Elizabeth LaFon Western Vinson v. James Gerald Vinson ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
April 16, 2013 Session
ELIZABETH LaFON WESTERN VINSON
v. JAMES GERALD VINSON
Direct Appeal from the Chancery Court for Henderson County
No. 25171 James F. Butler, Chancellor
No. W2012-01378-COA-R3-CV - Filed September 11, 2013
This is an appeal from a final decree of divorce. Father challenges numerous rulings by the
trial court, regarding both parenting issues and financial issues. We affirm in part, as
modified, we reverse in part, and we remand for further proceedings consistent with this
opinion.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part, as Modified, Reversed in Part and Remanded
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.
James Gerald Vinson, Enville, TN, pro se
(David W. Camp, Jackson, TN, filed a brief on behalf of Mr. Vinson but was allowed to
withdraw as counsel by order of the Court dated February 4, 2013.)
C. Timothy Crocker, Michael A. Carter, J. Noble Grant, III, Ryan L. Hall, Milan, Tennessee,
for the appellee, Elizabeth LaFon Western Vinson
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
Elizabeth Vinson (“Mother”) and James Vinson (“Father”) were married in 1997. The
parties have two sons, who were born in 1998 and in 2001. Mother filed a complaint for
divorce in March of 2011, alleging adultery, among other things. Father filed an answer,
denying the allegations of adultery, and he filed a countercomplaint for divorce. Both parties
sought to be named primary residential parent of the two sons, who were then ages nine and
twelve.
Father is a paramedic, and Mother is a registered nurse. The parties had jointly filed
for Chapter 13 bankruptcy during the marriage. As a result, all of their debts – which
included two mortgages on the marital residence, credit card bills, medical bills, the notes on
their two vehicles, and Father’s student loans – had been combined into a single monthly
payment of approximately $2,240. Father and Mother had nearly equal amounts withdrawn
from their paychecks each month to meet the payment obligation required under the
bankruptcy plan. They were still under the bankruptcy plan when the divorce proceedings
were filed, and their bankruptcy obligation was scheduled to continue until November 2014.
The parties attended mediation in June 2011 and signed a “Mediated Agreement” that
resolved some of the issues involved with the divorce. They agreed that Mother would be
named primary residential parent, and they adopted a parenting schedule for the summer of
2011 whereby Father would have parenting time one day every week and one full weekend
per month. Each parent also had one week of parenting time designated for their summer
vacations. Father was ordered to pay $571 in child support per month “until further Orders
of the Court.” The parties agreed “to continue to equally divide the Chapter 13 bankruptcy
payment.” Finally, the parties agreed that Mother would use a $13,000 car wreck settlement
that she was scheduled to receive in order to pay “for medical bills and to repay her Father,”
and Mother was directed to provide an itemized accounting of those expenditures to Father’s
attorney. All other issues were reserved for trial.
The divorce trial took place in April 2012. The trial court adopted and ratified the
Mediated Agreement previously signed by the parties, resolved the remaining issues, and
entered a final decree of divorce in May 2012. Specifically, the trial court granted a divorce
to Mother on the grounds of adultery, divided the parties’ marital estate, required the parties
to continue to contribute equally toward the bankruptcy payment, named Mother primary
residential parent and adopted her proposed parenting plan, ordered Father to pay child
support, declined to award alimony, and ordered Father to pay $5,000 of Mother’s attorney’s
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fees. Father timely filed a notice of appeal.
II. I SSUES P RESENTED
On appeal, Father presents two issues for review, which we quote from his brief:
1. Did the trial court err when it found that the “mediated agreement”
signed by the parties on June 2, 2011 was valid and enforceable and
then ratified and confirmed the “mediated agreement” but contradicted
the terms of said agreement in it’s [sic] final ruling; and
2. Did the trial court erred [sic] when it awarded partial attorney fees in
the amount of $5,000.00 after making a finding that the court is unable
to approve [Mother’s] request for attorney fees.
Mother seeks an award of attorney’s fees on appeal. For the following reasons, we affirm
in part, as modified, we reverse in part, and we remand for further proceedings.
III. S TANDARD OF R EVIEW
On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to
preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999)). We review a trial court’s conclusions of law under a de novo standard upon the
record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788
S.W.2d 815, 817 (Tenn. Ct. App. 1989)).
IV. D ISCUSSION
A. Consistency with the Mediated Agreement
We will begin by considering Father’s assertion that the trial court’s final ruling
“contradicted” the terms of the Mediated Agreement. Father argues that “[t]he Final Decree
of Divorce, Permanent Parenting Plan and Child Support Worksheet entered in this matter
does not properly reflect the terms of the ‘Mediated Agreement’ or the letter ruling of the
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Court.” He contends that there are “inconsistencies” in these documents with regard to
several specific rulings on various issues.
1. Provisions of the Parenting Plan
Father challenges several of the trial court’s rulings regarding specific details of the
parenting plan. At the outset, we note our agreement with Mother’s argument that the trial
court was not bound by the parties’ Mediated Agreement regarding these issues. “The trial
court should, of course, consider any agreement by the parties as to parenting issues,
including the residential parenting schedule. The trial court is not, however, bound by such
an agreement, but instead must evaluate whether the agreed arrangement is in the best
interest of the children.” Greer v. Greer, No. W2009-01587-COA-R3-CV, 2010 WL
3852321, at *7 (Tenn. Ct. App. Sept. 30, 2010) (citing Tuetken v. Tuetken, 320 S.W.3d 262(Tenn. 2010); Coats v. Coats, No. M2007-01219-COA-R3-CV, 2008 WL 4560238, at *11
(Tenn. Ct. App. Oct. 8, 2008)). As we noted in Greer,
While an agreement on parenting issues would ideally reflect the parties’
considered judgment on the arrangement that would best fit the needs of their
children, it is also recognized that other factors can come into play in such an
agreement, such as the original dysfunction in the parties’ relationship,
inequality of resources, reluctance to involve the children in the litigation, or
even the parties’ desire to get the divorce “over with.” For that reason, the
trial court has broad discretion to determine an appropriate parenting plan in
light of the evidence adduced at a hearing and the best interest of the children,
even where the parties have reached an agreement on such issues.
Id. at *7. Simply put, “parents cannot bind the court with an agreement affecting the best
interest of their children,” so the trial court was not bound to approve the mediated parenting
plan. See Fletcher v. Fletcher, No. M2010-01777-COA-R3-CV, 2011 WL 4447903, at *9
(Tenn. Ct. App. W.S. Sept. 26, 2011) (citing Tuetken, 320 S.W.3d at 272).
In this case, however, the trial court considered the children’s best interest and
ultimately did adopt and approve the parties’ Mediated Agreement.1 In the final decree of
1
Prior to trial, the judge made clear that he recognized his responsibility to consider the parenting
issues and that he did not intend to simply rubber-stamp the Mediated Agreement:
The Court finds that the 6/2/11 Mediated Agreement as signed by all parties and counsel is
a valid agreement. The parts having to do with the children are always subject to the
approval of The Court. The Court cannot abandon its responsibility to make sure that we
(continued...)
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divorce, the trial court stated that it “ratified and affirmed” the Mediated Agreement. The
decree further provided that the trial court approved Mother’s proposed parenting plan, but
that Mother’s proposed parenting plan “shall comply with the Mediated Agreement unless
the parties agree otherwise by signing a different plan.” Therefore, we will consider Father’s
arguments regarding the alleged inconsistencies between the Mediated Agreement and the
parenting plan in order to determine whether they “comply,” as the trial court intended.2
a. Father’s Weeknight Parenting Time
The Mediated Agreement provided that Father would have parenting time with the
children “during Summer of 2011 from 6:00 p.m. on Friday until 6:00 p.m. on Sunday one
weekend a month when Father is off work and one day every week from 9:00 a.m. until the
following day at 9:00 a.m. In the event that Mother is working, Father shall keep the minor
children until 6:00 p.m.” The parenting plan that was ultimately adopted by the trial court
provided that Father would have parenting time “from Friday at 6:00 p.m. to Sunday at 6:00
p.m. one weekend per month . . . . In addition, father shall have parenting time with their
children one night each week.” Father’s brief on appeal presents the following argument
challenging the trial court’s decision with regard to weeknight parenting time, which we
quote in full:
In the Permanent Parenting Plan attached to the Final Decree of Divorce the
mother did not include specific times within the day to day schedule but only
states “Father shall have parenting time with the children one night each
week.” In the testimony at trial Mother acknowledged her Proposed Parenting
Plan which was approved by the Trial Court differed from the Mediated
Agreement in this respect.
Thus, we interpret the basis of Father’s argument to be that the trial court should have
included specific time parameters for his weeknight parenting time in order to be consistent
with the Mediated Agreement.
We recognize that the trial court ordered the permanent parenting plan to “comply”
with the Mediated Agreement, but we find no conflict between the two as it relates to this
1
(...continued)
have an adequate Parenting Plan. So, The Court will, of course, review that, and the parties
are free to put on additional proof about that if this – if they disagree with what they've
agreed to here.
2
Both the Mediated Agreement and the final decree provided that Mother would be named primary
residential parent, and Father does not challenge this ruling on appeal.
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issue. Because the Mediated Agreement only addressed the summer of 2011, the trial court’s
permanent parenting plan, which obviously involves a different time period, does not
contradict the terms of the Mediated Agreement. In fact, it was impossible for the trial court
to continue the 9 a.m. to 9 a.m. hourly schedule for weekday visitation once the children
started school, so the court was necessarily required to adopt a different schedule than that
followed during the summer of 2011. In fashioning an appropriate, year-round parenting
schedule for the children, beyond the summer of 2011, the trial court was not limited to the
terms agreed upon by the parties in the past.
Considering the parties’ circumstances, we find no abuse of the trial courts’ discretion
in deciding not to specify a particular weeknight, or particular hours, for Father’s weekly
parenting time. At trial, Father testified that his work schedule as a paramedic consists of 24-
hour shifts, and he works 24 hours “on” and 48 hours “off.” Basically, he explained that he
works every third day. Father testified that his work schedule is developed by his supervisor
two months ahead of time, and that he has no input into formulating the schedule. Mother
testified that Father also has one weekend off per month, but that the particular weekend
“rotates,” so “it’s very unpredictable.” The proposed parenting plan submitted by Father
contained absolutely no specificity, as it simply stated, “Father is working a schedule of one
day every three days. The Father shall have the children on his days off.” At trial, Mother
testified that the parties could cooperate to make decisions regarding the children, despite the
animosity between them. Thus, we find no abuse of the trial court’s discretion with regard
to the lack of specificity in the parenting schedule.
Although not specifically mentioned in his brief, we note that during oral argument
before this Court, Father appeared pro se and argued that he should have been awarded more
parenting time with the children. He contended that one day per week was “not acceptable”
for a parent. Father noted that his oldest son, who was 13 years old, met with the trial judge
in chambers during the divorce proceedings and expressed his desire to have more parenting
time with Father. We note the stated preference of the child, but the trial judge certainly
heard and considered the child’s statements, and all of the other evidence in this case, before
it designed this particular parenting schedule. Father’s irregular work schedule makes it
difficult to fashion a workable arrangement. He acknowledged the difficulties it can present
during the divorce trial when he conceded that he only attended one of his son’s basketball
games during 2011 due to work obligations. Father had not been to a single parent-teacher
conference and did not know the name of either of his sons’ teachers. Requiring the children
to schedule their lives around Father’s unpredictable work schedule would be a heavy
burden. Courts must be mindful of the practical effect of a complex parenting schedule and
its impact on the children’s daily lives:
A parenting schedule that requires the child to shuttle frequently between
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households, whether implemented to accommodate parental work schedules
or in order to neatly divide the child's time between the parents, is most
onerous for the child who bears the brunt of the parents’ divorce. The child
must be ever mindful to have with her necessary school books, supplies,
clothing, or even toys or sports equipment, and must be vigilant to be ready to
gather her belongings at the appointed time for transportation to the other
parent’s house. Even mundane things such as making a play date with a friend
or scheduling an after-school activity require the child to ascertain in which
parent’s home she will be or who is picking her up and when. All children
must tolerate some of these considerations, and a child of divorced parents
must necessarily have a more complicated schedule than children from intact
homes, if the child is to have a meaningful relationship with both parents. But
a schedule that mandates such frequent back-and-forth, whether to
accommodate a parent’s work schedule or not, gives the child little opportunity
to have a sense of belonging, and time to simply be home becomes a luxury.
Thus, while virtually all divorced parents must work outside the home,
and some parents must work atypical hours, it is not punishment to the parent
to consider the effect of her work schedule on the child. Rather, it is the
court’s job to ensure that the everyday quality of the child’s life is not
sacrificed to meet the parents’ needs or desires. Consideration of how
“child-friendly” each parent’s schedule must necessarily be part of that
determination. “[T]he child’s best interest [is] the paramount consideration.
It is the polestar, the alpha and omega.” Bah v. Bah, 668 S.W.2d 663, 665
(Tenn. Ct. App. 1983) (emphasis in original).
Wall v. Wall, No. W2010-01069-COA-R3-CV, 2011 WL 2732269, at *27-28 (Tenn. Ct.
App. July 14, 2011). Considering the parties’ circumstances and the difficulty of formulating
a stable schedule, we find no abuse of the trial court’s discretion in deciding that Father
would have parenting time one weekend per month and one night per week.3
b. Summer Vacation
Father acknowledges that “the Mediated Agreement does not specify summer
schedule beyond the year of 2011.” Consequently, there is no inconsistency between the
3
We also note that when Father appeared pro se at oral argument, he discussed various ways in
which Mother had allegedly failed to comply with the final decree of divorce since it was entered. As an
appellate court, we are not in a position to consider those assertions, so we have not discussed them in this
opinion. Father’s recourse for such issues must be pursued in the trial court.
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Mediated Agreement and the parenting plan with respect to a summer schedule. However,
Father argues that the trial court erred in simply providing that each parent would have
parenting time for one full week during June and during July. He claims that “[a] more
specific schedule should have been provided” and “would have been more consistent with
the parties[’] intent.” Again, considering Father’s work schedule, and the fact that the trial
court required the parties to provide notice of the selected summer dates by May 1 of each
year, we find no abuse of discretion in the trial court’s decision.
c. Thanksgiving Break Schedule
The Mediated Agreement did not address Thanksgiving break, and therefore, the
permanent parenting plan does not conflict with the Mediated Agreement with respect to this
issue. Nevertheless, Father points out an internal conflict in the permanent parenting plan’s
provision regarding the Thanksgiving schedule. The parenting plan provides:
Thanksgiving Day and Friday: Mother shall have their children for Period one
from the time school is out until 3:00 p.m. on Thanksgiving Day in even years.
Father shall have their children for Period two from 3:00 p.m. Thanksgiving
Day until the regular exchange time on Friday. The parties shall alternate
Period one and Period two with the Mother having Period one in odd years and
the Father having Period one in even years.
(Emphasis added). There is a clear conflict between these two parts of the same provision.
Father argues on appeal that this error effectively gives Mother Period one every year.
Because the trial court unequivocally stated that the parties shall alternate periods, and the
even/odd conflict appears to be an unintended typographical error, we hold that the parties
must alternate periods during Thanksgiving break from year to year. The final decree of
divorce was entered in May 2012, so only one Thanksgiving has passed since the decree was
entered. The parent who had the children during Period one in 2012 shall have them during
Period two in 2013, and the parties shall continue to alternate thereafter.
d. Christmas Break Schedule
There is no conflict between the Mediated Agreement and the parenting plan with
regard to the Christmas break schedule, as the Mediated Agreement only addressed the
summer of 2011. However, Father argues that the parenting plan’s schedule for Christmas
break is, basically, unfair, because it divides the Christmas break into two periods and
provides that Mother will have Period one every year, rather than alternating. As a result,
Father will have the children every year from Christmas Day at 2 p.m. until the evening
before school resumes, but he will never have them on Christmas Eve or Christmas morning.
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Father contends that the parties should alternate periods.
Essentially the same similar argument was made in Smith v. Smith, No. M2006-
01390-COA-R3-CV, 2010 WL 288758, at *9 (Tenn. Ct. App. Jan. 25, 2010), where the trial
court entered a parenting plan that divided the Christmas break into two periods, and the
mother was to have the children for the first period every year. On appeal, the father argued
that “it is not in the best interests of the children that they never be allowed to spend
Christmas morning with their father.” Id. at *9. The Court of Appeals declined to modify
the trial court’s decision, stating, “the kind of modification Father would have this court
make amounts to the ‘tweaking’ we are not allowed to do.” Id. (citing Eldridge v. Eldridge,
42 S.W.3d 82, 88 (Tenn. 2001)). To clarify, in the Eldridge case referenced by the Court,
the Tennessee Supreme Court provided the following explanation regarding the role of an
appellate court in these matters:
It is not the function of appellate courts to tweak a visitation order in the hopes
of achieving a more reasonable result than the trial court. Appellate courts
correct errors. When no error in the trial court’s ruling is evident from the
record, the trial court’s ruling must stand. This maxim has special significance
in cases reviewed under the abuse of discretion standard. The abuse of
discretion standard recognizes that the trial court is in a better position than the
appellate court to make certain judgments. The abuse of discretion standard
does not require a trial court to render an ideal order, even in matters involving
visitation, to withstand reversal. Reversal should not result simply because the
appellate court found a “better” resolution. See State v. Franklin, 714 S.W.2d
252, 258 (Tenn. 1986) (“appellate court should not redetermine in retrospect
and on a cold record how the case could have been better tried”); cf. State v.
Pappas, 754 S.W.2d 620, 625 (Tenn. Crim. App. 1987) (affirming trial court’s
ruling under abuse of discretion standard while noting that action contrary to
action taken by the trial court was the better practice); Bradford v. Bradford,
51 Tenn. App. 101, 364 S.W.2d 509, 512-13 (1962) (same). An abuse of
discretion can be found only when the trial court’s ruling falls outside the
spectrum of rulings that might reasonably result from an application of the
correct legal standards to the evidence found in the record. See, e.g., State ex.
rel Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).
Eldridge, 42 S.W.3d at 88. Keeping these principles in mind, we cannot say that the trial
court abused its discretion in fashioning the parenting schedule for Christmas break. During
the divorce trial, Mother was asked why she thought it was appropriate for her to have the
children every year during the first period of Christmas break, and Mother replied, “He
normally does not ask for them during that time. They don’t have a get-together on
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Christmas.” Father did not dispute this contention during his testimony. Having heard the
evidence, the trial court formulated a plan that it determined was in the children’s best
interest. It is not our role to “tweak” the parenting plan to attempt to achieve a more
reasonable result.
e. Paramour provision
Again, the Mediated Agreement does not mention anything relevant to paramours, so
it is not inconsistent with the permanent parenting plan. Nevertheless, in the section of
Father’s brief regarding the issue of whether the documents are consistent, Father argues that
the trial court erred in adopting a parenting plan that contains a provision precluding him
from having a paramour spend the night in the presence of the children. Father was living
with his parents at the time of the divorce trial, but he points out that Mother testified that she
anticipated that he would move in with his girlfriend. Despite this recognition, Mother’s
proposed parenting plan prohibited the parties from having a paramour spend the night in the
presence of the children. Father did not raise the issue during trial. In fact, the parenting
plan proposed by Father contained the same prohibition. It stated, “Any paramour of either
parent to whom a parent is not legally married is not to spend the night in the presence of or
in the same residence with the minor child of the parties.” Therefore, Father is not entitled
to relief with regard to this issue. See Dye v. Witco Corp., 216 S.W.3d 317, 321 (Tenn.
2007) (quoting Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996)) (“issues raised for the
first time on appeal are waived”).
f. Child Support
Next, Father challenges the trial court’s decision to require him to pay $694 per month
in child support. Father argues that this ruling conflicts with the Mediated Agreement, which
provided that he would pay $571 per month “until further Orders of the Court.”
In Tennessee, parents are legally obligated to support their minor children in a manner
commensurate with their own means and station in life. Richardson v. Spanos, 189 S.W.3d
720, 724 (Tenn. Ct. App. 2005) (citing Tenn. Code Ann. § 34-1-102(a); Wade v. Wade, 115
S.W.3d 917, 920 (Tenn. Ct. App. 2002)). Since 1984, “the process and criteria for
ascertaining a parent’s child support obligation has been governed by Child Support
Guidelines promulgated by the Tennessee Department of Human Services” in accordance
with Tennessee Code Annotated section 36-5-101. Id. at 724-25. The Child Support
Guidelines, when properly applied, create a rebuttable presumption of the proper award of
child support. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005); see also Tenn. Code
Ann. § 36-5-101(e)(1)(A). “Although the trial courts retain an element of discretion to
deviate from the presumptive amounts, such discretionary decisions must take into
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consideration the applicable law and the relevant facts.” Reeder v. Reeder, 375 S.W.3d 268,
275 (Tenn. Ct. App. 2012) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)).
When a trial court decides it is appropriate to deviate from the presumptive amount of child
support, it must “make a written finding that the application of the child support guidelines
would be unjust or inappropriate in that particular case, in order to provide for the best
interest of the child or children, or the equity between the parties.” Tenn. Code Ann. §
36-5-101(e)(1)(A). In addition, the court’s findings must state the amount of support that
would have been ordered under the child support guidelines and a justification for the
variance from the guidelines. Id.
Parties may agree to a child support obligation that “exceeds the amount payable
directly to an obligee parent under the Guidelines and to a method of calculating child
support that differs from the mechanism contemplated by the Guidelines as long as the
resulting child support meets or exceeds the amount mandated under the Guidelines.” Kesser
v. Kesser, 201 S.W.3d 636, 642 (Tenn. 2006). Therefore, trial courts must find that the
parties’ agreement meets the minimum child support obligation provided under the
Guidelines. Id. The court must use the Child Support Guidelines to review the adequacy of
the agreed-upon child support provision. Brown v. Brown, No. E2011-00421-COA-R3-CV,
2012 WL 1267872, at *10 (Tenn. Ct. App. Apr. 13, 2012) (citing Berryhill v. Rhodes, 21
S.W.3d 188, 191 n.7 (Tenn. 2000)).
In this case, there is nothing in the record to explain how the parties reached the figure
of $571 when they agreed that Father would pay that amount of child support in the Mediated
Agreement. Therefore, we cannot discern whether that amount was the presumptive amount
owed by Father based upon the parties’ incomes. The mediation took place in June 2011.
The divorce decree entered in May 2012 increased Father’s child support obligation to $694.
At first blush, one would presume that the trial court decided that $571 was insufficient to
meet Father’s minimum child support obligation according to the Guidelines. We would not
have questioned the trial court’s decision if it had simply calculated Father’s child support
obligation based on the parties’ incomes and information at or near the time of trial in 2012,
and increased his obligation accordingly. However, that is not what happened. The trial
court set Father’s child support obligation by using Mother’s gross income according to her
2011 W-2 forms, and Father’s gross income according to his 2010 W-2 forms, with no
explanation for the discrepancy.4
We recognize that Father’s income had decreased between 2010 and the time of trial.
In 2010, when the parties were still married, Father worked full-time for the ambulance
service in Hardin County, and part-time for the ambulance service in Decatur County. He
4
The trial court’s child support calculation listed a 2011 gross income for Mother of $67,099.
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also earned a relatively small amount of income through a part-time teaching job with the
Memphis Med. According to Father’s 2010 W-2 forms,5 the income attributable to Father’s
full-time job at Hardin County was $39,134, and Father’s total gross income that year, from
all three jobs, was around $57,522. On January 1, 2011, while the parties were separated,
Father voluntarily left his full-time position in Hardin County to work full-time for the
ambulance service in Decatur County. Father’s paramour also worked for the ambulance
service in Decatur County, but he testified that he changed jobs because his previous
supervisor did not approve of his part-time teaching job with the Med. We note that in
Father’s counter-complaint for divorce, he asserted that he changed jobs in order to spend
more time with the children. At trial, Mother testified that Father had told her that he was
not going to work so much because he did not intend to pay her a large amount of child
support. In any event, Father testified that he started out making the same amount of money
at Decatur County that he made at Hardin County. Mother filed for divorce shortly after
Father’s job change, in March 2011.
In 2011, Father’s wages from the Decatur County job were $44,129, according to his
W-2 forms. This was more than he earned from Hardin County in 2010 ($39,134) but less
than his three-job total from 2010 ($57,522). At trial, Father testified that when he initially
went to work for the ambulance service in Decatur County, he was employed by the local
hospital and making the same amount of money that he made at Hardin County, but on
October 1, 2011, the county took over the ambulance service and cut employees’ wages from
$16 per hour to $13 per hour. Accordingly, he testified that his 2012 income from Decatur
County would be even less than the $44,129 reflected on his 2011 W-2. Father testified that
the $3 per hour pay cut had significantly reduced his income and his ability to pay his bills.
Father also testified that he no longer held the part-time teaching position because the Med
had hired someone to fill the position full-time. Father acknowledged at trial that he was not
working as many hours as he had in 2010, but, he pointed out, he was still working a full-
time job.6 Father also claimed that if he worked additional hours it would impose on his
5
During the divorce trial, there was some inconsistency among the parties and their attorneys with
regard to whether they utilized the parties’ income information as listed in Box 1 of the parties’ W-2 forms
or the amounts listed in Box 3 or Box 5. There was no explanation for the discrepancy. For purposes of
comparison in this opinion, we have used the amounts listed in Box 5, as the trial court did. However,
nothing contained herein should be read as precluding the use of different figures if the trial court determines
on remand that a different amount accurately reflects the parties’ gross incomes for purposes of calculating
child support. See, e.g., Robert Vance, “The W-2 as Roadmap for Tennessee Child Support Guideline
Income,” Family Practice, The Newsletter for the Family Law Section of the Tennessee Bar Association
(August 2002) (discussing the various boxes and which should be used in different circumstances).
6
It is not clear from the record whether Father had regularly worked multiple jobs in the past, or
if he did so only during 2010. He testified that he began working at Decatur County EMS part-time in July
(continued...)
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opportunities to see his children. He denied telling Mother that he was not going to work as
much so that he would pay less child support.
On appeal, Mother argues that the trial court was correct to utilize Father’s 2010
income figures because they accurately reflected his true earning capacity. However, the trial
court did not make any finding that Father was voluntarily underemployed. In fact, the only
finding by the trial court relevant to this issue was in its letter ruling, where the court said,
“After Husband left the Hardin County EMS job and went to Decatur County Hospital where
his girlfriend works, he suffered a $3.00 per hour pay cut which was unexpected.” (Emphasis
added). Despite this finding, the trial court used Father’s 2010 income total from all three
jobs – $57,522 – in order to calculate his child support obligation. Father’s 2011 income was
only $44,129, and he testified that he was making even less at the time of trial in 2012.
Father produced his paycheck stubs from the past several months, which indicated that he
was working, during each two-week pay period, at least 80 hours of work at $13 per hour,
in addition to several hours of overtime each week. His net pay for a two-week period was
roughly $1,000. Father testified that his average “bring home” pay in a month was $2,000.
Despite this evidence, the trial court’s child support worksheet lists his monthly gross income
as $4,793.53 (based on his 2010 income figures), and it orders Father to pay $694 per month
in child support.
Obviously, the trial court was not bound to enforce the parties’ Mediated Agreement
with regard to child support if the court determined that $571 was not sufficient to meet
Father’s minimum child support obligation owed according to the child support guidelines.
And, in calculating the amount owed by Father, the trial court could impute additional
income to Father if it determined that he was voluntarily underemployed. The Guidelines
specifically provide that “[i]mputing additional gross income to a parent is appropriate in the
following situations: (I) If a parent has been determined by a tribunal to be willfully and/or
voluntarily underemployed or unemployed[.]” Tenn. Comp. R. & Regs. 1240-02-04-
.04(3)(a)(2)(i). Thus, in order “to trigger this portion of the child support guidelines and ‘[t]o
calculate a child support award based on earning capacity rather than actual net income, there
must be a threshold finding that the obligor parent is willfully and voluntarily
underemployed or unemployed.’” Goodman v. Goodman, No. W2011-01971-COA-R3-CV,
2012 WL 1605164, at *4 (Tenn. Ct. App. May 7, 2012) (quoting Marcus v. Marcus, No.
02A01-9611-CV-00286, 1998 WL 29645, at *3 (Tenn. Ct. App. Jan. 28, 1998) (emphasis
in Goodman); see also Kendle v. Kendle, No. M2010-00757-COA-R3CV, 2011 WL
1642503, at *3 (Tenn. Ct. App. Apr. 28, 2011) (citing Tenn. Comp. R. & Regs.
6
(...continued)
of 2010, so it appears that he did not work at these particular jobs in previous years. The only other
testimony about Father’s past employment was that he had been a paramedic for 12 years.
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1240–2–4–.04(3)(a)(2)(i)(I)). The purpose of determining whether a parent is willfully or
voluntarily underemployed is “to ascertain the reasons for the parent's occupational choices,
and to assess the reasonableness of these choices in light of the parent's obligation to support
his or her child(ren) and to determine whether such choices benefit the children.” Tenn.
Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii). The Guidelines provide that “[o]nce a
parent [] has been found to be willfully and/or voluntarily under or unemployed, additional
income can be allocated to that parent to increase the parent's gross income to an amount
which reflects the parent's income potential or earning capacity, and the increased amount
shall be used for child support calculation purposes.” Tenn. Comp. R. & Regs. 1240-02-04-
.04(3)(a)(2)(ii)(II). Here, however, the trial court did not make a finding that Father was
willfully and/or voluntarily underemployed. The only relevant factual finding by the trial
court was that Father’s $3 per hour pay cut was “unexpected.” 7 “The Guidelines do not
presume that any parent is willfully and/or voluntarily under or unemployed.” Tenn. Comp.
R. & Regs. 1240-02-04-.04(3)(a)(2)(ii). We have reversed child support awards in previous
cases when trial courts have imputed income to a parent but failed to make a finding of
voluntary underemployment. See, e.g. Via v. Via, No. M2006-02002-COA-R3-CV, 2007
WL 2198187, at *6 (Tenn. Ct. App. July 23, 2007) (“The trial court abused its discretion in
imputing income to Wife based upon no finding of willful and/or voluntary unemployment
or underemployment.”); Kelley v. Kelley, No. M2004-01202-COA-R3-CV, 2005 WL
2240964, at *4 (Tenn. Ct. App. W.S. Sept. 15, 2005) (“In the absence of a written finding
that Mr. Kelley was willfully underemployed, or that a deviation from the [Guidelines] was
otherwise warranted, under T.C.A. § 36-5-101(e)(1)(A), the trial court is obligated to base
the child support award upon Mr. Kelley's actual income at the time of the hearing.”) In
Goodman, 2012 WL 1605164, at *6, this Court decided that when a trial court calculates
child support based upon an alleged earning capacity, but fails to make a specific finding of
voluntary underemployment, the appropriate course is to “reverse the judgment of the trial
court basing Father's child support obligation on his alleged earning capacity and remand for
a determination of Father's child support obligation based on his actual income.” Therefore,
we reverse the trial court’s decision setting child support at $694 and remand for further
proceedings to include an appropriate calculation of child support based upon Father’s actual
income. Father shall continue to pay $694 per month pending remand.
g. The Children’s Counselor
7
We note that in the section of the trial court’s letter ruling entitled “Alimony,” the court discussed
Father’s ability to pay alimony. In that context, the court made the remark that “Husband has regularly
worked a second job in the past, and has the time and ability to do so,” but the court nevertheless concluded
that Father was not financially able to pay alimony. This isolated remark, made for the purposes of the
alimony analysis, is not sufficient to support the trial court’s deviation from the Child Support Guidelines
in this case.
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The parenting plan contained a provision that stated, “Parenting time of each parent
shall be subject to modification based upon the recommendations of the counselor for the
children, Rodney Williams.” Father argues that this was an impermissible delegation of the
trial court’s authority to determine what is in the children’s best interest. He points out that
the counselor was no longer seeing the children by the time of the divorce trial and that the
counselor did not testify during the proceedings.
The children saw the counselor for a short time period after a physical altercation
between Father and the oldest son. Father testified that the oldest son was cursing at him in
the back seat of the truck, and that Father attempted to “grab” onto him, and when he did, he
ripped the child’s jacket. The children and Father had supervised visits for about a month
thereafter. At trial, Mother acknowledged that the counseling and supervised visitation had
ended and that “things are better.” On appeal, she contends that Father’s argument
challenging this provision of the parenting plan is “moot” because the children no longer
receive counseling services from Mr. Williams.
“[T]he trial judge, and the trial judge alone, has the solemn duty to determine whether
a given parenting arrangement is in the best interest of a child in his charge,” and this duty
cannot be delegated to a chosen arbitrator, or to the parties’ lawyers. Fletcher, 2011 WL
4447903, at *8-10. We find no basis to justify the provision at issue and hereby modify the
parenting plan to delete the provision in its entirety.
2. Financial Matters
a. The Bankruptcy Payment
Having considered all of the rulings regarding parenting issues that Father alleged
were inconsistent with the Mediated Agreement, we now turn to financial issues. The
Mediated Agreement provided that the parties would “continue to equally divide the Chapter
13 bankruptcy payment.” The divorce decree likewise required the parties to continue to
equally share the bankruptcy payment. Therefore, there is no inconsistency between the two.
The effect of the trial court’s ruling was that both Father and Mother would continue
to pay roughly $1100 per month for approximately two years, until the bankruptcy plan ends
in November 2014. At the time of the divorce trial, Mother and the children were residing
in the marital residence, which was located next door to Mother’s parents’ home, and
Mother’s parents helped her with child care. The trial court’s letter ruling provided, with
regard to the bankruptcy payment:
The Chapter 13 plan includes not only the two mortgages, but Wife's vehicle,
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some medical bills, Husband's school loans, and marital credit card debt.
Husband's vehicle has been paid through the bankruptcy and now released. It
is equitable that Husband continue to pay one half of the bankruptcy payment
as part of the equitable allocation of marital debt in the nature of support for
the Wife. This allocation also allows Wife more of her income for her and the
children's support.8
Additionally, the final decree stated:
The Chapter 13 plan includes the two mortgages and the parties shall continue
to pay one-half of the Chapter 13 payment, or Defendant may pay an
equivalent amount of money to Plaintiff. It is the Court's intention that
Defendant's obligation shall be a non-dischargeable debt in bankruptcy. In the
event Husband is successful in discharging this obligation in bankruptcy, in
spite of this Court's intentions, the Court reserves the jurisdiction to set or
modify alimony.
At trial, Father testified that it was his desire to convert to a Chapter 7 bankruptcy plan. On
appeal, he claims that he cannot afford to continue to pay $1104 per month for the
bankruptcy payment, and he argues that the trial court’s ruling impermissibly “required” him
to continue in the Chapter 13 plan. We disagree. During the divorce trial, Father’s attorney
specifically asked the trial judge if he was finding or ruling that Father could not convert to
a Chapter 7 bankruptcy proceeding, to which the judge responded, “No. I didn't -- I didn't
find that. I don't think I've got that power.” The final decree of divorce required Father to
pay “one-half of the Chapter 13 payment, or Defendant may pay an equivalent amount of
money to Plaintiff.” (Emphasis added). Consequently, we find no merit in Father’s assertion
that the trial court basically “instructed” him not to convert to a Chapter 7 bankruptcy filing.
Father also argues that the trial court erred in reserving jurisdiction to set alimony in
the event that Father obtained a discharge of the $1104 per month obligation ordered by the
trial court. “Although it is not often done, the trial court may, in its discretion, declare the
parties divorced and reserve the issue of alimony to be decided at a later time.” Walton v.
Walton, No. W2004-02474-COA-R3-CV, 2005 WL 1922565, at *6 n.2 (Tenn. Ct. App. Aug.
10, 2005) (citing Robinette v. Robinette, 726 S.W.2d 524, 525 (Tenn. Ct. App. 1986)).9 “It
8
The order provided that Mother would assume the two mortgage loans after the bankruptcy
payments end in 2014.
9
The Robinette Court recognized that the general rule followed in Tennessee is that “where a decree
(continued...)
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has been recognized, however, that reserving the issue of alimony should be done ‘sparingly’
and only ‘in unique factual situations.’” Id. (quoting Perry v. Perry, No. W2001-01350-
COA-R3-CV, 2002 WL 1751407, at *6 (Tenn. Ct. App. Mar. 21, 2002) (Farmer, J.,
concurring in part and dissenting in part)); see also Isbell v. Isbell, No. 02A01-9708-CH-
00188, 1999 WL 455429, at *5 (Tenn. Ct. App. July 2, 1999) (“Reserving the issue of
alimony in the final judgment is a remedy that is sparingly used in cases involving unique
circumstances.”). In Walton, 2005 WL 1922565, at *2, for example, the trial court reserved
jurisdiction to evaluate and review an award of alimony after 18 months while the wife
sought disability benefits. In Robinette, 726 S.W.2d at 525, the court reserved judgment on
the issue of alimony in light of the wife’s health condition, which was likely to deteriorate.
In Lawson v. Lawson, No. 03A01-9709-CH-00406, 1998 WL 251757, at *3 (Tenn. Ct. App.
E.S. May 20, 1998), the Court held that the issue of alimony should be reserved for a future
determination in the event that the wife’s employment with the husband’s family’s business
was terminated without cause after the divorce.
In Isbell, 1999 WL 455429, at *5, we found that although the wife had “reason to be
concerned” about the possibility of being laid off from her job, her circumstances were “not
as compelling as those in Lawson, and that the trial court did not abuse its discretion in
declining to award alimony or in failing to reserve the issue of alimony in the final
judgment.” We emphasized that reserving the issue of alimony in the final judgment is “a
remedy that is sparingly used in cases involving unique circumstances.” Id.
To recap, in this case, most of the parties’ marital debts were already combined into
a single Chapter 13 bankruptcy payment, so the trial court was not able to order the parties
to pay specific marital debts. Instead, it ordered them to each continue paying one-half of
the bankruptcy payment. Father already had an appointment with a lawyer for the following
week to explore the possibility of converting the parties’ Chapter 13 filing to a Chapter 7
filing. The trial court concluded that alimony was inappropriate at the time of trial because
Father could not afford to pay it. But it decided that it would reserve jurisdiction to set
alimony in the event that Father was successful in discharging his Chapter 13 obligation,
which the trial court had ordered him to pay. We find that these circumstances are
9
(...continued)
of absolute divorce is final and the decree does not award alimony, the spouse may not be awarded alimony
at any subsequent time.” 726 S.W.2d at 525 (citing Davenport v. Davenport, 178 Tenn. 517, 160 S.W.2d 406(1942); Darby v. Darby, 152 Tenn. 287, 277 S.W. 894 (1925)). However, “[t]he general and near universal
exception to this rule is that alimony may be awarded after a decree of absolute divorce has become final
where the right is afforded by statute or reserved in the divorce decree.” Id. (citing 27A C.J.S. Divorce §
231b., 24 Am.Jur.2d Divorce and Separation § 689 (1983)).
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compelling enough to justify the exceptional remedy employed by the trial court.10 The trial
court could not individually address the parties’ marital debts because they were tied up in
the bankruptcy proceedings, and the court could not conclusively determine whether Father
would convert his bankruptcy filing and possibly avert paying the $1104 ordered by the trial
court. Therefore, this case involves “unique circumstances” like those encountered in
Lawson, Robinette, and Walton, and we find no abuse of discretion in the trial court’s
decision to reserve the issue of alimony in the event that Husband is successful in having his
previously ordered obligation discharged in bankruptcy.
b. Mother’s Car Accident Settlement
Mother received approximately $13,000 during the divorce proceedings due to a
settlement from a car accident case. The parties’ Mediated Agreement addressed the
settlement with the following language:
That Elizabeth Vinson has disclosed to James Vinson that she will receive
approximately $13,000 from a car wreck settlement and she shall use those
funds for medical bills and to repay her Father. That counsel for Elizabeth
Vinson shall submit an itemized accounting of the expenditures of those funds
to counsel for James Vinson.
It is undisputed that Mother never provided the itemized accounting to Father’s counsel, but
when asked about the funds at trial, Mother testified that she used $1,600 to pay for the
medical bills related to the car accident, and $9,000 to repay her father for the loans used to
pay her attorney’s fees. Clearly, Mother used these funds as the parties agreed. Father does
not suggest that the medical bills or loans to Mother’s father were unpaid. The remaining
balance of the settlement was about $2,400, but the Mediated Agreement did not address any
remaining funds. Mother’s bank records indicated that at the time when the $13,000
settlement was deposited into her checking account, she was overdrawn by about $1,000.
By the end of that same month, her account balance was back down to $355.
Father’s argument with regard to this issue is somewhat hard to follow. He ends his
discussion of the settlement with a request “that the decision of the trial court be reversed.”
Going back to the original issue presented, we find no inconsistency between the Mediated
Agreement and the final decree of divorce. It is undisputed that Mother used the funds for
10
Despite our approval of this unique approach in this case because of the parties’ rare
circumstances, we wish to emphasize to the trial courts that this approach should be used sparingly and only
under the most unique factual scenarios. See Walton, 2005 WL 1922565, at *6 n.2; Isbell, 1999 WL 455429,
at *5.
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her medical bills and to repay her father, as agreed. Therefore, we find that Father is not
entitled to relief with respect to this issue.
B. Attorney’s Fees
In the trial court, Mother sought an award of her attorney’s fees in the amount of
approximately $24,000. The trial court ordered Father to pay $5,000 of Mother’s attorney’s
fees. Father argues on appeal that the trial court made contradictory findings with regard to
the issue of attorney’s fees. The court’s letter ruling stated:
Wife has requested an award of attorney's fees. Wife presented
evidence of the amount of attorney's fees that she has incurred in this case. The
Court has reviewed the Affidavit of Wife's counsel and also the amounts that
Wife has already paid. In light of the assets in this case, and the amount of fees
incurred by Wife, the Court is unable to approve Wife's request, although it
appears that Wife's counsel has done an excellent job in their representation.
However, the Court does feel that the Husband should pay a portion of
the Wife's fees considering the factors that deal with alimony in this case,
particularly Husband's fault in the breakdown of the marriage, Wife's need,
and Husband's denial of adultery in the pleadings filed with this Court.
Therefore, Wife is awarded the sum of $5,000.00 as alimony in solido
representing an award to partially defray Wife's attorney's fees.
Father claims that it was contradictory for the trial court to first say that it could not award
fees in light of the assets in this case, and then to nonetheless make an award. Reading the
entire section of the letter ruling in context, we find it clear that the trial court’s initial
statement that the court was “unable to approve Wife’s request,” in light of the assets “and
the amount of fees incurred by Wife,” was the trial court’s explanation for why it decided not
grant the full amount of attorney’s fees requested. Then, the court explained that it was
awarding a portion of Mother’s attorney’s fees, considering Mother’s need, Father’s fault in
the breakdown of the marriage, and the fact that Father filed an answer denying that he had
committed adultery. With regard to the alleged grounds for divorce, Mother presented the
testimony of the husband of Father’s paramour, who had discovered his wife and Father in
bed together. Mother testified that Father had admitted to the affair before she filed the
complaint for divorce. Father and his paramour later testified and admitted to having a
sexual relationship. Considering all the circumstances, we find no error in the trial court’s
decision to award Mother $5,000 of her attorney’s fees.
Mother has requested an award of attorney’s fees on appeal pursuant to Tennessee
Code Annotated section 36-5-103(c). Because both parties were partially successful on
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appeal, Mother earns substantially more money than Father, and Father has no ability to
pay,11 we respectfully decline to make an award of attorney’s fees on appeal.
V. C ONCLUSION
For the aforementioned reasons, the decision of the circuit court is hereby affirmed
in part, as modified, and reversed in part, and this cause is remanded for further proceedings
to include a calculation of Father’s child support obligation. Costs of this appeal are taxed
to the appellant, James Gerald Vinson, and his surety, for which execution may issue if
necessary.
_________________________________
ALAN E. HIGHERS, P.J., W.S.
11
Of Father’s current net income of roughly $2,000 per month, he is paying $694 in child support
and around $1104 for the bankruptcy payment.
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