FILED

May 7, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

ANNETTE WILLIS CLAY, ) 

)

Plaintiff/Appellant, ) Shelby Circuit No. 149721 R.D.

)

VS. ) Appeal No. 02A01-9803-CV-00059

)

KERRY CLAY, )

)

Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY

AT MEMPHIS, TENNESSEE

THE HONORABLE D’ARMY BAILEY, JUDGE

KIM G. SIMS

Memphis, Tennessee

Attorney for Appellant

J. LOGAN SHARP

BATEMAN GIBSON & CHILDERS, LLC

Memphis, Tennessee

Attorney for Appellee

AFFIRMED IN PART, REVERSED IN PART

AND REMANDED

ALAN E. HIGHERS, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.

Annette Clay (“Wife” or “Appellant”) appeals the judgment of the trial court which
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granted a divorce to Annette Clay and Kerry Clay (“Husband” or “Appellee”), awarded to

Husband $17,270.00 of Wife’s total retirement benefit, awarded to Wife $212.00 of

Husband’s $28,460.80 workers’ compensation settlement, and failed to award any amount

of Husband’s workers’ compensation settlement as child support for the parties’ children.

I. Factual and Procedural History

The parties were married on May 29, 1985. Two children were born to the parties.

Wife was employed by the City of Memphis six years prior to her marriage and

accumulated retirement during this time.

The Complaint for Divorce was filed on August 2, 1995. An Order of Reconciliation

was entered March 1, 1996 and revoked on January 22, 1997. Husband was hurt on the

job in July of 1996 during the period of reconciliation. Husband was unable to work and

remained in the home until August of 1997.

The matter was tried to the bench on July 7, 1997. The Court heard testimony and

disposed of the issues of child custody and support (awarding custody to Wife), division

of marital real property, division of Wife’s pension, and items of personal property. There

was discussion of a pending claim by Husband for his on-the-job injury, Wife advancing

a claim that such was a marital asset subject to equal division. A final decree was not

entered at that time as the parties were still waiting on Wife’s pension information and

Husband’s workers’ compensation settlement.

On January 14, 1998, attorney for Husband and attorney for Wife appeared before

the trial court to seek additional time to submit a Final Decree of Divorce and to seek

guidance on issues upon which recollections differed. Wife’s pension information was

obtained and a final decree of divorce was entered nunc pro tunc on February 4, 1998. The

final decree ordered Husband to advise counsel for Wife when his pending workers’

compensation action was concluded.
3

On February 19, 1998, Wife filed “Motion to Alter Final Decree to Give Children 41%

of OJI Final Settlement or in the Alternative Set Aside Final Decree.” In this motion Wife

alleged that the trial court, at the original divorce hearing, accepted the agreement giving

children 41% of final OJI (On Job Injury) settlement and Wife 50% of all assets, but these

items were not included in the Final Decree. Wife filed an affidavit stating the same. A

hearing was held on February 27, 1998 and the trial court found that the motion was not

well taken and denied the motion. Wife filed a Notice of Appeal on March 4, 1998.

Affidavits were later filed by attorney for Wife and attorney for Husband. The

affidavits of the attorneys disagree with respect to the trial court’s instruction with respect

to any division of the possible award or settlement of Husband’s pending workers’

compensation claim. Wife’s attorney stated that the Court announced at the January 14,

1998 appearance that each party would receive one-half of the other’s pension, and that

Wife would be entitled to 50% of Husband’s workers’ compensation benefits retroactive to

July 1997.

Husband’s attorney stated in his affidavit that the court decreed that Husband was

entitled to a spousal one-half interest in Wife’s pension to the extent it accumulated during

the marriage. He stated that Wife advanced a claim to one-half interest in any workers’

compensation settlement at the original trial, the January 14, 1998 appearance, and the

hearing on the motion to alter final decree in February 19, 1998, but the claim was not

allowed by the court. He further stated that he had urged the court that, if Wife was entitled

to any portion of Husband’s workers’ compensation settlement, the entitlement would be

limited to one-half of the portion of the settlement allocable to the few months between the

cessation of temporary total benefits and the granting of divorce in July, 1997 (a period of

five months). Husband’s attorney unequivocally stated that the Court did not award Wife

a 50% share of Husband’s eventual award or settlement.

Wife filed a Rule 24(c) Statement of the Evidence on June 4, 1998. Husband filed

a motion to strike the statement, which was granted by the trial court in an order dated
4

September 24, 1998. The trial court found that the statement failed to satisfy the

requirements of the Rule and did not convey a “fair, accurate and complete account of

what transpired with respect to the issues that are the basis of appeal.”

The workers’ compensation matter ultimately came before the trial court again in

connection with certifying the record for appeal. (Husband was awarded a lump sum

workers’ compensation settlement in the amount of $28,672.80 on March 23, 1998). Upon

reconsideration, the court recognized an interest by Wife in Husband’s workers’

compensation settlement to the extent that the income was attributable to the months while

the parties were married and subsequent to the termination of Husband’s temporary total

benefits. An Order Modifying Final Decree was entered to this effect on September 24,

1998.

II. Division of Pension

Two issues raised by Wife on appeal deal with the trial court’s treatment of the

parties’ pensions. Wife alleges that her pension fund was split 50/50 and this was error

because she accrued 6 years of pension before the marriage. Husband contends that the

court ordered the parties to split only the portion of the pension acquired during the

marriage and that was what was done. The final decree of divorce states in pertinent part:

10. That the Court finds that the value of the pension

accumulated by Plaintiff/Counter-Defendant through her

employment with the City of Memphis to be marital property

subject to an equal division, and finds the value of that marital

asset to be $34,540.25 before income taxes. The Court

awards to Defendant/Counter-Plaintiff one-half of said asset,

$17,270.12, less income taxes.

In his brief, Husband states that the City of Memphis provided a letter in which it

detailed Wife’s contributions to the pension fund during the marriage and set forth a

multiplier of 2.5 due to her length of service. (Cash-out value for marital period =

$34,540.25). Husband asserts that had the multiplier been applied to Wife’s total

contributions, her pension would have been valued at $45,429.30. Husband claims to have
5

received no portion of her pre-marriage contributions.

Wife also alleges that the trial court erred in failing to award her one half of

Husband’s retirement or pension. In his brief, Husband contends that he has no pension

or retirement and that is the reason Wife was not awarded such. 

The letter from the City of Memphis regarding Wife’s pension is not included in the

record before this court. There is no evidence in the record of any pension or retirement

fund belonging to Husband. Furthermore, Appellant did not file a Transcript of the

Proceedings within 90 days of appealing the judgment, as required by Rule 24(b) of the

Tennessee Rules of Appellate Procedure. The Statement of the Evidence filed by Wife

was stricken from the record by the trial court for nonconformity with Rule 24(c) and no

other statement of the evidence has been filed by the parties. Without any evidence in the

record regarding the calculation of Wife’s pension, and without any evidence of the

existence of Husband’s pension, this Court does not have before it a fair, accurate and

complete account of what transpired with respect to these issues. 

It is well-established that in the absence of a transcript of the evidence, this Court

must conclusively presume there was sufficient evidence to support the trial court’s

judgment and must, therefore, affirm. Reagor v. Dyer County, 651 S.W.2d 700, 701 (Tenn.

1983); Leek v. Powell, 884 S.W.2d 118 (Tenn. Ct. App. 1994); Coakley v. Daniels, 840

S.W.2d 367, 370 (Tenn. Ct. App. 1992). Accordingly, the trial court’s judgment on

the issues of the parties’ pensions is affirmed.

III. Property Division and Workers’ Compensation Settlement

In an Order Modifying Final Decree, the trial court awarded to Wife a portion of

Husband’s workers’ compensation settlement in an amount equal to $212.00. The trial

court found Wife had an interest in the workers’ compensation claim to the extent that the

income is attributable to the months while the parties were married and subsequent to the
1Although not included in the record on appeal, the “Order Awarding Workers’ Compensation Benefits”

was attached to the Brief of Appellant and labeled “Exh ibit 1". N o objectio n was rais ed by A ppellees. W e sha ll

therefore treat the workers’ compensation order as a matter of record by stipulation.

6

termination of Husband’s temporary total payments.

In calculating this amount, the trial court found that any award or settlement on the

workers’ compensation action is to relate to diminished capacity from March, 1997, for the

remainder of Husband’s working career, which is expected to extend through April, 2025

(Husband to achieve age 65 in May 2025). Of the three hundred thirty-eight (338) months

between termination of temporary total benefits and Husband achieving sixty-five (65)

years of age, the parties were married for five (5) months. The court then held that Wife

shall share equally with Husband in the compensation for those five (5) months. Wife was

awarded a sum equal to one-half of the proportion of Husband’s settlement as five (5)

months bears to three hundred thirty-eight (338) months, being 0.7396449 percent.

Wife contends that the award of $212.00 of Husband’s workers’ compensation

settlement was inequitable. Wife claims that her award of $212.00 was less than one week

of Husband’s compensation award which was evaluated at $358.00 per week. Husband

asserts that he was receiving temporary payments for the majority of time the parties were

still together and the family derived benefit from that. Husband urges that the $28,672.80

award can be construed only as compensation for loss of future earning capacity and Wife

is not entitled to a share of his future earnings.

The order awarding workers’ compensation benefits1 found that Husband was

entitled to an award of 20% impairment to the body as a whole, constituting eighty (80)

weeks of compensation at $358.41 per week for a total award of $28,672.80. It was further

found that Husband could wisely manage a lump sum award and that it was in Husband’s

best interest to receive a lump sum award. 

The workers’ compensation statutes set out specific schedules over which a

workers’ compensation award is to be paid. Injuries to certain limbs or areas of the body
2W hile Husband elected to receive a lump sum settlemen t, such lump sum settlement was based

upon the original order of $358.41 per week, constituting eighty (80) weeks of compensation. Any award of

alimony should take into consideration that this income imputed to Husband will terminate after eighty (80)

months. The trial court may also consider any other relevant factors, includ ing the rea lity that th is award is

designed to replace lost income of Husband for the remainder of his work ing ca reer base d upo n Hu sband’s

twenty percent (20%) impairment to the body as a whole.

7

are paid out over a preset amount of weeks. Injuries not enumerated in the statute are

apportioned to the body as a whole, which has a value of 400 weeks, and are paid out over

the amount of time of 400 weeks multiplied by the impairment percentage. In the case at

hand, 20% impairment, with a value of 400 weeks, results in compensation payments for

a period of 80 weeks. Husband then had this amount converted to a lump sum payment.

Based upon these figures provided in Husband’s workers’ compensation order, the

sum which Husband was entitled to receive during the marriage would be equal to the

proportion of Husband’s settlement as five (5) months bears to eighty (80) weeks, rather

than the proportion as five (5) months bears to three hundred thirty-eight (338) months, as

set out by the trial court. While the workers’ compensation award does relate to Husband’s

diminished capacity for the remainder of his working career, pursuant to the workers’

compensation order Husband was entitled to receive $358.41 per week for a period of 80

weeks.

We find that the trial court erred in calculating Husband’s workers’ compensation

income for said period of time and methodically dividing said amount equally between the

parties as marital property. The overall purpose of workers' compensation law is the

replacement of lost wages. See Van Hooser v. Mueller, 741 S.W.2d 329, 330 (Tenn.1987).

In keeping with this general principal, all workers’ compensation income received by

Husband should have been treated as income available for payment of alimony and child

support (as will be discussed more fully later in this opinion).

 As the trial court erred in its treatment of Husband’s workers’ compensation

income, we reverse the award of $212.00 to Wife and remand this issue to the trial court

for determination of Wife’s entitlement to alimony considering Husband’s workers’

compensation award ($358.41/week) as additional income of Husband.2
3

Tennessee Code Annotated §50-6-223 has been amended effective May 19, 1998. While much of

the language is changed, the amendment does not appear to clarify the issue presented in this case.

8

IV. Child Support and Workers’ Compensation Settlement

 Wife’s final contention is that the children should receive 32% of the workers’

compensation settlement as child support. The trial court set child support at the sum of

eighty-two ($82.00) dollars per month for each minor child. The trial court did not consider

Husband’s workers’ compensation settlement as income for the purposes of setting such

child support. Husband asserts that the trial court was correct and that Tenn. Code Ann.

§50-6-223 exempts compensation claims from claims of creditors with two exceptions that

do not apply in this case.

The Child Support Guidelines state in pertinent part:

Gross income shall include all income from any source (before

taxes and other deductions), whether earned or unearned, and

includes but is not limited to, the following . . . workers’

compensation benefits whether temporary or permanent . . .

Tennessee Department of Human Services Child Support Guidelines Chapter 1240-2-4-

.03(3).

Tennessee Code Annotated §50-6-223

3

 deals with the assignability of compensation

claims.

§50-6-223 Exemption and nonassignability of

compensation claims -Exceptions to nonassignability - (a)

No claim for compensation under this chapter shall be

assignable, and all compensation and claims therefor shall be

exempt from claims of creditors.

(b) Notwithstanding the provisions of subsection (a) to

the contrary, the court may assign up to fifty percent (50%) of

such compensation made by period payments to fulfill a valid

present and prospective child support obligation; provided, that

such assignment is administered in accordance with §50-2-

105. However, no such assignment may be made for

arrearage in child support.

(c) Notwithstanding the provisions of subsection (a) to

the contrary, the court may assign up to twenty percent (20%)

of a lump sum settlement to satisfy a judgment for arrearage

in child support.

Subsection (a) states that workers’ compensation is not assignable and is exempt

from claims of creditors, while sections (b) and (c) spell out the exceptions to that general

principle. The language of section (b) allows a court to assign up to 50% of workers’
9

compensation benefits made by periodic payments to fulfill a present and prospective child

support obligation. Nowhere in the statute does it specifically state that a lump sum

settlement can be similarly assigned. Some courts have thus refused to consider a lump

sum workers’ compensation settlement as income for the purpose of setting child support.

However, such a reading of this statute would be contrary to the spirit of the statute and

contrary to public policy.

The objects of the Workers’ Compensation Act prohibiting assignment of

compensation claims and exempting them from creditors claims, are to insure application

of awards to necessities of injured employees or their dependents and prevent them from

becoming public charges. Prime v. Dunaway, 50 S.W.2d 223 (Tenn 1932). Although the

statute is worded in terms of periodic workers’ compensation payments, it is illogical to

conclude that the legislature intended lump sum awards to be exempt when used for the

same purpose. 

The provisions found in the guidelines and Tenn. Code Ann. §50-6-223 were

addressed by the Tennessee Supreme Court in Gonsalves v. Roberts, 905 S.W.2d 931

(Tenn. 1995). In that case the trial court refused to consider the father’s workers’

compensation permanent disability benefits as income and the wife appealed. Ultimately,

the Supreme Court reversed the lower courts and held that workers’ compensation

permanent disability benefits were income for the calculation of child support obligations.

Id. at 932. 

Although the Gonsalves case dealt with periodic workers’ compensation payments

rather than a lump sum settlement, the Supreme Court spoke on the purpose of the child

support exceptions to the general rule of nonassignability. The Court found that the

legislature enacted Chapter 224 of the Public Acts of 1991, adding subsection (b) and (c)

to Tenn. Code Ann. §50-6-223, in recognition of the duty to support and the pervasive

tendency in recent times by parents responsible for child support to avoid that

responsibility.
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The Illinois Appellate court addressed the issue of lump sum workers’ compensation

settlements and concluded that a person’s lump sum workers’ compensation settlement

was income for the purposes of determining child support. The court reasoned that it would

be illogical to treat the two methods of payment differently. 

To reach this unreasonable result, one must conclude that the

legislature intended to require a parent who elects to receive

a workers’ compensation award in the form of periodic

payments to include the award as income for the purposes of

meeting his child support obligations, while, at the same time,

permitting another parent, merely because he elects a lump

sum workers’ compensation award, to escape the duty of

applying the award to his child support obligations. Statutes

are to be construed in such a way that they have a reasonable

meaning and are accorded an interpretation that will not lead

to absurd consequences. 

In re Marriage of Dodds, 583 N.E.2d 608 (Ill.App. 1991).

As stated above, the object of the Tennessee statute is to insure the workers’

compensation award will be available for use by the injured party and his dependents.

Subsections (b) and (c) of the statute excepting child support from the general rule of

nonassignability were enacted in recognition of a parent’s duty to support his or her

children. These goals are the same whether the injured worker receives periodic payments

or elects to receive a lump sum settlement. 

Husband could have taken his settlement in periodic payments. Instead, Husband

elected to transform his right to receive periodic payments into a lump sum present day

cash value pursuant to Tenn. Code Ann. §50-9-229. Husband should not be allowed to

escape the duty of applying this award to his child support obligation merely because of

this election. The election to receive a lump sum settlement rather than periodic payments

should not eliminate Husband’s duty to pay child support on that amount.

Furthermore, it is the State’s policy that parents support their children. If the parties

had not divorced, the children would have shared, at least in part, in Husband’s improved

economic status. As recognized in Nash v. Mulle, 846 S.W.2d 803, 804-05 (Tenn. 1993),

one purpose of the guidelines is to ensure that when parents live separately, the economic
11

impact on the children is minimized to the extent that either parent enjoys a higher

standard of living, the children share in that higher standard. Nash further held such

purpose consistent with the long established common law rule requiring a parent to provide

support in a manner commensurate with his means and station in life. Klemetsrud v.

Klemetsrud, No. 02A01-9306-CV-00150, 1994 Tenn. App. LEXIS 565, at *4 (Tenn. Ct.

App. October 12, 1994). 

For all the above stated reasons, this Court holds that Husband’s lump sum workers’

compensation settlement is income for the purposes of determining Husband’s child

support obligation.

V. Calculation of Child Support Obligation

Husband argues that the award is compensation for reduced earning capacity for

338 months. The net received by Husband proved to be $22,938.24, the equivalent of

$67.86 for each of those months. Husband argues child support on this amount would

equal approximately $9.27 per month per child under the Child Support Guidelines.

It is true that the award is intended to compensate Husband for reduced earning

capacity over the remainder of his working career. However, pursuant to the workers’

compensation statutes, and as set out in the order awarding workers’ compensation

benefits, Husband was entitled to an award of 20% impairment to the body as a whole,

constituting eighty (80) weeks of compensation at $358.41 per week.

Had Husband not chosen to commute the periodic payments to a lump sum award,

a court would be free to assign up to 50% of such compensation made by period payments

to fulfill a valid present and prospective child support obligation pursuant to Tenn. Code

Ann. §50-6-223(b). While the periodic payments constituting eighty weeks of compensation

are equally intended to compensate Husband for reduced earning capacity over the

remainder of his working career, the legislature chose to make such periodic payments
4

This approach may not work in the area of settlements of disputed workers’ compensation claims.

Tennessee Code Annotated §50-6-206 gives interested parties the right to settle all matters of compensation

between themselves. In these case s it may be difficult, or impossible, for the trial court to ascertain the

equivalent periodic payments. As such a matter is not before this Court, we leave that issue for another time.

12

subject to income assignment for child support. We see no reason to calculate the amount

of support due differently when based upon periodic payments or a lump sum settlement.

In setting Husband’s child support obligation, the trial court will, in essence, have

to convert the lump sum settlement back into the equivalent periodic payments.4 This can

generally be done by looking to the original order awarding workers’ compensation. After

determining the correct monthly award, the appropriate child support percentage should

be applied to this amount. The result will be the obligor’s monthly support obligation. If the

obligor has other monthly income, the child support obligation shall be based upon the

obligor’s total monthly income. 

This process is necessary to arrive at the correct child support obligation. The trial

court shall not merely apply the appropriate child support percentage to the entire lump

sum. Such a procedure would result in the overpayment of child support in situations where

the obligor’s child support obligation is set to terminate before the periodic workers’

compensation payments would terminate.

In the recent case of Hobbs v. Hobbs, No. 01A01-9808-CH-00418, 1999 WL 86973

(Tenn. App. Feb. 23, 1999) this Court dealt with this issue of whether a lump sum workers’

compensation settlement is income for the purposes of child support. In dicta explaining

why the child support percentage should not be applied directly to the lump sum amount

this Court gave the following example:

Take for example an obligor with a twelve (12) year old child,

who receives a lump sum workers compensation award

designed to compensate him for the next fifteen (15) years.

The obligor’s child support obligation will legally terminate in six

(6) years when the child reaches age eighteen (18). If the trial

court were to apply the child support percentage to the entire

lump sum, the child would be receiving a share of obligor’s

income for the entire fifteen (15) year award, rather than the

six (6) years to which he is entitled.
13

Id. at *4.

This Court wishes to clarify that the language found in that example “designed to

compensate him for the next fifteen (15) years” envisioned an award which, when broken

down into the original periodic payments, would extend over a period of fifteen (15) years.

Said fifteen (15) year period does not represent the period of time between injury and age

sixty-five (65). It should also be noted that this particular example, while sound in principle,

could only occur in the case of permanent total injury. All other workers’ compensation

payments are made during a prescribed period of time not to exceed four hundred (400)

weeks, or approximately 7.7 years.

This Court is mindful that Husband may diminish or deplete the lump sum

settlement before his children reach the age of majority and before his child support

obligation is fulfilled. We therefore note that, after determining the correct monthly child

support obligation, the trial court may wish to calculate the total amount of support due

(based upon the workers’ compensation award) for the remainder of the children’s minority

and award a lump sum to the obligee if the court believes there is a potential for loss of the

funds. Naturally, the obligor would remain obligated to pay monthly child support in the

appropriate percentage based upon his other monthly income.

VI. Conclusion

The judgment of the trial court with regard to the division of the parties’ pensions is

hereby affirmed. The judgment of the trial court regarding the division of Husband’s

workers’ compensation award and regarding Husband’s child support obligation is reversed

and remanded for further proceedings consistent with this opinion. Costs of this appeal are

taxed equally against Husband and Wife, each liable for one-half, for which execution may

issue if necessary.

 

HIGHERS, J.

CONCUR:

 

CRAWFORD, P.J., W.S.
14

 

FARMER, J.