                            IN THE COURT OF APPEALS OF TENNESSEE
                                WESTERN SECTION AT NASHVILLE

  SHELLEY SUE STEVENSON,            ) From the Davidson County Circuit Court
                                    ) at Nashville, Tennessee
               Plaintiff/Appellee,  )
                                    ) Honorable Muriel J. Robinson, Judge
   VS.                              )
                                    ) Davidson Circuit No. 93D-3651
   MICHAEL KINGSTON STEVENSON, ) Appeal No. 01A01-9701-CV-00032
                                    )
               Defendant/Appellant. ) REVERSED IN PART, AFFIRMED IN PART
                                    ) AND REMANDED
                                    )
                                    ) Louise R. Fontecchio
                                    ) Nashville, Tennessee
 FILED                              ) Attorney for Appellant
                                    )
                                    ) Mike W. Binkley
  January 28, 1998                  ) Nashville, Tennessee
                                    ) Attorney for Appellee
 Cecil W. Crowson
Appellate Court Clerk
                                         MEMORANDUM OPINION1


  FARMER, J.


           Shelley Sue Stevenson (Wife) and Michael Kingston Stevenson (Husband) were divorced

  by final decree entered on November 18, 1994. Wife was awarded custody of the parties’ two minor

  children, alimony in futuro and child support. Husband was also ordered to pay the uncovered

  medical expenses of the Wife. Husband appealed to this court and we remanded the case to further

  develop the basis of the trial court’s award of child support with regard to the child support

  guidelines. During the pendency of the appeal, the trial court found Husband in civil contempt for

  failure to pay alimony. Husband subsequently filed a petition to change custody and a motion to

  modify alimony and Wife filed a second petition for contempt against Husband. The trial court

  denied Husband’s petitions to change custody and to reduce alimony, but did find Husband in civil

  contempt a second time for continued nonpayment of alimony. Pursuant to remand from this Court,

  the trial court determined Husband’s earning capacity at $62,000 annually and established his

  obligation for child support at $800 per month and his obligation of alimony in futuro at $700 a

  month. On appeal, Husband challenges each of the findings of the trial court, including the finding

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  Rule 10 ( Court of A ppeals). Memorandum Opinion. -- (b) The C ourt, with the co ncurrence of all judges participating
  in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion
  would have no p recedenti al value. W hen a case is decided by memorandum opinion it shall be designated
  “MEMORANDUM OPIN ION,” sh all not be pu blished, and shall not be cite d or relied o n for any reaso n in a subsequent
  unrelated case.
of contempt and the award of medical expenses. Wife requests her attorney fees on appeal. We

reverse the trial court on the issue of contempt, but affirm its decision on all other issues and remand

for determination of Wife’s attorney fees.

        The facts of this case are complicated, made further complex by the prior appeal to this court.

This court has expounded upon the facts of this case in Stevenson v. Stevenson, No. 01A01-9506-

CV-00230, 1995 WL 681179 (Tenn. App. Nov. 17, 1995) and for the sake of judicial economy will

only further relate such facts as are relevant to this second appeal.

       At the original divorce hearing, the proof established that Husband worked in the family

business, which involved the management of several properties. He testified that he resides rent free

with the family and is provided transportation and $200 a week for maintaining the various family

properties. It is not disputed that Husband’s family makes his child support payments and paid his

legal and expert fees in this matter. However, throughout both trials and both appeals, Husband has

refused to pay his other obligations. As a result, the trial court held Husband in contempt on August

31, 1995 for failure to pay alimony, a $7,700 arrearage, and failure to pay past due insurance

premiums ($342) for Wife. The trial court sentenced Husband to jail for civil contempt, but allowed

him to purge himself by payment of the current month’s alimony and the past due insurance

premiums, i.e., $1,042, because the arrearage was subject to change on appeal. In that first appeal,

we affirmed the trial court’s calculation of Husband’s arrearage of alimony.

        In May 1996, Wife filed a second petition for contempt alleging that Husband had refused

to pay any of his prior alimony obligation ($7,700), and had refused to pay his current alimony

obligation ($6,300). The trial court set a hearing for all pending matters for June 24, 1996. The

Husband, through offer of proof, put on evidence of several experts regarding his earning capacity.

Husband alleged that his earning capacity could not support the trial court’s awards of alimony and

child support. Husband contended that the proof established his earning capacity at no more than

$25,000.

       After hearing all the evidence, the trial court held that Husband’s current circumstances were

exactly the same as they were at the final hearing of divorce and as they were at the August 31, 1995

contempt hearing. In setting child support pursuant to the remand from the first appeal, the trial

court found Husband’s earning capacity to be $62,000. The trial court expressly found that Husband

was not a credible witness, that he remained under-employed, that he was in full control of his ability

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to earn income and that he had funds available to him from other sources.



                                      I. Change of Custody

       Our review of the factual findings of the trial court in a child custody case are de novo with

a presumption of correctness, unless the preponderance of the evidence requires otherwise. Rule

13(d) T.R.A.P.; Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). The law regarding

modification of custody is well-established that there must be a material change of circumstances

in the time period since the initial award of custody in order to warrant a change of custody.

Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). The trial judge was well aware

of this standard and we do not find the evidence preponderates against her finding with regard to

custody.



                                  II. Modification of Alimony

       Our review of the trial court’s decision regarding whether to modify alimony is also de novo

with a presumption of correctness, unless the preponderance of the evidence requires otherwise.

Jones v. Jones, 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989). In similar fashion to our analysis for

modification of custody, our legislature has decreed that a modification of alimony also requires “a

substantial and material change of circumstances”. Tenn. Code Ann. § 36-5-101(a)(1) (1996 & Supp.

1997). The party seeking the change has the burden of proving the material change of circumstances.

Elliot v. Elliot, 825 S.W.2d 87, 90 (Tenn. Ct. App. 1991).

Furthermore, the “[c]hanges in circumstances are not material if such changes were contemplated

by the parties at the time they entered into the alimony and support agreement.” Seal v. Seal, 802

S.W.2d 617, 620 (Tenn. Ct. App. 1990). That is, the “change in circumstances must have occurred

since the original award.” Brewer v. Brewer, 869 S.W.2d 928, 935 (Tenn. Ct. App. 1993).

       The trial court, in the case before us, specifically found that Husband’s circumstances were

essentially unchanged even from the date of the original divorce decree, some twenty months later.

The Husband remains willfully underemployed and we find no evidence in the record which

indicates a material change of circumstances sufficient to find the trial court in error. Without a

change of circumstances, Husband is simply reasserting the arguments presented in the original

hearing which have been fully litigated. Therefore, we find the Husband’s issue without merit and

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affirm the decision of the trial court.



                                          III. Child Support

        The applicable statute regarding modification of child support is Tenn. Code Ann. § 36-5-

101(a)(1), which reads in pertinent part:

                In cases involving child support, upon application of either party, the court
                shall decree an increase or decrease of such allowance when there is found
                to be a significant variance, as defined in the child support guidelines
                established by subsection (e), between the guidelines and the amount of
                support currently ordered unless the variance has resulted from a previously
                court-ordered deviation from the guidelines and the circumstances which
                caused the deviation have not changed.
                Tenn. Code Ann. § 36-5-101(a)(1) (1996 & Supp. 1997).

In the first trial, the trial court made findings regarding the relative earning capacities of the parties.

Although Husband worked for his family and only earned $800 per month in salary, there was proof

in the record that his skills and abilities were such that his earning capacity was between $49,000

and $97,000. The trial court deviated from the child support guidelines by awarding Wife less than

the amount allowed by the guidelines, but this deviation was due to its award of $700 per month in

alimony to Wife.

        Even though this award of child support was based on earning capacity rather than actual

earnings, such a basis is proper. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 747-48 (Tenn. Ct. App.

1996). Therefore, since we have a court-ordered deviation, the issue becomes whether there has

been a change in the circumstances which caused the deviation. Husband cites the fact that he no

longer has access to the amounts of cash that he once had access to as being a sufficient change of

circumstances to justify a modification of child support. However, Husband’s lack of access to his

family’s resources does not diminish his earning capacity, only his income.

        The trial court found that Husband was willfully underemployed because he chose to work

for his family rather than on the open market. This court has said that “if there is a finding of willful

or voluntary underemployment, the court should set child support based on a finding of earning

potential.” Herrera v. Herrera, 944 S.W.2d 379, 387 (Tenn. Ct. App. 1996). Therefore, we find

Husband’s third issue to be without merit and affirm the trial court’s decision.



                                             IV. Contempt


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        “The matter of determining and dealing with contempt is within the court’s sound

discretion.” Robinson v. Air Draulics Eng’g Co., 214 Tenn 30, 37, 377 S.W.2d 908, 912 (Tenn.

1964). As such, the trial court’s “determination is final unless there is plain abuse of discretion.” Id.

Our review of the case law regarding the issue of incarceration for contempt convinces us that there

can be no imprisonment for civil contempt without a finding that the contemnor has the ability to

comply with the required order. See Leonard v. Leonard, 341 S.W.2d 740, 743-44 (Tenn. 1960),

Going v. Going, 256 S.W. 890, 899 (Tenn. 1923), State ex rel. Moore v. Owens, 1990 WL 8624

(Tenn. Ct. App. 1990). The contemnor cannot be forced to borrow the funds, nor can his family be

forced to satisfy his duty. Netherton v. Netherton, 1993 WL 49556 (Tenn. Ct. App. 1993).

        In the case before us, there was no finding that Husband had the ability to purge himself of

the $23,700 obligation of alimony and attorney fees. Despite the fact that Husband’s father

immediately paid the required amount and thereby purged Husband of contempt, we find that the

trial court’s sentence of incarceration for Husband for civil contempt was in error. We therefore

reverse the finding of the trial court on the issue of contempt.



                                          V. Attorney Fees

        Wife contends that the Husband’s appeal of the trial court’s decision regarding custody and

alimony was frivolous. In view of the fact that we have reversed the finding of contempt, we do not

find this appeal to be frivolous. However, we do find that Wife is entitled to her attorney’s fees

incurred on appeal. As this Court said in Sherrod v. Wix, 849 S.W.2d at 785 (Tenn. App. 1992)

while ability to pay is certainly a factor to be considered, the purpose of an award of attorney’s fees

in custody or support proceedings is to protect the children’s legal remedies, not those of the

custodial parents. Requiring parents who precipitate custody or support proceedings to underwrite

the cost of their claims or the cost if their claims are ultimately found to be unwarranted is

appropriate as a matter of policy.

        It results that the judgment of the trial court’s finding Husband in contempt is reversed and

the judgment of the trial court is in all other respects affirmed. This cause is remanded to the trial

court for a hearing to determine Wife’s reasonable attorney’s fees incurred on appeal. Costs of this

appeal are taxed to the Husband, for which execution may issue if necessary.



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                  FARMER, J.



CONCUR:




LILLARD, J.




LEWIS, J.




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