Hall v. Hall ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION AT KNOXVILLE
FILED
July 21, 1997
Cecil Crowson, Jr.
PEGGY ELAINE JACKSON HALL, ) BLOUNT GENERAL SESSIONS
Appellate C ourt Clerk
)
Petitioner/Appellant ) NO. 03A01-9701-GS-00030
)
v. ) HON. WILLIAM R. BREWER, JR.,
) JUDGE
MARK RICHARD HALL, )
)
Respondent/Appellee ) MODIFIED
Karen G. Crutchfield, McCord, Troutman & Irwin, P.C., Knoxville, for Appellant.
Phillip Reed, Maryville, for Appellee.
OPINION
INMAN, Senior Judge
A decree entered November 14, 1991 approved a marital dissolution
agreement which required the defendant to pay $600.00 per month child support.1
Two years later, the “child support obligation” was increased to $700.00 per month.
This was followed by a motion to again increase the support because of changed
circumstances and, by order entered October 8, 1996, the child support obligation
was increased to $1200.00 per month beginning June 1, 1996. The recipient mother
and custodian appeals, insisting that the increase is inadequate under the
Guidelines.2
Awards of child support in Tennessee are governed by the provisions of
T.C.A. § 36-5-101(e) which provide in summary that the Tennessee Department of
Human Services shall establish child support guidelines to be applied by the court as
a rebuttable presumption in determining the amount of any child support award. The
1
The marital dissolution agreement refers to the “minor child of the parties”
and also to the “children of the parties.” It does not reveal the number of children.
Neither does the 1994 order. Neither does the 1996 order. From the briefs, we
deduce there are two minor children.
2
The significant variance test rather than a material change in circumstances
is the correct standard. Turner v. Turner, 919 S.W.2d 340, 342-43 (Tenn. Ct. App.
1995).
Department developed the Tennessee Child Support Guidelines which provide, inter
alia, definitions of relevant terms and a step-by-step procedure for calculating child
support awards. See TENN. COMP. R & REG . ch. 1240-2-4-.03.
The procedure for establishing child support awards outlined in the Guidelines
requires the following steps:
1) Determination of the amount of the child support obligor’s gross income;
2) Determination of the amount of the child support obligor’s net income; and
3) Multiplication of the child support obligor’s net income by the percentage
set by the Guidelines to correspond to the number of children for whom
support is being set.
Id. The Guidelines set the definitions and methods for calculating each of the above
listed steps. Id. After each of these steps have been completed, the resulting
amount is the child support award under the Guidelines, unless there are reasons for
deviation which would make the application of the child support award unjust or
inappropriate. T.C.A. § 36-5-101(e)(1) and TENN. COMP. R. & REG . ch. 1240-2-4-.03.
See also Jones v. Jones, 930 S.W.2d 541 (Tenn. 1996) and Nash v. Mulle, 846
S.W.2d 803 (Tenn. 1993).
The first step in calculating a child support award is to determine the child
support obligor’s gross income. The Guidelines define gross income as follows:
(a) Gross income shall include all income from any source (before taxes or
other deductions), whether earned and unearned and includes but is not
limited to the following: wages, salaries, commissions, bonuses, overtime
payments, dividends, severance pay, pensions, interest, trust income,
annuities, capital gains, benefits received from the Social Security
Administration, i.e., Title II Social Security benefits, workers’ compensation
benefits whether temporary or permanent, judgments recovered for personal
injuries, unemployment insurance benefits, gifts, prizes, lottery winnings,
alimony and maintenance and income from self-employment. Income from
self-employment includes income from business operations and rental
properties, etc., less reasonable expenses necessary to produce such
income. Depreciation, home offices, excessive promotional, excessive travel,
excessive car expenses or excessive personal expenses, etc., should not be
considered reasonable expenses. “In kind” remuneration must also be
imputed as income, i.e., fringe benefits such as a company car, the value of
on-base lodging and meals in lieu of BAQ and BAS for a military member, etc.
TENN. COMP. R. & REG . ch. 1240-2-4-.03(3)(a). Once the gross income of the obligor
2
is determined, this amount is then used as a basis for determining the obligor’s net
income. The method for calculating net income under the Guidelines is:
(4) Net income is calculated by subtracting from gross income of the
obligor’s FICA (6.2% Social Security + 1.45% Medicare for regular wage
earners and 12.4% Social Security + 2.9% Medicare for self employed, as of
1991, or any amount subsequently set by federal law as FICA tax) the amount
of withholding tax deducted for a single wage earner claiming one withholding
allowance (copies of appropriate table will be provided to courts with
guidelines), and the amount of child support ordered pursuant to a previous
order of child support for other children . . . .
TENN. COMP. R. & REG . ch. 1240-2-4-.03(4). The net income is then multiplied by the
Guidelines percentage that corresponds to the number of children to be supported,
resulting in the amount of the child support award under the Guidelines without
regard to any deviation. TENN. COMP. R. & REG . ch. 1240-2-4-.03(4) &(5).
The appellees’ income tax returns and personal and business banking records
for 1995 were filed in evidence. His net income from veterinary practice in 1995 was
$71,030, after claiming $5,400.00 for depreciation.3 and $9,169.00 for amortization
costs.4 He also reported a capital gain of $3,692.00 and interest income of $869.00.
He paid alimony of $3500.00 and self-employment tax of $9,491.00
The trial judge found the appellee’s 1995 income was $63,000.00 and ordered
him to pay $1200.00 monthly, which extrapolates to a net income of $45,000.00. We
are unable to determine the precise derivation of the latter amount.
The appellees’ bank records reveal that he deposited $80,000.00 to his
personal account in 1995. The appellant argues that the trial judge failed to consider
these funds in arriving at the appellee’s gross income. We are unable, from the
meager record, to make an independent determination of the source of these funds,
but presume they were generated primarily from the veterinary practice and hence
accounted for.
3
Which includes $2,129.00 for a computer, the entire cost of which was
expensed in 1995 and $3,264.00 depreciation for residential rental property and
nonresidential real property, not otherwise categorized, and not explained.
4
Not explained, but presumably separate capital expenditures.
3
Our review is de novo on the record accompanied by the presumption that the
trial court’s findings of fact are correct unless the evidence preponderates otherwise.
T.R.A.P. Rule 13(d).
We note that the non-inclusion of the amortization costs in gross income was
not addressed upon the trial, and we will not notice it further except to observe that
the Guidelines are silent on the subject, which impels us to the conclusion that such
costs should be carefully scrutinized.
With respect to the amount of $5,450.00 claimed for depreciation, the
Guidelines expressly provides that depreciation is not a deductible expense for a
self-employed person for purposes of calculating child support, and this deduction
from net income must be disallowed. The issue of deviation was broached, and we
conclude that the trial judge merely overlooked the non-inclusion of depreciation in
computing net income.
The appellee had a capital gain of $3592.00 in 1995. The appellant argues
that the Guidelines clearly require this amount to be included in income. The point is
somewhat nebulous, since a capital gain is irregular income and, in this case, was
included in the marital estate. We held in Eubank v. Eubank, No. 02A01-9110-CV-
00242 (filed at Jackson, October 20, 1992) that the Guidelines do not require the
inclusion in gross income of isolated capital gains transactions and adhere to that
ruling.
The appellant complains of the refusal of the trial judge to order the increase
effective upon the filing of the motion therefor. We think this request is meritorious in
a limited context.
The appellee was paying only $700.00 per month, which presupposes a net
income of about $25,000.00 As a professional man, and otherwise, he was aware
of the requirement that he should pay 32% of his net income for the support of his
children, and that his net annual income was substantially in excess of $25,000.00.
The delay in the adjustment of the support requirement appears to have been
attributable equally to the parties.
4
From the appellant’s business and interest income of $71,899.00 there should
be subtracted alimony payments of $3500.00, self-employment tax of $9,491.00 and
income tax of $15,530.00, leaving a difference of $43,378.00, to which should be
added $5400.00. For child support purposes, the appellee’s income is found to be
$4,065.00 monthly, 32% of which, or $1300.00 per month, must be paid as child
support.
The record does not reveal the appellee’s income during the last quarter of
1994 and, for this reason, the increase will be retroactive to January 1, 1995.
The appellant complains of the disallowance of discretionary costs and of the
limited award of attorney’s fees. We have carefully considered these issues and
found no abuse of discretion. Threadgill v. Threadgill, 740 S.W.2d 419 (Tenn. Ct.
App. 1987).
The judgment is modified to award child support in the amount of $1300.00
monthly, with the excess over $700.00 retroactive to January 1, 1995. Costs are
assessed to the appellee, and the case is remanded for all appropriate purposes.
___________________________________
William H. Inman, Senior Judge
CONCUR:
_______________________________
Don T. McMurray, Judge
_______________________________
Charles D. Susano, Jr., Judge
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