### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Septem ber 20, 200 2 Session VERNESSA EKEL EM

v. IFEATU “IFY” EKELEM Appeal from the Chancery Court for Madison County No. 56951 Ron E. Harmon, Chancellor

No. W2001-02986-COA-R3-CV - Filed April 16, 2003

This is a divorce case. Both par

ties are phy sicians. Both hav e childr en from p revious marriag es, and they have three ch i ldren together. The parties’ three children were minors at the time of the divorce hearing. The father earned substantial income in 1996, which fell precipitously when he startedhis own medical practice in 1998. His medical practice, how ever, owns luxury vehicles, and the father owns a large home with significant acreage. The trial court found the fat her’s earning capaci ty to be at the level of the mother’s income, set child support based on th at ea rn in g c ap ac it y, and establish

ed the fa th er’s parenting

time with th

e partie s’ childr

en. The f ather wa s ordered to assume the parties’ tax debt, and to cease making derog atory re marks about the mother. Onappeal, the father argue s that the t

rial cou rt erre d in setting

child supp ort, in se

tt ing par entin g t ime, in assigning the tax liability to him, and in enjoining him from making derogatory comments about the mother. We affirm as modified, and remand, awarding the mot her atto rney ’s feesfor this a

ppeal. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified and Remanded
H OLLY K IRB Y L ILLARD , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined. Ifeatu Ekelem, Colleg e Grove, Tennessee, Pro Se.
James F. B utler, Jac

kson, Ten nessee, for appe

llee, Ve rnessa E kelem.1 A neo natologist is a pediatrician with ad ditional training to treat newbo rn babies.
2 The record d oes not indicate on what grounds Father s ued the Chancellor. -2- OPINION Plaintiff/Appellee Vernes sa Ekele m ( “Moth er”) and Defendant/Appellant I featu Ekelem (“Father”) were married i n Febru ary 1995. Mother is a pe diatrici an, Fat her is a neonatolo gist. 1 Father has three children from a prev ious m arriage; Mother has two children fr om a previous marriage. Prior totheir marriage, the parties enter ed into a prenuptial agreement which provided, inter alia, that in the event of divorce, the parties would retain their sepa rate property , refrain from seeking spousal support, including alimony and a ttorney’s fees , each be responsible for his or her own federal income tax liability, and if they had any

children, to seek a joint

custody arrang ement.
Mother and Father had three children t ogether. In January 2000, Mother filed for legal separation, citing ir

reconc ilable

differences. Father counte r-claimed for divorce. At the time of the divorce hearing, Father was f orty-seven y

ears old, Mother was forty-two y ears old, and their children were a ges six, f ive, and t wo. Mothe

r sough t custody of the ch ildren a s well as c

hild suppor

t.
On January 25, 2000, the trial court a warded temporary

custody to Mother . She was later awarded $1,100 per month in temporary c hild support. On October 24, 2000, the trial court awarded Father parenting time with the parties’ children. The children were to see him on alternate we ekends and on every

Wednesday from 1:00 p.m. to 7:00 p.m.
An Inte rimDecre e of Abso lute Divor ce was e ntered o n January

12, 2001. T

he rema inin g issues were reserved for the fina l hearing on the parties’ divorce.
Pri or t o the hea

ring, a myr iad of moti ons were

filed by both part ies. Among

the motions , Father moved to have Chancellor Joe Morri s recuse himse lf from the case, arguing that his prior orders indicate d that he w as b ia sed. Initially , Chancellor Morris declined to recuse himself, but decided to do so af

ter Fat her file d suit ag ainst him in federa l court. 2 Chancellor Ron Harmon was subsequently appointed to hea r the case.
On October

5, 2001, Mother filed an emer gency motion to te

rminate Father’ s parent

ing time withthe child

ren. I n the motion , Mother a

lleged that Fat her, dur ing his pa renti ng time w ith th e children, left them unsupervised in apublic park. Mother said that she was contacted by the police department

to retrie ve the ch ildren fr om the par

k. That da

y, t he trial c ourt issu ed a temporary restraining order, e

njoining Father from coming abou

t Mother a

nd termina

ting his p arentin g time withthe children pendi ng a hearing. Prior to the hearing, Father filed a response to Mother’s motion to terminate visitation in which he asserted that the children were be ing supe rvised a

t t he park by another adult. On October 16, 2001, after hearing the parties’ arguments, the trial court suspended Father ’s pare

nting time

privileg es with

the children until the final hearing on all re maining issues, set for November 14, 2001.3 Fatherapparentl y was r epresent ed by counselduri ng a por ti on of the proceedi ngs, but repres ented hi mself at trial and in this app eal. -3- Pr ior to th e f in al he ar in g o n a ll re ma in in g i ss ue s, th e p ar ti es ag re ed th at th e o nl y persona l propert y at issue was a joint tax debt owed to the Internal Revenue Service (“IRS”). Thus, the issues to be determined at trial were the tax debt, child support, custody , and parenting time.
The hearing was held on November 14, 2001, a s scheduled. The evidence showed that Moth eris empl oyed as a ped iatricia n for Met hodist West Tennesse e Medica l Associa tes. I n this position, she earns $121,000 per y ear. The evidenc e showed

that in 199 6, Fath er, then in practice as a neonatologist, had a net income, after taxes, of $219,828. In 1998, Fa ther started his own medical prac tice, Pediatrics 24. Father’s tax returns showed that, in 1998, he had a net loss of $48,628. Father’s subsequent tax returns showed a net income in 1999 of $21,494, and in 2000 a net income of $21,530.
Both Mother and Father testified at the hearing. Father proceeded at the trial pro se. 3 Father a cknowledg ed that his income as listed on his tax returns for 1998-2000 was drastically reduced from his 1996 inc ome, prio

r t o opening

Pediatric s 24. Fat

her testi fied tha

t, despite this drast

ic reduction in his income, he maintained Pediatrics 24 with offices in Jackson, Tennessee and Martin, Tennessee. Moreover, heackno wledge d that he o wned outr ight a 39 .75 acre

parcel of land in Coll ege Grove, Tennessee, and said that he had bee n building a 4,500 square foot home on the propert y for many ye ars, but t

hat the ho me was no t ye

t complete . Fathe

r explain ed t hat the ho me in Col lege Grov e was considered “corporate he adquarters” for his medical practice . He said that Pediatrics 24 had purchas ed two Toy ota L and Cruise

r vehicl es, with mo nthly

notes tota

ling almo st $2,000. F ather a

dmitted tha

t he also o wned a 19 95 GMC pick up truck, a 1993 Acura NSX sp orts car, and a 1988 Mercedes Benz. Father explained

that Pedia

trics 24 isowned by him and some of his children, all of whom were minors at the time of the trial, some y ounger than ten y

ears old. He testified that he wa s over $80 ,000 in ar rears in his child support obligat ion for hi s childre

n from his prior marriage.
In 1996, the parties accrued a tax debt of approxima

tely $51,000. With penalt

ies and in terest this increased to approximately $89,000. A lthough Father’s tax returns for 1999 and 2000 claimed th at he earned only

approximately $21,000 each y ear, nevertheless, in 2001, Father p aid th e IR S $30,000 on the outstanding tax debt. When asked on cross-examination where he obtai ned this $30,000, Father explained that he had previously put his re tirement savings into his medical practice, and that t he prac tice paid

him back t

hese funds, which

were the n used to pa

y do wn his tax de

bt.
Father was also a sked about derog atory comments h e made a

bout Mothe

r to the pa

rties’ children. After being denied parenting time, Father admit ted, h e wrot e a let ter to his ch ildre n stat ing: “Daddy will give this his very best shot—and I pro mise—no dr

ug addi ct, prost

itutewill stand in the wa y! . . .” Father testified that this was “not really ” a referen ce to Mothe r, but rather to Mother’s brother and “all kind [sic] of people” who visited Mother.4 Mother admitt ed that she had used marijuana both in college and in an i solated incident f ive years earli er, but test ifi ed uneq uivoc ally that she h ad no t used d rugs sinc e that time . The reco rd co ntained no ev idenc e con trary to M other ’s testimo ny.

-4- Father’s parenting plan proposed that he have custody

of the childrenfor six months of each ye ar. Fa ther pro posed tha t, during m

onths in wh

ich he ha d custody of the ch ildren, M other would pay him $2,864 per month in child support, and in months in which Mother h ad custo dy of the children, he would pay

her $458 per month.
Mothertestified at the hearing as well. She noted that she was g iven an awar d by

th e AmericanAcademy

of Pediatrics (“Academy ”) for her community

service. Just prior to her receiving the award, Father sent a letter to the A cademy a ccusing Mother of promiscuity , drug addictio n, and ad

ultery . Mother d

enied F ather’ s alleg ations. 4
At one time, the part

ies’ childre

n were b eing ca

red for by a nanny , at a cos tof $200 per week. Fath er then asked Mother t

o pay him $200 ea

ch week for car ing for his childr

en in his office

. Mother agreed to do so for a period of approximately six to eight months, but removed the children from Father’s care after

one child fell and hit her lip o n an occasion on which Father had left the children unattended.
Mother testifie d that Fa

ther did n ot financ ially

support th

e childr en until he

was orde red to do so by a court. More over, he had been held in contempt for failing to honor his child support obligat ions.
Mother also testified about the parties’ tax debt. She said that, in 1996, they ha d accrued a tax debt in the amount of

$51,154. Pe

nalties a nd intere st had subs equently increased the amount of the debt to approximately $89,000. Mother introduced into evidenc e her 1996 W -2 forms, which showedthat her taxes for that ye ar had been withheld by her employer s, thus indicating that the tax debt was for Father’s earning s for 1996. When Father opened Pediatrics 24 in 1998, he a sked Mother to help him with his tax burden. Mother agreed, and opened a joint che cking a

ccount in to which she transfe rred ove r $11,000 from her persona l checking acc ount.
Mother stated that when the children were with Father, they

stayed either

in Father’s office, at Father’s girlfriend’s home, or a t Father’s unfinished residence in College Grove. She said that Father’s office was unsuitable because it had only a couch as a sleeping are a. W hen the children stayed at Fathe r’s Colle ge Gro ve resid

ence, Mother said

that they would return with numerous flea and tick b ites. Mother testified that “inbred German Shepherds” roa med Father’s College Grove pr op er ty.
Moth er testifie d that a ne onatologist in the Jac kson, Ten nessee a rea could expect to

ear n between$300,000 to $450,000 per year. In contras t to the ap proximatel

y $2 1,000 per

ye ar incom

e claimedon Father’s tax returns, Mother estimated Fathe r’s actu al income was at least $150,000.5 The order of the tria l ju dge st ates : “ The fat her s hall make no fur ther

defa mator y or de rogat ory r emarks or com men ts about th e Mother under any circumstances, oral or written, or including but not limit ed to, comments that the M other is a drug user, p rostitute, o r has d rug affiliation s, or an ything alo ng tho se lines.”

6 Father, even though he is representi ng himsel f, i s requi red in hi s appell ate bri ef t o cite to speci fic refer ences from the trial rec ord . Rules o f the Ct. o f App . of T enn. 6 (b); see Paehl er v. Union Plant

ers Nat’l Bank , 971 S. W.2d 393, 396 (Tenn . Ct. App. 1 997 ) (“Parties who ch oose to re present themse lves . . . are not ex cused from c omp lying with app licable substa ntive an d pr oce dura l law. . . .”). With a single exce ption, Father failed to d o so here . We nevertheless add ress the issu es raise d on app eal. -5- Based on this income, Mother’s proposed parenting plan requested that she be designated primar y residential parent and

be awarded $2,737 per month in child support for the parties’ three children.
A tthe conclusion of the hearing, the trial court found tha t Father was voluntar

il y underemployed

and that h

is earning capa

city was equa

l to Mother’ s $6,005 per month income. Based on th is ea rn in g c ap ac it y, the trial court made an upward adjustment in Father’s child support obligation from $1,1 00 per mon th to $2,500

per mo nth. The tria

l court a lso order ed Father to assume the remaining tax arrearag e. Mother’s parenting plan was adopted as well. Father was given “standard” alterna

te-wee kend par enting t ime as well as other

parenting time, provided he has a suitable place for thechildren to stay. The trial cour t noted that Father’s unfinished College Grove residenceand his me dical clinic were not suitab le. Fina

lly, Father

was o rdered t o cease making derogatory

comments about Mother. 5 From thisorder, Father a ppeals.
On appeal, Father arg

ues that the trial court erred in increasing his child support from $1,100 to $2,500 per month for the parties’ three children. He contends that the tax liability was assigned to him in contr

avention of the pa rties’ antenupt

ial agr eement, and asse

rts that the trial c ourt err

ed in limiting his parenting time with th e childr en to only alternate w eekends and in prohibiting him from making disparaging remarks about Mother

. 6 Mother a rgues t hat the tr ia l cou rt’s order should be affirmed, and requests he r attorne y’ s fees f or this ap peal.
Becau se this case was heard by a trial court sitting without a jury , we review the case de novo upon the r ecord with a presumption of correctness of the findings of f act by the trial c ourt below, unless the evidencepreponderates against these finding s. See Tenn. R. A pp. P. 13(d); Wright v. Cit y of Knoxvill

e , 898 S.W.2d 177, 181 (Tenn. 1995). Questions of law are reviewed de novo without a presumption of correctness. Burlew v. Burlew , 40 S.W.3d 465, 470 (Tenn. 2 001 ) (citation omitted). The tria

l court is g

iven wide discreti on inmaking child custody de terminations, and will notbe reve

rsed unle ss the evi dence p reponde rates against the trial court’s decision. Williams v. Will iams , No. W2001-00101-COA-R3-CV, 2002 Tenn. App. LEXIS 440, at *7 (Tenn. Ct. App. June 20, 2002) (citations omitted). Likewise, a trial court’s distribution of marital debt is reviewed under an abuse of discretion standard. See Smith v. Smith , No. W2002-00477-COA-R3-CV, 2003 Tenn. App. LEXI S 38, at *11 (Tenn. Ct. App. Jan. 15, 2003). A trial court abuses its discretion when it reaches a decisi on aga inst logic that cau ses a har

m to the co mplaining

party or when the trial court applies an incorrect legal standar d. Eldridge v. Eldridge , 42 S.W.3d 82, 85 (Tenn. 2001) (citi ng State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999)).-6-

Father first ar gues tha t the tria l court e rred in s etting h

is child support payment at $2,500 per month. Father asserts that he did not open his own medical practice in an effort to evade responsi bility for his obligations, and he maintains that he c ann ot pay t hi s l eve l o f ch il d su ppo rt. In its written order, the trial court held:
The Court affirmatively f inds that the Father is voluntarily

underemployed; that the Father is a neo-natologist and has extensive skills and training and has more training and experience that the Mother; that the F ather is capa ble of earning at least the amount of money ea

rnedby the Mothe

r, who is a pediatr ician, e mployed in the public sector, less spec iali z ed than Father, and with five minor children living with her at home. Th e Fathe

r’s child support obligation is hereby set at $2,500 per month, pay able for the u se and be

nefit of t he parti es’ three minor children, which is in accordance with the D.H.S. Guidelines, based on Father’s ability to ea rn. . . . Thus, the trial court found Father was voluntarily underemploy ed, found his earning capacity to be at the level of Mother’s income, and accordingly, set child support at $2,500 per month.
If the trial court finds that an obl igor pa rent is vo luntarily

underem ploy ed, it is cl early authorized to determine the obligor parent’s earning c apacity a nd set child support based on that level of income. The Rules of Tennessee Department of Human Services Child Support Services Division state: “[i]f

an oblig or is wilfu

lly an d voluntar

ily u nemploy ed or und eremplo ye d, child support shall be calculated based o n a determination of potential income, as evidenced by educational level and/or

previous work experience.” Tenn. Comp. R. and Regs. 1240-2-4-.03(3)(d) (1997); see also W

atters v. Watters , 22 S.W.3d 817, 820-21 (Tenn. Ct. App. 1999). Based on Father’s educational level and prior work experience, the trial court was clearly justified in finding that Father was voluntarily

underemployed, a

nd conservative in dete rmining that his potential income was the same as Mother’s compensation as a pediatric ian. Indeed, Fa ther’s real estate, automobiles and ot her indicia o f wealth make his protestations of poverty ring hollow. The trial court was obviously skeptical of Father’s assertions that he wa s unable t o affor d to pay child supp ort:

. . . I f ind it awf ully difficult to think thatthese children deserve less money than the bank for two automobiles. . . . [J]ust to be honest with you, that strikes the court as a little unusual when you can afford $2,000 a month for automobiles for you and your staff, and ye

t you are c omplaining about $2,500 a month for three children. . . .
The trial court did not err in declining to permit Father to either choose employ ment that does not real izehis earning potential, or to allow him to direct his income toward real estate and automobiles inst ead of to the support of his children. The trial court’s determination of Fathe r’s child support obligation is affirmed.
Father next argues that th

e trial c ourt err

ed in assi gning

the part ies’ remaining t

ax debt to him, contending that the assignment of the tax liability is in contravention of the parties’ antenuptial agree ment. He asse

rts that he

has been require d to pay

most o f the $89,000 tax burden, and7 Section 3 6-3-501 of the Ten nessee Co de An notated p rovides: Notwithstanding any other provi sion of l aw to the contrary , ex cept as pr ovided in § 36- 3-502 [regarding credit ors’ right s], a ny ant enupti al or pre nupti al agr eement ent ered int o by spouses concerning property owned by eit her spouse before t

he marriag e which i s the subject of such agreement shal l be bi ndin g upon a ny cou rt h avin g jur isdi cti on over su ch spouses and/or s uch agreement if

such agre ement

is dete rmin ed, i n th e dis cretion of such cour t, to have been entere d into by such spouses freely , knowledgeably and in good faith and wit hout exertion of duress or un du e inf luence upon ei ther

spous e. The terms of

such agre ement

shal l be enforc eable by al l remedi es availab le for en force men t of con tract term s.
Te nn. Co de A nn. § 3 6-3-5 01 ( 200 1).

-7- maintains that the antenuptial agreement calls for equitable distribution of the tax debt. While the trial court has wide discretion in distributing maritalassets and debts, an antenuptial agreement may be utilized to

distribute marital property. See Perkinson v. Perkinson , 802 S.W.2d 600, 601 (Tenn. 1990); see also Tenn. Code Ann. § 36-3-501. 7 The antenuptial agreement executed by the parties states in p art that: If, in connection with any joint Fe deral Income Ta x Return heretofore or hereafter filed by the parties, ther e is a deficien cy

assessme

nt, the am

ount ultima

tely determinedto be due thereon shall be b orne by

the part y whose ded

uction, in come or misreporting resulted in the deficiency assessment. If such a dete rmination can not be reasonably

made, the par ties shall

bear the deficie ncy based up on the pro

rata Adjusted Gross Income of the pa rties for the tax year

in question.
The federal tax liability at issue in this case ac crued as a result of the parties’ 1996 joint tax return. The evidence showed that federal taxes on Mother’s income were

withheld by her employ

ers; thus indicating that the tax deficiency was for Father’s income. The evidenc e also showed that Mother had contributed over $11,000 into a joint acco unt to assist Father in pay ing the tax debt. Father testified th at he ma y h ave put on ly o ne or two

deposits in

to the ac count. Ca

ncelled checks in evidence indicate that Father wrote checks out of the account to the IRS in a total amount of approxima

tely $8,000. Thus, basedon the evidence at trial, the trial court’s allocation of the tax debt to Father is consiste

nt with the

provision s of the pre nuptial a greem ent and isequitabl e. This decision is affirmed.
Father next argues that th

e trial c ourt err

ed in “profou ndly

limiting visitation”with his children, by g

ranting him alternate-weekend parenting time and other parenting time, provided that he has a suitable place for the children to stay. He ar

gues that this is unacceptable, and indicates that it is contrary to the pa

rties’ antenuptial agreement. I n determining child cu sto dy, the best in terest of the child ren, ra ther tha n the par ents, is the court’s paramount concern. See Tenn. Code Ann. § 36-6-101(a)(2) (“. . .bu

t the cour t shall have the widest discretion to order a custody agreement

that is in the best in

terest of th e c hi ld

. . . . ”) . E ve n i f t he pr en up ti al ag re em en t m an da te d j oi nt cu st od y, which it do es not, thi s would not affect the trial court’s authority , indeed, obligation, to determine-8-

custody and parenting time in accordance with the best interests of the children. See Edwardson v. Edwardson , 798 S.W.2d 941, 946 (Ky. 1990) (holding that antenuptial agreements are inef fectual in determin

ing chil d custody

and visita tion issues , and stat

ing that , “[w]hile

it may go without say

ing

. . . [q]uestions of child support, child custody, and child visitation are not subject to [antenuptial agreements].”). In making child cus tody

decision s, “trial courts . . .take into account a number of factor s, including

the pare nts’ demeanor

and cre dibility

during t he divorc e proce edings t

hemselve s. Ac co rd in gl y, this Court isr eluctantto second -guessa trial c ourt’s decisions regarding child custody.” Nelson v. Nelson , 66 S.W.3d 896, 901 (Tenn . Ct. App. 2 001) ( quot ing Gaskill v. Gaskill , 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996) (internal quotation marks omitted)).
Here the evidence indicated that Father paid child support only when ordered to do so, and was held in contem

pt for fa iling to p ay

in a timely manner. He had le ft the ch ildren un attende d in a park and in his office, and did not have a residenc e suitable for the child ren to live

with him. Considering all of the evidence, and with appropriate def erenceto the trial court’s assessment of the parties’ demeanor and credibility , we cannot conclude that the trial court erred in awarding c ustody to Mother and in establishing the parameters on Fathe r’s parenting time.
Father also argues that the trial court erred in prohibiting him from making dero gato ry remarks about Mother, characterizing it as a “g ag order” in violation of his Fir st

Amendmen

t rights. We modify the trial court’s or der in this re gard, limiting it to remarks or comments about Mother to the children or in the presence of the children. This does not prevent Mother from obtaining any other relief a gainst Father, e

ither civ il or crim inal, for remarks made to others about Mother outside the presence of the children. Thus, the order is affirmed as modified.
Mother seeks her attorney ’s fee s forthis appe al. This r equest isgranted, and the case is remanded to the trial court for

a deter mination of

Mother’ s reason able atto

rney ’s feesfor this appeal.
The decision of the trial court is affirmed as modified, and the cause is remanded for furthe r procee dings consistent with this Opinion. Costs are taxed to ap pe ll an t, Ife at u E ke le m, an d h is su re ty, fo r w hi ch ex ec ut io n m ay i ss ue , i f n ec es sa ry.

___________________________________ HOLL Y KIRBY L

IL LARD, JUDGE