# FILED
July 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT NASHVILLE

ROZANNE F. WRIGHT ) (FOLK-SCHMIDT), ) ) Plaintiff/Appellant, ) Davidson Circu it No. 85D-3523 ) VS. ) Appeal No . 01A01-9708-CV- 00413 ) JAN H. SCHMIDT, ) ) Defendant/Appellee. )
APPEAL FROM

THE CIRCUI T COURT OF D AVIDSON CO UNTY AT NASHVILLE, TENNESSEE THE HONORABLE MURIEL RO BINSON, JUDGE

ROBERT A. A

NDERSON Nashville, Tennessee Attorney for Appellant

PHILIP E. SMITH Nashville, Tennessee Attorney for Appellee

AFFIRMED IN PART, REVERSED IN PA RT AND REMA

NDED

ALAN E. HIGHERS, J.

CONCUR:2

W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J. This is an appeal from a post-div orce non-jury hearing

on an Amended Petition to Increase Support and for Contempt and on an Amended Counter Petition for sol e custody of Jacqueline Schmidt (“J acqueline”), the only child of the parti es. Plaintiff/Appellant, Rozanne F. Wright (“Wright”), appeals the judgment of the trial court awar ding her attorney’s fees in the amount of $3,000; failing to aw ard her costs

of depositionsincurred because of defendan t/appellee’s, Jan H. Schmidt (“Schmidt”), counter claim for sole custody that was dro pped before proof was taken at tri al; failing to requir e Schmidt to reimburse her for sums spe nt in procuring spe cial education for Jacqu eline prior to the November

20, 1996, hearing; failing to deviate upwards from the c hild support guidelines in awarding an increase in support; and allowi ng Schmidt to pay instal lment payments on backsupport judgment award. For r easons st ated her einaft er, we affirm the judgment of the trial court in part and reverse in part.

The parties were div

orced on July 21, 1986. There w as one child of this marriag e, Jacqueline. At the time of the divorce, Jacqueline was sixte en months old. The Final Decree provided, inter

alia , that Wright was granted an absolut e divorce from Schmidt, that Wright was awarded sole custody of Jacqueline, that Schmidt w as to pay $325 per month in child support payable at $162.50 on the 1st and 15th of each month, that Schmidt was to obtain and maintain health insur ance on Jacqueline and p ay one h alf of Jacqueline’s medical expenses not covered by insurance, that Schmidt w as to m ake and maintain Jacquelineas sole beneficiary of all life insurance that wasin effect on his life until Jacquelinereached the age of 18 or gradu ated from high school, and that Schmidtwas to pay Wright $4,296.13 which was one half of the outstanding debt incurred by the par ties fortheir mutual benefit during the marriage. There is evidence as to a p rivate agreement entered into by Wright and Schmidt on August 15, 1987, whereby Schmidt was to pay Wright a lump sum of $4,500 on or before August 21, 1987, in order to constitute payment for various monies that Schmidt had been unable to pay prior to s aid agreement. In any event, the private agreement stated that it would be void if Schmidtdid not pay the amount1 See 34 C.F.R. § 300.343; Tenn. Code Ann. § 49- 10-103(a) 3 by August 27, 1987.

In April of 199 4 when J acqueline was in thi rd grade, she was st ate certified as learning disabled in word reco gnition and written e

xpression

skills. I n May of that

same year, Wright secured the services of Dr. Lois Degler to ev aluate what type of educationa l support was needed to assist w ith Jacqueline’s lear

ning disability. Degler tutored Jacquelinetwice a week in order to advance her reading and word recognition skills. Degler continued to tutor Jacquel ine until May of 1995. Degler charge

d $40 per

hour for the tutoring sessions w ith Jacqueline.

The Metropolitan Davids on County

School System (“Metro”) is required to conduct
a meeting which is composed of an “M-Team.” 1 This M-Team is composed of individuals who evaluat e the educational needs of a particular child and suggest a pl an whereby to obtain the appropriate education for the child with special education al needs. Degler accompanied Wright to this M-Team meeti ng. Metro sought an ev aluation report on Jacquelineto define her educational difficul ties. This aided in the formulation of an educational plan for Jacqueline that would be appropriate for her speci fic educa tional needs. The evaluation revealed that Jacqueline was learning disab led in the areas of basic word recognition and written expressi on skills.

In consulting this evaluation, the M-Team proposed that Jacqueline be enro lled in
a special one hour writing progra m three time s a week. In order to do this, Jacqueline would have to be absent during a portion of her reading cla ss. Degler

consulted with Wright and advised her that this proposal would not be accep table. The M-Team offered forsomeone to work with Jacqueline on reading sk ills at som e other po int durin g the day, but Degler once again adv ised Wright against this proposal stating that she felt it was not acceptable. Degler was of the opini on that one-on-one instructio n was appropriate giv en Jacqueline’s particul ar difficulties.4

As a result of this m eeting a nd of the M-Team’s “unacceptable” pr oposal, Wright enrolled Jacqueline in Montessor i Academy in the fall of 1994. Degler continued to tutor Jacquelinethroughout the entiret y of this time. Although Wright and Deg ler felt that Montessori Academy was an improvement, they did not believe it to be the optimal choice of education for Jacqu eline. Co nsequen tly, in March of 1995, Wright enrolled Jacq ueline at Benton Hall School. Benton H all is a private sc hool that specializes

in teaching children with special education needs. The tuition at Benton Hall was $6,000 per year. Mrs. Ritchie Purcell, the principal of the elementary school at Benton Hall, testified via deposition. She stated that Benton Hall was the optimal education for Jacqu eline.

While at B enton Hall, a battery of tests was performed on Jacqueline much like those performed on her by the Metro politan DavidsonCounty School System. Jacqueline
was 11.5 years old at the time of testing. The test scores revealed that Jacqueline’s only learning disability at this ti me was in her basic re ading s kills. Every other aspect of Jacqueline’s testing fell withi n the sta ndard ran ge for chi ldren her age. Addi tionally, Jacqueline’s report

at Bento n Hall S chool r evealed that sh e is per fo rming well i n her studies.
Wright filed a petition to increase chi ld support and for contempt onMarch 2, 1994. In the p etition, Wright alleged, inter alia , that Schmidt had not paid chil d support as ordered, that

he had failed to provide medica l insurance, and that he should be enjoined and restrained from removing Jacqueli ne from the state of Tennessee. At the time, there was a motion for

permission to take Jacque line out of the state of Tennessee filed on or about June 17, 1994. Pursuant to the Order of June 24, 1994, the tri al court entered an order setting certain visitation, as well as modifying the restraining order whic h enj oined
a nd restrained Schmidt from remov ing Jacqueline from Tennessee. An answer to t h e petition to incr

ease chi ld suppo rt and fo r contem pt and co unter pe tition fo r joint custody
was filed on October 19, 1994. Thereafter, on September 21, 1994, anagreed order was approved for a temporary i nterim increase in chil d support.5

A n amende d petition to increase suppor t and for contempt was filed on M ay 3, 1995. Schmidtfiled an amended supplemental count er-petition on May 17, 1996, wherein he sought sole custody of Jac queline. Wright filed a n answer tothis amended counter petition on September 6, 1996. There was al so a motion to require Schmi dt to payonehalf of the extraordinary edu cational expenses incurred due to the alleged special needs of the child filed on November 8, 1996.

The trial of this matter was set for November 20, 1996. At this hearing, Schmidt reneged on his pe tition fo r sole custody and oral ly amended the petition to be one requestin g extende d visitation. Although the trial was not completed, the trial court intended to take proof the following day on November

21, 1996. The trial court, however, did not hear the conclusion of the case until Mar ch 26, 1997. Pursuant to the amended order, the trial court specific ally found that the appropriat e amount of child support based upon Schmidt’s gross income was $513 per month. The trial court further order ed 21% of any and all bonuses, after taxes, paid to Schmidt to be paid to W right as reasonable child support. Additionally, the cour t found Schmidt in willful c ontempt, butfound that because of the mitigating circumstances in the cause, Schmidt should not be sentenced to jail. The court awarded Wright child support ar rearages i n the amount of $12,858.33 with 12% inte rest to be paid out in monthly ins tallments of $128.58. The court further found that Wright should be awarded $645.05 for funds not reimbursed toward the medi cal premiums. Wright was also awarded a j udgment for reasonable attorney ’s fees in th e amoun t of $3,000.
The parties raised the follow ing issues for revi ew by this Court: 1. Whether the trial court abused its dis cretion in limiting its award of reasonable attorney’s fees to $3,000 in this litig ation. 2. Whether the trial court abused its discret ion in failing to awa rd plaintiff any discretionar y costs under Tenn. R. Ci v. P

. 54.04. 3. Whether the trial court erred in failing to award plaintiff any reimbursement

for th e s ums for educational expenses expended by her prior to the final hea ri ng on November 20, 1996.6 4. Whether the trial court erred in fail ing to award an upward deviation from the child support guidel ines because of the private educatio nal exp enses that plaintiff incurred for the parties’ child. 5. Whethe r the trial court err ed in gr anting defendant the opportunity

to pay the child su pport arrearages in monthly installments.
Attorney ’s Fees Tenn. Code Ann. § 36-5-103(c) provides: (c) The plaintiff spouse may recover from the defendan t spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recov er from the other spouse reasonable attorney fees incu rred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adj udication of the custody or the change of custody

of any child, or childr

en, of the parties, both upon the original divor ce hea ri ng and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom s uch action or proceeding i s pending, in the discretion of such court.

There is no absolute right to attorney’s f ees, but the award of attorney’s fees in custody and support proceedings is familiar and almost commonplace. See Deas v. Deas , 774 S.W.2d 167, 170 (Tenn. 1989). The trial court has a wide discretion

in the award of attorney’s fees tha t will not be modified ex cept upon a finding of an abuse of discr etion. Sherrod v. Wix , 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992).
Considering the unchalle nged affidavit submitted by counsel for Wright, an inordinate amount of time was spent by Wright’s counsel in thi s action not only enforcing
a decree of child support previously ordered by the court but a lso in preparing for litigation over Schmidt’s amended counter petition for sole cus tody filed with the cour

t on May 17, 1996. Wright’s counsel testified via affidavit that he spent app roximately 55 hours in defending Schmidt’s counter-petition and approximately 26 hours in prosecuting W right’s case. He further testified that his rate of pay was $200 per hour for a total of $16,340 in attorney’s fees. Apparently, many of the hours expended by W right’s counsel were in preparation for litigation of the custody issue in Schmidt’s counter petition and in enforcing the child support award pr eviously issued by

the trial court. Considering the total amount7

of time spent eith er defending Schmidt’s sole custo dy counter-petition or prosecuting Wright’s claims for arreara g es and increases in child support and in light of Tenn. C ode Ann. § 36-5-103(c), it is unclear whether or not Wright was sufficiently compensa ted for attorney’s fees necessitate d by Schmidt. Consequently, we reverse the judgment of the trial court awarding Wright $3,000 i n attorney’s fees and reman d this case for further proceedings necessary in determining appropriate attorney’s fees.
Discretionary Costs Wright contends that the Tria l Court e rred in denying her motion for discretionary costs for the deposit io ns taken in preparation for Schmidt’s counter petition f or sole custody. Costs were requested pursuant to Tennessee Rules of Civil Procedure 54.0 4. After re vie wing Wright’s request for s aid discretionary co

sts, the trial court deni ed the motion. The awardin g of such costs is a matter within the sound discr etion of the trial court. Lock v. National Union Fire Ins. , 809 S.W.2d 483 (Tenn.1991). There is no evidence in the record t o indicate the trial judg e abused her discretion.

Past and Future Educat ional Expenses Concerning the issue of past, present, and future p rivate edu cationa l expense s, we are reviewing a finding of fact by the trial court. As such, we must conduct our review de
novo upon the recor d, accom panied b y a presumption of correctness of the findi ng of the trial judge. Reversal is only a possibility if the

evidence preponderates ag ainst the finding of the trial judge or if the trial judge has committed an error of law. Tenn. R. App. P. 13(d).

In the case under submission, Wright contends that the trial court erred by not ordering Schmidtto reimburse Wright for the monies expend ed for private education costs prior to the November 20, 1996, hearing and in refusing to deviate upward from the child suppo rt guidelines in order t o allow for present and future private education cos ts. W e disagree.

The M-Team consisted of Shirley Cl aridge, the school psy chologist; the princi pal of2 Verbal IQ = 99; performance IQ = 102; ful l scale I Q = 100. 3 $12 8.58 mo nthly. 8 the school; and two of Jacqueline’s teachers. There was simply a di sagreement between Wright’s expert, Dr. Degl er, and the M-Team con cerning h ow to address Jacqueline’s learning disability in word recognition an d written language.Based upon the evidence in the record, Jacqueline’s intelligence quotient (IQ) at her fir st testing at

the age of nine was 111 for verbal IQ, 99 for per form ance IQ, and 106 for the full scale I Q. This places Jacquelinein the 66% percentile and w ell within the aver

age range f or children her age. Thereafter, when Jacqueline was eleven years and six months old, she was retested w ith the identical IQ test. Her performance and scores were very similar to those obtained at her first testing. 2 Additionally, we note that Jacqueline’s report card is quiet impressive and replete with mostly

A’s and B’s. We find that Jacqueline is a bright child who simply has moderate difficulty with word recognition. After a review of the evidence in its entirety, it is the opinion of this court that Jacquelin e’s word recognition difficulties did not merit extraordinaryeducati ona l expenses in the past and do not merit such expenses at the present time. The trial cour t found that Jacqueline’s educational difficulties did not meet the standard for “extraordinary educational needs” and thereby refused to order Schmidt to partially pay for pas t, present, a nd/or future private education. W e agree and affirm accordingly.
Installment Payments At trial, the trial judg e allowed Schmidt to make pay ment on his $12,858.33 in child support arrearag es via monthly instal lment payments that were the equivalent of the interest that would accrue on such an amount. 3 While this conclusion is q uite logical and sensible, it does not follow the statutes or case law of this state.

The Tennessee Supreme Court handed dow n an opinion in Harrington v. Harrington , 759 S. W.2d 664 (Tenn. 1988), that precisely confronted this issue of installment

payments for child support a rrearage awards. That Court properly point ed out that Tenn. Code Ann. § 26-2-216(a)(1) deals directl y with in stallment payments for9

monetary awards. Tenn. Code Ann. § 26-2-216(a)(1) provides:

(a)(1) After any

judgmenthas been rendered in any cour t and t he time to appeal therefrom has elapsed without such a n appeal having been ma de, the judge of the court which rendered the judgment

may, either before or after the issuance and service of garnishment,upon written consent of the parties or upon written motion of the judg ment debtor, after due notice and after full hearingof such motion, enter an order requiri ng such judgment debtor to pay to the clerk of the court a certain sum of money

weekly, biweekly or monthly to apply upon such judgment. The filing of such motion by the deb tor shall stay the issuance, execution or return of any writ of garnis hment against wages or salary due the judgment debtor or any other funds belonging to the judgment debtor sought to be substituted to the sat isfacti on or payment of or upon such judgmentduring the period that suc h judg m ent debtor complies with the order of th e co urt. Such motion of the judgment debtor shall be supported by

an affidavit stating his inability to pay such debt with funds other than tho se ear ned by h im as wages or salar y, or received from othe r sou rces i n such amounts as to necessitate or make equitable installment paymen ts, the name and address of his employer, or othe r source of funds and amount of such wages or salary , and the date of pa

yment t hereof.

This proce dure was obviously not followed in the present case. From thei r inception, these statutes have requ ired that a motion to pay a judgment in installments be filed and considered by the trial judge only after the judgment against the debtor has becom e final. Harrington v. Harrin gton , 759 S.W.2d at 667. Such a motion cann ot b e heard by the trial judge unless it is supported by an affidavit of the debtor stating his inability to pay with monies ex

cept for those “earned by him as wages or salary, or received from other sources in such amounts as to necessitate or make equitable in stallm ent payments.”Tenn. Code Ann. § 26-2-216(a)(1) (Supp. 1997). When considering a motion for installmen t payments, the trial cour t should consider all the c ircumstances of both parties, as well as the amount of the j udgment, other debts owed by and judgments against the debto r, t he amount of wages earned by the debtor, other funds receiv able by the debtor, and the exemptions gr anted by the statutes. Id. at 668.

In the case before us, at the request of counsel for Schmidt, the trial court ordered installment

payments on the $12,858.33 child support arrearag e judgment during the very hearing at which the trial court awar ded an arrearage judgment for this sum. The judgment10

had not become final. The written consent of the parties was n ever secured. There wa s no written motion on this matt er. No affidavit was s ubmitted by Schmidt that met th e requirements

of Tenn. Code Ann. § 26-2-216(a)(1) as seen in Harrington . There was no consideration of the financial circumstances of Sc hmidt or Wright. No hearing on such a motion was ever conducted. The requirements of Tenn. Code Ann. § 26- 2-216(a)(1) and Harrington

seem to have been ignored. Additionally, it appear s on the face of the record that the installment payments set by the trial court are enti rely too low in that the judgment
can never be effectively di scharged or evenreasonably reduced. It further appears that the meager installment proceedings were irregularly conducted. As such, we feel justified, in our discretion, in reve rsing the judgment of the trial court on this issue. Accordingly, in light of Harrington and Ten n. Code An n. § 26-2- 216(a)(1 ), we reverse the decision of the tr ial cour t granting Schmidt the r ight to pay his chil d support arrearages in installment payments and rema nd to the t rial court for consideration of this issue pursuant to the appropriate procedure.

The judgment of the trial court is affirmed in part, reversedin part, and remanded. Costs of this appeal are assessed eq ually between JanSchmidt and Rozanne Wright, for which execu tion may is sue if ne cessary. HIGHERS, J. CONCUR:
CRAWFORD, P.J., W.S.

FARMER, J.11