### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 9, 2002 Se ssion THOMAS JAMES MILAM, JR. v. DONNA LI SA VINSON MILAM

Appeal from the Circuit Court for Davidson County No. 96D-2378 Muriel Robinson, Judge

No. M2001-00498-COA-R3-CV - Filed April 23, 2002

By decree the husband was ordere d to pay $4500 per month in child support and $2500 per month in alimony for forty

-eight months. After a

chang e in his emp loyment, Husband petitioned the court for a reduction in alimony and c hild support. The trial cou rt denied the petition and ordered the husband to

pay the wife ’s attorn

ey ’s fees . We affir

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

Affirmed and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which P ATRIC IA J. C OTT RELL , J. and D ON R. A SH , S P
. J., joined.
Helen Sfikas Rogers and Tho mas F. Bloom, Nashville, Tennessee, for the appellant, Thomas James Milam, Jr.
D. Scott Pa

rsley , Nashvill e, Tenne ssee, fo r the app ellee, D onna L

isa Vinson

Milam.
OPINION
I.
The parties were divorced on August 13, 1997. The decreeordered Mr. Milam to pay $4500 per month to support the parties’ two minor children and $2500 per month in rehabilitative support for forty-eig ht months. On November 2, 2000, Mr. Milam pet itioned the court fo r a redu ction in child support and alimony alleg ing that he was unemployed.
The proof developed at a hearing on January 16, 2001 showed that at the time of the divorce Mr. Milam was employ ed by Heritag e House, a division of So uth western Great America Corporation. Heritage House eng ages in d irect mail sales of musical collectibles and books. Mr. Milam’s compensation packa g e included a base salary of $100,000 and a bonus based on the profitab ility

of the compa

ny. In 19 96 he ea

rned $21 6,797 in

salary a nd at the time of the divorce he-2-

was earning $252,000 per yea r ($21,000/month). In a

ddition he had acq uired a c onsidera

ble esta te co ns is ti ng of

re al pr op er ty, a r et ir em en t a cc ou nt , a wi ne co ll ec ti on , a nd st oc k i n t he co mp an y. After the divorce Mr. Milam continued to prosper. He bought a new home, remarried, and addedto his wine collection. However, in 1999 the principa l owners o f Herita

ge Hous e decided to sell the company bec ause normal market factors made the per formance of the company uncertain. Mr. Milam sought

a buyer for the company

but his efforts ultimately failed, a nd in late September of 2000, he nego tiated a s everance pack age se paratin g him fr

om his emplo yme

nt.
The package included a sever ance stipend of $83,333.33 pay abl e by the end of the 2000 calendar ye ar, an a

dditi onal $8000 in l ieu of pr ofit shar ing for the year 2000 , and $206 ,381.78 to redeem his compa

ny s tock, pay

able in five equal annual pay

ments. The unpaid balance on the stock redemption payments car ries interest at ei gh ty percen t of the “ Base Ra

te of Suntr

ust Bank in Nashville, Tennessee.” By the date of the hearing, Mr. Milam had been employ ed by the Wine Auction, a project of the American Cancer Society , at a salary of $100,000 per ye ar plus a bonus if he substant ially increased the income from the annual event. He testified that the increase wa s unlikely. Otherwise, he was still looking for a permanent position that was com parable t o the o ne he l eft at Herit age Ho use. To tailor

his expense s to his inco me he and his new wi fe had qu

it buy ing wine for his collection, quit eating out so often, qu it making contribu tions to his c

hurch, a nd had no p lans to take a vacatio n in 2001. H e had sold an expensi ve automo

bile and had attempted

to sell part of his wine collection. He no longer hires a housekee per. The trial judge denied the petition to modify the child support and alimony pay ments. The court sta ted the f ollowing reasons :
1. The Court finds that Mr. Milam has sufficient assets, whether he is working or not, to comply with this order. What he has proven is that

he knew of the obligation require d by

the fina l decree at the time there was som e talk of terminating his employment at Heritag e House. The Court finds that Mr. Milam comes into court

today with a net worth of

over $2,000,000.00 and by his own testimony, he has borrowing power.
2. The Court find s that Mr. Milam volunt arily entere d into the s e vera nce agree ment, which the

Court can

see why he did so

. He made a pretty good deal there

. Further , with the s everan ce pack age, h e can co mply

with this order. He is an execut ive. He is no str anger to Nashville. The Co

urt feels very confident that

he is going

to get a position tha

t is at lea st compar

able to what he had. The Court finds Mr. Mi la m’ s u ne mp lo yme nt to be te mp or ar y. Mr. Mosely, the CEO of the compa ny says they would hire him back. The Courtfinds absolutely no proof that he w as being fired o r anythin g, it was just a company dec ision and he negotiated a severance package.-3-

3. The Court find s that Mr. Milam come s before this Court w ith equity

in his homeof $250,000.00. Th e Cour t finds that Mr. Milam, subsequent to the divorce, purchased an

expensive house and spent several hundred thousand doll ars o n furniture and in making improvements. This Court in good consciencecannot allow Mr. Milam t o keep those assets to the detriment of his children. So perhaps when he liquidates such items and s till hasn’ t got a job, he may be in a better po sition to file a petition to modify his support oblig ations. The Court further finds that Mr. Milam’s testimony a nd financial statemen

ts demonstr

ate that h e has obli gated h

imself to a

house note of $3,346.00 monthly. Therefor e, the Court in good conscience cannot find that Mr. Milam does not have the wherewithal to comply with this order.
4. The Court fur ther find s that Mr. Milam quitc laimed one-half interest in his hometo his new wife

and suppo

rt of his ne

w wife is a

voluntary obliga

tion, along withher children from a previous marriage coming into the home and the Court cannot subordinate Mr. Milam’s primary oblig ations to his former wife and children to those of a new wife and step-c hildren, his secondary ob lig ation. It is, therefore, ORDERED, A DJUDGED AND DECR

EED that based on the evidence produced by Mr. Milam, that the Petition to reduce alimony and child support is dismissed.
In addition, the court ordered Mr. Milam to pay $5,000 of Ms. Milam’s attorney’s f ees and two-thirds of the court costs. Ms. Milam was ordered to pay the balance of the court

costs and the rest of her attor

ney ’s fees

. II. C HILD S UPPOR T
After an initial award of child support the modification of that award is governed by

Tenn. Code Ann. § 36-5-101(a)(1).
In cases in

volving c hild suppor

t, upon ap

plication of eit her part y, t

he court shall decreean increase or decrea se of such allowance whe n there is found to be a significant

variance, as defined in the chi ld support guidelines established by subsection (e) , between the guidelines and th

e amount o f support

curren tly ordered unless the variance has resulted from a previously court-or

dered deviation from the guidelines and the circumstances which ca used the deviation have not changed. A significant variance is defined in the regulations as a change in support of “at

least 15% if the curr ent suppor

t is one hundred ($1 00.00) or great er per m onth and a

t le ast fi fteen dollars ($15.00) if the current support is less than $100.00 per month.” Tenn. Comp. R & Regs., ch. 1240-2- 4-.02(3)(1994). But a downward mo dificati on should n ot be orde red if “the obli gor is w illfully

and voluntarily unemploy

ed or underemploy ed.”-4-

Wheth er an obligor parent is voluntarily unemployed or under

em ployed depends on a numbe r of factors. It is intensely

fact-dependent and “can only be made af

t er consideration of all the circumstances surrounding that parent’s past and present employ ment or business activities.” Ralston v. Ralston , No. 01A0 1-98 04-CV -002 22, slip op. at 7 (Tenn . Ct. A pp., A ug. 3 , 1999 ). We do not believe that the recor d supportsa finding

that Mr. Mi lam is volun

tarily underemployed. A

t the time of the

hearing he had a ctually been separated from his employ ment at Heritage House for only about four months. It is undisputed that the sagg ing fortunes of the business was the cause of his separ ation. B ut he had t

aken a jo b that pai d him

a substantial salary, a

nd he continued to look for a job that was c omparab le to the o ne he lef t.
A finding that Mr. Milam is not voluntarily undere mployed, however , does not mean that he is automatically entitled to a re duction in child support. The child support guidelines requ ire the courts to take into account an obligor parent’s g ross income from any

source i nc luding “ wages , salarie s, commission , bonuse s ... dividends, severance pay , pensions, interest . . . capital gains.” Tenn. Comp. R. & Regs. Ch. 1240-2-4.03(3)(a)(1994). The oblig or’s i ncome from fluctuating sources must be averaged and added to his/her

fixed salary. Tenn. Comp. R. & Reg s., ch. 1240-2-4- .03(3)(b). Si nce the guid elines a re silent on how to a

verag e the flu ctuating

income, t

he court s approach the probl em on a ca se-by -case basis. See Alexander v. Alexander, 34 S.W.3d 456 (Tenn. Ct. App. 2000).
The record shows that Mr. Milam earned $283,818 in wages in 1997 and reported a capital gain of $382,073 for a

to tal in com e of

$66 5,8 91. In 1998 his wa ges amo unted to $4 18,176 and his capital gains to $1,514,916 for a total of $1,979,128. I n 1999 he reported a

total income of $567,416, consi stin g o f $396,007 in wages and $161,737 in capital ga ins. The record does not contain his tax returns for 2000, but he work ed until the last of September and then received $83,333.33 in the severance stipend plus $8,000 in lieu of profit sharing for the year.
We agree with the lower court that whe n the hearing was held

in January of 2001 the court could not concl ude that M

r. Milam’ s income

had decreased to a

point significantly below a level that would require him to pay support in an amount of $4500 per month. His ave rage gross income for any calendar year – including 2000 – was signif icantly highe

r than that. Based on what we can predict for the ye ar 2001 he would have earned $100,000 in salary and would have received

the first $40,000 payment on the note re presenting the buy out of his stock.
We conclu de that Mr . Milam hasnot made a case fo r reduc ing his child suppor t.
IV. A LIMONY
Some of the sa

me consid

eration s go into r

esolv ing the dispute over Ms. Milam’s rehabilitative support. T

he final decree awarde d Ms. Milam $ 2500 per month for a period

of fo rt yeight months “to defray

Ms. Milam’ s future

educati onal expen ses and to allow her

to become rehabilitated.” Tenn. Code Ann. § 36-5-101(a) (1) allow s the court to increase or decrea se the-5-

allowance “only

upon a showing of a

subs tanti al and mater ial ch ange of circumstances.” Support decisions are factually

driven, therefore the appellate cour ts give wide latitude to t

h e trial court’s discretion. Sanella v . Sanella , 993 S.W.2d 73 (Tenn. Ct. App. 1999).
“The factors set forth in Tenn. Code A nn. § 36-5-101(d), applicable to the initial grant of spousal support a

nd mainte nance, where r

elevant , must be ta

ken intoconsideration in determining whether there ha s been a c

hange in circu msta nces to warrant a modification of the alimony obligation.” Watte rs v. W atte rs , 22 S.W.3d 817, 821 (Tenn. Ct. App. 1999). “[T]he need of the spouse receiving the support is the single most important factor.” Id. ; see also Cr anford v. Cranfor

d , 772 S.W.2d 48, 50 (Tenn. Ct. App. 1989). The ability o f the othe r spouse t o pay the oblig ation is also important. Herrera

v. Herre ra , 944 S.W.2d 379 (Tenn. Ct. App. 1996). In this case, the proof does not show any cha nge in Ms. Milam’s need for the support, and we conclude

that Mr. Mi lam still ha s the abili ty to pay it. It ma y be true tha t Mr. Milam ’s monthly income has been reduced, but the $2500 payments to Ms. Milam will continue for only a few more months. It is not

clear from the record when the forty-e

ight month period started but we assume that in January of 2001 twelve installments rema in u npaid. T hat would amount to a total of $30,000. Mr. Milam’s financial statements showed that in January of 2001 he had

a n et worth of $1,465,333.00, after receiving well over $3,000,000 in the ye ars since the divorce. Therefore, we conclude that the trial judge should be affirmed on this issue.
V. A TTORNEY ’ S F EES
Tenn. Code Ann. § 36-5-10 3(c) allows the c ourts to a ward att orney ’s fees to one par

ty or the other in c ases invo lving en forcem ent of de crees f

or alimony

or child s upport. The award is in the discretion of

the court. Deas v. Deas , 774 S.W.2d 167 (Tenn. 1989). Th e ability of eithe r party to pay is not dete

rminative as long a s the awa

rd is just a

nd equita ble under the fac ts of the case. Sherrod v . Wix , 849 S.W.2d 780 (Tenn. Ct. App. 1992).
Mr. Milam arg

ues t hat Ms. Milam was the cause of much unnecessary litigation since the original divorce, and

it is inequitable to ma

ke him pay for he

r efforts. We think, however, that the trial judge took all the circumstances in this case into account in making her decision. Therefore, we cannot say

that she abused her discretion.
The judgmen

t of the c ourt is af

firmed, a nd the ca use is remande d to the Circuit Court of Davidson County for any further proceedings nece ssary. Tax the cos ts on appea l to the ap pellant, Thomas F. Milam, Jr.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.