Anita v. Wadhwani v. Peter L White ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 4, 2016 Session
ANITA V. WADHWANI v. PETER L. WHITE
Appeal from the Fourth Circuit Court for Davidson County
No. 03D-2338 Philip E. Smith, Judge
No. M2015-01447-COA-R3-CV-Filed August 31, 2016
In this post-divorce matter, the parties have been litigating for several years regarding
issues of co-parenting time, child support, and contempt. In 2013, the trial court reduced
the father‟s child support obligation based upon its finding that a significant variance
existed between the prior child support amount and the new amount calculated utilizing
the father‟s income. The trial court ordered that such modification would begin as of
May 2012, when the State of Tennessee filed a petition seeking modification on the
father‟s behalf. The father attempted to file an appeal of this matter in 2013, but the
appeal was dismissed due to lack of a final order. Following remand, the trial court
reviewed and adjusted the child support modification based upon demonstration of the
father‟s income from all sources, including an inheritance he received from a relative. A
final order was entered July 27, 2015. The father has appealed the trial court‟s judgment.
Discerning no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Fourth Circuit Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.
Peter L. White, Kingston Springs, Tennessee, Pro Se.
Anita V. Wadhwani, Nashville, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter, and Rachel E. Buckley, Assistant
Attorney General, for the appellee, State of Tennessee ex rel. Anita V. Wadhwani.
OPINION
I. Factual and Procedural Background
On October 1, 2003, the plaintiff, Anita V. Wadhwani (“Mother”), filed a divorce
action against the defendant, Peter L. White (“Father”), in the Davidson County Fourth
Circuit Court (“trial court”). The parties had two minor sons, one of whom, K.W., was
three years of age and the other, C.W., roughly seven months of age at the time of the
complaint‟s filing. Mother alleged that Father had been violent and abusive to her and
that he had threatened to take the children to Massachusetts, where his family lived,
without Mother‟s permission. Mother sought and obtained an order of protection against
Father in November 2003.
Mother subsequently sought to extend the order of protection in October of 2004,
asserting that Father had violated the order of protection numerous times and had recently
slapped her in the face while picking up one of the children. See Tenn. Code Ann. § 36-
3-605(b) (providing for a one-year extension of an order of protection upon a proper
showing of cause). On March 10, 2005, the parties entered into an agreed order of
protection, which allowed Father to be around Mother only for the purpose of activities
involving the children or in connection with the sale of the marital residence. On the
same date, the trial court entered the parties‟ agreed divorce decree, which provided in
pertinent part:
Husband shall be awarded the marital residence. Wife shall be responsible
for all debt secured by it and for all utilities and regular operating expenses
for so long as she lives there, holding Husband harmless. Wife shall
execute a Quitclaim Deed accordingly. Husband shall list the home for sale
and shall be responsible for its sale. Wife shall maintain the home in
showable condition and shall make it available for showing. Wife shall
have reasonable notice as to when she must vacate the home. Husband is to
receive all proceeds from the sale of the house. Wife will remain in the
house for at least six months or until the house is sold, whichever is
earlier.*
*From the sales proceeds of the house, Husband is to deposit
$5,000 in an account for [K.W.‟s] post-high school
educational expenses, with Wife as trustee, and $15,000 into
an account for [C.W.‟s] post high school educational
expenses, with Husband as trustee.
2
The parties‟ divorce decree also incorporated a “final” parenting plan, which
provided that the children would spend 230 days per year with Mother and 135 days
annually with Father. The parenting plan further provided that Father would pay Mother
$950.00 per month in child support, including $414.00 for “Father‟s agreed upon share of
the children‟s school/da,” presumably referring to preschool and day care expenses. The
parenting plan also stated that “[t]he parties affirmatively acknowledge that Court
approval must be obtained before child support can be reduced or modified, unless such
payments are automatically reduced or terminated under the terms of the Parenting Plan.”
The parenting plan did not contain any provision for an automatic reduction or
termination in child support, although it did provide: “Any change from public to private
school or vice-versa shall constitute a significant variance for purposes of child support
review.”
In August 2005, Mother filed a motion seeking to extend the agreed order of
protection for another year. Mother claimed that Father had appeared at her home
unannounced and uninvited on more than one occasion in violation of the order of
protection. The trial court thereafter entered an order extending the order of protection
for an additional year and modifying it such that Father was not allowed to visit Mother‟s
home for any reason. Father appealed this order, which resulted in an affirmance by this
Court. See Wadhwani v. White, No. M2005-02655-COA-R3-CV, 2007 WL 27329, at *1
(Tenn. Ct. App. Jan. 3, 2007).
In May 2007, Mother filed an emergency petition seeking to modify Father‟s co-
parenting schedule. Mother alleged that Father had been angry and violent with the
parties‟ oldest son. Mother also raised an issue of contempt. Mother filed an amended
petition in April 2008, asserting that Father was in arrears on his child support obligation
and had failed to sell the marital residence as ordered in the parties‟ divorce decree. In
February 2009, Father filed a counter-petition seeking modification of the parenting plan
and of his child support obligation. In January 2012, Mother renewed her petition for
contempt and for enforcement of Father‟s child support obligation. The record reflects
that these petitions were apparently never acted upon by the trial court nor pursued by the
parties.
On May 21, 2012, the State of Tennessee filed a petition on Father‟s behalf
seeking a reduction in his child support obligation. The petition stated that Father had
been participating in or had applied for a state-sponsored public assistance program, such
that the State was “a party for the limited purpose of fulfilling its obligations as set forth
under Title IV-D and the laws of Tennessee.” The State asserted that Father had been
ordered in 2005 to pay child support in the amount of $950.00 per month but that a
significant variance existed at the time of the petition between the amount he had been
ordered to pay and the amount calculated pursuant to the Child Support Guidelines.
3
Father filed an affidavit of indigency, and the trial court appointed counsel to
represent him. The parties thereafter filed competing contempt petitions. By order dated
March 27, 2013, following a hearing on November 5, 2012, the trial court determined
that Father owed $950.00 per month in child support pursuant to the parties‟ divorce
decree and parenting plan. The court noted, however, that $414.00 of that obligation was
contractual because it represented Father‟s share of the children‟s private school and day
care expense. The court thus concluded that the $414.00 portion was not enforceable by
a contempt petition but that the remaining $536.00 portion was enforceable by a
contempt petition.
Following a subsequent hearing held on March 25, 2013, the trial court, by order
dated April 8, 2013, directed Father to place the marital residence on the market for sale
no later than April 24, 2013. The court further directed that a lien in the amount of
$20,000.00 be placed upon any inheritance to be received by Father from his uncle‟s
estate to secure Father‟s obligation regarding the children‟s college funds, as detailed in
the parties‟ earlier divorce decree. The court entered a supplemental order on May 16,
2013, finding that the child support provision in the parties‟ divorce decree was clear,
concise, and unambiguous, but that Father failed to pay as ordered even though he had
the ability to do so. The court determined Father‟s total child support arrearage to be
$50,178.00 at the time of the hearing. The court set a review hearing regarding resolution
of the contempt petition for July 15, 2013.
Following the subsequent contempt hearing, the trial court entered an order on
August 30, 2013, finding that the marital residence had been sold.1 Pursuant to the lien
placed on title to the home by the State, $50,527.31 was paid toward Father‟s child
support obligation. The court thus determined that Father had an arrearage as of the
August 2013 order in the amount of $1,128.69.
Meanwhile, the trial court conducted a child support modification hearing on July
22, 2013, subsequently entering an order from that hearing on September 23, 2013. In
that order, the court made factual findings, which we have summarized for brevity:
1. Child support would only be modified to the date of filing of the
State‟s petition for modification, or May 12, 2012.2 The court
determined that while Father had filed a prior petition in February
2009 seeking modification of his child support obligation, Father
1
In the meantime, Mother sought and was granted another order of protection against Father on July 8,
2013.
2
The trial court erroneously determined that the date of filing of the State‟s petition seeking to modify
child support was May 12, 2012. In actuality, the petition was file-stamped on May 21, 2012.
4
had admitted that he “did not move his petition[] forward to
resolution” for various reasons.
2. Father was “somewhat” underemployed because he had a Master‟s
Degree in Journalism but was working part-time for a moving
company earning $15.00 per hour. The court thus imputed income
to Father of $2,600.00 per month.
3. Mother was employed by Gannett Company earning a gross income
of $4,742.83 per month.
4. Mother‟s cost of health insurance premiums for the children was
$158.00 per month.
5. Mother incurred work-related child care expenses of $135.00 per
month.
6. The allocation of parenting plan days would remain the same, with
Mother having the children for 230 days per year and Father having
the children 135 days annually.
7. A significant variance existed between the prior child support
amount and the new amount of $152.00 per month.
8. The prior deviation for tuition would not be included because
Mother was no longer incurring this cost.
9. Father was a beneficiary of his uncle‟s estate, which would be
settled in the near future.
10. Accumulated interest on the child support arrearage would be
addressed upon further hearing.
On December 9, 2013, the trial court entered an order, again determining that
Father‟s child support obligation could not be modified prior to May 12, 2012, the date of
filing of the State‟s petition to modify.3 Father‟s current child support obligation was set
for further review on December 16, 2013. Father filed a notice of appeal later that same
day, seeking to appeal the order of December 9, 2013. On December 16, 2013, Father
filed a motion for recusal, alleging that the trial court judge had shown favoritism toward
Mother and had acted unfairly toward Father.
3
See footnote 2.
5
The following day, Mother‟s counsel filed an emergency petition for a restraining
order, alleging that Father had made a death threat against counsel. Due to the pending
motion for recusal, Mother‟s counsel requested that her petition be heard by another
judge. The restraining order was entered on December 19, 2013, by a judge sitting by
interchange.
On January 2, 2014, the trial court entered an order from the December 16, 2013
hearing. The court noted that Father had presented his motion for recusal during the
course of the hearing after the court had directed Father to deposit any additional money
he received from his uncle‟s estate into the registry of the Davidson County Circuit Court
Clerk‟s office pending further court determination regarding interest due on Father‟s
previous child support arrearage. The court thus determined that it could not rule on any
further issues until the recusal issue was addressed.
On January 15, 2014, the trial court entered an order denying Father‟s motion for
recusal. The court found that no basis for recusal existed pursuant to Tennessee Supreme
Court Rule 10 because the judge held no bias or prejudice toward either party and had no
doubt of his ability to proceed impartially in this matter. On August 13, 2014, Mother
sought and was granted another order of protection against Father.
On November 24, 2014, this Court ordered the parties to show cause why Father‟s
December 2013 appeal should not be dismissed due to the lack of a final order. On
December 2, 2014, Father gave notice to the trial court that he wished to dismiss his
counter-petition, in which he had sought modification of the parties‟ parenting plan and
his child support obligation, in order to “expedite the matter for the Court of Appeals.”
Thereafter, on December 19, 2014, this Court dismissed Father‟s appeal due to lack of a
final order. Father subsequently filed a motion seeking a final order from the trial court,
stating that “[a]ll issues in this case have been resolved or are no longer relevant.”
During a subsequent hearing held on April 9, 2015, however, Father stated (as
memorialized in the court‟s subsequent order) that he did not believe the only outstanding
issue to be a determination of the proper current amount of child support. Father then
provided the court with a “list of pending petitions,” stating that Mother‟s 2007 petition
for contempt and Father‟s 2009 petition regarding modification of the parenting plan and
child support had never been adjudicated.
On June 1, 2015, the trial court entered an order stating, inter alia:
[T]he Court found that any Petitions filed by either party prior to May 12,
2012 should be dismissed for failure to prosecute them. The Court further
found that the Father has acknowledged that he did not move forward on
6
the said Petitions for various reasons. The Court also found that it has an
interest in controlling its docket and as part of that important interest, it is
thus dismissing any Petitions filed prior to May 12, 2012, with prejudice. 4
The Court further found that the only remaining issue before the Court is
the accuracy of current child support due from the Father to the Mother . .
..
The trial court conducted a hearing on June 1, 2015, regarding Father‟s child
support obligation. The record contains a statement of the evidence from that hearing,
which was approved by the trial court. In the statement of the evidence, the trial court
noted that Father was the “absolute worst witness the Court has ever had before it.”
Father was described as histrionic and as failing to answer questions directly and only
answering questions “in a way to help himself.” The court found that Father was
unworthy of belief and accorded no weight to his testimony. The court found that
Mother, by contrast, “appeared truthful, answered questions in a straight-forward manner,
and most importantly, answered the question that was asked.” The court accorded great
weight to Mother‟s testimony.
The trial court entered an order on July 17, 2015, finding Father to be
underemployed and imputing income to him of at least $2,600.00 per month. The court
also determined that Father‟s $107,000.00 inheritance from his uncle‟s estate should be
considered gross income for child support purposes and averaged over a ten-year period.
The court thus determined that Father‟s total gross income should be established at
$3,434.10 per month. Based on the child support worksheet, the court concluded that
Father should pay child support to Mother in the amount of $318.00 per month.
Although this order disposed of the remaining issues in the case, the court also certified
this order as final pursuant to Tennessee Rule of Civil Procedure 54.02.5
4
See footnote 2.
5
As our Supreme Court has explained:
Rule 54.02 requires as an absolute prerequisite to an appeal the certification by
the trial judge, first, that the court has directed the entry of a final judgment as to one or
more but fewer than all of the claims, and, second, [made] an express determination that
there is no just reason for delay. Such certification by the trial judge creates a final
judgment appealable as of right under Rule 3 T.R.A.P.
Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983). In this case, however, the trial court was not directing the
entry of a final judgment that adjudicated fewer than all of the claims because Father‟s current child
support obligation was the only remaining claim left to be adjudicated. Ergo, the trial court‟s order was
final because no outstanding claims or issues remained.
7
Father filed a motion to alter or amend, which was denied by the trial court by
order entered July 27, 2015. Father timely appealed.
II. Issues Presented
Father‟s brief presents numerous issues for our review, written in a narrative style.
Upon careful review, we have therefore restated Father‟s issues as follows:
1. Whether the trial court erred by ordering Father to sell the marital
residence pursuant to the terms of the parties‟ divorce decree.
2. Whether the trial court erred by enforcing the parties‟ agreed
parenting plan with regard to preschool and day care expenses.
3. Whether the trial court erred by holding Father in civil contempt for
failure to pay child support or for picking the children up after
school.
4. Whether the trial court erred by dismissing Father‟s 2009 petition to
modify the parties‟ parenting plan and Father‟s child support
obligation.
5. Whether the trial court erred by denying Father‟s request to submit
evidence and/or witnesses in support of his claims.
6. Whether the trial court erred in determining Father to be willfully
underemployed.
7. Whether the trial court erred in its calculation of current child
support.
8. Whether the trial court erred in granting Mother an order of
protection on September 4, 2014.
9. Whether the trial court erred in denying Father‟s motion seeking the
trial judge‟s recusal.
8
Mother raises the following additional issue:
10. Whether this Court should dismiss Father‟s appeal for failure to
comply with Tennessee Rule of Appellate Procedure 27 and Rule 6
of the Rules of the Court of Appeals of Tennessee.
III. Standard of Review
Determinations regarding child support are reviewed under an abuse of discretion
standard. See Mayfield v. Mayfield, 395 S.W.3d 108, 114-15 (Tenn. 2012); Richardson v.
Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005). “This standard requires us to
consider (1) whether the decision has a sufficient evidentiary foundation, (2) whether the
court correctly identified and properly applied the appropriate legal principles, and (3)
whether the decision is within the range of acceptable alternatives.” State ex rel. Vaughn
v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). To the extent that we need also
review the factual findings of the trial court, we presume those findings to be correct and
will not overturn them unless the evidence preponderates against them. See Tenn. R.
App. P. 13(d); Morrison v. Allen, 338 S.W.3d 417, 425-26 (Tenn. 2011). “In order for
the evidence to preponderate against the trial court‟s findings of fact, the evidence must
support another finding of fact with greater convincing effect.” Wood v. Starko, 197
S.W.3d 255, 257 (Tenn. Ct. App. 2006).
Additionally, as this Court has explained with regard to self-represented litigants:
Parties who decide to represent themselves are entitled to fair and
equal treatment by the courts. The courts should take into account that
many pro se litigants have no legal training and little familiarity with the
judicial system. However, the courts must also be mindful of the boundary
between fairness to a pro se litigant and unfairness to the pro se litigant‟s
adversary. Thus, the courts must not excuse pro se litigants from
complying with the same substantive and procedural rules that represented
parties are expected to observe.
The courts give pro se litigants who are untrained in the law a certain
amount of leeway in drafting their pleadings and briefs. Accordingly, we
measure the papers prepared by pro se litigants using standards that are less
stringent than those applied to papers prepared by lawyers.
Pro se litigants should not be permitted to shift the burden of the
litigation to the courts or to their adversaries. They are, however, entitled
to at least the same liberality of construction of their pleadings that Tenn.
9
Rawle Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the
courts cannot create claims or defenses for pro se litigants where none exist,
they should give effect to the substance, rather than the form or
terminology, of a pro se litigant‟s papers.
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (internal citations
omitted).
IV. Deficiencies in Father‟s Brief
As a threshold procedural matter, Mother asserts that Father‟s appellate brief
should be disregarded and his appeal dismissed because it fails to meet the requirements
for an appellant‟s brief provided in Tennessee Rule of Appellate Procedure 27, which
states in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
***
(6) A statement of facts, setting forth the facts relevant to the issues
presented for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument,
setting forth:
(A) the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why
the contentions require appellate relief, with citations to the
authorities and appropriate references to the record (which
may be quoted verbatim) relied on; and
(B) for each issue, a concise statement of the applicable
standard of review (which may appear in the discussion of the
issue or under a separate heading placed before the discussion
of the issues) . . . .
(Emphasis added.)
10
Similarly, Rule 6 of the Rules of the Court of Appeals of Tennessee provides in
pertinent part:
(a) Written argument in regard to each issue on appeal shall contain:
(1) A statement by the appellant of the alleged erroneous action of the trial
court which raises the issue and a statement by the appellee of any action of
the trial court which is relied upon to correct the alleged error, with citation
to the record where the erroneous or corrective action is recorded.
(2) A statement showing how such alleged error was seasonably called to
the attention of the trial judge with citation to that part of the record where
appellant‟s challenge of the alleged error is recorded.
(3) A statement reciting wherein appellant was prejudiced by such alleged
error, with citations to the record showing where the resultant prejudice is
recorded.
(4) A statement of each determinative fact relied upon with citation to the
record where evidence of each such fact may be found.
(b) No complaint of or reliance upon action by the trial court will be
considered on appeal unless the argument contains a specific reference to
the page or pages of the record where such action is recorded. No assertion
of fact will be considered on appeal unless the argument contains a
reference to the page or pages of the record where evidence of such fact is
recorded.
(Emphasis added.)
Father‟s brief contains numerous deficiencies with regard to the above-listed
requirements. The statement of facts included in Father‟s brief contains no references to
the record. See Tenn. R. App. P. 27. Likewise, the argument section also exhibits no
record citations and few citations to authority. Id.; see also Tenn. Ct. App. R. 6. With
regard to several of the issues raised, Father has failed to demonstrate that the errors
alleged were brought to the attention of the trial court by citing the part of the record
where the challenge of the alleged error would be recorded. See Tenn. Ct. App. R. 6. As
this Court has previously explained with regard to deficiencies in an appellate brief:
Our Courts have “routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the argument
11
section of the brief as described by Rule 27(a)(7) constitutes a waiver of the
issue[s] [raised].” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000).
In Bean, we went on to hold that “an issue is waived where it is simply
raised without any argument regarding its merits.” Id. at 56; see also
Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)
(holding that the failure of a party to cite to any authority or to construct an
argument regarding his or her position on appeal constitutes waiver of that
issue). As we stated in Newcomb, a “skeletal argument that is really
nothing more than an assertion will not properly preserve a claim.”
Newcomb, 222 S.W.3d at 400. It is not the function of this Court to verify
unsupported allegations in a party‟s brief or to research and construct the
party‟s argument. Bean, 40 S.W.3d at 56.
Despite the fact that [the appellant‟s] brief is woefully inadequate,
there are times when this Court, in the discretion afforded it under Tenn. R.
App. P. 2, may waive the briefing requirements to adjudicate the issues on
their merits. This is especially true in cases involving domestic relations
where the interests of children are involved.
Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009).
In the case at bar, although Father‟s brief fails to satisfy the requirements of
Tennessee Rule of Appellate Procedure 27 and Rule 6 of the Rules of the Court of
Appeals of Tennessee, we determine that, due to the length of time this domestic relations
litigation involving the interests of children has been ongoing, this is an appropriate case
in which to exercise our discretion to waive the briefing requirements in order to
adjudicate certain issues on the merits. We therefore decline Mother‟s request that we
disregard Father‟s brief in its entirety.
V. Forced Sale of the Marital Residence
Father asserts that the trial court erred by ordering him to sell the marital residence
in accordance with the terms of the parties‟ divorce decree. The parties‟ final decree,
dated March 10, 2005, provided that Father was to place the marital residence on the
market. It further provided that Father would receive all proceeds from the sale of the
home but that he was to deposit $20,000.00 from those proceeds into college accounts for
the children.
On February 4, 2013, Mother filed a petition seeking, inter alia, an order from the
court commanding Father to sell the marital residence and place the requisite funds in the
children‟s college accounts because Father had never done so. On April 8, 2013, the
12
court entered an order directing Father to place the house on the market no later than
April 24, 2013. The court also ordered Father to deposit $20,000.00 from the proceeds of
the sale of the home into college accounts for the children, pursuant to the terms of the
parties‟ divorce decree. A subsequent order of the court reflects that Father sold the
marital residence prior to August 30, 2013.
Father does not dispute that he agreed in the parties‟ divorce decree that the
marital residence would be sold. Father specifically argues that the trial court erred in
ordering him to sell the marital residence because “it is the sole asset of the indigent
appellant, [and] amounts to a termination of his parental rights because he will be, and
did become, homeless and unable to exercise them.” In the approved statement of the
evidence filed in this matter, however, the trial court noted that Father purchased a home
in December 2013 with a portion of an inheritance he received from his uncle. It is also
clear from the record that Father has continued to exercise his co-parenting time with the
children. Therefore, Father has shown no basis as to why the trial court erred in ordering
him to sell the marital residence, which he agreed to do as part of the parties‟ divorce.
We determine this issue to be without merit.
VI. Prior Child Support Order and Contempt
Father argues that the trial court erred by determining Father to be in arrears on his
child support obligation and subsequently ordering a lien placed on the sale proceeds
from the marital residence to satisfy the arrearage. Father asserts that a portion of the
prior child support obligation was for preschool tuition that was neither incurred nor paid
by Mother. Father appears to be referring to orders of the trial court dated March 27,
2013, and May 16, 2013, wherein the trial court determined that the prior child support
order of $950.00 per month was enforceable and could not be unilaterally modified by
Father. The court noted that the $950.00 total amount was comprised of $536.00
determined by the child support guidelines plus a $414.00-per-month upward deviation,
which represented Father‟s share of the children‟s preschool and day care expenses. The
court further noted that the total amount was agreed to by Father and ordered by the
court.
Father also argues that the trial court erred in enforcing this prior child support
obligation because Mother did not present evidence proving that she incurred or paid the
extra expense constituting the $414.00 monthly upward deviation. We note, however,
that Father has not provided this Court with a statement of the evidence or a transcript of
the relevant hearing in order for this Court to review the evidence presented regarding
this ruling.
13
Tennessee Rule of Appellate Procedure 24 provides in pertinent part:
(b) Transcript of Stenographic or Other Substantially Verbatim Recording
of Evidence or Proceedings. Except as provided in subdivision (c), if a
stenographic report or other contemporaneously recorded, substantially
verbatim recital of the evidence or proceedings is available, the appellant
shall have prepared a transcript of such part of the evidence or proceedings
as is necessary to convey a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal. Unless
the entire transcript is to be included, the appellant shall, within 15 days
after filing the notice of appeal, file with the clerk of the trial court and
serve on the appellee a description of the parts of the transcript the
appellant intends to include in the record, accompanied by a short and plain
declaration of the issues the appellant intends to present on appeal. If the
appellee deems a transcript of other parts of the proceedings to be
necessary, the appellee shall, within 15 days after service of the description
and declaration, file with the clerk of the trial court and serve on the
appellant a designation of additional parts to be included. The appellant
shall either have the additional parts prepared at the appellant‟s own
expense or apply to the trial court for an order requiring the appellee to do
so. The transcript, certified by the appellant, the appellant‟s counsel, or the
reporter as an accurate account of the proceedings, shall be filed with the
clerk of the trial court within 60 days after filing the notice of appeal. Upon
filing the transcript, the appellant shall simultaneously serve notice of the
filing on the appellee. Proof of service shall be filed with the clerk of the
trial court with the filing of the transcript. If the appellee has objections to
the transcript as filed, the appellee shall file objections thereto with the
clerk of the trial court within fifteen days after service of notice of the filing
of the transcript. Any differences regarding the transcript shall be settled as
set forth in subdivision (e) of this rule.
***
(c) Statement of the Evidence When No Report, Recital, or Transcript Is
Available. If no stenographic report, substantially verbatim recital or
transcript of the evidence or proceedings is available, or if the trial court
determines, in its discretion, that the cost to obtain the stenographic report
in a civil case is beyond the financial means of the appellant or that the cost
is more expensive than the matters at issue on appeal justify, and a
statement of the evidence or proceedings is a reasonable alternative to a
stenographic report, the appellant shall prepare a statement of the evidence
14
or proceedings from the best available means, including the appellant‟s
recollection. The statement should convey a fair, accurate and complete
account of what transpired with respect to those issues that are the bases of
appeal. The statement, certified by the appellant or the appellant‟s counsel
as an accurate account of the proceedings, shall be filed with the clerk of
the trial court within 60 days after filing the notice of appeal. Upon filing
the statement, the appellant shall simultaneously serve notice of the filing
on the appellee, accompanied by a short and plain declaration of the issues
the appellant intends to present on appeal. Proof of service shall be filed
with the clerk of the trial court with the filing of the statement. If the
appellee has objections to the statement as filed, the appellee shall file
objections thereto with the clerk of the trial court within fifteen days after
service of the declaration and notice of the filing of the statement. Any
differences regarding the statement shall be settled as set forth in
subdivision (e) of this rule.
***
(e) Correction or Modification of the Record. If any matter properly
includable is omitted from the record, is improperly included, or is
misstated therein, the record may be corrected or modified to conform to
the truth. Any differences regarding whether the record accurately
discloses what occurred in the trial court shall be submitted to and settled
by the trial court regardless of whether the record has been transmitted to
the appellate court. Absent extraordinary circumstances, the determination
of the trial court is conclusive. If necessary, the appellate or trial court may
direct that a supplemental record be certified and transmitted.
(f) Approval of the Record by Trial Judge or Chancellor. The trial judge
shall approve the transcript or statement of the evidence and shall
authenticate the exhibits as soon as practicable after the filing thereof or
after the expiration of the 15-day period for objections by appellee, as the
case may be, but in all events within 30 days after the expiration of said
period for filing objections. Otherwise the transcript or statement of the
evidence and the exhibits shall be deemed to have been approved and shall
be so considered by the appellate court, except in cases where such
approval did not occur by reason of the death or inability to act of the trial
judge. In the event of such death or inability to act, a successor or
replacement judge of the court in which the case was tried shall perform the
duties of the trial judge, including approval of the record or the granting of
any other appropriate relief, or the ordering of a new trial. Authentication
15
of a deposition authenticates all exhibits to the deposition. The trial court
clerk shall send the trial judge transcripts of evidence and statements of
evidence.
In the case at bar, no transcript has been filed that is properly certified as required
by Tennessee Rule of Appellate Procedure 24. Although Father filed with the trial court
copies of video recordings from various hearings, along with transcripts of those
recordings that were apparently prepared by Father, those transcripts were never certified
by Father or by the trial judge. The video recordings and submitted transcripts cannot be
considered by this Court because they do not meet the requirements of Tennessee Rule of
Appellate Procedure 24.6 Furthermore, the only statement of evidence that was approved
by the trial judge is dated November 23, 2015, and relates exclusively to the June 1, 2015
child support hearing, wherein the trial court set Father‟s current obligation.
Inasmuch as this Court has no proper transcript or statement of the evidence from
the prior child support hearing, we must presume that there was sufficient evidence to
support the trial court‟s factual findings. See Word v. Word, 937 S.W.2d 931, 932 (Tenn.
Ct. App. 1996) (“In the absence of a transcript, we must assume that „the record, had it
been preserved, would have contained sufficient evidence to support the trial court‟s
factual findings.‟”) (quoting Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App.
1992)).
Father also argues that the trial court erred by finding him to be in contempt for his
failure to pay child support. In its 2013 orders, the court determined that Father had
willfully refused to pay the child support ordered, despite his ability to do so. Again, the
trial court‟s factual determination regarding Father‟s ability to pay cannot be reviewed in
the absence of a proper transcript or statement of the evidence. Therefore, the court‟s
ruling must stand. See Word, 937 S.W.2d at 932.
Father further raises an issue regarding whether the trial court properly held him in
contempt for picking the children up after school. Although the record does contain a
6
Father previously asked this Court to allow him to submit the video recordings in lieu of written
transcripts, and that motion was denied by this Court on August 12, 2015. We further note that the trial
court, the Fourth Circuit Court of the 20th Judicial District, has not been authorized to use audio-visual
recordings as the official record of court proceedings pursuant to Tennessee Supreme Court Rule 26. See
Tenn. Sup. Ct. R. 26 § 1.01 (“This rule applies to any court of record authorized by the Supreme Court of
Tennessee to use electronic recording equipment to record court proceedings.”); see also Tenn. 20th J.
Dist. R. § 8(a) (“The Sixth Circuit Court has been authorized by the Supreme Court to use audio-visual
recordings as the official record of court proceedings pursuant to Supreme Court Rule 26. Unless
otherwise ordered by the affected court, no other court will record or utilize such audio-visual recordings
as the official record on appeal . . . .”).
16
contempt petition regarding such conduct by Father that was filed by Mother on August
21, 2015, this date was more than two weeks following the filing of the notice of appeal.
As such, the petition was clearly not addressed by the trial court‟s final order of July 27,
2015, and cannot be addressed as an issue on appeal. See Dorrier v. Dark, 537 S.W.2d
888, 890 (Tenn. 1976) (“This is a court of appeals and errors, and we are limited in
authority to the adjudication of issues that are presented and decided in the trial courts . . .
.”).
VII. Dismissal of Father‟s 2009 Counter-Petition
Father argues that the trial court erred in dismissing his 2009 counter-petition, in
which he sought a modification of the parties‟ parenting plan and his child support
obligation. Mother had previously filed an emergency petition on May 3, 2007, seeking
an order modifying Father‟s co-parenting time with the children. Mother thereafter filed
an amended petition on April 25, 2008, further addressing child support arrearages.
Father filed a counter-petition on February 18, 2009, seeking a modification of the
parenting plan and his child support obligation. There appears nothing in the record
demonstrating that these petitions were ever set for hearing.
The State filed a subsequent petition seeking modification of Father‟s child
support obligation on May 21, 2012. Following the filing of other petitions by both
parties, the trial court conducted a hearing on November 5, 2012, regarding child support.
The court found the prior child support provision to be enforceable and subsequently
established the amount of Father‟s arrearage by Order entered May 16, 2013. During a
subsequent hearing conducted on July 22, 2013, the trial court determined that child
support could not be set at that time because Father testified that he had been caring for
his uncle until December 1, 2011, and was awaiting an inheritance from his uncle‟s estate
in an amount yet to be determined.
In the September 23, 2013 order (from the July 22, 2013 hearing), the trial court
determined that Father had “filed his own petitions for modification either pro se or
through private counsel dating back a few years. While these prior petitions were never
dismissed, by Father‟s own admissions, there were various reasons he did not move his
petitions forward to resolution.” The court thus determined that Father‟s child support
obligation could not be modified prior to the date that the State filed its petition seeking
modification of child support in May 2012.
Following the dismissal of Father‟s 2013 appeal, he again raised an issue
regarding his 2009 counter-petition. The trial court entered a subsequent order dated
June 1, 2015, wherein the court stated:
17
[A]ny Petitions filed by either party prior to May 12, 2012 should be
dismissed for failure to prosecute them. The Court further found that the
Father has acknowledged that he did not move forward on the said Petitions
for various reasons. The Court also found that it has an interest in
controlling its docket and as part of that important interest, it is thus
dismissing any Petitions filed prior to May 12, 2012, with prejudice.7
Father complains that the trial court erred by dismissing his 2009 counter-petition,
insisting that the trial court should have modified his child support obligation to the date
of filing of the 2009 counter-petition rather than the 2012 filing date of the State‟s
petition. We disagree. This Court has previously explained:
Trial courts possess inherent, common-law authority to control their
dockets and the proceedings in their courts. Their authority is quite broad
and includes the express authority to dismiss cases for failure to prosecute
or to comply with the Tennessee Rules of Civil Procedure or the orders of
the court. Tenn. R. Civ. P. 37.02(C); Tenn. R. Civ. P. 41.02(1); Kotil v.
Hydra-Sports, Inc., No. 01A01-9305-CV-00200, 1994 WL 535542, at *3
(Tenn. Ct. App. Oct. 5, 1994) (No Tenn. R. App. P. 11 application filed).
Because decisions to dismiss for failure to prosecute are discretionary,
White v. College Motors, 212 Tenn. 384, 386, 370 S.W.2d 476, 477 (1963),
reviewing courts will second-guess a trial court only when it has acted
unreasonably, arbitrarily, or unconscionably. Friedman v. Belisomo, No.
02A01-9304-CH-00094, 1993 WL 498504, at *3 (Tenn. Ct. App. Dec. 1,
1993) (No Tenn. R. App. 11 application filed). Trial courts may, on their
own motion, dismiss cases for lack of prosecution, but this authority should
be exercised sparingly and with great care. Harris v. Baptist Mem’l Hosp.,
574 S.W.2d 730, 731 (Tenn. 1978).
Hodges v. Attorney Gen., 43 S.W.3d 918, 921 (Tenn. Ct. App. 2000).
In this matter, Mother‟s petition was originally filed in May 2007, and Father‟s
counter-petition was filed in February 2009. Neither party pursued a hearing regarding
these respective petitions. Upon the November 2012 hearing on the State‟s May 2012
petition, the trial court found in its subsequent order that Father “acknowledged that he
did not move forward on the said Petitions for various reasons.” The court also
determined that it had an interest in controlling its docket and thus would not, in 2012,
consider the dormant 2007, 2008, and 2009 petitions. We conclude that the trial court did
not abuse its discretion in this determination and did not act unreasonably, arbitrarily, or
unconscionably. Therefore, the trial court did not err by refusing to modify Father‟s child
7
See footnote 2.
18
support obligation prior to the date of filing of the State‟s petition to modify in May
2012.
VIII. Exclusion of Evidence and Witnesses
Father asserts that the trial court erred by “refusing to hear witnesses or let
evidence be entered into the record in [Father‟s] defense.” As previously explained, the
only proper record provided to this Court regarding what transpired at the trial court level
is the statement of the evidence approved by the trial court on November 23, 2015. This
statement, however, fails to detail any evidence or witnesses proffered by Father and
rejected by the court. We reiterate:
[I]n order for this Court to properly review the trial court‟s actions, the
record must be in a proper posture to provide us a meaningful review. This
Court‟s review is limited to the appellate record and it is incumbent upon
the appellant to provide a record that is adequate. Jennings v. Sewell-Allen
Piggly Wiggly, 173 S.W.3d 710 (Tenn. 2005).
Chiozza, 315 S.W.3d at 489. Inasmuch as Father has failed to provide this Court with an
adequate record to review this issue, no relief can be granted.
IX. Willful Underemployment
Father argues that the trial court erred in finding him to be willfully
underemployed and imputing income to him for purposes of setting his current child
support obligation. This Court has elucidated the proper standard of review to be applied
to such a determination as follows:
A trial court‟s determination regarding willful and voluntary
underemployment is entitled to a presumption of correctness, and “we
accord substantial deference to the trial court‟s decision, especially when it
is premised on the trial court‟s singular ability to ascertain the credibility of
the witnesses.” Reed [v. Steadham, No. E2009-00018-COA-R3-CV,] 2009
WL 3295123 at *2 [(Tenn. Ct. App. Oct. 14, 2009)].
Miller v. Welch, 340 S.W.3d 708, 712-13 (Tenn. Ct. App. 2010) (quoting Pace v. Pace,
No. M2009-01037-COA-R3-CV, 2010 WL 1687740, at *8 (Tenn. Ct. App. Apr. 26,
2010) (other internal citations omitted)).
The Child Support Guidelines provide that income may be imputed to a parent
when that parent has been determined to be voluntarily underemployed. See Tenn.
19
Comp. R. & Regs. 1240-02-04-.04. Regarding the determination of willful or voluntary
underemployment, the Guidelines state:
The Guidelines do not presume that any parent is willfully and/or
voluntarily under or unemployed. The purpose of the determination 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.
(I) A determination of willful and/or voluntary underemployment or
unemployment is not limited to choices motivated by an intent to avoid or
reduce the payment of child support. The determination may be based on
any intentional choice or act that adversely affects a parent‟s income.
Criminal activity and/or incarceration shall not provide grounds for
reduction of any child support obligation. Therefore, criminal activity
and/or incarceration shall result in a finding of voluntary underemployment
or unemployment under this section, and child support shall be awarded
based upon this finding of voluntary underemployment or unemployment.
(II) Once a parent that 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. The additional income
allocated to the parent shall be determined using the following criteria:
I. The parent‟s past and present employment; and
II. The parent‟s education and training.
(III) A determination of willful and voluntary unemployment or
underemployment shall not be made when an individual enlists, is drafted,
or is activated from a Reserve or National Guard unit, for full-time service
in the Armed Forces of the United States.
Id. The Guidelines also list certain factors that are to be considered when
determining whether a parent is voluntarily underemployed, as follows:
(I) The parent‟s past and present employment;
20
(II) The parent‟s education, training, and ability to work;
(III) The State of Tennessee recognizes the role of a stay-at-home parent as
an important and valuable factor in a child‟s life. In considering whether
there should be any imputation of income to a stay-at-home parent, the
tribunal shall consider:
I. Whether the parent acted in the role of full-time caretaker
while the parents were living in the same household;
II. The length of time the parent staying at home has
remained out of the workforce for this purpose; and
III. The age of the minor children.
(IV) A parent‟s extravagant lifestyle, including ownership of valuable
assets and resources (such as an expensive home or automobile), that
appears inappropriate or unreasonable for the income claimed by the
parent;
(V) The parent‟s role as caretaker of a handicapped or seriously ill child of
that parent, or any other handicapped or seriously ill relative for whom that
parent has assumed the role of caretaker which eliminates or substantially
reduces the parent‟s ability to work outside the home, and the need of that
parent to continue in that role in the future;
(VI) Whether unemployment or underemployment for the purpose of
pursuing additional training or education is reasonable in light of the
parent‟s obligation to support his/her children and, to this end, whether the
training or education will ultimately benefit the child in the case
immediately under consideration by increasing the parent‟s level of support
for that child in the future;
(VII) Any additional factors deemed relevant to the particular
circumstances of the case.
Id.
Delving further into the subject of voluntary underemployment, this Court
explained:
21
The Guidelines state that imputing additional gross income to a
parent is appropriate if it is determined that he or she is “willfully and/or
voluntarily underemployed or unemployed.” Tenn. Comp. R. & Regs. §
1240-02-04-.04(3)(a)(2)(i)(I). “This is based on the premise that parents
may not avoid their financial responsibility to their children by
unreasonably failing to exercise their earning capacity.” Massey v. Casals
[315 S.W.3d 788, 795], No. W2008-01807-COA-R3-JV, 2009 WL
4017256, at *6 (Tenn. Ct. App. Nov. 23, 2009). Therefore, a trial court
may deny a petition for modification of child support if the significant
variance is the result of willful or voluntary underemployment. Wine [v.
Wine], 245 S.W.3d [389,] 394 [(Tenn. Ct. App. 2007)]. “The burden of
proving that a significant variance is the result of willful or voluntary
underemployment is on the party opposing the modification.” Id. (citing
Demers v. Demers, 149 S.W.3d 61, 69 (Tenn. Ct. App. 2003)). “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). “The purpose of the determination 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.” Id.
“A determination of willful and/or voluntary underemployment or
unemployment is not limited to choices motivated by an intent to avoid or
reduce the payment of child support. The determination may be based on
any intentional choice or act that adversely affects a parent‟s income.”
Tenn. Comp. R. & Regs. § 1240-02-04-.04(3)(a)(2)(ii)(I) (emphasis added).
However, “[i]f a parent‟s reasons for working in a lower paying job are
reasonable and in good faith, the court will not find him or her to be
willfully and voluntarily underemployed.” Owensby v. Davis, No. M2007-
01262-COA-R3-JV, 2008 WL 3069777, at *4, n.7 (Tenn. Ct. App. July 31,
2008). Although it is not required that parents intend to avoid their child
support obligations by their actions, “willful or voluntary unemployment or
underemployment must result from an intent on the part of the parent to
reduce or terminate his or her income.” Wilson v. Wilson, 43 S.W.3d 495,
497 (Tenn. Ct. App. 2000). The child support guidelines provide the trial
court with several factors it may consider in making this determination.
“„Determining whether a parent is willfully and voluntarily underemployed
and what a parent‟s potential income would be are questions of fact that
require careful consideration of all the attendant circumstances.‟” Reed v.
Steadham, No. E2009-00018-COA-R3-CV, 2009 WL 3295123, at *2
22
(Tenn. Ct. App. Oct. 14, 2009) (quoting Owensby, 2008 WL 3069777, at
*4). The trial court has considerable discretion in its determination of
whether a parent is willfully or voluntarily underemployed. Hommerding v.
Hommerding, No. M2008-00672-COA-R3-CV, 2009 WL 1684681, at *7
(Tenn. Ct. App. June 15, 2009) (citing Eldridge v. Eldridge, 137 S.W.3d 1,
21 (Tenn. Ct. App. 2002)); see also Willis v. Willis, 62 S.W.3d 735, 738
(Tenn. Ct. App. 2001).
Miller, 340 S.W.3d at 712 (quoting Pace, 2010 WL 1687740, at *8 (footnote omitted)).
In the case at bar, the trial court set Father‟s current child support obligation
following a hearing held on June 1, 2015. The statement of the evidence that was
approved by the trial court provides a summary of Father‟s testimony at that hearing,
concisely rephrased as follows:
 Father was, at the time of the hearing, working part-time teaching a
film class. Father earned $160.00 per week from such part-time
employment.
 Father received Social Security and Medicare benefits of $1,233.00
per month. Father testified that he was not considered disabled.
 Father holds a Bachelor of Arts degree from the University of
California at Santa Barbara and a Master‟s Degree in journalism
from Columbia University.
 Father presented his cover letter and resume. Father worked full
time for Environmental News Trust from 2006 to 2010, earning
$3,000.00 per “piece.” Father attempted to complete one piece per
week but never accomplished this goal. Father could no longer
perform this type of work “due to his knee.”
 Father worked for WKRN from 2004 to 2006, starting at a salary of
$35,000.00 per year and concluding at a salary of $50,000.00 per
year.
 Father worked for WSMV from 2002 to 2004, earning $25.00 per
hour.
 Father also worked for Aljazeera News, “which was related with
Mazlo Media Group – a broker of media services.”
23
 Father‟s 2013 Roth IRA statement demonstrated that the total value
of his IRA accounts was $7,898.00. Father also received monthly
dividends from these accounts in the amount of $54.00 and capital
gains in the amount of $190.00.
 Father purchased a home in December 2013 for $87,000.00 with no
mortgage.
 Father did not produce any letters of rejection from employers to
whom he sent his cover letter and resume, did not provide any pay
stubs from his current employer, and provided no tax returns. Father
testified that he did not file tax returns in 2013 and 2014.
With regard to Father‟s employment, the trial court made the following findings in
its order dated July 17, 2015:
The Court . . . found that the Father had testified that he is currently
employed at the Art Institute of Tennessee, Nashville, where he is paid
$40.00 per hour and is paid for 4 hours per week although he actually
works 8 hours per week. The Father also testified that he does not have the
ability to get more hours at work. The Father further testified that he
receives Social Security retirement payments of $1,126.00 per month and
Medicare payments of $107.00 per month, for a total of $1,233.00 monthly
in governmental benefits in addition to his pay. The Father also testified
that he has a BA in film and a Masters degree in journalism from Columbia
University. The Father will be 68 in July and has children aged 12 and 15,
who are the subject of this action. The Court notes that the Father has an
impressive resume. The Father further testified that he has a small IRA and
that he did not file any tax returns in 2013 and 2014.
***
The Court noted that it had previously found at a hearing in July
2013, by Order entered in September 2013, that the Father is “somewhat
underemployed” based on his ability to work at much higher paying jobs. 8
The Court found that no proof had been presented at this hearing that the
Father is unable to generate at least the $2,600.00 per month that the Court
found him capable of earning in 2013. Based on that finding and all the
8
The referenced order, dated September 23, 2013, was from a hearing held on July 22, 2013. The record
contains no transcript or statement of the evidence from that hearing.
24
proof presented, the Court re-found that the Father is underemployed and
capable of earning at least $2,600.00 per month.
We note that although the trial court did not explicitly make a finding of “voluntary” or
“willful” underemployment, such a finding may be implicit based upon the court‟s
ultimate decision to impute income. See Anness v. Chapdelaine, No. M2000-01792-
COA-R3-CV, 2001 WL 1077959, at *3 (Tenn. Ct. App. Sept. 14, 2001). Father‟s issue,
as presented, presupposes that the trial court found his underemployment to be willful.
Based on the totality of the factual findings made by the trial court regarding Father‟s
education, training, and previous earning capacity, coupled with the trial court‟s decision
to impute income to Father, we determine that the trial court implicitly found Father‟s
underemployment to be willful.
Based upon our thorough review of the evidence as detailed in the statement of the
evidence, we conclude that the trial court did not abuse its discretion in determining
Father to be underemployed. We agree with the trial court that Father‟s resume is indeed
impressive. Father is well educated and has a history of employment at high-paying
positions in the field of journalism. Father did not prove that he was physically disabled
or otherwise unable to maintain full-time employment. The record contains no evidence
that would demonstrate a reason for Father‟s inability to earn at least the amount imputed
by the trial court.
We also note that Father reported receiving a Social Security retirement benefit of
$1,126.00 per month in addition to his income from part-time employment of
approximately $800.00 per month, for a total actual income of $1,926.00. We do not find
the trial court‟s imputation of $2,600.00 per month to be an excessive amount,
considering that this is only $674.00 more per month than Father actually received.
According the proper deference to the trial court‟s determination, including the court‟s
assessment of Father‟s credibility, we conclude that the trial court did not err in
determining Father to be underemployed and imputing income to him of $2,600.00 per
month.
X. Current Child Support Amount
Father contends that the trial court erred in setting his current child support
obligation. The statement of the evidence, summarized in part above, also contained the
following testimony, summarized as follows:
 Father stated that he was current on child support payments as of the
hearing date.
25
 Father paid child support twice per year rather than monthly.
 Father received 135 days of co-parenting time with the children
annually, and Mother received 230 days. Mother provided health
insurance for the children.
 Mother testified that she worked for The Tennessean and, in a
limited capacity, for USA Today. Mother earned $65,000.00 per
year. Mother provided all health and dental insurance for the
children at a cost of $319.00 per month.
 Father received payments from his uncle‟s estate of $7,500.00 on
December 19, 2012; $1,000.00 on December 29, 2012; and
$100,097.00 on July 31, 2013.
 Father assented to the final accounting of his uncle‟s estate on
August 26, 2013.
In its July 17, 2015 order, the trial court determined Father‟s child support
obligation to be $318.00 per month, based upon the child support worksheet calculation.
The court set Mother‟s income at $5,416.66 per month based upon her salary. Regarding
Father‟s income, the court found that Father had recently received $107,000.00 from his
uncle‟s estate, which the court determined should be included in Father‟s gross income
and averaged over a ten-year period. The court thus added $834.109 per month to the
imputed income amount of $2,600.00, to arrive at a total income for Father of $3,434.10
per month.
The Child Support Guidelines define gross income as including “all income from
any source . . . whether earned or unearned.” Tenn. Comp. R. & Regs. 1240-02-04-.04.
Gross income specifically includes such “one-time” distributions as prizes, lottery
winnings, and gifts that can be converted to cash. Id. Ergo, this Court has previously
determined that “money received by inheritance can be considered as income under the
guidelines.” Ford v. Ford, No. 01A01-9611-CV-00536, 1998 WL 730201, at *4 (Tenn.
Ct. App. Oct. 21, 1998). Courts should, however, “focus on „income regularly received
by the obligor.‟” Id. (quoting Whisenhunt v. Whisenhunt, No. 02A01-9506-CV-00126,
1997 WL 305296, at *3 (Tenn. Ct. App. June 9, 1997)). The time period used for
purposes of averaging “lies within the discretion of the trial court based upon the facts of
9
We note that the trial court appears to have made a slight miscalculation when determining that the
amount of $834.10 per month should be added to Father‟s income, inasmuch as $107,000.00 averaged
over ten years would actually yield the amount of $891.67 per month. Because no party raised this error,
we decline to recalculate Father‟s child support obligation.
26
the situation.” State ex rel. Moss v. Moss, No. M2013-00393-COA-R3-CV, 2014 WL
1998738, at *3 (Tenn. Ct. App. Apr. 24, 2014).
In this matter, the trial court determined that Father‟s $107,000.00 inheritance
received from his uncle should be considered as income for child support purposes. We
determine that the trial court was correct in doing so. See Ford, 1998 WL 730201, at *4;
see, e.g., Moore v. Moore, 254 S.W.3d 357 (Tenn. 2007) (holding that income from a
“one-time” or “isolated” capital gain must be included as income to an obligor for child
support purposes); Eldridge v. Eldridge, 137 S.W.3d 1, 22 (Tenn. Ct. App. 2002)
(holding that $340,000 capital gain should be included when determining the obligor‟s
income for child support purposes). The court also determined that Father‟s inheritance
should be averaged over a period of ten years rather than counted as income for one year.
We conclude that based on the circumstances presented, the trial court did not abuse its
discretion in doing so. See State ex rel. Moss, 2014 WL 1998738, at *3 (holding that the
time period selected for averaging “lies within the discretion of the trial court based upon
the facts of the situation.”). To have counted this entire sum as income for one year
would have produced a falsely elevated child support award, which Father would likely
be unable to maintain once the inherited funds were depleted. We determine the trial
court‟s approach of dividing the total sum over a ten-year period to be fair and equitable.
Having determined that the income amounts utilized in the child support
worksheet for both parties are fair and appropriate, we have no basis for concluding that
the trial court abused its discretion in setting Father‟s current child support obligation.
We determine this issue to be without merit.
XI. Order of Protection
Father asserts that the trial court erred by granting Mother an order of protection
on September 4, 2014, because “Mother failed to meet the legal requirements” to obtain
an order of protection. Father argues that the court failed to consider the testimony of
one of the parties‟ sons, allegedly contradicting Mother‟s account of the event
precipitating the order of protection. Again, this Court has no properly certified
transcript or statement of the evidence from the order of protection hearing. We must
therefore presume that there was sufficient evidence to support the trial court‟s factual
findings. See Word, 937 S.W.2d at 932.
XII. Recusal
During oral argument, Father questioned whether the trial judge should have
recused himself from this matter when Father filed a motion to recuse in December 2013.
Father failed to raise this as issue in the statement of issues in his brief. As this Court has
explained, “Courts have consistently held that issues must be included in the Statement of
27
Issues Presented for Review required by Tennessee Rules of Appellate Procedure
27(a)(4)” in order to be properly before this Court. See In re Estate of Burke, No.
M2012-01735-COA-R3-CV, 2013 WL 2258045, at *6 (Tenn. Ct. App. May 21, 2013)
(quoting Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001)). Even if Father
had properly presented this issue, however, we determine that recusal was unwarranted as
Father has demonstrated no bias or prejudice on the part of the trial judge.
Father filed a motion to recuse in December 2013, asserting that the trial judge had
treated him unfairly due to various adverse rulings and had shown partiality toward
Mother. The trial court entered an order on January 15, 2014, denying Father‟s motion to
recuse. The trial court noted that Father had failed to demonstrate any basis for the
judge‟s recusal during oral argument. The court further stated in its order that the judge
had no relationship with either party outside the courtroom, had no personal bias or
prejudice concerning either party, and had no doubt regarding his ability to preside
impartially in the case. The court also stated that there was no reasonable appearance of
bias that would cause the judge‟s impartiality to be questioned.
As this Court has previously elucidated regarding recusal:
The grant or denial of a motion for recusal “„rests in the sound
discretion of the trial judge and should not be reversed on appeal unless the
record reveals a clear abuse of that discretion.‟” Moody v. Hutchison, 247
S.W.3d 187, 202 (Tenn. Ct. App. 2007) (quoting Irvin v. Johnson, No. 01-
A-01-9708-CV-00427, 1998 WL 382200 at *2 (Tenn. Ct. App. July 10,
1998)) (internal citation omitted). As our Supreme Court has explained:
Tennessee Supreme Court Rule 10, Canon 3(E)(1) states, “A
judge shall disqualify himself or herself in a proceeding in
which the judge‟s impartiality might reasonably be
questioned, including but not limited to instances where: (a)
the judge has a personal bias or prejudice concerning a party
or a party‟s lawyer . . . .” We have held that a recusal motion
should be granted when “the judge has any doubt as to his or
her ability to preside impartially in the case” or “„when a
person of ordinary prudence in the judge‟s position, knowing
all of the facts known to the judge, would find a reasonable
basis for questioning the judge‟s impartiality.‟” Davis [v.
Liberty Mut. Ins. Co.], 38 S.W.3d [560,] 564-65 [(Tenn.
2001)] (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn.
Crim. App. 1994)). Even if a judge believes he can be fair
and impartial, the judge should disqualify himself when “„the
28
judge‟s impartiality might be reasonably questioned‟”
because “the appearance of bias is as injurious to the integrity
of the judicial system as actual bias.” Id. (quoting Tenn.
Sup. Ct. R. 10, Canon 3(E)(1)).
Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009); see also Malmquist v.
Malmquist, 415 S.W.3d 826, 838-39 (Tenn. Ct. App. 2011).
McCarter v. McCarter, No. E2013-00890-COA-R3-CV, 2014 WL 6736305, at *25
(Tenn. Ct. App. Dec. 1, 2014) (footnote omitted).
Father argues in his brief that the trial judge demonstrated partiality toward
Mother and “abused” or “disparaged” Father during the various hearings held in this
matter. In the absence of a proper transcript, it is impossible for this Court to review
these allegations. We note, however, that adverse rulings and findings regarding
credibility alone do not merit a trial judge‟s recusal. See Davis v. Liberty Mut. Ins. Co.,
38 S.W.3d 560, 565 (Tenn. 2001). As our Supreme Court explained:
Given the adversarial nature of litigation, trial judges necessarily assess the
credibility of those who testify before them, whether in person or by some
other means. Thus, the mere fact that a witness takes offense at the court‟s
assessment of the witness cannot serve as a valid basis for a motion to
recuse. If the rule were otherwise, recusal would be required as a matter of
course since trial courts necessarily rule against parties and witnesses in
every case, and litigants could manipulate the impartially issue for strategic
advantage, which the courts frown upon.
Id.
Furthermore, as this Court has elucidated regarding bias and/or prejudice:
[A]lthough “bias” and “prejudice” generally “refer to a state of mind or
attitude that works to predispose a judge for or against a party[,] . . . [n]ot
every bias, partiality or prejudice merits recusal.” Alley v. State, 882
S.W.2d 810, 821 (Tenn. Crim. App. 1994). Rather, “[t]o disqualify,
prejudice must be of a personal character, directed at the litigant, [and]
„must stem from an extrajudicial source and result in an opinion on the
merits on some basis other than what the judge learned from . . .
participation in the case.‟” Id. (quoting State ex rel. Wesolich v. Goeke, 794
S.W.2d 692, 697 (Mo. App. 1990)). “Personal bias involves an antagonism
toward the moving party, but does not refer to any views that a judge may
29
have regarding the subject matter at issue.” Id. (citing United States v.
Baker, 441 F. Supp. 612, 616 (M. D. Tenn. 1977); 46 Am. Jur. 2d “Judges”
§ 167 (1969)). Moreover, “[i]mpersonal prejudice resulting from the
judge‟s background experience does not warrant disqualification.” Id.
(citation omitted). Where “the bias is based upon [the judge‟s] actual
observance of witnesses and evidence given during the trial, the judge‟s
prejudice does not disqualify the judge.” Id.
Durham v. Tenn. Dep’t of Labor & Workforce Dev., No. M2014-00428-COA-R3-CV,
2015 WL 899024, at *10 (Tenn. Ct. App. Feb. 27, 2015).
In this matter, Father has not alleged any personal bias or prejudice exhibited by
the trial judge of an extrajudicial nature. Father attempts to point to brief excerpts from
hearing video recordings that are beyond this Court‟s permissible consideration in order
to show that the trial judge acted unfairly during the hearings. We reiterate, however,
that because Father has failed to provide this Court with an adequate record to review this
issue, no relief can be granted. See Chiozza, 315 S.W.3d at 489.
XIII. Conclusion
For the foregoing reasons, we conclude that the trial court‟s judgment should be
affirmed in all respects. This case is remanded to the trial court for enforcement of the
court‟s judgment and collection of costs below. Costs on appeal are taxed to the
appellant, Peter L. White.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
30