Scott v. Scott
| Decision Date | 20 March 2001 |
| Docket Number | 99-00322 |
| Court | Tennessee Court of Appeals |
| Parties | GEORGE DAVID SCOTT v. LINDA TRIBBLE SCOTTIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE |
Appeal from the Circuit Court for Davidson County, No. 95D-824
This appeal involves a post-divorce dispute over child support. Fifteen months after the parties were divorced in the Circuit Court for Davidson County, the custodial spouse petitioned the trial court to increase the noncustodial spouse's child support obligation because he was voluntarily underemployed and to hold the noncustodial spouse in criminal contempt. After being threatened with Tenn. R. Civ. P. 11 sanctions, the custodial spouse abandoned her criminal contempt allegations. Following a hearing, the trial court found that the noncustodial spouse was not voluntarily underemployed but increased his child support prospectively because of an anticipated increase in his income. On this appeal, the custodial parent takes issue with the trial court's refusal to find that the noncustodial parent was voluntarily underemployed, to make the increased child support retroactive to the date of her petition, and to award her only a portion of her legal expenses. We affirm the trial court and further find that the custodial spouse is not entitled to an additional award for the legal expenses she has incurred on this appeal.
WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.
Robert Todd Jackson, Nashville, Tennessee, for the appellant, Linda Tribble Scott.
Jack Norman, Jr., Nashville, Tennessee, for the appellee, George David Scott.
OPINIONGeorge David Scott is in the home repair business and is a qualified flight instructor. Linda Tribble Scott is a school teacher. The Scotts' marriage of over twenty years ended on December 13, 1995, when they were divorced in the Circuit Court for Davidson County. The divorce decree incorporated their marital dissolution agreement in which the parties agreed that Ms. Scott would receive custody of their two children and that Mr. Scott would pay Ms. Scott $310 per month in child support. The agreement recites that this level of child support was consistent with the child support guidelines. The agreement also requires Mr. Scott to inform Ms. Scott of his income by February of each year.
Despite their apparently amicable divorce, the parties' relationship rapidly deteriorated after Mr. Scott married again in March 1997. On month later, on April 9, 1997, Ms. Scott petitioned the trial court to increase Mr. Scott's child support, alleging that he was receiving income from "his parents, his new wife, or possibly a trust fund," and that he was willfully and voluntarily underemployed. She also petitioned the trial court to cite Mr. Scott with six counts of criminal contempt.1 Mr. Scott filed an answer and counter-petition denying that he was voluntarily underemployed or that he was receiving additional income from other sources. He vehemently denied the allegations in Ms. Scott's contempt petition.2 He also requested Tenn. R. Civ. P. 11 sanctions against Ms. Scott and asserted that she had filed the contempt petition solely to harass him and to cause him to incur unnecessary legal expenses.
In February 1998, Mr. Scott voluntarily increased his child support payments from $310 to $410 per month. The hearing on the pending petitions, originally scheduled for February 2, 1998, was continued because of a discovery dispute over late-filed exhibits to Mr. Scott's deposition. When the hearing began on February 25, 1999, the parties announced that Ms. Scott was abandoning her criminal contempt allegations in return for Mr. Scott's agreement not to pursue Tenn. R. Civ. P. 11 sanctions. During the hearing, both parties presented evidence regarding Mr. Scott's employment and salary, and Ms. Scott presented her lawyer's affidavit that she had incurred $7,701.25 in legal expenses in pursuing this litigation.
On March 15, 1999, the trial court filed an order increasing Mr. Scott's child support obligation from $410 to $435 per month beginning March 1, 1999, based on the anticipated increase in Mr. Scott's 1999 income from $18,920 in 1998 to $20,000. The order also provided that Mr. Scott's child support would be decreased to $282 per month on June 1, 1999, when their older child anticipated graduating from high school or on the child's eighteenth birthday in August 1999, whichever occurred later. The trial court also found that Mr. Scott was not voluntarily underemployed and awarded Ms. Scott $250 of her claimed legal expenses. Ms. Scott has appealed.
Ms. Scott asserts that the evidence preponderates against the trial court's conclusion that Mr. Scott was not willfully and voluntarily underemployed. She argues that the record contains no credible evidence that Mr. Scott is physically unable to engage in his contracting business full-time or that he has been unable to work full-time as a flight instructor. We have determined that the trial court's conclusion that Mr. Scott is not willfully and voluntarily underemployed has adequate evidentiary support.
Mr. Scott is in the home repair business and is also a certified flight instructor. His hourly earnings vary between $16 and $20 per hour. Mr. Scott is unable to pursue his home repair business full time because of a degenerative condition in a disk in his back - a condition known to Ms. Scott at the time of the divorce. He has also had some difficulty finding steady work as a flight instructor. At the time of the hearing, Mr. Scott was pursuing possible employment as a pilot with the Tennessee Department of Transportation.
Mr. Scott earned only $18,920.99 in 1998.3 In February 1998, he voluntarily increased his child support payments from $310 to $410 per month because his 1997 income exceeded the income he earned in 1996. During the February 1999 hearing, Mr. Scott testified that he expected to earn approximately $20,000 in 1999. During this same time, Ms. Scott's income was approximately $38,000.
Child support matters are largely governed by the child support guidelines first promulgated in 1988 by the Tennessee Department of Human Services under the authority of Tenn. Code Ann. 36-5-101(e)(2) (Supp. 2000). The purpose of these guidelines is to assure that children receive support reasonably consistent with their parents' financial resources. State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248-49 (Tenn. Ct. App. 2000). The guidelines accomplish this purpose by establishing a straightforward formula for determining child support and by providing that the amount of child support calculated with this formula is presumptively correct. Tenn. Comp. R. & Regs. r. 1240-2-4-.02(7) (1994). The two significant variables in the formula are the number of minor children requiring support and the net income of the parent who will be required to pay this support. Anderton v. Anderton, 988 S.W.2d 675, 680 (Tenn. Ct. App. 1998).
The obligor parent's income is the most important variable in proceedings to set or to modify child support. Turner v. Turner, 919 S.W.2d 340, 344 (Tenn. Ct. App. 1995). Once the obligor parent's income has been determined, the guidelines require the courts to calculate the parent's child support obligation using percentages based on the number of children needing support. Tenn. Comp. R. & Regs. r. 1240-2-4-.03(5) (1994). In most circumstances, the result of this calculation becomes the parent's child support obligation. However the courts may deviate these guidelines by making detailed written findings explaining why the strict application of the guidelines would be inappropriate and why deviating from the guidelines would be in the child's best interests. Tenn. Comp. R. & Regs. r. 1240-2-4-.02(7), -.04(2) (1994).
A parent's income is generally established using pay stubs, personal tax returns, or other documents subject to easy discovery. Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(e); Kirchner v. Pritchett, No. 01A01-9503-JV-00092, 1995 WL 714279, at *2 (Tenn. Ct. App. Dec. 6, 1995) (No Tenn. R. App. P. 11 application filed). However, the guidelines anticipate that circumstances might arise when this information is not available. In the absence of other reliable information regarding a parent's income, the guidelines require the courts to impute a $25,761 annual income to the obligor parent. Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(e). If the obligor parent fails to produce evidence of income in a proceeding to modify child support, then the guidelines require the courts to calculate the child support by increasing the current child support by not more than ten percent per year for each year since the child support was ordered or last modified. Tenn. Comp. R. & Regs. r. 1240-2-4-.03(f).
The guidelines also anticipate circumstances in which the parent will be able to provide evidence of his or her current income but that income is far below the income that the parent is capable of earning. In circumstances where a parent is "willfully and voluntarily underemployed or unemployed," the guidelines permit the court to calculate the parent's child support obligation "based on a determination of potential income, as evidenced by educational level and/or previous work experience." Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(d). Determining whether a person is willfully and voluntarily underemployed is a fact-driven inquiry requiring careful consideration of all the attendant circumstances. Ralston v. Ralston, No. 01A01-9804-CV-00222, 1999 WL 562719, * 3 (Tenn. Ct. App. Aug. 3, 1999) (No Tenn. R. App. P. 11 application filed).
Obligor parents should not be permitted to avoid their child support obligations by liquidating their businesses, by quitting work, or by taking...
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