Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ghorashi-Bajestani v. Bajestani

Court of Appeals of Tennessee, Knoxville

March 1, 2017

MARYAM GHORASHI-BAJESTANI
v.
MASOUD BAJESTANI

          Session January 24, 2017

         Appeal from the Chancery Court for Hamilton County No. 08-0098 Jeffrey M. Atherton, Chancellor No. E2016-00063-COA-R3-CV

         This is the third appeal in a post-divorce case. It arises from Husband's petition to modify the requirement that he pay private school tuition for his children's elementary and secondary education, and Wife's petition to calculate Husband's income tax rate in order to determine the net amount to be paid to Wife out of Husband's deferred compensation for 2011, 2012, and 2013. Husband contends the trial court erred by holding that his obligation to pay private school tuition was not modifiable because it was a contractual obligation. He also contends the trial court incorrectly calculated the tax rates and erred by refusing to allow him to introduce expert proof of the proper method for this calculation. We have determined the trial court erred in ruling that Husband's obligation to pay private school tuition for elementary and secondary education was not modifiable. Therefore, we reverse and remand this issue with instructions for the trial court to determine whether a material change of circumstances has been established and, if so, whether to modify Husband's obligation to pay private elementary and secondary school tuition for the children. With regard to the tax rates for 2011, 2012, and 2013, Husband failed to introduce evidence at the hearing that pertained to the proper method to be used to determine the tax rates. After the court rendered its ruling, Husband filed a Tenn. R. Civ. P. 52.02 motion seeking permission to present expert proof on the tax rate issue in order to alter or amend the ruling. We find no error with the decision to not consider Husband's belated expert proof or the decision to deny the motion to alter or amend. We also affirm the trial court's calculation of the tax rates and Wife's share of Husband's deferred compensation for the years in question. As for Wife's challenge to the trial court's decision to impute income to her for the purpose of calculating child support and refusing to consider work-related care expenses she might incur, we affirm these decisions.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part; Reversed in Part; and Remanded.

          Phillip C. Lawrence, Chattanooga, Tennessee, for the appellant, Masoud Bajestani.

          John P. Konvalinka, Chattanooga, Tennessee, for the appellee, Maryam Ghorashi Bajestani.

          Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which D. Michael Swiney, C.J., and John W. McClarty, J., joined.

          OPINION

          FRANK G. CLEMENT, JR., P.J., M.S.

         Maryam Ghorashi-Bajestani ("Wife") and Masoud Bajestani ("Husband") were divorced in April 2009. The Final Decree of Divorce adopted the parties' permanent parenting plan, named Wife the primary residential parent, and ordered Husband to pay $3, 200 per month in child support. In setting the amount of support, the court found that Wife was voluntarily unemployed and imputed to her an income of $72, 000. The court also ordered Husband to pay the children's private school tuition and other expenses, pursuant to his agreement in the parenting plan "to pay private school expenses [through] 12th grade."

         Further, the trial court divided the parties' marital assets, including Husband's deferred compensation from his employment with the Tennessee Valley Authority ("TVA"), which the court valued at $2.7 million. Specifically, Wife was awarded one-half of the TVA deferred compensation. The court indicated that if the transfer of any portion of Husband's deferred compensation resulted in a taxable event, each party would be responsible for one-half of the taxes.

         Additionally, the trial court awarded Wife transitional alimony, alimony in futuro, and attorney's fees.

         In the first appeal, we affirmed the imputation of income to Wife and the award of child support. See Ghorashi-Bajestani v. Bajestani, No. E2009-01585-COA-R3-CV, 2010 WL 3323743, at *1 (Tenn. Ct. App. Aug. 24, 2010) (hereinafter "Bajestani I"). We also affirmed the trial court's valuation and distribution of the parties' marital assets, including Husband's deferred compensation from TVA. The trial court's award of transitional alimony and attorney's fees was modified and the award of alimony in futuro was vacated.

         Following the first appeal, Husband filed a petition to modify his child support obligations and the requirement to pay private school tuition because he had recently been terminated from his employment at TVA. Husband also sought instruction from the trial court regarding payment of Wife's portion of the deferred compensation distributions because he learned that TVA was going to deduct 35% of the gross distribution for estimated taxes. Thereafter, Wife filed a petition seeking to modify the parenting plan on the basis that Husband had not exercised the full amount of his parenting time and an order of contempt for Husband's failure to pay his child support and alimony obligations on time.

         A hearing was held on these issues, during which Wife argued that she had been shortchanged in the distribution of Husband's deferred compensation, as 35% of the disbursement was withheld for estimated taxes before Wife was given her portion. Wife asserted that, because Husband's overall tax rate per his federal tax return was less than 35%, Husband had received a greater share of this asset. The trial court rejected this argument, finding that Husband's overall tax rate "accounts in part for [Husband's] other income, gains, losses, and exemptions independent of the deferred compensation distribution, and should not be taken into account when calculating the amount taxed on the deferred compensation disbursement alone."

         Additionally, the trial court found that Husband's income had declined such that there was a significant variance, which constituted a material change in circumstances. With regard to Husband's obligation to pay private school expenses, the court found that Husband has the ability to pay these expenses and that it is in the best interest of the children for him to continue to do so. The court also found that "this voluntary support obligation is contractual in nature, resulting from the parties' Agreed Parenting Plan, and therefore this Court is not in a position to modify it." The court also found Husband in contempt for failing to pay alimony and child support and awarded Wife attorney's fees.

         As ordered by the trial court, Husband filed a child support worksheet that was based on his reduced income. Wife objected to Husband's worksheet on the basis that it included alimony payments as Wife's income, imputed income to Wife without evidence of job opportunities in the area, and did not reflect the actual number of parenting days Husband spent with the children. The trial court adopted Husband's worksheet and set Husband's child support obligation at $776 per month.

         Wife appealed arguing that the trial court erred in awarding her one-half of Husband's deferred compensation distribution reduced by 35% for estimated taxes, when his actual tax liability was less than 35%. Wife also asserted that it was in error for the court to continue to impute income to her for child support purposes.[1]

         In the second appeal, we held that the trial court failed to take into consideration Husband's actual income tax rate when awarding Wife an equal share (50%) of the deferred compensation benefits after taxes. See Ghorashi-Bajestani v. Bajestani, No. E2013-00161-COA-R3-CV, 2013 WL 5406859, at *11 (Tenn. Ct. App. Sept. 24, 2013) (hereinafter "Bajestani II"). Specifically, we found that Wife was not receiving 50%, after taxes, of Husband's annual deferred compensation, because Husband's actual tax rate was less than the amount being deducted from Wife's share.[2] On remand, the trial court was instructed to determine the correct tax rate for the years at issue and award Wife a judgment for the deferred compensation distributions, if any, she was entitled to receive but did not receive for each year. Additionally, we affirmed the imputation of income to Wife and the decision to not impute income to Husband.[3]

         Following remand, Wife filed a petition to modify the award of child support asserting, inter alia, that Husband pled guilty to criminal behavior since the trial court's prior order; thus, there had been a material and substantial change in circumstances such that a significant variance would occur upon recalculation of support. Wife also argued that the trial court should no longer impute income to her and should recalculate child support after adjusting her income. She argued that, should the court continue to impute income to her, it should also consider work-related child care expenses in setting the amount of child support.

         In his answer to this petition, Husband denied there had been a material change in circumstances and insisted there was no basis for modifying child support. Husband subsequently filed a counter-petition, asserting that he lacks the funds to pay for his children's private school tuition and asking to be relieved from this obligation.

         In an order entered in June 2014, the trial court addressed the issues that had been remanded and the new claims by the parties. The trial court found that Husband's tax rate in 2011 was 30.28% and his gross deferred compensation was $1, 343, 476. Based upon these facts, the court determined that Wife should have received $468, 335.75, one-half of Husband's 2011 after-tax deferred compensation income, but received only $436, 629.81. Thus, the trial court awarded Wife a judgment against Husband for $31, 705.91.

         For 2012, the court found that Husband's tax rate was 22.32% and the gross deferred compensation was $370, 340.88. Based upon these facts, the court determined that Wife was entitled to receive $147, 336 but only received $135, 169.95. Thus, the trial court awarded her a judgment against Husband for $12, 168.16.

         For 2013, the court found that Husband's tax rate was 21.73% and gross deferred compensation was $392, 050.97. Based upon these facts, the court determined that Wife was entitled to receive $153, 429.12 but only received $139, 634. Thus, the trial court awarded her a judgment against Husband for $13, 795.14.

         As the tax rate for 2014 had yet to be established, the trial court ordered that, for each year going forward, Husband was to present Wife's counsel with evidence of the actual tax paid, in order to determine the proper distribution owed to Wife.

         With regard to Wife's petition to modify child support, as a consequence of Husband's criminal charges, the court found that income should be imputed to him for child support purposes in the amount of $20, 833.33 per month. The court declined Wife's request to discontinue imputing income to her and declined to impute work-related childcare expenses.

         Regarding the children's private school, the trial court found that Husband is contractually obligated to pay for private school tuition. Although Husband presented evidence of a private school with lower tuition than the children's current school, the trial court found that it is in the best interests of the children to remain at their present schools.

         In March 2015, Husband filed a motion pursuant to Tenn. R. Civ. P. 52.02 to amend the findings and conclusions appearing in the trial court's June 2014 order and to determine the appropriate tax rate for 2014. Husband argued that the trial court derived his "actual tax rate" by "dividing the total income tax . . . paid by Husband in a relevant year by the total income . . . for the same year." Husband contended that the proper method for determining the actual tax rate in a given year is to "divid[e] the tax . . . by the taxable income . . . to express, in terms of a percentage, the ratio between the two." Husband alleged that the method the trial court used resulted in a lower percentage of tax. This method of calculation required Husband to share a higher portion of his deferred compensation than by using what Husband described as the proper method of calculating his tax rate. In support of this motion, Husband submitted an affidavit by Angela Dowis, a certified public accountant; however, at hearing on this motion, the trial court declined to rehear proof on the issue of Husband's deferred compensation.

         Shortly thereafter, Husband filed a petition to modify the most recent order contending there had been a material and substantial change in circumstances with respect to Husband's obligation to pay private school tuition. Specifically, Husband alleged that his daughter had recently been expelled from her private school. He sought to modify his obligation to pay private school tuition by equitably apportioning the responsibility between the parents or, alternatively, for the court to deviate downward from the child support guidelines to reflect the inequitable burden on Husband to pay private school tuition for the children's elementary and secondary school education.

         In October 2015, the trial court entered an order addressing the issues that had arisen since its June 2014 order. The court held that Husband's tuition obligation was contractual and that "[i]t is not the role of the courts to rewrite contracts for dissatisfied parties." Regarding Husband's tax rate, the court held that its calculations in the June 2014 order comply with the remand instructions; therefore, the trial court denied Husband's motion to amend. The court calculated Husband's tax rate on the deferred compensation for 2014 using the same method as the prior years and determined that Wife was entitled to a judgment of $4, 224.56 against Husband.

         Both parties raise issues for us to consider in this, the third appeal. Husband's issues are whether the trial court erred: (1) by holding that it lacked authority to modify Husband's obligation to pay private school tuition because it was a contractual obligation that he voluntarily assumed; (2) in defining the meaning of the term "tax rate"; and (3) by failing to admit the testimony of his expert witness, Angela Dowis. For her part, Wife contends Husband is barred from raising the private school tuition issue based on the law of the case doctrine. She also contends the trial court erred by continuing to impute ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.