Exerpts of Opinion of The Court of Appeals of Tennessee at Nashville

Appeal Court Vacates Upward Deviation for Extraordinary Expenses

The trial court did not include “written findings of fact stating...[t]he reasons for the change or deviation from the presumptive amount of child support” in either its order or in the Parenting Plan, as required by the regulations. Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(c). In addition, the evidence submitted by Mother “quantified” the baseball expenses incurred as $322.96, rather than the $935 per year as found by the trial court. Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d) and (2)(d)(2)(i). Upon a review of the record, we cannot find any evidence to support the 15 trial court’s finding that the baseball expenses were $935 per year, other than Mother’s testimony, which was contrary to the documentary evidence of the expenditures she filed. While a deviation from a presumptive child support obligation is within a trial court’s discretion, it can only be applied if the deviation is in compliance with the regulations and is properly supported by the evidence, which this was not. Consequently, we vacate the upward deviation for the extraordinary expenses. (emphasis added)

Appeal Court Vacates Award of Attorney's Fees

(Trial Court Stated) So, yes, I’m amending [the previous order]. I’m granting her $5,000.

While we are mindful of the deference this court is to give trial courts in awarding or denying fees in accordance with the statute, we are unable to discern any basis for the trial court’s decision to make an award to Mother after having previously denied same. To the extent the award was for services rendered relative to Father’s motion to amend the April 1 order, there is no proof of the amount of fees incurred by Mother in responding to the motion and attending the hearing. Moreover,
we have determined that Father’s initiation of the proceeding which is the subject of this appeal was not unwarranted. Accordingly, we vacate the award of attorney’s fees to Mother."(Emphasis added)

Appeal Court Vacates Monetary Judgment Award

The record does not show that, relative to the child’s automobile, Father violated any order or command of the court or was in wilful disobedience to its orders; consequently, there was no basis upon which to hold him in contempt of court. Consequently, the trial court’s finding of contempt, to the extent it is based on matters related to the oldest child’s automobile, is reversed and the
monetary judgment awarded Mother vacated. (emphasis added)

Full Opinion Below

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
July 10, 2009 Session
KIMBERLY RENEA SMITH v. STEPHEN WARD SMITH, SR.
Appeal from the Circuit Court for Wilson County
No. 4743DVC Clara Byrd, Judge
No. M2008-01589-COA-R3-CV - Filed September 2, 2009
Father filed a Petition to Modify Visitation and Child Support based upon a change in circumstances;
Mother filed a Counter-Petition for Criminal Contempt based on Father’s failure to comply with aspects of the Final Decree of Divorce. Father appeals the trial court’s application of an upward deviation to his modified child support obligation; order to obtain and provide health insurance for a minor child; failure to order Mother to obtain a life insurance policy for the benefit of the minor
child; monetary award to Mother for reimbursement of child’s contribution to the purchase of an automobile; failure to apply his modified child support obligation retroactively; award of attorneys’ fees to Mother; and denial of a post-trial petition for modification to further reduce his child support obligation based on post-trial changes in circumstances. Finding that the trial court erred in applying
an upward deviation to Father’s modified child support obligation, in awarding Mother a monetary judgment for child’s contribution to the purchase of an automobile and in awarding Mother attorneys’ fees, the judgment is reversed. The judgment denying Father’s post-trial petition for modification is vacated and the case remanded for further hearing thereon. The trial court’s judgment is affirmed in all other respects. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed in Part, Reversed in Part, Vacated in Part and Remanded
RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR. and
ANDY D. BENNETT, JJ., joined.
Paula Ogle Blair, Nashville, Tennessee, for the appellant, Stephen Ward Smith, Sr.
Brenda Rhoton Clark, Nashville, Tennessee, for the appellee, Kimberly Renea Smith.
OPINION
I. Procedural and Factual History
On December 5, 1989, Kimberly Renea Smith (“Mother”), who was not married at the time,
gave birth to her first child. When Mother was 8 months pregnant with her first child, she told
Stephen Ward Smith (“Father”) that he was the father of the child. Mother and Father were 1 e married
on July 20, 1991, and Mother gave birth to a second child on May 16, 1994.
On July 20, 2004, Mother filed a petition for divorce. On November 5, 2004, the trial court
entered a Final Decree of Divorce, incorporating a Marital Dissolution Agreement and a Parenting Plan, which contained the following pertinent provisions: (1) Mother was designated primary residential parent and Father alternative residential parent; (2) Father was provided visitation with the children; (3) Father was to pay $1,000.00 per month in child support; (4) Mother was to provide
health insurance for the children as long as it was available through her employer but, if not, Father
would obtain health insurance for the children; and (5) Father was to obtain life insurance in the amount of $100,000 for the benefit of the children. On April 7, 2006, Father filed a Petition to Modify Visitation and Child Support, alleging that his current schedule allowed him more time to spend with the children and that he was entitled to a reduction in child support based upon his and Mother’s current income levels. On June 1, Mother
answered the petition and filed a Counter-Petition for Criminal Contempt, alleging that Father made
derogatory remarks about Mother in the presence of the children; interfered with Mother’s parenting time; failed to reimburse Mother for uncovered medical expenses for the children; failed to timely pay child support; threatened to take away the first child’s car, which Father bought using $2,000 that the child contributed towards the purchase; and failed to produce proof that he obtained life
insurance. Father answered the Counter-Petition on June 19. At some point during the proceedings, Father asked to have DNA testing done to determine the paternity of the first child; the test revealed that the child was not Father’s biological child. The parties were ordered to mediation and a Pendente Lite Order entered on May 4, 2007, memorialized the following agreement: (1) child support for the first child would terminate and Father would begin
paying $550.00 per month in child support for the second child; (2) Father would provide health insurance for the second child since Mother was unemployed; and (3) Father’s life insurance policy coverage would be reduced to $50,000. The order acknowledged that the first child was not the biological child of Father and terminated Father’s parental rights. Mother thereafter filed a Motion to Amend her Counter-Petition for Contempt, adding an
allegation that Father failed to make monthly payments on a vehicle which was awarded to Father in the divorce, but remained in Mother’s name. Father also filed a Motion to Amend his Petition, adding an allegation that Mother fraudulently induced Father into marrying her and seeking a reimbursement for child support paid for the first child from the entry of the Final Decree of Divorce. The trial court allowed both amendments. A hearing was held on  February 20, 2008, and an order entered on April 1 ordered, in part pertinent, that: Father provide health insurance for the second child; Father reimburse Mother
$889.09 for the money the first child paid toward the purchase of a vehicle; and Father was guilty 1 Seventeen years later it was determined that Mr. Smith was not the father of her first child.
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of criminal contempt for making derogatory comments about Mother in the presence of the children.
The court denied Father’s request for reimbursement of child support paid for the first child. The order incorporated a Parenting Plan that established a new visitation schedule; required Father to pay $686.43 per month in child support; and required Father to maintain a $50,000 life insurance policy with Mother named as trustee for the second child. The court denied Mother’s application for
attorneys’ fees. On May 1, 2008, Father filed a Motion to Alter or Amend. In an order entered on June 18,
2008, the trial court denied the motion and modified the April 1 order to award Mother $5,000 in attorneys’ fees. Father appeals.
II. Statement of the Issues
Father asserts the following issues on appeal:
1. Whether the trial court erred in its failure to reduce Father’s child support obligation after the emancipation of the first child
2. Whether the trial court erred in ordering Father to continue to provide health insurance coverage.
3. Whether the trial court erred in ordering Father to pay a percentage of the second child’s extracurricular activities as part of Father’s child support obligation.
4. Whether the trial court erred in awarding Mother $5,000 in attorney’s fees.
5. Whether the trial court erred in its failure to order Mother to maintain a $50,000 life insurance policy.
6. Whether the trial court erred in ordering Father to reimburse Mother the money for the first child’s vehicle.
7. Whether the trial court erred in failing to order modification of Father’s support obligation to be retroactive.
III. Analysis
A. Child Support
Father asserts that a significant variance existed warranting the modification of his child support obligation at the time his Motion to Alter or Amend was heard and that the trial court erred in failing to order such modification; in applying an upward deviation to his modified child support obligation; in modifying the obligation regarding the children’s health insurance set forth in the Final
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Decree of Divorce; in failing to apply his modified child support obligation retroactively to the filing date of his Petition to Modify Child Support; and in failing to order Mother to obtain a life insurance policy for the benefit of the second child 1. Modification in the Parties’ Presumptive Child Support Obligations Based Upon the Emancipation of the First Child Pursuant to the Pendente Lite Order entered May 4, 2007, Father’s parental rights to the first
child were terminated; consequently, he was no longer responsible for providing support for the child and his child support obligation was reduced to $550.00 per month. In the calculation 2 ulation of Father’s child support obligation in the April 1, 2008 order, a $450.00 credit to Mother’s monthly income for the first child as an “in-home child”3 living with Mother but not part of the case, pursuant
to Tenn. Comp. R. & Regs. 1240-2-4-.04(5)(a),4 was applied and resulted in a presumptive child support obligation of $635.00 per month. At the time of the hearing leading to the April 1 order, the child was 18 years old,5 but had not graduated from high school. On May 1, 2008, Father filed a Motion to Alter or Amend, asking that the April 1 order be amended to “include a reduction in Father’s child support obligation as of the date [the first child] turns 18 and graduates from high school.” At the June 8 hearing on the motion, the trial court’s discussion regarding Father’s request for a reduction in child support focused on whether a “15 2 Tenn. Comp. R. & Regs. 1240-2-4-.02(14) states, in part pertinent, that “a person is ‘legally responsible for a child’ or legally obligated for a child or children when the child is or has been...[v]oluntarily acknowledged by the parent as the parent’s child pursuant to Tennessee Code Annotated § 24-7-113...” Tenn. Code Ann. § 24-7-113 states,
in part pertinent, that “[t]he test results certified under oath by an authorized representative of an accredited laboratory
shall be filed with the court and shall be admissible on the issue of paternity” and “[i]f the acknowledged father is found to be excluded by the tests,...the acknowledgment of paternity shall be rescinded, as appropriate.” Tenn. Code Ann. §
24-7-113(e)(3).
3 The Child Support Worksheet classifies this credit as a “Credit for in-home children.”
4 Tenn. Comp. R. & Regs. 1240-2-4-.04(5) states, in part pertinent, that: (a) ...credits for either parent’s other children, who are qualified under this paragraph, shall be
considered by the tribunal for the purpose of reducing the parent’s gross income. Adjustments are available for a child:
1. For whom the parent is legally responsible; and
2. The parent is actually supporting; and
3. Who is not before the tribunal to set, modify, or enforce support in the case immediately under consideration.
5 Mother’s original complaint for divorce confirmed that the first child was born on December 5, 1989; on February 20, 2008, the child was 18 years old.
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percent variance” to warrant a decrease in his obligation existed. The trial court denied Father’6 s
motion, without explanation, in an order entered on June 18.
On appeal, Father asserts that the trial court “treated the Motion to Alter or Amend like a new petition, in regard to child support,” but does not challenge this action.7 Rather, he contends that the court erred in finding that he failed to prove that the child support obligation he proposed8 would be a significant variance from the “current support order,” as required by Tenn. Comp. R. & Regs.
1240-2-4-.05. Father argues that the trial court erred in comparing the child support obligation he proposed with the support awarded in the April 1 order because the April 1 order was not yet final when he filed his Motion to Alter or Amend and that “[a] significant variance, pursuant to Comp. R. & Regs. 1240-2-4-5 [sic], is determined by comparing final orders.” Father contends that “the
Trial Court should have made a determination of whether a significant variance existed based upon
the amount of support in the Final Decree, i.e., $1,000.00 and the amount proposed by Father, i.e.,
$589.00.”
Contrary to Father’s assertion that significant variance is determined by comparing final
orders, Tenn. Comp. R. & Regs. 1240-2-4-.05 defines a significant variance as “[a]t least a fifteen percent (15%) change between the amount of the current support order and the proposed amount of the obligor parent’s pro rata share of the [basic child support obligation].” Tenn. Comp. R. & Regs. 1240-2-4-.05(2)(b), (c) (emphasis added). The April 1 order contained the signatures of the trial judge and Mother’s counsel, and a certificate of service; consequently, the order became effective as of that date, pursuant to Rule 58, Tenn. R. Civ. P.,9 and was the current support order. 6 At the hearing, the trial court, in regard to Father’s modification request, held the following colloquy with Mother’s attorney: [Mother’s Attorney]: ...[Father] wants a reduction in the child support, because [the first child], the oldest child, turned 18 and graduated from high school. Well, at the time of this hearing, February
20th, he wasn’t - - he had not reached 18. He had not graduated from high school...

THE COURT: Is there a 15 percent - -

MS. CLARK: - - is there a 15 percent variance? If there is, he can file a petition and we can agree
to it. But I don’t think it meets the 15 percent variance.
***
THE COURT: ...I’ve ruled on income based on the proof. So if there is a 15 percent variance, I’m
sure y’all will be back before me. But don’t bother to come back on an increase or decrease unless
there is at least a 15 percent variance pursuant to your discovery.
7 In our review of the trial court’s action, we shall treat the motion as having properly raised a request to modify
Father’s child support.
8 The record reflects a child support worksheet filed on June 6, 2008, in which Father’s presumptive child
support obligation was $589.00 per month.
9 Rule 58, Tenn. R. Civ. P., states, in part pertinent, that:
Entry of a judgment or an order of final disposition is effective when the judgment containing one of
(continued...)
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Having determined that the April 1 order was properly utilized by the trial court in its significant
variance analysis, we now turn to whether the trial court properly conducted the analysis.
“To determine if a modification is possible, a child support order shall first be calculated on
the Child Support Worksheet using current evidence of the parties’ circumstances.” Tenn. Comp.
R. & Regs. 1240-2-4-.05(3). The trial court is then required to “compare the presumptive child
support order amounts in the current and proposed orders” and, “[i]f a significant variance exists
between the two amounts, such a variance would justify the modification of a child support order.”
Id. “For all orders that were established or modified January 18, 2005 or after, under the income
shares guidelines, a significant variance is defined as at least a fifteen percent (15%) change between
the amount of the current support order (not including any deviation amount) and the amount of the
proposed presumptive support order.” Tenn. Comp. R. & Regs. 1240-2-4-.05(2)(c).
Once the trial court treated Father’s Motion to Alter or Amend as a petition to modify child
support, the court was required to use the Child Support Worksheet to calculate the proposed child
support obligation based upon the “current evidence of the parties’ circumstances” and to compare
that amount to the current child support obligation to determine if a significant variance existed.
Tenn. Comp. R. & Regs. 1240-2-4-.05(3). Upon a review of the record, we do not find that the trial
court conducted the analysis in accordance with the regulation. Specifically, the record does not
include a worksheet reflecting the proposed child support obligation removing the in-home child
credit and, without that figure, the trial court was unable to properly determine if a significant
variance existed and we are unable to properly review the court’s determination. Accordingly, 10 , we
must remand the case for reconsideration of the issue.
2. Upward Deviation
Father contends that the trial court erred in ordering him to pay a percentage of the expenses
for the second child’s extracurricular activities as an upward deviation from his basic child support
obligation because “[t]here were no written findings by the Trial Court that the deviation from the
Guidelines [was] in the best interest of the minor child” and “Mother failed to provide proof of
uniform fees in the form of receipts or even a written notice to the parents that a uniform fee
exist[ed].” We find that the trial court erred in its application of the upward deviation to Father’s
child support obligation.
9(...continued)
the following is marked on the face by the clerk as filed for entry:
(1) the signatures of the judge and all parties or counsel, or
(2) the signatures of the judge and one party or counsel with a certificate of counsel that a copy of the proposed order has been served on all other parties or counsel, or
(3) the signature of the judge and a certificate of the clerk that a copy has been served on all other parties or counsel. 10 Our holding is based upon the fact that the parties acknowledge that, at the time of the hearing on Father’s motion, the oldest child had become emancipated. We make no determination as to whether a significant variance exists with the in-home child credit eliminated.
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When a court orders a deviation from the basic child support obligation, the order 11 is to include:
1. The reasons for the change or deviation from the presumptive amount of child support that would have been paid pursuant to the [Child Support] Guidelines; and
2. The amount of child support that would have been required under the Guidelines if the presumptive amount had not been rebutted; and 3. How, in its determination,
(i) Application of the Guidelines would be unjust or inappropriate in the particular case before the tribunal; and (ii) The best interest of the child for whom support is being determined will be served by deviation from the presumptive guideline amount. Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(c).12 In the Child Support Worksheet incorporated into the April 1 order, the trial court calculated Father’s “Presumptive Child Support Order” to be $635.00 per month, to which the court added $51.43 as an upward deviation for the second child’s baseball expenses.13 In the Parenting Plan, Father’s child support obligation was set at $686.43 per month - the presumptive child support order plus the upward deviation - but the order failed to explain the upward deviation.
At the February 20 hearing, Father’s counsel stated that “[w]e had talked about some kind of proof, some kind of receipt showing that the baseball fees were $700” and asked to “have those as a late filed exhibit.” At the June 6 hearing on Father’s Motion to Alter or Amend, Mother filed exhibits showing that she incurred $322.96 in baseball expenses.14
11 In addition to the “average child rearing expenditures,” a court may award extraordinary expenses, which
“are considered on a case-by-case basis in the calculation of support and are added to the basic support award as a deviation.” Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d). 12 “The amount or method of such deviation is within the discretion of the tribunal provided, however, the tribunal must state in its order the basis for the deviation and the amount the child support order would have been without the deviation.” Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(b). 13 The trial court found that the second child’s baseball expenses were $935 per year, which corresponds to $77.92 per month. Father’s “Percentage Share of Income,” as calculated by the Child Support Worksheet, was 66%. The court ordered Father to pay $51.43 per month, or 66% of the $77.92 monthly expense, as an upward deviation. 14 The exhibits filed by Mother contained a letter from Shari Harper, a member of the Mt. Juliet Booster Club, stating that the letter was “a receipt for sweat [sic] and sweatshirt purchased for [the second child] for the 2008 baseball season” and that the “cost of these was $65.00 and payment was received from [Mother]”; a paper from the Mt. Juliet baseball team stating that the fee for the baseball season was $60.00 and a printout from Mother’s records confirming that a check in that amount had been submitted to the league; a copy of a check written to Dick’s Sporting Goods in the -7-
The trial court did not include “written findings of fact stating...[t]he reasons for the change or deviation from the presumptive amount of child support” in either its order or in the Parenting Plan, as required by the regulations. Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(c). In addition, the
evidence submitted by Mother “quantified” the baseball expenses incurred as $322.96, rather than the $935 per year as found by the trial court. Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d) and (2)(d)(2)(i). Upon a review of the record, we cannot find any evidence to support the 15 trial court’s finding that the baseball expenses were $935 per year, other than Mother’s testimony, which was contrary to the documentary evidence of the expenditures she filed. While a deviation from a presumptive child support obligation is within a trial court’s discretion, it can only be applied if the deviation is in compliance with the regulations and is properly supported by the evidence, which this was not. Consequently, we vacate the upward deviation for the extraordinary expenses.
3. Health Insurance
Father asserts that the trial court erred in ordering him to provide health insurance for the
second child because Mother failed to allege or prove a material change in circumstances to warrant
a modification of the health insurance provision of the Final Decree of Divorce. Mother contends
that “it is truly irrelevant which parent carries the health insurance as the premium is calculated into
the support and the parties percentage of income determines the amount assigned to each party for
payment.”
Pursuant to the Child Support Guidelines, “[t]he total amount of the cost for the child’s
health insurance premium...shall be divided between the parents pro rata based upon the [Percentage
Share of Income] of each parent to determine the total Presumptive Child Support Order.” Tenn.
Comp. R. & Regs. 1240-2-4-.04(8)(a)(3). “If the health insurance premium is being paid by the
[alternative residential parent (“ARP”)]..., the payment shall be reflected in the child support order
to identify the amount and nature of the obligation, but shall not be included in the ARP’s income
assignment.” Tenn. Comp. R. & Regs. 1240-2-4-.04(8)(a)(4). Instead, the order need only “require
that [the health insurance] expenses continue to be paid by the ARP in the same manner as they were
being paid prior to the instant action.” Id.
The Final Decree of Divorce required “Mother [to] maintain medical/hospital insurance on
the minor children as long as it is available to her through her employer” and that “[i]n the event that
insurance is not available to Mother through her employer, Father shall provide medical/hospital
insurance on the minor children.” The Pendente Lite Order agreed to by the parties stated that
14(...continued)
amount of $197.69 with the memo section of the check filled in with “[the second child]-Baseball”; and, along with the
check paid to Dick’s Sporting Goods, printouts from Dick’s Sporting Goods’ website of the baseball items Mother
purchased for the second child and the prices, which add up to the amount of the check.
15 Among these extraordinary expenses are “[s]pecial expenses incurred for child rearing which can be
quantified [and] may be added to the child support obligation as a deviation from the [Presumptive Child Support
Order].” Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(d)(2)(i) (emphasis added).
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“Mother being currently unemployed, the Father shall immediately obtain health insurance on the
parties’ minor child...through the Father’s employment or otherwise, and at the Father’s expense,
pending further Orders of the Court.” The Parenting Plan, filed along with the April 1 order, stated
that “[r]easonable health insurance on the child or children will be...maintained by the Father.”
According to the Child Support Worksheet attached to the Parenting Plan, Father’s
Percentage Share of Income was 66%, Mother’s was 33%, and Father’s basic child support
obligation, adjusted for each party’s parenting time, was $651.64 per month. The worksheet listed
the child’s health insurance premium as $49.50 per month, of which Mother was responsible for 33%
or $16.83. Tenn. Comp. R. & Regs. 1240-2-4-.04(8)(a)(3). In calculating Father’s presumptive
child support obligation of $635.00 per month, Mother’s share of the health insurance premium -
$16.83 per month - was subtracted from Father’s basic child support obligation - $651.64 per month.
Thus, the trial court’s decision on health insurance coverage for the second child required Father to
continue paying the premium but reduced his child support obligation to account for Mother’s pro
rata obligation on the expense.
The trial court did not err in requiring Father him to maintain the health insurance coverage
on the second child since it was previously being paid by him as the ARP, Tenn. Comp. R. & Regs.
1240-2-4-.04(8)(a)(4), and his basic child support obligation was reduced to account for Mother’s
pro rata share of the premium. Tenn. Comp. R. & Regs. 1240-2-4-.04(8)(a)(3). Father’s assertion
that the trial court erred in modifying the health insurance obligation in the Final Decree of Divorce
is incorrect because the court’s modification was made pursuant to the Pendente Lite Order, not the
Final Decree of Divorce. Tenn. Code Ann. § 36-5-101 provides that a “court may direct the
acquisition or maintenance of health insurance covering each child of the marriage” and that
“[n]othing in this section shall be construed to prevent the affirmation, ratification and incorporation
in a decree of an agreement between the parties as to child support.” Tenn. Code Ann. § 36-5-
101(h)(1), (j). The Pendente Lite Order, agreed to by Father, required him to obtain 16 and provide
health insurance for the second child “pending further Orders of the Court”; the trial court’s order
for Father to maintain the insurance was done in accordance with the regulations.
4. Retroactive Application of Father’s New Support Obligation
Father asserts that his new child support obligation should have been applied retroactively
to the April 7, 2006, filing of his initial Petition to Modify Visitation and Child Support and, in his
Motion to Alter or Amend, sought an amendment to the trial court’s April 1 order to have Mother’s
award of an “arrearage for the medical bills and child support be deemed satisfied due to the fact that
Father paid $900.00 for the support of [the first child] after DNA tests confirmed that he is not the
natural child of [Father].”
16 The Pendente Lite Order stated that “[t]his cause came to be heard..., upon the agreement of the parties, as
evidenced by their respective signatures affixed hereto; and it appearing to the Court that said Agreed Order is well taken,
and should be approved pendente lite.”
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“A child support order is not retroactively modifiable, but may be modified only as of the
date a petition for modification is filed.” Buettner v. Buettner, 183 S.W.3d 354, 358 (Tenn. Ct. App.
2005) (citing Tenn. Code Ann. § 36-5-101(a)(5)(2001); Rutledge v. Barrett, 802 S.W.2d 604, 606
(Tenn. 1991)). “[T]he court has no authority to forgive an accrued child support arrearage, but may
only modify a child support obligation back to ‘the date that an action for modification is filed and
notice of the action has been mailed to the last known address of the opposing parties.’” State ex rel.
Whitley v. Lewis, 244 S.W.3d 824, 829 (Tenn. Ct. App. 2007) (quoting Tenn. Code Ann. § 36-5-
101(f)(1)).
Father was not entitled to have the arrearages found by the trial court forgiven, State ex rel.
Whitley, 244 S.W.3d at 829; he was, however, eligible for modification of his support back to the
date he filed his petition to modify his obligation. Buettner, 183 S.W.3d at 358. It does not appear
from the trial record that Father specifically requested that the new child support obligation be made
retroactive to the date of filing of the petition. He is free to make such request on remand and we
express no opinion as to the merits of same.
5. Life Insurance
Father asserts that the “Trial Court erred in failing to order Mother to carry a $50,000 life
insurance policy for the benefit of [the second child]” because “it is in the best interest of the minor
child that Mother be required to carry a life insurance nce policy.”17
In support of his assertion regarding the life insurance policy, Father relies on Tenn. Code
Ann. § 36-6-402(2)(F), which defines “Parenting Responsibilities” to require the parent to
“[p]rovid[e] any financial security and support of the child in addition to child support obligations.”
Father does not cite to any additional authority to support his position, fails to address the
applicability of the above statute to this issue, and neglects to argue why he is entitled to appellate
relief for the trial court’s failure to order Mother to obtain life insurance.
17 Father does not clarify whether Mother should have been ordered to obtain a life insurance policy in lieu of,
or in addition to, Father’s policy.
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A party’s failure to properly argue an issue in accordance with Rule 27, Tenn. R. App. P.,18
was discussed by this Court in Bean v. Bean, 40 S.W.3d 52 (Tenn. Ct. App. 2000), which stated that:
Courts have routinely held that the failure to make appropriate references to the
record and to cite relevant authority in the argument section of the brief as required
by Rule 27(a)(7) constitutes a waiver of the issue. Moreover, an issue is waived
where it is simply raised without any argument regarding its merits. . .[P]arties cannot
expect this court to do its work for them. This Court is under no duty to verify
unsupported allegations in the party’s brief, or for that matter consider issues raised
but not argued in the brief.
Bean, 40 S.W.3d at 55-56.
We find this issue to be waived based on Father’s failure to comply with Rule 27, Tenn. R.
App. P.
B. Reimbursement for the First Child’s Contribution to the Automobile
Father purchased a car for the first child when he turned 16 years old, for which the child
contributed $2,000 towards the purchase price. At some point during the proceedings in the lower
court, Father took the car from the child and sold it. In her Counter-Petition for Criminal Contempt,
Mother alleged that “Father agreed to purchase a 1999 Honda Accord automobile for the parties’ 16
year old son’s birthday present if the son could contribute $2,000 toward the price of the car” and
that, “[w]hen Father [wa]s not pleased with the son, he threaten[ed] to take the car away.” Mother
requested that “Father be ordered to place the automobile gift in the son’s name or reimburse the
$2,000 paid...toward the purchase price” and that Father “stop threatening the son with his birthday
present, and to pay the automobile insurance for the car.”
The trial court awarded “Mother a judgment in the amount of $889.09 to reimburse 19 urse [the
child] for the money he paid toward the purchase of the Honda Accord.” In making the award, the
18 Rule 27(a), Tenn. R. App. P., states, in part pertinent, that:
(a) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and
in the order here indicated:
***
(7) An argument, which may be preceded by a summary of argument, setting forth the contentions of
the appellant with respect to the issues presented, and the reasons therefor, including the reasons why
the contentions require appellate relief, with citations to the authorities and appropriate references
to the record (which may be quoted verbatim) relied on.
(Emphasis added).
19 There is no explanation as to why the amount of the reimbursement stated by the court at trial is different
from the amount stated in the trial court’s final order.
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trial court stated that “it’s not fair for the dad to profit from all the resale when his mom via grandma
via [the child], whatever, made this contribution to the car. So, $889.89 is what he needs to pay him
to make up the equities of the situation.”
Upon a review of the record, we cannot find, nor does Mother cite, an order requiring Father to purchase a car for the child, to maintain the insurance on the car, or to refrain from taking it away. In fact, Mother admits in her Counter-Petition that, instead of being ordered to do so, “Father agreedcto purchase a 1999 Honda Accord for the parties’ 16 year old son.” (Emphasis added). Father’sccounsel argued at trial that Mother was not able to raise this issue as alleged in her Counter-Petitioncbecause the agreement between Father and the child regarding the car was “not part of the Martial Dissolution Agreement, wasn’t a part of the divorce, not part of any court order that’s between thesec two individuals.”The primary purpose of a criminal contempt conviction is to vindicate the court’s authority. Id. (citing Gunn v. Southern Bell Tel. & Tel. Co., 296 S.W.2d 843, 844 (1956); Garrett v. Forest
Lawn Memorial Gardens, 588 S.W.2d 309, 315 (Tenn. Ct. App. 1979)). There are four essential elements of a contemptuous violation of a court order or command: that the order alleged to have been violated be “lawful,” and “specific and unambiguous;” that the person alleged to have violated the order have actually disobeyed the order; and that person’s violation of the order have been
“willful.” Konvalinka, 249 S.W.3d at 354-55.
The record does not show that, relative to the child’s automobile, Father violated any order or command of the court or was in wilful disobedience to its orders; consequently, there was no basis upon which to hold him in contempt of court. Consequently, the trial court’s finding of contempt, to the extent it is based on matters related to the oldest child’s automobile, is reversed and the
monetary judgment awarded Mother vacated.
C. Attorney’s Fees
Father asserts that the trial court erred in awarding Mother attorneys’ fees because “there was
no evidence before the Court that Mother lacked sufficient funds to pay her attorney or that paying
attorney fees would deplete her resources.” In addition, Father contends that, “[i]f the Trial Court
truly believed that an order for attorney fees was necessary..., it would have ordered attorney fees
when the [April 1] Order was signed” and that “[t]he award of $5,000.00 in attorney fees was to
punish Father.”
In support of his first assertion, Father relies on this Court’s opinion in Brown v. Brown, 913
S.W.2d 163 (Tenn. Ct. App. 1994), which stated that an award of attorneys’ fees is
“appropriate...only when the spouse seeking them lacks sufficient funds to pay his or her own legal
expenses...or would be required to deplete his or her resources in order to pay these expenses.” Id.
at 170. These considerations, however, are not dispositive in determining the appropriateness of
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attorneys fees sought under Tenn. Code Ann. § 36-5-103. See Sherrod v. Wix, 849 S.20 W.2d 780,
785 (Tenn. Ct. App. 1992) (holding that “ability to pay should not be the controlling consideration
with regard to awards for legal expenses in custody or support proceedings” sought under Tenn.
Code Ann. § 36-5-103); Gaddy v. Gaddy, 861 S.W.2d 236, 241 (Tenn. Ct. App. 1992) (holding that
a “showing that [a party] is financially unable to pay his attorneys fees...is not a prerequisite for
awarding fees under [Tenn. Code Ann. § 36-5-103]”).
Tenn. Code Ann. § 36-5-103 states, in part pertinent, that:
The plaintiff spouse may recover from the defendant spouse, and the spouse or other
person to whom the custody of the child, or children, is awarded may recover from
the other spouse reasonable attorney fees incurred in enforcing any decree for
alimony and/or child support, or in regard to any suit or action concerning the
adjudication 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 proceeding
is pending, in the discretion of such court.
Tenn. Code Ann. § 36-5-103(c).
The award of attorneys’ fees pursuant to Tenn. Code Ann. § 36-5-103 was discussed by this
Court in Sherrod v. Wix, 849 S.W.2d 780 (Tenn. Ct. App. 1992) which held:
[T]rial courts may award attorney’s fees without proof that the requesting party is
unable to pay them as long as the award is just and equitable under the facts of the
case. The purpose of these awards is to protect the children’s, not the custodial
parent’s, legal remedies. Accordingly, requiring parents who precipitate custody or
support proceedings to underwrite the costs if their claims are ultimately found to be
unwarranted is appropriate as a matter of policy.
Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992); Sandusky v. Sandusky, 1999 WL
734531, at *7 (Tenn. Ct. App. Sept. 22, 1999). “[A]warding legal expenses in custody and support
proceedings is discretionary with the trial court.” Sherrod, 849 S.W.2d at 785 (citing Tenn. Code
Ann. § 36-5-103(c)).
Initially, both parties submitted affidavits of the attorneys’ fees incurred and the court
declined to award fees to either party. At the hearing on Father’s Motion to Alter or Amend,
Mother’s counsel re-raised the issue of attorneys’ fees and the trial court stated the following:
20 In their briefs on appeal, both parties agree that the applicable statute permitting the award of attorneys’ fees
in this matter is Tenn. Code Ann. § 36-5-103.
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Well, I do think [Mother is] entitled to attorney’s fees. Like I said, the reason
I didn’t award anybody attorney fees, when I saw the affidavits, I was shocked at how
extensive this case has gotten. Although, I understand attorneys cost money. And
y’all have a lot of issues, a lot of issues.
But it’s not fair for the mom trying to get child support and trying to support
the children and she’s the primary parent responsible for all this stuff and having to
bear the burden of huge attorney’s fees. And the child support comes nowhere close
to these attorney’s fees.
...I find that she’s entitled to $5,000 in attorney’s fees. I know it’s not what
they asked. And I know both of them have spent in excess of $15,000 in attorney’s
fees, but I think she’s entitled to have that much of her attorney’s fees paid, because
a lot of this is what the Court calls posturing and parties struggling for control. And
everyone gets away from the main emphasis, which is [the second child]
***
So, yes, I’m amending [the previous order]. I’m granting her $5,000.
While we are mindful of the deference this court is to give trial courts in awarding or denying
fees in accordance with the statute, we are unable to discern any basis for the trial court’s decision
to make an award to Mother after having previously denied same. To the extent the award was for
services rendered relative to Father’s motion to amend the April 1 order, there is no proof of the
amount of fees incurred by Mother in responding to the motion and attending the hearing. Moreover,
we have determined that Father’s initiation of the proceeding which is the subject of this appeal was
not unwarranted. Accordingly, we vacate the award of attorney’s fees to Mother.
V. Conclusion
For the reasons set forth above, the decision of the Circuit Court is AFFIRMED in part,
REVERSED in part, VACATED in part and REMANDED for proceedings consistent with this
opinion.
Costs are assessed against Mother and Father, equally, for which execution may issue if
necessary.
___________________________________
RICHARD H. DINKINS, JUDGE
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