This Court granted the application for discretionary appeal of Bryan A. Jett “Husband” from the trial court’s order on a petition for contempt in this divorce case. For the reasons that follow, we affirm in part and reverse in part. Husband and Nikita S. Jett “Wife” were divorced on October 3, 2007. The decree of divorce incorporated a settlement agreement, which provided that the marital residence property Marital Residence . . . will be placed on the market for sale at a price that is mutually agreeable to both parties. The parties agree that all net proceeds, after closing costs and satisfaction of any and all liens, from the sale of the Marital Residence will be divided equally 50/50 between Wife and Husband at the time of closing. Until the time of closing, Husband will be responsible for all expenses on said Marital Residence, including mortgage, insurance taxes, utilities and upkeep . . . . The parties agree that, should the Marital Residence not sell within two 2 years from the date of this agreement, Wife shall Quit Claim her interest in the Marital Residence to Husband, and Husband shall 1 own the Marital Residence free and clear from any claim from Wife, 2 refinance the Marital Residence, and 3 pay Wife one-half of the equity in the Marital Residence at the time of refinancing. Husband placed the marital residence on the market, but it did not sell within two years. He remarried and purchased another house, which was titled in both his name and that of his new wife; this home was encumbered by a $315,000 debt, which was solely in Husband’s name. Husband’s subsequent attempts to refinance the marital residence were unsuccessful, and Wife filed her petition for a finding of contempt. At two hearings on the petition, evidence was presented that: Husband’s debt on his new house negatively impacted his debt-to-income ratio and he would not be able to “qualify for two homes at this point so there’s no way that anybody is going to let him refinance a house or buy another home”; the marital residence was worth $101,000, and the outstanding debt on that house was $158,000; there was no reasonable expectation that a lender would refinance the marital residence under these circumstances; Husband had continuously listed the house for sale; the marital residence was listed for sale at the time of the second hearing; and before the second hearing, Husband had executed a two-year lease purchase agreement with a tenant who had previously rented the marital residence for over a year.
The trial court’s written order found Husband in contempt and ordered him incarcerated for five days. The order set forth that: Upon his release . . . Husband shall sell or liquidate all available accounts and property and shall pay down the mortgage at issue. The only way to know if he can refinance this property in his own name is to require that he pay down the mortgage to the greatest extent possible. In doing so, he will potentially be in a position to refinance the former martial residence in his own name, or allow the tenant to qualify for a mortgage herself. The order further stated:
