Suzan Darvarmanesh v. Mahyar Gharacholou

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
MARCH 2, 2005 Session
SUZAN DARVARMANESH v. MAHYAR GHARACHOLOU
Direct Appeal from the Circuit Court for Davidson County
No. 02D-237 Muriel Robinson, Judge
No. M2004-00262-COA-R3-CV - Filed July 19, 2005
In 2002, Wife filed a complaint for divorce in the circuit court. Following a bench trial, the trial
court entered a final decree of divorce and incorporated the court’s permanent parenting plan. The
trial court ordered the husband to pay the wife transitional alimony for three years, awarded the
parents joint custody of their minor son, and ordered both parents to pay child support. The wife
filed an appeal to this Court contesting the trial court’s decision regarding joint custody. The
husband filed an appeal to this Court contesting the trial court’s decisions regarding alimony and
child support. We reverse the trial court’s decisions regarding alimony, child custody, and child
support, and we remand this case tot he trial court for further proceedings consistent with this
opinion.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.
Thomas F. Bloom, Nashville, TN, for Appellant
Cynthia J. Bohn, Paul W. Moser, Nashville, TN, for Appellee
OPINION
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Suzan Darvarmanesh (“Wife” or “Appellant”) was born in the United States, but she was
raised primarily in Iran. Mahyar Gharacholou (“Husband” or “Appellee”) was born in Iran, and he
came to the United States with his parents at the age of twelve. In 1990, Wife returned to the United
States to pursue a college education. In May of 1993, Husband and Wife married in Nashville,
Tennessee. The parties were married in an Islamic marriage ceremony and signed an Islamic
marriage contract. Both parties are presently citizens of the United States. The parties have a minor
son of their marriage, Cameron, who was born in 2000.
On January 29, 2002, Wife filed a complaint for divorce against Husband in the Circuit Court
of Davidson County alleging numerous grounds for divorce.1 Husband subsequently filed an answer
which contained his counter-complaint for divorce. Therein, Husband asked the trial court to award
him the majority of the parenting time for Cameron. The trial court conducted a trial of the matter
on October 28, 2003.
During the proceeding, both parties presented their proposed parenting plans to the trial court.
Wife’s proposed parenting plan made her the primary residential parent of Cameron, with Husband
having liberal visitation, and it required Husband to pay child support. Husband presented two
proposed parenting plans. His first proposed parenting plan named him the primary residential
parent of Cameron and called for Mother to pay child support. Husband also submitted an
alternative proposed parenting plan which named Wife the primary residential parent of Cameron,
called for him to pay child support, and granted him additional visitation.
On December 23, 2003, the trial court entered a Final Decree of Divorce which incorporated
a Permanent Parenting Plan entered by the trial court that same day. The trial court’s decree
provided, in relevant part, as follows:
It is ORDERED, ADJUDGED, and DECREED that the
Husband shall pay to the Wife for a period of three years the sum of
$750.00 per month transitional alimony beginning November 1, 2003.
Said transitional alimony payments of the Husband shall cease if the
Wife remarries or the three years terminate whichever occurs first.
....
It is ORDERED, ADJUDGED, and DECREED that the
Islamic marriage document of the parties is not a binding contract.
....
1
On February 12, 2002, W ife filed an amended complaint to change certain statistical information contained
in the original complaint.
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It is ORDERED, ADJUDGED, and DECREED that the
parties shall have joint custody of the minor child. The Father will
have custody of the child from January 1st until June 30th. The
Mother will have custody of the child from July 1st until December
31st. The Court makes a finding that they are both appropriate
parents, they both have appropriate parenting skills, and that is [sic]
in the best interest and welfare of this child that custody be joint with
parenting time equal.
It is ORDERED, ADJUDGED, and DECREED that for the
purposes of public school zoning the Father’s residence shall be
designated as the primary residence. The Court finds that it is in the
best interest and welfare of the child that the Father’s residence be the
primary residence insofar as it pertains to the public school zoning.
This is no reflection on the Mother.
The Permanent Parenting Plan also designated which parent would have custody of Cameron
for school vacations and certain holidays. It also ordered the parties to pay child support as follows:
The Mother shall pay child support, in accordance with the
Tennessee Child Support Guidelines, in the amount of $220.00 per
month, beginning January 1, 2004 through June 30 each year for six
months each year. Plus a payment of $750.00 per month in
transitional alimony. Said amount of child support takes into
consideration Mother’s ability to earn $25,000.00 per year.
The Father shall pay child support, in accordance with the
Tennessee Child Support Guidelines, in the amount of $660.00 per
month beginning November 1, 2003 through December 31 each year
for six months each year. Said amount of child support is based on
Father’s ability to earn $50,000.00 per year.
Regarding decision making, the plan provided that, while Cameron resided with one parent, that
parent would make decisions regarding his day-to-day care and control. As for major decisions, the
trial court ordered the parents to make such decisions jointly.
Husband subsequently filed a post-trial motion pursuant to Rule 59 of the Tennessee Rules
of Civil Procedure asking the trial court to reconsider its award of alimony and child support. In the
interim, Wife filed a notice of appeal to this Court. The trial court ultimately denied Husband’s post-
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trial motion, and he also filed a notice of appeal to this Court.2 On appeal, Wife has presented this
Court with the following issues for our review:
I. Whether the trial court erred in awarding the parties joint custody of their minor son when
the preponderance of the evidence did not support such a finding; and
II. Whether Wife is entitled to her attorney’s fees on appeal.
In turn, Husband has presented this Court with the following additional issues for our review:
III. Whether the trial court erred in setting the parties’ child support obligations;
IV. Whether the trial court erred in awarding Wife transitional alimony; and
V. Whether Husband is entitled to his attorney’s fees on appeal.
For the reasons set forth more fully herein, we reverse the decision of the trial court and remand this
case for further proceedings consistent with this opinion.
II.
LAW AND ANALYSIS
A.
Child Custody
On appeal, Wife Argues that the trial court erred in awarding the parties joint custody of
Cameron. She contends that the record demonstrates that a level of animosity exists between the
parents which prevents joint custody from being an option in this case. Furthermore, she contends
that there was insufficient evidence introduced at trial to enable the trial court to conduct a
comparative fitness evaluation of each parent before making its custody determination.
Alternatively, Wife asserts that the record reveals that a majority of the relevant statutory factors to
be considered in making a custody determination weigh in her favor.3 Conversely, Husband argues
that the record contains ample proof to support the trial court’s determination of custody in this case.
2
Ordinarily, “the notice of appeal required by Rule 3 shall be filed with and received by the clerk of the trial
court within 30 days after the date of entry of the judgment appealed from.” Tenn. R. App. P. 4(a) (2003). However,
“[i]n a civil action, if a timely motion under the Tennessee Rules of Civil Procedure is filed in the trial court by any party
. . . under rule 59.04 to alter or amend the judgment . . . the time for appeal for all parties shall run from entry of the order
denying a new trial or granting or denying any such other motion.” Tenn. R. App. P. 4(b) (2003). “A prematurely filed
notice of appeal shall be treated as filed after the entry of the judgment from which the appeal is taken and on the day
thereof.” Tenn. R. App. P. 4(d) (2003). Accordingly, both parties have filed their notices of appeal to this Court in a
timely manner.
3
W ife changed counsel after filing her initial brief in this Court. By Order of the Court, we permitted W ife’s
new counsel to file a responsive brief. W ife raises this new argument in her reply brief, therefore, we will treat it as an
alternative argument raised on appeal.
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In reviewing a trial court’s decision regarding child custody, we examine the trial court’s
findings of fact “de novo upon the record of the trial court, accompanied by a presumption of the
correctness of the finding, unless the preponderance of the evidence is otherwise.” Tenn. R. App.
P. 13(d) (2003); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. Ct. App. 1984); Bah v.
Bah, 668 S.W.2d 663, 665 (Tenn. Ct. App. 1983).
“No hard and fast rules exist for determining which custody and visitation arrangement will
best serve a child’s needs.” Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996) (citing
Taylor v. Taylor, 849 S.W.2d 319, 327 (Tenn. 1993); Dantzler v. Dantzler, 665 S.W.2d 385, 387
(Tenn. Ct. App. 1983)). Determinations of this nature are factually driven and require a trial court
to consider numerous factors. Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990). “Where a
divorce case is tried upon oral testimony and issues of fact depend largely upon the comparative
credibility of the parties, the findings of the Trial Judge are entitled to great weight on appeal and
are not to be lightly overturned.” Edwards v. Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App. 1973)
(citations omitted); see also Nelson v. Nelson, 66 S.W.3d 896, 902-03 (Tenn. Ct. App. 2001);
Gaskill, 936 S.W.2d at 631. Despite a trial court’s broad discretionary powers in making a custody
determination, Herrera v. Herrera, 944 S.W.2d 379, 385-86 (Tenn. Ct. App. 1996), its decision must
still be based upon the proof presented at trial and the applicable law. Gaskill, 936 S.W.2d at 631.
In reaching a custody determination, the courts of this state must evaluate the comparative
fitness of both parents by considering numerous relevant factors. Bah, 668 S.W.2d at 666; see also
Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997). The legislature has
codified many of the factors a court should consider in making a custody decision. Tenn. Code Ann.
§ 36-6-106(a) (2003); Tenn. Code Ann. § 36-6-404(b) (2003); see also Shofner v. Shofner, No.
M2003-01550-COA-R3-CV, 2004 Tenn. App. LEXIS 865, at *32 (Tenn. Ct. App. Dec. 23, 2004);
Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004 Tenn. App. LEXIS 676, at *24
(Tenn. Ct. App. Oct. 15, 2004). Out of all of the factors which may be relevant in a given case, the
welfare and best interest of the child must be the court’s paramount concerns. Luke v. Luke, 651
S.W.2d 219, 221 (Tenn. 1983); In re Parsons, 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995); Bah, 668
S.W.2d at 665. In an initial custody determination, the trial court’s consideration of the relevant
factors when evaluating each parent’s comparative fitness to parent the minor child culminates in
the creation of a permanent parenting plan. Tenn. Code Ann. § 36-6-404(a) (2003); see also
Cummings, 2004 Tenn. App. LEXIS 676, at *13-14.
As in many divorce cases which come before this Court, the record in this case contains
abundant evidence regarding property division and very little evidence focusing upon the welfare
of the child. See DeVault v. DeVault, No. 01-A-01-9601-CV-00012, 1996 Tenn. App. LEXIS 536,
at *10 (Tenn. Ct. App. Aug. 28, 1996); Garner v. Garner, 773 S.W.2d 245, 246 (Tenn. Ct. App.
1989). Our review is further complicated by the fact that, other than stating that both parents were
fit and that joint custody was in Cameron’s best interests, the trial court made no specific factual
findings regarding the proof related to custody of Cameron. When issuing its judgment, a trial court
is not required to list every applicable factor along with a discussion of how that particular factor
impacted the court’s custody determination. See Mueller v. Mueller, No. W2004-00482-COA-R3-
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CV, 2004 Tenn. App. LEXIS 770, at *16 (Tenn. Ct. App. Nov. 17, 2004); Burnett v. Burnett, No.
E2002-01614-COA-R3-CV, 2003 Tenn. App. LEXIS 508, at *16. (Tenn. Ct. App. July 23, 2003).
However, when the trial court fails to make specific findings of fact, we must review the record de
novo to determine where the preponderance of the evidence lies. Kendrick v. Shoemake, 90 S.W.3d
566, 570 (Tenn. 2002). As we have previously stated,
In this case, our ability to attach the presumption of
correctness to the trial court’s decision has been hampered by the
absence of any findings of fact and conclusions of law by the trial
judge or any other explanation of the rationale used to achieve the
final result. Other than a transcript of the proceedings, we are
presented with a memorandum opinion and order which, without
elaboration or explanation, grants the divorce . . ., awards custody of
the child . . ., and divides the jointly held property. In a record
containing material evidence adverse to the positions taken by each
spouse, we will not make our decision by attempting to discern the
reasons for the trial court’s decision. Rather we will proceed to
review the record de novo. Since the trial court made no findings of
fact, there is nothing in this record upon which the presumption of
correctness contained in Tenn.R.App.P. 13(d) can attach.
Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn. Ct. App. 1984).
The record reveals that both parents demonstrate love, affection, and a strong emotional tie
to Cameron. Tenn. Code Ann. § 36-6-106(a)(1) (2003); Tenn. Code Ann. § 36-6-404(b)(7) (2003).
Another relevant factor to consider is each parent’s ability to provide for Cameron’s physical,
medical, and educational needs, as well as the extent to which a parent has been the primary
caregiver. Tenn. Code Ann. § 36-6-106(a)(2) (2003); Tenn. Code Ann. § 36-6-404(b)(2), (5) (2003).
Husband testified that, prior to separating from Wife, he was the one primarily responsible for taking
Cameron to the doctor. Husband also testified that he was capable of cooking nutritious meals for
Cameron. Conversely, Wife testified that she has been Cameron’s primary caregiver since birth, and
Husband did little to help. While she has acknowledged that Husband occasionally changed
Cameron’s diapers, Wife testified that Husband never bathed their son and never cooked. Wife
stated that, prior to going to work on the second shift, she would pre-cook meals for Cameron to eat.
Regarding Cameron’s educational needs, Husband expressed his concerns that Cameron
cannot speak English and only speaks Farsi, their native language. According to Husband, Wife,
who was living with her parents at the time of the trial, only permits Cameron to speak English on
Tuesdays. Husband testified that Wife’s mother is the one who insists that Cameron speak Farsi.
Husband also stated that, if awarded primary custody, he would place Cameron in a preschool to
better acclimate him to American culture and the English language. In support of Husband’s
position, his sister testified that Cameron does not speak English well. Wife admitted that Farsi is
the primary language spoken in her parents’ home, and she previously only spoke English to
Cameron on Tuesdays. She also testified that it is not a rule in her parents’ home that Cameron
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could only speak English one day a week. To the contrary, Wife testified that she is working with
Cameron on learning the English language. Wife stated that, at the time of trial, she was in the
process of enrolling Cameron in preschool for three days per week, she takes him to the library, and
she plays games to further develop his language abilities. Wife admitted that Cameron is fluent in
Farsi and spoke little English at the time of the hearing, but she expressed her desire that Cameron
learn both languages. At trial, Husband introduced a videotape of his sister playing with Cameron
in order to demonstrate Cameron’s language abilities. After viewing the videotape, we agree with
the trial court in that the videotape is not very intelligible.
We also consider Cameron’s emotional needs and developmental level by noting that
Cameron was three years old at the time of trial. Tenn. Code Ann. § 36-6-404(b)(8) (2003).
Regarding each parent’s ability to instruct and parent Cameron, Tenn. Code Ann. § 36-6-106(a)(10)
(2003); Tenn. Code Ann. § 36-6-404(b)(1) (2003), we also note that both parents have college
educations. Each parent’s employment schedule is also a factor in custody determinations. Tenn.
Code Ann. § 36-6-404(b)(15) (2003). At the time of trial, Mother was working part-time on second
shift three days per week, and she anticipated subsequently moving to first shift. In turn, Husband
is employed full time.
We also consider the importance of continuity in Cameron’s life, and the length of time
he has lived in a stable, satisfactory environment. Tenn. Code Ann. § 36-6-106(a)(3) (2003); Tenn.
Code Ann. § 36-6-404(b)(11) (2003). During the pendency of the proceedings below, the trial court
ordered that Cameron primarily reside with Wife and granted Husband visitation on
Wednesday nights and every other weekend. Regarding the stability of each
parent’s family unit, Wife resided with her parents at the time of trial while Husband was in the
process of moving into an apartment. Tenn. Code Ann. § 36-6-106(a)(4) (2003). The record also
demonstrates that Cameron interacts well with the extended family of both parents. Tenn.
Code Ann. § 36-6-106(a)(9) (2003); Tenn. Code Ann. § 36-6-404(b)(13) (2003). The evidence
regarding each parent’s willingness to encourage a close and continuing relationship between
Cameron and the other parent is in dispute. Tenn. Code Ann. § 36-6-106(a)(10) (2003); Tenn.
Code Ann. § 36-6-404(b)(3) (2003). Wife testified that she encourages Husband to take an active
role in Cameron’s life. Husband disagreed, stating that Wife does not encourage his relationship with
Cameron. Husband testified that shortly after September 11, 2001, Wife took Cameron to Iran to
visit family and did not communicate with him while they were gone. He was only able to reach
them after he called several numbers to locate them. Wife testified that she has no intention of
returning to Iran permanently. Husband’s sister testified that Wife does not encourage a relationship
between Husband and son.
In custody disputes, as this case demonstrates, a review of the record typically reveals that
the evidence does not clearly preponderate in favor of one party but contains contradictory testimony
by the witness. See Barrett v. Barrett, M2000-00380-COA-R3-CV, 2001 Tenn. App. LEXIS 765,
at *4 (Tenn. Ct. App. Oct. 12, 2001). Unlike appellate courts, the trial courts are able to observe
the witnesses and assess their demeanor as they testify, therefore, they are in the more favorable
position to resolve factual disputes hinging on the credibility of the witnesses. Wells v. Tenn. Bd. of
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Regents, 9 S.W.3d 779, 783 (Tenn. 1999). Thus, when the proof is close, as it is in this case, we rely
heavily upon the determinations of credibility made by the trial court. See Beck v. Beck, No. 03A01-
9601-CV-00023, 1996 Tenn. App. LEXIS 134, at *3 (Tenn. Ct. App. 1996); Massengale v.
Massengale, 915 S.W.2d 818, 819 (Ten. Ct. App. 1995); Williams v. Williams, No. 89-63-II, 1989
Tenn. App. LEXIS 768, at *6-7 (Tenn. Ct. App. Nov. 17, 1989). However, when a trial court fails
to make findings of fact or determinations of credibility, our task on appeal is complicated.
In any event, based upon our review of the record and applicable law, we believe the
evidence preponderates against the trial court’s finding that joint custody is in the best interest of
the child in this case. First, the relevant statutory factors weigh in favor of granting Wife primary
custody of Cameron. It was undisputed at trial that she has been the child’s primary caregiver since
birth. Wife is working part-time and has more time to devote to Cameron’s needs, whereas Husband
is working full time. Additionally, when she is working, Wife’s parents are able to care for and
supervise Cameron. Since the parties’ separation, Cameron has lived primarily with Wife, and
Husband has exercised visitation. Due to Cameron’s young age, his need for stability and continuity
is of great concern, and maintaining the arrangement which has existed since the parties’ separation
promotes this interest. See Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004, Tenn.
App. LEXIS 676, at *27 (Tenn. Ct. App. Oct. 15, 2004).
Second, even if we were to conclude that the evidence presented at trial did not preponderate
against a finding that both parents were equally fit, such a finding would not invariably lead to the
conclusion that a joint custody arrangement is in the child’s best interest. See id. at *26-27. The
legislature does not forbid a court of this state from awarding the parties joint custody of a minor
child in appropriate circumstances. Tenn. Code Ann. § 36-6-101(a)(1) (2003). To the contrary, the
legislature simply provides that “neither a preference nor a presumption for or against joint legal
custody, joint physical custody or sole custody is established, but the court shall have the widest
discretion to order a custody arrangement that is in the best interest of the child.” Tenn. Code Ann.
§ 36-6-101(a)(2)(A) (2003).
Joint custody arrangements are appropriate in certain limited circumstances. See Zabaski
v. Zabaski, No. M2001-02013-COA-R3-CV, 2002 Tenn. App. LEXIS 867, at *12 (Tenn. Ct. App.
Dec. 11, 2002); Martin v. Martin, No. 03A01-9708-GS-00323, 1998 Tenn. App. LEXIS 218, at *15-
17 (Tenn. Ct. App. Mar. 26, 1998); Gray v. Gray, 885 S.W.2d 353, 355 (Tenn. Ct. App. 1994);
Barnhill v. Barnhill, 826 S.W.2d 443, 454 (Tenn. Ct. App. 1991). However, while authorized by
statute, joint custody arrangements are generally disfavored by the courts of this state due to the
realization that such rarely serves the best interest of the child. See Shelbourne v. Shelbourne, No.
M1999-02557-COA-R3-CV, 2000 Tenn. App. LEXIS 561, at *6 (Tenn. Ct. App. Aug. 22, 2000);
Dix v. Carson, No.02A01-9704-CV-00093, 1998 Tenn. App. LEXIS 840, at *29-30 (Tenn. Ct. App.
Dec. 17, 1998); DeVault v. DeVault, No. 01-A-01-9601-CV-00012, 1996 Tenn. App. LEXIS 536,
at *5-6 (Tenn. Ct. App. Aug. 28, 1996); Jackson v. Jackson, No. 01A01-9504-CV-00132, 1995
Tenn. App. LEXIS 762, at *4-5 (Tenn. Ct. App. Nov. 29, 1995); Malone v. Malone, 842 S.W.2d
621, 623 (Tenn. Ct. App. 1992); Lewis v. Lewis, No. 89-287-II, 1990 Tenn. App. LEXIS 103, at *12
(Tenn. Ct. App. Feb. 16, 1990); Garner v. Garner, 773 S.W.2d 245, 245 (Tenn. Ct. App. 1989);
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Dodd v. Dodd, 737 S.W.2d 286, 289-90 (Tenn. Ct. App. 1987); Bloom v. Bloom, No. 85-198-II,
1986 Tenn. App. LEXIS 2855, at *5 (Tenn. Ct. App. Mar. 12, 1986); Dunavant v. Dunavant, 219
S.W.2d 910, 916 (Tenn. Ct. App. 1949); Logan v. Logan, 176 S.W.2d 601, 603-04 (Tenn. Ct. App.
1943).
The statute does not require that joint custody be awarded only when the parents are on
friendly terms, DeVault, 1996 Tenn. App. LEXIS 536, at *8, however, in order for a joint custody
arrangement to serve the best interest of the child, it requires a “harmonious and cooperative
relationship between both parents.” Dodd, 737 S.W.2d at 290; see also Shelbourne, 2000 Tenn.
App. LEXIS 561, at *6; Dix, 1998 Tenn. App. LEXIS 840, at *30; Jackson, 1995 Tenn. App. LEXIS
762, at *5. “While we have stopped short of rejecting this type of custody arrangement outright,
divided or split custody should only be ordered when there is specific, direct proof that the child’s
interest will be served best by dividing custody between the parents.” Garner, 773 S.W.2d at 248
(Koch, J., dissenting) (emphasis added); see also Zabaski v. Zabaski, No. M2001-02013-COA-R3-
CV, 2002 Tenn. App. LEXIS 867, at *12 (Tenn. Ct. App. Dec. 11, 2002) (finding joint custody
appropriate where the record revealed the parents were able to communicate effectively regarding
their son, they shared parenting and household duties while married, and one of the parties suggested
a joint custody arrangement); Martin v. Martin, No. 03A01-9708-GS-00323, 1998 Tenn. App.
LEXIS 218, at *15-17 (Tenn. Ct. App. Mar. 26, 1998) (affirming the trial court’s award of joint
custody due to the fact that the parents had previously agreed to a joint custody arrangement); Gray
v. Gray, 885 S.W.2d 353, 354-55 (Tenn. Ct. App. 1994) (finding that the evidence demonstrated that
both parents were very active in the child’s life and there was no apparent animosity between the
parties).
The record in this case reveals a heightened level of animosity between the parties and an
inability to communicate regarding Cameron, thereby making a joint custody arrangement
undesirable. Husband testified concerning his animosity toward Wife’s family, expressing his belief
that they are too controlling. Wife testified that her parents traveled with her to drop off Cameron
at the Husband’s residence, and, in an apparent effort to avoid confrontation, she parked next door
and walked Cameron over to the Husband’s house. The testimony from both parents reveals that
they have difficulty agreeing on the best way to educate Cameron and assimilate him into American
culture. Husband testified that, since their separation, Wife has not communicated with him
concerning Cameron’s medical needs. He also testified about his difficulty in contacting his Wife
when she took Cameron to Iran to visit family. Furthermore, neither parent’s proposed parenting
plans suggested a joint custody arrangement. To the contrary, throughout the proceedings below,
each parent has fought to receive primary custody of Cameron. Cf. Martin v. Martin, No. 03A01-
9708-GS-00323, 1998 Tenn. App. LEXIS 218, at *15-16 (Tenn. Ct. App. Mar. 26, 1998) (noting that
prior agreements between the parties regarding custody may be considered by the trial court as
evidence of the appropriate custody arrangement in a given case).
Accordingly, a joint custody arrangement is not in Cameron’s best interest, and we reverse
the trial court’s award of joint custody to the parents. As we have previously stated,
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The experience of this Court has been that joint custody rarely, if
ever, works — for the children. There needs to be one residence, one
haven in all the storms of life, including those storms whipped up by
the winds of divorce. There needs to be one parent with primary
control and responsibility for the upbringing of the parties' children,
whenever possible. Custody, in reality, means responsibility for the
care, nurture and development of the mental, emotional and physical
needs of the child. The custodial parent should expect and receive
cooperation and assistance from the non-custodial parent in every
respect to serve the best interests of their child or children.
Dodd, 737 S.W.2d at 289-90. Thus, it is necessary that we remand this case to the trial court with
instructions on fashioning a new permanency plan. See First Tenn. Bank Nat’l Assoc. v. Hurd Lock
& Mfg. Co., 816 S.W.2d 38, 40 (Tenn. Ct. App. 1991) (discussing Tenn. R. App. P. 36(a) and noting
our discretion in entering a judgment when a reversal is necessary); see also Cummings v.
Cummings, M2003-00086-COA-R3-CV, 2004 Tenn. App. LEXIS 676, at *28-29 n. 6 (Tenn. Ct.
App. Oct. 15, 2004). On remand, the trial court is instructed to create a new parenting plan naming
Wife the primary residential parent of Cameron and granting Father liberal visitation.4 In the
interim, we reinstate the custody arrangement ordered by the trial court during the pendency of the
divorce proceedings.
B.
Child Support
On appeal, Husband argues the trial court erred in setting his child support obligation by
failing to calculate the child support obligation using his current income. Regarding Wife’s child
support obligation, Husband argues the trial court erred in not calculating her child support
obligation based on the potential salary she could earn by working full-time. In addition, he contends
that the trial court erred by not including his alimony payments in the amount of $750.00 per month
in the calculation of Wife’s child support obligation.
The evidence in the record regarding the issue of child support is minimal. Husband has a
master’s degree in computer science. At trial, Husband testified that he is currently working for
N&S, Inc., a Nashville parts distribution company, as a computer programmer systems analyst. At
his present job, Husband earns $600.00 per week, or approximately $31,000.00 per year. Prior to his
present job, Husband worked for Service Merchandise Company (“Service Merchandise”) as a
computer programmer systems analyst making approximately $52,000.00 per year. He worked for
Service Merchandise for approximately nine years before the company terminated his position and
filed for bankruptcy in 2002. Husband testified that the last time he interviewed for other
4
It is entirely permissible for the trial court on remand to allow the parties to attempt ot reach an agreement
regarding custody of Cameron consistent with this opinion. Cummings, 2004 Tenn. App. LEXIS 676, at *29-30. In the
event they are unable to do so, the trial court shall implement a parenting plan consistent with this opinion.
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employment was in the summer of 2002, and he stated that he has not applied for any other
employment.
Shortly into Husband’s testimony on direct examination, the trial court made the
following statement:
THE COURT: Mr. Gharacholou, you’re capable of making
$50,000, and that’s what the child support is going to be set on, if
you are not awarded custody. So quit Mickey Mousing around up
here. You’ve got the ability to earn. You’ve got to go back to work.
You’ve got a master’s degree in Computer Science. Go get a job in
your field. Got it?
....
THE COURT: Don’t delay my court time here. We have
established that point. And Ms. Bohn knows that he’s going to have
to get a job. If he doesn’t get a job, if he doesn’t get custody of this
child, he’s going to have to pay the support, anyway, so don’t belabor
my time here.
At the conclusion of the trial, the trial court stated orally on the record that it found Husband to be
underemployed.
Wife obtained her bachelor’s degree shortly after coming to the United States. Wife testified
that she is a medical technologist working at the Veteran’s Administration Hospital where she has
been employed for the past six years. At the time of trial, Wife testified that she was working part-
time at the hospital on the second shift, approximately three days per week for a total of twenty-four
hours, making almost $20.00 per hour. She testified that she was getting ready to move to a first
shift position. Wife admitted that she could work full-time if she wanted to, but only on second
shift. If she were to work full-time, she estimated that she could potentially make approximately
$41,000.00 in income each year. Regarding Wife, the trial court provided the following statement
at the conclusion of the trial: “When her salary goes up, then her child support will go up. And you
can’t exist on what you are doing now. You’ve got to go to work full-time.”
Since setting child support is a discretionary matter, we review a trial court’s child support
award to determine whether the trial court abused its discretion. Tallent v. Cates, 45 S.W.3d 556,
560 (Tenn. Ct. App. 2000); State ex. rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App.
2000). Under this standard of review, we are required to consider the following:
(1) whether the decision has a sufficient evidentiary foundation, (2)
whether the court correctly identified and properly applied the
appropriate legal principles, and (3) whether the decision is within the
range of acceptable alternatives. . . While we will set aside a
discretionary decision if it rests on an inadequate evidentiary
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foundation or if it is contrary to the governing law, we will not
substitute our judgment for that of the trial court merely because we
might have chosen another alternative.
Kaatrude, 21 S.W.3d at 248 (citations omitted). On appeal, neither parent takes issue with the
legality of the trial court’s decision to require both parents to pay child support in this case. After
evaluating the record in this case, however, it is apparent that the trial court’s decision regarding the
parties’ child support obligation is in contravention of the governing law applicable in this case.
The Tennessee Child Support Guidelines (“Guidelines”) in effect at the time this case
was decided by the trial court5 provide:
These guidelines are designed to apply to situations where children
are living primarily with one parent but stay overnight with the other
parent at least as often as every other weekend from Friday to Sunday,
two weeks in the summer and two weeks during holidays throughout
the year. These guidelines are designed to consider the actual
physical custody of the child(ren), regardless of whether custody is
awarded to one parent and visitation to the other or such an
arrangement is ordered to be joint custody or split custody. In
situation where overnight time is divided more equally between the
parents, the courts will have to make a case-by-case determination as
to the appropriate amount of support. (reference 1240-2-4-.04).
Tenn. Comp. R. & Regs. 1240-2-4-.02(6) (2003) (emphasis added). The Guidelines further provide
that “the parent with whom the child(ren) live primarily will be referred to as the obligee and the
parent with whom the child(ren) do not primarily live will be referred to as the obligor.”
Tenn. Comp. R. & Regs. 1240-2-4-.03(1) (2003). Our supreme court has stated that “the Child
Support Guidelines contemplate that child support may be awarded only to the primary residential
parent.” Gray v. Gray, 78 S.W.3d 881, 884 (Tenn. 2002) (emphasis added). The legislature defines
the “primary residential parent” as “parent with whom the child resides more than fifty percent
(50%) of the time.” Tenn. Code Ann. § 36-6-402(4) (2003).
Additionally, “the child support award is based on a flat percentage of the obligor’s net
income.” Tenn. Comp. R. & Regs. 1240-2-4-.03(2) (2003) (emphasis added). Thus, an award of
child support to an obligee parent is to be calculated based solely upon the net income of the obligor
parent, and the obligee parent’s income should not enter into the calculation. Gallaher v. Elam, 104
S.W.3d 455, 462 (Tenn. 2003); Gray, 78 S.W.3d at 883-84. The Permanent Parenting Plan entered
by the trial court in this case merely states that Husband “is designated the primary residence for
5
The new “income shares” model of the Guidelines adopted by the Tennessee Department of Human Services
did not take effect until January of 2005. The trial in this case was conducted in 2003. Thus, the new “income shares”
model of the Guidelines is inapplicable to the present case.
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purpose of determining school zoning.” Thus, it is not entirely clear that the trial court designated
a primary residential parent, as that term is used in the Tennessee Code and Guidelines, in this case.
At the outset, we note that the trial in this matter occurred on October 23, 2003, and the trial
court entered a final decree on December 23, 2003. Thus, at the time of adjudicating this case, our
supreme court had instructed that only the primary residential parent was entitled to receive child
support. Gray, 78 S.W.3d at 884. This Court had also held on two occasions prior to the hearing
in this case that, should neither parent be designated a primary residential parent and a parenting plan
grants the parents equal parenting time, then neither parent is entitled to child support. Davis v.
Davis, No. M2003-02312-COA-R3-CV, 2004 Tenn. App. LEXIS 664, at *13-14 (Tenn. Ct. App.
Oct. 12, 2004) (citing Cox v. Cox, No. E2002-02034-COA-R3-CV, 2003 Tenn. App. LEXIS 257,
at *8-10 (Tenn. Ct. App. Mar. 31, 2003); Bailey v. Capps, No. M1999-02300-COA-R3-CV, 2001
Tenn. App. LEXIS 214, at *11-12 (Tenn. Ct. App. Apr. 2, 2001)).
In Hopkins v. Hopkins, 152 S.W.3d 447 (Tenn. 2004), our supreme court dealt with a
situation where a trial court awarded the parents equal parenting time. Hopkins, 152 S.W.3d at 448.
In interpreting the Guidelines, the supreme court stated:
We decline to adopt a bright-line rule that no child support is owed
when a child’s residential time is divided equally between the parents.
The Child Support Guidelines do not expressly provide for an
equal division of residential time. Instead, the Guidelines address
situations in which a child resides primarily with one parent. . . .
However, we do not interpret [the definition of primary residential
parent] as precluding a child’s residential schedule from being
divided equally between the parents. While silent on this precise
issue, the Guidelines “are designed to consider the actual physical
custody of the child(ren), regardless of whether custody is awarded to
one parent and visitation to the other or such an arrangement is
ordered to be joint custody or split custody.” Tenn. Comp. R. & Regs.
1240-2-4.02(6).
Having decided that an equal division of time is permissible
under the Guidelines, we must address the manner in which child
support is to be calculated in such a situation. In situations in which
overnight time is divided more equally between the parents, courts
should make a case-by-case determination as to the appropriate
amount of support.
Id. at 449-50 (citation omitted). The supreme court remanded the case to the trial court for a
designation of the primary residential parent and a determination of the child support obligation
owed by the non-primary residential parent. Id. at 450; see also Davis, 2004 Tenn. App. LEXIS 664,
at *13-20 (discussing the effect of the Hopkins decision on joint custody cases).
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Although the trial court did not have the benefit of the supreme court’s decision in Hopkins
when it decided this case, its decision was still in contravention of then existing law. The supreme
court had already stated in Gray that only the primary residential parent may be awarded child
support. Gray, 78 S.W.3d at 884. Therefore, even it we were to assume that the trial court’s
permanent parenting plan named Husband the primary residential parent, it would only be proper to
award child support to Husband, not Wife. Conversely, if we assume the trial court’s permanent
parenting plan did not name a primary residential parent and awarded the parent’s equal parenting
time, then neither parent would be entitled to child support. Davis, 2004 Tenn. App. LEXIS 664,
at *13-14. In addition, assuming the trial court was using the Guidelines to render its decision
regarding child support,6 the court also erred in considering both parent’s income and ordering both
parents to pay child support. See Tenn. Comp. R. & Regs. 1240-2-4-.03(2) (2003) (“the child
support award is based on a flat percentage of the obligor’s net income”); see also Gallaher, 104
S.W.3d at 462; Gray, 78 S.W.3d at 883-84.
Furthermore, even if it were permissible for a trial court to deviate from the Guidelines and
order both parent’s to pay child support in this case, the Guidelines provide a specific procedure for
doing so, stating:
These guidelines shall be applied as a rebuttable presumption in all
child support cases. If the court finds that the evidence is sufficient
to rebut the presumption that the application of the guidelines is the
correct amount to be awarded, then the court must make a written or
specific finding that the application of the child support guidelines
would be unjust or inappropriate in that particular case. Findings that
rebut these guidelines must state the amount that would have been
required under the guidelines and include a justification for deviation
from guidelines which takes into consideration the best interest of the
child.
Tenn. Comp. R. & Reg. 1240-2-4-.02(7) (2003) (emphasis added); see also Gallaher, 104 S.W.3d
at 462; State ex. rel. Wrzesniewski v. Miller, 77 S.W.3d 195, 197 (Tenn. Ct. App. 2001); Rubin v.
Kirshner, 948 S.W.2d 742, 747 (Tenn. Ct. App. 1997). Thus, in the event that the trial court
attempted to deviate from the Guidelines, it erred by failing to enter specific or written findings
including a justification for its deviation.
We have previously determined that Wife should be the primary residential parent for
Cameron with Husband having liberal visitation. Accordingly, in creating a permanent parenting
6
W e assume that the trial court was attempting to use the Guidelines to set child support in this case because
the Permanent Parenting Plan provides that the parties’ child support obligations were set “in accordance with the
Tennessee Child Support Guidelines.” In addition, the amount of child support the court ordered each party to pay based
on the court’s determination of each party’s net income corresponds to the amounts arrived at by using the Guidelines.
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plan on remand, the trial court is instructed to recalculate the amount of child support that Husband,
as the obligor parent, owes to Wife, as the obligee parent, consistent with the Guidelines and this
opinion. However, we cannot end our analysis of this issue at this point. At the conclusion of the
hearing below, the trial court stated that it found Husband to be underemployed. Husband takes
issue with this finding on appeal, arguing that the trial court should have calculated his child support
obligation based on his current income.
The Guidelines provide that, “[i]f an obligor is willfully and voluntarily unemployed or
underemployed, child support shall be calculated based on a determination of potential income, as
evidenced by educational level and/or previous work experience.” Tenn. Comp. R. & Reg. 1240-2-
4-.03(d) (2003). “To calculate a child support award based on earning capacity rather than actual
net income, there must be a threshold finding that the obligor is willfully and voluntarily
underemployed or unemployed.” Marcus v. Marcus, No. 02A01-9611-CV-00286, 1998 Tenn. App.
LEXIS 55, at *8 (Tenn. Ct. App. Jan. 28, 1998). “Whether a party is willfully and voluntarily
underemployed is a fact question, and the trial court has considerable discretion in its determination.”
Willis v. Willis, 62 S.W.3d 735, 738 (Tenn. Ct. App. 2001). Due to the factual nature of this
determination, a finding of underemployment must be supported by the evidence in the record.
Lacey v. Lacey, No. W2002-02813-COA-R3-CV, 2003 Tenn. App. LEXIS 790, at *8 (Tenn. Ct.
App. Oct. 31, 2003); Marcus, 1998 Tenn. App. LEXIS 55, at *8.
The courts of this state are more apt to find that an obligor parent is willfully and voluntarily
underemployed when he or she voluntarily leaves that employment to accept employment providing
significantly less income. See Lacey, 2003 Tenn. App. LEXIS 790, at *8; State ex. rel. Ledbetter
v. Godsey, No. M1998-00958-COA-R3-CV, 2000 Tenn. App. LEXIS 406, at *13-15 (Tenn. Ct. App.
June 22, 2000); Willis, 62 S.W.3d at 738; Ralston v. Ralston, No. 01A01-9804-CV-00222, 1999
Tenn. App. LEXIS 529, at *11 (Tenn. Ct. App. Aug. 3, 1999). Husband’s undisputed testimony
establishes that he did not voluntarily leave his job at Service Merchandise, but the company
terminated his position when it filed for bankruptcy. In support of her argument that Husband is
willfully and voluntarily underemployed, Wife points to her testimony that Husband threatened to
quit his job and lower his income. Even assuming Husband did make this statement, it does not
change the fact that his employment with Service Merchandise was involuntarily ended.
“While the initial loss of employment may have been involuntary, an obligor’s course of
action and decision-making after termination can demonstrate willful and voluntary
underemployment.” Godsey, 2000 Tenn. App. LEXIS 406, at *15. However, there is no proof in the
record indicating that Husband’s actions after losing his job rise to the level of willful and voluntary
underemployment. As we have previously stated, “[a]lthough there is no requirement that a parent
intended to avoid their child support obligations by their actions, we do think that willful or
voluntary unemployment or underemployment must result from an intent on the part of the parent
to reduce or terminate his or her income.” Wilson v. Wilson, 43 S.W.3d 495, 497 (Tenn. Ct. App.
2000). Since the record is devoid of any evidence showing such an intention, the trial court erred
in finding Husband to be willfully and voluntarily underemployment. See Lacey, 2003 Tenn. App.
LEXIS 790, at *9-10 (affirming a trial court’s finding that a parent was not willfully and voluntarily
-15-
underemployed where the undisputed evidence presented at trial showed the loss of her prior job was
involuntary and unforseen); Beem v. Beem, No. 02A01-9511-CV-00252, 1996 Tenn. App. LEXIS
717, at *7-8 (Tenn. Ct. App. Nov. 5, 1996) (noting that a trial court erred in finding that the husband
was willfully and voluntarily unemployed when his undisputed testimony showed that he lost his job
because his position was terminated and did everything possible to secure other employment).
Accordingly, we hold that the trial court erred in determining Husband to be underemployed, and
the trial court is instructed on remand to calculate Husband’s child support obligation based upon
his current income.
C.
Alimony
The trial court ordered Husband to pay Wife transitional alimony in the amount of $750.00
per month for three years. On appeal, Husband argues that the trial court heard no evidence
regarding Wife’s need, her economic disadvantage, or his ability to pay. In addition, Husband points
to the fact that Wife did not request alimony in her complaint for divorce. While admitting that the
trial court did not make specific findings regarding her economic disadvantage or need, Wife argues
that, by granting an award of transitional alimony, the trial court implicitly made both findings.
Likewise, Wife also argues that the trial court made an implicit finding that Wife did not need
rehabilitation, which Wife asserts is correct.
“There are no hard and fast rules for spousal support decisions.” Anderton v. Anderton, 988
S.W.2d 675, 682 (Tenn. Ct. App. 1998). “Whether an alimony award is appropriate is dependent
on the facts and circumstances of each case.” Sullivan v. Sullivan, 107 S.W.3d 507, 510 (Tenn. Ct.
App. 2002). Due to the factually driven nature of the decision, courts must weigh numerous factors,
including those set forth by the legislature in section 36-5-101(d)(1)(E) of the Tennessee Code.
Cranford v. Cranford, 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989). “The trial court has broad
discretion in determining the type, amount, and duration of alimony based upon the particular facts
of each case.” Sullivan, 107 S.W.3d at 511 (citing Kinard v. Kinard, 986 S.W.2d 220 (Tenn. Ct.
App. 1998)); see also Nelson v. Nelson, 106 S.W.3d 20, 23 (Tenn. Ct. App. 2002).
Recognizing that trial courts have broad discretion in determining whether alimony is
appropriate in a given case, Nelson, 106 S.W.3d at 23; Anderton, 988 S.W.2d at 682, we employ the
following standard of review in evaluating such decisions:
We review matters of alimony under an abuse of discretion standard.
If the discretionary decision is within a range of acceptable
alternatives, appellate courts will not substitute their decision for that
of the trial court simply because the appellate court would have
chosen a different alternative. White v. Vanderbilt Univ., 21 S.W.3d
215, 223 (Tenn. Ct. App. 1999). We review the trial court’s
discretionary decisions to determine: (1) whether the decisions are
supported by the facts in evidence; (2) whether the trial court
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identified and applied the applicable legal principles; (3) whether the
trial court's decisions are within the range of acceptable alternatives.
Id.
Sullivan, 107 S.W.3d at 510. “Appellate courts are generally disinclined to second-guess a trial
court’s spousal support decision unless it is not supported by the evidence or is contrary to the public
policies reflected in the applicable statutes.” Anderton, 988 S.W.2d at 682.
We begin with Husband’s assertion that Wife did not request alimony in her complaint. “In
this State a divorce may be granted without alimony, and alimony may be granted without decreeing
a divorce, there being no necessary or absolute connection between divorce and alimony under the
statute.” Qualls v. Qualls, 589 S.W.2d 906, 909 (Tenn. 1979). When a party files a complaint for
divorce, “[t]he complaint for divorce shall set forth the grounds for divorce in substantially the
language of the [applicable statutes], and pray for a divorce from the defendant, or for a divorce and
such other and further relief to which the complainant may think to be entitled.” Tenn. Code Ann.
§ 36-4-106(a)(1) (2003) (emphasis added). In Qualls, our supreme court held that “a prayer for
general relief is not sufficient to support an award of alimony in a case which the judgment is taken
upon default of the defendant.” Qualls, 589 S.W.2d at 909 (emphasis added). The subsequent
decisions of this Court have interpreted the decision in Qualls as being limited to the default
judgment context. See West v. West, No. M1998-00725-COA-R3-CV, 2000 Tenn. App. LEXIS 37,
at *11-12 (Tenn. Ct. App. Jan. 27, 2000); Bulla v. Bulla, No. 01-A-01-9004-CV-00133, 1990 Tenn.
App. LEXIS 774, at *9 (Tenn.Ct. App. Oct. 24, 1990); Allen v. Allen, No. 89-288-II, 1990 Tenn.
App. LEXIS 61, at *9 (Tenn. Ct. App. Feb. 2, 1990); Moore v. Moore, No. 87-92-II, 1988 Tenn.
App. LEXIS 424, at *5-6 (Tenn. Ct. App. June 24, 1988).
While it is advisable for parties to include a specific prayer for alimony in their complaints,
See Moore, 1988 Tenn. App. LEXIS 424, at *5, Wife’s failure to do so in this case is not fatal to the
trial court’s award of alimony.7 When a complaint contains no indication that a party is seeking
alimony in a divorce proceeding or the party expressly negates a request for alimony during the
course of the proceedings, an award of alimony by a trial court may very well be improper. See
Allen, 1990 Tenn. App. LEXIS 61, at *8-9 (noting that the issue of alimony must be tried, and the
obligor spouse must be given an opportunity to demonstrate that alimony is not needed in a given
case.) However, Wife’s complaint does contain a general prayer for relief, thereby placing Husband
on notice that she sought maintenance and support. See Bulla, 1990 Tenn. App. LEXIS 774, at *9-
10.
We now turn to the trial court’s decision to award Wife alimony in this case. “The purpose
of spousal support is to aid the disadvantaged spouse to become and remain self-sufficient and, when
7
W e are somewhat puzzled by the trial court’s oral findings at the conclusion of the trial in this case, providing
as follows: “Taking into consideration support obligations, the pleadingsasked for temporary alimony, but I think there
should be some transitional alimony here.” (emphasis added.) After reviewing W ife’s complaint for divorce, we find
no specific references to alimony in any form.
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economic rehabilitation is not feasible, to mitigate the harsh economic realities of divorce.”
Anderton, 988 S.W.2d at 682 (citing Shackleford v. Shackleford, 611 S.W.2d 598, 601 (Tenn. Ct.
App. 1980)). Our legislature has defined transitional alimony asfollows:
Transitional alimony means a sum of money payable by one (1) party
to, or on behalf of, the other party for a determined period of time. .
. . Transitional alimony is awarded when the court finds that
rehabilitation is not necessary, but the economically disadvantaged
spouse needs assistance to adjust to the economic consequences of
a divorce, legal separation or other proceeding where spousal support
may be awarded, such as a petition for an order of protection.
Tenn. Code Ann. § 36-5-101(d)(1)(D) (2003) (emphasis added). The recipient spouse’s need and
the obligor spouse’s ability to pay are the primary considerations in determining whether alimony
is warranted in a given case, Bratton v. Bratton, 136 S.W.3d 595, 604 (Tenn. 2004), with the
recipient spouse’s need being the “cornerstone for the award of alimony.” Lancaster v. Lancaster,
671 S.W.2d 501, 503 (Tenn. Ct. App. 1984).
As with the other issues raised by the parties on appeal, our task is complicated somewhat
by the fact that the trial court made no findings of fact regarding the alimony award. The record
contains no findings by the trial court to the effect that Wife was economically disadvantaged or
not in need of rehabilitation. Upon reviewing the record, we find no evidence regarding Wife’s need
for alimony.8 Although Wife’s complaint was sufficient to place Husband on notice that alimony
would be sought in this case, “there must be some evidence in the record from which alimony may
be granted.” Allen, 1990 Tenn. App. LEXIS 61, at *9; see also Cranford v. Cranford, 772 S.W.2d
48, 50 (Tenn. Ct. App. 1989). Finding none, we must conclude that the trial court’s award of
alimony in this case was an abuse of the trial court’s discretion and reverse that decision.
D.
Attorney’s Fees
Both parties have requested that this Court award them their respective attorney’s fees on
appeal. This state follows the firmly established American rule which provides that litigants are
responsible for their own attorney’s fees absent a statute or agreement between the parties providing
otherwise. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000). In
divorce proceedings, the recovery of attorney’s fees by a litigant is provided for by statute which
8
W ife argues that, pursuant to section 36-5-101(d)(1)(B) of the Tennessee Code, the courts of this state are
required to award spousal support to allow the economically disadvantaged spouse’s standard of living post-divorce to
remain comparable to the standard of living enjoyed during the marriage or to the post-divorce standard of living enjoyed
by the other spouse. In support of this position, W ife points to the disparity in income imputed to the parties by the trial
court. In reversing the trial court’s decision regarding child support, we noted that the trial court erred by imputing
income to the Father instead of considering his current income. Thus, the gap in earnings between the parties is not as
wide as W ife suggests.
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provides that a spouse seeking enforcement of an alimony or custody award in a decree may be
granted attorney’s fees in the discretion of the court before whom the action is pending. Tenn. Code.
Ann. 36-5-103(c) (2003).
The discretion to award attorney’s fees on appeal in a proceeding of this nature rests within
the discretion of the Court. Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). When
considering a request for attorney’s fees on appeal, we also consider the requesting party’s ability
to pay such fees, the requesting party’s success on appeal, whether the requesting party sought the
appeal in good faith, and any other equitable factors relevant in a given case. 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, 357 S.W.2d 828, 829 (Tenn. 1962)); see also Shofner v. Shofner, No. M2003-
01550-COA-R3-CV, 2004 Tenn. App. LEXIS 865, at *41 (Tenn. Ct. App. Dec. 23, 2004).
Regarding Wife’s request for attorney’s fees, we note that, on appeal, Wife is not seeking to
enforce the custody arrangement ordered by the trial court. Rather, she is seeking to have the
custody arrangement overturned on appeal. Thus, since she is not seeking to enforce the decree,
therefore, we deny her request for attorney’s fees. Husband’s request for attorney’s fees is likewise
denied because he is not seeking to enforce the final decree on appeal but, instead, seeks to have it
declared invalid by this Court. See Parchman v. Parchman, No. W2003-01204-COA-R3-CV, 2004
Tenn. App. LEXIS 768, at *15-16 (Tenn. Ct. App. Nov. 17, 2004). Additionally, since both parties
have prevailed regarding their respective issues raised on appeal, we decline to grant either party’s
request for attorney’s fees in this case. See Baggett v. Baggett, 512 S.W.2d 292, 294 (Tenn. Ct. App.
1973).
III.
CONCLUSION
For the reasons set forth herein, we reverse the decisions of the trial court regarding child
custody, child support, and alimony. We remand this case to the trial court for further proceedings
consistent with this opinion. Costs of this appeal are to be taxed equally between the Appellant,
Suzan Darvarmanesh and her surety, and the Appellee, Mahyar Gharacholou, for which execution
my issue if necessary.
___________________________________
ALAN E. HIGHERS, JUDGE
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