In Re: Ava B. ( 2017 )

12/20/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 12, 2017 Session
IN RE AVA B.
Appeal from the Juvenile Court for Knox County
No. 112997 Timothy E. Irwin, Judge
___________________________________
No. E2017-00440-COA-R3-JV
___________________________________
The parents in this action challenge inter alia, the juvenile court’s decisions regarding
calculation of the parents’ income for child support purposes and the modification of the
final co-parenting order. Because the evidence does not preponderate against the trial
court’s findings, we affirm.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.
C. Scott Taylor and Margo J. Maxwell, Knoxville, Tennessee, for the appellant, Warren
B.
Ben H. Houston, II, Knoxville, Tennessee, for the appellee, Susan M.
OPINION
I. BACKGROUND
The parties in this action never married. Susan M. (“Mother”)1 worked as a
1
Mother moves this court to consider post-judgment facts pursuant to Rule 14 of the
Tennessee Rules of Appellate Procedure regarding the birth of an additional child. Pursuant to
Rule 22 of the same Rules, Mother also moves the court to take judicial notice of a map printout
of her previous work commute. Father has responded in opposition. As is within our discretion,
we will allow the information, which is not genuinely disputed and is capable of ready
determination, for purposes of clarifying and keeping the record up to date. Duncan v. Duncan,
mechanical engineer for the Tennessee Valley Authority (“TVA”). Warren B. (“Father”)
worked as an engineer for Southeastern Power Administration. Ava (“the Child”) was
born on May 28, 2007. At the time of the Child’s birth, the parties resided together in
Chattanooga, Tennessee; they remained together until early 2009, at which time the
parties separated. After the separation, Mother moved twice, married twice, and had two
more children.
The parties coparented by agreement without the benefit of a court order until
April 2013, when Mother sought to obtain a passport for the Child in order that her
daughter could accompany her on a vacation trip to Germany. Upon Father’s refusal to
cooperate regarding the passport, Mother filed a petition seeking sole custody of the
Child. Father responded by filing a petition to establish paternity. In May 2013, an order
was entered by the juvenile court verifying the transfer of residential custody to Mother.
Two months later, in July 2013, a paternity order was entered by the juvenile court’s
magistrate. The issue of coparenting was reserved for a future hearing. Child support
calculation was referred to a magistrate.
According to Father, in August 2013, Mother refused to participate in further
transportation and informed Father that he would have to drive from Georgia to pick up
and return the Child. During a hearing, Father claimed that this situation continued until
December 2013, and his exercise of visitation required a nine-hour roundtrip.
In early 2014, prior to her trip to Germany with the Child, Mother, then 46, left her
employment with TVA. After a hearing in April 2014, the juvenile court entered a final
order on August 11, 2014, naming Mother as the primary residential parent and setting
forth a visitation schedule for Father. The order specifically recognized Father’s plan to
“move to Kingsport[,] Tennessee where the Mother resides.” The order addressed
coparenting issues, providing that “[i]f and when [Father] in fact does move to the
Kingsport[,] Tennessee area, the coparenting shall be . . . on an eight day/four-day
rotation with the [c]hild. . . .” On August 27, 2015, the magistrate entered his findings
and recommendations addressing the setting of child support, medical support, retroactive
support issues, and the termination of a 15% variance modification.
Vacation Motion
The 2014 order provided that the parties could alter the coparenting schedule by
agreement. Mother did in fact allow Father to have additional unscheduled visitation by
agreement. However, less than a year after the April 2014 hearing, Father filed a
“Motion for Vacation Time,” seeking to modify the August 2014 order by granting
Father half of the summer vacation and every other spring and fall vacation. The bases
stated for this motion were Father’s retirement and his move to Kingsport, which
672 S.W.2d 765, 767 (Tenn. 1984). Accordingly, we find it appropriate to GRANT the motions.
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occurred in March 2015. Father argued that the earlier order made “no mention about
spring, fall and summer vacations” and failed to provide him with any length of time
greater than four consecutive days with the Child. He asserted that he would be unable to
extensively travel with the Child if the order was not modified. In response, Mother
contended that the 2014 order awarded Father time in excess of four consecutive days
during the Christmas/winter vacation period. Mother further noted that she was willing
to work with Father to allow an extended trip; Father acknowledged that Mother had
worked with him to permit unscheduled visitation.
A hearing was held on June 10, 2015, regarding Father’s vacation motion. After
hearing argument, the juvenile court observed that material changes had occurred:
“Relocation of the father to Kingsport, moving within four miles of the mother’s house,
the retirement of the father, all of those are changes.” The court further noted that “the
parties haven’t shown th[e] ability to get along since they left the court” pursuant to the
prior order, and that “there’s a little more work [that] needs to be done by the court.”
Accordingly, as to coparenting time, the court modified the earlier order as follows:
18-day shifts for the summer, two of them. Real simple,
folks, first 18 days to be enjoyed by the mother, second 18
days enjoyed by the father, third 18 days to be enjoyed by the
mother, fourth 18 days to be enjoyed by the father. The
remainder shall be the start of the eight and four.
***
Eighteen, 18, 18, 18, you can go somewhere pretty far in 18
days. . . .
. . . I think 18, 18, 18 and 18 is better than half and half
because at least the child will be being reunited with her
mother and her siblings more often. . . .
In its decision from the bench, the juvenile court did not specifically provide that the
change from the prior order addressing coparenting time was in the best interest of the
Child.
On April 12, 2016, the juvenile court conducted a hearing on the parties’ appeal of
the magistrate’s findings and recommendations regarding child support. At the hearing,
the court observed that it did not “want the mother to be able to retire and live off the
[C]hild’s support, I don’t think that’s equitable, never have thought that was an equitable
way to go. Mother’s retirement is not very much. But . . . don’t think she should be
penalized for retiring if father gets to retire.” The court entered a child support order
declining Father’s request to find that Mother was willfully or voluntarily unemployed.
The court reasoned that since Father was retired at age 65, there was no reason that
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Mother also should not “retire” and not be gainfully employed at 46.
Unemployed/Underemployed
Mother’s gross income history is as follows: $94,962.93 in 2009; $92,738.05 in
2010; $90,490 in 2011; $99,333.30 in 2012; $95,831.30 in 2013; $53,813.30 in 2014; and
$11,892 in 2015. Her gross income declined sharply from $53,813.30 in 2014 to $11,892
in 2015 after she accepted a voluntary reduction in force offer (“RIF”) from TVA.
Prior to Mother’s retirement from TVA, she was commuting from the Kingsport
area to Knoxville every day. She asserts that the commute to Knoxville was not
sustainable over the long term. Upon accepting the voluntary RIF offer, Mother became
a stay-at-home mother. The record does not reveal any evidence that Mother has
attempted to secure a comparable position in the Kingsport area.
The juvenile court did not make a specific finding regarding whether Mother was
willfully and voluntarily unemployed and declined Father’s request that Mother’s income
be imputed at a rate above her actual income of $11,892 for child support purposes. In
the view of the court, the instant case was unusual in that both parents have the
availability to spend time with the Child without the normal restraints posed by a work
schedule.
Capital Losses
The juvenile court also determined that Father was not permitted to carry forward
capital losses that occurred during the years 2007, 2008, and 2009 for the purposes of
calculating his gross income in subsequent years for child support purposes. Father
suffered a large capital loss of $1.4 million in the years 2007 to 2009. In calculating his
child support obligation, Father’s gross income without the capital loss carryover was
$122,184 in 2009; $144,097 in 2010; $120,456 in 2011; $133,710 in 2012; $179,345 in
2013; and $186,026 in 2014. If the capital loss carryover is permitted, Father’s adjusted
gross income for child support purposes was $143,379 in 2013; and $131,549 in 2014.
The juvenile court determined that Father’s income for purposes of calculating child
support in 2015 was $83,405, which included Social Security income in the amount of
$19,328 imputed to him because he was eligible to draw this amount at the time of the
child support hearing.2 No capital loss carry forward issue arose in 2015 because Father
had no capital gains to offset in that particular year.
Both parties filed timely appeals. Father moved that this matter be transferred to
the Sullivan County Juvenile Court. The transfer request has been stayed pending appeal.
2
Father contends that he reasonably chose not to receive social security income until he
could draw the full amount at age 66.
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II. ISSUES
Father raises the following issues:
1. Did the juvenile court err in failing to find that Mother is willfully
and voluntarily unemployed when she left her last employment at
age 46 and in declining to impute any income to Mother?
2. Did the juvenile court err in not permitting Father to carry forward
his capital loss for the purposes of calculating his gross income
under the child support guidelines?
Mother poses two additional issues:
3. Did the juvenile court err by granting Father’s vacation motion?
4. Should this court award Mother her attorney’s fee on appeal
pursuant to Tennessee Code Annotated section 36-5-103(c)?
III. STANDARD OF REVIEW
Findings of fact by a trial court in a civil action are “de novo upon the record of
the trial court, accompanied by a presumption of correctness of the finding, unless the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d). Conclusions of
law by a trial court are subject to de novo review with no presumption of correctness.
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); Ganzevort v. Russell, 949 S.W.2d
293, 296 (Tenn. 1997).
Trial courts have discretion to determine the amount of child support within the
confines of the Tennessee Child Support Guidelines. Berryhill v. Rhodes, 21 S.W.3d
188, 192 (Tenn. 2000); Hommerding v. Hommerding, No. M2008-00672-COA-R3-CV,
2009 WL 1684681, at *3 (Tenn. Ct. App. June 15, 2009). In reviewing a child support
award, the appellate court considers: (1) whether the decision has a sufficient evidentiary
foundation, (2) whether the court properly 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). We will not substitute our decision for that of the trial court simply because we
would have chosen a different alternative. Tait v. Tait, 207 S.W.3d 270, 275 (Tenn. Ct.
App. 2006). “A trial court will be found to have ‘abused its discretion’ when it 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.” Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App.
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2005).
IV. DISCUSSION
A. Voluntarily and Willfully Unemployed
“The fairness of a child support award depends on an accurate determination of
both parents’ gross income.” Massey v. Casals, 315 S.W.3d 788, 795 (Tenn. Ct. App.
2009). Under the Guidelines, “[i]mputing income to a parent is only appropriate after ‘a
tribunal’ determines that the parent is willfully and/or voluntarily underemployed.”
Goodman v. Goodman, No. W2011-01971-COA-R3-CV, 2012 WL 1605164, at *5
(Tenn. Ct. App. May 7, 2012) (citing Tenn. Comp. R. & Regs. 1240-2-4-.03(a)(2)(i)). To
trigger this portion of the Guidelines and “[t]o calculate a child support award based on
earning capacity rather than actual net income, there must be a threshold finding that the
obligor parent is willfully and voluntarily underemployed or unemployed.” Id. (citing
Marcus v. Marcus, No. 02A01-9611-CV-CV-00286, 1998 WL 29645, at *3 (Tenn. Ct.
App. Jan. 28, 1998), see Herrera v. Herrera, 944 S.W.2d 379 (Tenn. Ct. App. 1996).
Father argues that Mother is voluntarily and willfully unemployed. He contends
that it was reasonable for him to retire at 65 so that he could spend more time with the
Child, but it was unreasonable for Mother to retire at age 46 by accepting the voluntary
RIF offer from her employer. Citing Census Bureau data showing that the average age of
retirement is 63, Father argues that Mother’s “retirement” at age 46 is not the norm in this
state or in the United States. He also notes that Mother’s pension is substantially less
than his. Father additionally observes that Mother worked at full time employment as an
engineer for TVA while the Child was an infant and preschooler and until the Child was
almost 7 years old. According to Father, Mother’s decision to now voluntarily quit her
employment when the Child is in school full-time does not benefit the daughter and
deprives her of child support income from her Mother. According to Father, Mother’s
desire to stay home with all her children is immaterial to the issue of whether she is
voluntarily unemployed.
The determination of whether a parent is willfully and voluntarily underemployed
or unemployed is based upon consideration of the factors set forth in Tenn. Comp. R. &
Regs. 1240-2-4-.04(3)(d)(2) as well as reasons for the party’s change in employment.
Demers v. Demers, 149 S.W.3d 61, 69 (Tenn. Ct. App. 2003). The courts are particularly
interested in whether a parent’s change in employment is voluntary or involuntary and
are more inclined to find willful and voluntary unemployment when a decision to accept
a lower paying job is voluntary. Id. In State ex rel. Ledbetter v. Godsey, No. M1998-
00958-COA-R3-CV, 2000 WL 798641 (Tenn. Ct. App. June 22, 2000), the court noted:
Often, the initial inquiry . . . is whether the obligor parent
voluntarily quit. Where a parent with child support
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obligations voluntarily leaves the employment or business
activity which provided the resources to maintain that support
and chooses to cease working or to begin an activity which
provides significantly less income, the courts are more
inclined to find willful and voluntary unemployment or
underemployment.
Id. at *4 (internal citations omitted). In Ledbetter, the court further noted that
The term “willfully and voluntarily” implies a choice. . . .
[A]n obligor’s course of action and decision-making after
termination can demonstrate willful and voluntary
underemployment. The determination of whether an obligor
parent is willfully and voluntarily underemployed is one
which is dependent upon the complete factual background of
the obligor’s situation. . . . [T]he obligor parent’s attempts to
find employment at a comparable salary, the availability of
comparable or any employment, and the reasonableness of the
employment or other choice under all the circumstances,
including the support obligation, should be considered.
Id. at *5.
The Tennessee Child Support Guidelines do not presume that any parent is
willfully or voluntarily underemployed or unemployed. Tenn. Comp. R. & Regs § 1240-
02-04-.04(3)(a)(2)(ii). “The purpose of [determining whether or not a parent is
voluntarily underemployed or unemployed] is to ascertain the reasons for the parent’s
obligation to support his or her child(ren) and to determine whether such choices benefit
the child(ren).” Id. “[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 or
voluntarily underemployed.” Miller v. Welch, 340 S.W.3d 708, 712 (Tenn. Ct. App.
2010) (citing Owensby v. Davis, No. M2007-01262-COA-R3-JV, 2008 WL 3069777, at
*4, n. 7 (Tenn. Ct. App. July 31, 2008)); see Narus v. Narus, No. 03A01-9804-CV-
00126, 1998 WL 959839, at *2 (Tenn. App. Ct. Dec. 31, 1998). The burden of proving
that a parent is willfully or voluntarily underemployed or unemployed is on the party
attempting to prove willful or voluntary underemployment. Wine v. Wine, 245 S.W.3d
389, 394 (Tenn. Ct. App. 2007).
A trial court “has considerable discretion in its determination of whether a parent
is willfully or voluntarily underemployed.” Miller v. Welch, 340 S.W.3d 708, 712 (Tenn.
Ct. App. 2010). Accordingly, a trial court’s determination regarding willful and
voluntary underemployment is entitled to a presumption of correctness, and this court
accords “substantial deference to the trial court’s decision[.]” Id. at 712-13. Where the
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trial court does not make a specific finding of willful and voluntary underemployment,
this court may review the record and determine that issue itself, with no presumption of
correctness. Ralston v. Ralston, No. 01A01-9804-CV-00222, 1999 WL 562719, at * 7
(Tenn. Ct. App. Aug. 3, 1999).
Mother argues that her employment decision was reasonable under the facts of this
case. According to Mother, she has opted to become a stay at home mother in order to
spend more time with the Child and her other children. She asserts that her occupational
choices have benefitted the Child. See Tenn. Comp. R. & Regs § 1240-02-04-
.04(3)(a)(2)(ii). Mother also contends that her decision to accept the voluntary RIF offer
was reasonable based upon her lengthy commute from her residence in Kingsport to
Knoxville every day. The juvenile court agreed with Mother that it was beneficial for the
Child to get more attention from both of her parents than the average child gets with
parents who are both working on a full time basis.
In State ex rel. Brown v. Brown, No. M2014-02497-COA-R3-CV, 2016 WL
506732, at *4 (Tenn. Ct. App. Feb. 8, 2016), the mother had voluntarily resigned her
position with her prior employer due to the fact that a long commute of more than an
hour was causing her to lose considerable quality time with her child, and as a result of
this decision, she had experienced a sharp decline in her income. We rejected the father’s
argument that the mother was voluntarily underemployed, finding reasonable the trial
court’s determination that mother’s decision to resign her employment from a higher
paying job was motivated by “no reason other than to spend more time with her child and
to be a better mother.” Id. at *5.
The record before us does not preponderate against the juvenile court’s
determination that Mother’s decision to accept the voluntary RIF offer was motivated by
no reason other than to spend more time with the Child and to be a better mother. The
State of Tennessee “recognizes the role of a stay-at-home parent as an important and
valuable factor in a child’s life.” Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(2)(iii).
Mother is clearly not avoiding employment in an effort to evade an obligation to support
the Child. Additionally, the lengthy drive from Kingsport to Knoxville did result in
Mother spending an excessive amount of time in the car each day prior to her decision to
accept the voluntary RIF offer, thus limiting the amount of time she could spend with the
Child. The juvenile court’s decision on this issue is in accord with both the Child
Support Guidelines and relevant case law. See Tenn. Comp. R. & Regs § 1240-02-04-
.04(3)(a)(2)(ii) (“[t]he purpose of [determining whether a parent is willfully or voluntarily
underemployed] is to ascertain the reasons for the parent’s occupational choices and to
assess the reasonableness of these choices in light of the parent’s obligation to support his
or her child(ren) and to determine whether such choices benefit the child(ren).”); see also
Miller v. Welch, 340 S.W.3d 708, 712 (Tenn. Ct. App. 2010) (“[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 or voluntarily underemployed.”).
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Accordingly, we find that the trial court did not err in declining to find that Mother
is willfully and voluntarily unemployed and in rejecting Father’s request to impute to
Mother an income of $95,000 per year for the purposes of calculating current child
support. “If a discretionary decision is within a range of acceptable alternatives, we will
not substitute our judgment for that of the trial court simply because we may have chosen
a different alternative.” Edmunds v. Delta Partners, L.L.C., 403 S.W.3d 812, 826 (Tenn.
Ct. App. 2012).
Social Security
In a related argument, Father asserts that the juvenile court demonstrated
inconsistency by declining to impute income to Mother while at the same time imputing
to him unreceived Social Security income of $19,328 per year.
Under the facts of this case and the Guidelines, Father’s election not to receive
social security benefits is unreasonable when one considers his choice to not receive the
benefits is depriving the Child of benefits to which she is entitled under the Social
Security Act. Pursuant to the act, if Father would elect to receive his benefits, the Child
would be entitled to receive annual benefits equal to half of Father’s annual benefits. See
42 U.S.C. § 402(d)(1), (2). Father was entitled to receive Social Security benefits of
$19,328 per year. Accordingly, the Child could receive an annual benefit of $9,664 if
Father would take his benefits. See 42 U.S.C. § 401(d)(1), (2). Further, if Father elected
to receive his benefits, he would likely see either a significant decline or elimination of
his child support obligation, because pursuant to the Guidelines, he would receive a
dollar for dollar credit for purposes of calculating child support. See Tenn. Comp. R. &
Regs 1240-02-04-.04(3)(a)(1)(xiv). Accordingly, the juvenile court’s decision pertaining
to the imputation of Father’s Social Security income for purposes of calculating child
support was not an abuse of discretion.
B. Capital Losses
Father further asserts that the juvenile court erred by not permitting him to carry
forward capital losses that occurred during the years 2007, 2008, and 2009 for purposes
of calculating his gross income in subsequent years under the Guidelines. Father submits
that his large capital loss of approximately $1.4 million occurred after the birth of the
Child, so it is appropriate to carry over the capital loss as permitted by the IRS into the
calculation of adjusted gross income for each year as a form of income averaging. He
contends that a carry forward of a capital loss is permitted (1) under the IRS regulations,
(2) under Tennessee Code Annotated section 36-5-101(e)(1)(B) allowing the calculation
of “net capital gains” under the Guidelines, and (3) pursuant to Tennessee law that
“income averaging” is permitted by the Guidelines when fluctuating income of an obligor
parent is at issue. Father argues that we should permit a carry forward capital loss just as
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state law permits “income averaging” when an obligor parent has fluctuating income.
Mother contends that Father’s proposed interpretation of Tennessee Code
Annotated section 36-5-101(e)(1)(B) contravenes the plain language of the statute, which
states that “[i]n determining each party’s income for the purpose of applying the child
support guidelines, the court shall deduct each party’s capital losses from that party’s
capital gains in each year.” Tenn. Code Ann. § 36-5-101(e)(1)(B) (emphasis added).
Thus, according to Mother, Father’s interpretation of the statute would render the words
“in each year” meaningless and would unfairly allow parents to deduct capital losses that
occurred many years ago for an indefinite period of time.
The magistrate determined that Father’s carry forward capital loss should be
allowed pursuant to IRS regulations. The juvenile court, however, did not adopt the
magistrate’s ruling, instead asserting that the court had no precedent for permitting the
carryover of capital losses from prior years:
Father’s income will include everything in all years. There
will not be an allowable credit for past losses, so the entire
capital gains will be factored in as income unless the money
was lost in the same year and would not be a gain.
And I know the IRS, I know how they do it. I know the
language in the statute says net. I appreciate that argument. I
slaved over it the whole time, it’s the only difficult part of his
case, but there is absolutely no law that allows me to take past
years losses in the current year. There is no Tennessee law,
no precedent has ever been done, and if it’s going to be done,
it needs to be done at the court of appeals level, not here in
Knox County Juvenile Court.
As noted by Father, prior to 2007, the Guidelines required that “capital gains” only
were to be considered in gross income, and the Tennessee Supreme Court held that
although the Internal Revenue Code allows the subtraction of capital losses from capital
gains in some cases, the plain language of the Guidelines refers only to “capital gains”
and thus capital losses could not be considered for the purposes of calculating income.
Kesser v. Kesser, 201 S.W.3d 636, 646 (Tenn. 2006). In 2007, however, Tennessee Code
Annotated section 36-5-101(e)(1)(B) was amended to provide: “In determining each
party’s income for the purpose of applying the child support guidelines, the court shall
deduct each party’s capital losses from that party’s capital gains in each year.” Tenn.
Comp. R. & Regs. 1240-2-04-.04(3)(a)(1)(xiii) was amended to define gross income for
calculating child support to include “net capital gains.” The Guidelines, however, do not
define “net capital gains.” Further, under the plain language of § 36-5-101(e)(1)(B), the
calculation of “net capital gains” is made on an annual basis. Admittedly, the Guidelines
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do not expressly prohibit the carry forward of capital losses over multiple years on an
annual basis in the calculation of gross income.
Father contends that subsequent to the 2007 amendment of the Guidelines, in
which the Guidelines were amended to include “net capital gains” in annual gross income
as opposed to the former “capital gains,” a carryover of a capital loss is considered
reasonable and consistent with the statute and Guidelines which look to “net capital
gains.” He asserts that the effect of carryover of long term capital losses is income
averaging, a practice which is permitted by the Guidelines when fluctuating income of an
obligor parent is at issue. In Hanselman v. Hanselman, No. M1998-00919-COA-R3-CV,
2001 WL 252792, (Tenn. Ct. App. Mar. 15, 2001), the court explained that the
Guidelines “provide the approach for dealing with fluctuating income,” although they “do
not prescribe how variable income should be averaged.” Id. at *3 (citing Tenn. Comp. R
& Regs. 1240-2-4-.03(3)(b)). The Guidelines indicate that “variable income such as
commissions, bonuses, overtime pay, dividends etc. shall be averaged over a reasonable
period of time consistent with the circumstances of the case and added to a parent’s fixed
salary or wages to determine gross income.” Tenn. Comp. R & Regs. 1240-2-04-.04.
The Hanselman Court provided that it had “consistently approved and applied the
approach of averaging fluctuating income for periods of a year or longer when the
circumstances warrant it,” specifically including 2-year periods, 3-year periods and 4-
year periods. Id. at *4. The court found that the trial court did not err in using a 3-year
average of the father’s actual income in determining whether his child support obligation
should be changed. Id. at *5.
In the instant case, Father further contends that federal tax law expressly permits
the carryover of capital losses. 26 U.S.C. § 1222 of the Internal Revenue Code defines
these terms as follows:
...
(6) Net short-term capital loss
The term “net short-term capital loss” means the excess of
short-term capital losses for the taxable year over the short-
term capital gains for such year.
(7) Net long-term capital gain
The term “net long-term capital gain” means the excess of
long-term capital gains for the taxable year over the long-term
capital losses for such year.
...
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(11) Net capital gain
The term “net capital gain” means the excess of the net long-
term capital gain for the taxable year over the net short-term
capital loss for such year.
In terms of capital loss carryover, the IRS provides as follows:
“Capital loss carryover. If you have a total net loss on line 16
of Schedule D (Form 1040) that is more than the yearly limit
on capital loss deductions, you can carry over the unused part
to the next year and treat it as if you had incurred it in that
next year. If part of the loss is still unused, you can carry it
over to later years until it is completely used up.”
2014 IRS Publication 17, Chapter 16, Reporting Gains and Losses.
Father concedes that he cannot cite to any case law supporting his interpretation of
Tennessee Code Annotated section 36-5-101(e)(1)(B). He argues, however, that his
interpretation of the statute is permitted by case law and provisions within the Guidelines
that allow for income averaging over a reasonable period of time in cases involving
variable income.
We are not persuaded. Even assuming arguendo that the case law and the
provisions of the Guidelines cited by Father allow for a capital loss carry over in certain
cases when determining gross income for purposes of calculating child support, it seems
unreasonable to allow such a lengthy period of time for income averaging of the capital
loss carry forward as we find in this case. Additionally, there is no evidence in this
record concerning Father’s gross income for the years 2007 and 2008, the years Father
proposes that this court consider his capital losses. To average variable income over a
reasonable period of time, a court would be required to include all income for the period
in question. See Moore v. Moore, 254 S.W.3d 357, 360 (Tenn. 2007) (citing Tenn.
Comp. R. & Regs. 1240-2-4-.03(3)(a)(1) for the proposition that the child support
guidelines broadly define gross income to “include all income from any source . . . .”).
Further, because the objectives of the child support guidelines differ from the federal
income taxation statutes, we do not agree with Father that capital losses for child support
purposes should be considered in years other than the year in which they occur. In our
view, the determination of this issue is best left to the legislature rather than the courts.
Accordingly, we find no abuse of discretion in the juvenile court’s decision
disallowing Father from carrying forward capital losses that occurred during the years
2007, 2008, and 2009 for the purposes of calculating his gross income in subsequent
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years under the Guidelines.
C. Vacation Motion
With regard to the juvenile court’s decision to grant Father’s vacation motion,
Mother asserts that the court erred by modifying the prior 2014 order. According to
Mother, that order specifically addressed Father’s retirement and anticipated his move to
Kingsport. It also set forth a detailed coparenting schedule that would go into effect
immediately following the move. Mother contends that under these circumstances, there
was not a material change in circumstances as required by Tennessee Code Annotated
section 36-6-101(a)(2)(C). Additionally, Mother argues that the vacation order does not
address why such a modification of the final order was in the best interest of the Child.
Father asserts that the 2014 order was not a final order appealable as of right.
Rather, he chose to file a motion to supplement the provisions of the “final order.” Father
contends that until the amended child support order was entered on March 1, 2017, there
was no true final order appealable as of right. He argues that the existing custody and
visitation arrangement was not working because the order did not make any provision for
the Child’s spring, summer, or fall vacations; he never had more than four parenting days
in a row and was not able to travel with his daughter; and he was not able to “enjoy the
maximum participation possible” in the Child’s life. Father therefore contends that the
court properly found that there had been a material change of circumstances to support
Father’s request for increased coparenting time.
Modification of an existing parenting plan requires a two-step analysis. See
Armbrister v. Armbrister, 414 S.W.3d 685, 697 (Tenn. 2013) (citing Tenn. Code Ann. §
36-6-101(a)(2)(B)-(C)). The trial court must first determine whether a material change in
circumstances has occurred. Id. at 697-698. According to Tennessee Code Annotated
section 36-6-101(a)(2)(C), a parent must “prove by a preponderance of the evidence a
material change of circumstance affecting the child’s best interest,” but a “showing of a
substantial risk of harm to the child” is unnecessary. If the court finds a material change
in circumstances, it must then determine whether a modification of the parenting plan is
in the child’s best interest in consideration of the factors set forth in Tennessee Code
Annotated section 36-6-106(a). Armbrister, 414 S.W.3d at 697. While it is true that the
material change of circumstances required to modify a visitation order is less burdensome
than what is required when a change of custody is sought, “[t]he petitioner still must
prove by a preponderance of the evidence a material change of circumstance affecting the
child’s best interests, and the change must have occurred after entry of the order sought to
be modified.” Gentile v. Gentile, No. M2014-01356-COA-R3-CV, 2015 WL 8482047, at
*5 (Tenn. Ct. App. Dec. 9, 2015) (citing Caldwell v. Hill, 250 S.W.3d 865, 870 (Tenn.
Ct. App. 2007)). The fact that the change could have been reasonably anticipated at the
time that the prior visitation order was entered does not serve as a bar to a finding that a
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material change in circumstances has occurred. Armbrister, 414 S.W.3d at 703.
In the case at bar, the juvenile court’s 2014 order awarded Father coparenting time
on specific days through the remainder of 2014 into early 2015. In anticipation of
Father’s retirement and move to Kingsport on March 8, 2015, the court set forth an eight-
day/four-day rotation and also set forth a holiday schedule that equally divided the
Christmas/winter holiday and equally divided both Easter and Thanksgiving. The order
also provided that the parties could alter the coparenting schedule by agreement.
Following the entry of the 2014 order, Mother allowed Father to have additional
unscheduled visitation by agreement. The record is devoid of any evidence that Mother
ever denied Father any opportunity to take the Child on an extended vacation; to the
contrary, Mother revealed that she was willing to work with Father to allow an extended
trip.
Mother notes that even assuming arguendo that there was a sufficient evidentiary
basis upon which the juvenile court could have justifiably found a material change in
circumstances pursuant to Tennessee Code Annotated section 36-6-101(a)(2)(B)(C), the
court’s order granting Father’s request for additional vacation time during the summer,
fall, and spring vacations contains no findings of fact or conclusions of law explaining
why such a modification of the final order would be in the best interest of the Child when
considering the factors set forth by Tennessee Code Annotated section 36-6-106(a).
Mother argues that there is insufficient evidence in the record to justify a finding that
increasing Father’s coparenting time and decreasing Mother’s coparenting time is in the
best interest of the Child.
The juvenile court noted that Father had relocated to within four miles of his
daughter and that the existing coparenting plan was not working as well as it should. In
our review, we find that the court’s determination of a material change of circumstances
satisfies the “very low threshold for establishing a material change of circumstance when
a party seeks to modify a residential parenting schedule,” even where those changes were
reasonably anticipated at the time of the initial plan. Armbrister, 414 S.W.3d at 703.
Further, a preponderance of the evidence before us reveals the change to a more clearly
defined coparenting schedule was in the Child’s best interest. The juvenile court
therefore did not abuse its discretion in granting Father’s motion for vacation time.
D. Attorney’s Fees
This court has the discretion to award attorney’s fees on appeal in cases involving
child custody and child support issues pursuant to Tennessee Code Annotated section 36-
5-103(c). Counsel fees incurred on behalf of minors may be recovered when shown to be
reasonable and appropriate. Deas v. Deas, 774 S.W.2d 167, 169 (Tenn. 1989). [T]he
purpose of attorney’s fees in these matters “is to protect the children’s, not the custodial
parent’s, legal remedies.” Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992).
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In its decision to award attorney’s fees on appeal, a court considers the party’s
ability to pay fees, the requesting party’s success on appeal, the good faith of the appeal,
and any other equitable factors. Moran v. Willensky, 339 S.W.3d 651, 666 (Tenn. Ct.
App. 2010). Further, the attorney’s fees sought must inure to the benefit of the minor
child. Miller v Miller, 336 S.W.3d 578, 586 (Tenn. Ct. App. 2010).
Under the facts in this case, we do not find an award of fees on appeal to be
appropriate. Accordingly, we decline to award attorney’s fees to either party.
V. CONCLUSION
The judgment of the trial court is affirmed, and the case is remanded for
enforcement of the lower court’s judgment and collection of costs assessed there, all
pursuant to applicable law. Costs of the appeal are taxed one-half to the appellee, Susan
M. and one-half to the appellant, Warren B.
_________________________________
JOHN W. MCCLARTY, JUDGE
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