Summary
In Curtis, this Court affirmed the dismissal of a husband's second petition for modification on the basis that it did not sufficiently allege a substantial change of circumstances since the court's order denying his first petition for modification. 2001 WL 310641, at *6.
Summary of this case from Malkin v. MalkinOpinion
No. M1999-00721-COA-R3-CV.
Filed April 2, 2001. Assigned on Briefs April 4, 2000.
Direct Appeal from the Circuit Court for Davidson County No. 93D-2870; Muriel Robinson, Judge.
Affirmed and Remanded.
R. Eddie Davidson, Nashville, Tennessee for the appellant, Gary Leroy Curtis.
Jack Norman, Jr., Nashville, Tennessee for the appellee, Jane Weltha Curtis.
Patricia J. Cottrell, J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S., and William C. Koch, Jr., J. joined.
OPINION
This is the third time these parties have been before this court. See Curtis v. Curtis (" Curtis I"), No. 01A01-9508-CV-00385, 1997 WL 396242 (Tenn.Ct.App. July 16, 1997) (no Tenn.R.App.P. 11 application filed) (Mr. Curtis unsuccessfully appealed, among other things, the alimony award to wife); Curtis v. Curtis (" Curtis II"), No. 01A01-9810-CV-00566, 1999 WL 652000 (Tenn.Ct.App. Aug. 27, 1999) (no Tenn.R.App.P. 11 application filed) (Mr. Curtis unsuccessfully appealed the denial of his petition to reduce alimony payments). In this appeal, Mr. Curtis again seeks to reduce or eliminate his alimony obligation.
I. Background
In 1995, the trial court awarded a divorce to Ms. Curtis, based on Mr. Curtis's inappropriate marital conduct. Curtis I, 1997 WL 396242 at *2. At the time of the divorce, Mr. Curtis owned two businesses: Star Electric Company, a business employing three electricians, and Gary's Golf, a nine hole golf course and driving range on leased property in Ashland City. Id. at *1. The golf course was not profitable, but Mr. Curtis considered it a source of employment and retirement income. Id. As relevant here, the trial court awarded Mr. Curtis his interest in the two businesses and some real property, Id. at *4 n. 7, and awarded Ms. Curtis $1,176.64 per month in alimony. Id. at *2. Mr. Curtis appealed a number of issues, including the alimony award, which this court affirmed. In so doing, we observed, "[Mr. Curtis] concedes that Ms. Curtis may need support because she is in a more debilitated condition . . .," Id. at *6, and that "Ms. Curtis . . . is somewhat impaired because of her back injury and has limited employment skills." Id. at *7. We also noted, "Mr. Curtis is fifty-six years old and has no physical or mental impairments that impede his ability to work. He has operated his own electrical business for over fifteen years. Despite his limited formal education, the trial court specifically found that he was an `astute businessman.'" Id. We stated:
Based on the evidence with regard to the length of the marriage, the age and health of the parties, and the parties' respective abilities to earn income and to acquire capital assets, we cannot say that the trial court erred by determining that Mr. Curtis could pay $1,176.64 per month in long-term spousal support. This award remains within the trial court's jurisdiction; accordingly, Mr. Curtis will always have the prerogative to request an adjustment in his support obligation should his ability to earn income or Ms. Curtis's needs change materially.
Id.
Curtis I was issued July 16, 1997. Five days later, Mr. Curtis filed a "Petition to Modify Final Decree for Reduction of Alimony" asserting that his health had deteriorated and, consequently, his ability to earn income had diminished. Curtis II, 1999 WL 652000 at *1. At the hearing on his petition, and in support of his allegations of health problems, Mr. Curtis presented his own testimony, that of his wife, and the deposition testimony of his physician, Dr. Anderson, that, beginning in 1995, Mr. Curtis suffered from chronic obstructive pulmonary disease. Id. at *4. Mr. Curtis had been hospitalized several times for problems relating to his lungs, and had recently been diagnosed with diabetes. Id.
Mr. Curtis testified that he could no longer work as he had before, and that he had to borrow money and liquidate assets to pay his alimony obligation. Id. On cross-examination, he stated that he had given Gary's Golf to his current wife, Deborah Curtis, in 1997 because he could no longer operate it. Id. at *3. He also stated that he had conveyed some of the real estate he received in the divorce to his father-in-law, Cecil Evans, for $5,000 as collateral for a debt. Id. He testified that the property was listed for sale at $40,000, but that he only owed Mr. Evans $7,200. Id. Mr. Curtis admitted that the telephone number on the "for sale" sign on the property was his. Id.
For the sake of clarity, we shall refer to Jane Curtis, a party in this matter, as "Ms. Curtis" and Deborah Curtis, Mr. Curtis's current wife, as "Deborah Curtis." No disrespect is intended. Also, we note that Deborah Curtis's name was spelled "Debra" in a prior opinion of this court but is spelled "Deborah" on the tax returns filed as exhibits herein.
Deborah Curtis testified concerning Mr. Curtis's inability to do heavy physical work. Id. at *4. She confirmed that she owned and operated the golf course. Id. An electrician who worked for Mr. Curtis at Star Electric Company also testified that Mr. Curtis was unable to work as he had in the past. Regarding Mr. Curtis's financial situation, oral testimony was presented, but witnesses failed to provide proof of his debts. Id. at *3.
After the hearing, the trial court entered an order on June 16, 1998, which stated:
The court specifically finds that Mr. Curtis has failed to carry the burden of proof or to satisfactorily prove to the Court that there has been a material change in circumstances justifying a reduction and/or discontinuance of alimony payments as provided for in the final decree. The Court specifically finds that the financial information provided by Mr. Curtis is incomplete and insufficient to enable the Court to reach the conclusion that a reduction in alimony or a discontinuance of alimony payments is justified. In addition, the conflicting proof offered by Mr. Curtis as to income earned and property values is of such variance that the credibility of Mr. Curtis is questioned by the Court.
The trial court also made findings and observations from the bench, as follows:
The petition to reduce this alimony is not well taken. There's no sufficient proof to reduce the same. He's failed to carry the burden of proof. More so, the discrepancies in his testimony are to the extent that his credibility is questionable. He completely controls his own income. He owns his own business. He's even divested himself of assets voluntarily. He's given his golf course to the wife. She's going to run that.
He has borrowing capacity. He's given away property that's more valuable than what the debt was, that caused him to transfer to his father-in-law. The transfers are all questionable in this Court's eyes. His alleged impairments are self-induced.
***
I find that there's really no material change to his health, and I've read this doctor's deposition. . . . But taking into consideration that doctor's deposition this man can still earn income. He did not want to pay the alimony from the day one. He doesn't want to now. And there's just no change.
Id. at *5.
This court reviewed the trial court's order and affirmed it, stating:
While Husband's health may have deteriorated over the years since the parties' divorce, Husband failed to provide proof that this has diminished his income and his ability to pay the alimony obligation. The only documented proof as to income was for Husband's company. The only proof submitted as to Husband's income was testimony from his wife and from Husband, and the trial court indicated a problem with their credibility. When the resolution of the issues in a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses in their manner and demeanor while testifying is in a far better position than this Court to decide those issues. . . . Moreover, while Husband submits that he has had to resort to borrowing money and selling property in order to pay his alimony obligation, these transactions are, as the trial court found, suspect and undocumented.
In addition, we observed:
Husband was admonished several times during cross-examination for failing to provide proof to corroborate his testimony and for not giving straight answers to questions asked. For example, when asked on cross-examination about his income and proof of loans and debts, Husband testified that his wife [had] the records at home.
Id. at *6.
Id. at *6.
In December 1998, while Curtis II was pending in this court, Mr. Curtis received a "Notice of Decision — Fully Favorable," signed by an administrative law judge ("ALJ"), advising him that he had been "deemed to be disabled." Mr. Curtis also received a "Notice of Award" from the Social Security Administration ("SSA"), advising him that he "became disabled under our rules on January 1, 1997" and that his "first month of entitlement to benefits [was] June 1997." The Notice of Award informed Mr. Curtis that "around December 21, 1998," he would receive $19,758, which represented the money he was due for June 1997 through November 1998, and that he would receive $1,120 per month from that point on.
On February 17, 1999, Mr. Curtis filed a petition in the trial court seeking to reduce his alimony obligation. The petition advised the trial court that Mr. Curtis had received the notices from the ALJ and the SSA, and asked the trial court to consider the finding of disability and the fact that "his alimony obligation is far in excess of his Social Security disability payment." Mr. Curtis claimed those facts "constitute a material and substantial change in circumstances which warrants a modification of alimony."
Mr. Curtis's monthly Social Security payments, as of December 1998, were $56.64 less than his alimony obligation. The Notice of Award stated, AWe raised your monthly benefit amount beginning December 1997 and again in December 1998 because the cost of living increased."
Ms. Curtis filed an "Answer and Counter-Petition for Contempt," alleging the prior petition to modify the alimony obligation was based on "virtually the same set of facts and circumstances as is alleged in his present petition," that Mr. Curtis has the ability to earn substantial income, if he so desires, and that Mr. Curtis's disability status as determined by the administrative law judge "is immaterial to the issues now before the Court as the Court has already found that Mr. Curtis has the ability to pay Ms. Curtis the alimony . . . notwithstanding his allegation of physical disability." She claimed Mr. Curtis's action was barred because those allegations had already been adjudicated in the trial court and were pending before this court. Ms. Curtis then sought to have Mr. Curtis held in contempt because he had failed to pay her any alimony in January, February, and March 1999, and because that failure "constitutes an act of willful and deliberate contempt of the orders of the court."
Mr. Curtis filed an affidavit in support of his opposition to the motion to dismiss in which he merely stated: "[I]n support of my opposition to Jane Curtis' motion to dismiss, I would show that I am the recipient of disability benefits from the Social Security Insurance (SSI)," and "[t]hat I received these benefits retroactive to the date of 23rd of December, 1997."
Our opinion in Curtis II was released August 27, 1999, affirming the trial court's denial of the first petition to modify the alimony award. On September 24, 1999, the trial court held a hearing on Ms. Curtis's motion to set a hearing on her petition for contempt, to allocate attorney fees for defending Mr. Curtis's appeal, and to dismiss Mr. Curtis's petition to modify the alimony award. The court heard arguments, but did not take evidence regarding Mr. Curtis's petition to modify the alimony award. The court then dismissed Mr. Curtis's petition, awarded Ms. Curtis her attorney fees, and set the hearing on Ms. Curtis's contempt petition for October 7, 1999.
The order states: "From statement of counsel and a review of the record by the Court, and taking into consideration the past rulings of the Court . . ." No transcript or other record of that hearing was made part of the record before this court.
The only issue before the court at the contempt hearing was whether Mr. Curtis should be held in contempt for willful failure to pay alimony in January, February, and March of 1999; thus, the evidence primarily related to his ability to pay. Ms. Curtis testified that Mr. Curtis had not paid the alimony as ordered, for the months in question, or since then. She said she had been to Gary's Golf twice in August 1999, when the temperature was ninety degrees or higher, and had seen Mr. Curtis working there, once riding on a tractor. She testified that he did not appear disabled.
Mr. Curtis introduced tax returns from 1997 and 1998, as well as reintroducing the deposition of Dr. Anderson and adding the deposition of Dr. Peacock, a specialist in pulmonary disease. On cross-examination, the following exchange took place between Mr. Curtis and Ms. Curtis's counsel regarding Dr. Peacock's testimony:
Q. Let me read you, starting on page 19, the questions I asked him. "And I believe you told [Mr. Curtis's counsel] that you tried to encourage Mr. Curtis to be as active as he can, to walk every day, things of that nature; is that correct?" Dr. Peacock's answer, "I believe I have." Question, "What about his ability to ride a tractor and cut grass, can he do that?" Answer, "I suspect he could probably ride a tractor." Question, "If he were the owner of an electrical corporation, basically he could pick a job, bid on jobs, have his employees actually do the work. He could still do that middle part of it, could he not, sir?" Answer, "I think his mental capabilities are okay." Question, "And you don't know of anything that would keep him from bidding on a job, or figuring cost estimates, or things of that nature, do you?" Answer, "No, I do not." Is that the testimony of your doctor, Mr. Curtis?
A. If that's what he put down, it sure is.
In response to Ms. Curtis's testimony that he had been driving the tractor, Mr. Curtis testified that he was able to do that work because a machine picks up the golf balls.
Mr. Curtis testified that he had given the golf course to Deborah Curtis, that he leases the land where the business is located for $500 per month, that the income from the golf course is mostly cash, and that Deborah Curtis controls the receipts of the golf course. He stated that two men maintained the grass at the golf course in exchange for free golfing. Deborah Curtis testified that Gary's Golf lost $15,000 in 1998.
Mr. Curtis and his wife, Deborah, filed a joint tax return in 1998, which was admitted into evidence. A Schedule C form was attached, which listed Deborah Curtis as the proprietor of ASycamore Driving Range." As no Schedule C form exists for AGary's Golf," and as Sycamore Driving Range also lost approximately $15,000 in 1998, we must assume that the businesses are the same. We note that Sycamore Driving Range grossed $14,318 and paid $3,433 in interest for an unspecified loan. A partial list of expenses includes: $4,000 for renting or leasing Aother business property," $1,815 for Autilities," $3,683 for Acleaning supplies, etc.," $916 for a APort-a-let," and $6,830 for Afood and beer." No expense was listed under "wages."
Deborah Curtis testified that she had been the owner of Star Electric Company since January 1, 1999, but could not remember if she had paid Mr. Curtis anything for it. She also testified that Star Electric had grossed $142,865 in 1998, and that she did the billing and the paperwork. She could not explain why the gross income was so much higher than the net income, claiming, "I have a bookkeeper that does that." On their 1040 tax return, the Curtises claimed a joint total income in 1998 of $31,767.
The Curtises' income tax form shows "ordinary income" from Star Electric Company to be $44,296 after business deductions.
Mr. Curtis testified that he received one lot of riverfront property in the divorce, but that he had signed it over to his father-in-law for $5,000 after borrowing money from him. He said his father-in-law was trying to sell the property, asking $60,000, but had not sold it. He did not deny that his telephone number remained on the "for sale" sign.
Upon hearing the testimony, the trial court found Mr. Curtis in willful criminal contempt for failure to pay the alimony as ordered, and stated:
The Court finds that Mr. Curtis has set upon a course of conduct to defeat Ms. Curtis's, the former Ms. Curtis's, alimony award from day one. He has consistently transferred assets to his present wife to pauperize himself and to further defeat the orders of this court. He has been before this Court twice before seeking relief, which has been denied. Those matters have been appealed. The trial court's order has been sustained. He has been adjudged a non-credible witness on two other occasions. The Court finds today that his credibility has not improved.
The court then said:
He has, at all times, had the wherewithal to comply with the orders of the Court. He was granted certain property in the final decree. The testimony shows that he transferred one lot to his father-in-law for a nominal price, but he retains the right to acquiesce in the sale of the same. I'm going to ask that his father-in-law be added as a third-party defendant in this lawsuit, as well as the present Ms. Curtis, and I'm going to place liens on this lot number six, as well as the assets of Gary's Golf, as well as the assets of Star Electric Company to secure the payment of this alimony. I'll enjoin all parties from disposing of any of these assets unless they have permission of the Court.
The court awarded Ms. Curtis a judgment for alimony arrearages; joined Deborah Curtis and Cecil Evans as parties defendant "for the purpose of making a determination as to the validity of conveyance of land and personal property made to these parties by Mr. Curtis," and ordered a lien on the transferred businesses and assets. The court then sentenced Mr. Curtis to thirty days in jail and fined him $150 for three instances of contempt for failure to pay the alimony. Mr. Curtis appeals the trial court's denial of his petition to reduce alimony payments, the criminal contempt convictions, and the joinder of his wife and father-in-law as defendants and the injunctions against their disposal of the assets.
The court ordered Mr. Curtis taken into custody at the conclusion of the hearing. From post-trial motions, it appears that Mr. Curtis was in jail from October 7, 1999, the date of the hearing, until at least October 29, 1999, when the trial court held a hearing, and later entered an order, staying the balance of Mr. Curtis's sentence upon the posting of a bond.
II. Dismissal of the Petition to Modify Alimony
"It is well established that appellate courts should give deference to the decisions of the trial court in regard to alimony awards." Jones v. Jones, 784 S.W.2d 349, 352 (Tenn.Ct.App. 1990). Our statutes provide that "the Court may decree an increase or decrease of [spousal support] only upon a showing of a substantial and material change in circumstances." Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 2000). The burden of proof of showing the changed circumstances in on the party seeking the modification. Seal v. Seal, 802 S.W.2d 617, 620 (Tenn.Ct.App. 1990). That change in circumstances must have occurred since the last order regarding alimony payments, because the earlier order is considered res judicata concerning all circumstances up to that time. Id.; Jones, 784 S.W.2d at 352; see also 24A Am. Jur. 2d Divorce and Separation § 822 (1998) ("Where the court has decided one petition for modification, the order entered in that proceeding is res judicata, and a second petition for modification thus cannot be entertained unless it can be shown that there has been a substantial change of circumstances since the earlier decision was made.").
"Whether there has been a sufficient showing of a substantial and material change of circumstances is in the sound discretion of the trial court." Watters v. Watters, 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999) (quoting Wilkinson v. Wilkinson, Shelby Law No. 69, 1990 WL 95571 at *4 (Tenn.Ct.App. July 12, 1990) (no Tenn.R.App.P. 11 application filed)). We review such decisions under Tenn.R.App.P. 13(d): unless the evidence preponderates against the trial court's findings of fact, we must affirm, absent an error of law. Where a trial court has dismissed a petition for modification on the basis it does not sufficiently allege a substantial and material change of circumstances since the last order on support, "this Court must take the factual allegations contained in the complaint as true and review the trial court's legal conclusions de novo without giving any presumption of correctness to those conclusions." White v. Revco Discount Drug Centers, Inc., 33 S.W.3d 713, 718 (Tenn. 2000) (citations omitted).
Mr. Curtis was required to allege a substantial and material change in his circumstances since the order denying his first petition for modification of alimony. In its order dismissing Mr. Curtis's petition for modification, the trial court found:
the allegations set out in the petition to reduce and/or discontinue alimony have already been adjudicated by the Trial Court and the Court of Appeals on two previous occasions, and that the current petition alleges no material change of circumstances warranting further consideration by the Court. This ruling is further substantiated by the fact that the Court on two previous occasions has found that Mr. Curtis is not a creditable witness, that he has transferred assets in an attempt to avoid alimony payments, and that he is not entitled to further relief or consideration by the Court.
We agree with the trial court's dismissal. Mr. Curtis's second petition reasserted some of the health problems alleged in the first petition, notified the court that Mr. Curtis had been received a favorable ruling on his application for disability benefits, and declared that the alimony obligation exceeded the disability benefits. No new allegations were made regarding Mr. Curtis's ability to pay the alimony ordered. The trial court's earlier ruling on Mr. Curtis's ability to pay in light of his health problems is res judicata as to the situation as it existed at that time and prevents a relitigation of the issue. Seal, 802 S.W.2d at 620 ; Jones, 784 S.W.2d at 352. The only new development alleged in the second petition was the fact that an ALJ had determined that Mr. Curtis was disabled and he was receiving disability payments from SSA. The petition, therefore, did not allege a substantial change in circumstances that negatively affected his ability to meet his alimony obligation. See Curtis II, 1999 WL 652000 at *6 (acknowledging Mr. Curtis's health "may have deteriorated over the years since the divorce" but finding that he "failed to provide proof that this has diminished his income and his ability to pay the alimony obligation"). Likewise, the fact that Mr. Curtis's alimony obligation exceeds his disability payment does not constitute a material change of circumstances. Mr. Curtis's income increased $1,120 per month as a result of the disability payments. We affirm the trial court's dismissal of Mr. Curtis's petition.
III. Criminal Contempt
We turn now to whether the trial court erred in holding Mr. Curtis in contempt of court for failure to pay Ms. Curtis the alimony for January, February, and March of 1999. The power of the court to hold citizens in contempt is essential to the protection of our justice system. Criminal contempt is a means through which individuals guilty of willfully derogating the authority of the court are punished, whereas civil contempt sanctions protect private rights. Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996). Tennessee holds specific types of conduct to be punishable as contempt of court in Tenn. Code. Ann. § 29-9-102, which states, in pertinent part:
The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases: . . .
(3) The willful disobedience or resistance of any officer of the said courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of said courts.
Mr. Curtis argues that the trial court erroneously held him in criminal contempt because he is physically unable to work as an electrician, the only job for which he has been trained, due to his chronic obstructive pulmonary disease. The issue, however, is Mr. Curtis's ability to pay his support obligation based on all of his resources, not his employability in any particular job. The rule is that a party can be held in criminal contempt for failure to pay alimony only if the court first determines that he or she had the ability to pay at the time the support was due and that the failure to pay was willful. Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000). Further,
[A] failure to comply with [an alimony decree] places the defendant prima facie in contempt of court and puts upon him the burden of proving his inability to make the payments as directed. To avoid being held in contempt, the party claiming an inability to pay alimony must prove that, after a good faith effort to pay alimony, he is unable to do so.
Ball v. Ball, No. 02A01-9709-GS-00239, 1999 WL 95977 at *3 (Tenn. Ct. App. Feb. 25, 1999) (no Tenn.R.App.P. 11 application filed) (citations omitted).
We cannot say that Mr. Curtis has made "a good faith effort" to pay his alimony obligation. With regard to Mr. Curtis's ability to pay the support payments when they were due, the trial court stated from the bench:
The proof is overwhelming that Mr. Curtis can pay the alimony. He elects to pay certain bills and fails to pay this bill. In spite of his ill health, he still has the wherewithal to run his golf course as well as his electrical business. Even though he has transferred title to his assets to others, he still has the ability to control the income.
We also note that Mr. Curtis continued to operate his golf course, or the golf course owned by his wife, after a loss of approximately $15,000 in one year, while claiming an inability to pay his alimony obligation, the annual total of which is also approximately $15,000.
Mr. Curtis received a lump sum payment of $19,758 in disability benefits from the Social Security Administration in December 1998, yet he contends that he was unable to pay $1,176.64 to Ms. Curtis for each of the following three months. He offered no explanation for his failure to use that money to pay his alimony obligation. We must conclude that he either retained the money, in which case he had the ability to pay Ms. Curtis, or spent it elsewhere, in which case he voluntarily disabled himself from paying her. Where a party accused of contempt "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." Bradshaw v. Bradshaw, 133 S.W.2d 617, 619 (Tenn.Ct.App. 1939). The trial court properly found that Mr. Curtis was able to pay spousal support for the months of January, February and March of 1999, yet he chose not to do so. We affirm the trial court's finding of contempt.
IV. Joinder and Injunction
We now turn to the joinder of Deborah Curtis and Cecil Evans as parties defendant and the injunctions against the disposal or encumbrance of the assets transferred to them. The trial court's order stated:
That pursuant to the provisions of Rule 18, Tennessee Rules of Civil Procedure, Mr. Curtis' present wife, Deborah Curtis, and Mr. Curtis' father-in-law, Cecil Evans, are joined as parties/defendant to this case for the purpose of making a determination as to the validity of conveyance of land and personal property made to these parties by Mr. Curtis. A copy of this order shall forthwith be served upon Deborah Curtis and Cecil Evans.
That Deborah Curtis is enjoined and restrained from disposing of, mortgaging or encumbering or giving away any of the assets of Gary's Golf Course in Cheatham County, Tennessee, and including, but not limited to, all equipment and goods located at said golf course premises pending a final hearing of this cause.
That Deborah Curtis is enjoined and restrained from mortgaging, disposing of or giving away any of the assets of Star Electric Company, Inc., all pending further hearing of this cause.
That Cecil Evans is enjoined and restrained from mortgaging, disposing of, encumbering, transferring or giving away any or all of his right, title and interest in and to certain real property located in Cheatham County, Tennessee, formerly conveyed to Cecil Evans by Gary Curtis.
Mr. Curtis objects to the trial court's designation of his present wife and father-in-law as parties defendant, as well as the issuance of the injunctions. Mr. Curtis argues that Ms. Curtis was not allowed to join his wife and father-in-law as parties defendant pursuant to Tenn. R. Civ. P. 14 (requirements for one party to join additional parties), and because those parties did not voluntarily intervene in the litigation pursuant to Tenn. R. Civ. P. 24 (requirements for parties to intervene voluntarily), the joinder and injunctions should be dismissed. Those arguments overlook two other rules which allow the trial court to join and enjoin his wife and her father.
The trial court may join parties, pursuant to Tenn. R. Civ. P. 19.01, which states:
A person who is subject to the jurisdiction of the court shall be joined as a party if (1) in the person's absence complete relief cannot be accorded among those already parties . . . If the person has not been so joined, the court shall order that the person be made a party. . . .
The trial court's jurisdiction over these defendants has not been questioned. The trial court implicitly found that "complete relief cannot be accorded" to Ms. Curtis in the absence of these two defendants, and the evidence does not preponderate against that finding. Quite simply, they "own" Mr. Curtis's assets.
The added defendants were served with the court's order. Neither has contested the trial court's ruling by special appearance or otherwise and neither has asserted that the trial court lacked personal jurisdiction over them.
Regarding the injunctions, a domestic relations court has broad powers, pursuant to Tenn. R. Civ. P. 65.07, which states:
. . . In domestic relations cases, restraining orders or injunctions may be issued upon such terms and conditions and remain in force for such time as shall seem just and proper to the judge to whom application therefor is made, and the provisions of this Rule shall be followed only insofar as deemed appropriate by such judge.
This rule has been interpreted as providing the trial court with flexibility, on its own motion, to issue restraining orders, as necessary. Wilson v. Wilson, 987 S.W.2d 565-66 (Tenn.Ct.App. 1998). In the case before us, the trial court deemed it "just and proper" to enjoin the parties defendant from disposing of or encumbering Mr. Curtis's property, so that Ms. Curtis's alimony could be paid. We hold that the trial court properly joined Deborah Curtis and Cecil Evans as parties defendant and enjoined them from encumbering or disposing of assets transferred to them by Mr. Curtis.
It is well settled that courts have the power to set aside a fraudulent conveyance made to defeat a spouse's right to alimony. McClure v. Stegall, 729 S.W.2d 263, 265 (Tenn.Ct.App. 1987). In this case, the trial court did not set aside the transactions, but took other steps to protect Ms. Curtis's right to support payments awarded her in 1995. We find no error in the trial court's actions.
V.
We affirm the trial court's denial of Mr. Curtis's petition to reduce alimony payments, the criminal contempt convictions, and the joinder of Deborah Curtis and Cecil Evans as defendants and the injunctions against their disposal of the assets. This case is remanded for such further proceedings as may be necessary. Costs are taxed to the appellant, Gary Leroy Curtis, for which execution may issue if necessary.