Huggins v. Huggins, No. M2002-02072-COA-R3-CV (TN 1/31/2005)

• Court: Tennessee Supreme Court
• Writing for the Court: William C. Koch
• Decision Date: 31 January 2005
• Docket Number: No. M2002-02072-COA-R3-CV,M2002-02072-COA-R3-CV
• Citation: Huggins v. Huggins, No. M2002-02072-COA-R3-CV (TN 1/31/2005), No. M2002-02072-COA-R3-CV (Tenn. Jan 31, 2005)
• Parties: WILMA JEAN HUGGINS v. THERON EUGENE HUGGINS.

Page 1

WILMA JEAN HUGGINS v. THERON EUGENE HUGGINS.

No. M2002-02072-COA-R3-CV

Court of Appeals of Tennessee, at Nashville.

September 4, 2003 Session

Filed January 31, 2005.

Appeal from the Circuit Court for Williamson County; No. I-2K223; Timothy L. Easter, Judge.

Judgment of the Circuit Court Affirmed in Part, Vacated in Part, and Remanded.

Vincent Zuccaro, Brentwood, Tennessee, for the appellant, Theron Eugene Huggins.

James L. Curtis, Nashville, Tennessee, for the appellee, Wilma Jean Huggins.

William C. Koch, Jr., P.J., M.S., delivered the opinion of the court, in which Patricia J. Cottrell, J., and Alan E. Glenn, SP. J., joined.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S.

This appeal involves a civil contempt sanction against a former husband for failing to make payments required by the parties' marital dissolution agreement. The former wife filed a petition in the Circuit Court for Williamson County seeking to hold her former husband in either criminal or civil contempt. Following a hearing, the trial court awarded the former wife a $26,378 judgment for the arrearage and a $2,000 judgment for attorney's fees. The trial court also found the former husband to be in civil contempt and ordered him incarcerated for six months or until he made the payments required by the martial dissolution agreement. The former husband appealed. We affirm the portions of the judgment awarding the former wife $28,378; however, we vacate the civil contempt judgment against the former husband because the trial court failed to make an affirmative finding that he was presently able to meet his financial obligations under the marital dissolution agreement.

I.

On August 28, 2000, Wilma Jean Huggins and Theron Eugene Huggins were divorced in the Circuit Court for Williamson County. The divorce decree approved and incorporated their marital dissolution agreement in which Mr. Huggins agreed to pay (1) the minimum monthly balances on certain marital debts, (2) an additional $250 a month toward the retirement of marital credit card debts, and (3) rehabilitative alimony of $1,200 a month for five years or until the death or remarriage of Ms. Huggins. Mr. Huggins also agreed to maintain a $100,000 term life insurance policy naming Ms. Huggins as the sole beneficiary, as well as short- and long-term disability policies sufficient to cover the required monthly payments to Ms. Huggins.

Mr. Huggins made several of the required payments but eventually defaulted. According to Mr. Huggins, he experienced financial and employment difficulties that made it impossible for him to continue making the payments. Mr. Huggins did not, however, return to court to seek a modification of the divorce decree to reduce his financial obligations. On January 23, 2002, Ms. Huggins filed a petition in the Circuit Court for Williamson County seeking to have Mr. Huggins held in civil contempt or, alternatively, criminal contempt for his failure to make the monthly payments required by the divorce decree. She also sought a judgment for the payments that Mr. Huggins had not made.

The trial court conducted a bench trial and on August 20, 2002 entered an order awarding Ms. Huggins a judgment against Mr. Huggins for $26,378 representing the balance of his unpaid obligations under the marital dissolution agreement and an additional $2,000 for attorney's fees. The trial court declined to hold Mr. Huggins in criminal contempt but held him in civil contempt and ordered him incarcerated for six months or until he "purged himself of contempt." On Mr. Huggins's motion, the trial court stayed his jail sentence pending appeal.

Mr. Huggins presses several arguments on appeal, all of which are without merit. His assertions regarding the factual basis for the arrearage judgment and the finding of contempt are undermined by his failure to provide this court with a transcript or statement of the evidence.¹ As the appellant, Mr. Huggins had the primary responsibility to prepare a factual record containing a full, accurate, and complete account of what transpired at trial with regard to the issues he planned to raise on appeal. Davis v. Tennessean, 83 S.W.3d 125, 127 n.2 (Tenn. Ct. App. 2001); McDonald v. Onoh, 772. S.W.2d 913, 914 (Tenn. Ct. App. 1989). Where, as here, an appellant fails to provide a factual record on appeal, "we must assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court's factual findings." Craft v. Forklift Sys., Inc., No. M2002-00040-COA-R3-CV, 2003 WL 21642767, at *2 (Tenn. Ct. App. July 14, 2003) (No Tenn. R. App. P. 11 application...