### FILED February 1, 1999 Cecil Crowson, Jr. Appe llate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

PAULA LYNN BARNETT, ) ) Plaintiff/Appellee, ) Hamilton Chancery No. 63302 ) v. ) ) Appeal No. 03A01-9709-CH-00414 ROBERT McALISTER BARN ETT, III, )

) Defendant/Appe

llant. )

APPEAL FROM THE CHANCERY COURT OF HAMILTON COUNTY

AT CHATTANOOGA, TENNESSEE THE HONORABLE L. MARIE WILLIAMS, JUDGE

For the Plaintiff/Appellant : For the Defendant/Appellee : David Haines Rotroff Sandra J. Bott Chattanooga, Tennessee Chattanooga, Tennessee

AFFIRMED IN PART,

REVERSED IN PART, MODIFIED A ND REMANDED

HOLLY KIRBY LILL

ARD, J.

CONCURS: ALAN E. HIGHERS, J

. DAVID R. FARMER, J.OPINION

This is a post-divorce action to m odify child support and alimony. The mo

ther sought to increase child support, and the father sought to terminate

periodic alimony payments. The trial court grantedthe mother’s req

uest for an incre

ase in child

support, with a portion of the child support to be placed in an educational trust, and denied the father’s pe

tition for modifica

tion of alimony. Both parties appealed. We affirm in part, reverse in part, and modify. Robert McAlister Barnett (“Father”) and Paula Lynn Barnett (“Mot h er”) were mar

ried in 1972. Mother was employ ed during the firs

t ten years of the

ir marriage, whi

le Fath er pursued a medical education. Father became a gen eral surgeon and Mother did not work outside

the home after the parties’ children were born. The parties were divorced in 1986. At the time of the divorce, the parties’ son Joshua was three years old and their daughter Katie was an infant. The final decree of divorce requ ired Fathe r to pay $500 per w eek as child suppo

rt and $300 per we

ek in periodic alimony. Father remarrie d shortly after the divorce from

Mother, and has children from his second marriage. In 1996, Mother filed a petition to increase the awards of child support and alimony. Father responded

by seeking increased visitationwiththe children and a reduction in child

support, as well as reduction or termination of the periodic alimony. At trial, the proof

indicated that Moth

er’s income is ap

proximately

$28,000 per year. The parties’ daughter Katie was enrolled in a public school. Their son Joshua is a gifted student and is enrolledat McCallie School i n Chatta noog a. The annual tuit

ion at McCallie is ap

proximately $10,500. Father’s income

as a general sur

geon is in excess of $200,000 per year. In addition, evidence indicatedthat

Father’s current

wife, employed a

s a technician in Fa

ther’s medical pr

actice, was pai

d approximately $30

,000 per year mor

e than other simila

rly-situated tec

hnicians. After the parties’ son was accepted at McCallie School in 1995, Father declined to pay the $10,500 annual tuition. The evidence indicated that Mother borrowed the funds for the tuition. The majority of the trial was held before Judge Howard Peoples. However, toward the latter part of the proceedings, JudgePeoples recused himself. The case

was transferre

d to Judge L. Marie Williams, who reviewed the transcript of the evidence hea rd by Judge Peoples, heard additional evidence, and conducted an in-chambers meeting with the parties’ minor children. Judge Williams found that the evidence indi cated that the parties’ children were treated2

differently

from Father’s children with his current wife, and that this differing treatment distressed the children. The trial judge noted her belief that the di fferent treatment was unintentional and ordered additional counseling. She denied Father’s petition for increased visitation but modified the existing visitation arrangement by ordering Mother to acquiesce in the childre n’s reasonable requ ests for additional visitation with Father. The trial court found Father’s annual income for child support purposes to be $209,206. Based on this income, child support was set at $3,700 per month. The trial court ordered that $3,000 per month would be paid to Mother, with the remaining $700 per month t o be paid into an educational trust for the benefit of the parties’ daughter Katie. The trial court stated: In setti ng the child support at this amount, the Court finds the tuition of Josh a t McCallie School is an extraordinar

y educational ex

pense to be paid by Paula Ba

rnett outof the monthly child support received by Paula Barnett. . . . Should Josh Barnett cease attending McCallie

School or an educa

tional institution for

which tuition is charged, the monthly support will be reduced to $2,000.00 and a payment of $850.00 for each child w

ill be made into an e

ducational trust b

y Dr. Barnett. The trial court denie

d both parties’ pe

titio ns for modi fication of alimony. Mother was awarded $15,000 in attorney’s fees and other costs of litigation. Bothparties appeal. Father argues on appeal that the trial court erred in no

t permitting him to present evidence re gardin g the initial award of alimony, asserting that this prevented him from establishing a change of circumstances to support a reduction or termination of the award of per

iodic alimony. He contends that t he trial court e

rred in de nying his petition to reduce or terminate the periodic alimony,

and in awarding Mo

ther attorney’s

fees and exper

t witness fees. Mother argues on appeal that the trial court erred in determining the amount of child support, in requiring that a portion of the child support be p laced in an educationa l trust for the par

ties’ daug hter, and in failing to require Father to pay additional child support for the ext raordinar y educational expenses for Joshua’s private school tuition. Mother also contends on appeal that the trial court erred in denying her petition to increase the payments of periodic alimony, and seeks attorney’s fee

s for this appeal. Our review of this is governed by T.R.A.P. 13(d), which provides that review of findings of fact by the trial court shall be de novo upon the record of the trial court, accompanied by a3

presumption of correctness of the findings of f

act, unless the evidence preponderates otherwise. See T.R.A.P. 13(d); Union Carbide Corp. v. Huddleston , 854 S.W.2d 87, 91 (Tenn. 1993). On appeal, Father argues first that he was precluded from introducing ev iden ce indicating tha tthe alimony awarded in the divorce decree was based on the presumption that Mothe r wa s unable to work. Father asserts that hesought to have witnesses, including Mother, testify that prior to the divorce Mother said that she was mentally disabled from working because of the divorce, but within months after the divorce became final, Mother obtained a job. When he sought to question Mother on these issues, Father says that the trial court would not permit

it, stating “We’re not going behind the dec ree.” Father contends that the trial court’s award in the divorce decree of per iodi c alimony, instead of rehabilitative alimony, must have been based on an implicit finding that Mother “was not feasibly rehabilitable.” Consequently, he asserts that the trial court erred in refusing t o allow him to present this evidence. Mother notes that Father made no offer of proof on the evidence he sought to present, and that conseque ntly there is no way to determine from the record whether the evidence would have been admissible or rele

vant. She argues f

urther that Fathe

r waived his right t

o object to

the alimony based on Mo ther’s employment because she had been employed since 1986 and Father filed n o petition to reduce the ali

mony until Mother sou

ght an increase i

n child support and alimony. She also notes that counsel for Father repeatedly objected to Mother introducing evidence of events that occurred prior to the divorce, and that Father ’s objections were sustained, with the trial judge consistently

limiting the testimony from both parties to “matters that have occurred since the [divorce] decree was entered.” The trial court is afforded wide discretion in the admission or rejection of evidence, and the trial court's action will be reversed on appeal only when there is a showing of an abuse of discretion. See Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992); Davis v. Hall , 920 S.W.2d 213, 217 (Tenn. App. 1995). In this case, Father argues that the original award of alimony must have been premised on

an implicit finding that Mother was unable to work. The record, ho wever, contains ample reason for an award of periodic alimony in the absence of such an implicit finding. There is an obvious disparity in the part ies’ ea rning capacity, education and needs, even when Mother’s current employment

is considered. Cou

pled with Father’s failure

to seek a decre

asein the periodic alimony4

until Mother sought an inc rease in child support and alimony, some ten years after Mother became employed, the record contain s a clearly suff

icient basis for th

e trial court’s de

cision not to permit either party to delve into evidence of events prior to the divorce decree.The trial court’s decision on this issue is affirmed. Bothparties sought modification of the alimony award and appeal the trial court’s decision notto modify the alimony. As noted above, Father asserts on appeal that the original alimony award

was based on the assumption that Mother was unable to work. Since Mother has been employed

for nearly ten years and now

makes approximat

ely $28,000 per ye

ar, Father conte

nds sh e no longer needs the $300 per week periodic alimony. In addition, Father maintains that Mother is “wasteful,” criticizing expenditures such as Mother’s sale of the marital home and purchase of another

home, increasing her

monthly house note f

rom $348 per month to

approximately $600 per month, Mother’s trade-in of her 1984 automobile for a newer aut omobile, her $15,000 retirement account, her expenditures for

visits to the veterinarian for the family dogs, her expenditures for

“an inordinately large amount of prescription medicine bills,” and payments for checking ac

count overdraf

t charges. Mother contrasts her income of $28,000 per year with Father’s inco

me of over $200,000 per year, plus his wife’s income from his medical practice of over $50,000 per year. She points to

his farm with a five-bedr

oom house and a poo

l, his five vehicles, his interest in a Florida condominium, and his nearly $500,000 retirement account. Mother argues that the purchasing power of the original award of $300 per week in periodic alimony has been reduced since the divorce d ecree and the amount of periodic alimony should be increased. Our review of the trial court's decision regarding whether to modify alimony is de novo with

a pre s umption of correctness unless the preponderance of the evidence requires otherwise. See Jones v. Jones , 784 S.W.2d 34 9, 352 (Tenn. App. 1989). A modifica

tion of alimony req

uires "a substantial and material change of circumstances." Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 1997). The burden is on the party seeking the modification to prove a material chan

ge of circumstan

ces. See Elliot v. Elliot , 825 S.W.2d 87, 90 (Tenn. App. 1991). Clearly, Father has not demonstrated that a decrease in alimony is wa rrant ed. Indeed, Father’s scrutiny of Mother’s expenditures appears oppressive and his criticisms b order on silliness, particularly

when Mother’s expenditures are contrasted with Father’s affluent lifestyle. On the other hand, apart from expenditures more pertinent to child support, Mother did not d emonstrate an5

increased need for alimony. On the whole, the evidence indicates that the trial court did not err in refusing to modify the awar d of periodic ali

mon y. The decision of

the trial court on t

his issue is affirmed. Mother appeals the trial court’s chi ld support award of $3,700 per month, with $700 of that monthlyamount placed in an educational trust for Katie. Mother argues that under the child support guidelines, once the trial court found the private school tuition to be an extraordinary educational expense, it was required to increase the child support awa

rd to provide for t

hese expenses. See Tenn. Comp. R. & Regs. 12 40-2-4-.02( 5). Since a portion of the child support was to be placed in an educational trust, Mother

contends that the practical effect of the trial court’s ruling left Mother with less monthly income for the children’s current needs since she is now obligated to pay Josh’s tuition at McCallie and cannot utilize the portion that goes into a trust fund to pay it. The child support g

uidelines provide

as follows: 1240-2-4-.04 Criteria for De viation from Guidelines. (1) Since these p ercentage amounts a re minimu ms, the cou rt shall inc rease the award calculated in R ule 1240-2-4-.03 for the follow ing reasons:

*** (c) Extraordinary

educational ex

penses and ext

r aordinary medical expenses not covered by i nsur ance sh all be added to the percent

age calculated i

n the above rule.

*** (3)

. . . When the net i ncome of the obli

gor exceeds $10,00 0 per month, th e court may consider

a downward deviation f rom the guidel

ines i f the obligor demonst

rates that the percentage appli

ed to the excess

of the net income above $10,000 a month exceeds a reasonab le amount of child support based upo n the best i

nterest of the child and the c ircumstance

of the parties. T he court m ay require th at sums pai d above the percen tage applied to the ne t income above $10,000 be placed in an educational . . . trust fund for the bene fit of the child. Tenn. Comp. R. & Regs. 1240-2-4-.04 (emphasi s added). Thus, u nder the guideli

nes, once the

trial court finds that

the child has

extraordinar

y educational

expenses, those expe nses “shall be added” to the ordinary guidelines percentag es. See id. ; see also Dwight v. Dwi ght , 936 S.W.2d 945, 950 (Tenn. App. 1996) (citing Economides v. Economides , No. 02A01-9109-CV-00189, 1994 WL 95 87 0 (Tenn. App. Mar. 24, 1994) (ordering obligor

to pay $2,500 per mo

nth in child support,

the guideline amount for three children, and pay the additional sum of $1,465 per month for private school tuition and fees); Bostick v. Bostick , No. 02A01-DH-00043, 1993 WL 90363 (Tenn. App. Mar. 30, 1993) (declining to deduct private school tuition payments made by obligor from the minimum percentage6

set forth in the guidelines); Carterv. Carter , No. 03A01-9210-CH-00380, 1993 WL 17128 (Tenn. App. Jan. 28, 1993) (requ iring o bligor, whose income exceeded the income scale provided in the guidelines, to pay the amount set forth in the guidel ines as well as private school tuition and expenses for the children)). While the guidel ines provide that

the trial court may order a downward deviation from the guidel

ine amount

in situat ions in which t

he obligor’s

net income exceeds $10, 000 per month, such a downward devia tion is b ased on a showing by t he obligor

that the gui

deline amount “exceeds a reasonab le amount of child support based on the best interest of the child” an d the parties’ circumstances. Id. Where the trial cour t or ders a deviation, the trial judge must make written findings that if the child support guidelines were applied, the resu lt would be unjust or i

nappropriate under the facts of the case. See Tenn. Comp. R. & Regs. 1240-2-4-.02(7); see also Smith v. Smith , No. 01A01-9609-CH-00404, 1997 Tenn. App. LEXIS 218 (Tenn. App. Mar. 27, 1997). This is true regardless

of whether the devi

ation is upward or downward. See State ex rel. Smit h v. Moore , No. 03A01-9705-JV-00190, 1997 Tenn. App. LEXIS 866 (Tenn. App. Dec. 5, 1997). In t his case, the trial court aw arded app roximately the guideline a mount of c hild support, $3,700 per month, and order ed that $700 of

that amount

be placed in an educ ational t rust for t he parties’ daughter Katie. No ad ditional amount was aw arded for the extraordinary e ducational expense for their son’s priva te school tuition. Th e trial court did no t state in its findings that it was ordering

a downward deviation f rom the guideli

ne amount. Indeed, t

he e vidence does not support a fi nding th at applying the guideline per centages to Fat

her’s income level, includi ng the amount exceedi

ng $10,000 per month, “exceeds a r easonable amount

of child sup

port,” consi

dering the

best inte rest of the children

and the parties’ circumstances. The trial co urt did not

state it s reason for req

uiring that $700 per month be placed in an educ ational t rust fund for Katie. Of the $3,700 monthly child support award in this case, approximately $500 of the total child support award is attributable to Father’s net income exceeding $10,000 per month. In the absence of evidence supporting a downward deviation and a specific finding thereof, the guidelines provide only that the portion o f child support attributable to net income over $10,000 per month may be paid into an educational trust.7

Accordingly, we find that the trial court only had authority to order $500 of the child support award to be placed in an educational trust fund for Katie. Under these circumst

ances, we find th

at the tri al court erred in failing to a dd an appr opriate

a mountto the guideline percentages to account for Josh’s ext raordinary educational expense. Provided an appropriate

amount is added to the child support for Josh’s private school expense, we find no abuse of discr

etion in requiring

th at up to $50 0 of the child support be placed in an educational trust fund for Katie. The amount that can be directed into a

n educational tru

st fund in this case is limited to $500 p er month. We remand the case to the trial court for an award of additional child support, based on Josh’s extraordinary educational expense, and a reduction of the amount to be placed in an educational trust fund to no more than $500. Father also contends that the trial court erred in awarding attorney’s fees and ex pense s to Mother. Father argues that such awards are appropriate only when the spouse seeking them lacks suffici ent fu nds to pay her own legal expenses. Trial courts have wide discretion in awarding attorney’s fees, and an app ellate court will

not reverse the t

rial court’s dec

ision unless

there has been

a clear abuse of that discretion. See Garfinkel v. Garfinkel , 945 S.W.2d 744, 748 (Tenn. App. 1996) (citing Smith v. Smith , 02A01-9109-CH-00209, 1993 WL 90378, at *6 (Tenn. App. 1993)). From

our review of the re

cord, there has

been no abuse of d

iscretion in the aw

ard of attorney' s fees to Mother. The decision of the trial court on this issue is affirmed. Mother also seeks attorney’s fees on appeal. W e find it appr opriate to award Mother her attorney’ s fees for this appeal, and remand the cause to the trial court for a determination o f th e appropriate amo

unt. In sum, we affirm the trial court’s dec ision to limit the evide

nce from both

parties to matters occurring since the original decree of divorce. We affirm the trial court’s decision not to modify the award of periodic alimony. We modify the award of child support to require an additional amount for the parties’ son’s extraordinary educational expense, and reman d fo r a determination of the appropriate

additional amount. We also modify the amount to be placed in an educational trust fund to n o more than $500 pe

r month and remand

for a reduction t

o that amount. In al

l other respects , the award of child support is affirmed. The trial court’s decision to require Father to pay $15,000 towardMother’s attorney’s fees and other costs of litigation is affirmed. Father is also req uired to pay Mother’s attorney’s fees for this appeal, and the cause is remanded to the trial court for a8

determination of t

he appropriate a

mount. The decision of the trial court is affirmed in part, reversed in part, modified and remanded

as set forth above. Costs are assessed against the A pp ellant, for which

execution may issu

e if necessary.

HOLLY KIRBY LILLARD, J.
CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.