Troglen v. Troglen, No. E2004-00912-COA-R3-CV (TN 4/28/2005)
| Decision Date | 28 April 2005 |
| Docket Number | No. E2004-00912-COA-R3-CV.,E2004-00912-COA-R3-CV. |
| Parties | STEPHANIE ANN TROGLEN v. VINCENT LAMAR TROGLEN. |
| Court | Tennessee Supreme Court |
Appeal from the Circuit Court for Hamilton County; No. 03-D-1641; Samuel H. Payne, Judge.
Judgment of the Circuit Court Affirmed as Modified.
Christine Mahn Sell, Chattanooga, Tennessee, for the Appellant, Vincent Lamar Troglen.
Richard B. Teeter, Chattanooga, Tennessee, for the Appellee, Stephanie Ann Troglen.
OPINION
The issues presented in this divorce case are whether the trial court erred in calculating Mr. Troglen's child support obligation; and whether the trial court erred in awarding Ms. Troglen transitional alimony. The trial court established Mr. Troglen's monthly child support obligation at $755. Additionally, the trial court ordered Mr. Troglen to pay to Ms. Troglen transitional alimony in the amount of $400 per month for a period of five years. We hold that the child support was properly calculated at $755 per month and that the trial court properly awarded Ms. Troglen alimony. However, we modify the alimony award from $400 per month transitional alimony for five years to $400 per month rehabilitative alimony for five years.
Stephanie Ann Troglen and Vincent Lamar Troglen were married in Hamilton County, Tennessee on October 10, 1993. There was one child born of this marriage, Madison Nicole Troglen (d.o.b. 05/08/94), and one child born to Ms. Troglen prior to this marriage, Steven Bradley Troglen (d.o.b. 05/05/90), whom Mr. Troglen adopted. Following almost ten years of marriage, Ms. Troglen filed a complaint for divorce on September 27, 2003, seeking, among other things, an absolute divorce, "primary possession" of the two minor children, child support, and the issuance of a temporary restraining order. The trial court entered the temporary restraining order on August 27, 2003. The temporary restraining order further adopted a temporary parenting plan submitted by Ms. Troglen.1
Mr. Troglen filed an Answer on September 3, 2003, and a hearing took place on the restraining order on September 4, 2003.2 The trial court entered an order following the testimony of the parties whereby the minor children were allowed to remain in the marital residence and Mr. and Ms. Troglen were to rotate residing in the marital residence on an alternating week basis. Finally, the trial court "mutually enjoined" the parties from calling each other, following and harassing each other, and from coming about the marital residence when it was not his/her week in the residence.
On December 5, 2003, Ms. Troglen filed a motion requesting, inter alia, that Mr. Troglen pay temporary support for her and the minor children pending the divorce trial. On December 22, 2003,3 following the argument of counsel and testimony of the parties, the trial court determined:
that the parties have been sharing the children on alternate weeks and that the Plaintiff, Stephanie Troglen, has been receiving the sum of $120.00 as temporary support for each child and the same amount for herself through December 2003, and that said amounts have each increased to $122.00 per month, or a total of $ 366.00 per month . . .
Further, the trial court ordered, in pertinent part:
Defendant shall continue to have the government pay to Plaintiff all monies he receives on behalf of the children or if received by him through accounts for the children, shall pay the same ($244.00 per month) to Plaintiff as child support commencing January 5, 2004 and each month thereafter until this matter is fully tried.
Plaintiff, as partial spousal support, shall continue to receive her social security payment of $122.00 per month or if received by the Defendant shall be turned over to her, plus no later than January 10, 2004, Defendant shall pay to the Plaintiff the sum of $ 500.00 as additional child/spousal support for the period through January 27, 2004.
(Paragraph numbering in original omitted).
On January 27, 2004, following the argument of counsel, testimony by the parties and testimony by the minor children, in camera,4 the trial court ordered, in pertinent part, as follows:
The Plaintiff shall be the primary residential parent and the Defendant shall be the secondary residential parent of said minor children. . . . Defendant shall pay child support to the Plaintiff in the total amount of $755.00 per month . . . The support shall be paid by Plaintiff receiving directly from Social Security the benefit checks for the children, which are now $ 184.00 each, and the Defendant paying directly to Plaintiff an amount sufficient to total $755.00 . . .
[I]t is further ordered that as in solido alimony, which shall not be affected by any subsequent marriage of the Plaintiff, Defendant shall pay to Plaintiff $400.00 per month for a period of five full years, to commence February 5, 2004, and on the fifth day of each month thereafter, until a total of $24,000.00 has been paid at which time this obligation shall end . . .
Following the disposition at trial and the entry of the final decree, Mr. Troglen's new counsel filed a Motion for Alteration or Amendment and/or Relief from Judgment or Order5 wherein she argued in pertinent part that Mr. Troglen:
respectfully requests the Court to re-calculate his child support obligation for two children based upon the Court's inclusion of Defendant's monthly Social Security benefits in determining that his child support obligation is $755 per month, which is disallowed as a matter of federal law.
The trial court ruled on this matter on May 21, 2004,6 and stated in pertinent part, "[t]he Court reaffirms the amount of child support ordered at $755.00 per month but is unable to say whether the Defendant's Social Security benefits were included in the calculation or if so, whether that affects the amount of the calculation." Mr. Troglen appeals the decision of the trial court.
The following issues are presented for our review, which we restate:
1. Whether the trial court erred in calculating Mr. Troglen's child support obligation.
2. Whether the trial court erred in awarding Ms. Troglen transitional alimony.
This is a non-jury case and, accordingly, our review is de novo upon the record of the trial court without any presumption of correctness attaching to the trial court's conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996) and Tenn. R. App. P. 13(d). We must, however, presume the trial court's factual finding to be correct absent evidence preponderating to the contrary. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
The first issue we address is whether the trial court erred in calculating Mr. Troglen's child support obligation. Mr. Troglen argues that the trial court incorrectly calculated his child support obligation at $755.00 per month, and then deducted the $368.00 the children receive from Social Security due to Mr. Troglen's disability and ordered Mr. Troglen to pay the remaining balance, $387.00 per month, to Ms. Troglen. Mr. Troglen asserts that his sole source of income is a combination of benefits7 he receives from the Veteran's Administration and Social Security due to a disability. Mr. Troglen argues that his benefits should be excluded from the calculation of his "gross income" in determining his child support obligation pursuant to the definition of "gross income" as set forth in the Tenn. Comp. R. & Regs. 1240-2-4-.03(3)(a)(1) (2004), which states:
(3) Gross Income (a) Calculation of Gross Income.
1. Gross income shall include all income from any source (before taxes and other deductions), whether earned or unearned, and includes but is not limited to the following: wages, salaries, commissions, bonuses, overtime payments, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, benefits received from the Social Security Administration, i.e., Title II Social Security benefits, workers compensation benefits whether temporary or permanent, judgments recovered for personal injuries, unemployment insurance benefits, gifts, prizes, lottery winnings, alimony or maintenance, and income from self-employment.
Further, Tenn. Comp. R. & Regs. 1240-2-4-.03(3)(a)(4)(i) states, "[t]o the extent Social Security Title II benefits received by a child on the obligor's account meet the support obligations ordered to be paid by the obligor for the child, these benefits shall be counted as child support payments." Finally, Tenn. Comp. R. & Regs. 1240-2-4-.03(3)(c)(2) states, with regard to those sources of income not included as gross income, in pertinent part:
2. Benefits received from means-tested public assistance programs otherwise exempt by federal law or regulations such as Families First, Aid to Families with Dependent children (AFDC) and Food Stamps or Supplemental Security Income (SSI).
Mr. Troglen argues that the record supports the view that both his Veteran's Disability Benefits as well as his monthly income from the Social Security Administration are "means tested public assistance" and therefore he has no income from which to calculate and order child support other than the benefits Ms. Troglen already receives from the Social Security Administration. Mr. Troglen, in making this argument, relies on a case previously decided by this court, State ex rel. Raybon v. McElrath, No. M2001-01295-COA-R3-JV, 2003 WL 22401276, Tenn. App. LEXIS 737 (Tenn. Ct. App. M.S., filed Mar. 19, 2002) no appl. perm. filed. We respectfully disagree with Mr. Troglen.
The trial court enjoys broad discretion in setting child support. State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn. 1991). Accordingly, we review child...
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