                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    August, 8, 2001 Session

     BRENDA JANE (THOMPSON) TURNBO v. JOE LARRY TURNBO

                     Appeal from the Chancery Court for Wayne County
                             No. 8490   Stella Hargrove, Judge



                    No. M2000-02415-COA-R3-CV - Filed October 5, 2001


A divorce judgment rendered June 5, 1992 required the appellant to pay, inter alia, the sum of
$185,000 to his wife “as a fair and equitable division of the marital property.” The appellant elected
recalcitrance rather than compliance, and failed to pay. He was found in civil contempt in September
2000 and ordered to be confined until he purged himself of contempt. We affirm.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.
and WILLIAM C. KOCH , JR., J., joined.

William C. Barnes, Jr., Columbia, Tennessee, for the appellant, Joe Larry Turnbo.

James Y. Ross, Sr., Waynesboro, Tennessee, for the appellee, Brenda Jane (Thompson) Turnbo.

                                             OPINION

                                                  I.

       The Chancery Court for Wayne County rendered a plenary decree on June 5, 1992 awarding
Brenda Jane Turnbo a divorce from the appellant after finding that without provocation he violently
abused his wife “to a degree this court has rarely seen,” and “indulged in conduct and indignities
towards [wife] that need not be enumerated. . . .”

         Wife was awarded a divorce, custody of a child, monthly alimony, and $185,000 cash to
equalize a division of marital assets. The parties owned substantial assets, including 18.85 acres in
Florence, Alabama; Turnbo Motor Express, Inc.; and a Piper airplane which were awarded to the
appellant. We do not deem it necessary to particularize the division of marital assets other than as
recited.
        The appellant appealed the judgment. He excoriated the trial judge; the case was remanded
for further findings, and the judgment was ultimately affirmed by opinion of this Court filed July 1,
1998.

       On May 22, 2000, wife filed a petition alleging that Mr. Turnbo was in contempt of the
Chancery Court for failing to pay “any amount of the $185,000 plus statutory interest which has
accrued since February 5, 1993.”

       Mr. Turnbo filed an answer and counter-claim alleging that he and his former wife had
“entered into an agreement1 whereby [he] would pay unto his wife $50,000 thirty days from the
hearing which would cover all attorney fees and property division and $25,000 in twelve months.”
By counter-claim he sought a reduction in monthly alimony.

        The petition for contempt was heard on August 31, 2000. The appellant was found to be in
civil contempt for failing and refusing to pay the amount ordered which his counsel described as
alimony in solido, and he was incarcerated until he purged himself of contempt. We consider it
appropriate to reproduce some of the Chancellor’s findings which were incorporated in a judgment
entered September 28, 2000.2

         5.        That the Plaintiff/Respondent claimed to be without the ability to pay the
                   obligation of One Hundred Eight-five Thousand and 00/100 ($185,000)
                   Dollars, which represents a portion of the Defendant/Petitioner’s division of
                   the marital assets of the parties at the divorce proceeding, to the
                   Defendant/Petitioner, but failed to offer any credible proof to support this
                   contention.

         6.        That the Plaintiff/Respondent raised basically the same financial problems,
                   previously relied upon during the divorce proceeding, to describe his personal
                   and business financial circumstances, yet the overall size and income of the
                   closely held corporation of the Plaintiff/Respondent, as well as his personal
                   assets and income, has grown enormously in size and income since such
                   divorce proceedings and, therefore, he failed to offer any credible proof to
                   support this contention.

         7.        That the Plaintiff/Respondent claimed to have a recent loss in profit due to
                   fuel and tax increases, but failed to offer any credible proof to support this
                   contention.



        1
            This alleged agreement was not reduced to writing nor was it approved by the court. For manifest reasons
we will not further n otice it.

        2
            The reco rd does n ot reflect the rea son for the ino rdinate dela y in the entry of jud gment.

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8.    That the Plaintiff/Respondent has hidden, and/or attempted to hide, assets in
      order to avoid having to pay the obligation owed to the Defendant/Petitioner
      as previously ordered by the Court, and the Plaintiff/Respondent, based on
      the reasons set forth hereinabove is not a credible witness.

9.    That the Plaintiff/Respondent willfully and intentionally failed and refused
      to provide discovery, including production of financial and other records,
      requested by the Defendant/Petitioner, and ordered by the Court to be
      produced prior to this hearing date and, by doing so, the Plaintiff/Respondent
      has created a hardship on the ability of the Defendant/Petitioner to completely
      determine the assets, income and financial resources of the
      Plaintiff/Respondent and, further, interfered with the ability of the Court to
      determine the past and present ability of the Plaintiff/Respondent to comply
      with the previous orders of the Court.

10.   That the Plaintiff/Respondent had the ability to produce the financial and
      other records as previously ordered by the Court and, therefore, he is in
      willful and intentional civil contempt of the Orders of this Court.

11.   That the Plaintiff/Respondent willfully and intentionally failed and refused
      to pay the sum of One Hundred Eighty-five Thousand ($185,000.00) Dollars,
      representing a portion of the division of marital assets awarded to the
      Defendant/Petitioner, as previously ordered by the Court.

12.   That the Plaintiff/Respondent had the ability in the past, as well as presently,
      to pay the sum of One Hundred Eighty-five Thousand ($185,000.00) Dollars
      to the Defendant/Petitioner and, therefore, he is in willful and intentional civil
      contempt of the Orders of this Court.

13.   That the Plaintiff/Petitioner is hereby ordered to pay the sum of One Hundred
      Eight-five Thousand and 00/100 ($185,000.00) Dollars, plus statutory post-
      judgment interest of ten (10%) percent and any outstanding attorney fees
      incurred by the Defendant/Petitioner in relation to this case, to the
      Defendant/Petitioner, and Judgment is hereby awarded for said amount
      against the Plaintiff/Respondent in favor of the Defendant/Petitioner.

14.   That the Plaintiff/Respondent is in Civil Contempt of the Orders of this
      Court, and he shall be incarcerated in the Wayne County Jail until he
      otherwise purges himself of Contempt by complying with the previous orders
      of this Court as set forth herein. In other words, the Plaintiff/Respondent
      holds the keys to the jail in his hand, and may cause himself to be
      immediately released from custody by complying with the previous Orders
      of the Court as aforesaid.


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       These findings are supported by the great weight of the evidence.

        On September 1, 2000 [the day after the hearing on the petition for contempt which resulted
in Mr. Turnbo’s confinement] the case was again before the court “upon the agreements and
stipulations of the parties.”

        The Order entered3 recites that the parties have “entered into a resolution of the issues at the
present time” and provides that Mr. Turnbo “be granted a furlough from the Wayne County jail for
September 5, 2000 until 5:00 p.m.” This order, which was approved by counsel, provided that the
incarceration of Mr. Turnbo shall be suspended provided he makes payment of $100,000 to the
plaintiff before the close of business September 5, 2000, and pays his wife’s attorney fees. The order
further provides that Mr. Turnbo will pay his former wife $5,000 per year for 10 years and will
continue to pay alimony as ordered until his former wife reaches the age of 66.

       The order next provides “[f]ailure to make said payments will result in the ruling of the Court
announced August 31, 2000 less any payments made. Reinstatement will not result in incarceration
without further proceedings.”

         For reasons not explicated in the Order, or the record, wife agreed to accept $150,000 in
settlement of the amount of about $350,000 owing to her; even so, having accomplished this feat,
Mr. Turnbo’s recalcitrance remained uppermost and he, apparently, did not pay the reduced amount.
In lieu, he appealed to the Court of Chancery Appeals4 the September 28, 2000 Judgment and the
September 8, 2000 Order.5 Since the latter Order provides, in effect, that it has no efficacy if its
terms are not complied with, we will treat it as nonefficacious and focus on the September 28, 2000
judgment.

                                                         II.

         The appellant presents for review the issues of whether the “court erred in finding the
alimony in solido obligation of the appellant proper grounds for incarceration” and that he had the
ability to purge himself of contempt. He argues that Article I, Section 18 of the Tennessee
Constitution “says there shall be no imprisonment for a civil debt.” The obligation of the appellant
is a civil one ordered to be paid by a court following a judicial process, and the court has the power
to enforce its decrees provided the evidence is clear that the appellant has the ability to pay. See,
Mackey v. Cumerloto, 12 TAM 36-15 (Tenn. Ct. App. 1987). The trial judge found in no uncertain
terms that the appellant had the ability to comply, but refused to do so. The record reflects that his
refusal is contumacious and cannot be tolerated. In 1991 the appellant’s business generated a net
profit in excess of $400,000: in 1998 the business, a trucking company, owned 46 Freightliner

       3
           Although signed by the Chancellor on September 1, 2000 it was not entered until September 8, 2000.

       4
           A de minim is error, som ewhat revela tory.

       5
           An Agree d Orde r cannot be appealed . Kelly v. Walker, 208 Tenn. 388 (1961 ).

                                                         -4-
trucks, had 45 employees and grossed in excess of $4,600,000. In addition, the appellant owns
valuable real estate in Tennessee and Alabama, various personal vehicles and other personalty and,
with his present wife, enjoys a substantial income from Turbo Motor Express.

       Appellate review is de novo on the record with a presumption of correctness unless the
evidence preponderates against the judgment. Rule 13(d) T.R.A.P. We find that the evidence does
not preponderate against the judgment finding the appellant in willful civil contempt and ordering
him to be incarcerated, and that he has the present ability to purge himself of contempt.

         The judgment is affirmed and the case is remanded to the Chancery Court for Wayne County
for such further proceedings as the Chancellor deems necessary, including the award of attorney fees
on appeal. The costs are assessed to appellant and the sureties of his bond for which execution may
issue if necessary.



                                                      ___________________________________
                                                      WILLIAM H. INMAN, SENIOR JUDGE




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