Brown v. Brown ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
July 28, 1999
Cecil Crowson, Jr.
Appellate Court
Clerk
PAULA MARIE BROWN, ) C/A NO. 03A01-9812-CV-00417
)
Plaintiff-Appellee, ) HAM ILTON CIRCU IT
)
v. ) L. MARIE WILLIAMS,
) JUDGE
JAMES A. BROWN, )
) AFFIRMED AS
Defend ant-App ellant. ) MODIFIED
SANDRA J. BOTT, Chattanooga, for Plaintiff-Appellee.
BRUCE C. BA ILEY, CHAMB LISS, BAHNER & STOPHEL, P.C., Chattanooga, for
Defend ant-App ellant.
O P I N IO N
Franks, J.
This is an ap peal by the husband from a div orce decre e, ordering h im to
pay alimony in the amount of $2,000.00 per month. The wife has appealed, raising
issues dealing with the amount of child support and attorney fees.
The parties were m arried on Novem ber 23, 1975, and tw o children were
born to the marriage. Only one child, Timothy Brown, age 15, was a minor at the
time of the divorce. The parties stipulated that the wife would have custody of the
minor child and stipulated an equal division of certain pe rsonal properties. The cou rt
was then required to distribute the property that was not covered by the stipulation, set
child su pport, a nd ma ke a de termin ation of alimon y.
The Trial Judge based child support on the amount of $86,788.37, as
husband’s income, or $1,067.00 per month, plus $100.00 upward deviation, due to the
fact that regular visitation had not been occurring between the defendant and the
parties’ minor child. Add itionally, the Court ordered the de fendant to pay the w ife
21% of the net proceeds of any bonuses, distributions, or any income of any other type
receive d from dividen ds, intere st, bonu ses, or o ther bu siness in come .
The Court also provided the parties were to hold the marital residence as
tenants in common until the minor child reached the age of eighteen or graduates from
high school, whichever is later. At that time, the wife could remain in the home by
paying the husband his share of the equity, or the parties were to sell the home and
divide the equity equally, after the wife receives the first $30,114.64 of the equity as
part of the initial p roperty distrib ution. The wife wa s ordered to pay the m onthly
mortgage payment and to make necessary repairs, though one-half of the cost of the
repairs would be deducted from the husband’s share of the equity when the residence
was sold, and the husband is responsible for one-half of the insurance on the residence
until suc h time a s it is sold.
At the time of trial, the wife was 52 years of age and the husband was 50
years of age. The wife has a high school education, while the husband has a degree
in accounting. The wife is a diabetic, controlled by diet, and is currently employed as
a secretary, earning $550.00 a week. The husband is employed as an accountant, and
his federal income tax documents reflect wages, tips, and other compensation in the
amount of $83,456.01 for 1997, $93,395.28 for 1996, $89,510.50 for 1995. They also
reflect incom e from div idends, intere st, capital gains, a nd partners hip distribution s in
the am ount of $85,29 2.00 fo r 1997 , $41,28 5.79 fo r 1996 , and $4 ,180.00 for 199 5.
The parties subm itted income and ex pense statements. Th e wife’s
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statement reflects net monthly income from work in the amount of $1,864.41, and
total monthly expenses of $4,463.47. This monthly income statement subtracts a
$100.00 per month contribution to her 401(k) plan, and the amount of her expenses
includes a $300.00 per month contribution to a savings account, $700.00 for birthdays,
Christmas, and vacations, $75.00 for payment on a Discover credit card, and $150.00
per m onth fo r hom e main tenanc e.
The husband’s statement reflects a gross monthly salary of $7,066.66,
with a net income of $4,692.60. He claims general expenses of $1,350.00, which
includes $700.00 in rent, $250.00 in utilities, $300.00 for car expenses, and $100.00
for insurance. He also claims expenses in the amount of $1,320.00, which includes
such thing s as food, clo thing, and re creation. Th ough he claimed g eneral exp enses in
the amo unt of $1,3 50.00, he te stified that these were estim ated expe nses, becau se he is
currently living with his girlfriend and not paying her for any expenses. He said that
he is paying $400.00 a month in rent to a friend, though he is just storing some
belong ings at th e friend ’s hous e.
After this appeal was perfected, the wife filed a Motion to Consider Post
Judgment F acts, asking the Court con sider the husband’s 19 98 income tax return
which re flects the husb and’s adju sted gross in come a s $234,00 0.00 for 19 98. Prior to
his deduc tion for alim ony, the hu sband’s inc ome w as $251,4 78.00. Th e wife insists
this is relevant to the appeal because at trial, the husband testified his monthly income
was $7,066.66 per month.
Essentially the issues on appeal are:
1. Whether the Trial Court erred in ordering periodic alimony as
opposed to rehabilitative alimony.
2. Whether the Trial Court erred by awarding the wife alimony
exceeding her needs and exceeding the husband’s ability to pay.
3. Whether the Trial Court erred in setting child support in an amount
that is not in compliance with the child support guidelines.
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4. Whe ther the wife should be awarded her attorney ’s fees incurre d in
this Appe al.
As a preliminary matter, we are required to determine whether the
Motion to Consid er Post Jud gment F acts should be sustaine d. We co nclude tha t it is
not appropriate to consider this tax return under this Rule. Both parties submitted
affidavits addressing how the document affects the position of the parties. Instead of
demon strating how the docum ent was re levant, the affid avits identify a dispute as to
the source of the husband’s income, and whether the wife actually received a large
part of it.
We conclude the Trial Court did not err in ordering periodic alimony, as
opposed to rehabilitative alimony. Trial Judges are given broad discretion in awards
of alim ony. Aaron v. Aaron, 909 S.W .2d 408 (T enn. 1995 ). Such a de cision is
factually driven and calls for a careful balancing of numerous factors, including those
listed in T enn. C ode A nn. § 36 -5-101 (d) (Su pp. 198 8).
Although the Legislature has expressed a preference for rehabilitative
alimony, as opposed to permanent alimony, T.C.A. §36-5-101(d)(1), it has also
declared, “W here there is s uch relative e conom ic disadvan tage and re habilitation is
not feasible in consideratio n of all releva nt factors, inclu ding those set out in this
subsection, then the court may grant an order for payment of support and maintenance
on a long-term basis or until the death or remarriage of the recipient except as
otherwise provided in subdivision (a)(3).” The rec ord reveals that the husban d’s
salary is substantially more than the amount the wife earns, and while both parties
may receive additional income from investments, they are to share that income
equally, so it will not necessarily alter her relative disadv antage. The Trial C ourt
specifically found, “The income disparity listed above is a result of the relative
education and training of the parties and the ability of each party to secure the
necessary education and training. The work experience, work life expectancy, and
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age of Mrs. Brown make it unlikely she can be rehabilitated to improve her earning
capacity to a level commensurate with that of Mr. Brown.” The evidence does not
preponderate again st this finding. T.R.A.P. Rule 1 3(d).
Trial court’s are given a great deal of discretion in the amount of
alimon y they a ward. Hall v. Ha ll, 772 S.W .2d 432, 43 9 (Tenn. A pp. 1989 ); Ingram v.
Ingram , 721 S.W.2d 262 (Tenn. App. 1986). “The amount of alimony to be allowed
in any case is a matter fo r the discretion of the particu lar circums tances. Th e appellate
courts are d isinclined to re view suc h discretion e xcept in cas es where it has man ifestly
been abused.” Ingram, at 264.
In considering wh ether to award alimo ny and the am ount, trial courts are
to consider all relevant factors, set forth in T.C.A . §16-5-101(d). W hile there are
several factors to be taken into account, our courts have emphasized that the most
important factors to consider are the needs of the requesting spouse and the ability of
the oblig or spou se to pa y. See Sm ith v. Smith, 984 S.W.2d 606, 609-610 (Tenn. App.
1997). Fault als o plays an imp ortant ro le, see Long v. Long, 957 S.W.2d 825 (Tenn.
App. 1997); and Ford v. Ford, 952 S .W.2d 824 (T enn. A pp. 199 6).
The husband argues that the Trial Court looked only at the relative
earning capacities of the parties, and did not look at need and ability to pay. The
substantial difference in income, however, along with the income and exp ense
statemen ts of both pa rties, reflect the ne eds and a bility to pay. T he wife ea rns a yearly
salary of $28,600.00 and reports her net monthly take-home at $1,864.41, and claims
her total expenses for herself and her minor child are $4,463.47. The husband argues
that the wife ’s income is understated because s he deduc ted a $100 per mon th
contribution to her employer’s 401(k) plan, and that her needs are overstated because
her expen ses include $300 pe r month fo r a savings c ontribution, $ 700.00 p er month
for birthday s, Christma s, vacations, a nd misce llaneous item s, and $15 0.00 per m onth
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for hom e main tenanc e.
While the husband takes issue with these expenses, prior to the divorce.
the parties together earned over $100,000.00 per year and we cannot say that an
estimated $700.00 per month for birthdays, Christmas, vacations and miscellaneous
expense s is unreaso nable, base d upon th eir living stand ard. She sh ould not h ave to
forego vacatio ns or sto p buyin g her ch ildren p resents b ecause of the d ivorce.
Similarly, the $150.00 for hom e mainten ance is not a n overstated expense . While
one-half of the hom e maintenance e xpenses may be deducted from the husband’s
share of the equity wh en the house is sold, the w ife must still make the hom e repairs
and pa y for the m wh en they are ma de.
The husband claims a monthly gross salary of $7,066.66, with a net of
$4,692.60, which includes deductions for federal income tax in the amount of
$1,722.00, FICA in the amount of $531.38 and “other” in the amount of $120.68 per
month. The Trial Court found the husband’s gross monthly income to be $7,232.36,
and the husband’s testimony revealed his claims of gross and net income were less
than the true am ount du e to his v oluntar y contr ibution s to his 4 01(k).
The husband’s gross income from his salary is understated, since the
Trial Cou rt found his g ross incom e to be $20 0.00 mo re than claim ed by him , and his
expenses are overstated, since he admits he is not incurring general living expenses
because he is living with his girlfriend, who pays all the bills. We cannot say the
award o f $2,000.00 per mon th in alimon y under a ll the facts and circumsta nces is
excessive, since he has b een receiving incom e over and abov e his salary. We affirm
the Trial Judge on this issue.
On the issu e of child su pport, we c onclude th e Trial Judg e did err in
setting the child support in an am ount that is not in comp liance with the child suppo rt
guidelines. In addition to th e set amo unt of child s upport, the h usband w as ordered to
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pay 21% of any additional income from such things as interest, dividends, and
partnership distributions as child support. T.C.A. §36-5-101(a)(2)(A) provides:
Courts having jurisdiction o f the subject matter and of the parties are
hereby expressly authorized to provide for the future support of a spouse
and of the children, in proper cases, by fixing some definite amount or
amounts to be paid in monthly, semimonthly, or weekly installments, or
otherwise, as circumstances may warrant, and such awards, if not paid,
may be enforced by any appropriate process of the court having
jurisdiction thereof, including levy of execution.
The foreg oing prov ision prohib its courts from ordering a v ariable
amount of child su pport based on va riable income, even tho ugh that may b e the more
rational approa ch base d on the circum stances . See Robertson v. Robertson, No.
03A0 1-971 1-CV -0051 1, 1998 Tenn . App. L EXIS 761 (T enn. A pp. No v. 9, 199 8).
Since the L egislature ha s mand ated that cou rts set a definite a mount o f child supp ort,
the issue thus becom es how shou ld that amount be c alculated. The child supp ort
guidelines, which must be applied as a rebuttable presumption of the proper amount of
child support, requires that child support is to be based upon a flat percentage of the
obligor’s net income, depending upon the number of children to be supported. Tenn.
Comp. R. & Regs. tit. 10, ch. 1240-2-4-.03(2). Net income is calculated by
subtracting F ICA an d federal inc ome tax from gro ss incom e, so the first step is
determ ining th e obligo r’s gross incom e. See Tenn. Comp. R. & Regs. tit. 10, ch.
1240- 2-4-.03 (4).
The guidelines define gross income as
all income from a ny source (before taxe s and other deduc tions),
whether earned or unearned, and includes but is not limited to the
following: wages, salaries, commissions, bonuses, overtime
payments, dividends, severance pay, pensions, interest, trust
income, annuities, capital gains, benefits received from the Social
Security Administration, i.e., Title II Social Security benefits,
workers compe nsation ben efits wheth er tempo rary or perm anent,
judgments recovered for personal injuries, unemployment
insurance benefits, gifts, prizes, lottery winnings, alimony or
mainte nance , and inc ome f rom se lf-emp loym ent. . . .
Tenn. Com p. R. & Reg s. tit 10, ch. 1240-2-4-.03(3)(a). Acco rdingly, the husband’s
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income in the form of interest, dividends, and partnership distributions would be
included within the definition of “gross income.” The guidelines further provide that
“[v]aria ble inco me su ch as co mm issions, b onuse s, overtim e pay, d ividend s, etc.,
should be averaged and added to the obligor’s fixed salary.” Tenn. Comp. R. & Regs.
tit. 10, ch. 1240-2-4-.03(3)(b). Therefore, we conclude that the husband’s additional
income must be averaged and added to his salary in order to determine gross income
for child support purposes.
Several unreported cases have dealt with this issue in various ways. The
unreported case of Mayfield v. Mayfield , No. 01A01-9611-CV-00501, 1997 Tenn.
App. LE XIS 30 4 (Tenn. C t. App. Ap r. 30, 1997) , relied on a p rovision in th e child
support guidelines in holding that the court must average income for the past two
years. This p rovision in th e guideline s provides:
In cases w here initial sup port is being set, a judgm ent must b e entered to
include an amo unt due for mo nthly support from the date of the child’s
birth or date o f separation o r date of aba ndonm ent which ever is
appropriate, until the current support order is entered. This amount must
be calculated based upon the guidelines using the average income of the
obligor over the past two years and is presumed to be correct unless
rebutted by either party. A n amou nt should b e included in the order to
reduce the arrears judg ment on a month ly basis with in a reasona ble
time.
Tenn . Com p. R. & Regs. ti t 10, ch. 1 240-2 -4-.04(1 )(e).
While this provision d oes not m andate that tria l courts avera ge variable
monthly income from the p ast two ye ars to determ ine gross inc ome for c urrent child
support, it does reflect the legislative intent that when the exact amount of gross
income is not known an average must be taken, and a period of two years is an
appropriate time period to average that income. On this basis, we conclude that the
case should be remanded to the Trial Court for a determination of a definite amount of
child supp ort based o n the husb and’s ave rage incom e for the pas t two years , which is
to include any interest income and partnership distributions that are attributable to the
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husband.1 This would be the proper amount of child support under the guidelines,
unless r ebutted by eithe r party.
The wife has also appealed the decision of the Trial Court to increase
the child support by $100.00 a month over the guidelines, and urges us to calculate a
specific number of days that the husband will not be visiting his son. There is no
indication that the father will not visit his son. He has visited his son, though not in the
manner or the amount contemplated by the guidelines. Since there will be visitation,
the Court cannot use a precise mathematical formula to determine the proper amount
of additional child support. Cases of this nature are best determined on a case-by-case
basis, and the evidence d oes not preponde rate against the finding of the Trial C ourt
that increases the ordered child support in the amount of $100.00 per month. T.R.A.P.
Rule 13(d).
Finally, the wife asserts that this is a frivolous appeal and that she
should be entitled to attorney fees and costs, or that she is entitled to attorney fees for
defending her alim ony award. T he appeal is not frivolous, and we decline to aw ard
the wife her attorney’s fees, and in our discretion we assess one-half of the cost of the
appeal to each party.
The judgment of the Trial Court is affirmed, except as modified and
remanded.
__________________________
Herschel P. Franks, J.
1
Any child support paid under the Trial Court’s order will be credited against the amount set
upon remand.
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CONCUR:
___________________________
Houston M. Godd ard, P.J.
1 0
I N T H E C O U R T O F A P P E A L S O F T E N N E S S E E
FILED
A T K N O X V I L L E
July 28, 1999
Cecil Crowson, Jr.
Appellate Court
Clerk
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c h i l d s u p p o r t i s c o r r e c t i n t h i s c a s e . I w r i t e s e p a r a t e l y t o
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C h a r l e s D . S u s a n o , J r . , J .
1 1
___________________________
Charles D. Susano, Jr., J.
1 2