# FILED March 27, 1998 Cecil W. Crowson Appellate Cou rt Clerk JULIE ANN BECK, ) ) Sumner Circuit Plaintiff/Appellee, ) No. 11117-C ) VS. ) ) JOE OLIVER BECK, ) Appeal No. ) 01A01-9710-CV-00547 Defendant/Appellant. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CIRCUIT COURT OF SUMNER COUNTY AT GALLATIN, TENNESSEE HONORABLE THOMAS GOODALL, JUDGE
Mary Anne Kevil, BPR #11289 Bellevue Professional Center 237 Old Hickory Blvd., Suite 201 Nashville, TN 37221-1353 ATTORNEY FOR PLAINTIF F/APPELLEE F. Dulin Kelly, BPR #4085 Clinton L. Kelly, BPR #16171 Andy L. Allman, BPR #17857 629 East Main Street Hendersonville, TN 37075 ATTORNEYS FOR DEFENDANT/APPELLANT AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M C. KOCH, JR., JUDGE-2-

JULIE ANN BECK, ) ) Sumner Circuit Plaintiff/Appellee, ) No. 11117-C ) VS. ) ) JOE OLIVER BECK, ) Appeal No. ) 01A01-9710-CV-00547 Defendant/Appellant. )



## O P I N I O N The defendant husband has appealed from post-divorce decree rulings on child

support. The issues on appeal relate to the amount of defendant’s income, the support from that income required by the guidelines, and

the liability

of defendant fo

r expert witness

fees and attorne

y fees.
The parties were divorced on July 23, 1993, by decree which required the husband to pay to the wife ch ild suppo rt of $1,200 per month or $279.07 per week for three children, plus $100.00 per month for health care insurance, and maintain $100,000.00 insuran ce on his own life payable to the wife. On May 31, 19

94, the Trial Court

entered an orde

r finding the husb

and’s income

to be $31,694.57 per year, reducing child support to $821.23 per month with a wage assignment, and incr easing health insurance payment to $124.00 per month. The husband was also ordered t o reimburse one-half of all uninsured dental and medical expenses and certain other expenses and to secure the $100,000.00 ins urance policy. The husband’s claim for retroactive relief wa s denied.
The procee dings under review in the present appeal began on March 21, 1996, by the husband’s petition to modify child support and v

isitation and the ri

ght toclaim one or more of the children as in

come tax dependen

ts.-3- The wife responded in opposition and counterclaimed for cr iminal contempt for 14 violations of cour

t orders and incr

ease in support.
One year later, on April 23, 1997, the Trial Court entered j udgment re ducing child support to $200.0 0 per wee k including the medical and dental insurance, awarding the wife a judgment for $2,145.79 arrearage, $3,600.00 accountant fees and $4,500.00 attorneys fees. The wife’s petition for contempt was denied.
OnMay27, 1997, in response to a post judgment motion, the Trial Court relieved the husbandof clerk’s fees on support payments made direct to the wife under the wage assignment order. On appeal, the hu sband presents the

following issues: I. The Trial Court

erred in the calculation

of Joe Oliv er Beck’s income thereby requiring him to pay a hi ghe r child support obligation than is required under the Tennessee Child Support Guideli

nes. II. The Trial Court erred in requiri ng Jo e Oliver Beck, Jr. to pay the expert witness fee of David Evans Mensel and Julie Ann Beck

’s attorney ’s fees. First Issue CHILD SUPPORT Appellant’s primary income source is his pay as a welder, which is $13.25 per hour for his labor and $6.50

per hour for ren

tal of his equipmen

t and supplies. Appellant filed the following statement of his 1996 income:-4- JOE BECK 1996 Income Gross Income: $26,701.60 Less Expenses: Truck Expenses $2,998.34 Truck Insurance 680.00 Truck Payment 5,655.46 Business Supplies 1,352.95

$10,686.74 Less Taxes: Medicare and S.S. (15.2%) $2,434.26 Federal Tax 1,675.44 Court Ordered Disability I

ns. 1,032.00 $5,141.70 Net per year $10,873.15 Net per month $ 906.10 Child Support $ 311.00 During 1996, appellant’s employer was requ ir ed by the May 31, 1994 order to deduc t $821.23 per month from his wages. His statement of income for 19 96 apparently does not include this amount

in his gross income, which is the basis for computing support under child support guid eli nes . Hi s al lega tio ns o f ex pen ses are s upp ort ed b y a su mma ry com pil ed b y a bookkeeping serv i ce from a hodge -podge collec

tion of “charg

e tickets” and kin

dred papers. Sai

d e xpenses apparently make no distinction between legitimate business expenses and personal living expenses.
The Trial Judge was understandably baffled by the confusion of evidence

presented by appellant; and this Court suffers a similar reaction.
As the party

seeking a modifi

cation of child sup

port based upon ch

ange in income, the husbandhadthe burden of supp orting his applic

ation with satisfactory

evidence. He fa

iled to sustain this burden.-5- The evidence does not prepon derate against the judgment of the Trial Court in respect to t he am oun t ofapp ell ant ’s i nco me o r th e am oun t ofchi ld s upp ort he s hou ld p ay.
Second Issue FEES OF EXPERT AN D ATTORNEY Appellant faults the testimony of the wife’s expert as inacc urate, un reliable and of no value to the Court. This Court cannot disagree with thiscontention, y

et it does not seem ju

st to penalize the wife who foun

d it necess ary

to seek assistance in extracting the true facts from appellant and who, so far as this recordshows, obligated herself to pay

an expert whose competency

is not questioned exc

ept upon his

failure to penetrate the mysteries of the husband’s finances.
Under the circumstances, the evidence does not preponde

rate against

the judgment of the Trial Court requiring appellant to bear a par t of the e xpense of rebutting his claims of meager income. Appellant also questions the a

llowance of par

t of the fees of th

e wife’s attorne

y in defendingagainst the husb and’s attempts to r

educe child suppo

rt. It is well esta blished that a non-custodial parent may be held liable for legal expens es incurred b y the custodi al parent in protecting the right of children to support. TCA § 36-5-103(c).
The evidence does not preponderate against the judgment of the Trial Court in respe c t to the award of a

ttorney fe es.
The wife requests the Court to awardattorney’ s fee on appeal. In the exercis

e of its discretion, this Court declines to do so.-6- The judgment of the T

rial Court is

affirmed. Costs of this appealare assessed against the appellant and his surety. The cause is remanded for further necessary proceedings.


### AFFIRMED AND REMAN DED

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION
CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

_____________________________ WILLIA M C. KOCH, JR., JUDGE