IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 7, 2017 Session

KATHLEEN J. SCOBEY V. TODD B. SCOBEY

Appeal from the Chancery Court for Williamson County

No. 41312 Michael W. Binkley, Judge

No. M2016-00963-COA-R3-CV

In this post-divorce action, Wife filed a Petition for Civil Contempt and Other Relief, 

including a request to recover her attorney’s fees, alleging Husband violated five 

provisions in the marital dissolution agreement (MDA). Husband denied the allegations

and filed a separate petition to decrease his child support obligation, which Wife 

opposed. Before trial, but after protracted proceedings, Husband complied with three 

provisions in the MDA, leaving two to be decided by the court. Following an evidentiary

hearing, the court found Husband in civil contempt for violating the remaining MDA

provisions, denied Husband’s petition to decrease child support, and ordered Husband to 

pay Wife’s attorney’s fees. Specifically, the court found that Husband violated the MDA 

by refusing to transfer to Wife one-half of the “non-retirement” account at T. Rowe Price 

and by concealing and withholding two paychecks he earned during the marriage that the 

parties agreed to divide equally. The trial court found that Husband did not offer 

sufficient proof of his current income to support a reduction in his child support 

obligation. The trial court also determined that Wife was entitled to recover her attorney’s 

fees pursuant to the enforcement provision in the MDA and pursuant to Tenn. Code Ann. 

§ 36-5-103(c) as the attorney’s fees pertained to the child support decree. Husband 

appealed. We have determined that the MDA provision concerning the “non-retirement”

account was not sufficiently clear, specific, and unambiguous to sustain a finding of

contempt; therefore, we reverse this finding of contempt. However, we affirm the finding 

of contempt for concealing and withholding two paychecks. We also affirm the trial court

in all other respects, including the award of attorney’s fees incurred by Wife in the trial 

court and the denial of Husband’s petition to reduce child support. As for Wife’s request 

to recover the attorney’s fees she incurred in this appeal, we find she is entitled to recover 

her fees and remand this issue for the trial court to determine the amount she is entitled to 

recover. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed 

in Part and Affirmed in Part

09/13/2017
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FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.

BENNETT and RICHARD H. DINKINS, JJ., joined.

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Todd B. Scobey.

Jacqueline B. Dixon, Nashville, Tennessee, for the appellee, Kathleen J. Scobey.

OPINION

Kathleen J. Scobey (“Wife”) and Todd B. Scobey (“Husband”) were married in 

1993 and had one child. They divorced by final decree on March 5, 2013 on the grounds 

of irreconcilable differences. The final decree incorporated the marital dissolution 

agreement (“MDA”) and a permanent parenting plan. 

Wife filed a petition with the Chancery Court for Williamson County on January 

10, 2014, requesting that the court find Husband in civil contempt for the following: (1) 

failing to have a qualified domestic relations order (“QDRO”) prepared for two 

retirement accounts in violation of paragraph 13 of the MDA; (2) failing to transfer 

custodianship of the their child’s college education savings accounts (“UTMA

accounts”)

1

to Wife in violation of paragraph 7 of the MDA; (3) failing to give Wife an 

accounting of a debt owed to the parties in violation of paragraph 8 of the MDA; (4) 

failing to transfer to Wife half of the non-retirement portion of a T. Rowe Price account 

in violation of paragraph 13 of the MDA; and (5) failing to disclose income earned 

during the marriage in violation of paragraph 29 in the MDA. Additionally, Wife 

requested that Husband pay her attorney’s fees in accordance with the MDA’s 

enforcement provision. 

Husband filed an answer denying Wife’s charges of contempt and filed a petition 

to modify child support, seeking a reduction in his child support payments due to a 

decrease in income. Wife filed a response opposing any decrease in child support.

The parties engaged in mediation in September 2014 and entered into an agreed

order that required Husband to hire an attorney to prepare the QDROs for the retirement 

accounts and to transfer custodianship of the UTMA accounts to Wife. As a consequence 

of Wife instituting legal proceedings to force Husband to comply with the MDA, 

Husband had the QDROs prepared, transferred custodianship of the UTMA accounts to 

Wife, and provided Wife with an accounting of the debt owed to the parties. However,

the parties failed to agree on other issues. Thus, at the time of trial, the parties continued 

to dispute (1) Wife’s request for attorney’s fees, (2) Wife’s allegation of contempt 

 

1

The accounts were established under the Uniform Transfers to Minors Act, Tenn. Code Ann. § 

35-7-101 to -226.
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regarding Husband’s refusal to transfer half of the non-retirement funds in a T. Rowe 

Price account to Wife, (3) Husband’s failure to disclose income earned during the

marriage, and (4) Husband’s petition for a decrease in his child support obligation. 

The remaining issues were tried on June 10, 2015, and Wife and Husband were the 

only witnesses. At the conclusion of the trial, the court found in favor of Wife on all 

issues. First, the trial court found Husband in civil contempt for violating paragraph 13 of 

the MDA, which provided that Wife would receive one-half of the funds in a T. Rowe 

Price account:

13. RETIREMENT/PENSION PLANS: Upon entry of 

Final Decree of Divorce, one-half of the funds and assets in 

the T. Rowe Price Roth IRA, account ending in #5830, styled 

in the name of Husband, shall be, and is hereby, transferred to 

Wife, and said one-half shall be divested out of Husband and 

vested absolutely in Wife. 

The court found that the T. Rowe Price account referenced in paragraph 13 

contained both retirement and non-retirement funds, though the MDA listed it as a 

retirement asset. The court also found that the parties intended to divide both the 

retirement and the non-retirement assets equally and that Husband fully understood this

intent. Yet, Husband only transferred half of the retirement assets to Wife. Thus, the court 

concluded that Husband willfully violated paragraph 13 of the MDA and ordered 

Husband’s incarceration until he paid Wife $8,960.15, plus interest, which represented 

half of the non-retirement funds contained in the account at the time of the divorce. 

Second, the court found Husband in civil contempt for violating the disclosure 

provision in the MDA, which states: 

29. COMPLETE DISCLOSURE: The parties acknowledge 

that there are no assets owned by them, either jointly or 

individually, and that they have no interests in any assets 

which are not reflected by the terms of this Agreement. The 

parties warrant and represent that they have made full 

disclosure to each other of their respective incomes, 

anticipated incomes, and all assets in which they have 

interests....Should it develop that there are undisclosed assets, 

the party to whom the assets were not disclosed shall have a 

right to an equitable share of same....

The court ruled that Husband violated this provision by failing to deposit two paychecks 

issued on March 1, 2013 into the couple’s joint bank account, which Husband earned for 

work performed through February 22, 2013, prior to the divorce. The trial court 
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concluded that Husband’s act of cancelling the automatic deposit showed that Husband 

intended to conceal his earnings from Wife.

2

The court ordered Husband’s incarceration 

until he paid Wife $8,018.71, which equaled one-half of both paychecks. 

Third, the court denied Husband’s petition to reduce child support. It found that 

Husband “totally, completely, and without explanation” failed to provide sufficient 

evidence for it to properly calculate what Husband’s income would be in 2015. The court 

found that Husband was not a credible witness, and it could not determine “what 

[Husband’s] income is now or will be in the future based on a paycheck stub that he 

presented that is three months old.”

The court also awarded Wife her attorney’s fees based on the MDA and Tenn. 

Code Ann. § 36-5-103(c). As the court explained, Wife was contractually entitled to

attorney’s fees and expenses in accordance with the enforcement provision in the MDA 

because her attorney’s fees “were both reasonable and necessary” to ensure Husband’s 

compliance with the terms. The court also explained that Wife was entitled to recover her 

attorney’s fees under Tenn. Code Ann. § 36-5-103(c), which provides that a party is 

entitled to attorney’s fees when that party prevails in a child support action. After Wife’s 

attorney submitted an accounting of her fees, the court ordered Husband to pay 

$28,664.64 of Wife’s attorney’s fees.

ANALYSIS

Husband contends the trial court erred (1) by finding Husband in civil contempt,

(2) by dismissing Husband’s petition to modify child support, and (3) by awarding Wife 

her attorney’s fees. Additionally, Wife asks us to decide whether she should be awarded 

her attorney’s fees on appeal.3

I. CONTEMPT

In order to prevail on a civil contempt claim, the plaintiff must establish four 

elements. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 354 

(Tenn. 2008). First, the plaintiff must establish that the order alleged to have been 

violated is lawful. Id. An order is lawful if it is “issued by a court with jurisdiction over 

both the subject matter of the case and the parties.” Id. at 355. The determination of 

 

2

The proof established that during the marriage, Husband had his employer automatically deposit 

his paychecks into the parties’ joint bank account. However, just prior to the divorce, Husband cancelled 

the automatic deposit and failed to inform Wife of it.

3

Husband also included in one of his arguments that the court erred by admitting “the T. Rowe 

Price account statement” into evidence; however, Husband did not identify this as an issue in his brief as 

required by Tenn. R. App. P. 27(a)(4). Therefore, we deem this issue waived.
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whether a particular order is lawful is a question of law, which we review de novo with 

no presumption of correctness accorded to the trial court. Id.

Second, the plaintiff must establish that the order is clear, specific, and 

unambiguous. Id. at 354. “A person may not be held in civil contempt for violating an 

order unless the order expressly and precisely spells out the details of compliance in a 

way that will enable a reasonable person to know exactly what actions are required or 

forbidden.” Id. at 355. Such a determination is a legal inquiry, subject to a de novo 

review. Id. at 356.

Third, the plaintiff must prove by a preponderance of the evidence that the 

defendant actually violated the order. Id. This is a factual issue to be decided by the court. 

Id. Thus, our review is de novo, on the record, with a presumption that the trial court’s 

factual findings are correct unless the evidence preponderates against those findings. Id.; 

Tenn. R. App. P. 13(d).

Finally, the plaintiff must prove that the violation of the order was willful.

Konvalinka, 249 S.W.3d at 356. If a person “knows what he or she is doing and intends 

to do what he or she is doing,” then that person is acting willfully. Id. at 357 (quoting 

State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d 602, 612

(Tenn. Ct. App. 2006)). “[A]cting contrary to a known duty may constitute willfulness 

for the purpose of a civil contempt proceeding.” Id. A determination of willfulness is a 

factual issue, “uniquely within the province of the finder-of-fact who will be able to view 

the witnesses and assess their credibility.” Id. Therefore, willfulness is also reviewed de 

novo, with a presumption of correctness accorded to the trial court. Id.; Tenn. R. App. P. 

13(d).

If the court determines that a party has willfully violated a lawful and 

unambiguous order, the court may, in its discretion, hold the party in civil contempt.

Konvalinka, 249 S.W.3d at 358. On appeal, the court’s decision is entitled to great 

weight, and a decision to hold a party in civil contempt is reviewed using the abuse of 

discretion standard. Id. “This review-constraining standard does not permit reviewing 

courts to substitute their own judgment for that of the court whose decision is being 

reviewed.” Id. When reviewing a discretionary decision, the reviewing court should 

review the decision to determine 

(1) whether the factual basis for the decision is properly supported by 

evidence in the record, (2) whether the [trial] court properly identified and 

applied the most appropriate legal principles applicable to the decision, and 

(3) whether the [trial] court’s decision was within the range of acceptable 

alternative dispositions. When called upon to review a [trial] court’s 

discretionary decision, the reviewing court should review the underlying 

factual findings using the preponderance of the evidence standard contained 
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in Tenn. R. App. P. 13(d) and should review the [trial] court’s legal 

determinations de novo without any presumption of correctness. 

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010) (internal citations 

omitted).

A. THE T. ROWE PRICE ACCOUNT

Paragraph 13 of the MDA stated that Wife would receive one-half of the funds in 

a “T. Rowe Price Roth IRA, account ending in #5830.” Both parties testified that the 

“account ending in #5830” did not refer to an account number but to an investor number. 

Wife claimed that the investor number only covered three accounts, which would make

the account easily identifiable under that number. Husband claimed that the investor 

number covered twelve accounts, and he assumed that paragraph 13 only addressed the 

retirement accounts managed by T. Rowe Price under that investor number. 

To support her contention, Wife presented a copy of a T. Rowe Price monthly 

statement that reported the account balances as of October 31, 2012. The first page of the 

statement identified three “T. Rowe Price Mutual Funds” accounts, all of which were 

listed under one “Investor Number.” The aggregate portfolio value of the accounts was 

$30,056.34. The first account was named “Prime Reserve” (“prime reserve account”) and 

it was listed under a heading titled “Nonretirement.” The value of this account was 

$17,920.36. The two smaller accounts, named “T. Rowe Price Health Sciences” and “T. 

Rowe Price Small-Cap Stock” (collectively, “retirement accounts”), were listed 

immediately below the prime reserve account under the heading “Retirement.” On the 

second page of the monthly statement, the three accounts were again identified, but this 

time there was a separate “account number” beside each named account.

Wife testified that she used the investor number instead of the individual account 

numbers because she assumed the investor number would be adequate to identify all 

three accounts. Both Husband and Wife testified that while they intended to specifically 

address the prime reserve account in the MDA, that account was not specifically 

addressed anywhere in the MDA by its name or by its specific account number. Husband 

went on to explain that he did not realize the MDA did not specifically identify the prime 

reserve account until months after he signed it. Husband testified:

It was the end of the day. It was a final negotiation. When we 

received the draft, even the large equitable securities was 

missing from it and I brought that to their attention. And they 

said, “Oh, let me go add that in. That was a mistake.” I did 

not look at the brokerage part.
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Husband also testified that T. Rowe Price managed twelve separate accounts for 

the parties under one investor number, some of which were retirement accounts, some of 

which were non-retirement brokerage accounts, and some of which were UTMA 

accounts for the benefit of their child. On cross-examination, Wife conceded that she 

received an email from Husband while negotiating the MDA, providing her with a list of 

all twelve accounts managed by T. Rowe Price. That list included the prime reserve 

account, which was identified as a brokerage account and was accompanied by an 

account number. Wife testified on cross-examination:

I have been aware of all of the accounts from the get-go. I 

handle the bills. I know every account number. And [my 

attorney and I] were under the assumption that using an 

investor number that covers a certain amount of accounts, that 

that number covers—is the umbrella for those accounts; not 

of one, not two, not three, but all.

It is undisputed that Husband divided the two retirement accounts in accordance 

with paragraph 13 but that he did not divide the prime reserve “nonretirement” account. 

The court ruled that the provision in the final decree that required the equal 

division of the T. Rowe Price account was “clear, specific and unambiguous.” The court 

further ruled that Husband willfully violated the provision when he refused to transfer 

half of the funds in the prime reserve account to Wife. While neither party disputes that 

the provision was a lawful order, Husband argues that it was not clear or specific enough 

to warrant a finding of contempt. We agree with Husband on this issue. 

The narrow issue here is whether Husband “willfully violated a lawful and 

sufficiently clear and precise order,” not whether he breached the parties’ agreement to 

divide the accounts equally. Konvalinka, 249 S.W.3d at 358. Unlike breach of contract 

cases, we cannot go beyond the four corners of the order in contempt cases to clarify an 

ambiguity. See Id. at 359. To the contrary, we can only look to the order being enforced 

to ascertain whether a party willfully violated a lawful and unambiguous order. See id. As 

our courts have explained, “[l]itigants are entitled to rely on the reasonable interpretation 

of orders, and the use of the ‘plain and ordinary meaning’ standard to interpret orders 

assures that litigants will be treated fairly.” Id.

The provision of the order at issue addresses “retirement” assets managed by T. 

Rowe Price under “account ending in #5830.” The prime reserve account is identified on 

the T. Rowe Price statement as a “nonretirement” account with an “account number” that 

does not end in 5830, although the “investor number” does end in 5830. The evidence 

admitted at trial showed that T. Rowe Price managed twelve accounts for the parties, 

some of which were retirement accounts, some of which were non-retirement accounts, 

and some of which were UTMA accounts. The MDA was divided into sections which 
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separately addressed retirement accounts, brokerage accounts, and UTMA accounts.

Thus, there was some discrepancy between the numbers and names used to describe the 

accounts on the T. Rowe Price statement and the numbers and names used to describe the 

accounts in the MDA. This discrepancy created an ambiguity. Of course, this ambiguity 

could be clarified by going beyond the four corners of the order to ascertain the parties’

intentions but the courts are not permitted to go beyond the four corners of the order in 

contempt cases to clarify an ambiguity. See Konvalinka, 249 S.W.3d at 359. Accordingly, 

we are unable to conclude that the terms as expressed in the order, as they pertain to the 

non-retirement account, are clear, specific, and unambiguous. 

To prevail on a civil contempt claim, the plaintiff must establish four elements. Id. 

at 354. One of the essential elements is that the order is clear, specific, and unambiguous. 

Id. As the court explained in Konvalinka, the order must precisely explain “the details of 

compliance in a way that will enable a reasonable person to know exactly what actions 

are required or forbidden.” Id. at 355. We have concluded that the order, as it pertains to 

the non-retirement prime reserve account, fails to satisfy this requirement. Therefore, 

Husband cannot be held in contempt for failing to comply with this provision.

B. UNDISCLOSED ASSETS

Wife testified that she was still living with Husband after their divorce in March 

2013 because she had not yet closed on her new house. During the second or third week 

in March, she opened a drawer in Husband’s desk while looking for staples and found 

two paychecks issued on March 1, 2013. Both checks consisted of income Husband 

earned from February 9 through February 22, 2013, totaling $16,037.42. 

In her testimony, Wife explained that while married, the couple had a joint bank 

account. Husband had his paychecks automatically deposited into the account and Wife 

paid the bills from that account. When the couple divorced, the MDA required the parties 

to split the contents of the joint account equally. Upon entering the final decree, Wife 

wrote Husband a check for half of the funds in the account and then put the account 

solely in her name, as the parties had agreed in the MDA. Because the paychecks issued 

to Husband on March 1 had not been automatically deposited into the account, Wife had 

been unaware of their existence. Therefore, that income was not divided, though Husband 

earned it during the marriage. 

Husband admitted that during the course of the marriage, he had his paychecks 

automatically deposited into the couple’s joint bank account, and before the couple’s 

divorce became final, he canceled the automatic deposit. Husband testified that he 

understood that the MDA required that he and Wife equally divide the assets in the joint 

bank account, which included both parties’ income during the marriage. He claimed, 

however, that he and Wife discussed their paychecks for February, and that he told Wife 
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he was going to deposit his earnings from that month into his new account, and she could, 

likewise, keep her entire income for that month. Husband testified:

I was—we were looking at March as different...[Wife] said, 

“Well, I deposited my check into [the joint account].” And I 

said, “Well, make sure we back that out—make sure we back 

that out when we do the final split.” So there was nothing 

underhanded in trying to hide the checks. It was certainly a 

motivator for me to sign the MDA and not go to trial because 

I thought, there’s money coming....

In her testimony, Wife confirmed that Husband told her to remove her most recent 

paycheck from the joint account before dividing it, but she denied that Husband ever told 

her he was keeping his income from February. Wife explained:

A. I had a paycheck that [Husband] told me to keep. Because 

I think one of two things: He either felt guilty because he 

knew that he had withheld some large checks, or because 

of the inequity in how we split things, that he kept the boat 

and he had in excess of $16,000 in our home assets.

...

Q. How much was the amount that you backed out [of the 

 joint account]?

A. It was four-thousand-some-odd dollars.

The trial court found that the disclosure provision in the MDA was a clear, lawful 

order that Husband willfully violated when he failed to disclose his February earnings to 

Wife. Husband does not dispute the trial court’s determination that the order was lawful 

and clear; however, he contends he did not violate the provision because Wife was aware 

of Husband’s February income as manager of the couple’s joint bank account. Even if 

Wife was unaware of Husband’s February income, Husband claims that since he received 

the checks after the divorce became final, they constituted “future income.” He argues 

that he was not required to disclose “future income” for the purposes of dividing the joint 

bank account. 

Whether Husband actually violated the order is a factual issue, and the trial court 

is entitled to a presumption of correctness unless the evidence preponderates otherwise.

See Konvalinka, 249 S.W.3d at 356. The trial court credited Wife’s testimony, describing

her demeanor while testifying as “direct, to the point, and responsive.” To the contrary, 

the trial court described Husband as inconsistent, evasive, and vague. More importantly, 

the trial court made the express determination that Husband’s “testimony was not 

credible.” Because the trial court is in a better position to make credibility findings, we 
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defer to the trial court. See Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (“When it 

comes to live, in-court witnesses, appellate courts should afford trial courts considerable 

deference when reviewing issues that hinge on the witnesses’ credibility....”).

4

Paragraph 29 of the MDA required the parties to “warrant and represent that they 

have made full disclosure to each other of their respective incomes, anticipated incomes, 

and all assets in which they have interests.” Wife testified that during the marriage 

Husband had his paychecks automatically deposited into the couple’s joint bank account. 

Before the divorce became final, Husband cancelled the automatic draft for his February 

income and did not inform Wife. Therefore, Wife assumed that the February income had 

been deposited into the joint bank account before she divided the account. Wife was 

unaware of Husband’s February income until she discovered the checks in mid-March. 

Because Husband did not make Wife aware of that income, Husband violated the 

disclosure provision in the MDA. Husband’s contention that his February earnings 

constituted “future income” is meritless. The couple divorced on March 5, 2013. The 

February income qualified as a marital asset for the purposes of division and was covered 

under the disclosure provision in the MDA.

The trial court also found that Husband’s violation was willful. A determination of 

willfulness is a factual issue, “uniquely within the province of the finder-of-fact who will 

be able to view the witnesses and assess their credibility.” Konvalinka, 249 S.W.3d at 

357. Husband admitted that he intended to withhold his February income from Wife;

however, he claims he never intended to conceal it from her. We agree with the trial court 

that Husband’s purposeful act of cancelling the automatic draft strongly indicated that 

Husband intended to conceal this asset from Wife. The trial court credited Wife’s 

testimony that Husband did conceal it until she discovered the paychecks sometime in 

March. Therefore, the trial court did not err by holding Husband in civil contempt for 

violating the disclosure provision in the MDA.

II. CHILD SUPPORT MODIFICATION

Tenn. Code Ann. § 36-5-101(g)(1) governs child support modification. It provides, 

“Upon application of either party, the court shall decree an increase or decrease in

support when there is found to be a significant variance, as defined in the child support 

guidelines established in subsection (e), between the guidelines and the amount of 

support currently ordered....” A significant variance is defined as “at least a fifteen 

percent (15%) change between the amount of the current support order...and the amount 

of the proposed presumptive support order....” Tenn. Comp. R. & Regs. 1240-2-4-

.05(2)(c). Tenn. Comp. R. & Regs. 1240-02-04-.05(3) sets out the procedure for 

determining whether a significant variance exists:

 

4

Husband does not question the court’s credibility findings on appeal. 
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To determine if a modification is possible, a child support 

order shall first be calculated on the Child Support Worksheet 

using current evidence of the parties’ circumstances....If the 

current child support order was calculated using the income 

shares guidelines, compare the presumptive child support 

order amounts in the current and proposed orders....If a 

significant variance exists between the two amounts, such a 

variance would justify the modification of a child support 

order....

“Because child support is based on income, an award for future support, including 

prospective modification, is necessarily based upon most recent actual income.” Tinsley 

v. Tinsley, No. M2001-02319-COA-R3-CV, 2002 WL 31443210, at *4 (Tenn. Ct. App. 

Nov. 1, 2002).

The trial court has discretion when making child support determinations; however, 

that discretion is limited by the child support guidelines. Smith v. Darmohray, No. 

M2003-00236-COA-R3-JV, 2004 WL 904095, at *4 (Tenn. Ct. App. Apr. 27, 2004). We

review the record de novo with a presumption that the court’s factual findings are correct, 

absent a showing that the evidence preponderates to the contrary. Tenn. R. App. P. 13(d); 

Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). 

The trial court denied Husband’s petition to reduce child support, finding that 

Husband did not meet his burden of proof. At trial, Husband testified that the original 

child support order directed him to pay $1,786 per month based on his 2012 gross income 

of $275,000 and Wife’s 2012 gross income of $42,000. Husband submitted a new child 

support worksheet that calculated his child support payments to be $1,361 per month 

based on his 2014 gross income of $200,451 and Wife’s 2014 gross income of $80,971.

The difference in the original and proposed orders constituted a deviation of more than 

fifteen percent. However, for child support purposes, the relevant income at the time of 

trial, June 10, 2015, was Husband’s and Wife’s most current income for 2015. See Tenn. 

Comp. R. & Regs. 1240-02-04-.05(3); see also Langlo v. Langlo, No. E2014-00548-

COA-R3-CV, 2015 WL 1810513, at *6 (Tenn. Ct. App. April 20, 2015) (Mother’s 2012 

tax return was not sufficient to establish Mother’s income as of October 2013).

Husband testified that he was on target to make the same in 2015—approximately 

$200,451. He calculated Wife’s income to be $74,151 for 2015 based on her W-2 from 

2014. However, Wife presented W-2s from 2014 that showed Husband’s income was 

actually $213,266 for that year and Wife’s income was $67,126. Wife also testified that 

as of 2015, she would no longer receive a base salary and would only earn commissions. 

She presented a paycheck which showed her year-to-date income through the end of May 

2015 and estimated that her income for 2015 would be $45,000 to $55,000.
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As evidence of his 2015 income, Husband presented a paycheck issued on April 

17, 2015. He claimed that his future paychecks would be consistent with his April 

paycheck in terms of his base salary; however, it would not be consistent with the 

commissions and bonuses he would earn in the future.5 While Husband testified that he 

would likely earn the same in 2015 as he did in 2014, the trial court did not credit his 

testimony, and we defer to the trial court on the issue of witness credibility. Kelly, 445 

S.W.3d at 692. Moreover, the 2014 W-2s entered into evidence at trial showed that 

Husband’s testimony about Husband’s and Wife’s 2014 income was erroneous. 

Thus, we have determined that the trial court could not adequately calculate 

Husband’s 2015 income based on (1) Husband’s erroneous testimony regarding his and 

Wife’s past income, (2) Husband’s two-month-old paycheck, which did not accurately 

reflect his current or prospective income, and (3) Husband’s unreliable testimony about

his future income. Because Husband did not provide the trial court with evidence of his 

“most recent actual income,” and did not present credible testimony concerning his and 

Wife’s past or future income, we affirm the trial court’s decision to deny Husband’s 

petition to decrease child support. Tinsley, 2002 WL 31443210, at *4.

III. ATTORNEY’S FEES AT TRIAL

Marital dissolution agreements are contracts between the parties contemplating 

divorce. Eberbach v. Eberbach, No. M2014-01811-SC-R11-CV, 2017 WL 2255582, at 

*3 (Tenn. May 23, 2017). After a divorce decree becomes final, a marital dissolution 

agreement does not lose its contractual nature, and courts are to enforce provisions in 

contracts that expressly allow a party to recover his or her attorney’s fees incurred in 

disputes over the contract. Id. The entitlement to recover attorney’s fees, however, is 

limited to the parameters set out in the contract, and the fee provision is subject to the 

rules of contract interpretation. Id. at *7. Contract interpretation is a question of law. 

 

5

Husband testified:

The Court: ...Well, are your commissions pretty consistent per quarter?

The Witness: No....

...

Q. Have you received any bonuses since the date of this pay period 

ending 4-17?

A. I received draws which are a portion of the bonus. And then I did 

receive a reconciled about two weeks ago.

Q. Do you know what gross it showed on that? Would it show a year-todate?

A. For that one, no I don’t. It was similar to this. So $8,000 for the 

quarter in commission.
- 13 -

Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn. 2006). We accordingly review 

the trial court’s conclusions de novo with no presumption of correctness. Id.

The enforcement provision in the MDA states: 

23. NONCOMPLIANCE: In the event it becomes

reasonably necessary for either party to institute legal 

proceedings to procure the enforcement of any provision of 

this Agreement, he or she shall also be entitled to a judgment 

for reasonable expenses, including attorney fees, incurred in 

prosecuting the action. 

Thus, according to the plain terms of the enforcement provision, Wife is entitled to a 

judgment for reasonable expenses, including attorney fees, incurred in prosecuting this 

action if it is determined that it was “reasonably necessary for [Wife] to institute legal 

proceedings to procure the enforcement of any provision of this Agreement.”

The trial court determined that it was reasonably necessary for Wife to institute 

this action to force Husband to comply with the MDA, and we fully agree with that 

finding. Nevertheless, Husband contends that her fees should be reduced because she was 

only granted “partial relief” and “most of the work” for which Husband was required to 

pay Wife was either “work that was unnecessary” or concerned issues on which Husband 

ultimately prevailed. We find no factual basis for this contention and Husband’s citations 

to the record to support the generalized contentions are meager at best. 

The record reveals that it was not only reasonably necessary for Wife to institute 

these legal proceedings but it was also reasonably necessary for her to pursue the 

litigation, because even with the litigation pending, Husband was very slow to comply 

with the provisions at issue. Moreover, Husband’s contention that Wife is not “the 

prevailing party” is not persuasive because she was the prevailing party on almost every 

claim. Moreover, the Noncompliance Provision in the MDA states that a party is entitled 

to attorney’s fees if it becomes reasonably necessary for that party to procure legal 

services to enforce any provision in the MDA. The trial court found that it was 

reasonably necessary for Wife to procure legal services to obtain Husband’s compliance 

with the MDA, and we agree with the court’s finding. Furthermore, Wife prevailed in 

almost every claim she asserted in the petition in the trial court and on appeal. Thus, Wife

is entitled to recover the reasonable and necessary attorney’s fees she incurred to enforce 

Husband’s compliance with the MDA.

The trial court also concluded that under Tenn. Code Ann. § 36-5-103(c), Wife 

was entitled to recover the attorney’s fees that she incurred in defending Husband’s 

petition to reduce his child support obligation. Tenn. Code Ann. § 36-5-103(c) gives the 

trial court discretion to award attorney’s fees to the party who successfully defends a 
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child support order. We will not reverse a trial court’s decision to award attorney’s fees 

under the statute unless the trial court has abused its discretion. Huntley v. Huntley, 61 

S.W.3d 329, 341 (Tenn. Ct. App. 2001). Since Wife prevailed on the issue of child 

support, we find that the trial court did not abuse its discretion in awarding Wife the 

attorney’s fees she incurred in defending the original child support order. 

For the foregoing reasons, we affirm the award of the attorney’s fees Wife 

incurred in the trial court proceedings.

IV. ATTORNEY’S FEES ON APPEAL

Wife seeks to recover her attorney’s fees incurred on appeal. Wife has prevailed 

on all but one issue on appeal, and we find it was reasonable and necessary for Wife to 

oppose Husband’s appeal. Thus, for the same reasons the trial court concluded that Wife 

was entitled to recover the fees she incurred in the trial court, we conclude that Wife is 

entitled to recover the reasonable and necessary attorney’s fees she incurred on appeal. 

Accordingly, we remand with instructions for the trial court to determine the amount she 

is entitled to recover and make an appropriate award. 

IN CONCLUSION

The judgment of the trial court is affirmed in part and reversed in part, and this 

matter is remanded for further proceedings consistent with this opinion. Costs of appeal

are assessed against the appellant, Todd B. Scobey.

________________________________

 FRANK G. CLEMENT JR., P.J., M.S.