### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE March 24, 2004 Session

DANA BRYA

N ELLIS v. SUSAN

LYNN ELLIS (JOHNS ON )
Appeal from the Circuit Court for Hamilton County No. 91 DR 2801 L. Marie Williams, Judge

FILED MAY 17, 2004

No. E2003-01327-COA-R3-CV

Seve ral ye ars after Dana Bry an Ellis (“Father”) and Susan L ynn Ellis (Johnson) (“Mother”) we re divorced, Mother f

iled a petition see

king to in crease Father ’s child

support payments. Fa

ther filed
a counter claim see king a d ownward deviatio n in his chi ld su p port payments claiming he was exercising visitation

in excessof that contemplated by the Child Support Guidelines. After a trial, the Trial Court found Father’s annual gross wa ges were $80,000 and set curre nt child support pay ments based on

that amou

nt. The Tr

ial Court a

lso awar ded retr oactive child support to the dat e the petition for modification was filed and conclud ed the re troactiv e support

also shoul d

be based
on Father’s current salary of $80,000. The Trial Court denied Father’s reque s t for a downward deviationafter concluding it was in t he be st intere sts of the c

hildren not to redu

ce Father’s ch

ild support payment. Fa

ther appeals. We affirm in part, vacate in par t, and remand.

Tenn. R. App. P. 3 Appe al as of Right ; Judgme nt of the Cir cuit Court Affirmed in Part and Vacated in Part; Case R emanded

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., and B EN H. C ANT RELL , S P

. J., joined.

Lisa Z. Espy

, Chattanooga, Tennessee, for the Appe llant Dana Bry an Ellis.

Marvin Berke, Chattanooga, Te nnessee, for the Appellee Susan L ynn Ellis (Johnson).-2- OPINION
Background

Mother and Father were marrie d in August of 1982 a nd divorced almost ten ye ars later. At that time, the Trial Court con clu ded irreconcilable difference s had arisen between the parties , declare d them divorced, and incorporated into its Final Judgment a Marital Dissolution Agreement

("MDA" ) submitte d by

the part ies. I n th e MDA, Mot

h er was designated the primary residential parent of the parties' minor son and daug hter. Fath er had visitation with the children every other weekend from 6:00 p.m. on Friday until the childre n were taken to school the following Monday mor ning. In t

he weeks that Father had wee kend visitation, he also had visitation Wednesday

evening from

6:00 p.m. until the child ren wer e taken to sch ool t he fol lowi ng morn ing. Inthose weeks Father did not have visitation on the weeken ds, his visitation was from Wednesday eveninguntil the children were taken to school on Friday morning. Father

also had visitation one week at Christmas and one week during the summer . The par

ties alte rnated holidays. Fathe

r's chi ld support payment was se

t at $828 per month. In September of 1995, mother filed a petition for contempt and to modify. Mother claimed Father was behi nd on child

supp ort payments and in conte mpt of the Trial Court’s Final Judgment. Mother also sought to increase the amount of the child support she was receiving. Fathe r filed an answe r deny ing he w as in cont

empt of c ourt. Fa

ther also filed a counterclaim arguing that his child support payments should be dec reased because he

now had a third

child he was obligated to support and

because his visitation

with the parties' two minor children was much more than wa s contemplated

by the Child Support Guidelines ("Guidelines" ). A fter a hearing, the Trial Court concluded

Mother failed to establish she was e ntitled to a

n increa se in child

support pa

yme nts. The Trial Court also

conclude d that whil e Fathe r did prov e his visitation wit h the two children was signific antly

more than that contemplated by the Guideline s, it neve rtheless was not in t

he best interest s of the ch

ildren to l ower the

level of pay ments. An order was entered by the Trial Court on October 30, 1996, s etting f

orth thes e finding s. The record does not show that either party a ppealed this October 1996 Order.

OnJuly 5, 2000, Mother filed another petition to mo di fy, once agai n clai ming Fa ther's income had increased to such an extent that she was entitled to an increa se in child support pay ments. In his

answer, Father denied

there was an increase in his income sufficie nt to justify an increa se in his child support payments. Once a gain Father filed a c ounterc laim arg uing his c hild support payments should be reduced due to the significant amount of time the children were spending with him. Mother later amended her petition claiming Father was in contempt of c o urt because he was be

hind on ch

ild support pa

yme nts. Mothe

r also cla imed that, pursuant to the MDA, the parties were required to maintain an account for their son’s colleg e education and that Father had dissipated all of the funds in this account.

A hearing was held in January

of 2003. M other te stified th at she is a surgic al nurse employed at Erl ange r Hospit al in Chatt anooga . The pre

vious y ear she earned a gross income in-3-

excess of $47,000, which included a large amount of overtime. The parties’ son was seventeen y ears old and their daughter was thirteen. Mother f i led a sworn income and expense statement and testified to its contents at trial. According to Mother, her monthly expenses are $1,744 more than her net incom e from Er

langer Hospital. This short

fall, how ever, do es not tak e into ac count the

child support payments she

receives from Father. Mother a lso is remarried and

the shortfall likewise does not take int o accou

nt any financi al assista

nce Mothe

r rece ives fro m her cur

rent husb and who is gainfu lly employ ed. When a sked how m

uch fina ncia l assistan ce she r

eceive d on a month

ly b asis fromher current husband, Mother testified there was “no set

limit.” Mother’s monthly expenses for her an d the two children include $550 for food, $425 for clothing, $100 for la undry, $350 for recreation, and $550 for

school expenses. Mother testified the parties’ son is in the eleventh grade and is a member of

the band. Mother claimed the costs associa ted with th e band a

re appr oximately $2,000 per

ye ar and that Fathe

r does not contribu te to wa rd th is ex pe ns e. Mo th er al so st at ed sh e p ays the car insurance expense for the son. In addition, the parties’ daughter has filled out an applica tion hoping to attend a private school.

Mother testifie d that Fa

ther is sup posed to exercise visitation on Wednesday eve ning until he takes the children to school the following morning. On those weeks whe n Father does not have the children on the weeken d, his visita

tion is exten

ded to include Thursday a s well. According to Mother, when the child ren do no t attend sc

hool beca use of snow day s or the lik e, she en ds u p missing work to care for thechildren because Father cla ims he cannot take off from work. Mother also stated that even though Father is entitled to visitation with the children during spr ing break every other yea r, he has never exercised this right. Mother maintained a diary on whichshe indicated the va ri ou s d ays when Father was supposed to exercise visitation but for one rea son or another did not. The diary inc luded

various dates in 1996 through 2000. Other documents show dates on which Mother claimed Father did not exercise visitation during 2001 and 2002. Mother admitted, however, that on some of the days whe re sh e indicated Father did not exercise visitation, the children were with her on vacation.

Pursuant to the original divorce decree, the pa rties were to maintain two already existing account s and use t hese funds for the college educ ation of their two children. It was undisputed

at trial that one of these accounts contained approximately $12,800, u

p until the time Father began making w

ithdrawa ls from t his accountan d e ve nt ua ll y wi th dr ew al l o f t he mo ne y. Father admitted making the withdrawals and explained that they were made at times when he was experiencingfinancial difficulties and had no other liq uid asset s available, such as when he needed to replace the transmission in his vehicle. Father stated he fully intended at all times on replacing the money he withdre

w from this account.

Withregar

d to the al leged c

hild support arrearage, Mother

testified that she did not receive any child support pay ments from Father on approximately thirteen different occasions since June o f 2000 and Father was in arrears a total of $5,006.95. Mother also testified Father owed $346.31 in

medical b ills for th e childr en’s hea lth care treatme nt.1 The inc ome and ex pense st ateme nt f il ed b y Fathe r was based on his 2001 income . We have ad justed the releva nt figures to reflect F ather’s c urren t salary.
-4-

Father testified that, to his knowledge, he had not missed a

ny c hild suppor

t pay ments. Father testified his gross wages for 1999 totaled $57,036.54. His annual gross wages for 2000 a nd 2001 increased to $68,848. In 2000, F ather also received $11,050 fr om pensi on and I

RA distributi ons. For the f

irst thre e months in

2002, Fa ther wor ked for C ontin-U- Care Home Health Inc., and earned gross wag es of $17,616.04. Father then changed jobs ef fective April 1, 2002, and began working for Home Care Solutions, I nc. Father’s gross income for the remainder

of 2002 was $57,893.44, thereby r

esulting in total gross wages of $75,509.48 for 2002. As of the date he began working Home Care Solutions, Inc, F ather’s annual salary was $80,000.

Father maintained a calendar which he claimed showe d the dates on w hich he exercised visitation with the children. Accord ing to F ather, d

uring 20 02 the chi ldren we re with hi m a total of 174 days, which wa s typical of the amount of time the children have been with him since 1996. Father

disputed n

ot having the child ren on the

vast major

ity o f the day

s Mother c laimed to be those on

which he failed to exercise visitation. Father went on to claim that there were sever al times he exercised visitation in addition to the regularly scheduled visitation because Mother was unable to care for thechildren for one reason or the other. F ather testified to the various expenses he assisti ng in paying on the children’s behalf o ver and a bove the r

egular child supp ort pay

ments, suchas a class ring

for his son and the like. Father also stated that he give s both children spending money.
Father

filed an Income and Expense Statement with the Trial Court. Ac cording to this statement, Father’s net monthly income is $4,791.80. Father’s mortgage payment is $1,952.81 per month. Father claimed his monthly e xpenses exceeded

his net income by

approximately $550, nottakin g in to account child support pay ments made to Mother. 1 Some of the monthly expenses listedon the statement for Father and/or the children inc lude: $600 for insta llment con

tracts; $400 for food; $175 for laundry

and dry cle aning; $350 for recreation; $100 for the barber shop; and $300 for miscellaneous expenses.

Father identified a deed showing that hehad purchased a house on March 28, 1994, for $119,900. Father sold this house in March of 2000 for $ 185,000. Father then rei nvested t his money when he p

urchase d his curr

ent house for $2 37,00 0. His new ho use is large en ough so that the parties’ two children have their own rooms when they stay with Father

. OnFebruary

27, 2003, the Trial Court entered an Order resolving the various issues presented by

Mother and Father. I

n its Order, the Trial Court stated: Having heard the testimony of the parties and

witnesses and reviewing the exhibits

submit t ed into evidence, the Court finds Mr. Ellis’ income for 2002 is as found in Exhi b it 7 reflecting total earnin gs of $75,508.48. He chan ged employment in April of 2002,-5- going to work for Home Care Solutions. He has testified he will be earning $80,000.00 per yea

r. ... Clearly, a modific ation [in Mr. Ellis’ child support pa

yme nts ] is in or der as th ere has been a d eviation in
excess of 15 percent. Under th e Tenne ssee Child Support Gu

idelines, the support should be set at $ 1,515.84 for two children. The Court has reviewed the contentions of the part ies in detail concerning the request for deviation by Mr. Ellis. The Court find s it is not in the best interest s of the children

for a deviation to take place. The Court finds Mr. Ellis has not carried the burden of proof of e stablish ing that a deviationshould take place and th at a devi ation is ... in the best interest s of the children. Whereas, Mr. Ellis may spend more than the time presumed by the G uidelines with the children (although the proof is conflicted on th is issue), the Court finds that [the son] has band and other

expenses f

or activities whic

h contrib ute to his w ellbeing and [the daughter] is seeking augmentation of her educ ational experience in ways which may incur additional expense. Accordingly , no deviation is ordered.

The Trial Court then concluded t hat the modification in child support should be retroactive to July 5, 2000, resulting in Father owing Mother a total of $22,689.72. The Trial Court thenconcluded Father also was behind $5,006.95 in child su

pport pay ments and

$346.31 f or unpaid medical bi lls. Next, t he Trial Court stated that Father’s explanations for why he withdrew all the money out of the acc ount being

held for his son’s e ducation

“do not jus tify

his actions.” The Trial then state d:

Mr. Ellis is found in contempt for failure t o make ch ild

support and medic al p aym ents and for this withdrawal from the childre ns’ accounts and is sentenced to 10 day s in ja il for the child support arrearage a

nd t h e medical bills, plus 10 days in jail for the contempt for withdrawing funds from the child’ s accou nt, which sentences are suspended pending strict compliance with the orders of this Court.

The Trial Court establish ed a time tab le for Fa ther to pay the child support a

rrear age a nd unpaid medical bills, as well as a payment schedule for restoring the funds taken from the education fund. Father raises two issues on appeal, which we quote in reverse order:

I. The Trial Court er red i n failing

to reduc e Plaintif

f’s child support in accord ance wi th the Child

Support Gu

idelines.-6- II. The Tri al Court e

rred in r etroac tively

increa sing the

Plain tiff’ s child support obligation based on his current earnings r ather that averaging his earning s during the retroactive period.

Discussion

The factual findings of the Trial Court are accorde d a presumption of correctness, and
we will not overturn those fac tua l findings unless the evidence preponderate s against them. See Tenn. R. App. P. 13 (d); Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de novo standard of review, according no deference to the conclusions of

law made by the

lower courts.” Southern C onstructo rs, Inc. v

. Loudon Cou nty Bd. Of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).

The first issue we will address is whether the Trial Court erred whe n it con clu ded Father was not e

ntitled to a

downwar

d deviati on in his c hild suppo rt payments. The Guide lines detail what is tobe considered income of the obligor parent a nd how to calculate the child support payment depending on the obligor’s income and the number

of children subject to support. The amount of child s

upport es tablished

by t he Guide lines was “d esigned to apply to situations where children are living primarily

with one parent but stay ove rnight with the other parent at least as often
as every othe

r weekend from Friday

to Sunday, two week s in the summer and two weeks during h ol id ays throughout the ye ar.” Tenn. Comp. R. & Regs., ch. 1240-2-4-.02( 6). The Guidelines further provide that a “court may consider a downward deviation from the guidelines if the obligor demonstr ates tha t he/she is consiste ntly providing more care and supervision for the children tha n contemplated

in the rule.” Tenn. Comp. R. & Regs., ch. 1240-2-4-.04(1) (b). However, when consideringwhether to deviate upward or downward, primary consider ation must be given to what is in the best interest of the children. Tenn. Comp. R. & Regs., ch. 1240-2-4- .04(5).

InOct ober of

1996, the Trial Court ruled on Father’s first request for a downward deviation in child support payments, concluding Father demonstrated that he has “visited w ithhis children significantly in e

xcess of the every

other weekend and four additional weeks contemplated by th e Child Suppo rt Guidel ines.” N everthe less, the Trial Cour

t conclud ed it was n

ot in the be st interest s of the children to reduce Father’ s child support payments. The re cord does notreflect that any appe al was taken from this October 1996 order.

In State ex rel. Vaughn v. Kaatrude , 21 S.W.3d 244 (Tenn. Ct . App. 200 0), this Court acknowledged

the Trial Court’s discretion in setting the appropriate amount of child support payments , stat ing: Having found that the juvenile court properly determined that Mr. Kaatrude should pay

back ch ild support, we turn to the question of the prope r amoun t of the su pport. Set

ting chi ld support

is a discretionary

matter. See State ex

rel. Coleman v. Clay , 805 S.W.2d-7- at 755. Accord ingly, we

review child support decisions using the deferential "abuse of discretion" standa rd of review. This standard requires us to consider (1) whether the decision h as a suf ficient evidentiary

foundati on, (2) w

hether t he court correctly identified and properl y applied the appropriate legal principles, a nd (3) whether the decisionis within the

range of acce ptable a lternati ves. See BIF v. ServiceConstr. Co. , No. 87-136- II , 1988 WL 72409, at *2 (Tenn. Ct

. App. July 13, 1988) (No Tenn. R. App. P. 11 application filed). While we w ill set aside a discretionary decision if it rests on an inadequa te evidentiary f

oundation or if it is contrary to the governing law, we will n ot s ubstitute our judgment for that of the trial court merely bec ause we might have chosen another a lternative.

The goal of the statutes and re gulations gove

rning c hild support i s to assur

e that ch

ildren re ceive su

pport re asonably consistent with their parent or

parents ' finan

cial res ources. See She ll
v. Law , No. 03 A01-9608-CV-00251, 1997 WL 119581, at *4 (Tenn. Ct. App. March 18, 1997), perm. app. dismissed (Te nn. Jan. 29 , 1998). The statutes and regulations promote this goal by requiri n g the courts to set child support using guidelines developed by the Tennessee Department of Human Services to promote both efficient child support proceedings and dependable, c onsistent child support awards

. See Tenn. Code Ann. § 3 6-5-101(e) (Supp. 1999); Tenn. Comp. R. & Regs. r. 1240-2-4-.02(2)(b), (c) (1994).

Kaatrude , 21 S.W.3d at 248-49.

Addressingthe Trial Court’s denial of Father’s most recent request for a downward deviation, it appears the reason a downward deviation was denied

was the Trial Court’s continuing conclusionthat such a re duction in child support would not be in the best interest of the children. The Trial Court correctly

observed that there was conflicting proof on whether Father continued

to exercise visitation inexcess of what was contemplated by the Guidelines. Although the Trial Court seeming ly

held that Father had not met his burden of proving incr eased visitation, the Trial Court also stated that while Father “may” spe

nd more than the time contemplated by the Guidelines, due to other expenses such as band for the son and the daughter’s hope of a ttending private school, no deviationwould

be ordered. The Trial Court’s conclusions appear to this Court to be inconsistent
as to whethe

r Fathe r’s visita tion with th e childr

en excee ded the ti

me conte mplated b y th e Gui delines.

In Gray v. Gray , 78 S.W.3d 881 (Tenn. 2002), ou r Supreme

Court stat

ed as fol lows:

The Guideline s contemp late the downward deviation of an award of support in c a ses in which the child spends more equal amounts of time with each parent than the schedule presumed under Tenn. Comp.-8- R. & Regs. 1240-2-4 -.02(6) . Tenn. Co mp. R. & Re gs. R. 12 40-2-4-.04(2)(b); see also Tenn. Comp . R. & R egs

. 1240-2-4-.02(6) ("In situations where overnight time is divided more equall y be tween the parents, the courts will have to make a case-by -cas e determination as to

the appr opriate amount of support.")

. "If t he child (ren) spend more time with the obligor than is assumed by Tenn. Comp . R. & R egs., c h. 124 0-2-4 -.02( 6), . . . the o bligo r's child suppo r t pay

ments should

be reduced." Jones v. Jones , 930 S.W. 2d 541, 545 n.5 (Tenn. 1996). Downward deviation c oul d conceiv ably

include even a downw ard devia tion to zero

child supp ort.
Id

. at 884 (emphasis added). The GrayCourtalso conc luded tha t the use o f a “com

parativ e analy

sis” of the parties' relative income ear nings was improper

under the Child Support Guidelines inasmuch
as “Rule 1240-2-4-.03(2) specifically states that

‘the income of the obligee should not be considered inthe calculation of or as a reason for deviation from the guidelines in determining the support award amount .’" Id

.

The reasons cited by

the Trial Court

for ref using to d eviate downward were the son’s band expenses and the daughter’s interest in attending pr ivate school. When this case was tried, however , the par

ties’ dau ghter had only

recent ly a pplied fo r admission to priva

te school. At most this could be considered a potential expense. The expenses actually inc urred by t he parti es for th eir children do not appear to be any

thing out of the ordinary

or expense s which a

re not inc urred by most parents while raising their adolescent children. I t certainly bene fits children when the ir

parents have the financi al where

withal to e

nablethem to participate in extracurricular activities. However, in the present case, as in many

cases, the pot containing

available funds to pay

for these type

of activities is on ly s o b ig . If

we co nc lu de th at si mp ly i nc ur ri ng or di na ry e xpenses as so ciated with raising adolescent

children, such as band

expenses, is suffic ient to preclud e a downward devi ation, the n it is difficul t to conce ive of a s ituation w here a d ownward deviati on w ould ever

be ap prop riate. We do not belie

ve this is th e intent o f th e Guidelines. Furthermore, absent a downwar d deviation an obligor parent may ha

ve to cease increased visitation with hi s or h er children due to the added financial burden a ssociate d with this in crease d visitation. In

most circ umstance s, this result wo

uld notbe in the best in

terest of the children and would conflict with public policyof encouraging nonresidential parents to spend as much time as possible with their children. In light of the foregoi ng, we conclude the Trial Court erred when it concluded

that it was in the best interest of the children to preclude a downward deviation in Father’ s child support obligation.

The Trial Cour

t never a ctually decided whether Father was spen ding mor e time with the children than what is contemplated by the Guidelines. The Trial Court did determine that based
on Father’s monthly sa

lary at the time of tria

l, his monthly child support p ayment should be $1,515.84. After oral argument befor e this Court, the parties stipu la ted that, if no downward deviationwas appr

opriate , the Tria

l Court cor

rectly applied the Guideline s in arriv ing at a monthly child support obligation of $1,515.84. Therefore, w e reman d this case to the Trial Court for a determination

as to what extent Father’s $1,515.84 monthly c hild support payment

should be subject-9-

to a downward

deviatio n if Fath er car

ries his burden of showing he is spending more time with the children than is contemplated by the Guidelines.

The second issue on appeal is Father’s claim that the Trial Court er red w hen it retroa ctively increased his child support obligation based on hi s then curren t earni ngs of $80,000,
as opposed to averaging his ear nings from

the d ate the petition for modification was filed. When the Trial Court made the child support award based on $80,000 in gross wages retroa ctive to the date the petition to

modify was file d, it esse

ntially required

Father to pay

child support on a total of approxima

tely $19,515.93 in gross wages that he never earned at his full-time job. If only Father’s actual earning s from his f ull-time job were used whe n calcul ating r

etroac tive child

support ba

ck to the date the petition to modify was filed, then the total judgment against Father would be r educed by approxima

tely $3,9 90, assumi

ng Fat her is not entitled t o a downw ard devi ation whic h could reduce the judgment further. This, howeve r, does not end our review of this issue.

The initia l step in ca

lculating an appro priate child support

payment is to determine the obligor parent’s gro ss income . The Guid elines de fine “g

ross inco me” to inc lude “al l income fromany source

(before taxes and other deductions), whether e arned or unearned, and includes but is not limited

to, the fo llowing: wages , salarie s, commissi ons, bonus es, over time pay ments, dividends , severa

nce pay , pensions , intere st, trust income, an nuities, c apital g ains, . . . .” Tenn. Comp. R. & Regs. ch. 1240-2-4-.03(3)(a)( 1).

If Father ’s gros s income

was limite d solely

to the wages from his full-time job, then
we would be more likely to ag ree with Father’s arg

ument that the Trial Court should not have set the retroactive child support based on an annual income of $80,0 00 for tha t p eriod of time when he undeniab ly

was not earning a salary

at that level. However, Father had other “gross income” in 2000 whichwas sepa

rate an d apart f rom the wages he earned at his full-time job. In par ticular, Father received a pension and IRA distribution totaling $11,050 and had a capital gain of $65,100 from the sale of his house. In Eldridge v. Eldridge , No. W2000-00730-COA-R3-CV, 2002 Tenn. App. LEXIS 583 (Tenn. Ct. App. Aug. 8, 2002), appl. perm appeal denied Mar. 10, 2003 , this Court noted the following with regard to capital g ains from the sale of a house

for purp oses of de

termining child support pa

yme nts:
Both

parties raise issues regarding the calculation of Husba nd's income. Wife contends that capital gains associa ted with the sale o f t he parties' Deerpath re sidence should be included when the court determines Husband's income for ch il d support p

urposes. Onhis 1997 tax return, Husband reported a capital gain of $340,000 whichrepresented the sale of the Deerpath residence. This capital gain sho u ld be i nclud ed when the tr ial co urt cal culat es Hus band's income f or child s upport pur

poses.
“G en er al ly, capital gains are included in the definition of gross income." Brooks v. Brooks , 992 S.W.2d 403, 407 (Tenn. 1999)-10- (citing Tenn. Comp. R. & Reg. ch. 1240-2-4-.03(3)(a )). In Smith v. Smith , No. 01-A-01-9705-CH-00216, 1997 Tenn. App. L EXIS 733, at *6-8 (Tenn. Ct. App. Oct. 29, 1997) (no perm. app. filed), we held that the trial court should have cons idered a one time c apital g ain when d etermin ing the obligor's income. I n our decision, we distinguished Hall

v. Hall , No. 03A01-9701-GS-00030, 1997 Tenn. App. LEXI S 501 (Ten

n. Ct. App. July

21, 1997)(no perm

. app. filed). In Hall , we did

not include an isolated capital gain when calcula ting Husba nd's gross income. 1997 Tenn. App . L EXIS 501 at *7. However, this was due t

o the fact that the capital gain was included inthe marital estate. Id.; see also Smith , 1997 Ten n. A pp. LEXIS 733, at *8. In this case, the evidenc e fai ls to establ ish that the $340 ,000 c apital gain was included in the marital estate. Ac co rd in gl y, the trial court shall consider the $ 340,000 capital gain when det ermining Husband' s income f

or child s upport pur

poses. Eldridge , 2002 Tenn. App. LEXI S 583, at ** 51-53.

The precise issue for

resolution is whethe

r the Tri al Court e

rred wh en it

concluded Father’s re troactiv e child su pport for the thirty

-three month per

iod from the date th e petition to modify was filed up until the

date of t rial shou ld be base d on Husba

nd’s annu al gros s income

being $80,000. Father’s averag e annual gross income, including his pension and I

RA distribu

tion as we ll
as his capital gains, d

uring th e time per

iod in ques tion is at least as much as the $80,000 used by the Trial Court. Be cause of

Father ’s additional incom e in 2000, we conclude the Trial Court made no
error as claimed by F ather in its decision to base Father’s retroac tive chil d support on an $80,000 annual gross income. In so doing , we note that Mother does not claim on appeal that the retroactive support should hav e been h

igher t han what wa s set by the Trial Court. Notwithstanding the foregoi ng, because the resolution on remand of the issue of whether Father is entitled to a downward deviationmay impact the

amount of retroactive child support he owes, we vacate the amount of that judgment and remand this issue as to the amount of the retroactive child support to the Trial Court as well. In all other respe cts, the judgment of the Trial Court is affirmed.

Conclusion

The judgment of the Trial Court is affirmed in part and vacate d in part, and this c ause is remanded to the Trial Court for further proceedings consistent with this Opinion and for collection of the costs belo w. Costs on a ppeal ar e assess ed one-half ag ainst the A ppellant Dana B ry an Ellis and his surety, and one -half against the Appellee Susan L ynn Ellis (Johnson).

___________________________________ D. MICHAEL

SWINEY, JUDGE