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Velez v. Velez

Court of Appeals of Tennessee, Nashville

June 30, 2015


Session Date: March 25, 2015

Appeal from the Circuit Court for Montgomery County No. MC-CC-CV-DV-10-1754 Michael R. Jones, Judge

Jon S. Jablonski, Nashville, Tennessee, for the appellant, Christy M. Velez.

Carrie W. Gasaway, [1] Clarksville, Tennessee, for the appellee, Daniel J. Velez.

Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.



Daniel J. Velez ("Father") and Christy M. Velez ("Mother") were married in 1998 and have two minor children, Ethan, born in July 2003, and Kaili, born in June 2007. During the marriage, both parties had a high school diploma, and Mother was a stay-at-home mom, occasionally working minimum wage jobs, while Father was in the United States Navy until his discharge in October 2008 when he began receiving disability for post-traumatic stress disorder. Subsequently, Father began working for a civilian contractor making $70, 000 a year. When the children entered school, the parties placed them in a private school, Clarksville Academy.

The parties separated in August 2010 and were divorced by Final Decree entered on May 4, 2011. The trial court awarded Mother a lump sum of in solido alimony of $25, 000, and identified and divided the marital estate, awarding Mother an additional $92, 870. In addition, the trial court found Father's income to be $9, 238 per month based upon his salary, military benefits, and social security benefits.[2] The trial court found Mother's income to be $1, 642, based upon imputed income of $8 per hour and social security benefits she received from Father's disability. Pursuant to the Permanent Parenting Plan, Mother was designated as the primary residential parent, and the parties were awarded equal parenting time and joint decision-making authority. Father was allowed to claim both children on the federal tax exemption since Mother was not employed during the divorce proceedings. The trial court set child support at $586 per month, taking into account Father's payment of private school tuition; however, once Father's social security disability benefits ceased, benefits Mother also received, the court ordered that child support would increase to $866.

Mother appealed, challenging, inter alia, the parenting plan, the imputation of income to her, alimony, and the computation of child support. In our opinion in the first appeal, we reversed the award of child support and remanded with instructions to impute Mother's income based on the minimum wage.[3] We also determined that Mother was entitled to rehabilitative alimony, not alimony in solido, and we remanded with instructions to determine the amount and duration of rehabilitative alimony. We affirmed the trial court in all other respects. Mother also sought to recover the attorney's fees she incurred on appeal, and, finding that Mother prevailed on several of the issues on appeal and was entitled to recover at least some of her fees, we remanded for the trial court to determine the amount of her fees she was entitled to recover.

While on remand, both parties filed pleadings asking the trial court to modify the parenting plan. Father requested to be designated the primary residential parent based on Mother's alleged inappropriate behavior. Mother sought to modify the parenting plan due to the children's medical and therapy treatment plans and Father's alleged anger issues. She also requested a right of first refusal to be with the children when Father could not during his parenting time. Mother also asserted a claim for items of personal property that were awarded to her in the Final Decree of Divorce which Father had allegedly refused to provide to her. These issues and those required by our remand were tried on October 3, 2013, and January 7, 2014.

At the October 2013 hearing, Mother testified that she began attending Brown Mackie College in May 2011 to obtain a degree as an Occupational Therapy Assistant, that she graduated in August 2013, and that she would be licensed within six to eight weeks. At the January 2014 hearing, she testified that she had begun working as an independent contractor for an occupational therapy firm, More than Words, and expected to have enough patients within six months to work 32 hours per week, at $24 per hour. She stated that her school tuition totaled $41, 000, and that she now had $47, 000 in loans, of which $28, 000 was for her education. She did not provide any documentation of her tuition or her loans; however, she introduced an income and expense statement showing that her income for 2011 totaled $506 and monthly expenses totaled $5, 077, that her income for 2012 totaled $169 and monthly expenses totaled $5, 077, and that her income for 2013 was zero and monthly expenses totaled $4, 146. She also stated that she had spent all of the marital assets awarded to her in the 2011 divorce for a variety of reasons.

In order to prove a material change in circumstances, Mother entered into evidence Father's medical information under seal showing his diagnoses and necessary prescription medications. She relied on Father's former wife's testimony, Nickie Donaldson, who testified that Father would not take his medicine and that he became easily frustrated around the children.

Mother also introduced into evidence her child care expenses from April 2011 through September 2013, which set forth the monthly amounts Mother paid.

As for Mother's attorney's fees incurred in the first appeal, she introduced into evidence billing invoices and an affidavit from her attorney indicating a total of $10, 350 in fees. She also testified that her previous attorney had billed her $2, 800 for work done in the first appeal; however, she had no documentation regarding these services.

With regard to her claim that Father had failed to provide to her numerous items of personal property she had been awarded in the 2011 divorce, she entered into evidence an extensive list of the items awarded to her at trial. She requested that Father be ordered to provide them to her or, in the alternative, that he pay her $5, 000 in damages for the value of the personal property.

Father testified that he was laid off on May 31, 2013, due to a lack of business, and that he had been drawing unemployment compensation at $261 per week since then, which would cease December 31, 2013. He further testified that he was attending classes at Austin Peay University to obtain an undergraduate degree.

At the conclusion of the trial on remand, the trial court found that Mother's need for rehabilitative alimony would cease as of June 2014 because she will have accomplished her desire to be fully employed in her chosen area, occupational therapy. Based on the relative incomes and the cost of her education, the court awarded Mother rehabilitative alimony in the amount of $800 per month for a period of 39 months, from April 2011 through June 2014, totaling $31, 200. Finding that Mother had received $25, 000 in alimony payments from Father since the divorce, the court ordered Father to pay Mother the remaining balance owing of $6, 200 as rehabilitative alimony.

In calculating child support, the trial court imputed income to Mother at the federal minimum wage of $7.25 an hour to determine child support. The trial court also did an excellent job of identifying the four distinct time periods to be considered for awarding child support: (1) April 2011 through September 2011, when the Social Security disability benefit ceased; (2) October 2011 through March 2013, when Mother filed her motion for consideration of her child care expenses in the computation of child support; (3) April 2013 through May 2013, when Father lost his job; and (4) June 2013 through June 2014, when Mother would be fully employed.

After determining the amount of child support to be paid by Father for each of the four periods identified above, the court determined the arrearage and awarded a judgment accordingly. As for the period from June 2013 through June 2014, the trial court found that Father's income included his veterans' benefit of $1, 701 per month and unemployment compensation in the amount of $261 per week, or $1, 131 per month. The trial court also imputed income to Father at $10 per hour, or $1, 733 per month. Based on these sums, the trial court set Father's monthly gross income for the period from June 2013 through June 2014 at $4, 565 per month.

As for Mother's claim for child care expenses and the income tax exemptions, the court stated that Mother had not requested child care expenses prior to filing her motion in March 2013, and ruled that it would not consider Mother's child care expenses prior to that time. The court then found Mother's child care expenses to be $67 per month from March 2013 through May 2013, and zero from June 2013 through June 2014. The court also ruled that Mother could claim the federal income tax exemptions in 2014 if Father had no taxable income.

With regard to Mother's attorney's fees incurred in the first appeal, the trial court awarded her $2, 600 out of the $10, 350 fee she requested. As for the attorney's fees Mother incurred on remand, the trial court denied the request due in part to Father's unemployment and a general lack of liquid assets. With regard to the parties' respective petitions to modify the parenting plan, the trial court determined that the children have thrived under the existing plan and that there is no evidence to support a modification. As for Mother's claim regarding items of personal property awarded in the divorce, the court found the testimony conflicting and denied Mother's claim.

Both parties raise several issues on appeal. Mother contends that the trial court erred in the amount and duration of rehabilitative alimony; in the award of attorney's fees she incurred in the first appeal; in declining to award her attorney's fees for the remand hearings; in failing to modify the parenting plan; in its calculation of child support in regards to her child care expenses and the allocation of the federal income tax exemption; and in denying her claim for the personal property awarded in the divorce.

Father contends that the trial court imputed excessive income to him for the time period between June 2013 and June 2014. He also contends the trial court erred by not awarding him sole decision-making authority given Mother's failure to notify him of the children's doctor's appointments and in failing to require Mother to contribute to the children's private school tuition.


I. Alimony

Mother contends the trial court erred by failing to award her sufficient rehabilitative alimony. Specifically, she argues that her monthly living expenses, totaling between $4, 000 and $5, 000, were in excess of her income and she incurred loans for school tuition and living expenses totaling approximately $50, 000, while Father's monthly income totaled $9, 238 from April 2011 to October 2011, when his disability ended and his monthly income was reduced to $7, 188 which continued until he lost his job in May 2013. Mother requests at least $2, 000 per month from April 2011 through May 2013, and $800 per month thereafter until June 2014, when Mother expected to become fully rehabilitated.

As we requested, the trial court properly considered the factors in Tennessee Code Annotated § 36-5-121 in determining the duration and amount to award Mother for rehabilitative alimony.[4] In its thorough analysis of the issue, the trial court noted that Father had a greater earning capacity than Mother at the time of divorce; however, at the time of the hearings on remand, Father was unemployed through no fault of his own, had no present job prospects, and planned to attend college to obtain an undergraduate degree. The trial court also noted that Mother had completed her educational courses for occupational therapy and found that her earning capacity was currently greater than Father's. Based on these facts, the relative incomes and cost of her education, while properly excluding Mother's discretionary spending which ...

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