### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON SEPTE MBER 20, 2002 Session
FELICI A DEN ISE WEBB v. ERN EST BER NETT GI LLESPI E
Direct Appeal from the Juvenile Court for Shelby County No. M5947 Harold W. Horne, Judge

No. W2001-02828-COA-R3-JV - Filed Fe bruary 24, 2003

This is a child support case. Father is the pastor of a church. Mother c ontends th at Fathe r uses a churchbank ac count for h is personal use. Mother argues that the funds in this account minus legitima te church e

xpenses sho

uld be impu

ted to Fa ther as in come for purposesof calc ulating

child support. The trial court

found tha t it could not determi ne Father’s inc ome and, foll owing the Child Support Gu

idelines, imputed $2 5,761.00 t o him as inc ome. We af

firm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed

A LAN E. H IGHERS , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., joined and Holly K. L

illard, J., dissented. William T. Winchester, Webb A. Brewer, Memphis, TN, for Appellant Rev. Ernest Gillespie, II

I, pro se
OPINION Facts and Procedural History

Felici a Den ise Webb (“Mother”) petitioned the Juvenile Court of Memphis and Shelby County for child support a gainst Ernest Gillespie (Father). After a D NA test that showed a 99.999% probabil ity that Fat her was the father of the

child conceived during an adulterous af fair, a juvenile court refer ee orde red Fa ther to pa y $5 06.00 per

month for

child supp ort. The refereebased thi s amount on findings that Father, as the president and pa stor of the Pea rl y G ate Missio nary

Baptist Church (“Pearly

Gate” or “the church”), e arned a $13,000.00 per y ear s alary , had a mon

thly mortga ge of $1,100.00 paid by the church, had $625.00 per month in life insurance policies paid by the church, and on its finding that a $92 .00 a month

upward d eviation was war ranted b ecause

Father had not been e

xercising any visitation with the child. Fat

her req uested a hearing before the juven ile court judge to reconsider the amount of child support orde red.-2-

At the hearing before a spe cial juvenile court judge, the part ies disput ed the amount of in come that Father makes. Father claimed tha t his income is $250 a week. Mother claimed that Father commingles his salary

with other funds in various church accoun ts, partic ularly the “housing account,” to such a

degree that it is not clear how much he make s. Mother pointed to various checks written from the housing a ccount f or Fathe r’s per sonal expe

nses such as cred it cards, and child support for anot her chil d to show the extent to which Father uses this account for his personal use. Father testifie d to expense s in excess of his month ly s alary , but also t

estified that his wi fe pay s a share of their house mort

gage to him and that he deposits this money into the housing account. The juvenile court judge ruled

that Father’s income c ould not be determined and a ssigned

him an inc ome of $25,761.00 as directed by the Child Support Guide lines. Thi s, along with credit for $231.00 a month alread y pa id in support for another child, reduced Fathe r’s monthly child support obligation to $258.00 a

month. Ms. We

bb timely filed an appeal to this Court and presents the following issue for our review:

Whether the trial court erred in not imputing the entir e amount o f income

found in the church’s housing account, less documented busines s expe nses, to Father as personal income for the purpose of calculating child support.
Standard of Review

The findings of fact made by a trial court are given

a presum ption of c orrect

ness that will not be overtur

ned unles s the evid

ence pr eponder ates ag ainst those

findings. See Tenn. R. App. P. 13(d);
see also Bank/First Citizens v. Citizens and Assoc. , 82 S .W.3 d 259, 262 (T enn. 2 002) ( citi ng Bogan
v. Bogan , 60 S.W.3d 72 1, 727 (Te nn. 2001) ). A tria

l court’sruling o n a matter of law, h owever , will be reviewed “‘under a pure de novo standard . . . according no defe rence to the conclusions of law made by the lower c ourt[].’” Bank/First Citizens , 82 S.W.3d at 727 (quot ing Southern C onstructo rs, Inc. v. Loudon County Bd. of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001)). When reviewing a trial court’s decision t o set the amount of child support, we apply the “abuse of discretion” standard. State ex rel Vaughn v. Kaatrude , 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). Law and Analysis

The juvenile court

judge, after a hearing

that involved the testimony of severa l witnesses and introduction of

numerousdocument s, found th at “it [is] impossible to determine the precise nature of [Father’s] income, the sources of the income and what

they are, and as such [t

he Court] w ill fall back on th e c hi ld su pp or t g ui de li ne s, wh ic h s ay that the Court shall impute income in the amount of $25,761 a

nnually . . . . the Court’s satisfied that the $25,761 is a fair approximation of what it is that he earns.” The juvenile court based this deter mination of

Father ’s income

on Tenn. C omp. R. & Regs . ch. 1240 -2-4.03( 3)(e) w hich state s:
When estab lish ing an initial order and the obligor fails to produce evidence of income (such astax return s for prio r year s, c heck stubs, or other information for deter mining curr ent ability to support or ability to support in prior years) , and the1 Mother arrives at the $53,000 figure by total ing the depo sits made into the housing
accoun t.
-3- court has no othe

r reliab le evide nce of t he obl igor's income or income po tential, g

ross incomef or the current and prior y ears should be determined by imputing an nua l income of $ 25,761. This figure represents an ave rage of the

median a nnual inc ome for Tennessee families as provided by the 1990 U.S. Ce

nsus of I ncome and Pover

ty data for Tenness ee Countie s.
Mother contends that Father should be imputed approximately $53,000 1 in income because of his use of funds from

Pearly Gate ’s bank account entitled “housing allowance.” Mother offered
a ye ar’s wor

th of bank

statemen ts into evid

ence to s h ow that Fa ther uses the church account for
numerous personal expenses. Mother contends that this bank account is for the use of Father a nd thereforethe entire account, minus documented business expenses of the church, should be imputed to Father as income for child support purposes. Father contends that he is paid a salary of

$250 per week, and his ch

ild suppor t should be

based on this salar y min us his existin g $231 pe

r month ch

ild support obligation.

The Guideline

quote d ab ove directs our inquiry in this matter. Father presented no tax returns , or check stubs to establish his income. The juvenile court, therefor e, had to determine whether the evidence presented concer ning Father’s income wa s “relia ble” and if not, impute Father with$25,761 for his annual income. After a full hearing on the matter , the juvenile court found that it could not determine Father’s income and used the Guideline a mount to set child support.

Our review of the record confirms the juvenile c ourt’s determination. Fathe r offered no documentation of his salary . Father offered no bank records from his own persona l bank ac count. Father t estified that h e is paid a

salary of $250 a

week. F ather f

urther te stified th at his month ly expenses consiste d of a mor tgag e of $1,0 65, a pay

ment of ov er $200 o n another loan, two

credit cards, a gas card, car insura nce, $231 for support of another child, a cell phone, cable television, and $205 a month for Blue Cross/ Blue Shield. Mother offered the re cords of a Pearly Ga te’s ban k account that showed Father writing checks f or various amounts for these monthly e xpenses. Father explained that eac

h month he r

eceive s his salary a

nd additional money from his wife a nd then makes deposits int o the chur ch acco unt. Fath er testif ied that th

is money is the mone

y us ed to pay

his personal expenses. No records, however, were kept as to which deposits made into the church’s housing accoun

t were ma

de b y Fathe

r to cover checks written by him for personal expenses, and which deposits were made by the church. Father also testified that sometimes he would use his own credit card for church

expenses and that t

he churc h would pa

y hi m back in p ayments written dire ctly to th e credit card c ompany from the housing a

ccount. No recor

ds, howev er, wer

e kept of these transac tions.

An examination of the bank documents and testimony in the rec ord before us, however, does notfully support Father ’s assertions as to his income. As the juvenile court stated, F ather’s testimonyis so clouded that it is impossible to determine the amount of his income. Father testified2 Testimony was g iven that Father’s wife has loaned the chur ch money on many

occasions and is one

of the ch urch’s m ain fina

ncial sup porters

. -4- in answer to questions from his counsel that he has no other source of income other than the salary from the c hurc h whic

h is a “maxi mum of $250 a week.” In r esponse to the question “when y ou would pr ea ch at ot he r c hu rc he s a nd th ey w ou ld gi ve you mo ne y, you considere d that the church’s
mo ne y, not your personal income,” Father replied “[t]hat’s correct”and testified that he deposited money received from

preach ing at ot her chur ches into Pearly Gate ’s account. Later , however, Father testified that when a certain check from Pear ly Gate bounce d, he used his own funds to cover the check. When asked wherehe received the funds, Father re plied “when I g o preach, y ou know, I get different honoraries [sic] from differen t church es.” Father’s wife also testified that when he preaches in different churches he rece ives a “love offering.”

The bank records of the church show a number of checks written to cash. When asked about this, Father replied

that the church pa

ys m usicians , security p ersonne l, and gue st speake

rs for the ir services in cash because of a history of bounced c hecks t o these in dividuals resulting in their preference

to be paid in cash. The record submitted to this court contains approximately six months of bank records from Father and his wif e’s joint account, an account that is used primarily by Father’s wife. These records show deposits on two differ ent occa sions of a

check w ritten to c ash from the church’s housing allowance account. While there may be a pe

rfectly le gitimate reason for these deposits, such as repay

ment for loans givenby Fathe

r’s wife to the church, 2 the records show money going from the church into this account, and not money going fro m this a ccount into the church’s account for pay

ment of Father’s expenses as Father testified.

A survey of the y

ear’s worth of records of the housing account of Pearly

Gat e shows t

hat Father wrote approximately $24,000 worth of c hecks to the various accounts he testified were his personal expenses. Because of the accounting practices of the church and of F ather, there is no way to distingu

ish whether these checks were pa id with funds deposited by Fathe r or funds deposited

by the church. It is a

lso impossib le to tell if

some of the check s were d ir ect pay me nts to Father’s creditors meant to reimburse Father for pe rsonal funds spent on church expenses.

As to Mother’s assertion that the entire amount of deposits made into the housing allowance account should be imputed to Father as income, we agr ee with the j u venil e court that a ltho ugh Father ’s income cannot be determined with precision, it does not consist of the entire amoun t deposited in the church’s housing allowance account. The records and testimony reveal, a

nd Mother concedes in her brief, that there are legitimate church expenses being paid fro m this acc ount. Thus,
we find that the evidence does not preponderate against the juvenile cour t’s implied finding of fact that the entire a

mount depo sited in the

church’ s housing

accoun t is not Father’s income and we find that juvenile court did not abuse its discretion by imputing Father with an income of $25,761 for the purposesof setting

child supp ort.-5- Conclusion

For the foreg oing re asons, we affirm t he ruling of the juv enile court. Costs a re taxed to Ap pe ll an t, Fe li ci a W eb b f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ ALAN E. HI

GHERS, JUDGE