The opinion
01/28/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 2, 2020 Session
BRIANNE MARIE (LANE) BAKER V. KENNETH DEAN BAKER
Appeal from the Circuit Court for Montgomery County
No. 63CC1-2016-CV-1247 Ross H. Hicks, Judge
No. M2020-00374-COA-R3-CV
A father challenges the trial court’s child support determination, property division, and
attorney fee award. In its calculation of gross income for child support purposes, the trial
court properly declined to give the father credit for retirement benefits awarded as part of
the property division. If the value of the father’s retirement benefits has significantly
appreciated since the time of the divorce, the father may bring a petition to modify the child
support award to reflect an increase in the mother’s gross income. We affirm the decision
of the trial court in all respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Gregory D. Smith, Clarksville, Tennessee, for the appellant, Kenneth Dean Baker.
Martin Stephen Sir, Nashville, Tennessee, for the appellee, Brianne Marie Baker.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Brianne Marie Baker (“Mother”) and Kenneth Dean Baker (“Father”) married in
2004 and have two minor daughters. Father is a chief warrant officer in the army. Mother
held a retail position for a brief period during the marriage but was mainly a homemaker.
Although trained as an x-ray technician prior to the marriage, she did not pass the state
licensure requirements.
Shortly after Mother and the children joined Father at a new duty posting in
Louisiana in 2011, he admitted having an extramarital affair with Sarah Lane, with whom
he had a child. Father was deployed to Germany beginning in 2012, and the family lived
there for approximately four years. The marriage deteriorated and, in May of 2016, Mother
left Germany with the parties’ two children to return to Tennessee. Since that time, Mother
and the children have resided with Mother’s parents in Clarksville. Mother worked briefly
as a job skills instructor and then cared for her grandmother for six months. She failed to
pass the testing required to become a nurse assistant.
After Mother’s departure from Germany, Father filed an action under the Hague
Convention in the federal district court in Nashville on June 17, 2016, seeking to have the
children returned to Germany. In April 2017, the federal district court determined that the
children should remain in Tennessee. Father returned to Tennessee in June 2017 and
bought a house on Patton Road in Clarksville without Mother’s knowledge or consent; he
and Ms. Lane and their son moved into the house and had a second child in September
2018.
Mother filed the present action for divorce in June 2016 on grounds of irreconcilable
differences and inappropriate marital conduct. After a hearing in November 13, 2019, the
trial court entered an order on December 4, 2019, awarding Mother a divorce based upon
inappropriate marital conduct and taking the remaining issues under advisement. In a
memorandum opinion entered on January 17, 2020, the trial court made detailed findings
of fact and conclusions of law, which it then incorporated into the final order entered on
February 20, 2020. The trial court named Mother the primary residential parent and
ordered Father to pay child support in the amount of $1,064.00 a month pursuant to the
child support guidelines. Based upon the relevant statutory factors, the trial court awarded
Mother alimony in futuro in the amount of $1,300.00 a month until she began receiving
payments from Father’s retirement pay. The court found Father dissipated the parties’
marital assets in the total amount of $159,367.61 and adopted most of Mother’s proposed
division of assets and liabilities. The court also awarded Mother her attorney fees, as
described in her attorney fee affidavit, as alimony in solido.
In this appeal, Father raises the following issues: (1) Whether the trial court erred
in establishing gross monthly incomes for child support calculation purposes because
Father was not fully credited with moneys paid for alimony, retirement, and healthcare
expenses; (2) whether the trial court erred in awarding Mother attorney fees for a Hague
Convention case that was decided and completed in the U.S. district court; and (3) whether
the trial court erred in awarding excessive attorney fees to Mother. Mother further asserts
that she should be awarded her attorney fees on appeal or damages for a frivolous appeal
and that the costs of appeal should be assessed to Father.
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ANALYSIS
I. Gross income for child support purposes.
Under Tennessee law, parents must “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). The child support guidelines govern the process
and criteria for determining the amount of a parent’s child support obligation. See Tenn.
Code Ann. § 36-5-101(e); Atkins v. Motycka, No. M2007-02260-COA-R3-CV, 2008 WL
4831314, at *6 (Tenn. Ct. App. Nov. 6, 2008). Trial courts still retain some discretion
when determining child support despite the adoption of the child support guidelines.
Horine v. Horine, No. E2013-02415-COA-R3-CV, 2014 WL 6612557, at *4 (Tenn. Ct.
App. Nov. 24, 2014) (citing Richardson, 189 S.W.3d at 725). Therefore, we review a trial
court’s child support determination under the abuse of discretion standard. Richardson,
189 S.W.3d at 725. Pursuant to this standard, an appellate court cannot “substitute [its]
discretion for that of the trial court,” and the trial court’s “decision will be upheld as long
as it is not clearly unreasonable, and reasonable minds can disagree about its correctness.”
Id. (citations omitted). A trial court abuses its discretion “when it 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.” Id.
The first step in determining child support is to calculate the gross income of each
parent. See TENN. COMP. R. & REGS. § 1240-02-04-.04(3)(a)(1); Stack v. Stack, No.
M2014-02439-COA-R3-CV, 2016 WL 4186839, at *9 (Tenn. Ct. App. Aug. 4, 2016).
Gross income is generally defined to “include all income from any source . . . , whether
earned or unearned.” TENN. COMP. R. & REGS. § 1240-02-04-.04(3)(a)(1). In the present
case, the trial court determined Mother’s gross monthly income to be $1,500.00 and
Father’s to be $8,390.00. Father asserts that the trial court erred in failing to give him
credit for money he paid for alimony and retirement benefits.
In its final divorce decree, the trial court awarded Mother a portion of Father’s
military retirement equal to “50% times a fraction, the numerator of which is 186 months
of marriage . . . during the [Father’s] creditable military service, divided by [the] total
number of months of [Father’s] creditable military service, projected to be 20 years, 6
months and 9 days.” At the time of the divorce, Father had not yet retired, but he expected
to do so in May 2020. The trial court awarded Mother alimony in futuro in the amount of
$1,300.00 a month until she began receiving payments directly from the DFAS (“Defense
Financing Accounting Service”) for her portion of Father’s military retirement pay.
Moreover, in the event the monthly payments from DFAS did not total $1,300.00, the trial
court ordered that Father “shall make up the difference” as alimony in futuro.
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Immediately after the entry of the divorce decree, Mother was entitled to receive
alimony of $1,300.00 a month. Father argues that the trial court erred in failing to give
him credit for this amount in its calculation of his and Mother’s gross monthly income for
child support purposes. We disagree. The definition of gross income contained in the child
support guidelines contains a list of items to be included in the calculation, and one of these
subsections addresses alimony. See TENN. COMP. R. & REGS. § 1240-02-04-
.04(3)(a)(1)(xxii). Thus, gross income includes “[a]limony or maintenance received from
persons other than parties to the proceedings before the tribunal.” Id. The alimony
payments at issue here were received from Father, a party to the proceedings before the
court. This court has previously interpreted this provision of the child support guidelines
to “exclude[] from the recipient’s income for child support purposes those alimony
payments paid by the other party to the current proceeding.” Ghorashi-Bajestani v.
Bajestani, No. E2013-00161-COA-R3-CV, 2013 WL 5406859, at *7 (Tenn. Ct. App. Sept.
24, 2013); see also Rentz v. Rentz, No. E2013-02414-COA-R3-CV, 2014 WL 3748562, at
*3-4 (Tenn. Ct. App. July 30, 2014). Thus, the trial court did not err in failing to include
Father’s alimony payments in calculating Mother’s gross income for child support
purposes.1
The next issue is the impact of Father’s retirement in May 2020, when Mother began
receiving direct payments out of Father’s military retirement from DFAS. Father argues
that he should receive credit for the DFAS payments received by Mother. We disagree.
The child support guidelines provide that gross income includes income from “[p]ensions
or retirement plans including, but not limited to, Social Security, Veterans Affairs
Department, Railroad Retirement Board, Keoughs, and Individual Retirement Accounts
(IRAs).” TENN. COMP. R. & REGS. § 1240-02-04-.04(3)(a)(1)(viii). However, “[u]nder
Tennessee law, [Father’s] military retired pay is marital property subject to equitable
distribution.” Johnson v. Johnson, 37 S.W.3d 892, 895 (Tenn. 2001), abrogated on other
grounds by Howell v. Howell, --- U.S. ---, 137 S. Ct. 1400 (2017). Thus, as previously
stated, the trial court divided Father’s military retirement as part of the property division.
Tennessee Code Annotated section 36-4-121(b)(1)(E), part of the provisions concerning
the division of marital property, states that “assets distributed as marital property will not
be considered as income for child support or alimony purposes, except to the extent the
asset will create additional income after the division.” (Emphasis added).
In Farmer v. Stark, No. M2007-01482-COA-R3-CV, 2008 WL 836092 (Tenn. Ct.
App. Mar. 27, 2008), this court encountered facts similar to those at issue here. The mother
in Stark challenged the trial court’s child support determination in part based upon its
failure to include as part of the father’s gross income withdrawals he made from retirement
1
Father also suggests that the amount of alimony should have been subtracted in calculating his gross
income. There is no authority to support this argument. All of Father’s income qualifies as gross income
under the guidelines definition. See TENN. COMP. R. & REGS. § 1240-02-04-.04(3)(a)(1). He received
proper credit for support of his in-home children.
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accounts. Stark, 2008 WL 836092, at *1. As in the present case, the retirement accounts
at issue had been distributed as part of the division of marital property. Id. at *5. After
summarizing the pertinent provisions of the child support regulations and property division
statutes (set forth above), this court considered analogous caselaw regarding capital gains
and concluded that the withdrawals from the father’s retirement account should properly
be considered income only “to the extent they represent an appreciation in the value of
those accounts since the time of the divorce.” Id. at *6. As this court explained with
respect to a deferred compensation account divided as part of the division of marital
property, “any distributions of the principal amount of this asset would not be included as
income to either party for child support purposes, based on the plain language of [Tenn.
Code Ann. § 36-4-121(b)(1)(E)].” Bajestani, 2013 WL 5406859, at *5.
Father also argues that he should receive credit for healthcare expenses in the
calculation of his gross income for child support purposes. Pursuant to the parenting plan
incorporated into the final decree, Father is required to provide the two children of the
parties’ marriage with health insurance, with the parties dividing uncovered expenses “on
a pro rata basis in accordance with their respective incomes.” Although healthcare
expenses are not considered in calculating gross income under the child support guidelines,
Father is correct that such expenses may be deducted in determining child support. See
Stack, 2016 WL 4186839, at *11. The guidelines provide for the deduction of each parent’s
portion of the children’s health insurance premium. See TENN. COMP. R. & REGS. §§ 1240-
02-04-.04(8)(b), 1240-02-04-.08(2)(d)(1)(i). Under the guidelines, “[o]nly amounts
actually paid are included in the calculation.” TENN. COMP. R. & REGS. § 1240-02-04-
.08(2)(d)(1)(iii). Thus, “[p]ayments that are made by a parent’s employer, but not deducted
from the parent’s wages, shall not be included.” Id. Father’s income and expense statement
shows that health insurance is provided by his employer at zero cost to him. Thus, we find
no abuse of discretion in the trial court’s failure to credit Father for such an expense.
Finally, Father claims that the trial court erred in failing to deduct amounts he is
paying for the children’s braces. The child support guidelines allow for the deduction of
recurring uninsured medical expenses. TENN. COMP. R. & REGS. §§ 1240-02-04-.04(8)(d),
1240-02-04-.08(2)(d)(3). These provisions apply “[i]f uninsured medical expenses are
routinely incurred so that a specific amount can be reasonably established.” TENN. COMP.
R. & REGS. §§ 1240-02-04-.04(8)(d)(2), 1240-02-04-.08(2)(d)(3)(i). Otherwise, the trial
court’s order shall provide for the pro rata sharing of these expenses, as stated in the final
decree in the present case. See TENN. COMP. R. & REGS. §§ 1240-02-04-.04(8)(d)(3), 1240-
02-04-.08(2)(d)(3)(ii). Father testified that he was paying for uncovered braces expenses
for both children. In his proposed findings of fact and conclusions of law, he listed the
children’s braces as a marital debt to be equitably divided by the trial court. Father did not
submit a child support worksheet (or state a child support amount) with his proposed
parenting plan. In light of the absence of evidence that the braces expenses were routinely
incurred, the trial court did not abuse its discretion in failing to deduct them from Father’s
gross income in calculating child support.
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For the foregoing reasons, we conclude that the trial court did not err in failing to
give Father credit for alimony or healthcare expenses. With respect to retirement benefits,
the trial court properly declined to give Father credit for retirement benefits awarded to
Mother as part of the property division. If the value of Father’s retirement benefits has
significantly appreciated since the time of the divorce, Father may bring a petition to
modify the child support award to reflect an increase in Mother’s gross income.
II. Dissipation of marital assets.
Father’s argument here is that the trial court erroneously awarded Mother her
attorney fees for the Hague Convention case because such an award violates principles of
federal preemption, res judicata, and collateral estoppel. As explained below, however,
Father misconstrues the trial court’s award. Based upon its findings concerning Father’s
dissipation of marital assets, the trial court made an award to Mother as part of the division
of marital property.
Decisions concerning the division of marital property are necessarily fact-specific.
Edenfield v. Edenfield, No. E2004-00929-COA-R3-CV, 2005 WL 2860289, at *7 (Tenn.
Ct. App. Oct. 31, 2005). To be considered equitable, the division of marital property does
not need to be “precisely equal” and it is not necessary that each party “receive a share of
every piece of marital property.” Owens v. Owens, 241 S.W.3d 478, 490 (Tenn. Ct. App.
2007). A trial court has a great deal of discretion in determining the manner in which it
divides marital property, and an appellate court will generally defer to a trial court’s
decision unless that decision is inconsistent with the factors set out in Tenn. Code Ann.
§ 36-4-121(c) or the evidence preponderates against the decision. Jolly v. Jolly, 130
S.W.3d 783, 785-86 (Tenn. 2004); see also Larsen-Ball v. Ball, 301 S.W.3d 228, 234-35
(Tenn. 2010).
The division of marital property “is not a mechanical process” but rather is guided
by the factors set forth in Tenn. Code Ann. 36-4-121(c). Kinard v. Kinard, 986 S.W.2d
220, 230 (Tenn. Ct. App. 1998). A trial court considers and weighs “the most relevant
factors in light of the unique facts of the case.” Batson v. Batson, 769 S.W.2d 849, 859
(Tenn. Ct. App. 1988). In this case, the trial court conducted a detailed analysis of the
statutory factors and stated the following findings and conclusions regarding factor (5)(B),
which addresses dissipation of assets:
For the period December 4, 2015 through January 16, 2019, [Father]
wastefully transferred from his USAA *50703 account by depositing marital
funds to the USAA *38539 joint account with Ms. Lane, in the total amount
of $15,499.04. (Trial Exhibit 21).
[Father] wastefully spent marital funds of $4,099.91 to pay for Ms. Lane’s
travel to Germany. (Trial Exhibit 22).
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For the period September 22, 2017 through November 2019, [Father]
wastefully incurred increased living expenses to support his paramour, Ms.
Lane, a total of $73,330.66 representing the increased cost of $2,820.41 per
month x twenty-six (26) months.
[Father] wastefully expended marital income of $50,000 for attorneys’ fees
for the Hague Convention case.
[Father] failed to share one-half of the parties’ tax refunds ($16,438) for the
years 2016, 2017 and 2018.
The foregoing expenditures were wasteful, reduced the marital estate
available for distribution and were made for a purpose contrary to the
marriage.
The foregoing expenditures were incurred either before or after the
Complaint for Divorce was filed and were in proximity to the breakdown of
the marital relationship.
The total amount of dissipation stated above equals $159,367.61.
This factor favors [Mother].
In the division of marital property, the trial court made the following specific award:
“[Mother] shall be awarded all of Husband’s TSP and the sale proceeds from the Louisiana
property to account for [Father’s] dissipation and [Mother’s] attorneys’ fees in this matter.”
Husband’s TSP (Thrift Savings Plan) was valued at $61,520.71; the Louisiana property
sale proceeds totaled $11,281.36.
Thus, the trial court awarded Mother assets worth a total of $72,802.07 to account
for Father’s dissipation and to cover her attorney fees. As will be discussed below,
Mother’s attorney fees for the divorce were over $35,000.00. The trial court found
dissipation of marital assets totaling $159,367.61. Under the circumstances, we need not
address the issue raised by Father because the amount remaining after the deduction of
Mother’s divorce attorney fees does not fully compensate her for the dissipation of marital
assets found by the trial court, even without the amount spent on Hague Convention
attorney fees.
III. Attorney fees.
Father asserts that the trial court erred by awarding excessive attorney fees to
Mother.
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In Tennessee, courts follow the American Rule, which provides that litigants must
pay their own attorney fees unless there is a statute or contractual provision providing
otherwise. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000);
John Kohl & Co. P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn. 1998). Mother
asserted a claim for attorney fees pursuant to Tenn. Code Ann. § 36-5-103(c), which
“authorizes courts to award reasonable attorney’s fees to the prevailing party in an action
to enforce any decree for alimony, child support, or child custody.” Eberbach v. Eberbach,
535 S.W.3d 467, 475 (Tenn. 2017). A decision to award attorney fees to the prevailing
party under Tenn. Code Ann. § 36-5-103(c) is within the discretion of the trial court, and
we will not overturn the trial court’s decision absent an abuse of discretion. Id. Similarly,
a trial court’s determination regarding the reasonableness of the amount of attorney fees
requested is subject to review under the abuse of discretion standard. Wright ex rel. Wright
v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Killingsworth v. Ted Russell Ford, Inc., 104
S.W.3d 530, 534 (Tenn. Ct. App. 2002)).
In the present case, after the hearing and the court’s award of a divorce to Mother,
counsel for Mother submitted an affidavit with attachments detailing the fees and expenses
(totaling $36,768.50) incurred in his representation of Mother in the divorce. Then, on
January 17, 2020, the trial court entered its memorandum opinion resolving the remaining
issues and providing that “[Mother] shall be awarded all of [Father’s] TSP and the sale
proceeds from the Louisiana property to account for [Father’s] dissipation and [Mother’s]
attorneys’ fees in this matter.” The memorandum opinion further states that Mother’s
attorney fees are awarded as alimony in solido, “based upon [Mother’s] Attorneys’ Fee
Affidavit which shall be paid from [Father’s] TSP account as discussed earlier.” The court
incorporated the memorandum opinion into its final order entered on February 20, 2020.
On appeal, Father requests a remand to allow the trial court to consider the
reasonableness of Mother’s attorney fees. He argues that “there appears to be some
redundancy” in some of the items on Mother’s attorney’s statement of fees and expenses.
He further suggests that, because of the overlap in facts between the Hague Convention
case and the divorce case, the divorce fees are excessive. We note that the specific fees
flagged by Father are not included in the attorney fee request submitted by Mother. We
need not, however, consider Father’s objections because he did not challenge the
reasonableness of Mother’s attorney fee at the trial level.
In Burchfield v. Burchfield, No. M2017-01326-COA-R3-CV, 2019 WL 2185513
(Tenn. Ct. App. May 21, 2019), we addressed the same issue. The father in Burchfield
asserted that the trial court erred in awarding the mother $51,742.50 in attorney fees
because the attorney fees “were not reasonable under any stretch of the imagination.”
Burchfield, 2019 WL 2185513, at *18. The mother submitted an affidavit of time and
expenses in an amount found by the trial court to be reasonable. Id. at *19. Based upon
the father’s “strong defensive reaction” to the mother’s request for a reduction in his
parenting time, the trial court awarded her only 75% of the total requested amount, or
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$51,742.50. Id. The father “did not object to the fees or request a hearing on the
reasonableness of the fees before the trial court.” Id. Rejecting the father’s argument on
appeal, we reasoned:
If a trial court awards attorney fees without hearing proof regarding the
reasonableness of the fees,
“it is incumbent upon the party challenging the fee [to request a]
hearing” on the reasonableness of the fees awarded. Kline [v.
Eyrich], 69 S.W.3d [197,] 210 [(Tenn. 2002)] (emphasis in original);
see also Kahn [v. Kahn], 756 S.W.2d [685,] 697 [(Tenn. 1988)].
Alternatively, the party challenging the fees could convince the
appellate court that he was denied the opportunity to have a hearing
on the reasonableness of the fees through no fault of his own. Kahn,
756 S.W.3d at 697. This court will not reverse a trial court’s award
of attorney’s fees merely because the record does not contain proof
establishing the reasonableness of the fees. Kline, 69 S.W.3d at 210.
The record must contain some evidence showing that an award of
attorney’s fees is unreasonable before a reversal of the fees is
justified. Id. at 210. Additionally, the record should contain at least
an affidavit of the lawyer’s hourly rate and time spent on the case.
See Miller [v. Miller], 336 S.W.3d [578,] 587 [(Tenn. Ct. App.
2010)].
Id. at *18 (quoting Eberbach v. Eberbach, No. M2013-02852-COA-R3-CV, 2014 WL
7366904, at *6 (Tenn. Ct. App. Dec. 23, 2014)). We concluded that the father had waived
the issue of the reasonableness of the attorney fees and could not raise the issue on appeal
for the first time. Id. at *19.
For the same reasons stated in Eberbach, we conclude that Father waived the issue
of the reasonableness of Mother’s attorney fees by failing to raise the issue before the trial
court.
IV. Frivolous appeal.
We exercise our discretion pursuant to Tenn. Code Ann. § 27-1-112 to deny
Mother’s request for her attorney fees on appeal based on her argument that Father’s appeal
was frivolous.
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CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are assessed against
the appellant, Kenneth Dean Baker, and execution may issue if necessary.
_/s/Andy D. Bennett________________
ANDY D. BENNETT, JUDGE
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