### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
JANICE AMARI ANDERTON v. DOMINIC JUDE AMARI
Direct Appeal from the Circuit Court for Davidson County No. 85D-3267 Muriel Robinson, Judge

No. M1999-01145-COA-R3-CV - Decided June 27, 2000

This is a dispute betwee

n Plain tif f Janice Amari Anderton and Defendant Dominic Jude Amari regarding the custody of the parties’ minor child and the amountof Mr. Amari’s child support obligation. The trial court (1) denied Mr. Amari’ s request to tra nsf er t he ca se t o Wi lli ams on C oun ty, (2) increased the amount of Mr. Amari’s monthly child support obligation, (3) denied Mr. Amari’s counter-petition for a

change of custody, and (4) denied Mrs. Anderton’s motion for discretionary
co sts. For the reasons set forth below, we modify the ruling of the trial c ourt to reflect

that Mr

. Amar i shall re imburse Mrs. Anderton for the entire cost of maintaining health insurance for the parties’ minor child. In all other respects, however, we affirm the ruling of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgmen t of the Circuit C

ourt Affirmed as

modified; and Remanded

F ARMER , J., delivered the opinion of the cour t, in whi ch C RAWFORD , P.J., W.S., and H IGHERS , J., joined.
Clark Lee Shaw, N

ashville, Tennes see, for the app ellant, Dominic Jud

e Amari. Floyd Nolton Price, Nashville, Tennessee, for the appellee, Janice Amari Anderton.

OPINION

The parties were divorced by the Circuit Court of Davidson County in May of 1987, at which time their minor son Vincent, born June 9, 1985, was placed in the custody of Mrs. Anderton. Mr. Amar i was subse quently gr anted visitation wi

th Vincent and ord

ered to pay

child support to Mrs

. Anderton in the amount of $400.00 per month. In June of 1997, Mrs. Anderton filed a petition seekingan increase in Mr. Amari’s child support obligation. In December of 1997, Mr. Amari filed
ananswer to Mrs. Anderton’s petition and a counter-p etition s eeking a change of custody. At the conclusionof

a hearing on December

9, 1998, th e trial cour t denied Mr . Amari’s re quest for a c hange of custody and took the matter of child support under advisemen t. O n December 11, 1 998, Mrs. Anderton filed a motion askin

g the court to ass

ess di scretionary costs against Mr. Amari in the amount of $ 1,192.00 and requesting that a trial date be set for the hearing of the remainder of th e

### -2-

parties ’ proof w ith respect to the issue of child support. The trial court subsequently denied the motion for

discretionary

costs but set a hea

ring date for th

e remainder of t

he proof relativ

e to Mrs. Anderton’s petition for an increase in chi ld su pport. On January 14, 1999, Mr. Amari filed a “request for transfer”

asking th e trial court to transfer the case to the Circuit Court of Williamson Cou nty. This transfer request was accompanied by an af fidavit executed

by Mr . Am ari ’s a tto rney, which stated that n

either of the par

ties continue to re

side in Davidson Cou

nty and that the parties’ minor child has resided in Williamson County for at least six months. After a hearing on February 12, 1999 , the trial cou rt d eni ed M r. A mar i’s requ est to t rans fer t he ca use to W ill iam son Cou nty. Finally , on April 28, 1999, the trial court entered an order increasing Mr. Amari’s child support obligation

from $400.00 per month to $419.00 per month and providing that Mr. Amari shall pay to Mrs. Anderton $24. 25 per month as rei mbursement for on

e-half of the expe

nse of the health insurance that Mrs. Anderton maintains for the parties’ child. This appeal by Mr. Amari followed.

The issues raised

by the parti

es on appeal, as w

e perceive them

, are as follows:

I. Did

the trial court err in refusing to transfer the case to W ill iam son Cou nty?

II. Did

the trial court err in refusing to allow counsel for Mr. Amari to question Vincent
r egarding matters not specifically set forth in Mr. Amari’s counter-petition for a chan ge of cus tod y?

III. Did

the trial court err in denying Mr. Amari’s counter-petition for a change of
cus tod y?

IV. Did

the trial court err in setting the amount of child support to

be paid by Mr. Amari to Mrs. Anderton?

V. Did

the trial court err in d enying Mrs. Anderton’s motion for discretionary

costs?

VI. Is Mrs. Anderton entitled to receivea judgment agai

nst Mr. Amari in the amount of the a

ttorney’s f

ees that she has in

curred on appea

l?

To the extent that these issues involve questions of fact, our revie

w of the trial cour

t’s ruling is de
novo with a presumption of correctness and thus we may not reverse the court’s factual findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v. Randolph , 937 S.W.2d 815, 819 (Tenn. 1996); T.R.A.P. 13(d). With respect to the

court’s legal co

nclusions, however, our review is de novo with no presumption of correctness. See, e.g., Bell ex rel. Snyder
v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P .A. , 986 S.W.2d 550, 554 ( Tenn. 1999); T.R.A.P. 13(d).

Mr. Amari’s Transfer Re quest

### -3-

Subsequent

to the hearing of proof regarding Mrs. Anderton’s petition fo r an increase in chil

d support but prior to the trial court’s ruling on the matter, Mr. Amari filed a petition asking the court to transfer the case to Williamson County. The trial court commented that this petition was an act of “judge shopping” on the part of Mr. Amari and c onsequen tly denied Mr. Amari’s request for a transfer.

The transfer of cases involving issues of child support and/or child custody is governed by sections 36-5-3001 through 36-5-3008 of the Tennessee Code Annotated. See Tenn. Code Ann. § 36-5-3001 to -3008 (Supp. 1999 ). Sec tion 36-5-3003 authorizes the transfer of such cases as follows: (a) Except as provided in § 36-5-3001(b), a case which includes child support or custody p

rovisions may

be transferre

d between countie

s in this state

withoutthe need for any ad

ditio nal fi ling by the party seeking transfer, and without service of process u pon th e non-requesting party, by the filing of a request by the requesting party as set forth herein.
(b) The case may be transf erred by the issuing

court to a competent court of the county where the child or children reside if each of the following apply: (1) Neither the child or c hi ldren , custodial parent/obligee, nor the noncustodial parent/obli

gor currently reside

in the issuing county; and (2) The child or children who are subject to the su pport or custody order currently reside in the county to which the case is to be transferred and have resided there for a

t least six (6) months. (c) A case may

also be transferred f

or modification of

support or custody

to any court of co mpetent jurisdiction in the county in which the non-custodial parent/obligor

resides in this state with no six-month residency period if both the child or childre n subject to the support or custody order and the custodial parent/obligee reside outside this state and the custodial parent/obligee does not object after the pr ovisi on of n otice pursu ant to § 36-5 -3004 . If objectionis made, or if the requesting p

arty does no

t seek immediate tr

ansfer without the

six (6) month residency period, the requ esting party may obtain transfer f or modification of the order by demonstrating that the custodial parent/obligee and t he child or children have resided outside th

is state for at least six (6) months. A transfer pursuant to this subsectionshall be initiated by written request of the re

questing party

or department pursuant to the pro

visions of this part. (d) If the case has

been transferr

ed pursuant to this

part, the fact that one of the p arties or t he child returns to the transferor county does not, by that fact alone, confer jurisdiction upon the previous transferor court. A transfer t o t he original issuing court re

quires complianc

e with the proced

ures of this part.1 Mr. Amari testified at trial that heresides in both Williamson County and in Colorado but that his legal residence is in Colorado. Additionally, at the hearing on Mr. Amari’s transfer petition, counsel for Mrs. Anderton conceded that Mrs. Anderton and Vincent reside in Williamson County and that Mr. Amari is a resident of Colorado.


### -4-

(e)(1) "Custodial paren

t" for purposes o

f this part m

e ans the person wit

h whomthe child resides

a majority of

the time in a situation where there is an order of joint custody or where there exist parenting plans pursuant to chapter 6, part 4 of thi s ti tle whi ch ad dres s is sue s of cus tod y. (2) "Custodi al parent" for pur poses of this part a

lso includes, in add

ition to
a biological or legal parent having legal custody of child, an individual to whom legal custody of the child or children has been given by a court of competent jurisdiction.

Tenn. Code Ann. § 36-5-3003 (Supp. 1 999)(emphasis ad ded). It is undisputed in the case at bar that neith er Vin cent , Mr s. A nde rto n, n or M r. A mar i cu rren tly r esi des in D avi dso n Co unt y. 1 Additionally , there is no dispute that, at the time of the filing of Mr. Amari’s petition requesting a transfer, Vincent resided in Williamson County and had resided in Williamson County

for at least six month

s. Thus, uponthe reques t o f either of the pa rties, the trial c

ourt was authorize

d to transfer the

case to Williamso n C ounty. See Tenn. Code Ann. § 36-5-3003(b) (Supp. 1999). Mr. Amari argues on appeal that, under the circumstances of the case at bar, the trial court had no other choice under section36-5-3003(b) but

to grant his request for a transfer. Mrs. Anderton contends, however, that section 36-5-3003 confers upon thetrial court the dis cretion to retain its jurisdiction in the case at bar, even though the requirements of section 36-5-3003(b) have been satisfied. We agree with the position advocated by Mrs. Anderton. Section 36-5-3003 provides that
a case involving issues of child support and /or chi ld c ust ody “ may be transferred between counties,”

“ may be transferred by the issuing court,” and “ may also be transferred for modification of support
or custody.” Tenn. Code Ann. § 36-5-3003 (Supp. 199 9)(empha sis added). The use of the word “ma y” rather than the word “shall” suggests that the trial court is not directed to grant the request for
a transfer but, rather, has the discretion to e xamine the facts wi

thwhich it is presented and determine whether the request for a transfer should be granted. In the ca se at bar, the trial court had already heard a significant portion of

the parties’ pro

of relative to Mrs

. Anderton’s petiti on for an increa

se in child support at the time that Mr. Amari filed his petition asking the court to transfer the matter to Williamson County. Thus, if the trial court

had transferre

d the case to Williamson County prior to the resolutionof Mrs. Anderton’s petition, this proof would have had to be reheard, causing the parties to incur additional costs and attorney’s fees and

resulting in a waste of judicial resources. On appeal, counsel for Mr. Amari ca ndidly admit s that, in a sking for a t ransfer, he w as, in fact, “judge shopping” and that th e allowance o f the practi ce of “judge shopping” is an ancillary result not intended by section 36-5-3003. Section 36-5-3001 states that the statutes governing the transfer of
cases involving child sup port and/or child c

ustody shall b

e liberally

construed to eff

ectuate their purpose, which is “to provide procedures for the intercounty

enforcement an

d modification of c

hild support and child custody cases.” Tenn. Code Ann. § 36-5-3001(a) (Supp. 1999). The purpose of

### -5-

section36-5-3003 is

not to allow for the

transfer of a c

ase simply

because, after the presentation of a portion of the parties’ proof, oneof the parties anticipates that t he trial judge is

not going to rule inhis or her favor. Accordingly, under the circumstan ces of the case at bar, we conclude that the trial court did not abuse its dis cretion in denying Mr . Amari’s reques

t to transfer the c

ase to Williamson County during the pendency of Mrs. Anderton’s petition for an increase in chil

d support. Child Custody Duringthe presentation of the parties’ proof relative to Mr. Amari’s counter-petition for a change of custody, the trial court refused to allow counsel for Mr. Amari to ask questions regarding
anincident involving

the alleged ab

use of Vincent’s

dog by Mrs.

Anderton’s husband. Despite the court’s ruling, Mr. Anderton’s ex-wife subsequently testified, without objection, that Mr. Anderton had kicked her daughter’s (and Vince nt’s) dog down the back stairwell. Additionally, Mr. Anderton’s daughter testif ied, again without objection, that her father had abused their dog Midnight infront of her and Vincent. Specifically, she recalled one incident in which Mr. Anderton was angry because Midnight had chewed on a ball that had blown off of th e porch and consequently took Midnight’s head and

punched it agai

nst the concrete . Thus, because there is testimony in the record regarding Mr. Anderton’s alleged abuse of Vincent’s dog, we conclude that thetrial court’s initial exclusion of this evidence could not have prejudiced Mr. Amari and that any error with respect to the court’s rulin

g on this matter was harmless. See Hulsey v. Bush , 839 S.W.2d 411, 413 (Tenn. Ct. App. 1992); Keith v. Murfreesboro Livestock Market, Inc. , 780 S .W.2d 751, 757 (Tenn . Ct. App. 1989); T.R.A.P. 36(b); T.R.E. 103(a). The court also refused to allow counsel for Mr. Amari to question Vincent r

egarding a li

st that he had prep

ared prior to tria

l. Counsel for Mr. Amari failed, however, to make an offer of proof with resp

ect to this list. Thus, because the content of the list and the testimony that Vincent was expected to give regar

ding the list

were not properly preserved in the record, we are unable to review the trial court’s exclusion of this evidence on ap peal. See

, e.g., Rutherford v. Rutherf

ord , 971 S.W.2d 955, 956 (Tenn. Ct. App. 1997); T.R.E. 103(a)(2).

Mr. Amari also conten

ds that the trial co

urt erred in conc

luding that Vince

nt should remain inthe custody of Mrs. Anderton and in consequently denying his counter-petition for a change of
cus tod y. When considering a non-custodial parent’s request for a change of custody, the court must first determine whether there has been a material change

in circumstance

s arising subseque

nt to the initial decree awarding custod y suc h that the welfare of the child demands a redetermination of custody. See, e.g., Massengale v. Massengale , 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995)(citing Dailey v. Dailey , 635 S.W.2d 391, 393 (Tenn. Ct. App. 1981)). If there has been a material change in circumstances, the court must then determine whether a change of custod

y is in the best inter

ests of the child. See, e.g., Varley v. Varley , 934 S.W.2d 659, 6 65 -66 (Tenn. Ct. App. 1996)(quoting Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993)); Tenn. Code Ann. § 36-6-106 (Supp. 1999). When determining wh at is in the child’s best interest, the court will consider all relevant factors, includi

ng as follows: (1) The love, affection and emotional ties existing between the parents and child;

### -6- (2) The disposition of the parents to provide the child with food, clothing, medical care, education

and other necessary care and the degree to which a parent has been the primary caregiver; (3) The importance of continuity in the child's lifeand the length of time the child has lived in a stable, satisfactory environment; . . . (4) The stability o

f the family unit of

the parents; (5) The mental an

d physical health o

f the parents; (6) The home, school and community record of the child; (7) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of o lder children should normally be given greater weight than those of younger children; (8) Evidence of physical or emotional abuse to the child, to the other

parent
or to any other person; provided, that where there are allegations that one (1) parent has committed child abuse, [as defined in § 39-15-401 or § 39-15-402], or chil d sexual abuse, [as defined in § 37-1-602], against a family member, the courtshall consider all evidence re

levant to the physic

al and emotional sa

fetyof the child, and determine, by a clear preponderance of the evidence, whethe r such abu se has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected thereto. In add ition, the court shall, where appropriate, re

fer any issues of

abuse to the juven

ile court for fur

ther proceeding

s; (9) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child; and (10) Each parent's past and potential for future pe rformance of parenting responsibilities,

including t he w illingness and abili ty of each of the p

arents to facilitate andencourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.

Tenn. Code Ann. § 36-6-1 06 (Supp. 1999); See also Gaskill v. G askill , 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996)(provi

ding further exa

mp les of fa ctors that may be r elevant when mak

ing a child custody determination).

Mrs. Anderton conce

des on appeal tha

t the testimony at trial established that Vincent has experienced

some conflict wit h her husband and that this conflict is

a material chan

ge in circumstances warranti

ng a redet ermination of custody. Thus, we now consider whether the evidencepreponderates against the trial court’s finding that it is in Vi ncent’s best inte

rest toremain in the custody of Mrs. Anderton. There is no dispute that there is love and affection between Vincent and both Mr. Amari and Mrs. Anderton. Similarly, we have no doubt that V incent would be provided with food, clothing, medical care, education, and other basic necessities if in the custody of either of the parties. For the majority of Vincent’s life, Mrs. Anderton has served as Vincent’s primary caregiver and has provided a safe, stable, and satisfactory living environment for Vincent. It is notable, however, that if Vincent was removed from Mrs. Anderton’s custody and placed in the cust ody of Mr. Amari, he would continue to attend the same school, as the parties maintain2 Although Mr. Amari is a legal resident of Colorado, he testified that he lives primarily in Tennessee at his residence in Williamson County.


### -7- residences in the same school d istrict. 2 Both of th e parties have remarried and, with their new spouses, have formed stable family units. Neither of the parties appears to have any men tal or physical health problems that would effect his or her ability to care for Vinc ent. Vincent is an averageto above average

student, exhibits good behavior at school, and is active in theschool band. At trial, Vincent testified that his preference is to live with Mr. Amari. When asked why he desired to live with Mr. Amari, Vincent stated that he does not like living with Mrs.

Anderton because he is afra id of Mrs. Anderto n and his step-fat

her. Specifical

ly, Vincent testif

ied that when Mrs. Anderton gets angry, she yells, stomps around, and throws things at him. Vincent also recalled an incident in which his

step-father punched him twice in the chest, an incident in which his step-father stomped on his foot, an incid ent in which his

step-father slapped him on theleg, and an incide nt in which his step-father jerked his head back . Finally, Vincent te stified that, when

he was little, his step-father

used to disc ipline him by smacking him in the head. There is much testimony in the record regarding the ch

aracter and be

havior of Mrs. And

erton’s husband a

nd the conflicts

that have occurred between Vincent and his step-father. Specifically, we are tro ubled by the allegations concerning abusive behavior on the part of Mrs.

Anderton’s husband toward Vincent and his dog. Additionally, there is testimony in the record suggesting that Mrs. Andert on an d her husband routinely use racial epithets in the presence of Vincent which, if t rue, certainly would not reflect favorably on their charac

ter. Finally, ther

e is nothing in the re

cord to suggest th

at eith er of the parties is incapable of performing his or her parenting responsibilities. Additionally, we recognize that there is a long history of conflict between the parties and that, on isolated occas ion s, Mrs. Anderton has allegedly prevented Vincent from calling Mr. Amari on the telephone. However, we think that both of the parties understand the importance of

Vincent maintaini

ng a close relati

onship with both of his parents and are willing to facilitate and encourage such a relationship.

When reviewing the court’s ruling on Mr. Amari’s counter-petition for a change of custody,
we are mindful that trial courts are afforded a g reat deal of di scretion in case s involving child custody. See, e.g., Gaskill , 936 S.W.2d at 631. Such cases often hinge on witness credibility and, because trial courts have

an opportunity

to observe witnesses and their demeanor, they are in a better position than appellate courts to evaluate credibility. See Gaskill , 936 S.W.2d at 631; Scarbrough
v. Scarbrough , 752 S.W.2 d 94, 96 (Tenn. Ct. App. 1988). In the case at bar, many of the accusations that cause this Court concern, such as the existenc e of abuse and the use of racial epithets , were denied by Mrs. Anderton. Additionally, we note that the trial court’s order specifically

prohibits Mrs. Anderton’s husband from using corporal pun ishment as a means of disciplining Vincent. Given this safeguard, as well as the proof as a whole, we cannot say that the evidencepreponderates against the trial court’s finding the it is in t he best interests of Vinc

ent to remain in the custody of Mrs. Anderton. We therefore affirm the trial court’s denial of Mr. Amari’s counter-petition for a change of custody. Child Support

### -8-

After a hearing on Mrs. Anderton’s petition requesting an increase in child support, the trial court set Mr. Amari’s child support at $41 9.00 per month and f urther ordered

Mr. Amari to pay

Mrs. Anderton $24.25 per month as

reimbursement fo

r one-half of the

cost of the health

insurance that Mrs. Anderton maintains for Vincent. Mrs. Anderton argues on appeal that Mr. Amari is voluntarily underemployed, that the

trial court should have increased his child support obligation based on an imputed income of

$50,000.00 per year, and that Mr. Amari should have been r

equired to reimbu

rse he rf or the entire cost of maintaining health insurance for Vincent rather than for only one-half of this cost.

The Tennessee Child Support Guide lines provi de that, “[i]f an obligor is willfully and volunta rily unem ployed or underemployed, child support shall be calculated based on a determin ation of potential income, as evidenced by educational level and/or previous work experienc e.” Tenn. Comp. R. & Regs. ch. 1240-2-4-.03 (3)(d) (1994). Mr. Amari is a licensed geo logist and a licensed pilot. Although he is self employed, Mr. Amari works as a consultant through a business known as Environmental Associates. Mr. Amari admitted at trial that his wife pays a large portion of

their family’s bills. In support of h er position that Mr.

Amari iscapable of earning $50,000.00 per year, Mrs. Anderton suggests on appea l that Mr. Amari works only tw enty to twenty-three hours per week and that he has chosen to lim

it his hours in

order to assist in caring for the three children that live in his home. Ther e is no eviden ce in the record, however, that supportsthis alleg

ation. Wh

ile it is possible that testimony was heard regarding this issue during
a March 4, 1999 hearing on Mrs. Ander ton’s pet ition requesting an increase in child support, no transcript of this hearing has been

included in the record on appeal. In ruling on Mrs. Anderton’s petition for an increase in child support, the trial court found that Mrs. Anderton d id not meet her burden of proving that Mr. Amari was underemployed. We ca nnot say that the evidence preponderat es against t his findi ng.
Whendetermining the amount of a non-custodial parent’s child support obligation, trial courtsmust apply asa rebuttable pre sumption the amounts

set forth in the Tennessee Child Support G uidelines. See Tenn. Code Ann. § 36-5-101(e)(1) (Supp. 1999). Trial courts have limited discretion to deviate from these guidelines, however, in certain situations. See Jones v. Jones , 930 S.W.2d 541, 544 (Tenn. 1996); Nash v. Mulle , 846 S.W.2d 803, 805 (Tenn. 199 3); Bowers v. Bowers , 956 S.W.2d 496, 499 (Tenn. Ct. App. 1997). For exam ple, Rule 1240-2-4-.04 of the guidelines prov

ides in pertinent p

art as follows: (1) Since these percentage amounts are minimums, the court shall increase the award calculated in Rule

1240-2-4-.03 for

the following re

asons: (a) If the obligor is not providing health insurance for th e chil d(ren), an amount equal to the amount necessary for the obligee to obtain such insur ance shall be adde d to the percentage calculated in the above rule.

### -9-

Tenn. Comp. R. & Regs. ch. 1240-2- 4-.04 (1)(a) (1997). Under this rule, the obligation to either provide or

pay for the child’s health insurance is clearly placed on the non-custodial parent. In the
case at b ar, Mrs. Anderton maintains health insurance for Vincent. The trial court ordered Mr. Amari to reimburse Mrs. A nderto n for only on e-half of the cost of this insurance, or $24.25 per month. Because weconclude that the cost of Vincent’s health insurance is solely the obligation of Mr. Amari, we modify the trial court’s ruling to reflect that Mr. Amari shall pa

y $48.50 per month to Mrs. Anderton as reimbursement for the cost of maintaining health insurance for Vincent. Discretionary Costs

Mrs. Anderton also

contends that she incurred $1,192.00 for the taking of depositions as a result of Mr. Amari’s fa

ilure to provide he

r with proof of his i

ncome and that the

trial court should have awarded

her this amoun t as discretionary costs. Rule 54.04 of the Te nnessee Rules of Ci

vil Procedure, which authorizes thetrial court to awa rd discretionar

y costs, provides in

pertinent part as follows:
(2) Costs not included in t he bill of costs pre

pared by the cle

rk are allowable only in the court’s discretion. Discretionary costs allowabl e are: reasonable and necessary court reporter expenses for depositions or tria

ls, reasonable

and necessary expert witness fees for d epositions or trials, and guardian ad litem fees; travel expenses are not allowable discretionary costs.

T.R.C.P. 15.04(2). Trial courts are afforded a great deal of discretion when considering whet

her to award costs. Accordingly, absent a clear abuse of discretion, appellate courts generally will not alter
a trial court’s ruling with respect to costs. See, e.g., Perdue v. Green Branch Mining Co. , 837 S.W.2d 56, 60 (Tenn. 1992)(citing Lewis v. Bowers , 392 S.W.2d 819, 823 (Tenn. 1965); Mitchell
v. Smith , 779 S.W.2d 384, 392 (Tenn. Ct. App. 1989)). Under the circumstances of the case at bar,
we do not think that the trial court abuse d its discretion in

failing to award costs to Mrs. Anderton. Accordingly, the court’s denial of Mrs. Anderton’s motion for discretionary costs is affirmed. Attorney’s Fees

Fin all y, Mrs. Anderton requests that she be awarded a judgment equal to the amount

of the attorney’s fees that she has

incurred on appe

al. In our dis

cretion , we conclude tha t this request should be denied.

Conclusion Based on the foregoing, the trial court’s ruling on Mrs. Anderton’s petiti

on for an increa

se inchild support is modified to reflect that Mr. Amari shall pay to Mrs. Anderton $48.50 per month
as rei mbu rse men t fo r th e cos ts i ncu rred by M rs. Andert on in maintaining health insurance for

### -10-

Vincent. In all other r

espects, howeve

r, the ruling of t

h e trial court is

affirmed. The c

osts of this app eal are a sse sse d to Mr. Ama ri, for whi ch ex ecut ion may i ssu e if nece ssa ry.