                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 August 23, 2011 Session

                               IN RE: BRITTANY M.A.

                  Appeal from the Juvenile Court for Wilson County
                   No. 00-JWC-113      Hon. John T. Gwin, Judge


                 No. M2010-02173-COA-R3-JV - Filed October 5, 2011




The petition filed by the father asked that the father become primary residential parent of the
child, and that child support be set pursuant to Tennessee child support guidelines. At an
evidentiary hearing, the Trial Judge granted the father temporary custody of the child and
gave the mother parenting time with the child on two weekends each month. The father's
obligation of child support was suspended, and the Trial Court set the matter for further
hearing five months later. At the conclusion of that hearing the Trial Court determined that
the mother's income was "not less than $90,000.00 per year" and ordered child support and
a back judgment pendente lite for child support. The mother appealed. We hold the Trial
Court's Judgment should be modified because the evidence does not support income at the
level set by the Trial Court. We modify the amount downward to $52,000.00 a year and
remand for the purposes of establishing child support in accordance with these guidelines.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Affirmed, as
                                   Modified.


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., and J OHN W. M CC LARTY, J., joined.


Lewis A. Williams, Nashville, Tennessee, for the appellant, S.D.C.

C. Tracey Parks, Lebanon, Tennessee, for the appellee, J.W.A.
                                          OPINION


        Appellant, S.D.C. (Mother), and Appellee, J.W.A. (Father), are the parents of Brittany
M. A.

       An agreed order was entered in the Juvenile Court of Wilson County on February 7,
2001, establishing the paternity of the father and granting him visitation with the child every
other weekend. The father was ordered to pay the mother $35.00 a week for child support.

       On February 4, 2010 the father filed a petition in the Court asking that he be named
the primary residential parent of the child and that child support be set pursuant to the
Tennessee Child Support Guidelines. He alleged that there had been material and substantial
changes in circumstances since the 2001 order was entered and that it would be in the best
interest of the child to reside with him.

        Following a hearing on February 25, 2010 the Trial Court entered an order awarding
the father temporary custody of the child. The mother was granted parenting time with the
child two weekends each month, and the father’s child support obligation was suspended.
The order provided the matter would be reviewed by the Court on or before July 15, 2010.

        A subsequent hearing was held on July 26, 2010 wherein the mother and father
testified as well as the child, various family members and one of the child’s teachers.
Following the hearing the Trial Court ordered that the father was to be the permanent primary
residential parent, and the mother would have parenting time every other weekend from
Friday afternoon until Sunday evening. The Court found, based solely on the mother’s
testimony, that she worked as a dancer at an adult entertainment venue in Greenville, South
Carolina on weekends and that she averaged between $2,000.00 and $1,500.00 per two or
three days of weekend employment. The Court noted that the mother had testified that she
had made as much as $3,500.00 over one weekend. On that basis, the Court concluded that
the mother’s gross income was “not less than $90,000.00 per year” and made this finding for
the purposes of calculating child support to be paid by the mother to the father. The Court
granted the father a monetary judgment of $4,341.71 against the mother for pendente lite
child support, and the mother was ordered to pay $818.00 for child support each month.

      The mother has appealed, and the only issue raised on appeal is the Trial Court’s
determination of the mother’s income and calculation of the award of retrospective and
prospective child support based on the Trial Court's determination.

        The evidence presented at the hearing that is pertinent to this appeal is the testimony

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of the mother who works as a dancer at the Platinum Plus Gentlemen’s Club in Greenville,
South Carolina. The mother, the child, and a younger child lived with the mother’s parents.
She has worked as a dancer in clubs for the past seven years and at Platinum Plus for two
years. She testified that she works at the club from Friday until early Monday morning. She
leaves home early on Friday mornings, drives five hours to Greenville, works the weekend
and then drives home once she finishes work on Monday morning. The mother’s parents
take care of the children while the mother is away working. The mother explained that she
worked every weekend until the Trial Court granted the father temporary custody on
February 25, 2010. Because the mother was granted parenting time every other weekend by
the order, she stated that she had elected to limit her work to the weekends the child was not
with her. The mother and her mother both testified that she did not work on the weekends
when she had custody of the child.

       The Trial Court’s only evidence for the purpose of calculating child support was based
solely on the mother’s testimony as no other evidence was presented on this issue. The
mother stated, without contradiction, that her average income per weekend was anywhere
from $1,500.00 to $2,000.00 although she had made as little as $1,200.00 and on one
weekend made $3,500.00.

       The issues are:

       A.     Whether the Trial Court abused its discretion when it found the mother’s gross
              income was not less than $90,000.00 per year for child support purposes?

       B.     Whether the Trial Court abused its discretion by not imputing the statutorily
              mandated income for child support purposes?

       This Court in State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244 (Tenn. Ct. App. 2000)
discussed the standard for review of a trial court’s setting of child support as follows:

       Setting child support is a discretionary matter. See State ex rel. Coleman v. Clay, 805
       S.W.2d 752, 755 (Tenn. 1991). 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

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       because we might have chosen another alternative.

Vaughn at 248.

       Accordingly, we are required to determine whether the Trial Court abused its
discretion when it determined the mother's gross income.

       In her testimony, the mother said that in the event the father was awarded permanent
custody and her visitation remained every other weekend, she would continue to work just
the weekends when she did not have the child. The mother also explained how her income
was derived. She stated it came from cash tips and that she worked as an independent
contractor. The father did not present any evidence regarding the mother’s income, nor was
her testimony regarding her earnings challenged on cross-examination by the father’s
counsel.

         The Trial Court's finding of the mother's income did not include any reason or analysis
for its conclusion. It appears that the Trial Court based its finding on the Mother’s testimony
that on one weekend in July 2010 she had made $3,500.001 in tips when it found that her
income was not less than $90,000.00. This conclusion is not supported by the evidence. The
Trial Court’s income determination was not based on a sufficient evidentiary foundation nor
was it within the range of acceptable alternatives. We conclude the Trial Court abused its
discretion in its determination of the mother's income. The evidence clearly preponderates
and it is reasonable to conclude that the mother's average income based on a $2,000.00
average per weekend is $52,000.00 per years.

       The mother argues that in determining gross income for purposes of establishing an
order for child support a court is required to follow the clear rules promulgated by the Child
Support Guidelines. Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(i)(I),(II) and (III) which
provides:

       When Establishing an Initial Order:

       I. If a parent fails to produce reliable evidence of income (such as tax returns for prior
       years, check stubs, or other information for determining current ability to support or
       ability to support in prior years for calculating retroactive support); and

       II. The tribunal has no reliable evidence of the parent's income or income potential;



       1
           $3,500 x 26 = $91,000.

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       III. Then, in such cases, gross income for the current and prior years shall be
       determined by imputing annual gross income of thirty-seven thousand five hundred
       eight-nine dollars ($37,589) for male parents and twenty-nine thousand three hundred
       dollars ($29,300) for female parents. These figures represent the full time, year round
       workers' median gross income, for the Tennessee population only, from the American
       Community Survey of 2006 from the U.S. Census Bureau.

Tenn. Comp. R. & Regs. Rule 1240–02–04–.04(3)(a)(2)(iv)(2008).

       The mother further argues that the evidence produced by her as to her income is
unreliable because she provided an average of her gross income and not her net income,
which would be the gross income minus her job related expenses. However, the mother, who
was represented by counsel at the hearing, had an opportunity to testify regarding
employment related expenses, which she did not do. Her argument on appeal to reduce her
income on expenses which she did not establish at trial, is without merit.

        We discussed the statutory imputation of income under the Child Support Guidelines
in Brewer v. Brewer, M2005-02844-COA-R3-CV, 2007 WL 3005346 (Tenn. Ct. App. Oct.
15, 2007), noting that courts may impute income for purposes of child support when “there
is no reliable evidence of a parent's income” under Tenn. Comp. R. & Regs. 1240-2-4-
.04(3)(a)(2)(i). The Court stated that although the Rule specifically points to tax returns for
prior years and paycheck stubs as reliable evidence, the Rule also expressly anticipates that
other information may be used as reliable evidence insofar as it allows the court to determine
a parent's current ability to support. The Court went on to say that courts, however, may not
impute income for purposes of child support when reliable evidence of a parent's income has
been presented and that the plain language of the Rule indicates that the median income
amount is to be used as a fall back only when the court has no other reliable evidence of the
obligor's income or income potential. Brewer at *8 (citing State ex rel. Rion v. Rion, No.
01A01-9704-CV-00194, 1997 WL 796212 at *2 (Tenn. Ct. App. Dec. 31, 1997)).

       We hold that the evidence presented was sufficiently reliable to determine the
mother's gross income and there is no basis to impute to her an income of $29,300.00, as she
urges the Court to do.

       In sum, the Trial Court abused its discretion when it held the mother’s gross income
was no less than $90,000.00 a year. The preponderance of the evidence is that she averaged
much less than this amount. Our determination of her annual income is $52,000.00 per year,
and we remand to the Trial Court to recompute the retroactive and prospective child support
to be paid by the mother, based on an income of $52,000.00, per annum.



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The cost of the appeal is assessed one-half to the father and one-half to the mother.




                                           _________________________________
                                           HERSCHEL PICKENS FRANKS, P.J.




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