                    IN THE COURT OF APPEALS OF TENNESSEE
                           FOR THE WESTERN SECTION
                                  AT JACKSON



KEVIN KATHLEEN STACEY,                         )
                                               )     No. 02A01-9802-CV-00050
      Plaintiff/Appellee,                      )
                                               )     SHELBY CIRCUIT
v.                                             )
                                               )     Hon. D’Army Bailey, Judge

                                  FILED
                                   October 6, 1999

                                 Cecil Crowson, Jr.
                                Appellate Court Clerk
DONALD RAY STACEY,                           )
                                             )
      Defendant/Appellant.                   )
                                             )



From the Circuit Court of Shelby County, Tennessee
Honorable D’Army Bailey, Judge



Mitchell D. Moskovitz, Memphis, Tennessee
Attorney for Plaintiff/Appellee.



William A. Cohn, Cordova, Tennessee
Attorney for Defendant/Appellant.




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OPINION FILED:

REVERSED IN PART, AFFIRMED IN PART,
MODIFIED AND REMANDED


                                 TATUM, SENIOR JUDGE

HIGHERS, J.: (Concurs)
FARMER, J.: (Concurs)

                                         OPINION

       Donald Ray Stacey (Husband) appeals an order modifying the terms of the parties’

final decree of divorce.   After almost twenty-eight years of marriage, the parties were

divorced on July 6, 1995. The final decree was subsequently amended on July 14, 1995, to

require Husband to pay attorney’s fees to Kevin Kathleen Stacey (Wife). Three children

were born during the course of the marriage, but only one child, Zachary, was still a minor at

the time of the couple’s divorce.     Pursuant to the Amended Final Decree of Divorce

(amended final decree), Wife was granted sole custody of the minor child with Husband

having reasonable visitation. Husband was ordered to pay $1,300.00 in child support per

month plus the Child Support Guidelines amount of 21% of his annual bonus up to a total

gross income of $9,900.00 (bonus and base salary).

       On September 2, 1997, Wife filed a Petition to Modify Final Decree of Divorce and

for Civil and Criminal Contempt seeking, among other things, to increase Husband’s child

support obligation. The matter of the increase in child support was subsequently referred to

a divorce referee. In her petition, Wife alleged that there currently existed a material change

in circumstances, as well as a significant variance, sufficient to justify an increase in the

amount of child support. After a hearing on November 18, 1997, the divorce referee found

that there had not been a significant variance in child support since the entry of the amended




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final decree and denied Wife’s petition. The unrefuted proof before the divorce referee

showed that Husband’s income in 1997 at International Paper Company was $120,270.78

for the first eight and one half months of the year. This figure included $48,437.50 in stock

option income. In 1996, Husband’s base salary was $103,572, his bonus was $24,000,

and his stock option income was $18,600. The amount of child support ordered in the

amended final decree ($1,300 per month) was based on a monthly base salary of

approximately $8,900, or an annual salary of $106,800 per year.

       Wife appealed the referee’s ruling to the Circuit Court of Tennessee in Shelby

County. On January 20, 1998, the Circuit Court judge entered the original Order Denying

Petition to Modify Final Decree and an Order Appealing Divorce Referee’s Ruling and

Modifying Final Decree of Divorce. In its order, the trial court made the following changes to

the final decree:

              1.     The Amended Final Decree of Absolute Divorce
                     entered in this cause on July 14, 1995, shall be
                     modified in that Defendant, Donald Ray Stacey
                     (hereinafter “Husband”), shall pay child support
                     commensurate with the Tennessee Department of
                     Children’s Services Child Support Guidelines.
                     There shall be no cap of $9,900 per month in child
                     support and Husband shall pay child support for
                     his bonus, base salary, and option income
                     consistent with the amendment to the Tennessee
                     Department of Children’s Services Child Support
                     Guidelines and Rule 1240-2-4-.04(3).
              2.     Husband shall continue to pay 21% from his
                     annual bonus and from stock option income
                     pursuant to the Child Support Guidelines.
              3.     Husband shall pay to Wife’s counsel, Mitchell D.
                     Moskovitz, an attorney fee in the amount of
                     $1,500.

       Husband subsequently filed a motion to set aside the trial court’s order, which was

denied on February 6, 1998. He has appealed to this Court alleging that the Circuit Court

improperly modified the amended final decree without the required finding of a material

change in circumstances. Wife has raised the following issues on appeal pursuant to

Tennessee Rule of Appellate Procedure 13(a): (1) whether the trial court erred in its failure




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to find a significant variance and increase Husband’s child support obligation from $1,300

to $1,991 per month; (2) whether the trial court correctly ordered Husband to pay child

support pursuant to Tennessee Code Annotated § 36-5-101 and the Tennessee Child

Support Guidelines; and (3) whether this Court should award Wife attorney’s fees for the

cost incidental to Wife having to argue this appeal.

       We review appeals of child support orders de novo on the record with a presumption

of correctness of the trial court’s findings of fact, unless the preponderance of evidence is

otherwise. Tenn. R. App. P. 13(d); Turner v. Turner, 919 S.W.2d 340, 345 (Tenn. Ct. App.

1995), perm. app. denied , (Tenn. 1996). After a careful review of the record, we find that

we must reverse in part, affirm in part, and modify the ruling of the trial court.

       In reviewing Husband’s contention that Wife must show a substantial and material

change in circumstances in order to modify his child support obligation in the amended final

decree, we take note that this is not the proper standard for determining whether an existing

child support order should be modified.        Tennessee Code Annotated § 36-5-101(a)(1)

(1998) governs the criteria that the court must use in modifying child support in this case:

               In cases involving child support, upon application of either party,
               the court shall decree an increase or decrease of such
               allowance when there is found to be a significant variance, as
               defined in the child support guidelines established by
               subsection (e), between the guidelines and the amount of
               support currently ordered unless the variance has resulted from
               a previously court-ordered deviation from the guidelines and the
               circumstances which caused the deviation have not changed. 1

The version of this section that was in effect before July 1, 1994, allowed the trial court to

modify an existing child support order only when a “substantial and material change of

circumstances” existed. Tenn. Code Ann. § 36-5-101(a)(1) (1991); Turner , 919 S.W.2d at

342. The statute was amended in 1994, and the standard for modification was changed to

require that, in a case such as the one before the court, the court shall determine if there is

a “significant variance” between the guideline amount of child support on the obligor’s

present income and the existing amount of support ordered.                  Tenn. Code Ann. §




                                                                                                  Page 4
36-5-101(a)(1) (1996); 1994 Tenn. Pub. Acts 987 § 3 (effective date July 1, 1994). The rule

promulgated by the Department of Human Services that also took effect on July 1, 1994,

defines a “significant variance” as “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) (1994);

Turner , 919 S.W.2d at 343 & n.4. Therefore, in a case such as this, the significant variance

test, rather than the change of circumstances test, is the correct standard for modification of

a child support order.

       The trial court in this case did not make a determination as to whether a significant

variance existed between the current child support guidelines amount and the child support

ordered in the amended final decree. In his ruling, the Circuit Court judge found that

Husband’s option income in 1996 and 1997 was not income subject to payment of child

support:

              But I fall on the side that it’s [option income] not income, and I
              indicated previously, I’m drawn to that’s essentially by the way it
              was treated, essentially, at the time of the divorce. But this is
              one of those decisions that I make, that I frankly can see the
              merits of the Court of Appeals saying I’m wrong.

However, the court ruled that any stock options exercised in the future were to be

considered as income, and the guideline amount of child support was to be paid from that

source.

       As to the $9,900 cap on gross income in the amended final decree, the court held:

              I’m saying the cap is removed now. At least in order in my mind
              to bring the language of the decree into line with the existing
              law.

                                               ***
              I didn’t find -- I didn’t make a finding one way or the other on
              [change in] circumstances. I didn’t find that there was no
              change, nor did I find that there was a change. I simply ruled as
              a matter of law that the cap of $9,900 ought not to apply.

       In our opinion, the trial court erred in failing to determine whether a significant

variance existed under the guidelines that would justify a modification of the amended final

decree. However, we are able to make such a determination from the record.



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                                               I.

                                Stock Options as Income

       First, we must examine the basis for the existing child support order and Husband’s

current income in order to determine if modification is appropriate. Turner , 919 S.W.2d at

344. The Child Support Guidelines define “gross income” as:

              Gross income shall include all income from any source (before
              taxes and other deductions), whether earned or unearned, and
              includes but is not limited to, the following: wages, salaries,
              commissions, bonuses, overtime payments, dividends,
              severance pay, pensions, interest, trust income, annuities,
              capital gains, benefits received from the Social Security
              Administration, i.e., Title II Social Security
              benefits, workers compensation benefits whether temporary or
              permanent, judgments recovered for personal injuries,
              unemployment insurance benefits, gifts, prizes, lottery winnings,
              alimony or maintenance, and income from self employment.
              Income from self-employment includes income from business
              operations and rental properties, etc., less reasonable
              expenses necessary to produce such income. Depreciation,
              home offices, excessive promotional, excessive travel,
              excessive car expenses, or excessive personal expenses, etc.,
              should not be considered reasonable expenses. “In kind”
              remuneration must also be imputed as income, i.e., fringe
              benefits such as a company car, the value of on-base lodging
              and meals in lieu of BAQ and BAS for military member, etc.

Tenn. Comp. R. & Reg. ch. 1240-2-4-.03(3)(a). It appears, then, that income encompasses

monies from such things as dividends on stock, capital gains from the sale of assets, gifts,

and even lottery winnings. There is no exemption for income or capital gains from assets

that are dispersed as part of the marital property. However, we have previously held that

the guidelines do not require that an isolated capital gains transaction, such as the sale of a

car, be included in the gross income of the non-custodial parent. Eubank v. Eubank , No.

02A01-9110-CV-00242, 1992 WL 295546, at *3 (Tenn. Ct. App. Oct. 20, 1992).

       In examining the basis for the existing child support obligation in the present case,

we find that all of the Husband’s potential income was not factored into his original support

obligation. The International Paper stock options were given to Husband as part of the

division of marital property but were only valued at $14,950 in 1995. 2 The amended final




                                                                                                  Page 6
decree designated bonuses and base salary as income subject to child support, but no

provision was made for income from Husband’s exercise of stock options after 1995. 3

While Husband’s base salary has not changed significantly since child support was

originally set, it is undisputed that Husband received stock option income of $18,600 in

1996 and $48,437.50 in 1997 that he has not been required to pay child support out of. It is

clear that Husband received a substantial increase in the amount of his disposable income

as a result of the exercise of his stock options, and there is nothing in the record to suggest

that he will not continue to receive this in the future. The guidelines do not allow the trial

court to ignore income from the exercise of stock options in setting child support. Smith v.

Smith , No. 01A-01-9705-CH-00216, 1997 WL 672646, at *3 (Tenn. Ct. App. Oct. 29,

1997). In addition, Husband’s exercise of these options is not an isolated capital gains

transaction.

       The trial court should have taken Husband’s stock options income into consideration

in determining whether a significant variance exists. Since the amount of the option income

varies from year to year, it would be fair to average the option income in 1996 and 1997

and add this figure to Husband’s base salary. This would give a more realistic income

figure for the purpose of determining whether a significant variance exists, since the option

income received by Husband in 1997 is substantially higher than the previous year. The

guidelines support such averaging of variable income. Tenn. Comp. R. & Reg. ch.

1240-2-4-.03(3)(b). The average gross stock option income for 1996 and 1997 is

$33,519. When this is added to Husband’s base salary for 1997 of approximately

$108,000, the resulting income for 1997 is $141,519 or $11,793 gross income per month.

The amount of child support due on this amount of income is approximately $1,762. 4 There

is greater than a 15% difference between the current child support obligation and the

guidelines amount on Husband’s present income, even without taking any bonuses into

consideration. A significant variance exists which justifies modification of the decree.

We also believe that the trial court exceeded its authority by ordering an automatic



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adjustment of child support from the bonus and stock option income. Tennessee Code

Annotated § 36-5-101(a)(2)(A) only allows the court to set a definite amount of support to

be paid at regular intervals. See Smith , 1997 WL 672646, at *2. A definite obligation

provides a predictable amount of support for the dependant children and enables the

non-custodial parent to plan to pay a known amount each month. Id. (quoting Lovan v.

Lovan , No. 01-A-01-9607-CV-00317 (Tenn. Ct. App. Jan. 17, 1997)). Allowing the obligor

to calculate his own child support obligation is fraught with problems and can cause

needless conflict and litigation between the parents over relatively minor amounts of money.

In fact, there was such a disagreement in this case over the Husband’s calculation of the

amount of support due out of his 1996 bonus. Such time-consuming quarrels will be

avoided if the trial court sets a definite amount that all parties can count on each month.

Setting a definite amount also enables a trial court to determine if the obligor is complying

with court orders. We, therefore, reverse the trial court’s order denying Wife’s Petition to

Modify Final Decree of Divorce and the portion of the trial court’s order that only requires

Husband to pay 21% of his future bonuses and stock options. In determining a figure for

Husband’s annual income which takes into account all of his variable income, we believe

that bonuses and option income should be averaged and added to Husband’s base salary. 5

This gives us an annual gross income of $159,369, or $13,281 per month. The child

support obligation on this amount is $1,973 per month. 6 Husband’s child support obligation

is hereby increased to $1,973 per month, effective October 5, 1997. Tenn. Code Ann. §

36-5-101(a)(5).

                                                II.

                                 Removal of Cap on Income

         In its order, the trial court also removed the $9,900 cap on Husband’s income

subject to child support in the amended final decree. We find that this comports with the

present state of the law governing child support and affirm this portion of the trial court’s

order.


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       When the amended final decree was entered in 1995, the Child Support Guidelines

imposed a cap on the amount of net income that was subject to a child support obligation. §

1240-2-4-.04(3) (1989) of the guidelines reads as follows:

              The court must order child support based upon the appropriate
              percentage of all net income of the obligor as defined
              according to 1240-2-4-.03 of this rule but alternative payment
              arrangements may be made for the award from that portion that
              exceeds $6,250.

The gross monthly income that would produce $6,250 in net income was approximately

$9,900. That is apparently why the income cap on base salary plus bonus income was

included in the amended final decree, and the option income was not dealt with at all. In

other words, the Husband’s base salary plus his bonus income, which averaged $21,750,

would virtually always meet or exceed the cap, so the option income properly was not

considered. This section of the guidelines had been replaced by the time the divorce

referee heard Wife’s petition to modify the final decree with the following language:

              The court must consider all income of the obligor as defined
              according to 1240-2-4-.03 of this rule. The court must order
              child support based upon the appropriate percentage to the
              custodial parent up to a net $10,000 per month of the obligor’s
              income. When the net income of the obligor exceeds $10,000
              per month, the court may consider a downward deviation from
              the guidelines if the obligor demonstrates that the percentage
              applied to the excess of the net income above $10,000 a
              month exceeds a reasonable amount of child support based
              upon the best interest of the child and the circumstances of the
              parties. The court may require that sums paid above the
              percentage applied to the net income above $10,000 be
              placed in an educational or other trust fund for the benefit of the
              child.

Tenn. Comp. R. & Reg. ch. 1240-2-4-.04(3) (effective October 5, 1997). In order to bring

the amended final decree into compliance with current law, the trial judge removed the cap

on Husband’s income, which could now include the option income. We agree with the

removal of the cap and affirm this portion of the trial judge’s order.

                                               III.

                                  Award of Attorney’s Fees




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       Husband contends that the trial court improperly ordered him to pay attorney’s fees

to Wife’s counsel for having to bring this action to recover child support. The recovery of

reasonable attorney’s fees in child support matters has been authorized by statute in

Tennessee for many years. Tenn. Code Ann. § 36-5-103(c) ; Deas v. Deas , 774 S.W.2d

167, 169 (Tenn. 1989). The parties’ minor child is entitled to recover attorney’s fees

incurred on his behalf; otherwise, he would be helpless to enforce his right to support. See

id. (quoting Graham v. Graham , 140 Tenn. 328, 204 S.W. 987 (1918)). Awarding fees is

within the discretion of the court, and no abuse of discretion occurred in this case. We

affirm the portion of the trial court’s order awarding attorney’s fees to Wife. In addition, we

hold that Wife is also entitled to recover her attorney’s fees for this appeal.

       IV.

                                          Conclusion

       We reverse the trial court’s order denying Wife’s Petition to Modify Final Decree of

Divorce and the portion of the trial court’s order that requires Husband to pay 21% from his

annual bonus and stock option income. We affirm the portion of the order removing the

$9,900 per month cap on income subject to the Child Support Guidelines and awarding

Wife her attorney’s fees. The Amended Final Decree of Divorce is hereby modified to

require Husband to pay $1,973 per month in child support, which takes into account bonus

income, stock option income, and base salary, to be effective October 5, 1997, consistent

with this opinion. Furthermore, we remand this cause to the trial court to set attorney’s fees

for this appeal.

       The judgment of the trial court is modified as herein stated, and the case is

remanded to the trial court for the setting of attorney’s fees for appeal and for such further

proceedings as are necessary.




                                                        F. LLOYD TATUM, SENIOR JUDGE


                                                                                                  Page 10
CONCUR:




ALAN. E. HIGHERS, JUDGE




DAVID R. FARMER, JUDGE




                          Page 11
