                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 September 20, 2000 Session

    LOUIS ERNEST CUNNINGHAM v. CHERYL LYNNE CHEATHAM
                       CUNNINGHAM

                Direct Appeal from the Chancery Court for Madison County
                          No. 53334    Joe C. Morris, Chancellor



                   No. W1999-02054-COA-R3-CV - Filed October 20, 2000



This appeal involves a divorce after seven years of marriage. The trial court granted the wife a
divorce, divided the property, awarded the wife rehabilitative alimony and alimony in solido,
awarded child support for the parties’ minor child, established an educational trust fund, and ordered
the husband to maintain life insurance for so long as he is obligated to pay child support. On appeal,
husband takes issue with all of the above and also raises the constitutionality of the child support
guidelines. In addition, wife takes issue with the failure of the trial court to award her litigation
expenses. We have determined that the trial court’s judgment should be affirmed in part, reversed
in part and remanded.


Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part,
                           Reversed in part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.
and JOHN EVERETT WILLIAMS, SP. J., joined.

Kay Farese Turner and William E. Miller, Memphis, Tennessee; J. C. Cox, Jackson, Tennessee for
the appellant, Louis Ernest Cunningham.

Mary Jo Middlebrooks, Jackson, Tennessee, for the appellee, Cheryl Lynne Cheatham Cunningham.

Paul G. Summers, Attorney General and Reporter; Stuart Wilson-Patton, Assistant Attorney General,
for the State of Tennessee.

                                             OPINION

       Dr. Louis Cunningham (Dr. Cunningham) and Cheryl Cheatham Cunningham (Ms.
Cunningham) were married on October 20, 1990, and separated on July 15, 1995. Divorce
proceedings were instituted after the parties were married for seven years, and Ms. Cunningham was
awarded the divorce on the grounds of inappropriate marital conduct. The final divorce decree was
entered on January 20, 1999. The parties were awarded joint custody of their daughter, Avery
Cunningham (Avery), with Avery’s primary domicile being with Ms. Cunningham. In the final
divorce decree, Dr. Cunningham was given the privilege of exercising approximately 160 days of
visitation with Avery. 1

        Dr. Cunningham is a board certified cardiologist and has practiced medicine since 1979. He
is the sole practitioner at the Mid-South Heart Center, Inc., a professional corporation. Dr.
Cunningham’s gross earnings at the time of the divorce were approximately $82,000.00 a month,
with a net of $52,000.00 per month. He currently pays court-ordered child support from a previous
marriage.

        Ms. Cunningham has a college degree in special education and is licensed to teach.
Currently, Ms. Cunningham is a homemaker, but she was previously employed as a medical
equipment salesperson and as the business administrator of the Mid-South Heart Center. Ms.
Cunningham’s salary ranged from $30,000.00 to $70,000.00 per year while working as a medical
equipment salesperson, and her base salary at the Mid-South Heart Center was between $40,000.00
and $50,000.00 per year. Ms. Cunningham does not intend to work outside of the home, preferring
instead to remain at home with Avery.

       Dr. Cunningham came into the marriage with a separate estate which included a
condominium in Nashville, Tennessee, and real estate in Jackson, Tennessee. Ms. Cunningham
came into the marriage with no separate resources, no inheritances, and no separate money. In 1993,
Dr. Cunningham began the Mid-South Heart Center, his thriving medical practice. Ms. Cunningham
founded two businesses during the parties’ marriage, Cunningham, Searcy and Associates in 1991
and Sheryl’s Shuttle in 1994. Both of these business ventures failed.

        The trial court awarded Ms. Cunningham the parties’ house on Sunhaven Drive, the
household furnishings and appliances therein, the 1994 Lexus, one-half of the parties’ First
Tennessee and Union Planters bank accounts, and one-half of the insurance policies2 with Ameritus
Insurance Company and Prudential Insurance Company. Further, the court awarded Ms.
Cunningham her profit sharing in the Mid-South Heart Center and one-half of Dr. Cunningham’s
profit sharing in the same. Ms. Cunningham is responsible for the outstanding debts to Union
Planters, Visa, and a Memphis law firm.

      Dr. Cunningham was awarded the remainder of the marital assets, including the Mid-South
Heart Center and its attached goodwill, and is responsible for the remaining marital debts.

         1
          Specifically, the court provide d Dr. Cu nningh am w ith visitation ev ery wee kend (F riday thro ugh Su nday), a
half day on Avery’s birthday, the whole day on his birthday and on Father’s Day, alternating holidays (Easter, Memorial
Day, Fourth of July, Labor Day , Thanksgiving), equal time at Christmas, and six weeks during the sum mer.
         2
           Although this is the language of the trial court’s decree, we assume Ms. Cunningham actually received one-
half of the cash surren der value of the A meritus policy an d of the Prude ntial policies.

                                                           -2-
Additionally, the court ordered Dr. Cunningham to pay $450,000.00 as alimony in solido; $6,000.00
per month for seven years as rehabilitative alimony; $6,200.00 per month in child support; and
$4,486.00 per month into a college educational trust fund for Avery. In its subsequent amended
order of absolute divorce, the trial court also ordered Dr. Cunningham to maintain a life insurance
policy of $900,000.00 for so long as he has any child support obligations.

        Dr. Cunningham filed a motion for a new trial on September 1, 1999, alleging for the first
time that the trial court’s setting of child support based upon the child support guidelines was a
violation of his constitutional rights guaranteed by the equal protection clauses of the United States
and Tennessee Constitutions. The Attorney General submitted a brief in defense of the Tennessee
Child Support Guidelines on October 8, 1999. A hearing on this matter was held on December 15,
1999, and the trial court denied the motion for new trial on December 30, 1999.

       Dr. Cunningham is appealing the decision of the trial court, raising the following issues, as
we perceive them, for this court’s review:

       1.      Whether the trial court erred in finding that the Mid-South Heart Center has a value
               of $1,300,000.00.

       2.      Whether the trial court erred in awarding Ms. Cunningham $450,000.00 in alimony
               in solido.

       3.      Whether the trial court erred in its division of marital property and liabilities.

       4.      Whether the trial court erred in awarding Ms. Cunningham rehabilitative alimony.

       5.      Whether the trial court erred in requiring Dr. Cunningham to pay cash child support
               of $6,200.00 per month due to his increased visitation.

       6.      Whether the trial court erred in requiring Dr. Cunningham to contribute $4,486.00
               per month toward a college educational trust fund for Avery in that such a
               requirement violates the equal protection clauses of both the United States and
               Tennessee Constitutions.

       7.      Whether the trial court erred in failing to grant a downward deviation from the
               Tennessee Child Support Guidelines.

       8.      Whether the trial court erred in requiring Dr. Cunningham to maintain life insurance
               of $900,000.00 for as long as he has a child support obligation.




                                                 -3-
Additionally, Ms. Cunningham raises the issue of whether the trial court erred in not awarding her
litigation expenses. We will now address each issue in turn.

                            Valuation of the Mid-South Heart Center

         The valuation of a marital asset is a question of fact. It is determined by considering all
relevant evidence, and each party bears the burden of bringing forth competent evidence. See
Wallace v. Wallace, 733 S.W.2d 102, 107 (Tenn. Ct. App. 1987). If the evidence of value is
conflicting, the trial judge may assign a value that is within the range of values supported by the
evidence. See Ray v. Ray, 916 S.W.2d 469, 470 (Tenn. Ct. App. 1995). On appeal, we presume the
trial judge’s factual determinations are correct unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).

        Both Dr. Cunningham and Ms. Cunningham retained experts to place a value on Dr.
Cunningham’s medical practice. Dr. Cunningham’s expert testified that the value of the practice as
of April 30, 1998, was $546,710.00. Ms. Cunningham’s expert valued the Mid-South Heart Center
at $1,059,947.00 as of April 30, 1998, of which $417,083.00 was attributable to goodwill. The trial
court found that the value of the Mid-South Heart Center was $1,300,000.00. Ms. Cunningham
conceded that $1,059,947.00 was the correct value of the medical practice as compared to the
$1,300,000.00 she listed on her financial statement. Regarding the goodwill of the medical center,
the court stated, “[t]he Mid South Heart Center, Inc. is awarded to Dr. Cunningham and any
professional goodwill which is attached to the Heart Center. Dr. Cunningham is a sole practitioner,
and the goodwill is not a marital asset which the Court has considered.”

        In a professional practice, as well as in a sole proprietorship business, the success of the
business is dependent on the owner thereof. The physical and tangible assets of a business have
ascertainable value; however, the goodwill of a business, although essentially a thing of value, does
not have a property interest separate from the business itself. Goodwill is, in essence, the reputation
of the professional practice. The reputation of the practice, hence its goodwill, is valuable to the
owner of the practice, and it cannot be separately sold or pledged. This court addressed the issue of
the valuation of goodwill as a marital asset in Smith v. Smith, 709 S.W.2d 588, 592 (Tenn. Ct. App.
1985). In Smith, we said that professional goodwill is not a marital asset to be considered in making
an equitable distribution of the marital estate. Accordingly, we have determined that the evidence
preponderates against the trial judge’s finding that the value of the Mid-South Heart Center is
$1,300,000.00. Ms. Cunningham’s expert testified that the value of the Mid-South Heart Center was
$1,059,947.00. The expert attributed $417,083.00 of that amount to the goodwill of the professional
practice. By this court’s calculations, then, the value placed on the Mid-South Heart Center by Ms.
Cunningham’s expert, without the allowance for goodwill, is $624,864.00. Dr. Cunningham’s expert
testified that the value of the professional practice was $546,710.00. The expert did not factor
goodwill into his valuation, thus, the $546,710.00 figure reflects the value Dr. Cunningham’s expert
placed on the professional practice without an allowance for goodwill. For the foregoing reasons,
we reverse and remand this issue to the trial court for an assignment of value to the Mid-South Heart



                                                 -4-
Center within the range of values supported by the evidence, namely between $546,710.00 and
$624,864.00.

                                                   Alimony in Solido

        Whether an alimony award is appropriate is dependent on the facts and circumstances of
 each case. While the alimony analysis is factually driven, the court must also balance several
statutory factors including those enumerated in section 36-5-101(d) of the Tennessee Code.3


       3
           Section 36-5-101(d) provides

       (d)(1) It is the intent of the general assembly that a spouse who is economically disadvantaged,
       relative to the other spouse, be rehabilitated whenever possible by the granting of an order for
       payment o f reh ab ilitativ e, tem p o rary support and maintena nc e . W here there is such rela tive econ omic
       disadvantage and rehabilitation is not feasible in consideration of all relevant factors, including those
       set out in this subsection, then the court may grant an order for payment of support and maintenance
       on a long-term basis or until the death or remarriage of the recipient except as otherw ise provid ed in
       subdivision (a)(3). Reh abilitative sup port and mainten ance is a sep arate class of spousal support as
       distinguished from alimony in solido and periodic alimony. In determining whether the granting of
       an order for payment of support and maintenance to a party is appropriate, and in determining the
       nature, amount, length of term, and m anner of paymen t, the court shall consider all relevant facto rs,
       including:
                            (A) The relative earning capacity, obligations, needs, and financial
                 resources of each party, including income from pension, profit sharing or
                 retirement plans an d all other sources;
                            (B) The relative education and training of each party, the ability and
                  oppor tunity of each p arty to secu re such ed ucation a nd trainin g, and the necessity
                  of a party to secure further education and training to improve such party’s earning
                  capacity to a reasona ble level;
                            (C) The duration of the marriage;
                            (D) The age and mental condition of each party;
                            (E) The physical condition of each party, including, but not limited to,
                  physical disability or incapacity due to a chronic debilitating disease;
                            (F) The extent to which it would be undesirable for a party to seek
                  employment outside the home because such party will be custodian of a minor
                  child of the marriage;
                            (G) The sep arate assets of each party, both real and personal, tangible and
                  intangible;
                            (H) The pro visions m ade with regard to the marital property as defined
                  in § 36-4-121;
                            (I) The standard of living of the parties established during the marriage;
                            (J) The extent to which each party has made such tangible an d intangib le
                  contributions to the marriage as monetary and homemaker contributions, and
                  tangible and intan gible con tributions b y a party to the educ ation, training or
                  increased earning power of the other party;
                            (K) The relative fault of the parties in cases whe re the cou rt, in its
                  discretion, deems it appropriate to do so; and
                            (L) Such other factors, including the tax consequences to each party, as
                                                                                                                    (continu ed...)

                                                              -5-
Although all statutory factors listed in section 36-5-101(d)(1) are important and are considered by
the trial court, need and the ability to pay are the critical factors in setting the amount of an alimony
award. See Anderton v. Anderton, 988 S.W.2d 675 (Tenn. Ct. App. 1998); Long v. Long, 957
S.W.2d 825 (Tenn. Ct. App. 1997); Luna v. Luna, 718 S.W.2d 673 (Tenn. Ct. App. 1986).

         Section 36-5-101(d)(1)(H) of the Tennessee Code lists the division of marital property as a
factor to be considered by the trial court when it determines an alimony award. In the instant case,
the trial court divided the marital assets and liabilities as follows:

 Recipient                      Assets                Liabilities            Net Award               Distribution
 Appellant                   $1,655,593.05           ($365,560.00)           $1,290,033.05               78.5%
 Appellee                      $371,621.34             ($18,980.00)             $352,641.34              21.5%
 Totals                      $2,027,214.39           ($384,540.00)           $1,642,674.39

After dividing the marital estate, the trial court awarded Ms. Cunningham alimony in solido in the
amount of $450,000.00. Based upon the fact that under section 36-5-101(d)(1)(H) of the Tennessee
Code the division of marital property is a factor in determining an alimony award and that Dr.
Cunningham’s medical practice was valued incorrectly, we reverse the trial court’s award of alimony
in solido. We remand this case for a redetermination of alimony in light of our decision regarding
the valuation of the Mid-South Heart Center.

                                             Division of Marital Property

        After characterizing the parties’ property as either marital or separate, the trial court
makes an equitable division of marital assets. An equitable division of property does not
necessarily mean an equal division. See Bookout v. Bookout, 954 S.W.2d 730 (Tenn. Ct. App.
1997); Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988). In determining what
constitutes an equitable division of marital assets, the court must consider the factors listed in




         3
          (...continued)
                   are necessary to co nsider the equities betw een the parties.
                   (2) An award of rehabilitative, temporary support and maintenance shall remain in the court’s control
         or the duration fo such awa rd, and may be increased, dec reased, terminated , or extended, or o therwise
         modified, upon a showin g of sub stantial and m aterial chan ge in circu mstanc es. Rehabilitative support and
         maintenance shall terminate upon the death of the recipient. Such sup port and m aintenance shall also
         termina te upon the death of the payor unless otherwise specifically stated. The recipient of the support and
         maintenance shall have the burd en of pro ving that a ll reasonab le efforts at rehabilitation have been made and
         have be en unsu ccessful.

Tenn. C ode An n. § 36-5 -101(d ) (1999 ).

                                                          -6-
section 36-4-121(c) of the Tennessee Code.4 The trial court is granted broad discretion in
adjusting and adjudicating the parties’ interest in all jointly owned property. Its decision
regarding division of the marital property is entitled to great weight on appeal. Watters v.
Watters, 959 S.W.2d 585, 590 (Tenn. Ct. App. 1997). The fairness of the property division is
judged upon its final results.

        Section 36-4-121(c)(1) of the Tennessee Code is noteworthy. This section makes the
duration of the marriage a factor the trial court can consider in determining the distribution of
marital property. Where the marriage is of a short duration, “it is appropriate to divide the
property in a way that, as nearly as possible, places the parties in the same position they would
have been in had the marriage never taken place.” Batson, 769 S.W.2d at 859 (citing In re
Marriage of McInnis, 62 Or. App. 524 P.2d 942, 943 (1983)). In cases involving a marriage of
relatively short duration, each spouse’s contributions to the accumulation of marital assets is an
important factor. See Batson, 769 S.W.2d at 859 (citing In re Marriage of Peru, 641 P.2d 646,
647 (Or. Ct. App. 1982)).

        The court below based its decision concerning the division of marital property on an
incorrect valuation of a major asset, the Mid-South Heart Center. This court notes that changing
the value of the medical practice will substantially change the distribution of marital property.
This court also notes that the Cunninghams were married for only a little less than five years
prior to the parties’ separation in July, 1995. For the foregoing reasons, this court finds it



        4
            Section 36-4-121(c) of the Tennessee Code states

        In making equitable division of marital property, the court shall consider all relevant factors including:
                         (1) The duration of the marriage;
                         (2) The age, physical and mental health, vocational skills, employability, earning
                capacity, estate, financial liabilities and financial n eeds of each o f the parties;
                         (3) The tang ible or inta ngible co ntribution by one (1) party to the education,
                training or increased earning power of the other party;
                         (4) The relative ability of each party for future acquisitions of capital assets and
                income;
                         (5) The contribution of each party to the acquisition, preservation, appreciation or
                dissipation of the marital or separate property, including the contribution of a party to the
                marriage as homemaker, wage earner or parent, with the contribution of a party as
                homemaker or wage e arner to be given the same weight if each party has fulfilled its role;
                         (6) The value of the separate property of each party;
                         (7) The estate of each party at the time of the marriage;
                         (8) The economic circumstances of each party at the time the division o f proper ty
                is to become effective;
                         (9) The tax consequences to each party; and
                         (10) Such other factors as are necessary to consider the equities between the
                parties.

Tenn. Code An n. § 36-4-121(c) (1999).

                                                         -7-
necessary to reverse the trial court’s division of marital property and remand this case for a
determination of a fair property division in light of the new value given to the medical practice.

                                      Rehabilitative Alimony

        An award of rehabilitative alimony must be predicated upon a finding that the recipient
spouse can be economically rehabilitated. See Tenn. Code Ann. § 36-5-101 (1999). Whether the
recipient spouse can be rehabilitated must be determined according to “[t]he standard of living of
the parties established during the marriage.” Tenn. Code Ann. § 36-5-101(d)(1)(I) (1999); see
Robertson v. Robertson, No. E2000-01698-COA-RM-CV, 2000 WL 1211314, at *2 (Tenn. Ct.
App. Aug. 25, 2000), perm. app. pending. A court does not reach the issue of rehabilitation
unless the recipient spouse is economically disadvantaged relative to the other spouse. If the
recipient spouse is found to be disadvantaged relative to the other spouse, the trial court should
determine the nature, amount, length, and manner of payment of alimony. Once awarded,
rehabilitative alimony may be modified.

               An award of rehabilitative, temporary support and maintenance shall
       remain in the court’s control for the duration of such award, and may be increased,
       decreased, terminated, extended, or otherwise modified, upon a showing of
       substantial and material change in circumstances. . . . The recipient of the support
       and maintenance shall have the burden of proving that all reasonable efforts at
       rehabilitation have been made and have been unsuccessful.

Crabtree v. Crabtree, 16 S.W.3d 356, 359 (Tenn. 2000) (citing Tenn. Code Ann. § 36-5-
101(d)(2)(1999)) (emphasis omitted). The trial court found that Ms. Cunningham’s
rehabilitation was possible. That conclusion is supported by the record, and it is clear to us that
Ms. Cunningham is economically disadvantaged relative to Dr. Cunningham. Section 36-5-
101(d)(1)(H) of the Tennessee Code, however, makes the division of marital property a factor in
determining the proper amount to award as alimony. Because we have previously found that the
trial court erred in its valuation of Dr. Cunningham’s medical practice, this court finds it only just
that we reverse the trial court’s award of rehabilitative alimony and remand this cause for a
determination of alimony in light of the new valuation of the Mid-South Heart Center.

                                           Child Support

        Dr. Cunningham raises two issues regarding child support: (1) whether the trial court
erred in requiring him to pay $6,200.00 per month due to his increased visitation; and (2)
whether the trial court erred in failing to grant a downward deviation from the guidelines. We
will discuss each issue below.

        While the trial court’s findings of fact are entitled to a presumption of correctness on
appeal, the lower court’s discretion is tempered by the child support guidelines. Tenn. R. App. P.
13(d); Jones v. Jones, 930 S.W.2d 541, 544 (Tenn. 1996). Statutory authority provides for a


                                                 -8-
rebuttable presumption that the percentage amount of child support provided in the guidelines is
the correct amount. However, “[the guidelines] are subject to deviation upward or downward
when the assumptions on which they are based do not pertain to a particular situation.” Nash v.
Mulle, 846 S.W.2d 803, 805 (Tenn. 1993). In order to justify a deviation from this amount, the
trial court must make written findings outlining the reasons for this deviation. These reasons
must show that the deviation is either in the best interest of the child; that the child support
guidelines would be unjust or inappropriate; or that a deviation is needed to maintain equity
between the parties. See Tenn. Code Ann. § 36-5-101(e)(1) (1999). In Jones v. Jones, the
Tennessee Supreme Court discussed when such deviations were appropriate:

       While § 36-5-101(e)(1) does authorize deviation in order to ensure equity between
       the parties, and while downward deviation is clearly not prohibited, the trial
       court’s authority to do so must be considered in light of the provisions dealing
       with such deviation – Rule 1240-2-4-.04(2) and (4). Although not exclusive,
       those subsections provide for downward deviation in three instances: (1) where
       DHS has taken custody of the child(ren) pursuant to a neglect, dependency, or
       abuse action; (2) where the child(ren) spend more visitation time with the obligor
       than is assumed by the guidelines; and (3) in cases in which the obligor is
       subjected to an “extreme economic hardship,” such as where other children living
       with the obligor have extraordinary needs. Therefore, the guidelines expressly
       provide for downward deviation where the obligee has utterly ceased to care for
       the child(ren); where the obligee clearly has a lower level of child care expense
       than that assumed in the guidelines; and where the obligor is saddled with an
       “extreme economic hardship.” Although the rule does not purport to set forth an
       exhaustive list of instances in which downward deviation is allowed, these
       specific instances nevertheless are a powerful indication as to the types of
       situations in which it is contemplated under the guidelines.

Jones, 930 S.W.2d at 545 (emphasis omitted).

        Pursuant to the statutory guidelines, the court can authorize a downward deviation if it
finds that the child’s overnight time is divided more equally between the parents. See Tenn.
Comp. R. & Regs. tit. 10, ch. 1240-2-4-.02(6) (1997). In situations where the overnight time is
more equally divided between the parents, the court will make a case-by-case determination as to
the appropriate amount of support; however, a downward deviation from the guideline amount is
in the court’s discretion:

       If the child(ren) is/are not staying overnight with the obligor for the average
       visitation period of every other weekend from Friday evening to Sunday evening,
       two weeks during the summer and two weeks during holiday periods throughout
       the year, then an amount shall be added to the percentage calculated in the above
       rule to compensate the obligee for the cost of providing care for the child(ren) for
       the amount of time during the average visitation period that the child(ren) is/are


                                                -9-
       not with the obligor. The court may consider a downward deviation from the
       guidelines if the obligor demonstrates that he/she is consistently providing more
       care and supervision for the children than contemplated in the rule.

Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.04(1)(b) (1997) (emphasis added) (citations
omitted). “In deviating from the guidelines, primary consideration must be given to the best
interest of the child(ren) for whose support the guidelines are being utilized.” Tenn. Comp. R. &
Regs. tit. 10, ch. 1240-2-4-.04(5) (1997); see also Contreras v. Ward, 831 S.W.2d 288, 289
(Tenn. Ct. App. 1991).

       The guidelines further provide as follows:

       The court must consider all net 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 of $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 circumstances of the parties.

Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.04(3) (1997) (emphasis added).

        In the instant case, the trial court determined the amount Dr. Cunningham was required to
pay in child support as follows:

               $991,459.00    Gross Wages
               - 362,422.00   Tax
               $629,037.00
               - 4,055.00     Social Security Tax
               $624,982.00
               - 14,377.00    Medicare Tax
               $610,605.00    Net Income
               x       21%    Guideline Percentage for One Child
               $128,227.00    Annual Child Support
               ÷         12
               $ 10,686.00    Monthly Child Support

The trial court ordered that $6,200.00 of the $10,686.00 monthly child support be paid directly to
Ms. Cunningham, and that the remaining $4,486.00 be put into a college educational trust fund.
Dr. Cunningham argues that this amount of child support is incorrect for two reasons. First, he
argues that the guidelines provide for child support up to a net of $10,000.00 per month of his
income. The trial court below based Dr. Cunningham’s child support obligation upon 21% of his


                                               -10-
net income. Dr. Cunningham argues that the trial court should have set his child support
obligation based upon 21% of a net of $10,000.00 per month, or $2,100.00. Secondly, Dr.
Cunningham argues that he is entitled to a downward deviation from the guideline amount
because he exercises above average visitation with his daughter as compared to that
contemplated by the guidelines.

         We must remember that child support determinations are made with the child’s best
interest in mind, not the best interests of the custodial and non-custodial parents. After a
thorough review of the language of the guidelines, this court cannot determine that the trial court
abused its discretion in not ordering child support based upon a monthly net income of
$10,000.00. Dr. Cunningham’s child has been accustomed to a very high standard of living all of
her life, and the intent of the guidelines is to ensure that the economic impact on the child is
minimized when the parents live separately and, to the extent that one parent enjoys a higher
standard of living, that the child enjoys in that higher standard. See Barnett v. Barnett, E1997-
00010-SC-R11-CV, 2000 WL 1246453, at *4 (Tenn. Sept. 5, 2000). Additionally, Dr.
Cunningham has the ability to pay child support in the manner determined by the trial court.
Because the statute clearly provides trial courts with the discretion to set child support payments
based on a monthly net income in excess of $10,000.00, this court finds that the trial court did
not improperly determine Dr. Cunningham’s net income nor did it improperly determine the
amount of child support Dr. Cunningham is obligated to pay. We now turn to the issue of
whether Dr. Cunningham’s child support obligation should be reduced in light of his increased
visitation with Avery.

        The guidelines clearly provide that the trial court may consider a downward deviation
from the guideline amount where the non-custodial parent is exercising more visitation than that
contemplated in the guidelines. See Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.04(b) (1997).
Additionally, the Tennessee Supreme Court, in Jones v. Jones, 930 S.W.2d 541, 545 n.5 (Tenn.
1996), stated, “[i]f the child(ren) spend more time with the obligor than is assumed by Tenn.
Comp. R. & Regs., ch. 1240-2-4-.02(6), . . . the obligor’s child support payments should be
reduced.” We agree. The child support guidelines assume that a non-custodial parent will
exercise 80 days of visitation with the minor child(ren), and the amount of support provided for
in the guidelines is based upon such a visitation schedule. In the case at bar, the trial court
provided Dr. Cunningham with the privilege to exercise approximately 160 days of visitation
with Avery. 5 We must presume, until the evidence proves otherwise, that Dr. Cunningham is
exercising this 160 days of visitation with his minor daughter. For the foregoing reasons, this
court reverses the trial court’s determination of child support, and we remand for a downward
deviation based upon Dr. Cunningham’s increased visitation with Avery. Additionally, the trial
court shall make written findings to this effect.




       5
           See supra note 1 for the court ordered visitation schedule.

                                                         -11-
                                     Educational Trust Fund

        The child support guidelines give the trial court the discretion to establish an educational
trust fund as a form of child support where the obligor parent’s net monthly income is in excess
of $10,000.00. See Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.04(3) (1997) (“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.”). The trial court below ordered
that $4,486.00 of the $10,686.00 monthly child support be paid by Dr. Cunningham into a
college educational trust fund for Avery. Dr. Cunningham argues on appeal that requiring him to
pay $4,486.00 per month into a college trust fund is unconstitutional in that such a requirement
violates the equal protection provisions of both the United States and Tennessee Constitutions.

       At trial, Dr. Cunningham testified as follows:

       Q.      Now, in regard to the support of Avery, do you intend to support Avery?

       A.      Yes, I intend to support Avery and I’m certainly going to do whatever the Court
               requires of me and the record shows that I’ll do over and above what the Court
               requires of me in regard to Avery’s welfare. . . .
       ....

       Q.      Do you intend to provide life insurance for her?

       A.      Yes.

       Q.      Now, although you wouldn’t legally be required to pay her college education,
               what would you like to do in that regard, as far as supporting her?

       A.      Well, you know, I certainly have my dream and vision for Avery to go to college
               and beyond and I want that to be possible. You know, to my way of thinking, the
               best way to do that would be through a trust fund so that it could start now and be
               there for Avery and be enough for Avery when she gets to college. . . .

       Q.      Would you like for the Court to provide for that trust fund with some of the
               child support?

       A.      Yes.

It is apparent that the trial court did exactly what Dr. Cunningham requested the court to do –
establish an educational trust fund with some of the funds allotted for child support. We
determine, based upon the evidence deduced at trial, that Dr. Cunningham waived his
constitutional argument, and thus, we decline to address the constitutionality of the child support
guidelines on this appeal.


                                                -12-
                                          Life Insurance

       Section 36-5-101(g) of the Tennessee Code provides

       The court may direct either or both parties to designate the other party and the
       children of the marriage as beneficiaries under any existing policies insuring the
       life of either party and maintenance of existing policies insuring the life of either
       party, or the purchase and maintenance of life insurance and designation of
       beneficiaries.

Tenn. Code Ann. § 36-5-101(g) (1999).

        In Young v. Young, 971 S.W.2d 386 (Tenn. Ct. App. 1997), this court was faced with the
issue of whether the trial judge erred in ordering Mr. Young to purchase and maintain a
$50,000.00 life insurance policy to secure his alimony and child support payments. Judge
Highers, writing for this court, held

       [b]ecause [section 36-5-101(g) of the Tennessee Code] expressly provides that the
       trial judge may direct a party to purchase and maintain a life insurance policy for
       the benefit of the other party and children of the marriage, the legislature
       specifically left the determination of whether to order a party to procure insurance
       for the benefit of the other party and children of the marriage to the discretion of
       the trial court. We will not interfere with the trial court’s exercise of its discretion
       absent a showing of abuse.

Id. at 392. We find no abuse of discretion by the trial court in ordering Dr. Cunningham to
maintain a $900,000.00 life insurance policy to secure his child support payment. However,
because we have reversed and remanded the lower court’s determination of child support in light
of Dr. Cunningham’s increased visitation, we must reverse and remand this issue to the trial
court for a determination of the proper amount of life insurance once it determines the proper
amount of child support consistent with this opinion.

                                        Litigation Expenses

        Trial courts have the discretion to award additional sums to defray the legal costs
resulting from a divorce proceeding. Fox v. Fox, 657 S.W.2d 747, 749 (Tenn. 1983); Palmer v.
Palmer, 562 S.W.2d 833, 838-39 (Tenn. Ct. App. 1977). In divorce cases, awards for litigation
expenses are considered alimony in solido, Houghland v. Houghland, 844 S.W.2d 619, 623
(Tenn. Ct. App. 1992), and are appropriate when one spouse is economically disadvantaged,
lacks sufficient resources with which to pay attorney’s fees, or would be required to deplete one’s
resources. See Herrera v. Herrera, 944 S.W.2d 379, 390 (Tenn. Ct. App. 1996); Brown v.
Brown, 913 S.W.2d 163, 170 (Tenn. Ct. App. 1994). Ms. Cunningham will receive a substantial
sum as a result of the modified division of marital property and alimony. We believe these


                                                -13-
awards will provide Ms. Cunningham with sufficient resources to pay her litigation expenses.
Accordingly, we affirm the trial court’s decision not to award attorney’s fees to Ms.
Cunningham.

                                           Conclusion

        For the foregoing reasons, we affirm in part and reverse in part the decision of the trial
court. In summary, we remand the case to the trial court for the valuation of the Mid-South Heart
Center consistent with this opinion; the redetermination of alimony in solido and rehabilitative
alimony in light of the new valuation of the Mid-South Heart Center; the division of marital
assets based upon the new valuation of the Mid-South Heart Center; the redetermination of child
support after a downward deviation due to the increased visitation of Avery by Dr. Cunningham
and for written findings to that effect; and lastly for the determination of the proper amount of
life insurance Dr. Cunningham shall be required to maintain based upon the redetermination of
his child support obligation. We tax the costs of this appeal equally to both parties, Dr. Louis
Cunningham and Ms. Cheryl Cunningham, and their sureties, for which execution may issue if
necessary.



                                                     ___________________________________
                                                     DAVID R. FARMER, JUDGE




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