Richardson v. Spanos

• Decision Date: 05 October 2005
• Citation: 189 S.W.3d 720
• Parties: Judi RICHARDSON v. George Kevin SPANOS.
• Court: Tennessee Court of Appeals

Page 720

189 S.W.3d 720

Judi RICHARDSON v. George Kevin SPANOS.

Court of Appeals of Tennessee, at Nashville.

May 7, 2004 Session.

October 5, 2005.

Permission to Appeal Denied by Supreme Court March 20, 2006.

COPYRIGHT MATERIAL OMITTED

D. Scott Parsley and Joshua G. Strickland, Nashville, Tennessee, for the appellant, Judi Richardson.

Joseph Y. Longmire, Jr., Hendersonville, Tennessee, for the appellee, George Kevin Spanos.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and FRANK G. CLEMENT, JR., JJ., joined.

This appeal involves a dispute between the parents of an eleven-year-old boy over child support and private school tuition. The child's mother filed a petition in the Circuit Court for Sumner County seeking to obtain an increase in child support and to hold the father in contempt for failing to pay medical bills. The father responded by filing a petition seeking a deduction in child support because of reduced earnings. Following a bench trial, the trial court reduced the father's child support and denied the mother's request to require the father to pay the child's private school tuition. The child's mother has appealed. We have concluded that the trial court properly decreased the father's base child support obligation because of his reduced income. However, we have also concluded that the trial court erred by failing to require the father to pay a reasonable portion of the child's private school tuition.

I.

Lewis Tyler Spanos was born in Florida on May 2, 1994 to Judi Richardson and George Kevin Spanos. At the time, Ms. Richardson was an entertainer, and Dr. Spanos was a physician working on cruise ships. Ms. Richardson and Dr. Spanos never married; however, a Florida court confirmed Dr. Spanos's parentage in April 1996 and ordered Dr. Spanos to begin paying approximately $1,587 in monthly child support, as well as 92% of his son's medical and dental bills. Dr. Spanos has had little involvement with his son since his birth, and so Ms. Richardson has raised the child essentially on her own.

Dr. Spanos eventually moved to Waverly, Tennessee where he was employed as an emergency room physician. Ms. Richardson and the parties' son moved to Branson, Missouri. It was during the stay in Missouri that the child's developmental challenges and learning disabilities became more evident. Ms. Richardson eventually moved to Franklin, Tennessee and enrolled the parties' son in a transitional kindergarten program at a private school in Nashville. He continued in that program even after Ms. Richardson moved to Sumner County. However, the school eventually requested Ms. Richardson to withdraw her child because he was unable to keep up with his classmates.

During this time, Dr. Spanos was apparently not keeping up with his child support obligations. Accordingly, in October 2000, Ms. Richardson obtained an order from the Circuit Court for Sumner County domesticating the Florida judgment requiring Dr. Spanos to pay child support. The trial court also found Dr. Spanos to be in civil contempt for failing to make his child support payments and to pay the child's medical expenses. The trial court ordered Dr. Spanos to pay the $734.35 child support arrearage and $3,164.73 in medical expenses. The court denied Ms. Richardson's request for increased child support on the ground that the amount of child support required by the Florida order exceeded the amount of support required by the Tennessee Child Support Guidelines. However, the court declined to reduce Dr. Spanos's support obligation because it determined that an upward deviation was called for in light of Dr. Spanos's refusal to have much to do with his son.

After Ms. Richardson moved to Sumner County, she enrolled the parties' son in the Nannie Berry Elementary School ("Nannie Berry"), a public school in Sumner County. The staff at Nannie Berry recognized the child's challenges and developed a special program for him. At some point during the child's first year at Nannie Berry, Ms. Richardson moved to Bellevue in Davidson County. When she informed the Nannie Berry staff that she no longer lived in Sumner County, Ms. Richardson was told that the parties' son could continue at Nannie Berry even though she no longer resided in Sumner County as long as she continued to rent her apartment in Sumner County. Accordingly, Ms. Richardson continued to rent her apartment in Sumner County even though she and the parties' child resided in Davidson County.

In early 2002, the staff at Nannie Berry informed Ms. Richardson that the parties' son could no longer attend school in Sumner County unless she obtained an out-of-zone variance. Accordingly, Ms. Richardson applied for the variance because she wanted her son to remain at Nannie Berry. However, she changed her mind after the staff at Nannie Berry informed her that they had decided that they could no longer meet her son's needs and that they were considering transferring him to Wessington Place Elementary School. Ms. Richardson did not desire to enroll the parties' child at this school because she believed that the parties' son was too advanced for that school.

The parties continued to spar over support issues. In January 2002, Ms. Richardson filed her third contempt petition seeking to require Dr. Spanos to pay for the medical expenses she had incurred having the parties' son evaluated at Vanderbilt University Medical Center. Dr. Spanos responded in April 2002, requesting the court to reduce his obligation to pay the child's medical expenses from 92% to 50% in light of the new diagnoses and the increased medical expenses associated with them.

In April 2002, Ms. Richardson applied to enroll the parties' son at Currey Ingram Academy ("Currey Ingram"), a private school in Nashville offering individualized programs for children with special needs. Ms. Richardson did not consult Dr. Spanos about enrolling their child in this school, even though its tuition was approximately $17,000 per year. In May 2002, Ms. Richardson filed an amended petition opposing any reduction in Dr. Spanos's obligation to pay their son's medical expenses and requesting that Dr. Spanos be required to pay for sending their son to private school because he "can no longer successfully attend public school and should attend private school if he is to have any hope of improvement."

In July 2002, Ms. Richardson informed the trial court that the parties' son had been accepted at Currey Ingram and that he would not be eligible for scholarship assistance until his second year. Accordingly, she requested the trial court to require Dr. Spanos to pay one-half of the child's tuition. After the child enrolled at Currey Ingram in August 2002, the staff confirmed that he had significant problems with "impulsivity" and "hyperactivity" and that he also had a language disorder.

Dr. Spanos responded to Ms. Richardson's amended petition in March 2003. In addition to denying that he had willfully refused to pay his son's medical expenses, he objected to paying any portion of the Currey Ingram tuition and requested a reduction in his child support obligation because his "ability to earn" had decreased.

All pending matters were heard on April 1, 2003. In its May 1, 2003 order, the trial court lowered Dr. Spanos's child support obligation to $1,078 per month in light of the decrease in his income. However, the trial court also specifically approved an upward variance of $236 per month because of Dr. Spanos's failure to visit with his son.¹ The court declined to require Dr. Spanos to pay for the child's private school expenses and denied each party's petition for attorney's fees. Ms. Richardson has appealed from the trial court's denial of her request for increased child support, and both Ms. Richardson and Dr. Spanos have appealed from the denial of their requests for attorney's fees.

II. DR. SPANOS'S CHILD SUPPORT OBLIGATION

Ms. Richardson has a double-barreled objection to the trial court's decision to reduce Dr. Spanos's child support obligation. First, she argues that Dr. Spanos was not entitled to a decrease in child support based on his decreased income because he is willfully and voluntarily underemployed. Second, she argues that there should have been an upward deviation in Dr. Spanos's child support based on the expenses associated with sending their son to Currey Ingram. We have determined that the record supports the trial court's conclusion that Dr. Spanos is not willfully underemployed and that the decrease in his income entitles him to a reduction in his child support. We have also determined that the trial court erred by failing to require Dr. Spanos to be responsible for paying a reasonable portion of his child's educational expenses.

A.

Parents have "deeply rooted moral responsibilities" to support their minor children. Boggs v. Boggs, 520 U.S. 833, 847, 117 S.Ct. 1754, 1764, 138 L.Ed.2d 45 (1997) (quoting Rose v. Rose, 481 U.S. 619, 632, 107 S.Ct. 2029, 2037, 95 L.Ed.2d 599 (1987)); State Dep't of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594, 600 (Tenn.1990); Baker v. Baker, 169 Tenn. 589, 592, 89 S.W.2d 763, 764 (1935). In addition to this moral responsibility, Tennessee law imposes a legal obligation on parents to support their minor children in a manner commensurate with their own means and station in life. Tenn.Code Ann. § 34-1-102(a) (2001); Wade v. Wade, 115 S.W.3d 917, 920 (Tenn.Ct.App.2002). Ever since 1984, the process and criteria for ascertaining a parent's child support obligation has been governed by Child Support Guidelines promulgated by the Tennessee Department of Human Services in accordance with Tenn.Code Ann. § 36-5-101(e) (Supp.2004).

Prior to the adoption of the Child Support Guidelines, trial courts had wide discretion in matters relating to child custody and support. Hopkins v. Hopkins, 152 S.W.3d 447, 452 (Tenn.2004) (Barker, J., dissenting). Their discretion was...