# FILED
Novemb er 5, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) BARBARA BEEM, ) Shelby County Circuit Court ) No. 144550 R.D. Plaintiff/Appellee. ) ) VS. ) C. A. NO. 02A01-9511-CV-00252 ) ROBERT ALAN BEEM, ) ) Defend ant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis
. Honorable George H. Brown, Jr., Judge
David E. Caywood , Marc E. Reisman , CAUSEY, CAYWOOD, TAYLOR, McMANUS & B AIL EY, Memphis, Tennessee Attorney s for Def

endant/A ppellant
.
Kay Farese Turner , Charles W. McGhee , TURNER & McGHEE, Memphis, Tennessee Attorneys for Plaintiff/Appe llee.

OPINI ON FIL

ED: AFFI RMED AS M ODIFIED AND REMA NDED

FARMER, J.
LILLARD, J. : (Concur s) SUMMERS, Sp. J. : (Concur s)Defend ant-App ellant, Robert Alan Beem (“Husband”), a ppeals the judgment of the trial court ordering him to pay child support, alimony, and attorne y’s fee s to Plaintiff-Appellee, Barbara Beem (“

Wife”).

The parties weredivorcedin October 1994 by a final decree which incorporated the terms of the parties’ marital dissolution agreement (“MDA”). Pursuant to the MDA, the Wife was granted sole cust ody of the pa rties’ tw o minor ch

ildren, w ho were 16 and 14 y

ears of age a t the time of the div orce. A s pertine nt to this ap

peal, the MDA also c ontained

the following prov

isions:

2. Th e parties mutually ag ree one with the other that th e Husband shall pay

to the Wife

as child s u pport the s um of $272.00 per month commencing on September 1, 1 994 for a period of eight (8) months. The amount of child s upport be

ing ag reed upo n is basedupon rep

resenta tion of the Husband t

hat he is unemployed and making $850.00 per month. However, the parties further agree that in the event the Husband becomes employ ed during the eight (8) month period in which he pay s this amount of child support, then and in that eve

nt, the ch ild suppor

t guidel ines will a

pply to his t hen and there exis ting inc ome . At the end of the eight (8) month period, wheth er or not the

Husband i s employ

ed, the child suppor

t will b e automatic ally

raised to the guidelines based upon a minim um gross income of $40,000.00 or

the Husband’s actual income, whichev er is greater. 3. The par

ties have further agreed that the

Wife is ent

itled to al im on y, however, the decision regar ding the amount and length of time she will r

eceive such alimo ny s hall b e deferred for a per iod of eigh t ( 8) months from August 15, 1994, at which time there will be a hearing before the Court on the alimony issue for determination of the amount and length of time to which shemay be entitled to such al im on y. 4. The parties mutually agr ee that eac

h party shall be s olely responsi ble for th eir own a ttorney ’s fees
.

. . . . 7. Hu sband shall keep the Court advised and Wife adv ise d during this eight (8) mon

th period of

time of all developments relative to his employment and will relay through his counsel this information to be relay ed to Wife’s counsel regarding his employment status, the amount of money

he is making, tog ether wi th docume

ntat ion either in the form of a pay

stub or other certification of his employ ment and current wages. . . .

In accord ance with these pr ovisions, the trial court conducted an evidentiary hearing in July 1995 to determine the amount of child s upport and ali mo ny to be a war ded th e W ife . In August 1995, the tr ial co urt en tered i ts ju dgment orderi ng:1. . . . [T]hat [the Husband] shall pay to [the Wife] , as rehabilitative alimony, the sum of $750 per month for three ye ars to be increa sed to the

su m of $ 900 per month for four y ears for a total of se ve n ye ar s r eh ab il it at iv e a li mo ny. 2. That [ the Husband] shall pay to [the Wife] the sum of $1,059 per

month as child support for the parties’ two minor children, such sum being based upon an income of $55,000 per yea r and such sum being

consiste nt with the

child supp ort guid

elines. 3. [That the H usba nd] shall p ay to [the Wife] the sum of $1,900 as ad di ti on al al im on y in solido to b e us ed by her to pa y the fees of her c ounsel fo

r repre sentation

in this matter no w before the court.
On appeal, the Husband presents the following issues for review:

1. Did the trial court

err in awarding seven y

ears of alimony to be paid at the ra te of $750.00 per month for the first three y ears and $900.00 per month for the following four y ears where [ the Wif

e] is a certified public accountant gainfully employed by

Feder al Express whose income is sufficient to meet her reasonable needs, w here her earned income is appro xim ately equa l to that of [the Husband] and where ten and a half months before the hea ring, [the Wife] repres ented to t

he court that she o nly

needed $500.00 per

month for three y ears? 2. Did the tr ial court err in allowing [the Wife] to testify about communications which took place between the

parties during settleme nt nego tiations? 3
. Did the tri al court e

rr in basing [the

Husba nd’s ] c hil d supp o rt obligation on an annual income of $55,000.00 where the parties’ marital dissolution agreement which was approv ed by the trial court provided that child support wo ul d be based upon [the Husband’ s] actual in

come or $ 40,000.00

annual incom e whichever was greater and where

the evidence showed th at [the Hus band’s] actual income was no more than $42,000.00 per y ear? 4. D id th e trial court err in awarding a n attorney fee to [the Wife] wh er e t he pa rt ie s h ad ag re ed th at th ey w ou ld pa y t heir own attorney fee and where [the Wife] has sufficient funds to pay her own fe e?

I. Child Suppor t

As an ini tial matter, we conclude that the trial court erred in or dering the Husband to pay child support in the

amount of $1,059 per month based on the court’s finding that the Husband had the abilit

y to earn a g ross annu al income

of $55,000 ($4,583 per month). The evidence at thehearing below established that the Husband earned in excess of $55,000 from his former

employment

with Kimberly-Clark; howeve r, the Husband left

Kimberly-Clark in 1994 whe n his job
wa s e li mi na te d. At th at ti me , t he Hu sb an d, an en gi ne er in th e p ul p a nd pa pe r i nd us tr y, decided to start his own consulting business. The Husband testified that he also sought employ ment at various companies from which he solicited business, and he pr

ovided hisresume

to a number of employme nt search firms, but

the Husba

nd’s eff orts to obta

in a full- time positio n were u nsucces sful.

At the time the partie s entere d into the MDA, the Husband was unemployed and wa s earning no income from

the business. By the da

te of the hearing, however, the Husband r

eported ly
was earning

a grossmonthly

income of $2,970 . During

the peri od from Ma

rch 16, 1 995, to June 30, 1995, gross receipts from the Husband’s business totaled $35,086.95. During that same period of time, the Husband reported business expenses of $24,691.71. According ly, the Hu sband’s g

ross income from self-em ploy ment for t his three -and-one-half

month period was $10,395.24, or $2,970 per month. The Husband testified that business was improving and that he anticipa ted being able to earn a gross income of $3,500 per month for the remainder of the year.

In imputing $55,000 in gross annual income to the Husband, the trial court appea red to be influenced

primaril y by two findings: (1) that the H usband e arned in

excess of $55,000 w

hile still employed by

Kimberly-Clark, a

nd (2) that, as a sole proprietor, the Husband had “a motivation to not be productive” and “to minimize” his reported income.

We recognize that

the Child Support Guidelines authorize the imputation of income to an oblig or spouse

who is willf

ully and volun

tarily unemploy

ed or und eremplo ye d. In

such cas es, the trial court may de

termine the obligor spouse’s potential income based on evidence of the obligor’s educati onal l evel o r previous work experience. See Tenn. Comp. R. & Regs. tit. 1240, ch. 2-4-.03(3)(d) (amended 1994). Her e, however, the record contains no evidenc e that the Husband was willfully and voluntarily unemployed or under

employed. It

was undisputed that the Husband left Kimberly-Clark because his position was eliminated. No evidence was introduced at the hearing to contradict the Husband’s testimony concer ning hisattempts t

o solicit bu siness or

to obtain f

ulltime employment. Further , in entering into the MDA, the parties agre ed that the Husband was then unemployed; that, if

the Husba

nd beca me employ

ed in the s ubseque

nt eight -month period, t he childsupport

guidelines w ou ld ap pl y to his “exist ing” inc ome; and t

hat, at the conclu sion of theeightmonth period, t he child s upport g

uideline s would

be applied either to $40,000 or to the Husband’s “actua l” income, whichever

was greater. We believe that, under these circumstances, the trial court should not have r

elied upo n the Husb and’s fo rmer sal ary

at Kimber

ly- Cl ark in determining the Husband’s cur

re nt potential income. Cf. Riley v. Riley , 1995 WL 311331 (Tenn. App. 1995) (husbandv olunta

rily left employ

ment with school board where he was earning over $28,000 annually and unsuccessfully a

ttempted to earn living as farmer); Myers v. Myers , 1995 WL 140754 (Tenn. App. 1995) (husband voluntarily terminated oper ation of profitable trucking business which was netting in excess of $40,000 per y ear).

The more difficult issue presented in this case is whether the trial court’s expressed skepticis m regarding the Husband’ s reported gross income from self-e mployment

justified the imputation of income to the Husband. After a caref ul review of the record, we conc lude that the evidenc e does no t support th e imputati on of inco me on this b asis.

In calculating gross income from self- employment, the Husban d was entitled t o deduct “reasonable expenses necessary to produce such income.” Tenn. Comp. R. & Regs. tit. 1240, ch. 2-4-.03(3)(a) (amended 1994). Excluded from “reasonable expenses” are “[d]epreciation, ho me office s, excessive promotional, excessiv e travel, excessive car expenses, or excessive personal expenses.” Id. At the hearing, the Wife questioned the high amount of e xpens es claimed by the Husband for a home business, as well as the extensive traveling done by the Husband

in connection withthe busine ss. The Wif e also te stifie d that t

he Husband formerly

had a contract with Federal Express that, had it “beenon an annual basis,” would have grossed the Husband a bout $80,000 per year. On cross-examination, the Husband acknowledged that such a contract existed, but he testified that Federal Express canceled the contra ct in July 1994. At the hearing’sconclusion, the trial court specific ally

declined to findthat the H usband ha

d enga ged in any dishonest

y in reporting his g

ross income from self -emp loymen t, but the court indicated that it would view the Husband’s financial statement and documents “with some degree of ske pticism.”

We understand the trial court’s concern that, where the obligor spouse is selfemployed, the poten

tial exists f

or the obl igor to manipulat

e his rep orted inc ome eithe r by failing to1 The Wife takes issue with the fact that the Husband’s business expenses exceeded

seventy percen t of his g ross business rec eipts. Abs ent a spe cific finding by the trial court, however, we are unwilling to conclude that this percentage alone rende red the Husband’s business expenses unreasonable. We note, for example, that in Burchfield v. Nave , 1994 WL 13374, at *1 (Tenn. App. 1994), perm. app. denied , the expenses from the parties’ apartment rental b usiness e

xceeded s ixty- two perc ent of the ir gros s recei

pts. aggr essively solicit bus iness or b y in

flating his business expenses, thereby minimizinghis income. See, e.g., Koch v . Koch , 874 S.W.2d 571, 578 (Tenn. App. 1993) (recognizing difficulty of establishing husband’s self-employ ment income from commercial paintingbus in ess ). In this case, however, neither

the trial court’s findings nor the evidence at the he aring below demonstrated that the Husband was, in fact, manipulating his income. To the contrary , all of the evidence indicated that the Husband had successfully sought clients for his consulting business and that he was actively
en gaged in pursuin g new c lients. F urther, in light o f the tria l court’srefusa

l to find th at th e Husband’s financial documents contained any “untruths,” we are reluctant to infer that the trial court found the Husba

nd’s business expenses to be unreasonable. Even if such a finding by the trial court could be inferred from the record, we believe that the evidence preponder ates against such

a find ing.
Although the Husband

admitted that his expenses were not audited or reviewed by
a third party, our re

view reveals no thing unr easonab le about t

he Husba nd’s cla imed business expenses. It was undisputed that the nature of the H usband’s business involved extensive trav el
. Contrary to the Wife’s position, the evidence indicated that the Husband may ha

ve saved money

by driving his personal car and stay ing with friends on out-of-town trips, as well as by purchasing used, rather than new, equipment for

his busine ss, such as a camcorder and a lap- top computer. Some of the Husband’ s travel e

xpenses we

re later reimburs ed by

clients, but in those situations, the Husband testified, he properly

included the reimbursement as pa rt of h is gr oss bus in ess rec eip ts . In accordance

with the Child Support Guidelines, the Husband did not deduct business expenses relative to maintaining his office at home. See Tenn. Comp . R. & Reg s. tit. 1240, ch. 2-4-.03(3)(a) (amended 1994). 1

Based onthe foregoing evidence , we conclude that the record does not support the imputation of income

to the Husband in excess of $3,500 per month, the amount suggested by the Husba nd below an d on appeal. Accordingly , as the Husband requests, we modify the Husband’s child support obligation to $833 per month. See T enn. C omp. R. & Regs. tit. 1240, ch. 2-4(amended 1994). Nevertheless, in an eff ort to ensure the Wife access to information which might justify any future

modification of child support, we direct the Husband to provide

the Wife w ith all pertinent financial documents, including W-2's, 1099 taxforms, tax returns, and any other evidence of income earned by

the Husband, each year as soon as such documents become available
. See Jones v. Jones , 1993 WL 523567, a

t *2 (Tenn . App. 199 3); see also Merritt v. Merritt , 1992 WL 220160 (Tenn. A

pp. 1992) . This oblig ation sha ll apply to the 1995 tax y

ear and shall con tinue until Husband’s obligation to pay child support ceases.

II. Alimony

We decline to disturb the trial court’s award of rehabilitative alimony to the Wife

in this case. A s previou sly

indicate d, the tria

l court a warded the Wife a

limony in “the sum of

$750 per month for three ye ars to be increased to the sum of $900 per month for four y ears for a total of seven yearsrehabilitative alimony.” Th e Husba nd concedes that the Wife was entitled to an award of rehabilitative alimony. The Husband contends, however, that the trial court er red in determining the amount and duration of alimony to be awarded bec ause the Wife failed to demonstrate a need for such a l ar ge aw ar d. Al te rn at iv el y, the Husband argues that the alimony award should be reversed because, in a prior pleading, the Wife soug

ht only $500 in alimony for a pe

riod of three y ears and, thus, the Wife was estopped from seeking more than this amount in a later plead ing or a t the h earing.

Pursua nt to Local Rule 14C of the Shelby County Circuit Court, the Wife filed a financial affidavit reflecting her monthly income andexpenses. See Shelby County Cir. Ct. R. 14 C. After deducting expenses from net income, the Wife’s financial affida vit reflected a mo nthly

deficit of $1,805. After deducting from this amount the $833 in child suppo rt awarde d in this case, as modified, the Wife’ s financ ial affi davit still w ould ref lect a mon

thly deficit of $972. Ac co rd in gl y, if accept ed at fa ce value , the Wife’ s financ ial affi davit dem o nst rates a

need for alimony in excess of the monthly

amounts awarded of $750 and $900. The

Husband c ontends, however , that the deficit reported was inac curate

because the Wife’ s affida

vit overstated her monthly e xpenses while under reporting her income.

We first reject the Husband’s argument regarding the reasonable ness of the Wife’smonthly

expenses a s reflected in her affida vit. Based upon its award of alimony to the Wife, the trial court evidently found the Wife’s c laimed monthly ex penses of approximately $4,377 to be reasonable, and we conclude that the e v idence does not preponderate ag ainst such a finding. See McPherson v. McPherson , 1992 WL 247639, at *2 (Tenn. A pp. 1992) ; see also Quarry v. Quarry , 1992 WL 1417 96, at *5 (Te nn. Ap p. 199 2). At the he aring, the Husband challenged only four listed expenses of the Wife. First, the Husband contended that any expenses l

isted on be

half of th e partie s’ sixteen-year- old daughter were inflated bec ause the daughter worked twenty hours per week and earned enough money to contribute to her

own expens es. The Wif e tes tified, however, that the daught er paid o nly

a limited a

mount of he

r own expe

nses, such as ente

rtainmen t and ga s, and that the daughter did not pay for rent, food, or insuran ce. T he Wife’saffida vit listed mo nthly entertainment

expenses for both children as $100, and the affidavit did not list any expenses for gas for the daug hter’s c ar. Eve

n if the da

ughter paid for all of he r own ent

erta inment expenses , therefore, at most the

daught er’s income wo uld reduce the Wife’s monthly expenses by only

$50 (half of the children’s entertainment expenses).

Next, the Husband challenged the Wife’s listed monthly expense of $50 for charita ble contribu tions, but th

e Husband has not challeng ed this expe nse on ap peal.

On appeal, the Husband

does challenge several items listed under the Wife’s claimed homemaintenance expense of $490.66, arguing that many of the items repr esent one-time, and not annual, expenses. We note, however, that the H usband did

not chall enge th

ese specific itemsat the hearing below. Instead, the Husband made the general

argument that $490.66 for home maintenance
was excessive

because it was “ju st a little

bit less” than the rent the Husband was pay ing fora twobedroom apartment. We also note that the Husband could have cross-examined the Wife regarding these specific home maintenance expenses, but apparently chose not to pursue this line of quest ioni ng.

Fin al ly, th e Husband challenged the Wife’s listed monthly expense of $125 for a family vacation fund, stating through his counsel that “[t]hat may or may not be able

to be done right now.” The tr ial co urt, h owever , addr essed this argumen t from the be nch, s tati ng:2 Apparently, the Wife did not beg in working for Federal Express until 1993 or 1994.
3 Ina smuch as t

he Wife su fficien

tly d emonstra ted a need for alim

ony in the amounts awarded, we conclude that reve rsal of the alimony aw ard is not warranted by the trial court’s arguably erroneous admission of testimony conc erning statements made by the Husband during settlement negotiations. On appeal, the Husband contends that the trial cour t erred in allowing the Wife to testify that the Husband re fused to agree to pay

for the children’s college educ ations. The Husband argues that introduction of this evidence violate d Rule 408 of the Tennessee Rules of Eviden ce, whic h preclu des the in

troductio n of “[e]vid

ence of conduct o

r stateme nts made in compromise negotiations.” T.R.E. 408. Contrary to the Husband’s argument, a care ful review of the transcript indicates that the trial court sustained the Husband’s objections to the Wife’s testimony reg arding the Husband’s refusal to ag ree to pay for the children’s college educ ations. In a ny e vent, af ter rea ding the releva nt portion of the tra nscript, we rema

in convinc ed that th

is testimony did not affect the tria l court’s award of alimony in this case. I mean the Beem children and [the Wife a re] entitl ed to a vacation just like [the Husband]. He went fishing and did some other thin gs while he was out

west seeking employ

ment. And

he went to Destin, . . . . So she’s entitled to a vacation, . . . .

As for the Husband’s arguments reg arding the Wife’s income, the Wife’s testimony and her financial affidavit, which was filed as a n exhibit at the hearing below, indicated that the Wife’s monthly net income was $2,572. This amount included net monthly wag es of $2,335 from the Wife’s employment as an a ccountant with Fed eral Express, as well as net monthly income of $237 from the Wi fe’s emp l oym ent as co nservat

or of her father ’s estate . Additiona lly, on crossexamination, the Wife admitted that in 1994, the year pr ior to the hearing, the Wife received approxima

tely $2,000 in b onuses fr

om Fede ral Expre ss. Alt

houg h the

Wi fe testified that “there [had] been a number

of y ears when Fede

ral Expre ss [did] not g ive the bo nuses,” t he Wife a

lso admitted that she already

had received one bonus in 1995 for $1,400. 2

The Husband contends that the trial court should have included theWife’s bonuses in her income when thecourt determined the Wife’s need for alimony
. In determining the a mount and d urati on of the alimony to be awa rded in this case, the trial court was required to consider , among other fa

ctors, the relati ve earn

in g ca pacity and fina

ncial resources of each par ty, including income from all sources. See T.C.A. § 36-5-101(d)(1)(A) (Supp. 1995). Nevertheless, even if the trial court failed to include the Wife’s bonuses in her income, this failure does not require reversal of the alimony award. A

ccordingly , based on Wife’s demonstrated need for alimony , the trial court didnot err in awarding alimony in the amounts of $750 and$900 pe r m on th , r es pe ct iv el y. 3 If the Wife’s bonuses are added to her income, the Wife’s financi al affid avit still refl ects a mo nthly

deficitin excess of $800.

Given the duration of the pa rties’ marriage and the Wife’s contributions to the marriage, both tangibl e and inta ngible, we likew ise conc lude that the trial court did not abuse

its discret ion in establ ishing a seven-year term for the alimony award. See, e.g., Quarry v. Quarry , 1992 WL 1417 96, at *4 (Tenn. Ap p. 1992); see also T.C.A. §§ 36-5-101(d)(1)(C), (J) (Supp. 1995). The evidence at the hearing showe d that the parties were ma rried fo r twenty -three ye ars. I n the ear ly ye ars foll owing t he part ies’ m arriage , the W ife wo rked fu ll-t ime an d put the Hu sband throu gh colleg e. The Wif

e quit wor

king outs ide the ho me after the birth o f the par

ties’ first child. During the marriage, the parties reloca ted to a diffe

rent city at least five times while the Husband worked to advance his career. In 1986, when the parties had been married appr oximately fifteen y

ears, the Wife returned to college to obtain a n acc ounting degree. After obta ining her degree, the Wife became a certif ied public accoun tant. At the time of the divorce, the Wife had been working as an accountant

for Federal Express for less than two y ears. During the eight- or nine -mont h period betweenentry of the f

inal divorce decree

and the hearing below, the Wife supported herself a nd the children with only minimal child support and no alimony payments from the Husba nd.

Fi na ll y, we reject

the Husband’s argument that the Wife was estopped fr om seeking
more alimony

at the he aring t

han she r equeste d in a previous plea ding. Th e Wife’s initial cla

imfor alimony in the amount of

$500 per month for three years was made in a memorandum filed with the court approxima

tely eleven m onths prio

r to the he aring p

ursuant t o Local Rule 14D of the

Shelby County Circuit Court. Rule 14D requires counsel in contested divorce cases to provide t o the cour t, prior to trial, a memoran dum setting

forth the party’s position with reg ard to the various legal issues before the cour

t, such as grounds for divorce, visitation, child support, disposition and value of the marital home, disposition of any other property, a

limony, and attorney ’s fees. See Shelby County Cir. Ct. R. 14D. Approximately one month prior to the hearing in this case, the Wife amended her proposed alimony award to request $1,000 pe

r month fo

r a peri od of eig

ht y ears.

Under the doctri ne of “ju dicial es toppel,” where a person st ates unde r oath in prior litigation, “either

in pleadings or testimony, tha t a fact is true, she will not be permitted to deny that fact in subsequent litigation.” Cardin v. Campb ell , 920 S.W.2d 222, 223-24 (Tenn. App. 1995).4 Rule 14C requires the partie s in “all c ontested divorce s or suits f

or separ ate maintenance” to submit sworn statements of their monthly income and expenses. See Shelby County Cir. Ct. R. 14 C(1). Rule 14C speci fically

permits th

e partie s to chang e their st atements “as soon as possible, and not later than ten (10) day s before the trial, unless circumstances beyond a pa

rty’s control ar

e shown.” Id. Even i f Rul e 14C d id no t perm it th e parti es to c hange their financial statements, we question whether principles of judicial estoppe l would prevent such chang es, inasm

uch as a p arty ’s financial posit ion may chang e betwe en the time the state ment is filed and the trial. See, e.g., Loveridge v. Loveridge , 1986 WL 5896, at *3 (Tenn. App. 1986) (refusing to extend doctrine of judicial estoppel to preclude husband f rom presenting proof of property va

luations which were different than those previously given in husband’s financial statement and answers to wife’s interroga tories). Princip le s of judicia

l estoppel may

also prevent a pa

rty from cha nging a lega l position a sserted

in prior liti gation, provided the position was asserted in a sworn pleading. Layhew v. Dixon , 527 S.W.2d 739, 741 (Tenn. 1975). Where the previ ous pleading was not sworn, however, and represented

“no more than the statements of position of the parties to that action,” estoppel principles do not apply beca

use “judicial estoppel s a re not favored and ordinarily do not arise out of mere unsworn pleadings.” Id.

The memorandum required by Rule 14D does not appear to be a sworn statement or plead ing, such as the financial affidavit required by Local Rule 14C. See She lby Co unty Cir. Ct. R. 14C. 4 Rather, t

he memor

andum app ears to r

eprese nt no m ore than the party ’s statement of position with regard to the issues before the court. Accordingly , principles of judicial estoppel do notapply to the Wife ’s me morandum filed pursuant to Rule 14D, and the Wife was not estopped from changing her position with reg ard to the alimony issue.
III. Attorney’s Fees

We also affirm the trial court’s award of $1,900 to the Wife as additional al im on y in solido to be used by the Wife to pay her attorney ’s fees incurred relative to the hearing below. The Husband insists tha

t the Wife s hould be r

equired to pay her own a ttorney ’s fees pursuant

to the ter ms of the part ies’ MDA, under which the parties mutually agreed to “be solely

responsible for

their own attorney’sfees.” Becaus e the MDA sp ecifically c ontemplated that a hearing would be held afte r eight months todetermine the alimony issue, the Husba nd argues, the a

ttorney ’s fee p

rovision a lso applied to the hea

ring be low. I n award ing atto rney ’s fees to the Wife , the tria l court ru led that, althoug h the fee provision

gover ned the pr

oceedings up to th

e date of the MDA, t

he provis ion did5 Section 36 -5-103( c) provi des that: The plaintiff spouse may r ecover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may rec over from the other spouse reasonable attorne y fees inc urred in enforcing any dec ree for alimony

and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce he aring and at any subsequent hearing, which fees may be fixed and allowed by the c ourt, before whom such

action or procee ding is pe

nding, in the discr etion of s uch cour

t. T.C.A. § 36-5-103(c) (Supp. 1995). not prec lude an a

ward of attorne y’ s fees in

future p roceed ings.

We agree with the trial court that the MDA’s a ttorney’s fee provision did not preclude
an award of attorney ’s fees to the Wife for the hearing be low. Alth ough the attorney’ s fee provision may have applied to the alimony he aring contemplated by the MDA, the provision did not apply to any future proceedings broug ht to enforce the child support provisions of the MDA as incorporated into the final divorce decree. I nstead of providing for a later hea ring to determine child support, the M DA placed a n affirmative, continuing obligation on the Husband to keep the trial court and the Wife advised of all developments relative to t he Husband’s em

ployment status, including the amount of income the Husband was making. This obligation required theHusband t o provide the Wife w ith docume ntatio n of his income, such as a pay stub or other certification. Further, if the Husband became employed during

the eight-month period, the MDA require d the Husb and to adj ust his child support pay ments in accordance with the Child Support Guidelines. At theconclusi on of the eightmonth period, the Husband’s child support obligationwould automatically incre ase in accordance withthe guid

elines ba sed on a minimum gr oss income

of $40,000 or the Husband’s actual income, whichever was greate

r.

Tennessee has long

recog nized “the

right of the custo dial par ent to bring suit to enforcethe children’s right of support and to recover reasonable attorney’s f

ees from the obligor spouse.” Silverste in v. Silve rstein , 1987 W L 18376, at *5 ( Tenn. App. 1 987) ( citi ng Graham v. Graham , 140 Tenn. 328, 334-35, 204 S.W. 987, 989 (1 918)). In this regard, Tennessee Code AnnotatedSection 3 6 -5-103(c) permits a custodial spouse to recover r easonable legal expenses incurred in any proceeding to enforce a decree for child support. Lumpkins v. Lumpk ins , 1995 WL 581417, at *5 (Tenn. App. 1995); T.C.A. § 36-5-103(c) (Supp. 1995). 5 In awarding attorney’s f

eespursuant

to section

36-5-103 (c), the

trial cou rt may consider proof of inability to pay, but

“ability to pay should not be the controlling consideration.” Sherrod v. Wix , 849 S.W.2d 780, 785 (Tenn. App. 1992).

At

the hearing below, the Husband admitted that he di d not adjus t his child support pay ments during t

he eigh t-month period as required by

the MDA. Although the Husband increased his child support payments at the conc lusion of the eight-month period, the Wife testified that she incurr ed additi onal attorney’ s fees because the Husband insisted on going to trial on the issue of child support when the part

ies were unable to

resolve their disp

ute. Acc ordingl

y, w e hold tha

t, despite the attorney’ s fee provision contained in the parties’ MDA, section 36-5-103(c) authorized the trial court to award the Wife $1,900 to cover her attorney ’s fees incurred relative to the hearing below. In so holding, we note that, althoug h the MDA contemplated that the parties would be responsi ble for their own attorney ’s f ees, the MDA also c ontempla

ted that th

e Husband would comply with the child support provisions of the MDA without resort to court action. The Husband should not be per

mitted toenforce the MDA’s attorney ’s fee pro vision ag ainst the Wi fe rela tive to
a h earing which was necessitated in pa rt by the Husband’s f

ailure to abide by the

ch ild suppor t provisions of the MDA.

IV. Conclusion

We modify

the trial court’s judgmen

t to order the Husba

nd to pay child support in the amount of $833 per month. Additiona lly , we orde r the Husb and to pro vide the Wif e with all pertinent financial documents and other evidence of income ear ned by the Husband in ac cordance with the di ctates o f this opinion. I n all other re spects, t

he trial c ourt’s jud

gment is affirme d. This
cause is remanded to the trial court for further proc eedings consistent with this op inion. Costsof this appeal are taxed one-half to the Husband and one-half to the Wife, for which execution may issue if ne ce ss ar y.

_______________________________ FAR MER , J.______________________________

LI LL ARD, J. (Conc

urs)

______________________________ SUMMERS, Sp. J. ( Concurs)