                                                                                      03/16/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              January 11, 2018 Session

   CHARLES MICHAEL VANCE, II V. ANGELA MICHELLE TAYLOR
                        VANCE

                Appeal from the Circuit Court for Davidson County
                   No. 08D-2882     Phillip R. Robinson, Judge


                           No. M2017-00622-COA-R3-CV


The issues on appeal involve the proper number of days upon which to base the
calculation of child support, the propriety of the award of extraordinary educational
expenses under the parties’ permanent parenting plan, and attorney’s fees. Having
determined that the trial court erred in its determination of child support and
extraordinary educational expenses, we affirm in part, and vacate and remand in part.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                      Part, Vacated and Remanded in Part

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Pamela A. Taylor, Gregory D. Smith, and Brenton H. Lankford, Nashville, Tennessee,
for the appellant, Angela Michelle Taylor Vance.

Michael K. Parsley and D. Scott Parsley, Nashville, Tennessee, for the appellee, Charles
Michael Vance, II.

                                      OPINION

                      FACTUAL AND PROCEDURAL BACKGROUND

       Charles Michael Vance, II, (“Father”) and Angela Michelle Taylor Vance
(“Mother”) are the parents of Charles Michael (“Michael”), born in 2003, and Catherine
Danielle (“Dani”), born in 2007. On March 4, 2009, Father and Mother were divorced by
a final decree incorporating a marital dissolution agreement and permanent parenting
plan.
       The permanent parenting plan stated that, “Each parent is the primary residential
parent during his or her time with the children as they have equal residential time.”
Father had 182 residential days with Dani and 183 residential days with Michael; Mother
had 182 residential days with Michael and 183 residential days with Dani. The day-to-
day schedule provided for the children to be with one parent for a week and then switch
to be with the other parent, with a mid-week overnight visit with the alternate parent.
Holidays were equally divided; the parenting plan provided that, “Michael shall spend
every President’s Day with the Father and Dani shall spend every President’s Day with
the Mother.” Vacations were divided equally between the two parents.

       All major decisions were to be joint. However, the plan stated that, “[i]n the event
the parents cannot agree, then Father shall [have] authority to make the final decision.”
With respect to schooling, the permanent parenting plan includes the following provision:

       The parties acknowledge that their oldest child, Michael, is currently
       attending kindergarten at David Lipscomb Elementary, and that for
       continuity and stability purposes following the divorce, they intend for him
       to remain at David Lipscomb Elementary through the end of first grade,
       which is the 2009-2010 academic year. The parties agree that commencing
       April 1, 2009, and through the end of the 2009-2010 academic year, they
       shall each pay one-half (50%) of Michael’s private school costs, including,
       but not limited to, tuition, fees, books, lunches and other school-required
       expenses. However, the parties acknowledge that their agreement for
       Michael to attend David Lipscomb Elementary through the end of his first
       grade year shall in no way be used by either party to establish a precedent
       or standard for either child to attend David Lipscomb Elementary or any
       other private school in the future or what percentage the parents would
       share, nor shall it be used by either party to attempt to establish a precedent
       in any argument to the Court. In the event either child attends private
       school beyond Michael’s first grade year, it shall only be by mutual
       agreement of the parties for that particular year in question.

      Father’s gross monthly income at the time of the divorce was $5,589. Mother’s
gross monthly income was $12,500. Mother was ordered to pay Father child support in
the amount of $897 per month.

        On June 4, 2013, Father filed the petition for modification at issue in this appeal.
Father asked that the parties’ parenting time be modified as described in the petition
(around vacations and holidays). (Father eventually dropped this part of the petition.) He
also requested an increase in Mother’s child support obligation based upon an increase in
her earnings and asked the court to require Mother to share pro rata in extraordinary
educational expenses. Father petitioned the court to make these changes retroactive to
the filing of the petition.

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       The case was heard on January 25, 2017, and the court heard testimony from
Mother and Father. In an order entered on February 21, 2017, the trial court found that
Mother was the primary residential parent of Dani, Father was the primary residential
parent of Michael, and that there was “a significant variance to justify review and
modification of the Mother’s child support obligation which the Court finds to be $2,100
per month.” On the issue of extraordinary educational expenses, the trial court found the
parties’ provision requiring mutual agreement on private school to carry “no force and
effect” and determined that the issue of private schooling was “clearly under the control
of the Court.” The trial court ruled that the parties “shall be responsible for their pro rata
share of the children’s tuition, books, fees and other reasonable and necessary expenses
associated with private elementary and secondary schooling.” The trial court ordered that
the increase in child support and the award of extraordinary educational expenses would
be retroactive to January 1, 2015. This decision resulted in a judgment for retroactive
child support in the amount of $31,278 and for tuition arrears in the amount of $57,146.
The court awarded Father his reasonable attorney fees.

                                          Issues on Appeal

        Mother raises the following issues on appeal:

    1. Whether the trial court erred in setting child support based on 183 and 182 days,
       respectively, and not on 182.5 days.
    2. Whether the trial court erred in deviating from the child support guidelines based
       on extraordinary educational expenses.
    3. Whether the trial court erred in retroactively applying the deviation for
       extraordinary educational expenses.
    4. Whether the trial court erred in awarding Father his attorney fees incurred in
       prosecuting his petition.
    5. Whether the trial court erred in not awarding Mother her attorney fees incurred in
       defending Father’s petition.
    6. Whether Mother should be awarded her attorney fees on appeal.

Father asserts that he should be awarded his attorney fees on appeal.

                                              ANALYSIS

                                          (1) Child Support

       Mother argues that the trial court erred in its calculation of child support.1 In
particular, Mother asserts that the trial court erred in using 183 and 182 days for each

1
 Mother does not dispute the trial court’s finding of a significant variance justifying a modification of
child support.
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child in calculating child support instead of 182.5 days because the parties spent an equal
amount of time with each child.

       We review the trial court’s findings of fact de novo with a presumption of
correctness unless the preponderance of the evidence is otherwise. TENN. R. APP. P.
13(d); Milam v. Milam, No. M2011-00715-COA-R3-CV, 2012 WL 1799029, at *3
(Tenn. Ct. App. May 17, 2012). With respect to the calculation of child support, the
following principles apply:

       Setting child support is a discretionary matter. See State ex rel. Coleman v.
       Clay, 805 S.W.2d at 755. Accordingly, we review child support decisions
       using the deferential “abuse of discretion” standard of review. This standard
       requires us to consider (1) whether the decision has a sufficient evidentiary
       foundation, (2) whether the court correctly identified and properly applied
       the appropriate legal principles, and (3) whether the decision is within the
       range of acceptable alternatives. See BIF v. Service Constr. Co., No. 87-
       136-II, 1988 WL 72409, at *2 (Tenn. Ct. App. July 13, 1988) (No Tenn. R.
       App. P. 11 application filed). While we will set aside a discretionary
       decision if it rests on an inadequate evidentiary foundation or if it is
       contrary to the governing law, we will not substitute our judgment for that
       of the trial court merely because we might have chosen another alternative.

State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).

       The child support calculation depends, in part, upon the number of days each child
spends with each parent. The child support guidelines contemplate that the number of
days a child spends with each parent “will be the actual number of days spent in the care
of each parent, as opposed to the number of days established under the permanent
parenting plan.” Hibbens v. Rue, No. E2014-00829-COA-R3-CV, 2015 WL 3643421, at
*6 (Tenn. Ct. App. June 12, 2015). The child support worksheet attached to the parties’
original parenting plan showed the number of days each child was to spend with each
parent was 182.5. Mother argues that the same should be true now. Father disagrees,
arguing that the parties do not actually spend equal time with the children. He asserts
that the child support worksheet should be as the trial court ruled: Father has 183 days
with Michael and 182 days with Dani; and Mother has 183 days with Dani and 182 days
with Michael. Thus, the issue on appeal is a factual dispute.

       Mother and Father testified they followed the schedule described in the permanent
parenting plan with one exception, namely the provision whereby they were each to have
one of the children on President’s Day. Instead, whichever parent had the children under
the normal day-to-day schedule would have them on President’s Day. Mother testified
on cross-examination as follows:


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A. The Parenting Plan states that we split the children on that day, no
matter who they go to in the rotation.
Q. Okay. That’s right.
A. That Michael stays with Charles and Dani stays with me.
Q. But you agree, don’t you, that from 2011 forward, you haven’t
exercised any of your President’s Day at all; they have always stayed with
Mr. Vance?
A. President’s Day hasn’t always fallen on Mr. Vance’s week.
Q. Do you agree or disagree, ma’am, that from 2011 forward, you have not
exercised that President’s Day holiday with the children?
A. I would have to check a calendar. I know that we have never split the
children on President’s Day. And I would be shocked if, in that number of
years, that one of those days did not fall on my time where I had Michael
instead of Charles having Michael on that day.
Q. You’re not sure about that, are you, ma’am.
A. I am not sure about that.
Q. Did you bring a calendar?
A. I have a calendar on my phone, yes.
....
WITNESS: Both of them would have been with Charles. In 2015, on
February 16th, they would have both been with their father.
BY MR. PARSLEY:
Q. Okay. So ’14 is with dad and ’15 is with dad, right?
A. Well, ’16 with dad and ’15 with dad.
Q. Well, wouldn’t you have gotten one of those years?
THE COURT: Let’s let her look.
MR. PARSLEY: I’m sorry, Judge.
WITNESS: So this calendar is from my work, employment, so from ’14
backward, I am not going to have my children on my phone.

Father’s testimony on the issue of the President’s Day was as follows:

Q. Did you have both the children President’s Day in 2015?
A. I did.
Q. Did you have both of the children for President’s Day in 2016?
A. I did.
Q. In fact, tell His Honor what years you’ve had both children for
President’s Day.
A. Since 2011.
Q. All right, sir.
THE COURT: Ever since 2011?
WITNESS: Yes, sir, both. She has not exercised it since 2011.


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       BY MR. PARSLEY:
       Q. Each year, both children, correct?
       A. Correct.
       Q. So, really, if we added—you could add another day on for each child
       and take one off for her, couldn’t you?
       A. Yes, sir.

       In its order, the trial court made the following findings:

       [A] review of the parenting schedule reflects an equal division of the
       parenting time except for the President’s Day holiday when each parent was
       to exercise parenting time with the child with whom they had been awarded
       183 days. This specific parenting schedule is supportive of the parties’
       intent that each would be designated the Primary Residential Parent for one
       of the children. Further, the Father testified that since the divorce of the
       parties, he had always exercised the President’s Day holiday with his minor
       son. The Mother reviewed her calendar and acknowledged that for at least
       the last two years, the Father had the parties’ minor son on the President’s
       Day holiday although she insists that the Father in reality had both children
       on the 2015 and 2016 President’s Day holiday. Her calendar did not extend
       past 2015, and she had no recollection of how the President’s Day holiday
       had been exercised prior to 2015. . . . Where the Parenting Plan specifically
       sets forth each parent’s days of parenting time with an accompanying
       schedule supportive of the specified days, and one parent strictly follows
       the schedule and the other parent chooses not to, the failure of the
       delinquent parent in exercising her parenting time should not be the basis
       for a modification of child support.

        According to the evidence presented at trial, the amount of the child support award
would vary depending upon the number of days of parenting time. The trial court
awarded Father $2,100 a month in child support. We have concluded, however, that the
trial court erred in awarding this amount. The parties agree that the parenting time is
equal with the exception of President’s Day. In its order, the trial court implicitly found
that Father exercised parenting time with Dani every President’s Day and that Mother did
not, giving Father another day of parenting time with Dani. Thus, Father would have 183
days of parenting time with Dani and Mother would have 182.

     We conclude that the trial court erred in the amount of the child support award.
We remand the matter to the trial court for recalculation of the award.




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                         (2) Extraordinary Educational Expenses

       Mother argues that the trial court erred in deviating from the child support
guidelines based upon extraordinary educational expenses. In particular, Mother asserts
that the trial court erred in failing to enforce the parties’ agreement to require mutual
agreement of the parties before sending either of the children to private school.

       Mother testified that she was aware that the children were attending private school
but that she never agreed to their attendance there. When she filed her May 19, 2014
answer to Father’s original petition to modify, however, Mother was more
straightforward. Mother stated:

       The language of the Parenting Plan is very clear on this. Father is the one
       who wanted the children to attend private school. Mother has agreed for
       the children to continue in private school as Father has requested.
       However, she has at all times made it clear that she will not commit herself
       to pay for private school. Father has not alleged in [sic] change in
       circumstance that would necessitate modifying this provision of the
       Parenting Plan.

(Emphasis added). Based upon Mother’s answer, we conclude that she, in fact, agreed
for the children to attend private school through the 2013-2014 school year and, in
accordance with the trial court’s findings, is required to pay her pro rata share of the
tuition and associated costs.

       As to the subsequent years, the evidence is that Mother did not agree for the
children to attend private school. Tennessee law encourages divorcing parties to resolve
by agreement their differences on issues including child support and will enforce such
agreements, although certain portions remain subject to modification by the courts. See
Penland v. Penland, 521 S.W.2d 222, 224 (Tenn. 1975). “When the husband and wife
contract with respect to the legal duty of child support, upon approval of that contract, the
agreement of the parties becomes merged into the decree and loses its contractual
nature.” Id. The child support provision loses its contractual nature because of the
continuing statutory power of the Court to modify child support. Id. Thus, “any
agreement between the parents regarding the payment of child support of a minor child is
within the legal obligation to support the minor child and, therefore, is subject to court
modification once the agreement is merged into a divorce decree.” Kesser v. Kesser, 201
S.W.3d 636, 643 (Tenn. 2006).

       The child support guidelines govern the amount of child support awarded. Jones v.
Jones, 930 S.W.2d 541, 544 (Tenn. 1996). The trial court has the authority to deviate



                                            -7-
from the child support guidelines, but it must do so in accordance with the requirements
of the guidelines. TENN. COMP. R. & REGS. 1240-02-04-.07(1)(b).2

          The Tennessee Child Support Guidelines specifically address educational
          expenses as a deviation from the standard child support amounts. The child
          support provisions under the old guidelines stated that “[e]xtraordinary
          educational expenses . . . shall be added to the percentage calculated in the
          above rule [setting out the percentage of net income to be paid as child
          support].” Barnett v. Barnett, 27 S.W.3d 904, 907 (Tenn. 2000) (emphasis
          added). However, “[i]n 2005 the child support guidelines were revised to
          provide that additional support for extraordinary educational expenses
          should be calculated separately and ‘may’ be added to the basic support
          award.” Kaplan v. Bugalla, 188 S.W.3d 632, 638 n.9 (Tenn. 2006). This
          Court has previously determined that the change in wording under the
          Guidelines from “shall” to “may” grants the trial court discretion in
          determining payment of private school tuition. Johnson v. Johnson, No.
          M2008-00236-COA-R3-CV, 2009 WL 890893, at *10 (Tenn. Ct. App.
          Apr. 2, 2009).

Martin v. Martin, No. W2014-01007-COA-R3-CV, 2015 WL 2400583, at *6 (Tenn. Ct.
App. May 20, 2015). The child support guidelines provide:

          (i) Extraordinary educational expenses may be added to the presumptive
          child support as a deviation. Extraordinary education expenses include, but
          are not limited to, tuition, room and board, lab fees, books, fees, and other
          reasonable and necessary expenses associated with special needs education
          or private elementary and/or secondary schooling that are appropriate to the
          parents’ financial abilities and to the lifestyle of the child if the parents and
          child were living together.

          (ii) In determining the amount of deviation for extraordinary educational
          expenses, scholarships, grants, stipends, and other cost-reducing programs
          received by or on behalf of the child shall be considered.

2
    Tenn. Comp. R. & Regs 1240-02-04-.07(1)(b) states:

          The tribunal may order as a deviation an amount of support different from the amount of
          the presumptive child support order if the deviation complies with the requirements of
          this paragraph (1) and with this chapter. The amount or method of such deviation is
          within the discretion of the tribunal provided, however, the tribunal must state in its order
          the basis for the deviation and the amount the child support order would have been
          without the deviation. In deviating from the Guidelines, primary consideration must be
          given to the best interest of the child for whom support under these Guidelines is being
          determined.
                                                     -8-
       (iii) If a deviation is allowed for extraordinary educational expenses, a
       monthly average of these expenses shall be based on evidence of prior or
       anticipated expenses and entered on the Worksheet in the deviation section.

TENN. COMP. R. & REGS. 1240-02-04-.07(2)(d)(1). Furthermore, the Guidelines establish
certain requirements for deviating from the presumptive child support amount. TENN.
COMP. R. & REGS. 1240-02-04-.07(1)(c). The Guidelines also provide that these expenses
should be considered on a case-by-case basis and that the courts should also consider
whether the private elementary or secondary schooling is “appropriate to the parents’
financial abilities and to the lifestyle of the child if the parents and the child were living
together.” TENN. COMP. R. & REGS. 1240-02-04-.07(2)(d) & (d)(1)(i).

       It is clear from the guidelines that extraordinary educational expenses, such as
private school costs, are a part of child support, even though separately calculated. TENN.
COMP. R. & REGS. 1240-02-04-.07(2)(d)(1). The agreement made by the Vances merges
into the decree. Penland, 521 S.W.2d at 224. Thus, the Vances’ provision “regarding the
payment of child support . . . is subject to court modification. . . .” Kesser, 201 S.W.3d at
643. The use of the word “may” in TENN. COMP. R. & REGS. 1240-02-04-.07(2)(d)(1)(i),
grants discretion to the court. Martin, 2015 WL 2400583, at *6 (citing Johnson, 2009 WL
890893, at *10). The court’s discretion is, however, limited by the guidelines. Under
Tenn. Comp. R. & Regs. 1240-02-04-.07(1)(c), in order to support a deviation for
extraordinary educational expenses, the judge must make written findings on:

       1. The reasons for the change or deviation from the presumptive amount of
       child support that would have been paid pursuant to the Guidelines; and

       2. The amount of child support that would have been required under the
       Guidelines if the presumptive amount had not been rebutted; and

       3. How, in its determination,

       (i) Application of the Guidelines would be unjust or inappropriate in the
       particular case before the tribunal; and

       (ii) The best interests of the child for whom support is being determined
       will be served by deviation from the presumptive guideline amount.

The guidelines also provide that these expenses should be considered on a case-by-case
basis and that the courts should also consider whether the private elementary or
secondary schooling is “appropriate to the parents’ financial abilities and to the lifestyle
of the child if the parents and the child were living together.” TENN. COMP. R. & REGS.
1240-02-04-.07(2)(d) & (d)(1)(i).


                                            -9-
        The Vances’ agreement states that both parents must agree for the child to go to
private school. Mother admits she has the money to send her children to private school,
but she philosophically opposes private schools. She testified that, “I believe that a
public school education prepares them better for what they will deal with in society and
in life.” Mother further testified that Father had never asked her about the children
attending private school. She stated that she did not object when Michael continued to
attend private school because she “felt like it was very important to Charles and his
family that that be where the children continue in school.” Mother also admitted that she
had the financial ability to contribute to private school tuition. She testified that her
daughter did “well” in school, but her son was “not a good student.”3 So, despite her
philosophical problems with private schools, she allowed her children to attend one as
long as she did not have to pay.

       Father testified that he and Mother could financially afford to send the children to
private school. He stated that Mother “contributes pro rata to the field trips, after care,
and any other extraordinary expenses.” She did not pay tuition. He further said that he
did not always ask Mother about the children attending private school, but she knew what
he was doing. He claimed Mother “just did not want to pay” for private school tuition.
He also testified that the children were doing “quite well” in school.

       Particularly because these matters “are considered on a case-by-case basis,” Tenn.
Comp. R. & Regs. 1240-02-04-.07(2)(d), the trial court’s findings are important. When
evaluating the trial court’s opinion in light of the findings required by Tenn. Comp. R. &
Regs. 1240–2–4–.07(1)(c), we find that two areas are lacking. The trial court must make
written findings on “how . . . [a]pplication of the Guidelines would be unjust or
inappropriate in the particular case before the tribunal;” and, “how . . . [t]he best interests
of the child for whom support is being determined will be served by deviation from the
presumptive guideline amount.” TENN. COMP. R. & REGS. 1240-02-04-.07(1)(c)(3)(i) &
(ii). The trial court’s discussion on these two points is merely conclusory with no reasons
given.4 Absent these findings, we cannot properly review the trial court’s decision. We
must, therefore, vacate the decision and remand the matter to the trial court for such
findings, based on the record or further testimony.

      In light of our decision to remand the matter of extraordinary educational
expenses, it is unnecessary to address the issues of retroactive application of such fees
and the award of attorney’s fees. The trial court’s decision on these matters is vacated


3
 Mother testified that her son got As and Bs and one C. Mother also testified that she had been a straight
A student.
4
  Specifically, the trial court said, “The court finds that under the facts and circumstances of this case, the
strict application of the guidelines would be unjust or inappropriate. The court further finds that the
aforesaid upward deviation is in the best interest of the parties’ minor children.”
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and the issues are remanded for reconsideration in light of further proceedings of the trial
court.

                                       CONCLUSION

       The judgment of the trial court with respect to extraordinary educational expenses
up to and including the 2013-2014 school year is affirmed, and we vacate and remand the
remainder of the trial court’s judgment regarding extraordinary educational expenses.
We vacate and remand the trial court’s award of child support for reconsideration
consistent with this opinion. We vacate the trial court’s decision on the issues of
retroactive application of extraordinary educational expenses and the award of attorney’s
fees. This matter is remanded with costs of appeal assessed equally against the appellant,
Angela Michelle Taylor Vance, and the appellee, Charles Michael Vance, II, for which
execution may issue if necessary.


                                                    ________________________________
                                                    ANDY D. BENNETT, JUDGE




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