### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 2000 Session

RANDY L. CHAMBERS v. JON NITA M. CHAMBERS AMONETTE

Direct Appeal from the Circuit Court for Davidson County No. 92D-721 Muriel Robinson Rice, Judge

No. M1999-01254-COA-R3-CV - Filed September 22, 2000

At the time of the parties’ divorce in 1992, their

minor child was placed in the primary residential custody of the mother, and the father was ordered to pay child support in the amount of $300.00 per month. The mother

instituted a petition to modify. The father is in the military and, at the time of trial, hada base pay of $2,888.46 per month, which includedallowances for BAS, BAH, and BAQDIFF. The parties anticipated at the time of trial that the father wo uld be transferred to Korea for

one year of service, and then wou ld be tra nsferred to Eng

land. According

to the father, he

would continue to receive his BAQ-DIFF allowance, but, while in Korea, he would no longer receive BAS or BAH allowances. The mother sought an increase in the monthly support pay ments based upon

a significant va

ri ation with the Tennessee Child Support Guidelines and based upon reduced visitation by the father. According to the parties’ final divorce decree, t he fath er’s visitation schedule provided for

an average of sixty-nine day s of visitation throughout the year, as compared
to the anticipated eighty day s in the Guidelines. After a hearing on the matter, the trial court denied the petition and order

ed the mother to

pa y the father’s costs and attorney ’s fees. We reverse and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Reversed;

and Remanded

D AVID R. F ARMER , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P. J., W.S., and D ON A SH , S P

. J., joined.

Jacqueline B. Dixon, Nashville, Tennessee, for the appellant, Jonnita M. Chambers Amonette.

Louise R. Fontecch

io, Nashville, Ten

nessee, for the a

ppellee, Randy L.

Chambers.

OPINION

In June of 1992 the parties were granted an absolute divorce. The fina l divorce decree incorporated a marital dissolution agreement (MDA) which provided that the parties would have joint legal custody of their minor daughter, Schenley Brianne Chambers, with Jonnita Chambers Amonette (Ms. Amonette) having primary residential custody . The MDA provided that Randy1 The Guidelines provide for a

n average of

eighty da ys of visitation per year f or the no n-custod ial parent. See Tenn. Comp . R. & Regs. tit. 10, ch. 1240-2-4-.02(6) (1989).

2 BAS and BAH are compensation f or the cost

of off-base housing and m eals. BAS -DIFF a llowanc e is a child
suppor t supplem ent.

-2- Chambers’ (Mr. Chambers) visitation would consist of four weekends per year, f our days at Thanksgiving in

even numbered y

ears, two weeks

at Christmas in odd nu

mbered yea

rs, the full Easter break minus Easter weekend in even year s, and seven weeks during the summer - a total of approximately sixty-nine day s per year.

The divorce cour

t entered an orde

r requiring Cha

mbers to pay

$300.00 per month in

child support, which at the time of entry was consistent with the Child Support Guidelines. See Tenn. Comp. R. & Regs. tit

. 10, ch. 1240-2-4

-.03 (1989). I

n June of 1999, Ms. Amo nette filed her f

irst petition to modify, seeking an increase in child support based upon a significant var iance between the amount of support required by the Guidelines and the support curre ntly received and based upon less visitation by Mr. Chambers than the minimum visitation contemplated in the Guidelines. 1

The testimony at trial established that Mr. Chambers is in the military and, at the time of trial, was stationed in the Washington, D.C. area. His base pay, which included his BAS, BAH
, and BAQ-DI

FF military

allowances, 2 totaled $2,888.46 per month. Both parties anticipated at the time of trial tha

t Mr. Chambers woul

d be transferre

d to Korea in July

of 1999; would rema

in there for approximately one yea r; and, upon the conclusion of his service in Korea, it was anticipated that h

e would be transf

erred to Engla

nd. According t

o Mr. Chambers, he

would continue to receive a BAQ-DIFF allowanc e while stationed in Korea, yet he would no longer receive BAS or BAH allowances.

Mr. Chambers further testified that since the divorce, he has exercised both holiday and summer visitation. With regard to the four weekends of visitation provided for in the MDA, Mr. Chambers testifie

d that he is unable t

o exercise this visit

ation because Ms.

Amonette refuse

s to comply with the terms of the MDA to pay one-half of the cost of the child’s air fare.

After a hearing on the matter, the trial court denied the petition to modify and or dered Ms. Amonette to pay Mr. Chambers’ costs and attorney ’s fees. In August of 1999, the trial court modified the visitation schedule so that Mr. Chambers is entitled to exercise an average of seventy-seven days per

year rather than sixty-nine day s per year. Ms. Amonette filed a notice of appeal of the tri

al court’s judgm

ent, raising the

following issues,

as we perceive

them, for this court’s review:

1. Whether the trial c ourt erred in fa

iling to find that th

ere was a significant variance between the amount of support required by the-3- Tennessee Child Support Guidelines and the amount of support Mr. Cha mbe rs i s cu rren tly r equ ire d to pay.

2. Whether the trial c ourt erred in fa

iling to increas

e Mr. Chambers’ child support obligation based upon his failure to exercise the standard eighty

days of visit

ation assumed by

the Tennessee Ch

ild Support Guidelines

.

3. Whether the trial court abused its discretion in awarding Mr. Chambers his costs a

nd attorney ’s fees.

We conclude that the decision of the trial court must be reversed and remanded for further proceedings consistent with this opinion.

The proper standard for determining whether an existing child support order should be modified is promulg

ated in section 36-

5-101(a)(1) of

the Tennessee Co

de, which states:

In cases invo

lving child suppor

t, upon application

of either party

, the court shall decree an increase or decrease of such allowance when there is found to be a significant variance, as defined in the child support guidelines established by subsection (e), b

etween the guid

elines and the amo

unt of support curr

ently ordered unless the variance has resulted from a previously c ourt-ordered deviation from the guidelines and the circumstances which caused the deviation have not changed.

Tenn. Code Ann. § 36

-5-101(a)(1) (

Supp. 1999). A sign

ificant varianc

e has been defin

ed as a difference of at least fifteen percent between the Guideline amount and the cur rent support obligation. See Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.02(3) (1994) (“a significant variance shall be at least 15% if the current support is one hundred dollars ($100.00) or greate r per month”). The court is required to modify the award amount if a signif icant variance is found, unless the variance was the result of a previous court decision to deviate from the Guidelines and the circumstances surrounding the deviation have not changed. See id.

Where established orders are reviewed for modification, the obligor has the burden of proving his or her income. See Kirchner v. Pritc hett , No. 01-A

-01-9503 -JV-00092, 1995 WL 714279, at *3 (Tenn. Ct. App. Dec. 6, 1995) ( no perm. app. filed ); Tenn. Comp. R. & Re gs. tit. 10, ch. 1240-2-4-.03(3)(f) (1994). At trial, Mr. Chambers entered into evidence his leave and earnings statement, showing a base pay, as of Ma y 31, 1999, of $1,844.10, with an additional $257.46 for BAS, $636.00 for BAH, and $150.90 for BAQ-DIFF allowances, for a total salary of $2,888.46 per month. Mr. Chambers testified that the BAH and BAS allowances were compensation for the cost of off-base housing and meals and that the BAQ-DI FF allowance was a child support supplement. Mr. Chambers further testified that upon his transfer to Korea, he will not receive the BAH or BAS allowances.3 While this court’s decision is based upon t he circumst

ances exis

ting at the time of

trial , Mr. Chambers i s not necessarily precluded from seeking relief from the court if a significant change in his income should in fact occur.

-4- “Determining the amount of the non-custodial parent’s income is the most important element of proof in a proceeding to set child support.”Turner v. Turner , 919 S.W.2d 340, 344 (Tenn. Ct. App. 199

5); Kirchner , 1995 WL 714279, at * 2; S USAN F. P AIKIN E T AL ., Child Support , 2 Fam.L. & Pr

ac. (MB) § 33.11 [1][a] (1995). The Guid elines require th

at a modification be based on the existing support obligation and the non-custodial parent’s current income. See Turner , 919 S.W.2d at 344. At the time of trial , Mr. Chambers’ inc ome per month was $2,888.46. Although Mr. Chambers testified that his income would not include BAH or BAS allowances o

nce he moved to Ko

rea, his then current

income included th

ose allowances; thus, the BAH and

BAS allowances m

ust be considered

by this court

. 3 Furthermore, Rule 1240- 2-4-.03(3)(a) requires that “in kind” remuneration be imputed as income, which includes “the value of on-base lodging and meals in lieu of BAQ and BAS for a military member.” Tenn. Comp. R. & Regs. tit. 10, ch. 1230-2-4-.03(3)(a) (1994). In the recent ca se of Hayes v. Hayes
, No. W1999-00445-COA-R3-CV, 2000 WL 987331, at *3 (Tenn. Ct. App. July 12, 2000) ( no perm. app. filed ), this court noted that “[a]n individual that is in the military receives lodging and meals, or an allowance in lieu thereof, as part of his or her compensation.” According to Hayes
, then, the value of Mr. Chambers’ on-base lodging and meals while in Korea would have to be imputed as income if the trial had occurred after his transfer.

The current Guidelines presume that child support based on a monthly income of $2,888.46 would be

approximately

$474.00 for one c

hild per month. Curr

ently, Mr. Ch

ambers is paying $300.00 in child support per month. Based on this court’s calculations, a fifteen pe rcent variance would be $345.00 per month. Thus, it is apparent to this court that a significant variance exists be

tween the curre

nt support obligat

ion and the Guideli

ne amount.

This court hears these cases based on de novo review, and we “are empowered, when necessary, to grant the parties the relief to which the y are entitled under the applicable law and the facts of the case.” Turner , 919 S.W.2d at 345; see also Tenn. R. A pp. P. 13(b

), (d). We conclude that the present record contains sufficient evidence to determine that a significant variance exists between the amount of Mr. Chambers’ current support obligation and the amount of support required by the Guidelines based on Mr. Chambers’ current income.

The second issue on appeal is whether Mr. Chambers should be required to pay more child support due to

his failure to exer

cise the visitation

contemplated in th

e Guidelines. Rule 1240-2-4-.04(1) (b) states:

If the child(ren) is/are not staying overnight with the obligor for the average visitati on period o f every other week end from Fri day evening to S unday evening, two weeks during the summer and two weeks during holiday per iods throughout the year, t hen an amount shall

be added to the percentage calculated in the above rule to compensate the obligee for the cost of providing care for the child(re n) for4 Testimony at trial was that Mr. Chambers exercised an average of 69 da

ys of visi

tation pe r year. ( 80 - 69 = 11).

-5- the amount of time during the average visitation period that the child(ren) is/are not with the obligor.

Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.04(1)(b) (1997) (emphasis added).

At trial, Mr. Chambers testified that he exercised an average of sixty-nine day s per year of visitation with his minor daughter. Mr. Chambers further testified that he would exercise eight additional days of visitation with his daughter if his ex-wife would pay for one-half of the air fare expense for the child’s transportation as she was required to do under the MDA. Whatever the reasons may be that Mr. Chambers does not exercise his full eighty days of visitation, the fact remains that his child needs to be supported. See Dwight v. Dwight , 936 S.W.2d 945, 949 (Tenn. Ct. App. 1996). However Mr. Chambers has rec

ourse if Ms. Amone

tte fails to comply with the visitation arrangement established by the MDA and modified by the court below.

The Guidelines require this court to deviate upward where the non-custodial parent exercises less than average (80 days) visitation. See Tenn Comp. R. & Regs. tit. 10, ch. 1240-2- 4-.04(b) (1997) ; Nash v. Mulle , 846 S.W.2d 803, 805 (Tenn. 1993) (“[W]hen this level of visitation [80 days] does not occur, child support should be adjusted upward to provide for the additional support

required of the c

ustodial parent.”

). The rationale

for this requirem

ent is provided in Rule 1240-2-4-.04(5) which states, “[i]n deviating from the guidelines, primary consideration must be given to the best interest of the child(ren) for whose support the guidelines are being utilize

d.” Tenn. Comp. R. &

Regs. tit. 10, ch. 1 240-2-4-.04(5) (1997); see also Contreras v. Ward

, 831 S.W.2d 288, 289 (Tenn. Ct. App. 1991). Although this court recognizes that Mr. Chambers’ current visitation schedule does not significantly vary from that contemplated by

the Guidelines, the

fact remains tha

t Mr. Chambers doe

s not exercise eig

hty days of visitation, for whatever reason, and the Guidelines serve as a minimum basis for determining chi

ld support. Accor

dingly, we

conclude that the

amount of child supp

ort Ms. Amo net te r ecei ves mus t be inc reas ed b y an am oun t eq uiv ale nt t o el even days 4 to reflect the parties’ true sta

te of affairs.

In Casteel v. Casteel , No. 03A01-9703-CV-00073, 1997 WL 414401, at ** 1-3 (Tenn. Ct. App. July 24, 1997) (

perm. app. denied ), the custodial mother had the parties’ children for 234 days per year, a

nd the father exercised visitation 131 days of the ye ar. This court determined that the circumstances of the case justified a downward deviation from the Guidelines and established a formula for determining the deviation. We find the formula established in Casteel to be dispositive. Th

e formula as it app

lies to this case is a

s follows:

(1) Determine the an

nual amount of supp

ort under the Guid

elines:
$474.00 per month x 12 months = $5,688.00 per year; $15.58 per day.-6-

(2) Determine what proportion of that annual amount is attributable to the decreased visitation, any

amount under 80 da

ys per y ear being cons

idered insuffic

ient:

80 - 69 days = 11 day

s insufficient 11 days at $15.58 pe

r day = $171.38 per y

ear; $14.28 per month.

(3) Increase the Guideline amount by the amount attributable to decreased visitation:

$474.00 + $14.28 = $488.28

Ms. Amonette requ

ests that this court

apply the mod

ified child suppor

t retroactively

to the date of the filing of the petition to modify. In Gotten v. Gotten , this court held:

The appellate court acts only upon the record in the case in the trial c ourt and when the appellate court enters an order modifying the trial court order it is doing what should have been done in the first instance. The modification of the trial court order should be effective as of the date of the trial court order. Therefore, we hold that a judgment of the appellate court reversing or modifying the trial court judgment providing f or periodic payments o

f alimony or child support is effective as of the date of the trial court judgment . . . .

Gotten v. Gotten , 748 S.W.2d 430, 431 (T enn. Ct. App. 1987)

(emphasis added) . Thus, we hold that the modification in child support should be effective as of August 25, 1999.

The last issue on appeal regards attorney’s fee s. Ms. Amonette alleged in her brief that there is no authority under Tennessee law for the order of the trial court awarding Mr. Chambers attorney’ s fees in the amoun t of $750.00 and costs in the amount of $ 185.00. We disagr ee with this argument. Se

ction 36-5-103(c

) of the Tennesse

e Code states:

The plaintiff spouse may recover from the defendant spouse, a nd the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to a ny suit or action concerning the adjudication of the custody or the chang e of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or

proceeding is p

ending, in the dis

cretion of such c

ourt.

Tenn. Code Ann. § 36

-5-103(c) (Supp . 1999); see also Archer v. Archer , 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995) (“The decision to award attorney’s fee s rests within the discretion of the trial court.”). Section 36-5-103(c) of the Tennessee Code is authority for the trial court to award attorney’s fees in child support modification cases. Additionally , the Tennessee Supreme Court held in Deas v. Deas , 774 S.W.2d 167, 169 (T enn.1989), that a

party’s pr

ayer for g eneral relief i

s ordinarily sufficient to authorize an award of attorney ’s fees under section 36-5-103(c) of the-7-

Tennessee Code. See also Gaddy v. Gaddy , 861 S.W.2d 236, 241 (Tenn. Ct. App. 1992) (a showi ng of i nabil ity to p ay atto rney’s f ees is not a p rereq uisi te for award ing at torne y’s fees ). In the instant case,

both parties pray

ed for attorney

’s fees in their r

espective plead

ings. These prayers for relief were enoug h to support the trial court’s award of attorney’s fees, and thus, we conclude that the trial court did not abuse its discretion. The trial court did, however, award attorney’s fees to Mr. Chambers “[b]ecause the Court [found] that the Petition [to modify filed by Ms. Amonette was] frivolous” in that Ms. Amonette “failed to present any proof that there [had] been any change of circumstances sufficient to modify the Final Decree.” Our review of the issue of attorn

ey’s fees is de novo , and the decision of whether to awa

rd attorney ’s fees in this case is in our discretion. See Archer , 907 S.W.2d at 419.

According to se

ction 36-5-101(a

)(1) of the Tenn

essee Code, the tr

ial court mustmodify child support payments if a significant variance is found between the a mount suggested in the Guidelines and the amount of support currently ordered. Tenn. Code Ann. § 36-5-101(a )(1) (Supp. 1999). Fur

thermore, the ru

les require that the trial court order a deviation from the Guidelines amount i

f the non-custodia

l spouse exercises

more or less visita

tion than the eigh

ty days contemplated by the Guidelines. See Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4- .04(1)(b) (1997). Based on the e vidence presen

ted, we believe t

hat there were

justiciable questions raised r

egarding whe

ther a signific

ant variance exis

ted between the a

mount of child support Ms. Amonette received and the amount contemplated by the Guidelines and whether Mr

. Chambers exercise

d less visitation tha

n that contemplate

d by the Guide

lines. Based on th

is finding, we conclude that the petition to modify filed by Ms. Amone tte was not frivolous, and thus we reverse

the trial court’s

awarding of at

torney’s f ees to Mr. Chamber

s.
Based on the foregoing, we reverse the trial court’s dismissal of Ms. Amonette’s petition to modify and

its award of attor

ney’s fee s to Mr. Chambers. O

n remand, the tria

l court is instructed to ente

r an order incre

asing the child su

pport payme

nts to be paid by

Mr. Chambers to Ms. Amonette to $488.28 per month, effective retroactively to August 25, 1999. Having reviewed the statement of evidence, we find no evidence to support a deviation from the Guidelines. The costs of this appeal are taxed to Mr. Chambers and his surety, for which

exe cut ion may i ssu e ifnece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE