### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M arch 7, 2 003
WILLIAM JEFFREY TARKING TON v. REBECCA JUA NITA TARKINGTON
Appeal from the Circuit Court for Davidson County No. 96D-1512 Muriel Robinson, Judge

No. M2002-01914-COA-R3-CV - Filed October 2, 2003

This appeal arises from the Father ’s p ost-divor ce petiti on to set child suppor t and to te

rminate previous ly

or de re d a li mo ny in futuro . From an adv ers e decisi on of the t rial cou rt deny ing chil d support and term ination of the alimon

y ob ligation , Fathe

r appea ls. We affirm

the portions of the trial court’sruling r

egard ing alimo ny a

nd rever se the aw ard of a ttorney ’s feesand denia

l of suppor

t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed and Remanded

W ILL IAM B. C AIN , J., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R ., and P AT RICIA J. C OTT RELL , JJ., joined. Karla C. Hewitt, Nashville, Tennessee, for the appe llant, William Jeffrey Tarkington. John David Moore, Nashville, Tennessee, for the appellee, Rebecca Juanita Tarkington.
OPINION

William Jeffrey Tar

kington and Rebecca Juanita Tarkington (Father and Mother respectively ), were divorced by Order of the Fourth Circuit Court of Davidson County, Tennessee entered April 1, 1997. The divorce decree provides the f ollowing paragraphs per

tinent to t his decision:

The Court further finds that due to need and other reasons enumerated by the Courtat the conclusion of trial, that Mr. Tarkington sha ll pay to Ms. Tarkington alimony in futuro in the amount of $500.00 per month until her death or remarriage.

. . . .-2- The Court further finds that Ms. Tarkington shall have custody of the two minor children from

August 15th of one y ear

to May 31st of the following year, e very y ear. Mr. Tarkington shall have custody of the two minor children fro m June 1s t until August 15th of each y ear. The parties shall alternate v isi tation during the Christmas holiday s with eac h party having one wee k thereo f. Visit at ion shall be exchanged each y

ear at 2:00 p.m. on Christmas Day.

. . . . The Court further finds that Mr. [Tarkington] shall pay the sum of $535.00 per month as child suppor

t, but that t

his su m shall be reduced to one-half (1⁄2) ($267. 50) for the three summer months when he has the children. Child support payments will be directly to the wife as ag reed to by the pa

rties. Subsequent

to the entry of this decr

ee the Father filed a Petition for Contempt and to Modify the Final Decree, in which he soug ht, inter alia , custody of Jason Neal Tar kington, the young er of the two child

ren of the marriage. On Nove mber 3, 1999, Father filed a Motion for Temporar y Custody and to Terminate Child Support which alleg ed that both children were then residingwith him. After a hearing on the 12th of Nove mber, the court refused to change tempora ry custody

but terminatedthe Father’s child support obligation. Father was allowed to amend his Petition

to reque st change of custody of both m inor chil dren, which he did on November 16, 1999. Mother filed an Answer and Counte

r-Petitio n for Conte

mpt. The Pe

tit io n was heard August 7, 2001. After that hearing the cour

t grant ed custod y of the child ren to Fa ther and dism issed the co unter-petition for contempt

. This Order was entered on February 11, 2002. Between the

time of the hearing and the time of the entry of

the Order, Father filed the instant Pe

tition to se

t child sup

port and t o termina te alimony in futuro . The original Petition was filed November 20, 2001, and amended on February 7, 2002. Th at Amended Petition st ates the following , in pertin

ent part :
2. The Father ’s child su pport obli gation w as te rmina ted pursuant to a hearing on November 12, 1999 due to the fi li ng of a P et it io n t o c ha ng e c us to dy. Su bs eq ue nt ly, the fina

l hearin g on Fa

ther’s Pe tition washeld

on August 7, 2001 and the Father’s ParentingPlan was approved and made the Judgment of the Court. He is now the pri mary re sidential parent of both minor children, and the Mother was awarde d substant

ially “standa rd” visita tion with so me restr

ictions. 3. The Cou rt, in [its] Or der appr oving the Parentin g Plan of

th e Petitioner at the August 7, 2001 hearing, order ed that c hild support would not be assesseda t this ti me, stating “Mothe r is reci pient of a limony and has n ot become employed as of y et. Child support will be reviewed after a rea sonable time for her to become employe d.” 4. The Father

is in ne ed of

ch il d s up po rt fo r t he tw o t ee na ge bo ys of this marria ge
. The Father would assert that it has been nea rly six (6) months since the hearin g, and that is a reasonable amount of time in which a person could find a job. The refore, the Father would request this Honorable Court to assess a re a sonabl e-3-

amount of support pursuant to the Gui delines, and if the Mother is unemployed, support should at least be set on a minimum wage income. 5. Further, the Mothe r is resid ing wit h her b oyfriend in L

obelville, Tennessee, and has in structed the Fath er to mail her suppo

rt checks to this ad

dress. The Father

would assert that since the Mother is residing with a third party , she is no longer en ti tl ed to th e a li mo ny in futuro , pursuant to Tenn. Code Ann. § 36-5-1 01

. Therefore, the Father

would re spectfully

request this Honor

able Cour t to termin ate hi s a li mo ny in futuroobligation. 6. As the Father is in great ne ed of as sistance and support from the Mother for these two children, and as [the Court] specifically rese rvedthis matter for review, t h at an order should issue which requires the Mother to appea r and show
cause why a reaso nable am

ount of ch ild suppor t should not be set. Further, this order should r equire her

to appear and show cause why the Father’s alimony

obligation should not be terminated, as he is receiving no financial assistance from the Mother whatsoever.

In her Answer to Father’s Petition, Mother admitted parag raphs two, three a nd four of the Petition, denied paragraph five ge nerally, and, in pa

ragraph six denied

only that Father’s alimony obligation should be terminated, and admitted “that child support should be set upon her income at the time of

the court hearing.” Father’s Petition to Set Child Support was heard May 30, 2002. At that hearing , Mother t

estified that her gross mont hly income from a job with a te mporary employment

service was $1,362.84, and that she resided with her mother while pay ing her mother $200 of utility costs per month as rent. Also in the course of the t estimony it was revea led that Father has a gross income of $35,000 per y ear. It also bear s noting th at acco rding to the Parenting Plan adopted by the

trial court in its February

11 order, the oldest of thetwo children of the marriage, William Rich ard Tarking ton, reached the age of ma jority on October 2, 2002. Jason Neal, the younge r of the two children, will reach the ag e of majority on October 10, 2003. After hearing the proof, the c ourt entered the following Order:

This c ause cam e to be heard on the 30th day of May, 2002, bef

ore the Honorable Muriel Robinson, Judge, up on Plaintif f’s Petiti on to Set Chil d Support. After testimony of both parties, and based up o n her inc ome of ap proximatel

y $12,000.00 and Plaintiff’s income of approximately three times as much as Defend ant’s, t he Court determined that there is no change in cir cumstances which would justify modification of alimony. Furthermore, due to the small amount of income Defend ant has, t

he Court w ill not awar

d Plaintiff child support at this time. It is, therefore, ORDERED, ADJUDGEDand DECRE ED that the

Petition t o Modify the alimony award is he

reby denied. It is, further, ORDERED, ADJUD G ED and DECREED that the Petitio n to Set Child Supportis hereb y de

nied at th is time due to Ms. Tarkington’slow income . It is , further,-4- ORDERED, ADJUDGED and DECREED tha t the attor ney for Ms. Tarkin gton, John David Moore, shall be awarded attorney s fees in the amoun t o f $350.00. It is, further, ORDERED, ADJUDGED and DECRE

ED that the

costs of this ca

use are to be ta xe d a ga in st th e P et it io ne r for wh ic h e xe cu ti on ma y is su e, if ne ce ss ar y. ENTERED this the 5th day of Aug ust, 2002.

I. CHIL D SUPPORT Father’s first issue on appeal dea ls wit h t he t ria l co urt ’s r efu sal to awa rd c hi ld sup por t. In support of his position Father argues that the statements of counse l in op en court con stituted a stipulation as to the amount and propriety of the Mother’s child support obligation, that the Mother admitted i n her Answer that child support w as appro

priate, and fina

lly t hat the tr ial cour t erred in refusing to deter

mine whet

her chil d support s hould be se t “due to t

h e small amou nt of inco me Defendant

has.” Te nnessee Rules of Civ

il Procedure 8 contemplates that every petition requiring responsive pleading be m et w ith a writt en answe r admittin g or de

nying the a

llegat ion. T.R.C. P. 8.04; see also S

mith v. Smith , 643 S.W.2d 320, 322 (Tenn.1982). Furthermore, Mother complied withthis rule

in admitting the amount of her income and the need for c hild support to be set. The crucial paragraph in this analy sis is paragraph six of the Mother’s Answer, in which she spec ifically admits that the obligation should be set while denying the remainder of

the Fath er’s av erment w ith regard to al im on y in futuro . Despite the di ff erence in the parties’ income as display ed in the tran script of the evidence, and rega rdless of what was stated by counsel in the introductory statemen ts to the court, the pleadings themselves are dispositive of the issue, and there is nothing left for the court in this situation but determine the amount and number o f pay ments to be made under the Guidelines.

At the time of

the May 2002

Order, the oldest of the two children was five months away from his ei gh te en th bi rt hd ay. An d a lt ho ug h t he re is pr oo f i n t he re co rd th at th e c hi ld is mi ld ly a ut istic, absent any proof of the extent o f that disa

bility and its impact on his ability to support himself, there is no obligation appearingin the re cord to su pport the child pas t his eighte enth birth day , the same being the day he a

ttains majority. See Howa rd v. Howa rd , 991 S.W.2d 251, at 256 (Tenn.Ct.App. 1999). The admitted amount of child support for two children is $365 per month. The amount of child support for one child for that amount of income would be $239 per month. Thus the portions of the de cree con cernin g c hild suppo rt is modif ied to re quire a p ayment of $3 65 per mon th representing the periodfrom the time of the decree to October 2002. Since the rec ord also r

eflects that the you nger o f the chi ldren will attain the age of majority in October 2003, the remaining twelve months child supp ort oblig ation will be set at the amount applied by the G uidelines for one child, $239 per month.

II . ALI MONY I N FUTURO

Father’s second issue on appeal concerns the trial court’srefusa

l to termin ate or su spend his alimony in futuropayments. I n support of this issue, Father argues that the presumption established-5-

in Tennessee Code Annotated section 36-5-101(a)( 3) prevails upon the proof offered by Mother. To the contrary , the testimony at trial showed that Mother was required to pay for the u tilities asa form of rent of the premises provided her by the maternal grandmother. Section 101(a)(3) provides for the following rebuttable presumption:

In all cases where a person is rec eivi ng alimony in futuro a nd the alimony recipie nt lives with a third p erson, a rebutta ble pres umption is th

ereby raised th at: (A) The third person is contributing to the support of the alimony recipient and the alimony recipient ther efore does not

need the amount of

support pr

eviously awarded, and the court therefore should suspend all or part of the alimony obligation of the former spouse; or (B) The third

person isreceiving support from the alimony recipient and the alimony recipient therefore does not need the amount of alimony previously

awarded and the court therefore should suspend all or part of the alimony ob ligation of the former spouse. Tenn. Code Ann. § 36-5-101(a)(3)(2001).

Since this cas e w as tried t o the cour t without a

jury we revie w the find

ings of t he court de
novo with a presumption of correctness on appeal absent a preponderance of the evidence to the
co nt ra ry. T.R.A.P. 13 (d); see Azbill v. Azbill , 661 S.W.2d 682, 686 (Tenn.Ct.App.1983). The court found that no change in circumstances justified the mo di fi ca ti on of

th e a li mo ny in futuroaward and
we cannot find on appeal that theprepond erance of the ev idence i s otherwi se. Reg ardlessof the trial court’s statement from the bench, the Mother had testified that she was pay

ing rent for her

quarter s. She had also s tated tha

t her pre vious liv ing ar

rangements with Mr. Eddie Ray in Lobelville were te mp or ar y. The proo f at tria l at t he very le ast, created a fact issue as to whether a change of circumstances exists. None theless th e essenc e of the inquiry

is a credibi lity

callto be made by the trial cou rt.
The trial court observed the manner and demeanor of

the witnesses and is in a better position to determine the credi bili ty of those who appe ared personally before the court. Any conflict in testimony requiring a determination of the credibilit y of witnesses is for the trial court and is binding on the appellate court, unless other real evidence comp els a con tr ary conc lusion. State ex rel. Balsinger v. Town of Madisonv ille , 222 Tenn. 272, 282, 435 S.W.2d 803, 807 (1968 ); Linder v. L ittle , 490 S.W.2d 717, 712 (Tenn.App.1972).
Azbill , 661 S.W.2d, at 687.

II I. ATTORNEYS FEES

1. Father’s last issue concerns the award of attorney’s f

ees in the amount of

$350.00. I

t is well settled in this juri sdiction th at the tri al court is vested with wide discretion in the allowance of-6-

attorney’sfees. This Court will not substitute its own judgment absent a showing of an abu se of that discretion. See e.g . Elliott v. Elliott , 825 S.W.2d 87, at 92 (Tenn .Ct. App.1991 ); Threadgill v. Threadgill , 740 S.W.2d 419 (Tenn.Ct.App.1987). However, the reasoning of this court requires that Father prevail in his child support petition. Thus, the grant of attorney s fees to the non-prevailing respondent

Wife would amount to an abuse of discretion. See Tenn. Cod e Ann. § 36-5-103(c) (2001); see also H

arris v. Ha rris , 83 S.W.3d 137, 141 (Tenn.Ct.App.2001). The award of attorney ’s fees is therefore reversed.

IV. DI SPOSITION

The Order of the tria l court denying child support and award of attorney ’s fees is reversed withthe following mod ification: Plaintiff is entitled to five months of child support at $365 per month, and twelve months of child support at $239 per month, the

Order w ith re ga rd to al im on y in futuro is affir

med. The

cause is remanded for fur

ther pro ceeding s as nece ssary . The cos ts of this appeal are taxed equally a gainst the Appellant, William Tarking ton, an d the Appellee, Rebecca Tarkington, for which execution may issue.

___________________________________

WILL IAM B. CAI

N, JUDGE