Opinion

Gretchen Michele Benedict v. Donald Lester Benedict, Jr.

Court
Court of Appeals of Tennessee
Filed
May 25, 2016
Status
Published
On the bench
Judge Charles D. Susano, Jr.
Cited by
0 cases
Authority
More cited than 43.5%

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 8, 2016 Session

GRETCHEN MICHELE BENEDICT v. DONALD LESTER BENEDICT, JR.

Appeal from the Chancery Court for Hamilton County

No. 99-0673 Pamela A. Fleenor, Chancellor

No. E2015-01427-COA-R3-CV-FILED-MAY 25, 2016

This is the second time this matter has been before us on appeal. The issue is again the

correct amount of Donald Lester Benedict, Jr.’s (Father) income upon which child

support is to be based. Gretchen Michele Benedict (Mother) argues that the trial court

erred when it set Father’s child support based upon an incorrect income figure. We have

determined that the trial court misinterpreted our previous opinion in Benedict v.

Benedict, No. E2013-00978-COA-R3-CV, 2014 WL 2187779 (Tenn. Ct. App., filed May

27, 2014) (Benedict I). The trial court incorrectly held that Father’s income was $75,000

per year for the purpose of setting child support for the period February 2007 to May

2014. The trial court used the $75,000 annual figure even though the evidence showed

that Father’s actual income during the period of 2010-2014 ranged from a low of $60,444

to a high of $199,530. We vacate the trial court’s judgment and remand for a

recalculation of the amount of child support.

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

Vacated; Case Remanded for Further Proceedings

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Grace E. Daniell, Chattanooga, Tennessee, for appellant, Gretchen Michele Benedict.

Phillip C. Lawrence, Chattanooga, Tennessee, for appellee, Donald Lester Benedict, Jr.

I.

The parties have two children, a daughter born on January 11, 1996, and a son

born on September 3, 1998. The parties were divorced on September 6, 2000. Pursuant

to their marital dissolution agreement, Father was ordered to pay child support in the

amount of $3,200 per month. Our Benedict I opinion provides the following pertinent

procedural history:

In January 2007, Husband filed a petition to modify child

support. Husband alleged that his income had decreased

substantially and that Wife now was working. Wife filed an

answer and counterclaim alleging that Husband had unclean

hands and had failed to pay child support and alimony as

ordered. Wife acknowledged that the parties had resumed

living together for a while and that she was working. In

November 2007, the Trial Court cut Husband’s child support

obligation from $3,200 per month to $1,900 per month

pending trial. For his part, Husband denied being behind on

child support or alimony. In May 2008, Wife filed a petition

for contempt alleging that Husband failed to pay fees for one

of the Children to attend school. Husband filed a response,

alleging a reduction in income and asking for removal of his

responsibility to pay tuition.

In April 2009, the Trial Court entered an order referring

numerous issues in the case to a Master. The Master heard

the case on several dates in 2010. . . . Husband’s income in

2000 was $350,000 per year. Husband at that time worked

for Adams Lithography. Husband’s work was commission-

based. In 2002, Husband lost his job at Adams when the

major client left Adams. Between 2002 and 2009, Husband

worked in a variety of jobs. Husband opened Five–0–5

Marketing, LLC, an advertising agency, and Fireball Business

Services, a printing company. The businesses ultimately did

not thrive. Husband’s income was as follows: 2005–

$102,943, 2006–$205,143, 2007–$2,188, 2008–$24,954. By

2009, Husband returned to Adams and earned $75,000 per

year. As of 2009, Wife was earning around $17,000 per year.

In March 2011, the Master entered his order. Husband’s

child support was set at $1,259 per [month] based on his

salary at Adams of $75,000 per year. The Master ruled that

Husband’s obligation for private school tuition, college

tuition, the second mortgage, and lease payments and

residuals on the Mercedes were discharged in bankruptcy.

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In January 2013, the Trial Court entered its memorandum

opinion and order resolving Wife’s objections to the Master’s

findings. The Trial Court held that the Master erred in

calculating Husband’s income and that Husband was willfully

or voluntarily underemployed. The Trial Court held, inter

alia: 1) Husband’s income was his actual $75,000 salary at

Adams plus an imputed $144,362 for a total of $219,362[.]

2014 WL 2187779, at *1-2. The trial court set Father’s child support at $2,405 per

month, retroactive to February 2007. Father appealed. We reversed the trial court’s

finding of willful underemployment and remanded for recalculation of child support,

stating:

The record reveals that Husband’s earnings took a major hit

over the course of the decade after his divorce. Husband

went from earning $350,000 per year to $75,000 per year at

Adams. In the interim, his different enterprises eventually

floundered. The evidence in the record on appeal does not

support a finding that Husband intentionally torpedoed his

career prospects. Rather, it appears Husband has tried and

failed to reestablish some measure of his previous lifestyle.

Husband filed for bankruptcy a few years after the divorce, as

well.

* * *

In calculating Husband’s income, the Trial Court added his

salary of $75,000 to an imputed income of $144,362 to reach

$219,362. We do not believe this is the correct way to go

about determining Husband’s income. As noted by Husband,

he either is earning a salary of $75,000 or is an entrepreneur

capable of earning $144,362, but not both at the same time.

The Master found Husband’s income for purposes of child

support to be $75,000 per year. We believe the

preponderance of the evidence supports the Master’s finding,

and the Trial Court erred in setting aside that finding by the

Master. This of course does not settle once and for all time

the issue of Husband’s income. Husband perhaps will earn

more money in the future. However, under the evidence in

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the instant appeal, we find that Husband’s income for child

support purposes is $75,000 per year.

We hold that the Trial Court erred in finding that Husband

was willfully or voluntarily underemployed. Because of the

close nexus between this issue and Husband’s next two issues

(whether the Trial Court erred in its modification of

Husband’s child support and award of child support

arrearage; and, whether the Trial Court erred in finding that

Husband was not entitled to a modification of his obligation

to pay for private school tuition and an arrearage for private

school tuition), those issues are pretermitted as they are to be

considered anew by the Trial Court on remand in proceedings

as necessary consistent with this Opinion.

Id. at *6-7.

Following our remand, the trial court heard evidence pertaining to Father’s income

for the years 2010 through 2014. In its memorandum opinion and order entered on July

2, 2015, the trial court found that Father’s actual gross income was as follows: 2010‒

$60,444; 2011‒$67,382; 2012‒$140,141; 2013‒$199,530; and 2014‒$186,501. The trial

court held, however, that “the law of the case” as established by Benedict I mandated a

finding that Father’s income for child support purposes was $75,000 per year. Based on

this number, the trial court set Father’s child support at $1,259 per month for the period

between February 2007 and May 2014. Because Father had filed a second petition to

modify child support on May 29, 2014, the court calculated Father’s child support

obligation beginning in June 2014 to be $1,435 based on the parties’ respective incomes.

The trial court held there was no arrearage because Father had overpaid by a total of

$39,745.32 from February 2007 through May 2014, and granted Father a credit in that

amount. The court further stated that “[b]ased on an annual income of $75,000 the Court

finds that Mr. Benedict could not contribute toward private school tuition from 2007-

2014 as such costs were not appropriate to his financial abilities during that time.”

Mother timely filed a notice of appeal.

II.

Mother raises the following issues, as paraphrased from her brief:

1. Whether the trial court erred in calculating Father’s child

support obligation, arrearage, and/or credit owed, if any.

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2. Whether the trial court erred in finding no arrearage owed

by Father for the children’s private school tuition, and

determining that Father was not obligated to contribute

toward tuition from 2007 to 2014.

3. Whether the trial court erred in finding that Father was not

in contempt for failing to pay the children’s private school

tuition.

4. Whether the trial court should have granted Mother’s

request for attorney’s fees.

III.

The primary and determinative question is whether the trial court correctly ruled

that Benedict I mandated a finding that Father’s income for child support calculation

purposes from 2009 to 2014 was $75,000. In Benedict I, we held that the Master had

correctly determined that Father’s income for child support purposes was $75,000

through 2009, which was the last year about which the Master heard proof. As Mother

points out, though, we were also careful to state that “[t]his of course does not settle once

and for all time the issue of Husband’s income. Husband perhaps will earn more money

in the future.” (Emphasis added). In our first opinion in this case, we never said that the

trial court, on the first remand, had to use the $75,000 figure in calculating child support

for the period of 2009 to 2014. On the contrary, we said just the opposite.

This Court was presented with a similar and analogous situation in Smith v.

Smith, No. M2000-01094-COA-R3-CV, 2001 WL 459108 (Tenn. Ct. App., filed May 2,

2001). In Smith, we determined on the first appeal that the trial court had improperly

applied the Child Support Guidelines and remanded for recalculation. Id. at *1. Then,

“almost four years . . . passed between the original order setting child support and the

hearing on remand.” Id. at *2. On the second appeal, the mother argued that “the trial

court should have used the father’s actual income for the years 1996, 1997, 1998, in

determining the father’s obligation for those years.” Id. at *3. The trial court, however,

had taken a different approach:

[T]he initial award was made at the time of divorce, in April

1996. However, that award was determined by this court to

have been incorrectly calculated. On remand, the trial court

interpreted its duty to establish the support due at the time of

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the divorce, based on the father’s income at that time, even

though four years had passed. The court, placing itself in the

position it would have been in April 1996, determined the

father’s then-current income based on information which

would have been available at that time, the father’s income

from 1992 through 1995, even though the father’s actual 1996

income was known at the time of the hearing on remand. The

court then determined the child support due in each of the

intervening years on the basis of its estimate of the father’s

1996 income, although information about the father’s actual

income for each of those years was available.

Id. at *4. The Smith Court, observing that “[b]ecause child support is based on income,

an award for future support, including a prospective modification, is necessarily based

upon most recent actual income,” further stated,

For the years between the initial entry of the order obligating

the father to pay child support until the order on remand, we

can find no basis for ignoring actual income and establishing

support on outdated projections of income. The amount of

the father’s obligation for past years should be determined

using actual income figures.

* * *

To the extent the father has paid amounts since the date of

divorce which are substantially less than the amount he

should have paid, he owes back child support. The way to

determine the arrearage is to recalculate the correct amount

for each of the years since the divorce decree and subtract the

father’s actual payments.

* * *

In the case before us, the obligation to provide support has

existed since the divorce, but the amount of the obligation has

not been correctly set, and the amount of back support cannot

be determined until that is done. The situation is similar

enough to the cases involving calculation of back support in

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late-discovered paternity cases for us to use those cases for

additional guidance.

Therefore, we conclude that the amount of back child support

owed by the father should have been calculated using his

actual income for each of the years since the divorce, proof of

which was available at the time of the remand hearing.

Id. at *7-9 (footnote omitted).

As we did in Smith, we hold that the trial court should use the actual income

numbers for Father and Mother, on a yearly basis, to determine what the child support

obligation should be. In other words, the actual and correct income numbers should be

inputted into the child support calculator for each of the years from 2007 through 2015,

which will result in either a deficiency or overpayment for each year. Father’s income

for 2007 through 2009 is $75,000 for child support calculation purposes, as the

established law of the case determined by Benedict I. For the years 2010 to the date of

the hearing on this remand, the trial court is directed to use actual income figures.

Because the trial court decided the issues related to Father’s payment of the children’s

tuition expenses based on an erroneous premise, i.e., that his income was $75,000, it

should reconsider those issues upon remand.

Regarding Mother’s request for attorney’s fees, Tenn. Code Ann. § 36-5-103(c)

provides:

The plaintiff spouse may recover from the defendant spouse,

and the spouse or other person to whom the custody of the

child, or children, is awarded may recover from the other

spouse reasonable attorney fees incurred in enforcing any

decree for alimony and/or child support, . . . in the discretion

of such court.

In Brown v. Brown, No. W2005-00811-COA-R3-CV, 2006 WL 784788, at *4 (Tenn. Ct.

App., filed Mar. 29, 2006), we observed:

There is no question that T.C.A. § 36-5-103(c) empowers the

courts to award reasonable attorney’s fees incurred by

persons who are required to return to court to enforce a child

support order. See, e.g., Huntley v. Huntley, 61 S.W.3d 329,

341 (Tenn. Ct. App. 2001). In these situations, the attorney’s

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fees are allowed as a necessary and, consequently, the fees

may be couched as additional child support. See W. Walton

Garrett, Tennessee Divorce, Alimony and Child Custody

(2002 ed.) § 29-9. The decision of whether to award

attorney’s fees in these cases falls within the trial court’s

discretion, Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn.

1995). Consequently, we review those decisions under the

less stringent “abuse of discretion” standard of review.

Accordingly, we will reverse a trial court’s decision with

regard to awarding attorney’s fees in cases such as this only

when the trial court applies an incorrect legal standard,

reaches a decision that is illogical, bases its decision on a

clearly erroneous assessment of the evidence, or employs

reasoning that causes an injustice to the complaining party.

In the present case, the trial court simply held that “[e]ach party [is] to bear its own

attorney’s fees for this action.” Based on our review of the record, we find no abuse of

discretion in this decision. In view of our decision in this case, it is abundantly clear that

Mother’s appeal was not frivolous. Accordingly, we decline to award Father attorney’s

fees for frivolous appeal.

IV.

The judgment of the trial court is vacated, and the case is remanded for further

action consistent with this opinion. Costs on appeal are assessed to the appellee, Donald

Lester Benedict, Jr.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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