Marilee Ann Petrey Jones v. John Timothy Jones

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
MARCH 9, 2010 Session

MARILEE ANN PETREY JONES v. JOHN TIMOTHY JONES

Direct Appeal from the Circuit Court for Davidson County
No. 07D2373 Muriel Robinson, Judge

No. M2009-01512-COA-R3-CV - Filed May 20, 2010

After the parties’ divorce, Mother was named primary residential parent and Father was ordered to
pay $3,250.00 per month child support. Father filed two petitions seeking a reduction of his support
obligation, which were denied. The parties then agreed that Father would pay $2,500.00 per month
support through March 1, 2014. Thereafter, Father filed a third petition to reduce support claiming
decreased income and increased parenting time. Subsequently, the parties signed an agreement
allowing substantially equal parenting time, which was filed with the trial court, but never signed
by the trial judge. The trial court denied Father’s third petition for modification, finding both that
he had failed to prove a significant variance and that he was contractually bound to his $2,500.00
agreement. The trial court also awarded Mother’s attorney his $15,000.00 fee. We affirm the trial
court’s award of attorney fees to Mother’s attorney as well as its refusal to reduce Father’s child
support obligation due to his allegedly decreased income. However, we remand to the trial court for
consideration of whether Father’s child support obligation should be reduced due to increased
parenting time, and for entry of the parties’ Agreed Parenting Plan Order. We decline to award
Mother her attorney fees incurred on appeal.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.

Andrew M. Cate, Nashville, Tennessee, for the appellant, John Timothy Jones

Michael W. Binkley, Franklin, Tennessee, for the appellee, Marilee Ann Petrey Jones
 OPINION

I. FACTS & PROCEDURAL HISTORY

Marilee Petrey Jones (“Mother”) and John Timothy Jones (“Father”) were divorced
in February 1999 after an approximately ten-year marriage. Pursuant to a Marital Dissolution
Agreement (“MDA”) entered at the time of their divorce, Mother was named the primary
residential parent of the parties’ two minor children and Father was granted standard
visitation and ordered to pay $3,250.00 per month child support in accordance with the
Tennessee Child Support Guidelines (the “Guidelines”).

In June 2000, Father filed a “Petition to Modify Custody, Child Support, and
Alimony.” Father claimed that at the time of the parties’ divorce he was earning $72,000.00
per year in the “family [carwash] business,” but that he was no longer employed by, or
drawing a salary or profits from, such business. He also stated that he had taken a lesser-
paying job with BellSouth–earning $5,200.00 per month–and therefore, that his child support
should be reduced to $1,196.00 per month. Mother filed a counter-petition for criminal
contempt, based on Father’s alleged failure to pay child support and alimony. Father’s
petition was denied and Mother’s counter-petition was granted. Father appealed.1

While his appeal was pending, Father filed a second petition to reduce child support
in May 2001, based on his termination from BellSouth. Following a hearing, the petition was
denied. However, acknowledging that “due to conflict with his father and their business
activities, [Father] does not have access to [his substantial] assets or funds[,]” the trial court
temporarily reduced Father’s child support to $455.00 per month without forgiving the
$2,795.00 per month difference.

In December 2001, Mother filed a second petition for contempt claiming that Father
failed to pay child support as previously ordered by the trial court. In settlement of Mother’s
petition, the parties executed an “Agreed Order” requiring Father to pay Mother a lump sum
of $65,000.00 for child support and alimony arrearages, as well as $2,500.00 per month child
support through March 1, 2014. The Agreed Order was filed with the court in April 2002.
Thereafter, Father sold ten percent of his ownership in the family business to his father
(“Grandfather”), who agreed to pay the $2,500.00 per month to Mother.2

1
A “Stipulation of Dismissal Pursuant to T.R.A.P. Rule 15” was entered on January 14, 2002.
2
There is no indication that the agreement between Father and Grandfather was ever reduced to
writing.

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 In August 2007, Father filed a third petition to modify child support, which is the
subject of this appeal. Father claimed a significant variance in that he was currently earning
approximately $50,000.00 per year, and that the parties were exercising substantially equal
parenting time with the children.

The parties executed an agreed “Permanent Parenting Plan Order,” filed in December
3
2008, naming Mother as the primary residential parent, but allowing each party substantially
equal parenting time. Regarding child support, the Permanent Parenting Plan Order provided:

It is the intention of the parties that this agreed parenting plan shall
serve and stand as the final order with regard to all outstanding issues, with the
only exception reserved being modifying Father’s child support obligation
from the current $2,500.00 amount, to the amount called for under the
Tennessee Child Support Guidelines.

....

The parties have not been able to reach an agreement regarding child support.
In the event that the parties are unable to agree, on or before September 11,
2008, on the amount of child support Father should be paying under the
current guidelines, the Court will decide the amount of child support on
September 11, 2008.

The parties acknowledge that, once the proper amount of child support is set
as indicated above, Court approval must be obtained before child support can
be reduced or modified.

During the February 26, 2009 hearing on Father’s third petition to modify child
support, Mother made an oral motion for an involuntary dismissal based both on Father’s
failure to meet his burden of proof regarding a significant variance and on his pre-existing
contractual agreement to pay $2,500.00 child support. In its order, the trial court granted the
dismissal, finding that “[t]here has been no sufficient change in circumstances to warrant a
reduction[,]” and furthermore, that “[t]he [Agreed] Order of April 17, 200[2], remains and
is considered to be contractual in nature between the parties and enforceable as a contract for
the specified time, therefore modification or change of circumstance has no bearing thereon.”
Despite Father’s apparent request that the trial court do so, the trial court did not enter the
parties’ agreed Permanent Parenting Plan, stating that “[t]he child custody and visitation

3
The Permanent Parenting Plan Order was filed with the trial court, but was not signed by the trial
judge.

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portions of the Final Decree may be entered in Parenting Plan form if the parties hereto
agree, otherwise the divorce decree is the controlling Order as to parenting time.” Finally,
the trial court ordered Father to pay Mother’s $15,000.00 attorney fee. Father appeals.

II. I SSUES P RESENTED

Father has timely filed his notice of appeal and presents the following issues for
review, summarized as follows:

1. Whether the trial court erred in failing to enter the Agreed Parenting Plan Order;

2. Whether the trial court erred in failing to reduce Father’s child support obligation; and

3. Whether the trial court erred in awarding a $15,000.00 judgment payable to Mother’s
attorney for his fees.

Additionally, Mother presents the following issue:

1. Whether Mother should be awarded her attorney fees incurred on appeal.

For the following reasons, we affirm the trial court’s award of attorney fees to Mother’s
attorney as well as its refusal to reduce Father’s child support obligation due to his allegedly
decreased income. However, we remand to the trial court for consideration of whether
Father’s child support obligation should be reduced due to increased parenting time, and for
entry of the parties’ Agreed Parenting Plan Order. We decline to award Mother her attorney
fees incurred on appeal.

III. S TANDARD OF R EVIEW

Our review of the trial court’s involuntary dismissal of Father’s petition is governed
by Tennessee Rule of Appellate Procedure 13(d). Bldg. Materials Corp. v. Britt, 211 S.W.3d
706, 711 (Tenn. 2007) (footnote omitted) (citing Atkins v. Kirkpatrick, 823 S.W.2d 547, 552
(Tenn. Ct. App. 1991)). On appeal, a trial court’s factual findings are presumed to be correct,
and we will not overturn those factual findings unless the evidence preponderates against
them. Tenn. R. App. P. 13(d) (2009); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 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. Watson v. Watson, 196 S.W.3d 695,
701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71
(Tenn. Ct. App. 2000); The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581,
596 (Tenn. Ct. App. 1999)). When the trial court makes no specific findings of fact, we

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review the record to determine where the preponderance of the evidence lies. Ganzevoort
v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997) (citing Kemp v. Thurmond, 521 S.W.2d 806,
808 (Tenn. 1975)). We accord great deference to a trial court’s determinations on matters
of witness credibility and will not re-evaluate such determinations absent clear and
convincing evidence to the contrary. Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783
(Tenn. 1999) (citations omitted). We review a trial court’s conclusions of law under a de
novo standard upon the record with no presumption of correctness. Union Carbide Corp.
v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol.
Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

IV. D ISCUSSION

A. Entry of Permanent Parenting Plan Order

On appeal, Father argues that the trial court erred in failing to enter the agreed
Permanent Parenting Plan Order executed by the parties. We need not address whether this
failure was error, as Mother has stated to this Court that she has no objection to its entry.4
Therefore, we remand to the trial court for entry of the agreed Permanent Parenting Plan
Order executed by the parties in 2008.

B. Child Support

As we stated above, the trial court found that Father contractually bound himself to
pay $2,500.00 per month in child support, and thus, that any alleged significant variance
between that amount and the amount imposed under the Guidelines was irrelevant. However,
Father contends that his agreement to pay $2,500.00 child support pursuant to the Agreed
Order was modifiable and that he proved a significant variance justifying a reduction to
$319.26 per month.

Parties are free to agree “to a child support obligation that exceeds the amount payable
directly to an obligee parent under the Guidelines and to a method of calculating child
support that differs from the mechanism contemplated by the Guidelines as long as the
resulting child support meets or exceeds the amount mandated under the Guidelines.” Kesser
v. Kesser, 201 S.W.3d 636, 642 (Tenn. 2006) superseded by statute on other grounds as

4
The trial court indicated that the parties failed to present evidence regarding their agreed Permanent
Parenting Plan Order. There is no evidence that the trial court found entry of such would be contrary to the
children’s best interest. See In re Emma E., No. M2008-02212-COA-R3-JV, 2010 WL 565630, at *7 (Tenn.
Ct. App. Feb. 17, 2010) (“[C]ourts remain free to reject any parenting plan that is not in the best interests
of the child.”).

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stated in Moore v. Moore, 254 S.W.3d 357, 360 n.5 (Tenn. 2007) (citing Tenn. Code Ann.
§ 36-5-101([j])). “‘[S]ettlement agreements made during or in contemplation of litigation
are enforceable as contracts.’” Allison v. Hagan, 211 S.W.3d 255, 260 (Tenn. Ct. App.
2006) (quoting Barnes v. Barnes, 193 S.W.3d 495, 496-97 (Tenn. 2006)). However, “[a]n
agreement between parties ‘with respect to,’ ‘dealing with,’ or within ‘the scope of’ the legal
duty to support their children during minority ‘loses its contractual nature’ when merged into
a divorce decree .” Id. (citing Penland v. Penland, 521 S.W.2d 222, 224 (Tenn. 1975)).
“Because the provision merges into the decree, the child support obligation is subject to
modification by the trial court.” Id. (citing Tenn. Code Ann. 36-5-101(a); Penland, 521
S.W.2d at 224). If an obligor spouse agrees to provide more child support than is required
under the Guidelines, the obligor “does not pay support that is ‘outside’ the Guidelines” such
that it is not subject to modification. Id. at 643. “To the contrary, the additional amount of
child support paid by the obligor continues to be ‘with respect to,’ ‘dealing with,’ or within
‘the scope of’ the legal duty to support his children during minority.” Id. (citing Wade v.
Wade, 115 S.W.3d 917, 921 n.2 (Tenn. Ct. App. 2002)). Accordingly, “any agreement
between the parents regarding the payment of child support of a minor child is within the
legal obligation to support the minor child and, therefore, is subject to court modification
once the agreement is merged into a divorce decree.” (emphasis added) Id.

Although an agreement to pay child support in excess of the Guidelines during
minority is modifiable, an agreement to continue support beyond minority retains its
contractual nature, and thus, modification is governed by general contract principles. See id.
at 642 (citations omitted). “Any subsequent modification by a trial court of an agreement
that retains its contractual nature would violate the constitutional prohibition against the
impairment of contractual obligations.” Id. at 643 (citing Blackburn v. Blackburn, 526
S.W.2d 463, 465 (Tenn. 1975)). “The courts may not make a new contract for parties who
have spoken for themselves and may not relieve parties of the contractual obligations simply
because these obligations later prove to be burdensome or unwise.” Bryan v. Leach, 85
S.W.3d 136, 152 (Tenn. Ct. App. 2001) (citing Marshall v. Jackson & Jones Oils, Inc., 20
S.W.3d 678, 682 (Tenn. Ct. App.1999)).

Pursuant to the Agreed Order, Father agreed to pay $2,500.00 per month child support
through March 1, 2014. Although the exact dates of majority5 are unclear from the record,
it is apparent that both children will have reached the age of majority by or before March 1,

5
“[U]nder Tennessee law, a parent is obligated to provide support for children only until they turn
eighteen years old or graduate from high school, whichever occurs later. Corder v. Corder, 231 S.W.3d 346,
356 (Tenn. Ct. App. 2006) (citing Kesser v. Kesser, 201 S.W.3d 636, 642 (Tenn. 2006); Hopkins v. Hopkins,
152 S.W.3d 447, 449 (Tenn. 2004)).

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2014.6 Father’s agreement to support his children beyond minority is a contractual obligation
subject to modification through general contract principles.

At oral argument before this Court, Father attempted to argue that the parties’
Permanent Parenting Plan Order, which stated that the trial court would set child support if
the parties were unable to agree upon such, constituted a written modification of the Agreed
Order’s $2,500.00 payment obligation. We find no evidence that Father raised this issue in
the trial court, nor do we find evidence of any consideration to support a modification of this
contractual agreement. Therefore, we find that Father is contractually obligated to pay
$2,500.00 per month child support from the time both children reach the age of majority
through March 1, 2014.

Although Father’s agreement to support his children beyond their minority is subject
to the general rules of contract interpretation, his agreement to support them during their
minority is subject to modification by the trial court.7 See id. “The modification of child
support is governed by Tennessee Code Annotated section 36-5-101(g).” Wine v. Wine, 245
S.W.3d 389, 393 (Tenn. Ct. App. 2007). The initial inquiry is “whether there is a ‘significant
variance’ between the current obligation and the obligation set by the Guidelines.” Id. at 394;
see Tenn. Code Ann. § 36-5-101(g)(1). Tennessee Code Annotated section 36-5-101(g)(1)
provides that the trial court shall increase or decrease child support upon finding a significant
variance “unless the variance has resulted from a previously court-ordered deviation from
the guidelines and the circumstances that caused the deviation have not changed.” 8 Father,

6
The parties’ children were born on January 24, 1991 and December 9, 1994.
7
The $2,500.00 payment from Grandfather was an account receivable by Father pursuant to a sale
by Father to Grandfather of a percentage of the family business. Father simply arranged for Grandfather to
make the payment directly to Mother in discharge of Father’s obligation. The payment was actually income
to Father which he utilized to meet his child support obligation. The parties do not argue that Father’s
“agreement” with Grandfather regarding the $2,500.00 monthly payment during the children’s minority
affects Father’s ability to seek a modification.
8
The Guidelines similarly provide:
Upon a demonstration of a significant variance, the tribunal shall increase or decrease the support
order as appropriate in accordance with these Guidelines unless the significant variance only exists
due to a previous decision of the tribunal to deviate from the Guidelines and the circumstances that
caused the deviation have not changed. If the circumstances that resulted in the deviation have not
changed, but there exist other circumstances, such as an increase or decrease in income, that would
lead to a significant variance between the amount of the current order, excluding the deviation, and
the amount of the proposed order, then the order may be modified.
(continued...)

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as the party seeking the modification, bears the burden of proving the existence of a
significant variance. Wine, 245 S.W.3d at 394.

At the hearing on Father’s modification petition, Father described his employment
history. He claimed that in 2002, when he agreed to pay $2,500.00 monthly support, he was
earning approximately $140,000.00 per year in the family carwash business, of which he
owned a twenty-eight percent interest. However, he claimed that Grandfather “stopped his
salary” in July of 2006, and then terminated him in December 2006. After suing
Grandfather, Father mediated a deal to retain sole ownership of four carwashes valued at
$4,084,000.00 After refinancing the debt on the carwashes and obtaining a loan to make
improvements to such, Father owed an approximately $2,855,000.00 debt on the properties.
In his 2007 petition to modify, Father claimed that he was currently earning $50,000 per year,
and at the hearing, he testified that in 2008 he drew approximately $75,000.00 from the
business, and that he was “scraping and scratching to make ends meet.” However, his
financial statements introduced at the hearing presented a different picture. According to his
sworn financial statements, Father’s net worth in 2007 was $2,552,000.00,9 including
$144,000.00 in cash and $49,000.00 in vehicles, while his annual expenses were only
$65,680.00. In 2008, his net worth increased to $2,664,460.00,10 including $127,000.00 in
cash and $100,000.00 in personal effects. He listed an income of $140,000.00 and living
expenses of $71,680.00.

In its Order, the trial court recited the “evidence” as follows:

As of the date of trial, Mr. Jones alleges he has experienced a change in his
ability to pay this $2,500.00 per month child support required by the April 17,
2002 Order. The proof presented by Mr. Jones’ own testimony is that he is the
owner of four car washes in the Nashville area as a result of a mediated
settlement with his Father over ownership of a family business. Mr. Jones and
his present wife run businesses and he totally controls his salary, her salary and
the gross receipts of his company. Mr. Jones has adequate borrowing power
and he successfully borrowed money from banks to renovate and expand his

8
(...continued)
Tenn. Comp. R. & Regs. § 1240-02-04-.05(5).
9
Father listed assets of $4,845,000.00 and liabilities of $2,293,000.00.
10
Father listed assets of $5,074,000.00 and liabilities of $2,409,540.00.

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 businesses. Mr. Jones has established credit lines with his banks and has
acquired personal assets and real estate. He totally manages his cash flow and
can readily pay all expenses he desires to do so.
....
His testimony reflected he and his present wife own a home valued at
$350,000.00 with equity of $72,460.00. His annual salary for financial
purposes was listed as $140,000.00. Further, he retained $127,000.00 in cash
as per his most recent financial statement.

Mr. Jones further testified that he controls the cash flow of his business and
has used business cash when he needed to pay for tuition for the children as
well as other expenses. He has used a note receivable to him of
approximate[ly] $30,000.00 per year to pay his child support of $2,500.00 per
month as reflected by the Order of April 17, 2002.

The fact that some tax returns reflect a loss of his small closely held business
is not surprising and is typical when the owner controls the gross receipts and
has ability to borrow, repay loans and pay personal expenses out of the
business accounts.

As we stated above, Father bears the burden of proving a significant variance
warranting a child support modification. Wine, 245 S.W.3d at 394. In his modification
petition, Father made an unsupported claim that he earned an income of only $50,000.00 in
2007, and at the hearing on such petition, he requested that his support be reduced to $319.26
per month. However, the testimony presented reveals that he and his current wife possess
complete control over their primarily-cash business, including the amount of income
withdrawn, and that although he chooses to withdraw only “the minimum [he] need[s] to get
by[,]” he is able to “just write a check” for “other expenses that might pop up[.]” Moreover,
Father’s personal financial statements demonstrate that he owns significant assets that can
be used to secure his obligation to pay child support. Father submits that his agreement to
pay $2,500.00 monthly child support was in accordance with the Guidelines pursuant to his
$140,000 income in 2002. Although Father allegedly withdrew less than $140,000.00 in
2007, Father has failed to show that he lacked the ability to withdraw that amount or that he
lacked assets valued at such. Therefore, we find that the evidence does not preponderate
against the trial court’s finding that Father failed to carry his burden of proving a significant
variance such that he is due a modification of child support. See Devault v. Devault, No. 01-
A-01-9806-CV00270, 1999 WL 377692, at *6 (Tenn. Ct. App. June 11, 1999) (including

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rental property and home equity in support calculation); Redmond v. Grunow, 898 S.W.2d
229, 231 (Tenn. Ct. App. 1995) (stating that execution could be made on obligor’s “wages
or other assets”).

Having found that Father has failed to show that his allegedly decreased income
warrants a modification of his child support obligation, we now address Father’s argument
that his increased parenting time warrants a modification. Pursuant to the parties’ MDA,
Father was granted the standard visitation presumed by the Guidelines11 –every other
weekend, alternating holidays, and two weeks during the summer. However, under the
Permanent Parenting Plan Order executed in September and November 2008, by Mother and
Father, respectively, the parties agreed to substantially equal parenting time: Mother 183
days, and Father 182 days. The Guidelines provide for a reduced child support obligation
when the alternate residential parent exercises additional parenting time:
If the ARP spends ninety-two (92) or more days per calendar year with a child,
or an average of ninety-two (92) days with all applicable children, an
assumption is made that the ARP is making greater expenditures on the child
during his/her parenting time for transferred costs such as food and/or is
making greater expenditures for child-rearing expenses for items that are
duplicated between the two (2) households (e.g., housing or clothing). A
reduction to the ARP’s child support obligation may be made to account for
these transferred and duplicated expenses, as set forth in this chapter. The
amount of the additional expenses is determined by using a mathematical
formula that changes according to the number of days the ARP spends with the
child and the amount of the BCSO [Basic Child Support Obligation]. . . . .
....
The presumption that more parenting time by the ARP results in greater
expenditures which should result in a reduction to the ARP’s support
obligation may be rebutted by evidence.
Tenn. Comp. R. & Regs. § 1240-02-04-.04(7)(h). Based on the parties’ substantially equal
parenting time, we find that Father may be entitled to a reduction in child support during each

11
“These Guidelines presume that, in Tennessee, when parents live separately, the children will
typically reside primarily with one parent, the PRP, and stay with the other parent, the ARP, a minimum of
every other weekend from Friday to Sunday, two (2) weeks in the summer, and two (2) weeks during the
holidays throughout the year, for a total of eighty (80) days per year. The Guidelines also recognize that
some families may have different parenting situations and, thus, allow for an adjustment in the child support
obligation, as appropriate, in compliance with the criteria specified below.” Tenn. Comp. R. & Regs. § 1240-
02-04-.04(7)(a).

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child’s minority, and we remand to the trial court for consideration of this issue.

B. Attorney Fees
Next, we address Father’s contention that the trial court erred in awarding attorney
fees to Mother’s attorney. Father argues that his claims regarding entry of the Permanent
Parenting Plan Order and for reducing his child support obligation should have succeeded
in the trial court, and thus, that Mother should not have received an award of attorney fees
as the prevailing party. Additionally, he claims that “there is no law which provides for a
judgment to be awarded to the attorney for a party.”

Tennessee Code Annotated section 36-5-103(c) vests trial courts with the power to
award reasonable attorney fees in child support modification cases. Huntley v. Huntley, 61
S.W.3d 329, 341 (Tenn. Ct. App. 2001). “The award of attorneys’ fees is within the trial
court’s discretion.” Id. (citing Richardson v. Richardson, 969 S.W.2d 931, 936 (Tenn. Ct.
App. 1997)). Therefore, unless it “‘affirmatively appears that the trial court’s decision was
against logic or reasoning, and caused an injustice or injury to the party complaining,’” we
will not reverse the trial court’s decision on appeal. Id. (quoting Marcus v. Marcus, 993
S.W.2d 596, 601 (Tenn. 1999)). We find that the fee amount awarded by the trial court was
not an abuse of its discretion, and Father fails to explain how awarding such fee directly to
Mother’s attorney caused him injury. The award is affirmed.

V. C ONCLUSION

For the aforementioned reasons, we affirm the trial court’s award of attorney fees to
Mother’s attorney as well as its refusal to reduce Father’s child support obligation due to his
allegedly decreased income. However, we remand to the trial court for consideration of
whether Father’s child support obligation should be reduced due to increased parenting time,
and for entry of the parties’ Agreed Parenting Plan Order. We decline to award Mother her
attorney fees incurred on appeal. Costs of this appeal are taxed to equally to Appellant, John
Timothy Jones, and his surety, and to Appellee, Marilee Petrey Jones, for which execution
may issue if necessary.

_________________________________
ALAN E. HIGHERS, P.J., W.S.

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