# FILED September 22, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

BRENDA F. SANDUSKY ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01A01-9808-CH-00416 v. ) DANNY J. SANDUSKY ) Wayne County Chancery ) No. 7900 Defendant/Appellee. ) )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHAN CERY COURT FOR WAYNE COUNTY THE HONORABLE JIM T. HAMILTON PRESIDING

W.C. KEATON 102 NORTH COURT STREET HOHENWA

LD, TENNE

SSEE 38462 ATTORNEY FOR PLAINTIFF/APPELLANT JAMES Y. ROSS, SR. 102 PUBLIC SQUARE NORTH WAYNESBO

RO, TENNE

SSEE 38485 ATTORNEY FOR DEFENDANT/APPELLEE

REVERSED AND REMAND ED PATRICIA J. COTTRELL, JUDGE CONCUR: CANTRELL , J. KOCH, J.1 As a preliminary matter, we observe that less than the e ntire r ecord below was designated

to be part of the record on appeal. See Tenn. R. Ap p. P. 24 (a). E ven so, Father uns uccessfully

objected to the exte

nt of the record s

o designated, a

rguing that it sh

ould b e limited to o nly t ho se issues raised in his July 1997 counter-petition for modification and Mother's June 1997 contempt petition. Nevertheless, Father attached s o me additional, uncertified

documents

to his bri ef. It should be noted th at this cou rt's review is limited to the record presented to the t

rial court and de

signated for inc

lusion in the appellate record. See id. No motion to supplement the record on appeal was filed. See Tenn. R. App. P. 24 (e). -2- 

# OPINION

This post-divorce proce

eding involves questions o f chi ld sup port, payment of college e

xpenses for a child ov

er the age of

majority, and paym

ent of attorney fees and c

osts. Brenda Sandu sky ("Mother") brought the underlying contempt action alleging her former husband, D anny S an dusky ("Father"), failed to pay the previously ordered amount of child support. Father asserted a counterpetiti on seeking a reduction in his child support payments. After sev era l hearings, the trial court substantially r educed Father's c

hild support obligation, ordered Father to pay the spe cific college expe

nses of his daught er, ordered pay ment of child support arrearage at $100 per month, and declined to award Motherattorney fees. M other appealed this d

i spositio n. For the followi ng reasons, we rev

erse and remand. 1 When th e parties were di vorced on April 18,

1988, on the ground of irreconcilable

differences, F

ather was the sole

owner of Sandusky T

rucking Co mpany and an independent timber contractor. At that time, the parties' tw o children, a son and a daughter, were min ors . The parties' Marital Dissolution Agreement

("MDA") spec ificall y addressed their ca re and support, gra

nting Motherphysica l custod y while Father agr eed to reimburse Mo

ther for all reasonable

expenditures associ a ted with the support a nd maintenance of th

e children. This arrangement gave rise to Mother' s first contempt petition. It was-3-

filed in January 1994, alleging that Father refused to reimburse Mother for more than $15,000 in reasonable child care expe nses. Father filed a countercomplaint

seeking modificatio

n of his child support obli gation. After a hearing, the trial court ordered Fat

her to reimburse $10 ,000 of Mother's e xpenditures and set his ch ild support obligat ion at a definite mon thly payment of $2 ,666.67. This court affirmed th

e trial court's de

cision, includin

g, specif ically, the trial court’s attributing to Mr. S andusky’s income fro m the trucking compan

y he had transferred upon inadequate conside ration to his father. Sandusky v. Sandusky , Appeal No. 01-A-01-9605- CH-00209 , 19 96 WL 730288 (Tenn. App. December 20, 1996) (no Tenn. R. App . P. 11 application fil ed). Motherfiled a second

successful petition f

or contempt for nonpa

yment of child support in Marc

h 1996, resulting in a f

inding of contempt on A

pril 22, 1996. In March 1997, Fa ther was again

held in contempt for failure to comply withthe 1996 order requir ing him to pay child support. After noting that Father had effectively stated in open court that he had no int ention of complying

with the orders to pay the

amounts he owed Mother, the court found him in contempt and ordered him to pa y $46,864.96 in arre arage. After an April 1997 hearin

g, the court determined that Father still owed $23,648.27 and again

ordered him to pay the arrearage immediately. The court foundthat Father had con veyed all of his int

er ests in real property to his new wife and to relatives. The court ag r eed that when the oldest child, who had reached her majority, gr ad uated from high school, Father’s child support obli gation wo uld be reduced and or dered said reductio

n from $2,666.67 to $1,750. Th e cour t also continued the case for later consideration of Father’s petition to reduce child

support payment, stating that if any reduction were later granted, it would be

applied retroacti

vely.-4- After the daughter

graduated, instead of paying $1,7 50, Father began paying $688 per month, which he ass erted was 21% of his inc ome. Mother then sought contempt sanctions on t he ground that Father

was behind in his child support payments . When the daughter chose to attend Columbia State Community Co llege and F at her limited his suppor t to tuition, books and $60 0 per month in living expenses, Mother added a clai m that Father had br

eached the MDA, which contained a provision obligating Father to pay the reasonable expenses associated with the children's college e ducations. In December 1997 and January 1998, the trial court held hearings on the various outstanding issues. After the hearings, the court reduced Father's childsupport payment from $1,750 to $865. The court ordered Father to pay for tuition and books and $600 per mon th toward his daughter ’s college education pursuant to the MDA. The

trial court pe

rmitted Father to pay his $6, 372 arrearage in $100 pe r month pay ments. The court did not award any attorney fees. After the trial court denied Mother' s motion to alter and a mend the judgment, she comme

nced this appeal.

I. Ordinarily

our review of a tr

ial court's findings

of fact is de novo with

a presumption of c

orrectness. Te

nn. R. App. P. 13 (

d). Here, the

trial court ma

de

no factual findings when disposing of this case, which leaves nothing to trigger the presumption of correctn ess. See Archer v. Archer , 907 S.W.2d 412 , 416 (Tenn. App. 1995). Accordin gly, our review is plenary. II. The first issue arising f

rom the order under

appeal is whether the trial court correctly determined the monthly

amount of support

due after May

1997.2 The court ma de no findi ng rega rding Father ’s specific income. According to the

Guideli ne s, this figure would indicate a net annual income of $49,451.76 or a gross annual income of $70,200. We can find no basis for the court’s implicit determination that Mr. Sandusky’s net income had decreased by a little over 50%.

3 A significant variance is defined as “at least 15% if the current support is one hundred dollars ($100.00) or greater per month”. Tenn. Comp. R. & Regs. ch. 1240-2-4-.02(3) (1994). -5- In Aprilof 1997, the court recognized that Father’s support obligation would be reduced as of the June 1997 pay ment, because

the 18-year old

daughte r woul d be graduating from

high school, leaving on

ly one minor child f

or whom child support was due. There

fore, the court r

educed Father’ s monthly pay ment to $1,750. This amount constituted 21% of Father’s net income as of the last order setti ng sup port ($10 0,000). The court, howe ver, delayed r uling on Father’s pending motion to reduce the support on the b asi s of his reduced incom e, but

s tated that if the court w ere to later reduc

e the amount of t

h e award belo w $1,750, Father would be give n credit back to May

of 1997. In the or der under appeal, the trial court reduced Fat her's monthly

child support paym

ents to $865. 2 Motherargues that the evidence preponderates against the trial court's decision. As the party seeki

ng modification of

the previous child suppo

rt award, Father had the burden of demonstrating that there existed a significa ntvariance 3 between the amount previ ously set and curr

ently ordered and

the amount which

w ould be d ue under the Child Sup port Guidelines base

d on current circumstance s. See Tenn. Code Ann. § 36-5-101(a)(1) (S upp. 1998); Turner v. Turner , 919 S.W.2d 340, 342-343 , 345 (Tenn. App. 1995). Father asser ted su ch a va rianc e beca use hi s inco me had been reduced since the prior setting o f child support. He testified that his 1996 income, as reflected in his W-2 for

m was $33,000.His salary fr om Sandusky T

rucking Company, of which he is

the sole stockholder, was reduced in 1996. The record does not include Father’ s petition to modify ch

ild support. The transcript of the4 A compa rison of Father’s potentially income-producing assets at the time of the

original setting of

child support with those at the time of the hearing on his petition to reduce his support obligation reveals no significant change in those assets. Althou gh Father had transferred

all the stock of Sandusky Trucking Company to his father

for $1,000 at the time of the original setting

of the support amou

nt, the court att

ributed i ncome from that c ompany to Father. By the time of

the hearing herein, ownership of the company had been transferred back to Father. Similarly, Father testified that he had earlier transferred other assets, primarily real estate, to his present wife and to relatives, and that those assets had been tra nsferred b ack to him before the hearing herein.

5 This Court held that Mr. Sandusky’s transfer to his father of all the stock of the company fo

r $1,000, was void t

o defeat the inte

rest of his childre

n in appropriate s

upport. -6- hearing and the briefs,however, make it clear that Father’s a

rgument that he is entitled to a red uction is base d solel y on his r educed salary. Father’s salar y from his compan y was $5 0,000 in 19 91, an d at th e time of entry of the previous order of support, it was $41,600. It is now $31,800, and

he receives $1,200 per year from another position . Thus, his earned income has d ecreased only $8,600. Father’s child support obligation was set by the court

in October 1995. In its order, the tri

al court spe cif

ically stated that the child support award was calculated as 32% of an incom e of $100,000, im

plicitly finding t

hat amount

to be Fathe r’s ne t inco me. With out d etermi ning the sp ecifi c amo unt of Fa ther’s income, the trial c ourt incl uded Fathe r’s admitted income, profits from S andusky TruckingCompan y and o ther i ncome 4 . On appeal, this court a ffirmed, specifically

holding that the

solely-owne d company’s income was at tributable to Mr. Sand usky. 5 In its 1996 opinion, this Cou rt found that the truc

king company

had a substantial net worth (the 1992 ta x return showed the s

tockholder equity to be $545,596) and h ad co nsistently paid Mr. S andusky a salary of $40 ,000 to $50,000 per

year prior to 1995. Since his support obligation was originally set

on the basis of his salary and the income from his business available to him, we must consider any decre

ase or offsetting in

crease in the busine ss income. The evidence at the hearing here in regardi ng Sandusky Trucking Company’s-7-

financia l performanc e and Mr. Sandusky’s salary history is reflected in this table:

1992 1993 1994 1995 1996 Gross Receipts $833,169 $861,690 $910,630 $904,701 $1,211,260

Gross Profits $784,366 $765,562 $819,963 $763,359 $811,475

Total Income $799,356 $797,649 $843,479 $772,331 $815,006

Taxable Income $79,281 $83,810 $127,128 $397 $8,594

Total Assets $572,275 $607,583 $759,264 $710,515 $814,209

Retained Earnings $449,923 $516,338 $596,875 $596,875 $603,604
Salary $41,600 $41,600 $40,800 $40,800 $31,200 Sandusky TruckingCompany con

tinues to have substanti

al worth. Its total assets in 1996 were $814,209 , with $181,3 47 in d ebt. Sig nifica ntly, retained earnings have incre ased from appr

oximately $450,000 in 1992

to over $600, 000 in 1996. Included in the expenses and deductions were claim s for depreciation: Sandusky Truck ing Company c

laimed $68,947 i

n 1992-1993, $79,522, in 1993-1994,

$105,164 in 1994-1995 and $ 96,926 in 1995-1996. Father test ified th at his company ’s net taxable inc ome and cash on ha

nd had de creased be cause, on advice f rom his accounta

nt, he had acquired

and maintained

assets and investm

ent properties,

such a s equipment and tr acts of timber, in order to avoid or reduce corporate inc ome taxes. H is accountant testified that this type o f redu ction of tax able c orpo rate i ncome is normal in the-8-

course of business. Father’s accou

ntant defined retai

ned earnings as “

a cumulative pr

ofit figure that has not been paidout in dividends. The corporation has just retained those earnings.” He also stated that Father could not spend the corporat ion’ s earnings unless the money was first paid to

Father as salary or dividend, and then it would be taxable to Father as personal income. In Koch v. Koch , 87 4 S.W.2d 5 71 (Tenn. App. 1993), this Court acknowledged the difficulty in est ablis hing income for child support purp oses, of a self-e mpl oyed sole owner of a business. In that case, however, the court discounted the father’s as sertions that he had no income from

his business, where the father stated he had made only

capital withdraw

als. The court loo

ked at the gross recei pts, g ross i ncome and other figures r elative to the busines s and noted that the gross income

in excess of $165,000 p er year should p

rovide a nic e income to the proprieto r. Koch, 874 S.W.2d at 57 8. Self-employ

ment requires a different m

ethod of calculating an obligor parent’s income for chi

ld support purposes. The Guidelines require the court to consider all income of t

he obligor parent, and

define gross incom

e as including: all incom e from any source (before taxes and other deduction s), whether earne

d or unearned . . . and includes income from self-em ployment. Income from

selfemploym ent includes income

from business operations and rental properties, et c., less reasonable expenses necessary to produce such in come. Depre ciati on, ho me offices, excessive prom

otional [sic], e

xcessive travel, excessive car expe nses , or e xcessive personal expenses, etc., should not be c

onsidered reasonabl

e expenses. Tenn. Comp. R. & Regs. ch. 1240-2-4-.03 (3)(a) (1994). A self-employ

ment situation

w here an obligor spouse or parent can controlthe sa lary he or she recei ves ma y raise iss ues requiring the cou rt to examine “whether the potential exists for the obligor to manipulate his reported-9-

inco me either by fail

ing to aggressively

solicit bus iness or by inflating hi s expenses, the reby minimizing his income." Beem v. Beem, No. 02A01-9 511-CV

00252, 1996 WL 636449 1 at *4 (Tenn. App . Nov. 5, 1996) (n o Tenn. R. App. P. 11 application filed) . Another way to manipulate r

eported income

is t o pay

a lower salaryand not pay dividen ds, allowing the

corporation to accumulate as retained earnings profits w hich would otherwise be distributed as div idends to the sole shareholder. W here a business is solely owned, the com

pany’s accum

ulatio n o f retained earnings can be considered in determining the

income availa

ble to the sole share holder who has set his or her own salary. See Higgs v. Higgs , No. 01A01-9702-CV-0057,

1997 WL 691530

at * 3 (Tenn. App. N

ov. 7, 1997) (no Tenn. R. App. P. 11 application filed) (in arguing h

is alimony ob

ligation should be reduced, husband relied upon his salary, ignoring the fa ct that the retained earning of his corporation w ere available to hi

m); Needham v. Needham , No. 03A01-9706-GS-0022 1, 1997 WL 789953 at * 7 ( Tenn. App. Dec. 2 3, 1997) (perm. app. deni ed June 22, 1998) (in de termining whet

her husband’s solel

y owned company’ s value had increase d, the courtobserved that had husba nd paid himself dividends and larger salary, they would have been m arital property). The financial condition of Sandusky Trucking Compa

ny is such that it couldpay its sole shar

eholder a la

rger salar y or issue di vidends. Father’s explanation

for lowering his ow

n salary was t

hat he nowneeded additional help with some of the

labor involved in his business.No explanation was given for the lack of dividend income. We are unconvinced that Fath er’s reduced sa

lary from the company

he

owns demonstrates a

n actual reduction

in inc ome justify

ing a decrease in hi s-10-

childsupport obligation. An obligor parent cannot avoid a support obligati

on by simply arranging a sm

aller salary

while a sol ely-ow ned business prospers. Further, Mr. Sandusky’s business decision to increase his company’s inventory and assets resulted in the lowering of th e company’ s taxable income . While he was certainly

free to make

those decisions as a bu siness owner, that acti on, the retention of earnings, and the

lowering of his sala

ry resulted in un

derstating his personal income. When, however, the money which would have been ava

ilable to him as personal income is conside red, we are una

ble to find a reducti

on in his income. See Craft v. Craft , No. 01A01-9609- CH-00417, 1997 WL 122809 at * 3-4 (Tenn. App. March 19, 1997) (no Tenn. R. App. P. 11 application filed). This court and the trial court have previously determ ined th at the potential i n come from

Sandusky Truck

ing Company i s properly consid ered in determining

Mr. S andusky ’s income for purposes of setting child support. In light of the financial co

ndition of that com

pany, as com

pared to its condition when the award was origin ally set, we findno justification fo r the reduction of Father's child support obligation and reverse that decision. Child support shall remain at the amount se

t in the April 1997 order, $1,750 per month. Arrearage shall be calculated fro

m April 1997 and m

ust be paid within

thirty ( 30) days of the entry date o

f this opinion. The i

nterest rate

set in Tenn. Code

Ann. § 36-5- 101(a)(5) shall apply to the arrearage acc

ruing between Apr

il 1997 an d the January 28, 1998 order modifying the child support. The trial court's order permitting

Father to pay $6 ,371 in arrea rage arising afte r April 1997 in $100 monthly insta

llments is vaca

ted. In light of this disposition, we nee d not reach Mother's contention that6 As set out earlier, Sandusky Trucking reported significa nt depreciation on its tax returns. -11- depreciation

was improper

ly included in Father's income. 6 But see Tenn. Comp. R. & Regs. ch. 1240-2- 4-.03 (3)(a) (pr

oviding that deprecia

tion is not a permissible

deduction when calculating the gross income o f self-employed individuals for

child support purposes) ; accord Burchfield v. Nave , No. 03A01- 9308-JV-00271, 1994 WL 13374 (Te nn. App. January 21, 1994) (Tenn. R .App. P. 11 application de nied). Our decision also ob viates the need to ad

dress the issues relating to the propriety of r edu cing child support whil e Father was in contempt, the propriety of allowing Father to

pay the arrea

rage at the mon

thl y rate of $100 and the a

mount of intere st owed.

III. Mothermaintains that the trial court erred in its calculation of Father's obligation

for his daughter's college educa tion . Father responds that the trial court properly construed the MDA in his favor, applying a rea s onableness standard which more ac curately ref

lected the parties ' intent th an the actual language of the agre

ement. I n the MDA, Father undertook voluntary contractual obligat ions t o support the children's educa tion. See Penland v. Penlan d , 521 S.W.2d

222, 224- 225 (Tenn. 1975). The pertinent provi sions of the MDA sta ted: In the event that any or

all of the partie s ' children should desire to attend college or vocational school upon his or her graduation

from high school, the

husband agrees to provide a (4) four year coll

ege or vocational educa

tion for that child. The expenses to be paid by the husband towar d the college or vocational educatio

n for each child

shall include, but not be limited to, tuition,

room, board, f

ees, clothing, medical and dental expenses, tr

ansportation to and fr

om sc hool , books, supplies and a reasonable spending allowance. Each childshall have the right a fter consultation w

ith both parents, to select the

college or vocationa

l institution he or

she desires to attend.7 This is the b udget submitted by Columbia State Communi ty College

to the U.S. Department of Education. -12- Father’s agreement to pay his children’s college e xpenses is enforceable

and, as with other

contracts, will be enforced i n accordance with

its terms. See Haas v. Haas , No. 02-A-01 -9604-CV-0 0073, 199 7 WL 194852 at *3 (Tenn. App. April 22, 198 8) (no Tenn. R .App. P. 11 application filed). There is

no ambiguity in the terms of this agreement.Therefore, the courts will enforce Father’s agreement to pay tuition, room, board, fees, clothing, medical and dental expenses, trans porta tion to and from scho ol, books, supplies, and a reasonable spending allowance. The only re al i ssue, then, is the r easonable cost of tho se items. Both the daughter and the Vice President for Student Se rvices at the daughter's college testified as to the ex penses involved in attending Co lumbia Sta te Community

College. The dau

ghter testified tha

t her actual m

onthly expenses during five months of attending college were $1,287.47 not including her car paym ent, housing, or hea

lth or car insurance,

all of which were provided by Mother. Mother al so paid for medical expenses not covered by insurance and $50 per week

spending money. T

he daughter's expenses included utilities , phone, clothing and personal items, and spending money. The daughter testified that Fa t her paid $581 to cover tuition for one sem ester, paid a tota

l of $290.52 fo r books, and gave her a

used computer.She stated that Sa ndus ky Truckin g Company wrote her a check in the amoun t of $300. The vice president of th e college testifie

d tha t th e predicted twosemester (9-month) budg

et 7 for an average in-state independent student was $11,511, which included tuitio n, fees, books, su

pplie s, roo m, board, clothing, personal expenses, and transportation costs. The figure for attending without a-13-

summer break was $14,414. The two-semester figu re breaks down to approximately

$1,153 per month,

excluding tuiti on. Tuition and fees w ere $1,132 for two semes

ters at the tim

e of the hearing. Father testified that, in addition to paying f or tuition and books, he was wi lling to make mon

thly paym

ents of $500. The tr

ial court set Fath

er' s obligation

for daughter's livi

ng expenses at $600 per month, in addition to tuition and books. We are unable to find evidence in the record to support that figure

or for the conclusion that that amount was sufficient to cover the daughter's expenses. See Tenn. R. App. P. 13(d). We therefore rever

se the trial court' s decision on Father' s obligations regardinghis daughter's col lege education. We find the figures present

ed by the Vice President of Col

umbia St ate Community College to be reason able. See Moore v. Moore , 603 S.W.2d 736, 739 (Tenn. Ap p. 1980). Father is therefore ordered to pay the daughte r's tuition, includi

n g fees, when it is due, and i n the amount billed by the college. In addition, Father is ordered to pay $1,153 per month (which figure in cludes the allowance for books) in expen ses for two semesters (9 months) eac h year for a four year educatio

n, so long as she atten

ds college full time. We do not interpret Father’s agre

ement to include expenses f

or attending year-

round. IV. Mothermaintains the trial court abused its discr etion by failing t

o order Father to pay her attor

ney fees. Fa

ther responds t

hat the ruling was proper becau se Mot her pr esent ed no evide nce th at she was un able t o pay t hem. Tenn. Code Ann. § 36-5-103(c) provides: The pl aintiff spouse may recover from the defendant spouse, and the spouse o r otherperson to whom

t he custody of the child, or children, is awarded may-14-

recover from the other spouse reasonable attorney fees incurred in enforcing any decree 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 pa

rties, both upon the or

iginal divorce hear ing and at any subsequent

hearing, which fees may be fixed and allowed by the court, before whom such actio

n or proceeding is pen

ding, in the discreti

on of such court. With the adoption of this sta

tute, awards for

legal expenses in

support proceedings have become "f amilia r and al most co mmonpl ace" d espit e some inconsistencies in their apportion ment. Sherrod v. Wix , 849 S.W.2d 78 0, 785 (Tenn. App. 1992). In addressing attorney fees, the trial court's sole finding was "that each party pay their resp

ecti ve attorney fe

es, each being equa

lly capable of paying their attorney fees ." However, “ ability to pay

should not be the control ling

co nsider ation with regard to awards for legal expenses in . . . support proceedings . . . The purpose of these awards is to

protect the childre

n's, not the custodial parent's, lega

l remedies . .

. Accordingly , requiring parent s who precipitate

. . . support proc

eedings to underwri

te th e costs if their claims are ultimately

found to be unwarra

nted is appropriate a

s amatter of policy.” Id.; see Tenn. R. App. P. 13(d). Father's conduct in refusing to pay the court-orderedamount of child support precipitated these proceedings. In contravention of a courtorder that he pay $1,750 per month, Father unilaterally determined that his paym

ent should

be lower and only paid $688 per m onth. Mother has pre vailed on the dispositive issues p resented in this appeal -- the decision to reduce Father's child support payment and on the calculatio

n of the daughter's c

ollege expenses. W

e believe itis appropriate for

Father to pay M

other's legal fee s in curred in pursuing this matter. On remand, the t rial court will det ermine the app

ropriate reasonab

le amounts. We also believe Mother is entitled to such fees on appeal a s the-15-

prevailingparty, s aid fees to be set by the trial court. See Robertson v. Robertson , No. 03A01-9711-CV-0051 1, 1998 WL 783339 at * 8 (Tenn. App. November 9, 1998) ( Tenn. R. App. P. 11 application pending). In summary, we reverse

the trial court's d

ecisions reducing the

amount of Mr. Sandusky's child support obligation, calculating the amount of colleg e expenses due the daughter, and declining to award Mother attorney fees. This

ca s e is remanded fo

r proceedings consist

ent with this opinion. Costs of this appeal shall be taxed to Mr. Sandusky for which execution may issue.

___________

_ __________________

_ PATRICIA J. COTTRELL, JUDGE CONCUR:

__________________________________ ______ BEN H. CANTRELL, P

RESIDING JUDGE (M.S)

__________________________________ ______ WILLIAM C. KOCH, JR., JUDGE8 Father's decision to pay less than the court-ordered amount of child support created a new arrearage which the trial court addressed in its January 28, 1998 order. -16- The record shows that the trial court held Father i

n contempt on March 24, 1997 for failure to pay child support found due and owing by

the court. The trial court ordere

d Father to pay $

48,231.63 in arrearage by March 24, 1997 or be incarcerated. At that

hearing, Father

stated he had no intent

ion of comply

ing with the trial court's orders. (TR. 53) The record before thi s court further show s that Father owed $23,648.27 in arrearage on Ap

ril 23, 1997 and had con

veyed all his real estate

holdings to his new wife and siblings. (TR. 57) The trial court again held Fa ther in contempt and ordered him to pay

the arrearage or be placed in custody. The fact that Father wa s not inca rcerated during the December 8,

1997 and January 12 , 1998 heari ngs indicates that he p urged himself of

the contempt by

paying hi s initial arrearage in ch ild support. While Father's unilateral decision to defy the cour t's order to pay the full $1750 p er month certa inly supports a fi

nding of contempt 8 , the trial court did not choose to impose that sanct ion. Comp are Mackey v. C umerlato, 1997 W L 15084, * 4 (August 4, 1987); see also Ball v. B all , No. 02A01-9709-GS00239, 1999 WL (Tenn.App. February 25, 1999). The w

ell-established rul

e pr oviding t rial courts with br oad discretion on whe

ther to impose c

ontempt sanctions precludes us from f inding that that decisi

on constituted an abuse

of discretion. S ee Rob inson v. Air Draulics Engineering Co., 377 S.W.2d 908, 912, 214 Tenn. 30, 37, (1 964).