Kurts v. Parrish, No. W2004-00021-COA-R3-CV (TN 11/17/2004)
| Decision Date | 17 November 2004 |
| Docket Number | No. W2004-00021-COA-R3-CV.,W2004-00021-COA-R3-CV. |
| Parties | LINDA KURTS (PARRISH) v. GREGORY PARRISH. |
| Court | Tennessee Supreme Court |
Craig B. Flood, Memphis, TN, for Appellant.
Gregory A. Parrish, pro se, Marion, AR, for Appellee
Alan E. Highers, J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S., and Holly M. Kirby, J., joined.
This case involves the trial court's denial of an upward deviation in child support. The chancery court issued a final decree of divorce which incorporated the Permanent Parenting Plan approved by the parties. Pursuant to the plan, the mother was designated the primary residential parent and the father was given overnight visitation. The plan also ordered the father to pay the mother child support pursuant to the Tennessee Child Support Guidelines. When the father failed to make child support payments and exercise his visitation rights under the plan, the mother filed a petition for contempt. She also asked the trial court for an upward deviation in child support due to the father's failure to exercise his rights to overnight visitation. The mother also asked the chancellor to award her litigation costs associated with bringing the petition. The father filed a counter-petition, asking the court for a downward deviation in his child support obligation due to his recent loss of income. The trial court originally granted a downward deviation to the father finding that a significant variance existed, but subsequently reinstated the original child support award. The mother filed this appeal, alleging the chancellor erred in refusing to grant her an upward deviation in child support and in not awarding her litigation expenses. For the reasons contained herein, we reverse in part and affirm in part the decision of the chancery court.
On October 9, 2001, the chancellor granted Linda Kurts-Parrish ("Mother" or "Appellant") an absolute divorce from Gregory Parrish ("Father" or "Appellee"). The chancellor approved a Permanent Parenting Plan, reached through mediation, which set forth the custody arrangement and child support obligation concerning the parties' two minor children, Zachary Addison Parish (DOB: 02/28/89) and Lauren Marie Parrish (DOB: 07/29/87) (collectively the "Children"). Prior to the court granting Mother an absolute divorce, Father left Memphis, Tennessee, and moved to Dallas, Texas, in order to take a higher paying job. The parenting plan directed Father to pay $1,464.00 in child support directly to Mother each month based on the income generated by his job in Texas. Regarding custody, the parenting plan provided that the Children were to reside with Mother while enrolled in school. Father was granted overnight visitation with the Children for part of their winter vacations, all of their spring vacations, part of their summer vacations from school, and each Thanksgiving holiday.
From October 9, 2001, until May 6, 2002, Father continued to reside in Texas. During this period of time, Father had only one week of overnight visitation with the Children. Father occasionally traveled back to Memphis on weekends and would sometimes visit with the Children on these visits. On February 14, 2003, Mother filed a Petition for Contempt and to Modify Final Divorce Decree of Absolute Divorce and Permanent Parenting Plan with the chancery court. Mother alleged that Father had not exercised overnight visitation with the Children as outlined in the parenting plan, and that Father had either not paid any child support for certain months or had paid less than the amount ordered by the court. Mother asked the chancery court for an upward deviation in child support due to Father's non-visitation with the Children, and for her litigation expenses associated with filing the petition. Father filed an answer and a counter-petition to Mother's petition on May 1, 2003. In his petition, Father asked the chancellor to modify the original parenting plan and award him more visitation time with the Children. In response to Mother's assertions regarding non-payment of child support, Father alleged that he and Mother entered into a verbal agreement to modify the original child support obligation. Father also asserted that a material change in circumstances had occurred since the parenting plan was entered into, warranting a downward deviation in child support. Specifically, Father stated that he had taken a new job in Marion, Arkansas, to be closer to the Children, and that this new job resulted in less income.
The chancellor conducted a hearing on July 10, 2003, to consider the evidence presented by both parties regarding their respective petitions. On August 12, 2003, the chancellor entered an order containing the following findings:
1. Respondent, Gregory Parrish, according to stipulation of the parties, has a child support arrearage of $6,696.38 and owes Petitioner attorney fees in the amount of $1,687.50, all of which is to be paid at the rate of $170.00 per month.
2. The Court finds that there has been a significant deviance in Respondent's income to justify reducing and resetting child support of $1,265.00 per month.
3. Petitioner's request to deviate upward from the child support guidelines because Respondent has less parenting time than contemplated by the guidelines is denied.
4. Respondent shall have visitation with the parties' children every other Saturday from 10:00 a.m. to 2:00 p.m. and one evening each week when he does not have the Saturday visitation. Respondent will be responsible for picking up and delivering the children for his parenting time.
5. Respondent shall pay Court costs in this matter, including the $75.00 filing fee reimbursing Petitioner and shall be responsible for one-half the Court reporter's per diem.
On September 11, 2003, Mother filed a motion for a new trial alleging the following: (1) the court erred in awarding Father a downward deviation in child support because he was voluntarily underemployed and no significant variance existed, (2) the chancellor erred in not awarding her an upward deviation for non-visitation pursuant to the Tennessee Child Support Guidelines ("Guidelines"), (3) the court erred in not awarding her attorney's fees incurred from the hearing, and (4) the chancellor erred in not awarding her the entire amount of the court reporter's fee.
The chancellor issued a ruling on Mother's motion for a new trial on December 10, 2003, in which he reversed the court's order of August 12, 2003. The chancellor stated that no significant variance existed warranting a downward deviation, therefore Father should continue to pay child support in the amount set forth in the original parenting plan. The chancery court also denied Mother's motion for a new trial in regards to an upward deviation in child support for non-visitation, and denied her request for additional attorney's fees and the full amount of the court reporter's fee. Mother appeals the rulings of the chancery court regarding her motion for a new trial, submitting the following issues for our review:
I. Whether the chancery court erred in denying Appellant's request for an upward deviation in child support pursuant to the Tennessee Child Support Guidelines due to Appellee's failure to exercise visitation as contemplated in the parenting plan;
II. Whether the chancery court erred in denying Appellant additional attorney's fees and the entire court reporter's fee incurred by Appellant as a result of the hearing conducted in this matter below; and
III. Whether Appellant should be awarded attorney's fees incurred as a result of seeking this appeal.
In reviewing the findings of the chancery court, we are guided by the following standard of review:
Since this case was tried by the trial 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.
Watters v. Watters, 22 S.W.3d 817, 820 (Tenn. Ct. App. 1999); Tenn. R. App. P. 13(d) (2003). "Questions of law are reviewed de novo with no presumption of correctness." Hoback v. Hoback, No. M2001-01913-COA-R3-CV, 2004 Tenn. App. LEXIS 205, at *3 (Tenn. Ct. App. Apr. 5, 2004) (citing Murdock Acceptance Corp. v. Jones, 362 S.W.2d 266, 268 (Tenn. Ct. App. 1961)). We have greater latitude when determining whether a lower court's findings as to mixed questions of fact and law are supported by the evidence. Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995). In addition, when reviewing a trial court's decisions regarding child support we apply the following standard of review:
[W]e review child support decisions using the deferential "abuse of discretion" standard of review. This standard requires us to consider (1) whether the decision has a sufficient evidentiary foundation, (2) whether the court correctly identified and properly applied the appropriate legal principles, and (3) whether the decision is within the range of acceptable alternatives. See BIF v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at *2 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application filed). While we will set aside a discretionary decision if it rests on an inadequate evidentiary foundation or if it is contrary to the governing law, we will not substitute our judgment for that of the trial court merely because we might have chosen another alternative.
State v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).
On appeal, Mother contests the chancellor's ruling, denying her an upward deviation in...
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