his woodworking

business.8       He did testify that one of his arteries was

completely blocked, while two others were partially blocked.

Since there was no showing that Husband was an expert in heart

disease, it is clear that this was hearsay testimony -- hardly

persuasive evidence of the conditions described.                 There was

absolutely no expert testimony that Husband’s heart disease had

worsened since the divorce, and no testimony of any kind that it

was impairing his ability to function as a normal human being.



               Husband also points to the fact that Wife’s daughter

lives with her and helps with the expenses.              He also relies upon

the fact that Wife settled a personal injury claim for a net of

$17,000.       The proceeds of the settlement were used to buy an

automobile9 for Wife.         Her daughter’s payment of $140 per week --

some $600 per month -- was less than the mortgage on Wife’s

residence ($667.69) and was hardly sufficient to defray Wife’s

monthly expenses of some $2,158.              Wife’s unemployment

compensation of $251 per week was not only temporary in nature,

but was also not enough, even when coupled with her daughter’s

payment, to defray her monthly expenses.



               Wife argues that Husband’s obligation to pay her $500

per month is really a part of the division of the parties’

marital property, and thus not subject to modification in any

event.       She relies upon the case of Towner v. Towner, 858 S.W.2d

      8
       The trial court referred to Husband’s woodworking as a “hobby”; but it
is clear from the record that he sells his products.
      9
          It replaced an automobile “totaled” in the accident.

                                         10
888 (Tenn. 1993).   In Towner, the Supreme Court dealt with a

“spousal support” provision in a Property Dissolution Agreement

that contained the following language:



          The spousal support/alimony is specifically
          in consideration of the wife waiving any
          right to the husband’s military retirement
          and therefore shall continue for the lifetime
          of the husband.



Id. at 889.    The Supreme Court in Towner held that the parties’

agreement, “considered in light of all the circumstances, is

essentially a property settlement agreement, rather than an order

of support.”    Id. at 891.



           We believe that the facts of the instant case are

distinguishable from those of Towner.    Here, the subject decree

specifically recites that the payment is “in the form of alimony

in futuro.”    While the decree does refer to Husband’s pension

check, it does so only as a point of reference -- “the time for

payment [of the alimony in futuro] shall correspond to

defendant’s monthly receipt of his pension check.”    In Towner,

the payment to wife was “in consideration of the wife waiving any

right to the husband’s military retirement,” a quid pro quo as it

were.   “[C]onsidered in light of all the circumstances,” see

Towner at 891, we find that the payment before us is, as stated

by the court, “alimony in futuro,” and not a part of the division

of property.    In so holding, we recognize that our award of

alimony in futuro was prompted by our finding that the award of

the entire pension to Husband was not equitable; but this does

not mean that our award is a division of that asset.     A court, in

                                 11
considering alimony, is entitled to weigh “[t]he provisions made

with regard to the marital property as defined in [T.C.A.] § 36-

4-121.”   See T.C.A. § 36-5-101(d)(1)(H).         This is what occurred

in this case.     We hold that the award in this case is periodic

alimony in futuro, modifiable under appropriate circumstances,

and enforceable by invocation of the court’s contempt power if

the failure to pay is willful.10



            While finding that the subject payment is periodic

alimony in futuro and hence subject to modification, we conclude,

in this case, that there has been no showing of a change of

circumstances justifying a change in that payment.            Accordingly,

so much of the trial court’s judgment as suspends Husband’s

alimony obligation as of May 23, 1996, is hereby reversed.



                         VI.   Contempt Petition



            We find that the evidence preponderates against the

trial court’s finding that Husband is not in willful contempt.

The instant case is at least the third time that the trial court

has failed to find Husband in contempt even though Husband’s

monthly pension benefit -- which prompted our award of spousal

support in the first place -- has increased from $1,659.93 per

month to $2,139.     The trial court’s most recent determination of

no willful contempt flies in the face of his finding, which is


     10
       Generally speaking, a payment that is a part of a division of property
is not enforceable by incarceration for contempt. See Article I, Section 18,
Tennessee Constitution. See also Morris v. McLearen, C/A No. 01A01-9007-CV-
00256, 1991 WL 57984 (Court of Appeals, Western Section at Jackson, April 19,
1991); Rogers v. Rogers (Court of Appeals, Western Section at Jackson, July
22, 1981); Mills v. Frey (Court of Appeals, Western Section at Jackson, August
11, 1980); Largent v. Largent (Court of Appeals, Western Section at Jackson,
March 11, 1980).

                                      12
supported by overwhelming evidence, that Husband “took available

funds and diverted them to the payment of other debt obligations

instead of complying with the court-imposed obligation to make

regular periodic payment of alimony.”



            When reduced to its simplest terms, Husband’s real

complaint is with this court’s original award of alimony.        This

can be seen from his comments in the record:



            ...this whole thing was just shoved down our
            throat, and there is no logic behind it.
            There is no logic behind the Court of Appeals
            taking $500 from $1,659.

                             *    *     *

            I didn’t even consider that the appeals court
            would come out with a decision like they did.

                             *    *     *

            I don’t understand their logic or lack of
            logic.



He also argues that he relied upon the trial court’s original

decree and undertook obligations when the first appeal to this

court was pending.    He says these new obligations -- including

his remarriage -- now place him in a position where it is now

impossible for him to comply with the court’s alimony decree.

There are at least three answers to this argument.      First,

Husband relied upon the trial court’s divorce judgment at and to

his peril since, as he knew, the division of property was being

questioned on appeal.    He relied upon a judgment that he knew

full well was not final, and he will not now be heard to

complain.    Second, his voluntary assumption of new obligations

does not excuse his failure to comply with the court-imposed

                                 13
alimony obligation.    See Cannon v. Cannon, 34 Tenn.App. 568, 241

S.W.2d 435 (1951); Johnson v. Johnson, 499 S.W.2d 268, 271

(Tenn.App. 1973); Jones v. Jones, 784 S.W.2d 349, 353 (Tenn.App.

1989); and Bradshaw v. Bradshaw, 23 Tenn.App. 359, 133 S.W.2d

617, 619 (1939).    Finally, despite his protestations to the

contrary, it is obvious to us that he does have the funds from

which the alimony can and, according to law, must be paid.      The

Court of Appeals decreed the alimony obligation because of the

inequitable allocation by the trial court of the $1,659.93

monthly pension payment.    That payment is now $2,139.



            For all of the foregoing reasons, the judgment of the

trial court denying Wife’s motion for civil contempt is hereby

reversed.    We find Husband in civil contempt.   We further find

that he has the ability to pay the court-ordered alimony and

hence the ability to purge himself of his civil contempt.



            This matter is remanded to the trial court for the

entry of an order decreeing the following:

            1.   Denying Husband’s counter-petition to terminate his

alimony obligation.

            2.   Finding Husband in willful civil contempt of court

and ordering that he be incarcerated until he demonstrates a

willingness to pay the alimony decreed by the court.

            3.   Awarding Wife a judgment for alimony arrearage, to

include any previous awards that have not been paid; said

arrearage to also include all alimony due and unpaid up to the

entry of the order on remand.

            4.   Providing that the arrearage is to be paid at the

rate of $250 per month until paid in full.

                                  14
          5.   Providing that Husband’s initial payment of $750

(regular $500 payment plus $250 payment on arrearage) is to be in

Wife’s hands on or before October 22, 1997, and, thereafter in

subsequent months, within one week of the deposit of Husband’s

pension check to his bank account.   The order will direct Husband

to forthwith advise Wife of the day of the month on which the

deposit is normally made.

          6.   Suspending the order of incarceration and providing

that, so long as Husband makes the $750 monthly payment specified

herein, beginning with the payment due October 18, 1997, he will

be deemed purged of his contempt.    If Husband fails to make the

aforesaid $750 monthly payments in a timely fashion, Wife shall

file an affidavit with the trial court setting forth Husband’s

failure to comply with the court’s order.   Upon the filing of a

motion on Wife’s behalf calling her affidavit to the attention of

the court, the court will enter an order requiring Husband to

appear and show cause, if any he has, why the suspension of the

incarceration order should not be revoked and Husband immediately

incarcerated until he demonstrates a willingness to obey the

court’s order.

          7.   Providing that all costs below associated with the

motion for contempt and the counter-petition to terminate alimony

are taxed against Husband.

          8.   Awarding Wife a reasonable amount against Husband

as an allowance on her attorney’s fees and expenses for services

performed on this appeal.

          9.   Providing that the provisions of the order to be

entered on remand dealing with the liquidation of the arrearage

are without prejudice to Wife’s statutory execution rights.


                                15
            Under the circumstances of this case, we deem it

appropriate that the aforesaid order will also provide that this

matter be transferred to another judge of the 5th Judicial

District for any further proceedings that may be necessary.



            In this case, Wife sought the assistance of the court

in securing the payment of Husband’s court-ordered obligation.

See Sherrod v. Wix, 849 S.W.2d 780, 786 n.4 (Tenn.App. 1992).       We

find, by clear and convincing evidence, that Husband has the

necessary funds every month -- a monthly pension benefit of

$2,139 -- to pay Wife the $500 per month alimony in futuro

ordered by the court.    “If the contempt consists in an omission

to perform an act which it is yet in the power of the person to

perform, he may be imprisoned until he performs it.”    T.C.A. §

29-9-104.    Husband’s omission to pay Wife is properly classified

as civil contempt.    “A civil contempt is one where a person

refuses or fails to comply with an order of the court and

punishment is meted out for the benefit of a party litigant.”

Garrett v. Forest Lawn Memorial Gardens, Inc., 588 S.W.2d 309,

315 (Tenn.App. 1979).



            Husband has the financial ability -- and we have given

him the power -- to avoid incarceration.    He has the keys to the

jail in his own pocket.    We can only hope that Husband will avoid

imprisonment by complying with the order to be entered on remand.



            The appellant’s motion to disregard the appellees’

brief is denied.    The appellees’ motion to dismiss this appeal is

also denied.


                                 16
          Except as changed by the terms of this opinion, the

judgment of the trial court is affirmed.   Costs on appeal are

taxed against the appellees, Dean Mark Givler and Alma Givler.



                                    __________________________
                                    Charles D. Susano, Jr., J.


CONCUR:



_________________________
Don T. McMurray, J.



_________________________
William H. Inman, Sr.J.




                               17
