Barbara Ann Hernandez v. Jose Emmanuel Hernandez ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 8, 2013 Session
BARBARA ANN HERNANDEZ v. JOSÉ EMMANUEL HERNANDEZ
Appeal from the Chancery Court for Hamblen County
No. 2010-420 Thomas R. Frierson, II, Chancellor
No. E2012-02056-COA-R3-CV-FILED-SEPTEMBER 27, 2013
The issues in this divorce case are whether the trial court correctly ordered husband to pay
wife $600 per month in transitional alimony for 36 months, child support in the amount of
$253 per month, and $4,000 of the wife=s attorney=s fees, the latter as alimony in solido.
At the time of trial, husband had been unemployed and actively seeking work for about
one year. The trial court found that his income was zero. Wife did not argue that
husband was voluntarily unemployed or underemployed, and the trial court made no such
findings. The proof at trial establishes that many of the statutory factors supporting an
award of alimony in futuro B including the need of the wife, duration of the marriage, i.e.,
20 years, the parties= relative earning capacities, wife=s contributions to the marriage as
homemaker and parent, and wife=s health B were demonstrated. Husband=s current ability
to pay, however, is quite limited because of his involuntary unemployment and zero
income. Consequently, we modify the transitional alimony award to $50 per month, but
designate it as alimony in futuro. The difference in husband=s income, i.e., $1,191.66 per
month, at the time his child support obligation was set and his income, i.e., zero, at time
of trial likely supports a finding that there is a significant variance between the current
support order of $253 and the amount of the proposed presumptive modified support
order. Accordingly, we vacate the trial court=s order refusing to modify his child support
obligation and remand for a recalculation of child support. We affirm the judgment of
the trial court in all other respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Modified in Part; Vacated in Part; and Affirmed in Part;
Case Remanded for Further Proceedings
CHARLES D. SUSANO, JR., P.J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY and JOHN W. MCCLARTY, JJ., joined.
Carl R. Ogle, Jr. and Scott Justice, Jefferson City, Tennessee, for the appellant, José
Emmanuel Hernandez.
Douglas R. Beier, Morristown, Tennessee, for the appellee, Barbara Ann Hayward,
formerly Hernandez.
OPINION
I.
The parties, José Emmanuel Hernandez (AHusband@) and Barbara Ann Hayward
(AWife@), formerly Hernandez, were married in 1991. Two daughters were born to their
marriage B Roseanna Grace, age 19 at the time of trial, and Lynnea Joy, age 16. Wife
filed for divorce on August 17, 2010. On July 27, 2011, husband=s employer gave him a
separation notice indicating his permanent layoff from work because the company was
relocating to Florida and eliminating his position. Husband began looking for other
work; he collected unemployment compensation in the meantime. The trial court entered
an order on August 18, 2011, granting the parties a divorce on the ground of
irreconcilable differences. It approved and incorporated their marital dissolution
agreement (AMDA@) and their agreed permanent parenting plan. In accordance with the
parenting plan, the court ordered husband to pay child support in the amount of $253 per
month. This amount reflected his income of $1,191.66 per month in unemployment
benefits. The court reserved the remaining issues of alimony, extension of a prior order
of protection against husband, and payments of property taxes and mortgage on the
marital residence.
On October 28, 2011, wife filed a petition for contempt alleging, among other
things, that husband had failed to pay child support as well as certain household expenses
as required by the MDA and subsequent agreed pendente lite court orders. At a hearing
on June 14, 2012, the court heard the testimony of the parties, their daughter Roseanna,
and two other witnesses. The court later entered an order containing the following
findings of fact and conclusions of law:
[Husband] was most recently employed as an applications
engineer with Mettler-Toledo Eagle from March 19, 2011
through July 29, 2011, [when he] received an employment
separation notice indicating a permanent layoff.
In connection with the Permanent Parenting Plan Order
entered August 18, 2011, the attached Child Support
Worksheets reflected that [husband] enjoyed a gross monthly
income of $1,191.66. In connection with [husband=s]
previous employment . . . he enjoyed a gross annual income of
approximately $80,000.00. At the time of the trial in this
cause, [husband] was receiving no income as his
unemployment compensation benefits had expired in February
2012.
The evidence further preponderates in favor of a finding that
[wife] suffers from several physical infirmities and
conditions. She currently provides caregiver services to
others and performs light housekeeping. Her gross monthly
income is approximately $600.00.
* * *
The evidence preponderates in favor of a finding that for
[wife], rehabilitation is not necessary, but as an economically
disadvantaged spouse, she needs assistance to adjust to the
economic consequences of this divorce. [Wife] is entitled to
an award of transitional alimony at the rate of $600.00 per
month for a period of 36 months. This award of transitional
alimony shall terminate upon any remarriage by [wife]. The
award may be modified by the Court upon petition of either
party.
* * *
This court determines that [wife] cannot pay her attorney=s
fees without being forced to deplete the assets which she will
use to support herself. While the transitional alimony award
will assist [wife] in defraying her living expenses it will be
insufficient to enable her to pay her attorney=s fees. This
Court, therefore, awards as alimony in solido a partial
reimbursement of her attorney=s fees.1
* * *
With reference to [husband=s] request for a modification in the
amount of his child support obligation, the evidence does not
1
The trial court later entered an order awarding partial attorney=s fees in the amount of $4,000 after
wife=s counsel filed an affidavit regarding his fees.
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support a finding that a significant variance has been shown
to exist with reference to the amount of child support ordered
in the Permanent Parenting Plan. As such, [husband] shall
continue to pay child support as directed by the existing
Permanent Parenting Plan in the amount of $253.00 per
month.
(Footnotes in original omitted; italics in original; footnote 1 added).
The trial court further granted wife a judgment against husband in the following
amounts: $5,978.00 in child support arrearage; $1,301.26 for expenses husband was
responsible for paying under the court=s agreed pendente lite orders, such as
reimbursement for wife=s telephone bills; $2,958.47 for husband=s share of property taxes
and mortgage payments; $1,425.49 for his share of expenses for utilities in connection
with the marital residence; and $1,728 for his share of the children=s medical expenses
under the parenting plan. The trial court held husband in contempt for his failure to pay
these expenses, but did not order any punishment for his contempt. Husband has not
appealed any of these rulings.
II.
Husband timely filed a notice of appeal, raising the following issues:
1. Whether the trial court erred in ordering husband to pay
$600 per month for 36 months in transitional alimony when
his income was zero and there was no argument or finding
that he was voluntarily unemployed.
2. Whether the trial court erred in ordering him to pay
$4,000 of wife=s attorney=s fees as alimony in solido.
3. Whether the trial court erred in refusing to modify his
child support obligation of $253 per month.
III.
The Supreme Court has provided the principles that guide our review of a trial
court=s alimony decision:
For well over a century, Tennessee law has recognized that
trial courts should be accorded wide discretion in determining
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matters of spousal support. This well-established principle
still holds true today, with this Court repeatedly and recently
observing that trial courts have broad discretion to determine
whether spousal support is needed and, if so, the nature,
amount, and duration of the award.
Equally well-established is the proposition that a trial court=s
decision regarding spousal support is factually driven and
involves the careful balancing of many factors. As a result,
A[a]ppellate courts are generally disinclined to second-guess a
trial judge=s spousal support decision.@ Rather, A[t]he role of
an appellate court in reviewing an award of spousal support is
to determine whether the trial court applied the correct legal
standard and reached a decision that is not clearly
unreasonable.@ Appellate courts decline to second-guess a
trial court=s decision absent an abuse of discretion. An abuse
of discretion occurs when the trial court causes an injustice by
applying an incorrect legal standard, reaches an illogical
result, resolves the case on a clearly erroneous assessment of
the evidence, or relies on reasoning that causes an injustice.
This standard does not permit an appellate court to substitute
its judgment for that of the trial court, but A >reflects an
awareness that the decision being reviewed involved a choice
among several acceptable alternatives,= and thus >envisions a
less rigorous review of the lower court=s decision and a
decreased likelihood that the decision will be reversed on
appeal.= @ Consequently, when reviewing a discretionary
decision by the trial court, such as an alimony determination,
the appellate court should presume that the decision is correct
and should review the evidence in the light most favorable to
the decision.
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105-06 (Tenn. 2011) (internal citations and
footnote omitted).
Our review of this non-jury case is de novo upon the record of the proceedings
below with a presumption of correctness as to the trial court=s factual findings, a
presumption we must honor unless the evidence preponderates against those findings.
Tenn. R. App. P. 13(d). We review the trial court=s conclusions of law de novo with no
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presumption of correctness. Oakes v. Oakes, 235 S.W.3d 152, 156 (Tenn. Ct. App.
2007).
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IV.
A.
We first address the alimony award. Husband argues that the award of $600 per
month transitional alimony for 36 months was too large in light of his inability to pay due
to his involuntary unemployment. Wife argues that the trial court should have awarded
her alimony in futuro in addition to transitional alimony. As the Supreme Court has
recently observed:
Tennessee recognizes four distinct types of spousal support:
(1) alimony in futuro, (2) alimony in solido, (3) rehabilitative
alimony, and (4) transitional alimony. Tenn. Code Ann. '
36-5-121(d)(1) (2010 & Supp.2012). Alimony in futuro, a
form of long-term support, is appropriate when the
economically disadvantaged spouse cannot achieve
self-sufficiency and economic rehabilitation is not feasible.
Gonsewski, 350 S.W.3d at 107. Alimony in solido, another
form of long-term support, is typically awarded to adjust the
distribution of the marital estate and, as such, is generally not
modifiable and does not terminate upon death or remarriage.
Id. at 108. By contrast, rehabilitative alimony is short-term
support that enables a disadvantaged spouse to obtain
education or training and become self-reliant following a
divorce. Id.
Where economic rehabilitation is unnecessary, transitional
alimony may be awarded. Transitional alimony assists the
disadvantaged spouse with the Atransition to the status of a
single person.@ Id. at 109 (internal quotation marks omitted).
Rehabilitative alimony Ais designed to increase an
economically disadvantaged spouse=s capacity for
self-sufficiency,@ whereas Atransitional alimony is designed to
aid a spouse who already possesses the capacity for
self-sufficiency but needs financial assistance in adjusting to
the economic consequences of establishing and maintaining a
household without the benefit of the other spouse=s income.@
Id. Consequently, transitional alimony has been described as
a form of short-term Abridge-the-gap@ support designed to
Asmooth the transition of a spouse from married to single life.@
7
Transitional alimony is payable for a definite period of time
and may be modified only if: (1) the parties agree that it may
be modified; (2) the court provides for modification in the
divorce decree, decree of legal separation, or order of
protection; or (3) the recipient spouse resides with a third
person following the divorce. Tenn. Code Ann. '
36-5-121(g)(2).
Tennessee statutes concerning spousal support reflect a
legislative preference favoring rehabilitative or transitional
alimony rather than alimony in futuro or in solido. See Tenn.
Code Ann. ' 36-5-121(d)(2)-(3); Gonsewski, 350 S.W.3d at
109. . . . Decisions regarding the type, length, and amount of
alimony turn upon the unique facts of each case and careful
consideration of many factors, with two of the most important
factors being the disadvantaged spouse=s need and the obligor
spouse=s ability to pay. Id. at 109-10.
Mayfield v. Mayfield, 395 S.W.3d 108, 115-16 (Tenn. 2012) (internal citation omitted;
emphasis in original).
Tennessee courts making an alimony decision must consider the following
statutory factors when relevant:
(1) The relative earning capacity, obligations, needs, and
financial resources of each party, including income from
pension, profit sharing or retirement plans and all other
sources;
(2) The relative education and training of each party, the
ability and opportunity of each party to secure such education
and training, and the necessity of a party to secure further
education and training to improve such party=s earnings
capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
8
(5) The physical condition of each party, including, but not
limited to, physical disability or incapacity due to a chronic
debilitating disease;
(6) The extent to which it would be undesirable for a party to
seek employment outside the home, because such party will
be custodian of a minor child of the marriage;
(7) The separate assets of each party, both real and personal,
tangible and intangible;
(8) The provisions made with regard to the marital property,
as defined in ' 36-4-121;
(9) The standard of living of the parties established during the
marriage;
(10) The extent to which each party has made such tangible
and intangible contributions to the marriage as monetary and
homemaker contributions, and tangible and intangible
contributions by a party to the education, training or increased
earning power of the other party;
(11) The relative fault of the parties, in cases where the court,
in its discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to
each party, as are necessary to consider the equities between
the parties.
Tenn. Code Ann. ' 36-5-121(i) (2010).
We review the evidence with these principles in mind. The parties were married
for 20 years. Wife testified that during the marriage, husband Awas the sole provider and
I was a wife and mother and I helped school our children.@ Husband acknowledged that
wife did the housekeeping and homemaking work while they were married. Wife was 54
years old at the time of trial. Wife has a college degree, but, as noted, she had not used
her education or training outside the home for two decades at the time of trial. Wife
testified that her health is poor, and that she suffers from connective tissue disease, which
she described as encompassing several autoimmune diseases, lupus, Sjogren=s disease,
and blood pressure problems. She testified that she also has periodic inflammation of the
9
larynx that causes her to lose her voice occasionally, back problems, and spondylitis.
Wife stated that her health problems have Adrastically affected [her] ability to find
adequate employment.@ At the time of trial, Wife was working about 17.5 hours per
week as a caregiver, doing light housekeeping, cooking and laundry for $8 per hour. She
was receiving assistance of $379 per month in food stamps. Wife testified that she
applied and qualified for TennCare in April of 2011. As of the trial, she had not applied
for disability assistance. The trial court found that Wife=s income was approximately
$600 per month. Wife=s affidavit of income and expenses listed a monthly deficit of
$2,986.03.
Husband was employed as an engineer, making approximately $80,000 per year,
until he lost his job in July of 2011. The record does not reveal husband=s age. He did
not testify that he had any health problems. He did testify that he lived at the home of a
friend, Dan Cox, for about a year after he got laid off. Both husband and Mr. Cox
testified that husband had made extensive and diligent efforts to find employment, but
had been unsuccessful in the challenging economic climate. Husband testified that
friends and family had helped him financially by giving him gifts and paying for some
expenses, but that he was earning zero income and had no ability to support himself or his
family. The trial court found that Husband had zero income after his unemployment
compensation benefits expired in February of 2012.
The parties= primary asset was the marital residence. At the time of trial, wife had
recently paid off the mortgage, leaving the property unencumbered. The parties agreed
in the MDA to sell the marital residence and equally split the proceeds. At the time of
trial, the house was listed for $147,000.2 The trial court also entered a qualified domestic
relations order providing that husband=s retirement would be equally divided, but the
amount of the retirement account or accounts is not in the record. The proof did not
show that either party had any other significant financial asset.
2
At oral argument before this Court, counsel for both parties agreed that the property sold for
$140,750 after the trial court=s entry of the final judgment, and that the proceeds were equally divided after
wife was given additional monies from the proceeds to satisfy the money owed by husband as a result of
the trial court=s judgment.
10
These facts establish a Aclassic case@ supporting an award of alimony in futuro.
The disparity in the relative earning capacities of the parties is great. The marriage was
of a long-term duration. Wife made significant intangible contributions to the marriage.
See Tenn. Code Ann. ' 36-5-121(c). 3 Wife, the economically disadvantaged spouse,
suffers from significant health problems that make it difficult to work full-time. The
General Assembly has stated its intent Athat a spouse, who is economically disadvantaged
relative to the other spouse, be rehabilitated, whenever possible, by the granting of an
order for payment of rehabilitative alimony.@ Tenn. Code. Ann. ' 36-5-121(d)(2). ATo
be rehabilitated means to achieve, with reasonable effort, an earning capacity that will
permit the economically disadvantaged spouse=s standard of living after the divorce to be
reasonably comparable to the standard of living enjoyed during the marriage, or to the
post-divorce standard of living expected to be available to the other spouse, considering
the relevant statutory factors and the equities between the parties.@ Id. Considering
wife=s health, employment history, and age at the time of trial, we do not believe her
rehabilitation is feasible. In Jekot v. Jekot, this Court, in modifying an award of
rehabilitative alimony to an award of alimony in futuro, stated the following:
Wife has not utilized her career skills in twenty years. It is
reasonable to assume that whatever experience she gained
those many years ago would be of little or no advantage were
3
Tenn. Code Ann. ' 36-5-121(c) is pertinent here, and provides:
(1) Spouses have traditionally strengthened the family unit through
private arrangements whereby one (1) spouse focuses on nurturing the
personal side of the marriage, including the care and nurturing of the
children, while the other spouse focuses primarily on building the
economic strength of the family unit. This arrangement often results in
economic detriment to the spouse who subordinated such spouse=s own
personal career for the benefit of the marriage. It is the public policy of
this state to encourage and support marriage, and to encourage family
arrangements that provide for the rearing of healthy and productive
children who will become healthy and productive citizens of our state.
(2) The general assembly finds that the contributions to the marriage as
homemaker or parent are of equal dignity and importance as economic
contributions to the marriage. Further, where one (1) spouse suffers
economic detriment for the benefit of the marriage, the general assembly
finds that the economically disadvantaged spouse=s standard of living
after the divorce should be reasonably comparable to the standard of
living enjoyed during the marriage or to the post-divorce standard of
living expected to be available to the other spouse, considering the
relevant statutory factors and the equities between the parties.
11
she to seek employment today, and it will take some time for
Wife to receive the additional education and training
necessary to prepare her for a job offering meaningful
remuneration. Further, at the time of trial, Wife was
fifty-five years of age, and we do not believe it is realistic to
expect that she will be able to effectively compete for
employment as she nears an age at which many retire.
232 S.W.3d 744, 753 (Tenn. Ct. App. 2007). In the present case, wife is similarly
situated, and the facts are even stronger here in that wife is in poor health and Ms. Jekot
was in good health. Id. at 754.
Wife has demonstrated a significant need for spousal support. That need is very
likely to continue for the foreseeable future, beyond the three years provided for by the
trial court=s transitional alimony award. Regarding the amount of alimony, the A>real
need of the [disadvantaged] spouse seeking the support is the single most important factor
.... [and next] the courts most often consider the ability of the obligor spouse to provide
support.=@ Oakes, 235 S.W.3d at 160 (brackets in original; quoting Aaron v. Aaron, 909
S.W.2d 408, 410 (Tenn. 1995)). This Court has recognized that spousal support Amust
be administered within the capability of the supporting spouse to provide the needed
support.@ Loria v. Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). Significantly, in
this case wife has never argued that husband was willfully unemployed; the evidence at
trial was to the effect that husband had been making reasonable and diligent efforts to
find employment; and the trial court did not find that husband was willfully unemployed
or underemployed. Further, wife has not taken issue with the trial court=s finding that
husband=s income at the time of trial was zero.
Under these circumstances, we find it appropriate to modify the spousal support
award by reducing it to $50 per month but by designating it as alimony in futuro. We
recognize that this is a nominal amount; A[h]owever, to avoid depriving a spouse of the
right to obtain spousal support in the future if there is a need for it, many courts have
approved the practice of awarding a nominal amount of alimony in the final decree in
order to retain jurisdiction to alter the amount later if the circumstances warrant it.@
Justice v. Justice, No. M1998-00916-COA-R3-CV, 2001 WL 177060 at *5 (Tenn. Ct.
App. M.S., filed Feb. 23, 2001); see also Woods v. Woods, No.
M2002-01736-COA-R3-CV, 2005 WL 1651787 at *11 (Tenn. Ct. App. M.S., filed July
12, 2005) (AIn the past, this court has reduced the amount of spousal support when, taking
into consideration the paying spouse=s other financial obligations, it has determined that
the paying spouse would have insufficient income to support himself or herself.@). In
Eaves v. Eaves, this Court approved a nominal alimony award, applying the following
reasoning that is equally pertinent to this case:
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[I]f Husband had the ability to help support [wife], a more
substantial award of alimony would very likely be
appropriate. However, the court justifiably found that, as of
the time of trial, Husband did not have the ability to help
support Wife. The evidence does not preponderate
otherwise. If the parties= circumstances eventually change
such that more substantial alimony would be appropriate, the
award can be revisited, as contemplated by the court=s decree.
In the meantime, however, a court order cannot create money
where none exists, and in this case the evidence supports the
court=s conclusion that Husband cannot pay Wife more than a
nominal alimony while still meeting his own basic expenses.
Eaves, No. E2006-02185-COA-R3-CV, 2007 WL 4224715 at *6 (Tenn. Ct. App. E.S.,
filed Nov. 30, 2007) (emphasis in original). In this case, the parties= MDA contains their
agreement Ato give each other notice of any new employment or income within seven (7)
days of said event.@ Husband is bound by this provision to promptly notify wife if he
obtains employment, and the trial court retains jurisdiction to revisit the amount of
alimony if warranted.
B.
Husband argues that the trial court erred in ordering him to pay $4,000 as partial
payment of wife=s attorney=s fees as alimony in solido. The trial court found that wife
Acannot pay her attorney=s fees without being forced to deplete the assets which she will
use to support herself.@ As the Supreme Court observed in Gonsewski,
It is well-settled that an award of attorney=s fees in a divorce
case constitutes alimony in solido. The decision whether to
award attorney=s fees is within the sound discretion of the trial
court. As with any alimony award, in deciding whether to
award attorney=s fees as alimony in solido, the trial court
should consider the factors enumerated in Tennessee Code
Annotated section 36B5B121(i). A spouse with adequate
property and income is not entitled to an award of alimony to
pay attorney=s fees and expenses. Such awards are
appropriate only when the spouse seeking them lacks
sufficient funds to pay his or her own legal expenses, or the
spouse would be required to deplete his or her resources in
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order to pay them. Thus, where the spouse seeking such an
award has demonstrated that he or she is financially unable to
procure counsel, and where the other spouse has the ability to
pay, the court may properly grant an award of attorney=s fees
as alimony.
350 S.W.3d at 113 (internal citations omitted). Our review of an award of attorney=s fees
is guided by the principle that A >the allowance of attorney=s fees is largely in the
discretion of the trial court, and the appellate court will not interfere except upon a clear
showing of abuse of that discretion.= @ Mimms v. Mimms, 234 S.W.3d 634, 641 (Tenn.
Ct. App. 2007) (quoting Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005)). AReversal
of the trial court=s decision [regarding] attorney fees at the trial level should occur >only
when the trial court applies an incorrect legal standard, reaches a decision that is illogical,
bases its decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the complaining party.= @ Church v. Church, 346
S.W.3d 474, 487 (Tenn. Ct. App. 2010). We do not find such an abuse of discretion
here. The evidence does not preponderate against the trial court=s finding that wife is
unable to pay her attorney=s fees without depleting her already meager resources. We
consequently affirm the judgment of the trial court awarding wife $4,000 as alimony in
solido to pay part of her attorney=s fees. Given husband=s earning capacity and his
receipt of a share of the net proceeds from the sale of the parties= home, and wife=s
relative disadvantaged economic situation, we find this award appropriate.
C.
Finally, husband argues that the trial court erred in refusing to modify his child
support obligation as a result of his decrease in income since the entry of the order
requiring him to pay $253 per month. Husband=s earlier child support obligation was set
by agreed order entered on January 6, 2011, at $862 per month, when he was still
employed. The trial court=s subsequent order adopting the agreed permanent parenting
plan, entered on August 18, 2011, after husband was involuntarily laid off, reduced his
obligation to $253 per month. This amount reflected husband=s receipt of monies in the
form of unemployment compensation of $1,191.66 per month. Husband=s
unemployment benefits expired in February 2012, however, leaving him with zero income
at the time of the hearing conducted on June 14, 2012.
The modification of child support is governed by Tenn. Code Ann. ' 36-5-101,
which provides that A[u]pon application of either party, the court shall decree an increase
or decrease of support when there is found to be a significant variance, as defined in the
child support guidelines . . . between the guidelines and the amount of support currently
14
ordered, unless the variance has resulted from a previously court-ordered deviation from
the guidelines and the circumstances that caused the deviation have not changed.@ Id. '
36-5-101(g)(1) (2010). Thus, Athe initial inquiry in a petition for child support
modification is whether there is a significant variance between the current obligation and
the obligation set by the Guidelines.@ Wine v. Wine, 245 S.W.3d 389, 394 (Tenn. Ct.
App. 2007) (internal quotation marks omitted). AThe parent seeking to modify a child
support obligation has the burden to prove that a significant variance exists.@ Id.; Gulley
v. Fletcher, No. M2012-00718-COA-R3-CV, 2013 WL 492960 at *2 (Tenn. Ct. App.
M.S., filed Feb. 7, 2013). ASignificant variance@ is defined by Tenn. Comp. R. & Regs.
1240B02B04B.05(2)(c) as Aat least a fifteen percent (15%) change between the amount of
the current support order (not including any deviation amount) and the amount of the
proposed presumptive support order.@ Tenn. Comp. R. & Regs. 1240B02B04B.05(3)
provides:
To determine if a modification is possible, a child support
order shall first be calculated on the Child Support Worksheet
using current evidence of the parties= circumstances. . . . If the
current child support order was calculated using the income
shares guidelines, compare the presumptive child support
order amounts in the current and proposed orders. . . . If a
significant variance exists between the two amounts, such a
variance would justify the modification of a child support
order unless, in situations where a downward modification is
sought, the obligor is willfully and voluntarily unemployed or
underemployed, or except as otherwise restricted by
paragraph (5) below or 1240-2-4-.04(10) above.
When the parent seeking to modify the child support demonstrates a significant variance,
the court is directed as follows:
Upon a demonstration of a significant variance, the tribunal
shall increase or decrease the support order as appropriate in
accordance with these Guidelines unless the significant
variance only exists due to a previous decision of the tribunal
to deviate from the Guidelines and the circumstances that
caused the deviation have not changed. If the circumstances
that resulted in the deviation have not changed, but there exist
other circumstances, such as an increase or decrease in
income, that would lead to a significant variance between the
amount of the current order, excluding the deviation, and the
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amount of the proposed order, then the order may be
modified.
Tenn. Comp. R. & Regs. 1240-02-04-.05(5).
In the present case, a child support order on a Child Support Worksheet using
current evidence of the parties= circumstances was not calculated to determine whether a
significant variance existed. The difference between husband=s income, i.e., $1,191.66
per month, at the time the then-current child support order was entered and his income,
i.e., zero, at the time of trial is obviously significant. The calculus and analysis would
be different if there had been a supported finding that husband was willfully or
voluntarily unemployed or underemployed B a finding that would support the imputation
of a reasonable income. Gulley, 2013 WL 492960 at *2; Wine, 245 S.W.3d at 394;
Richardson v. Spanos, 189 S.W.3d 720, 726 (Tenn. Ct. App. 2005). As has already
been thoroughly discussed above, however, the circumstances in the present case do not
warrant a finding of voluntary unemployment or the imputation of income, and,
significantly, the trial court did not find a basis for either. Consequently, we vacate the
trial court=s finding that there was no significant variance shown and remand for a
determination of husband=s child support obligation under the governing principles
discussed herein and the parties= current financial circumstances.
V.
The trial court=s award of transitional alimony in the amount of $600 per month is
modified to an award of alimony in futuro in amount of $50 per month. The trial court=s
award ordering husband to pay $4,000 in wife=s attorney=s fees as alimony in solido is
affirmed. The trial court=s judgment declining to modify husband=s child support
obligation is vacated, and the case remanded for further proceedings, consistent with this
opinion. Costs on appeal are assessed against the appellant, José Emmanuel Hernandez.
__________________________________________
CHARLES D. SUSANO, JR., PRESIDING JUDGE
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