                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  March 27, 2013 Session

                      IN RE: JAIDEN C.W. and CAIDEN J.W.

               Direct Appeal from the Juvenile Court for Coffee County
                      No. 07J-1623    Timothy R. Brock, Judge


                  No. M2012-01188-COA-R3-JV - Filed April 11, 2013


This is the second appeal of this case, involving the issue of child support and arrears. In
In re Jaiden C.W., No. M2010-01105-COA-R3-JV, 2011 WL 2306057 (Tenn. Ct. App. June
7, 2011), this Court vacated the trial court’s determination of Appellant Father’s child
support obligation because the trial court did not base its determination on Father’s actual
income. Upon remand, the trial court interpreted the law of the case to limit its review only
to Father’s income, and to negate any consideration of other variables affecting child support.
Because the trial court misinterpreted the law of the case to limit its review of the parties’
actual circumstances, we vacate the order on child support and remand for reconsideration.
Vacated and remanded.


Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Juvenile Court Vacated and
                                     Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.

Greg W., Manchester, Tennessee, Pro Se.

Eric J. Burch, Manchester, Tennessee, for the appellee, Jessica J.

                                          OPINION

       A full recitation of the relevant facts is set out in this Court’s previous opinion, In re
Jaiden C.W., No. M2010-01105-COA-R3-JV, 2011 WL 2306057 (Tenn. Ct. App. June 7,
2011) (“Jaiden I”). Appellee Jessica J. (“Mother”) and Appellant Greg W. (“Father”) are
the unmarried parents of two minor children, Jaiden C.W. and Caiden J.W., who were born
in 2006.1 While the parties were together, Father provided Mother $400 per month in child
support. Jaiden I, 2011 WL 2306057, at *1. However, the parties’ relationship ended in
October 2007, after which time Father ceased payment of child support. Id. In November
2007, Father filed a petition to establish paternity of the children and for designation of
primary residential parent. Id. Mother counter-petitioned for child support. Id.

       On August 18, 2008, the trial court entered an order, providing that Father’s “child
support obligation shall be set at $329.00 per week.” As discussed in Jaiden I, the August
18, 2008 order was an “order of temporary child support . . . setting Father’s child support
obligation at $329.56 per week based on a monthly gross income of $8,917.00.” Jaiden I,
2011 WL 2306057, at *4. In setting support in the August 18, 2008 order, the trial court
imputed $29,300 income to Mother. Mother appealed the imputation of income in Jaiden
I; however, this Court declined to overturn the juvenile court’s imputation of income for the
relevant time period “[b]ecause Mother . . . [did not] provide reliable evidence of her income
or income potential from October 1, 2007, to August 22, 2008 [i.e., the effective date of the
August 18, 2008 order]. Id. at *3. After filing various motions, a final hearing was set for
March 12, 2009.

        After hearing, the court found that the parties primarily resided together from the birth
of the children until February 1, 2007, and that the parties equally supported the children
from February 1, 2007, until October 1, 2007. Id. The court thus concluded that no child
support was due prior to October 1, 2007. Id. Father did, however, owe a child support
arrearage of $21,356.63 for the period beginning October 1, 2007, and ending September 28,
2009. Id. The juvenile court, in its amended final order, entered a judgment in favor of
Mother for $21,356.63, calculated Father's prospective child support obligation, and declined
to award attorney's fees to either party. Id. Father timely appealed. In Jaiden I, this Court
noted that, although the August 18, 2008 order was not a final order, “[a]t the final trial . .
. the juvenile court nevertheless relied exclusively on the August 19 order—despite the
presentation of evidence showing Father ceased making $107,000 in November 2008 . . . .”
Id. at *4. Accordingly, in the first appeal, this Court affirmed the trial court in all respects
except as to the calculation of Father’s child support arrearage. On that issue, this Court
vacated the trial court, specifically holding that:

                The juvenile court entered an order of temporary child support
                on August 18, 2008, setting Father's child support obligation at
                $329.56 per week based on a monthly gross income of
                $8,917.00. The order, effective August 22, 2008, specifically

        1
          It is the policy of this court to use the initials of children and parties involved in juvenile
court actions to protect the privacy of the children involved.

                                                  -2-
             reserved all remaining issues regarding child support arrearages
             for trial and did not resolve the outstanding issue of paternity.
             The order therefore was not a final judgment. At the final trial
             in the matter, the juvenile court nevertheless relied exclusively
             on the August 18 order—despite the presentation of evidence
             showing Father ceased making $107,000 in November 2008—to
             determine Father owed a child support arrearage of $8,082.12
             for the period of August 22, 2008, to September 28, 2009.

             *                                 *                            *

             In this case, Father was unemployed for a significant period of
             time pending the first trial. This undisputed fact appears to have
             been disregarded by the juvenile court. Because the “fairness of
             a child support award depends on an accurate determination of
             both parents' gross income or ability to support,” Massey v.
             Casals, 315 S.W.3d 788, 795 (Tenn. Ct. App. 2009), we
             conclude the juvenile court should have accounted for this
             period of unemployment when calculating Father's child support
             arrearage. The existence of a temporary order setting child
             support pending trial does not bar reexamination and retroactive
             modification of the award at trial; rather, a temporary order of
             child support is an interlocutory order subject to retroactive
             modification . . . . If the evidence at trial demonstrates
             developments subsequent to the entry of the temporary order
             undermine its calculation, the court should modify the award to
             reflect the parties' actual circumstances. We must conclude the
             juvenile court erred in calculating Father's child support
             arrearage from August 22, 2008, to September 28, 2009, without
             taking into account the approximately nine-month period of time
             in which he was unemployed. We accordingly vacate the
             juvenile court's award on this single issue and remand for further
             consideration.

Jaiden I, 2011 WL 2306057, at *4– *5 (footnotes and some internal citations omitted).

      Upon remand, on September 20, 2011, Father’s attorney prepared and submitted a




                                            -3-
letter to the trial court.2 The letter, which was filed in the trial court on September 26, 2011,
states Father’s position regarding this Court’s holding in Jaiden I as follows:

                       The Court of Appeals remanded for a determination of
                child support arrearage. . .between August 22, 2008 and
                September 28, 2009, taking into consideration that [Father] was
                not earning $107,000 during that entire period. The Court of
                Appeals found that the Juvenile Court should have considered
                [Father’s] actual income from unemployment and earning
                $900.00 [per] week when he resumed employment . . . .

Father attached a child support worksheet to this letter. Concerning arrears, the letter and
attached worksheet summarize Father’s position as follows:

                For the period of August 22, 2008 through November 7, 2008,
                [Father’s] income was $107,000 and he had 106 days of
                parenting time. . . . [Father] was obligated to pay child support
                in the amount of $246.93 per week for 11 weeks or a total of
                $2,716.23.

                *                                           *                                 *

                       On March 12, 2009, the juvenile court. . .awarded 156
                days of parenting time to [Father]. Prior to that time, between
                November 8, 2008 and March 12, 2009 (18 weeks), there was a
                change in father’s income as he began drawing unemployment


        2
         We note that, although Father was represented by counsel at the trial of this matter, he has chosen
to proceed pro se in this appeal. It is well settled that pro se litigants are held to the same procedural and
substantive standards to which lawyers must adhere. As recently explained by this Court:

                Parties who decide to represent themselves are entitled to fair and equal
                treatment by the courts. The courts should take into account that many pro
                se litigants have no legal training and little familiarity with the judicial
                system. However, the courts must also be mindful of the boundary between
                fairness to a pro se litigant and unfairness to the pro se litigant's adversary.
                Thus, the courts must not excuse pro se litigants from complying with the
                same substantive and procedural rules that represented parties are expected
                to observe.

Jackson v. Lanphere, No. M2010–01401–COA–R3–CV, 2011 WL 3566978, at *3 (Tenn. Ct. App. Aug.
12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App.2003)).

                                                      -4-
in the amount of $1,193.50 . . . . Mother’s income of $2,458.00
remained the same and the number of days for both parents
remained the same . . . . [T]he Mother. . .would be obligated to
pay [Father] $148.00 monthly child support, $34.16 per week
for 18 weeks for a total of $614.88.

*                                     *                           *

        As a result of the March 12, 2009 hearing, Father
received 156 days of parenting time and the mother received 209
days of parenting time. On July 7, 2009, [Father] became
employed earning $900.00 weekly. Considering the change in
the number of days for parenting time and that the parents’
income remained the same between March 13, 2009 through
July 6, 2009, Mother would have been obligated to pay Father
$510.00 per month or $117.70 per week for 16 weeks for a total
of $1,883.20 . . . for that period March 13, 2009 through July 6,
2009.

*                                     *                       *

        During the period of July 7, 2009 through September 28,
2009, 12 weeks, it is undisputed that Father’s weekly income for
this period was $900.00 per week minus standard deductions, or
$3,186.22 . . . . During this period of time, Mother’s child
support would have been $7.00 per month or $1.62 per week for
12 weeks for a total of $19.44 . . . for the period of July 7, 2009
through September 28, 2009.

        For the entire period between August 22, 2008 through
September 28, 2009, [Father] owed $2,716.23 and [Mother]
owed $2,517.52. [Father] would owe [Mother] $198.91 during
the entire period. Accepting the fact that [Father] paid $8,083.12
during the entire period in question, he overpaid $7,884.21 and
is entitled to a credit of that amount against the $10,654.83.

       Therefore, [Father] should be given a credit of $7,884.21
against the $10,654.83 child support arrearage assessed between
October 1, 2007 and November 7, 2008. As a result, [Father]
would only owe child support arrearage in the amount of

                                -5-
              $2,770.62.

        On September 26, 2011, in response to the foregoing position letter, Mother’s attorney
filed a letter with the trial court, taking the following position:

              The Court of Appeals only directed this Court to take into
              account the nine-month period of time [Father] was
              unemployed. [Father] was employed until November 7, 2008.
              Therefore, until that date, the Agreed Order should control.
              [Father’s] support obligation was $329.56 per week. Therefore,
              he owed $3,625.16 for eleven weeks through November 7, 2008.

                       The more difficult issue to resolve relates to the child
              support calculation from November 7, 2008 until September 28,
              2009. Your Honor ruled that due to the fact that an Agreed
              Order had been in place, and [Father] had not sought to modify
              said Order, the Agreed Order controlled [Father’s] obligation.
              The Court of Appeals disagreed, and stated that, “If the evidence
              at trial demonstrates developments subsequent to the entry of the
              temporary order undermine its calculation, the Court should
              modify the award to reflect the parties’ actual circumstances.”

                      [Father’s letter] argues that this Court must hold [Mother]
              to her income as stated in the Agreed Order, which would result
              in [Mother] owing child support to [Father] even though she was
              the primary residential parent for the two children. This is a
              nonsensical result that surely is not what was intended.

              *                                       *                       *

              At the time of trial, [Mother] had four preschool age children.
              [Mother] had never made more than $8.25 per hour. The Court
              of Appeals did not instruct this court that it must leave the
              August 22, 2008 Order in place except for [Mother’s] income.
              It did state that the Order should be modified to reflect the
              parties’ actual circumstances . . . .

Mother attached a child support worksheet to this letter, which sets out her position on child
support arrearage as follows:



                                              -6-
             [Father’s] child support obligation [from August 22, 2008
             through November 7, 2008] from the Agreed Order was
             $3,625.16.

             *                                    *                     *

             For the time period of November 8, 2008 until March 12, 2008,
             [Father’s] child support obligation should be $202.00 per month
             or $47.00 per week. For eighteen weeks, his obligation would
             be $846.00.

                   From March 13, 2009 until July 6, 2009, [Father’s] child
             support obligation should be $151.00 per month or $35.00 per
             week. For sixteen weeks, his obligation would be $846.00.

                    From July 7, 2009 until September 28, 2009, [Father’s]
             child support obligation should be $639.00 per month or
             $147.00 per week. For those twelve weeks, his obligation
             would be $1,764.00.

                     [Father’s] total child support obligation from August 22,
             2008 until September 28, 2009 is $6,795.16. [Father] made child
             support payments during this period of time in the amount of
             $8,083.12. Therefore, [Father] overpaid $1,287.96. Deducting
             this from the $10,654.83 he owes from a previous time period,
             [Father] owes $9,366.87.

       A hearing took place on November 18, 2011. On December 16, 2011, the trial court
entered an order, stating, in relevant part:

             1. The Court interprets the Court of Appeal’s opinion [i.e.,
             Jaiden I] to mandate this Court to change only the Father’s
             income for the period of time from August 22, 2008 to
             September 28, 2009. While this Court thinks that the parties’
             actual circumstances should be examined during this period of
             time, the Court is restricted from doing so due to the Court of
             Appeals’ Opinion.

             2. Based upon the prior testimony at trial, the Court finds that
             [Father] made $107,000.00 from August 22, 2008 until

                                            -7-
              November 7, 2008. This is a period of eleven weeks. Pursuant
              to the attached child support worksheet, [Father’s] child support
              obligation was $1,428.00 per month or $329.56 per week.
              Therefore, [Father’s] child support obligation for this period of
              time would be $3,625.16.

              3. Based upon the prior testimony at trial, the Court finds that
              [Father] made $1,193.00 per month for the period of November
              8, 2008 through March 12, 2009. This is a period of eighteen
              weeks. Pursuant to the attached child support worksheet,
              [Father’s] child support obligation for this period would be
              $56.00 per month or $12.92 per week. Therefore, [Father’s]
              child support obligation for this period was $232.56.

              4. Based upon the prior testimony at trial, the Court finds that
              [Father] made $1,193.00 per month for the period of March 13,
              2009 through July 6, 2009. This is a period of sixteen weeks.
              Pursuant to the attached child support worksheet, [Mother’s]
              child support obligation for this period would be $307.00 per
              month or $70.85 per week. Therefore, [Mother’s] child support
              obligation for this period was $1,113.60.

              5. Based upon the prior testimony at trial, the Court finds that
              [Father] made $3,186.22 per month for the period of July 6,
              2009 through September 28, 2009. This is a period of twelve
              weeks. Pursuant to the attached child support worksheet,
              [Father’s] child support obligation for this period would be
              $449.00 per month or $103.62 per week. Therefore, [Father’s]
              child support obligation for this period was $1,243.44

              6. Considering the foregoing amounts owed by the parties, from
              August 22, 2008 until September 28, 2009, [Father’s] child
              support obligation was $3,967.56. [Father] paid $8,083.12.
              Therefore, [Father] overpaid $4,115.56 during this time period.
              Deducting from the $10,654.83 he owes from the previous time
              period, [Father] owes $6,539.27.

       In reaching the conclusion that Father owes $6,539.27 in child support arrears, the
worksheets attached to the trial court’s order give Father a credit of $328.55 for the
children’s health insurance, and give Mother credit for $433.33 in work-related child care.

                                             -8-
On January 17, 2012, Father filed a motion to alter or amend the December 16, 2011 order,
arguing, inter alia, that:

             1. The order entered on December 16, 2011 continues to
             provide the mother a $433.33 credit for child care expenses
             which, in fact, she has not incurred nor is she expected [to incur]
             child care expenses for the twin children. The Court should
             modify the child support worksheet to delete the $433.33 child
             care credit as such allowance is false and does not reflect “the
             parties actual circumstances” . . . as specifically directed by the
             Court of Appeals.

             2. The Court should modify the child support worksheets to
             provide the correct amount of health insurance premiums of
             $438.33 that the Father actually pays for insurance coverage on
             the minor children.

             3. The Court of Appeals declined to overturn the juvenile
             court’s imputation of $29,300 [in income to Mother] during the
             period between October 1, 2007 and August 22, 2008. [Mother]
             did not appeal the imputation of $29,300 income for any of the
             period of time . . . .

             4. [Mother’s attorney] argued . . . that the court should consider
             her “actual circumstance” of earning only $300 monthly . . . .

             5. Given the fact that [Mother] is no longer advocating for her
             actual circumstance to reflect income at $300 monthly, there is
             nothing in the Court of Appeals’ decision that should make this
             court “think” that it is restricted from examining the actual
             circumstances of the parties to correct information known to be
             inaccurate, specifically amounts allocated for child care and
             health insurance premiums . . . .

             6. The worksheet for the period designated at “7-7-09 forward”
             should be stricken as it reflects credit for in-home children that
             appears inaccurate, fails to identify the names and birth dates of
             the covered children, some of whom were not born as of 7-6-09
             and should not be included in the calculation for the period set
             forth in the court of appeals decision.

                                         -9-
        On February 3, 2012, Father filed a supplemental motion to alter or amend to clarify
his position that the trial court’s calculation of child support, based upon the December 16,
2011 order, was incorrect because it was based upon: (1) Mother receiving an erroneous
credit for work-related child care; (2) Father receiving less than full credit for his payment
of the children’s medical insurance premiums; and (3) Mother receiving credit for two
additional children in her home.

       A hearing on Father’s motion to alter or amend was held on April 16, 2012. By order
of April 30, 2012, the trial court denied Father’s motion to the extent that it argued for
additional insurance credit for Father and denial of child care credit for Mother:

                1. The Court interprets the Court of Appeals’ opinion as
                instructing the court that the Court is restricted to modifying the
                portion of the child support arrearage from August 22, 2008 to
                September 28, 2009 to reflect the Father’s actual income. All
                remaining variables from the child support worksheet submitted
                with the August 18, 2008 Agreed Order shall remain
                unmodified.

     However, concerning the amounts owed by Father, the trial court modified the
December 16, 2011 order as follows:

                2. From November 8, 2008 until July 6, 2009, [Father] was
                unemployed. His income was $1,193.00 per month. This is a
                period of thirty-four weeks. Pursuant to the child support
                worksheet. . .[Father’s] weekly child support obligation during
                this period of time was $12.92. Therefore, [Father’s] child
                support obligation during this period of time was $439.28.3

                3. From July 7, 2009 until September 28, 2009, [Father’s]
                income was $3,186.22. This is a period of twelve weeks.
                Pursuant to the child support worksheet . . . [Father’s] weekly
                child support obligation during this period of time was $136.85.
                Therefore, [Father’s] child support obligation during this period
                of time was $1,642.20.



        3
          We note that, although the April 30, 2012 order references an attached child support worksheet,
this attachment is not found in the record.

                                                  -10-
               5. Considering the calculations as based on [Father’s] actual
               income from August 22, 2008 until September 28, 2009,
               [Father’s] total child support obligation during this period of
               time was $5,706.64. [Father] actually paid $8,083.12 during this
               time period. Therefore, [Father] overpaid $2,376.48 during this
               time. Deducting this sum from the $10,654.83 he owes from the
               previous time period, [Father] owes a child support arrearage to
               [Mother] in the amount of $8,278.35.

       On May 17, 2012, Father filed a motion, asking the court to reconsider, arguing that
the April 30 order is incorrect in that it relies upon the August 18, 2008 order, which was
allegedly based upon erroneous facts as discussed above. The court denied Father’s motion
by order of May 30, 2012, stating:

               The Court of Appeals in its remand specifically ordered a new
               calculation of [Father’s] income.           It did not order
               reconsideration of any other variables, therefore the court feels
               constrained to revisit the only issue it was ordered to do, i.e.,
               [Father’s] income, not other child support variables.

       Father appeals. The sole issue for review is whether the trial court misinterpreted the
law of the case, based upon this Court’s holding in Jaiden I, to limit its review to Father’s
income and to preclude it from considering other child support variables.

       The law of the case doctrine in Tennessee has been clearly established:

               [U]nder the law of the case doctrine, an appellate court's
               decision on an issue of law is binding in later trials and appeals
               of the same case if the facts on the second trial or appeal are
               substantially the same as the facts in the first trial or appeal. The
               doctrine applies to issues that were actually before the appellate
               court in the first appeal and to issues that were necessarily
               decided by implication. The doctrine does not apply to dicta.

Creech v. Addington, 281 S.W.3d 363, 383 (Tenn. 2009) (citing Memphis Publ'g Co. v.
Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998)). As
explained in Memphis Publishing, the doctrine is not constitutionally mandated, nor is it a
limitation on the court's power, but “it is a longstanding discretionary rule of judicial practice
which is based on the common sense recognition that issues previously litigated and decided
by a court of competent jurisdiction ordinarily need not be revisited.” Id. (citing Ladd by

                                               -11-
Ladd v. Honda Motor Co., Ltd, 939 S.W.2d 83, 90 (Tenn. Ct. App. 1996) (citations
omitted)). The purpose of the rule is to promote “the finality and efficiency of the judicial
process, avoid[ ] indefinite relitigation of the same issue, foster [ ] consistent results in the
same litigation, and assure[ ] the obedience of trial courts to the decisions of appellate
courts.” Id. The exceptions to the law of the case doctrine are limited and a reconsideration
of an issue is permitted only if: (1) the evidence produced on remand is substantially different
than the evidence produced at the initial proceeding; (2) the earlier findings of law are
“clearly erroneous and would result in manifest injustice if allowed to stand”; (3) the prior
ruling is “contrary to a change in controlling law that occurred between the first and second
appeal.” Memphis Publ'g Co., 975 S.W.2d at 306.

        As discussed above, in Jaiden I, this Court remanded only the issue of Father’s child
support arrearage to the trial court for determination. Our holding was based upon the
statement of the issue presented in the first appeal, i.e., “whether the juvenile court correctly
calculated Father’s child support arrearage from August 22, 2008, to September 28, 2009,
based upon an annual income of $107,000.” In the first appeal, no issue was raised
concerning other variables, e.g. insurance premiums, additional children, or child care
credits. Accordingly, this Court did not specifically address these additional variables, but
limited its review only to the question of whether the trial court had relied upon Father’s
actual income in making its calculations. As noted above, the law of the case doctrine only
applies to issues that were actually before the appellate court in the first appeal and to issues
that were necessarily decided by implication. Creech v. Addington, 281 S.W.3d at 383.
Because the question of variables other than Father’s actual income were not actually before
this Court in Jaiden I, the trial court’s interpretation of our opinion is, respectfully, myopic.

        The gravamen of our holding in Jaiden I is that the parties’ actual circumstances
should dictate the calculation of their respective support obligations. In the first appeal, we
determined, based on the stated issue, that Father’s actual income was not used to calculate
his support obligation for the period August 22, 2008 to September 28, 2009. But, contrary
to the trial court’s interpretation, this Court said nothing about limiting the review only to
Father’s actual income. Rather, we clearly stated that, “[i]f the evidence at trial demonstrates
developments subsequent to the entry of the temporary order undermine its calculation, the
court should modify the award to reflect the parties’ actual circumstances.” The mandate,
then, was for the trial court to determine the parties’ actual circumstances, within the
parameters set in the opinion. For example, in Jaiden I, this Court specifically affirmed the
imputation of income to Mother from October 1, 2007 until August 22, 2008. Accordingly,
on remand, the trial court, under the law of the case doctrine, would be precluded from
revisiting that specific question. Likewise, under our holding in Jaiden I, the trial court is
precluded from revisiting the issue of attorney’s fees.



                                              -12-
        In addition, Jaiden I only addresses child support obligations and arrears arising on
or after August 22, 2008. In this regard, Jaiden I gave the trial court a specific mandate to
consider Father’s actual income only from August 22, 2008 going forward. However,
contrary to the trial court’s interpretation, this Court did not otherwise limit the trial court’s
review on remand concerning its consideration of factors and variables that may have
changed since the August 22, 2008 date. In fact, in Jaiden I, we cited extensively from the
case of Richardson v. Spanos, 189 S.W.3d 720 (Tenn. Ct. App. 2005), for the proposition
that the trial court retains discretion in determining support obligations. Jaiden I, 2011 WL
2306057, at *1–*2. Again, the gravamen of our holding in Jaiden I is that, in exercising its
discretion, the trial court should endeavor to ascertain and give effect to the parties’ actual
circumstances, which will necessarily change over the course of time, e.g., people remarry,
have more children, insurance premiums rise and fall, and child care needs change.
Accordingly, it was not this Court’s intention to limit the court’s discretion or its ability to
review all relevant variables that may have arisen or changed from August 22, 2008 until the
date of the hearing on remand. Rather, our opinion was intended to encourage the trial court
to ascertain the parties’ actual circumstances and to calculate the support obligations in
accordance with their respective realities. Upon remand, the court should not limit its
review, but should allow evidence, from both sides, concerning changes in circumstances and
other relevant variables, from August 22, 2008 until the date of the hearing, in an effort to
ground its calculation of child support and any arrearage thereon on the totality of the actual
circumstances that exist, which is the only way to reach a just result.

       Mother asks this Court to award her attorney's fees incurred in defending this appeal.
Mother’s appellate brief makes no argument concerning the grounds for her request,
requesting only that “her attorney fees and costs be paid as a result of defending this appeal.”
An award of appellate attorney's fees is a matter within this Court's sound discretion. Archer
v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). In considering a request for
attorney's fees on appeal, we consider the requesting party's ability to pay such fees, the
requesting party's success on appeal, whether the appeal was taken in good faith, and any
other equitable factors relevant in a given case. Darvarmanesh v. Gharacholou, No. M2004-
00262-COA-R3-CV, 2005 WL 1684050, at * 16 (Tenn. Ct. App. July 19, 2005). There is no
doubt that Father owes a child support arrearage in this case. The only question is the
amount thereof. Because the trial court misinterpreted our opinion in Jaiden I, Mother has
incurred additional costs and fees in having to defend a second appeal of this matter. It
appears, from the record, that Father is in a better position to bear the burden of these costs
than Mother. Accordingly, we grant Mother’s request for attorney’s fees and costs incurred
in defense of this appeal, and remand for a calculation of the reasonable amount of these
fees.

       For the foregoing reasons, we vacate the order of the trial court and remand for further

                                              -13-
proceedings consistent with this Opinion, including, but not limited to a determination of the
reasonable costs and fees associated with this appeal. Costs of this appeal are assessed to the
Appellant, Greg W., and his surety.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




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