Michael P. Abraham v. Carolynn Abraham

05/27/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 9, 2019 Session
MICHAEL P. ABRAHAM v. CAROLYNN ABRAHAM
Appeal from the Chancery Court for Rutherford County
No. 10CV-1716 Howard W. Wilson, Chancellor
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No. M2019-00381-COA-R3-CV
___________________________________
This is an appeal of the post-divorce modification of a parenting plan. Father ceased
making regular contributions into an account for the children’s education that was
established in the original parenting plan agreed upon in 2004, but was not included in a
modified plan adopted by agreement seven years later. Mother sought to recover the
contributions that were not made by Father after 2011 in addition to the amount Father
withdrew from the college fund account without her consent. Mother also sought
reimbursement for the cost of a vehicle she purchased for one of the children and for an
upward adjustment to Father’s child support obligation to pay for extracurricular
expenses. The court held that Father was not obligated to contribute to the college fund
after 2011, but ordered Father to reimburse the fund for the amount he withdrew; the
court denied Mother’s request for reimbursement of the cost of the vehicle and for an
upward adjustment of child support, and granted Mother a money judgment for expenses
incurred when the children moved out of Father’s home to reside with her. Mother
appeals. Upon a thorough review of the record, we discern no error and affirm the
judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Carolynn Elaine Clements, Smyrna, Tennessee, Pro Se.
Sandra L. M. Smith, Murfreesboro, Tennessee, for the appellee, Michael P. Abraham.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
Michael P. Abraham (“Father”) and Carolynn E. Abraham (“Mother”) were
divorced in February of 2004; two children were born of the marriage, in January of 2001
and September of 2002. The Final Decree incorporated an Agreed Parenting Plan Order
(the “2004 Plan”) and a Marital Dissolution Agreement. At issue in this appeal is the
following provision in the Child Support portion of the parenting plan:
In addition [to child support of $1,100 per month Father was to pay],
Father will pay [Mother] 32% of the net company bonuses he receives each
year into the college investment accounts maintained for the children at
Putnam Investments, if he is paid a bonus and provide[s] Mother with proof
of the amount of the bonus.
A related provision in the Marital Dissolution Agreement states that:
The custodial accounts for the minor children shall only be used for
their post-high school education unless the parties agree in writing
otherwise. The Father shall receive an annual statement of each account
from the Mother.
On January 5, 2011, Father filed a petition to modify the 2004 Plan; this petition
was resolved through mediation and memorialized in an Agreed Order entered July 20,
2011; the order incorporated a new parenting plan (the “2011 Plan”) that did not include
the provision in the 2004 Plan quoted above.
On January 28, 2015, Father filed a petition to modify the 2011 Plan, requesting
that the trial court review both parties’ income and make a new determination regarding
child support obligations; following receipt of information on Mother’s 2014 income,
Father filed a separate motion that child support be recalculated. On August 17 the court
entered an Agreed Order adjusting child support; pertinent to the issues in this appeal, the
order stated:
1. Th[at] effective June 1, 2015, neither party shall pay child support to the
other. Attached as Exhibit A is a child support worksheet indicating
that Father should pay to Mother the sum of $112.00 per month. The
parties agree that a deviation is appropriate given the small amount and
the agreements of the parties to pay significant other expenses of the
children to include college fund, lunch expenses, and cell phones.
2. The parties agree that the previous parenting plan entered into by this
court should not be modified.
***
4. That to offset any claims of Father for retroactive decrease in child
support, Mother will contribute $750.00 to each of the children’s college
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funds upon execution of this agreement. Mother shall further contribute a
minimum of $250.00 to each child’s college fund on a quarterly basis
beginning September 1, 2015, however, if Mother is required to pay one
half of the medical insurance of the children as set forth herein, Mother’s
contribution will be reduced to $100.00 per child per quarter.
On August 22, 2017, Mother filed a Petition for Modification, asserting there was
a substantial and material change in circumstances such that “based upon the ages,
activities, and feelings of the children, [the] Parenting Schedule is not in the children’s
best interest.” The petition was amended on October 16 to add factual allegations and a
claim to recover expenses that Mother had expended or incurred on behalf of the children
which had not been reimbursed by Father; an Answer and Counter Petition for
modification and contempt was filed in response. Following the filing of additional
motions and responses addressing, inter alia, parenting time, support, and contempt, the
case proceeded to a hearing on November 7, 2018. Following the trial, the court took the
matter under advisement and rendered its ruling on November 15; the ruling was
incorporated into an order entered December 18.
In the order the court identified the following matters for resolution: (1) Mother’s
claim that Father was obligated to contribute $9,000 from bonuses he received to the
college fund which was established in the 2004 Plan and to reimburse the account for
$20,000 he withdrew without permission; (2) Mother’s claim to recover the value of a
truck that Father took from his son and the cost of a replacement vehicle Mother
purchased for him, and for other expenses; (3) modification of child support; and (4) the
parties’ competing claims for attorneys’ fees.1 With respect to the college fund, the court
held that Father’s obligation to contribute expired when the 2011 Plan was approved by
the court, so Father was not responsible for the $9,000 Mother sought. In addition, the
court held that Father’s unilateral withdrawal of $20,000 from the account violated the
MDA and ordered that he reimburse the fund $16,770.23.
As to the truck and replacement vehicle, the court determined that the evidence
showed that the son’s possession of the truck was “a conditional bailment of sorts” and
did not support Mother’s contention on behalf of the son, based on promissory estoppel,
that the son was entitled to the truck and, on the same evidence and legal theory, that
Mother was not entitled to judgment for the cost of the replacement vehicle she
purchased. The court awarded Mother $3,600 for the cost of necessities for the children
when they moved out of Father’s home to reside with her fulltime. The court entered a
new support order based on the parties’ then current income and the fact that the children
resided with Mother and had no residential parenting time with Father; the court denied
Mother’s request for upward deviations to include $950 for extracurricular expenses and
1
Both parties were represented by counsel at trial; Mother represents herself on appeal.
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granted her request to be awarded the income tax deduction for the oldest child for 2018
and beyond.2 Finally, the court declined to find either party in contempt or to make an
award of counsel fees.
On December 12, after the court rendered its oral ruling but before the order was
entered, Mother, now proceeding pro se, filed a document styled “Motion to Request
Evidentiary Hearing Due to Fraud Under Rule 60.02”, in which she set forth 32
statements of what she asserted was fraud perpetrated by Father in the evidence presented
at trial and other errors which she argued justified a hearing and relief. A hearing on the
motion, which the court treated as being timely filed as a Rule 59 motion to alter or
amend the December 18 order, was held on January 15, 2019; the court entered an order
denying the motion on February 8. Mother filed a timely notice of appeal.
Mother argues that the court abused its discretion in its rulings as to the college
fund and in failing to award an upward deviation to Father’s child support obligation; she
also contends that the court erred by not making findings of fact and conclusions of law
in accordance with Tennessee Rule of Civil Procedure 52 in its ruling on her motion, and
in failing to award her attorneys’ fees. Father contends that the court abused its
discretion in failing to award counsel fees and that he is entitled to fees and costs for
defending a frivolous appeal.
II. STANDARD OF REVIEW
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). The trial court’s conclusions of law are subject to a de novo review with
no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001). Some of the issues raised on appeal implicate the abuse
of discretion standard. In Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010),
the Supreme Court discussed the abuse of discretion standard, stating:
The abuse of discretion standard of review envisions a less rigorous
review of the lower court’s decision and a decreased likelihood that the
decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility,
288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86
S.W.3d 189, 193 (Tenn. Ct. App. 2000). It reflects an awareness that the
decision being reviewed involved a choice among several acceptable
alternatives. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct.
App. 1999). Thus, it does not permit reviewing courts to second-guess the
2
Mother had received the deduction for the youngest child in the 2004 Plan.
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court below, White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.
App. 1999), or to substitute their discretion for the lower court’s, Henry v.
Goins, 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998). . . .
Discretionary decisions must take the applicable law and the relevant
facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d
652, 661 (Tenn. 1996). An abuse of discretion occurs when a court strays
beyond the applicable legal standards or when it fails to properly consider
the factors customarily used to guide the particular discretionary decision.
State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its
discretion when it causes an injustice to the party challenging the decision
by (1) applying an incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526 (Tenn.
2009); Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249
S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of
Nashville, 154 S.W.3d [22] at 42 [(Tenn. 2005)].
Id. at 524-25.
III. ANALYSIS
A. College Fund
i. Father’s Obligation to Contribute to the College Fund
With respect to Father’s contributions into the college fund, the court held:
The court finds plainly that the 2004 permanent parenting plan is a
contract regarding the college accounts, and obligated the father to pay 32
percent of his net bonuses into the college accounts maintained for the
children. However, in 2011, by entry of the second parenting plan, the
parties agreed to discontinue this requirement. Page one of the 2011
parenting plan provides: This plan modifies an existing parenting plan
dated February 4th, 2004.
While the parties could have chosen to include a college fund
provision as they did in the 2004 plan, they did not. The 2011 plan is
unambiguous and does not incorporate or reference the 2004 plan, thus the
court finds that the 2011 plan superseded and vacated the prior 2004 plan,
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thus the father was only obligated to pay 32 percent of his net bonuses from
2004 until July of 2011.
Mother contends that the court erred in holding that Father’s obligation ended in 2011.
As noted by the trial court, the 2011 Plan states that it “modifies an existing
parenting plan dated February 4, 2004”; the wording in the 2004 Plan relative to the
college fund, quoted earlier in this opinion, is not contained in the 2011 Plan. We agree
with the court that the 2011 Plan supplanted the 2004 Plan, and eliminated Father’s
obligation. We also note in this regard that the Agreed Order adjusting child support
which was entered on August 17, 2015, required Mother to make contributions into the
account but was silent as to Father; this is further evidence that supports the
determination that Father’s obligation ended when the 2011 parenting plan was entered.
The holding is supported by the evidence and is not illogical or unreasonable; the court
did not err in so holding.
ii. Calculation of Father’s Contribution to and Reimbursement to the Fund
In a deposition given prior to the hearing, Father acknowledged that he withdrew
$20,000 from the college account without Mother’s permission; Mother sought recovery
of this amount. In its ruling, the court determined that the withdrawal was a breach of the
MDA as well as Father’s obligations under the 2004 Plan, and that the Mother should be
awarded a judgment of $16,770.23 against Father, for the benefit of the children. Mother
contends that the court erroneously credited Father with a $1,000 contribution she made
in February of 2016.
The court explained its computation in its ruling:
As the college fund falls under the child support - also falls under the
child support section of the plan, the court looks to the Tennessee Child
Support Guidelines for guidance. The Tennessee Child Support Guidelines
require that bonuses be included into determinations of gross income for
child support purposes. The guidelines further permit that variable incomes
such as bonuses, overtime, paid dividends, et cetera, may be averaged over
a reasonable time and added to the parent’s fixed salary or wages to
determine gross income. While the guidelines do not specify what
categories of compensation constitute a bonus, it does evidence an intent to
give additional compensation - that any additional compensation may be
added to the base for determination of gross income.
Mother’s counsel has cited Black’s Law Dictionary for the
suggestion that a bonus is a sum paid for services, and upon some
consideration, but in addition to or in excess of that which would ordinarily
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be given. The court agrees with this interpretation and largely adopts
mother’s figures of what father’s bonuses were.
The court finds that father’s management incentive bonus, his KPI
bonus, his stock option plans and contract bonuses are all bonuses for
purposes of the parties’ 2004 parenting plan MDA.
***
I’ve actually done a spreadsheet to indicate the gross bonuses that
I’m including when I’m determining the bonuses that we’re including, and
generally they’re all the bonuses from 2004 through 2011. And we have a
gross amount, and what I’ve done is I’ve resolved that and taken out the tax
liability and come up with the net bonus, and then I’ve taken that net bonus
and multiplied it by the 32 percent contribution that father is required to
make. And I’ll hand out a copy to counsel so they can see that. And as
counsel can see, it looks like that I have figured that the total contributions
that father should have made during this timeframe as I found that the
orders require would be twenty-thousand six-hundred and twenty-three
cents.
I’ve also reviewed exhibits that have been made of record regarding
father’s contributions and determined that father’s actual contributions pre-
2012 totaled – let’s see - $17,830, which left a deficit of $2770.23.
However, father made some voluntary contributions to the account in the
amount of $6000 in 2012, 2013 and 2016, which again leaves him with an
overpayment on his obligation, since those payments were voluntary, of
$3229.77.[3]
Mother argues that “[o]ne of the most egregious errors . . . is the Trial Court used
either her number on Exhibit 7, or Father’s numbers on Exhibit 17, to create the Trial
Court’s spreadsheet. . . Father had other income payments which perhaps could or
should have been included or, at minimum, considered.” Mother’s argument in this
regard is without merit. The $20,600.23 figure is derived from Exhibit 2, which is the
payroll record from Father’s employers for the period 1997 – 2014; upon our review of
the exhibit, the amount is an accurate calculation of 32 percent of the gross amount of
bonuses, net of taxes withheld, over that period.4
Exhibit 6, the spreadsheet prepared by Mother that shows the contributions both
3
The spreadsheet prepared by the court was attached as Exhibit B to the December 18 order.
4
We have not been cited to an exhibit by which to verify the amount of taxes withheld.
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parents made into the fund, shows that Father’s total contribution through 2011 was
$17,830; this is the figure used by the court in its calculation and in determining that
Father’s actual contributions were short $2,770.23 of what they should have been.
Exhibit 6 also showed that Father contributed $2,000 to the fund in 2012, 2013, and
2016, totaling $6,000; the figures support the finding that, after deducting the $2,770.23,
Father had overpaid his obligation by $3,229.77. The court deducted the overpayment
from the $20,000 that he withdrew from the college fund, and ordered Father to
reimburse the balance of $16,770.23 into the fund. Mother’s contention regarding the
2016 contribution she made being erroneously credited to Father is not supported by the
evidence.
In her brief on appeal, Mother argues that the evidence of the court’s error is
contained in Exhibit 4, a series of text messages between Mother and Father regarding
the college fund and the son’s truck; the exhibit includes a text message from Mother,
timestamped February 2, 2016, that shows a picture of a check for $1,000 from her to
Father. In her testimony regarding the exhibit, she states that she gave the check to him
for him to deposit into the fund. This testimony is consistent with the February 29, 2016
entry on Exhibit 6 that Mother contributed $1,000 and the line entry that “Father matched
Mothers 1K”. While Exhibit 4 is evidence that Mother contributed $1,000 on February 6,
2016, the check and Mother’s testimony does not conflict with the entry on Exhibit 6.
We review the court’s calculation of the amount of Father’s reimbursement under
the standard of review at Tennessee Rule of Appellate Procedure 13(d); the evidence
does not preponderate against the determination of the amount of Father’s reimbursement
to the fund, and the court did not abuse its discretion in ordering that it be reimbursed.
B. Child Support
On March 9, 2018, the court entered an agreed order “temporarily calculat[ing]”
Father’s support at $1,282.00 per month, based on Mother’s income of $4,333.33 per
month, Father’s income of $7,916.67, and Father having no parenting with the children.
In its oral ruling that was incorporated into the December 18 order, the court held that the
proof corroborated the income specified in the worksheet and adopted the worksheet and
child support obligation, making it the permanent order. The court denied Mother’s
request for an upward deviation of $950.00 for extracurricular activities for the children,
stating:
The child support guidelines provide that a presumptive child support order
under the child support worksheet is rebuttable and may be deviated
upwards to include special expenses for child rearing. However, this
decision to deviate is discretionary based on applicable law and relevant
facts.
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The mother contends that the children have roughly [$]1500 in
monthly expenses for extra-curricular activities, including counseling,
health care, church camp, choir, college prep expenses. The court expressly
notes and finds that there was no proof of these expenses introduced at trial.
Further, the father presently carries and maintains health insurance
on the children at his cost.
While Mother asserts that the court abused its discretion when it denied her
request for an upward deviation, she has not cited to evidence to support the argument.
We have reviewed the record and have not found any proof of the children’s
extracurricular activities and corresponding expenses. The court applied the correct legal
standard when it followed the Child Support Guidelines and set Father’s support
obligation, and it appropriately declined to grant an upward deviation when Mother did
not provide proof of the expenses.
C. Findings of Fact and Conclusions of Law
Mother asserts that the court erred when it failed to make sufficient findings of
fact and conclusions of law; while she does not provide further argument, she asks this
court to “please read the Order and advise if it meets the legal standard. Mother’s limited
understanding is that a court speaks through written orders.”
Tennessee Rule of Civil Procedure 52.01 requires trial courts in non-jury cases to
“find the facts specially and . . . state separately its conclusions of law.” “While there is
no bright-line test by which to assess the sufficiency of the trial court’s factual findings,
the general rule is that ‘the findings of fact must include as much of the subsidiary facts
as is necessary to disclose to the reviewing court the steps by which the trial court
reached its ultimate conclusion on each factual issue.’” In re Estate of Oakley, No.
M2014-00341-COA-R3-CV, 2015 WL 572747, at *10 (Tenn. Ct. App. Feb. 10, 2015)
(quoting Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013)).
Upon our review of the court’s December order and the transcript of its oral
ruling, which was incorporated into the order, we conclude that the court fully explained
the factual basis for its decisions as well as the legal standard that guided the assessment
of the evidence provided. The court made factual findings from the bench and
incorporated those findings into its ruling. In ruling on when Father’s obligation to
contribute to the college fund ended, the court explained that it would make its
determination based on “generally applicable contract law” and proceeded to review the
language of the 2011 parenting plan as evidence of the parties’ intent. With respect to the
calculation of Father’s contribution, the court noted that it “had reviewed exhibits that
have been made of record regarding Father’s contributions,” and proceeded to create a
spreadsheet of the figures used in the calculation. Regarding the dispute over the truck,
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the court discussed the arguments presented and explained the applicable law and held
that “the court [was] not convinced and the mother has not proven by a preponderance of
the evidence that there was an enforceable contract between either [the child] and the
father as to the truck.” In all respects, the court provided sufficient factual findings and
legal analysis to demonstrate the manner by which it reached its conclusions. Mother’s
assertions to the contrary are without merit.
D. Rule 60 Hearing
Mother alleges that the court erred in denying her “Motion to Request Evidentiary
Hearing Due to Fraud Under Rule 60.02”, in which she moved the court “to investigate
the fraud perpetrated against Mother, Children, and the court.” In the motion, Mother
alleges that “Father’s attorney blatantly misrepresented [her] position and relevant facts
before this court with false statements in [the] May and July 2018 hearings” and
addresses those instances that she believes demonstrated that “Father failed to disclose all
earnings and income at the Temporary Child Support Hearing on March 5, 2018.”
The court entered an order on February 8, 2019, and held that “considering
Mother’s motion filed as pursuant to Rule 60…[and] Rule 59, it is premature” because
the “order in this matter was entered on December 18, 2018…and Mother’s motion was
filed on December 12.” Thus, the court considered the motion as a Rule 59 motion to
alter or amend the judgment. The court found that “Mother [was] requesting to relitigate
matters that have already been adjudicated” and denied the motion.
Motions pursuant to Tennessee Rule of Civil Procedure 59.04 may be granted (1)
when the controlling law changes before a judgment becomes final, (2) when previously
unavailable evidence becomes available, or (3) when, for sui generis reasons, a judgment
should be amended to correct a clear error of law or to prevent injustice. They should
not, however, be granted if they are simply seeking to relitigate matters that have already
been adjudicated. Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998).
In the November ruling, the court resolved the issues regarding the income that
was to be included in the determination of child support, which consisted of bonuses and
other income, and the issue of whether Father’s obligation to the college fund continued
after the entry of the 2011 parenting plan. The statements set forth in Mother’s motion
are related to the issues that had previously been litigated, and Mother did not identify
any evidence that was not available at time of trial, cite to a change in controlling law, or
show that the court committed a clear error of law. Thus, the court correctly held that
Mother’s motion was an attempt by Mother to relitigate matters that had been resolved at
trial and did not err in its ruling on this motion.
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E. Attorney’s Fees
Citing to the provision of the MDA stating that “[i]n the event either party has to
petition the Court for enforcement of any of the provisions in this Agreement, then the
party at fault shall be responsible for reasonable attorney fees, expenses and Court costs
in the enforcement of the same,” Mother and Father argue that the trial court erred in
denying each their attorney’s fees.
The court stated in its ruling that “it appears to the court that…both parties have
prevailed in some portion of their claim against the other. It also appears that both
parties…[make] sufficient incomes…to pay their own attorney’s fees.” Neither party
cites to evidence that is contrary to the holding or argues that the court applied an
incorrect legal standard. As the court noted, each party prevailed on a portion of their
claims, and the record supports the finding that each had sufficient income to pay their
counsel. The decision to award fees in a case such as this is a discretionary one, see
Tennessee Code Annotated section 36-5-103(c) and, upon our review of the record, we
do not conclude that the court abused its discretion in not awarding fees to either party.5
Father also asserts that Mother’s appeal is frivolous and he should be awarded
damages pursuant to Tennessee Code Annotated section 27-1-122. This court is
authorized to award just damages against the appellant if it determines the appeal is
frivolous or that it was taken solely for delay. Tenn. Code Ann. section 27-1-122. The
statute, however, is to be interpreted and applied strictly to avoid discouraging legitimate
appeals. Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2004); see Davis v.
Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977) (discussing the predecessor of Tenn.
Code Ann. § 27-1-122). A frivolous appeal is one that is devoid of merit or has no
reasonable chance of success. Wakefield, 54 S.W.3d at 304. We find that Mother’s
appeal is not frivolous and decline to award Father his fees on appeal.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court in all respects.
RICHARD H. DINKINS, JUDGE
5
Mother also articulates the following issue: “Will the Court of Appeals award Mother costs for
transcripts, court costs, and other reasonable fees totaling $7,220 to date for this appeal…?” This request
is properly addressed to the trial court. See Tennessee Rule of Civil Procedure 54.04.
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