IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

SUBMITTED ON BRIEFS JULY 14, 2005

IN THE MATTER OF J.L.C., V.R.C., and E.R.C.

JOHN RICHARD SIMMONS, ET AL. v. JAMES CORDELL, ET AL.

Direct Appeal from the Chancery Court for Grundy County

No. A-111 Jeffrey F. Stewart, Chancellor

No. M2004-00538-COA-R3-CV - Filed December 28, 2005

DISSENTING OPINION

I write separately to voice my dissent to the holding reached by the majority in this case. 

The majority concludes that Father expressly waived the issue of whether the trial court correctly

determined him to be voluntarily unemployed. Although Father did state in his brief that he is not

challenging the trial court’s determination that he is voluntarily unemployed on appeal, I believe the

issue should nonetheless be addressed. In doing so, I would hold that the trial court erred in finding

that Father was voluntarily unemployed and in imputing potential income to Father on which to base

an award of child support.

Rule 13(b) of the Tennessee Rules of Appellate Procedure provides as follows:

(b) Consideration of Issues Not Presented for Review. — Review

generally will extend only to those issues presented for review. The

appellate court shall also consider whether the trial and appellate

court have jurisdiction over the subject matter, whether or not

presented for review, and may in its discretion consider other issues

in order, among other reasons: (1) to prevent needless litigation, (2)

to prevent injury to the interests of the public, and (3) to prevent

prejudice to the judicial process.

Tenn. R. App. P. 13(b) (2005)(emphasis added). The Advisory Commission Comments to the Rule

provide as follows:

This subdivision deals with the very difficult question of when an

appellate court should consider an issue not raised by the parties.

Generally speaking, control over the issues should reside in the
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parties, not in the court. Accordingly, this subdivision provides that

review will typically extend only to the issues set forth in the briefs.

Only the absence of subject-matterjurisdiction, whether at the trial or

appellate level, must be considered by the appellate court regardless

of whether it is presented for review. Cases appealed to the wrong

appellate court must be transferred pursuant to Rule 17 ofthese rules.

In all the other situations described in this subdivision, the appellate

court has discretion to decide whether it will consider a matter not

raised by the parties. It is intended that this discretion be sparingly

exercised.

I am mindful of our need to use the discretion vested in this Court under Rule 13(b) conservatively.

There is no greater need for this Court to exercise its discretion to review an issue not

presented for review, however, than when a trial court enters a finding in direct contravention of

established precedent, thereby causing prejudice to the judicial process. See, e.g., Panzer v. King,

743 S.W.2d 612, 616 (Tenn. 1988) (recognizing that neither of the parties raised the issue of whether

a trial court was correct in granting a new trial, our supreme court stated that “[w]e are presented

with a classic case for the application of T.R.A.P. 13(b) that expressly grants the appellate courts

authority to consider issues not brought up for review by any party”); In re Z.J.S., No.

M2002-02235-COA-R3-JV, 2003 Tenn. App. LEXIS 415, at *14–27 (Tenn. Ct. App. June 3, 2003)

(exercising our discretion under Rule 13(b) to vacate the termination of the fathers’ parental rights

due to serious procedural irregularities); Waterhouse v. Cumberland County Bank, Nos. 03A01-

9102-CH-00056, 03A01-9106-CH-00079, 1991 Tenn. App. LEXIS 808, at *4 (Tenn. Ct. App. Oct.

8, 1991) (recognizing that neither party raised the issue of whether the trial court erred in finding that

the plaintiff failed to meet certain requirementsfound in theTennessee Rules of Civil Procedure, this

Court undertook an examination of the issue pursuant to Rule 13(b)); Moore v. Moore, No. 1, 1986

Tenn. App. LEXIS 3201, at *5 (Tenn. Ct. App. Aug. 4, 1986) (noting that, even though the parties

did not appeal the issue of whether a valid marriage existed in the first instance, the parties’ apparent

disregard of the rules governing the marriage process warranted our examination of the issue under

Rule 13(b)). The limited exercise of discretion I espouse in this instance promotes this Court’s role

in correcting clear legal errors by the trial courts of this state so that we do not condone the

establishment of an incorrect precedent, thereby preventing confusion for the bench and the bar that

would ultimately ensue should we allow such errors to stand. 

After reading the trial court’s order in this case, there is no mistaking the fact that the trial

court concluded that Father was voluntarily unemployed due solely to his incarceration. If any

ambiguity did exist in the order, it would be resolved by reference to the trial court’s statements to

the parties at the conclusion of the hearing in this matter:

I think first I would like to point out and say for the record I do find

that Mr. Cordell has voluntarily put himself in a position of not

earning any income. He didn’t certainly quit a job but he certainly
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participated in illegal activity that brought about losing his job and

becoming incarcerated and put us in this position. No one made him

participate in that. It appears he voluntarily chose to do that. So I

find that he voluntarily unemployed himself. The question is what

could he earn and what could he pay as far as support is concerned?

. . . The question of what he could earn is really somewhat in dispute

and difficult for this Court to determine based upon the proof before

it. And one of the reasons I ask about these prior farm income

records is that I think that would have established what he was able

to earn off of this farm.

The trial court’s finding of voluntary unemployment in its order, which is based on this faulty line

of reasoning, constitutes clear error in direct contravention of our existing case law.

“Although there is no requirement that a parent intended to avoid their child support

obligations by their actions, we do think that willful or voluntary unemployment or

underemployment must result from an intent on the part of the parent to reduce or terminate his or

her income.” Wilson v. Wilson, 43 S.W.3d 495, 497 (Tenn. Ct. App. 2000) (emphasis added). This

Court has previously had occasion to address the correctness of a trial court’s finding of willful and

voluntary unemployment by an obligor parent under circumstances similar to those in the present

case. In Pennington v. Pennington, No. W2000-00568-COA-R3-CV, 2001 Tenn. App. LEXIS 192,

at *2 (Tenn. Ct. App. Mar. 14, 2001), a wife filed for divorce from her husband in 1999 and sought

child support for the parties’ children. In 1994, the husband, a doctor, was incarcerated for illegally

writing prescriptions for controlled substances. Id. at *2–3. The husband was released in 1996,

however, he was subsequently arrested in 1998 for possession of cocaine and sentenced to a new

prison term. Id. at *3. The husband remained incarcerated when the divorce proceedings began in

the lower court. Id. at *2. The trial court concluded that the amount of the husband’s child support

obligation should be based upon his potential earning capacity, utilizing the average of his earnings

in the five years preceding his first arrest in 1993. Id. at *7. However, the trial court did not make

a finding of willful and voluntary unemployment on the part of the husband. Id. at *10. Having

failed to do so, this Court conducted a de novo review of the record to determine whether the

husband was, in fact, willfully and voluntarily unemployed. Id. In concluding that the husband was

not willfully and voluntarily unemployed, we held as follows:

The case at hand is analogous to [Wilson v. Wilson, 43 S.W.3d 495

(Tenn. Ct. App. 2000)]. In Wilson, Ms. Wilson argued that because

Mr. Wilson’s criminal acts were willful and voluntary, he was

willfully and voluntarily underemployed. Likewise, in the case at

hand, Ms. Pennington asserts that because Mr. Pennington’s criminal

act, using cocaine, was willful and voluntary, and because this act led

to his incarceration and resulting unemployment, he was willfully and

voluntarily unemployed. We decline to make this conclusion. Mr.

Pennington did not intend to become incarcerated and unemployed
 This case came to be heard in the chancery court prior to the enactment of the new “income shares” model 1

of the child support guidelines, which took effect in January of 2005. I am cognizant of the limited evidence addressing

Father’s income in the years prior to his incarceration, which the Appellants attempted to prove in the proceedings below.

If, on remand, the chancellor were unable to ascertain Father’s net income for the period in question, the child support

guidelines in existence when this case came to be heard below provide for such a contingency. See Tenn. Comp. R. &

Regs. 1240-2-4-.03(3)(e) (1994) (providing the amount of income to be used when the obligor fails to produce sufficient

evidence of income).

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when he made the choice to use cocaine; thus, the record does not

support a finding that Mr. Pennington was willfully and voluntarily

unemployed. Consequently, the trial court’s award of child support

based on Mr. Pennington’s potential income rather than his net

income is reversed. We remand this case to the trial court for a

determination of Mr. Pennington’s net income and to make an award

of child support based on Mr. Pennington’s net income.

Id. at *13 (emphasis added);see also Coates v. Coates, No. M2001-01928-COA-R3-CV, 2002 Tenn.

App. LEXIS 803, at *7 (Tenn. Ct. App. Nov. 15, 2002) (“This court has rejected the proposition that

a parent’s dishonest acts which led to unemployment constitute willful and voluntary unemployment.

As a logical extension of that principle, we have also held that unemployment or underemployment

resulting from incarceration is not willful and voluntary.” (citations omitted))).

As in Pennington, there is nothing in the record before this Court to indicate that Father

intended to become incarcerated and unemployed in an effort to reduce or terminate his income.

Thus, the chancellor’s calculation of Father’s child support obligation based upon his potential

income constitutes a clear error of law which this Court should address to prevent prejudice to the

judicial process. Accordingly, I would reverse the trial court’s holding and remand this case to the

chancery court for a determination of Father’s net income, consistent with the child support

guidelines in effect when this case was tried below, and the entry of a child support award based 1

upon such amount.

___________________________________ 

ALAN E. HIGHERS, JUDGE