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Howell v. Howell7/31/2000
n fact, this court has noted that "on an issue which hinges on witness credibility, [the trial judge] will not be reversed unless, other than the oral testimony of the witnesses, there is found in the record clear, concrete and convincing evidence to the contrary." Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn. Ct. App. 1974). Upon examining the record, we do not find any "clear, concrete and convincing evidence" that is contrary to the trial court's determination of this issue. Husband's argument is without merit.
Husband next argues that the trial court erred in finding him in civil contempt and in ordering him to pay Wife the amount of the unpaid life insurance premiums. We hold that a finding of civil contempt is inappropriate in this case and thus reverse the trial court on this issue.
Civil contempt is remedial in nature; its purpose is to coerce the contemnor into complying with the court's order. Robinson v. Gaines, 725 S.W.2d 692, 694 (Tenn. Crim. App. 1986). In this case, Husband was in compliance at the time of the hearing, having designated Wife as the beneficiary of the Valley Forge policy the day before the hearing. Because Husband did not have to be coerced into presently complying with the divorce judgment, a finding of civil contempt is not supported by the evidence. While Husband may have been guilty of criminal contempt for his failure to maintain life insurance in the past, this case was not tried as one for criminal contempt; thus, the judgment cannot be affirmed on that basis.
Finally, Husband appeals the award of attorney's fees. An award of attorney's fees is within the discretion of the trial court, and we will not reverse an award absent an abuse of that discretion. See T.C.A. ยง 36-5-103(c) (Supp. 1999). See also, Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn. 1995). We do not find that the trial court abused its discretion in ordering Husband to pay half of Wife's attorney's fees. This issue is also without merit.
V. Conclusion
The order of the trial court awarding Wife an amount approximating the unpaid insurance premiums is reversed. In all other respects, the judgment of the trial court is affirmed. Costs on appeal are taxed to the parties equally. This case is remanded for such further proceedings, if any, as may be required and for collection of costs assessed below, all pursuant to applicable law.
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