1

FILED

April 28, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

RAYMOND WARREN SWOFFARD, ) C/A NO. 03A01-9707-CV-00454

 )

Respondent-Appellee, )

 )

 )

 )

v. ) APPEAL AS OF RIGHT FROM THE

 ) HAMILTON COUNTY CIRCUIT COURT

 )

 )

 )

 )

JUANITA S. DEL PINO-McCLARTY, )

 ) HONORABLE ROBERT M. SUMMITT,

Petitioner-Appellant. ) JUDGE

For Appellant For Appellee

MITCHELL A. BYRD PAMELA R. O’DWYER

Chattanooga, Tennessee Paty, Rymer & Ulin, P.C.

Chattanooga, Tennessee

O P I N I O N

AFFIRMED IN PART

REVERSED IN PART

REMANDED Susano, J.
1

We will refer to this party as Ms. McClarty -- the way she was referred

to in the lower court.

2

This appeal was taken from orders entered following two

post-divorce hearings. The parties were divorced in 1985. The

current round of litigation began on October 8, 1996, when

Juanita S. Del Pino-McClarty, the former Mrs. Swoffard,1 filed a

petition for contempt and for modification of the parties’ 1985

divorce judgment. Mr. Swoffard responded with his own

counterclaim for relief. The trial court granted partial relief

to both of the parties. Ms. McClarty appealed, arguing (1) that

the trial court erred in setting child support; (2) that the

trial court erred in awarding Mr. Swoffard a money judgment for

his overpayment of federal income taxes caused by Ms. McClarty’s

failure to sign the necessary tax forms to give him the tax

exemptions for the parties’ two children; (3) that the court

erred in allowing Mr. Swoffard to testify as to the amount of his

overpayment of federal income taxes; and (4) that the trial court

erred in offsetting Mr. Swoffard’s child support arrearage to Ms.

McClarty against the amount she owed him for his overpayment of

federal income taxes.

Following the first hearing on March 4, 1997, the trial

court entered an order on April 15, 1997, decreeing that Mr.

Swoffard would pay Ms. McClarty monthly child support of $858 for

the parties’ one remaining minor child, but only during the

months of September through May, when the child was living with

her mother. That award was made retroactive to October 8, 1996,

the date on which Ms. McClarty filed her petition. In the same

order, the trial court directed Ms. McClarty to pay Mr. Swoffard

$745 per month as support for the child during the months of June
3

through August, when the child would be living primarily with her

father. Finally, as relevant here, the order provides as

follows:

This cause is reset on the Court’s docket for

May 20, 1997, at which time the Court will

consider the issue of [Ms. McClarty’s]

contempt for her failure and refusal to allow

[Mr. Swoffard] to claim the children as

deductions on his income tax returns in

accordance with the Marital Dissolution

Agreement incorporated into the Final

Judgment entered on August 26, 1985.

Pursuant to the order of April 15, 1997, a second

hearing was held on May 20, 1997. At the second hearing, the

court focused on the contempt issue and also on the question of

Mr. Swoffard’s child support arrearage that had then accumulated

under the April 15, 1997, order.

A second order was entered on June 27, 1997,

memorializing the hearing of May 20, 1997. In that order, the

trial court found a child support arrearage of $2,322. In the

same order, the trial court also found as follows:

From all of which the Court finds that the

original agreement of the parties

incorporated into the Final Judgment entered

on August 26, 1985, had been violated by the

defendant’s failure and refusal to facilitate

that order by execution of the appropriate

documents required by the Internal Revenue

Service. Though defendant’s failure and

refusal in that regard was not willful, it

did result in a loss to the plaintiff in the

amount of $8,182.00.

The second order offsets Mr. Swoffard’s child support arrearage
2

We do have a transcript of the second hearing.

4

of $2,322 against the $8,182 found to be due Mr. Swoffard from

Ms. McClarty. The second order then decrees a money judgment in

Mr. Swoffard’s favor for the net of $5,860.

By her first issue, Ms. McClarty argues that the trial

court failed to set the parties’ respective child support

obligations in compliance with the Child Support Guidelines

promulgated by the Department of Human Services pursuant to the

provisions of T.C.A. § 36-5-101(e). As previously indicated,

this issue was addressed by the trial court at the first hearing

on March 4, 1997. The record before us does not include a

transcript or statement of the evidence from that first hearing.2

We cannot undertake a de novo review under Rule 13(d), T.R.A.P.,

of a trial court’s decision based on factual findings without a

record of the evidence introduced at that hearing. “[W]e must

assume that the record, had it been preserved, would have

contained sufficient evidence to support the trial court’s

factual findings.” Sherrod v. Wix, 849 S.W.2d 780, 783

(Tenn.App. 1992). Ms. McClarty’s first issue is found adverse to

her.

Ms. McClarty next argues that the trial court erred in

awarding Mr. Swoffard a money judgment against her for $8,182. 

We find no error in this award.

The parties’ agreement, which was incorporated into

their divorce judgment, provides as follows:
5

Husband shall be entitled to claim the

dependency allowance for Rakel Camile

Swoffard, female age 7, and Tiffany Brooke

Swoffard, female age 4. 
6

Husband shall be entitled to the child care

tax credit.

The trial court found that Ms. McClarty failed and refused to

sign the necessary IRS forms to enable Mr. Swoffard to take the

exemptions for his then-two minor children for 1986 and for the

years 1988-1993, inclusive. The court determined that her

refusal to sign the necessary forms had resulted in Mr. Swoffard

overpaying his taxes for those six years by a total of $8,182.

Ms. McClarty argues that a change in the Internal

Revenue Code after the parties’ divorce in some way “trumps” the

divorce judgment’s provision with respect to the dependency

exemptions associated with the parties’ two children. She calls

our attention to the printed instructions on an IRS Form 2120 --

a “Multiple Support Declaration” Form -- in the record. We have

carefully read these instructions. There is nothing in the

instructions which would prevent Ms. McClarty from fully

complying with the divorce judgment’s provision with respect to

the children’s dependency exemptions. Furthermore, we do not

agree with her argument that the subject provision does not apply

to the years in question because, so the argument goes, the

provision does not provide for how long it would be in effect. 

As we read the provision, it would apply to all years in which

the children’s dependency exemption could be claimed by their

parents. The second issue raised by Ms. McClarty is found to be

without merit.

Ms. McClarty also argues that the trial court erred in

allowing Mr. Swoffard to testify about the overpayment of taxes
3

The calculations were simple in nature. Mr. Swoffard knew what he paid

without the exemptions. He could calculate what he would have paid with the

exemptions by following the relatively simple instructions on the fist two

pages of his Form 1040.

7

caused by his former wife’s failure to sign the necessary IRS

form in each of the six relevant years. We find no error in

this. Mr. Swoffard is a school principal, whose background is in

mathematics. He testified that he made these calculations based

on his mathematical background and his income tax returns in the

relevant years, which returns were initially prepared by him. 

The fact that his accountant checked his figures and found them

to be correct does not detract from the fact that Mr. Swoffard

made the overpayment calculations himself. This was his

testimony, and it was admissible. The question of whether he

correctly made these calculations3 went to the weight to be given

his testimony rather than to its admissibility. The accountant’s

involvement does not convert Mr. Swoffard’s testimony into

inadmissible hearsay. The trial court did not abuse its

discretion in receiving Mr. Swoffard’s testimony on this subject.

The trial court offset Ms. McClarty’s judgment for

child support arrearage against what she owed Mr. Swoffard for

the excess federal income taxes paid by him as a result of Ms.

McClarty’s failure and refusal to sign the necessary tax forms. 

We find this to be error. See Oliver v. Oczkowicz, 1990 WL 64534

(Court of Appeals at Nashville, May 18, 1990). As we said in

Oliver, “[t]o allow a set-off under these circumstances would

amount to requiring the children to pay the debts of the

custodial parent.” 1990 WL 64534 at *2. While the arrearage is

payable to Ms. McClarty -- the debtor with respect to the

overpayment of federal income tax -- it is for the benefit of the
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parties’ minor child. See Rutledge v. Barrett, 802 S.W.2d 604,

607 (Tenn. 1991).

The judgment of the trial court awarding Mr. Swoffard a

judgment against Ms. McClarty for $5,860 is reversed. In all

other respects the judgment of the trial court is affirmed. This

case is remanded to the trial court for the entry of an order

awarding separate money judgments -- one for Mr. Swoffard in the

amount of $8,182, and one in favor of Ms. McClarty for $2,322. 

Costs on appeal are taxed one-third to Mr. Swoffard and twothirds to Ms. McClarty.

___________________________

Charles D. Susano, Jr., J.

CONCUR:

________________________

Houston M. Goddard, P.J.

________________________

Herschel P. Franks, J.