Elizabeth Ann Baker v. Jonathan Garrett Grace

09/13/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 1, 2022

ELIZABETH ANN BAKER GRACE v. JONATHAN GARRETT GRACE

Appeal from the Chancery Court for Montgomery County
No. MC-CH-CV-FD-17-1 Ted A. Crozier, Judge
___________________________________

No. M2021-00116-COA-R3-CV
___________________________________

This appeal arises from a post-divorce petition to modify a parenting plan, specifically the
parenting schedule, and a counter-petition to modify child support. The parties were
divorced in Kentucky shortly after the father was diagnosed with a mental illness in 2012.
The separation agreement gave the father visitation “as agreed upon by the parties to be
supervised at all times by [the father]’s parents.” Over the next four years, the father
enjoyed frequent and liberal visitation with the child. This arrangement continued until the
grandparents took the father to the child’s school performance. The mother believed the
father’s presence was “wildly inappropriate” due to his mental health issues. She
subsequently refused the grandparents’ requests to see the child, effectively depriving the
father of any parenting time with the child. The father then commenced this action by
petitioning to modify the parenting plan so that he would have regularly scheduled
parenting time that was not subject to the mother’s unilateral approval. The mother opposed
the father’s petition and filed a counter-petition to modify his child support obligation and
to award an arrearage judgment for unpaid child support. After a trial, the court found that
the mother’s unilateral termination of the father’s visitation was a material change in
circumstance and that scheduled, supervised visitation with the father was in the child’s
best interest. The trial court also retroactively modified the father’s child support obligation
and awarded an arrearage judgment of $7,000 in favor of the mother for unpaid child
support. The court denied the mother’s request for pre- and postjudgment interest because
the mother’s “own actions . . . caused a lengthy delay to the conclusion of the[]
proceedings.” The mother raises several issues on appeal. She contends the trial court
lacked subject matter jurisdiction because there was no evidence that the mother, the child,
and the father lived in Tennessee for six months before the father’s petition. She also
contends that her refusal to allow the grandparents to see the child was not a material
change in circumstance. Further, she contends the trial court erred in its calculation of the
father’s child support obligation and in failing to award pre- and post-judgment interest
under Kentucky law. After carefully reviewing the record, we agree with the trial court in
all regards except its denial of interest and the effective date of the modified support order.
Therefore, the judgment of the trial is affirmed in part, reversed in part, modified in part,
and remanded for further proceedings consistent with this opinion.

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

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which KRISTI M.
DAVIS and CARMA DENNIS MCGEE, JJ., joined.

Melissa Ann Baker, Brentwood, Tennessee, for the appellant, Elizabeth Ann Baker Grace.

Michael Kenneth Williamson, Clarksville, Tennessee, for the appellee, Jonathan Garrett
Grace.

OPINION

FACTS AND PROCEDURAL HISTORY

I. BACKGROUND

In October 2010, Elizabeth Ann Baker Grace (“Mother”) married Jonathan Garrett
Grace (“Father”), after which the couple moved into a farmhouse in Christian County,
Kentucky. Around the same time, Father began experiencing auditory hallucinations and
attempted to commit suicide. The couple’s only child, River (“the Child”), was born in July
2011.

Soon after the Child was born, Father enlisted in the United States Marine Corps.
But two days into boot camp, Father attempted to commit suicide a second time. Father
was then discharged from the military and hospitalized at Vanderbilt Psychiatric Hospital
in Nashville, Tennessee, where his condition was diagnosed as schizoaffective disorder
and obsessive-compulsive disorder (“OCD”).

Unsettled by Father’s behavior, Mother moved out of the couple’s house and filed
a petition for divorce in the Christian County Family Court. The parties then executed a
separation agreement that gave Mother full custody of the Child and gave Father visitation
“as agreed upon by the parties to be supervised at all times by [Father]’s parents.” In
October 2012, the court granted Mother’s petition and approved the separation agreement;

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however, due to the severity of Father’s mental illness, he was not ordered to pay child
support “at the present time.”1

One year later, Father was approved for Social Security Disability Insurance
(“SSDI”), and Mother began receiving $164 per month on behalf of the Child. Around the
same time, the Christian County court ordered Father to pay $206.50 per month in child
support. Assuming that he was entitled to a credit for the Child’s SSDI payments, Father
started sending Mother $60 per month to cover the balance.

Despite her antipathy to Father, Mother maintained a good relationship with the
Child’s paternal grandparents, Karen Grace (“Grandmother”) and Tony Grace
(“Grandfather”) (collectively, “Grandparents”). Grandparents lived in Clarksville,
Tennessee, and Mother allowed the Child to stay with them from time to time. Mother
knew that the Child sometimes saw Father there, but she did not know the frequency or
nature of Father’s visits. Father never arranged for visitation directly with Mother, and
Grandparents avoided talking about Father around Mother because it upset her.

The frequency of the Child’s visits increased in January 2014 when Mother married
a soldier stationed at Fort Campbell, Joel Stephen Diemoz (“Stepfather”), at which time
they moved to Hopkinsville, Kentucky—a nearby town across the Tennessee-Kentucky
border from Clarksville. A year later, Mother moved even closer to Grandparents when she
and Mr. Diemoz bought a house in Clarksville. Meanwhile, Father continued to comply
with his treatment and eventually saw a remission of his auditory hallucinations.

Relations between Grandparents and Mother remained favorable until December
2016, when Grandparents took Father to a kindergarten program at the Child’s school.
Mother—who had not spent time around Father for nearly four years—told Grandmother
that Father’s presence at the elementary school was “wildly inappropriate” because of his
mental illness. Immediately thereafter, Mother ceased all contact between the Child and
Grandparents. As a consequence of Mother’s unilateral decision, Father’s parenting time
with the Child also ended.

1
The Separation Agreement included a Child Support provision that afforded Mother the right to
apply for child support in the future:

5. Child Support. Since [Father] currently is unemployed and is undergoing
treatment at Vanderbilt, he shall have no child support obligation to [Mother] for [the
Child] at the present time. The parties acknowledge that [Mother] may seek child support
from [Father] at a later date in accordance with KRS 403.210 and 403.211.

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 In January 2017, one month after Mother cut off contact with Grandparents, Father
filed a petition to register the Kentucky divorce decree in Montgomery County, Tennessee.
The divorce decree was registered in Tennessee pursuant to an agreed order entered in June
2017.

The next month, Father petitioned to modify the Child’s residential schedule and
asked for supervised visitation every other weekend. But the petition was suspended a short
time later after Mother and Stepfather filed their Petition for Termination of Parental Rights
and Stepparent Adoption.2 The petition alleged that Father was incompetent to provide care
and supervision for the Child and that he had abandoned the Child by not visiting or
providing financial support.

II. TERMINATION PROCEEDINGS

At the final hearing on Mother and Stepfather’s petition to terminate Father’s
parental rights, the trial court heard live testimony from several witnesses, including Father,
Mother, and Father’s psychologist, Dr. Deborah Tyson. The court also received into
evidence the deposition testimony of Father’s psychiatrist, Dr. Tareko Amison; Father’s
psychiatric nurse practitioner, Helen Hatfield; and a court-appointed forensic psychiatrist,
Dr. Michael McGhee.

Dr. McGhee testified that Father’s comorbid conditions put him at a “higher risk”
for acting on his intrusive thoughts “under the right circumstances.” For this reason, Dr.
McGhee concluded that the Child “would be at risk in the company of [Father].” However,
his opinion differed with that of the other expert witnesses. For example, Dr. Tyson, Dr.
Amison, and Ms. Hatfield testified that Father had complied with his treatment, had not
been hospitalized since 2016, and was not a threat to himself or anyone else. Dr. Amison
acknowledged that Father was still working to control his OCD symptoms, but she stated
that Father no longer experienced auditory hallucinations, the main symptom of his
schizoaffective disorder. Ms. Hatfield—a specialist in OCD—explained that Father’s
“obsession” was thinking that he did something wrong, and his “compulsion” was seeking
reassurance from others that he did not. Ms. Hatfield clarified that Father “has no desire
or . . . urge to do anything wrong”; to the contrary, Father’s anxiety stemmed from his
desire “to do everything right.”

Taking it a step further, as summarized by the trial court, Dr. Tyson testified that
she was staking her professional reputation on her opinion that to a reasonable medical
certainty Father was not a threat to himself or anyone else:

2
Mother and her husband filed the petition as “Elizabeth Penelope Diemoz and husband, Joel
Stephen Diemoz.” The petition and subsequent notice of appeal identified Father’s address as “260 Avignon
Way, Clarksville, TN 37042.”

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 39. Dr. Tyson indicates that [Father] has been compliant with his treatment
and his medication and that [Father’s] diagnoses are not detrimental to
the child and do not prevent harm from providing a safe and stable home
for his child. Dr. Tyson further indicates that she has reviewed Father’s
medical records in their entirety.

40. Dr. Tyson witnessed the Mother’s entire case in chief, including the
examination under oath of the Father. She had reviewed the report of Dr.
McGhee, dated August 27, 2018, as well as . . . the deposition of Dr.
McGhee conducted on March 15, 2019. Dr. Tyson reviewed the
deposition of the Father’s Psychiatrist, Dr. Amison, as well as the father’s
Obsessive-Compulsive Disorder (OCD) therapist, Ms. Hatfield.

41. Dr. Tyson was familiar with the Father’s diagnosis of Schizoaffective
disorder, depressive type and Obsessive-Compulsive Disorder (OCD).
She explained that the Father has “disturbing thoughts against what his
moral thoughts are.”

42. Dr. Tyson testified that the Father’s condition is characterized by
depressed mood, distractibility, inattention and getting lost in
conversation.

43. Dr. Tyson’s observations date back to June 2016. She never had reason
to believe that the Father was not compliant with his drug regimen or the
instructions of his other care givers.

44. Dr. Tyson believes the Father is doing well, driving to appointments and
attending school.

45. Dr. Tyson believes that the Father has an ideal support situation, residing
with his parents in a structured environment.

46. Dr. Tyson finds it is significant that there has been no suicide threat or
attempt since 2014 and that the Father has not been hospitalized since
2016.

47. Dr. Tyson testified that each time she sees a patient, including the Father,
she assesses whether that patient is a threat to themselves or others. Dr.
Tyson candidly testified that she was staking her professional reputation
on her opinion that to a reasonable medical certainty the Father was not a
threat to himself or anyone else.

The trial court found the testimony of Dr. Tyson very relevant and persuasive due in part
to the fact that she had been licensed since 1995 as a clinical psychologist specializing in
psychotic disorders and had been treating Father once or twice a month since June 7, 2016.
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Based on these and other facts, the trial court found that Mother failed to prove that Father
was incompetent to provide care and supervision for the Child.

The trial court also found that Mother failed to prove that Father abandoned the
Child. The court acknowledged that “[i]deally the Father would have been more aggressive
in asserting his rights,” but it found the way visitation occurred was immaterial given that
Father “had substantial visitation” for more than four years. The court found Father’s
failure to visit after December 2016 was not willful because Mother “unilaterally cut off”
Father’s contact with the Child. And while Father had not been paying his entire child
support obligation, the trial court found that Father reasonably believed he was entitled to
a credit for the SSDI payments.

Additionally, the trial court found that Mother failed to prove that termination of
Father’s rights was in the Child’s best interest. The court recognized that Father had mental
health issues, but it noted that Father was “being treated effectively by multiple mental
healthcare professionals and is compliant to both treatment and medication.” Accordingly,
the court found that Father had “made satisfactory arrangements and adjustments to
provide for the safety of the minor child, utilizing the support of his parents and family.”
The court also found that Father and the Child had a meaningful relationship, citing
evidence that Father and the Child “spend their time together reading books, playing ball,
working on homework and various other parent/child activities.”

Based on these and other findings, the trial court denied the petition to terminate
Father’s parental rights.3

III. MODIFICATION PROCEEDINGS

Following the dismissal of the termination proceeding, the trial court set a final
hearing on Father’s petition to modify the Child’s residential schedule for December 1,
2020. But on the day before the trial was to begin, Mother asked the court for a continuance
so that she could finish responding to Father’s discovery requests. The trial court granted
Mother’s motion and continued the trial to December 22, 2020.

Then, on December 18, 2020—four days before the scheduled trial—Mother
answered Father’s petition and filed a counter-petition to modify Father’s child support
obligation. Mother maintained that regular visitation with Father was not in the Child’s
best interest due to Father’s mental health issues, and she asked the trial court to modify
Father’s child support obligation retroactively to the date of Father’s petition in January

3
The trial court entered its final order on February 20, 2020. Three months later, Mother filed an
appeal, which this court dismissed as untimely pursuant to an order entered on April 8, 2020. See In re
River G., No. M2020-00747-COA-R3-PT (Tenn. Ct. App. Apr. 8, 2020).

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2017. Mother also asked for an award of unpaid support with pre- and postjudgment
interest.

Notwithstanding the late filings, the case proceeded to trial on December 22, 2020,
as scheduled, at which time the court heard testimony from six witnesses and entered
fifteen exhibits into evidence.4 At the conclusion of the hearing, the court took the matter
under advisement.

In its January 29, 2021 order, the court granted Father’s petition to modify the
residential schedule and Mother’s petition to modify child support. As for Father’s petition,
the court found that “Mother’s termination of visitation between the parties’ minor child
and the Father and his family constitute[d] a material change in circumstance warranting
modification” of the residential schedule. The court also found that modification of the
residential schedule was in the Child’s best interest. The court reasoned that Mother “made
every effort to thwart and discourage a close and continuing parent-child relationship
between the minor child and the Father,” and it observed that Mother was using the
modification proceedings “to effectively ‘take a second bite at the apple’ by denying
[Father] even standard parenting time.” Based on these and other findings, the court
adopted Father’s proposed parenting plan.

As for Mother’s counter-petition, the court found that Father owed $5,274 under the
Kentucky support order for the months of January 2014 to December 2016. The court then
modified Father’s support obligation to $116 per month, retroactive to January 2017, based
on an income of $1,692.80 per month for Father and $4,333.33 per month for Mother. The
court found that Father owed $2,454 under the new support for the months of January 2017
to January 2021.

Based on the above, the court awarded Mother a judgment against Father for $7,672
to be paid in $100 monthly installments until satisfied. But the court denied Mother’s
request for pre- and postjudgment interest, explaining that Mother’s “own
actions . . . caused a lengthy delay to the conclusion of the[] proceedings.”

This appeal followed.

ISSUES

(1) Whether the trial court lacked subject matter jurisdiction, in accordance
with the Uniform Child Custody Jurisdiction Enforcement Act
(“UCCJEA”), to modify the time-sharing arrangement determined by the

4
At the final hearing, the parties also announced their agreement that the trial court could
incorporate the relevant portion of its findings from the termination case into its findings in this proceeding.

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 Kentucky divorce court to be appropriate at the time of the parties’
divorce.

(2) Whether Father proved by a preponderance of the evidence that a material
change in the parties’ circumstances arose from Father’s attendance at the
Child’s December 15, 2016 Kentucky school function, such that
modification of the time-sharing arrangement set forth in the parties’
Kentucky divorce decree was warranted.

(3) Whether the court erred when it calculated child support in violation of
the child support guidelines by imputing income to Mother when there
was no evidence of income, the evidence showed she had two small
children, and the circuit court did not impute income to Father when he
testified that he quit three different jobs voluntarily.

(4) Whether the circuit court erred when it calculated child support arrears
for 2017, 2018, 2019, and 2020 and failed to provide for prejudgment
interest and postjudgment interest under the parties’ dissolution
agreement and Kentucky law.

(5) Whether Mother is entitled to an award of appellate attorney’s fees under
both Tennessee Code Annotated § 36-5-103(c) and the attorney’s fee
enforcement provision in the parties’ Kentucky divorce decree.

ANALYSIS

I. SUBJECT MATTER JURISDICTION

A. Jurisdiction to Modify the Residential Schedule

Mother contends that the trial court lacked subject matter jurisdiction to modify the
Child’s residential schedule because there was no evidence that Mother, Father, or the
Child resided in Tennessee during the six months before Father filed his petition in July
2017.

Whether a court has subject matter jurisdiction over a case is a question of law,
which we review de novo with no presumption of correctness. Word v. Metro Air Servs.,
Inc., 377 S.W.3d 671, 674 (Tenn. 2012).

Under Tennessee Code Annotated § 36-6-218, Tennessee courts may modify
another state’s custody decision if (1) Tennessee courts would have “jurisdiction to make
an initial custody determination” and (2) “the child [and] the child’s parents . . . do not

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presently reside in the other state.”5 Our courts have jurisdiction to make an initial custody
determination if Tennessee “is the home state of the child on the date of the commencement
of the proceeding.” Id. § 216(a)(1). The child’s “home state” is “the state in which a child
lived with a parent . . . for at least six (6) consecutive months immediately before the
commencement of a child custody proceeding.” Id. § 205(7).

Father filed his petition to modify the residential parenting schedule in July 2017.
In her November 2017 deposition, Mother testified that she and the Child moved to
Clarksville, Tennessee, in mid-2015 and still lived there. It is undisputed that Father moved
to Tennessee in 2012 and has lived here ever since. Thus, Tennessee courts had
“jurisdiction to make an initial determination” because Tennessee was the Child’s “home
state,” and neither the parties nor the Child lived in Kentucky at the time that Father filed
his petition.

Based on the above, we conclude that the trial court had subject matter jurisdiction
over Father’s petition to modify the parenting plan.

B. Jurisdiction to Modify Child Support

Although not raised by either party, we find it necessary to address one other issue
related to the modification of Father’s child support obligation: whether the trial court erred
by making Father’s new child support obligation effective as of January 2017.6

“Tennessee’s courts derive subject matter jurisdiction from the state constitution or
from legislative acts.” Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Tennessee
Code Annotated § 36-5-101 delimits the boundaries of a court’s authority to award and
modify child support. See Woodard v. Woodard, No. E2017-00200-COA-R3-CV, 2018
WL 3339754, at *2 (Tenn. Ct. App. July 9, 2018). In 1987, the Tennessee General

5
“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.” Stack v. Stack, No. M2014-
02439-COA-R3-CV, 2016 WL 4186839, at *5 (Tenn. Ct. App. Aug. 4, 2016) (citing Staats v. McKinnon,
206 S.W.3d 532, 548–49 (Tenn. Ct. App. 2006); Highfill v. Moody, No. W2009-01715-COA-R3-CV, 2010
WL 2075698, at *11 (Tenn. Ct. App. May 25, 2010)).
6
“This Court is required to consider the subject matter jurisdiction of both this Court and the trial
court regardless of whether the existence thereof is presented as an issue.” Morrow v. Bobbitt, 943 S.W.2d
384, 392 (Tenn. Ct. App. 1996) (citing Tenn. R. App. P. 13(b); Wunderlich v. Fortas, 776 S.W.2d 953, 957
(Tenn. App. 1989)). Additionally, Tennessee Rule of Appellate Procedure 13(b) provides, “The appellate
court . . . may in its discretion consider other issues in or, among other reasons: (1) to prevent needless
litigation, (2) to prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial
process.”

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Assembly amended § 36-5-101 to provide that child support judgments “shall not be
subject to modification as to any time period or any amounts due prior to the date that
an action for modification is filed and notice of the action has been mailed to the last
known address of the opposing parties.” Rutledge v. Barrett, 802 S.W.2d 604, 606 (Tenn.
1991) (emphasis added) (quoting Tenn. Code Ann. § 36-5-101(f)(1)(A)); see also Tenn.
Comp. R. & Regs. 1240-02-04-.05(8) (“No ordered child support is subject to modification
as to any time period or any amounts due prior to the date that an action for modification
is filed and notice of the action has been mailed to the last known address of the opposing
parties.”). Our courts have construed this statute as prohibiting the modification of amounts
due prior to the date that a cross-petition for modification was filed. See, e.g., Rutledge,
802 S.W.2d at 606 (holding that the trial court “could not reduce amounts that accrued
prior to the filing of the father’s 1988 cross-petition”).

Because Mother filed her petition to modify Father’s child support obligation on
December 18, 2020, the modification of Father’s existing child support obligation could
not take effect prior to that date.7 For this reason, the trial court erred when it made Father’s
new child support obligation effective in January 2017—the month that he filed his petition
to register the divorce decree. Accordingly, we modify the judgment of the trial court to
make Father’s child support obligation effective December 18, 2020.

Because we have modified the effective date for Father’s new child support
obligation, the trial court must recalculate Father’s arrearage on remand.

II. MODIFICATION OF RESIDENTIAL SCHEDULE

Mother contends that the trial court erred when it found that she “terminated”
Father’s visitation and that the “termination” constituted a material change in
circumstance.8

“Whether a material change in circumstances has occurred and whether a
modification of a parenting plan serves a child’s best interest are factual questions.”
Armbrister v. Armbrister, 414 S.W.3d 685, 692–93 (Tenn. 2013) (citing In re T.C.D., 261
S.W.3d 734, 742 (Tenn. Ct. App. 2007)). Thus, we presume that the trial court’s findings
are correct unless the evidence preponderates against them. Id.; see Tenn. R. App. P. 13(d).
For evidence to preponderate against a trial court’s finding, it must support another finding
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App.

7
It is significant to note that Father’s petition did not include a prayer for modification of child
support. Thus, Mother’s petition was the only petition seeking modification of child support.
8
Mother did not appeal the trial court’s finding that modification of the residential schedule was
in the Child’s best interest.

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2000); Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct.
App. 1999)).

When considering a petition to modify a residential schedule, a court must first
determine whether the petitioner proved “a material change of circumstance affecting the
child’s best interest.” Tenn. Code Ann. § 36-6-101(a)(2)(C); see Armbrister, 414 S.W.3d
at 697. Section 36-6-101(a)(2)(C) “provides the governing standard for determining
whether a material change in circumstances has occurred.” Armbrister, 414 S.W.3d at 704.
This standard is “a very low threshold” for petitioners to pass. Id. (quoting Boyer v.
Heimermann, 238 S.W.3d 249, 257 (Tenn. Ct. App. 2007)). Two factors are relevant: (1)
“whether a change has occurred after the entry of the order sought to be modified”; and (2)
“whether a change is one that affects the child’s well-being in a meaningful way.” Drucker
v. Daley, No. M2019-01264-COA-R3-JV, 2020 WL 6946621, at *7 (Tenn. Ct. App. Nov.
25, 2020) (citations omitted).

Among the changes identified in § 36-6-101 is “significant changes in the parent’s
living . . . condition that significantly affect parenting.” Tenn. Code Ann. § 36-6-
101(a)(2)(C) (emphasis added). Thus,

for purposes of modifying a residential parenting schedule, a petitioner can
establish that a material change of circumstances affects the child’s well-
being in a meaningful way through evidence of changes to the petitioner’s
circumstances . . . that will allow more parenting time and/or a better
parent-child relationship in the future.

Drucker, 2020 WL 6946621, at *9 (emphasis added). Additionally, “evidence that an
existing custody arrangement was proven unworkable in a significant way is sufficient to
satisfy the ‘material change in circumstances’ standard.” Boyer, 238 S.W.3d at 257
(citation omitted).

Mother contends that she never “terminated” Father’s visitation because Father
never asked her for visitation. This argument misses the forest for the trees. The separation
agreement gave Father visitation “as agreed upon by the parties to be supervised at all time
by [Grandparents].” Thus, Mother’s refusal to allow Grandparents to see the Child was a
de facto suspension of Father’s visitation. Along the same line, Mother argues that her
refusal to allow Grandparents to see the Child was not a material change because Father
had not been exercising his right to visitation. But the evidence shows otherwise. Although
Mother and Father may not have expressly “agreed upon” a visitation schedule, Father had
been visiting the Child for years under the supervision of Grandparents.

Moreover, while Mother may not have known the full extent of Father’s interactions
with the Child, she knew that Father was seeing the Child under the supervision of
Grandparents. Thus, Mother’s refusal to allow Grandparents to see the Child demonstrated
that the “existing arrangement” was unworkable. See Gentile v. Gentile, No. M2014-

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01356-COA-R3-CV, 2015 WL 8482047, at *5 (Tenn. Ct. App. Dec. 9, 2015) (citing Rose
v. Lashlee, No. M2005-00361-COA-R3-CV, 2006 WL 2390980, at *2 n.3 (Tenn. Ct. App.
Aug. 18, 2006)).

Even if Mother’s actions did not constitute a material change in circumstance, we
would affirm the trial court’s decision on other grounds. The record is replete with evidence
that Father made great strides in his mental health since the divorce.9 This alone constitutes
“a material change of circumstances [that] affects the child’s well-being in a meaningful
way” because it is “evidence of changes to the petitioner’s circumstances . . . that will
allow more parenting time and/or a better parent-child relationship in the future.” Drucker,
2020 WL 6946621, at *9 (citing Armbrister, 414 S.W.3d at 705).

For these reasons, we agree with the trial court’s finding that a material change in
circumstance occurred.

III. CHILD SUPPORT CALCULATION

Mother next contends that the trial court incorrectly calculated the parties’ gross
incomes because the court “imputed” income to Mother but not Father.

A. Father’s Gross Income

In its written order, the trial court found that “Father is currently making $1,692.80
per month.” Mother does not dispute this finding, but she contends that the trial court
should have found Father willfully underemployed and imputed additional income to him
because he “voluntarily” quit two jobs and worked only 20 hours a week.10

A court may impute additional income to reflect “the parent’s income potential or
earning capacity,” but only if the court first determines that a parent is “willfully
underemployed or unemployed.” Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(i),

9
Inexplicably, Mother contends in her appellate reply brief that “[t]here is no evidence Father has
rehabilitated himself from his schizoaffective disorder, auditory hallucinations/obsessive thoughts,
obsessive compulsive disorder or severe anxiety” and that “[t]he record is devoid of any evidence that
Father . . . has made any progress in addressing his schizo affective disorder and able to care for himself or
the minor child.” These claims are incredible given the trial court’s multiple findings that Father has made
great strides in his treatment—findings which are fully supported by the testimony of not one but three
expert witnesses who had treated Father for years.
10
Father argues that Mother has raised this issue for the first time on appeal. On the contrary,
Mother alleged that Father was willfully underemployed in her pretrial brief and at trial. See Childs v. Roane
Cnty. Bd. of Educ., 929 S.W.2d 364, 366 (Tenn. Ct. App. 1996) (“Trial of an issue by implied consent will
be found when a party opposed to the motion knew or should reasonably have known of the evidence
relating to the new issue, did not object to this evidence, and was not prejudiced thereby.” (citing Zack
Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888 (Tenn. 1980))).

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(i)(I), (ii)(II). “[T]he party alleging that a parent is willfully or voluntarily underemployed
or unemployed carries the burden of proof.” Cain-Swope v. Swope, 523 S.W.3d 79, 91
(Tenn. Ct. App. 2016) (citing Brewer v. Brewer, No. M2005-02844-COA-R3-CV, 2007
WL 3005346, at *8 (Tenn. Ct. App. Oct. 15, 2007); Richardson v. Spanos, 189 S.W.3d
720, 727 (Tenn. Ct. App. 2005)). “Determining whether a parent is willfully and
voluntarily underemployed or unemployed are questions of fact that require careful
considerations of all the attendant circumstances.” Id. (citing Richardson, 189 S.W.3d at
726). Courts “must consider a parent’s past and present employment, education, training,
ability to work, and any other relevant facts.” Id. (citing Tenn. Comp. R. & Regs. 1240-02-
04-.04(3)(a)(2)(iii)).

According to his testimony, Father had a sparse employment history: He worked in
technical support “a while back”; he was unemployed in 2018; he worked as a dishwasher
for a few days in 2019; and he worked as a delivery driver for a month in 2020. Father
explained that he was unemployed in 2018 because he was disabled and in school part-
time, and he quit his other jobs because they were “stressful” and he had “bad anxiety.”

Father also presented a summary of his SSDI benefits, showing annual earnings for
2006 through 2019. Since Father’s discharge from the military in 2012, the most Father
earned in a single year was $4,323.75 in 2013. From 2014 to 2019, Father’s total earnings
were just $2,328.96. These figures were corroborated in part by Father’s 2018 and 2019
tax returns.

According to his sworn income and expense statement, Father earned $572 per
month as of November 2020. Father testified that he worked part-time at a bookstore
earning $8.25 an hour. Father also testified that he wanted to work more, but he had asked
his employer to increase his hours gradually.

The trial court did not make a finding on whether Father was willfully unemployed
or underemployed, but the court’s ruling from the bench reveals that it would not have set
Father’s income any higher if it had. At the end of the final hearing on January 21, 2021,
the trial court explained that it was adopting the $1,692.80 figure because that number was
“higher” than what the court otherwise would have imputed to Father:

And as to child support, I find [Father] testified that he makes 8.25 an hour
and [works] 20-hour weeks. That comes out to $715 a month. I was going to
impute him double that, but based on his parenting plan, it says he makes
$1,692.80 a month. That’s higher than what I was going to impute him. So
that’s what I find that he makes.

Tennessee Rule of Appellate Procedure 36(b) provides that “[a] final judgment from
which relief is available and otherwise appropriate shall not be set aside unless, considering
the whole record, error involving a substantial right more probably than not affected the
judgment or would result in prejudice to the judicial process.” Based on the above, we find

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any error by the trial court was not prejudicial to Mother because the court ultimately set
Father’s income higher than it would have if Father had been willfully underemployed.11

B. Mother’s Gross Income

Mother argues that the court improperly “imputed” earnings to her by using her
income for 2017 and 2018 to calculate her gross income for 2021. We disagree.

“For the purpose of setting child support, a noncustodial parent’s net income is
generally established by introducing pay stubs, personal tax returns, or other credible
records evidencing income.” State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 249 (Tenn.
Ct. App. 2000) (citing Kirchner v. Pritchett, No. 01A01-9503-JV-00092, 1995 WL
714279, at *2 (Tenn. Ct. App. Dec. 6, 1995)); see Tenn. Comp. R. & Regs. 1240-2-4-
.04(3)(a)(2)(iv)(I). The parent seeking to modify a child support obligation has the burden
of proof. See Wine v. Wine, 245 S.W.3d 389, 394 (Tenn. Ct. App. 2007) (citing Turner v.
Turner, 919 S.W.2d 340, 345 (Tenn. Ct. App. 1995)).

Father elicited the only evidence of Mother’s income during cross-examination
when Mother confirmed that $52,843 and $52,230 “sound[ed] right” for what she earned
during 2017 and 2018. At the end of Mother’s proof, the trial court specifically asked
Mother’s counsel if she had any other evidence of Mother’s income:

THE COURT: Okay. Any other proof, Ms. Baker?

MS. BAKER: No.

THE COURT: You know, according to my recollection, I’m very
scant on proof as far as child support figures. All I got that I can base it on is
testimony on 2017 and ‘18 income for [Mother], and I know nothing about
other in-home children or payment of child support to somebody else that
might affect child support. . . . So that’s all the proof that the Court has to go
on.

11
Mother argues that the child support guidelines require courts to impute a median gross income
of $43,761 per year to parents who are willfully underemployed. This is incorrect. The guidelines direct
courts to use the median gross income when there is no reliable evidence of a parent’s income. See Tenn.
Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iv). But “a trial court may not impute the median gross income
when reliable evidence of a parent’s income or income potential has been presented.” In re Samuel P., No.
W2016-01665-COA-R3-JV, 2018 WL 1046784, at *13 (Tenn. Ct. App. Feb. 23, 2018) (citations omitted).

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In response, Mother’s counsel simply pointed out that Mother “testified [that] she has two
other children.”

Based on this evidence, the trial court found that Mother had a gross monthly
income of $4,333.33 per month. Thus, contrary to Mother’s argument, the trial court did
not “impute” income to Mother. Instead, it made a finding based on the only evidence
presented at trial.12 Accordingly, we find the court did not err in its calculation of Mother’s
gross income.

IV. PRE- AND POSTJUDGMENT INTEREST

Mother contends that the trial court erred by denying her request for awards of pre-
and postjudgment interest. She asserts that the trial court should have applied Kentucky
Revised Statutes § 360.040(2), which provides that “[a] judgment for unpaid child support
payments shall bear twelve percent (12%) interest compounded annually from the date the
judgment is entered.” Father does not dispute whether Mother was entitled to interest, but
he argues that Tennessee law applies to payments due under the new support order.

When enforcing a child support order, courts must apply the law of the “issuing
state” to compute arrearages and accrual of interest. Tenn. Code Ann. § 36-5-2604(a), (d).
Thus, Kentucky law applies to the accrual of interest on payments due under the Kentucky
order, and Tennessee law applies to the accrual of interest on payments due under the
Tennessee order.

A. Payments Due Under Kentucky Order

In Kentucky, child support obligees are “entitled to prejudgment interest as a matter
of law from the date that each payment was due.” Pursley v. Pursley, 144 S.W.3d 820,
828–29 (Ky. 2004). “Prejudgment interest is limited to the legal rate, found in KRS
360.010, of 8%.” Fields v. Fields, 58 S.W.3d 464, 467 (Ky. 2001) (citations omitted); see
Pursley, 144 S.W.3d at 828 (awarding 8% prejudgment interest on unpaid child support).
Accordingly, we find Mother was entitled to an award of prejudgment interest at the rate
of 8% on unpaid support due under the Kentucky order, running from the date that each
payment was due until the entry of the arrearage judgment in 2021.

12
On appeal, Mother cites to her pretrial witness and exhibit list as proof that she “presented
reliable evidence” of her income to the trial court. Mother’s pretrial filing, however, only identifies her tax
and income documents as potential exhibits. None of those documents were entered into evidence or
included in the record. Regardless, this court may consider only “those facts established by the evidence in
the trial court and set forth in the record and any additional facts that may be judicially noticed or are
considered pursuant to [Tennessee Rule of Appellate Procedure] 14.” Tenn. R. App. P. 13(c).

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 Additionally, under Kentucky Revised Statutes Annotated § 360.040(2), “[a]
judgment for unpaid child support payments shall bear twelve percent (12%) interest
compounded annually from the date the judgment is entered.” Ky. Rev. Stat. Ann. §
360.040 (emphasis added). This language is mandatory. See Doyle v. Doyle, 549 S.W.3d
450, 456 (Ky. 2018). Thus, Mother is also entitled to postjudgment interest at the rate of
12% on the arrearage, compounded annually and running from the entry of the judgment
in 2021.13

For these reasons, we reverse the trial court’s denial of Mother’s request for pre-
and postjudgment interest on payments due under the Kentucky support order. Because we
have modified the effective date of the Tennessee support order, Mother is entitled to pre-
and postjudgment interest on the payments due from January 2014 through December
2020.

B. Payments Due Under Tennessee Order

In Tennessee, prejudgment interest on unpaid child support is governed by
Tennessee Code Annotated § 36-5-101. See Reeder v. Reeder, 375 S.W.3d 268, 281 (Tenn.
Ct. App. 2012). Postjudgment interest is governed by Tennessee Code Annotated § 47-14-
122. See Tallent v. Cates, 45 S.W.3d 556, 563 (Tenn. Ct. App. 2000).14

Section 47-14-122 provides, “Interest shall be computed on every judgment from
the day on which the jury or the court, sitting without a jury, returned the verdict without
regard to a motion for a new trial.” Tenn. Code Ann. § 47-14-122. Because we have
modified the effective date of Father’s new support obligation to December 2020, this
statute applies only to the arrearage accrued in January 2021. Pursuant to § 47-14-122,
Mother was entitled to an award of postjudgment interest on this portion of the judgment.15

Tennessee Code Annotated § 36-5-101 provides that the award of pre-judgment
interest is within the discretion of the trial court for payments due after April 12, 2017:

13
The Supreme Court of Kentucky has interpreted Kentucky Revised Statutes Annotated § 360.040
as requiring “accrual of postjudgment interest from the date of the pre-appeal, erroneous judgment” when
the record is not required to be reopened on remand. Commonwealth, Just. & Pub. Safety Cabinet, Dep’t of
Kentucky State Police v. Gaither, 539 S.W.3d 667, 674 (Ky. 2018).
14
But see Sandusky v. Sandusky, No. M2000-00288-COA-R3-CV, 2001 WL 327898, at *8 (Tenn.
Ct. App. Apr. 5, 2001) (stating that Tennessee Code Annotated § 36-5-101 is the statute that “specifically
govern[s] postjudgment interest on a child support arrearage”).
15
The postjudgment interest rate is set by Tennessee Code Annotated § 47-14-121. In matters tried
without a jury, postjudgment interest begins to run from the date that the court makes its findings of fact
and conclusions of law. See Davis v. Davis, 924 S.W.2d 351, 353 (Tenn. 1996).

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 (B)(i) Interest on unpaid child support that is in arrears shall accrue from
the date of the arrearage at the rate of twelve percent (12%) per
year; provided, that interest shall no longer accrue on or after April
17, 2017, unless the court makes a written finding that interest
shall continue to accrue. In making such finding, the court shall
set the rate at which interest shall accrue after consideration of any
factors the court deems relevant; provided, that the interest rate
shall be no more than four percent (4%) per year.

(ii) On or after July 1, 2018, interest on arrearages in non-Title IV-D
cases shall accrue at the rate of six percent (6%) per year;
provided, however, that the court, in its discretion, may reduce the
rate of interest to a lower interest rate, including no interest, as
deemed appropriate under the circumstances. In making its
determination, the court may consider any factors the court deems
relevant.

Id. § 36-5-101(f)(1).16

Because the Tennessee order was not effective until December 2020, the trial court
had discretion over whether to award prejudgment interest on payments due thereafter. The
court declined to award interest because Mother’s “own actions . . . caused a lengthy delay
to the conclusion of the[] proceedings.” This decision was well within the trial court’s
discretion, and Mother has provided no reason for us to disagree.

For these reasons, we affirm the trial court’s denial of Mother’s request for an award
of prejudgment interest and reverse its denial of postjudgment interest on the arrearage
accrued under the Tennessee support order.17

16
Before 2017, Tennessee Code Annotated § 36-5-101 mandated the award of prejudgment interest
on unpaid child support. See Reeder, 375 S.W.3d at 281. The Tennessee General Assembly amended the
statute to its current version in 2017 and 2018. See Act of April 17, 2017, 2017 Tenn. Pub. Acts ch. 145,
§ 1; Act of May 21, 2018, 2018 Tenn. Pub. Acts, ch. 1049, § 2.
17
Because our holding will change the amount of Father’s arrearage, it may be necessary for the
trial court to reconsider its order for Father to pay the judgment in $100 installments. See Tallent, 45 S.W.3d
at 563 (finding installment plan was unreasonable when the “court[-]ordered payments . . . of $200
monthly, with postjudgment interest accruing at 10% annually, would not cover even the interest, let alone
pay down the judgment”).

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 V. APPELLATE ATTORNEY’S FEES

Mother contends that she is entitled to an award of her appellate attorney’s fees
under Tennessee Code Annotated § 36-5-103(c) and the fee-shifting provision in the
parties’ 2012 settlement agreement.

“[W]hen confronted with a request for fees under both contractual and statutory
authority, our courts should look to the parties’ contract first before moving on to any
discretionary analysis under statutes such as section 36-5-103(c) and section 27-1-122.”
Eberbach v. Eberbach, 535 S.W.3d 467, 478 (Tenn. 2017). Thus, we will first address
Mother’s request for an award of fees under the settlement agreement.

A. Settlement Agreement

Reviewing requests for fees under a contract involves a three-step process:

Courts . . . should first determine whether the parties have a valid and
enforceable [agreement] that governs the award of attorney’s fees for the
proceeding at bar. If so, our courts must look to the actual text of the
provision and determine whether the provision is mandatory and applicable.
If so, the [agreement] governs the award of fees, and our courts must enforce
the parties’ contract.

Id. at 478–79.

The parties’ separation agreement provided:

12. Post-Dissolution Attorneys’ Fees. In the event either party violates
or fails to abide by any provision of this Agreement, then the party in
violation shall pay to and reimburse the other party for all attorney’s fees,
court costs and expenses incurred by the party not in violation as a result in
having to enforce this Agreement and the final decree entered pursuant
hereto.

Contrary to Mother’s contentions, we find two reasons why she is not entitled to
recover attorney’s fees pursuant to the foregoing. For one, Father was not required to pay
child support under the separation agreement. Stated another way, the agreement contains
no child support provision to be enforced. Instead, Mother merely reserved the right to seek
support in the future:

5. Child Support. Since [Father] currently is unemployed and is
undergoing treatment at Vanderbilt, he shall have no child support obligation
to [Mother] for [the Child] at the present time. The parties acknowledge that
[Mother] may seek child support from [Father] at a later date in accordance
with KRS 403.210 and 403.211.

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 The other reason is that Mother did not bring an action to enforce the separation
agreement or the final decree. Instead, Mother brought an action to enforce and modify the
2013 Kentucky support order and to enforce the resulting Tennessee support order. Neither
order referenced the separation agreement nor provided for the allocation of attorney’s fees
and costs to the nonprevailing party.

For these reasons, we deny Mother’s request for an award of her appellate attorney’s
fees under the 2012 separation agreement.

B. Tennessee Code Annotated § 36-5-103(c)

Tennessee Code Annotated § 36-5-103(c) allows for the award of attorney’s fees to
the prevailing party in proceedings to enforce or modify a permanent parenting plan:

A prevailing party may recover reasonable attorney’s fees, which may be
fixed and allowed in the court’s discretion, from the nonprevailing party in
any . . . action or other proceeding to enforce, alter, change, or modify any
decree of . . . child support, or provision of a permanent parenting plan order,
or in any suit or action concerning the adjudication of the custody or change
of custody of any children, both upon the original divorce hearing and at any
subsequent hearing.

Tenn. Code Ann. § 36-5-103(c). When considering a request for appellate attorney’s fees
under § 36-5-103, we consider three nonexclusive factors: (1) “the ability of the requesting
party to pay his or her own attorney’s fees”; (2) “the requesting party’s success on appeal”;
and (3) “whether the requesting party has been acting in good faith.” Shofner v. Shofner,
181 S.W.3d 703, 719 (Tenn. Ct. App. 2004) (citing Parchman v. Parchman, No. W2003-
01204-COA-R3-CV, 2004 WL 2609198, at *6 (Tenn. Ct. App. Nov. 17, 2004)).

After considering all relevant factors, we respectfully deny Mother’s request for an
award of her appellate attorney’s fees under Tennessee Code Annotated § 36-5-103(c).

IN CONCLUSION

We modify the effective date of Father’s Tennessee child support obligation and
reverse in part and affirm in part the trial court’s denial of Mother’s request for pre- and
postjudgment interest. We affirm the trial court’s judgment in all other respects. This matter
is remanded for the trial court to recalculate Father’s arrearage and award pre- and
postjudgment interest consistent with this opinion. Costs of appeal assessed against
Elizabeth Ann Baker Grace.

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

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