Lois Winbush v. Thomas Winbush ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE,
AT JACKSON
_______________________________________________________
FILED
) March 31, 1999
LOIS DIANNE WINBUSH, ) Chester County Chancery Court
) No. 7797 Cecil Crowson, Jr.
Appellate C ourt Clerk
Plaintiff/Appellant. )
)
VS. ) C.A. No. 02A01-9809-CH-00248
)
THOMAS DALE WINBUSH, )
)
Defendant/Appellee. )
)
______________________________________________________________________________
From the Chancery Court of Chester County at Henderson.
Honorable Joe C. Morris, Chancellor
Angela R. Scott, BISHOP, SCOTT & BISHOP, Henderson, Tennessee
Attorney for Plaintiff/Appellant.
David Hardee, HARDEE, MARTIN, JAYNES & IVY, P.A., Jackson, Tennessee
Attorney for Defendant/Appellee.
OPINION FILED:
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
FARMER, J.
CRAWFORD, P.J., W.S.: (Concurs)
LILLARD, J.: (Concurs)
Lois Dianne Winbush (Wife) and Thomas Dale Winbush (Husband) were divorced
in 1990. The parties entered into a marital dissolution agreement (MDA) which was incorporated
into the final decree. As pertinent to this appeal, the parties agreed that Husband would pay child
support in the amount of $200 per month for the parties’ one minor child. The MDA further
provided that
[t]he amount to be paid by the Husband to the Wife for the support
and maintenance of the minor child of the parties is based upon the
Wife’s employment at Grinnell and the Husband’s present
employment as a Supervisor with the Markham Company. Also,
there is taken into consideration that the Wife is to be the owner of
the former home of the parties and entitled to possession thereof, and
the Husband’s present physical condition.
Wife was awarded the marital home but, in the event she remarried, decided to reside
elsewhere or sold the property, she agreed to pay Husband the sum of $10,000, representing his
equity in the property as of the date of the execution of the agreement. Subsequent to executing the
MDA, Wife executed a deed of trust to secure Husband for this indebtedness.
In April 1998 Wife filed a petition for contempt and modification of the final decree
of divorce. Prior to filing the petition, Wife had attempted to refinance the loan on the residence but
was unable to do so because of the deed of trust held by Husband. According to Wife’s testimony,
Husband refused to release or subordinate the deed of trust. Husband testified that he was not aware
of the deed of trust until it was presented at trial. Wife identified the deed of trust at trial, but it was
not made an exhibit.
The petition sought to have Husband held in contempt for failure to make timely child
support payments and asked the trial court to modify the decree by increasing child support payments
to conform with the child support guidelines. Wife further requested that the court issue an order
directing Husband to immediately remove his lien on the former marital home. The trial court
denied the relief sought therein, and this appeal resulted.
The issues as presented by Wife on appeal are as follows:
I. The trial court erred in failing to adjust the child
support obligation of appellee.
II. The trial court erred in failing to order appellee to
release the deed of trust filed against property
awarded to appellant in original divorce action.
Addressing the second issue first, it appears to this court that, if Wife has a cause of
action for removal of the deed of trust, it would be the subject of an action separate and apart from
the present action, such as a bill to rescind or to quiet title. As stated, Wife executed the deed of trust
subsequent to the divorce, and she was not required to do so by the MDA or the divorce decree.
Inasmuch as the final divorce decree neither imposed a lien on the former marital home nor required
Wife to execute a deed of trust, we do not view the relief sought by Wife on this issue to be the
proper subject of a modification or enforcement action.
The burden of proof is upon the party seeking a modification of child support to show
such change as warrants a modification of the prior decree. Seal v. Seal, 802 S.W.2d 617, 620
(Tenn. App. 1990); Azbill v. Azbill, 661 S.W.2d 682 (Tenn. App. 1983). The only evidence
presented by Wife was elicited through cross-examination of Husband and established that his wage
is $12.50 per hour. The record does not contain the number of hours he works. Husband also
testified that he has a second job cutting grass which nets about $350. It was not established whether
this was a weekly, monthly, or yearly amount. Husband testified that he is making less now than he
was at the time of the divorce. However, Husband’s attorney stated in his opening statement that,
at the time of the divorce, Husband was making $725 per week and is now making under $600. He
did not specify whether these figures were net or gross. An admission made by an attorney
concerning factual statements is binding on the client. Garland v. Seaboard Coastline RR Co., 658
S.W.2d 528, 531 (Tenn. 1983); Pewitt v. Pewitt, 240 S.W.2d 521, 527 (Tenn. 1951); Pankow v.
Mitchell, 737 S.W.2d 293, 296 (Tenn. App. 1987).
A divorce decree is res judicata. On application of a party, however, the court may
decree an increase or decrease of support only upon a showing of a substantial and material change
of circumstances. In cases involving child support, the court shall decree an increase or decrease
when there is found to be a significant variance, as defined by the child support guidelines, between
the guidelines and the amount of support currently ordered, unless the variance has resulted from a
previously court-ordered deviation from the guidelines and the circumstances which caused the
deviation have not changed. T.C.A. § 36-5-101(a)(1) (Supp. 1998). A “significant variance” is
fifteen percent (15%). See Tenn. Comp. R. & Regs. 1240-2-4-.02(3) (as revised in Dec. 1994).
Husband relies upon T.C.A. § 36-5-101(h), which states:
Nothing in this section shall be construed to prevent the
affirmation, ratification and incorporation in a decree of an agreement
between the parties as to support and maintenance of a party or as to
child support. In any such agreement, the parties must affirmatively
acknowledge that no action by the parties will be effective to reduce
child support after the due date of each payment, and that they
understand that court approval must be obtained before child support
can be reduced, unless such payments are automatically reduced or
terminated under the terms of the agreement.
T.C.A. § 36-5-101(h) (Supp. 1998) (emphasis added).
This court addressed this issue in Dwight v. Dwight, 936 S.W.2d 945 (Tenn. App.
1996). There the court noted that neither the parties’ marital dissolution agreement nor the final
decree used the language contained in the above section of the statute. In the case before us, neither
the MDA nor the final decree used the language contained in the statute. This court in Dwight held
that
the agreement does not effectively deviate from the Guidelines under
T.C.A. § 36-5-101(h). Therefore, deviation requires the trial court
make a written finding that the Guidelines would create an unjust or
inappropriate result. T.C.A. § 36-5-101(e)(1). No such finding was
made at the time the final decree of divorce was entered. Finally,
there is a rebuttable presumption in this state that the amount of
support established by the Guidelines is proper; there is no
requirement that the obligee spouse prove that the children’s needs
are equal to the amount provided for in the Guidelines. T.C.A. § 36-
5-101(e)(1).
Id. at 948. Again like Dwight, the final decree of divorce entered in this case made no such findings,
and it is apparent that Husband’s income at that time, regardless of whether the $725 per week was
net or gross, would constitute a deviation from the guidelines. Furthermore, assuming that his
present income of $600 is net, there still would be a significant variance between the amount
provided in the guidelines and the $200 per month child support ordered to be paid at the time of the
divorce.
We reverse the order of the trial court denying Wife’s petition to increase child
support and remand this case to the trial court to conduct an expedited hearing and modify the
parties’ final decree to comply with the guidelines, or to make a written explanation for its deviation.
The trial court’s judgment is otherwise affirmed. Costs of this appeal are taxed to Mr. Winbush, for
which execution may issue if necessary.
____________________________________
FARMER, J.
______________________________
CRAWFORD, P.J., W.S. (Concurs)
______________________________
LILLARD, J. (Concurs)