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Vance v. Vance

Court of Appeals of Tennessee, Nashville

March 16, 2018

CHARLES MICHAEL VANCE, II
v.
ANGELA MICHELLE TAYLOR VANCE

          Session January 11, 2018

         Appeal from the Circuit Court for Davidson County No. 08D-2882 Phillip R. Robinson, Judge

         The issues on appeal involve the proper number of days upon which to base the calculation of child support, the propriety of the award of extraordinary educational expenses under the parties' permanent parenting plan, and attorney's fees. Having determined that the trial court erred in its determination of child support and extraordinary educational expenses, we affirm in part, and vacate and remand in part.

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

          Pamela A. Taylor, Gregory D. Smith, and Brenton H. Lankford, Nashville, Tennessee, for the appellant, Angela Michelle Taylor Vance.

          Michael K. Parsley and D. Scott Parsley, Nashville, Tennessee, for the appellee, Charles Michael Vance, II.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         Factual and Procedural Background

         Charles Michael Vance, II, ("Father") and Angela Michelle Taylor Vance ("Mother") are the parents of Charles Michael ("Michael"), born in 2003, and Catherine Danielle ("Dani"), born in 2007. On March 4, 2009, Father and Mother were divorced by a final decree incorporating a marital dissolution agreement and permanent parenting plan.

         The permanent parenting plan stated that, "Each parent is the primary residential parent during his or her time with the children as they have equal residential time." Father had 182 residential days with Dani and 183 residential days with Michael; Mother had 182 residential days with Michael and 183 residential days with Dani. The day-today schedule provided for the children to be with one parent for a week and then switch to be with the other parent, with a mid-week overnight visit with the alternate parent. Holidays were equally divided; the parenting plan provided that, "Michael shall spend every President's Day with the Father and Dani shall spend every President's Day with the Mother." Vacations were divided equally between the two parents.

         All major decisions were to be joint. However, the plan stated that, "[i]n the event the parents cannot agree, then Father shall [have] authority to make the final decision." With respect to schooling, the permanent parenting plan includes the following provision:

The parties acknowledge that their oldest child, Michael, is currently attending kindergarten at David Lipscomb Elementary, and that for continuity and stability purposes following the divorce, they intend for him to remain at David Lipscomb Elementary through the end of first grade, which is the 2009-2010 academic year. The parties agree that commencing April 1, 2009, and through the end of the 2009-2010 academic year, they shall each pay one-half (50%) of Michael's private school costs, including, but not limited to, tuition, fees, books, lunches and other school-required expenses. However, the parties acknowledge that their agreement for Michael to attend David Lipscomb Elementary through the end of his first grade year shall in no way be used by either party to establish a precedent or standard for either child to attend David Lipscomb Elementary or any other private school in the future or what percentage the parents would share, nor shall it be used by either party to attempt to establish a precedent in any argument to the Court. In the event either child attends private school beyond Michael's first grade year, it shall only be by mutual agreement of the parties for that particular year in question.

         Father's gross monthly income at the time of the divorce was $5, 589. Mother's gross monthly income was $12, 500. Mother was ordered to pay Father child support in the amount of $897 per month.

         On June 4, 2013, Father filed the petition for modification at issue in this appeal. Father asked that the parties' parenting time be modified as described in the petition (around vacations and holidays). (Father eventually dropped this part of the petition.) He also requested an increase in Mother's child support obligation based upon an increase in her earnings and asked the court to require Mother to share pro rata in extraordinary educational expenses. Father petitioned the court to make these changes retroactive to the filing of the petition.

         The case was heard on January 25, 2017, and the court heard testimony from Mother and Father. In an order entered on February 21, 2017, the trial court found that Mother was the primary residential parent of Dani, Father was the primary residential parent of Michael, and that there was "a significant variance to justify review and modification of the Mother's child support obligation which the Court finds to be $2, 100 per month." On the issue of extraordinary educational expenses, the trial court found the parties' provision requiring mutual agreement on private school to carry "no force and effect" and determined that the issue of private schooling was "clearly under the control of the Court." The trial court ruled that the parties "shall be responsible for their pro rata share of the children's tuition, books, fees and other reasonable and necessary expenses associated with private elementary and secondary schooling." The trial court ordered that the increase in child support and the award of extraordinary educational expenses would be retroactive to January 1, 2015. This decision resulted in a judgment for retroactive child support in the amount of $31, 278 and for tuition arrears in the amount of $57, 146. The court awarded Father his reasonable attorney fees.

         Issues on Appeal

         Mother raises the following issues on appeal:

1. Whether the trial court erred in setting child support based on 183 and 182 days, respectively, and not on 182.5 days.
2. Whether the trial court erred in deviating from the child support guidelines based on extraordinary educational expenses.
3. Whether the trial court erred in retroactively applying the deviation for extraordinary educational expenses.
4. Whether the trial court erred in awarding Father his attorney fees incurred in prosecuting his petition.
5. Whether the trial court erred in not awarding Mother her attorney fees incurred in defending Father's petition.
6. Whether Mother should be awarded her attorney fees on appeal.

         Father asserts that he should be awarded his attorney fees on appeal.

         Analysis

         (1) Child Support

         Mother argues that the trial court erred in its calculation of child support.[1] In particular, Mother asserts that the trial court erred in using 183 and 182 days for each child in calculating child support instead of 182.5 days because the parties spent an equal amount of time with each child.

         We review the trial court's findings of fact de novo with a presumption of correctness unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Milam v. Milam, No. M2011-00715-COA-R3-CV, 2012 WL 1799029, at *3 (Tenn. Ct. App. May 17, 2012). With respect to the calculation of child support, the following principles apply:

Setting child support is a discretionary matter. See State ex rel. Coleman v. Clay, 805 S.W.2d at 755. Accordingly, we review child support decisions using the deferential "abuse of discretion" standard of review. This standard requires us to consider (1) whether the decision has a sufficient evidentiary foundation, (2) whether the court correctly identified and properly applied the appropriate legal principles, and (3) whether the decision is within the range of acceptable alternatives. See BIF v. Service Constr. Co., No. 87-136-II, 1988 WL 72409, at *2 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application filed). While we will set aside a discretionary decision if it rests on an inadequate evidentiary ...

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