Wine v. Wine

• Decision Date: 18 May 2007
• Docket Number: No. M2006-00855-COA-R3-CV.,M2006-00855-COA-R3-CV.
• Citation: 245 S.W.3d 389
• Parties: France Isabelle Ter Weele WINE v. Jeffrey Michael WINE
• Court: Tennessee Court of Appeals

245 S.W.3d 389

France Isabelle Ter Weele WINE v. Jeffrey Michael WINE

No. M2006-00855-COA-R3-CV.

Court of Appeals of Tennessee, Middle Section, at Nashville.

February 8, 2007 Session.

May 18, 2007.

Permission to Appeal Denied by Supreme Court October 22, 2007.

Dana C. McLendon III, Franklin, Tennessee, for the appellant, Jeffrey Michael Wine.

Robert Todd Jackson, Brentwood, Tennessee, for the appellee, France Isabelle Ter Weele Wine.

FRANK G. CLEMENT, JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN, J. and PATRICIA J. COTTRELL, JJ., joined.

OPINION

The father of three children appeals the denial of his post-divorce petition to reduce child support and for Tenn. R. Civ. P. 60.02(5) relief from his alimony in solido obligation. He was earning $80,000 a year when the parties entered into the Marital Dissolution Agreement in July 2004 but was fired two weeks prior to the entry of the Final Decree of Divorce on September 27, 2004. Two months later, he was indicted for theft of property over $60,000, and remained in custody for one month until family posted his bond. Thereafter, he filed a petition to reduce child support and for Rule 60.02(5) relief from his alimony in solido obligation. The mother admitted there was a significant variance but opposed the petition contending the father was willfully underemployed because the conduct for which he was fired was willful. The trial court denied the petition to reduce child support upon a finding the father failed to prove the significant variance was not caused by his willful and voluntary underemployment. We reverse the denial of the petition to reduce child support because the trial court erroneously placed the burden on the father to prove that he was not willfully underemployed when the burden of proof was on the mother. We affirm the denial of Rule 60.02(5) relief because the father's decision to assume the alimony in solido obligation was a free, calculated, and deliberate choice, and his failure to anticipate a significant change in his earning capacity did not constitute a circumstance for which Rule 60.02(5) relief should be granted.

I. FACTS AND PROCEDURAL HISTORY

France Isabelle Ter Weele Wine, Mother, and Jeffrey Michael Wine, Father, were married for nine years, during which time they produced three children. They divorced in 2004, at which time all of their children were under the age of six. When the parties entered into their Martial Dissolution Agreement (MDA) on July 22, 2004, Father was employed as the General Manager of the Old Natchez Country Club earning $80,000 per year, and Mother worked in the home as a homemaker.¹ Father's child support obligation was set pursuant to the Guidelines at $2,000 per month. The MDA also stated the parties' agreement that Father would pay alimony in solido in the amount of $132,000 over four years at the rate of $2,000 per month for the first twenty-four months, $3,000 per month for the next twelve months, and $4,000 for the final twelve months. The MDA was dated July 22, 2004; however, the Final Decree of Divorce was not entered until October 18, 2004.

Father's financial picture changed dramatically within three months of entering into the MDA and two weeks prior to the entry of the Final Decree of Divorce. On September 27, 2004, he was fired by his employer, the Old Natchez Country Club, for alleged financial improprieties. His efforts to obtain similar employment over the next two months proved unsuccessful. To make matters worse, on December 13, 2004, he was indicted for theft of property over $60,000. When he was booked on the charges on December 15, 2004, he was unable to post bail and, therefore, was taken into custody where he remained until January 12, 2005, when his family and friends posted his bond.

Thereafter, Father renewed his search for employment, but with no success. He attributes his lack of success to being snubbed by the close-knit country club industry in which he had worked for years. Having fallen behind in his child support and alimony obligations and seeing no end to his financial problems, he filed a Petition to Modify Support Obligations and Enter Permanent Parenting Plan on February 7, 2005, in which he contended his employment problems constituted a significant variance which drastically impeded his ability to meet his child support and alimony obligations.² He requested, inter alia, modification of his child support obligations to reflect his current income in accordance with the Child Support Guidelines and modification of his additional support obligations, including alimony.

In her answer to the Petition, Mother admitted there had been substantial change of circumstances and a significant variance; however, she contended that all such changes were "directly caused by the misconduct, adultery, lying, deceit and criminal activity of [Father]." She also disputed Father's claim that he had made every diligent effort to find employment. Contemporaneous with the filing of her Answer, Mother filed a Petition for Criminal Contempt and to Modify Permanent Parenting Plan. In her petition, she stated that Father was five months behind in his child support and alimony payments. After various additional pleadings and motions, the court set all pending matters for a hearing on April 25, 2005.³

Ten days prior to the scheduled hearing, Father delivered two cashier's checks totaling approximately $17,000. The two checks represented the past due child support and alimony obligations through February 7, 2005. At the time the checks were delivered, Father had not secured employment. As he explained later, he was wholly dependent on his new wife and his family for financial support.

After months of unemployment, he began working in May of 2005 at a restaurant owned by his new wife earning an annual salary of $35,000. In spite of the new employment and an improved financial picture, Father was earning less than $3,000 per month and, therefore, did not have sufficient income to pay $4,000 per month in child support and alimony.

The hearing which had been originally set for April was continued by agreement to June 7, 2005. When the matter came on for hearing on June 7, Father and Mother testified; however, on the advice of counsel, Father refused to answer any questions that pertained to the pending criminal charges and his former employment at the Old Natchez Country Club, including specifically the reasons for his termination. Following the hearing, the court took the matter under advisement. Three weeks later, on June 28, 2005, the court entered an Order in which it concluded that Father had failed to prove by a preponderance of the evidence a sufficient or substantial change of circumstances that entitled him to any modification of the child support.

As for Mother's Petition for Contempt, the court found that Father was not in criminal contempt for failing to pay child support, but that he was guilty of criminal contempt for failing to pay alimony. The trial court explained that this finding was based on the fact that Father: (1) hired a criminal defense attorney to defend him against the theft charges for a retainer fee of $30,000; (2) made bond in the amount of $150,000 for which the premium was $15,000; (3) cashed a $10,303 check from a 401(k) account; and (4) had a salary of $35,000. As the trial court further explained, "he had access to funds sufficient to meet his said alimony obligation...."

Father appeals contending the trial court erred by denying his petition to modify his child support and alimony obligations. For her part, Mother contends she is entitled to recover her expenses and attorney's fees incurred on appeal.

II. STANDARD OF REVIEW

The standard of review of a trial court's findings of fact is de novo and we presume that the findings of fact are correct unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d); Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn.Ct.App.2001). For the evidence to preponderate against a trial court's finding of fact, it must support another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn.Ct.App. 2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn.Ct.App.1999). Where the trial court does not make findings of fact, there is no presumption of correctness and we "must conduct our own independent review of the record to determine where the preponderance of the evidence lies." Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn.1999). We also give great weight to a trial court's determinations of credibility of witnesses. Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997); B & G Constr., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn.Ct.App.2000). Issues of law are reviewed de novo with no presumption of correctness. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.1999).

III. MODIFICATION OF CHILD SUPPORT

The modification of child support is governed by Tenn.Code Ann. § 36-5-101(g) (2006). See Kaplan v. Bugalla, 188 S.W.3d 632, 636 (Tenn.2006). Since 1994 the initial inquiry in a petition for child support modification is "whether there is a `significant variance' between the current obligation and the obligation set by the Guidelines." See Huntley v. Huntley, 61 S.W.3d 329, 335 (Tenn.Ct.App.2001); see also Kaplan, 188 S.W.3d at 636. The parent seeking to modify a child support obligation has the burden to prove that a significant variance exists. Turner v. Turner, 919 S.W.2d 340, 345 (Tenn.Ct.App. 1995).

Even though a significant variance is proven, the trial court may deny a petition for modification of child support if the variance is the result of willful or voluntary underemployment. The burden of proving that a significant variance is the result of willful or voluntary underemployment is on the party opposing the modification. Demers v. Demers, 149 S.W.3d 61, 69 (Tenn.Ct.App.2003); ...