Buettner v. Buettner

• Court: Tennessee Court of Appeals
• Writing for the Court: David R. Farmer, J.
• Citation: Buettner v. Buettner, 183 S.W.3d 354 (Tenn. App. 2005)
• Decision Date: 02 June 2005
• Parties: Sandra Lee BUETTNER v. Neil William BUETTNER.

183 S.W.3d 354

Sandra Lee BUETTNER v. Neil William BUETTNER.

Court of Appeals of Tennessee, at Jackson.

February 15, 2005 Session.

June 2, 2005.

Application for Permission to Appeal Denied by Supreme Court October 24, 2005.

COPYRIGHT MATERIAL OMITTED

Michael A. Carter, Milan, Tennessee, for the appellant, Neil William Buettner, Jr.

David F. Hessing, Paris, Tennessee, for the appellee, Sandra Lee Buettner.

Paul G. Summers, Attorney General and Reporter, and Stuart F. Wilson-Patton, Senior Counsel, in support of the constitutionality of the Tennessee Child Support Guidelines.

OPINION

DAVID R. FARMER, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., joined. W. FRANK CRAWFORD, P.J., W.S., filed a partial dissent.

The trial court increased Husband's alimony obligation pursuant to the parties' MDA. It also denied Husband's petition to modify alimony and increased Wife's child support obligation retroactive to June 1, 2003. We affirm in part, reverse in part, and remand.

This appeal arises from the trial court's judgment increasing alimony and modifying child support. The parties to this case, Sandra Lee Buettner (Ms. Buettner) and Neil William Buettner (Mr. Buettner), were divorced in 1998. Pursuant to the parties' agreement under their marital dissolution agreement ("MDA"), the trial court awarded custody of the parties' two minor children, born April 16, 1984, and December 29, 1987, to Ms. Buettner. Mr. Buettner's child support obligation was set at $2,108 per month. Pursuant to the MDA, Ms. Buettner was awarded alimony in futuro with annual adjustments based upon fluctuations in the consumer price index.

Since entry of the MDA in 1998, the parties have returned to court several times. In December 1999, Ms. Buettner filed a motion for contempt for failure to pay child support. In his response, Mr. Buettner denied that he had neglected or refused to pay child support and stated that his child support obligation was automatically reduced following a reduction in income. In January 2000, Mr. Buettner filed a motion for reduction in child support and modification of the MDA. In February 2000, the trial court entered an agreed order whereby Ms. Buettner was awarded a judgment for child support arrears; child support was continued at the same level; and Mr. Buettner dismissed his motion seeking to modify child support and the MDA.

In December 2000, Mr. Buettner filed a motion to modify the final decree and previous orders. In his petition, Mr. Buettner stated that the elder child had been in Mr. Buettner's physical custody for two months. Mr. Buettner prayed for termination of his child support obligation for the elder child and for payment of child support by Ms. Buettner. In October 2001, the trial court approved a settlement whereby the parties agreed that neither owed the other back child support despite the changes in physical custody of the children. The parties further agreed that Ms. Buettner would be designated primary residential parent ("PRP") of the parties' eldest child, then 17 years of age, and Mr. Buettner would be designated PRP of the younger child, then 13 years of age. After subtracting Ms. Buettner's obligation of child support for the younger child, the trial court set Mr. Buettner's net child support payment to Ms. Buettner for support of the elder child at $1,200 per month. The parties additionally agreed to modify various portions of their MDA. In November 2001, the parties entered into a permanent parenting plan which reiterated that Mr. Buettner's net obligation of support would be $1,200. This amount reflected the net obligation owed by Mr. Buettner, assuming Ms. Buettner's obligation of support to Mr. Buettner to be between $627 and $838. The parties "affirmatively acknowledge[d] that Court approval must be obtained before child support can be reduced or modified, unless such payments are automatically reduced or terminated under the terms of the parenting plan."

In January 2004, Ms. Buettner filed a motion seeking alimony arrearages and an increase in alimony pursuant to the 1998 MDA. In her motion, she stated that Mr. Buettner was currently paying alimony in the amount of $1,618 per month. She further stated that the elder child, for whom Ms. Buettner had been the PRP, had reached the age of majority in April 2002, and had graduated from high school in May 2002. She asserted that, under the MDA, as of June 2002, Mr. Buettner's alimony obligation increased by 50% of the amount of child support due. She also asserted that Mr. Buettner had reported a gross income of $185,677 to the IRS for the year 2002, and that his child support obligation for 2002 was $1,908 per month. Ms. Buettner sought an increase in alimony of $954 per month for June 1, 2002, to December 31, 2002, and of $1,067 per month for January 1 to December 31, 2003. Ms. Buettner prayed for arrearages in the amount of $19,482.

In February 2004, Mr. Buettner filed a motion seeking to modify alimony in futuro based on a material change of circumstances. He also filed a response to Ms. Buettner's petition, in which he alleged the MDA is vague and ambiguous, and a motion to increase child support. In March 2004, Ms. Buettner filed a motion to enforce the MDA, asserting that the consumer price index for the year 2003 increased 2.3% and that, pursuant to the MDA, as of January 1, 2004, Mr. Buettner was obligated to pay $2,344.75 as alimony in futuro.

The trial court entered its order on the several petitions on June 21, 2004. The trial court denied Mr. Buettner's motion to modify the award of alimony in futuro. It interpreted the alimony provision of the MDA as entitling Ms. Buettner to an increase in alimony in futuro of $726.75 (50% of the child support guideline amount for one child based on Mr. Buettner's income) per month from June 1, 2003, through April 30, 2004, and an increase of $759 per month commencing May 1, 2004. Based on an increase of 2.3% in the consumer price index for 2003, the trial court additionally increased the alimony payment commencing May 1, 2004, by 2.3% of the previous year's payment. In sum, the trial court ordered Mr. Buettner to pay a total of $2,344.75 (1,618 + 726.75) per month as alimony in futuro for June 1, 2003, through April 30, 2004, and $2466.90 per month commencing May 1, 2004. The trial court set Ms. Buettner's child support obligation at $838 per month as of June 1, 2003, and to $943 per month as of May 1, 2004. Mr. Buettner filed a timely notice of appeal to this Court.

Issues Presented

Mr. Buettner raises the following issues, as we re-state them, for our review:

(1) Whether the trial court erred by declining to rule that the child support guidelines are unconstitutional.

(2) Whether the trial court erred by increasing Ms. Buettner's child support obligation retroactive to June 2003 instead of October 2001.

(3) Whether the trial court erred in interpreting the alimony provision of the parties' MDA.

(4) Whether the trial court erred by denying Mr. Buettner's motion to modify the alimony in futuro provision of the parties' MDA.

Standard of Review

We review the trial court's findings of fact de novo with a presumption of correctness. Tenn. R.App. P. 13(d); Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn.2000). We will not reverse the trial court's factual findings unless they are contrary to the preponderance of the evidence. Id. Our review of the trial court's conclusions on matters of law is de novo with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Analysis

We first dispense with Mr. Buettner's assertion that the child support guidelines are unconstitutional. Mr. Buettner failed to provide the Attorney General with notice of the challenge to the constitutionality of the guidelines while this matter was before the trial court as is required by Tennessee Rule of Civil Procedure 24.04 and Tennessee Code Annotated § 29-14-107. The Tennessee Supreme Court has noted that the failure to provide notice of a constitutional challenge to the Attorney General as mandated by Tennessee Code Annotated § 29-14-107 and Tennessee Rule of Civil Procedure 24.04 is fatal "except to the extent the challenged statutes are so clearly or blatantly unconstitutional as to obviate the necessity for any discussion." In re Adoption of E.N.R., 42 S.W.3d 26, 28 (Tenn.2001). The child support guidelines are not clearly or blatantly unconstitutional. Therefore, we consider this issue waived.

We next turn to Mr. Buettner's assertion that the trial court erred in increasing Ms. Buettner's child support obligation retroactive to June 1, 2003, rather than October 2001. The parties' child support obligations were established by order entered by the court in October 2001. A child support order is not retroactively modifiable, but may be modified only as of the date a petition for modification is filed. Tenn.Code Ann. § 36-5-101(a)(5)(2001); Rutledge v. Barrett, 802 S.W.2d 604, 606 (Tenn.1991). Thus, the trial court erred by increasing Ms. Buettner's child support obligation beyond February 18, 2004, the date on which Mr. Buettner filed his petition for modification. We accordingly affirm the trial court's order increasing Ms. Buettner's child support obligation, but modify the order to be effective as of February 18, 2004.

Mr. Buettner also asserts that the trial court erred in its interpretation of the alimony provision of the parties' MDA. Ms. Buettner, on the other hand, asserts the alimony provision is clear and that the trial court did not err in its interpretation. We find Ms. Buettner's assertion that the provision is clear to be somewhat disingenuous, however, in light of her statement to this Court that it was "unclear" how the increase in alimony would be calculated, although she "does not object" to the trial court's method of calculation.

When interpreting the provisions of an MDA that retain their contractual nature, we apply general...