# FILED July 28, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

PAULA MARIE BR OWN, ) C/A NO. 03A01-9812-CV-00417 ) Plaintif f-Appellee, ) HAM ILTON CIRCU IT ) v. ) L. MARIE WILLIAMS, ) JUDGE JAMES A. BROWN, ) ) AFFI RMED AS Defend ant-App ellant. ) MODIFIED

SANDRA J. BOTT, Chattanooga, for Plaintiff -Appellee. BRUCE C. BA ILEY, CHAMB LISS, BAHNER & STOPHEL, P.C., Chattanooga, for Defend ant-App ellant.

O P I N I O N Franks, J. This is an ap peal by the husband from a div orce decre e, ordering h im to pay alimony in the amount of $2, 000.00 per month. The wife has appealed, raising issues dealing with the amount of child support and attorney fees.

The parties were m arried on Novem ber 23, 1975, and tw o children were born to the marriage . Only one child,Timothy Brown, age 15, was a minor at the time of the divor

ce. The parties

stipulat ed that the wife would ha ve custody of the minor child and stipulated an equal division of certain pe rsonal properties. The cou rt was then required t

o distribut

e the property t

hat was not covered by the stipulation, set2

child su pport, a nd ma ke a de termin ation of alimon y.

The Trial Judge based chi ld support on the a

mount of $86,788.37, as husband’s income, or $1, 067.00 per month, plus $100. 00 upward deviation, due to the fact that r

egular visi

tation had not been occurring between t he defendant and the parties’ minor child. Add itionally, the Court ordered the de fendant to pay the w ife 21% of the net proceeds of any bonus es, distr ibutions, or

any income of any other type receive d from dividen ds, intere st, bonu ses, or o ther bu siness in come .

The Court also provided t he parties were t

o hold the marital

residence as tenants in common until the minor child r

eached the age of eight

een or graduates f

rom high school, whichever is later . At that ti

me, the wife could remain i n the home by paying the husband his

share of the equi

ty, or the par

ties were to sel

l the home and divide the equi

ty equally, a

fter the wife

receives the f

irst $30,114. 64 of the equity as part of the initial p roperty distrib ution. The wife wa s ordered to pay the m onthly mortgage payment and to make necessary r epairs, t hough one-half of the

cost of the repairs would be deduct ed from the husband’s shar e of the equity when the residence was sold, and the husband i s responsible for one-half of

the insurance on t

he residence until suc h time a s it is sold.

At the time of tr

ial, the wif

e was 52 years of age and the hus band was 50 years of age. The wife has a high school educat ion, while the hus

band has a degree in accounting. The wife is a diabet ic, control

led by diet, a

nd is currentl

y employed as a secretary,earning $550.00 a week. The husband i s employed as an accountant, and his federal i

ncome tax documents reflect wages, tips,and other compensation i n the amount of $83,456.01 for 1997, $93,395.28 for 1996, $89,510.50 for 1995. They also reflect incom e from div idends, intere st, capital gains, a nd partners hip distribution s in the am ount of $85,29 2.00 fo r 1997 , $41,28 5.79 fo r 1996 , and $4 ,180.00 for 199 5.

The parties subm itted income and ex pense statements. Th e wife’s3

statement refl

ects net monthly i

ncome from work in the amount of $1,864.41, and total monthly expenses of $4,463.47. This monthly income statement subtracts a $100.00 per month contri bution to her 401(

k) plan, and the a

mount of her expenses includes a $300.00 per month contribution to a savings account, $700.00 for birthdays, Christmas, and vacat

ions, $75.00 for

payment on a Discover credit card, and $150.00 per m onth fo r hom e main tenanc e.

The husband’s statement r eflects a gr

oss monthly salary of

$7,066.66, with a net income of $4,692. 60. He claims general e xpenses of $1,350.00,

which includes $700.00 i

n rent, $250.00 i

n utilit ies, $300.00 f

or car expenses,and $100.00 for insurance.He also claims expenses i n the amount of $1,320.00, which includes such thing s as food, clo thing, and re creation. Th ough he claimed g eneral exp enses in the amo unt of $1,3 50.00, he te stified that these were estim ated expe nses, becau se he is currently l

iving with his gi

rlfriend and not

paying her for any expens es. He said that he i s pa yin g $40 0.0 0 a mon

th i n rent t o a f rie nd, though he isjus t st

ori ng s ome belong ings at th e friend ’s hous e.

After this appeal was perfected, the wife filed a Motion to Consider Post Judgment F acts, asking the Court con sider the husband’s 19 98 income tax return which re flects the husb and’s adju sted gross in come a s $234,00 0.00 for 19 98. Prior to his deduc tion for alim ony, the hu sband’s inc ome w as $251,4 78.00. Th e wife insists thi s is relevan t to the appeal

beca use at t ria l, the hus band tes ti fied hi s monthl

y income was $7,066.66 per month.

Essentiall

y the issues on appeal

are: 1. Whether the Trial

Court erred in orde

ring periodic alimony as opposed to rehabil

itative a limony. 2. Whether the Trial

Court erred by awarding t he wife alimony exceeding her needs and exceeding the husband’s abi lity to pay. 3. Whether the Trial

Court erred in set

ting child support in an amount that is not in compliance with the child support guidelines.4 4. Whe ther the wife should be awarded her attorney ’s fees incurre d in this Appe al. As a preliminary matter , we are required t

o determine whether the Motion to Consid er Post Jud gment F acts should be sustaine d. We co nclude tha t it is not appropriat

e to consider t

his tax ret

urn under this Rule . Both parties submitted affidavits addressing how the document af fects the posi

tion of the par

ties. Instead of demon strating how the docum ent was re levant, the affid avits identify a dispute as to the source of the

husband’s income, and whether the wife actual

ly received a large part of it. We conclude the Trial Court di d not err in order

ing periodic al

imony, as opposed to rehabil

itative a limony. Trial J

udges are given broad di scretion i n awards of alim ony. Aaron v. Aaron, 909 S.W .2d 408 (T enn. 1995 ). Such a de cision is factually driven and calls for a careful balancing of numerous factors, including those listed in T enn. C ode A nn. § 36 -5-101 (d) (Su pp. 198 8).

Although the Legisla

ture has express ed a preference for rehabilit ative alimony, as opposed to permanent alimony, T.C.A. §36-5-101(d)(1), it has also declared, “W here there is s uch relative e conom ic disadvan tage and re habilitation is not feasible in consideratio n of all releva nt factors, inclu ding those set out in this subsection, t

hen the court may grant an or der for payment of support and maintenance on a long-term basis

or until t he death or remarri age of the recipi ent except as otherwise provided in subdivision (a)(3).” The rec ord reveals that the husban d’s salary is substantial

ly more than the amount the wif e earns, and while bot

h parties may r ece ive addi ti onal inc ome f

rom i nvestmen

ts, they ar e to sha re t hat inc ome equally, so it will not necessarily alter her relative disadv antage. The Trial C ourt specifical

ly found, “The income dispa rity li sted above is a re sult of the r elative education and tra

ining of the par

ties and the abi

lity of each par

ty to secure t

he necessary educati

on and training. The work experience, work li fe expectancy, and5

age of Mrs. Brown make it unlikel y she can be rehabili

tated to improve her

earning capacity to a l

evel commensurate with that of Mr. Brown.” The evidence does not preponderate again st this finding. T.R.A.P. Rule 1 3(d).

Trial court’ s are given a great deal of discre

tion in the amount of alimon y they a ward. Hall v. Ha ll , 772 S.W .2d 432, 43 9 (Tenn. A pp. 1989 ); Ingram v. Ingram , 721 S.W.2d 262 (Tenn. App. 1986). “The amount of al imony to be allowed in any case is a matter fo r the discretion of the particu lar circums tances. Th e appellate courts are d isinclined to re view suc h discretion e xcept in cas es where it has man ifestly been abused.” Ingr

am, at 264. In considering wh ether to award alimo ny and the am ount, trial courts are to consider all relevant factors, set forth in T.C.A . §16-5-101(d). W hile there are several factors to be taken into account, our courts have emphasized that the most important fact

ors to consider

are the needs of t

he requesting spous e and the abili ty of the oblig or spou se to pa y. See Sm ith v. Smith , 984 S.W.2d 606, 609-610 (Tenn. App. 1997)

. Fault als o plays an imp ortant ro le, see Long v. Long , 957 S.W.2d 825 (Tenn. App. 1997); and Ford v. Ford , 952 S .W.2d 824 (T enn. A pp. 199 6).

The husband argues that t he Trial Court looked only at the rel ative earning capacit

ies of the part

ies, and did not

look at need and abil

ity to pay. The substantial difference in i ncome, however, along with the income and exp ense statemen ts of both pa rties, reflect the ne eds and a bility to pay. T he wife ea rns a yearly sal ary of $ 28, 600. 00 and re

por ts her n et monthly t

ake-home a

t $1 ,864.4 1, a

nd claims her total expens es for hersel f and her minor child a

re $4,463.47. The husba nd argues that the wife ’s income is understated because s he deduc ted a $100 per mon th contribution to her employer’s 401(k) plan, and that her needs are overstated because her expen ses include $300 pe r month fo r a savings c ontribution, $ 700.00 p er month for birthday s, Christma s, vacations, a nd misce llaneous item s, and $15 0.00 per m onth6

for hom e main tenanc e.

While the husband takes i ssue with these expens es, prior t o the divorce. the parties

together earned ove

r $100,000.00 per year

and we cannot say that an estimated $700.00 per

month for birthdays , Christmas, vac ations and miscel laneous expense s is unreaso nable, base d upon th eir living stand ard. She sh ould not h ave to forego vacatio ns or sto p buyin g her ch ildren p resents b ecause of the d ivorce. Similarly, the $150.00 for hom e mainten ance is not a n overstated expense . While one-half of the hom e maintenance e xpenses may be deducted from the husband’s share of the equity wh en the house is sold, the w ife must still make the hom e repairs and pa y for the m wh en they are ma de.

The husband claims a monthly gross salary of $7,066. 66, with a net of $4,692.60, which includes deductions for federal i

ncome tax in the amount of $1,722.00, FICA in the amount of $531.38 and “other” i

n the amount of $120.68 per month. The Trial Court f ound the husband’s gross monthly income to be $7,232.36, and the husband’s testimony revealed his claims of gross and net income were less than the true am ount du e to his v oluntar y contr ibution s to his 4 01(k).

The husband’s gross income fr om his salary is unde

rstated,since the Trial Cou rt found his g ross incom e to be $20 0.00 mo re than claim ed by him , and his expenses are overst

ated, since he

admits he is not i

ncurring general

living expenses because he is li

ving with his gir

lfriend,who pays all the bil ls. We cannot say the award o f $2,000.00 per mon th in alimon y under a ll the facts and circumsta nces is excessive, since he has b een receiving incom e over and abov e his salary. We affirm the Trial Judge on t

his issue. On the issu e of child su pport, we c onclude th e Trial Judg e did err in setting the child support in an am ount that is not in comp liance with the child suppo rt guidelines. In addition to th e set amo unt of child s upport, the h usband w as ordered to7

pay 21% of any additional i ncome from such things as int erest, di vidends, and partnership distributions as child support. T.C.A. §36-5-101(a)(2)(A) provides:

Courts having jurisdiction o f the subject matter and of the parties are hereby expressly authorized to provide for the future support of a spouse and of the childr

en, in proper cas es, by fixing s ome definite amount or amounts to be paid in monthl y, semimonthly, or weekl y install ments, or otherwise, as circumstances may warrant, and such awards, if not paid, may be enforced by any appropriat e process of the cour

t having jurisdict ion thereof,including levy of execution. The foreg oing prov ision prohib its courts from ordering a v ariable amount of child su pport based on va riable income, even tho ugh that may b e the more rational approa ch base d on the circum stances . See Robertson v. Robert son , No. 03A0 1-971 1-CV -0051 1, 1998 Tenn . App. L EXIS 761 (T enn. A pp. No v. 9, 199 8). Since the L egislature ha s mand ated that cou rts set a definite a mount o f child supp ort, the issue thus becom es how shou ld that amount be c alculated. The child supp ort guidelines,which must be applied as a r ebuttable pres

umption of the proper amount of child support,

requires that

child support i s to be based upon a fla t percentage of t

he obligor’s net

income, depending upon the number of c hildren to be supported. Tenn. Comp. R. & Regs. tit. 10,ch. 1240-2-4-.03( 2). Net income is cal

culated by subtracting F ICA an d federal inc ome tax from gro ss incom e, so the first step is determ ining th e obligo r’s gross incom e. See Tenn. Comp. R. & Regs. tit. 10, ch. 1240- 2-4-.03 (4).

The guidelines define gross income as all income from a ny source (before taxe s and other deduc tions), whether earned or unearned, and includes but is not limit

ed to the fol lowi ng: wage s, s ala

rie s, c ommis sions, bonu ses , ov ert ime payments, dividends, severance pay, pensions, interest, t rust income, annuitie s, capital gains, benefi

ts received f

rom the Social Security Administration, i.e., Title II Social Security benefits, workers compe nsation ben efits wheth er tempo rary or perm anent, judgments recovered for personal inj uries, unemployment insurance benefi

ts, gift s, prizes, lottery winni

ngs, alimony or mainte nance , and inc ome f rom se lf-emp loym ent. . . . Tenn. Com p. R. & Reg s. tit 10, ch. 1240-2-4-.03(3)(a). Acco rdingly, the husband’s8

income in the form of int erest, di vidends, and part

nership dist

ributions would be included within t

he definition of “gross income.” The guidelines furt her provide that “[v]aria ble inco me su ch as co mm issions, b onuse s, overtim e pay, d ividend s, etc., should be averaged and added to the obligor’s fixed salary.” Tenn. Comp. R. & Regs. tit. 10,ch. 1240-2-4-.03( 3)(b). Theref ore, we conclude that

the husband’s addit

ional inc ome mu st b e ave

rag ed an d add ed t o hi s sa lar y in order t o det ermi ne gr oss inc ome for child support purposes.

Several unreport

ed cases have dealt

with this is sue in various ways. The unreported case of Mayfield v. Mayfield , No. 01A01-9611-CV-00501, 1997 Tenn. App. LE XIS 30 4 (Tenn. C t. App. Ap r. 30, 1997) , relied on a p rovision in th e child supp ort guid elines i n holding

that the c ourt

must aver age i ncome for the p ast two years. This p rovision in th e guideline s provides:

In cases w here initial sup port is being set, a judgm ent must b e entered to include an amo unt due for mo nthly support from the date of the child’s birth or date o f separation o r date of aba ndonm ent which ever is appropriate, until the current support order is entered. This amount must be calculated bas ed upon the guideli nes using the avera

ge income of the obligor over the past two years and is presumed to be correct unless rebutted by either party. A n amou nt should b e included in the order to reduce the arrears judg ment on a month ly basis with in a reasona ble time. Tenn . Com p. R. & Regs. ti t 10, ch. 1 240-2 -4-.04(1 )(e).

While this provision d oes not m andate that tria l courts avera ge variable monthly income from the p ast two ye ars to determ ine gross inc ome for c urrent child support, it does reflect t he legislative intent t

hat when the exact amount of gross income is not known an average must be t aken, and a period of

two years is an appropriate t

ime period to average t

hat income. On this basis, we conclude tha t the case should be remanded to t he Trial Court for

a determination of

a definite amount of child supp ort based o n the husb and’s ave rage incom e for the pas t two years , which is to include any i

nterest i ncome and partnership di stributions that are at tributabl e to the1 Any child support paid under the Trial Court’s order will be credited against the amount set upon remand.

9 husband. 1 This would be the proper amount of child support under the guidelines, unless r ebutted by eithe r party.

The wife has also appealed the decision of the Trial Court to increase the child suppor

t by $100.00 a month over the gui delines, and ur

ges us to calculate a specific number of days that the husband wil

l not be visi

ting his son. There is no indication t

hat the father

will not visi

t his son. He has vi sited his s on, though not in t he manner or the amount contemplated by t he guidelines. Since there will be visitat

ion, the Court cannot use a pr ecise mathematical

formula to determine t

he proper amount of additional child support. Cases of this nature are best determined on a case-by-case basis, and the evidence d oes not preponde rate against the finding of the Trial C ourt that in creases t he ordered c

hild supp ort in t

he amount of $100 .00 per month . T.R.A.P. Rule 13(d). Finally, t

he wife asserts

that this is a frivol

ous appeal and that s

he should be entit

led to attor

ney fees and costs,

or that she i s entitled to attorney f ees for defending her alim ony award. T he appeal is not frivolous, and we decline to aw ard the wife her att

orney’s fees,and in our discret ion we assess one-hal

f of the cost of

the appeal to each part

y. The judgment of the Trial Court is affi

rmed, except as modified and remanded.

__________________________ Herschel P. Franks, J.1 0

CONCUR:

___________________________ Houston M. Godd ard, P.J.1 1 

# FILED July 28, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

PAULA MARIE BROWN, ) C/A NO. 03A01-9812-CV00417 )

Plaintiff-Appellee, ) ) ) ) ) APPEAL AS OF RIGHT FROM THE v . ) HAMILTON COUNTY CIRCUIT COURT ) ) ) ) JAMES A. BROWN, ) ) HONORABLE L. MARIE WILLIAMS, Defendant-Appellant.) JUDGE



### CONCU RRI

NG O P IN I O N I concur in the majority opinion. I agree that the majority’s approach to determining gross income for current child support is correct in this case. I write separately to express my view that the two-year-average approach utilized by the majority in this case may not be appropriate in all cases.

__________________________ Charles D. Susano, Jr., J.1 2

___________________________ Charles D. Susano, Jr., J.