Elizabeth LaFon Western Vinson v. James Gerald Vinson

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 16, 2013 Session

ELIZABETH LaFON WESTERN VINSON

v. JAMES GERALD VINSON

Direct Appeal from the Chancery Court for Henderson County

No. 25171 James F. Butler, Chancellor

No. W2012-01378-COA-R3-CV - Filed September 11, 2013

This is an appeal from a final decree of divorce. Father challenges numerous rulings by the

trial court, regarding both parenting issues and financial issues. We affirm in part, as

modified, we reverse in part, and we remand for further proceedings consistent with this

opinion.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

in Part, as Modified, Reversed in Part and Remanded

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,

J., and J. S TEVEN S TAFFORD, J., joined.

James Gerald Vinson, Enville, TN, pro se

(David W. Camp, Jackson, TN, filed a brief on behalf of Mr. Vinson but was allowed to

withdraw as counsel by order of the Court dated February 4, 2013.)

C. Timothy Crocker, Michael A. Carter, J. Noble Grant, III, Ryan L. Hall, Milan, Tennessee,

for the appellee, Elizabeth LaFon Western Vinson

OPINION

I. F ACTS & P ROCEDURAL H ISTORY

Elizabeth Vinson (“Mother”) and James Vinson (“Father”) were married in 1997. The

parties have two sons, who were born in 1998 and in 2001. Mother filed a complaint for

divorce in March of 2011, alleging adultery, among other things. Father filed an answer,

denying the allegations of adultery, and he filed a countercomplaint for divorce. Both parties

sought to be named primary residential parent of the two sons, who were then ages nine and

twelve.

Father is a paramedic, and Mother is a registered nurse. The parties had jointly filed

for Chapter 13 bankruptcy during the marriage. As a result, all of their debts – which

included two mortgages on the marital residence, credit card bills, medical bills, the notes on

their two vehicles, and Father’s student loans – had been combined into a single monthly

payment of approximately $2,240. Father and Mother had nearly equal amounts withdrawn

from their paychecks each month to meet the payment obligation required under the

bankruptcy plan. They were still under the bankruptcy plan when the divorce proceedings

were filed, and their bankruptcy obligation was scheduled to continue until November 2014.

The parties attended mediation in June 2011 and signed a “Mediated Agreement” that

resolved some of the issues involved with the divorce. They agreed that Mother would be

named primary residential parent, and they adopted a parenting schedule for the summer of

2011 whereby Father would have parenting time one day every week and one full weekend

per month. Each parent also had one week of parenting time designated for their summer

vacations. Father was ordered to pay $571 in child support per month “until further Orders

of the Court.” The parties agreed “to continue to equally divide the Chapter 13 bankruptcy

payment.” Finally, the parties agreed that Mother would use a $13,000 car wreck settlement

that she was scheduled to receive in order to pay “for medical bills and to repay her Father,”

and Mother was directed to provide an itemized accounting of those expenditures to Father’s

attorney. All other issues were reserved for trial.

The divorce trial took place in April 2012. The trial court adopted and ratified the

Mediated Agreement previously signed by the parties, resolved the remaining issues, and

entered a final decree of divorce in May 2012. Specifically, the trial court granted a divorce

to Mother on the grounds of adultery, divided the parties’ marital estate, required the parties

to continue to contribute equally toward the bankruptcy payment, named Mother primary

residential parent and adopted her proposed parenting plan, ordered Father to pay child

support, declined to award alimony, and ordered Father to pay $5,000 of Mother’s attorney’s

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fees. Father timely filed a notice of appeal.

II. I SSUES P RESENTED

On appeal, Father presents two issues for review, which we quote from his brief:

1. Did the trial court err when it found that the “mediated agreement”

signed by the parties on June 2, 2011 was valid and enforceable and

then ratified and confirmed the “mediated agreement” but contradicted

the terms of said agreement in it’s [sic] final ruling; and

2. Did the trial court erred [sic] when it awarded partial attorney fees in

the amount of $5,000.00 after making a finding that the court is unable

to approve [Mother’s] request for attorney fees.

Mother seeks an award of attorney’s fees on appeal. For the following reasons, we affirm

in part, as modified, we reverse in part, and we remand for further proceedings.

III. S TANDARD OF R EVIEW

On appeal, a trial court’s factual findings are presumed to be correct, and we will not

overturn those factual findings unless the evidence preponderates against them. Tenn. R.

App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence to

preponderate against a trial court’s finding of fact, it must support another finding of fact

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. 2000);

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

1999)). We review a trial court’s conclusions of law under a de novo standard upon the

record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854

S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788

S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

IV. D ISCUSSION

A. Consistency with the Mediated Agreement

We will begin by considering Father’s assertion that the trial court’s final ruling

“contradicted” the terms of the Mediated Agreement. Father argues that “[t]he Final Decree

of Divorce, Permanent Parenting Plan and Child Support Worksheet entered in this matter

does not properly reflect the terms of the ‘Mediated Agreement’ or the letter ruling of the

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Court.” He contends that there are “inconsistencies” in these documents with regard to

several specific rulings on various issues.

1. Provisions of the Parenting Plan

Father challenges several of the trial court’s rulings regarding specific details of the

parenting plan. At the outset, we note our agreement with Mother’s argument that the trial

court was not bound by the parties’ Mediated Agreement regarding these issues. “The trial

court should, of course, consider any agreement by the parties as to parenting issues,

including the residential parenting schedule. The trial court is not, however, bound by such

an agreement, but instead must evaluate whether the agreed arrangement is in the best

interest of the children.” Greer v. Greer, No. W2009-01587-COA-R3-CV, 2010 WL

3852321, at *7 (Tenn. Ct. App. Sept. 30, 2010) (citing Tuetken v. Tuetken, 320 S.W.3d 262

(Tenn. 2010); Coats v. Coats, No. M2007-01219-COA-R3-CV, 2008 WL 4560238, at *11

(Tenn. Ct. App. Oct. 8, 2008)). As we noted in Greer,

While an agreement on parenting issues would ideally reflect the parties’

considered judgment on the arrangement that would best fit the needs of their

children, it is also recognized that other factors can come into play in such an

agreement, such as the original dysfunction in the parties’ relationship,

inequality of resources, reluctance to involve the children in the litigation, or

even the parties’ desire to get the divorce “over with.” For that reason, the

trial court has broad discretion to determine an appropriate parenting plan in

light of the evidence adduced at a hearing and the best interest of the children,

even where the parties have reached an agreement on such issues.

Id. at *7. Simply put, “parents cannot bind the court with an agreement affecting the best

interest of their children,” so the trial court was not bound to approve the mediated parenting

plan. See Fletcher v. Fletcher, No. M2010-01777-COA-R3-CV, 2011 WL 4447903, at *9

(Tenn. Ct. App. W.S. Sept. 26, 2011) (citing Tuetken, 320 S.W.3d at 272).

In this case, however, the trial court considered the children’s best interest and

ultimately did adopt and approve the parties’ Mediated Agreement.1 In the final decree of

1

Prior to trial, the judge made clear that he recognized his responsibility to consider the parenting

issues and that he did not intend to simply rubber-stamp the Mediated Agreement:

The Court finds that the 6/2/11 Mediated Agreement as signed by all parties and counsel is

a valid agreement. The parts having to do with the children are always subject to the

approval of The Court. The Court cannot abandon its responsibility to make sure that we

(continued...)

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divorce, the trial court stated that it “ratified and affirmed” the Mediated Agreement. The

decree further provided that the trial court approved Mother’s proposed parenting plan, but

that Mother’s proposed parenting plan “shall comply with the Mediated Agreement unless

the parties agree otherwise by signing a different plan.” Therefore, we will consider Father’s

arguments regarding the alleged inconsistencies between the Mediated Agreement and the

parenting plan in order to determine whether they “comply,” as the trial court intended.2

a. Father’s Weeknight Parenting Time

The Mediated Agreement provided that Father would have parenting time with the

children “during Summer of 2011 from 6:00 p.m. on Friday until 6:00 p.m. on Sunday one

weekend a month when Father is off work and one day every week from 9:00 a.m. until the

following day at 9:00 a.m. In the event that Mother is working, Father shall keep the minor

children until 6:00 p.m.” The parenting plan that was ultimately adopted by the trial court

provided that Father would have parenting time “from Friday at 6:00 p.m. to Sunday at 6:00

p.m. one weekend per month . . . . In addition, father shall have parenting time with their

children one night each week.” Father’s brief on appeal presents the following argument

challenging the trial court’s decision with regard to weeknight parenting time, which we

quote in full:

In the Permanent Parenting Plan attached to the Final Decree of Divorce the

mother did not include specific times within the day to day schedule but only

states “Father shall have parenting time with the children one night each

week.” In the testimony at trial Mother acknowledged her Proposed Parenting

Plan which was approved by the Trial Court differed from the Mediated

Agreement in this respect.

Thus, we interpret the basis of Father’s argument to be that the trial court should have

included specific time parameters for his weeknight parenting time in order to be consistent

with the Mediated Agreement.

We recognize that the trial court ordered the permanent parenting plan to “comply”

with the Mediated Agreement, but we find no conflict between the two as it relates to this

1

(...continued)

have an adequate Parenting Plan. So, The Court will, of course, review that, and the parties

are free to put on additional proof about that if this – if they disagree with what they've

agreed to here.

2

Both the Mediated Agreement and the final decree provided that Mother would be named primary

residential parent, and Father does not challenge this ruling on appeal.

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issue. Because the Mediated Agreement only addressed the summer of 2011, the trial court’s

permanent parenting plan, which obviously involves a different time period, does not

contradict the terms of the Mediated Agreement. In fact, it was impossible for the trial court

to continue the 9 a.m. to 9 a.m. hourly schedule for weekday visitation once the children

started school, so the court was necessarily required to adopt a different schedule than that

followed during the summer of 2011. In fashioning an appropriate, year-round parenting

schedule for the children, beyond the summer of 2011, the trial court was not limited to the

terms agreed upon by the parties in the past.

Considering the parties’ circumstances, we find no abuse of the trial courts’ discretion

in deciding not to specify a particular weeknight, or particular hours, for Father’s weekly

parenting time. At trial, Father testified that his work schedule as a paramedic consists of 24-

hour shifts, and he works 24 hours “on” and 48 hours “off.” Basically, he explained that he

works every third day. Father testified that his work schedule is developed by his supervisor

two months ahead of time, and that he has no input into formulating the schedule. Mother

testified that Father also has one weekend off per month, but that the particular weekend

“rotates,” so “it’s very unpredictable.” The proposed parenting plan submitted by Father

contained absolutely no specificity, as it simply stated, “Father is working a schedule of one

day every three days. The Father shall have the children on his days off.” At trial, Mother

testified that the parties could cooperate to make decisions regarding the children, despite the

animosity between them. Thus, we find no abuse of the trial court’s discretion with regard

to the lack of specificity in the parenting schedule.

Although not specifically mentioned in his brief, we note that during oral argument

before this Court, Father appeared pro se and argued that he should have been awarded more

parenting time with the children. He contended that one day per week was “not acceptable”

for a parent. Father noted that his oldest son, who was 13 years old, met with the trial judge

in chambers during the divorce proceedings and expressed his desire to have more parenting

time with Father. We note the stated preference of the child, but the trial judge certainly

heard and considered the child’s statements, and all of the other evidence in this case, before

it designed this particular parenting schedule. Father’s irregular work schedule makes it

difficult to fashion a workable arrangement. He acknowledged the difficulties it can present

during the divorce trial when he conceded that he only attended one of his son’s basketball

games during 2011 due to work obligations. Father had not been to a single parent-teacher

conference and did not know the name of either of his sons’ teachers. Requiring the children

to schedule their lives around Father’s unpredictable work schedule would be a heavy

burden. Courts must be mindful of the practical effect of a complex parenting schedule and

its impact on the children’s daily lives:

A parenting schedule that requires the child to shuttle frequently between

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households, whether implemented to accommodate parental work schedules

or in order to neatly divide the child's time between the parents, is most

onerous for the child who bears the brunt of the parents’ divorce. The child

must be ever mindful to have with her necessary school books, supplies,

clothing, or even toys or sports equipment, and must be vigilant to be ready to

gather her belongings at the appointed time for transportation to the other

parent’s house. Even mundane things such as making a play date with a friend

or scheduling an after-school activity require the child to ascertain in which

parent’s home she will be or who is picking her up and when. All children

must tolerate some of these considerations, and a child of divorced parents

must necessarily have a more complicated schedule than children from intact

homes, if the child is to have a meaningful relationship with both parents. But

a schedule that mandates such frequent back-and-forth, whether to

accommodate a parent’s work schedule or not, gives the child little opportunity

to have a sense of belonging, and time to simply be home becomes a luxury.

Thus, while virtually all divorced parents must work outside the home,

and some parents must work atypical hours, it is not punishment to the parent

to consider the effect of her work schedule on the child. Rather, it is the

court’s job to ensure that the everyday quality of the child’s life is not

sacrificed to meet the parents’ needs or desires. Consideration of how

“child-friendly” each parent’s schedule must necessarily be part of that

determination. “[T]he child’s best interest [is] the paramount consideration.

It is the polestar, the alpha and omega.” Bah v. Bah, 668 S.W.2d 663, 665

(Tenn. Ct. App. 1983) (emphasis in original).

Wall v. Wall, No. W2010-01069-COA-R3-CV, 2011 WL 2732269, at *27-28 (Tenn. Ct.

App. July 14, 2011). Considering the parties’ circumstances and the difficulty of formulating

a stable schedule, we find no abuse of the trial court’s discretion in deciding that Father

would have parenting time one weekend per month and one night per week.3

b. Summer Vacation

Father acknowledges that “the Mediated Agreement does not specify summer

schedule beyond the year of 2011.” Consequently, there is no inconsistency between the

3

We also note that when Father appeared pro se at oral argument, he discussed various ways in

which Mother had allegedly failed to comply with the final decree of divorce since it was entered. As an

appellate court, we are not in a position to consider those assertions, so we have not discussed them in this

opinion. Father’s recourse for such issues must be pursued in the trial court.

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Mediated Agreement and the parenting plan with respect to a summer schedule. However,

Father argues that the trial court erred in simply providing that each parent would have

parenting time for one full week during June and during July. He claims that “[a] more

specific schedule should have been provided” and “would have been more consistent with

the parties[’] intent.” Again, considering Father’s work schedule, and the fact that the trial

court required the parties to provide notice of the selected summer dates by May 1 of each

year, we find no abuse of discretion in the trial court’s decision.

c. Thanksgiving Break Schedule

The Mediated Agreement did not address Thanksgiving break, and therefore, the

permanent parenting plan does not conflict with the Mediated Agreement with respect to this

issue. Nevertheless, Father points out an internal conflict in the permanent parenting plan’s

provision regarding the Thanksgiving schedule. The parenting plan provides:

Thanksgiving Day and Friday: Mother shall have their children for Period one

from the time school is out until 3:00 p.m. on Thanksgiving Day in even years.

Father shall have their children for Period two from 3:00 p.m. Thanksgiving

Day until the regular exchange time on Friday. The parties shall alternate

Period one and Period two with the Mother having Period one in odd years and

the Father having Period one in even years.

(Emphasis added). There is a clear conflict between these two parts of the same provision.

Father argues on appeal that this error effectively gives Mother Period one every year.

Because the trial court unequivocally stated that the parties shall alternate periods, and the

even/odd conflict appears to be an unintended typographical error, we hold that the parties

must alternate periods during Thanksgiving break from year to year. The final decree of

divorce was entered in May 2012, so only one Thanksgiving has passed since the decree was

entered. The parent who had the children during Period one in 2012 shall have them during

Period two in 2013, and the parties shall continue to alternate thereafter.

d. Christmas Break Schedule

There is no conflict between the Mediated Agreement and the parenting plan with

regard to the Christmas break schedule, as the Mediated Agreement only addressed the

summer of 2011. However, Father argues that the parenting plan’s schedule for Christmas

break is, basically, unfair, because it divides the Christmas break into two periods and

provides that Mother will have Period one every year, rather than alternating. As a result,

Father will have the children every year from Christmas Day at 2 p.m. until the evening

before school resumes, but he will never have them on Christmas Eve or Christmas morning.

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Father contends that the parties should alternate periods.

Essentially the same similar argument was made in Smith v. Smith, No. M2006-

01390-COA-R3-CV, 2010 WL 288758, at *9 (Tenn. Ct. App. Jan. 25, 2010), where the trial

court entered a parenting plan that divided the Christmas break into two periods, and the

mother was to have the children for the first period every year. On appeal, the father argued

that “it is not in the best interests of the children that they never be allowed to spend

Christmas morning with their father.” Id. at *9. The Court of Appeals declined to modify

the trial court’s decision, stating, “the kind of modification Father would have this court

make amounts to the ‘tweaking’ we are not allowed to do.” Id. (citing Eldridge v. Eldridge,

42 S.W.3d 82, 88 (Tenn. 2001)). To clarify, in the Eldridge case referenced by the Court,

the Tennessee Supreme Court provided the following explanation regarding the role of an

appellate court in these matters:

It is not the function of appellate courts to tweak a visitation order in the hopes

of achieving a more reasonable result than the trial court. Appellate courts

correct errors. When no error in the trial court’s ruling is evident from the

record, the trial court’s ruling must stand. This maxim has special significance

in cases reviewed under the abuse of discretion standard. The abuse of

discretion standard recognizes that the trial court is in a better position than the

appellate court to make certain judgments. The abuse of discretion standard

does not require a trial court to render an ideal order, even in matters involving

visitation, to withstand reversal. Reversal should not result simply because the

appellate court found a “better” resolution. See State v. Franklin, 714 S.W.2d

252, 258 (Tenn. 1986) (“appellate court should not redetermine in retrospect

and on a cold record how the case could have been better tried”); cf. State v.

Pappas, 754 S.W.2d 620, 625 (Tenn. Crim. App. 1987) (affirming trial court’s

ruling under abuse of discretion standard while noting that action contrary to

action taken by the trial court was the better practice); Bradford v. Bradford,

51 Tenn. App. 101, 364 S.W.2d 509, 512-13 (1962) (same). An abuse of

discretion can be found only when the trial court’s ruling falls outside the

spectrum of rulings that might reasonably result from an application of the

correct legal standards to the evidence found in the record. See, e.g., State ex.

rel Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).

Eldridge, 42 S.W.3d at 88. Keeping these principles in mind, we cannot say that the trial

court abused its discretion in fashioning the parenting schedule for Christmas break. During

the divorce trial, Mother was asked why she thought it was appropriate for her to have the

children every year during the first period of Christmas break, and Mother replied, “He

normally does not ask for them during that time. They don’t have a get-together on

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Christmas.” Father did not dispute this contention during his testimony. Having heard the

evidence, the trial court formulated a plan that it determined was in the children’s best

interest. It is not our role to “tweak” the parenting plan to attempt to achieve a more

reasonable result.

e. Paramour provision

Again, the Mediated Agreement does not mention anything relevant to paramours, so

it is not inconsistent with the permanent parenting plan. Nevertheless, in the section of

Father’s brief regarding the issue of whether the documents are consistent, Father argues that

the trial court erred in adopting a parenting plan that contains a provision precluding him

from having a paramour spend the night in the presence of the children. Father was living

with his parents at the time of the divorce trial, but he points out that Mother testified that she

anticipated that he would move in with his girlfriend. Despite this recognition, Mother’s

proposed parenting plan prohibited the parties from having a paramour spend the night in the

presence of the children. Father did not raise the issue during trial. In fact, the parenting

plan proposed by Father contained the same prohibition. It stated, “Any paramour of either

parent to whom a parent is not legally married is not to spend the night in the presence of or

in the same residence with the minor child of the parties.” Therefore, Father is not entitled

to relief with regard to this issue. See Dye v. Witco Corp., 216 S.W.3d 317, 321 (Tenn.

2007) (quoting Black v. Blount, 938 S.W.2d 394, 403 (Tenn. 1996)) (“issues raised for the

first time on appeal are waived”).

f. Child Support

Next, Father challenges the trial court’s decision to require him to pay $694 per month

in child support. Father argues that this ruling conflicts with the Mediated Agreement, which

provided that he would pay $571 per month “until further Orders of the Court.”

In Tennessee, parents are legally obligated to support their minor children in a manner

commensurate with their own means and station in life. Richardson v. Spanos, 189 S.W.3d

720, 724 (Tenn. Ct. App. 2005) (citing Tenn. Code Ann. § 34-1-102(a); Wade v. Wade, 115

S.W.3d 917, 920 (Tenn. Ct. App. 2002)). Since 1984, “the process and criteria for

ascertaining a parent’s child support obligation has been governed by Child Support

Guidelines promulgated by the Tennessee Department of Human Services” in accordance

with Tennessee Code Annotated section 36-5-101. Id. at 724-25. The Child Support

Guidelines, when properly applied, create a rebuttable presumption of the proper award of

child support. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005); see also Tenn. Code

Ann. § 36-5-101(e)(1)(A). “Although the trial courts retain an element of discretion to

deviate from the presumptive amounts, such discretionary decisions must take into

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consideration the applicable law and the relevant facts.” Reeder v. Reeder, 375 S.W.3d 268,

275 (Tenn. Ct. App. 2012) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)).

When a trial court decides it is appropriate to deviate from the presumptive amount of child

support, it must “make a written finding that the application of the child support guidelines

would be unjust or inappropriate in that particular case, in order to provide for the best

interest of the child or children, or the equity between the parties.” Tenn. Code Ann. §

36-5-101(e)(1)(A). In addition, the court’s findings must state the amount of support that

would have been ordered under the child support guidelines and a justification for the

variance from the guidelines. Id.

Parties may agree to a child support obligation that “exceeds the amount payable

directly to an obligee parent under the Guidelines and to a method of calculating child

support that differs from the mechanism contemplated by the Guidelines as long as the

resulting child support meets or exceeds the amount mandated under the Guidelines.” Kesser

v. Kesser, 201 S.W.3d 636, 642 (Tenn. 2006). Therefore, trial courts must find that the

parties’ agreement meets the minimum child support obligation provided under the

Guidelines. Id. The court must use the Child Support Guidelines to review the adequacy of

the agreed-upon child support provision. Brown v. Brown, No. E2011-00421-COA-R3-CV,

2012 WL 1267872, at *10 (Tenn. Ct. App. Apr. 13, 2012) (citing Berryhill v. Rhodes, 21

S.W.3d 188, 191 n.7 (Tenn. 2000)).

In this case, there is nothing in the record to explain how the parties reached the figure

of $571 when they agreed that Father would pay that amount of child support in the Mediated

Agreement. Therefore, we cannot discern whether that amount was the presumptive amount

owed by Father based upon the parties’ incomes. The mediation took place in June 2011.

The divorce decree entered in May 2012 increased Father’s child support obligation to $694.

At first blush, one would presume that the trial court decided that $571 was insufficient to

meet Father’s minimum child support obligation according to the Guidelines. We would not

have questioned the trial court’s decision if it had simply calculated Father’s child support

obligation based on the parties’ incomes and information at or near the time of trial in 2012,

and increased his obligation accordingly. However, that is not what happened. The trial

court set Father’s child support obligation by using Mother’s gross income according to her

2011 W-2 forms, and Father’s gross income according to his 2010 W-2 forms, with no

explanation for the discrepancy.4

We recognize that Father’s income had decreased between 2010 and the time of trial.

In 2010, when the parties were still married, Father worked full-time for the ambulance

service in Hardin County, and part-time for the ambulance service in Decatur County. He

4

The trial court’s child support calculation listed a 2011 gross income for Mother of $67,099.

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also earned a relatively small amount of income through a part-time teaching job with the

Memphis Med. According to Father’s 2010 W-2 forms,5 the income attributable to Father’s

full-time job at Hardin County was $39,134, and Father’s total gross income that year, from

all three jobs, was around $57,522. On January 1, 2011, while the parties were separated,

Father voluntarily left his full-time position in Hardin County to work full-time for the

ambulance service in Decatur County. Father’s paramour also worked for the ambulance

service in Decatur County, but he testified that he changed jobs because his previous

supervisor did not approve of his part-time teaching job with the Med. We note that in

Father’s counter-complaint for divorce, he asserted that he changed jobs in order to spend

more time with the children. At trial, Mother testified that Father had told her that he was

not going to work so much because he did not intend to pay her a large amount of child

support. In any event, Father testified that he started out making the same amount of money

at Decatur County that he made at Hardin County. Mother filed for divorce shortly after

Father’s job change, in March 2011.

In 2011, Father’s wages from the Decatur County job were $44,129, according to his

W-2 forms. This was more than he earned from Hardin County in 2010 ($39,134) but less

than his three-job total from 2010 ($57,522). At trial, Father testified that when he initially

went to work for the ambulance service in Decatur County, he was employed by the local

hospital and making the same amount of money that he made at Hardin County, but on

October 1, 2011, the county took over the ambulance service and cut employees’ wages from

$16 per hour to $13 per hour. Accordingly, he testified that his 2012 income from Decatur

County would be even less than the $44,129 reflected on his 2011 W-2. Father testified that

the $3 per hour pay cut had significantly reduced his income and his ability to pay his bills.

Father also testified that he no longer held the part-time teaching position because the Med

had hired someone to fill the position full-time. Father acknowledged at trial that he was not

working as many hours as he had in 2010, but, he pointed out, he was still working a full-

time job.6 Father also claimed that if he worked additional hours it would impose on his

5

During the divorce trial, there was some inconsistency among the parties and their attorneys with

regard to whether they utilized the parties’ income information as listed in Box 1 of the parties’ W-2 forms

or the amounts listed in Box 3 or Box 5. There was no explanation for the discrepancy. For purposes of

comparison in this opinion, we have used the amounts listed in Box 5, as the trial court did. However,

nothing contained herein should be read as precluding the use of different figures if the trial court determines

on remand that a different amount accurately reflects the parties’ gross incomes for purposes of calculating

child support. See, e.g., Robert Vance, “The W-2 as Roadmap for Tennessee Child Support Guideline

Income,” Family Practice, The Newsletter for the Family Law Section of the Tennessee Bar Association

(August 2002) (discussing the various boxes and which should be used in different circumstances).

6

It is not clear from the record whether Father had regularly worked multiple jobs in the past, or

if he did so only during 2010. He testified that he began working at Decatur County EMS part-time in July

(continued...)

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opportunities to see his children. He denied telling Mother that he was not going to work as

much so that he would pay less child support.

On appeal, Mother argues that the trial court was correct to utilize Father’s 2010

income figures because they accurately reflected his true earning capacity. However, the trial

court did not make any finding that Father was voluntarily underemployed. In fact, the only

finding by the trial court relevant to this issue was in its letter ruling, where the court said,

“After Husband left the Hardin County EMS job and went to Decatur County Hospital where

his girlfriend works, he suffered a $3.00 per hour pay cut which was unexpected.” (Emphasis

added). Despite this finding, the trial court used Father’s 2010 income total from all three

jobs – $57,522 – in order to calculate his child support obligation. Father’s 2011 income was

only $44,129, and he testified that he was making even less at the time of trial in 2012.

Father produced his paycheck stubs from the past several months, which indicated that he

was working, during each two-week pay period, at least 80 hours of work at $13 per hour,

in addition to several hours of overtime each week. His net pay for a two-week period was

roughly $1,000. Father testified that his average “bring home” pay in a month was $2,000.

Despite this evidence, the trial court’s child support worksheet lists his monthly gross income

as $4,793.53 (based on his 2010 income figures), and it orders Father to pay $694 per month

in child support.

Obviously, the trial court was not bound to enforce the parties’ Mediated Agreement

with regard to child support if the court determined that $571 was not sufficient to meet

Father’s minimum child support obligation owed according to the child support guidelines.

And, in calculating the amount owed by Father, the trial court could impute additional

income to Father if it determined that he was voluntarily underemployed. The Guidelines

specifically provide that “[i]mputing additional gross income to a parent is appropriate in the

following situations: (I) If a parent has been determined by a tribunal to be willfully and/or

voluntarily underemployed or unemployed[.]” Tenn. Comp. R. & Regs. 1240-02-04-

.04(3)(a)(2)(i). Thus, in order “to trigger this portion of the child support guidelines and ‘[t]o

calculate a child support award based on earning capacity rather than actual net income, there

must be a threshold finding that the obligor parent is willfully and voluntarily

underemployed or unemployed.’” Goodman v. Goodman, No. W2011-01971-COA-R3-CV,

2012 WL 1605164, at *4 (Tenn. Ct. App. May 7, 2012) (quoting Marcus v. Marcus, No.

02A01-9611-CV-00286, 1998 WL 29645, at *3 (Tenn. Ct. App. Jan. 28, 1998) (emphasis

in Goodman); see also Kendle v. Kendle, No. M2010-00757-COA-R3CV, 2011 WL

1642503, at *3 (Tenn. Ct. App. Apr. 28, 2011) (citing Tenn. Comp. R. & Regs.

6

(...continued)

of 2010, so it appears that he did not work at these particular jobs in previous years. The only other

testimony about Father’s past employment was that he had been a paramedic for 12 years.

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1240–2–4–.04(3)(a)(2)(i)(I)). The purpose of determining whether a parent is willfully or

voluntarily underemployed 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.” Tenn.

Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii). The Guidelines provide that “[o]nce a

parent [] has been found to be willfully and/or voluntarily under or unemployed, additional

income can be allocated to that parent to increase the parent's gross income to an amount

which reflects the parent's income potential or earning capacity, and the increased amount

shall be used for child support calculation purposes.” Tenn. Comp. R. & Regs. 1240-02-04-

.04(3)(a)(2)(ii)(II). Here, however, the trial court did not make a finding that Father was

willfully and/or voluntarily underemployed. The only relevant factual finding by the trial

court was that Father’s $3 per hour pay cut was “unexpected.” 7 “The Guidelines do not

presume that any parent is willfully and/or voluntarily under or unemployed.” Tenn. Comp.

R. & Regs. 1240-02-04-.04(3)(a)(2)(ii). We have reversed child support awards in previous

cases when trial courts have imputed income to a parent but failed to make a finding of

voluntary underemployment. See, e.g. Via v. Via, No. M2006-02002-COA-R3-CV, 2007

WL 2198187, at *6 (Tenn. Ct. App. July 23, 2007) (“The trial court abused its discretion in

imputing income to Wife based upon no finding of willful and/or voluntary unemployment

or underemployment.”); Kelley v. Kelley, No. M2004-01202-COA-R3-CV, 2005 WL

2240964, at *4 (Tenn. Ct. App. W.S. Sept. 15, 2005) (“In the absence of a written finding

that Mr. Kelley was willfully underemployed, or that a deviation from the [Guidelines] was

otherwise warranted, under T.C.A. § 36-5-101(e)(1)(A), the trial court is obligated to base

the child support award upon Mr. Kelley's actual income at the time of the hearing.”) In

Goodman, 2012 WL 1605164, at *6, this Court decided that when a trial court calculates

child support based upon an alleged earning capacity, but fails to make a specific finding of

voluntary underemployment, the appropriate course is to “reverse the judgment of the trial

court basing Father's child support obligation on his alleged earning capacity and remand for

a determination of Father's child support obligation based on his actual income.” Therefore,

we reverse the trial court’s decision setting child support at $694 and remand for further

proceedings to include an appropriate calculation of child support based upon Father’s actual

income. Father shall continue to pay $694 per month pending remand.

g. The Children’s Counselor

7

We note that in the section of the trial court’s letter ruling entitled “Alimony,” the court discussed

Father’s ability to pay alimony. In that context, the court made the remark that “Husband has regularly

worked a second job in the past, and has the time and ability to do so,” but the court nevertheless concluded

that Father was not financially able to pay alimony. This isolated remark, made for the purposes of the

alimony analysis, is not sufficient to support the trial court’s deviation from the Child Support Guidelines

in this case.

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The parenting plan contained a provision that stated, “Parenting time of each parent

shall be subject to modification based upon the recommendations of the counselor for the

children, Rodney Williams.” Father argues that this was an impermissible delegation of the

trial court’s authority to determine what is in the children’s best interest. He points out that

the counselor was no longer seeing the children by the time of the divorce trial and that the

counselor did not testify during the proceedings.

The children saw the counselor for a short time period after a physical altercation

between Father and the oldest son. Father testified that the oldest son was cursing at him in

the back seat of the truck, and that Father attempted to “grab” onto him, and when he did, he

ripped the child’s jacket. The children and Father had supervised visits for about a month

thereafter. At trial, Mother acknowledged that the counseling and supervised visitation had

ended and that “things are better.” On appeal, she contends that Father’s argument

challenging this provision of the parenting plan is “moot” because the children no longer

receive counseling services from Mr. Williams.

“[T]he trial judge, and the trial judge alone, has the solemn duty to determine whether

a given parenting arrangement is in the best interest of a child in his charge,” and this duty

cannot be delegated to a chosen arbitrator, or to the parties’ lawyers. Fletcher, 2011 WL

4447903, at *8-10. We find no basis to justify the provision at issue and hereby modify the

parenting plan to delete the provision in its entirety.

2. Financial Matters

a. The Bankruptcy Payment

Having considered all of the rulings regarding parenting issues that Father alleged

were inconsistent with the Mediated Agreement, we now turn to financial issues. The

Mediated Agreement provided that the parties would “continue to equally divide the Chapter

13 bankruptcy payment.” The divorce decree likewise required the parties to continue to

equally share the bankruptcy payment. Therefore, there is no inconsistency between the two.

The effect of the trial court’s ruling was that both Father and Mother would continue

to pay roughly $1100 per month for approximately two years, until the bankruptcy plan ends

in November 2014. At the time of the divorce trial, Mother and the children were residing

in the marital residence, which was located next door to Mother’s parents’ home, and

Mother’s parents helped her with child care. The trial court’s letter ruling provided, with

regard to the bankruptcy payment:

The Chapter 13 plan includes not only the two mortgages, but Wife's vehicle,

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some medical bills, Husband's school loans, and marital credit card debt.

Husband's vehicle has been paid through the bankruptcy and now released. It

is equitable that Husband continue to pay one half of the bankruptcy payment

as part of the equitable allocation of marital debt in the nature of support for

the Wife. This allocation also allows Wife more of her income for her and the

children's support.8

Additionally, the final decree stated:

The Chapter 13 plan includes the two mortgages and the parties shall continue

to pay one-half of the Chapter 13 payment, or Defendant may pay an

equivalent amount of money to Plaintiff. It is the Court's intention that

Defendant's obligation shall be a non-dischargeable debt in bankruptcy. In the

event Husband is successful in discharging this obligation in bankruptcy, in

spite of this Court's intentions, the Court reserves the jurisdiction to set or

modify alimony.

At trial, Father testified that it was his desire to convert to a Chapter 7 bankruptcy plan. On

appeal, he claims that he cannot afford to continue to pay $1104 per month for the

bankruptcy payment, and he argues that the trial court’s ruling impermissibly “required” him

to continue in the Chapter 13 plan. We disagree. During the divorce trial, Father’s attorney

specifically asked the trial judge if he was finding or ruling that Father could not convert to

a Chapter 7 bankruptcy proceeding, to which the judge responded, “No. I didn't -- I didn't

find that. I don't think I've got that power.” The final decree of divorce required Father to

pay “one-half of the Chapter 13 payment, or Defendant may pay an equivalent amount of

money to Plaintiff.” (Emphasis added). Consequently, we find no merit in Father’s assertion

that the trial court basically “instructed” him not to convert to a Chapter 7 bankruptcy filing.

Father also argues that the trial court erred in reserving jurisdiction to set alimony in

the event that Father obtained a discharge of the $1104 per month obligation ordered by the

trial court. “Although it is not often done, the trial court may, in its discretion, declare the

parties divorced and reserve the issue of alimony to be decided at a later time.” Walton v.

Walton, No. W2004-02474-COA-R3-CV, 2005 WL 1922565, at *6 n.2 (Tenn. Ct. App. Aug.

10, 2005) (citing Robinette v. Robinette, 726 S.W.2d 524, 525 (Tenn. Ct. App. 1986)).9 “It

8

The order provided that Mother would assume the two mortgage loans after the bankruptcy

payments end in 2014.

9

The Robinette Court recognized that the general rule followed in Tennessee is that “where a decree

(continued...)

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has been recognized, however, that reserving the issue of alimony should be done ‘sparingly’

and only ‘in unique factual situations.’” Id. (quoting Perry v. Perry, No. W2001-01350-

COA-R3-CV, 2002 WL 1751407, at *6 (Tenn. Ct. App. Mar. 21, 2002) (Farmer, J.,

concurring in part and dissenting in part)); see also Isbell v. Isbell, No. 02A01-9708-CH-

00188, 1999 WL 455429, at *5 (Tenn. Ct. App. July 2, 1999) (“Reserving the issue of

alimony in the final judgment is a remedy that is sparingly used in cases involving unique

circumstances.”). In Walton, 2005 WL 1922565, at *2, for example, the trial court reserved

jurisdiction to evaluate and review an award of alimony after 18 months while the wife

sought disability benefits. In Robinette, 726 S.W.2d at 525, the court reserved judgment on

the issue of alimony in light of the wife’s health condition, which was likely to deteriorate.

In Lawson v. Lawson, No. 03A01-9709-CH-00406, 1998 WL 251757, at *3 (Tenn. Ct. App.

E.S. May 20, 1998), the Court held that the issue of alimony should be reserved for a future

determination in the event that the wife’s employment with the husband’s family’s business

was terminated without cause after the divorce.

In Isbell, 1999 WL 455429, at *5, we found that although the wife had “reason to be

concerned” about the possibility of being laid off from her job, her circumstances were “not

as compelling as those in Lawson, and that the trial court did not abuse its discretion in

declining to award alimony or in failing to reserve the issue of alimony in the final

judgment.” We emphasized that reserving the issue of alimony in the final judgment is “a

remedy that is sparingly used in cases involving unique circumstances.” Id.

To recap, in this case, most of the parties’ marital debts were already combined into

a single Chapter 13 bankruptcy payment, so the trial court was not able to order the parties

to pay specific marital debts. Instead, it ordered them to each continue paying one-half of

the bankruptcy payment. Father already had an appointment with a lawyer for the following

week to explore the possibility of converting the parties’ Chapter 13 filing to a Chapter 7

filing. The trial court concluded that alimony was inappropriate at the time of trial because

Father could not afford to pay it. But it decided that it would reserve jurisdiction to set

alimony in the event that Father was successful in discharging his Chapter 13 obligation,

which the trial court had ordered him to pay. We find that these circumstances are

9

(...continued)

of absolute divorce is final and the decree does not award alimony, the spouse may not be awarded alimony

at any subsequent time.” 726 S.W.2d at 525 (citing Davenport v. Davenport, 178 Tenn. 517, 160 S.W.2d 406

(1942); Darby v. Darby, 152 Tenn. 287, 277 S.W. 894 (1925)). However, “[t]he general and near universal

exception to this rule is that alimony may be awarded after a decree of absolute divorce has become final

where the right is afforded by statute or reserved in the divorce decree.” Id. (citing 27A C.J.S. Divorce §

231b., 24 Am.Jur.2d Divorce and Separation § 689 (1983)).

-17-

compelling enough to justify the exceptional remedy employed by the trial court.10 The trial

court could not individually address the parties’ marital debts because they were tied up in

the bankruptcy proceedings, and the court could not conclusively determine whether Father

would convert his bankruptcy filing and possibly avert paying the $1104 ordered by the trial

court. Therefore, this case involves “unique circumstances” like those encountered in

Lawson, Robinette, and Walton, and we find no abuse of discretion in the trial court’s

decision to reserve the issue of alimony in the event that Husband is successful in having his

previously ordered obligation discharged in bankruptcy.

b. Mother’s Car Accident Settlement

Mother received approximately $13,000 during the divorce proceedings due to a

settlement from a car accident case. The parties’ Mediated Agreement addressed the

settlement with the following language:

That Elizabeth Vinson has disclosed to James Vinson that she will receive

approximately $13,000 from a car wreck settlement and she shall use those

funds for medical bills and to repay her Father. That counsel for Elizabeth

Vinson shall submit an itemized accounting of the expenditures of those funds

to counsel for James Vinson.

It is undisputed that Mother never provided the itemized accounting to Father’s counsel, but

when asked about the funds at trial, Mother testified that she used $1,600 to pay for the

medical bills related to the car accident, and $9,000 to repay her father for the loans used to

pay her attorney’s fees. Clearly, Mother used these funds as the parties agreed. Father does

not suggest that the medical bills or loans to Mother’s father were unpaid. The remaining

balance of the settlement was about $2,400, but the Mediated Agreement did not address any

remaining funds. Mother’s bank records indicated that at the time when the $13,000

settlement was deposited into her checking account, she was overdrawn by about $1,000.

By the end of that same month, her account balance was back down to $355.

Father’s argument with regard to this issue is somewhat hard to follow. He ends his

discussion of the settlement with a request “that the decision of the trial court be reversed.”

Going back to the original issue presented, we find no inconsistency between the Mediated

Agreement and the final decree of divorce. It is undisputed that Mother used the funds for

10

Despite our approval of this unique approach in this case because of the parties’ rare

circumstances, we wish to emphasize to the trial courts that this approach should be used sparingly and only

under the most unique factual scenarios. See Walton, 2005 WL 1922565, at *6 n.2; Isbell, 1999 WL 455429,

at *5.

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her medical bills and to repay her father, as agreed. Therefore, we find that Father is not

entitled to relief with respect to this issue.

B. Attorney’s Fees

In the trial court, Mother sought an award of her attorney’s fees in the amount of

approximately $24,000. The trial court ordered Father to pay $5,000 of Mother’s attorney’s

fees. Father argues on appeal that the trial court made contradictory findings with regard to

the issue of attorney’s fees. The court’s letter ruling stated:

Wife has requested an award of attorney's fees. Wife presented

evidence of the amount of attorney's fees that she has incurred in this case. The

Court has reviewed the Affidavit of Wife's counsel and also the amounts that

Wife has already paid. In light of the assets in this case, and the amount of fees

incurred by Wife, the Court is unable to approve Wife's request, although it

appears that Wife's counsel has done an excellent job in their representation.

However, the Court does feel that the Husband should pay a portion of

the Wife's fees considering the factors that deal with alimony in this case,

particularly Husband's fault in the breakdown of the marriage, Wife's need,

and Husband's denial of adultery in the pleadings filed with this Court.

Therefore, Wife is awarded the sum of $5,000.00 as alimony in solido

representing an award to partially defray Wife's attorney's fees.

Father claims that it was contradictory for the trial court to first say that it could not award

fees in light of the assets in this case, and then to nonetheless make an award. Reading the

entire section of the letter ruling in context, we find it clear that the trial court’s initial

statement that the court was “unable to approve Wife’s request,” in light of the assets “and

the amount of fees incurred by Wife,” was the trial court’s explanation for why it decided not

grant the full amount of attorney’s fees requested. Then, the court explained that it was

awarding a portion of Mother’s attorney’s fees, considering Mother’s need, Father’s fault in

the breakdown of the marriage, and the fact that Father filed an answer denying that he had

committed adultery. With regard to the alleged grounds for divorce, Mother presented the

testimony of the husband of Father’s paramour, who had discovered his wife and Father in

bed together. Mother testified that Father had admitted to the affair before she filed the

complaint for divorce. Father and his paramour later testified and admitted to having a

sexual relationship. Considering all the circumstances, we find no error in the trial court’s

decision to award Mother $5,000 of her attorney’s fees.

Mother has requested an award of attorney’s fees on appeal pursuant to Tennessee

Code Annotated section 36-5-103(c). Because both parties were partially successful on

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appeal, Mother earns substantially more money than Father, and Father has no ability to

pay,11 we respectfully decline to make an award of attorney’s fees on appeal.

V. C ONCLUSION

For the aforementioned reasons, the decision of the circuit court is hereby affirmed

in part, as modified, and reversed in part, and this cause is remanded for further proceedings

to include a calculation of Father’s child support obligation. Costs of this appeal are taxed

to the appellant, James Gerald Vinson, and his surety, for which execution may issue if

necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

11

Of Father’s current net income of roughly $2,000 per month, he is paying $694 in child support

and around $1104 for the bankruptcy payment.

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