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.

Fuller v. Fuller

Court of Appeals of Tennessee, Knoxville

July 10, 2019

ERIN ALFORD FULLER
v.
ROGER DARNELL FULLER

          Session May 21, 2019

          Appeal from the Chancery Court for Bradley County No. 2014-CV-272 Jerri Bryant, Chancellor

         This appeal concerns a redetermination of alimony on remand. Erin Alford Fuller ("Wife") sued Roger Darnell Fuller ("Husband") for divorce in the Chancery Court for Bradley County ("the Trial Court"). The case was tried, and Husband appealed the judgment. We determined that the Trial Court properly classified and valued Husband's trail income from his business in the property division but erred by then including, as part of Husband's income, the amount of trail income distributed as a marital asset.[1] We thus vacated the Trial Court's determinations regarding child support and alimony. On remand, the Trial Court found that Husband inflated his business expenses. The Trial Court found that Husband earned approximately $200, 000 per year and ordered him to pay Wife $1, 500 per month as alimony in futuro. Husband appeals. We hold that the Trial Court, in keeping with our instructions, properly excluded the trail income distributed as a marital asset in making its fresh determination of Husband's income. We find no reversible error in the Trial Court's finding as to Husband's income, nor do we discern any abuse of discretion in the Trial Court's alimony decision. We affirm the judgment of the Trial Court and remand for an award to Wife of her reasonable attorney's fees and costs incurred on appeal.

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

          David K. Calfee, Cleveland, Tennessee, for the appellant, Roger Darnell Fuller.

          James F. Logan, Jr., and Philip M. Jacobs, Cleveland, Tennessee, for the appellee, Erin Alford Fuller.

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

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE.

         Background

         This divorce matter is before us once again. To review, Wife and Husband were married in the state of California in 1988. Two children were born of the marriage, both of whom are now of majority age.[2] In December 2014, Wife filed for divorce. This case was tried over the course of two days in November and December 2015. Husband, who works in financial planning, was age 52 and Wife, a nurse, was 50. In January 2016, the Trial Court entered its final judgment, which Husband appealed. In Fuller v. Fuller, No. E2016-00243-COA-R3-CV, 2016 WL 7403791 (Tenn. Ct. App. Dec. 21, 2016), we affirmed, in part, and vacated, in part, the Trial Court's judgment. As pertinent to this appeal, we stated and instructed[3]:

         VI. Father's Income and Child Support

         Father also asserts that the trial court erred in determining the amount of his income for the purpose of setting child support. According to Father, the trial court failed to deduct the "ordinary and reasonable expenses of self-employment necessary to produce income" pursuant to the Tennessee Child Support Guidelines. See Tenn. Comp. R. & Regs. 1040-2-4-.04(3)(a)(3). Father appears to be correct because the trial court's only finding with regard to Father's income was that he "has income over the last two years of approximately two hundred thousand dollars, even though his summary exhibit on Exhibit 5 shows less than that." The trial court utilized the annual income amount of $200, 000 when calculating Father's child support obligation on the child support worksheet. The parties' tax records demonstrate that an average of $200, 000 for the two years prior to trial would be nearest to the gross revenue of Legacy without any deduction of ordinary and reasonable expenses as required by the guidelines.

         We also note another question concerning the trial court's determination of Father's income. In basing Father's income amount on the total revenue from Legacy, the court appears to have included the trail income that was also divided as a marital asset. As Tennessee Code Annotated § 36-4-121(b)(1)(E) (Supp. 2016) provides:

Property shall be considered marital property as defined by this subsection (b) for the sole purpose of dividing assets upon divorce or legal separation and for no other purpose; and assets distributed as marital property will not be considered as income for child support or alimony purposes, except to the extent the asset will create additional income after the division ....

         Ergo, the trail income distributed as marital property should not be considered as income for child support purposes. For these reasons, we conclude that the trial court's determination regarding Father's income and his resultant child support obligation must be vacated.

         We accordingly remand this matter to the trial court for a determination of the proper amount of Father's child support obligation. The court should make a determination regarding Father's income by deducting (1) any ordinary and reasonable expenses of self-employment necessary to produce income and (2) the amount of the trail income distributed as a marital asset. The court should consider, however, any additional income generated by this asset after the division. See Tenn. Code Ann. § 36-4-121(b)(1)(E); see also Ghorashi-Bajestani v. Bajestani, No. E2013-00161-COA-R3-CV, 2013 WL 5406859, at *5 (Tenn. Ct. App. Sept. 24, 2013) ("[T]he trial court did not err in failing to include the principal amount of the deferred compensation account as income for child support purposes, but the court should have considered any appreciation thereon or income stream generated therefrom as income in the calculation of child support."), perm. app. denied (Tenn. Mar. 5, 2014).

         VII. Alimony

         Father also contends that the trial court erred in its award of spousal support. The trial court awarded alimony in futuro to Mother in the amount of $1, 500 per month. Father asserts that the award is erroneous in type, length, and amount. Without addressing the specific arguments raised by Father, we again note that the trial court erred in its determination regarding the amount of Father's income for the reasons set forth above. See Tenn. Code Ann. § 36-4-121(b)(1)(E) ("[A]ssets distributed as marital property will not be considered as income for child support or alimony purposes, except to the extent the asset will create additional income after the division ...."). Inasmuch as the trial court considered the asset of trail income, which had been divided as marital property, as income to Father for the purpose of setting alimony, such determination is erroneous.

We therefore vacate the alimony determination and remand to the trial court with instructions to determine Father's income without consideration of the amount of the trail income distributed as a marital asset. The trial court should consider, however, any additional income generated by this asset after the division. See Tenn. Code Ann. § 36-4-121(b)(1)(E). Once Father's income has been established, the trial court can make a determination regarding alimony in accordance with the applicable statutory factors. See Tenn. Code Ann. § 36-5-121(i).

Fuller, 2016 WL 7403791, at *7-9 (footnote omitted).

         In August and September 2017, this matter was heard on remand. In December 2017, the Trial Court entered an order addressing the remanded issues. The Trial Court found that Husband inflated his business expenses and declined to find his tax returns accurate. The Trial Court stated in its order, in relevant part:

This cause came to be heard on the 29th day of August 2017 on remand from the Court of Appeals, for this Court to establish the income of Defendant after deducting ordinary and reasonable expenses to produce that income and the amount of trail income distributed as a marital asset. Previously, this Court had determined Defendant's income to be $200, 000 per year. On remand and after proof, the Court took the matter under advisement, retrieved the trial exhibits from the Court of Appeals and reviewed those exhibits. More particularly, this Court reviewed Exhibits 1, 5, 16, and 17 from the original trial. Additionally, the Court reviewed the transcripts from this matter.
It was originally difficult for this Court to determine the income of Defendant because this Court did not find Defendant's tax returns to be credible. When comparing his tax returns in Exhibit 5 with his budget in Exhibit 17, and his income and expense statements from Exhibit 1, the Court finds that Defendant uses the terminology "gross and net income" to mean different things at different times, depending on his purpose. For instance, on the 2014 tax return Defendant claimed his total income was $190, 484. He inappropriately stated his rental income and failed to include Schedule C information in his testimony. The Court will note the testimony from Defendant was that he charged his business $30, 000 per year for rent (which is income to him and reduced his business income), as well as an additional $6, 000 per year for rent, for a total rent of $36, 000 per year (income to him). It is unknown how much he allocated to depreciation. The health savings account in the amount of $6, 500 paid by the business and the self-employed insurance premium payments on his behalf were not necessary to produce income from the business and are considered income to him. This Court has not been provided a list of itemized deductions from Schedule A and therefore finds that $267, 000 is the gross income for the year 2014. Defendant has come forth with no additional information to prove the reasonableness and necessity of any of his deductions. For the year 2013, Defendant states his Schedule C income at $145, 459. However, the gross income on Schedule C for 2013 was $233, 150. It is noted the business pays for Defendant's automobile at $10, 497; that he deducts $30, 000 for an unknown reason; that his meals in the amount of $2, 738 are deducted and his "other expenses" in the amount of $15, 017 are deducted. There is no documentation to back up any of these deductions. On Schedule E where he did reflect his rent received in the amount of $36, 000 he also took out $6, 789 for depreciation, $261 for amortization which both should be added back to his $11, 659 net rent, and these added to his income would certainly put his 2013 income from Line 22 of his 2013 tax return in the $200, 000 range. Additionally, Defendant deducted $6, 450 for his health savings account, which was not necessary to produce his income as stated above. Defendant also deducted $10, 000 he put in his retirement and $11, 506 for self-employed health insurance premiums.
This Court does not find additional deductions in the amount of $30, 000 for 2014 to be supported by any proof and his car and truck expense should be added to his income. Exhibit 5 to the August 29, 2017 hearing shows that while this case was pending, Defendant produced $60, 000 less in commission in 2015 than he did in 2014.
The Court does not find Defendant's 2015 numbers to be accurate nor part of the proof in this case. There is no supporting documentation for his claimed $83, 354 in business expenses in 2014 nor his $87, 691 in business expenses for 2013. The Court has previously found that the trail, which is ...

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.