Kathleen J. Scobey v. Todd B. Scobey

09/13/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 7, 2017 Session

KATHLEEN J. SCOBEY V. TODD B. SCOBEY

Appeal from the Chancery Court for Williamson County
No. 41312 Michael W. Binkley, Judge

No. M2016-00963-COA-R3-CV

In this post-divorce action, Wife filed a Petition for Civil Contempt and Other Relief,
including a request to recover her attorney’s fees, alleging Husband violated five
provisions in the marital dissolution agreement (MDA). Husband denied the allegations
and filed a separate petition to decrease his child support obligation, which Wife
opposed. Before trial, but after protracted proceedings, Husband complied with three
provisions in the MDA, leaving two to be decided by the court. Following an evidentiary
hearing, the court found Husband in civil contempt for violating the remaining MDA
provisions, denied Husband’s petition to decrease child support, and ordered Husband to
pay Wife’s attorney’s fees. Specifically, the court found that Husband violated the MDA
by refusing to transfer to Wife one-half of the “non-retirement” account at T. Rowe Price
and by concealing and withholding two paychecks he earned during the marriage that the
parties agreed to divide equally. The trial court found that Husband did not offer
sufficient proof of his current income to support a reduction in his child support
obligation. The trial court also determined that Wife was entitled to recover her attorney’s
fees pursuant to the enforcement provision in the MDA and pursuant to Tenn. Code Ann.
§ 36-5-103(c) as the attorney’s fees pertained to the child support decree. Husband
appealed. We have determined that the MDA provision concerning the “non-retirement”
account was not sufficiently clear, specific, and unambiguous to sustain a finding of
contempt; therefore, we reverse this finding of contempt. However, we affirm the finding
of contempt for concealing and withholding two paychecks. We also affirm the trial court
in all other respects, including the award of attorney’s fees incurred by Wife in the trial
court and the denial of Husband’s petition to reduce child support. As for Wife’s request
to recover the attorney’s fees she incurred in this appeal, we find she is entitled to recover
her fees and remand this issue for the trial court to determine the amount she is entitled to
recover.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
in Part and Affirmed in Part
FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and RICHARD H. DINKINS, JJ., joined.

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Todd B. Scobey.

Jacqueline B. Dixon, Nashville, Tennessee, for the appellee, Kathleen J. Scobey.

OPINION

Kathleen J. Scobey (“Wife”) and Todd B. Scobey (“Husband”) were married in
1993 and had one child. They divorced by final decree on March 5, 2013 on the grounds
of irreconcilable differences. The final decree incorporated the marital dissolution
agreement (“MDA”) and a permanent parenting plan.

Wife filed a petition with the Chancery Court for Williamson County on January
10, 2014, requesting that the court find Husband in civil contempt for the following: (1)
failing to have a qualified domestic relations order (“QDRO”) prepared for two
retirement accounts in violation of paragraph 13 of the MDA; (2) failing to transfer
custodianship of the their child’s college education savings accounts (“UTMA
accounts”)1 to Wife in violation of paragraph 7 of the MDA; (3) failing to give Wife an
accounting of a debt owed to the parties in violation of paragraph 8 of the MDA; (4)
failing to transfer to Wife half of the non-retirement portion of a T. Rowe Price account
in violation of paragraph 13 of the MDA; and (5) failing to disclose income earned
during the marriage in violation of paragraph 29 in the MDA. Additionally, Wife
requested that Husband pay her attorney’s fees in accordance with the MDA’s
enforcement provision.

Husband filed an answer denying Wife’s charges of contempt and filed a petition
to modify child support, seeking a reduction in his child support payments due to a
decrease in income. Wife filed a response opposing any decrease in child support.

The parties engaged in mediation in September 2014 and entered into an agreed
order that required Husband to hire an attorney to prepare the QDROs for the retirement
accounts and to transfer custodianship of the UTMA accounts to Wife. As a consequence
of Wife instituting legal proceedings to force Husband to comply with the MDA,
Husband had the QDROs prepared, transferred custodianship of the UTMA accounts to
Wife, and provided Wife with an accounting of the debt owed to the parties. However,
the parties failed to agree on other issues. Thus, at the time of trial, the parties continued
to dispute (1) Wife’s request for attorney’s fees, (2) Wife’s allegation of contempt

1
The accounts were established under the Uniform Transfers to Minors Act, Tenn. Code Ann. §
35-7-101 to -226.

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regarding Husband’s refusal to transfer half of the non-retirement funds in a T. Rowe
Price account to Wife, (3) Husband’s failure to disclose income earned during the
marriage, and (4) Husband’s petition for a decrease in his child support obligation.

The remaining issues were tried on June 10, 2015, and Wife and Husband were the
only witnesses. At the conclusion of the trial, the court found in favor of Wife on all
issues. First, the trial court found Husband in civil contempt for violating paragraph 13 of
the MDA, which provided that Wife would receive one-half of the funds in a T. Rowe
Price account:

13. RETIREMENT/PENSION PLANS: Upon entry of
Final Decree of Divorce, one-half of the funds and assets in
the T. Rowe Price Roth IRA, account ending in #5830, styled
in the name of Husband, shall be, and is hereby, transferred to
Wife, and said one-half shall be divested out of Husband and
vested absolutely in Wife.

The court found that the T. Rowe Price account referenced in paragraph 13
contained both retirement and non-retirement funds, though the MDA listed it as a
retirement asset. The court also found that the parties intended to divide both the
retirement and the non-retirement assets equally and that Husband fully understood this
intent. Yet, Husband only transferred half of the retirement assets to Wife. Thus, the court
concluded that Husband willfully violated paragraph 13 of the MDA and ordered
Husband’s incarceration until he paid Wife $8,960.15, plus interest, which represented
half of the non-retirement funds contained in the account at the time of the divorce.

Second, the court found Husband in civil contempt for violating the disclosure
provision in the MDA, which states:

29. COMPLETE DISCLOSURE: The parties acknowledge
that there are no assets owned by them, either jointly or
individually, and that they have no interests in any assets
which are not reflected by the terms of this Agreement. The
parties warrant and represent that they have made full
disclosure to each other of their respective incomes,
anticipated incomes, and all assets in which they have
interests….Should it develop that there are undisclosed assets,
the party to whom the assets were not disclosed shall have a
right to an equitable share of same….

The court ruled that Husband violated this provision by failing to deposit two paychecks
issued on March 1, 2013 into the couple’s joint bank account, which Husband earned for
work performed through February 22, 2013, prior to the divorce. The trial court

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concluded that Husband’s act of cancelling the automatic deposit showed that Husband
intended to conceal his earnings from Wife.2 The court ordered Husband’s incarceration
until he paid Wife $8,018.71, which equaled one-half of both paychecks.

Third, the court denied Husband’s petition to reduce child support. It found that
Husband “totally, completely, and without explanation” failed to provide sufficient
evidence for it to properly calculate what Husband’s income would be in 2015. The court
found that Husband was not a credible witness, and it could not determine “what
[Husband’s] income is now or will be in the future based on a paycheck stub that he
presented that is three months old.”

The court also awarded Wife her attorney’s fees based on the MDA and Tenn.
Code Ann. § 36-5-103(c). As the court explained, Wife was contractually entitled to
attorney’s fees and expenses in accordance with the enforcement provision in the MDA
because her attorney’s fees “were both reasonable and necessary” to ensure Husband’s
compliance with the terms. The court also explained that Wife was entitled to recover her
attorney’s fees under Tenn. Code Ann. § 36-5-103(c), which provides that a party is
entitled to attorney’s fees when that party prevails in a child support action. After Wife’s
attorney submitted an accounting of her fees, the court ordered Husband to pay
$28,664.64 of Wife’s attorney’s fees.

ANALYSIS

Husband contends the trial court erred (1) by finding Husband in civil contempt,
(2) by dismissing Husband’s petition to modify child support, and (3) by awarding Wife
her attorney’s fees. Additionally, Wife asks us to decide whether she should be awarded
her attorney’s fees on appeal.3

I. CONTEMPT

In order to prevail on a civil contempt claim, the plaintiff must establish four
elements. Konvalinka v. Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 354
(Tenn. 2008). First, the plaintiff must establish that the order alleged to have been
violated is lawful. Id. An order is lawful if it is “issued by a court with jurisdiction over
both the subject matter of the case and the parties.” Id. at 355. The determination of

2
The proof established that during the marriage, Husband had his employer automatically deposit
his paychecks into the parties’ joint bank account. However, just prior to the divorce, Husband cancelled
the automatic deposit and failed to inform Wife of it.
3
Husband also included in one of his arguments that the court erred by admitting “the T. Rowe
Price account statement” into evidence; however, Husband did not identify this as an issue in his brief as
required by Tenn. R. App. P. 27(a)(4). Therefore, we deem this issue waived.

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whether a particular order is lawful is a question of law, which we review de novo with
no presumption of correctness accorded to the trial court. Id.

Second, the plaintiff must establish that the order is clear, specific, and
unambiguous. Id. at 354. “A person may not be held in civil contempt for violating an
order unless the order expressly and precisely spells out the details of compliance in a
way that will enable a reasonable person to know exactly what actions are required or
forbidden.” Id. at 355. Such a determination is a legal inquiry, subject to a de novo
review. Id. at 356.

Third, the plaintiff must prove by a preponderance of the evidence that the
defendant actually violated the order. Id. This is a factual issue to be decided by the court.
Id. Thus, our review is de novo, on the record, with a presumption that the trial court’s
factual findings are correct unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d).

Finally, the plaintiff must prove that the violation of the order was willful.
Konvalinka, 249 S.W.3d at 356. If a person “knows what he or she is doing and intends
to do what he or she is doing,” then that person is acting willfully. Id. at 357 (quoting
State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d 602, 612
(Tenn. Ct. App. 2006)). “[A]cting contrary to a known duty may constitute willfulness
for the purpose of a civil contempt proceeding.” Id. A determination of willfulness is a
factual issue, “uniquely within the province of the finder-of-fact who will be able to view
the witnesses and assess their credibility.” Id. Therefore, willfulness is also reviewed de
novo, with a presumption of correctness accorded to the trial court. Id.; Tenn. R. App. P.
13(d).

If the court determines that a party has willfully violated a lawful and
unambiguous order, the court may, in its discretion, hold the party in civil contempt.
Konvalinka, 249 S.W.3d at 358. On appeal, the court’s decision is entitled to great
weight, and a decision to hold a party in civil contempt is reviewed using the abuse of
discretion standard. Id. “This review-constraining standard does not permit reviewing
courts to substitute their own judgment for that of the court whose decision is being
reviewed.” Id. When reviewing a discretionary decision, the reviewing court should
review the decision to determine

(1) whether the factual basis for the decision is properly supported by
evidence in the record, (2) whether the [trial] court properly identified and
applied the most appropriate legal principles applicable to the decision, and
(3) whether the [trial] court’s decision was within the range of acceptable
alternative dispositions. When called upon to review a [trial] court’s
discretionary decision, the reviewing court should review the underlying
factual findings using the preponderance of the evidence standard contained

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 in Tenn. R. App. P. 13(d) and should review the [trial] court’s legal
determinations de novo without any presumption of correctness.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010) (internal citations
omitted).

A. THE T. ROWE PRICE ACCOUNT

Paragraph 13 of the MDA stated that Wife would receive one-half of the funds in
a “T. Rowe Price Roth IRA, account ending in #5830.” Both parties testified that the
“account ending in #5830” did not refer to an account number but to an investor number.
Wife claimed that the investor number only covered three accounts, which would make
the account easily identifiable under that number. Husband claimed that the investor
number covered twelve accounts, and he assumed that paragraph 13 only addressed the
retirement accounts managed by T. Rowe Price under that investor number.

To support her contention, Wife presented a copy of a T. Rowe Price monthly
statement that reported the account balances as of October 31, 2012. The first page of the
statement identified three “T. Rowe Price Mutual Funds” accounts, all of which were
listed under one “Investor Number.” The aggregate portfolio value of the accounts was
$30,056.34. The first account was named “Prime Reserve” (“prime reserve account”) and
it was listed under a heading titled “Nonretirement.” The value of this account was
$17,920.36. The two smaller accounts, named “T. Rowe Price Health Sciences” and “T.
Rowe Price Small-Cap Stock” (collectively, “retirement accounts”), were listed
immediately below the prime reserve account under the heading “Retirement.” On the
second page of the monthly statement, the three accounts were again identified, but this
time there was a separate “account number” beside each named account.

Wife testified that she used the investor number instead of the individual account
numbers because she assumed the investor number would be adequate to identify all
three accounts. Both Husband and Wife testified that while they intended to specifically
address the prime reserve account in the MDA, that account was not specifically
addressed anywhere in the MDA by its name or by its specific account number. Husband
went on to explain that he did not realize the MDA did not specifically identify the prime
reserve account until months after he signed it. Husband testified:

It was the end of the day. It was a final negotiation. When we
received the draft, even the large equitable securities was
missing from it and I brought that to their attention. And they
said, “Oh, let me go add that in. That was a mistake.” I did
not look at the brokerage part.

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 Husband also testified that T. Rowe Price managed twelve separate accounts for
the parties under one investor number, some of which were retirement accounts, some of
which were non-retirement brokerage accounts, and some of which were UTMA
accounts for the benefit of their child. On cross-examination, Wife conceded that she
received an email from Husband while negotiating the MDA, providing her with a list of
all twelve accounts managed by T. Rowe Price. That list included the prime reserve
account, which was identified as a brokerage account and was accompanied by an
account number. Wife testified on cross-examination:

I have been aware of all of the accounts from the get-go. I
handle the bills. I know every account number. And [my
attorney and I] were under the assumption that using an
investor number that covers a certain amount of accounts, that
that number covers—is the umbrella for those accounts; not
of one, not two, not three, but all.

It is undisputed that Husband divided the two retirement accounts in accordance
with paragraph 13 but that he did not divide the prime reserve “nonretirement” account.

The court ruled that the provision in the final decree that required the equal
division of the T. Rowe Price account was “clear, specific and unambiguous.” The court
further ruled that Husband willfully violated the provision when he refused to transfer
half of the funds in the prime reserve account to Wife. While neither party disputes that
the provision was a lawful order, Husband argues that it was not clear or specific enough
to warrant a finding of contempt. We agree with Husband on this issue.

The narrow issue here is whether Husband “willfully violated a lawful and
sufficiently clear and precise order,” not whether he breached the parties’ agreement to
divide the accounts equally. Konvalinka, 249 S.W.3d at 358. Unlike breach of contract
cases, we cannot go beyond the four corners of the order in contempt cases to clarify an
ambiguity. See Id. at 359. To the contrary, we can only look to the order being enforced
to ascertain whether a party willfully violated a lawful and unambiguous order. See id. As
our courts have explained, “[l]itigants are entitled to rely on the reasonable interpretation
of orders, and the use of the ‘plain and ordinary meaning’ standard to interpret orders
assures that litigants will be treated fairly.” Id.

The provision of the order at issue addresses “retirement” assets managed by T.
Rowe Price under “account ending in #5830.” The prime reserve account is identified on
the T. Rowe Price statement as a “nonretirement” account with an “account number” that
does not end in 5830, although the “investor number” does end in 5830. The evidence
admitted at trial showed that T. Rowe Price managed twelve accounts for the parties,
some of which were retirement accounts, some of which were non-retirement accounts,
and some of which were UTMA accounts. The MDA was divided into sections which

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separately addressed retirement accounts, brokerage accounts, and UTMA accounts.
Thus, there was some discrepancy between the numbers and names used to describe the
accounts on the T. Rowe Price statement and the numbers and names used to describe the
accounts in the MDA. This discrepancy created an ambiguity. Of course, this ambiguity
could be clarified by going beyond the four corners of the order to ascertain the parties’
intentions but the courts are not permitted to go beyond the four corners of the order in
contempt cases to clarify an ambiguity. See Konvalinka, 249 S.W.3d at 359. Accordingly,
we are unable to conclude that the terms as expressed in the order, as they pertain to the
non-retirement account, are clear, specific, and unambiguous.

To prevail on a civil contempt claim, the plaintiff must establish four elements. Id.
at 354. One of the essential elements is that the order is clear, specific, and unambiguous.
Id. As the court explained in Konvalinka, the order must precisely explain “the details of
compliance in a way that will enable a reasonable person to know exactly what actions
are required or forbidden.” Id. at 355. We have concluded that the order, as it pertains to
the non-retirement prime reserve account, fails to satisfy this requirement. Therefore,
Husband cannot be held in contempt for failing to comply with this provision.

B. UNDISCLOSED ASSETS

Wife testified that she was still living with Husband after their divorce in March
2013 because she had not yet closed on her new house. During the second or third week
in March, she opened a drawer in Husband’s desk while looking for staples and found
two paychecks issued on March 1, 2013. Both checks consisted of income Husband
earned from February 9 through February 22, 2013, totaling $16,037.42.

In her testimony, Wife explained that while married, the couple had a joint bank
account. Husband had his paychecks automatically deposited into the account and Wife
paid the bills from that account. When the couple divorced, the MDA required the parties
to split the contents of the joint account equally. Upon entering the final decree, Wife
wrote Husband a check for half of the funds in the account and then put the account
solely in her name, as the parties had agreed in the MDA. Because the paychecks issued
to Husband on March 1 had not been automatically deposited into the account, Wife had
been unaware of their existence. Therefore, that income was not divided, though Husband
earned it during the marriage.

Husband admitted that during the course of the marriage, he had his paychecks
automatically deposited into the couple’s joint bank account, and before the couple’s
divorce became final, he canceled the automatic deposit. Husband testified that he
understood that the MDA required that he and Wife equally divide the assets in the joint
bank account, which included both parties’ income during the marriage. He claimed,
however, that he and Wife discussed their paychecks for February, and that he told Wife

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he was going to deposit his earnings from that month into his new account, and she could,
likewise, keep her entire income for that month. Husband testified:

I was—we were looking at March as different…[Wife] said,
“Well, I deposited my check into [the joint account].” And I
said, “Well, make sure we back that out—make sure we back
that out when we do the final split.” So there was nothing
underhanded in trying to hide the checks. It was certainly a
motivator for me to sign the MDA and not go to trial because
I thought, there’s money coming….

In her testimony, Wife confirmed that Husband told her to remove her most recent
paycheck from the joint account before dividing it, but she denied that Husband ever told
her he was keeping his income from February. Wife explained:

A. I had a paycheck that [Husband] told me to keep. Because
I think one of two things: He either felt guilty because he
knew that he had withheld some large checks, or because
of the inequity in how we split things, that he kept the boat
and he had in excess of $16,000 in our home assets.
…
Q. How much was the amount that you backed out [of the
joint account]?

A. It was four-thousand-some-odd dollars.

The trial court found that the disclosure provision in the MDA was a clear, lawful
order that Husband willfully violated when he failed to disclose his February earnings to
Wife. Husband does not dispute the trial court’s determination that the order was lawful
and clear; however, he contends he did not violate the provision because Wife was aware
of Husband’s February income as manager of the couple’s joint bank account. Even if
Wife was unaware of Husband’s February income, Husband claims that since he received
the checks after the divorce became final, they constituted “future income.” He argues
that he was not required to disclose “future income” for the purposes of dividing the joint
bank account.

Whether Husband actually violated the order is a factual issue, and the trial court
is entitled to a presumption of correctness unless the evidence preponderates otherwise.
See Konvalinka, 249 S.W.3d at 356. The trial court credited Wife’s testimony, describing
her demeanor while testifying as “direct, to the point, and responsive.” To the contrary,
the trial court described Husband as inconsistent, evasive, and vague. More importantly,
the trial court made the express determination that Husband’s “testimony was not
credible.” Because the trial court is in a better position to make credibility findings, we

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defer to the trial court. See Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (“When it
comes to live, in-court witnesses, appellate courts should afford trial courts considerable
deference when reviewing issues that hinge on the witnesses’ credibility….”).4

Paragraph 29 of the MDA required the parties to “warrant and represent that they
have made full disclosure to each other of their respective incomes, anticipated incomes,
and all assets in which they have interests.” Wife testified that during the marriage
Husband had his paychecks automatically deposited into the couple’s joint bank account.
Before the divorce became final, Husband cancelled the automatic draft for his February
income and did not inform Wife. Therefore, Wife assumed that the February income had
been deposited into the joint bank account before she divided the account. Wife was
unaware of Husband’s February income until she discovered the checks in mid-March.
Because Husband did not make Wife aware of that income, Husband violated the
disclosure provision in the MDA. Husband’s contention that his February earnings
constituted “future income” is meritless. The couple divorced on March 5, 2013. The
February income qualified as a marital asset for the purposes of division and was covered
under the disclosure provision in the MDA.

The trial court also found that Husband’s violation was willful. A determination of
willfulness is a factual issue, “uniquely within the province of the finder-of-fact who will
be able to view the witnesses and assess their credibility.” Konvalinka, 249 S.W.3d at
357. Husband admitted that he intended to withhold his February income from Wife;
however, he claims he never intended to conceal it from her. We agree with the trial court
that Husband’s purposeful act of cancelling the automatic draft strongly indicated that
Husband intended to conceal this asset from Wife. The trial court credited Wife’s
testimony that Husband did conceal it until she discovered the paychecks sometime in
March. Therefore, the trial court did not err by holding Husband in civil contempt for
violating the disclosure provision in the MDA.

II. CHILD SUPPORT MODIFICATION

Tenn. Code Ann. § 36-5-101(g)(1) governs child support modification. It provides,
“Upon application of either party, the court shall decree an increase or decrease in
support when there is found to be a significant variance, as defined in the child support
guidelines established in subsection (e), between the guidelines and the amount of
support currently ordered….” A significant variance is defined as “at least a fifteen
percent (15%) change between the amount of the current support order…and the amount
of the proposed presumptive support order….” Tenn. Comp. R. & Regs. 1240-2-4-
.05(2)(c). Tenn. Comp. R. & Regs. 1240-02-04-.05(3) sets out the procedure for
determining whether a significant variance exists:

4
Husband does not question the court’s credibility findings on appeal.

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 To determine if a modification is possible, a child support
order shall first be calculated on the Child Support Worksheet
using current evidence of the parties’ circumstances….If the
current child support order was calculated using the income
shares guidelines, compare the presumptive child support
order amounts in the current and proposed orders….If a
significant variance exists between the two amounts, such a
variance would justify the modification of a child support
order….

“Because child support is based on income, an award for future support, including
prospective modification, is necessarily based upon most recent actual income.” Tinsley
v. Tinsley, No. M2001-02319-COA-R3-CV, 2002 WL 31443210, at *4 (Tenn. Ct. App.
Nov. 1, 2002).

The trial court has discretion when making child support determinations; however,
that discretion is limited by the child support guidelines. Smith v. Darmohray, No.
M2003-00236-COA-R3-JV, 2004 WL 904095, at *4 (Tenn. Ct. App. Apr. 27, 2004). We
review the record de novo with a presumption that the court’s factual findings are correct,
absent a showing that the evidence preponderates to the contrary. Tenn. R. App. P. 13(d);
Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000).

The trial court denied Husband’s petition to reduce child support, finding that
Husband did not meet his burden of proof. At trial, Husband testified that the original
child support order directed him to pay $1,786 per month based on his 2012 gross income
of $275,000 and Wife’s 2012 gross income of $42,000. Husband submitted a new child
support worksheet that calculated his child support payments to be $1,361 per month
based on his 2014 gross income of $200,451 and Wife’s 2014 gross income of $80,971.
The difference in the original and proposed orders constituted a deviation of more than
fifteen percent. However, for child support purposes, the relevant income at the time of
trial, June 10, 2015, was Husband’s and Wife’s most current income for 2015. See Tenn.
Comp. R. & Regs. 1240-02-04-.05(3); see also Langlo v. Langlo, No. E2014-00548-
COA-R3-CV, 2015 WL 1810513, at *6 (Tenn. Ct. App. April 20, 2015) (Mother’s 2012
tax return was not sufficient to establish Mother’s income as of October 2013).

Husband testified that he was on target to make the same in 2015—approximately
$200,451. He calculated Wife’s income to be $74,151 for 2015 based on her W-2 from
2014. However, Wife presented W-2s from 2014 that showed Husband’s income was
actually $213,266 for that year and Wife’s income was $67,126. Wife also testified that
as of 2015, she would no longer receive a base salary and would only earn commissions.
She presented a paycheck which showed her year-to-date income through the end of May
2015 and estimated that her income for 2015 would be $45,000 to $55,000.

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 As evidence of his 2015 income, Husband presented a paycheck issued on April
17, 2015. He claimed that his future paychecks would be consistent with his April
paycheck in terms of his base salary; however, it would not be consistent with the
commissions and bonuses he would earn in the future.5 While Husband testified that he
would likely earn the same in 2015 as he did in 2014, the trial court did not credit his
testimony, and we defer to the trial court on the issue of witness credibility. Kelly, 445
S.W.3d at 692. Moreover, the 2014 W-2s entered into evidence at trial showed that
Husband’s testimony about Husband’s and Wife’s 2014 income was erroneous.

Thus, we have determined that the trial court could not adequately calculate
Husband’s 2015 income based on (1) Husband’s erroneous testimony regarding his and
Wife’s past income, (2) Husband’s two-month-old paycheck, which did not accurately
reflect his current or prospective income, and (3) Husband’s unreliable testimony about
his future income. Because Husband did not provide the trial court with evidence of his
“most recent actual income,” and did not present credible testimony concerning his and
Wife’s past or future income, we affirm the trial court’s decision to deny Husband’s
petition to decrease child support. Tinsley, 2002 WL 31443210, at *4.

III. ATTORNEY’S FEES AT TRIAL

Marital dissolution agreements are contracts between the parties contemplating
divorce. Eberbach v. Eberbach, No. M2014-01811-SC-R11-CV, 2017 WL 2255582, at
*3 (Tenn. May 23, 2017). After a divorce decree becomes final, a marital dissolution
agreement does not lose its contractual nature, and courts are to enforce provisions in
contracts that expressly allow a party to recover his or her attorney’s fees incurred in
disputes over the contract. Id. The entitlement to recover attorney’s fees, however, is
limited to the parameters set out in the contract, and the fee provision is subject to the
rules of contract interpretation. Id. at *7. Contract interpretation is a question of law.

5
Husband testified:

The Court: …Well, are your commissions pretty consistent per quarter?
The Witness: No.…
…
Q. Have you received any bonuses since the date of this pay period
ending 4-17?
A. I received draws which are a portion of the bonus. And then I did
receive a reconciled about two weeks ago.
Q. Do you know what gross it showed on that? Would it show a year-to-
date?
A. For that one, no I don’t. It was similar to this. So $8,000 for the
quarter in commission.

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Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn. 2006). We accordingly review
the trial court’s conclusions de novo with no presumption of correctness. Id.

The enforcement provision in the MDA states:

23. NONCOMPLIANCE: In the event it becomes
reasonably necessary for either party to institute legal
proceedings to procure the enforcement of any provision of
this Agreement, he or she shall also be entitled to a judgment
for reasonable expenses, including attorney fees, incurred in
prosecuting the action.

Thus, according to the plain terms of the enforcement provision, Wife is entitled to a
judgment for reasonable expenses, including attorney fees, incurred in prosecuting this
action if it is determined that it was “reasonably necessary for [Wife] to institute legal
proceedings to procure the enforcement of any provision of this Agreement.”

The trial court determined that it was reasonably necessary for Wife to institute
this action to force Husband to comply with the MDA, and we fully agree with that
finding. Nevertheless, Husband contends that her fees should be reduced because she was
only granted “partial relief” and “most of the work” for which Husband was required to
pay Wife was either “work that was unnecessary” or concerned issues on which Husband
ultimately prevailed. We find no factual basis for this contention and Husband’s citations
to the record to support the generalized contentions are meager at best.

The record reveals that it was not only reasonably necessary for Wife to institute
these legal proceedings but it was also reasonably necessary for her to pursue the
litigation, because even with the litigation pending, Husband was very slow to comply
with the provisions at issue. Moreover, Husband’s contention that Wife is not “the
prevailing party” is not persuasive because she was the prevailing party on almost every
claim. Moreover, the Noncompliance Provision in the MDA states that a party is entitled
to attorney’s fees if it becomes reasonably necessary for that party to procure legal
services to enforce any provision in the MDA. The trial court found that it was
reasonably necessary for Wife to procure legal services to obtain Husband’s compliance
with the MDA, and we agree with the court’s finding. Furthermore, Wife prevailed in
almost every claim she asserted in the petition in the trial court and on appeal. Thus, Wife
is entitled to recover the reasonable and necessary attorney’s fees she incurred to enforce
Husband’s compliance with the MDA.

The trial court also concluded that under Tenn. Code Ann. § 36-5-103(c), Wife
was entitled to recover the attorney’s fees that she incurred in defending Husband’s
petition to reduce his child support obligation. Tenn. Code Ann. § 36-5-103(c) gives the
trial court discretion to award attorney’s fees to the party who successfully defends a

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child support order. We will not reverse a trial court’s decision to award attorney’s fees
under the statute unless the trial court has abused its discretion. Huntley v. Huntley, 61
S.W.3d 329, 341 (Tenn. Ct. App. 2001). Since Wife prevailed on the issue of child
support, we find that the trial court did not abuse its discretion in awarding Wife the
attorney’s fees she incurred in defending the original child support order.

For the foregoing reasons, we affirm the award of the attorney’s fees Wife
incurred in the trial court proceedings.

IV. ATTORNEY’S FEES ON APPEAL

Wife seeks to recover her attorney’s fees incurred on appeal. Wife has prevailed
on all but one issue on appeal, and we find it was reasonable and necessary for Wife to
oppose Husband’s appeal. Thus, for the same reasons the trial court concluded that Wife
was entitled to recover the fees she incurred in the trial court, we conclude that Wife is
entitled to recover the reasonable and necessary attorney’s fees she incurred on appeal.
Accordingly, we remand with instructions for the trial court to determine the amount she
is entitled to recover and make an appropriate award.

IN CONCLUSION

The judgment of the trial court is affirmed in part and reversed in part, and this
matter is remanded for further proceedings consistent with this opinion. Costs of appeal
are assessed against the appellant, Todd B. Scobey.

________________________________
FRANK G. CLEMENT JR., P.J., M.S.

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