# FILED May 21, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE

ROBERT PERRY SANDY ) AUSBROOKS, JR., ) ) Petitioner/Counter

-Respondent/ ) Williamson Chancery No. 20223 Appellee, ) v. ) ) Appeal No. 01A01-9803-CH-00114 BONITA LYN (AUSBROOK S) ) MOORE, ) ) Respondent/Counter-Petitioner/ ) Appellant. )

APPEAL FROM THE CHANCERY COURT OF WILL IAMSON COUNTY AT FRANKLIN, TENNESSEE
THE HONORABLE HENRY DENMARK BELL , CHANCELLOR
For the Petitioner

/Counter-Responde

nt/ For the Respondent/Counter-Petitioner/ Appellee : Appellant : Robert Perry

Sandy Ausbr

ooks, Jr., Pro Se Sidney S. F. B ennett Baton Rouge, Louisiana Nashville, Tennessee

AFFIRMED
HOLL Y KIR BY LI LLA RD, J.

CONCURS: BEN H. CANTREL

L, P.J., M.S. WILLIA M BRYAN CAIN, J.OPINION

This case involve

s a post-divorce p

roceeding to modif

y child support. The

husband lost

his job and filed a p etition to reduce child sup port. The trial co

urt held the husban

d’s petition in abeyancefor a period of

time and later reduced the husband’s child support obligation retroactive to the filing of the pe tition. The wi fe appeals, arguing that the trial court improperly made a retroactive mod

ification of child

support. We affi

rm. Respondent/Appellant

Bonita Lyn Moore (“

Wif e” ) and Petitioner/Appellee Robert Perry Sandy Ausbrooks, Jr. (“Husband”) were divorced, and on March 30, 1994 Hus

band was ordere

d to pay $1,60 0 per month child sup port for the part

ies’ three childr

en. At that time, Hu

sband was a regional manager with Allstate Insurance Company (“Allstate”) and

child support was based upon his income of $6,600 per month. On March 20, 1996, Husband filed a pe

tition to reduce his

child support obligation, based on the emancipati on of one of the ch

ildren and a dec

rease in his income. The parties dispute

the facts regar

ding Husband’s de

crease in income. At a hearing on June 18, 1996, Husband testified he was involuntar

ily laid off from hi

s position at Allstate

in July 1995, and that he subsequently formed an independent insurance agency. Wife argued that Husband voluntarily

left his position with

Allstate to form t

he independent

agency. In an order entered on August 23, 1996, the trial c

ourt found that the

oldest child

had reached the age of majority and set child support at $1,481 per month for the parties’ two remaining minor children. The child support award was based

on Husband’s “prior ability to earn” $6,600 per month. In addition, the trial court held that the issue of reducing child support based on a decrease in Husband’s income was “reserved
as [it is] considered premature.” The trial court noted that “[t]hese items may be addressed in the future by the filing of an amended and supplemental petition, which would relate back to the original petition for possible retroactiveapplication.” The trial court declined to award Wife atto

rney’s fees. On November 25, 1997, Husband filed an a mended and supplemental petition to modify child support, alleging a

decrease in mont

hly income

greater than fifteen percent. At a hearing on January 14, 1998, Husband again testified that he was involuntar ily laid off from his position at Allstat e. The re cord reflects that he received severance benefits from Allstate of $5,794.47 per month until March 1996. The record also indicates that in September 1995, Husba nd st arted an independent

insurance agency and represented American National Insurance Company (“ American National”) as an independent agent. Beginning in October 1995, Husband receiv ed a monthly advance on commissions of $2,765 from American National; this continued for four months. For2

the next two months, Husband received $2,262 per month from American National as a draw against commissions. Subsequently, in March 1996, American National suspended Husband’s advances against his commissions. During the period of time in which Husband was receiving from American National advances against commissions, his earned commissions were not sufficient to cover the advances. Consequently, by Ma rch 1996, Husband

owed American N

ational $13,152 .74. At the November

hearing, Wife again contended that Husband voluntarily left his position at Allstate and submitted into evidence Husband’s contract with American National, dated June 15, 1995. Husband testified that he i nterviewed with American National in May or June 1995, but did not sign the contract at that time. He testified that he did not put the June 15 date on the contract. At the end

of July 1995, he received verbal notice that Allstate would eliminate hi s job position as part of its reduction in force. In an order en tered February 12, 1998, the trial c

ourt held that Fathe

r “through no fau

lt of his own” lost his empl

oyment in July 1995. I

n addition, the tria

l court found, in pa

rt: [T]hat for the period

of time from March 20, 1996, through January, 1998, Father had suffered a significant variance in his income sufficient to warrant a reduction in his child support to $823.00 per

month based upon his averageearnings of $3,418.00 per month. Accordingly, from the period o f March, 1996, through January, 1998, Fa ther’s c hild support shall be retroactively r

educed from $1,481.00 per month to $823.00 per

month. Said retroactive reduction results in a $658.00 per month c

redit to Father for 22 months which totals $14,476.00. Fa ther shall rece

ive said credit in the form of a reduction in hi s c urrent child support in the amount of $658.00 per month for the next 2

2 months. From this decision, W

ife now appeals. On appeal, Wife argues that Husband v oluntarily left Allstate, resulting in underemployment in contravention of the child support guidelines. Wi fe contends t hat the trial cour

t erred in continuing Husband’s original petition to reduce child support, err oneously allowed H

usband to file
a supplemental petition, and improperly ordered a retroactive reduction in child

support. Wife als

o argues that

the t rial court erre

d in declining to gra

nt her request fo

r attorney’s fe

es incurred as a result of the petit

ions and hearings . In addition, Wife seeks attorney’ s fees for this ap peal. Our review is de novo upon the record of the trial court, accompanied by a presumption of correctness

of the findings of fact unless the preponderance of the evidence is otherwise. See Tenn. R. Civ. P. 13(d). Questions of law are reviewed de novo withno presumption of correctness. See Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).3

Wife argues first that the evidence preponderates against the t rial cour t’s finding that Husband lost his job with Allstate “through no fault of his own.” She maintains that Husband quit his job at Allstate in order to start his own independent insurance agency. In sup port of her contention, Wife

relies on Husband ’s contract with A merican Nationa

l, datedJune 15, 1995, over
a month before Husband was informed by Allstate that he would be laid off. Husband testified that he interviewed with American National in May or June but that he did not sign the contract at that time. Husband testified that he did not date the contract. He noted that the c ontract with

American National was not

effective until September 1, 1995, and that he was not notified of his termination by Allstate until the end of July 1995. In addition, it is undisputed that Husband received a
severance package from Allstate. We recognize “the well-established principle that the trial court is in the best position to

assess the credibility of the witnesses; accordingly, such determinations are entitled to great weight on appeal.” Quarles v. Shoemaker , 978 S.W.2d 551, 553 (Tenn. App. 1998) (citing Massengalev. Massengale , 915 S.W.2d 818, 819 (Tenn. App. 1995); Bowman v. Bowman , 836 S.W.2d 563, 566 (Tenn. App. 1991)). Viewing the record as a whole, the evidence does not preponderate

against the trial court’s finding that Husband lost his job through no fault of his own. The evidence supports the trial court’s conclusion that Husband’s job change created a significant variance in his in

come and warra

nted a modificatio

n in child support. Wife also argue

s that the trial cou

rt erred in holding open Husband’s first petition to modify child support, and, after a second petition was filed, reducing Husband’s child support obligation retroactive to the date

of the filing of the first petition. Wife maintains that retroactive modification of child support is prohibited, citing Rutledge v. Barrett , 802 S.W.2d 604 (Tenn. 1991). In Rutledge, the Court observed that “[r]etroactive modifications are plainly unauthorized; prospective modifications can be made, but only after notice as provided in [Tennessee Code Annotated 36-5-101] subsection (a)(5). Hence, the tria l court in this case

could not reduce

amounts that accrued prior to the filing of the father's 1988 cross-petition
. . . .” Id. at 606 (emphasis added);
see also Pera v. Peterson , No. 72, 1990 WL 200582, at *2 (Tenn. App. Dec. 14, 1990 ); State v. Morris , 1990 WL 2867 (Tenn. App. Jan. 19, 1990) (citing 87-162 Tenn. Op. At ty. G en. 3823 (1987)). Tennes see Code Annotate d § 36-5-101(a)(

5) states in pertin

ent part: Any judgment for child support shall be a judgm ent entitled to be enforced as any other ju dgment of a court of this state . . . . Such judgment sh

all not be subject to4

modification as to any time period or any amounts due pr

ior to the date that an action for modification i

s filed
. . . . Tenn. Co de Ann. § 36-5-101(a)(5) (Supp. 1998) (emphasis added). Thus, under the statute, a modification of child support is prohibited if it pertains to a time period prior to the filing of the petition to modify. In this case, Husband’s first petition to modify was filed on March 20, 1996. The trial court’s August 23, 1996 order on the first petition left open the issue of modification of chi l d support because the trial court found that the issue was “premature.” The trial court’s action in holding open this issue was sua sponte . It should be noted that the record does not indicate that Husband filed a “prophylactic” petition to modify, that is, a petition filed as a precautionary measure, with the intent that the trial court hear the petition only if and when Husband’s income decreased substantially. In March 1996, when the first petition was filed, Husband’s severance pay f rom Allst ate and the advancements

from American National were scheduled to terminate. Husba nd ow ed American National over

$13,000 for adva

nces paid in

excess of earn

ed commissions. Husb

and’s attorney di

d notask th e trial court to hold open the issue of modification of child support; the record indicates that both parties expected the issue to be determined at that time. However, at that time, the trial court found that it was unable to determine Husband’s future income. U nder these circ

umstances, the trial court’s action in holding open Husband’s petition to modify ch ild support and later ordering
a modification retroactiveto the filing of the first petition, while not customary, did not amount to
a retroactive modification

prohibited by Tennessee Code Annotated § 36-5-101. The decision of the trial court is affirmed. Wife also appeals the trial court’s denial of her request for attorney’s fees for the trial. After review of the record, w

e find that the tria

l court did not abuse its discretion in declining to award Wife attorney’s fees. See Threadgill v. Th readgill , 740 S.W.2d 419, 426 (Tenn. App. 1987) ; Wright
v. Wright , No. 01A01-9001-CV-0 0019, 19 90 WL 84032, at *5 (Tenn. App. 1990). In addition, pursuant to Tennessee Code

Annotated § 36-5- 103(c), Wife’s request for atto

rney’s fees for

this appeal is denied. The decision of the tr

ial court is

aff irmed. Costs are assessed against the Appellant, for which execution may issue if necessary.5 HOLLY KIRBY LILLARD, J.
CONCUR:

BEN H. CANTRELL, P.J ., M.S.

WILLIAM BRYAN CAIN, J.