1 The childre n’s dat es of bir th do not appear in the record; however, the mari

tal dissol ution agreement

states t hat as of Febru ary, 1993 , the children w ere 14, 13 , and 10 ye ars old, resp ectively.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE July 9, 2001 Sessi

on
JUDITH R. THOMAS v. WILLIAM A. THOMAS
Appeal from the General Sessions Court for Roane County No. 324A Dennis W. Humphrey, Judge FILED OCTOBER 23, 2001

No. E2001-00191-COA-R3-CV

This is a post-divorce proceeding. Judith R. Thomas (“Mother”) filed a petition for contempt and for an increase in child support. William A. Thomas (“Father”) answered and filed a

counterclaim, seeking a decrease in his support obligation. Following a bench trial, the court below determined that while Father

had failed

to comply with some of the provisions of the parties’ marital dissolution agreement

(“MDA”), his fa

ilure to comply

was not willful; therefor

e, the court dec

lined to hold him in contempt. The court

also held that Father’s child support obligation should n

ot be changed.

Both parties raise iss

ues on this appeal.

We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Affirmed; Case Remanded

C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined.
Jean Brown, Knoxvill

e, Tennessee, f

or the appellant,

Judith R. Thomas.

Amelia G. Crotwell

, Knoxville, Tenness

ee, for the appe

llee, William A. Thoma

s.
OPINION

I.

The parties were divorced by final judgment entered on A pril 2, 1993. They were

awarded jointcustody

of their three minor children: Tracy Lee Thomas, John Anthony Thomas, and Joshua Alden Thomas, 1 with Mother rece ivi ng primary physical custody . Pursuant to the parties’ MDA, which was incorporated by refe rence into the final judgment, Father was to pay child support of $620.72 per month. He was also ordered

to provide Wife with

copies of his futur

e federal incom

e-2-

tax returns. Mother was ordered to provide health insurance for the children, and the parties were to equally divide

any medical or dental expenses not covered by Mother’s insurance. Father agreed to pay all unsecured

debts incurred during the marriage. Mother was awarded the marital r esidence, andshe assumed the first and second mortgages on the property . Mother agreed to pa y Fa ther $12,500 for his share of the equ ity in the residence, plus interest, to be paid at the rate of $265.60 per month for 60 months. Mother was to satisfy thi

s last obligation b

y way of a credit

to Father’s child support obligation.
Post-divorce, on December 6, 1999, Mother file d a petition in the tr

ial court, seekin

g to increase child support. She alleged that Father’s income had increased since the time of the divorce judg ment. She also sought a finding of contempt against Father, based upon his alleged willful failure to pay

(1) child support from February, 1993, to May, 1994;

(2) two credit ca

rd bills alleged

ly incurred during the marriage; and (3) one-half of the children’s medical expenses not cover ed by insurance. In an amended petition, Mother asked the court to punish Father for his “willful” failure to provide her

with his annual federal income tax returns. Father opposed Mother’s petition and filed a counterclaim seeking a decrease in his support obligation.

The pa rties’ competing claims proceeded to trial on July 14, 2000. By an order e ntere d September 29, 2000, the trial court found that Mother had failed to prov

e that Father ow

ed a child support arrearage or that the credi

tcard debt attempted to be assigned to Father was in fact incurred during the marriage. The court found that Father had

failed to provide

copies of his tax re

turns to Mother and t hat he owed Mother $332 for his share of an anesthesiologist’s bill, but the court refused to hold Father in c

ontempt, finding t

hat his failure to

comply with the MDA

with respect to these matters was not wil

lful o r inten tional. Finally, the court concluded that Father’s support obligation should remain unchanged.

Mother appeals, arguing (1) that the trial court erred in finding that Father did not

owe a child support arrearage; (2) th at her claim for back child support is not barred by the doctrine of res judicata ; (3) that she is entitledto reimbursement for payment of the children’s medical expenses notcovered b y her insura nce; (4) that she

is entitled to reimbu

rsement from Fa

ther for pay

ments made by her on uns

ecured marital d

ebts; (5) that Father

should be found in contempt for his willful failure to follow the trial court’s orders; (6) that she is entitled to contractual damages under the MDA for Father’s failure to provide his federal income tax returns; and (7) that Father’scurrent child support obligation should be increased. By way of a separate issue

, Father argu

es that his child support obligation should be decreased.

II.

Our review of this non

-jury case is de novo on the record; however, the record comes to us accompanied

by a presump

tion of correctn

ess that we must honor unless the evidence preponderates against the trial court’s

factual finding

s. Tenn. R. App. P. 13 (d); Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App. 1992). No presumption of correctness attaches to the lower court’s conclusions of law. Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).-3- III.

Mother argues that she

is entitled to an award of $3,252.82 as a result of Father’s failure to pay child sup

port from Februa

ry, 1993, to

May, 1994. At the hearing below, Mother claimed that
a previous order, purportedly entered in May , 1999, mistaken ly esta

blished Father’s arrearage at $6,678.70, rather thanthe correct amount of $9,931.52. While theparties could not locate this order, they agree that the

subject order de

termined Father

’s arrearag

e to be $6,678.70. I

t is undisputed that, following thi s or der, Father made a lump sum payment of $6,898.79 to Mother, which amount satisfied the arrearage established by the order . Based upon the evidence presented, the trial court found that it was “unable to conclude [that Mother] has proven by a preponderance of the evidence [that] an arrearage exists.”

The evidence does no

t p rep onderate against the trial court’s finding that there is no outstanding arrearage. The evidence est ablishes t hat Father s atisfied t he child su pport arrear age determinedin t he M ay, 1999, order by the lump sum payment in September, 1999. I f the May, 1999, order precludes Mother from re-litigating the issue of the arrearage up to that point, it is clear that Father has paid any pre-May , 1999, support arrearage.

Mother insists that the prio

r arrearage

was miscalculate

d and that she is not ba rred by the doctrine of res judicata

from challengingthe prior determination because, so the argument goes, (1) according to the statement of the evidence, Father’s counsel advised the trial court that no order was entered in the prior action and (2) the issue of her overpayment to Father for his share of the e

quity in the marital residence was not determined in the prior action.

We find that Mother is

barr ed b y res judicata

from re-litigating the

issue of the child support arrearage. “The doctrine of res judicata bars a second sui

tbetween the same parties or their privies
on the same cause of action with respect to all issues which were or could have

been litigated in the former suit.” Goeke v. Woods, 777 S.W.2 d 347, 349 ( Tenn. 1989 ) (quoting Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987)). Despite the statement of Father’s counsel to the contrary , there was sufficient evidence from which the

court could and did conclude that an order establishing Father’s arrearage was in

fact entered in

May, 1999. T

he trial court’s o

rder in the instant case indicates that bothparties acknowledged the existence of the prior o rder and sti pulated th e amount of t he arrearage determinedin it. As previously indicated, the re w as clear evidence that after May, 1999, Fa ther made a lump sum payment to satisfy the arrearage found in the 1999 order. Moreover, both parties testified that following the May, 1999, order, F ath er, who had previously been pay ing $69.60 per week in support, bega

n paying $1 15.48 per week. T hese facts lead us to conclude that an order was entered in which an arre arage was determined and in which Father’s ongoing support obligation was modified. Mother’s argument with respect to the non-ap plicabi lity of res judicata is found to be withou t merit. As to Mother’s argument that her alleged overpay ment of Father’s equity was not addressed by the 1999 order, we fi n d that thi s issue was determined in the prio r proceedin g. Mother’s claim of an overpayment rests upon her theory that Father owed h er a larger arrea rage than-4-

hadbeen determined in the May, 1999, order. This issue ha s alre ady been r

esolved adverse

ly to Mother, and she is barred from re-litigating it now.

IV.

We next turn to

the issue of the me

dical expenses.Mother presente d numerous medica

l bills to the court below, claiming that Father h ad not paid his share of those expenses that she claimed
were not covered by her insurance. The trial court specifically rejected Mother’s claim as to one of these expenses, a $200 ch

arge for gla

sses, finding tha

t she had failed to

provide Father

with the bill. It didfind, h owever, that Fa ther had failed t

o pay his sha

re of a $663 anes

thesia bill. As a consequence of this finding, the court ordered Father to pay Mother $332 within 60 days. Mother do es not appeal these f

indings; rather

she seeks reimbur

sement in connect

ion with an orthodon

tic bill for the parties’ second child, John Anthony Thomas, which expense was not specifically addressed by the trial court in its order.

The evi dence reflect

s that the orthodont

ic bill totaled $2,18

7. Over one-half

of this b ill

– $1,141.50 – was paid throug h insurance car

ried by Fa

th er’s c urrent wife, Sheila Thomas. The remainder

of the bill was paid by Mother. The MDA provides that the parties “will equally divide any medical, hospital,

and dental expense

s not covered by [Mother’s] insurance .” (Emphasis added). None of the orthod ontic bill at issue wa

s paid by Mothe

r’s insurance; a

s indica ted, the evidence clearly reflects that insurance procured by Father’s current wife

paid for more than half of this expense . The MDA does not provide that the parties are to divide expenses not covered by anyone’s insurance, only

Mother’s. Beca

use Mother’s insuran

ce did not cover a

ny of the bill

, the parties were obligate

d to divide it equally

betw een them, which it appears they did. The fact that Father’s share was paid through insurance provided by his curre nt spouse is notmaterial. In eq uit y, Husbandis ent itled to clai m the payment by his current wife’s insura nce as his own. Mother’s argument is witho

ut merit.

V.
Next, Mother contends that she is entitled to reimbursement from Father for $2,656 .02 i n unsecured

credit card deb

t allegedly

incurred during

their marriage and p

aid by her follo

wing their divorce.

At the trial below, Mother submitted two credit card statements with payment due dates of October, 1994, showing balances totaling $2,656.02. Mother also s ubmitt ed checks that she had written for payments on these obligations following the divorce. Both pa rties testified tha

t the credit cards in question were used to pur chase furn iture for the marital residence in 1990, prior to the parties’ separation. Mother further testified that no additional charges had been made to these cards since the parties’ separation.

The trial court found that Mother had failed to prove that the credit card debt of $2,656.02 was marital debt:-5- [T]here is no proof of the amount of the debts at the time o f the parties’ divorce, or whet

her one of the pa

rties created a

dditional debts thereon afterwards. In fact, it appears, due to a ca sh advance on the statement first listed above, that [Mother] continued to make use of that account after the divorce.

The trial court was not pres ented wit h any documentary evidenc e to establish the amount due on these credit cards at the time of the parties’ divorce

. In the absence of such evidence to establish the amount of the debt at that

tim e, th e trial court was left only with the testimony of Mother, who asserted that she had not incurred any more charges on the cards since the divorce. The trial court noted, however, that one of the 1994 credit card stateme nts reflected charges for a cash advance, which indicated to the c

ourt that at least o

ne of the cards wa s used for more than the purchase of furniture. For this reason, it appears that the trial cou rt d iscredited Mothe

r’s testimony

that these debts were marital. Th

e trial court’s c

redibility de

terminations are

entitled to grea

t weight on appea

l. Massengalev. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 199 5); Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). In fact, this Court has noted that “on an issue which hinges
on witness credibilit

y, [the trial j udge] will

not be reversed unless, other than the oral testimony of the witnesses, there is found in the record clear, concrete and convincing evidence to the contrary .” Tennessee Valley Kaolin Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn. Ct. App. 1974). Havi n g found no “clear, concrete and convincing evidence” that the debts owed as of October, 1994 – which date is some 19 months post-divorce – were marital, we affirm the trial court as to this issue.

VI.

Mother asserts that the tr

ial court erred

in refusing to

hold Father in contempt for his failure to comply with the parties’ MDA.

The trial court found

that Father had

failed to pay

his share of an an

esthesia bill and that he hadfailed to provide

Mother with copies

of his federal income tax returns. The trial court declined to hold Father in co

ntempt, however,

finding that his c

onduct was not willful. Determinations regarding contempt lie within the trial court’s soun d discretion and a

re final, absent

any plain ab

use of that discretion. Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993); Sherrod v. Wix, 849 S.W.2d 780, 786 (Tenn. Ct. App. 1992). Upon reviewing the record, we cannot say that the trial cour t abusedits discretion in

refusing to find Father in contempt. This issue is found adversely to Mother.

VII.

Mother argues that she

is entitled to an award of compensatory damages for Father’s breach of the MDA in

failing to provide her

copies of his tax re

turns for the y

ears 1995 to 1999. S

he asserts that such damages sh

ould be based upon

the difference

between Fathe

r’s actu al child support obligation during that time a nd the amount he wou

ld have been req

uired to pay according to hi

s gross income reported

on these returns.-6-

Mother has cited no authority, nor are we aware of any , to support an award

of compensatory damages for this type of breach of a MDA. More over, we not e that in seeking these damages , Mother is inessence requesting a retroactive modification of Father’s child support obligation for the four years prior

to the filing of her December, 1999, petition. A child support judgment may not be modified “as to any time period or any a mounts due pr ior to the date that an action for modification is filed....” T.C.A. § 36-5-101(a)(5) (Supp. 2000). Accordingly, Mother may notdo indirectly what she is

preclude d from doing directly, that is, obtain a retroactive modification of Father’s child support obligation for the years prior to the filing of her petition. We find this issue to be without merit.

VIII.

Fin all y, eachof the parties se eks to modify the current order setting child support. The trial court denied ea c h party’s r

equest, noting in

its order that both p

arties relied on f

inancial data purportedly

contained in responses to interrogatories – respons es th at were not admitt ed into evidence. We find no error in the tria l court’s judgme

nt which is essentia

lly based upon a failure of proof. Father makes a novel argument. He contends that since there is no proof

regarding his net income – because of the absence in the record of the responses to inter r ogatories – the trial court should set child support based upon an imputed annual inc ome of $25,761. He

takes thisposition because such an imputed inc

ome would produce

a child support o bligation that is less than the current order.

There are at least two r

easons why s

uch an approach

is not appropriate.

First, the claimed basis for Father’s a

r gument is Tenn. Co

mp. R. & Reg. Ch. 12

40-2-4-.03(3)(

e), a part of the

Child SupportGuidelines that specifically limits its application to the “establish[ment] [of] an initial order” of support. Id . (Emphasis added ). The instant cas

e is a modif

ication case co ntrolled by Tenn. Comp. R. & Regs. Ch. 1240-2-4-.03(3)(f). The application of the latter regulation does not produce
a low er aw ard o f chi ld s upp ort . Ac cord ingl y, it provides no basis for Father’s attem

pt to modify his child support. Furthermore, e

ven if this were a

n appropriate

case to impute income, we would not be inclined to impute

such income when to do so is to lower the child support obligation of one who has failed to produce the necessary documentation to establish his net income for the purpose of the Guidelines.

We find no error in th

e decision of the t

rial court not to adjus t Father’s child support obligation.-7- IX.

The judgment of the trial court is affirmed. This case is remanded for enforcement of the trial court’s judgmen

t and for collect

ion of costs assess

ed below, all purs

uant toapplicable law. Costs on appeal are ta

xed to the appellant

, Judith R. Thomas.

_______________________________ CHARLES D. SUSANO, JR., JUDGE