Charlotte D. Culpepper v. Brandon K. Culpepper

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 27, 2015 Session

CHARLOTTE D. CULPEPPER v. BRANDON K. CULPEPPER

Appeal from the Circuit Court for Hamilton County
No. 12D2570 W. Neil Thomas, III, Judge

No. E2014-00815-COA-R3-CV-FILED-NOVEMBER 4, 2015

This appeal arises from an action for divorce wherein the trial court ordered the parties’
marital debt to be divided in a nearly equal fashion. The trial court awarded child support
to the wife, who was designated primary residential parent and who received a greater
share of co-parenting time with the children. The court also awarded child support
retroactive to the date of the filing of the divorce complaint. In addition, the court
allocated both federal tax exemptions for the children to the wife. The husband has
appealed. We affirm the trial court’s judgment with a slight modification in the amount
of the child support arrearage award.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY and JOHN W. MCCLARTY, JJ., joined.

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Brandon K. Culpepper.

Angela C. Larkins, Chattanooga, Tennessee, for the appellee, Charlotte D. Culpepper.

OPINION

I. Factual and Procedural Background

The plaintiff, Charlotte D. Culpepper (“Wife”), filed a complaint for divorce
against the defendant, Brandon K. Culpepper (“Husband”), on December 19, 2012. The
parties’ marriage commenced in July 1999, and their separation occurred in July 2012.
Two minor children were born to the marriage, who were ages eleven and seven at the
time of trial.

The parties entered into mediation during the pendency of the action and agreed
upon a permanent parenting plan, which designated Wife as primary residential parent.
Pursuant to their agreement, Wife was awarded 229 days and Husband was awarded 136
days of co-parenting time with the children each year. The parties did not agree,
however, regarding an equitable distribution of the marital property and debt.

The trial court conducted a bench trial on January 7, 2014. The parties stipulated
that they agreed to be bound by the mediated parenting plan. The proof demonstrated
that at the time of the parties’ separation, Wife was employed with Unum and earned
$51,000 per year. By the time of trial, Wife had been employed at Complete Benefit
Alliance for five months, earning $71,000 per year. Husband was employed by EPB and
earned approximately $78,400 per year. Wife sought an award of child support
retroactive to the date she filed the complaint, asserting that Husband did not pay any
child support prior to trial. The parties also presented proof regarding their assets and
liabilities, as well as their relative fault in the dissolution of the marriage.

At the conclusion of the proof, the trial court adopted and approved the parties’
agreed permanent parenting plan, finding it to be in the children’s best interest. The court
awarded each party the personalty currently in his or her possession, with the exception
of a few disputed items. The court further ordered that the marital residence be sold and
any deficiency or proceeds be divided equally by the parties. Other remaining assets,
such as bank accounts, were divided in a nearly equal fashion. The divorce in these
proceedings was awarded to Husband.

The trial court then divided the parties’ marital debts relatively equally, with the
exception that the court initially assessed the outstanding balance of approximately
$13,000 on the Elan credit card solely to Wife. As the trial court was announcing its
ruling from the bench, Wife’s counsel reminded the court that Wife had testified that the
Elan debt and other credit card debts were incurred during the marriage for the benefit of
the family. Husband’s counsel objected, asserting that Husband said he did not know the
Elan debt existed. The trial court then stated that there was a “presumption that money –
generally speaking, money used during the marriage is used for the family.” Husband’s
counsel responded, “That’s conceded, Your Honor, yes.” The court proceeded to divide
the marital credit card debt, including Elan, in an approximately equal fashion.

With regard to child support, the trial court stated that Wife would be awarded
child support from the date of filing through the date of trial. The court further explained
that retroactive support from the date of trial back to the date of the complaint’s filing
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would be based on the number of days awarded each party in the mediated parenting plan
and the parties’ former annual gross incomes of $51,000 for Wife and $76,000 for
Husband. From the date of trial forward, however, the child support award would be
based upon Wife’s current annual gross income of $71,000 and Husband’s current annual
gross income of $78,400. Husband requested that he be allowed to claim one of the
children for tax exemption purposes on his federal income tax return. The trial court
denied this request, explaining that the Child Support Guidelines assumed that the
primary residential parent would claim the children as tax exemptions.

As evidenced by order entered March 24, 2014, the trial court determined that
Husband owed a child support arrearage in the amount of $10,920 for the period from the
date of filing the complaint for divorce to the date of trial. Consequently, the court
ordered that Husband pay this arrearage at the rate of $200 per month until it was paid in
full. The court also set current child support at $572 per month. Two child support
worksheets were attached to the trial court’s order. The first worksheet reflected that
retroactive child support was assessed at $752 per month pursuant to the worksheet
calculation, utilizing a gross annual income of $51,000 for Wife and $76,000 for
Husband. The second worksheet established the current support award of $572 per
month based on Wife’s gross annual income of $71,000 and Husband’s gross annual
income of $78,400. Husband timely appealed.

II. Issues Presented

Husband presents the following issues for our review, which we have restated
slightly:

1. Whether the trial court erred in its division of the parties’ Elan credit card
debt.

2. Whether the trial court erred in allowing Wife to claim both children as tax
exemptions for federal income tax purposes.

3. Whether the trial court erred in its calculation of the child support arrearage
owed by Husband.

III. Standard of Review

Our Supreme Court has explained that marital debts are “subject to equitable
division in the same manner as marital property.” See Alford v. Alford, 120 S.W.3d 810,
813 (Tenn. 2003). In a case involving the proper distribution of assets incident to a
divorce, our Supreme Court has elucidated the applicable standard of review as follows:
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 This Court gives great weight to the decisions of the trial court in dividing
marital assets and “we are disinclined to disturb the trial court’s decision
unless the distribution lacks proper evidentiary support or results in some
error of law or misapplication of statutory requirements and procedures.”
Herrera v. Herrera, 944 S.W.2d 379, 389 (Tenn. Ct. App. 1996). As such,
when dealing with the trial court’s findings of fact, we review the record de
novo with a presumption of correctness, and we must honor those findings
unless there is evidence which preponderates to the contrary. Tenn. R.
App. P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91
(Tenn. 1993). Because trial courts are in a far better position than this
Court to observe the demeanor of the witnesses, the weight, faith, and
credit to be given witnesses’ testimony lies in the first instance with the
trial court. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App.
1991). Consequently, where issues of credibility and weight of testimony
are involved, this Court will accord considerable deference to the trial
court’s factual findings. In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct.
App. 2007) (citing Seals v. England/Corsair Upholstery Mfg. Co., 984
S.W.2d 912, 915 (Tenn. 1999)). The trial court’s conclusions of law,
however, are accorded no presumption of correctness. Langschmidt v.
Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007).

We review a trial court’s allocation of federal income tax exemptions for minor
children under an abuse of discretion standard. See Chandler v. Chandler, No. W2006-
00493-COA-R3-CV, 2007 WL 1840818 at *9 (Tenn. Ct. App. June 28, 2007). The
decision regarding allocation of the exemption “is discretionary and should rest on facts
of the particular case.” Id . at *9 (citing Barabas v. Rogers, 868 S.W.2d 283, 289 (Tenn.
Ct. App. 1993)); see also Burnett v. Burnett, No. W2007-00038-COA-R3-CV, 2008 WL
727579 at *11 (Tenn. Ct. App. Mar. 19, 2008).

IV. Division of Elan Credit Card Debt

Husband asserts that the trial court erred in its division of the parties’ Elan credit
card debt. The trial court initially ruled from the bench that this debt would be assessed
solely to Wife. Following an exchange with Wife’s counsel regarding the substance of
Wife’s testimony, however, the court changed its ruling. Husband asserts that the trial
court’s ruling dividing this debt equally between the parties was based only on the
representation of Wife’s counsel and is not supported by the evidence. We disagree.

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 Wife’s testimony on this issue was as follows:

Wife’s counsel: And next we have three through eighteen [on the list of
liabilities].1 Are these all credit cards used by you
and/or your husband?

Wife: Yes.

Husband’s counsel: Excuse me. Three through where?

Wife’s counsel: Eighteen.

Husband’s counsel: That’s different than what you provided to me. Thank
you.

Wife’s counsel: So the Elan credit card, that was used during the
marriage –

Wife: Yes.

Wife’s counsel: – for yourself, your husband and your children?

Wife: Yes.

Husband’s counsel: I want to object to the leading, Your Honor.

The court: Try not to lead.

Wife’s counsel: I was just trying to push through.

The court: Although, it would help us to hurry through it.

Wife’s counsel: I was just trying to push through. I apologize, Your
Honor.

Wife: All credit cards were used during the marriage for all
parties.

Husband’s testimony regarding this issue was simply that he could not remember
when he learned about the Elan credit card debt. When asked whether it was after the
divorce was filed, he replied, “No.” Husband stated that he did not receive any benefit

1
We note that the Elan credit card debt was designated as number three on the list of liabilities from
which Wife was testifying, which was entered as Exhibit 1.
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from that debt to his knowledge and that he never possessed or used the respective card.
Husband admitted, however, that he received a copy of the Elan credit card statement as
well as all of the credit card statements during discovery in this matter. Husband did not
specifically dispute Wife’s testimony that all of the credit cards were utilized for the
benefit of the parties during the marriage.

As our Supreme Court has explained:

“Marital debt” is not defined by any Tennessee statute and has never before
been defined by this Court. However, marital debts are subject to equitable
division in the same manner as marital property. Cutsinger v. Cutsinger,
917 S.W.2d 238, 243 (Tenn. Ct. App. 1995); Mondelli, 780 S.W.2d at 773.
We take this opportunity to define “marital debt” consistent with the
definition of “marital property” in Tennessee. “Marital property” is defined
by statute as “all real and personal property, both tangible and intangible,
acquired by either or both spouses during the course of the marriage up to
the date of the final divorce hearing and owned by either or both spouses as
of the date of filing a complaint for divorce . . . .” Tenn. Code Ann. § 36-4-
121(b)(1)(A) (2001). We now hold that “marital debts” are all debts
incurred by either or both spouses during the course of the marriage up to
the date of the final divorce hearing.

Alford, 120 S.W.3d at 813. In the case at bar, there is no dispute that the Elan credit card
debt was incurred during the course of the marriage and before the date of the final
divorce hearing. Therefore, pursuant to the above definition, it is a marital debt subject to
equitable division. Upon our careful review of the record in this cause, we conclude that
the trial court did not err in equitably dividing this debt between the parties.
Furthermore, the trial court’s distribution of this debt was not based solely upon the
representation of Wife’s counsel, as Husband claims, but rather was based upon the
testimony of the parties, as demonstrated above. We conclude that Husband’s first issue
is without merit.

V. Federal Tax Exemption for One Child

Husband asserts that the trial court erred in failing to allow him to claim one child
as an exemption for federal income tax purposes. Wife contends that the trial court
properly interpreted the Tennessee Child Support Guidelines as containing an assumption
in the child support worksheet calculation that the primary residential parent will claim
the tax exemptions for the children. Concerning this issue, we agree with Wife and the
trial court. The Tennessee Child Support Guidelines expressly provide that the child
support schedule is based upon the assumption that “the primary residential parent claims
the tax exemptions for the child.” See Tenn. Comp. R. & Regs. 1240-02-04-.03.
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 Pursuant to this authority, the trial court allocated both tax exemptions to Wife.
We must review this decision utilizing an abuse of discretion standard. See Chandler,
2007 WL 1840818 at *9. Our Supreme Court has explained the abuse of discretion
standard of review as follows:

Under the abuse of discretion standard, a trial court’s ruling “will be
upheld so long as reasonable minds can disagree as to propriety of the
decision made.” State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v.
Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000). A trial court abuses its
discretion only when it “applie[s] an incorrect legal standard, or reache[s] a
decision which is against logic or reasoning that cause[s] an injustice to the
party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). The
abuse of discretion standard does not permit the appellate court to substitute
its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998).

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

Regarding the allocation of tax exemptions, this Court has previously explained:

The Internal Revenue Code automatically assigns tax exemptions for
dependent children to the primary residential parent. I.R.C. § 152(e) (West
2005). Accordingly, the Child Support Guidelines for Tennessee assume,
but do not require, that the primary residential parent will claim the
exemption for the parties’ children. Tenn. Comp. R. & Regs. 1240-2-4-
.03(6)(b)(2)(ii) (2006); see also Eaves v. Eaves, No. E2006-02185-COA-
R3-CV, 2007 WL 4224715, *8 (Tenn. Ct. App. Nov. 30, 2007). Such a
parent can execute a release of the exemption, which allows the alternate
residential parent to claim the exemption. I.R.C. § 152(e)(2). Furthermore,
the trial court is permitted to order the primary residential parent to execute
such a release. Barabas v. Rogers, 868 S.W.2d 283, 289 (Tenn. Ct. App.
1993) (citing Hooper v. Hooper, C.A. No. 1130, 1988 WL 10082 (Tenn.
Ct. App. Feb. 9, 1988)).

Burnett, 2008 WL 727579 at *10.

The Burnett Court then analyzed the trial court’s discretionary decision to allocate
the tax exemption to the primary residential parent as follows:

At trial, Husband argued that he should be awarded the tax exemptions for
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 the parties’ children, and Wife’s counsel conceded that Husband was “the
person more in need of [the tax exemptions].” Nevertheless, in its written
order, the trial court awarded the tax exemptions to Wife. The trial court
did not state its reasons for doing so.

***

Husband makes substantial income and Wife has little or no income except
the spousal support she receives from Husband. At trial, counsel for Wife
conceded that the exemptions should be awarded to Husband. Under these
circumstances, despite the fact that Wife is the primary residential parent,
we must conclude that the trial court abused its discretion in awarding the
federal tax exemptions to Wife. The trial court’s ruling on this issue is
reversed.

Burnett, 2008 WL 727579 at *10. The Burnett Court cited with approval Travis v.
Travis, No. E2000-01043-COA-R3-CV, 2001 WL 261543 at *1-5 (Tenn. Ct. App. Mar.
16, 2001). In Travis, this Court held that the husband should be granted the tax
exemptions for the children, despite the fact that he was not named primary residential
parent. Id. at *5. This holding was based on the husband’s much higher income, which
resulted in the exemption being of greater benefit to him, as well as the requirement
under the divorce decree that the husband would be responsible for substantial child
support. Id.

In contrast to Burnett and Travis, we conclude that, considering the circumstances
of this case, the trial court did not abuse its discretion in allocating the tax exemptions for
both children to Wife. The evidence established that the parties’ respective incomes were
not significantly different. Furthermore, Husband presented no evidence that Wife
agreed to allow him to claim the tax exemption for one child or that he would receive a
much greater benefit from doing so. Therefore, we find no error in the trial court’s
decision to allocate both tax exemptions to Wife as primary residential parent based on
the assumption contained in the Guidelines.

VI. Child Support Arrearage

Finally, Husband contends that the trial court erred in its calculation of the child
support arrearage he owed from the time of the filing of the complaint to the date of trial.
Husband asserts that the time span between Wife’s filing of the complaint in December
2012 and trial in January 2014 was only thirteen months. Husband argues that if the
child support award of $572 per month is multiplied by thirteen months, the resulting
arrearage amount is only $7,436.
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 The fallacy in Husband’s argument is that the trial court actually awarded child
support of $752 per month,2 retroactive to the date of the complaint’s filing. Therefore, if
the monthly amount of $752 per month is multiplied by thirteen months, the arrearage
amount would total $9,776. We conclude that the trial court’s award of retroactive child
support should be modified to reflect the amount of $9,776 rather than $10,920. We
otherwise affirm the award of retroactive support.

VII. Attorney’s Fees on Appeal

In her brief’s conclusion, Wife requested an award of attorney’s fees on appeal.
We note, however, that Wife did not raise this as an issue in her statement of the issues.
As our Supreme Court has elucidated:

Appellate review is generally limited to the issues that have been presented
for review. Tenn. R. App. P. 13(b); State v. Bledsoe, 226 S.W.3d 349, 353
(Tenn. 2007). Accordingly, the Advisory Commission on the Rules of
Practice and Procedure has emphasized that briefs should “be oriented
toward a statement of the issues presented in a case and the arguments in
support thereof.” Tenn. R. App. P. 27, advisory comm’n cmt.

Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012). Because Wife did not raise the issue
of attorney’s fees on appeal in her statement of the issues, we determine this issue to be
waived. See Champion v. CLC of Dyersburg, LLC, 359 S.W.3d 161, 163 (Tenn. Ct. App.
2011).

VIII. Conclusion

For the foregoing reasons, we affirm the trial court’s judgment, except that we
modify the award of retroactive child support to the amount of $9,776. Costs on appeal
are assessed to the appellant, Brandon K. Culpepper. This case is remanded to the trial
court, pursuant to applicable law, for collection of costs assessed below.

_________________________________
THOMAS R. FRIERSON, II, JUDGE
2
The $572 amount was to be from the date of trial prospectively.

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