Dwight v. Dwight

• Decision Date: 10 July 1996
• Citation: 936 S.W.2d 945
• Court: Tennessee Court of Appeals
• Parties: Jo Anne Smith DWIGHT (Redditt), Plaintiff-Appellant, v. Gregory Scott DWIGHT, Defendant-Appellee.

Page 945

936 S.W.2d 945

Jo Anne Smith DWIGHT (Redditt), Plaintiff-Appellant, v. Gregory Scott DWIGHT, Defendant-Appellee.

Court of Appeals of Tennessee Western Section, at Jackson.

July 10, 1996.

Application for Permission to Appeal

Denied by Supreme Court

Nov. 4, 1996.

Gerald F. Easter, Memphis, for Appellant.

Valerie T. Corder, Memphis, for Appellee.

CRAWFORD, Presiding Judge (Western Section).

Jo Anne Smith Dwight Redditt (Wife) appeals the trial court's order denying her petition to modify the parties' final decree of divorce to increase child support payments by Gregory Scott Dwight (Husband).

The parties married April 15, 1983 and were divorced by final decree entered February 21, 1990. Two children were born of the marriage; Victoria Nicole Dwight, born November 1, 1983, and Daniel Adam Dwight, born June 11, 1986. Pursuant to the final decree of divorce, the court awarded joint custody to the parties, with Wife having primary physical custody.

On February 1, 1994, Wife filed a petition to modify the parties' final divorce decree by increasing the child support awards. Wife alleges that the children's needs have increased as they have gotten older, and that Husband's income and ability to pay child support have also increased, constituting a material change in circumstances. Wife seeks to increase Husband's child support payments to an amount that is in compliance with the Child Support Guidelines promulgated by the Tennessee Department of Human Services. Tenn.Comp.R. & Regs. tit. 10, ch. 1240-2-4-.01 et seq. (1989, revised 1994) (Guidelines). Additionally, Wife requested that she be permitted to take the children as deductions on her federal income tax return, and that Husband pay all attorney fees and court costs.

On September 15, 1994, the divorce referee entered an order finding that Husband's income had not increased significantly, but that the expenses of the parties' children had increased significantly. The referee raised Husband's child support obligation to $1,000.00 per child, per month and ordered Husband to pay $3,000.00 toward Wife's attorney's fees. On October 20, 1994, the trial judge signed an order increasing child support consistent with the referee's ruling, and Husband appealed. By order entered November 22, 1994, the trial judge set aside his previous order affirming the referee's ruling and denied Wife's petition to modify child support. Wife perfected the present appeal and presents two issues for review:

1. Whether the trial court erred in failing to increase the child support award?

2. Whether the trial court erred in failing to award attorney fees?

Husband is employed as a pilot at Federal Express Corporation and was so employed at the time of the divorce. In 1990, the year of the divorce, Husband's annual income was $128,326.00; in 1991, Husband's income was $127,900.00; in 1992, $158,220.00; and in 1993, $165,775.00. At the time of trial, November 18, 1994, Husband predicted that his income for 1994 would be between $123,000.00 and $126,000.00. In explaining this reduction in income, Husband stated that, prior to 1994, he was a first officer on the DC-10 airplane and received a significant amount of income as a result of overtime pay ($41,200 in 1992). Husband testified that, due to corporate plans to hire additional pilots at Federal Express in 1994 and thereby reduce the number of overtime hours available to DC-10 pilots, he trained for and was awarded a position as captain on the 727 airplane. Because he has a lower seniority status as a 727 captain than he had as a DC-10 first officer, Husband is lower in the bidding pool and is not able to get as many overtime hours.

Testimony at trial revealed that Husband does not exercise his visitation rights on a regular basis. Husband testified that his children have spent one to two weekends with him since the parties' divorce in 1990. He stated that he has exercised one full week of visitation with the children in three of the last four years, but never more than one week. According to Husband, Wife makes it difficult for him to exercise his visitation rights by frequently canceling scheduled visitation periods. Because of his irregular schedule as a pilot, Husband often exercises his visitation for a few hours after the children get out of school. He testified that the children cry and insist on spending the night with their mother when he suggests overnight stays.

At the time of trial, Wife and both children were living with Husband's parents. ¹ Wife, who has a GED equivalent, earns an hourly wage of $7.03. Wife stated that she wanted to live on her own, but could not afford to pay her expenses as well as those of her children based upon her monthly income and Husband's child support payment. In a deposition taken prior to trial, Wife testified that the children's needs could be met with between $3,500.00 and $4,500.00 per month. Although Wife stated at trial that the children's individual, personal needs did not exceed $500.00 per month, per child, she testified that the $500.00 sum does not include the children's pro rata share of rent and household expenses, groceries, gasoline, etc. Currently Husband pays $550.00 per month, per child, as well as medical insurance and tuition. Husband requested that Wife produce receipts evidencing the children's increased needs; however, Wife did not comply with this request. Wife did testify with specificity regarding the children's increased needs for clothing, hair care, and school items (such as lunch money, miscellaneous books and field trips) since the time of the parties' divorce.

According to Wife, Husband makes no effort to see his children. Wife denies that she frequently interferes with scheduled visitation periods. She testified that Husband treats his children differently than he treats the child of his current wife. Wife also stated that Husband's current wife is not nice to her children. Wife testified that, in addition to spending very little time with his children, he spends very little money fulfilling their wants and needs.

Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

Modification of an existing child support order is controlled by T.C.A. § 36-5-101(a) (Supp.1995), which states, in pertinent part:

In cases involving child support, upon application of either party, the court shall decree an increase or decrease of such allowance when there is found to be a significant variance, as defined in the child support guidelines established by subsection (e), between the guidelines and the amount of support currently ordered unless the variance has resulted from a previously court-ordered deviation from the guidelines and the circumstances which caused the deviation have not changed.

Currently, a "significant variance" is 15%. See Tenn.Comp.R. & Regs. tit. 10, ch. 1240-2-4-.02(3); Turner v. Turner, 919 S.W.2d 340, 343 (Tenn.App.1995).

T.C.A. § 36-5-101(e)(1) (Supp.1995) provides:

In making its determination concerning the amount of support of any minor child or children of the parties, the court shall apply as a rebuttable presumption the child support guidelines as provided in this subsection. If the court finds that evidence is sufficient to rebut this presumption, the court shall make a written finding that the application of the child support guidelines would be unjust or inappropriate in that particular case, in order to provide for the best interest of the child(ren) or the equity between the parties.

In its "Order on Appeal from Referee," the trial court found that the Guidelines probably would not apply to the instant case; but even if they did, the presumption contained in the Guidelines had been rebutted because Husband's current income of $123,000.00 to $126,000.00 is actually less than his income at the time of divorce; $128,386.00.

The trial court, citing T.C.A. § 36-5-101(h), stated that the law does not require parties' provisions for support to meet the Guidelines in a marital dissolution agreement, as long as adequate provision is made for the children. T.C.A. § 36-5-101(h) (Supp.1995) states:

Nothing in this section shall be construed to prevent the affirmation, ratification and incorporation in a decree of an agreement between the parties as to support and maintenance of a party or as to child support. In any such agreement, the parties must affirmatively acknowledge that no action by the parties will be effective to reduce child support after the due date of each payment, and that they understand that court approval must be obtained before child support can be reduced, unless such payments are automatically reduced or terminated under the terms of the agreement. (Emphasis added.)

In the instant case, neither the parties' marital dissolution agreement nor the final decree uses the language contained in T.C.A. § 36-5-101(h), as that statute requires. Thus, the agreement does not effectively deviate from the Guidelines under T.C.A. § 36-5-101(h). Therefore, deviation requires the trial court make a written finding...