IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 24, 2015 Session
IN RE GRACE N.
Appeal from the Juvenile Court for Davidson County
No. PT120820 Sophia Brown Crawford, Judge
No. M2014-00803-COA-R3-JV – Filed May 14, 2015
In this juvenile court proceeding, Father objects to a number of decisions made by the
trial court concerning the parenting plan for the parties‟ child. We have determined that
the trial court erred in its determinations regarding parenting time and child support. As
to the latter, the trial court failed to consider Father‟s argument that Mother was
underemployed, abused its discretion in its treatment of Mother‟s work-related child care
expenses, and failed to properly calculate Father‟s income. We find no merit in any of
the other issues raised by Father.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part, Reversed and Remanded in Part
ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.
Jeffrey Spark, Nashville, Tennessee, for the appellant, Julian G.
D. Scott Parsley, Nashville, Tennessee, for the appellee, Rachel C. N.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Rachel N. (“Mother”) and Julian G. (“Father”) met online while Father was living
and working in France. He returned to Nashville in January 2009 to live near Mother;
they lived together for a short time, but Father moved out within a month. Although they
reconciled, Father did not move back into Mother‟s home. On June 4, 2009, Mother
informed Father that she was pregnant. The child, Grace N., was born in January 2010.
On January 13, 2010, Father filed a petition to establish parentage; Mother filed a
counter-petition to set child support and parenting time. In August 2010, the juvenile
court entered an order stating that DNA testing had established Father to be the biological
father of Grace N. The court noted that the child had been born approximately one
month premature, weighing four pounds, four ounces. At her age at the time of the
hearing of four and one-half months old, she weighed ten pounds, three ounces. Because
of her low birth weight, the child had increased susceptibility to infection. In addition,
Mother was breast-feeding. The court awarded Father temporary parenting time each
week on Monday and Friday from 7:00 a.m. to 8:30 a.m. and each Saturday from 11:00
a.m. to 12:30 a.m. in the nursery at Mother‟s house. Father was to pay $1,331 per month
in child support.
In November 2010, the parties entered into an agreed order modifying the
temporary parenting time and setting holiday parenting time. Under this agreed order,
Father was permitted to exercise parenting time outside of Mother‟s home provided that
he purchase a new child car seat. In October 2012, the court heard Father‟s motion to
incorporate overnight parenting time into the temporary parenting schedule pending the
final hearing. The court awarded Father parenting time every other weekend from
Saturday at 10:00 a.m. until Sunday at 6:00 p.m. Father was required to keep a journal of
Grace‟s fluid intake and urination and bowel movements.1
The magistrate held a final hearing on Father‟s petition to establish parentage and
Mother‟s counter-petition over two days in January 2013. The court found that Father‟s
request for equal parenting time was “not feasible” and “not in the child‟s best interests.”
The court adopted Mother‟s parenting plan with some changes. In an order entered on
March 27, 2013, the court held that Father owed retroactive child support in the amount
of $925.00 per month for 4.5 months for a total of $4,162.50; $2,709.70 for medical
expenses; and $2,454.00 for prenatal expenses.
Father immediately requested a de novo hearing before the juvenile court judge.
The matter was heard over seven days in July, August, September, and October 2013 and
February 2014. The following witnesses testified: Jennifer McCullough, preschool
teacher; Father; Angela Martin, mortgage banker; Eric Rajotte, co-owner of property with
Father; Father‟s wife; Grace‟s maternal grandmother; and Mother. Due to the
voluminous transcript, we will discuss the testimony as relevant to the issues below.
The trial court found that Father did not dispute the magistrate‟s designation of
Mother as the primary residential parent, and the court found that Mother was “the
evident and obvious choice” to be the primary residential parent. As to the parenting
schedule, the trial court found that it was in the child‟s best interest to adopt Mother‟s
1
Grace had been diagnosed with hydronephrosis, a kidney condition.
2
proposed parenting schedule, which gave Father 852 days of parenting time. The court
also gave Mother sole decision making authority on the basis that the parties did not
“communicate effectively.” In calculating the amount of retroactive child support due,
the court found that Father “lacks credibility as to his income and that he failed to provide
reliable evidence of his „total‟ income.” The court presumed that Father‟s ownership
interest in the Fatherland Street property3 was fifty percent (50%). The court added
$20,327.50 to Father‟s income in 2013 for the value of bartered services. The court
explained its computation of additional income attributed to Father.
Father‟s current child support was set at $1,218.00 per month. Retroactive child
support was set for each year, beginning in 2010; the amount paid by Father was then
subtracted from the amount calculated to be owed. This resulted in a total amount of
retroactive child support of $13,272.97. Father owed $1,647.47 in prenatal medical
expenses, and $4,498.14 in postnatal medical expenses. Father received credit in the
amount of $5,302.80 for garnishment payments, leaving a total judgment of $12,468.31.
ISSUES ON APPEAL
Father raises a number of issues in this appeal: (1) Whether the trial court erred
in granting Father only 68 days of parenting time; (2) whether the trial court erred in
setting current child support and child support arrears; (3) whether the trial court erred in
enjoining/restraining Father from making audio or video recordings during the exchange
of the child; (4) whether the trial court erred in ordering Mother to provide health
insurance rather than allowing Father to provide health insurance for the child; (5)
whether the trial court erred in ordering the parties to attend mediation in the event of
disagreement about the parenting plan; (6) whether the trial court erred in allocating sole
decision-making authority to Mother; and (7) whether Father is entitled to his attorney
fees on appeal. Mother argues that the trial court erred in declining to award her her
attorney fees below; she also asserts that she is entitled to her attorney fees on appeal.
ANALYSIS
(1) Parenting time
Father argues that the trial court erred in awarding him only 68 days of parenting
time. He asserts that he should receive the 173 days of parenting time requested in his
proposed parenting plan, or at least a greater number of days than awarded by the trial
court.
2
As will be discussed later in the opinion, Father and Mother differ in their calculation of the number of
days provided for in the parenting plan adopted by the court. Mother asserts that the plan gives Father 85
days of parenting time; Father argues that the plan only gives him 68 days of parenting time a year.
3
Father purchased a piece of rental property on Fatherland Street with Eric Rajotte and Richard Rajotte.
3
A trial court‟s decision regarding parenting time is reviewed under the deferential
abuse of discretion standard:
Trial courts have broad discretion to fashion parenting plans that best serve
the interests of the children. Tenn. Code Ann. § 3-6-101(a)(2)(A) (Supp.
2004). They must, however, base their decisions on the evidence presented
to them and upon the proper application of the relevant principles of law. D
v. K, 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995). While we are reluctant to
second-guess a trial court‟s decisions regarding a parenting plan, see
Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997),
we will not hesitate to do so if we conclude that the trial court‟s decision is
not supported by the evidence, that the trial court‟s decision rests on an
error of law, or that the child‟s interests will be best served by another
parenting arrangement. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.
2001); Steen v. Steen, 61 S.W.3d at 328; Placencia v. Placencia, 3 S.W.3d
497, 499 (Tenn. Ct. App. 1999).
Shofner v. Shofner, 181 S.W.3d 703, 716 (Tenn. Ct. App. 2004).
In this case, the trial court made the following decision regarding the parenting
schedule:
The purpose of parenting time is to enable each parent to maintain a loving,
stable, and nurturing relationship with the child. Based on the evidence
presented, the Court finds that it is in the child‟s best interest that Mother‟s
Proposed Parenting Schedule (Exhibit 66) be adopted by the Court and
made an Order of the Court considering the factors set forth at Tenn. Code
Ann. § 36-6-106(a)(1)-(10),[4] which weigh heavily in favor of Mother.
4
At the time of the trial court‟s decision, Tenn. Code Ann. § 36-6-106(a) listed the following factors:
(1) The love, affection and emotional ties existing between the parents or caregivers and child;
(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical
care, education and other necessary care and the degree to which a parent or caregiver has been the
primary caregiver;
(3) The importance of continuity in the child‟s life and the length to time the child has lived in a
stable, satisfactory environment . . . ;
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers;
(6) The home, school and community record of the child;
(7)(a) The reasonable preference of the child if twelve (12) years of age or older; . . .
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other
person; . . .
(9) The character and behavior of any other person who resides in or frequents the home of a
parent or caregiver and the person‟s interactions with the child; and
(10) Each parent‟s or caregiver‟s past and potential for future performance of parenting
responsibilities, including the willingness and ability of each of the parents and caregivers to
4
While both Mother and Father appear to have stable, healthy relationships
with the child, and share love, affection and emotional ties with the child,
Mother has taken greater responsibility for performing parenting
responsibilities relating to the daily needs of the child and shows a better
disposition to provide the child with food, clothing, medical care, education
and other necessary care. Mother has been the primary caregiver and taken
the greater responsibility for performing parental responsibilities since the
child‟s birth. By all accounts, the child has thrived under Mother‟s care.
Mother has shown a willingness and ability to facilitate and encourage a
close and loving relationship between Father and child by offering Father
parenting time with the child prior to the establishment of parentage and the
Court‟s initial award of parenting time to Father and additional time to that
awarded to Father by the Magistrate. Mother‟s employment schedule has
proven to be far more flexible to the needs of the child than Father‟s
employment schedule, which requires Father to travel frequently, with little
notice, for extended periods and occasionally out of the country. Mother
has been stable with her employment. Father has had several employers as
well as different types of self employment. His current employment
appears stable. Further Father has moved several times during this
prolonged litigation.
In light of all of these factors, the trial court reached the following conclusions:
The adoption of Mother‟s Proposed Parenting Schedule will provide
continuity, consistency and stability for the child. The Court further finds
that it would not be in the child‟s best interest to adopt Father‟s Proposed
Parenting Schedule. The parties have shown that they are not able to
effectively communicate. The Court finds that to place the child in the
parenting arrangement, as proposed by Father, would more likely than not
be harmful to the child and disturb her current stability. This has been
demonstrated through the e-mail exchanges between the parties which were
often taken out of context by Father and used by him as a platform to throw
unnecessary and uncalled for barbs at Mother.
In arguing that the trial court erred in adopting Mother‟s parenting plan, Father
relies on new language in Tenn. Code Ann. § 36-6-106(a), which provides: “In taking
into account the child‟s best interest, the court shall order a custody arrangement that
permits both parents the maximum participation possible in the life of the child consistent
with the factors set out in this subsection (a), the location of the residences of the parents,
the child‟s need for stability and all other relevant factors.” (Emphasis added).
facilitate and encourage a close and continuing parent-child relationship between the child and
both of the child‟s parents, consistent with the best interest of the child.
5
The parenting schedule adopted by the trial court for Father is as follows: Friday
at 6:00 p.m. to Sunday at 6:00 p.m. every other week; Thursday at 4:00 p.m. to Thursday
at 6:30 p.m. every week. Where the following days do not fall during Father‟s parenting
time: Father‟s Day, 9:00 a.m. to 6:00 p.m.; child‟s birthday, 4:00 p.m. to 7:00 p.m. on
the day preceding the child‟s birthday; Father‟s birthday, 9:00 a.m. to 7:00 p.m., or 4:00
p.m. to 7:00 p.m. if a school day; Halloween, in odd years, 5:00 p.m. to 8:30 p.m. (10:00
a.m. the following morning if Halloween falls on a weekend); Thanksgiving, in odd years
8:00 a.m. to 2:00 p.m. on Thanksgiving Day and 10:00 a.m. to 7:00 p.m. the following
day; in even years, 3:00 p.m. on Thanksgiving Day to 10:00 a.m. the following day; New
Year‟s, in odd years, December 31 at 3:00 p.m. to January 1 at 6:00 p.m. Fall vacation:
Day-to-day schedule shall apply. Winter vacation: in odd years, 8 a.m. to 1:00 p.m. on
Christmas Eve and 10:00 a.m. to 4:00 p.m. on Christmas Day; in even years, 4:00 p.m. on
Christmas Eve until 9:00 a.m. on Christmas Day. Otherwise, the remainder of the child‟s
Christmas vacation from school through December 30, the day-to-day schedule shall
apply. Spring vacation: The day-to-day schedule shall generally apply except as follows:
Father shall have parenting time in odd years at 6:00 p.m. the Saturday before Easter until
12:00 p.m. on Easter Sunday; in even years, from 1:00 p.m. on Easter Sunday until 10:00
a.m. the following day. Once the child starts school, Father shall have parenting time
during the second half of the child‟s spring break. During summer vacation, each parent
gets two non-consecutive weeks when they actually take vacation.
Mother‟s parenting plan states that Father has 85 days of parenting time; Father
asserts that this schedule only gives him 68 days of parenting time. All of Mother‟s
arguments are premised upon the notion that the trial court‟s parenting plan provides for
85 days of parenting time for Father. The child support guidelines define “day” for
purposes of determining parenting time for child support:
For purposes of this chapter, a “day” of parenting time occurs when the
child spends more than twelve (12) consecutive hours in a twenty-four (24)
hour period under the care, control or direct supervision of one parent or
caretaker. The twenty-four (24) hour period need not be the same as a
twenty-four (24) hour calendar day. Accordingly, a “day” of parenting time
may encompass either an overnight period or a daytime period, or a
combination thereof.
Tenn. Comp. R. & Regs. 1240-02-04-.02(10). Using this definition and applying it to the
parenting schedule adopted by the trial court, we, like Father, calculate approximately 68
days of parenting time. The one unknown variable is the length of the child‟s future
spring break. If the spring break is two weeks long, Father‟s parenting time could
increase to 71 or 72 days. The Child Support Guidelines (“the Guidelines”) presume that
children will typically reside with the alternate residential parent a minimum of eighty
(80) days per year. Tenn. Comp. R. & Regs. 1240-02-04-.04(7)(a). The following cases
reference “standard parenting time”: Sitz v. Sitz, No. E2012-01726-COA-R3-CV, 2013
6
WL 5450416, at *5 (Tenn. Ct. App. Sept. 30, 2013) (80 days); Thompson v. Thompson,
III, No. M2011-02438-COA-R3-CV, 2012 WL 5266319, at *7 (Tenn. Ct. App. Oct. 24,
2012) (84 days); Coats v. Coats, No. M2007-01219-COA-R3-CV, 2008 WL 4560238, at
*12 (Tenn. Ct. App. Oct. 8, 2008) (80 days).
The parenting plan adopted by the trial court differs from a “standard” parenting
plan in that it does not provide for overnight parenting time during the week; most of the
holiday parenting time is for less than twenty-four hours; there is no provision for a fall
break; and the Christmas vacation parenting time is limited to less than twenty-four hours
on Christmas Eve and Christmas Day. With the restrictions on Father‟s parenting time, it
cannot be said that he is able to enjoy the “maximum participation possible” in his child‟s
life. While the trial court‟s decision may contain reasons for rejecting Father‟s proposed
week-on/week-off schedule, there is no justification in the record for the minimal amount
of parenting time awarded to Father in the parenting plan adopted by the trial court.
We reverse the trial court‟s decision on parenting time and remand the matter with
instructions to increase Father‟s parenting time to at least the minimum 80 days
presumed by the Guidelines.
(2) Child support
Father next challenges the amount of current child support and child support
arrears set by the trial court. In particular, Father argues that: (A) Mother was
underemployed in 2013; (B) Mother should not have been credited for all of her claimed
“work-related child care expenses”; and (C) the trial court improperly attributed income
to Father.
A. Underemployment. The Guidelines provide that additional income may be
imputed to a parent who is determined to be willfully and/or voluntarily underemployed.
Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(i)(I). The purpose of the
underemployment determination is to “ascertain the reasons for the parent‟s occupational
choices, and to assess the reasonableness of these choices in light of the parent‟s
obligation to support his or her child(ren) and to determine whether such choices benefit
the children.” Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii). The burden was on
Father to prove that Mother was willfully or voluntarily underemployed. Massey v.
Casals, 315 S.W.3d 788, 796 (Tenn. Ct. App. 2009).
The trial court based current child support on a gross monthly income for Mother
of $2,165.00, as reflected on her 2013 federal income tax return. Father argues that
Mother worked only part time in 2013 and “spent much of her time acting as a contractor
on her and her husband‟s new home.” Father asserts that Mother had two housekeepers,
applied for private school for the child but did not apply for financial aid, was a licensed
attorney, and now took the position that “she‟s unable to market her practice because she
7
has no time and did her marketing in the past in the evenings prior to the Child‟s birth.”
Prior to the child‟s birth, Mother was making $90,000 a year or more; in 2013, she made
$19,000. Father argues that he should not have to subsidize Mother‟s decision to act as a
contractor on her new home and “should not have to suffer the consequences if Mother‟s
law practice is no longer viable.” Mother counters that she assumed all parenting
responsibilities until the child was over two-and-a-half years old while trying to work
from home. She attributed the loss of a substantial portion of her income to her inability
to hire other employees and to her main client leaving to go to a competitor in a buy out.
Mother acknowledges in her brief that Father argued at trial, as he does on appeal,
that Mother was voluntarily underemployed. Yet, in its decision, the trial court states:
“There was no dispute as to the accuracy of Mother‟s income.” Thus, it appears that the
court failed to consider Father‟s argument with respect to underemployment. 5 On
remand, when the trial court increases Father‟s parenting time, child support will have to
be recalculated and, at that time, the court will have another opportunity to expressly
consider the issue of underemployment.
B. Work-related child-care expenses. The Child Support Guidelines define
“work-related childcare costs” as “expenses for the care of the child for whom support is
being determined which are due to employment of either parent or non-parent caretaker.”
Tenn. Comp. R. & Regs. 1240-02-04-.02(29)(a). These childcare expenses must be
“necessary for either parent‟s employment, education, or vocational training” and
“determined by the tribunal to be appropriate,” and “appropriate to the parents‟ financial
abilities and to the lifestyle of the child if the parents and child were living together.”
Tenn. Comp. R. & Regs. 1240-02-04-.04(8)(c)(1).
In its decision, the trial court found that it was “appropriate to use Mother‟s
evidence of work related child care expenses” as reflected in her tax returns for purposes
of calculating retroactive child support. Father argues that these expenses are not
appropriate or appropriate to the parents‟ lifestyle or financial abilities. For example, in
2010, Mother‟s award of child support was based upon work-related child care expenses
of $1,404 per month, the cost of a nanny. Mother‟s income was $36,800 for that year. In
5
The court made a few comments with respect to underemployment at the hearing, most notably, the
following:
Now obviously if you want to try to claim that since the birth of this child she has
voluntarily underemployed herself, you can talk about that. But there is a lot of things
that people do prebirth or pre-family to make a whole lot more money and then once they
have a family they say, well, wait a minute, I can‟t continue to make $250,000 a year and
be any kind of parent to my child.
But we must consider the court‟s orders. A court speaks through its orders rather than through the
hearing transcript. Alexander v. JB Partners, 380 S.W.3d 772, 777 (Tenn. Ct. App. 2011).
8
2013, Mother claimed the full credit for daycare despite the fact that she was working as
a contractor on her new home.
With respect to the trial court‟s treatment of work-related child care expenses,
Father also objects to the trial court‟s apparent use of judicial notice of the reasonableness
of the cost of Mother‟s nanny. A judicially noticed fact must be “one not subject to
reasonable dispute, in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.” Tenn. R. Evid. 201(b).
The trial judge made several statements indicating that she was applying her own
personal experience to the child care expense issue. For example: “Do you have any
proof that daycare would be any cheaper [than a nanny]? Because I‟ve always had a
nanny and it was cheaper than daycare.” The trial judge also made the following
statements:
-Much more expensive. I mean, I‟m just saying. It‟s not evidence but I
always found a nanny to be cheaper.
-Well, first off, if you ask anybody, daycare for a three month old is
significantly higher than daycare for a two year old. I mean, unless you‟ve
got somebody that can come in here and tell me that this woman could have
put this child in a daycare that would have been far cheaper, that would
have been flexible with her coming in and nurse at any given time, given
the prematurity of this child, that she could have come and picked up and
taken any time she wanted. I mean, there is a while [sic] lot of benefits for
a self-employed mother to have that versus daycare. If you put a child in
daycare, you‟re stuck with the full amount of daycare expense whether they
come or not. If you use a nanny, sometimes you can pay hourly and not
have to pay for a full week if she was only using her three days a week she
said.
The relative affordability of a nanny versus daycare is not a matter “generally
known within the territorial jurisdiction of the trial court or . . . capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” Tenn. R. Evid. 201(b). Therefore, judicial notice was not appropriate. The
trial judge‟s interjection of her personal views was improper.
Father has identified evidence in the record to support his argument that Mother‟s
child care expenses are disproportionate to her earnings. The trial court‟s written
decision contains only a general conclusion and does not specifically address these
expenses. Comments made by the trial judge at the hearing indicate that the judge
improperly allowed her personal views to influence the court‟s decision regarding the
reasonableness of the child care expenses. Mother‟s brief contains no argument
9
regarding work-related child care expenses. We have concluded that the trial court
abused its discretion in its consideration of work-related child care expenses.
Consequently, we must reverse the court‟s decision on this issue and remand for a new
hearing on work-related child care expenses.
C. Father‟s income. Father also assigns error to the trial court‟s decision to
attribute additional income to him. He concedes, however, that the trial court properly
attributed additional income to him for the free use of his mother‟s condominium
(although he argues that the amount attributed should have been $600 rather than $650
per month). The Child Support Guidelines provide that a trial court may impute
additional income to a parent in calculating child support if the parent fails to produce
reliable evidence of income. Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(i)(II).
Imputing income means “assign[ing] or attribut[ing] an income level to the parent that
may not reflect the parent‟s actual gross income.” Massey, 315 S.W.3d at 795.
The trial court found that Father “lacks credibility as to his income and that he
failed to provide reliable evidence of his „total‟ income.” As a result, the court found it
appropriate to impute additional income to Father in accordance with the Guidelines.
The trial court discussed the proof as to Father‟s income at length:
Father‟s testimony and documentation of income are inconsistent
and often without verification by appropriate documentation. Father‟s
proof of actual income has been at issue since the inception of this
litigation; yet he failed to keep appropriate documentation of his self-
employed income and his rental income. Father‟s 2009 tax return (Exhibit
32), upon which the Magistrate relied when he set temporary child support
on June 18, 2010 (Exhibit 4), reflects that Father‟s adjusted gross income
was $41,538.27. Early in the case, on July 12, 2010, during Father‟s
deposition he was asked, “[w]ith your job experience and education, do you
feel like you‟re maximizing or at least living up to your potential in your
current employment?” and responded, “No, sir; I don‟t.” . . . On his 2010
federal income tax return (Exhibit 14, collective), Father‟s gross income is
reported as $36,255.54. With his 2010 federal income tax return, Father
included a Schedule C-EZ reflecting $4,200 in gross receipts from working
for his uncle. Father testified that he did not receive 1099s from his uncle
in 2010 and admitted that he sometimes cashed the checks from his uncle
rather than depositing them into his bank account. However, in spite of this
testimony about not including 1099‟s from his uncle for tax year 2010, he
did include 1099‟s from his uncle for the tax year 2011. . . . A review of
Trial Exhibit 14 reveals his uncle owns several different business entities
and keeps records of pay to 1099 contractors. The Court finds it difficult to
believe he did not issue [Father] 1099‟s in 2010 when he did so in 2011.
Father indicated on his September 16, 2010 credit application to purchase a
10
Volkswagon Jetta (Exhibit 26) that he earned $2,400 in “monthly
employment income” and received $1,200 as “additional monthly income”
($28,800 + $14,400 = $43,200). Two (2) months earlier, in his deposition
on July 12, 2010, Father testified that he made $2,300 per month and had
only received approximately $1,500 for the first seven (7) months of the
year painting for his uncle ($27,600 + 1,500 = $29,100). In Father‟s first
Motion to Modify Child Support Obligation filed on November 4, 2010,
Father represented to the Court that his gross income (as of October 29,
2010) was $25,355.23.
On Father‟s 2011 federal income tax return signed by him on April
15, 2012 (Exhibit 14, collective), Father‟s gross income is reported as
$27,475.00. On the credit application to finance $145,000 for the purchase
of the Fatherland Street rental property executed by Father just two (2)
months earlier on February 10, 2012, he indicated that his income was
$40,000 annually (Exhibit 25). Notably, when Father applied for the
mortgage to purchase the rental property at 600 Fatherland Street for
$149,000, he indicated that he planned to use the property as his personal
residence. At trial, Father admitted that he never intended to use the
property as his personal residence and that he was living rent free in a
condominium owned by his mother. [Discussion of evidence regarding
Father‟s misrepresentations regarding paying rent.] At the trial of this case,
Father admitted that these statements [that he paid rent to his mother], made
under oath, were false.
Additionally, Father admitted that he made false representations on
his mortgage application to fund the purchase of the Fatherland Street
rental property when he indicated that he owed no child support obligations
or debt to the U.S. government . . . . To fund the downpayment for the
purchase of the Fatherland Street rental property, Father received a “gift”
from Rich Rajotte (the “Donor”) in the amount of $9,500.00 (Exhibit 41). .
. . By e-mail dated February 4, 2012 from Father to the Donor (Exhibit 48
and 49), Father asks, “does the gift loan have to be deposited in my bank
account or can we write a bank check or something like that? I‟ve got some
hesitation on that because of my child support, but we can discuss that too.”
Father‟s 2012 tax return reflects gross income in the amount of
$41,393 (Exhibit 59). This income tax return does not include the
$9,500.00 gift from the Donor. . . . Father testified that he began working
for his current employer, Schlusselbauer North America, in November,
2012. The only income additional to W-2 income reported by Father for
the year 2012 on the return is $693.00 earned for services as a “musician.”
Rental income from the Fatherland Street property is not included on the
11
return. According to Father‟s testimony on August 14, 2013 (Exhibit 45),
the monthly mortgage payment associated with the purchase of the
Fatherland Street property is $718.72. . . . Testimony from Mr. Rajotte,
who co-owns the rental property with Father, indicates that monthly rental
income from the property is $1,500, which is typically in cash (Exhibit 55).
After making the monthly mortgage payment of $718.72, the net rental
income from the property is arguably $781.28 per month. The Court finds
that Father‟s testimony that he receives none of this income is highly
questionable when considering his lack of credibility related to reporting
his income from self-employment as a painter for his uncle.
As the percentage of Father‟s ownership in the rental property was
not established pursuant to Tenn. Code Ann. § 36-5-903,[6] the Court
presumes that Father‟s ownership interest in the Fatherland Street property
is fifty percent (50%).
...
The Court finds that Father did not rebut the presumption of 50/50
ownership in 600 Fatherland Street by he and Mr. Rajotte pursuant to
T.C.A. § 36-5-903. Further, he does not deny that he is the only owner of
the property obligated on the mortgage. The Court does not find credible
his testimony that he owns zero percent of the property.
The 2012 tax return submitted by Father into evidence at trial is
dated October 14, 2013. His “Affidavit of Income And Property” in
support of his “Slow Pay” motion filed on May 17, 2013, reports income in
the amount of $4,000 per month (before taxes) from Schlusselbauer North
America plus $300 per month from playing bagpipes, which totals $51,600
yearly. This Affidavit fails to account for any rental income for the duplex-
--it is not even mentioned.
Father has not prepared or filed a tax return for the year 2013,
although this information would have been helpful to the Court. His 2013
W-2 from Schlusselbauer (Exhibit 57) indicates that he earned $45,333.36
in gross wages; however, he testified that his employment agreement with
the company dated April 29, 2013 (Exhibit 7) sets his annual salary at
6
Tennessee Code Annotated section 36-5-903(a) states:
There shall be a rebuttable presumption concerning property that is subject this part,
except where otherwise clearly noted by the evidence of title or otherwise, or where by
law ownership of property is otherwise clearly stated, that at least one-half of all real or
tangible personal property that is titled to or in the possession of the obligor is owned by
the obligor who is subject to the lien provisions of this part.
12
$48,000.00 and includes bonuses over and above that amount. Father
admitted earning some additional income from playing bagpipes in 2013,
but did not have a 1099 to reflect the precise amount nor an accounting of
how much it totaled in 2013. Father‟s co-ownership of the Fatherland
Street rental property continued through the year 2013 and continues to this
day.
In imputing additional income to Father, the trial court also took into account the
value of bartered services. Father had an arrangement with his attorney to barter home
improvement and maintenance services in exchange for legal fees associated with this
case. Father failed to report the value of these services as income. The trial court
determined that the amount of $20,327.50 should be added to Father‟s income in 2013.
Father makes several arguments regarding the trial court‟s analysis and decision to
attribute additional income to him. Father asserts that “there was not one iota of evidence
to suggest Father received any money from that [the Fatherland Street] property.” Father
and Eric Rajotte both testified that the rental income was used to pay the mortgage,
expenses, and utilities and that they did not make any money from the rent. The trial
court, however, found Father‟s testimony that he received none of the rent as income
lacking in credibility.7 A trial court‟s findings of fact based on its assessment of witness
credibility should not be reversed absent clear and convincing evidence to the contrary.
Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999); In re M.L.D., 182 S.W.3d
890, 894 (Tenn. Ct. App. 2005). We cannot say that there is clear and convincing
evidence to call into question the correctness of the trial court‟s credibility determination.
As to Father‟s objection to the amount of income attributed to him for free rent,
we find no error. At trial, Father admitted, when presented with his July 2010 deposition,
that he had submitted a lease agreement and claimed to be paying $650 a month
beginning in June 2010. Thus, it was not unreasonable for the trial court to attribute $650
a month in income for rent.
Father also argues that the trial court “wrongly attributed income from barter with
Father‟s attorney.” Father relies on an IRS circular stating that barter income is reported
when earned. He asserts that, in this case, the income was unearned because he had not
completed the agreed work; moreover, the work he would perform for his attorney would
not pay off his entire bill. At the hearing on attorney fees, counsel for Father testified
that Father currently owed him $22,558.33 in attorney fees and had only paid $600.00.
He further testified that, pursuant to an agreement between the attorney and Father,
Father was performing work at a house that the attorney was selling and at his new house
in exchange for legal services. The attorney testified that he doubted that Father‟s in-
7
Finding that Father‟s testimony on this point lacks credibility also suggests a lack of credibility in
Rajotte‟s testimony as well.
13
kind services would cover all of the legal fees he owed. They had not valued Father‟s
services.
IRS Publication 525 contains a section on bartering which provides: “You must
include in your income, at the time received, the fair market value of property or services
you receive in bartering.” The examples provided in this section make clear that each
party to the bartering arrangement includes the fair market value of the goods or services
when received, even though the other party may not receive its goods or services until a
later time. The question, though, is how much of the legal services received by Father he
had paid for with his home improvement and maintenance services. To answer this
question requires placing a value on those services, something the trial court failed to do.
We conclude that it was error for the trial court to attribute the entire amount of Father‟s
attorney fees to his income when all of the proof indicated that he had not performed
sufficient in-kind services to cover the entire bill.
We further find that the trial court erred in concluding that Father had failed to
overcome the statutory presumption of 50/50 ownership established by Tenn. Code Ann.
§ 36-5-903 (set forth in footnote four). The record includes a deed to the Fatherland
property showing that it is owned jointly by Father, Eric Rajotte, and Richard Rajotte.
Thus, one-half ownership is “otherwise clearly noted by the evidence of title.” Tenn.
Code Ann. § 36-5-903(a).
Thus, with respect to Father‟s income, we have determined that the trial court
erred in attributing the value of all of the legal services to Father (based on the bartered
in-kind services) and in presuming that Father owned 50% of the Fatherland property.
We, therefore, remand the issue of Father‟s income to the trial court for reconsideration.
(3) Audio/video recording
Father argues that the trial court erred in enjoining and restraining him from
making audio or video recordings when the parties exchanged the child for parenting
time. He argues that he was denied notice as to the basis for the motion seeking this
relief and was not given an opportunity to be heard. A court‟s decision to issue or not to
issue injunctive relief is reviewed under the abuse of discretion standard. Otter’s Chicken
Tender, LLC v. Coppage, No. M2010-02312-COA-R3-CV, 2011 WL 2552663, at *3
(Tenn. Ct. App. June 27, 2011); Gentry v. McCain, 329 S.W.3d 786, 793 (Tenn. Ct. App.
2010).
Mother filed a motion, in June 2013, requesting a restraining order to restrain and
enjoin Father from “continuing to video and/or record the exchange of the parties‟ minor
child between the parties.” The motion was set for July 9, 2013, the first day of the trial.
Mother points out that her motion was filed a day after she was served with notice that
Father intended to play, at trial, a recording of a conversation between Mother and Father
during the exchange of the child on June 21, 2013. Before the tape of this exchange was
14
played at trial, Mother reminded the court that her motion to stop further recording was
pending.
Father‟s main assertion is that Mother failed to comply with Tenn. R. Civ. P.
7.02(1), which states:
An application to the court for an order shall be by motion which, unless
made during a hearing or trial, shall be made in writing, shall state with
particularity the grounds therefor, and shall set forth the relief or order
sought. The requirement of writing is fulfilled if the motion is stated in a
written notice of the hearing of the motion.
(Emphasis added). Father argues that Mother‟s motion failed to “state with particularity
the grounds therefor,” that he was denied notice of the basis for the motion, and that he
did not have an opportunity to be heard. Mother argues that she made her motion in
writing and orally at trial and, therefore, she did not have to comply with all of the
requirements following the phrase “unless made during a hearing or trial” in Tenn. R.
Civ. P. 7.02.
We believe the reason for Mother‟s motion is implicit from the chain of filings,
testimony, and nature of the proceedings—a concern about creating a hostile atmosphere
during the exchange. Father introduced the recording from June 2013 and had a chance
to argue for the usefulness of such evidence. He was on notice of the issues at play. We
cannot say that the trial court abused its discretion in restraining Father from recording
the exchanges.
(4) Health insurance
The next issue is whether the trial court erred in ordering Mother to provide health
insurance for the child rather than allowing Father to provide the health insurance. Father
points out that, by the end of the trial, he had remarried and his wife had health insurance
that would cover the child at no cost.
The Child Support Guidelines contemplate that the health insurance premium for
the child “shall be divided between the parents pro rata.” Tenn. Comp. R. & Regs. 1240-
02-04-.04(8)(a)(3). “Amounts paid by a step-parent shall not be considered in the
calculation” of child support. Tenn. Comp. R. & Regs. 1240-02-04-.04(8)(a)(6). In
declining to order the stepmother‟s health insurance plan to cover child, the trial court
stated, at the hearing: “It‟s not the stepmother‟s responsibility. It‟s one of these parents‟
responsibility to have medical.”
We find no error in the trial court‟s decision to order Mother to provide health
insurance for the child.
15
(5) Mediation
Father argues that the trial court erred in ordering the parties to attend mediation in
the event of disagreement about the parenting plan. Father argues that Mother will either
refuse to mediate or go through the motions but refuse to agree to anything, thereby
requiring Father to incur the expense of mediation but still end up in court. Father asserts
that the parenting plan should state “that any differences between the parties be resolved
by the court.”
Tennessee Code Annotated section 36-6-404(a)(4) requires that a permanent
parenting plan must “[p]rovide for a process for dispute resolution, before court action,
unless precluded or limited by § 36-6-406 [not applicable here].” Thus, the court was
required to include a provision for some type of dispute resolution and could not allow
the parties to go directly to court without some extenuating circumstances, such as abuse,
which are not at play here. The trial court did not err in ordering the parties to attend
mediation to resolve disagreements regarding the parenting plan.
(6) Decision-making authority
Father objects to the trial court‟s decision to allocate sole decision-making
authority to Mother with respect to educational, non-emergency medical, and extra-
curricular activities. He asserts that, in the past, Mother has not consulted him regarding
decisions and has not given him the opportunity to participate. Moreover, he alleges that
Mother has refused to respond to his requests for additional information.
Mother emphasizes the parties‟ ineffective communication, a fact found by the
trial court. The trial court read e-mail communications between the parties and stated:
“The record is replete with e-mail communications between the parties demonstrating
that Father frequently second-guesses medical decisions by Mother on behalf of the child
in consultation with medical providers.” Father acknowledged at trial that, where there
was a disagreement between the parties, he would ultimately defer to Mother. Father
conceded in his brief that, with respect to educational decisions, he “is also concerned
that Mother is making decisions which will affect him financially.”
Tennessee Code Annotated section 36-6-407(c) requires a court to consider the
following criteria in allocating decision-making authority:
(1) The existence of a limitation under § 36-6-406 [not applicable here];
(2) The history of participation of each parent in decision making in each of
the following areas: physical care, emotional stability, intellectual and
moral development, health, education, extracurricular activities, and
religion; and whether each parent attended a court ordered parent
education seminar;
16
(3) Whether the parents have demonstrated the ability and desire to
cooperate with one another in decision making regarding the child in
each of the following areas: physical care, emotional stability,
intellectual and moral development, health, education, extracurricular
activities, and religion; and
(4) The parents‟ geographic proximity to one another, to the extent that it
affects their ability to make timely mutual decisions.
Only subsection (4) would support joint decision making authority in this case.
Subsection (1) is not applicable. Subsection (2) would support Mother since she has
historically been the primary decision-maker. And subsection (3) would support Mother
as the court made a specific finding that the parties “are not able to effectively
communicate,” and she has been the primary decision-maker and caregiver.
We find no error in the trial court‟s decision to make Mother the sole decision-
maker.
(7) Attorney fees
Father argues that he should receive his attorney fees on appeal, and Mother
asserts that she should have been awarded her attorney fees below and on appeal.
In Tennessee, courts follow the American Rule, which provides that litigants must
pay their own attorney fees unless there is a statute or contractual provision providing
otherwise. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn.
2000). We review a trial court‟s decision to award attorney fees under an abuse of
discretion standard. In re Estate of Greenamyre, 219 S.W.3d 877, 885 (Tenn. Ct. App.
2005). A trial court abuses its discretion only when it applies an incorrect legal standard
or when it reaches a decision against logic or reasoning that causes an injustice to the
complaining party. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). Under this
standard, we are required to uphold the ruling “as long as reasonable minds could
disagree about its correctness.” Caldwell v. Hill, 250 S.W.3d 865, 869 (Tenn. Ct. App.
2007). Furthermore, “we are not permitted to substitute our judgment for that of the trial
court.” Id. Thus, under the abuse of discretion standard, we give “great deference” to the
trial court‟s decision. Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003).
We begin with Mother‟s assertion that she should have been awarded her attorney
fees at the trial level. We must first find some authority that would allow the trial court
to make such an award. Mother relies upon Tenn. Code Ann. §§ 36-2-311(a)(14) and 36-
5-103(c); the latter has been applied to juvenile cases. See In re Christopher A.D., No.
M2010-01385-COA-R3-JV, 2012 WL 5873571, at *8 (Tenn. Ct. App. Nov. 20, 2012); In
re A.M.K., No. E2011-00292-COA-R3-JV, 2011 WL 3557083, at *5 (Tenn. Ct. App.
Aug. 11, 2011). Though the trial court had the authority to award attorney fees, we
17
cannot say that it abused its discretion in declining to do so. The court found that each
party should bear the expense of his or her own attorney fees.
As to the matter of attorney fees on appeal, we decline to award fees to either
party because each has been successful on some issues on appeal.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed in part,
reversed in part, and remanded for further proceedings consistent with this opinion. In
addition, the appellant‟s motion to include post-judgment facts is denied. Costs on
appeal shall be assessed equally between the two parties, and execution may issue if
necessary.
_________________________
ANDY D. BENNETT, JUDGE
18