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In re Ava B.

Court of Appeals of Tennessee, Knoxville

December 20, 2017


          Session September 12, 2017

         Appeal from the Juvenile Court for Knox County No. 112997 Timothy E. Irwin, Judge

         The parents in this action challenge inter alia, the juvenile court's decisions regarding calculation of the parents' income for child support purposes and the modification of the final co-parenting order. Because the evidence does not preponderate against the trial court's findings, we affirm.

         Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; Case Remanded.

          C. Scott Taylor and Margo J. Maxwell, Knoxville, Tennessee, for the appellant, Warren B.

          Ben H. Houston, II, Knoxville, Tennessee, for the appellee, Susan M.

          John W. McClarty, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Thomas R. Frierson, II, J., joined.



         I. BACKGROUND

         The parties in this action never married. Susan M. ("Mother")[1] worked as a mechanical engineer for the Tennessee Valley Authority ("TVA"). Warren B. ("Father") worked as an engineer for Southeastern Power Administration. Ava ("the Child") was born on May 28, 2007. At the time of the Child's birth, the parties resided together in Chattanooga, Tennessee; they remained together until early 2009, at which time the parties separated. After the separation, Mother moved twice, married twice, and had two more children.

         The parties coparented by agreement without the benefit of a court order until April 2013, when Mother sought to obtain a passport for the Child in order that her daughter could accompany her on a vacation trip to Germany. Upon Father's refusal to cooperate regarding the passport, Mother filed a petition seeking sole custody of the Child. Father responded by filing a petition to establish paternity. In May 2013, an order was entered by the juvenile court verifying the transfer of residential custody to Mother. Two months later, in July 2013, a paternity order was entered by the juvenile court's magistrate. The issue of coparenting was reserved for a future hearing. Child support calculation was referred to a magistrate.

         According to Father, in August 2013, Mother refused to participate in further transportation and informed Father that he would have to drive from Georgia to pick up and return the Child. During a hearing, Father claimed that this situation continued until December 2013, and his exercise of visitation required a nine-hour roundtrip.

         In early 2014, prior to her trip to Germany with the Child, Mother, then 46, left her employment with TVA. After a hearing in April 2014, the juvenile court entered a final order on August 11, 2014, naming Mother as the primary residential parent and setting forth a visitation schedule for Father. The order specifically recognized Father's plan to "move to Kingsport[, ] Tennessee where the Mother resides." The order addressed coparenting issues, providing that "[i]f and when [Father] in fact does move to the Kingsport[, ] Tennessee area, the coparenting shall be . . . on an eight day/four-day rotation with the [c]hild. . . ." On August 27, 2015, the magistrate entered his findings and recommendations addressing the setting of child support, medical support, retroactive support issues, and the termination of a 15% variance modification.

         Vacation Motion

         The 2014 order provided that the parties could alter the coparenting schedule by agreement. Mother did in fact allow Father to have additional unscheduled visitation by agreement. However, less than a year after the April 2014 hearing, Father filed a "Motion for Vacation Time, " seeking to modify the August 2014 order by granting Father half of the summer vacation and every other spring and fall vacation. The bases stated for this motion were Father's retirement and his move to Kingsport, which occurred in March 2015. Father argued that the earlier order made "no mention about spring, fall and summer vacations" and failed to provide him with any length of time greater than four consecutive days with the Child. He asserted that he would be unable to extensively travel with the Child if the order was not modified. In response, Mother contended that the 2014 order awarded Father time in excess of four consecutive days during the Christmas/winter vacation period. Mother further noted that she was willing to work with Father to allow an extended trip; Father acknowledged that Mother had worked with him to permit unscheduled visitation.

         A hearing was held on June 10, 2015, regarding Father's vacation motion. After hearing argument, the juvenile court observed that material changes had occurred: "Relocation of the father to Kingsport, moving within four miles of the mother's house, the retirement of the father, all of those are changes." The court further noted that "the parties haven't shown th[e] ability to get along since they left the court" pursuant to the prior order, and that "there's a little more work [that] needs to be done by the court." Accordingly, as to coparenting time, the court modified the earlier order as follows:

18-day shifts for the summer, two of them. Real simple, folks, first 18 days to be enjoyed by the mother, second 18 days enjoyed by the father, third 18 days to be enjoyed by the mother, fourth 18 days to be enjoyed by the father. The remainder shall be the start of the eight and four.
* * *
Eighteen, 18, 18, 18, you can go somewhere pretty far in 18 days. . . .
. . . I think 18, 18, 18 and 18 is better than half and half because at least the child will be being reunited with her mother and her siblings more often. . . .

         In its decision from the bench, the juvenile court did not specifically provide that the change from the prior order addressing coparenting time was in the best interest of the Child.

         On April 12, 2016, the juvenile court conducted a hearing on the parties' appeal of the magistrate's findings and recommendations regarding child support. At the hearing, the court observed that it did not "want the mother to be able to retire and live off the [C]hild's support, I don't think that's equitable, never have thought that was an equitable way to go. Mother's retirement is not very much. But . . . don't think she should be penalized for retiring if father gets to retire." The court entered a child support order declining Father's request to find that Mother was willfully or voluntarily unemployed. The court reasoned that since Father was retired at age 65, there was no reason that Mother also should not "retire" and not be gainfully employed at 46.


         Mother's gross income history is as follows: $94, 962.93 in 2009; $92, 738.05 in 2010; $90, 490 in 2011; $99, 333.30 in 2012; $95, 831.30 in 2013; $53, 813.30 in 2014; and $11, 892 in 2015. Her gross income declined sharply from $53, 813.30 in 2014 to $11, 892 in 2015 after she accepted a voluntary reduction in force offer ("RIF") from TVA.

         Prior to Mother's retirement from TVA, she was commuting from the Kingsport area to Knoxville every day. She asserts that the commute to Knoxville was not sustainable over the long term. Upon accepting the voluntary RIF offer, Mother became a stay-at-home mother. The record does not reveal any evidence that Mother has attempted to secure a comparable position in the Kingsport area.

         The juvenile court did not make a specific finding regarding whether Mother was willfully and voluntarily unemployed and declined Father's request that Mother's income be imputed at a rate above her actual income of $11, 892 for child support purposes. In the view of the court, the instant case was unusual in that both parents have the availability to spend time with the Child without the normal restraints posed by a work schedule.

         Capital Losses

         The juvenile court also determined that Father was not permitted to carry forward capital losses that occurred during the years 2007, 2008, and 2009 for the purposes of calculating his gross income in subsequent years for child support purposes. Father suffered a large capital loss of $1.4 million in the years 2007 to 2009. In calculating his child support obligation, Father's gross income without the capital loss carryover was $122, 184 in 2009; $144, 097 in 2010; $120, 456 in 2011; $133, 710 in 2012; $179, 345 in 2013; and $186, 026 in 2014. If the capital loss carryover is permitted, Father's adjusted gross income for child support purposes was $143, 379 in 2013; and $131, 549 in 2014. The juvenile court determined that Father's income for purposes of calculating child support in 2015 was $83, 405, which included Social Security income in the amount of $19, 328 imputed to him because he was eligible to draw this amount at the time of the child support hearing.[2] No capital loss carry forward issue arose in 2015 because Father had no capital gains to offset in that particular year.

         Both parties filed timely appeals. Father moved that this matter be transferred to the Sullivan County Juvenile Court. The ...

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