Session May 16, 2017
from the Juvenile Court for Davidson County No. PT-120820,
2010-184 Sheila Calloway, Judge
appeal stems from a juvenile court proceeding in Davidson
County. Mother challenges the entered parenting schedule and
raises a number of issues pertaining to the trial court's
child support calculations. For the reasons expressed herein,
we affirm in part, reverse in part, vacate in part and remand
for further proceedings consistent with this Opinion.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed in Part, Reversed in Part, Vacated in Part and
Scott Parsley, Nashville, Tennessee and John J. Hollins, Jr.,
Franklin, Tennessee, for the appellant, Rachel N.
Jeffrey Spark, Nashville, Tennessee, for the appellee, Julian
B. Goldin, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J.,
B. GOLDIN, JUDGE
and Procedural History
the second appeal in this matter between Rachel N.
("Mother") and Julian G.
("Father"). As the pertinent background facts are
detailed in In re Grace N., No.
M2014-00803-COA-R3-JV, 2015 WL 2358630 (Tenn. Ct. App. May
14, 2015), we restate them only briefly here. Mother and
Father met online while Father was working in France. In
re Grace N., 2015 WL 2358630, at *1. The two lived
together for a short period when Father returned to the
United States, and in January 2010, the parties' child,
Grace N., was born. Id. Father soon filed a petition
to establish parentage on January 13, 2010, and Mother filed
a counter-petition to set child support and parenting time.
a multi-day hearing, the trial court found that Father did
not dispute that Mother should be designated the primary
residential parent. Id. at *2. The trial court
determined that Mother was the "evident and obvious
choice" for such a designation, and the trial court
further determined that Mother should have sole
decision-making authority. Id. In addition to
adopting a parenting schedule that purported to give Father
85 days of parenting time, the trial court set Father's
child support at $1, 218.00 per month and calculated
retroactive support beginning in 2010. Id.
then appealed to this Court raising several issues. Among
other things, Father contended that the trial court had not
awarded him enough parenting time, that the trial court had
erred in setting current child support and child support
arrears, and that the trial court had erred in ordering
Mother to provide health insurance for the child.
Id. In addressing these and the other raised issues,
we affirmed the trial court's judgment in part and
reversed it in part. Concerning Father's grievance with
respect to his parenting time, we noted that the parenting
plan adopted by the trial court was not sufficient:
The parenting plan adopted by the trial court differs from a
"standard" parenting plan in that it does not
provide for overnight parenting time during the week; most of
the holiday parenting time is for less than twenty-four
hours; there is no provision for a fall break; and the
Christmas vacation parenting time is limited to less than
twenty-four hours on Christmas Eve and Christmas Day. With
the restrictions on Father's parenting time, it cannot be
said that he is able to enjoy the "maximum participation
possible" in his child's life. While the trial
court's decision may contain reasons for rejecting
Father's proposed week-on/week-off schedule, there is no
justification in the record for the minimal amount of
parenting time awarded to Father in the parenting plan
adopted by the trial court.
Id. at *5. In connection with this conclusion, we
observed that although the Child Support Guidelines
("Guidelines") presume that a child will reside
with the alternate residential parent at least 80 days a
year, the trial court had awarded Father only
"approximately" 68 days of parenting time when
measured against the Guidelines. Id. We accordingly
remanded the matter with instructions "to increase
Father's parenting time to at least the minimum
80 days presumed by the Guidelines." Id.
the trial court's child support calculations, we reviewed
several discrete sub-issues. First, we considered
Father's argument that Mother had been underemployed in
The trial court based current child support on a gross
monthly income for Mother of $2, 165.00, as reflected on her
2013 federal income tax return. Father argues that Mother
worked only part time in 2013 and "spent much of her
time acting as a contractor on her and her husband's new
. . . .
Mother acknowledges in her brief that Father argued at trial,
as he does on appeal, that Mother was voluntarily
underemployed. Yet, in its decision, the trial court states:
"There was no dispute as to the accuracy of Mother's
income." Thus, it appears that the court failed to
consider Father's argument with respect to
Id. at *6. Because we held that child support would
have to be recalculated when the trial court increased
Father's parenting time, we noted that the trial court
would have another opportunity to consider the issue of
underemployment at that time. Id.
review of the trial court's child support calculations
also involved an inquiry into Mother's "work-related
childcare costs." See Tenn. Comp. R. &
Regs. 1240-02-04-.02(29)(a) (defining such costs as the
"expenses for the care of the child for whom support is
being determined which are due to employment of either parent
or non-parent caretaker"). We noted that the trial court
had determined that it was appropriate to consider the
childcare expenses included on Mother's tax returns for
purposes of calculating retroactive child support. In re
Grace N., 2015 WL 2358630, at *6. Whereas Father had
argued that these expenses were not appropriate, we observed
that the trial court's written decision contained only a
general conclusion and did not specifically address their
propriety. Id. at *7. We further noted that several
comments by the trial judge indicated that the trial
court's personal views may have skewed the decision
regarding the reasonableness of such expenses. Id.
Because we held that these considerations manifested an abuse
of discretion, we remanded for a new hearing on work-related
childcare expenses. Id.
considered Father's argument that the trial court had
improperly attributed certain income to him. In particular,
we reviewed the trial court's decision to attribute
income to Father from bartering with his attorney. Although
there was no dispute that Father had performed home
maintenance services for his attorney in exchange for legal
services, the trial court had attributed the entirety of
Father's attorney's fees as income despite the fact
that the proof indicated that Father had not performed
sufficient in-kind services to cover the entire bill.
Id. at *10. Because the trial court had failed to
properly place a value on Father's services, we remanded
the issue of Father's income for reconsideration.
remanded the issue of Father's income for reconsideration
based on the trial court's erroneous presumption that
Father owned 50% of a rental property located at 600
Fatherland Street (the "Fatherland Property").
Whereas the Tennessee Code provides a presumption that
"at least one-half of all real . . . property that is
titled to or in the possession of the obligor is owned by the
obligor, " see Tenn. Code Ann. § 36-5-903,
we noted that a presumption of one-half ownership had been
overcome as the Fatherland Property deed reflected that the
property was jointly owned by Father and two other
individuals. In re Grace N., 2015 WL 2358630, at
addition to the foregoing concerns, we addressed several
other issues in the first appeal, including Father's
argument that he, not Mother, should be able to provide the
child's health insurance. We rejected Father's
assertion of error on the insurance issue and affirmed the
trial court's decision to order Mother to provide health
insurance for the child. Id. at *11. Remand
proceedings subsequently ensued in the trial court.
January 4, 2016, the trial court entered an order in an
effort to comply with our remand instructions regarding
Father's parenting time with the child. Therein, the
trial court concluded that the child's best interest
would be served by allowing Father to exercise 120 days of
parenting time a year. The trial court reached this
conclusion in light of the various factors outlined in
Tennessee Code Annotated section 36-6-106(a). As a general
matter, Father was given parenting time with the child from
"Thursday after school to Monday at school, "
"every other week." Father was also provided
parenting time with the child on Wednesday afternoons every
week. Although the parties' day-today schedule originally
applied to the child's summer vacation period, save for
giving Father two weeks in June and two weeks in July, the
trial court later entered an order that also gave Mother four
weeks of uninterrupted summer parenting time. Notably, the
adopted parenting plan did not disturb Mother's previous
designation as the primary residential parent, and it
specifically provided that she retained decision-making
authority with respect to the child's educational
decisions, non-emergency health care, religious upbringing,
and extracurricular activities. Although the January 4 order
did not address the various child support issues that we had
remanded, it stated that such issues would be addressed after
a separate evidentiary hearing was held.
order entered on August 8, 2016, the trial court addressed
the outstanding issues pertaining to child support. In
outlining the scope of its review, the trial court began its
August 8 order by noting as follows:
[T]his Court conducted a new hearing on work-related child
care expenses, hearing testimony and receiving evidence on
the reasonableness of Mother's work related child care
expenses incurred since the Child's birth. This Court
also conducted a re-hearing on the issue of Mother's
underemployment, hearing testimony and receiving evidence on
whether Mother has been voluntarily underemployed since the
child's birth. This Court also considered evidence
regarding the parties' current income including the value
of any income that Father realized from his ownership
interest in the Fatherland Street property, its sale, and the
value of any barter for attorney's fees by Father with
his current counsel.
respect to the issue of Mother's underemployment, the
trial court held that the evidence supported a finding that
Mother was voluntarily underemployed. Specifically, it
determined that she had the capacity to earn at least $70,
000.00 per year for 2010 and $80, 000.00 or more per year as
of January 2012 and thereafter. The trial court observed that
such earnings were less than Mother had earned before the
the issue of Mother's work-related childcare expenses,
the trial court held that "Father should not have to
underwrite Mother's use of child care for anything other
than employment." It also opined that "the amount
Mother spent on childcare was not reasonable given the
parties' joint income or their lifestyle." Upon
making these statements, the trial court reduced Mother's
childcare costs to $550.00 per month. It further held that no
work-related childcare expenses should be considered past
August 2015, the date that the child entered kindergarten.
issue of the Fatherland Property, the trial court imputed
income of $2, 700.00 to Father in 2014. In reaching this
decision, the trial court found that Father did not
participate in the day-to-day management of the property. It
further determined that none of the rental income had passed
through his hands. According to the trial court, the evidence
supported the finding that Father simply received $2, 700.00
when the Fatherland Property was sold.
the issue of Father's barter income, the trial court
observed that Father and his attorney had agreed that $2,
925.00 was a fair value for Father's home maintenance
services. The trial court agreed that this amount was
reasonable, and it imputed the amount as income to Father in
2014 for purposes of calculating child support.
making the foregoing findings and conclusions, the trial
court calculated child support and based its calculations, in
part, on the income Father had represented in his tax returns
from 2010-2015. As a part of its support calculations, the
trial court rejected Mother's request to impute $837.84
in annual income to Father for the cell phone fringe benefit
he received from his employer. The trial court also held that
Father, not Mother, would provide health insurance for the
child. Moreover, all non-insured out-of-pocket medical
expenses were ordered to be shared as follows: Mother (63%)
and Father (37%). This appeal followed.
appeal, Mother raises several issues for our review. She
generally questions the scope of the trial court's
actions on remand and raises the following concerns, which we
have reworded for clarity:
1. Whether the trial court erred when it made new
designations of primary residential parent and major decision
maker, conducted a best interest analysis that contradicts
that of the original trial judge, and entered a parenting
schedule that is not in the child's best interest.
2. Whether the trial court erred in its determination of
Father's income with respect to the Fatherland Property.
3. Whether the trial court erred in its determination of
Father's barter income.
4. Whether the trial court erred when it excluded certain
income amounts that had been attributed to Father prior to
the first appeal and which had been based on Father's
sworn representations of income.
5. Whether the trial court erred when it excluded the
musician profit income claimed by Father in 2015.
6. Whether the trial court erred when it excluded
Father's cell phone fringe benefit from his income.
7. Whether the trial court erred in determining that Mother
has been voluntarily underemployed since July 2010 and in
imputing income to her based on the trial court's
8. Whether the trial court erred in determining that
Mother's work-related childcare costs should be reduced
from July 2010 through July 2015 and eliminated altogether
for the first six months of 2010 and from August 2015 and
9. Whether the trial court erred in allowing Father to
provide health insurance for the child and in modifying the
equal sharing of out-of-pocket uncovered medical expenses.
addition to the foregoing concerns, Mother asks for
attorney's fees incurred on appeal. We note that
Father's brief also contains ...