Session September 12, 2017
from the Juvenile Court for Knox County No. 112997 Timothy E.
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.
R. App. P.3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed; Case Remanded.
Scott Taylor and Margo J. Maxwell, Knoxville, Tennessee, for
the appellant, Warren B.
Houston, II, Knoxville, Tennessee, for the appellee, Susan M.
W. McClarty, J., delivered the opinion of the court, in which
D. Michael Swiney, C.J., and Thomas R. Frierson, II, J.,
W. MCCLARTY, JUDGE
parties in this action never married. Susan M.
("Mother") 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.
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.
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
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.
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
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
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. . . .
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
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.
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.
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.
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.
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. No capital loss carry forward issue arose
in 2015 because Father had no capital gains to offset in that
parties filed timely appeals. Father moved that this matter
be transferred to the Sullivan County Juvenile Court. The