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.

In re Grace N.

Court of Appeals of Tennessee, Nashville

September 27, 2017

IN RE GRACE N.

          Session Date: May 16, 2017

         Appeal from the Juvenile Court for Davidson County No. PT-120820, 2010-184 Sheila Calloway, Judge

         This 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.

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

          D. Scott Parsley, Nashville, Tennessee and John J. Hollins, Jr., Franklin, Tennessee, for the appellant, Rachel N.

          Jeffrey Spark, Nashville, Tennessee, for the appellee, Julian G.

          Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.

          OPINION

          ARNOLD B. GOLDIN, JUDGE

         Background and Procedural History

         This is the second appeal in this matter between Rachel N. ("Mother") and Julian G. ("Father").[1] 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. Id.

         Following 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.

         Father 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.

          Concerning 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 2013:

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 home."
. . . .
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 underemployment.

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.

         Our 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.

         We also 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. Id.

         We also 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 *10.

         In 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.

         On 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.

         In an 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.

         With 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 child's birth.

         Concerning 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.

         On the 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.

         Concerning 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.

         After 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.

         Issues Presented

         On 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 independent research.
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 thereafter.
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.

         In addition to the foregoing concerns, Mother asks for attorney's fees incurred on appeal. We note that Father's brief also contains ...


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.