FILED

June 5, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

WILLIAM MICHAEL ANDERTON, )

)

Plaintiff/Appellant, ) Williamson Chancery

) No. 22482

VS. )

) Appeal No.

EVELYN ADELE MORGAN ANDERTON, ) 01A01-9701-CH-00013

)

Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT

FOR WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE

THE HONORABLE HENRY DENMARK BELL, JUDGE

For Plaintiff/Appellant: For Defendant/Appellee:

Jack Norman, Jr. Evelyn A. Anderton

Nashville, Tennessee Pro Se

Thomas F. Bloom

Nashville, Tennessee

VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
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O P I N I O N

This is the second appeal concerning a husband’ssupport obligations following

the dissolution of a 23-year marriage. The Chancery Court for Williamson County

originally directed the husband to pay $1,731 per month in child support and $5,500

per month in spousal support for five years and then $5,000 per month thereafter. On

the first appeal, this court remanded the case to the trial court to revisit the child

support and spousal support awards. Even though the trial court concluded that the

husband’s income had decreased significantly, it increased the husband’s child

support to $2,000 per month and left its original spousal support order unchanged.

It also awarded the wife judgments for a sizeable spousal support arrearage and a

nominal child support arrearage. On this appeal, the husband again takes issue with

the amount of his spousal support and child support obligations and also insists that

he is entitled to retroactive relief on his spousal support arrearage and to the lifting

of the injunction with regard to his 401k plan. We vacate the child support and

spousal support awards and remand them to the trial court for further consideration

consistent with this opinion.

I.

William Michael Anderton and Evelyn Adele Morgan Anderton were married

in October 1973. Their three children were born between 1977 and 1981. Mr.

Anderton worked at various jobs during the early years of the marriage and in 1986

became employed by National Health Laboratories, Inc., a company providing

laboratory services for physicians. Mr. and Ms. Anderton also started an Amway

distributorship in 1975 that eventually became a substantial source of household

income. Ms. Anderton did not have outside employment but rather remained at home

to care for the children and the household and to manage their Amway

distributorship. 

National Health Laboratories transferred Mr. Anderton to Nashville in 1991

and gave him a three-year employment contract with a $150,000 fixed annual salary

and the possibility of an annual bonus. Mr. Anderton’s earnings, including his

bonuses, were $160,000 in 1991, $162,000 in 1992, and $170,000 in 1993. When

the parties separated in October 1993, Mr. Anderton agreed to pay Ms. Anderton
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$6,000 per month to support her and their children. In August 1994, the parties

agreed to reduce this obligation to $5,500 per month. In December 1994, National

Health Laboratories merged with another company and became Laboratory

Corporation of America. Mr. Anderton’s compensation plan was altered, and

beginning in January 1995, his base salary was reduced from $150,000 to $135,000,

while his maximum bonus potential was reduced to $67,500. 

Following a bench trial, the trial court filed a memorandum opinion on June

22, 1995. Based on its conclusion that Mr. Anderton’s earning potential was in

excess of $200,000 per year, the trial court directed him to pay Ms. Anderton $5,500

per month for five years and then $5,000 per month thereafter. Then, based on its

conclusion that Mr. Anderton’s gross earnings for the prior year had been $170,000,

the trial court set his child support at $1,731 per month. 

Mr. Anderton appealed to this court, and while the appeal was pending, we

permitted Mr. Anderton to introduce post-judgment facts showing that his base salary

for 1996 had been reduced to $95,000 and that his annual bonus could not exceed

$47,500. We determined that the evidence preponderated against the finding that

Mr. Anderton would earn in excess of $200,000 in 1996 and that the calculation of

Mr. Anderton’s child support obligation was inconsistent with the child support

guidelines. Accordingly, we remanded the case to the trial court for reconsideration

of the child support and alimony awards. We directed the trial court to determine Mr.

Anderton’s child support obligation first and then to determine his spousal support

obligation in light of his child support obligation and the General Assembly’s

expressed preference for awarding rehabilitative alimony whenever possible. See

Anderton v. Anderton, No. 01A01-9510-CH-00489, 1996 WL 274399 (Tenn. Ct.

App. May 24, 1996) (No Tenn. R. App. P. 11 application filed).

The trial court conducted another hearing in August 1996 to address the

remanded issues as well as Ms. Anderton’s petition to hold Mr. Anderton in contempt

for failing to make alimony and support payments and Mr. Anderton’s petition for a

reduction in his support obligations. In a supplemental decree filed on October 18,

1996, the trial court concluded that Mr. Anderton’s “earning capacity for 1996 and

the foreseeable future” was $142,500 per year. The trial court also increased Mr.

Anderton’s child support obligation to “the guidelines’ presumptive amount of
1The trial court found that Mr. Anderton’s spousal support arrearage as of August 21, 1996

was $22,859.03 and that the arrearage on his child support was $173.00.

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$2,000.00 per month.” Then, turning to Mr. Anderton’s spousal support obligation,

the trial court found that Ms. Anderton “will probably become capable of financial

self support, but there is a substantial possibility that she will not.” Based on this

rather ambivalent finding, and after reciting that it had considered all the factors in

Tenn. Code Ann. § 36-5-101(d) (Supp. 1997), the trial court declined to alter Mr.

Anderton’s spousal support obligation. Thus, even though the trial court concluded

that Mr. Anderton’s annual earnings were almost 30% less than its original finding,

the net effect of its decision was to increase Mr. Anderton’s combined annual child

support and spousal support obligations by over 15%. The trial court also ordered

Mr. Anderton to pay Ms. Anderton an additional $23,032.03 for child support and

spousal support arrearages.1

II.

ORDER OF ISSUES IN DIVORCE CASES

The dissolution of a marriage requires the courts to engage in the orderly

disentanglement of the parties’ personal and financial affairs. Many of the issues that

must be addressed during this process are interrelated, and the disposition of earlier

issues directly influence the decision on later issues. Accordingly, the parties and the

courts should pay careful attention to the order in which the various issues in a

divorce case are addressed and decided. 

As a general rule, the first issue considered in a divorce case concerns whether

either or both parties have demonstrated that they are entitled to a divorce. Thus, at

the outset, trial courts should first determine to whom the divorce should be awarded

or whether the parties should be declared divorced in accordance with Tenn. Code

Ann. § 36-4-129 (1996). Following this decision, trial courts should turn their

attention to the custody and visitation arrangements for the children if the parties

have minor children entitled to support. Only after these status issues have been

decided should trial courts turn their attention to the financial aspects of the divorce

decree.
2The determination of an obligor parent’s net income under the guidelines may be influenced

by income-producing property received as separate property or as part of the division of marital

property.

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The trial court’s first task following the resolution of the status issues is to

identify and distribute the parties’ separate property and then to divide their marital

property in an equitable manner. See Batson v. Batson, 769 S.W.2d 849, 856 (Tenn.

Ct. App. 1988). As part of this process, the trial court should also identify and

allocate the parties’ separate and marital debts. See Herrera v. Herrera, 944 S.W.2d

379, 389 (Tenn. Ct. App. 1996); Hanover v. Hanover, 775 S.W.2d 612, 614 (Tenn.

Ct. App. 1989). Sorting out the parties’ property interests must precede support

decisions because the manner in which the separate and marital property is divided

can affect later support decisions. See Tenn. Code Ann. § 36-5-101(d)(1)(G), -

101(d)(1)(H) (Supp. 1997); Tenn. Comp. R. & Regs. r. 1240-2-4-.03(2) (1994);2

Ridley v. Ridley, No. 01A01-9012-CV-00462, at *5 (Tenn. Ct. App. May 10, 1991)

(Koch, J., concurring) (No Tenn. R. App. P. 11 application filed).

After the parties’ property interests have been addressed, trial courts should

then turn their attention to child support. This is precisely what this court directed

the trial court to do in its first opinion in this case. See Anderton v. Anderton, 1996

WL 274399, at *3. Child support decisions should precede decisions about spousal

support because a spouse’s ability to pay spousal support may be directly and

significantly influenced by the amount of child support he or she has been ordered to

pay.

Consideration of spousal support questions should follow the disposition of all

the preceding questions. Once a court has determined whether spousal support

should be awarded, and if so its nature, amount, and duration, it should, as a final

matter, address any request for attorney’s fees if such request has been made.

Considering requests for attorney’s fees in the context of the spousal support award

is appropriate because additional awards for attorney’s fees are considered a form of

support. See Ford v. Ford, 952 S.W.2d 824, 830 (Tenn. Ct. App. 1996); Smith v.

Smith, 912 S.W.2d 155, 161 (Tenn. Ct. App. 1995). However, as pointed out by the

Tennessee Supreme Court, requests for attorney’s fees should be considered only

after the court has resolved the issues concerning the parties’ property and support.

See Inman v. Inman, 811 S.W.2d 870, 874 (Tenn. 1991). 
3An award of $1,731 per month to support three children would be appropriate for obligor

spouses with gross monthly earnings of $6,000. At the time of the trial court’s initial child support

award, Mr. Anderton’s effective gross monthly earnings were approximately $17,000.

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III.

THE CHILD SUPPORT AWARDS

We turn first to the manner in which the trial court determined the amount of

Mr. Anderton’s child support obligation. While Mr. Anderton does not directly

challenge the trial court’s decision to require him to pay $2,000 per month in child

support, he does so indirectly by complaining that the trial court erred by requiring

him to pay 90% of his expected gross earnings in child support and spousal support.

Because Mr. Anderton’s challenge to the combined amount of both awards

necessarily includes a challenge to each award separately, we will again scrutinize the

trial court’s child support award.

In its initial June 1995 order, the trial court set Mr. Anderton’s child support

at $1,731 per month, even though he had three children and his gross annual income

was over $200,000. Both parties conceded on the first appeal that this award was

inconsistent with the child support guidelines and that the trial court had made no

findings warranting a deviation from the guidelines.3 Accordingly, this court directed

the trial court to reconsider the amount of Mr. Anderton’s child support obligation in

accordance with the child support guidelines.

Following the remand, the trial court announced in its supplemental decree of

October 18, 1996, that it was setting Mr. Anderton’s child support “at the guidelines’

presumptive amount of $2,000.00 per month.” We are at a loss to understand the trial

court’s reference to the “guidelines’ presumptive amount.” When the trial court

entered its second decree, two of the Andertons’ children had not yet reached the age

of majority, and Mr. Anderton’s gross annual income was $142,500. According to

the guidelines, a child support award of $2,000 per month for two minor children

would be appropriate for obligor parents with gross earnings of $108,000 per year.

Again, the trial court provided no explanation for its decision to depart from the

guidelines.
4The calculation of net income is relatively simple. Net income equals gross income minus

three permissible deductions. These deductions include: (a) FICA, (b) income tax withholdings for

single wage earners claiming one withholding allowance, and (c) the amount of child support being

paid for other children pursuant to court order. See Tenn. Comp. R. & Regs. r. 1240-2-4-.03(4).

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In a vast majority of cases where child support is an issue, the two most

important variables are the number of minor children and the income of the parent

who will be required to pay support. Because the number of minor children is

generally undisputed, determining the amount of a parent’s income becomes the most

important element of proof in a child support proceeding. See Turner v. Turner, 919

S.W.2d 340, 344 (Tenn. Ct. App. 1995). The amount of a parent’s income can be

determined either by ascertaining the parent’s gross income as defined in Tenn.

Comp. R. & Regs. r. 1240-2-4-.03(3) (1994) or by ascertaining the parent’s net

income as defined in Tenn. Comp. R. & Regs. r. 1240-2-4-.03(4).4

The guidelines require that income calculations must include bonuses, see

Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(a), and that variable income such as

bonuses and commissions should be averaged and added to the obligor parent’s fixed

salary. See Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(b); Smith v. Smith, No.

01A01-9705-CH-00216, 1997 WL 672646, at *2 (Oct. 19, 1997) (No Tenn. R. App.

P. 11 application filed); Mayfield v. Mayfield, No. 01A01-9611-CV-00501, 1997 WL

210826, at *6 (Tenn. Ct. App. Apr. 30, 1997) (No Tenn. R. App. P. 11 application

filed). An obligor parent’s efforts to decrease the amount of his or her expected

income by claiming that he or she will not receive a bonus are addressed to the trial

court’s assessment of the parent’s credibility. See Yates v. Yates, No. 02A01-9706-

CH-00122, 1997 WL 746377, at *5 (Tenn. Ct. App. Dec. 4, 1997) (No Tenn. R. App.

P. 11 application filed). 

Once the parent’s income has been determined, the guidelines require the

courts to calculate the required amount of support using the percentages provided in

the guidelines. See Tenn. Comp. R. & Regs. r. 1240-2-4-.03(5). In most

circumstances, the result of these calculations becomes the obligor parent’s child

support obligation. However, a court may deviate from the guidelines if it makes

detailed, written findings explaining why the application of the guidelines would be

inappropriate and how deviating from the guidelines would be in the child’s best

interests. See Tenn. Comp. R. & Regs. r. 1240-2-4-.02(7), -.04(2) (1994). 
5The Department of Human Services increased the $6,250 ceiling to $10,000 effective

October 5, 1997.

6

In accordance with Tenn. Comp. R. & Regs. r. 1240-2-4-.04(3) as it existed at the time, the

trial court could have directed Mr. Anderton to make $2,562 in monthly support payments and to

place the remaining $2,711 in an educational fund or other fund for the children’s benefit.

7

In accordance with Tenn. Comp. R. & Regs. r. 1240-2-4-.04(3) as it existed at the time, the

trial court could have directed Mr. Anderton to make $2,562 in monthly support payments and to

place the remaining $122 in an educational fund or other fund for the children’s benefit.

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One ground for deviation specifically recognized in the guidelines involves

wealthy parents whose net monthly income exceeds $6,250. On both occasions when

the trial court calculated Mr. Anderton’s child support obligation, Tenn. Comp. R. &

Regs. r. 1240-2-4-.04(3) provided that in the case of wealthy parents, the court must

order the child support based on the appropriate percentage of all the obligor parent’s

net income but that it may fashion alternative payment arrangements for the child

support derived from the portion of the net income that exceeds $6,250 per month.5

The guidelines, like Nash v. Mulle, 846 S.W.2d 803, 806 (Tenn. 1993), also provide

that permissible alternative payment arrangements may include educational or other

trust funds for the benefit of the children.

When we apply these straightforward principles to this case, we can only reach

the conclusion that Mr. Anderton’s child support obligation has been seriously

miscalculated from the beginning. When the trial court first set child support in June

1995, Mr. Anderton’s effective net income was approximately $12,025 per month.

Based on this amount, the trial court should have set Mr. Anderton’s child support for

his three minor children at $5,273 per month6 unless there was some reason to deviate

from the child support guidelines. Thus, the trial court’s child support award in June

1995 was approximately one-third of the guideline amount. 

When the trial court entered its supplemental decree in October 1996, the

parties’ oldest child had passed the age of majority, leaving two minor children at

home. By that time, Mr. Anderton’s effective net income had slipped to $8,390 per

month. Even with this reduction, the trial court should have set Mr. Anderton’s child

support for his two minor children at $2,684 per month7 unless there was some reason

to deviate from the child support guidelines. The trial court’s child support award

was 22% lower than the guideline amount.
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The parties’ second child became eighteen in December 1997. Presuming that

Mr. Anderton’s effective net income has remained constant, his child support

obligation should have been reduced to $1,762 per month. Barring any unforeseen

reason to extend Mr. Anderton’s responsibility to support his youngest child, his

obligation to pay child support will terminate in August 1999 when the parties’

youngest child reaches the age of eighteen. 

The amount of child support required by the guidelines is presumptively

correct. See Tenn. Comp. R. & Regs. r. 1240-2-4-.02(7) (1994). In the absence of

any definitive written findings by the trial court setting forth cogent reasons to

deviate from the guidelines, Mr. Anderton’s child support obligation since June 1995

should have been consistent with the preceding discussion. Since it was not, Mr.

Anderton’s current child support obligation and the arrearage must again be

determined by the trial court. Unless the trial court finds reasons for deviating from

the guidelines, it should set Mr. Anderton’s current child support obligation in

accordance with the child support guidelines. It should then recalculate the amount

of the arrearage consistent with Mr. Anderton’s actual net income during the relevant

periods using the formula required by the guidelines.

IV.

THE SPOUSAL SUPPORT AWARD

Mr. Anderton also raises three issues regarding the award for spousal support

and the judgment of the spousal support arrearage. He asserts that the trial court

erred by setting the amount of his spousal support obligation beyond his ability to pay

and by awarding Ms. Anderton long-term rather than rehabilitative spousal support.

He also asserts that the trial court should have granted him relief from his alimony

obligation from the date of his petition to reduce his alimony. We have determined

that the trial court should have awarded Ms. Anderton rehabilitative alimony at an

amount less than the amounts in the trial court’s June 22, 1995 and October 18, 1996

orders.

A. 
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There are no hard and fast rules for spousal support decisions. See Crain v.

Crain, 925 S.W.2d 232, 233 (Tenn. Ct. App. 1996); Stone v. Stone, 56 Tenn. App.

607, 615-16, 409 S.W.2d 388, 392-93 (1966). Trial courts have broad discretion to

determine whether spousal support is needed and, if so, its nature, amount, and

duration. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996);

Jones v. Jones, 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989). Appellate courts are

generally disinclined to second-guess a trial court’s spousal support decision unless

it is not supported by the evidence or is contrary to the public policies reflected in the

applicable statutes. See Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App.

1994); Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986).

Tenn. Code Ann. § 36-5-101(d)(1) reflects a preference for temporary,

rehabilitative spousal support, as opposed to long-term support. See Herrera v.

Herrera, 944 S.W.2d at 387; Wilson v. Moore, 929 S.W.2d 367, 375 (Tenn. Ct. App.

1996). The purpose of rehabilitative support is to enable the disadvantaged spouse

to acquire additional job skills, education, or training that will enable him or her to

be more self-sufficient. See Smith v. Smith, 912 S.W.2d at 160; Cranford v.

Cranford, 772 S.W.2d 48, 51 (Tenn. Ct. App. 1989). The purpose of long-term

spousal support, on the other hand, is to provide support to a disadvantaged spouse

who is unable to achieve some degree of self-sufficiency. See Loria v. Loria, 952

S.W.2d 836, 838 (Tenn. Ct. App. 1997). 

The statutory preference for rehabilitative support does not entirely displace

other forms of spousal support when the facts warrant long term or more open-ended

support. See Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Isbell v. Isbell, 816

S.W.2d 735, 739 (Tenn. 1991). Because trial courts have the prerogative to

determine the type of spousal support that best fits the circumstances of the case and

may award several different types of support in the same case when the facts warrant

it. See Cheatham v. Cheatham, No. 01A01-9508-CH-00380, 1997 WL 731784, at *7

(Tenn. Ct. App. Nov. 25, 1997) (No Tenn. R. App. P. 11 application filed).

Even though fault is a relevant consideration when setting spousal support, see

Tenn. Code Ann. § 36-5-101(d)(1)(K), spousal support decisions are not intended to

be punitive. See Duncan v. Duncan, 686 S.W.2d 568, 571 (Tenn. Ct. App. 1984);

McClung v. McClung, 29 Tenn. App. 580, 584, 198 S.W.2d 820, 822 (1946). The
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purpose of spousal support is to aid the disadvantaged spouse to become and remain

self-sufficient and, when economic rehabilitation is not feasible, to mitigate the harsh

economic realities of divorce. See Shackleford v. Shackleford, 611 S.W.2d 598, 601

(Tenn. Ct. App. 1980). While divorced couples often lack sufficient income or assets

to enable both of them to retain their pre-divorce standard of living, see Brown v.

Brown, 913 S.W.2d at 169-70, the obligor spouse may be able to provide some

“closing in money” to enable the disadvantaged spouse to approach his or her former

financial condition. See Aaron v. Aaron, 909 S.W.2d at 411.

Spousal support decisions hinge on the unique facts of the case and require a

careful balancing of the factors in Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1997).

See Hawkins v. Hawkins, 883 S.W.2d 622, 625 (Tenn. Ct. App. 1994); Loyd v. Loyd,

860 S.W.2d 409, 412 (Tenn. Ct. App. 1993). In virtually every case, the two most

important factors are the demonstrated need of the disadvantaged spouse and the

obligor spouse’s ability to pay. See Varley v. Varley, 934 S.W.2d 659, 668 (Tenn. Ct.

App. 1996); Crain v. Crain, 925 S.W.2d at 234.

B.

Under the facts of this case, we have determined that Ms. Anderton should

receive rehabilitative spousal support. She is currently forty-five years old. She

earned a college degree in May 1996 and for many years participated in running a

financially successful Amway distributorship. Her health and emotional complaints

simply do not rise to the level of seriousness that they prevent her from becoming

gainfully employed. After hearing the evidence on remand, the trial court found that

Ms. Anderton’s “physical limitations and disabilities do not preclude economic

rehabilitation.” Accordingly, the trial court concluded that she “will probably

become capable of financial self support, but there is a substantial possibility that she

will not.” We find that the evidence preponderates in favor of the trial court’s

conclusion that Ms. Anderton is capable of financial self support.

We turn next to the issues of Ms. Anderton’s needs and the ability of Mr.

Anderton to pay spousal support. Mr. Anderton’s ability to pay support must be

considered in light of the recent decline in his income, his child support obligation,

and his variable income represented by his bonus. Without considering his bonus,
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Mr. Anderton’s net monthly salary is approximately $5,650. If his maximum bonus

is factored in, his monthly income is effectively increased by approximately $3,500.

His current child support obligation for the parties’ remaining minor child is $1,762,

but he will have no further obligation to pay child support after August 1999 when

his youngest child becomes eighteen years old. In light of these facts, Mr. Anderton

is able to pay spousal support.

We have weighed the evidence in light of the factors in Tenn. Code Ann. § 36-

5-101(d)(1). In doing so, we attached particular weight to the length of the parties’

marriage, the manner in which the trial court divided the marital property, the parties’

earning capacity, and their physical and psychological condition. Based on these

considerations, we have determined that when the trial court reconsidered Mr.

Anderton’s spousal support obligation in October 1996, it should have directed Mr.

Anderton to pay Ms. Anderton rehabilitative spousal support in the amount of $3,000

per month for ten years. In addition to being prospective, the revised amount of Mr.

Anderton’s spousal support obligation should relate back, for the purpose of

calculating any arrearage that might have accrued, to January 30, 1996 when Mr.

Anderton filed his petition to reduce his spousal support obligation because of the

decrease in his salary. Of course, either party may petition the trial court for a change

in the amount of the spousal support award any time before it expires of its own

terms.

V.

MR. ANDERTON’S 401K PLAN

Prior to making its initial decision in this case, the trial court entered a

temporary restraining order prohibiting Mr. Anderton from disposing of, concealing,

transferring, or in any way destroying any of his personal assets, including his 401k

plan. After this court remanded the case for further consideration, the trial court

declined to rescind the restraining order even though it had awarded the retirement

plan to Mr. Anderton as part of the division of the marital property. We find that the

trial court’s refusal of vacate its restraining order was in error. Accordingly, on
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remand the trial court should lift its restraining order with regard to the property

awarded to Mr. Anderton as part of the division of the marital property.

VI.

In summary, we vacate the trial court’s child support and spousal support

awards and remand them to the trial court for the purpose of calculating Mr.

Anderton’s obligations in accordance with the child support guidelines and with this

opinion. The trial court should also recalculate the arrearages for Mr. Anderton’s

child support and spousal support and should enter a judgment in Ms. Anderton’s

favor for these revised arrearages which provides for periodic payments of any

balances that may be owed. We tax the costs of this appeal in equal proportions to

William Michael Anderton and his surety and to Evelyn Adele Morgan Anderton for

which execution, if necessary, may issue.

______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION 

__________________________________

BEN H. CANTRELL, JUDGE