### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE March 27, 2001 Sessi

on

KRISTIN B. HUNTLEY v. WILLIAM SIDN EY HUNTLEY
Appeal from the Circuit Court for Hamilton County No. 94-DR-2179 W. Neil Thomas, III, Judge

FILED JUNE 14, 2001

No. E2000-01718-COA-R3-CV

In this child support mod if ication action, the Trial Court held that a significant variance existed betweenWilliam Sidney Huntley’s (“Defendant”) chil d support obligation set by the parties’ Marital Dissolution Agreement (“ MDA”) and the amo

unt m andated by the Child Support Guidelines (“Guidelines”). The Trial Court or dered an incre

ase in child support consistent

with the Guideline

s. Because the Guidelines’ f

lat percentag

e amount of child su

pport totaled appr

oximately $6,600 per month, the Trial Court ordered it be divided between child support payments of $3,100 andpayments to a non-educational trust (“Trust”) in the amount of $3,500 . Defendant app eals and primaril

y contends that his child supportobligation should not be increased to the Guid elines’ fla t percentage amount because that amount exceeds a reasonable amount of child support and because

the MDA controlshis child support obl ig ation despite any increases in his income. Kristin B. Huntley (“Plaintiff”) a

lso raises issues on

appeal, primari

ly regar ding the Trust. We

affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded.

D. M ICHAEL S WINEY , J., delivered the op inion of the court,

in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

Joh n P. Konvalinka and Mat hew D. Brownfield, Chattanooga, Tennessee, for the Appellant, William Sid ney H unt ley.

Gle nna M. R ame r, C hat tan ooga , Te nne sse e, fo r th e Ap pel lee , Kr ist in B . Hu ntl ey.

OPINION1 Although P laintiff in her Complaint used the term “substanti al variance,” theterm used in Tenn. Code Ann. § 36-5-1 01(a)(1 ) is “significant varian ce.”

2 Defendant

also count

er-cla imed for cu stody of

the Chil d, citing Plaintiff’s move to the stat e of Georgia as

a violation of the MDA. Before trial, however, the parties resolved the custody matter, and the Trial Court accordin gly dismi ssed t

his cl aim.
-2- Background

These parties were ma

rried in 1983 and h

ave one child

(“Child”) born in 1987. The parties were divorced in 1995. The MDA was incorporated into the court’s final order. The MDA providedthat Defendant was to pay “support and maintenance of the

Child [in] the sum of $1,440.00 per month and the cost of tuition at a mutually agreed upon primary

or secondary private institution.

. . .” Furt her, the MDA ord ered tha t De fend ant was to p ay al imo ny in solido to Pl ain tiff in the amount of $5,000 per month for a period of five years with the alimony being reduced to

$2,000 per month on April 15, 2000 and continuing for another five-year period.

In 1998, Plaintiff filed a Complaint to Modi fyin which she soug ht an increase in child support due to an in

crease in Defe

ndant’s income an

d the “substantial

varia nce” b etween Defendant’s child support oblig ation and the oblig

ation set by t

he Chil d Supp ort Guidelines (“Guidelines”). 1 Defendant, in his Answer, conten ded that the $1,440 per month in child support plus the cost

of the Child’s priva

te school tuition, he

alth care costs and other expenses exceeded the Guidelines’ amount. Defenda nt also contended that Plaintiff was wasting assets of three custodial accounts. 2
Defendant, a stockbroker with Merrill Lynch , is a participant in a deferred compensation plan, the Fin a ncial Consultant Ca

pital Accumulatio

n Award Plan (“F

CCAAP”), in which Merrill Lynch sets a reserve of 2% of Defendant’s gross production for each ye ar. The cash value of that 2% is conve rte d into Me rrill Lynch common stock on the last fiscal day of the plan year. After ten years, De fe ndant becomes 100

% vested in the aw

ard, and the awa

rd is paid in equivalent

shares of commonstock or cash, depending upon the award’s value on the vesting date. The award

is recorded as income on

Defendant’s W-2 in the year Defendant rece ives the FCCAAP award.

At

the time the partie

s negotiated the

MDA in 1995, Plaintiff’s CPA

expert witness estimated Defendant’s fu

ture income, incl

uding the forthc

oming FCCAAP awa

rds. Plaintiff’s CPA
was nearly 100% accurate in his projected earnings for Defendant. The record on appeal shows that at the trial of this matter, proof regarding Defendant’s income from his FCCAAP awards for 1998 and 1999 and anticipated FCCAAP award for 2000 was presented.

The parties tried this matter in February and March 2000. The Trial Court

issued a Memorandum

Opinion in May 2000, and held that an increase in Defendant’s child support obligation was warranted bec ause a significant variance existed between the Guidelines and Defendant’s child support obligation under the MDA. Because Defendant’s income for 1998, 19993 Although not specifically provided in t he Trial Court’s M emorand um Opin ion, the Tria l Court app arently

prorated t

he FCCAAP income for a period of

59 months,beginni

ng in Jun

e 1995 and endin

g in April

2000.

4 We refer to 21% of Defen dant’s net aver age monthl

y income an

d the amount

s the Tri al Court or

dered for child support and the T rust in round numbers.
-3- andanticipated income for 2000 fluctuated due to his FCCAAP earnings, t he Trial Cou rt, in its Memorandum

Opinion, prorated

the FCCAAP income from the date of entry of the MDA in 1995 andadded the prorated amount to Defendant’s gross income from other sources. 3 The Trial Court then calculated Defendant’s net average income for the y ears 1998, 1999, and 2000 at $379,440.70. The Trial Court

determined that Defendant’s child support obligation, according to the Guidelines, was 21% of Defendant’s net average monthly inc ome, or approximately $6,600.

In determining whether

a downward deviation from the Guidelines was warranted, the Trial Court, in its Memorandum Opinion, applied Tenn. Comp. R. & Regs., ch. 1240-2-4-.04(3), andconsidered the b

est interest of the

Child and th

e circumstances of the parties. In light of Plaintiff’s monthly expenses and the reduction in alimon y from $5, 000 per month to $2,000 per month starting in

April 2000, the Trial Court hel d that Defendant

’s child support obl

igation should increase to $3,100 per month to afford the Child the same standardof living that he would have enjoyed had his parents not divorced.

As to the remaining $3,500, the Trial Court ordered that a Trust be established for the benefit of the Child to “be used for enhancing [the Child’s] athletic skills, for extraamenities, for post-graduate

education and fo

r other opportunit

ies to begin a lucrative career” until the Child turns age 25. 4 The Trial Court found that a trust fund restricted solely for education was not necessary

in this instance becau

se sufficient funds already were set aside for that purpose. Defendant was ordered to make monthly

payments to t

he Trust in the amount of $3,500 until the Child turns age 18. The Trial Court further ordered that any funds remaining in the Trust when the Child turns age 25 would revert to Defen

dant.

In response

to Defendant’s contention that he was paying the amount set forth in the Guidelines’ Chart, $1,440 per month in support plus private school tuition and other expenses, the T rial Cou rt held that the MDA did not state clea

rly that it co

mplied with the Guide

lines. Acco rdi ngly, the Trial Court held that Defendant’s obligation to pa y tuition was a contractual agreement

under the MDA, and

that the tuition amount was not a child support obligation subject to modification.

After the Trial Court issu

ed its Memorandum Opinion, Defendant filed a Motion to Recuse and to Strike or Otherwise Set Aside Memorandum Opinion and Order. As grounds for his motion, Defendant contended that the Trial Judge’s role as a witness in other, non-related litigation (“other litigation”) impacted

the Trial Judge’s decisionin this matter. Def endant’s attorne

y crossex aminedthe Trial Judge fo r a period of two d

ays during

the trial in the othe

r litigatio n in May 2000. The Trial Judge re ndered his decision in this matter five (5) days later, on May 10, 2000. Defendant

further contends that since the trial in this case was concluded on March 3, 2000, he did-4-

notanticipate that

the Trial Judge’s role as a witness in the other litigation would have any bearing on his decision. The Trial Judge did not recuse himself.

Plaintiff filed a post-trial Motion for Attorney’s Fees and a Motion to Alter or Amend Final Judgment, while Defendant filed a Motion to Stay Enforcement of Judgment Pending Appeal. The Trial Cour t entered an Order addres sing these Mo tions, awarding a portion of Plaintiff’s attorn eys’ fees in the amount of $20,000; ordering that Defendant’s increased child support obligation should not apply retroactively to the date that Plaintiff’s Complaint to Modify was filed butwould begin on April 15, 2000; and ordering that Defendant’s obligations to pay $3,500 per month to the Trust and Plaintiff’s attorneys’ fees were stay ed pending appeal.
Defendant appe

als. Plaintiff rai

ses additional issue

s. We affirm.

Discussion

On appeal and although not stated exactly as such, Defendant contends that the Trial Courterred in increa

sing child suppor

t to 21% of Defend

ant’s net income,

esta blishing t he Trust, andawarding attorneys’ fees to Plaintiff. Defendant a rgues that the p arties’ MDA controls the amount of his child sup port obligation and precludes any modification of child support. Further, Defendant

asserts that the Trial Court should have granted his motion to recuse. D efendant also contends that the Trial Cour t erred in finding that Plaintiff had not dissipated funds from the Child’s custodial accounts and that Defendant lacked standing to raise this issue. Finally, Defendant argues that the Trial Court committed error on several evidentiary rulings.

Although not stated exactly as such, Plaintiff raises the following issues on appeal: 1) the Trial Court

erred in its calculation o

f Defendant’s n

et income for pur

poses of modify

ing child support; 2) the Trial Court e rred in establishing the

Trust and in order

ing that a portion of the chil

d support award be applied to the Trust, but if no error was committed in ordering the Trust, the corpus should not revert to Def

endant; 3) the Tri

al Court erroneo

usly failed

to order the incr

ease in child support to begin on the date Plaintiff’s Complaintwas filed in 1998; and 4) although the Trial Court correctly awarded attorneys’ fees and expenses to Plaintiff

, the Trial Court sho

uld have awarde

d all of the fees incurred by Plaintiff for the trial. Plaintiff also requests her attorneys’ fees incurred on appeal.

With respect to the Trial Court’s findings of fact, our re view is de novo upon the record, a c companied by

a presumption of c

orrectness unle

ss the preponder

ance of the evid

ence is otherwise. Tenn. Rule App. P.13(d); Alexander v. Inman, 974 S.W.2d 689, 692 (Tenn. 1998). The Trial Court’s conclusions of law aresubject to de novo review with no pre sumption of corre

ctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

Although the parties raise nume rous issues on appe

al, the main questio

n that must be resolved is whet

her the Trial Cour

t correctly held that Defend

ant’s child suppor

t obligation should-5-

increase. In Tennessee, child support is gove rned by sta

tute, Tenn. Code Ann. § 36-5-101(a)(1), which provides as

follows:

In cases involving child support, upon application of either party, the court shall decree an incr

ease o r decrease of such allowance when there is found to be a sig nificant varian

ce, as defined in

the child
su pport guidelines . . . between the guidelines and the amount of support currently ordered. . . .
In discussing the

application of the Guidelines, Tenn. CodeAnn. § 36-5-101(e)(1), provides, in pertine nt part, th e followin g:

the court shall apply as a reb uttable presumption the child support guidelines . . . . If the court finds that evidence is sufficient to rebut this presumption, the c

ourt shall ma

k e a written finding that the applic a tion of the child support guidelines would be unjust or inappropriate

in th at par ticular case, in order to provide f

or the best interest of the child(ren

) or the equity

between the parties. Fi ndings that the application of

the guidelines w

ould be unjust

or inappropriate shallstate the amount of

support that would have been ordered under the child support guidelines and

a justification for the variance from the guidelines.

See also Tenn. Comp. R. & Regs., ch. 1240-2-4-.01 (2)-(3); ch. 1240-2-4-.02(7).

The Guidelines set the “minimum base” of a child support obligation which is a “flat percentage of the obligor’s net income . . . depending on the number of children .

. . .” Tenn. Comp. R. & Regs., ch. 1240-2-4-.02 (5) & .03(2); Barnett v. Barnett , 27 S.W.3d 904, 906-7 (Tenn. 2000). Defendant’s child support obligation under the Guidelines is 21% of his net income since one child is involved. Tenn. Comp. R. & Regs., ch. 1240-2-4-.03(5). The income of Plaintiff, as the custodial parent, “ should not be consid ered in the calc

ulation of or as a r

eason for devia

tion from t

h e [G]uidelines in determining the support award amount . . .,” but the Guideli nes presume that “

at least
an equal percentage of [the obligee’s] net income” is used for the support

of the child. Tenn. Comp. R. & Regs., ch. 1 240-2-4-.03(2) ; see also Barnett v. Barnett , 27 S.W.3d at 907.

Since the determination

of the obligor pa

rent’s income is “

the most i mportant elemen t of proof” when se

tting or modify

ing child support,

we first will

examine the Trial Court’s finding regarding Defendant’s income. Turner v. Turner , 919 S.W.2d 340, 344 (T enn. Ct. App. 1995). The Guidelines give

a broad definitio

n of gross income

, which is in pertine

nt part, as follows :
all income from any source (before taxes and other deductions), whether earned or unearned, and in cludes but is not limited to, the following: wages, salaries, commissions, bonuses . . . .5 We recognize the poten tial f or bad-fai

th negot iation s alth

ough ther

e is no i ndicati on in the record on

appeal that it occurred in this case. Plai ntiff may have received anot her asset in exchange for Defendant’s keeping his entire F CCAAP inco me, but as discussed, a minor child’s ri ght to child support may not be waived by a parent during negotiations o f a MD A. See Norton v. Norton , 2000 WL 52819, at * 4.
-6- Tenn. Comp. R. & Regs., ch. 1240-2-4-.03(3)(a). Moreover, the Gu idelines direct th

at “[v]ariable income such as commissions, bonuses, overtime pay, dividends, etc., should be averaged and added to the obligor’s fixed salary.” Tenn. Comp. R. & Regs., ch. 1240-2-4-.03(3)( b).
As discussed, the Trial Court partially based its award of child support upon a prorata amount of income received by Defendant fr om his FCCAAP awards for the years 1998, 1999 and2000. The Trial Court then averaged Defendant’s net income for those three years to arrive at the figure upon whic

h it based the child support award. Plaintiff contends that the Trial Cour t should nothave used the pro

-rata amo unt but instead, should have based the child support increase upon the entire amount of FCCAAP income received by Defendant. Def endant , on th e other hand, contends that the FCCAAP income should not have been calculated into his income at all because he was awarded this

income as an asset by the parties’ MDA. Defendant points out that while the parties were negotiat

ing the MDA in 1995 , Plaintiff’s CPA expe rt witness estim

ated Def endant’s future FCCAAP inc

ome and was near

ly 100% acc

urate in his predic tions. Ci ting Seal v. Seal , 802 S.W.2d 617, 620 (Tenn. Ct. App. 199 0), Defendant c

ontends that the inc

rease in his

income due to the FCCAAP awards sho uld not be a basi s for an increase in child support since it was not unanticipated or unforeseen and therefore, not a material and substantial chang

e in circumstanc

es.

We hold that the Trial Cou rt did not err in using a pro-rata share of Defendant’s FCCAAP income and Defendant’s average net income for 1998-2000 as the bases for increasing Defendant’s child support oblig ation. As discusse

d, the Guidelin

es provide a broad definition of income that inclu des “income from any source . . . [inclu ding] commissions, bonuses . . . .” Tenn. Comp. R. & Regs., ch. 1240-2-4-.03(3)(a). From the proof contained in the record, it appea rs that the FCCAAP is a deferred compensation program and that the FCCAAP money received by Defendant shows as income on his W-2 in the year that it is received.

Add iti ona lly, de spite Defendant’s argument, the correct inquiry in a c hild support modification matter is not whether there is a material change of circumstances b

ut whether there

is
a “significant variance” between the cu rrent o bligation and the

obligation set by

the Guidelines. Turner v. Turner , 919 S.W.2d at 343 (citing Tenn. Code Ann. § 36-5-101(a)(1)). Moreover, although Defendant corr

ectly points

out that the partie

s negotiated an

d agreed to th

e MDA which awarded the FCCAAP to Defendant, “as a general rule, a custodial parent may not waive her minor child’s right of support.” Norton v. Norton , No. W1999-02176-COA-R3-CV, 2000 WL 52819, at
* 4 (Tenn. Ct. App. Jan.

10, 2000) (cita

tions omitte d). 5 While this fight is between Plaintiff and Defendant,

what must be remembered is that the Child is the ultimate beneficiary of the child support payments made by Defenda nt. See Rutledge v. B

arrett , 802 S.W. 2d 604, 607 (Tenn. 1991).-7- Add iti ona lly, we reject Plaintiff’ s argument that the Trial Court erred in prorating Defendant’s FCCAAP income and averaging his net income instead of basing the child support award on the entire amou

nt of FCCA

AP incom e received by Defendant during ea ch year. The Guidelines direct that “[v]ar iable income such

as commissions, bonu

ses . . . should be averaged and addedto the obligor’s fixed salary.” Tenn. Comp. R. & Regs., ch. 1 240-2-4-.03 (3) (b); see also Alexand er

v. Alexander , 34 S.W.3d 456, 460 (Tenn. Ct. App. 2000) (applying the Guide lines ’ directive to average the obligor’s income over a four-year period). Moreover, Tenn. Code Ann. § 36-5-101(a)(2

)(A), provides th

at courts are to

“[fix] some definite amount . . .” when setting child support. This Courthas held that “‘a definite obligation provides a predictable amount of support for the dependent children and enables the [obligor] to plan to pay a known amount each month.’” Stacey v. Stacey , No. 02A01-9802-CV-00050, 1 999 WL 10 97975, at * 5 (Tenn. Ct. App. Oct. 6, 1999) (citations omitted). The proof in the record shows that the FCCAAP income varied by approximately

50% between the y

ears 1998 and 199

9. Additionally

, although the CPA a

ccurately estimated Defendant’s FCCAAP earnings, the value of the FCCAAP award is based on the market value on the date

Defendant beco

mes 100% vested. A

ccordingly

, we hold that the Tr

ial Court did not err in its calculation of Defendant’s net income.

We next review the Tr

ial Court’s deter

mination that a sig

nif ic ant variance exis

ts betweenthe Guidelines and Defendant’ s child support obligation under the MDA. See Tenn. Code Ann. § 36-5-101(a)(1). The Guidelines provide that “a significant var

iance shall be at

least 15% if the current support i

s . . . [$100.00] or gr

eater per month

. . . .” Tenn. Comp. R. & Regs., ch. 1240-2- 4-.02(3). Clearly, a s

ignificant var

iance exis ted in this matter since Defendant’s child support obligation under the MDA was $1,440 per month, whi le the Guidelines’ amount totals approximatel

y $6,600. See id.

Our next inquiry concerns Defendant’s argument that the Trial Court erred in finding that the child supp ort obli gation should be m odified to match the

Guidelines’ flat

percentage a

mount. Defendant

contends that the Child’s needs were being met by the child support set by the MDA and that Pla intiff is seeking to off-set her reduction in alimony through an incre ase in child support

. The Guideline s contempl ate a possi ble downwar d deviatio n from the fl at percentage amount where the

obligor’s net mon

thly income e

xceeds $10,000, pr

oviding as follow

s:
The court must order c hild support based u

pon the appropria

te percentage to the custodial parent up to a net $10,000 per month of the obligor’s income. When the net income o f the obligor exceeds $10, 000 per month, the court may consider a downward deviation from the guidelines if the ob ligo r demonstr ates that t he percentage appliedto the excess of the net i ncome abov e $10,000 a month exceeds a reasonable amount of c h ild support based up on the best interest of the child and the circ um stances of the parties. The court mayreq uire that sums paid above the percentage applied to the net-8- income above $10,000 be placed in an educational or other trust fund for the benefit of the child.
Tenn. Comp. R. & Regs., ch. 1240-2-4-.04(3).

Based upon the facts

and circumstances presented by the record on appe al, we find
no error in the Trial Court’s application of the Guidelines’ f lat percenta

ge amount. Although we realize that our review o

f the Trial Court’ s conclusions of la w is de novo with no presump tion of correctness,

we also recogn

ize that the Trial Co

urt has some limited

discretion in determining the amount of child support where the obligor’s income excee ds $10,0 00 per month. Ganzevoort v. Russell, 949 S.W.2d at 296; Smith v. Smith , 984 S.W.2d 606, 609 (Tenn. Ct. App. 1997) (citing Jones v. Jones , 930 S.W.2d 541, 544 (Tenn. 1996)); Tenn. Comp. R. & Regs., ch. 1240-2-4-.04(3). This limited discretion arises from the fact that the presumption that the Gui d elines apply is rebuttable

. Jones v. Jones , 930 S.W.2d at 544.

The Trial Court found that Defendant, as the obligor, did not carry his burden of showing that 21% exceeded a reasonable a

mount of child

support

. See Tenn. Comp. R. & Regs., ch. 1240-2-4-.04(3). Defendant’s net average monthly income is approximately $31,620, a n amount which certainly places Defendant within the income bracket conte mplated by Tenn. Comp. R. & Regs., ch. 1240-2-4-.04(3), for a possible downward deviation. The Trial Courtfound that with the MDA’s chi ld s upp ort obl igat ion , De fend ant has near ly $ 23,000 per month in net income after expenses, while Plaintiff, the custodial parent, sustains a monthly deficit after expenses. On appeal, Defendant cont ends that Plaintiff’s testimony regarding her expenses was not credible. The Trial Court’s determinations re garding credibility, however, are accorded defe rence by this Court. See Dav is v. Liberty Mutual Ins. Co. , 38 S.W.3d 560, 563 (Tenn. 2001). The proof in the record o n appeal does no t preponderate against the Trial Court’s finding regarding this matter, a nd,
ac cord ingl y, Defendant’s position is not well-taken. See Tenn. Rule App. P.13(d); Alex ander v

. Inman, 974 S.W.2d at 692.

We do not disagree with Defendant that the proof in the record establishes that the Child’s needs arebeing met, and we observe that the Child has many amenities that other children do not have. We agr

ee, however, wi

th the Trial Court th

at in order

to ensure the Child t

he same standardof living that he would have enjoyed ha d his par ents not divorced, Defendant’s ch

ild support obligation needs to be increased. This finding is supported by the Guidelines’ g oal “ [t]o
ensure that . . . the economic impact on the child(ren) is minimized and to the extent that either parent enjoys a hig

her standard of l

iving, the child(

ren) share(s)

in that hig

he r standard.” Tenn. Comp. R. & Re g s., ch. 1240-2-4- .02(2)(e). More over, while Defe

ndant’s child suppo

rt payment w

ill go “directly or indirectly, to the custodial parent . . . the purpose of the payment is to fulfill the noncustodial parent’s obliga

tion to contribute

to the child’s support.” Rutledge v. Barrett , 802 S.W.2d at 607 (alterations in original). Accordingly , we affirm the Tr

ial Court’s finding

that there should be no downward deviation from the Guidelines’ flat percentage amount of child support.-9- We also affirm the Trial

Court’s decision to

split the Guidelines’ obligation of 21% between child sup

port paymen

ts inthe amount of $3,100 andpayments to the Trust in the amount of $3,500. Both parties have raised issues on appeal regarding the Trial Court’s establishment of the Trust. Plaintiff contend

s that t he entire 2 1% should be paid as child support, while Defendant essentially

argues that the establishment of the Trust for non-educational purposes shows that 21% of his netmonthly income exceeds a reasonable amount of child support. We agree that the duration andthe purpose of the Trust is atypical but also find that there is no prohibition against this type of Trust. When the obligor h as a net monthly

income in

excess of $10, 000, as Defendant does, the Guideli nes allow fu nds to be placed “in an educational or other trust fund for the benefit of the child.” Tenn. Comp. R. & Reg s., ch. 1240-2-4- .04(3) (emphasis added). In a

ddition, our Supreme Court, in applying the Guidelines, held that “[a]lthough child support payments may not extend beyond the child’s minority . . ., the benefits from such payments can.” Nash v. Mulle , 846 S.W.2d 803, 806 (Tenn. 1993).

Further, we reject Plaintiff’s argument that the Trial Court erred in ordering that any remaining funds in the Trust revert to Defendant. Th

is Court has held tha

t any remai

ning funds in an educational trust should revert to the parent who funded the trust, and we find no valid basis

to distinguish

this rule in its application to this Trust. Price v. Price , No. M1998-00840-COA-R3-CV, 2000 WL 192569, at * 9 (Tenn. Ct. App. Feb. 18, 2000).

Defendant,

nevertheless, in

sists that his

child support

obligation cannot be modified because the parties agreed to the amount of ch ild support payments in the MDA. Defendant contends that the MDA contr ols his child support oblig ation in spite of his

post-MDA increa

ses in income. The MDA provides that Defendant “shall pay . . . for the support and maintenance of the Child the sum of $1,440.00 per month and the cost of tuition . . . .” Th e proof in the record on appeal shows that the cost o f tuition for the Chil

d’s private

school is $578 per month, and Defendant argues that his entire child support oblig ation included the

tuition payme

nts for a total of $2,018 per month. Defendant argues that since his net income at

the time the MDA wa

s negotiated wa

s nearly $15,000 per month, the parties negotiated a downward

deviation from the Guidelines since 21% of that figure is approximately $3,100. Defendant further contends that since the MDA complies with the statutory language of Tenn. Code Ann. § 36-5-101(h) , the MDA should be upheld.

The MDA does not control Defendant’s current child support obligation because, as discussed, a significant va riance exists. See Tenn. Code Ann. § 36-5-1 01(a)(1). We als o agree with the Trial Court’s dete

rmination that the M

DA does not comply

withthe statutory language of Tenn. Code Ann. § 36-5-101(h), and “does not effectively deviate from the G uidelines . . . .” Dwight v. Dwight , 936 S.W.2d 945, 948 (T enn. Ct. App. 1996). More importantly , even though the

re was a downward

deviation, neither the MDA northe accompanying final decree provides “ that the application of [the Guidelines] would be unjust or inappropr

iate . . ., in order

to provide for the

best interest o f the [Child] or the equ ity between

the parties [. . .],” a

nd “the amount of su

pport tha t would have been ordered under the [Guidelines] and a justification for the variance . . . .” Tenn.6 The versio n of this particula r statute, Tenn . Code A nn. § 36-5-101(e)(1), t hat was in e

ffe ct when t he MDA was incorporated i

nto the fi nal decree in 1995 has n ot been amended since.
-10- Code Ann. § 36-5-101(e

)(1); see also Tenn. Comp. R. & Regs., ch. 1240-2-4-.01(3). 6 Therefore, we hold that in light of the s ignificant variance and the MDA’s statutory non-compliance , the MDA does not bar a modification of Defendant’s child support obligation.

In addition, we reje

ct Defendant’s

argument th

at hi s child support obligation includes private school tuition pay

ments. This Court ha

s specifically

held that school tuition expenses do not constitute child support under the Guidelines since the Guidelines contemplate “‘[ e ]xtraordinary educational expenses’” as justification f o r adding to the flat percentage child support obligation. Dwight v. Dwight , 936 S.W.2d at 950 (quoting Tenn. Comp. R. & Regs., ch. 1240-2-4-.04(1)(c)).

Our next inquiryconcerns when the increase in child support should begin. Plaintiff contends that th e Tr ial Court erred in failing to order

the increased c

hild support to beg

in retroactively

on the date in 1998 that she filed the Complaint to Modify. This Court has recognized that in child support modification cases, the “trial court has the discretion to order themodification effectiveas of the date of t he modification pe

tition, the date of t

he final hearing

, or any app

ropriate date in between.” Bjork v. Bjork , No. 01A01-9702-CV-00087, 1997 WL 653917, at * 8 ( Tenn. Ct. App. Oct. 22, 1997) (c itations o mi tted). We hold that the Trial Court’s decision that the modification in child support be effective beginning on April 15, 2000, instead of the date that the Complaint was filed, was not an ab use of discr etion. Accordingly, we affirm the Trial Court’s decision to apply the modification in child support beginning on April 15, 2000.

Our review now turns t

o Defendant’s claim that Plaintiff was dissipating funds from the Child’s custodial accounts. Defendant contends that the Trial Court erroneously found tha t Defendant

lacked standing to assert this claim and that the claim was not supported by the facts of the case. In his brief, Defendant does not cite to any controlling authority to support his contention that he has standing to assert such a cla im, and we h ave w e bee n un abl e to loc ate any s uch aut hor ity. More important ly, the eviden ce does not p reponderat e against th e Trial Cou rt’s findi ngs o f fact dispositive of this claim by Defendant. Therefore, whether or not Defendant has standingto raise this issue is immaterial as he loses on these facts. Defendant’s argument as to this issue is without merit.

Defendant further contend

s that the Trial Cour

t commit ted e rror regarding three evidentiary

rulings: 1) by

admitting into evid

ence two of Plaint

iff’s income and

expense statements for the year 2000 (“Income and E xpen se S tatements”); 2) by allowing Plaintiff and her former attorney to testify regarding matters which they claimed during their depositions were protected by attorney-client

privilege; and 3) by allowing the introduction of an exhibit (“Exhibit 70") created by Plaintiff’s CPA exper

t witness.-11- Whether evidence is admis sibleis a question within the trial court’s discretion. Otis
v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (T enn. 1992); Overstreet v. Shoney’s, Inc. , 4 S.W.3d 694, 702 (Tenn. Ct. App. 1999). Our Supreme Court has held:

When arriving at a de

terminati on to a dmit or exclude even that evidence which is consider ed relevant tria

l courts a

re ge nerally
ac cor deda wide degree of latitude and will only be overturned on appeal where there is a showing of abuse of discretion.
Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d at 442.

From our review of the record, and in light of the wide latitude given the Trial Court’s determination to admit or exclude evidence, Defendant has failed to show an abuse of discretion by the Trial Court. Therefore, we find no reversible

error by th

e Trial Court in its e

videntiary

rulings.

Defendant

also contends that

the Trial Court er

red in not granti

ng his motion to recuse, a moti on not filed until after the Trial Court issued its Memorandum Opinion. Defendant contends that the proximity of the Trial Judge’s testimony in the other litigation and the date of the issuance of the Memorandum Opinion in t his mat ter give s ri se t o th e app eara nce o f im pro pri ety. Defendant,

however, failed to file his Motion to Recuse un ti l after the Trial Court issued the Memorandum

Opinion. This Court h

as held that motions to recuse “must be filed promptly after the facts forming the basis for the motion become known . . . and the failure to see

k recusal in a time

ly
manner results in a waiver of a party’s right to question a judge’ s impartiality.” Davis v. State Dep t. of Employment Sec. , 23 S.W.3d 304, 313 (T enn. Ct. App. 1999) (citat ions omitted). This Co

urt in Davis was faced with a

similar set of facts where the plaintiff filed a petition to rehear after receiving
an opinion from this Court authored by Judge Koch. Id. at 312. In his petition, the plaintiff in Davis contended

that Judge Koch was not impartial beca use of his involveme

nt as a named defendan

t in another lawsuit stemm ing from his position as Tennessee’s Commissioner of Personnel. Id. In findin g that the plaintiff failed to raise his objection timely to Judge Koch’s participation on t h e panel, this Court held:

Tenn. R. App. P. 36(a) provides that parties who are responsible for
an error or who fail to take reasonably available steps to prevent an error, are not entitledto appellate relief based on the error. As other courts rev iewing similar circumstances have held: “One cannot know of [allegedly] improper

judicial conduct, gamble

on a favorable r

esult by remaining silent as to that conduct, and then complain that he or she guessed wrong and does not like the outcome.”

Id. at 3 13 (quo ting State v. Lotter , 255 Neb. 456, 586 N.W.2d 591, 610 (1998) (alteration in original)).7 Plaintiff, howeve r, in her Rep ly to Counte rclaim, did request attorneys’ fees incurred in defending a gainst

the Coun

tercl aim.
-12- In this matter, Defendant and his attorney knew, prior to the trial in this case, that the Trial Judge likely

would be a witness i

n the other litiga

tion where Defe

ndant’s attorney

would possibly cross- exami ne him. Prior to tria l, and certainly

prior to the Trial C

ourt’s issuance o

f its Memorandum

Opinion, Defenda

nt easily co

uld have filed a mo

tion to recuse

but instead waited until after the Trial Court’s decision was issued. As in Davis , a permissible conclusion to be drawn is that Defendant

and his attorney “purposely dec ided to use the impartiality issue as their ‘ace-in-the-hole’ in the event that they lost . . . .” Id. Accordingly , we hold that Defendant faile

d to raise timely questions regarding the Trial Judge’s impartiality and theref ore, waived this issue. See id.
Finally , both parties raise issues on appeal regarding the Trial Court’s grant of attorneys’ fees and expenses in the amount of $20 ,00 00 to Plaintiff. Defendant contends that the Trial Court should not have awarded any

atto rneys’ fe

es to Plaintiff. On the other hand, Plaintiff argues that the Trial Court did not award an amount sufficient to cover all of her attorneys’ fees and expenses which total $36,466 at the trial level.

In child support modification cases, Tenn. Code Ann. § 36-5-103(c) , gives trial cou rts the power to

award “reason

able attorney

fees . . . .” The a

ward of attorne

ys’ fees is within the trial court’s discretion. Richardson v. Richardson , 969 S.W.2d 931, 936 (Tenn. Ct. App. 1997). Unless it “‘affirmatively appears that the trial court’s decision was against logic or reasoning, and caused
an injustice or injury

to the party complaining,’” the trial court’s exercise of discretion will not be reversed on appeal. Marcus v. Marcus , 993 S.W.2d 596, 601 (T enn. 1999). We find

no abuse of discretion by the Trial Court with respect to this issue.

In disputing the award of attorneys’ fe es to Plaintiff, Defendant points out that Plaintiff didnot request attorneys’ fees in her pleadings until she filed a post-trial Motion to Alter
or Amend Final Judgme

nt. 7 In child support cases, a party’s failure to include a prayer for

attorneys’ fees in his complaint is not fatal to such a request. Deas v. Deas , 774 S.W.2d 167, 169 (Tenn. 1989). Our Supreme Court has recognized that a child’s right to support and maintenance is “‘inseparable’” from his right to r

easonable attor

neys’ fee s. Id. (quoting Graham v. Graham , 140 Tenn. 328, 204 S.W. 987, 989 (1918)).

Plaintiff has incurred further attorneys’ fees beca use Defendant appealed the Trial Court’s decision increa

sing the amo

unt of child support. This Court has recognized that “[t]he allowance of attorney ’s fees for [an a ppeal] is for the be

nefit of the child,

and the custodial s

pouse should not have to bear the expense incurred on the child’s behalf.” Ragan v. Ragan , 858 S.W.2d 332, 334 (Tenn. Ct. App. 1993) (citations omi tte d). Acco rdi ngly, we grant Plaintif f her reasonab

le attorneys’ fees incurred on appeal. On remand, the Tri al C ourt shall determine the amount of Plaintiff’s reas

onable attorney

s’ fees incurre

d in this appeal.-13- Conclusion

The judgment of the Trial Court is affirmed and this cause is remanded to the Trial Courtfor such further

proceedings a

s may be req

uired, if any

, consistent with thi

s Opinion, and for collection of the costs below. The costs on appeal are asse ssed equally against the Appe

llant, Wil lia m Si dne y Hun tle y, an d hi s su ret y, an d th e Ap pel lee , Kr ist in B . Hu ntl ey.

___________________________________ D. MICHAEL SWINEY, JUDGE