                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    October 10, 2005 Session

  RHONDA FAY DEMONBREUN v. RICHARD AUSTIN DEMONBREUN

                      Appeal from the Circuit Court for Davidson County
                           No. 01D-642    Walter C. Kurtz, Judge



                  No. M2004-02105-COA-R3-CV - Filed December 28, 2005


In this post-divorce case, Richard Austin Demonbreun (“Father”), filed a petition to modify the
parties’ visitation arrangement, seeking additional time with one of the parties’ three children.
Rhonda Fay Demonbreun (“Mother”), the primary residential parent of the children, countered with
a petition requesting an increase in child support and the imposition of an obligation upon Father to
pay the children’s unreimbursed medical expenses. In addition, Mother sought one-half of the
refund associated with the parties’ 1998 income tax return, and an award of her attorney’s fees and
court costs. Following a bench trial, the trial court (1) denied Father’s petition to modify visitation
with his oldest son; (2) increased Father’s child support obligation and his share of non-covered
medical expenses; (3) awarded Mother one-half of the 1998 income tax refund; (4) awarded Mother
$5,000 in attorney’s fees; and (5) ordered Father to pay all court costs. Father appeals all of the trial
court’s decrees, and Mother seeks an award of attorney’s fees for the filing of a frivolous appeal.
We affirm in part and reverse in part, but do not find this appeal to be frivolous in nature.

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

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.

Richard Austin Demonbreun, Nashville, Tennessee, Pro Se.

Rose Palermo, Nashville, Tennessee, for the appellee, Rhonda Fay Demonbreun.
                                                   OPINION

                                                         I.

        The parties were married on August 13, 1994. At the time, Father was an attorney in private
practice and Mother was employed as a pharmacist. Shortly after their marriage, Father adopted
Jessica Lauren Demonbreun (DOB: June 25, 1988), Mother’s minor child by a previous marriage.
Two children were born to the parties’ union, Timothy Austin Demonbreun (DOB: July 25, 1997)
and Micah Steven Demonbreun (DOB: April 24, 1999).1

       During the parties’ marriage, they purchased a large, old home in Nashville, which they
eventually converted into a bed and breakfast known as the “Timothy Demonbreun House.” In order
to devote more time to their new venture, Father curtailed his law practice and Mother quit her job.
Father’s law practice in the field of plaintiff’s personal injury litigation had been adversely affected,
and severely so, by limits placed on direct mail solicitation by the Tennessee Supreme Court.

        After eight years of marriage, Mother sought and was awarded an absolute divorce from
Father. In its memorandum opinion in the divorce case, the trial court made the following findings
with respect to the custody of the three children:

                 In considering all the criteria set out at T.C.A. § 36-6-106, the Court
                 grants [Mother] custody of all three (3) children. The Court
                 specifically rejects joint legal custody as not being in the best interests
                 of the children. [Father’s] attitude toward two (2) of his children and
                 the parties’ inability to have any meaningful communication would
                 make joint custody inappropriate and would not be in the best
                 interests of the children.

                 [Father]’s visitation is difficult to resolve because of his disparate
                 treatment [of] the three (3) children – Jessica (6/25/88), Timothy
                 (7/25/97), and Micah (4/24/99).

                 [Father] apparently favors Timothy, has exercised his visitation with
                 Timothy, and seems to have a good relationship with him.

                 Micah has Down’s syndrome. Even though [Father] has had an
                 opportunity to have overnight visitations with Micah, he has not
                 availed himself of that opportunity stating that since his house [i.e,
                 the Timothy Demonbreun House] is not “child proof,” it would be
                 dangerous for Micah to visit and it would be difficult for him to run


        1
        For ease of reference, we will refer to the children in the same manner as did the parties, i.e., “Jessica”,
“Timothy” and “Micah.” No disrespect is intended by this informal approach.

                                                        -2-
               his bed and breakfast with Micah present. Even when picking up
               Timothy at the day care center, [Father] usually spends only a few
               minutes with Micah. He professes love for Micah, but his actions
               belie this expression. At the trial of this case, he again reiterated his
               love and affection for Micah and the Court wishes to give [Father]
               every opportunity to have a relationship with Micah.

               Jessica is the natural daughter of [Mother] and the adopted daughter
               of [Father]. At present their relationship is estranged. [Father] claims
               that [Mother] has poisoned Jessica’s attitude toward him and he has
               not visited with Jessica in many months. [Father’s] response to his
               perceptions of Jessica’s attitude has been an effort to set aside the
               adoption. He has filed several pleadings contending that the adoption
               was procured by fraud and that this Court should act to set aside the
               adoption. He has wanted to repudiate his relationship as father of
               Jessica. He explained that he took this action because his wife would
               not allow him a relationship with Jessica. If [Father’s] allegations
               about [Mother] are true, he could well have requested the aid of the
               Court in insuring visitation with Jessica. His immature response was
               to completely turn his back on Jessica and attempt to negate the
               adoption. At the final hearing, he professed some remorse for this
               prior action and now says he wants to reestablish a relationship with
               Jessica.

                                                ***

               [Father’s] professed commitment to his business and his stated lack
               of time and inappropriate location which has caused him to all but
               exclude Micah from his life while continuing to devote time and
               attention to Timothy have not impressed the Court as actions of a
               committed and loving parent. One has to question why a parent
               would make voluntary decisions about his vocation which would
               drastically limit his available time with a son suffering from Down’s
               syndrome while, at the same time, not limiting time with another son.
               Until [Father] shows full parental commitment to Micah, the Court
               will continue to doubt his competence as a responsible parent.

(Paragraph lettering in original omitted). The court ordered Father to pay child support in the
amount of $2,000 per month; ordered the parties to equally divide the cost of all of the children’s
medical and dental expenses not covered by insurance; ordered Father to obtain a supplemental
health insurance policy covering the children; and ordered Father to pay $6,500 toward Mother’s
attorney’s fees. Because of Father’s propensity not to exercise visitation with Micah, the trial court
ordered that Father pay an additional $100 in child support for each weekend and holiday under the


                                                 -3-
parenting plan that he does not spend with Micah, i.e., effectively, an additional $200 of child
support per month. The final judgment of divorce was entered on July 3, 2002.

       On February 18, 2004, Father filed a petition to modify the trial court’s divorce judgment,
requesting, inter alia, increased visitation time with Timothy. Mother filed a counter-petition,
requesting an increase in child support and an increase in Father’s contribution toward the children’s
non-covered medical expenses; an award of one-half of the parties’ 1998 federal income tax refund;
and an award of fees and court costs.

        Following a hearing on June 15, 2004, the trial court announced its ruling from the bench,
noting, in pertinent part, as follows:

               I do want to return to my memorandum [opinion from the divorce
               proceeding] of June 2002 because there’s – there’s a paragraph – I
               know this is part of the record, but I think this – this particular
               paragraph needs to be repeated because I don’t think there’s been any
               change in this in 24 months, and it’s perhaps the most salient fact
               here impacting the Court’s decision.

               [“Father’s] professed commitment to his business and his stated lack
               of time and inappropriate location which has caused him to all but
               exclude Micah from his life while continuing to devote time and
               attention to Timothy has not impressed the Court as actions of a
               committed and loving parent. One has to question why a parent
               would make voluntary decisions about his vocation which would
               drastically limit his available time with his son suffering from
               Down’s syndrome while at the same time not limiting time with
               another son. Until [Father] shows full parental commitment to
               Micah, the Court will continue to doubt his competence as a
               responsible parent.[”] It – I mean, it’s really of note here that this
               petition asks for additional time, overnight visitation with Timothy,
               and yet asks no modification that would affect his ability to have
               overnight visitation with Micah while by his own testimony he hasn’t
               had an overnight visitation with Micah since late summer of ‘03, and
               according to [Mother] that’s not even accurate; it really didn’t happen
               for 3 1/2 years, but I won’t – I won’t resolve that dis – or I won’t
               make that credibility call. Let’s give [Father] the benefit of the doubt;
               he hasn’t had overnight visitation with Micah since the summer of
               ‘03.

               Well, since – there – there’s another interesting – in – in [Father’s]
               long testimony, and I don’t fault him making – as a – as a witness, he
               didn’t have a lawyer, so he really has no option but to engage in a


                                                 -4-
kind of stream of consciousness. But in that stream of consciousness,
he was discussing his various businesses, his law practice, bed and
breakfast, catering, special events venue, and he did say that – you
know, he – he hesitated to go back to being a full-time lawyer
because he’d have – even have less time to spend with his children
because it would be extremely – he’d be extremely busy as a lawyer.
But I would note that, you know, even busy lawyers usually have the
weekends off. And his problem, his expressed problem in visiting
with Micah is his commitments on the weekend.

Well, let me turn first to the request for visitation for Timothy, and
I’m going to deny that petition because at this point it strikes me that
if [Father] is going to commit additional parental time and resources,
it’s got to be for Micah. And until he begins to fill the void of Micah
for a – for a father, I don’t need to tinker with the visitation for
Timothy, I guess subscribing to the old adage you’ve got to walk
before you can run.

I will, however, grant his oral request to modify his visitation with
Micah. And let’s start this way. Twice a month he can have
overnight visitations with Micah on either a Tuesday or Wednesday
night, and all he has to do is give notice to [Mother] on Sunday night
the Sunday before, saying, “I wish to exercise overnight visitation on
Tuesday or Wednesday.” And he can exercise that option twice in a
month, and we’ll have that begin July 1, and we’ll see how that
works. And if – if he can get off his feet and begin to get some
visitation with Micah, to begin to establish a real relationship with
Micah, then I would certainly consider, down the road, expanding his
visitation with Timothy. But right now, as far as the Court is
concerned, in the best interest of these children and [Father’s]
expressed love of both – both his sons and his daughter – I mean, he
– he needs to modify his schedule as much as he can to spend some
time with – with Micah, and so that would be my judgment on this –
this issue.

On the issue of the medical expenses, the parental plan, which was
incorporated into the final decree, contemplated [Father] being
responsible for medical expenses over and above that paid by
[Mother’s] insurance policy by procuring a policy of his own for the
excess. He says he can’t do that, and I don’t have any proof here to
indicate otherwise, but I think, given the contemplation that he would
have that policy and he doesn’t, that it’s equitable to modify the final
decree to say that he is responsible for two-thirds of the medical


                                  -5-
expenses over that covered by [Mother’s] insurance, and that he’s
relieved of – given that order, we’ll amend out the provision that
requires him to get insurance, which he says he can’t. And I also note
that “medical expenses” is defined in the parenting plan, and I’ll
adhere to that definition, and it includes mental, dental, orthodontic,
and eye care, and prescription drugs, so that will be a modification of
that provision.

As far as the IRS check is – I mean, [Mother] did not learn about the
IRS check till months after the divorce. It seems to the Court that it’s
marital property. . . . We have a joint check and for the life of me I
can’t imagine how the – the bank negotiated the check without
[Mother’s] signature on it, but that appears to be the case.

But consistent with the decision I made in [a previous case], I think
– and consistent with principles of equity – [Mother] is entitled to
$1,600. And part of that division comes from this judge’s view of the
unauthorized cashing of that check made out to both of them, so I’m
going to grant her a judgment of $1,600 based upon that unauthorized
cashing of that – of that check, which has got to be defined as marital
property. Now, granted, just like in [a previous case], [Father’s] got
a case that if the matter had gotten to court, perhaps he should have
been the beneficiary of the amount, but he decided to take that on his
own shoulders.

                                 ***

Now, let me go back to one matter about Micah. It seems to me in
addition to the visitation that I’ve granted with Micah that if [Father]
wants to sort of I guess you’d say take Micah out of the day care
facility, I think he should be allowed to do this up to four times a
month, as long as it’s coordinated with the facility; so that if he gets
a spare couple of hours in the afternoon and he calls down there and
there’s not any planned activity and he can drive down there and take
Micah out, I think that’s okay; and it ought to be authorized, and I’ll
trust him to call ahead and just make sure that it doesn’t interfere with
any planned activity.

Child support. You know, this issue of determining income for the
self-employed is difficult, and the case law recognizes that difficulty;
but I think by [Father’s] own admission, while granted this is a – a
sort of a rough calculation and it almost has to be a rough calculation,
but I think he conceded in his testimony that his gross income has


                                  -6-
increased since 2002, and he’s explained about the $89,000 in wages,
the $90,000 a year in mortgage payments, the $120,000 a year in
other expenses between eight or ten thousand dollars, and I realize
anybody who runs a small business has to make other permanent
nonroutine payments. But still by his own admission in the e-mail,
it’s – “It is apparent now that business and cash flow are sufficient to
sustain growth, so I can now begin to pay others to do many of the
things I’ve been forced to do the past three years. I’m also beginning
to advertise and campaign regarding my law practice, which should
serve to reestablish it so that I can once again enjoy what I was
educated to do.” So I – I can conclude as a matter of fact that he has
had an increase in his financial fortunes and an increase in his
available funds.

Now let me turn to another factor. I mean, when this order was
entered in June 2002, I mean, I was aware that, you know, Micah was
a child that took a lot of extra care. That’s not only extra emotional
care, an extra commitment by especially [Mother], but, obviously, an
additional financial strain by what she is required to do. And I did
have an expectation that [Father] would exercise his visitation to at
least a much greater degree than he did as set out in the final decree,
and he has not done that. The – I mean, gosh, I don’t know how to
put a percentage on it, but it would seem to be that 95 percent of the
responsibility – gosh, maybe more – for Micah is on her shoulders.
The child support guidelines, you know, contemplate reasonable
visitation because when you visit with someone, you accept some
living expenses, but that hasn’t happened here.

I think taking into consideration the almost 100 percent obligation of
care placed on her for Micah, the fact that [Father’s] financial
condition has improved, and recognizing the vagaries involved in
determining exactitude when you’re – when you’re dealing with
somebody who is self-employed, which is recognized in the case law,
that a child support increase of $500 per month here is warranted.

Now, the $200 nonvisitation penalty is – I guess, I’m calling it that
for lack of anything else – is set aside, so the monthly child support
payment will be increased to $2,500. And I think under all the
circumstances, that’s consistent with the principles of equity; and it’s
consistent with the child support guidelines based upon the
information I have available to me. I also think that under these
circumstances [Mother] is entitled to an attorney fee in the amount of
$5,000, and that – that’s the judgment of the Court, . . . .


                                  -7-
The trial court subsequently entered its final judgment. It was consistent with the memorandum
opinion. From this judgment, Father appeals.

                                                   II.

        Our review of this non-jury case is de novo upon the record with a presumption of correctness
as to the trial court’s factual findings, “unless the preponderance of the evidence is otherwise.”
Tenn. R. App. P. 13(d). The trial court’s conclusions of law are not accorded the same deference.
Brumit v. Brumit, 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997).

                                                  III.

                                                   A.

        Father raises the following issues for our review:

                1. Did the trial court err in ordering an increase in Father’s child
                support obligation?

                2. Did the trial court abuse its discretion in ordering Father to pay all
                court costs and Mother’s attorney’s fees?

                3. Did the trial court err in increasing Father’s obligation for non-
                covered medical expenses?

                4. Did the trial court err in awarding Mother one-half of the parties’
                2002 income tax return?

                5. Did the trial court err in refusing to award Father additional
                visitation time with Timothy?

Mother, on the other hand, urges us to hold that Father’s appeal is frivolous in nature. She seeks an
award of attorney’s fees for a frivolous appeal. We will address each of these issues in turn.

                                                   B.

       Father first contends that the trial court erred in increasing his basic child support obligation
from $2,000 per month to $2,500 per month. We agree with this contention.




                                                  -8-
         When a petition to modify child support is filed based upon a change in an obligor’s net
income, a trial court, in an appropriate case,2 can order an increase or decrease in support “when
there is found to be a significant variance, as defined in the child support guidelines . . ., between the
guidelines and the amount of support currently ordered.” Tenn. Code Ann. § 36-5-101(a)(1)(A)
(Supp. 2004). The child support guidelines define a significant variance as “at least 15% if the
current support is one hundred dollars ($100.00) or greater per month . . . .” Tenn. Comp. R. &
Regs., ch. 1240-2-4-.02(3) (2003). The party seeking the modification of the child support order has
the burden of proving the existence of a significant variance. See Turner v. Turner, 919 S.W.2d
340, 345 (Tenn. Ct. App. 1995); Seal v. Seal, 802 S.W.2d 617, 620 (Tenn. Ct. App. 1990).

        Father is a sole proprietor, i.e., the self-employed owner of a law practice and a bed and
breakfast facility. Mother essentially bases her request for more child support on Father’s 2003
gross income of $500,000 and an email he sent her indicating that his “business and cash flow are
sufficient to sustain growth.” Mother takes the position that all of this shows that there has been a
“significant variance,” as defined in the guidelines. The trial court tacitly agreed with Mother that
there had been the necessary predicate showing to justify another look at Father’s child support
obligation. We respectfully disagree with this conclusion.

         “[T]he child support award is based on a flat percentage of the obligor’s net income” as that
concept is defined in the guidelines. Tenn. Comp. R & Regs., ch. 1240-2-4-.03(2) (emphasis added).
While an obligor’s gross income is the starting point of the percentage child support calculation, it
is far from the final step. The gross income of a self-employed individual, such as Father, must be
reduced by “reasonable expenses necessary to produce such income.” Tenn. Comp. R. & Regs., ch.
1240-2-4-.03(3)(a)(2).3 Once this has been accomplished, a further adjustment must be made for the
significant matter of federal income taxes. See Tenn. Comp. R. & Regs. 1240-2-4-.03(4)(b). In the


         2
          W e say “in an appropriate case” because all child support awards and modifications of same are subject to the
overarching concept of non-applicability of the guidelines in the event the imposition of those provisions would be
“unjust or inappropriate.” See Tenn. Code Ann. § 36-5-101(e)(1)(A) (2005).

         3
          The Supreme Court has contrasted the precise nature of the percentage child support calculation for a salaried
individual with that of a self-employed obligor:

                 These guidelines, when applied to an obligor whose income is derived from a salary
                 and an occasional bonus or dividend, yield an easily quantitated child support
                 amount. Once the obligor’s income has been determined and the Child Support
                 Guidelines have been applied, the calculation of child support is made with
                 certainty, predictability, and precision.
                 Although achieving such precision is possible when calculating child support owed
                 by a salaried obligor, the calculation is much more difficult and much less precise
                 when the obligor is self-employed. The Child Support Guidelines therefore provide
                 a different method for calculating a self-employed obligor’s income. In the self-
                 employed obligor’s situation, the guidelines require the trial court to consider all
                 income of the obligor parent, reduced only by reasonable expenses to produce the
                 income.
Taylor, 158 S.W .3d 352, 357-58 (internal citation omitted).

                                                          -9-
instant case, Mother, as the moving party, had the burden to show that there had been a “significant
variance.” Thus, it was her burden to show the expenses4 “necessary to produce” the $500,000 of
gross income and the appropriate deduction for taxes. It was not Father’s obligation to prove what
these expenses and taxes were.

        This is not a case where an obligor fails to produce the necessary “evidence of income.”
Tenn. Comp. R. & Regs., ch. 1240-2-4-.03(3)(f). Father contends – and Mother does not deny – that
she was afforded access to all of Father’s records bearing upon the conversion of his gross income
to net income. For whatever reason, she chose not to present evidence of Father’s net income,
relying instead on Father’s gross income and his “sufficient to sustain growth”5 statement regarding
his businesses.

        We recognize that there is proof in the record of “in kind” remuneration. It is clear that a
court can take such remuneration into consideration in establishing one’s gross income. See Tenn.
Comp. R. & Regs., ch. 1240-2-4-.03(3)(a)(3). However, no attempt was made in this case to value
Father’s lodging and other benefits of the multi-use of his bed and breakfast with its attendant in-
kind benefits to Father.

         Child support under the guidelines is expressed as a percentage of net income. It was
incumbent upon Mother, as the moving party to present evidence of Father’s net income. This she
failed to do. Because Mother failed to carry her burden of proving a significant variance, we hold
that the evidence preponderates against the trial court’s finding that there has been a significant
variance supporting an increase in Father’s child support obligation. Accordingly, we reinstate the
previous child support award of $2,000 per month,6 retroactive to July 1, 2004, the effective date of
the trial court’s modification of child support.

                                                              C.

        Father next asserts that the trial court abused its discretion in taxing all court costs to Father
and in ordering Father to pay $5,000 toward Mother’s attorney’s fees. We disagree.

         Tenn. Code Ann. § 36-5-103(c) (2005) provides as follows:




         4
           Such expenses are likely to have included the following: payroll, food, interest, property taxes, other local taxes
and fees, office supplies, building supplies, laundry, repairs, maintenance, utilities, travel, printing, advertising, freight,
and office expenses, to name a few.

         5
            W e do not understand how this nebulous statement can have a significant bearing on Father’s “bottom line,”
i.e., his net income.

         6
           The propriety of the trial court’s deletion of the $200 per month add-on for Father’s failure to visit Micah was
not raised as an issue on appeal.

                                                            -10-
                   The plaintiff spouse may recover from the defendant spouse, and the
                   spouse or other person to whom the custody of the child, or children,
                   is awarded may recover from the other spouse reasonable attorney
                   fees incurred in enforcing any decree for alimony and/or child
                   support, or in regard to any suit or action concerning the adjudication
                   of the custody or the change of custody of any child, or children, of
                   the parties, both upon the original divorce hearing and at any
                   subsequent hearing, which fees may be fixed and allowed by the
                   court, before whom such action or proceeding is pending, in the
                   discretion of such court.

Under this statute, an award of legal expenses in a suit pertaining to visitation, an obvious aspect of
custody, “is discretionary with the trial court.” Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. Ct.
App. 1992). While the ability to pay of the party requesting fees is a factor to be considered in
determining whether the other party should be onerated with the fees of the other, a trial court “may
award attorney’s fees without proof that the requesting party is unable to pay them as long as the
award is just and equitable under the facts of the case.” Id.

        Mother successfully defended Father’s petition with respect to visitation. Under the
circumstances presented by the record before us, we find no support for a conclusion that the trial
court abused its discretion in awarding Mother her attorney’s fees. Furthermore, we find no abuse
of discretion in the trial court’s decision to burden Father with the payment of court costs.

                                                           D.

       Next, Father argues that the trial court erred in increasing Father’s monetary obligation for
the children’s unreimbursed medical expenses from one-half to two-thirds. We find Father’s
argument on this issue to be without merit.

        In the parenting plan which accompanied the parties’ final judgment of divorce, the trial court
ordered Father to pay one-half of all of the children’s medical expenses not covered by health
insurance. In addition, the trial court ordered Father to obtain a supplemental health insurance policy
on the children. At the hearing on the petition to modify, Father testified that he was unable to
obtain such a supplemental policy,7 and the trial court noted that it had no proof “to indicate
otherwise.” The trial court therefore removed from the parenting plan the provision requiring Father
to obtain a supplemental insurance policy. However, to compensate for the lack of this policy, the
court increased Father’s obligation for non-covered medical expenses from one-half to two-thirds.
We find no abuse of discretion in this increase, and accordingly, we decline to disturb the trial
court’s ruling on this matter.




       7
           Father testified that he could not obtain such a policy because the children did not live with him.

                                                          -11-
                                                  E.

       Father next contends that the trial court erred in awarding Mother one-half of the parties’
1998 income tax refund. We again disagree.

         As a general rule, a trial court’s division of marital assets is not subject to modification.
Johnson v. Johnson, 37 S.W.3d 892, 895 (Tenn. 2001). However, if a particular marital asset was
not addressed in the final judgment of divorce, it is permissible for a court to make a division of that
asset at a later date. See Simpkins v. Blank, No. M2002-02383-COA-R3-CV, 2003 WL 23093849,
at *5 (Tenn. Ct. App. M..S., filed December 30, 2003). By definition, such a division cannot be
interpreted as a modification of the original judgment since the asset in question was not mentioned
and addressed in that judgment.

        In the instant case, Father – in August, 2002 – filed an amended tax return for the year 1998.
The Internal Revenue Service then issued a check payable to Father and Mother jointly in the amount
of $3,267. Father somehow managed to deposit this check into his operating account without
Mother’s signature. Because this refund was not even requested, much less received, until after the
parties’ divorce became final, it is difficult to understand how it could have been contemplated at
the time of the divorce. Not surprisingly, it is not specifically mentioned in the judgment of divorce.
The trial court did not err in dividing this asset at the June, 2004, hearing.

        Because the refund check was issued for a year in which the parties were married, we cannot
say that the evidence preponderates against the trial court’s decision to consider the refund to be
marital property and to award Mother $1,600, which constitutes half of the refunded amount.

                                                  F.

        Finally, Father argues that the trial court erred in refusing to modify visitation to allow him
increased time with his older son, Timothy. We find no error in the trial court’s ruling on this
matter.

        When seeking a modification of visitation, the moving party must show, by a preponderance
of the evidence, (1) that a material change of circumstances has occurred, and (2) that such a change
has affected the child’s best interest. Tenn. Code Ann. § 36-6-101(a)(2)(C) (2005). If the moving
party is successful in proving a change of circumstance, such a change merely opens the door to a
re-examination of the visitation arrangement; it does not, ipso facto, require a modification of that
arrangement.

        In the instant case, the trial court – in its memorandum opinion at the time of the divorce –
admonished Father regarding his preferential treatment of Timothy and urged Father to show more
of a commitment to Micah by exercising the visitation with Micah to which he was entitled. A year
and a half later, Father filed a petition to modify, and his sole request was that the court award him


                                                 -12-
additional visitation with Timothy. While Father acknowledged at the hearing on his petition that
he had only exercised overnight visitation with Micah on one occasion, he claimed that this was due
to the fact that he was unable to exercise the weekend visitation which he had been awarded. Father
advanced various reasons for this inability; to wit, he cannot devote an additional bedroom in his bed
and breakfast for Micah; he cannot place a latch on the door of a bedroom for Micah in order to
prevent him from trying to get out of the bedroom during the night; he cannot take Micah to a hotel
room as he is occasionally forced to do for himself and his wife when every bedroom – including
their own – is rented; and he cannot hire a sitter for an entire weekend in order to watch Micah.
Father did, however, make an oral request at trial that the parenting plan be amended to allow him
to exercise overnight visitation with Micah on weeknights, when Father is less likely to have bed and
breakfast guests and when he would ostensibly have more time to devote to Micah.

       At the conclusion of the most recent hearing, the trial court reiterated its concern that Father
was not showing enough of a commitment to Micah, and as a result of that concern, the trial court
denied Father’s request for increased visitation with Timothy, stating that “if [Father] is going to
commit additional parental time and resources, it’s got to be for Micah.” The trial court did,
however, grant Father’s request to modify the visitation schedule for Micah, allowing Father to
exercise overnight visitation with the child twice a month on either a Tuesday or Wednesday. The
court went on to add that if Father demonstrated progress in his commitment to Micah, that it would
consider allowing more visitation with Timothy in the future.

        The fact that the court obviously took a new look at the issue of visitation going forward
indicates an implicit finding of a change of circumstances; otherwise, there would have been no
reason for the trial court to take a fresh look at this issue. However, having examined anew the issue
of increased visitation with Timothy, the trial court determined that such an increase would not be
in the best interest of the children and therefore denied Father’s request.

        Father argues this denial was in error, contending that the fact Timothy is two years older
than he was at the time of the divorce and that the child is having some difficulty with school are
sufficient reasons to justify the increased visitation sought by Father. While it is true that “changes
relat[ed] to age,” (emphasis added), can constitute a material change of circumstance, it is only one
factor that “may” be considered when determining the propriety of a modification of visitation. See
Tenn. Code Ann. § 36-6-101(a)(2)(C). The trial court listened to all of the testimony and, after
hearing and considering all of it, determined that a modification of Father’s visitation with Timothy
was not in the best interest of Timothy or the other two children. Furthermore, with respect to
Father’s assertion that Timothy’s difficulty in school is enough to warrant a change in visitation,
Father failed to show that the difficulty in school was attributable to anything Mother was or was not
doing, or that Father’s additional time with the child would do something to remedy the situation.
Accordingly, we find nothing in this record to indicate that the evidence preponderates against the
trial court’s decision to deny Father’s request for increased visitation with Timothy.

        Father contends that the trial court’s decision not to increase his visitation with Timothy
reflects the court’s effort to “punish” him for not visiting with Micah. We do not view the trial


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court’s most recent decree regarding the subject of visitation as an act of punishment. The court did
nothing to lessen Father’s visitation time with Timothy, and it even went so far as to adjust Father’s
visitation time with Micah in an attempt to accommodate Father’s schedule. Indeed, the court
indicated to Father that, if his relationship with Micah developed and improved, it would consider
expanding Father’s visitation time with Timothy in the future. It is clear to us that these actions by
the trial court are not punitive in nature; rather, they are a reasonable attempt by the court to foster
a relationship between Father and Micah.

         While Father makes much of the fact that Micah’s “special needs” status imposes “intolerable
requirement[s]” on Father’s ability to keep him overnight, we believe Father’s protestations ring
hollow. The fact is that Father did nothing to demonstrate to the court that the circumstances were
such that he was unable to keep Micah overnight. Father states that he would have to convert one
of the guest rooms for Micah’s use, which would prevent Father from renting out that room.
However, Father testified that Timothy slept on a sofa in a sitting room adjacent to the master
bedroom when he stayed with Father on weekends. Common sense would dictate that Micah would
be able to sleep on the floor in a sleeping bag or on an air mattress. Father argues that, in order to
keep Micah overnight, he would have to place a latch on the bedroom door, and that this child-
proofing “would render [the room] unusable for guests.” We simply cannot conceive that a patron
of Father’s bed and breakfast would in any way be offended by a latch on their bedroom door. Father
asserts that he could not afford nor would he trust “a weekend, live-in babysitter,” which he claims
he would need in order to keep Micah overnight and to provide him with constant supervision. We
first note that most young children require constant supervision, regardless of their disabilities. We
must also point out that Mother faces these same supervisory issues on a daily basis and hires a sitter
when necessary, and, unlike Father, Mother does not have the assistance of a spouse.

         However, Father’s concerns over his bed and breakfast guests and his weekend
responsibilities should no longer be an issue, as the trial court granted his request to alter his
visitation with Micah to permit Micah to spend a weeknight with Father twice a month. We do find
it puzzling that Father repeatedly emphasizes in his brief before this court his utter inability to keep
Micah overnight at any time, not just on weekends, particularly in light of Father’s specific request
for weeknight visitation during the course of the hearing. It appears as if Father has fallen victim
to the old adage, “Be careful what you wish for – you might just get it.”

       In short, we hold that the trial court did not abuse its discretion in holding that Father must
spend more time with Micah before considering an increase in visitation with Timothy.

                                                   G.

        By way of a separate issue, Mother urges us to find Father’s appeal to be a frivolous one, and,
as a consequence of this requested finding, asks for an award of her attorney’s fees on appeal. As
Father has prevailed on the issue of child support, there is no basis for a finding of a frivolous appeal.
Accordingly, we decline Mother’s request for an award of attorney’s fees for a frivolous appeal.



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                                                  IV.

       The judgment of the trial court is affirmed in part and reversed in part. Father’s original child
support obligation of $2,000 per month is hereby reinstated retroactive to the date when it was
increased. This case is remanded to the trial court for enforcement of that portion of the court’s
judgment that is consistent with this opinion and for the collection of costs assessed below, all
pursuant to applicable law. Exercising our discretion, we tax the costs of this appeal one-half to each
party.



                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




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