Barbara Lynn Horine v. James Alan Horine ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 30, 2014 Session
BARBARA LYNN HORINE v. JAMES ALAN HORINE
Appeal from the Probate Court for Cumberland County
No. 2011PF2376 Larry Michael Warner, Judge
No. E2013-02415-COA-R3-CV-FILED-NOVEMBER 24, 2014
In this divorce appeal, Wife appeals the trial court’s rulings with regard to the
calculation of child support, the award of alimony, the requirement that she reimburse
Husband for one-half of the mortgage payments on the marital home until the home is sold,
and the trial court’s refusal to order an income assignment to secure Husband’s child support
obligation. We vacate the trial court’s judgment with regard to child support and alimony,
and remand for the entry of an order containing appropriate findings of fact and conclusions
of law. We affirm the trial court’s order requiring Wife to reimburse Husband for the
mortgage payment. However, we reverse the trial court’s refusal to order an income
assignment to secure the child support obligation. Affirmed in part, vacated in part, and
reversed in part.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed in
Part; Vacated in Part; and Reversed in Part
J. S TEVEN S TAFFORD, P.J., W.S., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., and K ENNY A RMSTRONG, J., joined.
Charles Craig Northcott, Tullahoma, Tennessee, for the appellant, Barbara Lynn Horine.
Kevin D. Poore, Crossville, Tennessee, for the appellee, James Alan Horine.
OPINION
Background
Plaintiff/Appellant Barbara Lynn Horine (“Wife”) and Defendant/Appellee James
Alan Horine (“Husband”) were married on October 9, 1969 and remained married for forty-
three years. They had two children, who are now adults. In addition, the parties adopted
their biological grandson (“the child”), who is now twelve years old. Husband is currently
sixty five years old, and Wife is currently sixty three years old. In the summer of 2011, the
parties separated. Wife filed a complaint for legal separation in Coffee County on August
11, 2011. Husband filed a complaint for divorce in Cumberland County on September 7,
2011. Wife’s complaint was transferred and consolidated with the Cumberland County
matter.
A trial occurred on June 3, June 4, and June 13, 2014. Much of the trial testimony
focused on the parties’ work histories. Both parties testified that Husband was the primary
wage earner during the parties’ marriage, though Wife worked some during the marriage.
Husband has a bachelor’s degree in Aeronautical Studies, and a master’s degree in
counseling. He had a twenty year career in the United States Army; he retired in 1990 with
the rank of major. From 1990 to 1992, he worked for RainSoft National Brand, a company
that installs and repairs home water treatment systems. In 1992, he accepted a position with
the State of Tennessee in the Department of Children’s Services as a guard, and he was
promoted to correctional counselor in 1993. While Husband worked for the State, he
received approximately $41,000 annually. Husband continued as a counselor for the State
until 2012, when the state’s facility closed. At trial, Husband testified that he currently holds
a part-time position as drug and alcohol counselor working approximately twenty hours per
week. However, he testified that he holds a specialized counseling license, which gives him
the title of Licensed Alcohol and Drug Abuse Counselor. At the time of trial, he received
$19.75 per hour for twenty hours per week from Corizon, Inc. for his counseling services.
He also received $2,626.00 per month from his military retirement account and $1,021.00
from the State from his pension.
Wife testified that she completed the eleventh grade and obtained her GED, but that
her education and career had not been a priority during the parties’ marriage. Instead, Wife
testified that her focus was on on the parties’ two children and Husband’s military career,
which caused the parties to move frequently. Once the children became school-aged, in the
late 1970s and early 1980s, Wife testified that she had several “odd jobs,” none of which, she
contended, paid substantially more than minimum wage. Indeed, Mother’s testimony shows
that over a period of a single year, she worked for a doctor, a veterinarian, WalMart, and a
midwife. From 1997 until 2002, she worked as a medical transcriptionist, but she testified
that she had trouble performing this job because of hearing loss. Wife testified that the
parties experienced a brief separation in 2002 when Husband “declared his love for another
woman.” This led to a six month separation. Upon reconciling, Wife never returned to work.
Instead, Wife testified that when the child was taken into the home, it was agreed that Wife
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would focus on child-rearing, just as she had done for the parties’ other children.
At trial, Wife testified that she had no income. Wife testified that she has several
physical ailments that prevent her from working, including hearing loss, a bladder condition,
and joint issues. In contrast, Husband did not testify as to any physical conditions that would
impact his ability to be employed.
Both parties testified to the value of various property jointly owned by the parties,
including the marital home, which they both valued at approximately $400,000.00. The home
was secured by a mortgage for approximately $155,000.00. At the time of trial, Husband was
living in the home, while Wife was residing with her adult son in Coffee County with the
minor child. Wife testified that she needs considerable funds in order to buy her own home,
which arrangement she believes is in the best interest of the child. Wife further testified that
her expenses well exceed her income and requested that the trial court award her alimony,
in addition to her marital portion of Husband’s retirement benefits and child support. Both
parties admitted to having affairs during the marriage, though Wife’s was many years prior
to the ultimate breakdown of the relationship.
The trial court made an oral ruling at the conclusion of trial. A written order
memorializing the trial court’s ruling was entered on September 23, 2013. The divorce was
awarded to Wife on the ground of Husband’s inappropriate marital conduct “with specificity
to general attitude, but not to any specific acts.” Wife was named the primary residential
parent of the child and the parties were ordered to agree to a visitation schedule, otherwise
the trial court would order standard visitation.1 Husband and Wife were awarded the personal
property in their possession. Wife was also awarded one-half of Husband’s monthly military
retirement pay, his monthly State of Tennessee retirement pay, and his 401K. Wife was also
awarded the parties’ dogs and the personal property relating to them. Husband and Wife were
each awarded various other personal property not at issue in this appeal.
Husband was awarded possession of the marital home, pending its sale. However, the
trial court ruled that if the home was not sold by June 13, 2014, the property was to be
auctioned by an agreed upon auction company or the court.2 Regardless of the method of
sale, the proceeds of the sale were to be paid out in the following order:
1
Neither party takes issue with the trial court’s custody and parenting time decisions. Indeed,
from the record it appears that both parties have done an admirable job placing the child’s best interest above
their own throughout the divorce, with the trial court noting that “it could not state how impressed it was with
both parents.”
2
Although this date has passed, the record contains no information regarding whether the
property was, in fact, sold.
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1. To pay the costs of the sale.
2. To pay the remaining joint indebtedness of the parties.
3. To reimburse Husband for one-half of his mortgage payments from the date of the
trial court’s order through the date of the sale of the property.
4. Twenty-five percent of the remaining balance to be awarded to Wife as “lump sum
alimony.”
5. The remaining balance of the proceeds were to be divided equally among the parties.
With regard to child support, the trial court imputed income to both parties. Husband’s
monthly income for child support and alimony purposes was set as “the larger of Husband
being imputed income at 40 hours per week at minimum wage ($1256.66) or the amount that
he is currently earning at his employment ($1711.67).” The trial court imputed income to
Wife equivalent to a twenty hour per week minimum wage job, or $628.33 per month. In
addition, the trial court included in Wife’s monthly income the $600.00 per month that Wife
estimated she would be eligible to receive from the Social Security Administration. Finally,
the trial court ruled that both parties’ incomes for purposes of child support would include
the retirement pay each party was receiving pursuant to the divorce decree. As a result of
these income findings, Husband was ordered to pay $520.00 per month in child support. The
trial court declined to award Wife periodic alimony and ordered that each party would pay
their respective attorney’s fees.
Wife filed a timely notice of appeal. Although Husband contends that the trial court
held a hearing after its initial oral ruling in order to clarify the prior ruling, the record
contains no record of any post-trial motions filed by either party, nor does it contain a
transcript of any post-trial hearing. Additionally, it appears that this purported hearing to
clarify the oral ruling occurred prior to the entry of the final decree in this case.
Issues Presented
Wife raises several issues on appeal, which are taken from her appellate brief:
1. Whether the trial court erred in its determination
of the parties' ability to earn for purposes of child
support and alimony.
2. Whether the trial court erred in the form and
amount of alimony awarded to Wife.
3. Whether the trial court erred in awarding Husband
reimbursement for the mortgage payments on the
marital home after the time of divorce.
4. Whether the trial court erred in its refusal to order
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child support to be withheld from Husband’s
military retirement pay.
Analysis
This case was heard by the trial court sitting without a jury. Accordingly, we will
review the trial court’s findings of fact de novo with a presumption of correctness, unless the
evidence preponderates otherwise. Tenn. R. App. P. 13(d). No presumption of correctness,
however, attaches to the trial court’s conclusions of law and our review is de novo. Blair v.
Brownson, 197 S.W.3d 681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916
(Tenn. 2000)). For the evidence to preponderate against a trial court's finding of fact, it must
support another finding of fact with greater convincing effect. 4215 Harding Road
Homeowners Ass’n v. Harris, 354 S.W.3d 296, 305 (Tenn. Ct. App. 2011); Walker v.
Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000). Where the trial court
does not make findings of fact, there is no presumption of correctness and we “must conduct
our own independent review of the record to determine where the preponderance of the
evidence lies.” Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn. 1999).
Child Support and Alimony
Wife’s first two issues concern the trial court’s decisions with regard to its calculation
and award of alimony and child support. Because the trial court’s rulings are not supported
by required findings of fact or conclusions of law, we vacate the judgment of the trial court
with regard to its calculation of both child support and its award of alimony, and remand for
the entry of an order containing appropriate findings.
The initial determination of a child support order is governed by Tennessee Code
Annotated Section 36-5-101. Tennessee Code Annotated Section 36-5-101(e)(1)(A) instructs
the trial court to apply the child support guidelines, as set forth in the rules and regulations
of the Department of Human Services, as a rebuttable presumption in determining the
amount of child support. See Tenn. Comp. R. & Regs. § 1240-2-4-.01. Even with the
adoption of the child support guidelines, trial courts retain a certain amount of discretion in
their decisions regarding child support, which decisions we review under an abuse of
discretion standard. Richardson v. Spano, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005). A
trial court abuses its discretion when it has applied an incorrect legal standard or has reached
a decision which is against logic or reasoning that caused an injustice to the party
complaining. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
“The fairness of a child support award depends on an accurate determination of both
parents' gross income or ability to support.” Massey v. Casals, 315 S.W.3d 788, 795 (Tenn.
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Ct. App. 2009). In most cases, a parent’s earning capacity or ability to earn income is
equivalent to the parent’s gross income. Id. Sometimes, however, a parents’ actual income
is not indicative of their true earning capacity. Under the Child Support Guidelines, the trial
court may impute income under certain limited circumstances. See Goodman v. Goodman,
No. W2011-01971-COA-R3-CV, 2012 WL 1605164, at *4 (Tenn. Ct. App. May 7, 2012);
see also Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(i)(I–III). The Guidelines provide
that: “[i]mputing additional gross income to a parent is appropriate . . . [i]f a parent has been
determined by a tribunal to be willfully and/or voluntarily underemployed or unemployed.”
Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(i). Goodman, 2012 WL 1605164, at *4. The
determination of whether a parent is willfully underemployed or unemployed is a fact-
intensive inquiry. “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). In making its determination, the trial court must consider the parent's past
and present employment and determine whether the party's choice to accept a lower paying
job was reasonable and made in good faith. Willis v. Willis, 62 S.W.3d 735, 738 (Tenn. Ct.
App. 2001). Additionally, the court should take into consideration the parent's education,
training, and ability to work. Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iii)(II).
Whether a parent is willfully and voluntarily underemployed is a question of fact, and we
afford the trial court considerable discretion in making its determination. Willis, 62 S.W.3d
at 738.
However, to trigger this portion of the child support guidelines and “[t]o calculate a
child support award based on earning capacity rather than actual net income, there must be
a threshold finding that the obligor parent is willfully and voluntarily underemployed
or unemployed.” Goodman, 2012 WL 1605164, at *4. (quoting Marcus v. Marcus, No.
02A01-9611-CV-00286, 1998 WL 29645, at *3 (Tenn. Ct. App. Jan. 28, 1998) (emphasis
added)); see also Kendle v. Kendle, No. M2010-00757-COA-R3-CV, 2011 WL 1642503,
at *3 (Tenn. Ct. App. Apr. 28, 2011) (citing Tenn. Comp. R. & Regs. 1240-2-4-
.04(3)(a)(2)(i)(I)). Thus, in order to impute income to a parent based on voluntary
underemployment or unemployment, the trial court must make a threshold finding that the
parent is willfully underemployed or unemployed.
Here, the trial court failed to make such a finding. Instead, the trial court merely stated
with regard to Husband’s income that: “The Husband’s income shall be calculated at the
larger of the Husband’s being imputed income at 40 hours per week at minimum wage or the
amount that he is currently earning at his current level.” With regard to Wife’s income, the
trial court found: “The Wife shall be imputed income of minimum wage at 20 hours per week
and $600[.00] per month in Social Security.” The trial court further ruled that both parties’
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retirement benefits would be included in the child support calculation. Accordingly, the trial
court imputed income to both parties at the same wage, despite the fact that Husband has a
Master’s Degree and a long history of employment, whereas Wife has only obtained her GED
and has been out of the workforce for a great number of years. See Tenn. Comp. R. & Regs.
1240-02-04-.04(3)(a)(2)(iii)(II, III) (requiring that the court take into account both the
parties’ “education, training, and ability to work” and the fact that a parent may have acted
as a stay-at-home parent during the marriage in order to determine whether a parent is
willfully underemployed or unemployed). More importantly, the trial court found that
income should be imputed to both parties without making any finding that either party was
voluntarily underemployed or unemployed. This Court has previously held that to impute
income without such a finding is in error. See Goodman, 2012 WL 1605164, at *4 (reversing
imputation of income); see also Vinson v. Vinson, No. W2012-01378-COA-R3-CV, 2013
WL 4856777, at *10 (Tenn. Ct. App. Sept. 2013). Under the circumstances of this case, the
appropriate remedy is to vacate the judgment of the trial court and remand for reconsideration
of the child support award, focusing on whether either party proved that the other was
voluntarily underemployed or unemployed. See Massey, 315 S.W.3d at 796 (noting that the
burden is on the party seeking to show willful underemployment).
The trial court’s failure to make any findings to support the imputation of income to
Wife also hinders this Court’s review of the trial court’s alimony ruling. Here, the trial court
declined Wife’s request for periodic alimony, but awarded Wife alimony in solido out of the
balance of the sale of the marital home. The Tennessee Supreme Court has consistently
recognized that trial courts in Tennessee have broad discretion to determine whether spousal
support is needed and, if so, to determine the nature, amount, and duration of the award. See,
e.g., Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011); Bratton v. Bratton, 136
S.W.3d 595, 605 (Tenn. 2004); Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001);
Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000). Because a trial court's “decision
regarding spousal support is factually driven and involves the careful balancing of many
factors,” Gonsewski, 350 S.W.3d at 105 (footnote omitted), the role of an appellate court is
not to second guess the trial court or to substitute its judgment for that of the trial court, but
to determine whether the trial court abused its discretion in awarding, or refusing to award,
spousal support. Id.; White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999)
(“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.”). “An abuse of discretion occurs when the trial court causes an
injustice by applying an incorrect legal standard, reaches an illogical result, resolves the case
on a clearly erroneous assessment of the evidence, or relies on reasoning that causes an
injustice.” Id. (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011);
Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)). In determining whether the
trial court abused its discretion, an appellate court “should presume that the [trial court’s]
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decision is correct and should review the evidence in the light most favorable to the
decision.” Gonsewski, 350 S.W.3d at 105–06.
Tennessee recognizes four distinct types of spousal support: (1) alimony in futuro, (2)
alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony. Tenn. Code Ann.
§ 36-5-121(d)(1). Alimony in futuro is a form of long-term support. An award of alimony
in futuro is appropriate when the economically disadvantaged spouse cannot achieve
self-sufficiency and economic rehabilitation is not feasible. Gonsewski, 350 S.W.3d at 107.
Alimony in solido, another form of long-term support, is typically awarded to adjust the
distribution of the marital estate and, as such, is generally not modifiable and does not
terminate upon death or remarriage. Id. at 108. By contrast, rehabilitative alimony is
short-term support that enables a disadvantaged spouse to obtain education or training
necessary to become self-reliant following a divorce. Id. Where economic rehabilitation is
unnecessary, transitional alimony may be awarded. Transitional alimony assists the
disadvantaged spouse with the “transition to the status of a single person.” Id. at 109 (internal
quotation marks omitted).
Wife argues that the trial court erred in awarding her alimony based on the proceeds
of the sale of the marital home. According to Wife, the proceeds of the sale are uncertain and
may not be sufficient to meet Wife’s needs. Wife submits that her income is insufficient to
meet the needs of both herself and the parties’ child. Further, Wife points out that Husband
has full control of the marital home pursuant to the terms of the divorce decree and “thus [is]
responsible for maintaining the home in a suitable condition for showing to potential buyers.”
Wife also argues that Husband has an incentive to prevent the home from selling, whereby
he may purchase the home for less than market value at auction. Thus, Wife argues that the
alimony awarded was not reasonable. Instead, Wife argues that she is entitled to an award
of alimony in futuro. Wife contends that alimony in futuro is appropriate because she in
unable to earn income due to her own medical conditions, she has long been out of the work
force due to caring for her older children and Husband’s frequent moves, and it is undesirable
for her to begin working again due to her current obligation to raise the parties’ child.
Furthermore, Wife argues that Husband’s earning capacity is far above her own.
Accordingly, she submits that she should have been awarded alimony in futuro.
The income of the parties is an integral consideration in the award of alimony. In
determining alimony, the trial court is directed to consider several factors:
(1) The relative earning capacity, obligations, needs, and
financial resources of each party, including income from
pension, profit sharing or retirement plans and all other sources;
(2) The relative education and training of each party, the ability
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and opportunity of each party to secure such education and
training, and the necessity of a party to secure further education
and training to improve such party’s earnings capacity to a
reasonable level;
* * *
(5) The physical condition of each party, including, but not
limited to, physical disability or incapacity due to a chronic
debilitating disease;
(6) The extent to which it would be undesirable for a party to
seek employment outside the home, because such party will be
custodian of a minor child of the marriage; . . . .
Tenn. Code Ann. § 36-5-121(i) (outlining a number of additional factors to consider in
awarding alimony, including the marital property awarded to each party, the duration of the
marriage, the age of the parties, the separate assets of the parties, the standard of living
during the marriage, and the tax consequences to each party). Indeed, Tennessee Courts
repeatedly held that the most important factor in an award of alimony is the obligee’s need
and the obligor’s ability to pay. See, e.g., Gonsewski v. Gonsewski, 350 S.W.3d 99, 105
(Tenn. 2011); Bratton v. Bratton, 136 S.W.3d 595, 605 (Tenn. 2004); Robertson v.
Robertson, 76 S.W.3d 337, 342 (Tenn. 2002); Burlew v. Burlew, 40 S.W.3d 465, 472 (Tenn.
2001). Thus, in order to determine an appropriate alimony award, the trial court must
consider the income of the parties, as well as a number of other factors.
Nothing in the trial court’s written order or in its oral ruling from the bench indicates
that the trial court considered any of the above factors in deciding to award Wife alimony in
solido and deny her request for alimony in futuro. Tennessee Rule of Civil Procedure 52.01
provides:
In all actions tried upon the facts without a jury, the court shall
find the facts specially and shall state separately its conclusions
of law and direct the entry of the appropriate judgment. The
findings of a master, to the extent that the court adopts them,
shall be considered as the findings of the court. If an opinion or
memorandum of decision is filed, it will be sufficient if the
findings of fact and conclusions of law appear therein.
Prior to July 1, 2009, trial courts were only required to make specific findings of fact and
conclusions of law “upon request made by any party prior to the entry of judgment.” See
Poole v. Union Planters Bank N.A., No. W2009-01507-COA-R3-CV, 337 S.W.3d 771, 791
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(Tenn. Ct. App. 2010) (noting the amendment). However, the current version of Rule 52.01
requires the court to make these findings regardless of a request by either party. Id. This
Court has previously held that the requirement to make findings of fact and conclusions of
law is “not a mere technicality.” In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL
1362314, at *8 (Tenn. Ct. App. May 15, 2009). Instead, the requirement serves the important
purpose of “facilitat[ing] appellate review and promot[ing] the just and speedy resolution of
appeals.” Id.; White v. Moody, 171 S.W.3d 187, 191 (Tenn. Ct. App. 2004); Bruce v. Bruce,
801 S.W.2d 102, 104 (Tenn. Ct. App. 1990). “Without such findings and conclusions, this
court is left to wonder on what basis the court reached its ultimate decision.” In re K.H.,
2009 WL 1362314, at *8 (quoting In re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL
865840, at * 19 (Tenn. Ct. App. April 21, 2004)).
Generally, the appropriate remedy when a trial court fails to make appropriate findings
of fact and conclusions of law is to “vacate the trial court’s judgment and remand the cause
to the trial court for written findings of fact and conclusions of law.” Lake v. Haynes, No.
W2010-00294-COA-R3-CV, 2011 WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011).
However, this Court has indicated that we may “soldier on” with our review despite the trial
court's failure to make sufficient findings of fact and conclusions of law, in certain limited
circumstances:
On occasion, when a trial judge fails to make findings of fact
and conclusions of law, the appellate court “may ‘soldier on’
when the case involves only a clear legal issue, or when the
court's decision is ‘readily ascertainable.’” Hanson v. J.C.
Hobbs Co., Inc., No. W2011-02523-COA-R3-CV, 2012 WL
5873582, at * 10 (Tenn. Ct. App. Nov. 21, 2012) (quoting
Simpson v. Fowler, No. W2011-02112-COA-R3-CV, 2012 WL
3675321, at *4 (Tenn. Ct. App. Aug. 28, 2012)).
Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799, at *5 (Tenn. Ct.
App. Feb. 22, 2013).
In this case, the issue of alimony does not involve a clear legal issue, nor is the trial
court’s reasoning readily ascertainable. Furthermore, as previously discussed, an award of
alimony must consider the incomes of the parties. Because the trial court erred in imputing
income to both parties without a finding of willful underemployment or unemployment, the
trial court’s alimony award rests on an income finding that may change upon remand.
Because the parties’ incomes may change upon remand, the issue of alimony may also
require reconsideration. Under these circumstances, we decline to “soldier on” with review
in this case. Accordingly, the alimony award is vacated and remanded for reconsideration in
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accordance with this Opinion.
Mortgage Payments
Wife next argues that the trial court erred in requiring her to reimburse Husband for
one-half of the mortgage payments while Husband lives in the marital home prior to its sale.
In support of her assignment of error, Wife puts forth a rather novel argument: because
Husband and Wife are tenants in common of the property after the dissolution of the
marriage, the fact that Husband retains sole possession of the home until it is sold results in
an ouster of Wife. According to Wife’s brief:
Clearly, seeking and obtaining a court order excluding a
cotenant, Wife in this case, from the property is an ouster as
defined by our Supreme Court. Under law that has been well
settled for over one hundred (100) years, Husband must pay rent
to Wife (his cotenant) for his exclusive use and possession of
the property. It is also true that he is entitled to a reduction in the
rental rate for one-half (½) of the mortgage payments made
during the period. However, without proof that the mortgage
payment exceeds the rental rate, he is not also entitled to
compensation from Wife from her portion of the net proceeds
from the sale of the marital home.
Husband submitted no proof during the trial of the fair
rental rate much less that the mortgage payment exceeded such.
Therefore, Husband has failed in his burden to show that he is
entitled to any compensation for the mortgage payment.
Accordingly, Wife submits that the Trial Court erred in ordering
her to reimburse Husband for half of the mortgage payments
made after the trial date.
From our review of the record, however, an ouster argument was never raised in the trial
court. It is well-settled that an issue may not be raised for the first time on appeal. See Barnes
v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006). Although Wife submits in her reply brief that
she was not required to raise this argument in the trial court, as it was Husband’s burden to
show the value of the property, we disagree. If Wife wanted the trial court to consider the
rental value of the property, rather than the undisputed payment Husband must make on the
mortgage, it was her burden to raise this argument in the trial court. Because she did not, this
issue is waived and the trial court’s decision in this regard is affirmed.
Income Assignment
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Wife finally argues that the trial court erred in failing to order a wage assignment to
secure the award of child support. According to Tennessee Code Annotated Section 36-5-
501(a)(1):
For any order of child support issued, modified, or enforced on
or after July 1, 1994, the court shall order an immediate
assignment of the obligor's income, including, but not
necessarily limited to: wages, salaries, commissions, bonuses,
workers' compensation, disability, payments pursuant to a
pension or retirement program, profit sharing, interest,
annuities, and other income due or to become due to the obligor.
(Emphasis added). There is no dispute in this case that the trial court declined to order an
income assignment of Husband’s military retirement pay to secure the child support order.
Husband argues, however, that Wife waived this issue by her failure to specifically request
an income assignment at trial. In addition, Husband argues that the trial court had good cause
for declining to order income assignment in this case.
This Court has previously held that the General Assembly’s use of the word “shall”
in a statute indicates that the obligation is mandatory, rather than discretionary. See Bellamy
v. Cracker Barrel Old Country Store, Inc., 302 S.W.3d 278, 281 (Tenn. 2009) (quoting
Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150, 154 (1965) (“When ‘shall’ is used . . . it is
ordinarily construed as being mandatory and not discretionary.”)). Thus, Tennessee Code
Annotated Section 36-5-501(a)(1) provides that the trial court must order an income
assignment, absent specific statutory exceptions outlined below. Nothing in the statute places
a duty on the obligee parent to request an income assignment; the duty is on the court.
Accordingly, Wife’s failure to specifically raise this issue until a post-trial proceeding is not
fatal to her argument.
Husband next argues that the trial court had good cause3 for declining to order income
assignment, and that, consequently, this case falls within the exceptions outlined in
Tennessee Code Annotated Section 36-5-501(a)(2)(A), which provides:
Income assignment under this subsection (a) shall not be
required:
3
Specifically, Husband argues that an income assignment in this case may prevent him from
timely paying the parties’ mortgage, which would negatively impact both parties’ financial futures. Further,
Husband notes that there are no allegations that he has ever failed to pay any ordered or requested support.
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(i) If, in cases involving the modification of support orders,
upon proof by one party, there is a written finding of fact in the
order of the court that there is good cause not to require
immediate income assignment and the proof shows that the
obligor has made timely payment of previously ordered support.
“Good cause” shall only be established upon proof that the
immediate income assignment would not be in the best interests
of the child. The court shall, in its order, state specifically why
such assignment will not be in the child’s best interests; or
(ii) If there is a written agreement by both parties that provides
for alternative arrangements. Such agreement must be reviewed
by the court and entered in the record.
Husband’s argument fails in several respects. First, there is no dispute that no written
agreement exists providing for an alternative child support arrangement. In addition, there
are no findings of fact or conclusions of law contained in the trial court’s written order or
oral ruling that would support a finding of good cause that income assignment is not in the
child’s best interest. Although Husband contends that the trial court made certain oral
findings to support its decision in a post-trial hearing, it is undisputed that no written findings
exist to support the trial court’s action. It is well-settled that a court speaks through its orders,
not through written transcripts. See Cunningham v. Cunningham, No. W2006-02685-
COA-R3-CV, 2008 WL 2521425, at *4–5 (Tenn. Ct. App. June 25, 2008) (citing Broadway
Motor Co. v. Fire Ins. Co., 12 Tenn. App. 278, 280 (1930)). Moreover, the record contains
no transcript of the post-trial hearing. Accordingly, the purported remarks of the trial court
simply cannot be considered by this Court. More importantly, Section 36-5-501(a)(2)(A)(i)
only appears to apply when a party is seeking a modification of a previously ordered child
support award. From our review of the record, the child support award contained in the final
decree of divorce was the first child support award ordered by the trial court. Accordingly,
this proceeding did not involve a modification of a support order. Under these circumstances,
Tennessee Code Annotated Section 36-5-501(a)(1) clearly requires the trial court to order
income assignment. The trial court’s failure to do so, therefore, is error.
Conclusion
The judgment of the trial court is affirmed in part, reversed in part, and vacated in
part. This cause is remanded to the trial court for all further proceedings as are necessary and
are consistent with this Opinion. Costs of this appeal are taxed one-half to Appellant Barbara
Lynn Horine, and her surety, and one-half to Appellee James Alan Horine, for all of which
execution may issue if necessary.
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_________________________________
J. STEVEN STAFFORD, JUDGE
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