# FILED

June 09, 1997
Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT JACK SON

GLENDA JOAN COLLINS WHISENHUNT ) ) Plaintiff/Appellee ) Shelby Law No. 141612 ) vs. ) ) GORDON LEE WHISENHUNT, ) Appeal No. 02A01-9506-CV-00126 ) Defend ant/Appe

llant. )

APPEAL FROM THE CI RCUIT COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE
THE HONORABLE JAMES E. SWEARENGEN, JUDGE
For the Plaintiff/Appellee : For the Defendant/Appellant : Ja me s D . C au se y Robert A. Wampler Jean E . Mar

kowit z Memphis, Tennessee Memphis, Tennessee

AFFI RMED AS M ODIFIED

HOLL Y KIRBY L

IL LARD, JUDGE

CONCUR: DAVID R. FARMER, J.
PAU L G . SUMMERS, S P. J.OPINION

This is an appeal from a f inal divorce decree. Appellant Gordon L ee Whisenhunt (“Husband”) challenges, inter alia , the amounts awarded to Appellee Glenda Joan Collins Whisenhunt (“Wife”) for child support, alimony, ma rital debts, and attorneys’ f ees. We affirm as modified. Husband and Wife were married for twenty years. The

y have two

children together, one of whom reached the age of majority prior to the trial of this case. The remaining child was a minor at the time of the trial, and reached majority in May 1996. Wife

was approximately fifty-four years oldat the time of the tri al and had work ed outside the home for only a few weeks during the marriage. She suffers from severe osteoarthritis, which pre vents her from obt aining ou tside employ ment. During the marriage, she cared for the home, cooked and cle aned, and took care of their children. Husband was approximately fifty-three

years old a

t the time of the tri al a nd has workedfor Buc

key e Cellulos e, forme

rly Proctor &

Gamble Ce

llulose, f or over t wenty -two y

ears. By decree entered on Aug

ust 4, 1994, the trial court granted a divorce to Wife, citin g Husband’s inappropriate marital conduct. Based on his 1993 W-2 form, showing an incom e o f $49,480.56, the trial court ordered the Husband to pay $143.53 per week in child su pport for the remaining minor child, beginning on August 1, 1994. The 1993 W- 2 form inc luded ove rtime income. The trial court awarded Wife $350 per we ek in reh abilitativ e alimony , with pay ments beginning on August 1, 1994 and continuing until Husband r eaches the age of sixty -two. The trial court also awarded the marital home to Wife, making he r responsible for the remaining mortgage pay

ments. The court

then ordered Husband’s retirement acc ount, credit union
accoun t, and other accounts to be divided with Wife as marital property . T he trial court further ordered that Husband receive the first $10,000 out of these account s to compe nsate him f

or his equity in the house. The joint marital debts and Wife’s attorneys’ f ees and litigation expenses were also to be paid out of these accounts. The cou rt ordere d the rem aining f unds in the

accoun ts split be tw ee n H us ba nd an d W if e e qu al ly.1 The rec ord indic ates tha t these expenses inc lude some costs relating to

the part ies’ children; however, the majority of these expenses relate solely to Wife.
2 The record indicates that the attorney s’ fees and litigation expenses actually totaled $18,865; however, Wife previously paid $1,000 of the attorney s’ fees with a loan. Therefore, $1,000 will be deducted from t he total a mount of a

ttorney s’ fees owed, le aving $ 17,865 in attorneys’ f

ees, so as to prevent this amount from being counted twice. 2 In affidavits filed with t he court, Wife listed monthly expenses totaling $2158.96 1 and the marital debts totaling $13,163.87. In addition, the record indicate s that Wife’s attorneys’ f ees and litigation expenses totaled $17,865. 2 Su bs eq ue nt ly, the trial court entered a Qualified Domestic RelationsOrder ( “QDRO”) to implement

its ruling withrespect to Husband’s pro fit sha rin g ac cou nt wit h P roc to r & G amb le. In the QDRO, the court awarded Husband the first $10,000 in the ac count and then awarded Wife $43,200, apparently to c over the marital debts as well as her attorne ys’ fees an d litigat

ion expense s. The record reflects that

Proctor & Gamble is required to deduct twenty percent of Wife’s award for withholding taxes, w hich w ould leave her with a net sum of $34,560. The court then split the remaining funds equally . Husband appeals the trial court’s decision. Our review o f this cas e is de novo upon the record with a presumption of correctness of the findi ngs of fact by

the trial court. Absent error of law, the trial court’ s de cision will be affirmed, unless the evidence preponderates ag ainst the factual findings. Tenn. R. App. P. 13(d). No presumption of correctness attaches to the trial court’sconclusions of law. See Carvell v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995). On appeal, Husband argues that the judgment of the trial cour t, as set forth in the transcript of the pr oceedin gs, is ambiguous, unsu pported b y the evidence, and not accu rately reflected in the final decree

of divorc e and the

QDRO ente

red by the trial c o urt. In addition, he contends that the trial court er

red in inc luding hi s overtime pay as income f

or determining theamount of child support and alimony pay

ments. Husband also maintains that the alimony awa rd is excessive. The granting of the div orce itse

lf is not an

issue in thi s appeal
. Husband first seeks a review of the oral statements made by

the trial court, arguing that they
are inconsistent with the written final decree of d ivorce. Howe ver, it is well settled that a court “speaks only

through its w ritt en jud gm ents.” Sparkle Laundry & Cleaners, Inc. v. Kelton , 595 S.W.2d 88, 93 (Tenn. App. 1979). Consequently , the oral statements of the trial court are of no3

effect unless th ose oral statements are made a part of a written order. Id. ; Shelby v. Shelby , 696 S.W.2d 360, 361 (Tenn. App. 1985). Therefore, we are limited to reviewing the trial court’s written orders. In this case, the trial court ordere d Husband ’s profit sharing plan to be

divided w ith Wife so
as to pay off the ma

rital debts, aswell as he

r attorne ys’ fees and litigat

ion expense s. As noted above, the record indicate s that the j oint marit al debts totaled $13 ,163.87, w hile Wife’s at

torney s’ fees and litigation expenses totaled $17,865, re sulting in a net sum of $31,028.87. In the QDRO, the trial court awarded Wife $43,200 to pay off these expenses. The source of this figu re is unclear. Under the QDRO, af

ter a twe nty percen t deducti on for wit

hholding taxes, Wife would receive a net sum of $34,560. However, the record supports an awa rd to Wife which would net only a sum o f $31,028.87. Consequently, the QDRO shall be modified to result in an award

which would net to Wife
a total equal to the amount of marital debts, attorneys’ fees, and litigation expenses that are supported by the record. The

award is hereby

reduced to $38,786, which, with a twenty pe rcent withholding tax deduc tion of $7757, will net Wife a sum of $31,029. The trial court’s decision is aff irmed a s modified on this issue. Husband nex t argue s that the t rial cou rt erre d in includ

ing his ov ertime pa

y a s income

t o determine the am ount of chi ld su pport that h e shou ld pay, ci ting In re Linebaugh , No. 03A01-9309- JV-00310, 1994 WL

17074 (Te

nn. App. Jan . 24, 1994) . In th at case , a husba nd chall engedthe amount of child support awarded by a trial court. Id. at *1. At the time of tr ial, the husband had been in his new job only a few months. The husba

nd had re ceived t

wo commiss ion pay

ments totaling $900. Id. at *2,3. The husband’s unrefuted testimony was that the commissions were not
on a regular basis or in any definite amounts. Id. at *3. Despite this, the trial court averaged the two pay ments to arrive at a figure of $450 and then ordered the husband to pay support according to the Child Support Gu

idelines b ased on h

is fixed sal ary

plus an ad

ditional $ 450 per month. Id. at *3. On appeal, this Court n oted that commission s are inc luded in gross income under the

guidelines, but only those commissions that are actually r eceived. Id. a t *3. It hel d that the trial cou rt erre d in assuming that the h usband wo

uld draw $450 per month in co mmissions. T he judg ment was4

modified to exclude c ommissions from the amount used to calculate the monthly child support pay ments. Id. at * 3, 5 . It was further modified to provide for the pay

ment of child support based on commissions as they were r eceived. Id. at 5. Husband argues that, because he is not guaranteed ove rtime, overtime income is analogous to commission income . Thus, under In re Linebaugh , he arg ues that h

is overtim

e income is speculative and should not be considered in determining the amount of the alimony

and child support awards. Wife contends that overtime pay is properly included a s income in determining child support obligat ions, noting that

the leg islature

recent ly a mended th

e Child Supp ort Guide

lines to specifically include overtime income within the definition of gross income. See Tenn. Comp . R. & Regs., ch. 1240-2-4-.03(3)(a) (1994); see also Hastings v. Hastings , No. 01A01-9603-CH-00128, slip op. at 3 (Tenn. App. Nov. 27, 1996). Even before this legislative c hange, she

maintains thatcase law and the g uidelines in effect at the time of trial support her arg ument that overtime pay should b e considered when determining the amount of a c hild support award. In Hopkins v. H

o pkins , No. 02A01-9202-JV-00045, 1993 WL 112523 (Tenn. App. Apr. 13, 1993), the wife appealed the trial court’s refusa l to include

all of the husband’ s overtime

pay in calculating his income under the Child Support Guidelines. Id. at *2. In its Opinion, this Court noted that the g

uideline s in effec t at that time defined gross income to include income from any source and did not exclude overtime income. Id. The guidelines also provided that child support pay ments should be based on a percentage of a yea r’s net income. Id. The husband regul arly received overtime

income du

ring the ye ar in que stion; con sequentl y, t he trial c ourt’s decision to exclude overtime income from the calculation of child support was reve rsed. Id. at *3. In this case, the trial court de termined Husband’ s gross income

based on the income reflected in his 1993 W-2 form, which included overtime i ncome. H usband a dmitted tha

t he reg ularly receives a sixth day of

overtime pay

for every three weeks of work. Thus, unlike the husband in In
re Linebaugh , who received only two commission payments during the first few months at his new job and did not receive them on a regu lar basisor in any

definite amounts, the over

time incom

e in this case is not merely spec ulative. Under the Child Support Guidelines in effect at the time of trial, the d efinition of gross income included income from any source and di d not exclud e overti me income . Tenn. Co mp. R.5

& Regs ., ch. 1240-2-4-.03(3)(a) (1989). The g uidelines provided that the amount of t he chil d support payments shoul d be ba sed on a flat percen tage of the obligor’s net income. Id. ch. 1240-2- 4-.03(5). Thus, the

fact tha t overtime

income is n ot guar

anteed i s not dete

rminati ve. Rather , the focus is on income regularly received by

the obligor. See Hopkins at *3. Applying the Child Support Guidelines and the principles discussed in Hopkins to the fa cts of this case, the trial court did not err in consider ing Husb and’s ove

rtime inc ome. The

record in this case includes Husband’s 1993 W-2 form, which included overtime income, as well as Husband’s admission that he expects to continue to receive such overtime income on a regular ba sis. Based on this record, the trial court properly include d Husband’s overtime pay as income in determining the amount of the child support award. Fi na ll y, Husband a

rgues t hat his ove

rtime inc ome should not be considered in determining
an alimony

award and that the rehabilitative alimony a ward is excessive. A trial court has broad discretion in awarding alimony
. Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn. App. 1993). Tennessee sta tutes specifically pr

ovide that the trial court should consider the parties’ “relative e arn in g capaci ty ” including income from pensions and “all other sources.”Tenn. Code Ann. § 36-5- 101(d)(1)(A) (1996); see also Storey v. Storey , 835 S.W.2d 593, 596-97 (Tenn. App. 1992) (holding that a husband with an income of $1,600 per month at trial, but whose income ranged f rom $384,065 to $7 11 ,2 39 in th e fou r ye ar s p re ce di ng tr ia l, ha d s uf fi ci en t e ar ni ng ca pa ci ty t o ma ke alimony payments of $2,500 per

month). In this case, the record

is u nclear as to whether the trial court considered the Husband’s overtime income in determining the alimony award. However, doing so would not have been error because such income would have been indica tive of Husband’s earning capacity. Moreover, ap plying the statutory factors, the alimony awar d of $350 per week is not excessive under the circumstances of this case. See Tenn. Code Ann. § 36-5-101(d)(1) (1996). Wife
was fifty-four y

ears old at the time of tr

ial, unem ploy ed, and s uffers from a dis ease tha t preven ts her from working outside the home. She has many expen ses, even after factoring out those expenses relating to raising the parties’ childre n. In a ddition, the marria

ge last ed over t wenty years, e nding only because of

Husband’s inappropriate marital conduct. Husband has steady employ ment and the income necessa ry to sustain t

he alimon y pa yme n ts, having earned $49,480.56 in 1993. Given Wife’s6

needs, as well a s Husband ’s fault i n ending th e marriage and his ability to provide support, the alimony award is a

ppropriate. The trial court is affirmed on this issue. The decision

of the tri al court

is affirmed as modified. Costs are taxed to the Appellant, for wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.
HOLLY KIRBY LILLARD, J. CONCUR: DAVID R. FARMER, J.
PAUL G. SUMMERS, SP. J.