Session: June 18, 2019
from the Circuit Court for Shelby County No. CT-004762-08
Jerry Stokes, Judge.
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.
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.
Loyd Taylor and John N. Bean, Memphis, Tennessee, for the
appellee, Timothy Scott Messer.
R. Frierson, II, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Carma Dennis McGee,
R. FRIERSON, II, JUDGE.
Factual and Procedural History
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.
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.
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.
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
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.
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
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.
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
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).
referee reserved the issue of whether an award of
attorney's fees to Mother would be appropriate.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
[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
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.
presents the following issues for our review, which we have
1. Whether the trial court erred by declining to enforce the
parties' agreement to recalculate child support as of
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
5. Whether the trial court erred by declining to award Mother
all of her attorney's fees and expenses and expert
6. Whether this Court should award Mother her reasonable
attorney's fees and expenses related to the appeal.
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
11. Whether the trial court erred in its determination of
Mother's income for child support purposes.
Standard of Review
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