1

The children’s dates of birth do not appear in the record; however, the marital dissolution agreement states that

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 Session

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 failure to comply was not willful; therefore, the court declined to hold him

in contempt. The court also held that Father’s child support obligation should not be changed. Both

parties raise issues on this appeal. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court

Affirmed; Case Remanded

CHARLES D. SUSANO,JR.,J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and

D. MICHAEL SWINEY, JJ., joined.

Jean Brown, Knoxville, Tennessee, for the appellant, Judith R. Thomas.

Amelia G. Crotwell, Knoxville, Tennessee, for the appellee, William A. Thomas.

OPINION

I.

The parties were divorced by final judgment entered on April 2, 1993. They were awarded

joint custody of their three minor children: Tracy Lee Thomas, John Anthony Thomas, and Joshua

Alden Thomas,1 with Mother receiving primary physical custody. Pursuant to the parties’ MDA,

which was incorporated by reference 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 future federal income
-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 residence,

and she assumed the first and second mortgages on the property. Mother agreed to pay Father

$12,500 for his share of the equity in the residence, plus interest, to be paid at the rate of $265.60

per month for 60 months. Mother was to satisfy this last obligation by way of a credit to Father’s

child support obligation. 

Post-divorce, on December 6, 1999, Mother filed a petition in the trial court, seeking to

increase child support. She alleged that Father’s income had increased since the time of the divorce

judgment. 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 card bills allegedly

incurred during the marriage; and (3) one-half of the children’s medical expenses not covered 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 parties’ competing claims proceeded to trial on July 14, 2000. By an order entered

September 29, 2000, the trial court found that Mother had failed to prove that Father owed a child

support arrearage or that the credit card 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 returns to

Mother and that he owed Mother $332 for his share of an anesthesiologist’s bill, but the court

refused to hold Father in contempt, finding that his failure to comply with the MDA with respect to

these matters was not willful or intentional. 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) that her claim for back child support is not barred by the doctrine of res

judicata; (3) that she is entitled to reimbursement for payment of the children’s medical expenses

not covered by her insurance; (4) that she is entitled to reimbursement from Father for payments

made by her on unsecured marital debts; (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’s current child

support obligation should be increased. By way of a separate issue, Father argues 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 presumption of correctness that we must honor unless the evidence preponderates

against the trial court’s factual findings. 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 support from February, 1993, to May, 1994. At the hearing below, Mother claimed that

a previous order, purportedly entered in May, 1999, mistakenly established Father’s arrearage at

$6,678.70, rather than the correct amount of $9,931.52. While the parties could not locate this order,

they agree that the subject order determined Father’s arrearage to be $6,678.70. It is undisputed that,

following this order, 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 not preponderate against the trial court’s finding that there is no

outstanding arrearage. The evidence establishes that Father satisfied the child support arrearage

determined in the May, 1999, order by the lump sum payment in September, 1999. If 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 prior arrearage was miscalculated and that she is not barred by the

doctrine of res judicata from challenging the 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 equity

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

We find that Mother is barred by res judicata from re-litigating the issue of the child support

arrearage. “The doctrine of res judicata bars a second suit between 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.2d 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. The trial court’s order in the instant case indicates that

both parties acknowledged the existence of the prior order and stipulated the amount of the arrearage

determined in it. As previously indicated, there was clear evidence that after May, 1999, Father

made a lump sum payment to satisfy the arrearage found in the 1999 order. Moreover, both parties

testified that following the May, 1999, order, Father, who had previously been paying $69.60 per

week in support, began paying $115.48 per week. These facts lead us to conclude that an order was

entered in which an arrearage was determined and in which Father’s ongoing support obligation was

modified. Mother’s argument with respect to the non-applicability of res judicata is found to be

without merit. As to Mother’s argument that her alleged overpayment of Father’s equity was not

addressed by the 1999 order, we find that this issue was determined in the prior proceeding.

Mother’s claim of an overpayment rests upon her theory that Father owed her a larger arrearage than
-4-

had been determined in the May, 1999, order. This issue has already been resolved adversely to

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

IV.

We next turn to the issue of the medical expenses. Mother presented numerous medical bills

to the court below, claiming that Father had 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 charge for glasses, finding that she had failed to provide Father with the bill.

It did find, however, that Father had failed to pay his share of a $663 anesthesia bill. As a

consequence of this finding, the court ordered Father to pay Mother $332 within 60 days. Mother

does not appeal these findings; rather she seeks reimbursement in connection with an orthodontic

bill for the parties’ second child, John Anthony Thomas, which expense was not specifically

addressed by the trial court in its order. 

The evidence reflects that the orthodontic bill totaled $2,187. Over one-half of this bill –

$1,141.50 – was paid through insurance carried by Father’s current 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 expenses not covered by [Mother’s] insurance.” (Emphasis

added). None of the orthodontic bill at issue was paid by Mother’s insurance; as indicated, 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. Because Mother’s insurance did not cover any of the bill, the

parties were obligated to divide it equally between them, which it appears they did. The fact that

Father’s share was paid through insurance provided by his current spouse is not material. In equity,

Husband is entitled to claim the payment by his current wife’s insurance as his own. Mother’s

argument is without merit.

V.

Next, Mother contends that she is entitled to reimbursement from Father for $2,656.02 in

unsecured credit card debt allegedly incurred during their marriage and paid by her following 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 submitted checks that she had

written for payments on these obligations following the divorce. Both parties testified that the credit

cards in question were used to purchase furniture 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 of the

parties’ divorce, or whether one of the parties created additional debts

thereon afterwards. In fact, it appears, due to a cash advance on the

statement first listed above, that [Mother] continued to make use of

that account after the divorce.

The trial court was not presented with any documentary evidence 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 time, the 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 statements reflected charges for a cash advance,

which indicated to the court that at least one of the cards was used for more than the purchase of

furniture. For this reason, it appears that the trial court discredited Mother’s testimony that these

debts were marital. The trial court’s credibility determinations are entitled to great weight on appeal.

Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995); 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 credibility, [the trial judge] 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). Having

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 trial 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 anesthesia bill and that he

had failed to provide Mother with copies of his federal income tax returns. The trial court declined

to hold Father in contempt, however, finding that his conduct was not willful. Determinations

regarding contempt lie within the trial court’s sound discretion and are final, absent any plain abuse

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 court

abused its 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 returns for the years 1995 to 1999. She asserts

that such damages should be based upon the difference between Father’s actual child support

obligation during that time and the amount he would have been required to pay according to his 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. Moreover, we note that in seeking these damages,

Mother is in essence 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 amounts due prior to the date that an action for

modification is filed....” T.C.A. § 36-5-101(a)(5) (Supp. 2000). Accordingly, Mother may not do

indirectly what she is precluded 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.

Finally, each of the parties seeks to modify the current order setting child support. The trial

court denied each party’s request, noting in its order that both parties relied on financial data

purportedly contained in responses to interrogatories – responses that were not admitted into

evidence. We find no error in the trial court’s judgment which is essentially 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 interrogatories – the trial court

should set child support based upon an imputed annual income of $25,761. He takes this position

because such an imputed income would produce a child support obligation that is less than the

current order.

There are at least two reasons why such an approach is not appropriate. First, the claimed

basis for Father’s argument is Tenn. Comp. R. & Reg. Ch. 1240-2-4-.03(3)(e), a part of the Child

Support Guidelinesthatspecificallylimits its application to the “establish[ment] [of] an initial order”

of support. Id. (Emphasis added). The instant case is a modification case controlled by Tenn.

Comp. R. & Regs. Ch. 1240-2-4-.03(3)(f). The application of the latter regulation does not produce

a lower award of child support. Accordingly, it provides no basis for Father’s attempt to modify his

child support. Furthermore, even if this were an 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 the decision of the trial court not to adjust 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 judgment and for collection of costs assessed below, all pursuant to applicable law. Costs

on appeal are taxed to the appellant, Judith R. Thomas.

_______________________________

CHARLES D. SUSANO, JR., JUDGE