Lee Stack, III v. Joann Valerie Stack

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 19, 2015 Session

LEE STACK, III v. JOANN VALERIE STACK

Appeal from the Chancery Court for Williamson County
No. 42697 Walter C. Kurtz, Senior Judge
___________________________________

No. M2014-02439-COA-R3-CV- Filed August 4, 2016
___________________________________

This appeal arises from post-divorce efforts to modify custody and child support established
in a Montana divorce. After the divorce, the mother and the child moved to Tennessee.
Although the father was living in Montana, he filed a petition to modify parenting time and
child support and for other relief in Tennessee. The trial court found a material change in
circumstance sufficient to modify the residential parenting schedule and that modification
would be in the child‟s best interest. The trial court also found a significant variance
between the Montana child support amount and the amount presumed under the Tennessee
Child Support Guidelines and modified the child support order. After reviewing the record,
we conclude that the trial court lacked subject matter jurisdiction to modify the Montana
custody determination but did have authority to enter a temporary order enforcing visitation.
We also find that, although the court had jurisdiction to modify the Montana child support
order, the court incorrectly calculated the mother‟s gross income and failed to credit the
father for his payment of the child‟s health insurance premium. Therefore, we vacate and
remand with instructions to dismiss the Father‟s petition to the extent it seeks modification of
the parenting time. To the extent Father seeks to enforce visitation with his child, we affirm
the specific visitation schedule ordered by the trial court and remand for the court to set a
time for expiration of the temporary visitation schedule. To the extent the petition seeks to
modify child support, we vacate and remand for a calculation of child support in accordance
with the Tennessee Child Support Guidelines and this opinion.

Tenn. R. App. 3 Appeal as of Right; Judgment of the Chancery Court Vacated in
Part; Affirmed in Part; and Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S. and ANDY D. BENNETT, J., joined.

Sarah Richter Perky, Nashville, Tennessee, for the appellant, Lee Stack, III.
Demeka Kay Church, Franklin, Tennessee, for the appellee, Joann Valerie Stack.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Lee Stack (“Father”) and Valerie Stack (“Mother”) were divorced in Montana on May
11, 2012. The marriage produced one child, Aden, born in June of 2011. The Montana
divorce decree approved and incorporated the parties‟ settlement agreement and stipulated
final parenting plan. These documents provided for the division of marital property, payment
of spousal and child support, and parenting of Aden.

The Montana parenting plan designated Mother the primary residential parent.
However, the parenting plan did not grant Father specific parenting time. Instead, the
parenting plan provided as follows:

[Father] will have parenting time as mutually agreed upon by the
parties. At this time, [Father] does not plan to exercise any
parenting time or visitation with [Aden]. If [Father] decides he
would like to have parenting time with [Aden] in the future, the
parties will revisit this parenting plan at that time, if they are
unable to mutually agree on [Father‟s] parenting time.

The Montana settlement agreement included several provisions pertaining to the
financial support of Aden. Father agreed to pay $2,600 per month in child support, an
amount in substantial compliance with the Montana Child Support Guidelines. Father also
agreed to pay the health insurance premiums for Mother and Aden. The parties agreed to
divide pro rata any of Aden‟s health expenses not covered by insurance. Mother was allowed
to claim Aden as a tax exemption each year, with the proviso that if, in any given year, the
exemption would not benefit her, Mother would allow Father to use the exemption. Finally,
Father agreed to maintain a life insurance policy with a death benefit of $1.5 million, payable
to Aden, and a death benefit of $500,000, payable to Mother, for a minimum period of
twenty-five years.

On November 25, 2013, Mother filed a petition in the Chancery Court for Williamson
County, Tennessee, to register the Montana divorce decree, including the parenting plan.
Mother asserted that she had lived in Tennessee with Aden since October 23, 2012. On
January 10, 2014, the court entered an agreed order, which registered the Montana decree.
The agreed order provided as follows:

2
 As evidenced by the signatures of counsel for the parties below,
it is agreed that Case No. DR-11-56 from the Sixth Judicial
District Court of Park County, Montana, shall be registered for
all purposes in the Chancery Court for Williamson County,
Tennessee, and said Court shall retain jurisdiction over said
matter in all respects.

Father also filed a copy of the agreed order with the Montana Court.

On January 29, 2014, Father filed a petition in the chancery court to modify the
Montana parenting plan and for other relief. Father asked for specific parenting time and
telephone contact with Aden, joint decision making, and modification of child support. The
court conducted a hearing on the petition over two days, October 9 and 10, 2014.

A. PROOF AT THE HEARING

1. The Parents‟ Residences and Parenting Time

The testimony at the hearing revealed that, around the time of the divorce, both
Mother and Father moved from Montana. In September 2011, Father moved to New
Hampshire. A few months after the divorce became final, Mother and Aden moved to North
Carolina. In October 2012, however, Mother relocated to Tennessee to be closer to family.

At some point after she moved to Tennessee, Father contacted Mother about
exercising parenting time with Aden. Between November 2012 and June 2013, Father began
spending time with Aden in Tennessee for a few days every other month. After Father‟s visit
in June 2013, communication between the parties broke down, and they had increasing
difficulty scheduling Father‟s parenting time. While Father had parenting time in August and
November 2013, he did not have any parenting time between November 2013 and March
2014.

When Father first began visiting Aden in Tennessee, he stayed in a local hotel, but
eventually he purchased land in Spring Hill, Tennessee to build a house. Father testified that
while he owned real estate in both Montana and Tennessee, he lived in Montana. Although
Father did not state a specific date he moved from New Hampshire back to Montana, at an
earlier hearing, he confirmed that he returned to Montana in November 2013.

2. The Parents‟ Work History and Income

During their marriage, neither parent was employed because Father‟s investments
generated sufficient income to meet their needs. Father had an investment portfolio with a
value of approximately $2.4 million. He and his sister were also the beneficiaries of four
3
generation-skipping trusts, valued at approximately $4 million.

Because neither party submitted the trust documents as evidence at the hearing, the
only proof concerning the operation of the trusts was Father‟s testimony. Father testified that
his distributions from the trusts were at the sole discretion of the trustee, a family friend who
also managed Father‟s investment portfolio. When he needed additional funds, Father
submitted a request to the trustee. The trustee had the option of withdrawing the requested
funds from either Father‟s investment account or one of the trusts. Father testified he had no
control over the trustee‟s choice.

As a result of his substantial net worth, Father‟s tax returns revealed significant,
annual income. Father‟s tax returns for the years 2011 to 2013 showed a total income of
$128,361, $116,269, and $147,909, respectively. Father claimed he received relatively small
distributions from the trusts. Father‟s taxable income was comprised of interest and dividend
earnings from his investment account and quarterly distributions from the trusts.

Father disclosed that he received additional distributions from the trusts that were not
included in his taxable income. Father explained he received $145,000 in 2012 to build a
house in New Hampshire and $105,000 in 2013 to buy land in Montana. In both instances,
the trustee initially refused his request for trust funds but ultimately approved the
distributions. The trustee also paid Father‟s child support obligations, the health insurance
premiums, and the life insurance premiums from trust funds.

Despite not being currently employed, Father was educated and had worked in the
past. Father held a college degree in sociology and a personal fitness certification from the
American College of Sports Medicine. Previously, he owned health clubs and worked as a
personal trainer. He has also worked as a scuba diving instructor and a race car driver.
Father claimed he was currently unemployed because his travel time to visit Aden interfered
with his ability to obtain employment. While he stated he was offered part-time work in
Montana, he provided no details about the job offer.

Mother‟s financial circumstances were much different than Father‟s. After the
divorce, Mother returned to school and obtained certification as an aesthetician. She worked
for five months as an aesthetician in Montana before moving to North Carolina. Since
moving to Tennessee, she had applied for a number of jobs but had been unsuccessful in
finding employment in her field because of her lack of experience. Mother testified that, for
the last year and one-half, she worked part-time as a riding instructor. She testified that she
was paid $20 per lesson and an additional amount for trail rides. Although her schedule
varied, she generally worked Monday through Thursday between two and eight p.m.

In 2012, Mother‟s total income, including wages, interest, dividends and capital gains,
was $7,501. Mother‟s 2013 tax return showed a total income of $41,380. While Mother
4
earned only $5,351 as a riding instructor, she reported additional income from interest,
dividends, capital gains and a small retirement distribution.

B. THE CHANCERY COURT‟S FINAL ORDER

The court issued its thorough and well-written final order on October 24, 2014. The
court found a material change of circumstance had occurred since the Montana divorce in
that Father now desired to have a relationship with Aden and the parties were unable to
mutually agree on the terms of Father‟s visitation. The court further found modification of
the parenting schedule would be in Aden‟s best interest. The court awarded Father 90 days
of visitation as provided in Mother‟s proposed parenting plan and granted Mother sole
decision making authority with the proviso that she discuss any major decisions with Father.

The court also found a significant variance between the amount of child support
ordered by the Montana court, $2,600, and the presumptive amount under the Tennessee
Child Support Guidelines, $2,100. The court found Father was voluntarily unemployed and
imputed additional income to him based on his potential earnings. The court found Mother
was not willfully underemployed. The court declined to order a downward deviation for
Father‟s parenting time travel expenses but determined an upward deviation of $100 per
month was reasonably necessary. Therefore, the court set child support at $2,200 per month.

The court made a minor modification to the division of Aden‟s uninsured medical
expenses to provide for the division of only “reasonable” healthcare expenses on a pro rata
basis. The court declined to modify the Montana decree with regard to the award of the
dependent tax exemption, health insurance, and life insurance. Finally, the court awarded
Mother $32,000 in attorney‟s fees incurred in defending the Montana child support order, as
permitted by Tennessee Code Annotated § 36-5-103(c).

In response to the parties‟ motions to alter or amend, the court issued several
clarifying orders. The court declined to make the new child support amount retroactive to the
date of Father‟s petition to modify or to order a hearing on the reasonableness of Mother‟s
attorney‟s fees.

II. ANALYSIS

A. SUBJECT MATTER JURISDICTION

As an initial matter, we must determine whether the trial court had jurisdiction to
modify the Montana parenting plan and child support order. Tenn. R. App. P. 13(b); Toms v.
Toms, 98 S.W.3d 140, 143 (Tenn. 2003) (“Appellate courts must address the issue of subject
matter jurisdiction even if the issue is not raised in the trial court.”). Without subject matter
jurisdiction a court lacks the “power to adjudicate a particular type of controversy,” and any
5
resulting order is void. Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct.
App. 1999). “The lack of subject matter jurisdiction is so fundamental that it requires
dismissal whenever it is raised and demonstrated.” Id. “Thus, when an appellate court
determines that a trial court lacked subject matter jurisdiction, it must vacate the judgment
and dismiss the case without reaching the merits of the appeal.” First American Trust Co. v.
Franklin-Murray Dev. Co., 59 S.W.3d 135, 141 (Tenn. Ct. App. 2001).

The existence of subject matter jurisdiction depends on “the nature of the cause of
action and the relief sought.” Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994). Here,
Father sought to modify both parenting time and child support established in Montana. To
determine whether the trial court had jurisdiction to modify the Montana decree, we must
examine two statutes, the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”), codified at Tennessee Code Annotated §§ 36-6-201 to -243 (2014), and the
Uniform Interstate Family Support Act (“UIFSA”), codified at Tennessee Code Annotated
§§ 36-5-2201 to -2903 (2014). These laws establish standards for enforcement or
modification of child custody and child support orders, respectively, across state lines. See
LeTellier v. LeTellier, 40 S.W.3d 490, 493 (Tenn. 2001) (discussing the UIFSA); Staats v.
McKinnon, 206 S.W.3d 532, 544 (Tenn. Ct. App. 2006) (discussing the UCCJEA).

1. Jurisdiction to Modify the Montana Parenting Plan

Under the UCCJEA, a state making a child-custody determination1 may retain
exclusive, continuing jurisdiction over that determination even if the child has left the state.
See Tenn. Code Ann. § 36-6-217 cmt. Therefore, the trial court of another state is prohibited
from modifying the child-custody determination of another state absent the presence of
certain specified circumstances. See id. § 36-6-218. One such circumstance is where there is
an emergency, which is not the case here. See id. §§ 36-6-218, -219. Before considering the
applicability of the remaining circumstances, the court where the modification is sought must
first determine that it possesses jurisdiction such that it could make an initial custody
determination. Id. § 36-6-218.

If the court does have the required jurisdiction, the court may modify the child-
custody determination of the other state only if one of two events has occurred. Id. The first
event requires action by the state that made the child-custody determination, and the other
event focuses on where the parents and child reside. Id. The statute provides as follows:

[A] court of this state may not modify a child-custody
determination made by a court of another state unless a court of

1
The UCCJEA defines “child-custody determination” to include any court order that provides for “the
legal custody, physical custody, or visitation with respect to a child.” See Tenn. Code Ann. § 36-6-205(3).
Consequently, the parenting plan adopted by the Montana court constitutes a “child-custody determination.”
6
 this state has jurisdiction to make an initial determination under
§ 36-6-216(a)(1) or (2), and:

(1) The court of the other state determines it no longer has
exclusive, continuing jurisdiction under § 36-6-217 or that a
court of this state would be a more convenient forum under
§ 36-6-221; or

(2) A court of this state or a court of the other state determines
that the child, the child‟s parents, and any person acting as a
parent do not presently reside in the other state.

Id.

The trial court had jurisdiction to make an initial custody determination, satisfying the
threshold requirement to the exercise of jurisdiction. By the time Father filed his
modification petition, Aden had been living in Tennessee for well over a year. Under the
UCCJEA, a Tennessee court has jurisdiction to make an initial custody determination if
Tennessee is the child‟s home state on the date of the commencement of the proceeding. Id.
§ 36-6-216(a)(1). “Home state” means the state in which the child has lived with a parent for
at least six months. Id. § 36-6-205(7). Having concluded that the trial court had jurisdiction
to make an initial custody determination, we then must consider whether the events described
in either subsection (1) or (2) of the statute applied such that the trial court could modify the
Montana parenting plan. Id. § 36-6-218.

The first subsection of the statute was not applicable. We find no proof in the record
that the Montana court determined either that its exclusive, continuing jurisdiction had ended
or that another state would be a more convenient forum. Id. § 36-6-218(1). Father failed to
obtain an order from the Montana court ceding jurisdiction. See id. § 36-6-217cmt. (2014)
(“A party seeking to modify a custody determination must obtain an order from the original
decree State stating that it no longer has jurisdiction.”). In the absence of an order from the
Montana court, jurisdiction to modify the Montana court‟s child-custody determination could
only be made under the second subsection of the jurisdictional statute.

The second subsection would be applicable only if Aden and both parents “d[id] not
presently reside” in Montana. Id. § 36-6-218(2); see also id. § 36-6-217(a)(2). “[P]resently
resides” is not a defined term in the UCCJEA. See id. § 36-6-205. When faced with
interpreting “presently resides” in this context, we have said “the sole question is whether the
relevant individuals „continue to actually live within the state‟ or have „physically le[ft] the
state to live elsewhere.‟” Staats, 206 S.W.3d at 549 (quoting Tenn. Code Ann. § 36-6-217
cmt.). Because jurisdiction attaches at the commencement of a proceeding, the relevant
inquiry is where did the parties reside at the time of the filing of the modification petition.
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Staats, 206 S.W.3d. at 548-49; Highfill v. Moody, No. W2009-01715-COA-R3-CV, 2010
WL 2075698, at *11 (Tenn. Ct. App. May 25, 2010).

We conclude that the second subsection was also not applicable. Father resided in
Montana when he filed his petition to modify the Montana parenting plan. While it is
undisputed that Mother, Father, and Aden left Montana around the time of the divorce,
Father returned to Montana in November 2013 before he filed his petition to modify. Father
did not visit Aden in Tennessee between November 2013 and March 2014 or live in his
Spring Hill house. See Highfill, 2010 WL 2075698, at *12 (stating focus should be on where
party was actually living on relevant date).

Because the circumstances specified by the UCCJEA were not present, the court
lacked subject matter jurisdiction to modify the child-custody determination of the Montana
court. Accordingly, we vacate those portions of the court‟s order that modify the parenting
schedule. See Dishmon, 15 S.W.3d at 480 (“[W]hen an appellate court determines that a trial
court lacked subject matter jurisdiction, it must vacate the judgment and dismiss the case
without reaching the merits of the appeal.”).

Although the trial court lacked subject matter jurisdiction to modify the child-custody
determination of the Montana Court, the trial court did have authority to enforce visitation.
Under Tennessee Code Annotated § 36-6-228, a Tennessee court “which does not have
jurisdiction to modify a child-custody determination may issue a temporary order
enforcing . . . [t]he visitation provisions of a child-custody determination of another state that
does not provide for a specific visitation schedule.” Tenn. Code Ann. § 36-6-228(a)(2). In
doing so, the enforcing court may substitute a “specific visitation schedule.” Id. § 36-6-228
cmt. However, the enforcing court must “specify . . . a period that it considers adequate to
allow the petitioner to obtain an order from a court having jurisdiction.” Id. § 36-6-228(b).

Under the facts of this case, we find it appropriate to treat the parenting schedule
proposed by Mother and adopted by the trial court as a temporary schedule. Consequently, a
remand is required to permit the trial court to specify a period that it considers adequate to
allow Father to obtain an order from the Montana court either modifying the parenting plan
or determining that it no longer has exclusive, continuing jurisdiction under UCCJEA or that
a Tennessee court would be a more convenient forum. See id. § 36-6-218(1). The temporary
schedule will remain in effect until such an order is obtained or the period set by the court on
remand expires. Id. § 36-6-228(b).

2. Jurisdiction to Modify Child Support Established in Montana

The UIFSA “controls the establishment, enforcement, or modification of support
orders across state lines.” LeTellier, 40 S.W.3d at 493. The intent of the statute is to ensure
parties are subject to only one valid support order at any one time. The key concept, much
8
like the UCCJEA, is “continuing exclusive jurisdiction.” Id.

The UIFSA permits a court of one state to modify child support ordered by another
state if the child support order has been registered in the state where the modification is
sought and one of two factual circumstances apply. Tenn. Code Ann. § 36-5-2611.2 Under
Tennessee Code Annotated § 36-5-2611,

(a) After a child support order issued in another state has been
registered in this state, the responding tribunal of this state may
modify that order only if § 36-5-2613[3] does not apply and after
notice and hearing it finds that:

(1) The following requirements are met:
(A) The child, the individual obligee, and the obligor do not
reside in the issuing state;
(B) A petitioner who is a nonresident of this state seeks
modification; and
(C) The respondent is subject to the personal jurisdiction of the
tribunal of this state; or

(2) The child, or a party who is an individual, is subject to the
personal jurisdiction of the tribunal of this state and all of the
parties who are individuals have filed written consents in the
issuing tribunal for a tribunal of this state to modify the support
order and assume continuing, exclusive jurisdiction over the
order. However, if the issuing state is a foreign jurisdiction that
has not enacted a law or established procedures substantially
similar to the procedures under parts 20-29 of this chapter, the
consent otherwise required of an individual residing in this state
is not required for the tribunal to assume jurisdiction to modify

2
The Tennessee General Assembly amended the UIFSA in 2010. See 2010 Tenn. Pub. Acts 372 (ch.
901). Initially, the Legislature set the effective date of the 2010 amendments to coincide with federal
ratification of the Hague Convention on the International Recovery of Child Support and Other Forms of
Family Maintenance. Id. at 405. In 2016, the Legislature changed the effective date to “when the department
of human services files a notice with the secretary of state . . . citing the effective date, which shall occur no
later than April 1, 2016.” 2016 1 Tenn. Code Ann. Adv. Legis. Serv. 203 (LexisNexis). The Department of
Human Services filed a notice with the Secretary of State citing the effective date as March 31, 2016.
Therefore, throughout the opinion, we cite to the version of the UIFSA and Tennessee Code Annotated § 36-5-
2611 effective prior to the 2010 amendments.
3
Tennessee Code Annotated § 36-5-2613 governs situations in which the child and the parents have
left the issuing state and all moved to the same state, which is not the case here.

9
 the child support order.[4]

Id. Mother satisfied the first requirement of the jurisdictional statute by registering the
Montana divorce decree in Tennessee, see id. §§ 36-5-2605, -2609,5 so the trial court
possessed jurisdiction to modify the Montana child support order if the factual circumstances
set forth in either subsection (a)(1) or (2) were present.

The factual circumstance described in subsection (a)(1) was not present. Our inquiry
under subsection (a)(1) focuses on where Father resided on the date the petition to modify
child support was filed. Highfill, 2010 WL 2075698 at *11; Jordan v. Jordan, No. W2002-
00854-COA-R3-CV, 2003 WL 1092877, at *7 (Tenn. Ct. App. Feb. 19, 2003) (“Therefore,
the question is simply this: where was Mr. Jordan residing when this action commenced?”).
As discussed above, Father resided in Montana at the time he filed his petition to modify
child support. Because the obligor, Father, still resided in the issuing state, Montana, when
he filed his petition for modification of child support, the trial court‟s jurisdiction could only
be premised upon subsection (a)(2) of the statute.

Subsection (a)(2) applied if two things were true. First, the child or a party must have
been subject to the personal jurisdiction of the trial court, and second, the parties must have
filed a written consent with the issuing court to the assumption of continuing, exclusive
jurisdiction by the trial court. Tenn. Code Ann. § 36-5-2611(a)(2). In this case, all parties
were subject to the personal jurisdiction of the trial court. Both Mother and Aden lived in
Williamson County, Tennessee, and Father, by filing his petition in Tennessee, submitted to
the jurisdiction of the trial court. See Dooley v. Dooley, 980 S.W.2d 369, 372 (Tenn. Ct.
App. 1998). Consequently, the trial court possessed jurisdiction to modify the Montana child
support order if the parties filed written consents with the Montana court to the trial court
assuming continuing, exclusive jurisdiction over the order.

Father submits that the parties did consent in a writing filed with the Montana court.
At trial, Father, over Mother‟s objection, offered a copy of a “Notice of Filing of Agreed
Order,” which attached the agreed order entered by the trial court on January 10, 2014. As
noted above, the agreed order, which registered the Montana divorce decree in Tennessee,
provided that the Chancery Court for Williamson County, Tennessee, “shall retain
jurisdiction over said matter in all respects.” While the copy was not certified, the Notice of

4
Montana has adopted the UIFSA. See Mont. Code Ann. § 40-5-1001 (Westlaw through 2015 Legis.
Sess.).
5
The UIFSA recognizes that a child support order may be registered “for enforcement, for
modification, or both.” Tenn. Code Ann. § 36-5-2611 cmt. In this case, Mother appears to have registered for
enforcement while Father registered for modification.

10
Filing of Agreed Order did bear a “filed” stamp from the Park County6 Clerk of District
Court. Father also testified that the notice and agreed order had been filed in Montana. The
trial court found the document bore “the indicia of authenticity” and admitted it as an exhibit.

Mother argues7 that, because the uncertified copy was not properly authenticated, the
trial court erred in admitting the copy. Generally, the admissibility of evidence rests within
the discretion of the trial court, and the court‟s decision to admit evidence will be reversed
only upon the showing of abuse of that discretion. State v. Van Tran, 864 S.W.2d 465, 477
(Tenn. 1993); Mayo v. Shine, 392 S.W.3d 61, 65 (Tenn. Ct. App. 2012). A trial court abuses
its discretion when it applies an incorrect legal standard, reaches an unreasonable result, or
bases its decision on a clearly erroneous assessment of the evidence. Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

We find no abuse of discretion in the trial court‟s admission of the notice of filing as
an exhibit. Under our evidentiary rules, a document can be authenticated if the proponent
presents “evidence sufficient to the court to support a finding by the trier of fact that the
matter in question is what its proponent claims.” Tenn. R. Evid. 901(a). The necessary
evidence can be provided by the testimony of a witness with knowledge. Tenn. R. Evid.
901(b). This court has previously approved the admission of court documents as authentic,
even when not certified, upon the testimony of a witness with knowledge accompanied by
court clerk stamps and other “indicia of reliability.” See State Dep’t of Children’s Servs. v.
J.C., No. E2008-00510-COA-R3-PT, 2008 WL 3539736, at *14 (Tenn. Ct. App. Aug. 14,
2008).

In this circumstance, the filing of the Tennessee agreed order with the Montana court
satisfied the written consent requirement of subsection (a)(2) of the jurisdictional statute. By
consenting to the trial court exercising jurisdiction “in all respects,” we conclude that the
parties intended for the trial court to assume continuing, exclusive jurisdiction over child
support. Therefore, once the agreed order was filed with the issuing court, the trial court had
subject matter jurisdiction under the UIFSA to modify the Montana child support order.

B. MODIFICATION OF MONTANA CHILD SUPPORT

Appellate courts review child support decisions using the deferential abuse of

6
Park and Sweet Grass Counties make up Montana‟s Sixth Judicial District. See Information for
General Public – Court Locator, Montana Judicial Branch, http://courts.mt.gov/locator/dist6 (last visited July
17, 2016).
7
Additionally, Mother argues Father did not comply with the local rules of court before introducing
the notice into evidence. We find no abuse of discretion in waiving the local rule in this circumstance, and
Mother has not shown a clear miscarriage of justice. Killinger v. Perry, 620 S.W.2d 525, 525 (Tenn. Ct. App.
1981).
11
discretion standard and will refrain from substituting their discretion for that of the trial
court. Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005). “We will not
reverse the trial court‟s decision unless we determine it is clearly unreasonable based on the
facts of the case and the applicable law.” Yates v. Yates, No. M2015-00667-COA-R3-CV,
2016 WL 748561, at *11 (Tenn. Ct. App. Feb. 24, 2016); see Richardson, 189 S.W.3d at
725.

Neither party contests the trial court‟s finding that a significant variance existed
between the child support amount ordered in Montana and the child support amount
presumed under the Guidelines. See Tenn. Code Ann. § 36-5-101(g) (Supp. 2015); Tenn.
Comp. R. & Regs. 1240-02-04-.05(2). Once a significant variance has been found, the court
must increase or decrease the support order as appropriate under the Guidelines. Tenn.
Comp. R. & Regs. 1240-02-04-.05(5). Here, the trial court reduced Father‟s child support
obligation from $2,600 to $2,200 per month.

1. Calculation of Gross Income

The first step in determining child support is setting the parties‟ gross income. Tenn.
Comp. R. & Regs. 1240-02-04.04(3); see also Milam v. Milam, No. M2011-00715-COA-R3-
CV, 2012 WL 1799029, at *3 (Tenn. Ct. App. May 17, 2012) (“The integrity of a child
support award is dependent upon the trial court‟s accurate determination of both parents‟
gross income.”). Father takes the position that the court should have determined his child
support obligation based solely on the income reflected in his tax returns without considering
his access to the family trusts or other assets. Father also challenges the trial court‟s findings
that he is voluntarily unemployed and that Mother is not willfully underemployed.
Alternatively, Father claims the court erred in its calculation of Mother‟s gross income based
on her 2013 tax return.8

We conclude that the trial court appropriately included Father‟s trust income in its
calculation of his gross income. Under the Guidelines, gross income is broadly defined to
include all income from any source, whether earned or unearned. Tenn. Comp. R. & Regs.
1240-02-04-.04(3)(a)(1); see Moore v. Moore, 254 S.W.3d 357, 360 (Tenn. 2007) (holding
the broad definition of gross income includes a one-time capital gain); Ford v. Ford, No.
02A01-9507-CH-00153, 1996 WL 560258, at *2 (Tenn. Ct. App. Oct. 3, 1996) (holding a
parent‟s withdrawal of trust principal should be included in broad definition of “gross
income”). The definition specifically includes trust income. Tenn. Comp. R. & Regs. 1240-
02-04-.04(3)(a)(1). Under this expansive definition, whether the trust payments were
mandatory or discretionary is irrelevant. See Ford v. Ford, No. 01A01-9611-CV-00536,

8
Father also argues the trial court erred in refusing to reopen the proof on income after the hearing
because he did not receive Mother‟s 2013 tax return in time to use it at trial. The court, however, admitted the
tax return as a late-filed exhibit. Under these facts, we find no abuse of discretion in the trial court‟s decision.
12
1998 WL 730201, at *5 (Tenn. Ct. App. Oct. 21, 1998) (stating it did not matter whether the
parent‟s trust income “came from regular inheritance distributions of trust principal, from
allowable hardship distributions of trust principal, or from income coming into the trust, as
long as funds remain in the trust”).

Moreover, we have previously held that “gross income” is not limited to the income
shown on a parent‟s tax return. See Wade v. Wade, 115 S.W.3d 917, 922 (Tenn. Ct. App.
2002); Rogin v. Rogin, No. W2012-01983-COA-R3-CV, 2013 WL 3486955, at *7 (Tenn. Ct.
App. July 10, 2013). Only Father‟s quarterly trust distributions were reflected on his tax
returns as income. Father‟s income for tax purposes did not include additional trust
distributions, such as the $145,000 payment in 2012 and the $105,000 payment in 2013, or
the distributions on his behalf for child support, health insurance, and life insurance. We
conclude these distributions fall within Tennessee‟s definition of gross income for child
support purposes.

We next consider whether the trial court erred in finding that Father was voluntarily
unemployed and that Mother was not willfully underemployed. These determinations are
questions of fact that require a careful consideration of all the relevant circumstances. Reed
v. Steadham, No. E2009-00018-COA-R3-CV, 2009 WL 3295123, at *2 (Tenn. Ct. App. Oct.
14, 2009). The trial court‟s determination of willful and voluntary underemployment is
entitled to substantial deference on appeal “especially when it is premised on the trial court‟s
singular ability to ascertain the credibility of the witnesses.” Owensby v. Davis, No. M2007-
01262-COA-R3-JV, 2008 WL 3069777, at *4 (Tenn. Ct. App. Jul. 31, 2008)); see Willis v.
Willis, 62 S.W.3d 735, 738 (Tenn. Ct. App. 2001) (stating the trial court has considerable
discretion in this determination).

In reviewing the court‟s findings, we are mindful of the purpose of this determination:

The Guidelines do not presume that any parent is willfully
and/or voluntarily under or unemployed. The purpose of the
determination is to ascertain the reasons for the parent‟s
occupational choices, and to assess the reasonableness of these
choices in light of the parent‟s obligation to support his or her
child(ren) and to determine whether such choices benefit the
children.

A determination of willful and/or voluntary underemployment or
unemployment is not limited to choices motivated by an intent to
avoid or reduce the payment of child support. The
determination may be based on any intentional choice or act that
adversely affects a parent‟s income.

13
Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii)-(ii)(I). “While parents have the right to
pursue their own happiness and to make reasonable employment choices, they will not be
permitted to avoid their duty to support their children by decreasing their income.”
Richardson, 189 S.W.3d at 726.

The Guidelines direct the court to consider the parent‟s past and present employment
as well as the parent‟s education, training and ability to work. Tenn. Comp. R. & Regs.
1240-02-04.04(3)(a)(2)(iii). The court may also consider “[a]ny additional factors deemed
relevant to the particular circumstances of the case.” Id. Our courts have accepted a parent‟s
reason for working at a lower paying job if the parent‟s explanation is reasonable and in good
faith. Willis, 62 S.W.3d at 738-39. On the other hand, courts “are more inclined to find
willful and voluntary underemployment when a decision to accept a lower paying job is
voluntary.” Richardson, 189 S.W.3d at 726. “Accordingly, the courts must scrutinize the
reasons for the obligor parent‟s career decision, and the reasonableness of his or her ultimate
career choice.” Scott v. Scott, No. M1999-00322-COA-R3-CV, 2001 WL 266038, at *3
(Tenn. Ct. App. Mar. 20, 2001) (citations omitted).

We conclude that the trial court followed the Guidelines in making its determination,
and we find no basis in this record to set aside the court‟s findings. Although Father testified
that he could not work because he needed a flexible schedule to exercise his parenting time
with Aden, the trial court, after considering his employment history and ability to work,
found he voluntarily chose not to work. The court also found Father‟s voluntary choice
decreased the income available to support Aden. In addition, the court appropriately based
its decision that Mother was not willfully underemployed on Mother‟s efforts to find full-
time employment, her education and training, and her previous work history.

In light of the foregoing, we find no abuse of discretion in the trial court‟s calculation
of Father‟s gross income as $18,167 on a monthly basis. Father‟s gross monthly income
from his 2013 tax return was $12,325. The trust paid $2,600 for child support and $422 for
health insurance for Mother and Aden each month. Moreover, the allocation of an additional
$2,917 in imputed income is appropriate in light of Father‟s education and past employment.
See Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii)(II).

However, we do find error in the calculation of Mother‟s gross income as $35,000 in
light of the evidence in this record that Mother‟s income in 2013 was $41,380. The trial
court provided no explanation of its calculation of Mother‟s gross income, and we can only
conclude that the court‟s calculation failed to include all of Mother‟s sources of income. As
discussed above, the Guidelines broadly define gross income to include interest income,
dividend income, retirement plan distributions, and net capital gains. Id. 1240-02-04-
.04(3)(a)(1). Because the additional income evidenced in Mother‟s 2013 tax return was not
reflected in the trial court‟s calculation, we remand for a redetermination of Mother‟s gross
income in accordance with the Guidelines.
14
2. Adjustments to Child Support for Additional Expenses

We next consider the trial court‟s decisions regarding adjustments for additional
expenses. The Guidelines require the court to include any additional expenses for the child‟s
health insurance premium, recurring uninsured medical expenses, and work-related child care
in determining child support. Tenn. Comp. R. & Regs. 1240-02-04-.04(8). Father challenges
the trial court‟s decisions in all three categories.

Father was required to pay $117 each month to Mother for Aden‟s health insurance
premium. Under the Guidelines, that monthly cost should be credited to the parent paying
the premium. Id. 1240-02-04-.04(8)(b)(3). In this case, the health insurance premium
amount was credited to Mother. Although Mother did make the actual payment to the health
insurance company, undisputedly, Father provided the funds.9 On remand, the court should
credit Father for his payment of Aden‟s health insurance premium as required by the
Guidelines.

We find sufficient evidence in the record to support the trial court‟s finding of $600 in
work-related child care expenses. Id. 1240-02-04-.04(8)(c)(1). Because her work hours
extend into the evening, Mother used a combination of a commercial day care facility and
individual sitters to care for Aden. While her child care expenses varied, Mother spent, on
average, $691 per month on work related child care. Although Father argues some of
Mother‟s child care was not work related, it appears the court adjusted the allowed amount
accordingly.

We also find no abuse of discretion in the trial court‟s division of Aden‟s uninsured
medical expenses. The Guidelines require these expenses to be divided on a pro rata basis
unless some other division is specifically ordered by the court. Id. 1240-02-04-.04(8)(d).
The court‟s refusal to order another method of division was reasonable in light of the
evidence.

3. Deviations from the Child Support Guidelines

The Guidelines presume a monthly amount of child support based on the parents‟
combined gross income after allowable adjustments. Id. 1240-02-04-.04(11). The trial court
has discretion, however, to deviate from the presumptive amount under certain
circumstances. Id. 1240-02-04-.07(1). In our review, we uphold the court‟s decision to

9
Mother argues that Father should not receive credit for his payment of the health insurance premium
because he has a contractual obligation to pay the premium under the Montana settlement agreement. We find
Mother‟s argument unavailing.

15
deviate from the presumptive amount “as long as the trial court applied a correct legal
standard, the decision is not clearly unreasonable, and reasonable minds can disagree about
its correctness.” Reeder v. Reeder, 375 S.W.3d 268, 275 (Tenn. Ct. App. 2012) (citations
omitted). Here, the court ordered an upward deviation in child support of $100 per month.
Father contends that the court erred in ordering an upward deviation and refusing to grant a
downward deviation for his travel expenses. Mother argues that the court should have
awarded an additional upward deviation based on Father‟s ability to pay.

If a court deviates from the presumptive amount, the court must make written findings
of fact stating the amount of child support presumed by the Guidelines, the reason for the
deviation, how application of the presumptive amount would be unjust or inappropriate, and
how the deviation serves the child‟s best interest. Tenn. Comp. R. & Regs. 1240-02-04-
.07(1)(c). “[I]f the net income of the obligor exceeds ten thousand dollars ($10,000) per
month, then the custodial parent must prove, by a preponderance of the evidence, that child
support in excess of the amount provided for in the child support guidelines is reasonably
necessary to provide for the needs of the minor child . . . .” Tenn. Code Ann. § 36-5-
101(e)(1)(B). In making its determination, the court must consider all available income of
the obligor and make a specific finding that the deviation is reasonably necessary. Id.; Tenn.
Comp. R. & Regs. 1240-02-04-.07(2)(g).

After finding application of the Guidelines would result in $2,100 in presumptive
child support, the court determined an upward deviation of $100 was reasonably necessary
and supported by the facts. The court noted Father‟s high standard of living and found that
not all the funds he received from the trusts were adequately captured in the gross income
calculation. Specifically, the court noted Father‟s receipt of $105,000 in 2013 was not
included in his gross income. Therefore, based on the disparate financial positions of Mother
and Father and the nature of Father‟s income, the court determined it would be unjust to
apply the presumptive amount of child support in this case.

We conclude that the trial court appropriately exercised its discretion to deviate from
the presumptive child support amount under the Guidelines. The court considered both
Father‟s available income and the goals of the Guidelines in its determination that an upward
deviation of $100 was reasonably necessary in this case. One of the major goals of the
Guidelines is to “[e]nsure that, when parents live separately, the economic impact on the
child is minimized, and, to the extent that either parent enjoys a higher standard of living, the
child shares in that higher standard.” Tenn. Comp. R. & Regs. 1240-02-04-.01(3)(e). Father
acknowledged at the hearing that, without his child support payment, Mother‟s income could
not cover her expenses. In light of the showing of need and the fact that not all of Father‟s
trust distributions are included in the calculation of his gross income, we find no abuse of
discretion in making an upward deviation or in the amount of the deviation. See Wiser v.
Wiser, 339 S.W.3d 1, 19-20 (Tenn. Ct. App. 2010) (acknowledging the goal of the
Guidelines to “ensure that the children fully share the standard of living enjoyed by the parent
16
with the most financial resources.”); State ex rel. Middleton v. Cochran, No. E2002-00164-
COA-R3-JV, 2002 WL 31059286, at *5 (Tenn. Ct. App. Sept. 17, 2002) (finding upward
deviation appropriate when one parent had substantially higher income than the other);
Cunningham v. Cunningham, No. W1999-02054-COA-R3-CV, 2000 WL 33191364, at *7
(Tenn. Ct. App. Oct. 20, 2000) (approving upward deviation in light of goal of the Guidelines
to ensure child shares in parent‟s high standard of living); but see Atkins v. Motycka, No.
M2007-02260-COA-R3-CV, 2008 WL 4831314, at *7 (Tenn. Ct. App. Nov. 6, 2008)
(holding the need to maintain a lifestyle was an insufficient reason to support an upward
deviation that more than doubled the presumptive amount).

With regard to parenting time travel expenses, we find no abuse of discretion in the
trial court‟s refusal to grant Father a downward deviation. The trial court took into
consideration all the relevant circumstances, including Father‟s income and voluntary
decision to live in Montana. See Tenn. Comp. R. & Regs. 1240-2-4-.07(2)(c); Long v. Long,
No. M2006-02526-COA-R3-CV, 2008 WL 2649645, at *12 (Tenn. Ct. App. July 3, 2008)
(finding no abuse of discretion when trial court appropriately considered the parent‟s income
and reason for move).

4. Miscellaneous Child Support Issues

Father also argues the trial court erred in refusing to modify the Montana divorce
decree with regard to the award of the dependent tax exemption and the requirement that he
maintain life insurance to secure his child support obligation. We find no abuse of discretion
in the trial court‟s decision. See Tenn. Code Ann. § 36-5-101(i); Young v. Young, 971
S.W.2d 386, 392 (Tenn. Ct. App. 1997) (holding “the legislature specifically left the
determination of whether to order a party to procure insurance for the benefit of the other
party and children of the marriage to the discretion of the trial court”); Chandler v. Chandler,
No. W2006-00493-COA-R3-CV, 2007 WL 1840818, at *9 (Tenn. Ct. App. June 28, 2007)
(“The decision of a trial court regarding the allocation of exemptions for minor children is
discretionary and should rest on facts of the particular case.”).

Father also challenges the trial court‟s refusal to make the reduction in child support
retroactive to the date of his modification petition. We leave decisions as to the date on
which a new child support amount is effective to the sound discretion of the trial court.
Wiser, 339 S.W.3d at 20; Huntley v. Huntley, 61 S.W.3d 329, 339 (Tenn. Ct. App. 2001). In
support of its decision to make the reduction effective as of October 24, 2014, the court
found that “the history of this case shows a gradual increase in interest by [Father] in his son
over a period of time . . . [and that a] reduction of child support in the amount [Father]
suggested would leave [Mother] at an unpredicted financial disadvantage.” We find no abuse
of discretion by the trial court in this regard.

17
 C. ATTORNEY‟S FEES

The trial court awarded Mother $32,000 in attorney‟s fees for her efforts in defending
the child support order. Both parties argue on appeal that the court erred in its award. By
statute, the prevailing party in child support proceedings may recover from the other spouse
reasonable attorney‟s fees incurred in that effort. Tenn. Code Ann. § 36-5-103(c) (2014).
Awards of attorney‟s fees under this statutory provision are now “familiar and almost
commonplace.” Deas v. Deas, 774 S.W.2d 167, 170 (Tenn. 1989). Courts grant these
awards to “facilitate a child‟s access to the courts.” Sherrod v. Wix, 849 S.W.2d 780, 784
(Tenn. Ct. App. 1992).

Mother argues that the court erred in only awarding her a portion of her attorney‟s
fees. We disagree. The amount of attorney‟s fees awarded must be reasonable, and the fees
must relate to custody or support issues. Miller v. Miller, 336 S.W.3d 578, 586 (Tenn. Ct.
App. 2010). The court refused to award Mother the attorney‟s fees charged by her previous
attorney because Mother failed to submit an itemized statement for those charges. Without
the itemization, the court was unable to determine the reasonableness of the fees or whether
the fees were related to support issues. We find no abuse of discretion in the trial court‟s
decision.

Father makes several arguments regarding the court‟s award of attorney‟s fees. First,
he asserts that the trial court erred in allowing Mother to submit the affidavits from her
attorneys because she did not comply with local rules of court. We find no abuse of
discretion in the trial court‟s decision to waive the local rules in this instance. Next, he
challenges the trial court‟s refusal to allow him to attack the reasonableness of Mother‟s
requested attorney‟s fees after the close of the hearing. Because Father failed to object to the
reasonableness of the attorney‟s fees during the hearing, we deem this issue waived. Tenn.
R. App. P. 36(a).

Finally, Father argues he was the prevailing party; therefore, he should have been
awarded attorney‟s fees, not Mother. We again disagree. Father asked the court to reduce
child support from $2,600 to $1,300. We conclude Mother‟s efforts benefited the child and
the award of attorney‟s fees was appropriate under the statute. See Evans v. Evans, No.
M2002-02947-COA-R3-CV, 2004 WL 1882586, at *12 (Tenn. Ct. App. Aug. 23, 2004)
(stating the general rule that the award of fees “is for the benefit of the child and is a
necessary part of, or inseparable from, the child‟s right to support”); Sherrod, 849 S.W.2d at
785 (“requiring parents who precipitate custody or support proceedings to underwrite the
costs if their claims are ultimately found to be unwarranted is appropriate as a matter of
policy.”).

18
 D. ATTORNEY‟S FEES ON APPEAL

Mother requests an award of her attorney‟s fees on appeal. Under Tennessee Code
Annotated § 36-5-103(c), we have discretion to award a prevailing party fees incurred on
appeal. Pippin v. Pippin, 277 S.W.3d 398, 407 (Tenn. Ct. App. 2008); Shofner v. Shofner,
181 S.W.3d 703, 719 (Tenn. Ct. App. 2004). We consider the following factors in our
decision to award fees: (1) the requesting party‟s ability to pay the accrued fees; (2) the
requesting party‟s success in the appeal; (3) whether the requesting party sought the appeal in
good faith; and (4) any other relevant equitable factors. Hill v. Hill, No. M2006-02753-
COA-R3-CV, 2007 WL 4404097, at *6 (Tenn. Ct. App. Dec. 17, 2007). Considering these
factors, we award Mother her attorney‟s fees incurred on appeal. On remand, the trial court
should determine the proper amount of attorney‟s fees to be awarded to Mother.

III. CONCLUSION

Because the trial court lacked subject matter jurisdiction to modify the Montana child
custody determination, we vacate that portion of the court‟s order that modified the Montana
parenting plan and remand with instructions to dismiss the Father‟s petition to the extent it
seeks modification of parenting time. We affirm the parenting schedule adopted by the trial
court as a temporary order enforcing the visitation provisions of the Montana parenting plan
and remand for the trial court to specify a time period for Father to obtain an appropriate
order from the Montana court. We also vacate the court‟s child support determination and
remand to the trial court for the purpose of calculating Mother‟s gross income in accordance
with the Guidelines and this opinion. On remand, the court should also credit Father for his
payment of the child‟s health insurance premium. Finally, we direct the trial court to
determine the proper amount of attorney‟s fees to be awarded to Mother for this appeal.

_________________________________
W. NEAL MCBRAYER, JUDGE

19