IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 27, 2012 Session
CHELSEA SAMANTHA BARNES
v.
DANIEL ADAM BARNES
Appeal from the Chancery Court of Cheatham County
No. 14713 Robert E. Burch, Judge
No. M2011-01824-COA-R3-CV - Filed: October 24, 2012
This is a divorce appeal. The parties were married for two years and had one minor child.
At the time of the divorce trial, both parties were unemployed. The trial court adopted the
mother’s proposed parenting plan in its entirety, based on its review of the child support
history. It awarded minimal alimony and calculated child support by imputing income to the
father but not to the mother. The father appeals. We affirm the award of alimony, vacate the
parenting plan and the award of child support, and remand for further proceedings consistent
with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in
Part, Vacated in Part, and Remanded
H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.
Jon S. Jablonski, Nashville, Tennessee for the Defendant/Appellant Daniel Adam Barnes
Jennifer Noe and Lynn Newcomb, Ashland City, Tennessee, for the Plaintiff/Appellee
Chelsea Samantha Barnes
OPINION
F ACTS AND P ROCEEDINGS B ELOW
Plaintiff/Appellee Chelsea Samantha Barnes (“Mother”) and Defendant/Appellant Daniel
Adam Barnes (“Father”) married on June 13, 2008. One child was born of the marriage,
daughter Madison Lee Barnes (“Maddie”), in March 2009. During the marriage, Father had
steady work running his own business. Until the child was born, Mother worked at a
minimum wage job; after birth of the parties’ child, Mother became a stay-at-home parent.
In June 2010, after a little over two years of marriage, Mother filed a complaint for divorce
in the Chancery Court of Cheatham County, alleging inappropriate marital conduct and
irreconcilable differences. Father counterclaimed for divorce, alleging inappropriate marital
conduct by Mother, as well as irreconcilable differences. On July 15, 2010, the trial court
entered a temporary consent order with a parenting schedule in which Mother was designated
as the primary residential parent and Father had substantial alternate parenting time; Father’s
child support was set at $65 per month.
In November 2010, the parties engaged in mediation, which appears to have been partially
productive. They agreed to a parenting plan that would apply until the child began attending
pre-kindergarten. Under this mediated agreement, Mother was again the primary residential
parent, and Father had substantial alternate parenting time. The parties were unable to agree
on a parenting plan that would apply once the child began pre-kindergarten, or on other
issues such as child support, alimony, and the party to whom the divorce would be awarded.
The mediated agreement, signed by all parties and their counsel, is included in the appellate
record. However, the mediated agreement was apparently not put in the form of an order,
and the parties proceeded to trial on all issues, including those on which they had agreed in
the mediation.1
The trial was held on July 14, 2011. The appellate record does not contain a transcript of the
trial. The trial court filed its own statement of the evidence outlining the testimony, and our
recitation of the proof comes from the statement of the evidence. The trial court heard
testimony from several witnesses, but the primary testimony came from Mother and Father.
At the time of trial, Mother was 23 years old, Father was 31 years old, and the parties’
daughter was two years old. Father has a son from a previous marriage, who was eight years
old at the time of trial.
1
The fact that the parties’ mediated agreement was not incorporated into the trial court’s final order is not
raised as an issue on appeal.
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Mother testified that Father acted like “father of the year” toward their daughter when they
were out in public but did not pay attention to her while at home. She asserted that Father
ignored their daughter in favor of spending more time with his son, doing things such as
practicing baseball. Mother said that Father cursed her in front of the children and recounted
an incident in which Father allegedly coached toddler Maddie into calling Mother a “whore.”
Mother claimed that Father attempted to get Mother to perform sexually inappropriate acts
when the children were around the house.
Mother testified that the job she held before giving birth to the parties’ daughter paid $7.25
per hour. At the time of trial, Mother was physically unable to work due to a hip injury
sustained in a car accident. Mother had apparently undergone one surgery on her hip and
was expecting to have additional surgery to repair a problem from her previous surgery.
Mother said her second surgery will require approximately six weeks of recovery time.
Mother testified that she should be able to resume working after she recovers from this
surgery. At the time of trial, Mother was receiving food stamps, which were sufficient to pay
for breakfast and lunch for Mother and Maddie, but Mother’s parents were paying for their
dinners.
Father’s testimony contrasted with Mother’s testimony. Father testified that when he had
parenting time with their daughter, they often engaged in activities such as going to the zoo,
to the park, or to his son’s baseball games. Father said that Maddie and his son are close and
enjoy spending time together. Father claimed that Mother had expressed the feeling that their
daughter was holding Mother down. When the parties were still living together, Father said,
Mother would leave their daughter with Mother’s parents while Mother “would run the
streets.” Father said that he wanted to share parenting time with Maddie “fifty-fifty” with
Mother. Father was especially concerned about their daughter being in Mother’s care on
Wednesday nights because Mother and her parents go out on Wednesday nights and drink
heavily. For this reason, Father asked the trial court to give him parenting time on
Wednesday nights. Father said the parties’ biggest arguments had been over allowing
Mother’s parents, after they had been drinking heavily, to take Maddie home with them.
At the time of trial, Father was unemployed because “his business went under.” Prior to the
demise of Father’s business, he made $40,000 per year. The day before the trial, Father sold
his business inventory in order to pay his $1000 child support obligation.
The trial court heard testimony from other witnesses as well. The maternal grandmother
corroborated Mother’s testimony that Father sometimes ignored Maddie, and that he coached
the child into calling Mother a “whore.” Father’s former wife testified that Father is a good
parent, and that their son and Father’s daughter Maddie are well cared for in his custody. She
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said that Father had always paid child support for their son. This concluded the evidence
presented at trial.
On August 1, 2011, the trial court entered a final divorce decree and Mother was awarded
the divorce on grounds of inappropriate marital conduct. The trial court adopted Mother’s
proposed parenting plan in its entirety. Under this parenting plan, Mother was designated
the primary residential parent. Father received 85 days of alternate parenting time per year,
primarily in the form of parenting time every other weekend from 6 p.m. Friday to 6 p.m.
Sunday on the weekends that Father’s son was with him. Although Mother received two
weeks of uninterrupted parenting time in the summer, Father was given no additional
summer parenting time. Holidays were divided in a way that largely favored Mother.
Child support in the parenting plan was calculated by using an income for Father of $2,080
per month, and attributing $0 income to Mother, resulting in a child support payment for
Father of $384 per month.2 Based on this, the trial court held that Father owed $1,430 in
child support arrearages.3 Mother was awarded the federal income tax credit for the child.
In the order, the trial court explained that it had concluded that Mother’s parenting plan was
“in the best interest of the minor child after reviewing the child support history in this matter.
[Father] shall be given credit on his arrearage amount for the $1,000.00 he paid after the
preparation of the parenting plan by [Mother].”
The final decree also awarded Mother a total of $1,350 dollars in alimony, paid over the
course of six months. Father now appeals.
ISSUES ON A PPEAL AND S TANDARD OF R EVIEW
On appeal, Father argues that the record does not support an award of alimony in this short
term marriage. Father also contends:
The parenting plan entered by the [trial court], which purports to provide for
the care and support of the parties’ minor child, is not justified by the evidence
presented, makes no effort to permit both parents to enjoy the maximum
participation possible in the life of the child consistent with the factors set
2
Any self-employment tax paid by Father was not deducted from this gross income amount despite Father
having been self-employed; however, an amount of $329.25 was deducted based on the child support Father
paid for his son.
3
The child support worksheet attached to the parenting plan adopted by the trial court appears to calculate
child support based on Father receiving 80 days of parenting time per year, rather than the 85 days per year
that was ultimately awarded.
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forth in [Tennessee Code Annotated] § 36-6-106, and is not in the child’s best
interest.
In the Argument section of his brief, Father addresses both the parenting schedule and the
child support awarded in the parenting plan adopted by the trial court.4
Findings of fact by the trial court, sitting without a jury, are reviewed de novo on the record,
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d) (2007). If the trial court fails to make findings of fact, the appellate court must
conduct its “own independent review of the record to determine where the preponderance of
the evidence lies.” Crabtree v. Crabtree, 16 S.W.3d 356, 360 (Tenn. 2000) (citing Brooks
v. Brooks, 992 S.W.2d 403, 405 (Tenn. 1999)). We afford great deference to the trial court’s
determinations on the credibility of witnesses. Hughes v. Metro. Gov’t of Nashville &
Davidson Co., 340 S.W.3d 352, 360 (Tenn. 2011); Estate of Walton v. Young, 950 S.W.2d
956, 959 (Tenn. 1997). Questions of law are reviewed de novo, with no presumption of
correctness. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001); Williams v. Williams, 286
S.W.3d 290, 295 (Tenn. Ct. App. 2008).
Trial courts are afforded broad discretion in decisions regarding the nature, duration, and
amount of alimony; therefore, but for an abuse of discretion, the trial court’s award of
alimony will normally be upheld on appeal. Andrews v. Andrews, 344 S.W.3d 321, 340
(Tenn. Ct. App. 2010); Ingram v. Ingram, 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986).
Likewise, the trial court has considerable discretion concerning the details of the parties’
parenting arrangement. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); Suttles v.
Suttles, 748 S.W.2d 429, 429 (Tenn. 1988). A trial court may be found to have abused its
discretion “when it applies an incorrect legal standard, reaches a decision that is illogical,
bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning
that causes an injustice to the complaining party.” Richardson v. Spanos, 189 S.W.3d 720,
725 (Tenn. Ct. App. 2005).
Prior to the adoption of the Child Support Guidelines, trial courts had wide discretion in
matters relating to child custody and support. Richardson, 189 S.W.3d at 725 (citing
Hopkins v. Hopkins, 152 S.W.3d 447, 452 (Tenn. 2004) (Barker, J., dissenting)). However,
4
In her appellate brief, Mother contends that Father did not properly raise child support as an issue on appeal.
We find that, though child support could have been more clearly included in the Issues section of Father’s
brief, it is part of the parenting plan and Father has fairly raised it as an issue on appeal. Mother chose not
to include any argument in the alternative on the issue of child support, so we consider the issue based on
Father’s arguments and the Court’s research.
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the adoption of the Child Support Guidelines has limited the courts’ discretion substantially,
and decisions regarding child support must be made within the strictures of the Child Support
Guidelines. Richardson, 189 S.W.3d at 725 (citing Berryhill v. Rhodes, 21 S.W.3d 188, 193
(Tenn. 2000); Jones v. Jones, 930 S.W.2d 541, 545 (Tenn. 1996); Smith v. Smith, 165
S.W.3d 279, 282 (Tenn. Ct. App. 2004)). “[T]he amount of support derived from a proper
application of the formula in the Child Support Guidelines becomes the presumptive amount
of child support owed.” Richardson, 189 S.W.3d at 725. This amount of support is
rebuttable. Id.; Tenn. Code Ann. § 36–5–101(e)(1)(A); Tenn. Comp. R. & Regs. 1240-2-4-
.01(1)(d)(1) (2006); see also Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). “Trial
courts may, in their discretion, deviate from the amount of support required by the Child
Support Guidelines, but when they do, they must make specific written findings regarding
how the application of the Child Support Guidelines would be unjust or inappropriate in the
case.” Richardson, 189 S.W.3d at 725 (citing State v. Wilson, 132 S.W.3d 340, 343 (Tenn.
2004); Jones, 930 S.W.2d at 545; Tenn. Code Ann. § 36-5-101(e)(1)(A); Tenn. Comp. R.
& Regs. 1240-2-4-.07(1)(b) (2006); Tenn. Comp. R. & Regs. 1240-2-4-.01(4) (2006)). Thus,
while the trial courts retain some discretion on a few issues that fall under the rubric of child
support, they are for the most part required to either comply with the Child Support
Guidelines or state in detail the basis for any decision to deviate from them.
A NALYSIS
Alimony
Father argues on appeal that the trial court erred in granting Mother an award of alimony.
He asserts that, in Mother’s complaint for divorce, she asked for only pendente lite alimony,
and therefore the trial court’s judgment exceeded the scope of the pleadings. Father also
contends that Mother offered no proof as to her needs, her ability to earn, or Father’s ability
to pay. Father acknowledges that there is proof in the record that Mother would be unable
to work for a period of approximately six weeks while recovering from surgery, but he notes
also that undisputed proof at trial demonstrated that Father was unable to pay alimony.
Specifically, Father points out the proof that he was unemployed at the time of trial and had
resorted to selling the inventory from his defunct business in order to pay his child support.
Addressing Father’s argument that relief awarded exceeded the scope of the relief sought in
Mother’s complaint, this Court must give Mother’s complaint “liberal construction with all
reasonable intendments taken in favor of the judgment.” Killingsworth v. Ted Russell Ford,
Inc., 104 S.W.3d 530, 534 (Tenn. Ct. App. 2002) (quoting Brown v. Brown, 281 S.W.2d
492, 497 (Tenn. 1955)). Reviewing Mother’s complaint under this standard, we find that the
complaint Mother filed can fairly be read to ask for an award of spousal support.
Consequently, we reject this contention.
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Father argues next that Mother did not offer proof concerning her needs, her earning
capacity, or Father’s present ability to pay. Certainly we are presented with a sparse record
in this cause. Unfortunately, the trial court below did not even specify the type of alimony
it was awarding. Based on the duration and nature of the alimony award, it cannot be either
in futuro or in solido, leaving either rehabilitative or transitional alimony as the only
remaining choices. Tenn. Code Ann. § 36-5-121(d)(1) (2005); Andrews, 344 S.W.3d at 341
(“Four types of spousal support are recognized in Tennessee: alimony in futuro, alimony in
solido, rehabilitative alimony, and transitional alimony.”) There was no proof that Mother
intended to pursue rehabilitation in the form of education or training, so we surmise that the
award was intended to be transitional alimony. Tenn. Code Ann. § 36-5-121(g)(1-4) (2011).
Moreover, the trial court also failed to make any factual findings to support its alimony
award. The lack of factual findings by the trial court leaves us with the task of “conduct[ing]
our own independent review of the record to determine where the preponderance of the
evidence lies.” Simmons v. Simmons, No. M2005-00348-COA-R3-CV, 2006 WL 236904,
at *2; 2006 Tenn. App. LEXIS 69, at *5 (Tenn. Ct. App. Jan. 31, 2006) (quoting Brooks v.
Brooks, 992 S.W.2d 403, 405 (Tenn. 1999)).
The undisputed evidence in the record shows that Mother was unable to work at the time of
trial, was anticipating surgery on her hip, and expected to have a recovery period of
approximately six weeks. Mother also testified that she was in serious financial straits,
relying on food stamps and assistance from her parents for food for herself and the parties’
daughter. The proof also showed that, during the marriage, Mother worked at a minimum
wage job, while Father earned approximately $40,000 per year. At the time of trial, however,
both parties were unemployed. Father had sold some business inventory to meet his child
support obligation.
Based on our review, we find that the record contains minimally sufficient, undisputed
evidence to support the trial court’s award of transitional alimony, given the modest amount
of alimony awarded and the limited duration of the award. Therefore, we cannot conclude
that the award constituted an abuse of the trial court’s discretion.
Parenting Plan
Father next argues that the trial court erred in adopting Mother’s proposed permanent
parenting plan outright. Father points out that the only reason cited by the trial court for
adopting Mother’s proposed parenting plan was that it found “it is in the best interest of
[Maddie] after reviewing the child support history in this matter.” Father argues that even
this single finding is not supported by the evidence in the record. Father contends that the
plan adopted by the trial court “made no effort to permit both parents to enjoy the maximum
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participation possible in the life of the child consistent with the factors set forth in T.C.A. §
36-6-106.” Of the factors enumerated in Tennessee Code Annotated §36-6-106, Father
contends that six are neutral, three weigh in his favor, and none weigh in Mother’s favor.
In response, Wife cites this Court’s 1987 decision in Dodd v. Dodd, 737 S.W.2d 286, 289
(Tenn. Ct. App. 1987), for the proposition that the fifty-fifty joint parenting arrangement
proposed by Father in the trial court below “rarely, if ever works – for the children.” Based
on the statement of the evidence prepared by the trial court, Mother claims, it is apparent that
the trial court took into account all relevant matters in making its decision on the parenting
arrangement.
In fashioning a parenting plan, the trial court is charged with keeping the best interest of the
child paramount; the needs of the parents are secondary. The parenting plan is focused on
the child, and the goal is to place the child in the environment that best serves his or her
needs. Tenn. Code Ann. § 36-6-106(a) (2012); Tenn. Code Ann. § 36-6-404; Eldridge, 42
S.W.3d at 85; Parker v. Parker, 986 S.W.2d 557, 562 (Tenn. 1999); Cummings v.
Cummings, No. M2003-00086-COA-R3-CV, 2004 WL 2346000, at *5; 2004 Tenn. App.
LEXIS 676, at *12-13 (Tenn. Ct. App. Oct. 15, 2004). Tennessee Code Annotated §36-6-
401 addresses this:
The general assembly recognizes the fundamental importance of the parent-
child relationship to the welfare of the child, and the relationship between the
child and each parent should be fostered unless inconsistent with the child's
best interests. The best interests of the child are served by a parenting
arrangement that best maintains a child's emotional growth, health and
stability, and physical care.
Tenn. Code Ann. § 36-6-401(a) (2010); Henson v. Henson, No.W2011-02504-COA-R3-CV,
2012 WL 3064102, at *3; 2012 Tenn. App. LEXIS 571, at *6-7 (Tenn. Ct. App. July 30,
2012). The trial court has broad discretion with regard to parenting plans, and its decision
will normally be upheld on appeal unless it was based on the “application of an incorrect
legal standard, is against logic or reasoning, or is not supported by a preponderance of the
evidence.” Cummings, 2004 WL 2346000, at *5; 2004 Tenn. App. LEXIS 676, at *14
(citing Eldridge, 42 S.W.3d at 85).
A trial court faced with a parenting decision is directed to consider the factors set forth in
Section 36-6-106(a) when fashioning a parenting plan. See also Tenn. Code Ann. § 36-6-
404. However, it is not required to expressly analyze each factor in its order or explain how
each factor affected its overall decision. Brady v. Gugler, No. M2006-01993-COA-R3-CV,
2008 WL 836089 at *4-5; 2008 Tenn. App. LEXIS 187, at *11-12 (Tenn. Ct. App. Mar. 27,
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2008); see also Reinagel v. Reinagel, No. M2009-02416-COA-R3-CV, 2010 WL 2867129,
at *5; 2010 Tenn. App. LEXIS 458, at *13 (Tenn. Ct. App. July 21, 2010) (citing Burris v.
Burris, No. M2009-00498-COA-R3-CV, 2010 WL 1404385, at *4; 2010 Tenn. App. LEXIS
254, at *12 (Tenn. Ct. App. Apr. 7, 2010)).
Unlike the evidence in this case relevant to alimony, the evidence in the statement of the
evidence on the parties’ parenting strengths and weaknesses is sharply conflicting. Mother
testified that Father is indifferent to his daughter, favors his son, and exposes the parties’
daughter to inappropriate language and conduct. For his part, Father testified that he is an
enthusiastic and involved parent, and that Mother felt constrained by being a parent and
placed the parties’ daughter in the care of her inebriated maternal grandparents. The trial
court made no express determinations regarding the parties’ credibility, or which testimony
was credited. Indeed, the trial court made no factual findings at all pertaining to the
parenting plan.
In some cases, even where the trial court has not made express its assessment of the
witnesses’ credibility, the appellate court can surmise which witnesses were credited based
on the factual findings made, or even based on the trial court’s ultimate decision. In this
case, we cannot. The trial court’s order states the sole basis for its decision to adopt
Mother’s proposed parenting plan as its “review[] [of] the child support history in this
matter.” That is it.
Mother invites this Court to assume that the trial court considered all relevant factors in
arriving at its decision. The trial court’s order precludes such an assumption. The trial
court’s order states the sole basis for its decision, namely, “the child support history,” and
does not even explain what it means by that.
As noted above, trial courts have broad discretion in decisions on parenting issues. However,
this discretion is not without bounds. Respectfully, a choice to base an important decision
such as the best parenting plan for the parties’ child solely on “the child support history” is
illogical and amounts to an abuse of the trial court’s discretion.
In some cases, if the trial court is deemed to have abused its discretion with respect to a
parenting plan, the appellate court can rectify the situation by modifying the parenting plan
adopted by the trial court or by otherwise ordering a specific parenting arrangement. This is
not such a case. As noted above, the record of the trial consists of a minimal statement of
the evidence, which summarizes sharply conflicting evidence regarding parenting issues.
The trial court gave no indication whose testimony it would have credited had it relied on the
parties’ testimony in making its decision. Thus, we are left with little choice but to vacate
the parenting plan adopted by the trial court and remand the case for adoption of a new one.
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On remand, we specifically draw the trial court’s attention to an amendment to Tennessee
Code Annotated §36-6-106(a) that became effective shortly before the trial in this cause. The
amended provision states:
In taking into account the child’s best interest, the court shall order a custody
arrangement that permits both parents to enjoy the maximum participation
possible in the life of the child consistent with the factors set out in
subdivisions (a)(1)-(10), the location of the residences of the parents, the
child’s need for stability and all other relevant factors.
Tenn. Code Ann. § 36-6-106(a) (2011); see 2011 Pub. Acts, ch. 433, § 1 (effective June 6,
2011); Henson, 2012 WL 3064102, at *3; 2012 Tenn. App. LEXIS 571, at *7. We observe
also that the parenting plan proposed by Mother and adopted by the trial court was notably
lop-sided, in that it permitted Father no more than two days at a time with his daughter, year-
round, and divided holidays in a way that clearly favored Mother. We recognize that, in
some instances, such a parenting schedule may be necessary to fit the child’s needs, which
are paramount. This may especially be true with a very young child, as is the parties’
daughter in this case. However, it is noteworthy that the parties’ mediated parenting
agreement afforded Father more time with his daughter than does the plan ultimately adopted
by the trial court. While the trial court is not bound by a parenting arrangement on which the
parties have agreed, it may legitimately take such an agreement into account. See Greer v.
Greer, No. W2009-01587-COA-R3-CV, 2010 WL 3852321, at *7; 2010 Tenn. App. LEXIS
614, at *19-20 (Tenn. Ct. App. Sept. 30, 2010).
Moreover, under Rule 52.01 of the Tennessee Rules of Civil Procedure, the trial court is
required to render findings of fact and conclusions of law to support its decisions. Tenn. R.
Civ. P. 52.01 (2007); Poole v. Union Planters Bank, 337 S.W.3d 771, 791 n.12 (Tenn. Ct.
App. 2010). Simply stating the trial court’s decision, without more, does not fulfill this
mandate. To avoid further remand in the event of another appeal, on remand, the trial court
is directed to issue findings of fact and conclusions of law.
Child Support
Father argues that the trial court erred in calculating child support using an income for Father
of $2,080 per month and an income for Mother of zero, when in fact both parties were
unemployed at the time of trial. Father notes that Mother worked before their child was born,
albeit at a minimum wage job, and she testified that she expected to be able to work again
once she completed recovery from her anticipated second surgery.
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“The fairness of a child support award depends on an accurate determination of both
parents’ gross income or ability to support.” Massey v. Casals, 315 S.W.3d 788, 795 (Tenn.
Ct. App. 2009). In most cases, a parent’s earning capacity or ability to earn income is
equivalent to the parent’s gross income. Id. In this case, however, at the time of trial, neither
party was employed, and neither had income. As the trial court, once again, made no factual
findings to support its decision, we can only surmise that the trial court chose to impute
income to Father, but not to Mother, and based its child support calculation on Father’s
imputed income alone.
Under the Child Support Guidelines, the trial court may impute income under certain limited
circumstances. See Goodman v. Goodman, No. W2011-01971-COA-R3-CV, 2012 WL
1605164, at *4; 2012 Tenn. App. LEXIS 293, at *12 (Tenn. Ct. App. May 7, 2012); see also
Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(i)(I-III). The Goodman Court explained:
[T]he Guidelines provide that: “[i]mputing additional gross income to a parent
is appropriate . . . [i]f a parent has been determined by a tribunal to be willfully
and/or voluntarily underemployed or unemployed.” Tenn. Comp. R. & Regs.
1240–2–4–.04(3)(a)(2)(i). However, to trigger this portion of the child support
guidelines and “[t]o calculate a child support award based on earning capacity
rather than actual net income, there must be a threshold finding that the
obligor parent is willfully and voluntarily underemployed or unemployed.”
Marcus v. Marcus, No. 02A01-9611-CV-00286, 1998 WL 29645, at *3
(Tenn. Ct. App. January 28, 1998) (emphasis added); see also Kendle v.
Kendle, No. M2010-00757-COA-R3-CV, 2011 WL 1642503, at *3 (Tenn. Ct.
App. April 28, 2011) (citing Tenn. Comp. R. & Regs. 1240-2-4-
.04(3)(a)(2)(i)(I)).
Goodman, 2012 WL 1605164, at *4. In Goodman, the trial court had made no finding that
the obligor parent was willfully or voluntarily underemployed or unemployed. Id. at *6. On
that basis, the appellate court reversed the award of child support and remanded the case for
calculation of child support based on the obligor parent’s actual income. Id. at *6.
In the case at bar, there was no finding that Father was willfully or voluntarily unemployed.
From our review of the statement of the evidence, there was no evidence presented that
would have supported such a finding as to Father. Father apparently contends that the trial
court should have imputed income to Mother, based on her testimony that she expected to
be able to return to working minimum wage jobs once she recovered from surgery.
However, as with Father, there is no evidence in the record that would support a finding that
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Mother was willfully or voluntarily unemployed at the time of trial.5 Considering the
evidence overall, we are left with little choice but to vacate the trial court’s award of child
support.
Father also argues that the trial court erred in finding a child support arrearage of $1,430,
with $1,000 credit toward this amount, reflecting the payment made by Father the day before
the trial, after selling the inventory from his defunct business. He contends that the evidence
adduced at trial supported a finding that he was current on his child support obligation as of
the day of trial.
The statement of the evidence prepared by the trial court contains the following description
of Mother’s testimony at trial: “[Father] was behind in his child support in the amount of one
thousand ($1000) dollars until the day before the hearing, when he paid all of his child
support arrearage.” Father likewise testified that he had brought his child support current as
of the date of trial. We agree with Father that the undisputed evidence at trial establishes that
Father did not have an arrearage as of the date of trial. Therefore, we must vacate this
holding as well.
C ONCLUSION
In sum, we affirm the award of alimony; vacate the parenting plan, the award of child
support, and the award of a child support arrearage; and remand for a new determination of
the parties’ parenting plan and for further proceedings consistent with this Opinion. On
remand, the trial court is charged with reconsidering the entire parenting plan, including child
support. In light of the passage of time and the nature of the case, the trial court may, in its
discretion, consider additional evidence. “[E]vents and lives have not stood still while this
custody dispute has been in the courts.” Wall v. Wall, No. W2010-01069-COA-R3-CV, 2011
WL 2732269, at *26 (Tenn. Ct. App. July 14, 2011) (quoting Gorski v. Ragains, No. 01A01-
9710-GS-00597, 1999 WL 511451, at *4 (Tenn. Ct. App. July 21, 1999)); see also Hawkins
v. O'Brien, No. M2008-02289-COA-R3-CV, 2009 WL 2058802, at *6 (Tenn. Ct. App. July
15, 2009).
5
Mother did not testify that she intended to immediately return to work after recovering from surgery. In
light of the age of the parties’ child, considerations such as any costs associated with child care would have
to be factored into such a decision.
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The decision of the trial court is affirmed in part, vacated in part, and remanded for further
proceedings. Costs on appeal are assessed one-half to Appellant Daniel Adam Barnes and
his surety, and one-half to Appellee Chelsea Samantha Barnes, for which execution may
issue if necessary.
__________________________
HOLLY M. KIRBY, JUDGE
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