# FILED

June 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

WILLIAM MICHAEL ANDERTON, ) ) Plaintiff/Appell

ant, ) Williamson Chancery ) No. 22482 VS. ) ) Appeal No. EVELYN ADELE MORGAN ANDERTON, ) 01A01-9701-CH-00013 ) Defendant/Appellee. )

APPEAL FROM THE CHAN CERY COURT FOR WILLIAMSON COUNTY AT FRANKLIN, TENNESSEE THE HONORABLE HENRY DENMARK BELL, JUDGE

For Plaintiff/Ap

pellant : For Defendant/Appellee : Jack Norman, Jr. Evelyn A. Ander ton Nashville, Tennessee Pro Se Thomas F. Bloom Nashville, Tennessee



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This is the second appeal concer ning a husband’s support oblig ations following the dissolution of a 23-

year marriage.The Chancery Cour t for Williamson

County originally directed the husband to pay $1,731 per month in child support and $5, 500 per month in spousal support f or five years and then $5,000 per month th ereafter. On the first appeal, this court reman ded the case to the tria l court to revisit the

child support and spousal support awards. Even though the trial court concluded that the husband’s income had decrea sed significantly, i

t increased the husba

nd’s c hild support to $2,000 per month and l eft its original spousa l support order unchan

ged. Italso awarded the wife j udgments for a sizeable spous al support arrear age and a nominal child support arrearage. On this appeal, the husband again takes iss

ue with the amount

of his spousal support a

nd child support obligati

ons and alsoinsists that he is entitled to retroactive relief on his spousal support arre arage and to the lif

ting
o f the injunction with re

gard to his 401k plan. W e vacate the child s

uppo rt an d spousal support awards and r emand them to the trial court for further consideration consistent with this op

inion.

I.

WilliamMichael Anderton a nd Evelyn Adele Morgan Anderton were married in October 1973. The

ir th ree childre n were born between 1977 and 1981. Mr. Anderton worked at various j obs during the early years of the

marriage and in 1986 became employed by National Health Laborato

ries, Inc., a

compan y providing labora tor y services for physicians. Mr. and Ms. Anderton also started an Amway distributorship

in 1975 that eventually became a substantia l source of household income. Ms. Anderton did not have outside employme ntbut rather remained at home to c are for th e children and the household and to manage their Amway distributorshi p.

National Health Laborato ries transferre

d Mr. Anderton to N

ashvi lle in 1991 and gave him a three-year employment contract with a $150,000 fixedannual salary and the possibility of an an nual b onus. Mr. Anderton’s e arnings, including his bonuses, were $160,000 in 1991 , $162,000 in 1992, and $170,000

in 1993. When the parties separate

d in October 1993, Mr

. Anderton agree

d to pay Ms. Ande rton-3-

$6,000 p er mont

h to support her and their children. In August 1994, the parties agreed to reduce this obligation to $5,500 per month. In Dec

ember 1994, National Health Laborato ries merged with another company and became Laboratory Corporation

of America. M

r. Anderton’s com

pensation plan was a

lt er ed, and beginning in January 1995, his ba se salary was red

uced from $150,000

to $135,000, while his maximum bo nus potential was re duced to $67,500.
Followinga ben c h trial, the trial court filed a memo

randum opinion on June 22, 1995. Based on its con clusion that Mr. An

derton’s e arning po tential was in
excess of $200,000 per year,

the trial court dir

ected him to pay Ms. Anderton $5,500 per month for fi ve years and then $5, 000 per month thereaf ter. Then, base

d on its conclusion

that Mr. Anderto

n’s gross earnings fo

r the prior year ha

d been $170,000, the trial court set h is child support at $1,731 per month

.

Mr. Anderton appealed to this court, and w hil e the appeal was pendin g, we permitted Mr. Anderton to introduce post-judgment facts showing that his base salary for 1 996 ha d 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 wou

ld earn in excess of $200,000 in 1 996 and that the calcu lationof Mr. Anderton’s child support obligation was inconsisten t 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 d etermine his spousal support obligation

in light of his child suppo rt obligation and the G

eneral A ssembl y’s expressed preference for awarding reh abilitative alimo ny whenever possib le. 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 conducte d another hearing in A

ugust 1996 to address the remanded issues as well as Ms. A nderton’s petition to

hold Mr. Anderton i

n contempt for failing to make alim

ony and support payments

and Mr. Anderton’s petition for a reduction in his support obligations. In a supp lemental decree filed on October 18, 1996, the trial court conc luded that Mr. Ande

rton’s “earning ca

pacity for 1996 and the foreseeable future” was $142,500 per year. T he trial court also increased Mr. Anderton’s child support obligation to “the guide lines’ presumptive amount of1 The trial court found that Mr. Anderton’s spousalsupport arrearage as of August 21, 1996 was $22,859.03 and that the arrearage on his child support was $173.00. -4- $2,000.00 per month.” Then, turning to Mr. Anderton’s spousa l support obligation, the t r ial court found that Ms. Anderton “will probably become capable of financial self supp ort, but the

re is a substantial po ssibility that she wil l not.” Based on this rather ambivalent finding, and after reciting that it had c onsidered all the fa

ctors in Tenn. Code Ann. § 36-5-101(d) (Supp. 1997), the trial court dec lined to alter Mr. Anderton’s spousal support obligation. Thus, even though the trial court concluded that Mr. Anderton’s a

nnual earnings wer

e almost 30% less tha

n its original finding, the net effect of its d

ecision was to incr

ease Mr. Anderton’s combined annual child support and spousa

l supp ort obligations by over 15%. The trial court also ordered Mr. Anderton to pay Ms. A nderton an additional $ 23,032.03 for child s upport and spousal support arrea

rages. 1

II. O RDER OF I SSUES IN D IVORCE C ASES

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 t

his process are inte

rrelated, and the

disposition of

earlier issues directly influence

the decision on later iss

ues. Accordingly, the parties and the
cou rts sh ould pay careful att ention to the order in w hich the various issues

in a divorce case are addres sed and decided.

As ageneral 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 cour

ts should first deter

mine to whom the divor

ce should be

awarded
or wheth er the parties shoul d be declared divorce d in accordance with Ten n. Cod e Ann. § 36-4-129 (1996). F ollowing this deci sion, trial courts s hould turn their attention to the custody and visitation arrangements for the children if the parties have minor children ent

i tled to support. Only after these status issues have been decided should trial courts turn their attention to the financial aspects of the divorce decree.2 The 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. -5- The tria l court’s first task f ollowing the resoluti

on of the status issues i s to identify and distribute the par ties’ separate pr

operty and then to divide their marital propertyin an equitable mann er. See Batson v. Batson , 769 S.W.2d 849, 856 (Tenn. Ct. App. 19 88). As part of thi s process, the tria l court should also ident ify an d allocate the parties’ separ

ate and marital de

bts. See Herrera v. H

errera , 944 S.W.2d 379, 389 (Tenn. Ct . App. 1996); Hanover v. Hanover , 775 S.W.2d 612, 614 (Tenn. Ct. App. 1989). Sort

ing out the p arties’ property interests must precede support decisions because the mannerin which the separate and marital property is divided
can affect later support d ecisions. See Tenn. Code Ann.§ 3 6-5-101(d)(1)(G), - 101(d)(1)(H) (Supp. 1997); Te nn. Co mp. R. & Regs. r. 1240-2-4-.03(2) (1994); 2 Ridley v. Ridley , No. 01A01-9012-CV-0046 2, at *5 (Tenn. Ct. App . May 10, 1991) (Koch, J., concurring) (No Tenn. R. App. P. 11 application filed).

After the par ties’ property inter ests 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. A nderton , 1996 WL 274399, at *3. Child s upport decisions should pr ecede decisions

about spousal support because a sp o use’s ability to pay spo usal support may be dir ectly and significantly

influenced by the am

ount 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 shouldbe award ed, an d if so its nature, amount, and duration, it should, as a final matter, address any request for atto rney’s fe es if such request has been made. Considering

requests for attor

ney’s fees in the co

ntext of the

spousal support award is appropriate

because additional awards for attorney’s fees are consider ed a form of supp o rt. See Ford v. Ford , 952 S.W.2d 824,

830 (Tenn. Ct. A

pp. 1996); Smith v. Smith , 912 S.W.2d 155, 161 (Tenn. Ct. App. 1995). However, as pointed out by the Tennessee S upreme C ourt, requests for attorney’s fees sh

ould be considered only after the court has resolved the issues concerning the part ies’ property and support. See Inman v. Inm

an , 811 S.W.2d 870, 874 (Ten n. 1991).3 An 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. -6- III. T HE C HILD S UPPORT A WARDS

We turn first

to the manner in whic

h the trial court det

ermined the amount of Mr. And erton’s child support obligation. While Mr. Anderton does not direc tl y challenge th e trial court’s deci sion to require him to pay $2,000 per month in c hild support, he does so indirectly by complaining that the trial court erred by req uiring himto pay 90% of his expec ted gross earnings

in child support and spousa l support. Bec ause Mr. Anderton’s challenge to the combined amount of both award s necessarily

includes a challenge

to each award separately, we wi ll 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 chi ldren 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 t r ial court had made no findings warranting a deviation from the g uide lines. 3 Accordingly, this court directed the trial court to rec

onsider the amount of Mr. Anderton’s c hild support obligation in accordance with t

he child support guideli

nes.
Followingthe remand, the trial court announced in its supplemental decree of October 18, 1996, that it was setting Mr. Anderton’s child support “at the g uidelines’ presumptive

amount of $2,000.00

per month.” We areat a loss to understand the trial court’s reference to the “guidelines’ presumptive amount.” When the trial c ourt entered its second decree, two of the Anderto

ns’ children had not yet reached the age of majority, and Mr.Anderton’s gross annual income was $ 142,500. Accordin g 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 ,00 0 per year. Again, the trial court p rovided no explanation for its decision to de part from the guidelines.4 The calculation of ne t income is relativ

ely 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). -7- In a va st majority of case s where child suppor t is an issue, the tw

o most important variables are the

number of minor children a nd the income of the pa

rent who will be required to pay support. Beca use the number of min

or children is generally undisputed, determining the amount of a parent’s income becomes the most important element of proof in

a child support pro ceeding. See Turner v. Turner , 919 S.W.2d 340, 344 (Tenn. Ct. App. 19 95). Th e amount of a parent ’s income can be determined either by ascerta ining the parent’s gr

o ss income as defined

in Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3) (1994) or by as certa ining the parent’s net income as defined in Tenn. Comp. R. & Regs. r. 1240-2-4-.03(4). 4

The guidelines require t

hat income calcul

a tions must inclu de bonuses, see Te nn. Comp. R. & Regs. r. 1240-2-4-.03(3)(a), and that variable income such a s 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. Mayf ield , No. 01A01-9611-CV-00501, 1997 WL 210826, at *6 (Tenn. Ct.App. Apr. 30, 1997) (No Tenn . R. App. P. 1 1 application filed). An obligor par ent’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 credibilit y. See Yates v. Yates , No. 02A01-9706- CH-00122, 1997 WL 746377, at *5 (Tenn. Ct.App. Dec. 4, 1 997) (No Tenn. R. A pp. P. 11 application fil ed).

Once the parent’s income has been deter m ined, the guidelines require the courts to calculate the r

equired amount

of support using the per

centages provided in the guide lines. See Tenn. Comp. R.& Regs. r. 1240-2- 4-.03(5). In most circumstances,

the result of

thes e calculations beco

mes the obligor pare

nt’s child support obligation. However, a court may deviate from the guidelines if it makes detailed, written findings exp laining why the application of the guidelines would be inappr opriate

and how deviating fr

om the guidelines woul

d be in the child’s bes t interests. See Tenn. Comp. R. & Regs. r. 1240-2 -4-.02(7), -.04(2) (199 4).5 The Department of Hum an S ervices increased the $6,250 ceiling to $10,000 effective

October 5, 1997.

6 In accordance w

ith Tenn. Comp. R. & Regs. r. 1240-2-4-.04(3) as it existed at the time, the trial court could have directed Mr. And erton to make $2,5 62 in monthly support p ayments and to place the remai

ning $2,711 in an ed

ucational fund or

other fund for the

children’s bene

fit.

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

ha ve directed Mr. A

nderton to make $2,562 in monthly suppor t payments and to place the remai

ning $122 in an educ

ational fund or oth

er fund for the c

hildren’s benef

it. -8- One ground for deviation specifically recognized in the guidelines involves wealthyparents whose net mon thly income exceeds $6,250. On both occasions when the trial court calculate d Mr. Anderton’s child support obligat ion, Tenn. Comp. R. & Regs. r. 1240-2-4-.04(3) provided that in the case of wealthy pa

rents, the court m

ust order the child support based on the appropriate percentage of all the obligor parent’s netincome but that i

t may f ashion alternative payment arrangeme nts for the child support derived from the por tion of the

net income that exce

eds $6,250 per month. 5 The guidelines, like Nash v. Mulle , 846 S.W.2d 803, 806 (Tenn. 1993), also

provide that permissible alter

native payment

arrangements may

includeeducational or other trust funds for the be

nefit of the childre

n.

When we apply these

straightforward principles to this case, we canonly reach the conclusion that Mr. Anderton’s child s upp ort obligation has been seriously miscalculated from the beginning. When the trial court first set child support in June 1995, Mr. Anderton’s e

ffective net incom

e was approxim

ately $1 2,025 per month. Based on this amount, the trial court should have set Mr. Anderton’s child support for his three minor childr

en at $5,273 per month 6 unless there was so

me reason to deviate from the child support guidel

ines. Thus, the trial court’s c hild support award in

June 1995 was approximat ely one-third of th e guideline amount

.
When the trial court ente red its supplemental

decree in Octobe

r 1996, the parties’ oldest chi ld had p assed 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 redu ction, the trial co

urt should have set Mr. Anderton’s child support for his two minor ch ildren at $2,684 per

month 7 unless there was so me reason to deviate from the child support guidelines. The trial court’s child support aw a rd was 22% lower tha

n the guideline amount.-9- The parties’ second

child became eighte

en in December 1997. Presuming that Mr. Anderton’s effe

ctive net income has

remained constant,

hi s ch ild support obligation should have be en reduced to $1,762

per month. Barring any unforeseen
reason to extend Mr. And

e rton’s responsibility to support his youngest chi ld, his obligation

to pay child support will termi nate in August 1999 when the pa rties’ youngest child re aches the age of eight een.

The amount of child support requi red b y the guidelines is pre sumptively correct. See Tenn . Comp . R. & Regs. r. 1240-2-4-.02(7) ( 1994). In the absenc e of any definitive writte

n findings by the trial c ourt sett ing forthcogent reasons to deviate from the guidelines, Mr. Anderton’s child support obligation since June 1995 shouldhave be en consistent with the preceding discussion. Since it was not, Mr. Anderton’s current child suppor t obligation a

nd t he arrearage mu st again be determined by the trial court.Unless the trial court finds r

easons for

deviating from the guidelines, it sho

uld set Mr. Anderton’s c urrent child support ob

ligation in accordance with the child support guidelines. I

t should then recalculate

the amount of the arrearage

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

relevant periods using the form

ula required by the gu

idelines.

IV. T HE S POUSAL S UPPORT A WARD

Mr. Anderton also raises three issues regarding the awardfor spousal support and the j udgme nt of the spousal support arrearage. He asserts that the trial court erred by setting the amount of his spousal support obl igationbeyond his ability to pay and by awarding Ms. A

nderton long-term rather

than rehabilitative

spousal support. He also asserts that the

trial court should hav

e granted him relie

f from his alimony obligation

from the date

of his petition to reduc

e his alimony. We have determined that the trial court sh

ou ld have awarded Ms. Anderton rehabilitative alimony at an amount less than the amounts

in the trial court’ s June 22, 1995 and Oct ober 18, 1996 orders.

A.-10- There are no hard and fast rul es for spousal sup port decisions. See Crain v

. Cra in , 925 S.W.2d 232, 233 (Tenn. Ct. App . 1996); Stone v. Stone , 56 Te nn. App

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

whether spousal suppo

rt is needed and, if

so, its nature, am

ount, and duration. See Garfinkel v. Garfinkel , 945 S.W.2d 744, 748 (Ten n . Ct. App. 1996); Jones v. Jones , 784 S.W.2d 349, 352 (Ten n. Ct. App. 1 989). Ap pellate courts are generally disinclined to second- guess a trial court’s spousal suppor t decision unless itis not supported by the e vidence or

is contrary to the public policies reflected in the applicable

statutes. See Brown v. Brown , 913 S.W.2d 163, 1 69 (Tenn. Ct. App. 1994); Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986).

Tenn. Code Ann. § 36-5-1 01(d )(1) reflects a preference for

temporary, rehabilitative

spous al suppor

t, as opposed to long-te

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

pp. 1996). The purpose of rehabilitative support is to enable the disadvant aged spouse to acquire additional job

skills, education,

or training that wil

l enable him or her t

o be more self-sufficient. See Smith v. Smith , 9 12 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 prov

ide support to a disadva

ntaged spouse who is unable t o achieve so me degree of self-suffic iency. See Loria v. Loria , 952 S.W.2d 836, 838 (Tenn. Ct. Ap p. 1997).

The statutory preference for rehabilitative support does not entirely displace otherforms 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). Be cause trial courts have th e prerogative to determine

the typeof

spousal support that bes

t fits the circumsta

nces of the case an

d may award several di

fferent types of su

pport inthe same case whe n the facts warrant it. See Cheatham v. C

heatham , 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), spo usal support decisions

are not intended to be punitive. See Duncan v. Dun can , 686 S.W.2d 568,

571 (Ten n. Ct. App. 1984); McClun g v. McClung , 29 Tenn. App. 580, 584, 198 S.W. 2d 820, 822 (1946). T he-11-

purposeof spousal support is to a id the disadvantaged spouse to become and rema

in self-sufficient

and, when economic

rehabilitation is

not feasible, to mi

tigatethe harsh economic realities of

divorce. See Shackleford v. Shackleford

, 611 S.W.2d 598,

601 (Tenn. Ct. App. 1980). While divorcedcouples often lack su fficient income or

assets to en able both of them to retai n their pre-divorce s tandard of living , see Brown v. Brown , 913 S.W.2d at 169-70, the obligor spouse m ay be able to provide some “closing in money” to enable the disadvantaged spouse to approach his or her former financial conditi on. See Aaron v. Aaron , 909 S.W.2d at 41 1.
Spousal support decisions hinge on the unique facts

of the case and

require a careful balancing of the fa

ctors in Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1997). See Hawkins v. Hawk

ins , 883 S.W.2d 622,

625 (Tenn. Ct. App. 1994); Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn. Ct. App. 1993). In virt u ally every case,

the two most important factors are the d

emonstr ated need of the disadvantaged s pouse 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 23 4.

B.

Under the facts of this ca se, we have determined tha t Ms. Anderton should

r eceive reha

bilitative spousal suppo

rt. She is curre

ntly forty-five yea

rs old. She earned a college degree i n May 1996 and for many years participate

d in running a financially

successful

Amway distributorship. Her health and emotional complaints sim ply do not rise to the leve l of seriousness that they prevent her fr om becoming gainfullyemployed. After hearing the

evidence on remand, the trial court found that Ms. Andert on’s “physical limita tions and disabilities d

o not preclude econom

ic 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 evid ence preponderates in favor of the trial court’s conclusion that Ms. A

nderton is capable of

financial self suppo

rt.

We turn next to the issues of Ms. An derton’s needs and the ability of Mr. Anderton to pay spousal support.Mr. Anderton’s a bility to pa

y su pport must be considered in light of the recen t decline in his income, his chi

ld support obligation, and his variable in

c ome represented by his bonus. Without consi dering his bonus,-12-

Mr. Anderton’s net mont

hly salary is approximately $5,65 0. If his maximum bo nus is factored in, his monthly income is effectively increasedby approximately $3, 500. His current child suppor

t obligation for the

parties’ remaining minor chi ld is $1,762, but he will have no furt

her obligation to pay c

hild support after A

ugust 1999 when his youngest child becomes eighteen years old. In light o f these facts, Mr

. Anderton is able to pay spousal su

pport.

We have weighed the evidence in light o f the factors in T

enn. Code Ann. § 36- 5-101(d)(1). In doing so, we attached particular weigh t to the length of the partie s’ marriage, the manner in whic h the trial court divi

ded the marital prop

erty, the parties ’ earning capacity, and their physical and psychological con dition. Based on these considerations,we have determine d that when t

he 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 t he pu rpose of calcu lating any arrearage that might have accrued, to January 30, 1996 when Mr. Anderton filed his petition to r

educe his spo u sal support obligation be cause of the decrease in his salary. Of course, eithe r party may petition

the trial court for

a change in the amount of the spousa l support award any t

ime before it expir

es of it s own terms.

V. M R . A NDERTON ’ S 401 K P LAN

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

red a temporary restraining order prohibiting Mr. Ande

rton from disposing of, concea

ling, transferring,

or in any way destro

ying any of his personal assets, including his 401k plan. After this court r

emand ed the c ase for further consideration, the trial court declined to rescind the restraining order even though it had awarded the re tir ement plan to Mr. Anderton a

s part of the division of

the marital proper

ty. We find

thatthe trial court’s refusal of

vacate its restra

ini ng order was in err

or. Accordingly,

on-13-

remand the trial court should lift its r estraining order w

ith regard to the pro

perty awarded to Mr. A

nderton as part of the

division of the marita

l property.

VI.

In summary, we vacate the trial court ’s child support and s pousal su pport awards and remand them to the trial court for the purpose of calculating Mr. Anderton’s obligations in accordance with the child supportguidelines and with th is opinion. The trial court sh ould also recalcula

te the arrearages for Mr. Anderton’s childsupport and spo usal su pport and should enter a judgment in Ms. Anderton’s favor for these revised arreara ges which provides for periodi c payments of any balances that may be owed. We tax the costs of this appeal in equal proportions to WilliamMichael Anderton and his surety and to Evel

yn Adele Morgan And

erton for which execution, if necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

__________________________________ BEN H. CANTRELL, JUDGE