Martha Elaine Weaver Carter v. David Ray Carter

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 26, 2012 Session

MARTHA ELAINE WEAVER CARTER v. DAVID RAY CARTER

Appeal from the Circuit Court for Davidson County

No. 05D849 Amanda Jane McClendon, Judge

No. M2012-00342-COA-R3-CV - Filed December 28, 2012

In this post-divorce appeal regarding child support, we have concluded that the trial court

erred in requiring mother to establish a trust account for gifts to the parties’ minor child. In

all other respects, we affirm the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in

Part, Affirmed in Part

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which R ICHARD H. D INKINS, J.,

joined. F RANK G. C LEMENT, J R., J., not participating.

Tyree B. Harris, IV and Katherine A. Brown, Nashville, Tennessee, for the appellant, Martha

Elaine Weaver Carter.

James H. Drescher, Brentwood, Tennessee, for the appellee, David Ray Carter.

OPINION

F ACTUAL AND P ROCEDURAL B ACKGROUND

Martha Elaine Weaver Carter (“Mother”) and David Ray Carter (“Father”) were

divorced in October 2006. One child was born of the marriage. Under the permanent

parenting plan incorporated in the final divorce decree, father was obligated to pay $966 per

month in child support. In addition, Father was to pay one-half of the child’s tuition at a

specified private school.

In July 2009, Mother filed a petition to modify child support based on an increase in

Father’s income. Mother filed an amended petition in November 2009 in which she alleged

the following:

That there have been material changes of circumstances affecting the private

education of the minor child in that at the time of the entry of the Final Decree

of Divorce, the [maternal grandmother] was essentially underwriting

[Mother’s] portion of the tuition. At the present time, however, [the maternal

grandmother] is 80 years of age and is no longer contributing in any way to the

tuition of the minor child.

Mother went on to assert that, with his increased income, Father was “fully capable of

underwriting the total amount of the tuition associated with the continued attendance of the

minor child at CPA.” Mother also alleged that, since the final decree was entered, the private

school had initiated a compulsory uniform policy and that the original parenting plan

“inadvertently failed to deal with attendant issues such as the cost of books, fees and meal

plan, all of which are uniquely associated with the private education of the minor child.”

Based upon the parties’ “disproportionate” incomes, Mother requested that Father pay all of

these expenses.

The parties engaged in discovery. In November 2010, the court entered an order to

compel discovery in which the court incorporated a number of agreements announced by the

parties, including the following:

That in response to the Father’s Request for Production of Documents #12,

and Motion to Compel, the Mother has previously provided documents

reflecting all out-of-pocket expenses related to incidental private school

expenses for uniforms, books and school-related extra-curricular activities for

the 2009-2010 school year and shall provide such additional out-of-pocket

expenses for the 2010-2011 school year that she requests [the] Court to

consider, and the Father may secure tuition-related expenses directly from the

private school. The parties have agreed that this is an appropriate case for the

parties’ child to attend private school and based on the parties’ respective

incomes, the Court shall prorate private-school related tuition, fees, costs of

books, uniforms and school-related extracurricular activities.

(Emphasis added). The parties stipulated that Mother was not seeking an upward deviation

for “extraordinary extra-curricular activities.”

The hearing

The trial court held a hearing on Mother’s petition to modify child support on June 13,

2011. Mother testified that, at the time when the parties agreed on the permanent parenting

plan, the child’s maternal grandmother was paying half of the private school tuition. The

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statement in Mother’s amended petition to modify child support that the maternal

grandmother was no longer going to pay half of the tuition was based on statements made

by the maternal grandmother to Mother. Mother acknowledged that the grandmother

changed her mind and had continued to pay half of the tuition.

When Mother’s counsel began to ask questions regarding expenses associated with

the child’s private schooling, counsel for Father objected and the trial court ruled that such

evidence was not relevant based upon the language of the permanent parenting plan, which

referenced only tuition. Mother’s counsel then made an offer of proof regarding Mother’s

expenses associated with the child’s private schooling.

Mother also testified about money received by her and/or the child from the maternal

grandmother. Since the divorce, the maternal grandmother had continued to give the child

gifts of money, which Mother put into an account. During her direct testimony, Mother

could not recall the maternal grandmother giving Mother gifts since the divorce. On cross-

examination, Mother testified that she had received money from her father’s estate in 2007.

Grandmother made annual gifts to the child in the amount of $10,000 or $11,000. Mother

placed this money into an interest-bearing account for the child’s benefit, but the child’s

name did not appear on the account. Mother admitted that she also put some of her own

money into the same account. When questioned by the court, Mother acknowledged that,

when the maternal grandmother gave Mother checks in the amount of $11,000 to cover

payments on a life insurance policy, amounts in excess of the $7,500 policy payment were

gifts to Mother.

Court’s initial order

The court entered its order on August 31, 2011, granting in part and denying in part

Mother’s petition to modify child support. The court denied Mother’s request to require

Father to pay school-related expenses other than tuition. As a basis for this decision, the

court stated:

As a matter of law, the parties entered into a binding agreement which

agreement was incorporated into their Final Decree of Divorce. The parties’

agreement clearly provides for the respective rights and responsibilities of the

parties and said agreement is contractual and may not now be amended.

Since it was undisputed that the maternal grandmother had continued to pay half of the

child’s tuition from the time of the divorce until the present, the court denied Mother’s

request to increase Father’s obligation with regard to tuition.

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In light of the annual gift of $3,500 ($11,000 minus the $7,500 insurance payment)

received by Mother from the maternal grandmother, the court increased Mother’s income by

$313.98 per month. The court granted Mother’s request to increase Father’s monthly child

support obligation. Father’s monthly child support was increased to $1,565, based upon a

four-year average income for 2007 through 2010, and the new child support figure was made

retroactive to July 2009, resulting in a back child support award of $14,376.

Included in the court’s order are the following provisions concerning gifts to the child:

[Mother] shall create a separate trust account for the use and benefit of the

minor child in the amount of $66,000.00 representing the six annual gifts in

the amount of $11,000.00 received by the said minor child from her maternal

grandmother which trust account will remain in full force and effect until the

21st birthday of the said minor child and from which, absent an Order of the

Court, the only withdrawals which may be made from this account are to pay

any state and/or federal income taxes which may become due and owing by

virtue of the activity in said account.

The court also awarded Mother her attorney fees in connection with the petition to modify

child support.

Post-trial motions and orders

Mother moved to set the amount of attorney fees, along with an affidavit and an

itemized accounting of her counsel’s time and fees. Mother also filed a petition to alter or

amend the judgment entered on August 31, 2011 with regard to the amount included in the

trust account established for the child, Father’s parenting time, and the calculation of back

child support. She submitted an affidavit of the maternal grandmother as well as her own

affidavit regarding amounts gifted to the child. Both affidavits state that the actual amount

gifted was $42,000, not $66,000.

The court held a hearing on October 28, 2011 on Mother’s motion to alter or amend

and Mother’s motion for attorney fees. Testimony was heard from Father’s original attorney,

Mother’s attorney, and Father. The court took the matter under advisement. Father then filed

a motion to stay the ruling on post-trial motions and to compel the testimony of Mother. The

court set another hearing for January 6, 2012 at which Mother was to appear in person.

Father would be permitted to take her testimony on two issues: attorney fees and the request

for sharing school expenses. The court specifically noted the November 30, 2010 agreed

order and how it might relate to the court’s August 2011 rulings. The court also noted that

Mother and her lawyer had married on June 16, 2011.

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At the hearing on January 6, 2012, the court heard testimony from Mother regarding

the expenses she had incurred in association with the child’s private schooling. Mother also

testified about her fee agreement with Mr. Harris, her attorney (now husband). She stated

that she and Mr. Harris “had a verbal agreement that these payments would be deferred until

after this case was completed and let the courts decide.” Mother also took testimony from

Mr. Harris’s sister and from Father regarding when Father learned of Mother’s marriage to

Mr. Harris.

On January 10, 2012, the trial court entered three orders resolving the post-trial

motions. In the first order, the court denied most of the relief requested in Mother’s motion

to alter or amend, but ordered the parties to confer regarding Father’s residential days with

the child. In a second order, regarding attorney fees, the court found the amount proposed

by Mother’s attorney not to be reasonable “due to the unique circumstances of this lawsuit.”

The court ordered an award in the amount of $10,000 for Mother’s attorney fees.

In its third order, the court, sua sponte, amended the order of August 31, 2011 based

upon its finding that the order “was incorrect where it asserted that the agreement between

the parties regarding payment of educational expenses that was incorporated into the final

decree of divorce was contractual in nature and could not be modified by the Court.”

Because Mother did not mention the November 2010 agreed order at the final hearing in June

2011, the court concluded that she had abandoned the agreement. The court noted that the

child support guidelines, as amended since the parties’ divorce, allowed the court to add

extraordinary expenses if appropriate considering the parties’ financial abilities and the

child’s lifestyle if the parties were living together. See Tenn. Comp. R. & Regs. § 1240-2-4-

.07(2)(d). The expenses “may be, but are not required to be, divided between the parents

according to each parent’s income.” Based on the circumstances of the case, including the

financial contributions of the maternal grandmother and “Mother’s apparent attempt to keep

this information from the Father and the Court,” the court ordered that Father continue to pay

half of the child’s tuition “plus an additional $150.00 per month in child support as his share

of educational expenses related to the private school education of the minor child.”

Furthermore, the court ordered that “this aspect of child support shall not be retroactive and

shall instead begin with the February, 2012 child support payment.”

Mother filed a new petition to modify parenting time on February 1, 2012.

Mother filed a notice of appeal from the court’s January 10, 2012 orders on February

9, 2012. On February 10, 2012, Father filed a motion to disqualify counsel asking the court

to disqualify Mr. Harris from representing Mother “in any matter related to the modification

of the parties’ permanent parenting plan.” On the same day, Father filed a motion to allow

him to pay the attorney fees awarded to Mother into the clerk of court’s office. On March

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19, 2012, the trial court entered an order on Father’s motion to disqualify counsel, ruling that

“Mr. Harris shall be disqualified from representing [Mother] in any pending or new matters

in this case.” On March 20, 2012, the trial court granted Father’s motion to pay attorney fees

into the clerk’s office, citing a pending case involving Mother’s attorney’s previous law firm.

Issues on appeal

Mother raises numerous issues on appeal:

(1) Whether the trial court erred in imposing a trust on the funds gifted to the child by

her grandmother.

(2) Whether the trial court erred by reconsidering its previous decision that the parties’

agreement in the permanent parenting plan regarding tuition and school expenses was

contractual and could not be amended.

(3) Whether the trial court erred in failing to award Mother the full amount of attorney

fees requested.

(4) Whether the trial court erred in exercising jurisdiction over Father’s motion to

disqualify counsel and motion to pay attorney fees into the clerk of court’s office. And

whether, if the court had jurisdiction to hear these two motions, the court’s rulings were

erroneous.

(5) Whether the trial court erred in denying Mother’s motion to alter or amend and in

failing to modify the calculation of the back child support due and owing since the petition

was filed.

A NALYSIS

(1) Trust account

Mother argues that the trial court erred in requiring her to establish a trust account for

all gifts from the maternal grandparent to the child, and we are inclined to agree.

In the context of making a child support award, a trial court has some discretion as to

whether and how much child support should be placed in a trust or restricted account for the

benefit of the child. See Bryan v. Leach, 85 S.W.3d 136, 152 (Tenn. Ct. App. 2001); Tenn.

Comp. R. & Regs. § 1240-2-4-.07(2)(g)(iii) (regarding parents with high income). The

present matter came before the court on Mother’s amended motion to increase Father’s child

support. The only issues presented to the court were whether Father’s income justified an

increase in child support and whether Father should be required to pay a greater share of the

child’s education-related expenses. Father did not petition to have a trust account established

or put on any evidence to support the need for such an account.

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In ordering Mother to establish a trust account for gifts from the maternal

grandmother to the child, the court required a court order for any use of the money during the

child’s minority. The only stated justification for the trust requirement was as follows:

“[T]he problem I’ve always had whenever children have money on deposit, parents tend to

want to use that money to pay things that really, as a parent, they should be paying.” The

court also stated, “I don’t want to impute to your client [Mother] any bad motive, or anything,

I think she’s done the right thing . . . .” While this court agrees with Father that a trial court

has the authority to establish a trust where circumstances so require, we find no evidence of

any such circumstances in this case.

Father relies on the language of Tenn. Code Ann. § 34-1-102(a): “Funds of a minor

held by a guardian shall not be expended to relieve or minimize the obligation of the parent

or parents to support the minor.” Mother is accountable for the funds given to the child by

the maternal grandmother and must comply with the statutory prohibition. There is no

evidence in this case that Mother had done otherwise. Evidence that Mother placed child’s

funds in an account along with other funds is not sufficient to show misuse of those funds.

The case of Allison v. Allison, 638 S.W.2d 394, 396 (Tenn. Ct. App. 1982), cited by Father,

is distinguishable because it involved evidence that the father had withdrawn funds from an

account owned by his minor child. We, therefore, conclude that the trial court erred in going

outside the issues before it and requiring Mother to establish a trust account without any

request or justification for such a remedy.

(2) Reconsideration of decision regarding school tuition and expenses

Mother next argues that the trial court erred in sua sponte altering its August 31, 2011

order regarding the modifiability of the permanent parenting plan terms regarding tuition and

school expenses. Mother asserts that the court’s January 10, 2012 order “flies in the face of

the negotiated agreement memorialized by the Agreed Order entered November 30, 2010.”

Based upon this reasoning, Mother requests judgment against Father for a prorated share of

the tuition and of the education-related expenses.

In an attempt to clarify the issue, we begin by reviewing the relevant orders and

procedural history: After the filing of Mother’s petition to modify, the parties engaged in

discovery. Father filed a motion for a protective order with respect to certain requests for

production of documents served upon him by Mother. One of the contested requests for

production was number 10, in which Mother requested that Father produce documentation

“evidencing any educational expense and/or any extracurricular expense . . . which you have

incurred by or on behalf of” the parties’ minor child since October 2006 other than Father’s

payment of one-half of the private school tuition. On June 9, 2010, the trial court ruled on

Father’s motion for a protective order. The following portion of the court’s ruling is

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pertinent here:

The Father has represented to the Court that he makes no claim for offsets of

any expenses he has paid for the benefit of the minor child against child

support, there being no legal basis to do so and, therefore, the Mother has

withdrawn Request for Production of Documents Nos. 7, 9, 10, 11, 12 and 13.

Father also served requests for production of documents on Mother and, later, a

motion to compel discovery. After a hearing in early November 2010, the trial court entered

an order compelling discovery on November 30, 2010. In its order, the court memorialized

agreements announced by the parties, including the following:

That in response to the Father’s request for Production of Documents #12, and

Motion to Compel, the Mother has previously provided documents reflecting

all out-of-pocket expenses related to incidental private school expenses for

uniforms, books and school-related extra-curricular activities for the 2009-

2010 school year and shall provide such additional out-of-pocket expenses for

the 2010-2011 school year that she requests [the] Court to consider, and the

Father may secure tuition-related expenses directly from the private school.

The parties have agreed that this is an appropriate case for the parties’ child

to attend private school and based on the parties’ respective incomes, the

Court shall prorate private-school related tuition, fees, cost of books, uniforms

and school-related extracurricular activities.

That the parties have stipulated that the Petitioner/Mother seeks no upward

deviation for extraordinary medical expenses requested under Request for

Production of Documents #11 nor extraordinary extra-curricular activities

under Request for Production of Documents #13 nor any upward deviation

related to the number of days of parenting time that the Father exercises as

requested under Interrogatory #8. As a result, responses to the foregoing

discovery requests are moot, and the Mother is not required to provide any

additional responses related thereto.

...

The Plaintiff/Mother’s oral motion renewing her request to require the

Respondent/Father to produce documentation evidencing expenses related to

the support, education, clothing, gifts or furnishings of his home for the benefit

of the minor child, being Mother’s Request for Production of Documents #’s

9, 10, 11, 12 and 13, is respectfully denied.

(Emphasis added).

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At the beginning of the June 2011 trial, counsel for Mother waived an opening

statement but made the following clarification to the court:

MR. HARRIS [Mother’s counsel]: . . . As Your Honor will recall, I

propounded certain written discovery to the respondent, David Carter,

addressing himself with particularity as to the financial contributions that he

made to or on behalf of the minor child while she was with him when he was

exercising parenting time. I did so on the basis to demonstrate that what he

was not doing warranted a deviation in the guidelines under the manner in

which that they are calculated. Your Honor ruled that that was not legitimate

discovery and that I was not entitled to make those inquiries. Within an order

that was entered by Your Honor in November of 2010, actually it was a motion

to compel discovery, there is a passage in there that it is stipulated that there

is no request for a deviation from the guidelines. That is absolutely correct,

as long as it takes into consideration Your Honor’s previous ruling that the

inquiries that I had made were not deemed legitimate and Your Honor

sustained the objections to those inquiries. And that having been said, I state

to the Court today that we are not asking for a deviation in light of Your

Honor’s ruling. And I just wanted to make certain that that was clear for

purposes if and in the unlikely event this matter is appealed.

(Emphasis added). The trial court then read over the November 30, 2010 order and the

hearing proceeded. In his opening statement, counsel for Father argued that the parties’

agreement in the original parenting plan that Father would pay one-half of the private school

tuition could not be modified to require him to also pay for school-related expenses.

During Mother’s testimony, her counsel began to ask questions regarding expenses

associated with the child’s private schooling. Father’s counsel objected based upon the

language of the permanent parenting plan, which referenced only tuition. The following

exchange occurred:

THE COURT: Okay. So in the context, you tell me if I’m wrong, you’re not

seeking an upward deviation, correct, based upon the representations of that

agreed order, correct?

MR. HARRIS: Correct.

THE COURT: Okay. So tell me how this is relevant because I believe what

[Father’s counsel]’s saying is correct.

MR. HARRIS: Because at the time that the final decree of divorce, the

permanent parenting plan order was negotiated there was no uniform policies

at CPA [the private school].

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THE COURT: That doesn’t matter. If that was going to be a possible

consideration for future increase in obligations, it should have been specified

that that was a consideration.

In the ensuing discussion between the court and Mother’s counsel, counsel never mentioned

the November 2010 order’s language regarding an agreement to prorate tuition and school

expenses. The court ruled against Mother, and Mother’s counsel then made an offer of proof

regarding Mother’s expenses associated with the child’s private schooling.

In the order entered on August 31, 2011, the court denied Mother’s request to require

Father to pay certain education-related expenses, reasoning that the parties’ agreement in the

permanent parenting plan incorporated into the final divorce decree was “contractual and

may not now be amended.” On September 30, 2011, Mother filed a motion to alter or amend

the August 31, 2011 order. In order to resolve matters raised in the post-trial motions, the

court entered three orders on January 10, 2012.

In one of these three orders, the trial court sua sponte amended its August 31, 2011

order as follows:

[T]hat portion of the August 31, 2011, Order was incorrect where it asserted

that the agreement between the parties regarding payment of educational

expenses that was incorporated into the final decree of divorce was contractual

in nature and could not be modified by the Court.1 This in incorrect for two

reasons. First, there is an Agreed Order entered November 30, 2010, wherein

the parties agreed, through their attorney at the time that “this is an appropriate

case for the parties’ child to attend private school and based upon the parties’

respective incomes, the Court shall prorate private-school related tuition, fees,

cost of books, uniforms and school-related extra-curricular activities.”

Secondly, since the parties divorce on October 3, 2006, there have been

amendments to the Rules of the Child Support Guidelines (Rule 1240-2-4-

.07(d) “Extraordinary Expenses”). The difference in the foregoing two is that

the private agreed order states “shall” and the Rules of the child support

guidelines states “may.”

At the final hearing in June, 2011, Mr. Robinson no longer represented Mr.

1

An agreement between parties regarding the support of a minor child “is within the legal obligation

to support the minor child and, therefore, is subject to court modification once the agreement is merged into

a divorce decree.” Jones v. Jones, No. M2009-01512-COA-R3-CV, 2010 WL 2025403, at *4 (Tenn. Ct.

App. May 20, 2010) (quoting Allison v. Hagan, 211 S.W.3d 255, 260 (Tenn. Ct. App. 2006)).

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Carter and no mention was made by either [attorney] of the agreement

embodied in the Order of November 30, 2010. Accordingly, this Court is of

the opinion that the Mother has abandoned enforcement of the language of the

agreed order of November 30, 2010.

The next issue is whether the Court shall order an upward deviation from the

child support guidelines by Ordering the Father to pay more of the

extraordinary expenses of the minor child’s private tuition. The guidelines

provide that the Court may add extraordinary educational expenses if it is

appropriate to the parents’ financial abilities and to the lifestyle of the child if

the parents and child were living together. These expenses may be, but are not

required to be, divided between the parents according to each parent’s income.

The facts of this case, including the maternal grandmother’s financial

involvement in paying expenses for the minor child (and the Mother’s apparent

attempt to keep this information from the Father and the Court), leads this

Court to the conclusion that Father shall continue to pay a one half share of the

minor child’s tuition at CPA, plus an additional $150.00 per month in child

support as his share of educational expenses related to the private school

education of the minor child at CPA, it being the Court’s finding that this is an

equitable sum given the facts (and history) of the parties and of this case.

The issue before the trial court here was whether to modify Father’s child support

obligation with respect to private school tuition and expenses. Mother asserts that the

agreement incorporated into the trial court’s discovery order entered in November 2010 was

binding on the court and required the court to pro-rate the tuition and education expenses

according to the parties’ relative incomes. We cannot agree.

At the time of the original hearing in June 2011, Mother’s counsel referenced the

November 2010 order’s provisions as to relevance of certain evidence, but made no mention

of the parties’ agreement memorialized in that order regarding proration of school tuition and

expenses. Mother’s argument on appeal that it would have been “meaningless” to bring that

agreement to the court’s attention does not hold water. Father was arguing that the

permanent parenting plan was binding and could not be modified, and Mother responded

based solely upon the meaning of that plan. Even before the court accepted Father’s

argument, Mother did not mention the agreement in the November 2010 order. Moreover,

several times during the hearing, Mother’s counsel agreed with the court’s statements that

Mother was not seeking an upward deviation in child support–although the court’s previous

discovery rulings and the November 2010 order did not preclude all claims for upward

deviation. In light of the record regarding these proceedings, the evidence does not

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preponderate against the trial court’s finding that Mother abandoned the previous agreement.

Furthermore, with respect to the issue of tuition payments, that agreement was based upon

the erroneous assumption that circumstances had changed in that the maternal grandmother

would no longer be paying half of the tuition.

Pursuant to Tenn. R. Civ. P. 54.02, a non-final order “is subject to revision at any time

before the entry of the judgment . . . .” It is within the discretion of the trial court to revise

or amend such an order. See Harris v. Chern, 33 S.W.3d 741, 746 (Tenn. 2000). At the time

when it amended the August 2011 order, the trial court was aware of the November 2010

agreement and took note of the amended child support guidelines allowing a deviation from

the child support guidelines for extraordinary educational expenses. See Tenn. Comp. R. &

Regs. §§ 1240-2-4-.03(6)(b)(5)(ii), 1240-2-4-.07(2)(d)(1). In light of all of the evidence

before the trial court, we cannot say that the court abused its discretion in declining to modify

the permanent parenting plan with regard to tuition but requiring Father to pay an additional

$150 per month for education-related expenses.

(3) Attorney fees

Mother argues that the trial court erred in declining to award the full amount of

attorney fees she requested.

The award of attorney fees is within the trial court’s discretion and will not be

overturned absent an abuse of discretion. Wright ex rel. Wright v. Wright, 337 S.W.3d 166,

176 (Tenn. 2011). In reviewing the award, we look at the evidence in the light most favorable

to the trial court’s decision. Id. Thus, we are required to uphold the trial court’s ruling “as

long as reasonable minds could disagree about its correctness,” and “we are not permitted

to substitute our judgment for that of the trial court.” Caldwell v. Hill, 250 S.W.3d 865, 869

(Tenn. Ct. App. 2007). In this case, there is no dispute that an award of attorney fees is

authorized by Tenn. Code Ann. § 36-5-103(c).

Contrary to Mother’s contention, we find no abuse of discretion in the trial court’s

decision regarding attorney fees. Mother requested a total of $27,480 in attorney fees for her

attorney, Mr. Harris, who married Mother soon after the trial on her petition to modify child

support. In awarding Mother $10,000 in attorney fees, the trial court found that Mother “was

less than forthcoming regarding the sums of money that her mother (grandmother)

contributed in payment or in gift, to her and her daughter.” The court also noted:

[I]n view of Mother’s marriage to her attorney and since Mother testified that

she has had an agreement with Mr. Harris since the Petition herein was filed

to not pay Mr. Harris anything until this Court decided the issue of an award

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of attorney’s fees, this Court doubts that Mother shall pay Mr. Harris any

attorney’s fees in this matter regardless what this Court awards.

The court concluded that the amount requested by Mother’s attorney was not a reasonable

award and, “due to the unique circumstances of this lawsuit,” awarded a lesser amount.2 We

find no error here.

(4) Motions regarding disqualification of counsel and deposit of attorney fees

The trial court entered its orders ruling on the post-trial motions on January 10, 2012.

On February 9, 2012, Mother filed a timely notice of appeal. The next day, February 10,

2012, Father filed two motions: a motion to disqualify Mother’s counsel and a motion to

allow Father to pay the court-ordered attorney fee award into the clerk of court. Mother

argues on appeal that the trial court lacked jurisdiction to rule on these motions.

Under Tenn. R. App. P. 4(a), a party must file a notice of appeal within 30 days of the

entry of the judgment being appealed. Once the notice of appeal has been filed, the trial

court loses its authority to act without leave from the appellate court. First Am. Trust Co. v.

Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135, 141 (Tenn. Ct. App. 2001). Perfecting of

the appeal vests jurisdiction in the appellate court. Id.; see also Born Again Church &

Christian Outreach Ministries, Inc. v. Myler Church Bldg. Sys. of the Midsouth, Inc., 266

S.W.3d 421, 425 (Tenn. Ct. App. 2007). The filing of an appeal does not, however, “prevent

the trial court from acting with regard to ancillary matters relating to the enforcement or

collection of its judgment.” First Am., 59 S.W.3d at 141 n.8.

With these principles in mind, we examine each of the two motions at issue. Father

filed a motion to disqualify Mr. Harris “in any matter related to the modification of the

parties’ permanent parenting plan.” In his supporting memorandum, Father referenced the

new petition to modify parenting time filed by Mother on February 1, 2012. Because this

motion related only to the new petition to modify parenting time, and not to the petition to

modify at issue in this appeal, the trial court had jurisdiction to rule on the motion. We

decline to consider the merits of the trial court’s ruling disqualifying Mr. Harris in “any

pending or new matters” because those matters are not part of this appeal.

Father also filed a motion for permission to pay the attorney fees ordered by the trial

court into the clerk of court’s office. The basis for this motion was pending litigation

2

Mother correctly points out that, contrary to a statement in its order, the trial court did not find

Mother underemployed. Nevertheless, Father was partially successful in that Mother was not awarded all

of the tuition and educational expenses she requested.

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between Mr. Harris and his former law firm. Father argued that Mr. Harris’s former law firm

might be entitled to receive some of the attorney fees awarded by the trial court. We consider

this motion to be related to the enforcement or collection of the attorney fee award and,

therefore, a matter within the jurisdiction of the trial court. Furthermore, we find no error

in the trial court’s decision ordering Father to pay the awarded attorney fees into the court

clerk’s office.

(5) Mother’s motion to alter or amend regarding calculation of back child support

The final argument raised by Mother is that the trial court erred in denying her motion

to alter or amend on the issue of the calculation of back child support owed.

We review a trial court’s denial of a Rule 59 motion to alter or amend a judgment

under an abuse of discretion standard. Chambliss v. Stohler, 124 S.W.3d 116, 120 (Tenn. Ct.

App. 2003). An abuse of discretion occurs when a trial court “applies an incorrect legal

standard, or reaches a decision which is against logic or reasoning that causes an injustice to

the party complaining.” Caldwell, 250 S.W.3d at 869 (citing Eldridge v. Eldridge, 42 S.W.3d

82, 85 (Tenn. 2001)).

In its August 31, 2011 order, the trial court held that Father’s child support obligation

would be modified to $1,565.00 per month based upon “a 4 year average income of the

respective parties for the calendar years 2007 through 2010.” The court went on to make this

support retroactive to July 2009 (when Mother filed her petition to modify). In her motion

to alter or amend, Mother argued that the back support due for the period from July 2009 and

June 2011 should be “modified and recalculated based upon a three year average of the

incomes of the respective parties for the calendar years 2006, 2007 and 2008 for that which

should have been paid for the calendar year 2009 and utilizing a four year average of the

calendar years for 2006, 2007, 2008 and 2009 for that which should have been paid during

the calendar year 2010.”3 Noting a lack of legal support for the calculation method urged by

Mother and the absence of a showing of mistake, surprise, inadvertence, or neglect, the trial

court denied Mother’s motion.

A trial court has broad discretion in setting the amount of back child support. State

ex rel. Wrzesniewski v. Miller, 77 S.W.3d 195, 197 (Tenn. Ct. App. 2001). The child support

guidelines do not establish how fluctuating income is to be averaged. Hanselman v.

Hanselman, M1998-00919-COA-R3-CV, 2001 WL 252792, at *3 (Tenn. Ct. App. Mar. 15,

2001). Thus, “it is left to the courts to determine on a case-by-case basis the most

appropriate way to average fluctuating income.” Id. While the method of calculation

3

Mother calculates that this change would increase the amount due from $14,376 to $16,002.

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suggested by Mother appears to be a reasonable option, we find no evidence that the method

employed by the trial court was unreasonable or erroneous. We find no abuse of discretion

in the trial court’s ruling.

C ONCLUSION

For the foregoing reasons, we reverse the decision of the trial court with respect to the

establishment of a trust account. In all other respects, we affirm the trial court’s judgment.

Costs of appeal are assessed equally against Mother and Father, and execution may issue if

necessary.

______________________________

ANDY D. BENNETT, JUDGE

.

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