Jennifer Rebecca Creswell Henegar v. Jason Adam Henegar

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 17, 2016 Session

JENNIFER REBECCA CRESWELL HENEGAR v. JASON ADAM
HENEGAR

Direct Appeal from the General Sessions Court for Wilson County
No. 2014-DC-86 John Thomas Gwin, Judge

No. M2015-01780-COA-R3-CV – Filed June 29, 2016

This appeal is from a final decree of divorce. The wife challenges several of the trial
court‟s rulings regarding the grounds for the divorce, the division of marital property, the
parenting plan, the calculation of child support and educational expenses, and attorney‟s
fees. For the following reasons, we affirm in part, reverse in part, and remand for further
proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court
Affirmed in part, Reversed in part, and Remanded

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and RICHARD H. DINKINS, J., joined.

Sean James Martin and Jennifer Lynne Sheppard, Nashville, Tennessee, for the appellant,
Jennifer Rebecca Creswell Henegar.

Charlene Robin Vance, Watertown, Tennessee, for the appellee, Jason Adam Henegar.

OPINION

I. FACTS & PROCEDURAL HISTORY

Jennifer Rebecca Creswell Henegar (“Wife”) and Jason Adam Henegar
(“Husband”) were married in September 2007. They had a son (“Son”) in June 2010.
Wife and Husband “separated” in November 2013, but both continued to reside with Son
in the marital home in Mount Juliet, Tennessee. After six years of marriage, Wife filed a
complaint for divorce in May 2014. As grounds for divorce, she alleged irreconcilable
differences and inappropriate marital conduct by Husband. Specifically, Wife alleged
that Husband refused or neglected to provide for her financially despite having the ability
to do so. Wife sought to be named primary residential parent of Son and requested child
support. She also sought an award of attorney‟s fees.

Husband filed an answer and counter-petition. He admitted the existence of
irreconcilable differences but denied that he had engaged in inappropriate marital conduct
or refused to provide for Wife. Husband alleged that Wife was guilty of inappropriate
marital conduct by abusing prescription medications. Husband asserted that he should be
named primary residential parent and that Wife should be required to pay child support.

One year after the divorce complaint was filed, in June 2015, Wife was permitted
to amend her complaint to allege, as an additional ground for divorce, that Husband
committed adultery. Less than two weeks after the allegation, Husband filed an answer
admitting that he engaged in extramarital relations with someone approximately one year
after the divorce was filed.

The divorce trial was held on July 20, 2015. At that time, Husband was 38 years
old, Wife was 36 years old, and Son was five years old. They all continued to reside in
the marital home.

Husband worked as a wildlife biologist for the Tennessee Wildlife Resources
Agency (“TWRA”), where he began working in 2008 shortly after the parties married.
Husband‟s annual salary from the TWRA was $60,384. Husband also worked a second
full-time job at Bass Pro Shop, where he worked 36 to 38 hours a week and earned
$10.61 an hour, for an average of $19,861.92 per year.

At the time of trial, Mother had been a stay-at-home mother for about four years.
Prior to the marriage, Wife completed three semesters of college and worked for three
years in Texas as an office manager and executive administrative assistant for a radiology
group, earning nine to ten dollars an hour. When she and Husband married and moved to
Tennessee, Wife secured employment in Nashville at Hospital Corporation of America
and earned around $18 an hour. Wife worked in that capacity for approximately three
and a half years, until March 2011, when Son was about nine months old. At that point,
Wife took a job at a television network for less money in order to be closer to home. She
earned ten to eleven dollars an hour at the television network but was terminated during
her probationary period after two months. Husband and Wife agreed that she would stay
at home with Son in order to avoid the cost of daycare. Shortly thereafter, Husband
began working at Bass Pro Shop in August 2011. When Son turned three, he began
attending preschool part-time at a private Christian academy. He had been attending for
two years at the time of trial, two days per week the first year and three days per week the
second year, from 8 a.m. to noon. However, Wife did not return to the workforce. Wife
testified that she intended to move out of the marital home as soon as possible after the
2
divorce. She testified that she had posted her resume on two websites and was “receiving
phone calls on my resume as we speak.” Wife said that her parents would continue to
provide her with financial support until she found a full-time job and assist her with any
deficit thereafter.

Husband and Wife struggled with debts prior to and during their marriage. Wife
testified that she had “a significant amount of bad debt” prior to the marriage, and she
and Husband worked together to pay off her past due debts. Wife still had a $5,000
student loan debt when the parties married, and Husband paid off that debt during the
marriage. However, Husband also had significant credit card debt and got behind on the
payments when the parties moved to Tennessee after the marriage. Several lawsuits were
filed against Husband in order to collect debts that were due to credit cards and medical
expenses, and several liens were filed against the marital home. At the time of trial, the
mortgage debt and liens on the marital home greatly exceeded its value.

Husband admitted to committing adultery and inappropriate marital conduct but
testified that he was no longer in a relationship with his paramour. Husband asserted that
Wife had engaged in inappropriate marital conduct by failing to be a supportive spouse
due to her prescription drug use and her failure to support his work efforts. At one point
during the marriage, Wife was taking at least ten different prescription medications,
including Xanax, oxycodone, and Ambien. Wife had various injuries, medical
conditions, and surgeries prior to and during the marriage. She suffered from an anxiety
disorder and had been taking an antidepressant for anxiety and depression since the age
of 18. However, Husband testified that Wife recently had “done better to get her
prescription drugs under control,” and by the time of trial, she had made great strides
with her physical and mental health. Wife testified that she had always taken her
medication as prescribed and that Husband had never expressed concern about her
prescription drug use before the divorce proceeding.

Wife was questioned about two incidents involving her consumption of alcohol,
including one recent evening when she consumed three to four beers after Son went to
sleep, even though Wife testified that Son crawls in bed with her “every single night.”
Wife said, “I do not drink alcohol. That was a one-time fluke, stressed night[.]”
However, she later acknowledged that she also consumed alcohol when she was delayed
at an airport and alone with Son.

Husband testified that the parties experienced “a lot of anger, a lot of issues, a lot
of conflicts in the last four years, and even before that, due to finances.” He testified that
on several occasions when Wife complained about not having enough money, he
expressed to her that if she wanted more money then she would have to go back to work
because he could not do any more than he was already doing. Wife complained at trial
3
that Husband failed to provide for her financially, forcing her to rely on financial
contributions from her family. Wife conceded that Husband paid the mortgage payment,
the family‟s bills, her medical co-pays, and Son‟s preschool tuition costs, but she claimed
that he failed to give her sufficient money for groceries, gas, and other expenses. Wife‟s
checking account statements reflected expenditures for getting her nails done twice a
month and spending $120 to $250 on her hair; however, Wife claimed that she was only
able to afford these expenses because she was receiving financial contributions from her
parents. Despite Wife‟s complaints about the parties‟ finances, she estimated that she
asked Husband “probably every week” to quit his second job so that he could spend more
time at home. Wife wanted Husband to get one job that paid more money. She claimed
that Husband “failed to be present in th[e] marriage” due to his work schedule, which
lasted, she said, from 6 a.m. or earlier to either 6 p.m. or 10 p.m.

Husband acknowledged that his work schedule significantly interfered with his
ability to spend time with Son. He worked seven days a week. On some days, he worked
a twelve-hour shift at one job, beginning at 5:30 a.m., and was able to spend the evening
with Son and Wife. On other days, however, Husband worked at both jobs and was gone
from early in the morning until 10 p.m. Husband testified that he made the decision to
take a second full-time job after Wife stopped working and several judgments were
entered against him. He acknowledged that Wife often asked him to quit his second job
in order to spend more time at home with her and Son, but Husband said he did not quit
because he was the only parent working, and the funds were necessary to provide for the
family and pay the debts. Husband testified that by working two jobs, he had made a
significant “dent” in his debt and paid off several judgments, but he recognized that he
would not be out of debt anytime soon.

Although Son turned five in June, just prior to the trial in July, he was not enrolled
to begin kindergarten in August due to his late birthday and some developmental delays.
Instead, Son was scheduled to begin a full-time pre-kindergarten program five full days
per week beginning in August. Son was projected to begin kindergarten the following
year, soon after he would turn six years old. Husband and Wife made these educational
decisions together. The cost of Son‟s pre-K tuition would be $508 per month, with an
additional $180 per month for extended care before and after school. Husband testified
that extended care would be necessary because Wife intended to begin working outside
the home.

Son was diagnosed with a sensory processing disorder at the age of three, which
caused him to become anxious in unfamiliar environments. Wife said she suspected that
something was wrong because Son “was a little bit delayed as far as his interaction with
other kids” while playing soccer and attending preschool, and he became anxious at
restaurants and stores, causing him to hum, grit his teeth, make noises to comfort himself,
4
and squeeze her arms. After Son was formally diagnosed, he began occupational therapy
once a week to retrain the way he adapted to situations in his environment. Wife testified
that Son was physically healthy and that his sensory processing disorder was “under
control” at the time of trial.

Husband admitted that Wife is a good mother and provides a safe and stable
environment for Son. Wife similarly admitted that Husband is “a very good father” when
he is present. She testified that he gives Son baths, brushes his teeth, dresses him, and
helps with dinners, when he is not working. Wife admitted that Husband missed very
few of Son‟s baseball and soccer practices and games and was “in the field” with Son and
the other children. She said Husband “makes himself available” when needed. Husband
testified that he does everything he can to attend activities and events with Son and has a
lot of flexibility to use “comp” time from the TWRA in order to attend Son‟s baseball
practices and games, swimming lessons, and similar activities. He acknowledged that
Wife had been the primary caregiver due to his work schedule. However, he also
testified that when he is at home, he is very active and “an equal parent.”

Wife sought to be named primary residential parent of Son. She emphasized
repeatedly that she wanted Husband to be part of Son‟s life and “to be available as much
as he possibly can,” but she said she did not know how that would be possible with
Husband‟s work schedule. Husband testified that he would quit his job at Bass Pro Shop
if he were named primary residential parent, and he said that he frequently had the ability
to work from home for the TWRA. He testified that he had already discussed changing
his work schedule with his supervisors. Despite his proposed parenting plan seeking to
be named primary residential parent, Husband testified that he believed a week-to-week
schedule would be preferable. For example, he explained that under Wife‟s proposed
parenting plan, designating 80 days of parenting time annually for Husband, the parties
would be required to have 101 child exchanges per year, resulting in 101 transition
periods for Son. Her plan also included one period of three weeks when Husband would
not see Son due to fall break.

Husband also testified about some concerns he had with Wife‟s behavior during
his parenting time with Son during the divorce proceeding. Husband took Son to East
Tennessee to the Tri-Cities area to visit his family for Christmas break. He provided an
itinerary for Wife prior to the trip, and Wife then traveled to “the same area” of East
Tennessee at the same time. When asked why she did that, Wife said,

I have an anxiety disorder. I also -- my son had never been away from me.
With his sensory processing disorder, he had never been that far away from
me for that length of time. That was the very first time he had ever traveled
[alone] with his father. I wanted to make sure that if my son had a sensory
5
 processing episode or situation where they couldn‟t get him comfortable or
help him feel relaxed, that I could help maybe calm him down if necessary,
and give him and help him be comfortable.

Even with Wife in close geographical proximity, she still insisted on “Facetiming” with
Son at least twice a day during the trip. Husband testified that Wife‟s consistent
telephone calls interrupted his quality time during the visit.

Aside from Husband and Wife, the only other witness to testify was one of
Husband‟s coworkers at the TWRA. He had a three-year-old son, and Husband had
suggested that Wife babysit for him in 2013. Wife did in fact babysit for the witness for
almost one year, and the witness was satisfied with Wife‟s care for the child. The witness
also believed that Husband was a good father and that he was involved with Son and his
sports activities.

At the conclusion of the testimony, the trial court took the matter under
advisement. The next day, the trial court issued a memorandum containing its findings of
fact and conclusions of law, which were ultimately memorialized in a final decree of
divorce on August 12, 2015. The trial court found that both parties had grounds for
divorce and declared the parties divorced pursuant to Tennessee Code Annotated section
36-4-129. The trial court divided the parties‟ marital assets and debts, awarding the
marital residence and its related debt to Husband. The trial court concluded that Son‟s
best interest would best be served by a parenting schedule of 182.5 days per year for each
parent, on a week-to-week schedule, with exchanges on Friday afternoons. The trial
court ordered Husband to pay Wife child support. It calculated child support by using
Husband‟s income from the TWRA and Bass Pro Shop and imputing income to Wife
based on earnings of ten dollars an hour. The court ordered the parties to equally share
the cost of Son‟s preschool tuition and extended care expenses. The parenting plan
provided that the parenting schedule and child support obligation would begin when Wife
vacated the marital residence. The court ordered the parties to be responsible for their
own attorney‟s fees. Wife timely filed a notice of appeal.

II. ISSUES PRESENTED

We have combined and restated Wife‟s issues as follows:

1. Whether the evidence preponderates against the trial court‟s factual
findings;

2. Whether the trial court erred by failing to award Wife a divorce
based on the grounds of inappropriate marital conduct and adultery;
6
 3. Whether the trial court erred with respect to its division of marital
property by requiring Wife to remain a co-borrower on the mortgage
secured by the marital residence awarded to Husband;

4. Whether the trial court erred in determining that an equal residential
schedule was in the best interest of the child and in failing to designate a
primary residential parent;

5. Whether the trial court erred in imputing income to Wife for the
purpose of calculating child support;

6. Whether the trial court erred in including childcare costs that had not
been incurred at the time of trial and in requiring the parties to split those
costs equally;

7. Whether Wife was entitled to an award of attorney‟s fees.

In his posture as appellee, Husband asks this Court to affirm the trial court on all issues.
For the following reasons, we affirm in part, reverse in part, and remand for further
proceedings.

III. DISCUSSION

A. The Trial Court’s Factual Findings

In her first issue on appeal, Wife contends that “multiple findings of fact made by
the trial court are plainly incorrect, or in the alternative are not supported by the weight of
the evidence.” Wife vaguely asserts that the trial court “abused its discretion by
erroneously stating the evidence presented at trial, making findings of fact contrary to the
weight of the evidence, and applying incorrect facts to the case as a whole and the trial
court should be reversed due to this error.” Wife then quotes twenty-two separate multi-
sentence paragraphs from the final decree of divorce and claims that each one of the
factual findings was, for example, “one-sided,” taken out of context, or factually
incorrect. However, Wife does not explain how each factual finding she challenges
relates to the particular issues she raised on appeal. Some of the factual findings quoted
by Wife are clearly irrelevant to the issues before this Court. For example, Wife
challenges certain factual findings made specifically by the trial court for purposes of
dividing the marital property regarding each party‟s contribution to the other spouse‟s
education and earning potential. However, the only issue raised on appeal regarding the
7
division of marital property is whether Wife should have been removed as a co-borrower
on the mortgage for the marital residence. Wife does not suggest that the trial court‟s
factual finding about the parties‟ contributions to earning potential impacted its decision
about the mortgage in any way. It is not enough to say that the trial court applied
“incorrect facts to the case as a whole and the trial court should be reversed due to this
error.”

When examining each of the substantive issues raised by Wife on appeal, we will
review the factual findings she challenges to the extent that they are relevant to those
issues. However, without some specific showing of prejudice, we decline the invitation
to engage in a rote examination of each factual finding in the lengthy divorce decree
simply to determine, for the sake of argument, whether it was correct.

B. Grounds for Divorce

Wife argues on appeal that the trial court erred in declaring the parties divorced
rather than awarding a divorce to her based on the grounds of Husband‟s inappropriate
marital conduct and adultery. As stated above, both spouses alleged that the other
engaged in inappropriate marital conduct. Wife alleged that Husband failed to financially
provide for her or spend time at home, while Husband alleged that Wife abused
prescription drugs and failed to be supportive of his work efforts. Husband admitted that
he committed adultery during the divorce proceeding and engaged in inappropriate
marital conduct.

The trial court made the following findings regarding the grounds for divorce:

Wife‟s primary grounds for divorce from Husband are counter-
intuitive. She sincerely complains that he is not a good provider, and that he
fails to “be present” with her and the child. Husband is incapable of doing
both. He works eighty hours a week, and cannot be in two places at one
time. Following the parties‟ separation, Husband entered into an adulterous
relationship.
As to grounds for divorce, the Court finds that each party has
grounds for divorce. Accordingly, the bonds of matrimony heretofore
existing between the parties are forever and perpetually dissolved pursuant
to Tennessee Code Annotated §36-4-129. Both parties are restored to all of
the rights and privileges of unmarried persons.

On appeal, Wife argues that declaring parties divorced pursuant to Tennessee Code
Annotated section 36-4-129 “is generally reserved for cases where the proof reflects both
parties are entitled to a divorce upon some valid ground.” She claims that the evidence at
8
trial did not demonstrate any misconduct on her part that rose to the level of grounds for
divorce and therefore the trial court should have awarded the divorce to her.

We begin with the language of the statute. Tennessee Code Annotated section 36-
4-129(b) provides, in relevant part, that “[t]he court may, upon stipulation to or proof of
any ground of divorce pursuant to § 36-4-101, grant a divorce to the party who was less
at fault or, if either or both parties are entitled to a divorce . . . declare the parties to be
divorced, rather than awarding a divorce to either party alone.” This language refutes
Wife‟s assertion that the trial court could not declare the parties divorced if only one
party had grounds for divorce. Section 36-4-129(b) “„permits a trial court to declare the
parties divorced not only when both parties have proved that they have grounds for
divorce, but also when only one party has proved grounds for divorce.‟” Hill v. Hill, No.
M2001-01016-COA-R3-CV, 2002 WL 31863295, at *3 (Tenn. Ct. App. Dec. 23, 2002)
(quoting Pate v. Pate, No. M1998-00947-COA-R3-CV, 2001 WL 985066, at *4 (Tenn.
Ct. App. Aug. 27, 2001)). “The statute, by its own terms, empowers courts upon
sufficient proof of any ground for divorce to declare the parties divorced regardless of
who may be at fault.” Mumford v. Mumford, No. E2002-01338-COA-R3-CV, 2003 WL
21673675, at *4 (Tenn. Ct. App. July 14, 2003). It “clearly states that if either party is
entitled to a divorce, the court can declare the parties divorced.” Hill, 2002 WL
31863295, at *3. The statute “„does not require the trial court to weigh the relative
degrees of fault or to grant the divorce to the party who, in the court‟s mind, is less at
fault.” Id. (quoting Pate, 2001 WL 985066, at *4). If the court finds that either party has
established grounds for divorce, it has the discretion to declare the parties divorced rather
than to grant either party, even a party without fault, the divorce. Id. at *4.

In this case, the trial court found that both parties were at fault and declared the
parties divorced rather than awarding the divorce to either party. “A trial court‟s decision
to declare parties divorced, rather than granting a divorce to one of the parties, is
reviewed under an abuse of discretion standard.” Ward v. Ward, No. M2012-01184-
COA-R3-CV, 2013 WL 3198157, at *13 (Tenn. Ct. App. June 20, 2013); see also
Morrissett v. Morrissett, No. W2003-01052-COA-R3-CV, 2004 WL 1656479, at *6
(Tenn. Ct. App. July 23, 2004) (“We review the trial court‟s decision as to which party is
entitled to the divorce for an abuse of discretion.”). Once any ground for divorce has
been stipulated or proven, “„the trial court may award a divorce to a party less at fault or
declare the parties divorced; such choice is left to the trial court‟s discretion.‟” Truman v.
Truman, No. E2009-00237-COA-R3-CV, 2010 WL 323066, at *6 (Tenn. Ct. App. Jan.
28, 2010) (quoting Watson v. Watson, No. W2004-01014-COA-R3-CV, 2005 WL
1882413, *4 (Tenn. Ct. App. Aug. 9, 2005)). The record before us suggests that both
spouses engaged in conduct that caused distress to the other party and contributed to the
dissolution of the marriage. Neither party was faultless in the breakdown of the marriage.
It does not matter, for purposes of this appeal, whether Wife‟s conduct technically rose to
9
the level of inappropriate marital conduct as an additional ground for divorce. See
Truman, 2010 WL 323066, at *5 (declining to review a finding of inappropriate marital
conduct where there was another sufficient basis for awarding the divorce, as the findings
on the subject were “unnecessary surplusage”). Here, grounds for divorce existed, so the
trial court was authorized to declare the parties divorced pursuant to Tennessee Code
Annotated section 36-4-129. We discern no error in the trial court‟s decision to declare
the parties divorced instead of awarding a divorce to Wife alone. Declaring the parties
divorced was among the acceptable alternatives given the evidence presented at trial.

C. Marital Property Division – Liability for the Mortgage

Wife‟s next issue involves the mortgage on the marital home. The parties had
been residing in the marital home for six years at the time of trial. Wife conceded that
the parties had no equity in the home. The parties purchased the marital home in August
2008 for $165,000, with a mortgage of $162,850. The mortgage was refinanced in 2010
for a total of $167,939. Both parties were listed as co-borrowers on the mortgage. The
tax appraisal value of the home was $147,100. Several judgment liens were filed against
the marital home due to credit card debt and medical debt, and at the time of trial, the
judgment liens totaled $43,327.74. The total recorded indebtedness against the property
was $211,266.74. The home had a negative equity of $64,166.74. The parties were able
to stay current on their mortgage payments, but Husband testified that he was “working
week-to-week with money” and did not have an excess.

Wife wanted the court to order the house sold and to order Husband to pay the
deficit that would remain after the sale based on the liens and mortgage liability. In its
final order, the trial court described the amount of debt Husband took away from the
marriage as “overwhelming.” With regard to the marital home, the court made the
following findings:

At the time the division of property is to become effective, the
parties own a marital residence which is hopelessly over-mortgaged and has
considerable judgment lien debt. Wife suggests that the property be sold
and that Husband pay the remaining debt. Because of the judgment liens,
there is no way for the house to be sold and the debt extinguished so as to
allow closing and transfer of the deed. Neither party has the present ability
to accomplish this.
....
The parties have accumulated $43,327.74 in marital debt under three
separate General Sessions Court judgments. Each judgment bears interest at
the rate of 5.25% interest. The minimum amount of payments due on these
agreed judgments will not even pay the debt service. The amount of the
10
 judgments continues to grow. Each judgment has been recorded as liens in
the Register‟s Office for Wilson County, Tennessee, and are thus attached
to the marital residence.
....
Wife does not wish to retain the marital residence. The Court
accredits her testimony that she cannot afford it. The Court will not require
the marital residence to be sold, inasmuch as neither party can afford to
complete the transaction. Husband testified that he does not want to take
bankruptcy, and the Court cannot force him to do so. All of Wife‟s right,
title and interest in the marital residence shall be divested out of Wife, and
vested in Husband. Husband shall indemnify and hold Wife harmless from
any debt associated with the marital residence, and all other debt assigned
solely to him under this memorandum.

Wife filed a post-trial motion arguing that she should have been formally relieved of the
debt associated with the marital home instead of being left with her name on the loan
indefinitely. During the hearing on the motion, the trial judge questioned Wife‟s attorney
as to what steps she proposed that Husband be required to take in order to remove Wife‟s
name from the mortgage. She acknowledged that someone would have to come up with
$60,000 to satisfy the liens and mortgage balance remaining after the sale of the property.
She then proposed that Husband should be forced to refinance the entire amount of the
indebtedness. However, the trial judge asked if counsel was aware of any company that
would be prepared to make such a loan, and she was not. Counsel for Husband suggested
that no mortgage company would loan Husband 150% of the fair market value of the
property. The trial court likewise concluded that Husband would be incapable of
completing such a transaction. The court entered an order stating that “there is no
possible way to relieve Wife from liability on the mortgage indebtedness unless the
property is allowed to go to foreclosure. Neither Husband nor Wife has the present
ability to pay $60,000.00, which is the approximate amount that would be required to sell
the property and satisfy the mortgage/lien indebtedness.”

On appeal, Wife criticizes the trial court‟s ruling as requiring the parties to
“remain tethered together indefinitely.” She claims that she must now wait until Husband
pays off the mortgage, sells the home, or enters bankruptcy in order to gain relief from
the debt. Wife claims that her debt-to-income ratio is negatively impacted in such a way
that it may become difficult for her to purchase a new residence in the future. Wife
argues that the trial court should have required Husband to either sell the house
immediately, refinance all of the debt, or “otherwise solely assume the debts associated
with the house.”

Decisions regarding the division of marital property are fact-specific and require
11
consideration of many circumstances surrounding the property and the parties. Downing
v. Downing, No. M2010-00045-COA-R3CV, 2011 WL 2418732, at *5 (Tenn. Ct. App.
June 13, 2011). Trial courts have broad discretion in fashioning an equitable division of
marital property, and appellate courts accord great weight to the trial court‟s decision.
Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App. 2007). Wife does not cite any
caselaw on appeal to suggest that the trial court erred in making its decision regarding the
mortgage, and she does not suggest any specific options for removing her name from the
mortgage that appear to be feasible under the circumstances.

In divorce proceedings, courts cannot disturb the rights of the parties‟
creditors to collect joint obligations from either or both of the divorcing
parties. Blake v. Amoco Fed. Credit Union, 900 S.W.2d 108, 111 (Tex.
App. 1995).
It is not uncommon in divorce cases to turn over the ownership of a
marital asset to one party while the parties remain jointly liable for the debt
associated with the asset. While it is possible to order one party to make the
monthly payments on a joint debt, the court cannot absolve the other party
from his or her liability to the creditor. It is also unlikely that a creditor will
readily agree to release a solvent debtor simply because of a divorce. Thus,
if the party who has been ordered to make the monthly payments on a joint
debt defaults, the other party becomes responsible for the debt and the late
charges and runs the risk of damage to his or her credit rating.
Courts and lawyers have devised several ways to address this
problem. The court may order, or the parties may agree, that the person
awarded the property will refinance it or obtain a new loan in his or her
own name and then use the proceeds to pay off the existing joint debt. The
court may also order, or the parties may agree, that the property will be
owned jointly until a date certain when the property must either be financed
or sold. Finally, the parties or the courts may include a “hold harmless”
provision in the decree or marital dissolution agreement in which the
parties are required to indemnify and hold each other harmless from any
and all future obligations stemming from ownership of the property they
receive.

Long v. McAllister-Long, 221 S.W.3d 1, 10 (Tenn. Ct. App. 2006). In the absence of any
other feasible alternatives, the trial court in this case opted for the third option, ordering
Husband to “indemnify and hold Wife harmless from any debt associated with the marital
residence.” We recognize that neither Wife nor Husband is placed in an advantageous
situation. However, as the trial judge aptly stated, “a divorce doesn‟t mean a fresh start.”
We cannot say that the trial court erred in its conclusion that Wife must remain a co-
borrower on the mortgage due to the parties‟ financial constraints.
12
 D. Parenting Issues

The next set of issues raised by Wife deals with the trial court‟s rulings regarding
a parenting schedule for Son. In the final decree, the trial court began by noting the
statutory directive to order a custody arrangement that permitted both parents to enjoy the
maximum participation possible in the life of the child consistent with the statutory
factors set out in Tennessee Code Annotated section 36-6-106 (a)(1)-(15), the location of
the parents‟ residences, the child‟s need for stability, and all other relevant factors. The
trial court then made very detailed findings of fact, spanning 34 paragraphs, in support of
its decision to order equal parenting time for the parties. Wife analyzes each of the
statutory factors in her brief on appeal and challenges numerous factual findings made by
the trial court with respect to these factors. We will address each applicable factor as
well. However, we do so with the following standard of review in mind:

Because decisions regarding parenting arrangements are factually
driven and require careful consideration of numerous factors, trial judges,
who have the opportunity to observe the witnesses and make credibility
determinations, are better positioned to evaluate the facts than appellate
judges. Thus, determining the details of parenting plans is peculiarly
within the broad discretion of the trial judge. It is not the function of
appellate courts to tweak a residential parenting schedule in the hopes of
achieving a more reasonable result than the trial court. A trial court‟s
decision regarding the details of a residential parenting schedule should not
be reversed absent an abuse of discretion. An abuse of discretion occurs
when the trial court applies an incorrect legal standard, reaches an illogical
result, resolves the case on a clearly erroneous assessment of the evidence,
or relies on reasoning that causes an injustice. A trial court abuses its
discretion in establishing a residential parenting schedule only when the
trial court‟s ruling falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal standards to the
evidence found in the record.

Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013) (citations and quotations
omitted).

Tennessee Code Annotated section 36-6-106(a) provides factors for the court to
consider when making a custody determination in a divorce case in order to determine an
arrangement that serves the best interest of the child.1 The trial court must “order a

1
Wife argues on appeal that the trial judge made comments at the conclusion of the testimony that
13
custody arrangement that permits both parents to enjoy the maximum participation
possible in the life of the child” consistent with the statutory factors, the location of the
residences of the parents, the child‟s need for stability, and all other relevant factors.
Tenn. Code Ann. § 36-6-106(a). The first factor is the “strength, nature, and stability of
the child‟s relationship with each parent” and whether one parent has performed the
majority of parenting responsibilities relating to the daily needs of the child. Tenn. Code
Ann. § 36-6-106(a)(1). With regard to this factor, the trial court found that Son has a
strong relationship with both parents. The court found that Wife had been present during
more waking hours than Husband, but when Husband was not working, he took the child
fishing and participated in his sports activities. Wife contends that this finding was
“quite one-sided,” but at the same time, she “does not deny the truth of the finding.” We
agree that the evidence supports this finding and do not consider it one-sided.

The next factor requires consideration of each parent‟s “past and potential for
future performance of parenting responsibilities, including the willingness and ability of
each of the parents [] to 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.” Tenn. Code Ann. § 36-6-106(a)(2). The court should consider the
likelihood of each parent to honor and facilitate court ordered parenting arrangements and
rights. Id. Regarding this factor, the trial court noted that both Wife and Husband
testified that it would be in Son‟s best interest for Husband to have more participation in
Son‟s life. The court noted that Wife reiterated this point at least three times during the
trial. Accordingly, the court credited this testimony.

The court also noted, however, that Wife was “excessively protective” of Son
when Husband exercised parenting time, as demonstrated by Wife‟s decision to follow
Husband to East Tennessee. The trial court found that Wife “suffers from anxiety
disorder when separated from the child.” The trial court found no act, event, or omission
on Husband‟s part that would be a reasonable basis for Wife‟s anxiety issues. Wife
argues that she was not excessively protective of Son and that she simply made herself
available in case a crisis occurred during the trip. She points out that Husband had never
traveled alone with Son, and Son becomes anxious in outside environments. On the other
hand, we recognize that Husband was only traveling from Middle Tennessee to East
Tennessee with Son, and Husband‟s family was present during the visit as well. Even

indicate that he intended to substitute his own personal opinion in place of the directives laid out by the
legislature in the statutory best interest factors. A trial court speaks through its written orders, not through
oral statements contained in the transcript, so appellate courts review a trial court‟s written orders. Payne
v. CSX Transp., Inc., 467 S.W.3d 413, 441 n.21 (Tenn. 2015). We note, however, that we have read the
trial judge‟s oral remarks and do not consider them as indicative of an intent to substitute his judgment for
that of the general assembly.
14
after Husband and Son arrived, Wife insisted on “Facetiming” with Son at least twice a
day during the visit, which interfered with Son‟s time with Husband and his family. Wife
also argues that the trial court made an incorrect finding of fact by stating that she suffers
from an anxiety disorder when separated from the child. However, when Wife was asked
why she decided to follow Husband and Son to East Tennessee, she began her
explanation by stating, “I have an anxiety disorder.” Having carefully reviewed the
testimony, we agree with the trial court‟s findings that Wife has, on occasion, been
excessively protective of Son during Husband‟s parenting time, and she suffers from an
anxiety disorder that affects how she responds to being separated from Son.

Another statutory factor is each parent‟s disposition “to provide the child with
food, clothing, medical care, education and other necessary care.” Tenn. Code Ann. §
36-6-106(a)(4). The trial court found that Wife had been voluntarily unemployed for the
past four years, and due to Wife‟s unemployment, the family finances became so strained
that Husband was required to work two full time jobs. The court found that Wife was
under a “delusion regarding Husband‟s alleged failure to provide” for the family. 2 The
court also found that Wife was “unmotivated to work outside the home” and had “shown
no understanding of the absolute need to work outside the home.” Wife argues that it is
inaccurate and belittling to say that she has been unemployed when she has been caring
for Son. She also claims that the parties‟ financial strain “was in no way caused by” the
fact that she did not work outside the home. Considering Wife‟s unemployment outside
the home is not inaccurate or meant to belittle her. The statute requires consideration of
Wife‟s disposition to provide the child with food, clothing, education, medical care, and
other necessary care. Thus, Wife‟s motivation to secure employment and her ability to
provide for Son are appropriate factors for consideration. As for the cause of the parties‟
financial strain, we agree that the parties struggled with debts throughout the marriage,
even prior to Wife‟s decision to stay at home. However, the evidence does not
preponderate against the trial court‟s finding that, due to Wife‟s continued
unemployment, even after Son began preschool, the family finances became so strained
that Husband was required to work two full time jobs. It is disingenuous to say that
Wife‟s unemployment in no way caused financial strain for the parties.

2
We reject Wife‟s assertion that the trial court erred in relying on Exhibit 2 as the basis for its conclusions
regarding Wife‟s spending. Wife testified at trial that she was forced to provide the majority of the
groceries for the marital home. She also testified that Exhibit 2 accurately reflected her expenses and
summarized what she spent from her accounts between 2012 and 2015. The trial court found that Wife
was under a “delusion” that Husband failed to provide for the family and, as an example, noted that
Wife‟s own exhibit demonstrated that she spent only $50 to $100 on food in some months. Given Wife‟s
description of her exhibit, we find no error in the trial court‟s reliance on the information she provided.
15
 Another factor is “[t]he degree to which a parent has been the primary caregiver,
defined as the parent who has taken the greater responsibility for performing parental
responsibilities.” Tenn. Code Ann. § 36-6-106(a)(5). The trial court found that Wife
performed the majority of the parenting responsibilities due to the fact that Husband
worked two full time jobs during most of Son‟s life. The court found that Husband was
perfectly capable of performing parenting responsibilities and had only been limited in
this regard due to his past work schedule. The evidence supports these findings. Wife
complains that Husband was not “only” limited by his work schedule because he also
took time to hunt, fish, and see his paramour when he could have been spending time
with Son. However, Husband testified that he had hunted and fished less than ten times
over the past four years due to his work schedule, and he spent time with his co-worker
paramour, during their very brief relationship, either before he began work for the TWRA
in the mornings, during lunch, or after he finished work for Bass Pro Shop late at night,
when she would accompany him running errands.3 The small amount of time Husband
spent on these other activities does not lead us to conclude that the trial court erred in
finding that Husband is perfectly capable of performing parenting responsibilities and has
only been limited in this regard in the past due to his work schedule.

The next factor involves the “love, affection, and emotional ties existing between
each parent and the child.” Tenn. Code Ann. § 36-6-106(a)(6). The trial court found that
both parents have equal love and affection for Son. It noted Wife‟s testimony that
Husband is “a very good father, when he is present.” On appeal, Wife “does not deny”
these findings but again claims they are one-sided. We discern no error in these findings.
Wife acknowledges that this factor does not weigh in favor of either party.

Regarding the “emotional needs and developmental level of the child,” Tenn.
Code Ann. § 36-6-106(a)(7), the trial court noted Son‟s weekly therapy for sensory
processing disorder and that Son would attend pre-K instead of kindergarten in the
coming year. The court found that Son‟s experiences at his preschool had been very
successful in addressing his issues and that it was in Son‟s best interest to continue
attending.

As for the “moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child,” the court noted that Wife provides religious
instruction for the child, but the court found both parents to be morally fit. We reject
Wife‟s assertion that Husband is not morally fit as a parent simply because he admitted to
adultery and/or inappropriate marital conduct. See Earls v. Earls, 42 S.W.3d 877, 913
3
According to Husband, his extramarital relationship occurred “after a year‟s worth of litigation,” which
would have been around May 2015. By the time of trial in July 2015, the relationship had ended.
16
n.7 (Tenn. Ct. App. 2000) (rejecting the trial court‟s conclusion that a parent was
somehow “morally unfit” to be the custodial parent because of his relationship with a
paramour).

Regarding physical health, the trial court found that Husband enjoys good health
while Wife suffered from various injuries and medical conditions. The court noted that
Wife takes Percocet/Oxycodone daily for an injury that occurred many years ago. The
court found that Wife has suffered from anxiety and depression since the age of 18 and
has been treated with various anti-depression and anti-anxiety drugs for the past 14 years.

The trial court also expressed some concern with Wife‟s alcohol use while caring
for Son. It noted that Wife was still responsible for Son‟s care even though he was
sleeping, and the trial court found that Wife‟s alcohol consumption at the airport was
“indicative of a parent more concerned with their own needs than the child‟s best
interests.” Wife seems to suggest that the trial court erred in its conclusions regarding
these incidents. However, considering the level of medications taken by Wife on a daily
basis, the fact that the child comes to Wife‟s bed every single night, and the fact that he
suffers from anxiety in new environments, yet Wife chose to drink when alone with him
at an airport, we cannot say that the trial court erred in expressing some concern over
these incidents. The court also recognized that Wife‟s issues with medications had
improved. The court recognized that Husband recommended Wife as a babysitter for one
of his co-workers with full knowledge of her issues and medications, and Wife performed
those duties without incident. The court found that Husband had no pre-divorce
complaints about leaving Son in Wife‟s care.

The best interest analysis also requires consideration of the child‟s involvement
with physical surroundings, school, or other significant activities, Tenn. Code Ann. § 36-
6-106(a)(9), and the importance of continuity in the child‟s life, including the length of
time the child has lived in a stable, satisfactory environment, Tenn. Code Ann. § 36-6-
106(a)(10). The trial court found that continuity was very important in Son‟s life and that
he is happy and successful at his preschool. Wife argues that the trial court should have
noted the importance of continuity for Son related to her role as his primary caregiver.
However, the trial court had already acknowledged Wife‟s role as primary caregiver in its
discussion of other factors. With specific regard to continuity and the length of time the
child has lived in a stable environment, Husband emphasized that he would be remaining
in the marital home, which was the only home Son had known. Wife‟s plans were
unknown at the time of trial, as she testified that she intended to search for a rental home
and begin working after the divorce trial. Consequently, we believe the continuity factor
does not weigh heavily in Wife‟s favor, as she suggests.
17
 Finally, we consider each parent‟s employment schedule. Tenn. Code Ann. § 36-
6-106(a)(14). The trial court noted that Wife had no current work schedule but most
certainly would in the near future. It noted that Wife acknowledged her ability to hold
employment and her intention to find a job as soon as possible. The trial court found that
Husband‟s work schedule for his second job would probably have to be reduced to
facilitate parenting time. However, the court accredited Husband‟s testimony regarding
his willingness to make those changes and his testimony that he frequently works at home
for the TWRA. The court noted Wife‟s testimony that Husband made himself available
when needed in the past. Wife complains that Husband had not reduced his work
schedule by the time of the hearing on her post-trial motion, but at the same time, we
recognize that Wife was still residing in the marital residence with Husband and Son.

After carefully reviewing all of the applicable statutory factors in conjunction with
the trial court‟s findings, the record does not indicate that the trial court abused its
discretion in fashioning a residential parenting schedule for Son in which he would share
equal time with Husband and Wife. This arrangement permits both parents to enjoy the
maximum participation possible in the life of the child in a manner that is consistent with
the statutory factors. See Tenn. Code Ann. § 36-6-106. The parenting schedule devised
by the court does not fall outside the spectrum of rulings that could reasonably result
from applying the correct legal standards to the evidence in the record.

Wife‟s next argument is that the trial court erred in failing to designate a primary
residential parent. The parenting plan stated, “Father shall have responsibility for the
care of the child or children except at the following times when the other parent shall
have responsibility: The parents shall equally share parenting time exercising an
alternating full week-to-week schedule.” The parenting plan assigned 182.5 days of
parenting time per year for each parent. Another section of the parenting plan stated,
“The child is scheduled to reside equal time with each Mother and Father. This parent is
designated as the primary residential parent[.]” The plan did not specifically designate
either parent as the primary residential parent.

“To allocate parenting responsibilities properly, the court must ensure that each
permanent parenting plan designates a primary residential parent and establishes a
residential parenting schedule.” Armbrister, 414 S.W.3d at 695 (emphasis added).
Tennessee Code Annotated section 36-6-402(5) expressly provides that a parenting plan‟s
residential schedule “shall designate the primary residential parent.” See also Thompson
v. Thompson, No. M2011-02438-COA-R3-CV, 2012 WL 5266319, at *6 (Tenn. Ct. App.
Oct. 24, 2012) (“the court must designate a „primary residential parent‟”). In fact, the
parenting plan “must designate one parent as the primary residential parent, even where
18
residential time is split evenly.” Cummings v. Cummings, No. M2003-00086-COA-R3-
CV, 2004 WL 2346000, at *10 (Tenn. Ct. App. Oct. 15, 2004) (citing Tenn. Code Ann. §
36-6-402(5); Hopkins v. Hopkins, 152 S.W.3d 447 (Tenn. 2004)); see, e.g., Brown v.
Brown, No. E2011-00421-COA-R3-CV, 2012 WL 1267872, at *7 (Tenn. Ct. App. Apr.
13, 2012) (explaining that a trial court could not designate both parents as primary
residential parent).

Husband argues that it would be arbitrary and unjust to designate one parent as the
primary residential parent when both have equal parenting time. He notes that a “primary
residential parent” is defined as “the parent with whom the child resides more than fifty
percent (50%) of the time.” Tenn. Code Ann. § 36-6-402(4). In Hopkins, the Tennessee
Supreme Court considered this definition and found that it does not preclude a child‟s
residential schedule from being divided equally between the parents. Hopkins, 152
S.W.3d at 449. Still, however, the supreme court concluded that the lower court erred in
failing to designate a primary residential parent because “Tennessee‟s statutes require
both a residential schedule, see Tenn. Code Ann. § 36-6-404(b) (2001), and the
designation of a primary residential parent, see Tenn. Code Ann. § 36-6-402(5) (2001).”
Id. at 450. We recognized in Cummings that when parents have an exactly equal amount
of residential parenting time, neither parent actually meets the statutory definition of a
primary residential parent. Cummings, 2004 WL 2346000, at *14. Nevertheless, “even
though there may be no primary residential parent in fact, the law requires the
designation of one parent as the primary residential parent, regardless of the statutory
definition.” Id. The designation of a primary custodian is necessary for state and federal
statutes and applicable policies of insurance that may require a determination of custody.
Brown, 2012 WL 1267872, at *7. We therefore find it appropriate to remand this case to
the trial court for designation of a primary residential parent.

We note that in Cummings, which was decided in 2004, this Court concluded that
when parents equally share residential time, the trial court should consider the fact that
(under the child support guidelines as they existed at that time) only the primary
residential parent was entitled to receive child support, and therefore, the trial court
should designate the parent with lower income as the primary residential parent to ensure
that the child is not deprived of the benefit of support. Cummings, 2004 WL 2346000, at
*15. In Hopkins, also decided in 2004, the supreme court explained that under the then-
existing child support guidelines, a comparative analysis of the parties‟ earnings was
improper, the income of the obligee-recipient could not be considered in calculating child
support, and child support could only be awarded to the primary residential parent.
Hopkins, 152 S.W.3d at 449-50. When Hopkins was decided in 2004, however, “the
Child Support Guidelines had not yet been amended to adopt the „income shares
approach‟” that exists today. See Merkel v. Merkel, No. E2014-01888-COA-R3-CV,
2016 WL 1276094, at *6 (Tenn. Ct. App. Mar. 31, 2016) (no perm. app. filed). The
19
amended guidelines took effect in 2005 and now recognize that a primary residential
parent with greater income than the alternate residential parent may be required to pay
child support to the alternate residential parent to assist with the child‟s expenses during
times spent with the alternate residential parent. Id. (citing Tenn. Comp. R. & Regs.
1240-02-04-.04(7)(f)). As a result, the rationale employed by the Cummings court for
automatically designating the parent with less income as the primary residential parent no
longer exists. Accordingly, on remand, the trial court should designate a primary
residential parent without regard to the rule of thumb set forth in Cummings.

One final note is worth mentioning. During oral argument on appeal, the members
of this panel questioned the attorneys about whether the child support worksheets that
were attached to the permanent parenting plan included a box that designated either
Husband or Wife as the primary residential parent. Upon review of the worksheets, the
parties acknowledged that the box designating the “PRP” had an “X” next to the space
for Wife. However, counsel for Husband explained that the attorneys did not fill in that
box. He stated that the automated computer program fills in the box automatically based
on the number of days allocated to each parent. According to counsel, when parents
equally share parenting time at 182.5 days each, the computer, by default, designates the
mother of the child as the primary residential parent rather than the father, and that
default designation cannot be changed. Wife‟s counsel acknowledged that the worksheet,
by default, deems the mother to be the primary residential parent. Thus, it is clear that
the computer worksheet designated Wife as the primary residential parent, not the
attorneys or, more importantly, the trial court. We have often said that parenting
decisions are among the most important decisions confronting the courts. See, e.g., In re
T.R.Y., No. M2012-01343-COA-R3-JV, 2014 WL 586046, at *11 (Tenn. Ct. App. Feb.
12, 2014); Shofner v. Shofner, 181 S.W.3d 703, 715 (Tenn. Ct. App. 2004). We decline
to recognize the designation automatically generated by the child support worksheet as
controlling when the trial court did not name a primary residential parent in the divorce
decree or permanent parenting plan. The trial court is not bound by the designation in the
child support worksheet on remand.4

4
We also encourage the Department of Human Services to review the computer program that generates
the child support worksheets to determine whether the program automatically requires designation of the
mother as primary residential parent, without an option for alteration, in situations involving equal
parenting time. We presume that the automatic selection of Wife as primary residential parent was due to
the following provision found in the child support guidelines:

(iii) Fifty-fifty/Equal Parenting.

(I) Except as provided below in item (iii)(II) and subpart (iv), the Mother assumes the
role of PRP for all children in fifty-fifty/equal parenting situations for purposes of
calculating the BCSO, therefore, the BCSO for these children shall be entered in the
Mother's column.
20
 E. Child Support

Wife‟s next argument on appeal is that the trial court erred in imputing income to
her for purposes of calculating child support. The child support guidelines provide that
imputing gross income to a parent is appropriate if a parent is determined to be willfully
and/or voluntarily underemployed or unemployed. Tenn. Comp. R. & Regs. 1240-02-04-
.04(3)(a)(2)(i)(I). This provision “„is designed to prevent parents from avoiding their
financial responsibility to their children by unreasonably failing to exercise their earning
capacity.‟” Tidwell v. Tidwell, No. M2015-00376-COA-R3-CV, 2016 WL 423771, at *4
(Tenn. Ct. App. Feb. 2, 2016) (no perm. app. filed) (quoting Wheeler v. Wheeler, No.
M2012-02154-COA-R3-CV, 2014 WL 1512828, at *6 (Tenn. Ct. App. Apr. 15, 2014)).
It allows a court to use a party‟s potential income, or earning capacity, if the court finds
the party is willfully or voluntarily underemployed. Cisneros v. Cisneros, No. M2013-
00213-COA-R3-CV, 2015 WL 7720274, at *11 (Tenn. Ct. App. Nov. 25, 2015) (no
perm. app. filed). The guidelines do not presume that any parent is willfully or
voluntarily unemployed. Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii). The
purpose of the inquiry is to ascertain the reasonableness of the parent‟s occupational
choices in light of the parent‟s obligation to support his or her child and to determine
whether such choices benefit the children. Id. A finding of willful or voluntary
unemployment is not limited to choices motivated by an intent to avoid or reduce child
support payments; it may be based on any intentional choice or act that adversely affects
a parent‟s income. Id. Factors that may be considered include the parent‟s past and
present employment and his or her education, training and ability to work. Tenn. Comp.
R. & Regs. 1240-02-04-.04(3)(a)(2)(iii). The guidelines also recognize the role of a stay-
at-home parent as an important and valuable factor in a child‟s life, and in considering
whether to impute income to a stay-at-home parent, the court must consider (1) whether
the parent acted in the role of full-time caretaker while the parents lived in the same
household, (2) the length of time the stay-at-home parent has remained out of the
workforce for that purpose, and (3) the age of the minor children. Tenn. Comp. R. &
Regs. 1240-02-04-.04(3)(a)(2)(iii)(III).

(II) When calculating support in a fifty-fifty/equal parenting situation in conjunction with
a standard parenting situation, the BCSO for the child(ren) in the fifty-fifty/equal
parenting situation will be assigned to the Father in situations where he is the PRP for all
other children in the case under consideration.

Tenn. Comp. R. & Regs. 1240-02-04-.08(2)(c)(1)(iii). Regardless of the effect of this guideline on the
calculation of child support, we believe that the automated selection by the computer worksheet cannot
trump the trial court‟s designation of primary residential parent, and the computer worksheet‟s automatic
selection is not controlling in the absence of any indication that the issue was actually addressed by the
trial judge.
21
 We review a finding of voluntary unemployment with the following principles in
mind:

“„Determining whether a parent is willfully and voluntarily underemployed
and what a parent‟s potential income would be are questions of fact that
require careful consideration of all the attendant circumstances.‟” Reed v.
Steadham, No. E2009-00018-COA-R3-CV, 2009 WL 3295123, at *2
(Tenn. Ct. App. Oct. 14, 2009) (quoting Owensby [v. Davis, No. M2007-
01262-COA-R3-JV, 2008 WL 3069777, at *4 (Tenn. Ct. App. July 31,
2008)]). The trial court has considerable discretion in its determination of
whether a parent is willfully or voluntarily underemployed. Hommerding v.
Hommerding, No. M2008-00672-COA-R3-CV, 2009 WL 1684681, at *7
(Tenn. Ct. App. June 15, 2009) (citing Eldridge v. Eldridge, 137 S.W.3d 1,
21 (Tenn. Ct. App. 2002)); see also Willis v. Willis, 62 S.W.3d 735, 738
(Tenn. Ct. App. 2001). A trial court‟s determination regarding willful and
voluntary underemployment is entitled to a presumption of correctness,
Johnson v. Johnson, No. M2008-00236-COA-R3-CV, 2009 WL 890893, at
*7 (Tenn. Ct. App. April 2, 2009), and “we accord substantial deference to
the trial court‟s decision, especially when it is premised on the trial court‟s
singular ability to ascertain the credibility of the witnesses.” Reed, 2009
WL 3295123, at *2.

State ex rel. Brown v. Brown, No. M2014-02497-COA-R3-CV, 2016 WL 506732, at *4
(Tenn. Ct. App. Feb. 8, 2016) (no perm. app. filed) (quoting Pace v. Pace, No. M2009-
01037-COA-R3-CV, 2010 WL 1687740, at *8 (Tenn. Ct. App. Apr. 26, 2010)).

The trial court found that Wife was voluntarily unemployed for the past four years
and that her job at HCA paid approximately eighteen dollars an hour. The trial court also
found that Wife had prior successful employment as an executive administrative assistant
for a radiology group in Texas where she earned ten dollars an hour. The court found
that Wife left her outside employment and became a stay-at-home caregiver when Son
was eleven months old by agreement with Husband, but she remained unemployed even
when Son attended a private preschool two or three days per week for the last two years.
As noted above, the trial court found that Wife‟s unemployment caused the family
finances to become so strained that Husband had to work two full-time jobs, and the
parties still had a negative net worth at the time of trial. The trial court found that Wife
had recently submitted resumes for employment and acknowledged her ability to hold
employment outside the home but was unmotivated to work and had shown no
understanding of the absolute need for her to work outside the home. The court found it
necessary for Wife to work full-time. The trial court calculated child support using
22
Husband‟s income from the TWRA and Bass Pro Shop, and it imputed income to Wife at
$1,733.33 per month based on employment at ten dollars an hour. This resulted in
Husband paying Wife $575 in child support per month.

On appeal, Wife argues that the trial court should not have found her voluntarily
unemployed because the parties agreed that she would be a stay-at-home mother. She
appears to argue that the trial court should not have imputed any income to her when
calculating child support. This was not Wife‟s position at trial, however. She testified
that she intended to re-enter the workforce and obtain a full-time job when the divorce
proceeding concluded, and she claimed that she was “receiving phone calls on my resume
as we speak.” Wife testified that she intended to work in the medical field as an
administrative assistant or officer manager. In Wife‟s proposed parenting plan, she listed
her gross monthly income as $1,256.66 for purposes of calculating child support
(apparently calculated based on wages of $7.25 an hour and 40-hour work-weeks). She
also concedes on appeal that she has an earning capacity of “approximately 2/3 of
Husband‟s current income.”

Considering Wife‟s testimony and proposals at trial, her age and experience, the
fact that she was earning eighteen dollars an hour just four years prior to trial, and the fact
that Son was scheduled to begin pre-K full-time in the month after trial, we discern no
error in the trial court‟s decision to impute income to Wife at a wage of ten dollars per
hour rather than the $7.25 wage she proposed.

Finally, with regard to child support, Wife challenges the trial court‟s decision to
require her to pay one-half of Son‟s private preschool tuition at Mount Juliet Christian
Academy rather than her pro rata share based on her income. Again, the trial was held in
July 2015. The parties mutually agreed that Son would begin full-time pre-K, five full
days a week, in August 2015. The trial court found that Son‟s experiences at the school
were very successful in addressing his issues and that it was in his best interest to
continue attending. Beginning August 1, the cost would be $508 per month for the basic
preschool tuition and $180 per month for extended care if the parents needed to take Son
to school early or pick him up late. Husband testified that he believed extended care
would be necessary because both he and Wife would be working. The trial court likewise
found that the cost of after school care was necessary for both parties to work outside the
home. The trial court ordered the parties to equally share the total cost of $688 per
month.

On appeal, Wife argues that the trial court erred in its decision regarding these
expenses, citing a section of the child support guidelines that addresses work-related
childcare expenses. The guidelines provide that work-related childcare costs “shall be
included in the calculations to determine child support” and “shall be divided between the
23
parents pro rata” based on the income of each parent. Tenn. Comp. R. & Regs. 1240-02-
04-.04(8)(a)(1), (3). “[W]ork-related childcare costs mean 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).

In contrast, the child support guidelines address “extraordinary educational
expenses” in another section. Extraordinary educational expenses include, but are not
limited to, “tuition, room and board, fees, books, and other reasonable and necessary
expenses associated with special needs education or private elementary and secondary
schooling.” Tenn. Comp. R. & Regs. 1240-02-04-.03(6)(b)(5). These expenses are
considered on a case-by-case basis in the calculation of support and may be added to the
presumptive child support order as a deviation. Tenn. Comp. R. & Regs. 1240-02-04-
.07(2)(d). “A trial court may order an upward deviation from the Guidelines for
extraordinary educational expenses which include tuition and other expenses associated
with private school attendance.” Beyer v. Beyer, 428 S.W.3d 59, 74 (Tenn. Ct. App.
2013). Decisions regarding extraordinary expenses and private school tuition are very
fact specific. Carlson v. Carlson, No. E2007-01276-COA-R3-CV, 2008 WL 4735307, at
*6 (Tenn. Ct. App. Oct. 27, 2008). “These expenses may be, but are not required to be,
divided between the parents according to each parent‟s [percentage of income].” Tenn.
Comp. R. & Regs. 1240-02-04-.07(2)(d). The use of the term “„may‟ grants the trial
court discretion in determining payment of private school tuition.” Martin v. Martin, No.
W2014-01007-COA-R3-CV, 2015 WL 2400583, at *6 (Tenn. Ct. App. May 20, 2015)
(no perm. app. filed) (citing Johnson v. Johnson, No. M2008-00236-COA-R3-CV, 2009
WL 890893, at *10 (Tenn. Ct. App. Apr. 2, 2009)); see also Massey v. Casals, 315
S.W.3d 788, 797 (Tenn. Ct. App. 2009) (“The award of such deviation is within the
discretion of the tribunal.”) “Trial courts have discretion in deciding whether to impose
the extraordinary expense of private school tuition on a party.” Johnson, 2009 WL
890893, at *11. A trial court can order payment of less than the full amount of a child‟s
extraordinary educational expenses depending on the proof in a particular case. Martin,
2015 WL 2400583, at *7. The trial court is required to calculate the extraordinary
educational expenses separately and to add them to the base child support award. In re
Andrea A.R., No. M2011-00574-COA-R3-JV, 2012 WL 397475 at *7 (Tenn. Ct. App.
Feb. 7, 2012). “If a deviation is allowed for extraordinary educational expenses, a
monthly average of these expenses shall be based on evidence of prior or anticipated
expenses and entered on the Worksheet in the deviation section.” Tenn. Comp. R. &
Regs. 1240-02-04-.07(2)(d)(1)(iii).

In Lubell v. Lubell, No. E2014-01269-COA-R3-CV, 2015 WL 7068559, at *20
(Tenn. Ct. App. Nov. 12, 2015) (no perm. app. filed), this Court considered how to treat
private academy schooling expenses for a fourteen-year-old child with autism. We
concluded that the trial court erred in treating the costs as “work-related childcare
24
expenses” rather than “extraordinary educational expenses.” Id. at *21. Therefore, we
remanded for recalculation of the child support obligation using the correct procedures.
Id.

In Rucker v. Harris, No. M2013-01240-COA-R3-JV, 2014 WL 3530851, at *6
(Tenn. Ct. App. July 15, 2014), perm. app. denied (Tenn. Nov. 21, 2014), the parties‟
five-year-old twins were enrolled in a pre-K program at a private school at a cost of $45
per child per week, and the trial court included that cost in the child support worksheet as
“work-related childcare.” Even though the children were enrolled in a program at a
private school and the cost of that program was billed as tuition, we held that the trial
court did not err in characterizing the cost as a work-related childcare expense, rather
than an extraordinary educational expense, because the nature of the program and its cost
were “not so different from what parents ordinarily encounter when arranging daycare for
children who have not yet reached school age.” Id.

Here, the issue is more difficult because Son is attending a private preschool that
addresses his special developmental needs, but a portion of the total cost is attributable to
aftercare expenses that are necessary due to the parties‟ employment. After carefully
reviewing the facts and the parties‟ arguments, we cannot say that the trial court erred in
treating Son‟s basic private preschool tuition cost of $508 per month as an extraordinary
educational expense and calculating it separately from the base child support award.
Work-related childcare costs are “expenses for the care of the child . . . which are due to
employment of either parent.” Tenn. Comp. R. & Regs. 1240-02-04-.02(29). Son has
historically attended preschool at Mount Juliet Christian Academy not because the parties
needed care for the child due to employment, but, as Wife testified, “To get him ready to
go into pre-K, to get him socialized and ready for school.” Son attended even though
Wife was unemployed. Considering the specific facts of this case, the trial court did not
abuse its discretion in its allocation of the basic preschool tuition cost equally between
the parties. See Johnson, 2009 WL 890893, at *11; Carlson, 2008 WL 4735307, at *7.
However, we conclude that the portion of the monthly preschool cost that is clearly
traceable to providing “extended care” for Son before and after school should be treated
as a work-related childcare cost on the child support worksheet. As the trial court
recognized, this sum was necessary to enable both parents to work outside the home. It
therefore qualifies as a work-related childcare expense “for the care of the child . . . due
to employment of either parent.” Tenn. Comp. R. & Regs. 1240-02-04-.02(29). On
remand, the trial court should modify the child support worksheet to classify the monthly
extended care expense of $180 as a work-related childcare expense and recalculate the
child support award accordingly.

Wife also references the fact that Son‟s private preschool costs had not actually
been incurred at the time of trial. She claims that “[o]nly amounts actually paid are
25
included in the calculation,” citing Tenn. Comp. R. & Regs. 1240-02-04-.08(2)(d)(1)(iii).
The full text of that section, however, provides: “Only amounts actually paid are included
in the calculation. Payments that are made by a parent‟s employer, but not deducted from
the parent‟s wages, shall not be included.” Id. The quoted section did not prevent the
trial court from addressing the monthly educational expense that both parties agreed they
would begin incurring two weeks after the trial ended. Wife admits that the amount
mentioned in the trial court‟s order “is the anticipated amount for the following school
year.” The guidelines specifically authorize the court to base the award “on evidence of
prior or anticipated expenses[.]” Tenn. Comp. R. & Regs. 1240-02-04-.07(2)(d)(1)(iii)
(emphasis added). This argument is meritless.

Wife also argues that Husband should have been responsible for paying the full
cost of Son‟s preschool because he was the only one working at the time of trial.
However, as noted throughout this opinion, Wife consistently represented to the trial
court that she intended to get a full-time job when the divorce proceeding ended. The
trial court was justified in concluding that extended care at the preschool was necessary
due to the fact that both parents would be working after trial.

For the aforementioned reasons, we affirm the trial court‟s imputation of income
to Wife for the purposes of calculating child support, and we affirm the trial court‟s order
requiring the parties to equally share the cost of Son‟s basic private preschool tuition.
However, we note that the child support worksheets attached to the divorce decree do not
mention the obligation regarding educational expenses. “If a deviation is allowed for
extraordinary educational expenses, a monthly average of these expenses shall be . . .
entered on the Worksheet in the deviation section.” Tenn. Comp. R. & Regs. 1240-02-
04-.07(2)(d)(1)(iii). On remand, the trial court should modify the child support
worksheets to include the entry for extraordinary educational expenses. It should also re-
classify the extended care expense as a work-related childcare cost and recalculate the
child support award in accordance with that classification.

F. Attorney’s Fees

Finally, Wife argues that the trial court should have awarded her attorney‟s fees in
the amount of $7,000, which she claims she incurred solely due to the issues involving
Husband‟s paramour. Again, Wife filed her amended complaint alleging adultery one
year into the litigation and one month prior to trial. Husband immediately filed an
answer admitting to adultery. At trial, Wife testified that she was seeking an award of
approximately $7,000 in attorney‟s fees “as a result of the paramour.” The trial court
found that Wife‟s testimony about her attorney‟s fees was insufficient to establish any
specific amount because her estimate that she had incurred “[a]pproximately 7,000” was
speculative. “In any event,” the court continued, “given the amount of marital debt and
26
child support for which Husband is now obligated, Husband is unable to pay anyway.”
The trial court ordered both parties to be responsible for their own attorney‟s fees.
Whether to award attorney‟s fees in a divorce proceeding is in the discretion of the trial
court and is reviewed under an abuse of discretion standard. Morgan v. Krauss, No.
M2014-02035-COA-R3-CV, 2015 WL 5936918, at *4 (Tenn. Ct. App. Oct. 12, 2015).
The trial court did not abuse its discretion in its decision. We respectfully deny Wife‟s
request for attorney‟s fees on appeal.

IV. CONCLUSION

For the aforementioned reasons, the decision of the general sessions court is
hereby affirmed in part, reversed in part, and remanded for further proceedings.
Specifically, we reverse and remand for designation of a primary residential parent and
for modification of the child support worksheets to reflect the educational expenses and
work-related childcare costs. Costs of this appeal are taxed to the appellant, Jennifer
Rebecca Creswell Henegar, for which execution may issue if necessary.

_________________________________
BRANDON O. GIBSON, JUDGE

27