Irina N. Parris v. Jerral D. Parris

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
ASSIGNED ON BRIEFS MAY 29, 2007
IRINA N. PARRIS v. JERRAL D. PARRIS
Direct Appeal from the Chancery Court for Grundy County
No. 5242 Buddy D. Perry, Judge, By Designation
No. M2006–02068-COA-R3-CV - Filed September 18, 2007
This is a post-divorce case involving several issues stemming from a modification of child support
and custody hearing and order resulting from that hearing. The parties were divorced in 2003, and
the permanent parenting plan was filed on November 10, 2003. Wife retained custody of the parties’
two minor children. Husband was to pay Wife $1,250 a month child support. In 2005, Husband
filed motions to review and revise both the custody and visitation arrangements contained in the
permanent parenting plan and his child support obligation. The court treated Husband’s motions as
a petition for modification of custody and child support. Husband represented himself pro se on July
17, 2006, at the petition hearing. The court entered an order on August 21, 2006, finding no material
change of circumstance and thus, Wife retained custody of the two children. The order also
increased Husband’s child support obligation. Finally, the court found Husband in contempt of court
and sentenced him to five days in jail with $1,000 bond. Husband appeals, arguing that 1) the court
erred in finding no material change of circumstance; 2) the court erred in the findings concerning
both Husband and Wife’s income pertaining to the child support; and 3) the court erred in finding
Husband in contempt. We affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed &
Remanded
ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.
Janelle A. Simmons, Cherie L. Cash-Rutledge, Nashville, TN, for Appellant
Eric J. Burch, Manchester, TN, for Appellee
OPINION
I. FACTS & PROCEDURAL HISTORY
On May 5, 2003,1 the Chancery Court for Grundy County, Tennessee, granted Irina N. Parris
(“Wife” or “Appellee”) and Jerral D. Parris (“Husband” or “Appellant”) an absolute divorce. The
Permanent Parenting Plan was filed on November 10, 2003, and the court approved it on February
6, 2004. The court awarded Wife custody of the parties’ two minor children, and Husband’s child
support obligation was $1,250.
Husband filed a motion pro se on January 20, 2005, requesting that the court reduce his child
support obligation. Husband then filed a motion to alter or amend the judgment on March 28, 2005,
requesting that the court review and revise the custody and visitation arrangement, and again
requesting that the court reduce his child support obligation. Wife moved to dismiss for failure to
state a claim for which relief may be granted, pointing out that Husband should have filed a petition
to modify instead of a motion to alter or amend the judgment. On April 15, 2005, Judge Buddy
Perry denied Husband’s motion to reduce his child support obligation. After numerous motions filed
by Husband, the court entered an order on March 15, 2006, in which the court treated Husband’s
prior motions as a petition for modification of custody and child support.
At the petition hearing on July 17, 2006, Husband represented himself pro se. The trial court
heard testimony from the following six witnesses: Husband; Wife; Judge Larry Ross; Tami Poston
Ross; Debra Linder; and Jimmy Lewis. Husband first called Wife as a witness, and as to the custody
issue, Husband introduced three photographs depicting Wife’s house. The two photographs, taken
in 2006, depicted Wife’s front porch piled with boxes and other debris. The third photograph of
Wife’s front porch was taken in 2002, when Wife moved into the house. Husband contended that
it looked like there was excrement on the porch, but Wife said that “I cannot tell you what’s there
on the front porch.” Wife testified that she holds yard sales from time to time, and that she stores
the yard sale items in boxes on her front porch. Husband asked Wife if she was embarrassed about
the way her front porch looked, and Wife said no, “[i]t’s neatly stacked in boxes . . . out of the way.
Does not present any fire hazard as you[‘re] implying . . . . Door access is completely free and
windows [are] completely free.” Husband also questioned Wife concerning her boyfriend, to which
Wife admitted that she and the children spent one night at the boyfriend’s house due to bad weather.
As to Wife’s financial condition, she testified that she makes a living as a teacher’s assistant,
with gross wages of around $715 a month. Wife also supplements her income by maintaining and
renting six homes. Wife additionally earned around $1,200 helping prepare tax returns. As to her
expenses, Wife testified that she purchased a new car with a $10,000 down payment and makes
monthly payments. In December 2005, when Wife purchased the car, she had in her checking
account around $20,000. Wife’s testimony also revealed that Wife took a vacation with her two
1
The parties’ briefs claim the date of divorce is M ay 5, but in a petition for contempt found in the record, the
date is said to be May 6. In any event, the exact date of the divorce is not a contested issue in this appeal.
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children on a cruise. Wife is originally from the former country of Ukraine, and Husband questioned
Wife concerning her knowledge of the Ukraine’s housing and economic situation, asking Wife, “Did
I send information to you that you could be paid $85,000 a year to return to the Ukraine and help the
people find housing?” Wife’s counsel objected to the relevance of the question, and the judge tried
to clarify what point Husband was trying to convey with the following exchange:
The Court: Your [sic] proposing that she [Wife] should take the
two girls and go back to the Ukraine?
Mr. Parris: Well, why not? Not forever.
The Court: I’m asking, is that what you’re proposing she should
do?
Mr. Parris: Right, to enroll them in a Montessori school there and
she help her countrymen, 25,000 people in the streets
without homes, and she’s got the skills and $85,000
salary, USA ID. She speaks the language.
When asked what he does for a living, Husband testified that he is a poet, but that he is also
sole proprietor of Harmony Industries, a construction company. Husband claimed he could not
remember submitting to the court his Harmony Industries check record, and the court interjected that
“you either give me correct information or I’m going to draw some assumptions about your ability
to earn. Now you can play games or not, so I’m putting you on notice about what’s going to
happen.” Husband claimed that his income for both 2004 and 2005 was zero, and that his income
for 2006 was “minus zero.” Wife’s counsel asked Husband if he knew that between April 2005 and
April 2006, total deposits in his Harmony Industries checking account were $237,692.76; Husband
responded that it could have, but that “I could say that I took in 210,000 and spent 230,000, so there
you have it.” The balance of Harmony Industries’ account on April 17, 2006, was $42,000; on
December 6, 2005, Harmony Industries deposited $33,990. Husband also owns rental properties,
including one rental that generates $350 a month, and six rental cabins. Husband also admitted that
his girlfriend regularly spends the night at his home when the children are present.
Concerning his two children, Husband reiterated that he believed it in the best interest of the
children that Wife move to the Ukraine and they go with her: “I didn’t say they would go to stay,
they would go to learn, to a school, and if the environment is a little bit dangerous, then so be it.”
Husband also testified that he had been sentenced to serve 210 days for attempted extortion of Judge
Larry Ross.
During the course of the hearing, Husband engaged in numerous arguments with the court.
Judge Perry warned Husband at least five times that if his behavior persisted, he would be held in
contempt of court. The first warning came after the judge excluded, upon Wife’s counsel’s
objection, a psychological evaluation performed prior to the date of the divorce:
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The Court: If it happened prior to the divorce decree I sustain the
objection. We’re trying what happened from the date
of the divorce forward, and your burden is to show a
change of circumstances from the date of the divorce
forward . . . .
Mr. Parris: As to custody? In other words, anything in that
person’s history that they’ve done before a certain
date has no reflection on custody.
The Court: The issue here is from the date of the divorce decree
forward, and that’s what we’re looking at.
Mr. Parris: Even though that a - -
The Court: Sir, I’m not here to be your legal adviser, and I can’t
do that. I’m not here to engage in arguments with you
about the law. I think I’m correct about it. If I’m
incorrect, you get it reviewed at the next step.
Mr. Parris: So can I clarify what the Court said? The Court said
that I’m not - -
The Court: I’m saying my obligation is to not retry the divorce
case. I don’t do that.
Mr. Parris: Even though I elected not to have a default trial - -
...
The Court: I’m telling you, the ruling I’m giving you is exactly
the ruling I would give a lawyer that’s standing there.
That’s the rulings you’re entitled to. I’ve ruled, ask
your next question.
Mr. Parris: Your Honor, I have a psychological evaluation of this
woman [Wife] that was made before the divorce
decree.
The Court: Sir - -
Mr. Parris: And I’m asking - -
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The Court: You’re about to approach the point of contempt, and
you know what I’ll do if I do that . . . . Don’t stand
there and continue to argue with me, because I’m not
engaging in an argument with you. I don’t do lawyers
that way and I’m surely not going to let you do it that
way.
Mr. Parris: Well, is a psychological evaluation that’s been done
on this woman permissible in the custody trial?
The Court: If it was prior to the divorce decree it’s not . . . .
Mr. Parris: Okay. And the fact that I’m entitled to a default jury
trial and I elected not - -
The Court: We’ve had that discussion and I’m not going back and
having it [with] you again.
Husband continuously attempted to testify during his direct examination of other witnesses.
During Husband’s direct examination of Wife, the judge notified Husband that “I’m reaching the
point that you either start asking questions or I’m going to start holding you in contempt,” and that
Husband must “either do it properly [question the witness instead of trying to testify] or you’re going
to face the consequences for it. Now, if you want to try me, go ahead.” The next warning came
when Husband conducted his direct examination of Judge Larry Ross, who was involved in
Husband’s previous extortion trial. Husband questioned Judge Ross concerning matters involved
with the previous trial held in Warren County, Tennessee, to which Wife’s counsel objected. The
court sustained the objection, and after several more sustained objections involving questions related
to Judge Ross’s own personal divorce, the identity of his ex-wife, and the name of his child from that
previous marriage, the court warned Husband again that “the next time you do it I’m going to hold
you in contempt of court and you’re going to end up in jail. Now play however you want to play.”
Husband again tried to bring up the same issue concerning Judge Ross’s divorce, and again the court
told Husband that “if you go there again I’m going to find you in contempt and put you in jail, and
I’m ready to do that at this point, and I don’t think you believe me, so it’s going to happen I suspect
very quickly.” Husband called Tami Poston Ross, wife of Judge Ross and former counsel for Wife
during the divorce proceedings, as a witness. Husband likewise asked her questions concerning the
attempted extortion trial and questions relating to Husband and Wife’s divorce proceedings.
Husband also questioned her concerning an incident, apparently prior to the divorce, in which she
called the police because Husband would not leave her office. Husband then stated that “I didn’t just
barge in [to the office],” and asked her, “How quickly should a person leave?” The court then
sustained an objection to the relevance of this line of questioning. Husband called as a witness
Debra Linder, for the sole purpose of serving her a certified letter pertaining to what appears to be
the prior divorce proceedings. Husband’s questioning of Jimmy Lewis, a retired police officer, dealt
with whether he ever saw Wife afraid, and that “on any occasion did the Court, outside the court, at
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my residence, at the jail, anywhere, have you ever heard me raise my voice?” The witness answered
in the negative, and Husband had no other questions. The breaking point came when Wife’s counsel
was conducting direct examination of Wife concerning income from her rental units:
Q: What about the other two [units] that are currently not
rented?
A: Okay, unit E was rented 10 months out of 12.
The Court: Unit E?
A: Yes, unit E.
Mr. Parris: Jesus Christ.
...
The Court: Do what? Do you want to end up going to jail right
now? I heard what you said. You said Jesus Christ.
I’m going to find you in contempt and I’m going to
sentence you to five days in jail. You want to play
those silly games, we’re going to play them. That was
totally uncalled for, Mr. Parris. I’ve bent over
backwards to accommodate you today . . . .
At the conclusion of the hearing, the court requested that both parties submit a final decree,
a parenting plan, and a child support worksheet to which the court would sign one, or if neither were
appropriate, the judge would draw one himself. The court reiterated that Husband was found in
contempt, and sentenced him to five days jail with $1,000 bond. The order dated August 22, 2006,
found that Husband failed to carry his burden concerning a change in circumstance and held that the
current permanent parenting plan would remain in place. The court also increased Husband’s child
support obligation from $1,250 to $1,646 a month, finding “a significant variance [in Husband’s
income] of more than fifteen percent.” The court also found Husband in contempt of court and
sentenced him to five days jail with bond set at $1,000.
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II. ISSUES PRESENTED
Appellant filed a timely appeal2 and presents the following issues for review:
1. Whether the trial court erred in finding Husband in contempt of court?
2. Whether the trial court erred in finding no material change of circumstance?
3. Whether the trial court erred in the calculation and increase of Husband’s child support
obligation?
For the following reasons, we affirm.
III. STANDARD OF REVIEW
On appeal, we presume that the trial court’s factual findings are correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R. App. P.
13(d) (2006); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to preponderate
against a trial court’s finding of fact, it must support another finding of fact with greater convincing
effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R.
Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). As to the trial court’s
conclusions of law, we review de novo upon the record with no presumption of correctness. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White
Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)). If the trial court made no specific
findings of fact, then we must look to the record to “determine where the preponderance of the
evidence lies.” Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002) (citing Ganzenvoort v.
Russell, 946 S.W.2d 293, 296 (Tenn. 1997)). We will set aside a court’s finding of contempt only
if the court abused its discretion. State ex. rel. Flowers v. Tenn. Trucking Assoc. Self Ins. Group
Trust, 209 S.W.3d 602, 610 (Tenn. Ct. App. 2006) (citing Hawk v. Hawk, 855 S.W.2d 573, 583
(Tenn. 1993)). Abuse of discretion occurs only when the court applies a wrong legal standard or
reaches an illogical decision or a decision that “causes an injustice to the party complaining.” Id.
(citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). We must not, however, substitute our
judgment for that of the trial court. Id. (citation omitted).
2
On December 14, 2006, we ordered Husband to either pay the litigation tax within ten days or show cause
as to why this appeal should not be dismissed. Husband did not comply, and the court dismissed this appeal on January
4, 2007. Husband then filed a motion to reinstate, and we vacated the order of dismissal.
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IV. DISCUSSION
A. Contempt
On appeal, Husband contends that the trial court erred in finding him guilty of contempt
because his behavior did not rise to the level of obstruction of the administration of justice. We
disagree.
We must first surmise whether the judgment in this case was civil or criminal contempt. See
State of Tennessee v. Turner, 914 S.W.2d 951, 955 (Tenn. Crim. App. 1996). “The character and
purpose of the punishment imposed generally serves to distinguish criminal from civil contempt
proceedings.” Walker v. Walker, No. 02A01-9209-CH-00263, 1993 WL 327826, at *2 (Tenn. Ct.
App. Aug. 20, 1993). The punishment imposed for criminal contempt is “punitive in character, and
the proceeding is to vindicate the authority of the law, and the court as an organ of society.” Turner,
914 S.W.2d at 955. Civil contempt, by contrast, is imposed for the benefit of the other party litigant.
Id. Furthermore, contempt is classified as either direct or indirect: direct contempt is an act
committed in the court’s presence, and indirect contempt is an act committed outside the court’s
presence. Id. (citations omitted). The court may summarily punish an individual for direct
contempt, but as for indirect contempt, the offender must be given notice and a hearing before
punishment is imposed. Id.
The court’s power to punish parties for courtroom misconduct is “absolutely essential to the
smooth functioning of the judicial system.” Dargil v. Terminix Int’l Co., L.P., 23 S.W.3d 342, 344
(Tenn. Ct. App. 2000). The court’s power to inflict such punishment for contempt is limited,
however, to the following situations:
(1) The willful misbehavior of any person in the presence of the court,
or so near thereto as to obstruct the administration of justice;
(2) The willful misbehavior of any of the officers of such courts, in
their official transactions;
(3) The willful disobedience or resistance of any officer of the such
courts, party, juror, witness, or any other person, to any lawful writ,
process, order, rule, decree, or command of such courts;
(4) Abuse of, or unlawful interference with, the process or
proceedings of the court;
(5) Willfully conversing with jurors in relation to the merits of the
cause in the trial of which they are engaged, or otherwise tampering
with them; or
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(6) Any other act or omission declared a contempt by law.
Tenn. Code Ann. § 29-9-102 (2000). “An act of contempt is a willful or intentional act that hinders,
delays, or obstructs the court’s administration of justice.” State ex. rel. Flowers v. Tenn. Trucking
Assoc. Self Ins. Group Trust, 209 S.W.3d 602, 612 (Tenn. Ct. App. 2006 (citing Ahern v. Ahern,
15 S.W.3d 73, 78 (Tenn. 20000); Winfree v. State, 175 Tenn. 427, 135 S.W.2d 454, 455 (1940)).
“Willful” actions or conduct are voluntary or intentional rather than inadvertent or accidental. Id.
(citations omitted). “An obstruction to the administration of justice is any willful misconduct which
embarrasses, hinders, obstructs, or derogates the authority or dignity of the court.” State of
Tennessee v. Pease, No. E2000-02469-CCA-R3-CD, 2001 WL 1284223, at *2 (Tenn. Crim. App.
Oct. 24, 2001) (citing Black v. Blount, 938 S.W.2d 394, 401 (Tenn. 1996)).
In the present case, it is clear that the contempt at issue is criminal because the court
sentenced Husband to jail as punishment for his courtroom behavior. Furthermore, we are dealing
with direct contempt, as all Husband’s statements and conduct occurred in Judge Perry’s presence,
and the judge summarily imposed punishment. In the court’s order dated August 22, 2006, the judge
made the following findings of fact concerning the contempt finding:
Despite repeated admonitions from the Court, Mr. Parris persisted in
arguments with the Court and offering extraneous comments during
opposing counsel’s questioning. During Mr. Burch’s direct
examination of Ms. Parris, Mr. Parris exclaimed “Jesus Christ”
following a question and answer that apparently frustrated him. This
outburst, in addition to the prior statements and actions of Mr. Parris,
place him in contempt of court.
We cannot say that the trial court abused its discretion by holding Husband in contempt of
court and sentencing him to five days in jail. From the record it is clear that the court was more than
patient with Husband, giving him great leeway because he was representing himself. The court gave
Husband numerous warnings that if he did not behave properly, he would be found in contempt and
sentenced to jail. Husband nevertheless continued to argue with the judge, and his outburst of “Jesus
Christ,” viewed with his entire behavior during the hearing justified the contempt charge under Tenn.
Code Ann. §29-9-102(1). His behavior and exclamation of “Jesus Christ” was obviously intentional
or “willful,” and this unnecessary outburst, along with his constant bickering with the court and
inappropriate questioning of witnesses did “obstruct the administration of justice” by hindering the
proceeding and trying to embarrass witnesses with completely irrelevant questions. “Court
proceedings are to be conducted in a civil and dignified manner, and when one strays from that
course, their conduct risks obstructing the administration of justice.” State of Tennessee v.
Provencio, No. E2005-01253-CCA-R3-CD, 2005 WL 3088078, at *2 (Tenn. Crim. App. Nov. 18,
2005). In Provencio, the Court of Criminal Appeals affirmed the lower court’s finding of contempt
based on the defendant’s statement to the court: “I’m the victim here, and I’m being screwed around,
and this lady f-king pulled my chain for I don’t know how long.” Id. Likewise, this court finds
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Husband’s language choice offensive and completely unnecessary, and we will not substitute our
judgment for that of the court.
Husband argues that he should not be held in contempt because as a pro se litigant, he should
have been able to “testify either in narrative or question and answer form.” Husband relies on State
of Tennessee v. Pease, No. E2000-02469-CCA-R3-CD, 2001 WL 1284223, at *3 (Tenn. Ct. App.
Oct. 24, 2001), but this reliance is misguided. The court in this case did not bar Husband from
testifying in narrative format like the court in Pease; rather, Husband was admonished several times
for trying to testify during his direct examination of other witnesses and asking irrelevant questions.
We also pointed out in Pease that “counsel should be permitted to elicit narrative questions that do
not unduly waste time . . . .” Id. (emphasis added). While it is true that the court should take into
account the fact that pro se litigants have no legal training, the court must nevertheless apply the
same substantive and procedural rules that represented parties must follow. Hessmer v. Hessmer,
138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (citing Edmundson v. Pratt, 945 S.W.2d 754, 755
(Tenn. Ct. App. 1996); Kayloir v. Bradley, 912 S.W.2d 728, 733 n.4 (Tenn. Ct. App. 1995)). In any
event, as evident from the abovementioned portions of the hearing, Husband’s behavior went far
beyond simply testifying in a narrative format.
Husband also argues that the court erred by not setting forth the specific elements of Tenn.
Code Ann. § 29-9-102 in the order. We reject this argument. Although the court’s order did not use
the specific language from the Tennessee Code, the court did specifically find Husband in contempt
and listed the reasons. The court could have found Husband in contempt under section (1) of 29-9-
102, as we have previously discussed, for his willful misbehavior that obstructed the administration
of justice. Alternatively, the court could have found Husband in contempt under section (4), for
abuse of the proceedings. The judge pointed out in the final order that Husband had ulterior motives
for this hearing, as is evident from the record. Husband’s questioning of Judge Ross related in most
part to the attempted extortion trial. The questioning of Tami Poston Ross, Judge Ross’s wife, also
dealt with the extortion trial. The only questions asked to Debra Linder concerned the certified
letter, which was completely unrelated to the issue at hand. Finally, Husband questioned Jim Lewis,
a retired police officer, as to whether he had ever witnessed Husband in any kind of threatening
manner or had ever heard Husband raise his voice. It is unclear why this testimony was introduced.
Husband’s behavior showed a great disrespect to the court, using a custody hearing as a vehicle for
what appears to be harassment of these witnesses, and thus we affirm.
B.
Modification of Child Custody
Husband argues that the lower court erred by finding no material change in circumstance
warranting the change in custody from Wife to Husband. We disagree.
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Once a decision regarding custody is made, it is considered res judicata on facts that existed
at that time or facts that should have been reasonably foreseeable. Curtis v. Hill, 215 S.W.3d 836,
840 (Tenn. Ct. App. 2006). This is not to say that courts cannot alter a custody arrangement when
there are intervening circumstances: “Such decrees shall remain within the control of the court and
be subject to such changes or modification as the exigencies of the case may require.” Tenn. Code
Ann. § 36-6-101(a)(1) (Supp. 2006); See Clark v. Arthur, No. M2005-01719-COA-R3-CV, 2007
Tenn. App. LEXIS 293, at *11 (Tenn. Ct. App. May 30, 2007) (citing Krupp v. Cunningham-
Grogan, No. M2005-01098-COA-R3-CV, 2006 Tenn. App. LEXIS 568, at *7 (Tenn. Ct. App. Aug.
29, 2006)). The party seeking the modification of a court’s prior custody decree has the burden of
proof:
If the issue before the court is a modification of the court’s prior
decree pertaining to custody, the petitioner must prove by a
preponderance of the evidence a material change in circumstance. A
material change of circumstance does not require a showing of a
substantial risk of harm to the child. A material change of
circumstance may include, but is not limited to, failures to adhere to
the parenting plan or an order of custody and visitation or
circumstances that make the parenting plan no longer in the best
interest of the child.
Tenn. Code. Ann. § 36-6-101(a)(2)(B) (Supp. 2006) (emphasis added). The “threshold issue” for
the lower court is “whether a material change in circumstances has occurred after the initial custody
determination.” Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002) (citing Blair v.
Badenhope, 77 S.W.3d 137, 150 (Tenn. 2002)). Although there are no bright-line rules a court
should apply in determining whether a party has proven a change in circumstance, the Tennessee
Supreme Court has laid out the following guidelines:
(1) whether a change has occurred after the entry of the order sought
to be modified;
(2) whether a change was not known or reasonably anticipated when
the order was entered; and
(3) whether a change is one that affects the child’s well-being in a
meaningful way.
Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003) (citing Kendrick, 90 S.W.3d at 570; see also
Blair, 77 S.W.3d at 150)). A parent’s change in circumstances could be considered a “material
change in circumstance” warranting a modification in custody, if the change affects the well-being
of the child. Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002). Only if a court finds that
there has been a material change in circumstance does it proceed to the next step in the analysis,
which is to determine whether a modification would be in the child’s best interest. Id.
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In the present case, the court found that Husband had not met his burden concerning a
material change in circumstance, and thus did not get into an analysis of whether the change in
custody would be in the best interest of the children. Husband contends that the court failed to
support its conclusion that Husband had not met his burden concerning a change in custody. We
disagree. The court stated in the order that “Mr. Parris’ testimony relevant to the custody was ‘all
over the board.’” Husband “initially took the position that the children should live with him for four
years because they had lived with the mother for four years. Later in the hearing, Mr. Parris
advocated that the children should relocate to the Ukraine . . . .” The court pointed out that
Husband’s questioning of witnesses yielded irrelevant information that would not help Husband with
proving that a material change of circumstance occurred; if anything, it showed Husband “as a man
who was delusional and out of control during the original divorce litigation.”3 The court did take
into consideration the fact that Wife stayed the night at her boyfriend’s home with the two children
on one occasion due to bad weather, but the court also noted that Husband also “admitted that his
girlfriend spent almost every night in his home when the children were present.” From review of
the record, we cannot say that the evidence preponderates against the trial court’s findings of fact.
More specifically, though, Husband argues that the court erred by its failure to address the
safety and cleanliness of Wife’s home. Although it is true that the court did not mention these issues
in the order, we find that this evidence does not require a finding in Husband’s favor. The only
evidence introduced at the hearing pertaining to safety and cleanliness were the photographs taken
of Wife’s home, a photograph dated 2002 and the others dated 2006. Each photograph depicted
Wife’s front porch. The 2002 picture showed boxes, trash bags, a piece of furniture, and various
other items; the 2006 pictures were similar, except the front porch appeared more piled up than the
2002 picture. Wife testified that these items do not pose a safety problem, and Husband did not
testify as to Wife’s home’s alleged safety and cleanliness problem. Judge Larry Ross did testify that
he had known Wife approximately five years, and that every time he ever saw the children, they had
a clean appearance. Based on the witnesses’ credibility, the court could have simply found that
Wife’s home had not become unsafe or unclean and thus, he did not find the pictures helpful in
determining whether a material change in circumstance had occurred. As we have pointed out in
previous cases, “[c]ustody decisions often hinge on subtle factors, such as the parents’ demeanor and
credibility during the proceedings.” Morman v. Morman, No. M2005-00931-COA-R3-CV, 2006
WL 2068757, at *2 (Tenn. Ct. App. July 25, 2006) (citing Adelsperger v. Adelsperger, 970 S.W.2d
482, 485 (Tenn. Ct. App. 1997)). Looking at the record, the 2006 pictures do not show much of a
change in the appearance of the condition of the front porch as compared to the 2002 picture. This
3
As to W ife’s parenting skills, “Judge Ross and Tami Ross both testified that Ms. Parris was an exemplary
mother and the children were well mannered, happy and healthy children.” The court further pointed out that W ife “is
intimately involved in the well-being of her children. She is involved in the children’s schooling and activities . . . . By
all witness accounts, including Mr. Parris, the children are doing very well in school.” There have been cases where a
modification of the custody decree was justified due to the child’s poor performance in school, see Donegan v. Donegan,
No. 01A01-9805-CH-00258, 1999 W L 10086, at *6 (Tenn. Ct. App. Jan. 12, 1999), but as just stated, the children in
this case are performing well in school.
-12-
alone is not enough to cause the evidence to preponderate in Husband’s favor. Thus, we reject
Husband’s argument.
Husband also argues that the trial court erred by placing no weight on the fact that the
children are “terrified” of Wife. This argument has no merit. The court properly disregarded this
evidence because Wife’s counsel moved to strike Husband’s statements as to what the children
allegedly said, and it was so stricken from the record.4 As to the same contention that the court
placed no weight on evidence that the children said that they wished to spend more time with their
father, we also reject it. We do not find such evidence in the record, as the children did not testify.5
Finally, Husband argues that the court erred by failing to consider a modification of
visitation. Husband relies on Wagner v. Gaston, No. 01A01-9804-CV-00215, 1999 WL 767825,
at *1 (Tenn. Ct. App. Sept. 29, 1999), but that case is distinguishable from the case at bar. In
Wagner, the father included in his petition to modify an alternative request for an increase in
visitation. Although it is true that Husband made a motion “to review and revise the
visitation/custody arrangements,” this motion was not proper per the Tennessee Rules of Civil
Procedure. The judge gave Husband great leeway in his pleadings because he was representing
himself, and treated all of Husband’s prior motions as a petition for modification of custody only:
“The defendant has been advised by the Court to be successful regarding a change of custody that
it is incumbent upon the defendant to show a material change of circumstances. The Court is going
to treat the prior motion as a petition for modification of custody and child support . . . .”
Furthermore, Husband did not request at the hearing that the court modify the visitation schedule.
Nor can we say that the issue was tried by implied consent. See generally Zumstein v. Smith, No.
03A01-9409-CH-00346, 1995 WL 113472, at *3 (Tenn. Ct. App. Mar. 16, 1995). Apparently,
Husband is arguing that the court should have acted sua sponte and modified the visitation schedule.
In Fenley v. Fenley, No. 03A01-9604-CH-00121, 1996 WL 469683, at *3 (Tenn Ct. App. Aug. 19,
1996), we held that the trial court erred in modifying sua sponte the visitation schedule at a
modification of child custody hearing. In Fenley, the father’s petition alleged that a material change
in circumstance justified change of custody. Id. at *1. It did not, however, allege alternatively that
4
Concerning the children’s dispositions, W ife’s attorney asked Husband, “I thought you said they [the children]
weren’t well mannered all the time,” to which Husband responded that the children are “terrified of their mother, they’re
terrified of their mother, and I can quote what the children say, don’t get on the wrong side of mother, you don’t want
her as an enemy.” W ife’s counsel then moved to strike, and the court granted the motion. W e also point out that Husband
failed to argue on appeal that the exclusion of this evidence was error, and thus we will not get into that analysis.
5
Husband’s brief points to Husband’s following answer to the judge’s question of whether he wanted to call
his children as witnesses as the evidence of the children’s preferences:
“Your Honor, it would be a telling statement that the children would make if we
were to ask them in front of you, would you like to spend half the time with your
daddy and half the time with your mother and then they responded to that, would
that be of any [Court interjects].”
-13-
the court should modify the visitation arrangement. Id. As we pointed out in that case, a judgment
beyond the pleadings is invalid. Id. at *3 (citations omitted). Thus, the court was correct in not
addressing issues pertaining to modification of visitation. In sum, we find that the court’s findings
are more than supported by the evidence in the record.
C.
Modification of Child Support
Husband contends that the court erred in its calculation and increase of his child support
obligation. We disagree.
The court made the following findings of fact in the order dated August 22, 2006, concerning
Husband’s income: “Mr. Parris exhibited a proposed child support worksheet showing that his
income was zero. However, the deposits in his business checking account for the last year of the
records show that he made deposits of $237,692.76 . . . . [I]t appears to the Court that of the total
deposits, $191,109.87 came from business income.” The court had more difficulty with Husband’s
business expenses, however:
[I]t is difficult for the Court to determine what is business-related .
. . because it appears that Mr. Parris pays all his living expenses out
of his business account . . . . From a review of Exhibit 24, the Court
finds that his business expenses form [sic] April 17, 2005 until April
17, 2006 total $41,880.91. This leaves Mr. Parris with a net income
of $149,228.96.”
Based on this information, the court found a significant variance greater than fifteen percent, and
thus increased Husband’s child support obligation from $1,250 to $1,646.6
Husband argues that the court erred in applying the Child Support Guidelines (“Guidelines”)
as they relate to his self-employment income. Husband does not specify as to how the court erred
in its application, other than by pointing to the Guidelines dealing with adjustments to gross income
for self-employed parents.7 We affirm.
6
The court went on to say that Husband’s support obligation would be modified “as reflected in the attached
child support worksheet.” The child support worksheet was not included in the record.
7
Husband argues that “[h]ad the Trial Court correctly applied the Child Support Guidelines as it relates to
self-employed parents the Appellant’s gross income would have significantly varied from what the Court found the
income to be.” Husband further argues that had the court “properly considered the evidence presented by the Appellant
as it related to this income the ruling would have been dramatically different.” Husband fails to tell us how or why “the
(continued...)
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Trial courts have the authority to increase or decrease child support obligations when there
is a “significant variance between the amount of support provided in the child support guidelines and
the amount of support currently ordered . . . .” Willis v. Willis, 62 S.W.3d 735, 738 (Tenn. Ct. App.
2001) (citing Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 2000)). The Guidelines specify that a
“significant variance” must be “at least a fifteen percent (15%) change between the amount of the
current support order (not including any deviation amount) and the amount of the proposed
presumptive support order . . . .” Tenn. Comp. R. & Regs. 1240-2-4-.05(2)(c) (2006). Child support
obligations are based upon net income as defined in Tenn. Comp. R & Regs. 1240-2-4.03(4) (2006).
In order to determine net income, the court must first determine gross income, which is defined as
follows:
(3) Gross income.
(a) Determination of Gross Income.
1. Gross income of each parent . . . shall include all income from
any source (before deductions for taxes and other deductions such
as pre-existing child support orders and credits for other qualified
children), whether earned or unearned, and includes, but is not
limited to, the following:
(i) Wages;
(ii) Salaries;
(iii) Commissions, fees, and tips;
(iv) Income from self-employment;
...
3. Self-Employment Income.
(i) Income from self employment includes income from, but not
limited to, business operations, work as an independent contractor
or consultant, sales of goods or services, and rental properties, etc.,
less ordinary and reasonable expenses necessary to produce such income.
(ii) Ordinary and Reasonable Expenses of Self Employment
Necessary to Produce Income.
7
(...continued)
ruling would have been dramatically different.”
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(I) Excessive promotional, excessive travel, excessive car expenses
or excessive personal expenses, or depreciation on equipment, the
cost of operation of home offices, etc., shall not be considered
reasonable expenses.
(II) Amounts allowed by the Internal Revenue Service for
accelerated depreciation or investment tax credits shall not be
considered reasonable expenses.
Tenn. Comp. R. & Regs. 1240-2-4-.04(3) (2006).
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Husband cites to Tenn. Comp. R. & Regs. 1240-2-4.04(4)8 in support of the argument that the trial
court incorrectly applied the Guidelines. Again, as we have mentioned, Husband does not specify
in his argument how the court erred in its application of the Guidelines. From the record, it does not
appear that the trial court made any adjustments to Husband’s income as provided in Tenn. Comp.
R. & Regs. 1240-2-4.04(4). It does appear, however, that the court implicitly found Husband’s
income information unreliable. The court disregarded Husband’s tax returns and statements that he
had a zero net income, and found his net income to be $149,228.96 based on Husband’s business
8
The Guidelines provide as follows:
(4) Adjustments to Gross Income for Self-Employed Parents.
1. (a) The Child Support Schedule includes deductions from a parent's gross income
for the employee's share of the contributions for the first six and two-tenths percent
(6.2%) in Federal Insurance Contributions Act (FICA) and one and forty-five
hundredths (1.45%) in Medicare taxes. The full tax rate, fifteen and three-tenths
percent (15.3%), is a total of twelve and four-tenths percent (12.4%) for social
security (old-age, survivors, and disability insurance) and two and nine-tenths
percent (2.9%) for Medicare (hospital insurance). All net earnings of at least four
hundred dollars ($400) are subject to the Medicare part. Employers pay one-half of
an employee's FICA and Medicare taxes.
(b) For a self-employed parent who is paying self-employment tax, an amount for
FICA -- six and two-tenths percent (6.2%) Social Security plus one and forty-five
hundredths percent (1.45%) Medicare as of 1991, or any amount subsequently set
by federal law as FICA tax -- shall be deducted from that parent's gross income
earned from self-employment, up to the amounts allowed under federal law, and
actually paid by the parent.
(c) Social Security tax withholding (FICA) for high-income persons may vary
during the year. Six and two-tenths percent (6.2%) is withheld on the first ninety
thousand dollars ($90,000) of gross earnings (for wage earners in 2005). After the
maximum five thousand five hundred eighty dollars ($5,580) is withheld, no
additional FICA taxes are withheld.
(d) Self-employed persons are required by law to pay the full FICA tax of twelve
and four tenths percent (12.4%) up to the ninety thousand dollars ($90,000) gross
earnings limit and the full Medicare tax rate of two and nine tenths percent (2.9%)
on all earned income. O ne half of each amount is already accounted for in the
BCSO amounts on the Schedule.
(e) Any self-employment tax paid up to one-half of the maximum amounts due in
a year shall be deducted from gross income as part of the calculation of a parent's
Adjusted Gross Income, as indicated in Part II of the CS W orksheet.
(f) W hen calculating credits for other qualified children under paragraph (5) below,
any self-employment tax paid shall also be deducted on the Credit W orksheet from
a parent's gross income for the purposes of calculating a theoretical child support
order.
(g) The percentages and dollar amounts established or referenced in this paragraph
(4) with respect to the payment of self-employment taxes shall be adjusted by the
Department or by the tribunal, as necessary, as relevant changes occur in the federal
tax laws.
-17-
account deposits and business expenses. The Tennessee Supreme Court has noted the following
concerning self-employment income:
These self-employment guidelines are fashioned in such a way as to
authorize the trial court to address the potential of a self-employed
obligor to manipulate income for the purpose of avoiding payment of
child support. Courts have recognized that a self-employed obligor
has the opportunity ‘to manipulate his reported income by either
failing to aggressively solicit business or by inflating his expenses,
thereby minimizing his income.’ Based on this reasoning, in certain
situations, a court may impute income to a sole owner of a business.
Taylor v. Fezell, 158 S.W.3d 352, 358 (Tenn. 2005) (citations omitted). We find that the court, after
finding Husband’s information unreliable, correctly determined Husband’s income from reliable
information relating to his deposits and business expenses. See generally Radebaugh v. Radebaugh,
No. M2005-02727-COA-R3-CV, 2006 WL 3044155, slip op. at *12 (Tenn. Ct. App. Oct. 26, 2006)
(remanding a similar case to the trial court for re-calculation of the husband’s child support
obligation based on reliable information pertaining to his gross receipts and business expenses).
As to Wife’s income, the court found that Wife received $8,266.56 from her teaching
assistant position. She also earned $1,200 in 2005, by assisting in preparing tax returns, and $1,258
from her work at Sethra. Finally, the court found that Wife’s rental homes yielded $16,354.00 in
2005, less maintenance expenses of $10,004.52, leaving Wife with a net rental income of $6,349.48.
Husband argues that the court erred by not taking into consideration Wife’s Social Security Medicare
Income of $8,266.56. This argument has no merit. In the final order, the judge specifically found
that Wife “made $8,266.56 from her teaching position in Grundy County in 2005.”9 Husband next
argues that the court erred by not imputing income to Wife because she is willfully underemployed;
she failed to provide a reliable income information at the hearing; and she leads an extravagant
lifestyle. We disagree.
Husband argues that Wife is underemployed because she has the equivalent of a Master’s
Degree and has tax preparation and bookkeeping experience. Husband next argues that the court
failed to consider Wife’s extravagant lifestyle, including $20,000 in her savings account in 2005; the
purchase of a vehicle with a $10,000 down payment; and the taking of a cruise vacation. Husband
also argues that “it is proper pursuant to the current Tennessee Child Support Guidelines to find that
a parent is willfully voluntarily underemployed when there is no reliable source of income . . . .” We
9
From a review of Wife’s W 2 statement, the judge used the Medicare wages and tips amount to calculate
W ife’s’s income, he just did not label it as such in the order.
-18-
address the latter argument first and find that Husband’s counsel has misread the Guidelines.
Whether the court lacks reliable evidence of income is not part of the analysis of whether a parent
is willfully underemployed.10 Next, we address Husband’s argument that Wife is willfully
underemployed, and thus the court erred in calculating her income. The Guidelines allow for a court
to impute income if that parent “has been determined by a tribunal to be willfully and/or voluntarily
underemployed or unemployed.”11 Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)2(I) (2006). “The
10
Failure to provide reliable evidence of income is a separate situation where the court may impute income
to the parent. The Guidelines provide the following concerning a lack of reliable evidence:
(II) W hen Modifying an Existing Order
1. I. If a parent fails to produce reliable evidence of income (such as tax returns for
prior years, check stubs, or other information for determining current ability to
support); and
II. The tribunal has no reliable evidence of that parent's income or income potential;
III. Then, in such cases, gross income for the current and prior years shall be
determined by imputing annual gross income of thirty-six thousand three
hundred sixty-nine dollars ($36,369) for male parents and twenty-six thousand
nine hundred eighty-nine dollars ($26,989) for female parents . . . .
Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(II) (emphasis added). Husband’s counsel does point out, though, that W ife
did not have her 2005 tax return available at the hearing, but we find that this is not enough to impute income to W ife
under this provision of the Guidelines. W ife did not have her 2005 tax return available at the hearing, and the judge told
husband numerous times that he would be more than happy to reschedule the hearing so that this information would be
available; Husband declined. W ife did have available her W 2 and 1099 statements for 2005. She also testified as to her
rental income from each property. Thus, W ife did produce “other information for determining current ability to support,”
and the court based its decision on reliable evidence of Wife’s income.
11
The Guidelines further state:
1. The Guidelines do not presume that any parent is willfully and/or voluntarily
under or unemployed. The purpose of the determination 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 children.
(I) A determination of willful and/or voluntary under or unemployment is not
limited to occupational choices motivated only by an intent to avoid or reduce the
payment of child support. The determination may be based on any intentional
choice or act that affects a parent's income.
(II) Once a parent that has been found to be willfully and/or voluntarily under or
unemployed, additional income can be allocated to that parent to increase the
parent's gross income to an amount which reflects the parent's income potential or
earning capacity, and the increased amount shall be used for child support
calculation purposes. The additional income allocated to the parent shall be
(continued...)
-19-
determination of whether a particular parent is willfully and voluntarily unemployed or
underemployed is fact-dependent, and can only be made after consideration of all the circumstances
surrounding that parent's past and present employment or business activities.” Ralston v. Ralston,
No. 01A01-9804-CV-00222, 1999 WL 562719, at *3 (Tenn. Ct. App. Aug. 3, 1999).
Under the Guidelines, there is no presumption that a parent is willfully underemployed, and
the issue was not raised at the hearing. Thus, Husband cannot bring it up for the first time on appeal.
But even after reviewing the record, including testimony concerning Wife’s present and past
employment, and her education and lifestyle, we cannot say that the trial court erred by not
determining that Wife is willfully underemployed. Absent a written finding that Wife is
underemployed, the trial court was correct in basing the child support obligation on her actual
income at the time of the hearing. See generally Via v. Via, No. M2006-02002-COA-R3-CV, 2007
WL 2198187, at *5 (Tenn. Ct. App. July 23, 2007). Wife is originally from the former Ukraine and
went to school in that country. Although Wife testified that per her education there, she has a
master’s degree, she also testified that she was taking some United States college courses online
because she is not certified to teach in this country. Wife also testified that she has helped prepare
tax returns, but lacks formal accounting training and testified that she was not proficient in preparing
tax returns. There is no proof as to what other amounts Wife has ever made during her life other
11
(...continued)
determined using the following criteria:
I. The parent's past and present employment; and
II. The parent's education and training.
...
The following factors may be considered by a tribunal when making a determination
of willful and voluntary underemployment or unemployment:
(I) The parent's past and present employment;
(II) The parent's education, training, and ability to work;
...
(IV) A parent's extravagant lifestyle, including ownership of valuable assets and
resources (such as an expensive home or automobile), that appears inappropriate
or unreasonable for the income claimed by the parent;
...
(VI) W hether unemployment or underemployment for the purpose of pursuing
additional training or education is reasonable in light of the parent's obligation to
support his/her children and, to this end, whether the training or education will
ultimately benefit the child in the case immediately under consideration by
increasing the parent's level of support for that child in the future;
(VII) Any additional factors deemed relevant to the particular circumstances of the case.
-20-
than the amount as a teacher’s assistant, nor is there any proof in the record that Wife left a higher
paying job to take the job of teacher’s assistant. As to the extravagancy of Wife’s lifestyle, we find
that the facts in this case do not support such a conclusion. Wife’s purchase of a vehicle and taking
of a family vacation do not rise to the level of indicating that she has secret wealth that should be
imputed for purposes of child support, nor does this alone indicate that she is leading an extravagant
lifestyle. For the aforementioned reasons, we affirm.
D.
Attorney’s fees on Appeal
Appellee has requested attorney’s fees on appeal. An award of attorney’s fees is available
only if provided for by statute, contract, or a recognized equitable ground. Parchman v. Parchman,
No. W2003-01204-COA-R3-CV, 2004 Tenn. App. LEXIS 768, at *15 (Tenn. Ct. App. Nov. 17,
2004) (quoting Austin Powder Co. v. Thompson, No. 03A01-9607-CV-00229, 1996 Tenn. App.
LEXIS 805, at *5 (Tenn. Ct. App. Dec. 16, 1996)). “In divorce cases the recovery of attorney’s fees
is permitted by statute, which provides that a spouse seeking enforcement of an alimony or custody
award may be granted attorney’s fees.” Id. (citing Tenn. Code Ann. § 36-5-103(c) (2003)).
Furthermore, it is in the sole discretion of this court whether to award attorney’s fees on appeal. See
Id. at *15-16 (citing Tenn. Code Ann. § 36-5-103(c) (2003); Archer v. Archer, 907 S.W.2d 412, 419
(Tenn. Ct. App. 1995)). As such, when this Court considers whether to award attorney’s fees on
appeal, we must be mindful of “the ability of the requesting party to pay the accrued fees, the
requesting party’s success in the appeal, whether the requesting party sought the appeal in good faith,
and any other equitable factor that need be considered.” Dulin v. Dulin, No.
W2001-02969-COA-R3-CV, 2003 Tenn. App. LEXIS 628, at *26-27 (Tenn. Ct. App. Sept. 3, 2003)
(citing Folk v. Folk, 210 Tenn. 367, 357 S.W.2d 828, 829 (Tenn. 1962)); see also Parchman, 2004
Tenn. App. LEXIS 768 at *15-16. Considering Appellee’s income and her success in this appeal,
we find it equitable to award Appellee’s attorney’s fees.
V. CONCLUSION
For the aforementioned reasons, we affirm the decision of the trial court. Further, we award
attorney’s fees to Appellee. The matter is remanded to the trial court to determine the amount of fees
that are reasonable and necessary in this case. Costs of this appeal are taxed to Appellant, Jerral D.
Parris, for which execution may issue if necessary.
___________________________________
ALAN E. HIGHERS, JUDGE
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