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Tavino v. Tavino

Court of Appeals of Tennessee, Knoxville

October 27, 2014


Session July 9, 2014.

Appeal from the Chancery Court for Knox County No. 151756-3 Michael W. Moyers, Chancellor

David A. Lufkin, Sr., Knoxville, Tennessee, for the appellant, Victoria Ashley Spear Tavino.

Lauren G. Strange-Boston, Knoxville, Tennessee, for the appellee, Chris Tavino.

Thomas R. Frierson, II, J., delivered the opinion of the Court, in which Charles D. Susano, Jr., C.J., and W. Neal McBrayer, J., joined.



I. Factual and Procedural Background

The plaintiff, Chris Tavino ("Father"), and the defendant, Victoria Ashley Spear Tavino, ("Mother"), were married twelve years prior to the entry of a final judgment of divorce on October 7, 2002. During the marriage were born two children, a daughter who was ten years old and a son who was seven years old at the time of the divorce judgment. Through the parties' Permanent Parenting Plan concomitantly entered with the divorce decree, the trial court designated Mother as both children's primary residential parent. Father was granted co-parenting time with the children and was obligated to pay Mother $1, 158.00 monthly in child support.

More than eight years following entry of the divorce decree, Father filed a "Motion for Entry of New Permanent Parenting Plan and for Child Support Adjustment" on April 28, 2011. The parties' older child had attained the age of majority in July 2010, and Father averred that the parties' minor child ("the Child") had been residing exclusively with him since October 2009. Father attached to his motion a proposed permanent parenting plan that afforded Mother only twelve co-parenting days with the Child per year. On January 27, 2012, Father subsequently filed a motion to terminate his wage assignment for purposes of child support.

On February 2, 2012, the trial court, acting through Magistrate Brenda Lindsay-McDaniel, entered an "Agreed Order to Terminate Father's Child Support Obligation and Wage Assignment for Same." Mother was represented at this time by her former counsel, William R. Pratt. The trial court subsequently approved and entered an agreed permanent parenting plan on March 5, 2012. This permanent parenting plan, substantively identical to Father's proposed plan, provided Mother with twelve co-parenting days annually and further provided: "The child shall be in Father's care at all times except when Mother and the child desire to spend time together, which Father shall encourage." Father was designated as the primary residential parent, although the parents maintained joint decision-making responsibilities. Pursuant to the permanent parenting plan, the issue of child support was reserved for a determination by the child support magistrate. The respective hearing was set for July 2012.

Prior to the child support hearing date, the trial court entered an Agreed Order on July 23, 2012. Inasmuch as Mother on appeal questions the validity of this Agreed Order, we quote it at length below:

This cause came on to be heard before the Honorable Michael W. Moyers, Chancellor for the Chancery Court for Knox County, Tennessee, Part I, upon the Motion for Entry of New Permanent Parenting Plan and For Child Support Adjustment filed by [Father], the parties' agreed Permanent Parenting Plan, which was approved by the Court and entered on March 5, 2012, the parties' agreement regarding child support as evidenced by their submission of this Agreed Order, and the entire record in this cause, from all of which the Court finds as follows:
1. The agreed Permanent Parenting Plan, which was approved by the Court and entered on March 5, 2012, is in the parties' remaining minor child's best interests;
2. [Mother] is capable of earning at least $15, 000 per year. That amount, plus the amount she receives from her interest in various mineral rights, plus the monetary gift she receives from her aunt establish her income for child support purposes at $2, 916.67 per month.
3. Father's income is $7, 790.25 per month, from which he pays the premium for the health insurance policy under which the minor child is covered. The child's portion of that premium is $117 per month.
4. Each year the minor child spends approximately 12 days with Mother and 353 days with Father.
5. Based on the components set forth in paragraphs 2 through 4 above, Mother's child support obligation for the one remaining minor child is $409 per month, which obligation began in May 2011, the month after Father filed for a child support adjustment. Mother has paid Father no child support since that time and therefore owes him $6, 135 for unpaid child support from May 1, 2011, through July 31, 2012.
6. From May 1, 2011, through January 31, 2012, Father's income continued to be garnished at the rate of $1, 158 per month for the child support obligation established for him when the parties divorced. Mother kept those payments and therefore owes Father an additional $10, 422.
7. In addition to the sums set forth in paragraphs 5 and 6 above, the parties agree Mother owes Father $3, 500 for attorney fees he incurred in this case, which is also an incident of child support, bringing the total Mother owes Father to $20, 057, the unpaid balance of which shall accrue interest at the rate of 12% per annum beginning August 1, 2012.
8. Mother has agreed to pay a minimum of $500 per month towards said $20, 057, in addition to her ongoing child support obligation of $409 per month.
9. The parties affirmatively acknowledge that no action by them shall be effective to reduce child support after the due date of each payment, and they understand that court approval must be obtained before child support may be reduced, unless such payments are automatically reduced or terminated under the terms of this agreement.
10. Mother has agreed to pay the per diem charged by court reporter . . . for her services at Mother's deposition on July 16, 2012.

It is, therefore, ORDERED, ADJUDGED and DECREED as follows:

1. Mother shall pay child support to Father in the amount of $409 per month beginning in August 1, 2012;
2. Mother shall pay to Father an additional $500 per month beginning August 1, 2012, to retire the $20, 057 arrearage she has accrued though July 31, 2012;
3. The unpaid balance of said arrearage, plus any ongoing child support payments that are not timely paid, shall accrue interest at the rate of 12% per annum;
4. If Mother has not completely retired her arrearage by the time the remaining minor child graduates from high school, by which time he will already be 18 years of age, she shall continue to pay support of $909 per month, all of which shall be applied towards the arrearage and any accrued interest, until same is retired in full pursuant to Tenn. Code Ann. § 36-5-101(f)(3).
5. Mother shall make all child support payments and all payments towards the $20, 057 arrearage directly to the Central Child Support Receipting Unit, P.O. Box 305200, Nashville, TN 37229, and shall not receive credit for any payments not made to the Central Child Support Receipting Unit.
6. Mother shall pay the per diem charged by court reporter . . . .
7. William R. Pratt, Esq. is hereby relieved as attorney of record for [Mother]; and
8. The costs of this cause shall be taxed to [Mother] . . . .

Three months following entry of the agreed order, Mother, acting without benefit of counsel, filed a "Petition for Modification of Child Support" on October 15, 2012. Utilizing a form document, ...

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