Session May 22, 2015
Appeal from the Circuit Court for Williamson County No. 04229 Robbie T. Beal, Judge
Connie Reguli and Julia Shaver, Brentwood, Tennessee, for the appellant, David Solima.
Lawrence J. Kamm, Nashville, Tennessee, for the appellee, Stephanie Solima.
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.
FRANK G. CLEMENT, JR., JUDGE
Stephanie Solima ("Mother") and David Solima ("Father") were divorced in July 2006, and Mother was designated the primary residential parent for the parties' only child, a son born in November 2001. The final divorce decree contained a provision prohibiting Mother from consuming alcoholic beverages when the parties' son was in her custody. This provision was modified on April 8, 2013, to prohibit both parents from drinking alcohol in excess in the presence of their child. At all relevant times, the parties were operating under a parenting plan adopted on April 8, 2013.
On July 9, 2013, Mother lost her job in Tennessee, and, on August 20, 2013, she found a job and committed to relocating to Dallas, Texas. On October 16, 2013, Mother filed a petition seeking permission to relocate and the entry of restraining orders against Father ("Petition to Relocate").
Father filed a timely response opposing Mother's petition to relocate; Father also filed a separate petition to modify the parenting plan seeking, in part, to be designated as the primary residential parent ("Petition to Modify"). Mother filed a response opposing Father's Petition to Modify. Neither the Petition to Modify nor Mother's response included any allegations that Father was underemployed.
By agreed order, Mother's Petition to Relocate and Father's Petition to Modify were set for trial on April 10, 2014. One week before trial, Mother notified Father that she no longer needed to relocate because her out-of-state employment had been terminated. Two days later, Mother filed a motion for a continuance concerning Father's Petition to Modify. The trial court denied the motion for a continuance, and the trial proceeded as scheduled on Father's Petition to Modify.
Father's Petition to Modify was tried on April 10 and 11, 2014. The parties' son, who was 12 years old at the time, testified in chambers, and Mother and Father testified in open court. Mother and Father offered conflicting testimony about Mother's alcohol consumption and the severity of the child's reaction to the possibility of relocation. Father testified that Mother drank enough to scare the parties' son and that the idea of moving to Texas had made the child physically sick. Father also introduced into evidence Mother's credit card bills, which indicated that she purchased alcohol each month. Mother testified that she had a glass of wine most evenings and that she used much of the alcohol she purchased as gifts or for cooking. Mother admitted that she had called Father derogatory names but denied that she had done so in the child's presence.
The child confirmed parts of both parents' testimony. He testified that he had heard Mother call Father derogatory names and that Mother's drinking had scared him "a few times." However, he also testified that Mother "makes sure she doesn't drink too much" when she is going to drive. Additionally, the parties' son testified that he felt "sad" and "scared" about moving to Texas but did not indicate that he had suffered from any of the physical reactions Father had testified about. The court found that the parties' son was a "very credible witness" and stated that "the Court puts weight on his testimony." Although the child expressed a preference regarding the designation of the primary residential parent, the trial court did not rely on his stated preference because it was apparent to the court that the child was trying to please both parents with his testimony.
Both parties also testified about their income and employment. When Mother's attorney asked questions indicating Father was voluntarily underemployed, Father's counsel objected on the ground the issue had not been raised in the pleadings. The trial court overruled the objection and instructed Father to answer the questions. Father testified that he was forced to retire from a position at General Motors with a salary of $86, 000 per year and had been working for the Williamson County Schools system for several years. His current annual income, including retirement benefits, was approximately $32, 000. He also testified that he was 60 years old and that he had made many attempts to find a better-paying position but had been unsuccessful.
Mother testified that she had been unemployed since March 14, 2014, around four weeks before trial, and currently had no income. Based on her W-2 forms, Mother's gross income for 2013 was around $70, 000. Mother's pay stubs from 2014 indicated that she been paid $6, 666 per month in gross income for three months.
The trial court made an oral ruling at the end of trial and issued a written order in June 2014. The trial court found that a material change in circumstance had occurred because the child was now 12 years old, "the child had given clear opinions . . . which alone would cause the Court to believe there has been a change of circumstances, " and "violations of the parenting plan warranted a reconsideration of that plan."
The trial court then conducted a best interest analysis based upon the relevant factors in Tenn. Code Ann. § 36-6-106. The court expressed concern regarding Mother's use of alcohol; however, it did not find "that her alcohol use is such that the Court is fearful for the safety of the child, " and it found that the preponderance of the evidence did not show that "Mother has abused alcohol to excess in violation of the Court's order . . . ." Further, the trial court was concerned about Mother's behavior, finding that she had undermined Father's parenting time and made derogatory statements about Father in the child's presence. The court described her behavior as "contemptuous, " but it did not find that her behavior was "to the point where the Mother is alienating the affections of the minor child from the Father." The trial court also found that "both parents have said and done things that are inappropriate and demonstrates [sic] to the Court that they have no regard for each other" and that "[t]he Court does not believe that either parent would foster a very good relationship with the other, and both parents believe that they would be better off if the other parent were dead."
After expressing these concerns, the trial court found that the child had "come to rely upon the continuity of the schedules of the parenting plans, " and that it was not in the best interest of the child to change the primary residential parent or to "overhaul" the parenting plan. Thus, the court ruled that Mother would remain the primary residential parent and that it would only make "some slight modifications" to the parenting plan.
Although such relief was not requested in the Petition to Modify or Mother's response, the trial court also adjusted the parties' incomes for purposes of child support. Regarding this issue, the trial court's order states:
6. For purposes of child support, the Court finds that the father built a career at General Motors, retired and would prefer to work in our school system. The Court applauds that decision although his income is significantly less than what his ability to earn is.
a. Father's counsel, Attorney Reguli, did state that a finding of underemployment is generally incumbent on a petitioning party to assert in their pleadings that a parent is underemployed. The Court agrees with this, but the Court is modifying its parenting plan orders and therefore, the Court finds that it is under the obligation to reconsider the child support issue. The Court is therefore increasing the Father's gross monthly income to $4, 000 (four thousand dollars) per month based on his ability to earn. The Court is also decreasing the Mother's gross monthly income to $5, 000 (five thousand dollars) per month based on her ability to earn.
The trial court's order does not contain any findings regarding Mother's income; however, the court stated in its oral ruling that it reduced Mother's monthly income because Mother had recently lost her job and no longer had the ability to earn her prior salary. Father and Mother appealed.
On appeal, Father contends the trial court erred by failing to designate him as the primary residential parent and by modifying each party's gross income for purposes of child support. Mother contends she should have been awarded attorney's fees she incurred in the trial court; she also seeks to ...