# FILED January 10, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE, AT JACKSON

____________________________________________________________ ) LISA LYNN NORTON , ) Madison County Chancery Court ) No. 40241 Plaintiff/Appella

nt, ) ) C.A. No. W1999-02176 -COA-R3-CV VS. ) ) MAX LANE NORTON , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Chancery Court of Madison County at Jackson. Honorable Joe C. Morris, Chancellor
Kathryn M. Tucker , KIZER, BONDS & HUGHES, Milan, Tennessee Attorney fo

r Plaintiff/Appell

ant. Joe H. Byrd, Jr ., Jackson, Tennessee Attorney for Defendant/Appellee.

OPINION FIL

ED: VACATED AND REMANDED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)1 At trial, the Fath er conceded tha

t, for purposes of

these proceedin

gs, this capital g

ain should be included

in the gross incom

e used to determin

e his child support o

bligation. We note that the Child Support Guidelines specifically define gross income to include capital gains. See Tenn. Comp. R. & Reg

s. 1240-2-4-.03(

3)(a) (as revi

sed in 1994); see also Smith v. Smith , No. Plaintiff Lisa Lynn Norton (Mother) appeals the trial court’s judgment increasing the child support obligation of Defendant/Appellee Max Lane Norton (Father) fr om$400 per month

to $1200 per month, ordering the Father to contribute $300 per month to an educational trust fund for the parties’ minor chi ld, and orderi ng the Fathe r to pa y $2000 of the Mothe r’s at torne y’s fees . In considering the Mother’s petition to modify child support, the trial court found t hat the Fathe r’s financial condition had change d very littl e since 1988 when the parties entered into a Marital Dissolution Agreement. Nevertheless, based largely upon the Father’s agreement to pa y more child support, the trial court increased the Father’s monthly child support obligation to $1200. We vacate th e trial court’s judg

ment based upon our

conclusion that the

court used the wr

ong test fo r determining whether the Mother was entitled to the relief sought in her modification petition.

When the parties were divorced in February 1988, the Father agreed to pay $400 per month to the Mother for the support of the parties’ ten-month-old son. In January 1998, almost ten yearslater, the Mother instituted the present pro ceedings when she filed a petition to modify the Father’s child support obligation. In support of her petition, the Mother alleged “that a significant variancehas occurred in the income of Father such

that child support should be increased consistent with the guidelines now in effect in the State of Tennessee.”

At trial, much of the eviden

ce focused on the

Father’s income

from self-employment for the tax years 19 96 and 1997. In 1997, the Father reported $56,702 in gross income. The Father’s laundry and car wash bus

iness generate

d gross receip

ts of $177,202. Afte

r taking various

business deductions,however, including $93,478 for depreciation, $40,775 for interest payments, and $3503 for car expenses, the Father reporte d a net business loss

of $73,031. The F

ather also earn

ed income from the rental of commercial and residential real estate. The Father rep orted gross ren

tal receipts of $271,693. After takin g v ari ous deductions, however, including $38,509 for depreciation, $95,891 for interest payments, and $3503 for c ar expenses, the Father reported a net rental income of $71,787. The remainder o f the Father’s i

ncome included $1 2,847 from insuran ce sale s, $ 903 in interest, and $21,

074 in capital ga

ins. 101A01-9705-CH-00216, 1997 WL 672646, *3 (Tenn. Ct. App. Oct. 29, 1997) ( no perm. app. filed ) (observing tha

t “the guideline

s do not permit the tr

ial court to ignor

e capital gains

in calculating child support”).

In 1996, the Father reported a gross income of

only $5,192. That year, the Fa ther’s laundry and car wash business grossed $180,982 in receipts. After deductions, including $114,163 for depreciation, $19,662 for interest payments, and $3977 for car expenses, the Father reported a net business loss of

$54,940. The Father reported gross rental receipts of $245,687 and a net rental income of $58,064. Again, the Father took substantial business deductions, including $36,538 for depreciation, $93,270 for interest payments, and $3820 for car expenses. The Father a lso earned $1546 in interest in 1996.

The Father testifie

d that, in addition to

his $400 monthly

child support obligation, he currently was paying

$400 per month in pr

ivate school tuition

so that the parties’ son could attend the University

School of Jackson (U

SJ). The Father of

fered to pay

$800 per month in ch

ildsupport, plus $200 per month for one-half of the son’s USJ tuition, f

or a total monthly

obligation of $1000. The Father also testified that he had established a college fund for his son and that he contributed $100 per month to this fund. The Father took the position, however, that the Mother was not entitled to an additional incr

ease in child suppo

rt payments

because theFather’s financial circumstances had not changed substantially since the parties’ divorce in 1988.

Since the parties’ divorce, the Father had remarried. In addition to the parties’ son, the Father had two you

n ger sons by his second marriage. The F ather acknowledged that, in an October 1997 financial sta

tement, he reported a net worth of $4.1 million, which included assets of $5.7 million and liabilitie s of $1.6 million. The

Father also

acknowledged that he made significant monthly expenditures to support his current lifestyle, including a house payment of between $1700 and$1800, car payments totaling about $1550,and a boat payment totaling about $750 per month. The Father recently installed an in-ground swimming pool at his home

at a cost of $18,275, and he took all three of his sons on a trip to Disney World.

As previously indicated, at the trial’s conclusion, the trial court entered a judgment increasing the Father’s monthly child support obligation from $400 to $1200, order ing the F atherto contribute $300 per month to an edu cational trust

fund for the parties’ son, and ordering the Father to pay $2000 of the Mother’s attorney’ s fees. The trial court’s order indi cated that $200 of the Father’s $1200 monthly child support obligation was to pay for one-ha lf of the son’s private

school tuition. In explaining how it arrived at the $1200 support figure, the trial court stated that

[t]he [Father] agree

d to increase

his child support, and has, i

n fact, increased his supp ort to eight hundred dollars ($800.00) per month by paying the child’s private school tui tion. The [Fa the r] further agreed to pay

an additional two hundred dollars ($200.00) per month and one-half (1⁄2) of the private school tuition. Although the trial court increased the Father’s monthly child support obligation based

largely upon the Father’s agreement to pay more support, the court

specifically found that the Father’s financial condition had “changed

very little since the parties entered into a Marital Dissolution

Agreement” in 1988.
On appeal, the Mother presents the following issues for this court’s review:

I. Wh ether

the trial court erred in finding that a signifi can t variance did not e

xist. II. Whether

the trial court erred in its calcu l ation of [the Father ’s] n et income by allowing deduct

ions from gross income for depreciation, exce ssiv e business expense s, business losses, an

d property e

nhancement debt

. III. Whether

the tria l court e rred in ordering an increase in the educational trust fund when child suppo rt payments were inadequate. IV. Did

the trial court er

r in allowing tuitio

n payments a

s child support? V. Is [the Mother] entitled to an award for re

asonable attorney’s fees and expense

s, both at the trial l

evel and on this ap

peal?
I. The Significant V

ariance Test

In 1994, the GeneralAssemb ly change d the statutory

standard for modi

fying chil d support orders. See generally Turner v. Turner , 919 S.W.2d 340, 342-4 3 (Tenn. Ct. App. 1995). Prior to July 1, 1994, the

trial court could

decree an increase or decrease of an existing child support2 T.C.A. § 36-5-101(e) (1996).
3 To a large extent, the “significant variance” test has replaced the “ma terial change of circumstances” test. See Turner v. Turner , 919 S.W.2d 340, 342-43 (Tenn. Ct. App. 1995). Nevertheless, the amended statute appears to recognize that a material chang e of circumstances still may justify a modification of an existing child support award. I n addition to the significant variance test, the amended statute permits the trial court to modify an existing child support award if necessary “to provide for the child’s hea lth care needs.” T.C.A. § 36-5-101(a)(1) (1996). Moreover, we can envision other circumstances that might require a modification of child support. For example, the Child Support Guidelines recognize that an upward adjustment of support may

be justified by

other factors, s

uch as extraordina

ry educati onal expenses or le

ss than average

overnight visita

tion being exerci

sed by the ob

ligor parent. T

enn. Comp. R. & Reg

s. 1240-2-4-.02(5) (as revised in 1994). award “only upon a

showing of a su

bstantial a

nd material change of circumstances.” T.C.A. § 36-5-101(a)(1) (1991). Effective July 1, 1 994, t he legislature changed the sta

tutory stand

ard to provide that the trial court shall decree an increase or decrease of an exist ing child support award “whenthere is found to be a significant variance , as defined in the child support guidelines establishedby subsection

(e), 2 between the guidelines and the amount of support currently ordered.” T.C.A. § 36-5-101(a)(1) (1996) (footnote added). 3 As promulgated by the Departmen t of Human Services, the Child Su

pport Guidelines define a significant variance as fifteen percent (15%) or fifteendollars ($15.00), depending upon the amount of the current support order. See Tenn. Comp. R. & Regs. 1240-2-4-.02(3) (as revised in 1994). A significant variance shall be “at least 15% if the
cu rrent support is one hundr

ed dollars ($100. 00) or greate r per month and at l

east fifte e n dollars ($15.00) if the current support is less than $100.00 per month.” Id
.

Under this standard, if th

e trial court find

s a signific ant variance between the guidelines support amount and the current support amount, thecourt generally is required to modify the existing child support award by ordering the obligor to pay the guidelines amount. Once the trial
co urt determines the guidelines amount, which is based upon the obligor’s salary, a presumptio n arises that this amount is the corre ct amount to be awa rded. Tenn. Comp. R

. & Regs. 1240-2-4-.02(7) (as revised in 1994). If the evidence sufficiently re buts this presumption, the trial court may decline to award the guidelines amount. Id . In that event, however, “the court must make
a written or

specific findi ng that the application of the . . . guidelines would be unjust or inappropriate

in that particular case.” Id . Moreover, the court’s findings “must state the amount that would have been require d under the guidelines and include a justification for deviation from the guidelines which takes into c onsideration the b

est interest of the child.” Id . The trial court a lso maydecline to modify the amount, despite the existence of a significant variance, if the variance “resulted from a previously court-ordered deviation from the guidelines and the circumstances which caused the deviation have not changed.” T.C.A. § 36-5-101(a)(1) (1996).

In the pres ent case , we con clu de t hat the tri al c our t er red i n fai lin g to a ppl y th e significant

variancetest. In its order, the trial court found that the Father’s financial condition had changed very little since the partie

s entered into the

ir Marital Dissolution

Agreement (MD

A). This finding suggests

that the trial court was applying the “material change of circ umstances” test rather than the “sign if

icant variance” test. Although the trial court modified the Father’s child support obligation, the court a

ppare ntly did so bas

ed largely upon the Father’ s agreement to i ncrease his obligation.

We fur ther conclude tha t, if the trial cour

t had properly

applied the signi

f ican t variancetest, the court would ha ve found that a

significant variance existed between the guidelines amount and the Father’s current support obligation. At the time of the modification hearing, the Father’s support obligation was only $40 0 per month per the parties’ MDA. As explained in the following section of this opinion, we have det ermined that the F ather’s gross m

onthly income

is $14,358. Unde r the gui delines table in e ffect at the time

of the modificatio

n hearing, this g

ross monthly income figure t

ranslated into a mo

nthly child suppor

t obligation that was approximately five times the amountof the Father’s $400 support obligation. See Tenn. Comp. R. & Regs. 1240-2-4 (Table) (as revised in 1998). Inasmuch as the variance betwee n the guidelin

es amount and the Father’s $400 support obligation exceeded fifteen percent (15%), the trial court should have granted the Mother’s modification petition by ordering the Fat her to pay at leas

t the guidelines a

mount. Acco rdi ngly, we vacate the t rial court’s judg

ment and remand th

is case for the tr

ial court to determine the Father’s mod ified child suppor

t obligation under

the guidelines us

ing the gross monthly income figure of $14,358.

In urging this cou

rt to affirm the tr

ial court’s judg

ment in its entirety

, the Father poin

ts outthat the Mother was represented by competent counsel when she executed theMDA that settled all of the issues in the parties’ divorce, including the amount of child su

pport the Father was obligated to pay. We note, however, that, as a g eneral rule, a custodial parent may not waive her4 Section 36-5-101(h) provides that “[n]othing in this section shall be construed to prevent

the affirmation, ratification and incorporation in a decree of an agree ment between the parties as to support and maintenance of a party or as to child support.” T.C.A. § 36-5-101(h) (Supp. 1998). In exe cuting such an agreement, however, “t he parties m ust affirm atively acknow ledge that no action by the parties will be effective to reduce child support after the due date of each payment” a

nd, further, “tha

t they under

stand that court a

pproval must be obta

ined before chil

d support can be reduced, unless such payments are automatically reduced or terminated under the terms of the agreement.” Id
. minor child’s right

of support. See Cagle v. Davis , 1989 WL 44921, at *3 (Tenn. Ct. App. May 5, 1989), perm. app. denied (Tenn. Aug. 7, 1 989); s ee a lso Vickers v. Scin ta , No. 01A01-9507-CH-00281, 1995 WL 65688 1, at *2 (Tenn. Ct. App. Nov. 9, 1995) ( no perm. app. filed ); Barzizza v. Barzizza , No. 02A01-9110-CV-00246, 1992 WL 139862, at *6 (Tenn. Ct. App. June 2 3, 1992 ) ( no perm. app. filed ); Pera v. Peterson , 1990 WL 200582, at *2 (Tenn. Ct. App. Dec. 14, 1990) (no perm. app. filed ); State ex rel. Woody v. Morris , 1990 WL 2867, at *2 (Tenn. Ct. App. Jan. 19, 1990) ( no perm. app. filed ). Mo reover, we observe that, even if the Mother’s execution of the MDA could be construed as such a waiver, it di d no t meet the requirements of Tennessee Code Annotated section 36-5-101(h) (Supp. 1998). 4 See Dwight v. Dwight , 936 S.W.2d 945, 948 (Tenn. Ct. App. 1996).

II. Ded uctions from Fat her’s G ross Inc ome

The Child Sup port Guid elines permit the obligor, in computing income from selfemployment, to deduct reasonable expenses necessary to produce such income. See Tenn. Comp. R. & Regs. 1240-2-4- .03(3)(a) (as r evised in 1994) (providing that “[i]ncome from self-employment includes income from business operations and rental properties, etc., less reasonabl e expens es necessary to produce suchincome”). When a business deduction is challenged, the obligor has the burden of showing that the challeng ed deduction was a

reasonable expe

nse necessary

to produce his income. See Howard v. Howard , No. 03A01-9811-CV-0

0374, 1999 WL 427596, at *2 (Tenn. Ct
. App. June 25, 1999) ( no perm. app. filed ); accord Ely v. Ely , No. 03A0 1-9707-CH -00255, 19

98 WL 2510, at *4 (Tenn. Ct. App. Jan. 6, 1998), perm. app. denied (Tenn. May 26, 1998).

The Child Support Guidelines require the trial court, in determining the obl igor’ s income from self-employment, to disallow deductions for “[d

]epreciation, hom

e offices, excessive promotional,excessive travel , excessive car e

xpenses, or excessi

ve personal expenses” because,under

the guidelines , theseexpenses are not c onsidered reaso

nable. Tenn. Comp.

R. & Regs. 1240-2-4-.03(3)(a) (as revised in 1994). Citing this language of the guidelines, the Mother contends that, in computi ng t he Father’s g ross income, the trial court should have disallowed the Father’s deductions for “excessive” b usin ess expenses. Duri ng the modificat

ion hearing bel

ow, the only deductions challenged by the Mother were deductions for car expenses, interest payments, and depreciation. Accordingly, we will limit our rev iew to the specific deductions challenged by the Mother below. See Barnhill v. Barnhill , 826 S.W.2d 443, 458 (Tenn. Ct. App. 1991) (holding that appellant waives issue for pu rposes of appellate review by failing to raise such issue at tria l court level).

At

trial, the evidence showe

d that the Father

used four differ

ent vehicles for

business purposes, a 1998 GMC extended cab truck, a 1996 Ford Ranger, a 1998 Porsche Boxster, and a 1998 FordExpedition. The Father’s present wife drove the 1998 Ford Expedition, and the Father drove the other three vehi

cles. The Fathe

r explained that he

used the 1996 For

d Ranger and the

1998 GMC extended cab truck in his co mmercial real e

state rental busin

ess and his laundry

and car wash business. The Fa

ther also used the

Porsche for busin

ess purposes, and

he explained that,
[b]eing that I ’ve got other business interests, there are times when I need to be

in acar instead of a

truck. So I we

ar different ha

ts and different – I mean, it just depends on what I’m having to do.

The Father’s CPA def

ended this practi

ce, and he pointe

d out that he only alloca ted sixty percent (60%) of the Fa

ther’s car expen

ses as business

expenses whereas many

of the CPA’s client

s insisted on deducting be t ween seventy-five percent (75%) and ninety percent (90%) of their car expenses. In 1997 the F ather deducte d a total of $7006 in car expenses, and in 1996 he deducted $7797.

In light

of the foregoing evidence, we conclude that the trial court was not required to disallow the deductions for car expenses claimed by the Father on his tax returns . At trial, the Mother pre sented the testimony of a CPA who questioned why the Father ne eded to use three vehicles for a business that had no employees. Other than the question raised by the Mother’s CPA,however, the record contains no evidence that the Father’s use of several vehicles in his businesses

was unreasonable or that the car expenses he deducted were excessive. I na smuch as the only evidence on this issue consisted of the unrebutted explanations of the Father and his CPA, w e conclude that the Father met his burden of proving that the challenged expenses were r easonable.

We likewise conclude that the trial court was not required to disal low the Fath er’s deductions for interest pay ments made to banks . In 1996 the F ather deducted

interest pay

ments totaling $112,932, andin 1997 he deducted $136,666. On appe

al, the Mother con

tends that these deductions should be disallowed for the following reason:

The allowance or a deduction of investment inter

est would benefit

the obligor parent no w by re ducing his net income for the purposes of calculating support while building future wealth for the obligor that will become a debt-free asset when he is no longer pay ing s upport. If [the Father] is allowed to dedu ct his investment intere st it will significantly

reduce his oblig

ation to his child an

d continue to build future wealth and asset

s for [the Father

] that may nev

er benefit t

h e minor child.

In support of this arg

ument, the Mother c

ites Kimble v. Kimble , No. 02A01-9503-CV-00049, 1996 WL 445272 (Tenn. Ct. App. Aug. 8, 1996) ( no perm. app. filed ).

In Kimble , we werefaced with the issue of whether a capital expenditure constituted
a reasonable and necessary expense that was deductible from the obligor’s gross income from selfemployment. Kimble , 1 996 WL 445272, a t *2-*5. There, th

e husband purcha

sed $10,313 worth of office equipmen

t and deducted this

expense from his g

ross in c ome. Id ., at *2. On appeal, the wife contended

that the trial court should have disallowed the deduction for this capital expenditure, andshe pointed out that the husband also took a depreciation deduction for the same office equipment. Id
. In remanding the case for the trial court to reconsider this issue, we obse

rved that, inasmuch as “our own state legislature has not seen fit to e ither expressly exclude or authorize a deduction for capital ex pen ditures, we belie ve it within the sound

discretion of the

trial court to determine w hen and if expenditures of this type are ‘reasonable.’” Id ., at *5. Ci ting K amm v . Kamm , 616 N.E.2d 900 (Oh io 1993), we listed the factors for

the trial court to c

onsider in determining whether the deduction for capital expenditures was rea sonable. K imble , 1996 WL5 These factors included (1) the cost of the capital asset compared to the parent obligor’s gross income; (2) the cost of the capital asset compared to the net worth of the obligor’s business; (3) the existence of a past pattern of acquisition of c

apital assets as de

ductions agains

t gross income for child support calculations; (4) the proximity in time of the acquisition of the capital asset to the date of termination of the child support obligation; (5) analysis of the necessity of the capital asset to maintain or increase past or current levels of income as opposed to unnecessary, punitive or overly aggressive expansion of business; and (6) whether the asset is acquired from the current year’s inc ome or out of past y

ear(s)’ saving

s. Kimble , 1996 WL 445272, at *3.

6 An exception to this general rule may arise where the rec ord contains proof that the interest pay

ments are unrea

sonable or unnec

essary, suc

h as “where a pa

rent obtains unusua

lly short-term loans resulting in excessive short-time interest expenditures.” Zakrowski v. Zakrowski , 594 N.E.2d 821, 824 (Ind. Ct. App. 1992). No such evidence appears in the present 445272, at *3, *5. 5

We believe that the Mother’s reliance upon the Kimble decision is misplaced. Rather than challenging deductions for certain capital expenditures, the Mother is challenging deductions for interest payments that the Father made to various banks relative to capital expenditures. In our view, interest pay

ments should

be distinguished f

rom their associa

ted capital expend

itures. Inter

est is “the compensation allowed by law or fixed by the parties for the

use or forbearance or detention of money.” Black’s Law Dictiona ry 729 (5th ed. 1979); see also Pac ific E. Corp. v. Gulf Life HoldingCo. , 902 S.W.2d 946, 960 (Tenn. Ct. App. 1995). In contrast, a capital expenditure is the acquisition cost of a capital asset. Kimble , 1996 WL 445272, a

t *3. We are not convinced

that the argument made in Kimble relative to capit al expendit

ures can be applied to the interest paid on money borro

wed to acquire su

ch capital.

Courts from other

jurisdictions also have distinguishedbetween capital expenditures andtheir associated interest payments in computing a childsupport obligor’s gross income from selfemployment.

These courts recognize that trial courts, in their discretion, may disallow deductions for capital expenditures and principal payments because such expenditures and p

ayments contribute to the obligor’s net worth. In contrast, interest expenses generally constitute reasonable and necessary business expenses because they represent out-of-pocket expenses that are never recouped by the obligor. 6 See Zakrowski v. Zakrowski , 594 N.E.2d 821, 824 (Ind. Ct. App. 1992); Douglas-case.

Hill v. Hill , 1 S.W.3d 613, 617-18 ( Mo. Ct. App. 1999); In re Marriage o f Nik olaisen , 847 P.2d 287, 292 (Mont. 1993); Barham v. Barham , 487 S.E.2d 774, 778 (N.C. Ct. App. 1997), aff’d , 494 S.E.2d 763 (N.C. 199 8); Lawrence v. Tise , 419 S.E.2d 176, 182 ( N.C. Ct. App. 1992); Fleenor v. F lee nor , ___ P.2d ___, 1999 WL 1125189, at *3-*5 (

Wyo. 1999). I

n accordance w

ith these authorities,

we hold that the tri

al court was not re

quired to include t

he amount o f these interest payments in the Father’s gross income.

On the other hand, we a gree with the Mother’s contention that, in computing the Father’s gross income for purposes of determining his presumptive child support

obligation, the trial court should not have allowed deductions for depreciation. The Child Support Guidelines expressly provide that depreciatio

n is not a reasonab

le expense. Tenn. C

omp. R. & Regs. 1240-2-4-.03(3)(a) (as revised in

1994). In computing

the Father’s gross income, therefore, the trial court was required to disallow any deductionsfor depreciation. See Ely v. Ely , No. 03A01 -9707-CH -00255, 19

98 WL 2510, at *4 (Tenn. Ct. App. Jan. 6, 1998), perm. app. denied (Tenn. May 26, 1998); Burchfield v. Nave , No. 03A01-9308-JV-00271, 1994 WL 13374, at *3-*4 (Tenn. Ct. App. Jan. 21, 1994), perm. app. denied (Tenn. May 9, 1994); accord Sandusky v. Sandusky , No. 01A01-9808-CH-00416, 1999 WL 734531, at *5 (Tenn. Ct. App. Sept. 22, 1999) ( no perm. app. filed ); McGaffic v. McG affic , No. 03A01-9707-CV-00286, 1997 WL 772899, at *4 n.1 (Tenn. Ct. App. Dec. 9, 1997) ( no perm. app. filed ); Hall v. Hall , No. 03A0 1-9701-G S-00030, 1 997 WL

404258, at *2 (Tenn. Ct. App. July 21, 1997) ( no perm. app. filed ); Craft v. Craft , No. 01A01-9609-CH-00417, 1997 WL 122809, at *2-*3 (Tenn. Ct. App . Mar. 19, 1 997) ( no perm. app. filed ); Kimble v. Kimble , No. 02A01-9503-CV-00049, 1996 WL 445272, at *2 (Tenn. Ct. App. Aug. 8, 1996) ( no perm. app. filed ).

At

trial, the eviden

ce of the Fathe

r’s income from se

lf-employme

nt focused on the tax years 1996

and 1997. In 19

96, the Father r

eported a gros s income of $5,192. In calculating this amount, however, the Father’s accountant deducted dep reciation expenses totaling $150,701. Sim ila rly, in 1997 the Father repo rted a gross income of $56,702. In calculating this amount, the Father’s accountant deducted depreciation expenses totaling $131,987. If the dedu ctio ns for7 The guidelines require the trial court to establish an initial support award by using the

obligor’s aver

age income ove

r the previous two

years. Te

nn. Comp. R. & Regs
. 1240-2-4-.04(1)(e) (as revised in 1997). In the present case , the trial court was modifying, rather than establ ishing, an i nitial su pport award . In our view, h owever, usi ng the Father’ s average gross income for the previous two years is appropriate in this case be cause the present action appears to be the first time that the Father’s child support obligation has been established under the guidelines and, further, because the Father’s income from self-employ ment varies from year to year. See Stacey v. Stacey , No. 02A01-9802- CV-00050, 1999 WL

1097975, at *4 (Te

nn. Ct. App. Oct. 6, 1999) ( no perm. app. filed ). depreciationare disallowed, the Father’s g

ross income

for 1996 was actually $1 55,893, and his gr oss income for 1997 was $188, 689, for an average annual income of $172,291. 7 Thus, the trial court should have used a gro

ss monthly inc

ome figure of $14,3 58 to compute the amount of the Father’s child support obligation.
III. Payments to Educatio nal Trust Fund
In its judgmen

t, the trial court ordered the Father to pay $300 per month toward an educational trust

fund that he had established for the parties’ minor son. The ordered amount was $200 mor e th an t he $ 100 mon thl y obl igat ion vol unt ari ly as sum ed b y the Fath er. On appeal, the Mother contends that the tri al court erred in ordering th e Fa ther to increase his payments to the educational trust fund because the guidelines provision permitting the establishment of such a fund applies only in situations where the obligor’s net income exceeds $10,000.

We agree. The

Child Support Guidelines contain the following provision relative to requiring an obligor parent to make payments to an educ ational trust fund:

The court must consider all net income of the obligor as define d according to 1240-2-4-.03 of this rule. The cou

rt must o rde r child support based upon t he appropri ate percenta ge to the custodial parent up to a net $10,000 per month of the obligor’s income. When the net income of the obligor exceeds $10,000 per month, t he courtmay consider a downward devia

tio n fr om the guidelines if the obligor demonstrates that the percentage applied to t he excess of the net income above $10,000 a mo

nthexceeds a reasonable amount of child support based upon the best

interest of the child and the circumstance of the parties. The court may req ui re that sums paid above the percentage applied to the netincome above $10,000 be placed in aneducational or other tr ust fund for the benef

it of the child
. Tenn. Comp. R. & Regs. 1240-2-4-.04(3) (as revised in 1997) (emphasis added).

Citing this provisio

n, this court rece

ntly held that “the guidelines provide only that the portion of child sup

port attributable

to [the obligor’s] net

income over $10,0

00 per month

may be paid into an educational trust.” Barnett v. Barnett , No. 03A01-9709-CH-00414, 1999 WL 64269, at *5 (Te nn. Ct. App. Feb. 1, 1999), perm. app. granted (Tenn. June 21, 1999). Thus, the guidelines’ provision relating to educational trust funds does not apply unles s the oblig or’s net monthly income exceeds $10,000.

In the pres ent case, we hav e determined tha

t the Father’s g

ross monthly in

come is $14,358. Under the guide lines table in eff

ect at the time

of the modi fication h earing, the Father’s gross monthly income translated into a net income of less than$10,000 per month. See Tenn. Comp. R. & Regs. 1240-2-

4 (Table) (as re

vise d in 1998) . Accordingly, we conclude that the guidelines provision relating to educational trust funds did not apply in this case and that the trial court erred in ordering the Father to pay $300 per month toward such a f und.

IV. Private Scho

ol Tuition Payments

We lik ewise ag ree with the Mother’s argument that any private school tuition payments made by the F

ather should not re

duce the amount he

is ordered to pay

under the Child SupportGuidelines. Inasmuch as the percentage amounts contained therein are minimums only, the Child Support Guidelines permit the trial court to increase a child support award in cases where the minor child has extraordinary educational expenses or

extraordinary medical expenses that are not covered by insu rance . In that event, the guidelines provide that extraordinary educational or medical expenses “shall be added” to the guidelines amount. Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(c) (as revised in 1997).

Under the guidelines, t

he payment of privat e school tuition may justify an upward devi ation from the guidelines a mount. This court ha

s held, however,

that paymen

ts for privateschool tuition should not “be incorporated into the percentage of the obligor’s income paid as

support under the Guidelines.” Dwight v. Dwight, 936 S.W.2d 945, 950 n.2 (Tenn. Ct. App. 1996).

A t trial, the Father testified that, prior to their son’s fifth grade yea r, the parties discussed sending him to private school. During this conversation, the Father expressed his opinion that the son “needs to go to USJ,” referring to the University School of Jackson. When the Mother indicatedthat she could not afford to send the son to USJ, the Father agre ed to pay the son’ s private
s cho ol tuition of approximat ely $400 per

month. At least one o

f the Father’s c

hildren from his second marriage also attended USJ.

Under these circumstan

ces, we conclud

e that the trial court s hould have added an appropria te amount to the guidelines percentage to account for the extraordinary education al expens e of the parties’ son. See Barnett v. Barnett , No. 03A01-9709-CH-00414, 1999 WL 64269, at *5 (Ten n. Ct. App. Feb. 1, 1999), perm. app. granted (Tenn. June 21, 1999

). Accordingly

, upo n remand, the trial court sha ll order the Fathe

r to pay, in addition to the guidelines amount, the son’s privat e schoo l tuitio n at USJ.
V. Attorney’s Fees

At the trial’s conclusion, the Mother’s counsel submitted a bi ll indicating that the Mother had incurred $13 ,729.11 in attorne y’s fees in connection with

this modificat ion proceed ing. In its judgment, the trial court ordered the Father to pay $2000 to the Mother

“to be applied to her legal expenses.” On a

ppeal, the Mother contends that she is entitled to an additional award of attorney’s fees, both at the trial level and on appeal.

The Mother’s request for attorney’s fees was g overned by Tenne ssee Code An notated section 36-5-103(c), which provides that

[t]he plaintiff spouse

may recover from the defendant spouse, andthe spouse or other person to whom the custody of the child, or children, is awarded may recov er from the other

spouse reasonab

le attorney fee s inc urred in enforcing any decree f or alimony and/or child support, or in regard to any suit or action concerning theadjudication of the custody or the change 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 procee

din g is pending, in the discretion of suc

h court.
T.C.A. § 36-5-103(c) (Supp. 1998).

The language of this statute is sufficiently broad to authorize an awar d of attorney’s fees in child support modification pr oceedings. See Ford v. Ford , No. 01A01-9611-CV-00536, 1998 WL 730201, at *6 (Tenn. Ct. App. Oct. 21, 1998) ( no perm. app. filed ). When the custodial parent successfull

y purs ues a petition to modify child support, the trial court generally allows the custodial parent to

recover her legal expenses if these expenses are reasonable and appropriate. Id
. This interpretation of

the statute is

consistent with prior

decisions of this court, which recognize “the right of the custodial parent to bring suit to enforce the children’s right of support and to recover reasonable

attorney’s fees from the obligor spouse.” Silverstein v. Silverstein , 1987 WL 18376, at *5 (Tenn. Ct. App. Oct. 1 4, 1987) (ci ting Graham v. Graham , 204 S.W. 987, 989 (Tenn. 1918) ) , perm. app. denied

(Tenn. Feb. 1, 1988).

Under this statute, however, the prevailing party is no t necessarily entitled t o an award of attorney’s fees. Deas v. Deas , 774 S.W.2d 16 7, 170 (Tenn . 1989). Ra ther, the l anguage of the statute indicates that such an award lies within the discretion of the trial court. T.C.A. § 36-5-103(c) (Supp. 1998).

In the present case, we co nclude that th e trial court did no

t abuse its discret

ion in awarding the Mother only a portion of her attorney’s fees. We note that the Mother’s counsel did notattempt to prove the

se fees either th

rough the testimo

ny of her c

lient or by a

ffidavit . Ins tead, counsel merely submitted her bill as an exhibit at the trial’s conclusion. Moreover, although the Mother contended that the large attorn ey’s fee was necessitated by the complicated nature of the Father’s busines s practice s, we believe that the trial court still may have questioned the reasonablenes s of the $13,729.11 fee requested in this case. In light of the sparsity

of the Mother’s proof on this issue, we cannot say that the trial cour

t abused its

discretion in awarding the Mother only $2000 in a

ttorney’s f

ees.We agree, however, with the Mother’s contention that she is entitled to an additional attorney’sfee award on appeal. Accordingly, on r emand, the trial court shall award theMother her reasonable atto

rney’s fe es incurred on thi

s appeal.

The trial court’s judgment is vacated, and

this cause is rema

nded for the cour

t (1) to determine the Father’s child support obligation using the Father’s average gross monthly inc ome of $14,358, (2) to order the F ather to pay

the son’s private

school tuition, (3) to award the Mother her reasonable

attorney’s fees incurred on this appeal, and for any other necessary proceeding s consisten t withthis opinion. Costs of this appeal are taxed to Defendant/Appellee Max Lane Norton,for which
exe cut ion may i ssu e if nece ssa ry.

___________________________________ FARMER

, J.

______________________________ HIGH ERS, J.

______________________________ LIL LARD, J.