Juliann Morando v. William McGahan ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 5, 2001 Session
JULIANN MORANDO v. WILLIAM MICHAEL MCGAHAN
Direct Appeal from the Juvenile Court for Wilson County
No. 99JWC136 Charles P. Tatum, Judge
No. M2000-01551-COA-R3-JV - Filed January 15, 2002
This appeal arose after the trial court made its final determination on issues involving the support
of the parties’ minor child. Mother petitioned the trial court to establish parentage, to be awarded
custody of the parties’ child, and to establish other issues regarding the care of the child. At trial,
Father conceded paternity and did not contest the custody issue. In making its child support award,
the trial court based its decision on Father’s new found employment. The court also set a payment
schedule for the child support arrearage, determined that Father should claim the child as a
dependent for tax purposes, split medical costs associated with the child’s birth, and refused to award
mother filing fees and attorney’s fees. Mother contends that Father is voluntarily underemployed
for purposes of child support and challenges several other decisions of the trial court. We reverse
the court’s decision in part, modify in part, affirm in part, and remand to the trial court for
proceedings consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in Part;
Modified in Part; Affirmed in Part; and Remanded.
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY K. LILLARD , J., joined.
Jeffrey Spark, Nashville, Tennessee, for the appellant, Juliann Morando.
Clark Lee Shaw, Nashville, Tennessee, for the appellee, William Michael McGahan.
OPINION
On February 11, 1999, Juliann Morando gave birth to a child. Subsequently, Ms. Morando
petitioned the court to declare that William Michael McGahan was the child’s father and to
determine other issues relative to the birth and care of the child. In turn, Mr. McGahan filed an
answer and counter-petition, demanding a paternity test to establish the parentage of the child.
After a paternity test established that Mr. McGahan was the father of the child, the court held
an initial hearing to establish custody, child support, and visitation. At the November 30, 1999
hearing, Mr. McGahan stipulated that Ms. Morando should have sole custody of the couple’s child.1
Mr. McGahan also testified that he had been employed by the Gannett Corporation until November
1999 as a technician. Further, Mr. McGahan stated that he earned $18.90 per hour while employed
by the Gannett Corporation and that he worked forty hours per week. The reason he discontinued
his employment at the Gannett Corporation was, Mr. McGahan stated, because he felt working with
Ms. Morando, who also worked there, was having an adverse effect on his health. Mr. McGahan
further testified that he was unemployed at the time of the hearing and was not presently seeking
employment.
After reviewing Mr. McGahan’s testimony, the record as a whole, and the statements of
counsel, the court found that Mr. McGahan “voluntarily and without cause quit his job” at the
Gannett Corporation. According to his salary at the Gannett Corporation, the court ordered that Mr.
McGahan should pay Ms. Morando $122.00 per week in pendente lite child support, pending a final
hearing of the case. This amount was in accord with the Child Support Guidelines. Additionally,
the court set a date for the final hearing of this case. The purpose of the final hearing was to
determine the issues of “current child support, child support arrearage, reimbursement of medical
insurance costs, reimbursement of birthing costs, the child’s surname, visitation, assessment of
attorney’s fees, and court costs.”
The court held the final hearing on January 25, 2000. Ms. Morando testified that she paid
$11.54 per week to provide medical insurance for the child. Further, Ms. Morando stated that
outstanding medical bills associated with the birth of the child totaled $110.00. Ms. Morando stated
that she worked at the Gannett Corporation, earning $11.47 per hour while working 40 hours per
week.
Mr. McGahan testified that he remained unemployed. Mr. McGahan stated that he
interviewed for one job where he expected to earn $10.00 per hour while working a forty hour week.
Further, Mr. McGahan presented a newspaper advertisement for the position and stated that he
expected to begin employment on January 31, 2000. Mr. McGahan also stated that he had not
applied for any other positions. Finally, Mr. McGahan testified that he had a 401(k) plan with the
Gannett Corporation with an approximate value of $40,000.
A final witness testified at the hearing. Jim Watson, employed in the Human Resource
department at the Gannett Corporation, stated the Mr. McGahan was not a candidate for rehire. Mr.
Watson testified that Mr. McGahan stated that he could not work with Ms. Morando. According to
Mr. Watson, Mr. McGahan previously stated that if he worked with Ms. Morando, Mr. McGahan
would “blow her head off.”
As a result of the final hearing, the court found that Mr. McGahan would not earn his prior
salary that was the basis for the pendente lite support. Therefore, the court ordered Mr. McGahan
1
Pursuant to Rule 24(c) of the T enn essee Rules of A ppe llate Procedure, Ms. Morando filed a statement of the
evidence to accou nt for the ev ents in this hearing , as we ll as for all other proceed ings releva nt to this appeal.
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to pay Ms. Morando $68.37 per week in child support. The court based its order on Mr. McGahan’s
new job, where Mr. McGahan was to earn $1,733.33 per month in gross income. The court stated
that the child support award was in accord with the Child Support Guidelines.
The court also ordered Mr. McGahan to reimburse Ms. Morando $11.54 per week for the
child’s medical insurance, or in the alternative, to provide similar coverage to the child at Mr.
McGahan’s own expense. Additionally, the court found Mr. McGahan in arrears regarding child
support. The court determined the amount of arrearage to be $5,124.00. The court based the amount
of arrearage on the pendente lite support as previously set by the court. As payment for the
arrearage, the court ordered Mr. McGahan to pay Ms. Morando $10.00 per week. Further, the court
ruled that Mr. McGahan should be entitled to claim the child as a tax deduction.
The court determined that each party should bear the cost of their attorney’s fees. Also, the
court ruled that the Mr. McGahan and Ms. Morando should split the unpaid birthing costs equally,
and awarded Ms. Morando a judgment in the amount of $55.00 which represented Mr. McGahan’s
portion of those costs. Finally, the court determined Mr. McGahan’s visitation schedule with the
child.
Ms. Morando appeals the trial court’s decision. The issues, as stated by Ms. Morando, are
as follows:
I. Whether the trial court erred in reducing appellee’s child support payments
to the custodial parent?
II. Whether the trial court erred in allowing appellee non custodial parent to
claim the parties’ child as a tax deduction each year?
III. Whether the trial court erred in allowing appellee to pay retroactive child
support judgment of $5,124.00 in weekly increments of $10.00 over a period of ten
years?
IV. Whether the trial court erred in denying appellant prevailing party
reasonable attorney’s fees?
V. Whether the trial court erred in requiring appellant prevailing party to pay
the filing fee and other costs in this cause?
VI. Whether the trial court erred in equally dividing the medical costs
associated with the birth of the parties’ child?
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In response to Ms. Morando’s appeal, Mr. McGahan raises two additional issues for our
consideration. These issues, as stated by Mr. McGahan, are as follows:
I. [Whether] the appellee is entitled to attorney’s fees on appeal in this matter.
II. [Whether] the appellee is entitled to attorney’s fees, costs, and expenses
because of this frivolous appeal.
To the extent these issues involve questions of fact, our review of the trial court’s ruling is
de novo with a presumption of correctness. Tenn. R. App. P. 13(d). We may not reverse the trial
court’s factual findings unless they are contrary to the preponderance of the evidence. Id. With
respect to the court’s legal conclusions, our review is de novo with no presumption of correctness.
Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).
In her first issue, Ms. Morando asserts that the trial court erred by basing the final child
support award on Mr. McGahan’s new found employment. Ms. Morando contends that court should
not have altered the pendente lite support that the court ordered in the November 30, 1999 hearing.
In addition to other arguments on the issue, Ms. Morando maintains that Mr. McGahan is
“intentionally and purposefully unemployed or underemployed” for the purpose of determining the
proper amount of child support.
The issue of willful and voluntary underemployment can arise at any time during child
support proceedings, whether in the initial phase or in subsequent modification hearings. Ralston
v. Ralston, No. 01A01-9804-CV-00222, 1999 WL 562719, at * 3 (Tenn. Ct. App. Aug. 3, 1999) (no
perm. app. filed). Whether an obligor is willfully and voluntarily underemployed is a question of
fact, and the trial court has considerable discretion in its determination. Willis v. Willis, No. W2000-
01613-COA-R3-CV, 2001 WL 687067, at *2 (Tenn. Ct. App. June 18, 2001), perm. app. denied
(Tenn. Oct. 1, 2001)(citing Brooks v. Brooks, 992 S.W.2d 403, 409 (Tenn. 1999) (Birch, J.
dissenting)). When a trial court must determine whether a parent is willfully and voluntarily
underemployed, the reasons for an obligor parent’s decision to accept lower paying employment are
relevant. Ralston, 1999 WL 562719, at * 3. In making its determination, the trial court must
consider the party’s past and present employment and whether the party’s choice to accept a lower
paying job was reasonable and made in good faith. Ralston, 1999 WL 562719, at *3.
In making any determination of willful and voluntary underemployment, it is important to
determine whether the leaving of previous employment was voluntary or involuntary. Ralston, 1999
WL 562719, at * 4. When a party with child support obligations voluntarily leaves their employment
and chooses to accept a job which provides significantly less income, courts are more inclined to find
willful and voluntary underemployment. Willis, 2001 WL 687067, at *2 (citing Brooks, 992 S.W.2d
at 407). In addition, courts may consider a party’s course of action and decision-making after
leaving their previous employment. Ralston, 1999 WL 562719, at *4. Accordingly, it is important
for courts to examine a party’s efforts to replace lost income after the termination of their previous
employment. Id. at *4-5.
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In the present case, the record establishes that Mr. McGahan was voluntarily underemployed.
At the November 30, 2000 hearing, the trial court found that Mr. McGahan “voluntarily and without
cause” left his job at the Gannett Corporation. The record indicates that Mr. McGahan left his job
at the Gannett Corporation with the knowledge that he would be responsible for supporting the child
and with no other job prospects. This finding alone indicates that Mr. McGahan was underemployed
when the trial court determined the issue of child support at the final hearing. Additionally, Mr.
McGahan, knowing that he would have to support the child, failed to obtain subsequent employment
for almost three months after he left the Gannett Corporation. In fact, Mr. McGahan admitted that
he was not even seeking employment as of the November 30, 2000 hearing, and at the January 25,
2001 hearing, Mr. McGahan stated that he had only applied for one job which he was slated to begin
on January 31, 2001. These actions by Mr. McGahan are precisely the type to be considered in
determining whether Mr. McGahan was underemployed. From our view of the record, it is clear that
Mr. McGahan was not making a good faith or a reasonable effort to replace his wages from the
Gannett Corporation. Therefore, because Mr. McGahan voluntarily left his employment and failed
to even attempt to find employment at a comparable salary, Mr. McGahan was voluntarily
underemployed at the time of the final hearing in this matter.
Because we have determined that Mr. McGahan was voluntarily underemployed at the time
of the final hearing held on January 25, 2001, Mr. McGahan’s child support obligation must be
determined on remand. In calculating Mr. McGahan’s proper child support obligation, the trial court
must consider Mr. McGahan’s potential income rather than his actual income. Tenn. Comp. R. &
Regs. 1240-2-4-.03(3)(d) (2001); Watters v. Watters, 22 S.W.3d 817, 820-21 (Tenn. Ct. App. 1999).
In accord with the child support guidelines, Mr. McGahan’s potential income is to be based upon
his educational level and/or previous work experience.2 Id.
Ms. Morando contends in her second issue that the trial court erred by allowing Mr.
McGahan to claim the child as a dependent on his yearly tax return. Decisions of the trial court
regarding the allocation of exemptions for minor children are discretionary. Barabas v. Rogers, 868
S.W.2d 283, 289 (Tenn. Ct. App. 1993). Further, the courts should consider the tax consequences
of child support orders. Id.
In this case, the court heard testimony regarding the income and financial situation of each
party. In its order, the court stated that Mr. McGahan should be permitted to deduct the child as a
dependent because Mr. McGahan would pay child support to Ms. Morando. Though a trial court
should not base an order granting an exemption to a non custodial parent on that fact alone, our
review of the record, especially in light of our holding that Mr. McGahan was underemployed, fails
to illustrate that the trial court abused its discretion by granting the tax exemption to Mr. McGahan.
2
Mr. McG ahan’s potential income is a question of fact that must be supported by a proper eviden tiary basis.
Willis, 200 1 W L 6870 67, at *3; Eatherly v. Eath erly, No. M2000-00886-COA-R3-CV, 2001 WL 468665, at *11 (Tenn.
Ct. App. May 4, 2001) (no perm. app. filed). We are aware that courts will sometimes adopt one’s previous income
as an accurate measure of one’s potential income, especially in those cases where the obligor voluntarily discontinued
their prior em ploy me nt. Eatherly, 200 1 W L 4686 65, at *11 n.10 . We declin e to take that route in the present case and
rem and the issue to the court for fu rther fact find ing o n the issue.
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Therefore, we affirm the trial court’s decision allowing Mr. McGahan to claim the parties’ child as
a yearly tax deduction.
Ms. Morando’s third issue concerns the trial court’s decision allowing Mr. McGahan to pay
the child support arrearage in weekly increments of ten dollars. The child support guidelines govern
the payment of arrearage in cases where initial child support is being set. Tenn. Comp. R. & Regs.
1240-2-4-.04(1)(e) (2001). The guidelines provide that “[a]n amount should be included in the order
to reduce the arrears judgment on a monthly basis within a reasonable time.” Id. (emphasis added).
In this case, according to the trial court’s repayment plan, it would take almost ten years for
Mr. McGahan to pay the child support arrearage.3 In light of the trial court’s finding that Mr.
McGahan possessed a 401(k) plan with a value of approximately $40,000, the repayment plan
imposed by the court was not reasonable. Mr. McGahan has the present ability to satisfy the
arrearage with the assets in the 401(k) plan. Therefore, the judgment of the trial court concerning
the payment of the child support arrearage is modified to require Mr. McGahan to pay the arrearage
in a lump sum.
In Ms. Morando’s fourth issue, she contends that the trial court erred by denying her request
for attorney’s fees in this action. In cases involving child custody, the trial court is authorized to
award attorney’s fees under section 36-5-103(c) of the Tennessee Code. The allowance of attorney’s
fees in such cases is largely within the sound discretion of the trial court. Sherrod v. Wix, 849
S.W.2d 780, 785 (Tenn. Ct. App. 1992). Absent an abuse of discretion, reviewing courts will not
interfere with a trial court’s ruling regarding this matter. Garfinkle v. Garfinkle, 945 S.W.2d 744,
748 (Tenn. Ct. App. 1996).
In the present case, the trial court heard evidence regarding the relative incomes and assets
of the parties. After hearing this evidence, the court required each party to be responsible for their
own attorney’s fees in the case. After reviewing the record, we find no abuse of discretion on the
part of the trial court regarding attorney’s fees. Therefore, we affirm the trial court’s ruling on the
issue of attorney’s fees.
Ms. Morando’s fifth issue concerns whether the trial court erred by denying her request to
require Mr. McGahan to pay the filing fees and other costs associated with the hearing. Additionally,
Ms. Morando’s contends in her sixth and final issue that the trial court erred by equally dividing the
medical costs associated with the birth of the parties’ child. Both of these issues rest within the
sound discretion of the trial court. See Tenn. Code Ann. § 36-2-314 (2001) (stating that “[t]he
clerk’s fee for services in an application for an order of parentage shall be fifty ($50.00) plus any
litigation tax, if applicable to be paid by the party petitioning subject to final assessment by the
3
The trial court determined the arrearage to be $ 5,124.00 b ased on M r. McG ahan’s prior income at the G ann ett
Corporation. The court ordered Mr. McGahan to pay ten dollars per week to satisfy the arrearag e. Over the course of
a year, therefore, Mr. McGahan would pay $520.00. The total arrearage, $5,124.00, divided by $520, results in 9.85
years to satisfy the arrearag e under th e trial court’s repay me nt plan.
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court.”); Tenn. Code Ann. § 36-2-311(a)(13) (stating that an order for parentage shall include a
“[d]etermination of liability for a mother’s reasonable expenses for her pregnancy, confinement and
recovery to either or both parties.”). After reviewing the record, we hold that the trial court did not
abuse its discretion in deciding these issues. Accordingly, we affirm the trial court’s decision
regarding filing fees and medical costs.
In light of our decision in this case, we find Mr. McGahan’s issues to be without merit. Mr.
McGahan is not entitled to attorney’s fees for this appeal, nor is Mr. McGahan entitled to damages
for a frivolous appeal.
Ms. Morando requests that we order Mr. McGahan to pay her attorney’s fees for this appeal.
It is within our discretion whether to award attorney’s fees for an appeal. Tenn. Code Ann. § 36-5-
103(c) (2001). Attorney’s fees are appropriate in child support cases when one parent must appeal
a case on behalf of a minor child in order to secure the child’s financial well being. Ragan v. Ragan,
858 S.W.2d 332, 333-34 (Tenn. Ct. App. 1993). Here, attorney’s fees are appropriate for the appeal
of this case, and the custodial spouse should not have to bear those expenses. Therefore, we grant
Ms. Morando’s request for attorney’s fees for this appeal. On remand, the trial court shall determine
the amount of attorney’s fees reasonably incurred for this appeal and enter the appropriate judgment.
Accordingly, we reverse the decision of the trial court regarding the child support award,
modify the court’s decision pertaining to the child support arrearage, and affirm the remainder of the
trial court’s opinion. We remand the cause for further proceedings consistent with this opinion. The
costs of this appeal are taxed to the appellee, William Michael McGahan, for which execution may
issue if necessary.
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DAVID R. FARMER, JUDGE
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