In Re: Conner F. ( 2017 )

07/26/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 20, 2017 Session
IN RE CONNER F.
Appeal from the Juvenile Court for Hamilton County
No. 258891 Robert D. Philyaw, Judge
___________________________________
No. E2015-02502-COA-R3-JV
___________________________________
This appeal concerns issues of custody and support of a minor child born in Colorado, but
now residing in Tennessee. After determining that jurisdiction was proper in Tennessee,
the trial court designated the mother, a resident of Tennessee, the primary residential
parent and adopted her proposed parenting plan. Child support for the father, a resident
of Colorado, was set at $1,017 per month. An arrearage balance of $23,428.38 was
ordered paid at the rate of $200 per month until paid in full. The father appeals. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and D. MICHAEL SWINEY, C.J., joined.
Philip M. Jacobs, Cleveland, Tennessee, for the appellant, Justin F.
Jennifer K. Peck, Chattanooga, Tennessee, for the appellee, Amanda Christine K.
OPINION
I. BACKGROUND
The parties met while Amanda Christine K. (“Mother”) was residing in Hamilton
County, Tennessee and making trips to work at the Ocoee River on the weekends, where
Justin F. (“Father”) was living and working. The parties moved to Colorado in 2011.
They were unmarried at the time of the birth of their child, Conner (“the Child”) in
November of 2012, and have remained unmarried. According to Father, he was the
Child’s initial primary caregiver for approximately four months while they lived in
Colorado. In March 2013, Mother and Father moved in with the maternal grandmother in
Tennessee. Two months later, Father moved to Costa Rica. Mother and the Child
resided exclusively in Hamilton County with maternal grandmother until June 2013, at
which time they joined Father in Costa Rica.
Prior to moving to Costa Rica, Father registered his vehicle and a trailer in
Tennessee, and after only three months out of the country, Mother and Father returned to
Tennessee with the Child. On December 7, 2013, however, Mother and Father mutually
agreed to terminate their relationship. Mother and the Child continued living with
maternal grandmother until Mother purchased a Hamilton County home in October 2014.
After the breakup, Mother claims that Father became aggressive and ordered
maternal grandmother to unwrap the Christmas presents Father had purchased for the
Child so that he could take them with him. According to Mother, Father insisted that if
the presents were not unwrapped and returned to him, he would have Mother arrested for
theft, take the Child, and be back in Colorado with the Child before Mother could get out
of jail. After ultimately leaving for Colorado without the Child, Father did not return to
see his son until July 2, 2014. During this period of time, Father made trips to Florida
from Colorado, but stated that a side trip to see the Child during a trip to Florida “would
be 10 or more hours out of my way.”
Once he returned to Colorado, Father filed a Petition for Allocation of Parental
Rights in the District Court of La Plata County, Colorado, which was verified on
December 12, 2013. Mother thereafter filed a petition for child custody in Tennessee on
January 3, 2014. At the time of her petition, Mother and the Child had been residing in
Hamilton County for six of the previous thirteen months, and the majority of the Child’s
life. Mother was employed in Tennessee and had no plans to leave the state. Father
moved to dismiss Mother’s petition, but he acknowledged that the Child “had no other
state of residence and has lived in no state for 6 or more consecutive months.” On March
12, 2014, the Hamilton County Juvenile Court Magistrate (“the Tennessee Magistrate”)
issued an order stating the necessity for the court to hear proof to determine which court
should take jurisdiction over the case.
On April 11, 2014, the Colorado court issued an order on Mother’s Motion to
Dismiss Due to Inconvenient Forum, determining that it was appropriate for Tennessee to
exercise jurisdiction. The Colorado court relied on its discussion with the Tennessee
Magistrate pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”).1 The Colorado court concluded that “there was no home state” for the
1
Tenn. Code Ann. §§ 36-6-201 to -243. The UCCJEA, promulgated in 1997 by the National
Conference of Commissioners on Uniform State Laws, is a detailed jurisdictional statute that
“establishes standards for the initial entry of child custody determinations that will be entitled to
-2-
Child, that “the [C]hild ha[d] resided in Tennessee for nearly seven months, since
returning from Costa Rica,” and that “the [C]hild resided in Colorado for only four
months.” In addition, the court determined that “[t]he distance between Tennessee and
Colorado [was] large and [Father was] more able to bear the cost of traveling between
jurisdictions.” Further, the court found that “[t]he nature and location of evidence
required to resolve the pending litigation weigh[ed] in favor of Tennessee exercising
jurisdiction,” that Mother was receiving state assistance from the State of Tennessee, and
that Tennessee had the jurisdiction to decide both custody and support issues. The
Colorado court applied the factors listed in Colorado Revised Statutes section 14-13-207
to rule that Colorado was an inconvenient forum and that Tennessee could better resolve
all matters at issue.2
On April 21, 2014, the Tennessee Magistrate found that there was no home state
of the Child and that the concept of “extended home state jurisdiction” did not apply to
the facts of this case. The court announced:
After having considered the length of time the [C]hild has
resided outside the state of Colorado; the relative financial
circumstances of the parties; the distance between the two
states; and the fact that this Court is no less familiar with the
facts and issues to be considered, this Court is willing to
assert jurisdiction in the matter. Further this state has
provided financial benefits on behalf of the [C]hild, giving it
vested interest in the financial responsibilities of the
respective parents.
Having conferred with [the Colorado judge], it is apparent
Tennessee is a more convenient forum and the matter will be
set for hearing in this Court.
On July 23, 2014, the Tennessee Magistrate issued an order sustaining Mother’s petition
for custody and designating Mother the primary residential parent. The court adopted
Mother’s proposed parenting plan, which provided for Father to visit with the Child in
Tennessee. The court noted in its findings and recommendation:
The court has concerns regarding the Father’s continued
financial stability in that he is unable to obtain a credit card
full faith and credit in all fifty states as a matter of federal law.” Staats v. McKinnon, 206
S.W.3d 532, 544 (Tenn. Ct. App. 2006). The UCCJEA became effective in Tennessee on June
14, 1999. 1999 Tenn. Pub. Acts, ch. 389, §§ 1-46.
2
The Colorado court ordered Father to pay $5,000 in attorney fees to Mother.
-3-
and has had to use the mother’s credit cards for his business
expenses. However, the Father is in a better position at
present to handle the costs of transportation for parenting
time. Fairness seems to suggest that the cost of
transportation to and from Colorado should form the basis
for downward deviation in the Father’s child support
obligations.
(Emphasis added.)
Father filed a timely request for rehearing. In text messages to Mother, Father
stated, “I will continue taking you to Court over everything until Conner is eighteen.” In
addition, Father advised Mother that he would request that she be responsible for 50
percent of his travel and lodging and the travel expenses of his witnesses. He further told
her that the child support she would receive would be reduced and that “travel and
lodging has already added up to you being responsible for at least a couple thousand
dollars.”
The juvenile court trial was held March 11, May 22, and August 31, 2015.
Regarding the issue of travel expenses, Mother testified to her inability to make trips to
Colorado based on her work limitations and her limited financial circumstances. In
contrast, Father, when asked what he did for a living, responded: “Very little,
fortunately.” Father continued: “But for the most part, to be honest with you, I play in
my garden and field phone calls.” Concerning the travel expenses, Father testified:
A: My perspective was that I -- you know, I have been
spending so much money traveling back and forth to see my
son that I thought that, you, know, the Court would take what
I was spending in travel expenses toward the child support.
Q: How do your travel expenses provide her housing, food,
things like that for your child?
A: They don’t.
Q: Okay. But you expected the Court to say that since you’re
paying travel expenses, you didn’t have to pay child support?
A: Yes, ma’am.
Father requested that the court credit him for mileage in the amount of $2,451 for
July 2014, and $1,995 each month from August through November 2014, despite his
acknowledgment that the maximum cost would be approximately $1,000 roundtrip. For
-4-
December 2014, Father sought credit in the amount of $3,026.14 ($1,656.40 for airfare),
despite previously testifying that roundtrip flights were approximately $500. Father
acknowledged that “I’m often purchasing my flights last minute.” Father also admitted
that he typically rented a Sport Utility Vehicle during his trips to Chattanooga, including
a Suburban. Father claimed that he paid his friend’s parents $300 to stay at their home in
July 2014, but he could not produce a receipt to reflect the stay.
Mother responded that flights were only approximately $400 if booked in advance
and that Father largely wrote his personal expenses off as a business expense. In
addition, maternal grandmother testified that Father inquired about talking with the
maternal grandfather to discuss how to hide funds when one owns his own business.
In 2011, Father asserted that he earned approximately $80,000, and that he netted
up to $2,000 per truck at his business (approximately seven trucks). In 2013, he declared
to maternal grandmother that he had reached his goal of earning $100,000 per year. In
addition, Father’s roommate paid him $700 per month toward rent and he wrote off half
the rent as a business expense. However, Mother’s requests for child support were
challenged: “[W]hat are u needing cash for? U saw the Walmart card was for $75. . . . His
every need can be filled by items purchased from Walmart. . . .” From December 2014 to
February 2016, Father only paid a total of $3,100 in child support, including some credit
for the Walmart gift cards. Father only provided support 8 out of 15 months.
Father acknowledged gross receipts for his company in 2013 from one vendor of
$368,814.06 and paying himself a substantial amount during that time. After 2013,
however, Father claimed that he had to cut back what he was paying himself because
things started getting “rough.” He could not explain, however, the 1099 from one vendor
in 2014 in the amount of $842,943.51 if the reason he cut back his payments to himself
resulted from business difficulties. Father also maintained 2 horses, 130 chickens, and 30
ducks.
Father filed with the Colorado court a signed and notarized Self-Employed Party’s
Sworn Statement reflecting that he earned $5,000 per month. At trial, however, Father
asserted that he only earned approximately $3,200 per month. Father’s bank statements
showed $5,400 deposited into his personal account in February 2014. Deposits for the
following months were as follows: March $6,900; April $7,000; July $3,200. Father
went from an average of $6,500 per month to exactly $3,200 the same month that the
child support hearing was held. Further, Father had spent thousands of dollars at
restaurants, dive shops, bait shops, and trips to Florida out of the business account. He
admitted that expenses he had claimed for the Child each month were not true.
On September 10, 2015, the trial court issued a memorandum opinion regarding
all issues in this case. The court upheld the decision of the Tennessee Magistrate that
designated Mother as the primary residential parent and adopted Mother’s proposed
-5-
permanent parenting plan. The court found that “[t]he parties met while working in
Tennessee . . . approximately eight years ago” and that they subsequently resided in
Tennessee, Colorado, and Costa Rica. The child resided solely with Mother in Tennessee
from March 15, 2013, to June 5, 2013, before going to Costa Rica for a few months.
“Mother and child never returned to Colorado to live,” and “[t]he child has lived all but
275 days of his life in Tennessee.” The parties registered a vehicle and other personal
property in Tennessee prior to their trip to Costa Rica. “[T]here is also some indication
that Tennessee has provided financial benefits on behalf of the child, thus giving it a
vested interest in the financial responsibilities of the respective parents.” The court also
concluded that there is not a home state of the Child, but that the Child has resided
outside of Colorado for a considerable length of time, that “Tennessee is a more
convenient forum,” and that the parties have substantial connections with Tennessee.
The court further found it significant that Mother owned her own home in Hamilton
County and the Child had strong relationships with local family members. Accordingly,
the court determined that it had jurisdiction over this matter.
Regarding the financial issues of the parties, the court observed that “Father
abused his financial relationship with Mother” by excessively using her credit cards for
his business, leaving her in debt. The court further noted that although Father now
“bragged about having a lot of income and spending like someone who has a lot of
income, he claim[ed] to be limited in his ability to pay child support.” Based on the
evidence and testimony, the trial court set Father’s income at $5,000 per month. The
court concluded that Father had a child support arrearage balance of $23,428.38 as of
September 1, 2015, to be paid at a rate of $200 per month until fully satisfied. Father’s
child support was set at $1,017 per month, beginning October 1, 2015. The court agreed
with the Tennessee Magistrate that fairness may require a downward deviation for
Father’s travel expenses in the future, but no credit on Father’s child support arrearage or
current support obligation was proper at this time. Father filed a timely appeal.
II. ISSUES
Father raises the following issues in this appeal:
1. Jurisdiction properly rested with Colorado rather than
Tennessee because Tennessee was not the Child’s home state
at the time the legal proceedings was commenced;
2. The trial court erred in setting child support when the court
did not have personal jurisdiction over Father.
3. The trial court erred in failing to grant a downward
deviation under the child support guidelines based upon the
-6-
significant travel expenses incurred to visit the Child.
4. The trial court improperly calculated Father’s income for
determining child support.
III. STANDARD OF REVIEW
We review the trial court’s conclusions of law de novo, with no presumption of
correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). In reviewing any
findings of fact made by the trial court without a jury, we review the trial court’s factual
findings de novo “accompanied by a presumption of correctness of the finding, unless the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d); In re C.K.G., 173
S.W.3d 714, 732 (Tenn. 2005).
Statutory interpretation is a question of law, so the questions concerning the trial
court’s assertion of jurisdiction in Tennessee and assertion of personal jurisdiction over
Father in Tennessee will be reviewed de novo. Mills v. Fulmarque, 360 S.W.3d 362, 366
(Tenn. 2012).
Trial courts have the opportunity to hear and see the witnesses testify and,
therefore, are normally in the best position to judge their credibility. Masengale v.
Masengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995). Consequently, this court
accords great weight to the trial court’s determination of credibility. Gaskell v. Gaskill,
936 S.W.2d 626, 633 (Tenn. Ct. App. 1996), and we routinely decline to second-guess a
trial court’s credibility determinations unless there is concrete, clear, and convincing
evidence to the contrary. Thompson v. Creswell Indus. Supply, Inc., 936 S.W.2d 955,
957 (Tenn. Ct. App. 1996).
“In making the court’s determination concerning the amount of support of any
minor child or children of the parties, the court shall apply, as a rebuttable presumption,
the child support guidelines” that are promulgated by the Tennessee Department of
Human Services Child Support Service Division. Tenn. Code Ann. § 36-5-101(e)(1)(A).
The setting of child support is a discretionary matter we review using the deferential
“abuse of discretion” standard of review, which requires the court “to consider (1)
whether the decision has a sufficient evidentiary foundation, (2) whether the court
correctly identified and properly applied the appropriate legal principles, and (3) whether
the decision is within the range of acceptable alternatives.” State ex rel. Vaughn v.
Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).
-7-
IV. DISCUSSION
a.
The UCCJEA governs jurisdiction between Tennessee and other states when a
child custody proceeding is instituted. Button v. Waite, 208 S.W.3d 366, 369 (Tenn.
2006). In the UCCJEA, “home state” is defined as “the state in which a child lived with a
parent or a person acting as a parent for at least six (6) consecutive months immediately
before the commencement of a child custody proceeding. In the case of a child less than
six (6) months of age, ‘home state’ means the state in which the child lived from birth
with any of the persons mentioned . . . .” Tenn. Code Ann. § 36-6-205(7): It is
undisputed that the Child was born in Colorado; however, he resided there for less than
six months. Both parents then moved to Tennessee. First, Mother and Father moved in
with the Child’s maternal grandmother in Hamilton County for approximately three
months. While living in Tennessee, the parties registered personal property here,
including Father’s vehicle. Next, Mother left the country, living in Costa Rica for three
months with the Child. Upon the return of Mother and the Child from Costa Rica, the
parties resumed their residence with the Child’s maternal grandmother. Mother and
Father decided to end their relationship three months after returning from Costa Rica.
Mother remained with the Child in Tennessee.
Upon Father’s filing for custody in Colorado and Mother’s filing for custody in
Tennessee, Colorado declined to exercise jurisdiction in this case. The Tennessee court
found that this state is a more convenient forum.
Tennessee Code Annotated section 36-6-216(a)(2) states, in relevant part, that
courts in Tennessee have jurisdiction to make initial custody determinations when:
[A] court of the home state of the child has declined to
exercise jurisdiction on the ground that this state is the more
appropriate forum under §§ 36-6-221 or 36-6-222, and:
(A) The child and the child’s parents, or the child and
at least one (1) parent . . . have a significant connection with
this state other than mere physical presence; and
(B) Substantial evidence is available in this state
concerning the child’s care, protection, training, and personal
relationships . . . .
Tenn. Code Ann. § 36-6-216(a)(2).
It is established that: (1) a minor child lacks the capacity to change his own
-8-
domicile; (2) domicile of a minor child is controlled by that of the person charged with
his legal care and custody; (3) whenever the domicile of a parent having custody changes,
the minor’s domicile necessarily follows it; and (4) the domicile of a minor child residing
with its mother follows the domicile of the mother. Parrott v. Abraham, 146 S.W.3d
623, 628 (Tenn. Ct. App. 2003) (internal citations omitted). Further, to change domicile
or legal residence, a mother must actually change her residence, desire to abandon her old
domicile, and intend to establish a new domicile at a new residence. Id. It is “the
intention of the person at the time of arrival at the new residence which is most important
in determining domicile.” Id. (internal citations omitted). As long as physical presence
in the locality and an intention to acquire a domicile there occur concurrently, the length
of residence is not a factor in the establishment of domicile. Id. Finally, “when both
parents leave the ‘home state,’ it loses its status in favor of such new domicile as is
established for the child.” Id. at 624 (internal citations omitted).
The Child’s domicile is dependent upon Mother’s because she maintained custody
of him throughout the relevant time period. Mother’s move to Tennessee in March 2013
is the correct date for her change in domicile. Mother and Father’s registry of property in
Tennessee establishes a preponderance of the evidence that they intended to abandon
their residence in Colorado and become domiciled in Tennessee. Colorado lost it favor
as the home state to Tennessee when both parents left Colorado with the intention of
changing their domicile.
Furthermore, Colorado declined to exercise jurisdiction over this matter, and the
Child and Mother had a significant connection with Tennessee due to Mother changing
her domicile to this state. There is also substantial evidence in Tennessee concerning the
Child’s care, protection, training, and personal relationships. The preponderance of the
evidence supports the trial court’s determination that Tennessee correctly asserted
jurisdiction in this matter.
b.
Father did not enter any filing that objected to Tennessee’s jurisdiction until he
filed an official answer on July 23, 2014. In the intervening period, his counsel filed
many motions on Father’s behalf, having the effect of entering his appearance.
According to Tennessee Code Annotated section 36-5-2201(a)(2), “[t]he individual
submits to the jurisdiction of this state by consent in a record, by entering a general
appearance, or by filing a responsive document having the effect of waiving any contest
to personal jurisdiction.” Father waived any objection he had to the court exercising
personal jurisdiction over him when his attorney failed to enter a restrictive appearance
for purposes of determining jurisdiction.
Additionally, pursuant to Tennessee Code Annotated section 71-3-124(a)(1):
-9-
Each applicant or recipient who received or authorizes
payment of public or temporary assistance pursuant to Title
IV-A or Title IV-E of the Social Security Act, compiled in 42
U.S.C. §601, et seq. and 42 U.S.C. §670, et seq., respectively,
or any successor program providing temporary assistance or
foster care or adoption assistance shall be deemed to have
assigned to the state any rights to support from any other
person such applicant or recipient may have: (A) In the
applicant’s own behalf or in behalf of any other family
member for whom the applicant is applying for or receiving
aid; and (B) That have accrued at the time such assignment is
executed.
According to Tennessee Code Annotated section 71-3-124(a)(3), “[d]uring the terms of
such assignment, the department shall be subrogated to the rights of the child or children
or the person having custody to collect and receive all child support payments.”
In this case, Mother was receiving public assistance at the time that she filed her
petition for custody and requested the court to set support. Upon receipt of public
assistance, Mother was deemed to have assigned her rights to recover child support to the
State of Tennessee. Thus, Tennessee has a vested interest in assisting Mother to receive
child support from Father.
Father actively availed himself of the courts in Tennessee without objection to
personal jurisdiction. In addition, Father had substantial ties to Tennessee, having lived
for at least three months in Tennessee after returning from Costa Rica, and having
registered property in the state prior to leaving for Costa Rica. The court properly
assessed the facts of this particular case and determined that the requisite affiliating
circumstances were present to assert personal jurisdiction over Father.
c.
The purpose of the child support guidelines, first promulgated in 1988, is to assure
that children receive support reasonably consistent with their parents’ financial resources.
Kaatrude, 21 S.W.3d 244 at 49. The amount of child support calculated under the
guideline formula is presumptively correct. Tenn. Comp. R. & Regs. 4. 12140-2-4-
.02(7). The obligor parent’s income is the most important variable in setting child
support. Turner v. Turner, 919 S.W.2d 340, 344 (Tenn. Ct. App. 1995).
Pursuant to the guidelines:
The tribunal may order as deviation an amount of support
- 10 -
different from the amount of the presumptive child support
order if the deviation complies with the requirements of this
paragraph (1) and with this chapter. The amount or method
of such deviation is within the discretion of the tribunal
provided, however, the tribunal must state in its order the
basis for the deviation and the amount the child support order
would have been without the deviation. In deviating from the
Guidelines, primary consideration must be given to the best
interest of the child for whom support under these Guidelines
is being determined.
Tenn. Comp. R. & Regs. 1240-02-04.07(1)(b). The guidelines further emphasize the
purely discretionary language of the section above by stating that, “If parenting time-
related travel expenses are substantial due to the distance between the parents, the
tribunal may order the allocation of such costs by deviation from the PCSO [Presumed
Child Support Obligation], taking into consideration the circumstances of the respective
parties as well as which parent moved and the reason that the move was made.” Tenn.
Comp. R. & Regs. 1240-02-04-.07(2)(c).
In this case, the trial court acknowledged that there may be substantial travel
expenses related to the exercise of parenting time on the part of Father. However, the
court determined that a downward deviation was not appropriate at the time based upon
the relevant financial situation, employment obligation, and ease of travel or lack thereof
for both parties. Significantly, the court properly took into consideration Father’s
voluntary decision to live in Colorado. See Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(c);
Long v. Long, No. M2006-02526-COA-R3-CV, 2008 WL 2649645, at *12 (Tenn. Ct.
App. July 3, 2008). The trial court had the opportunity to hear and see the witnesses
testify and, therefore, was in the best position to judge their credibility. Mitchell v.
Archibald, 971 S.W.2d 25, 29 (Tenn. Ct. App. 1998). Accordingly, we decline to
second-guess the trial court’s determinations without sufficient proof. Thompson, 936
S.W.2d at 957. We find no abuse of the court’s discretion in its ruling on this issue.
d.
Appellate courts review child support decisions using the deferential abuse of
discretion standard. Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005).
“We will not reverse the trial court’s decision unless we determine it is clearly
unreasonable based on the facts of the case and the applicable law.” Yates v. Yates, No.
M2015-00667-COA-R3-CV, 2016 WL 748561, at *11 (Tenn. Ct. App. Feb. 24, 2016);
see Richardson, 189 S.W.3d at 725.
In determining a parent’s income for the purpose of setting child support, the
guidelines provide:
- 11 -
[The] gross income of each parent shall be determined in the
process of setting the presumptive child support order and
shall include all income from any source (before deductions
for taxes and other deductions such as credits for other
qualified children), whether earned or unearned, and
includes, but is not limited to, the following: wages; salaries;
. . . income from self-employment; bonuses; . . . Interest
income; Dividend income; trust income. . . .
Tenn. Comp. R. & Regs. 1240-02-04.04(3)(a)(1). In addition, the court may consider “a
parent’s extravagant lifestyle, including ownership of valuable assets and resources (such
as an expensive home or automobile), that appears inappropriate or unreasonable for the
income claimed by the parent.” Tenn. Comp. R. & Regs. 1240-02-04.04(3)(a)(2).
The record reflects that Father gave many different sworn statements about his
monthly income. Specifically, Father claimed that he earned approximately $80,000 in
2011, and then asserted to maternal grandmother while in Costa Rica in 2013 that he had
reached his goal of earning $100,000 per year. He also stated that he was earning
approximately $14,000 per month from his trucking business, in addition to the rent of
$700 his roommate paid him per month. In a sworn document provided to the State of
Colorado, Father claimed that he made $5,000 per month. In yet another sworn oath,
Father claimed that he only earned $3,200 per month.
Father’s bank statements revealed that he went from an average of $6,500 per
month to exactly $3,200 the same month that the first child support hearing was held.
The court also heard testimony regarding the thousands of dollars Father spent on
restaurants, dive shops, bait shops, and trips to Florida out of Father’s “business
account.” Additionally, Father had horses and other livestock inconsistent with a limited
income. Further, Father maintained exorbitant travel expenses, including last minute
flights and SUV rentals while visiting the Child. His testimony that he paid his
operations manager the same amount he paid himself also does not align with a business
owner who travels and spends excessively.
Based on all of the evidence and testimony, the trial court set Father’s income at
$5,000 per month. Father contends that the court did not make the requisite findings to
explain how it reached this amount. He urges recalculation of child support based upon
his actual income.
We find no abuse of discretion in the trial court’s calculation of Father’s gross
income. We have previously held that “gross income” is not limited to the income shown
on a parent’s tax return. See Wade v. Wade, 115 S.W.3d 917, 922 (Tenn. Ct. App. 2002).
The trial court made the requisite findings of fact with sufficient evidentiary foundation
- 12 -
and reached a decision that was well within the range of acceptable alternatives.
V. CONCLUSION
The decision of the juvenile court is affirmed and the cause is remanded pursuant
to applicable law, for the collection of costs assessed below. Costs on appeal are
assessed against the appellant, Justin F.
_________________________________
JOHN W. MCCLARTY, JUDGE
- 13 -