Facts: When Husband and Wife divorced in 1994, their marital dissolution agreement (MDA) required Husband to pay alimony in futuro of $4000 per month until Wife’s death or remarriage. It also provided for the recovery of attorney’s fees in any action to enforce the MDA.
In 2009, Wife prevailed in an action to hold Husband in criminal contempt for failing to pay his alimony obligation. Husband was sentenced to serve 30 days in jail and pay Wife’s attorney’s fees.
In 2014, Wife filed a second action related to Husband’s failure to pay his alimony obligation, this time seeking to hold him in civil contempt of court.
While the trial court found that Husband violated the alimony provision of the MDA, it determined that he could not pay his alimony obligation and, therefore, his failure to pay was not willful. Wife’s petition was dismissed.
On Appeal: The Court of Appeals reversed the trial court.
Civil contempt claims based upon disobedience of a court order have four essential elements:
- the order alleged to have been violated must be lawful;
- the order must be clear, specific, and unambiguous;
- the contemnor must have disobeyed the order; and
- the contemnor’s violation of the order must be willful.
The concept of willfulness differentiates between deliberate and unintended conduct. A person acts willfully if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing. Thus, acting contrary to a known duty may constitute willfulness for a civil contempt proceeding.
For the court to find that an obligor’s failure to pay alimony was contemptuous, the Court must first determine that the obligor could pay when the support was due and then determine whether failure to pay was willful.
The Court of Appeals dug into the evidence, and what they found did not add up:
Our review indicates that although Husband asserted that his total income for 2014 was $15,639, an examination of Husband’s credit card statements reflects that Husband made purchases . . . totaling significantly more than his income reported for 2014. Moreover, Husband’s American Express statements demonstrate that significant, up-to-date payments were made concerning the credit account each month. . . . [T]he following is an illustrative sample of charges Husband incurred during the time he contends he was unable to pay his spousal support obligation:
Date Merchant Amount January 30, 2014 Bloodworth Motorcycle $2615.51 March 17, 2014 La-Z-Boy Furniture $2651.48 July 11, 2014 Brasfield Winery $1099.93 September 13, 2014 Brentwood Jewelry $868.54 December 7, 2014 Bose Online Store $1201.70
Upon a thorough review of the record, we determined that the evidence preponderates against the trial court’s determination that Husband’s failure to comply with the alimony provision in the MDA was not willful. We note that this Court has determined that where an 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. Husband created the situation causing his alleged inability to pay by transferring significant assets of at least $1.1 million to his current wife. Husband’s pattern of spending many thousands of dollars in the year on his credit card and paying for those charges demonstrates that he had significant assets available and could have paid his alimony obligation. We therefore determine that Husband had the ability to pay support.
Furthermore, the evidence preponderates in favor of a determination that Husband’s failure to pay his spousal support obligation was intentional and voluntary. While Husband had the assets available to him to pay his spousal support obligation, he chose not to do so. We therefore determine that Husband’s failure to pay was willful and that he had the ability to pay spousal support.
[W]e further determined that the trial court predicated its contempt adjudication on a clearly erroneous assessment of the evidence. As such, we conclude that the trial court erred by declining to find Husband in civil contempt of court for his failure to comply with the alimony provision of the MDA.
The trial court’s judgment was reversed, and the case remanded to the trial court for entry of an order finding Husband in civil contempt and assessing an appropriate sanction. The trial court was also directed to enter a judgment for Wife in the amount of Husband’s alimony arrearage, including postjudgment interest. Finally, Wife was awarded her attorney’s fees both in the trial court and on appeal.