 

IN THE COURT OF APPEALS OF TENNESSEE

AT NAsHVILLE F l L E D
December 5, 2017 Session JAN 2 9 2018
IN RE JoEL B. g;:'-§°B'y'"°_""”°"‘“__°_°°:’f

 

 

Appeal from the Juvenile Court for Maury County
No. 11-JV-720 Sharon Guffee, Judge

 

No. M2016-0l370-COA-R3-JV

 

A trial court designated the father of a child born out of wedlock as the primary
residential parent and imputed additional income to the mother for purposes of child
support after determining she was underemployed. The mother appealed the trial court’s
judgment During the pendency of the appeal, dependency and neglect proceedings in
the trial court resulted in the child’s removal from the father’s residence and his
placement with the mother in California. 'I`he dependency and neglect proceedings
rendered moot the mother’s challenge of the trial court’s designation of the father as the
primary residential parent, leaving the imputation of additional income to the mother as
the only issue on appeal. Concluding the trial court did not abuse its discretion in
allocating additional income to the mother for child support purposes, we affirm that
aspect of the trial court’s judgment

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J.,joined.

Rachel Lorraine Bonano, Knoxville, Tennessee, for the appellant, Keren H. D.

Phyllis Marlene Boshears, Franklin, Tennessee, for the appellee, Joel R. B.

 

MEMORANDUM oPINIoNl

Keren H. D. (“Mother”) and Joel R. B. (“Father”) are the parents of Joel B. (“the
Child”), who was born out of wedlock in July 201l. Mother left Tennessee and went to
live in Califomia with the child in December 2011. Father filed a petition in December
2011 to establish his paternity and put into place a parenting plan. Both Mother and
Father wanted to be designated the primary residential parent, The trial court entered an
order on February 3, 2012, establishing Father as the Child’s legal and biological Father
and adopting a permanent parenting plan in which Father was named the primary
residential parent and Mother was awarded eighty days of residential patenting time.
Mother was ordered to pay child support to Father in the amount of $200 each month.

The parenting plan was modified over the following few years, and on December
31, 2015, Father filed another petition for a parenting plan to be adopted as well as an
order for child support in an effort to collect the support Mother had been ordered to pay
but had not, in fact, paid. The trial court held an evidentiary hearing on May 20 and 23,
2016, and entered an order designating Father as the primary residential parent while
Mother continued residing in Califomia. The court indicated that if Mother relocated to
Tennessee, the parties would be awarded equal parenting time with the Child. Finding
Mother was underemployed, the court allocated additional income to Mother and
determined that her monthly child support obligation would be $895 per month. The
court found this amount “shall be retroactive to the December 31, 2015 filing by Father
for a judgment in the amount of $4475.00 payable at $100.00 per month beginning June
1, 2016.”

Mother appealed the trial court’s judgment She argued that the trial court erred in
designating Father as the primary residential parent and in imputing additional income to
her for purposes of calculating her child support obligation. Then, alter the parties filed
their appellate briefs, but before oral argument took place, Mother filed a motion asking
this Court to consider post-judgment facts.2 This Court filed an order on January 10,
2018, granting the motion and stating:

 

lThe Court of Appeals Rule 10 is entitled “Memorandum Opinion,” and it provides:

This Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal
opinion would have no precedential value. When a case is decided by memorandum
opinion it shall be designated “MEMORANDUM OP[NION,” shall not be published, and
shall not be cited or relied on for any reason in any unrelated case,
2Tennessee Rule of Appellate Procedure l4(a) addresses an appellate court’s consideration of post-
judgment facts and provides:

The Supreme Court, Court of Appeals, and Court of Criminal Appeals on its motion or
on motion of a party may consider facts concerning the action that occurred after
judgment Consideration of such facts lies in the discretion of the appellate court. While

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The appellant has filed a motion to consider post-judgment facts.
.We grant the motion, that being that an order has gone down in a recent
dependent and neglect action in which the child was found to be dependent
and neglected in Father’s custody. We reserve judgment on how this fact
may or may not, and to what extent it will, affect the pending appeal.

The post-judgment facts Mother has asked this Court to consider concern
dependency and neglect proceedings in the trial court that culminated in a final order
entered on November 15, 2017, placing the Child with Mother. These dependency and
neglect proceedings began after entry of the order Mother appealed and were based on
two incidents in which Father was arrested for driving under the influence in February
and May 2017, The final order states:

This matter was previously adjudicated on July 19, 2017, At that
time, the parties entered an agreement regarding an interim custody order
pending the final outcome of the dispositional hearing. Specifically, the
parties agreed that the child would be placed in the interim custody of the
mother and the father would be allowed supervised visitation and telephone
communication through either skype or the phone. Based upon the
announcement made in open court, the parties are in agreement that the
previous custody order shall become a final order. 'I'he parties are in
further agreement that should either party wish to modify this Order, they
must show a material change of circumstances . . . Finally, the parties are
in agreement that pursuant to the UCCJEA, this court shall relinquish
jurisdiction after the child has resided in a foreign jurisdiction for a period
of six (6) months or longer.

Based upon the terms of the trial court’s final order, Mother is now the Child’s
primary residential parent and Father is permitted only supervised visitation one weekend
per month. The trial court’s final order dating from November 2017 renders moot
Mother’s appeal of the trial court’s judgment designating Father as the primary
residential parent. The post-judgment facts Mother has asked this Court to consider do
not address the trial court’s imputation to Mother of additional income for purposes of
child support, and Mother does not challenge the trial court’s judgment against her for
past child support owing as of the time of the hearing in May 2016. As a result, the only
issue for this Court to consider at this point is the trial court’s imputation to Mother of

 

neither controlling nor fully measuring the court’s discretion, consideration generally will
extend only to those facts, capable of ready demonstration, affecting the positions of the
parties or the subject matter of the action such as mootness, bankruptcy, divorce, death,
other judgments or proceedings, relief from thejudgrnent requested or granted in the trial
court, and other similar matters. Nothing in this rule shall be construed as a substitute for
or limitation on relief from the judgment available under the Tennessee Rules of Civil
Procedure or the Post-Conviction Procedure Act.

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additional income for purposes of calculating her arrearage and determining the child
support she owed beginning on June 1, 2016. With regard to this issue, the trial court
wrote:

['I`]he Court finds the Mother is voluntarily underemployed pursuant
to the Tennessee Child Support Guidelines based upon Mother’s move to a
state where she cannot practice law. This was an intentional choice on the
part of Mother that has adversely affected her income. The Court has
considered Mother’s past and present employment and education, training
and ability to ~work. While in Tennessee Mother worked as an attomey. She
is bilingual. She was able to take court appointed cases. By her own
admission, she testified she had the capacity to be an immigration attorney
but she is working as a paralegal making $l 890.00 per month. She testified
she could not afford to pay child support or come visit the child because of
expenses and work but she acknowledged vacations in Palm Springs, Las
Vegas and New York.

According to the Child Support Guidelines, once a parent that has
been found to be willfully and/or voluntarily under or unemployed,
additional income can be allocated to that parent to increase the parent’s
gross income to an amount which reflects the parent’s income potential or
earning capacity and the increased amount shall be used for child support
calculation purposes.

'l`herefore the Court allocates additional income to Mother for a total
monthly amount of $5000.00. Mother’s child support obligation shall be
$895.00 per month. This amount shall be retroactive to the December 31,
2015 filing by Father for a judgment in the amount of $4475.00 payable at
$100.00 per month beginning June 1, 2016.

“Setting child support is a discretionary matter.” Solima v. Solima, No. M2014-
01452-COA-R3-CV, 2015 WL 4594134, at *9 (Tenn. Ct. App. July 30, 2015). 'l`hus,
appellate courts are deferential to a trial court’s child support decision and apply an abuse
of discretion standard of review when a party appeals an award of child support. State ex
rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). Under this
standard, we will not substitute our decision for that of the trial court if the evidence
supports the award, the trial court applied the appropriate legal principles, and the award
is within the range of acceptable alternatives. Id.

 

3Recognizing that Mother became the Child’s primary residential parent sometime in the summer or fall
of 2017 as a result of the post-judgment dependency and neglect proceedings, we express no opinion
regarding the length of time Mother was required to pay child support to Father.

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According to thc Tennessee Child Support Guidelines, additional income may be
imputed to a parent for child support purposes if a trial court determines that the parent is
“"willfully and/or voluntarily underemployed or unemployed.” TENN. COMP. R. & REGS.
l240-2-4-.04(3)(a)(2)(i)(l). If a court makes this determination, the court may consider
the parent’s education, training, and ability to work in determining whether to allocate
additional income to that parent to reflect the parent’s potential or earning capacity_. and
"the increased amount shall be used for child support calculation purposes." 'I`ENN.
COMP. R. & REGS. 1240-2-4-.04(3)(a)(2)(ii), (iii); see Luttre/l v. Lum'ell, No. W2012-
022?9-COA-R3-CV, 2014 WL 298845, at *12 (Tenn. Ct. App. Jan. 28, 2014) (stating
that trial courts have “considerable discretion” in determining whether income should be
imputed to a parent |"or child support purposes).

Mother testified at the hearing on May 20, 2016, that she became licensed to
practice law in Tennessee in 2009. Mother practiced law in Tennessee before she
relocated to California in 2012. She testified that in 201 l she "had court-appointed cascs,
and that [she was paid] 345 [per hour] out of court, $50 [per hour] in court."` Mother
testified that she is not licensed to practice law in California but that she can practice as
an immigration attorney there because immigration law involves federal law, not state
|aw. At the time ol` trial, Mother was employed as a paralegal and was earning about
$1,890 per month. She admitted that she could work as an immigration attorney but has
chosen to work as a paralegal. In 2015, Mother testified that she worked as a secretary at
a law corporation and earned 315 per hour.

Our calculations show that if Mother worked forty hours per week at the rate of
$40 per hour, which is less than she earned as a court-appointed attorney in 2011, she
would earn over 56,900 per month. We, therel`ore, conclude that the trial court did not
abuse its discretion in (l) concluding Mother was underemployed and (2) allocating
additional income to her for a total monthly amount of $5,000 per month for purposes of
child support

We vacate the trial court’s judgment designating Father as the Child’s primary
residential parent and affirm the trial court’s judgment imputing additional income to
Mother for purposes of calculating child supportl 'l`hc costs of this appeal shall be
assessed against Mother and Father cqually, for which execution shall issue if necessary

M¢QM

ANDY,S. BENNETT, JUDGE

