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-CV-00417

)

Plaintiff-Appellee, ) HAMILTON CIRCUIT

)

v. ) L. MARIE WILLIAMS,

) JUDGE

JAMES A. BROWN, )

) AFFIRMED AS

Defendant-Appellant. ) MODIFIED

SANDRA J. BOTT, Chattanooga, for Plaintiff-Appellee.

BRUCE C. BAILEY, CHAMBLISS, BAHNER & STOPHEL, P.C., Chattanooga, for

Defendant-Appellant.

O P I N I O N

Franks, J.

This is an appeal by the husband from a divorce decre e, ordering him 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 married on November 23, 1975, and two children were

born to the marriage. Only one child, Timothy Brown, age 15, was a minor at the

time of the divorce. The parties stipulated that the wife would have custody of the

minor child and stipulated an equal division of certain pe rsonal properties. The court

was then required to distribute the property that was not covered by the stipulation, set
2

child support, and make a determination of alimony. 

The Trial Judge based child support on the amount of $86,788.37, as

husband’s income, or $1,067.00 per month, plus $100.00 upward deviation, due to the

fact that regular visitation had not been occurring between the defendant and the

parties’ minor child. Additionally, the Court ordered the de fendant to pay the wife

21% of the net proceeds of any bonuses, distributions, or any income of any other type

received from dividends, intere st, bonuses, or other business income . 

The Court also provided the parties were to hold the marital residence as

tenants in common until the minor child reached the age of eighteen or graduates from

high school, whichever is later. At that time, the wife could remain in the home by

paying the husband his share of the equity, or the parties were to sell the home and

divide the equity equally, after the wife receives the first $30,114.64 of the equity as

part of the initial property distribution. The wife wa s ordered to pay the monthly

mortgage payment and to make necessary repairs, though one-half of the cost of the

repairs would be deducted from the husband’s share of the equity when the residence

was sold, and the husband is responsible for one-half of the insurance on the residence

until such time a s it is sold. 

At the time of trial, the wife was 52 years of age and the husband was 50

years of age. The wife has a high school education, while the husband has a degree

in accounting. The wife is a diabetic, controlled by diet, and is currently employed as

a secretary, earning $550.00 a week. The husband is employed as an accountant, and

his federal income tax documents reflect wages, tips, and other compensation in the

amount of $83,456.01 for 1997, $93,395.28 for 1996, $89,510.50 for 1995. They also

reflect income from dividends, intere st, capital gains, and partnership distributions in

the amount of $85,292.00 for 1997, $41,285.79 for 1996, and $4,180.00 for 1995. 

The parties submitted income and expense statements. The wife’s
3

statement reflects net monthly income 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 contribution to her 401(k) plan, and the amount of her expenses

includes a $300.00 per month contribution to a savings account, $700.00 for birthdays,

Christmas, and vacations, $75.00 for payment on a Discover credit card, and $150.00

per month for home maintenance. 

The husband’s statement reflects a gross monthly salary of $7,066.66,

with a net income of $4,692.60. He claims general expenses of $1,350.00, which

includes $700.00 in rent, $250.00 in utilities, $300.00 for car expenses, and $100.00

for insurance. He also claims expenses in the amount of $1,320.00, which includes

such things as food, clothing, and re creation. Though he claimed general expenses in

the amount of $1,350.00, he testified that these were estimated expenses, because he is

currently living with his girlfriend and not paying her for any expenses. He said that

he is paying $400.00 a month in rent to a friend, though he is just storing some

belongings at the friend’s house. 

After this appeal was perfected, the wife filed a Motion to Consider Post

Judgment Facts, asking the Court consider the husband’s 1998 income tax return

which reflects the husband’s adjusted gross income as $234,000.00 for 1998. Prior to

his deduction for alimony, the husband’s income was $251,478.00. The wife insists

this is relevant to the appeal because at trial, the husband testified his monthly income

was $7,066.66 per month.

Essentially the issues on appeal are:

1. Whether the Trial Court erred in ordering periodic alimony as

opposed to rehabilitative alimony.

2. Whether the Trial Court erred by awarding the wife alimony

exceeding her needs and exceeding the husband’s ability to pay.

3. Whether the Trial Court erred in setting 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 incurred in

this Appe al.

As a preliminary matter, we are required to determine whether the

Motion to Consider Post Judgment Facts should be sustained. We conclude tha t it is

not appropriate to consider this tax return under this Rule. Both parties submitted

affidavits addressing how the document affects the position of the parties. Instead of

demonstrating how the document was re levant, the affidavits identify a dispute as to

the source of the husband’s income, and whether the wife actually received a large

part of it. 

We conclude the Trial Court did not err in ordering periodic alimony, as

opposed to rehabilitative alimony. Trial Judges are given broad discretion in awards

of alimony. Aaron v. Aaron, 909 S.W.2d 408 (Tenn. 1995). Such a de cision is

factually driven and calls for a careful balancing of numerous factors, including those

listed in Tenn. Code Ann. § 36-5-101(d) (Supp. 1988). 

Although the Legislature has expressed a preference for rehabilitative

alimony, as opposed to permanent alimony, T.C.A. §36-5-101(d)(1), it has also

declared, “Where there is such relative e conomic disadvantage and rehabilitation is

not feasible in consideration of all relevant factors, including those set out in this

subsection, then the court may grant an order for payment of support and maintenance

on a long-term basis or until the death or remarriage of the recipient except as

otherwise provided in subdivision (a)(3).” The record reveals that the husband’s

salary is substantially more than the amount the wife earns, and while both parties

may receive additional income from investments, they are to share that income

equally, so it will not necessarily alter her relative disadvantage. The Trial Court

specifically found, “The income disparity listed above is a result of the relative

education and training of the parties and the ability of each party to secure the

necessary education and training. The work experience, work life expectancy, and
5

age of Mrs. Brown make it unlikely she can be rehabilitated to improve her earning

capacity to a level commensurate with that of Mr. Brown.” The evidence does not

preponderate against this finding. T.R.A.P. Rule 13(d).

Trial court’s are given a great deal of discretion in the amount of

alimony they award. Hall v. Hall, 772 S.W.2d 432, 439 (Tenn. App. 1989); Ingram v.

Ingram, 721 S.W.2d 262 (Tenn. App. 1986). “The amount of alimony to be allowed

in any case is a matter for the discretion of the particular circumstances. The appellate

courts are disinclined to review such discretion except in cas es where it has manifestly

been abused.” Ingram, at 264. 

In considering whether to award alimony and the amount, trial courts are

to consider all relevant factors, set forth in T.C.A. §16-5-101(d). While there are

several factors to be taken into account, our courts have emphasized that the most

important factors to consider are the needs of the requesting spouse and the ability of

the obligor spouse to pay. See Smith v. Smith, 984 S.W.2d 606, 609-610 (Tenn. App.

1997). Fault also plays an important role, see Long v. Long, 957 S.W.2d 825 (Tenn.

App. 1997); and Ford v. Ford, 952 S.W.2d 824 (Tenn. App. 1996). 

The husband argues that the Trial Court looked only at the relative

earning capacities of the parties, and did not look at need and ability to pay. The

substantial difference in income, however, along with the income and expense

statements of both pa rties, reflect the ne eds and ability to pay. The wife ea rns a yearly

salary of $28,600.00 and reports her net monthly take-home at $1,864.41, and claims

her total expenses for herself and her minor child are $4,463.47. The husband argues

that the wife ’s income is understated because she deduc ted a $100 per month

contribution to her employer’s 401(k) plan, and that her needs are overstated because

her expenses include $300 per month for a savings contribution, $700.00 per month

for birthdays, Christma s, vacations, and misce llaneous items, and $150.00 per month
6

for home maintenance. 

While the husband takes issue with these expenses, prior to the divorce.

the parties together earned over $100,000.00 per year and we cannot say that an

estimated $700.00 per month for birthdays, Christmas, vacations and miscellaneous

expenses is unreasonable, based upon their living standard. She should not have to

forego vacations or stop buying her children presents because of the divorce. 

Similarly, the $150.00 for home maintenance is not an overstated expense. While

one-half of the home maintenance expenses may be deducted from the husband’s

share of the equity when the house is sold, the wife must still make the home repairs

and pay for them when they are made. 

The husband claims a monthly gross salary of $7,066.66, with a net of

$4,692.60, which includes deductions for federal income tax in the amount of

$1,722.00, FICA in the amount of $531.38 and “other” in the amount of $120.68 per

month. The Trial Court found 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 amount due to his voluntary contributions to his 401(k). 

The husband’s gross income from his salary is understated, since the

Trial Court found his gross income to be $200.00 more than claimed by him, and his

expenses are overstated, since he admits he is not incurring general living expenses

because he is living with his girlfriend, who pays all the bills. We cannot say the

award of $2,000.00 per month in alimony under all the facts and circumstances is

excessive, since he has been receiving income over and above his salary. We affirm

the Trial Judge on this issue.

On the issue of child support, we conclude the Trial Judge did err in

setting the child support in an amount that is not in compliance with the child support

guidelines. In addition to the set amount of child support, the husband was ordered to
7

pay 21% of any additional income from such things as interest, dividends, and

partnership distributions as child support. T.C.A. §36-5-101(a)(2)(A) provides:

Courts having jurisdiction of the subject matter and of the parties are

hereby expressly authorized to provide for the future support of a spouse

and of the children, in proper cases, by fixing some definite amount or

amounts to be paid in monthly, semimonthly, or weekly installments, or

otherwise, as circumstances may warrant, and such awards, if not paid,

may be enforced by any appropriate process of the court having

jurisdiction thereof, including levy of execution.

The foregoing provision prohibits courts from ordering a variable

amount of child support based on va riable income, even though that may be the more

rational approa ch based on the circumstances. See Robertson v. Robertson, No.

03A01-9711-CV-00511, 1998 Tenn. App. LEXIS 761 (Tenn. App. Nov. 9, 1998). 

Since the Legislature ha s mandated that courts set a definite amount of child support,

the issue thus becomes how should that amount be c alculated. The child support

guidelines, which must be applied as a rebuttable presumption of the proper amount of

child support, requires that child support is to be based upon a flat percentage of the

obligor’s net income, depending upon the number of children to be supported. Tenn.

Comp. R. & Regs. tit. 10, ch. 1240-2-4-.03(2). Net income is calculated by

subtracting FICA and federal income tax from gross income, so the first step is

determining the obligor’s gross income. See Tenn. Comp. R. & Regs. tit. 10, ch.

1240-2-4-.03(4). 

The guidelines define gross income as 

all income from any source (before taxe s and other deduc tions),

whether earned or unearned, and includes but is not limited to the

following: wages, salaries, commissions, bonuses, overtime

payments, dividends, severance pay, pensions, interest, trust

income, annuities, capital gains, benefits received from the Social

Security Administration, i.e., Title II Social Security benefits,

workers compensation benefits whether temporary or permanent,

judgments recovered for personal injuries, unemployment

insurance benefits, gifts, prizes, lottery winnings, alimony or

maintenance, and income from se lf-employment. . . . 

Tenn. Comp. R. & Regs. tit 10, ch. 1240-2-4-.03(3)(a). Accordingly, the husband’s
8

income in the form of interest, dividends, and partnership distributions would be

included within the definition of “gross income.” The guidelines further provide that

“[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.

tit. 10, ch. 1240-2-4-.03(3)(b). Therefore, we conclude that the husband’s additional

income must be averaged and added to his salary in order to determine gross income

for child support purposes.

Several unreported cases have dealt with this issue in various ways. The

unreported case of Mayfield v. Mayfield, No. 01A01-9611-CV-00501, 1997 Tenn.

App. LEXIS 304 (Tenn. Ct. App. Apr. 30, 1997), relied on a provision in the child

support guidelines in holding that the court must average income for the past two

years. This provision in the guidelines provides: 

In cases where initial support is being set, a judgment must be entered to

include an amount due for monthly support from the date of the child’s

birth or date of separation or date of abandonment whichever is

appropriate, until the current support order is entered. This amount must

be calculated based upon the guidelines using the average income of the

obligor over the past two years and is presumed to be correct unless

rebutted by either party. An amount should be included in the order to

reduce the arrears judgment on a monthly basis within a reasonable

time.

Tenn. Comp. R. & Regs. tit 10, ch. 1240-2-4-.04(1)(e). 

While this provision does not mandate that tria l courts average variable

monthly income from the past two years to determine gross income for current child

support, it does reflect the legislative intent that when the exact amount of gross

income is not known an average must be taken, and a period of two years is an

appropriate time period to average that income. On this basis, we conclude that the

case should be remanded to the Trial Court for a determination of a definite amount of

child support based on the husband’s average income for the past two years, which is

to include any interest income and partnership distributions that are attributable to the
1

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 rebutted by eithe r party. 

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

the child support by $100.00 a month over the guidelines, and urges us to calculate a

specific number of days that the husband will not be visiting his son. There is no

indication that the father will not visit his son. He has visited his son, though not in the

manner or the amount contemplated by the guidelines. Since there will be visitation,

the Court cannot use a precise mathematical formula to determine the proper amount

of additional child support. Cases of this nature are best determined on a case-by-case

basis, and the evidence does not preponde rate against the finding of the Trial Court

that increases the ordered child support in the amount of $100.00 per month. T.R.A.P.

Rule 13(d).

Finally, the wife asserts that this is a frivolous appeal and that she

should be entitled to attorney fees and costs, or that she is entitled to attorney fees for

defending her alimony award. The appeal is not frivolous, and we decline to award

the wife her attorney’s fees, and in our discretion we assess one-half of the cost of the

appeal to each party.

The judgment of the Trial Court is affirmed, except as modified and

remanded.

__________________________

Herschel P. Franks, J.
1 0

CONCUR:

___________________________

Houston M. Goddard, 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 I N 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.