                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 September 20, 2002 Session

                                  VERNESSA EKELEM
                                          v.
                                 IFEATU “IFY” EKELEM

                    Appeal from the Chancery Court for Madison County
                         No. 56951 Ron E. Harmon, Chancellor



                     No. W2001-02986-COA-R3-CV - Filed April 16, 2003


This is a divorce case. Both parties are physicians. Both have children from previous marriages,
and they have three children together. The parties’ three children were minors at the time of the
divorce hearing. The father earned substantial income in 1996, which fell precipitously when he
started his own medical practice in 1998. His medical practice, however, owns luxury vehicles, and
the father owns a large home with significant acreage. The trial court found the father’s earning
capacity to be at the level of the mother’s income, set child support based on that earning capacity,
and established the father’s parenting time with the parties’ children. The father was ordered to
assume the parties’ tax debt, and to cease making derogatory remarks about the mother. On appeal,
the father argues that the trial court erred in setting child support, in setting parenting time, in
assigning the tax liability to him, and in enjoining him from making derogatory comments about the
mother. We affirm as modified, and remand, awarding the mother attorney’s fees for this appeal.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed as
                                Modified and Remanded

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

Ifeatu Ekelem, College Grove, Tennessee, Pro Se.

James F. Butler, Jackson, Tennessee, for appellee, Vernessa Ekelem.
                                                      OPINION

         Plaintiff/Appellee Vernessa Ekelem (“Mother”) and Defendant/Appellant Ifeatu Ekelem
(“Father”) were married in February 1995. Mother is a pediatrician, Father is a neonatologist.1
Father has three children from a previous marriage; Mother has two children from a previous
marriage. Prior to their marriage, the parties entered into a prenuptial agreement which provided,
inter alia, that in the event of divorce, the parties would retain their separate property, refrain from
seeking spousal support, including alimony and attorney’s fees, each be responsible for his or her
own federal income tax liability, and if they had any children, to seek a joint custody arrangement.

        Mother and Father had three children together. In January 2000, Mother filed for legal
separation, citing irreconcilable differences. Father counter-claimed for divorce. At the time of the
divorce hearing, Father was forty-seven years old, Mother was forty-two years old, and their children
were ages six, five, and two. Mother sought custody of the children as well as child support.

        On January 25, 2000, the trial court awarded temporary custody to Mother. She was later
awarded $1,100 per month in temporary child support. On October 24, 2000, the trial court awarded
Father parenting time with the parties’ children. The children were to see him on alternate weekends
and on every Wednesday from 1:00 p.m. to 7:00 p.m.

        An Interim Decree of Absolute Divorce was entered on January 12, 2001. The remaining
issues were reserved for the final hearing on the parties’ divorce.

        Prior to the hearing, a myriad of motions were filed by both parties. Among the motions,
Father moved to have Chancellor Joe Morris recuse himself from the case, arguing that his prior
orders indicated that he was biased. Initially, Chancellor Morris declined to recuse himself, but
decided to do so after Father filed suit against him in federal court.2 Chancellor Ron Harmon was
subsequently appointed to hear the case.

        On October 5, 2001, Mother filed an emergency motion to terminate Father’s parenting time
with the children. In the motion, Mother alleged that Father, during his parenting time with the
children, left them unsupervised in a public park. Mother said that she was contacted by the police
department to retrieve the children from the park. That day, the trial court issued a temporary
restraining order, enjoining Father from coming about Mother and terminating his parenting time
with the children pending a hearing. Prior to the hearing, Father filed a response to Mother’s motion
to terminate visitation in which he asserted that the children were being supervised at the park by
another adult. On October 16, 2001, after hearing the parties’ arguments, the trial court suspended
Father’s parenting time privileges with the children until the final hearing on all remaining issues,
set for November 14, 2001.


       1
           A neonatologist is a pediatrician with additional training to treat newbo rn babies.

       2
           The record d oes not indicate on what grounds Father sued the Chancellor.

                                                           -2-
        Prior to the final hearing on all remaining issues, the parties agreed that the only personal
property at issue was a joint tax debt owed to the Internal Revenue Service (“IRS”). Thus, the issues
to be determined at trial were the tax debt, child support, custody, and parenting time.

        The hearing was held on November 14, 2001, as scheduled. The evidence showed that
Mother is employed as a pediatrician for Methodist West Tennessee Medical Associates. In this
position, she earns $121,000 per year.

        The evidence showed that in 1996, Father, then in practice as a neonatologist, had a net
income, after taxes, of $219,828. In 1998, Father started his own medical practice, Pediatrics 24.
Father’s tax returns showed that, in 1998, he had a net loss of $48,628. Father’s subsequent tax
returns showed a net income in 1999 of $21,494, and in 2000 a net income of $21,530.

         Both Mother and Father testified at the hearing. Father proceeded at the trial pro se.3 Father
acknowledged that his income as listed on his tax returns for 1998-2000 was drastically reduced
from his 1996 income, prior to opening Pediatrics 24. Father testified that, despite this drastic
reduction in his income, he maintained Pediatrics 24 with offices in Jackson, Tennessee and Martin,
Tennessee. Moreover, he acknowledged that he owned outright a 39.75 acre parcel of land in
College Grove, Tennessee, and said that he had been building a 4,500 square foot home on the
property for many years, but that the home was not yet complete. Father explained that the home
in College Grove was considered “corporate headquarters” for his medical practice. He said that
Pediatrics 24 had purchased two Toyota Land Cruiser vehicles, with monthly notes totaling almost
$2,000. Father admitted that he also owned a 1995 GMC pickup truck, a 1993 Acura NSX sports
car, and a 1988 Mercedes Benz. Father explained that Pediatrics 24 is owned by him and some of
his children, all of whom were minors at the time of the trial, some younger than ten years old. He
testified that he was over $80,000 in arrears in his child support obligation for his children from his
prior marriage.

        In 1996, the parties accrued a tax debt of approximately $51,000. With penalties and interest
this increased to approximately $89,000. Although Father’s tax returns for 1999 and 2000 claimed
that he earned only approximately $21,000 each year, nevertheless, in 2001, Father paid the IRS
$30,000 on the outstanding tax debt. When asked on cross-examination where he obtained this
$30,000, Father explained that he had previously put his retirement savings into his medical practice,
and that the practice paid him back these funds, which were then used to pay down his tax debt.

        Father was also asked about derogatory comments he made about Mother to the parties’
children. After being denied parenting time, Father admitted, he wrote a letter to his children stating:
“Daddy will give this his very best shot—and I promise—no drug addict, prostitute will stand in the
way! . . .” Father testified that this was “not really” a reference to Mother, but rather to Mother’s
brother and “all kind [sic] of people” who visited Mother.


         3
           Father apparently was represented by counsel during a portion of the proceedings, but represented himself at
trial and in this app eal.

                                                         -3-
       Father’s parenting plan proposed that he have custody of the children for six months of each
year. Father proposed that, during months in which he had custody of the children, Mother would
pay him $2,864 per month in child support, and in months in which Mother had custody of the
children, he would pay her $458 per month.

        Mother testified at the hearing as well. She noted that she was given an award by the
American Academy of Pediatrics (“Academy”) for her community service. Just prior to her
receiving the award, Father sent a letter to the Academy accusing Mother of promiscuity, drug
addiction, and adultery. Mother denied Father’s allegations.4

       At one time, the parties’ children were being cared for by a nanny, at a cost of $200 per week.
Father then asked Mother to pay him $200 each week for caring for his children in his office.
Mother agreed to do so for a period of approximately six to eight months, but removed the children
from Father’s care after one child fell and hit her lip on an occasion on which Father had left the
children unattended.

        Mother testified that Father did not financially support the children until he was ordered to
do so by a court. Moreover, he had been held in contempt for failing to honor his child support
obligations.

       Mother also testified about the parties’ tax debt. She said that, in 1996, they had accrued a
tax debt in the amount of $51,154. Penalties and interest had subsequently increased the amount of
the debt to approximately $89,000. Mother introduced into evidence her 1996 W-2 forms, which
showed that her taxes for that year had been withheld by her employers, thus indicating that the tax
debt was for Father’s earnings for 1996. When Father opened Pediatrics 24 in 1998, he asked
Mother to help him with his tax burden. Mother agreed, and opened a joint checking account into
which she transferred over $11,000 from her personal checking account.

        Mother stated that when the children were with Father, they stayed either in Father’s office,
at Father’s girlfriend’s home, or at Father’s unfinished residence in College Grove. She said that
Father’s office was unsuitable because it had only a couch as a sleeping area. When the children
stayed at Father’s College Grove residence, Mother said that they would return with numerous flea
and tick bites. Mother testified that “inbred German Shepherds” roamed Father’s College Grove
property.

       Mother testified that a neonatologist in the Jackson, Tennessee area could expect to earn
between $300,000 to $450,000 per year. In contrast to the approximately $21,000 per year income
claimed on Father’s tax returns, Mother estimated Father’s actual income was at least $150,000.


         4
           Mother admitted that she had used marijuana both in college and in an isolated incident five years earlier, but
testified unequivocally that she had no t used d rugs since that time. The record co ntained no evidenc e con trary to
Mother’s testimony.



                                                           -4-
Based on this income, Mother’s proposed parenting plan requested that she be designated primary
residential parent and be awarded $2,737 per month in child support for the parties’ three children.

        At the conclusion of the hearing, the trial court found that Father was voluntarily
underemployed and that his earning capacity was equal to Mother’s $6,005 per month income.
Based on this earning capacity, the trial court made an upward adjustment in Father’s child support
obligation from $1,100 per month to $2,500 per month. The trial court also ordered Father to
assume the remaining tax arrearage. Mother’s parenting plan was adopted as well. Father was given
“standard” alternate-weekend parenting time as well as other parenting time, provided he has a
suitable place for the children to stay. The trial court noted that Father’s unfinished College Grove
residence and his medical clinic were not suitable. Finally, Father was ordered to cease making
derogatory comments about Mother.5 From this order, Father appeals.

        On appeal, Father argues that the trial court erred in increasing his child support from $1,100
to $2,500 per month for the parties’ three children. He contends that the tax liability was assigned
to him in contravention of the parties’ antenuptial agreement, and asserts that the trial court erred in
limiting his parenting time with the children to only alternate weekends and in prohibiting him from
making disparaging remarks about Mother.6 Mother argues that the trial court’s order should be
affirmed, and requests her attorney’s fees for this appeal.

        Because this case was heard by a trial court sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court below,
unless the evidence preponderates against these findings. See Tenn. R. App. P. 13(d); Wright v. City
of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). Questions of law are reviewed de novo without
a presumption of correctness. Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001) (citation
omitted). The trial court is given wide discretion in making child custody determinations, and will
not be reversed unless the evidence preponderates against the trial court’s decision. Williams v.
Williams, No. W2001-00101-COA-R3-CV, 2002 Tenn. App. LEXIS 440, at *7 (Tenn. Ct. App.
June 20, 2002) (citations omitted). Likewise, a trial court’s distribution of marital debt is reviewed
under an abuse of discretion standard. See Smith v. Smith, No. W2002-00477-COA-R3-CV, 2003
Tenn. App. LEXIS 38, at *11 (Tenn. Ct. App. Jan. 15, 2003). A trial court abuses its discretion
when it reaches a decision against logic that causes a harm to the complaining party or when the trial
court applies an incorrect legal standard. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)
(citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).


         5
          The order of the trial judge states: “The father shall make no further defamatory or derogatory remarks or
com ments about the Mother under any circumstances, oral or written, or including but not limited to, comments that the
Mother is a drug user, prostitute, o r has drug affiliations, or anything along those lines.”

         6
           Father, even though he is representing himself, is required in his appellate brief to cite to specific references
from the trial record. Rules o f the Ct. of App . of Tenn. 6(b); see Paehler v. Union Planters Nat’l Bank, 971 S.W.2d
393, 396 (Tenn . Ct. App. 1997) (“Parties who ch oose to represent themse lves . . . are not excused from comp lying with
app licable substantive and procedural law. . . .”). With a single exce ption, Father failed to d o so here. We nevertheless
add ress the issu es raised on appeal.

                                                            -5-
         Father first argues that the trial court erred in setting his child support payment at $2,500 per
month. Father asserts that he did not open his own medical practice in an effort to evade
responsibility for his obligations, and he maintains that he cannot pay this level of child support. In
its written order, the trial court held:

        The Court affirmatively finds that the Father is voluntarily underemployed; that the
        Father is a neo-natologist and has extensive skills and training and has more training
        and experience that the Mother; that the Father is capable of earning at least the
        amount of money earned by the Mother, who is a pediatrician, employed in the public
        sector, less specialized than Father, and with five minor children living with her at
        home. The Father’s child support obligation is hereby set at $2,500 per month,
        payable for the use and benefit of the parties’ three minor children, which is in
        accordance with the D.H.S. Guidelines, based on Father’s ability to earn. . . .

Thus, the trial court found Father was voluntarily underemployed, found his earning capacity to be
at the level of Mother’s income, and accordingly, set child support at $2,500 per month.

        If the trial court finds that an obligor parent is voluntarily underemployed, it is clearly
authorized to determine the obligor parent’s earning capacity and set child support based on that
level of income. The Rules of Tennessee Department of Human Services Child Support Services
Division state: “[i]f an obligor is wilfully and voluntarily unemployed or underemployed, child
support shall be calculated based on a determination of potential income, as evidenced by
educational level and/or previous work experience.” Tenn. Comp. R. and Regs. 1240-2-4-.03(3)(d)
(1997); see also Watters v. Watters, 22 S.W.3d 817, 820-21 (Tenn. Ct. App. 1999). Based on
Father’s educational level and prior work experience, the trial court was clearly justified in finding
that Father was voluntarily underemployed, and conservative in determining that his potential
income was the same as Mother’s compensation as a pediatrician. Indeed, Father’s real estate,
automobiles and other indicia of wealth make his protestations of poverty ring hollow. The trial
court was obviously skeptical of Father’s assertions that he was unable to afford to pay child support:

        . . . I find it awfully difficult to think that these children deserve less money than the
        bank for two automobiles. . . . [J]ust to be honest with you, that strikes the court as
        a little unusual when you can afford $2,000 a month for automobiles for you and your
        staff, and yet you are complaining about $2,500 a month for three children. . . .

The trial court did not err in declining to permit Father to either choose employment that does not
realize his earning potential, or to allow him to direct his income toward real estate and automobiles
instead of to the support of his children. The trial court’s determination of Father’s child support
obligation is affirmed.

       Father next argues that the trial court erred in assigning the parties’ remaining tax debt to
him, contending that the assignment of the tax liability is in contravention of the parties’ antenuptial
agreement. He asserts that he has been required to pay most of the $89,000 tax burden, and


                                                   -6-
maintains that the antenuptial agreement calls for equitable distribution of the tax debt. While the
trial court has wide discretion in distributing marital assets and debts, an antenuptial agreement may
be utilized to distribute marital property. See Perkinson v. Perkinson, 802 S.W.2d 600, 601 (Tenn.
1990); see also Tenn. Code Ann. § 36-3-501.7 The antenuptial agreement executed by the parties
states in part that:

         If, in connection with any joint Federal Income Tax Return heretofore or hereafter
         filed by the parties, there is a deficiency assessment, the amount ultimately
         determined to be due thereon shall be borne by the party whose deduction, income
         or misreporting resulted in the deficiency assessment. If such a determination can not
         be reasonably made, the parties shall bear the deficiency based upon the pro rata
         Adjusted Gross Income of the parties for the tax year in question.

The federal tax liability at issue in this case accrued as a result of the parties’ 1996 joint tax return.
The evidence showed that federal taxes on Mother’s income were withheld by her employers; thus
indicating that the tax deficiency was for Father’s income. The evidence also showed that Mother
had contributed over $11,000 into a joint account to assist Father in paying the tax debt. Father
testified that he may have put only one or two deposits into the account. Cancelled checks in
evidence indicate that Father wrote checks out of the account to the IRS in a total amount of
approximately $8,000. Thus, based on the evidence at trial, the trial court’s allocation of the tax debt
to Father is consistent with the provisions of the prenuptial agreement and is equitable. This
decision is affirmed.

         Father next argues that the trial court erred in “profoundly limiting visitation” with his
children, by granting him alternate-weekend parenting time and other parenting time, provided that
he has a suitable place for the children to stay. He argues that this is unacceptable, and indicates that
it is contrary to the parties’ antenuptial agreement. In determining child custody, the best interest
of the children, rather than the parents, is the court’s paramount concern. See Tenn. Code Ann. §
36-6-101(a)(2) (“. . .but the court shall have the widest discretion to order a custody agreement that
is in the best interest of the child. . . .”). Even if the prenuptial agreement mandated joint custody,
which it does not, this would not affect the trial court’s authority, indeed, obligation, to determine


         7
             Section 36-3-501 of the Tennessee Co de Annotated provides:

         Notwithstanding any other provision of law to the contrary, except as provided in § 36-3-502
         [regarding creditors’ rights], any antenuptial or prenuptial agreement entered into by spouses
         concerning property owned by either spouse before the marriage which is the subject of such
         agreement shall be binding upon any court having jurisdiction over such spouses and/or such
         agreement if such agreement is determined, in the discretion of such court, to have been entered into
         by such spouses freely, knowledgeably and in good faith and without exertion of duress or undue
         influence upon either spouse. The terms of such agreement shall be enforceable by all remedies
         availab le for enforcement of contract term s.

Tenn. Co de A nn. § 3 6-3-5 01 (200 1).



                                                         -7-
custody and parenting time in accordance with the best interests of the children. See Edwardson v.
Edwardson, 798 S.W.2d 941, 946 (Ky. 1990) (holding that antenuptial agreements are ineffectual
in determining child custody and visitation issues, and stating that, “[w]hile it may go without saying
. . . [q]uestions of child support, child custody, and child visitation are not subject to [antenuptial
agreements].”). In making child custody decisions, “trial courts . . .take into account a number of
factors, including the parents’ demeanor and credibility during the divorce proceedings themselves.
Accordingly, this Court is reluctant to second-guess a trial court’s decisions regarding child
custody.” Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001) (quoting Gaskill v. Gaskill,
936 S.W.2d 626, 631 (Tenn. Ct. App. 1996) (internal quotation marks omitted)).

        Here the evidence indicated that Father paid child support only when ordered to do so, and
was held in contempt for failing to pay in a timely manner. He had left the children unattended in
a park and in his office, and did not have a residence suitable for the children to live with him.
Considering all of the evidence, and with appropriate deference to the trial court’s assessment of the
parties’ demeanor and credibility, we cannot conclude that the trial court erred in awarding custody
to Mother and in establishing the parameters on Father’s parenting time.

        Father also argues that the trial court erred in prohibiting him from making derogatory
remarks about Mother, characterizing it as a “gag order” in violation of his First Amendment rights.
We modify the trial court’s order in this regard, limiting it to remarks or comments about Mother
to the children or in the presence of the children. This does not prevent Mother from obtaining any
other relief against Father, either civil or criminal, for remarks made to others about Mother outside
the presence of the children. Thus, the order is affirmed as modified.

      Mother seeks her attorney’s fees for this appeal. This request is granted, and the case is
remanded to the trial court for a determination of Mother’s reasonable attorney’s fees for this appeal.

       The decision of the trial court is affirmed as modified, and the cause is remanded for further
proceedings consistent with this Opinion. Costs are taxed to appellant, Ifeatu Ekelem, and his surety,
for which execution may issue, if necessary.




                                                       ___________________________________
                                                       HOLLY KIRBY LILLARD, JUDGE




                                                 -8-
