# FILED

June 18, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

TRACY RENEE MIGLIN, ) ) Plaintiff/Appellee, ) Maury Chancery No. 95-725 ) v. ) ) Appeal No. 01A01-9802-CH-00080 DANIEL WALTER MIGLIN, ) ) Defendant/Appe

llant. )

APPEAL FROM THE CHANCERY COURT OF MAURY COUNTY

AT COLUMBIA, TENNESSEE THE HONORABLE JIM T. HAMILTON, CHANCELLOR

For the Plaintiff/Appellee : For the Defendant/Appellant : Barbara J. Walker Louise R. Fontecchio Columbia, Tennessee Nashville, Tennessee

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

HOLLY KIRBY LILL

ARD, J.

CONCUR: BEN H. CANTREL

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

This is a po st-div orce case involving a petition to modify child support and modify or terminate alimony. The trial court ordered th e father to pay c

hild support accor

ding to the child support guidelines based on his year to date earnings, plus a percentage of a ny bonuse s received. The trial court refused

to modif y or terminate alimony. The father now appeals. Because the bonuses were counted twice, we reverse the t rial court’s order for an additional percentage of bonuses received. The remainder of the trial court’s order is affirmed. The record in this case does not include a compl eteaccount of the prior litigation between the parties. The original divorce decree was appealed by the father, as set forth in Miglin v. Miglin , No. 01-A-01-9707-CH00362, 1998 WL 440724 (Tenn. App. Aug. 8, 1998). The facts are gleaned from our prior Opinion in Miglin as well as the record in this proceeding. On May 7, 1996, Daniel Walter Miglin (“Father”) and

Tracy Renee Miglin (“Mother”) were divorced. There were two children of the marriage, Jason Daniel Miglin, born on August

8, 1990, and Logan Andrew Miglin, born on August 17, 1993. Prior to the divorce, the trial court issued a temporary restraining order prohibiting Father from bothering or harming Mother or the children, butpermitted Father to exercise scheduled visitation with the children. In the trial court’s final decree of divorce, the trial court declared the

parties divorced and made the temporary restraining order a permanent injunction. The trial court awarded cu stody of the children to Mother, ordered Father to pay child support in the amount of $1,097 per month ba

sed on his 1995 incom

e and also ordered hi m to pay $300 per month in alimony. Father was ordered to pay one-half of Mother’ s attorney’s fees. Miglin v. Miglin , 1998 WL 440724, at *2. Father filed a Notice of Appeal, which

was dismissed without prejudice for lack of finality because the amount of Mother’s attorney’s fees had not been determined. Id. On June 18, 1996, Mother filed a petition for contempt alleging Father violated the permanent restraining order. Id. The trial court did not find Father in contempt but expanded the scope of the permanent injunction. Id. Father filed a time ly notic e of appeal. Id. Subsequently, Mother f il ed another petiti

on for contempt, w

hile Father filed a

petition to reduce

or terminate alimony and also

sought a reduction

in child support. The trial court refused to terminate alimony and increased child support based upon Father’s 1996 income. Id. On July 21, 1997, Father filed a Notice of Appeal seeking review of all of the trial court’s orders. Id.2

In Miglin v. Miglin , 1998 WL 440724 (Tenn. App. Au g. 8, 1998), this Court addressed Father’s issues on appeal. Father’s issues on appeal at that point included child custody, alimony and attorney’s fees, division of marital property and the inju nction against Father. The Court affirmed the award of custody to Mother, modified the injunction, affirmed the division of marital property, and affirmed

the award of alimony and attorney’s fees. Id. at *8. Child support was not addressed in that

Opinion because F

ather did not rais

e the issue on appe

al. On October 24, 1997, while the above appeal was pending, Father filed another petition to modify alimony and child support. A hearing onthis petition was held on December 19, 1997. The trial court ordered Father to pay $1,136 per month in child support, based on Father’s average “year to date earnings” of $5,000 per month. In addition, the trial court required Father to pay thirty-two percent of any bonuses received by Father. The trial court did not terminate alimony and held, in part; “that the alimony issue is presently on appealalong with all other issues in this case, and that the alimony is due to ter

minate in August, 19

98, for these rea

sons, plus the need

of the Plaintiff, th

is alimony should not be

terminated.” Fro

m this decision, Fath

er now appeals. In this appeal, Father raises three issues. First, Father contends that the trial court

erred in determining child support basedupon his 1997 avera ge yearly income

rather than his in

come from Au gust to December of 1997. Father asserts that in August 1997, Father’s employer, Satur n Corporation, reduced overtime compensation for its employees. Father maintained that this action caused his monthly income to drop to $2,974; he argued that his future child support obligat i on should therefore be ba

sed upon his income

for the last five m

onths. Second, Fath

er asserts that gr

oss income from 1997 included bonuses, and the trialcourt erred in requiring Father to pay an additional thirty-two percent of any bonuses received, in effect “double-counting” his bonuses. Lastly, Father argues that the trial court erred in denying his petition to terminate alimony. Our review of the fin

dings of fact by the

trial court is de novo upon the recor d of the trial court, accompanied by a presumption of correctness of the factual finding unless the preponderance of the evidence is

otherwise. Tenn. R. App. P. 13(d). Questions of law are reviewed de novo with no presumption of correctness. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).

In Tennessee, modification of an existing child support order is governed by Tennessee Code Annotated § 36-5- 101(a)(1) (Supp . 1998), which stat es:3

In cases involving c hild support, upon a pplication of eithe

r party, the cour

t shall decreean increase or decrease of such a llowanc e when there is found to be a significant varian ce , as defined in the child support guidelines established by subsection (e), between the guidelines and the amount of support currently ordered unless the variance ha

s resulted from a

previously

court-ordered deviation from the guidelines and the circumstances which caused the deviation have not changed. (emphasis

added). A significant variance exists if there is a

15% difference

in the existing support obligation and the support obligation under the guidelines based on present income. See Turner v. Turner , 919 S.W.2d 340, 343 (Tenn. App. 1995); Tenn. Comp. R. & Regs. tit. 19, ch. 1240-2-4- .02(3) (1994). Thus, to determine if child support should be modified, th e trial court must f irst determine the non-custodial parent’s income. In th is case, the trial court determined that Father’s gross income was $5,000 p er month , basedupon Father’s average gross income for 1997. The record consists of a statem ent of the evidence as wel

l as exhibits which reflected Father’s income for each pay period. Father testified that in August 1997, his employer decreased the amount of allowable overtime. Father asserts that child support should be determined upon his base salary of $2,974 per month, which excludes overtime pay. To support this argum ent, Father r elies upon his gross income for the months of August, September, October, and November of 1997. The record indicates that Fathe r’s overtime work varied throughout 1997. From January 1997 to July 1997 Father a veraged $1,243 p

er month in overti

m e pay. In August 1997, Father received $334.58 in overtime pay . In Sep tember 1997, he received $102.95 in overtime pay, and in October 1997, he received a $218.35 bonus. In October and November 1997, Father worked no overtime. Based on these figures, thetrial c ourt found that Fath er’s average y

ear to date gross income was appro

ximately $5,000 pe

r month, including ov

ertime as well as b

onuses. Under Rule 1240-2-4-.03(2) of the Child Support G uidelines, “[t]h

e child support aw

ard is basedon a flat

percentage of

the obligor’s net income . . . depending on the number of children for whomsupport is being set . . . .” Tenn. Comp. R. & Regs. tit. 19, ch. 1240-2-4-.03(2) (1994). In Whitfield v. Whitfield , No. 03A01-9404-CV-00140, 1994 WL 465796, at *2 (Tenn. App. Aug

ust 30, 1994), the wife sought to calculate child support based upon the husband’s gross income from five pay periods during which the husband was paid twice monthly. The trial court acc epted the husband’s testimony that his average monthly gross income was $9,000. Whitf ield , 1994 WL 465796, at

*1. The Whitfield Court noted that it was inappropriate for a child support award to be4

basedupon “an average income of [a] relative s hort dur ation.” Id. (citing Linebaugh v. Temple , 1994 WL 17074 (Tenn. App. Jan. 24, 1994). In the case at

bar, the record indicates that Father’s income was $2,974 per month for October and November, four pay periods, excluding ov er time. Father received some overtime during the months of August and September 1997. As in Whitfield and Linebaugh v. Temple , we cannot say that the trial court erred in making its income calculation based on a longer time period. Considering the record as a whole, the evidence does not preponderate against the finding of the trial court that Father’s average gross in

come was $5,000 pe

r month based upon Father’s average gross income for 1997. Father

also contends that the trial court erred in orderi ng Father t o pay 32% of bonuses received in addition to the ch

ild support base

d on his gr oss income. Under the Guidelines, gr

oss incom e includes b onuses and overtime pay. See Tenn. Comp. R. & Regs. tit. 19, ch. 1240-2-4- .03(3)(a) (1994). The trial court determined Father’s average gross income from Father’s statement of earnings, which included bonuses. M other stipulates that this was error on the part of the trial court. Therefore, we reverse the order of the trial court requiring Father to pay an additional 32% of bonuses received. Finally, Father argues that the trial court erred in denying his petition to terminate or modify alimony. The trial court denied the pe tition, reasoning that the alimony issue was on appeal, that alimony award was due to terminate in August 19 98, and that Mother had a continued need for alimony. It is unclear in this appeal whether Father is appealing the original divorce decree, which

was on appeal at the time of the trial court’s hearing, or whet her Father is appe

aling the denial of

his second petition to modify alimony. Father cannot in this proceeding appeal for a second time the trial court’s original award of alimony. This Court determined the issue i n Miglin v. Miglin , No. 01-A-01-9707-CH00362, 1998 WL 440724 (Tenn. App. Aug. 8, 1998). If Father in this proceeding appeals the trial court’s denial of his pe tition to modi fy or terminate alimony, the standard for modificati on of alimony is set forth in Tennessee Code Annotated§ 36-5-101(a)(1) which states, in part, “the court may decree an increase or dec

rease of such allowance only upon a showing of a substan tial and m aterial change of circumstances . . . .” Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 1998). The party seeking modification in alimony has the5

burden of showing a substantial andmaterial change in circumstances. McCarty v. McCarty , 863 S.W.2d 716, 719 (Tenn. App. 1992) (citing Seal v. Seal , 802 S.W.2d 617, 620 (Tenn. App. 1990)). Father proffered no evidence indicating a diminished need for alimony by Mother, and the trial court found that Mother had a continued need for alimony. Based on the trial court’s factual finding that Father’s average gross income was $5,000 per month, affirmed above, Mother’s undiminished need for alimony, and the record as a whole, we find no error in the trial court’s denial of Father’s petition to modify or terminate alimony. The decision of the trial court is affirmed on this issue. The decision of the tr

ial court is

affirmed in part and reversed in part as set forth above, and remanded for further proceedings con sistent with this Op inion. Costs are ass essed against App

ellant, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J.

CONCUR:

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

WILLIAM BRYAN CAIN, J.