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Schwager v. Messer

Court of Appeals of Tennessee, Jackson

September 27, 2019

ANDREA (MESSER) SCHWAGER
v.
TIMOTHY SCOTT MESSER

          Session: June 18, 2019

          Appeal from the Circuit Court for Shelby County No. CT-004762-08 Jerry Stokes, Judge.

         In this post-divorce action concerning modification of the father's child support obligation, the trial court determined that a significant variance existed between the parties' incomes at the time of the modification hearing and the amount of income the parties earned at the time of the divorce. The trial court modified the father's child support obligation accordingly. The trial court declined, however, to modify the father's child support obligation for any time period prior to the filing of the mother's modification petition in 2015 despite language in the parties' agreement providing that recalculation would take place in 2011. The trial court also ordered that the father would pay 65% of the children's private school tuition and the mother would pay 35%. The trial court further awarded to the mother a portion of her attorney's fees and expert witness fees incurred up to the time of the hearing. The mother has appealed. Discerning no reversible error, we affirm the trial court's judgment in all respects. We decline to award attorney's fees to either party on appeal.

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

          Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellant, Andrea (Messer) Schwager.

          Daniel Loyd Taylor and John N. Bean, Memphis, Tennessee, for the appellee, Timothy Scott Messer.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Carma Dennis McGee, J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE.

         I. Factual and Procedural History

         The plaintiff, Andrea (Messer) Schwager ("Mother"), filed a complaint for divorce in the Shelby County Circuit Court ("trial court") on September 26, 2008. Mother sought a divorce from her husband, Timothy Scott Messer ("Father"), based on irreconcilable differences or, in the alternative, Father's inappropriate marital conduct. Both parties are practicing dentists. The parties had two children, J.M., who was born in 2002, and A.M., who was born in 2004 ("the Children"). Mother asked the trial court to name her primary residential parent of the Children and award her alimony, child support, and attorney's fees and expenses. Mother also requested that the trial court equitably divide the parties' marital property and debt.

         The parties entered into a Marital Dissolution Agreement ("MDA") on February 5, 2009. On February 11, 2009, the trial court entered a final decree of divorce, which incorporated the MDA executed by the parties. The trial court's decree further incorporated an agreed permanent parenting plan ("PPP") for the Children. The PPP provided, inter alia, that the parties would make educational and other decisions jointly. The PPP also initially relieved Father from paying his full child support obligation to Mother to account for his responsibility to pay a greater share of his income toward marital debt. The relevant provision from the PPP regarding assessment of child support reads as follows:

The parties agree that this child support amount is a downward deviation to allow Father two years to pay a greater share of his income toward the marital debt that Father is obligated to pay in the Marital Dissolution Agreement. Upon the conclusion of two years from the date of entry of the Final Decree of Divorce, the parties shall exchange their financial information and proof of income, and the child support shall be recalculated. The parties agree that at that time, Father shall not use the aforementioned justification for a continued deviation.

         Accordingly, Father was to pay to Mother $1, 000.00 per month in child support, beginning on February 1, 2009. The parties' child support worksheet attached to the PPP demonstrated that Father's actual child support obligation would have been $1, 205.00 per month.

         Six years later, on May 28, 2015, Mother filed a petition to modify child support, asking the trial court to modify the child support award from February 2011 forward to reflect Father's true child support obligation following the two-year grace period stipulated in the PPP. Mother also sought an increase in Father's child support obligation based on the fact that a 15% variance or more existed between Father's actual obligation and the initial child support obligation established in the PPP. Mother further requested that the trial court award her reasonable attorney's fees and expenses.

         Following various discovery motions filed by the parties, on September 16, 2015, Mother filed a petition requesting that Father be held in criminal contempt due to his verbal abuse of Mother via text messages. Mother concomitantly filed an amended petition seeking modification of Father's child support obligation and contribution from Father for the Children's private school tuition. Mother requested that the trial court require Father to continue paying one-half of the Children's private school tuition and related fees and costs as he had done in previous years. Mother also sought attorney's fees and expenses related to the motion. Mother further requested that the trial court refer this matter to the Shelby County Divorce Referee.

         Following further discovery motions, on February 10, 2016, Mother filed a motion in limine concerning interpretation of the child support provision within the parties' PPP. Mother renewed her request that the child support calculation contemplated in the PPP apply from 2011 forward. On March 22, 2016, the trial court entered an order with regard to Mother's motion, determining that the parties' PPP contained an enforceable provision requiring recalculation of child support utilizing income information available in February 2011. The court stated that the recalculated child support amount "shall apply from February 2011 until further modified by the court." The court reserved the issue of whether to grant modification of Father's child support obligation in accordance with Mother's May 2015 petition and September 2015 amended petition. The court noted that if such modification were necessary, the court retained jurisdiction to make such modification retroactive to the date of the petition. On April 12, 2016, the trial court denied Mother's petition seeking to hold Father in criminal contempt.

         On May 19, 2016, the trial court issued an order granting Father the right to proceed with an interlocutory appeal concerning the court's ruling that Father's child support obligation would be recalculated from February 2011 forward. This Court, however, subsequently denied Father's application for interlocutory appeal on June 14, 2016.

         Following the filing of additional discovery and other pretrial motions, the divorce referee conducted a child support hearing spanning seven non-consecutive days in early to mid-2017. On May 8, 2017, the divorce referee issued the following ruling:

Child support for 2011 would be set at $2236.06 per month.
Child support for 2015 would be set at $2735.44 per month plus 1/2 private school tuition.
Child support for 2016 would be set at $3072.00 per month plus 1/2 private school tuition.
The back child support award from 2011-2016 is $105, 046.88 5 months in 2017 = $115, 406.88 (Father should be given credit for private school paid prior to filing in 2015).

         The referee reserved the issue of whether an award of attorney's fees to Mother would be appropriate.

         On May 24, 2017, Father filed a motion seeking to have the divorce referee decide all matters referred, including attorney's fees. On July 11, 2017, the trial court granted Father's motion. However, both parties subsequently appealed the divorce referee's May 8, 2017 ruling. On September 5, 2017, the divorce referee entered an addendum to the May 8, 2017 ruling, awarding Mother attorney's fees in the amount of $25, 000.00. The parties then filed amended motions appealing the divorce referee's ruling.

         On November 15, 2017, the trial court entered an "Order of Recusal of Trial Judge" based on the purported appearance of a conflict of interest. The court's order specified that the court clerk had accordingly transferred the action from Division V to Division VI of the Shelby County Circuit Court.

         On May 15, 2018, the trial court, with Judge Jerry Stokes now presiding, entered an order concerning both parties' appeals of the divorce referee's ruling. In the order, the trial court restated the language of the PPP regarding the recalculation of child support in 2011, noting the PPP's silence concerning who must initiate the recalculation process. The court found that after two years had elapsed from entry of the divorce decree, neither party initiated the process of recalculating child support or exchanging financial information. The court also noted that although the parties had agreed to divide the expense of private school tuition for the two minor Children equally, the PPP contained no provision governing such expenses.

         As the trial court recognized, the main issue in this matter was the determination of Father's actual income from his dental practice. For purposes of ascertaining Father's income, Mother retained a financial expert, Robert Vance, CPA. Meanwhile, Father relied on the assistance of a different CPA, Kevin Thomas. The trial court noted that while the parties' experts' calculations of Father's income differed considerably, the experts agreed that Father had improperly classified various personal expenses as business expenses. The extent of Father's misclassification of expenses, however, was disputed. For example, the experts disagreed on whether classifying costs related to personal vacations, personal vehicles, and Father's truck-pulling business as expenses of Father's dental practice was proper. The trial court ultimately credited Mr. Vance's opinion as a more accurate reflection of Father's income than Mr. Thomas's opinion. The court thus determined Father's income for the time period of February 2009 to February 2011 to be approximately $40, 000.00 per month. The court also determined that both parties' income had sufficiently increased so as to constitute a significant variance from the amount of their respective incomes at the time of the divorce.

         In its order, the trial court further found that Mother had incurred considerable attorney's fees "mainly because Father did not provide accurate and timely records of his income." The court accordingly awarded to Mother $55, 000.00 in attorney's fees, as well as $30, 000.00 in expert fees for work conducted by Mr. Vance. The trial court denied Father's request to exclude Mr. Vance's testimony and agreed with Mr. Vance's conclusion that Father's truck-pulling hobby failed to constitute a legitimate business expense for tax purposes. The trial court noted that the truck-pulling hobby and any advertisement provided thereby typically occurred outside the jurisdiction of Father's dental practice.

         The trial court also denied Father's request for a credit against child support owed for Father's previous, voluntary payment of private school tuition. The trial court modified the parties' PPP to add language covering payments of private school tuition, such that Father would be responsible for 65% of the Children's private school tuition and expenses and Mother would be responsible for 35% of those expenditures.

         The trial court ultimately granted Mother's petitions requesting modification of child support. The court found that for the period of February 11, 2011, to May 28, 2015, Father's child support obligation should have been $3, 200.00 per month. Furthermore, the court found that Father's child support obligation from May 2015 through May 2018 would also be $3, 200.00 per month. The court granted to Mother a judgment for an arrearage against Father in the amount of $79, 200.00 for child support owed during the period of May 2015 to May 2018. The court, however, agreed with Father's contention that he should not be held accountable for retroactive child support for the February 2011 to May 2015 period because no petition for modification had been filed during that time.

         On June 5, 2018, Mother filed a motion to alter or amend the trial court's May 15, 2018 order, asserting that the issue of whether recalculation of child support back to February 2011 would occur was not properly before the court. Mother contended that the court had previously entered an order on March 22, 2016, determining that child support would be recalculated as of February 2011 by utilizing the income information that would have been available at that time. Father had sought an interlocutory appeal of that order, which was denied. According to Mother, Father had repeatedly maintained that this issue could not be addressed until an appeal could be taken following a final order. Mother requested that the March 22, 2016 ruling granting recalculation of child support back to February 2011 be applied and that the court's May 15, 2018 order be amended to grant an additional amount of arrearage for the period of February 2011 to May 2015.

         On June 27, 2018, Father responded to Mother's motion to amend the May 15, 2018 order. Father argued that judicial discretion allowed trial courts to correct interlocutory orders to bring them into compliance with applicable law. Father proceeded to argue that because the March 22, 2016 order to impose retroactive child support ran afoul of applicable precedent and Tennessee Code Annotated § 36-5-101(f)(1), the trial court acted within its discretion to sua sponte remove the nonconforming ruling in its later order entered on May 15, 2018.

         The trial court entered an order on September 5, 2018, concerning Mother's motion to alter or amend the May 15, 2018 ruling. The trial court defined the dispositive issue as follows:

[W]hether Mother should be awarded retroactive child support commencing with the filing of her petitions, or whether Mother should be awarded child support based upon the enforcement of the agreement of the parties as stated in the PPP, even if the child support award predates the filing of the petitions.

         The trial court agreed with Father that no retroactive child support should be paid for the period between February 2011 and May 2015, the date upon which Mother's first modification petition was filed. In so ruling, the trial court relied upon the language of Tennessee Code Annotated § 36-5-101(f)(1)(A) prohibiting retroactive modification of child support and the Supreme Court's opinion in Rutledge v. Barrett, 802 S.W.2d 604, 606 (Tenn. 1991), which recognized such prohibition. The trial court held that Mother's requested enforcement of the parties' PPP to receive child support owed from February 2011 to May 2015 would amount to an impermissible grant of retroactive child support under the statute. The court therefore reaffirmed its award of a judgment to Mother in the amount of $79, 200.00 predicated upon the date of filing of Mother's original petition to modify on May 28, 2015. Mother timely appealed.

         II. Issues Presented

         Mother presents the following issues for our review, which we have restated slightly:

1. Whether the trial court erred by declining to enforce the parties' agreement to recalculate child support as of February 2011.
2. Whether the trial court erred by declining to assess interest on Father's child support arrearage.
3. Whether the trial court erred by ordering Father to pay only 65% of the Children's private school expenses.
4. Whether the trial court erred by failing to order Father to pay private school costs retroactive to the filing date of Mother's petition.
5. Whether the trial court erred by declining to award Mother all of her attorney's fees and expenses and expert witness fees.
6. Whether this Court should award Mother her reasonable attorney's fees and expenses related to the appeal.

         Father presents the following additional issues for our review, which we have also restated slightly:

7. Whether the trial court erred by awarding to Mother a portion of her attorney's fees and expert witness fees.
8. Whether this Court should award to Father his reasonable attorney's fees and expenses related to this appeal.
9. Whether the trial court erred by determining Mr. Vance's expert testimony concerning Father's income and expenses to be credible.
10. Whether the trial court erred by denying Father's motion to strike Mr. Vance's testimony concerning advertising.
11. Whether the trial court erred in its determination of Mother's income for child support purposes.

         III. Standard of Review

         We review a non-jury case de novo upon the record with a presumption of correctness as to the findings of fact unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). "In order for the evidence to preponderate against the trial court's findings of fact, the evidence must support another finding of fact with greater convincing effect." Wood v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). We review questions of law de novo with no presumption of correctness. See Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins, 224 S.W.3d 675, 678 (Tenn. Ct. App. 2006). The trial court's determinations regarding witness credibility are entitled to ...


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