                                                                                            05/21/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  February 21, 2019 Session

           LISA MARIE PATERSON (POTTER) v. SCOTT PATERSON

                   Appeal from the Chancery Court for Johnson County
                        No. 6182     John C. Rambo, Chancellor
                        ___________________________________

                              No. E2018-00599-COA-R3-CV
                          ___________________________________


This appeal involves a request for, inter alia, the modification of child support. Because
the trial court failed to provide sufficient findings of fact and conclusions of law, we are
unable to effectively review the issues raised on appeal. Therefore, we vacate the
judgment of the trial court and remand for further proceedings.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Vacated; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Lisa M. Potter, Mountain City, Tennessee, pro se.

Perry L. Stout, Mountain City, Tennessee, for appellee, Scott D. Paterson.


                                 MEMORANDUM OPINION1

                                       I. BACKGROUND


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides as follows:

       This Court, with the concurrence of all judges participating in the case, may
       affirm, reverse or modify the actions of the trial court by memorandum opinion
       when a formal opinion would have no precedential value. When a case is decided
       by memorandum opinion it shall be designated “MEMORANDUM OPINION,”
       shall not be published, and shall not be cited or relied on for any reason in any
       unrelated case.
       The parties, Lisa M. Potter (“Mother”) and Scott Paterson (“Father”) were married
in Calvert County, Maryland, on June 27, 1998. A daughter (“the Child”) was born on
April 6, 2003. Shortly thereafter, Mother filed for divorce, and on January 24, 2005, she
was awarded residential custody and child support in the amount of $1,107. The parties
have been litigating over custody, visitation, and support since the divorce. In 2007, the
foreign decree was entered in Tennessee. The following year, Father filed a motion to
modify custody and the parenting plan. He asked for a downward deviation to
compensate for travel expenses. Child support was deviated downward to $654 per
month. On July 9, 2009, Father filed a petition to modify child support and the parenting
plan, alleging that he had bought a house in Virginia in order to be closer to the residence
of the Child. He asserted that his income had further significantly decreased since the
entry of the court’s order adopting the parenting plan. On February 3, 2012, a motion to
adjust child support was filed by Father requesting a greater reduction in child support
and credit for overpayments made during the past 12 months.

       A “Statement of Evidence” filed by the trial court on June 14, 2018, and revised
by the court on July 13, 2018, provides further history as follows:

                There were five hearings set that were continued. Hearing
                dates were May 4, 2012, July 13, 2012, August 31, 2012,
                November 29, 2012 and March 21, 2013.

                On May 20, 2013, there was an Emergency Hearing and
                Motion for Contempt Hearing. Several facts and findings
                were set forth in the Order from that day.

                Scott Paterson, Plaintiff/Appellee, appealed the decision. The
                Judgment was reversed and the case remanded on May 28,
                2014.2

                From January 2015 to September of 2015 there were nineteen
                (19) entries to this file . . . includ[ing] several child support
                proposals. On September 4, 2015, this case was referred to
                The Court Clinic for evaluation of child, parties, and their
                recommendations.

                On February 10, 2016 the Report was submitted to Chancery
                Court from The Court Clinic . . . .

                On September 13, 2016 Scott Paterson, Plaintiff/Appellee,
                filed a Motion and Response to Court Clinic. It was during

       2
           No. E2013-01569-COA-R3-CV (Tenn. Ct. App. May 28, 2014).
                                              -2-
          this filing that the request was made for equal decision
          making; equal or more parenting time; and change of pickup
          and drop-off location.

          On September 28, 2016, parties were ordered to mediation
          and Clerk and Master to work on child support calculations.
          When attorney for Defendant/Appellant requested that the
          self-employed child support guidelines be used, the
          Chancellor said he would not. The Chancellor further stated
          that if we did not like the numbers, “… Appeal it.”

          Clerk and Master completed a child support calculation that
          was entered September 30, 2016.

          Mediation was held on January 24, 2017. There was a second
          meeting with the parties and then he spoke with child. Judge
          Lauderback had recommended Scott Paterson attend
          Counseling with child, allowed child to take mother’s phone
          on visitations with Father and allowed access to parties via
          email. Judge Lauderback requested another follow-up with
          the child on May and then spoke with both attorneys.

          On January 26, 2018 Mediation report was filed from the
          Mediation in May 2017.

          During the entire length of this case Lisa Potter,
          Defendant/Appellant, continuously brought up the issue with
          the Child Support calculations.             Scott Paterson,
          Plaintiff/Appellee, is self-employed and owns LLCs and other
          properties. The child support calculations were based solely
          on [adjusted gross income] and none of the Child Support
          Guidelines for self-employed were used.

          On January 26, 2018 a hearing was scheduled.3 All parties
          and their attorneys were present, to include the parties’ minor
          child. When the case was called, the parties’ attorneys
          requested the Court conduct an in-chamber[s] interview with
          the parties’ minor child. The Court agreed, and the Court,
          Clerk and Master, the parties’ minor child, and the attorneys
          for the parties were present in the Court’s chambers. Before
          testimony was received, the attorneys informed the Court they

3
    The remainder of this paragraph consists of the revision made by the trial court.
                                          -3-
              were in agreement for the child to have one cellphone. No
              court reporter was present and neither party was in the
              chambers.

              The Court then discussed with the parties’ minor child the
              requirement for her to testify truthfully. Satisfied that she
              understood her responsibility to tell the truth and that she was
              able to distinguish between true and false testimony, the
              Court instructed the Clerk and Master to place the witness
              under oath. The Court then proceeded to question the parties’
              minor child as a witness. Their daughter had opinions on her
              cellphone, about having therapy with father, and visitation.
              No testimony was received regarding child support. When
              the testimony of their child was completed, the attorneys
              requested an opportunity to discuss the case with their
              respective clients. The attorneys stated they were working on
              an agreement, the Court stated that if their discussions failed,
              the Court would finish the hearing. The Court then proceeded
              to take up other cases on the docket. Later that morning, the
              parties’ attorneys informed the Court they had reached an
              agreement, and they would submit an agreed order. This
              agreement was later presented to the Court in the form of the
              Order and Parenting Plan entered on January 26, 2018.

Mother contends that she was not allowed to present her witnesses and evidence. She
asserts that she was not in agreement with Parenting Plan.

        According to Father, at the January 26, 2018 hearing in chambers, the trial court
“first listened to the attorneys regarding the child support numbers.” Mother’s counsel
“brought up his client’s concern about the numbers in the Clerk and Master’s report and
the tax returns in it.” Father’s counsel argued that the report and the “tax returns had
been available for over two years.” Father’s counsel further contended that this case had
been ongoing since 2012 with Father paying $654 a month. According to Father, the trial
court agreed with Father’s position, used the report’s numbers, and instructed the
attorneys that if further tax filings revealed more than a 15% change, Mother would be
free to file a motion to adjust.

        Father further relates that after the trial court interviewed the Child in chambers
with the Clerk and Master and attorneys present, the court informed counsel how “it was
inclined to rule on visitation, transportation, communication, decisions, and other
matters.” The attorneys were notified that if this proposed ruling was agreeable to their
clients, it would be entered as the order of the trial court. After counsel consulted with
their clients, the agreement was made. The attorneys went to the Clerk and Master’s
                                             -4-
office and calculated the remaining child support matters. It was determined that Father
had overpaid his child support by $8,377. That amount was divided by the remaining
months left for Father to pay child support, resulting in a per month reduction of child
support of $214. The current amount of child support was determined to be $489,
reduced by the $214 overpayment, for a final award of $275 per month. The court’s
order was filed on March 2, 2018. Mother thereafter filed a timely appeal.

                                       II. ISSUES

   We restate the issues raised by Mother on appeal:

             A. Whether the trial court erred in not allowing a hearing and
             failing to allow Mother to provide testimony, evidence, and
             witnesses.

             B. Whether the trial court erred in the calculation of child
             support.

             C. Whether the trial court erred in failing to credit Mother for
             health insurance she provided.

                            III. STANDARD OF REVIEW

       Our review is de novo upon the record, accompanied by a presumption of
correctness of the trial court’s findings of fact, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692
(Tenn. 2013). We review a trial court’s conclusions of law de novo, according them no
presumption of correctness. Id.; Rigsby v. Edmonds, 395 S.W.3d 728, 734 (Tenn. Ct.
App. 2012).

      A trial court abuses its discretion when it “‘appl[ies] an incorrect legal standard,
reaches an illogical result, resolves the case on a clearly erroneous assessment of the
evidence, or relies on reasoning that causes an injustice.’” (quoting Gonsewski v.
Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011)). Armbrister, 414 S.W.3d at 693.

                                   IV. DISCUSSION

       The child support guidelines govern the process and criteria for determining the
amount of a parent’s child support obligation. Tenn. Code Ann. § 36-5-101(e); see also
Atkins v. Motycka, No. M2007-02260-COA-R3-CV, 2008 WL 4831314, at *6 (Tenn. Ct.
App. Nov. 6, 2008). Under Tennessee law, parents must “support their minor children in
a manner commensurate with their own means and station in life.” Richardson v.
Spanos, 189 S.W.3d 720, 724 (Tenn. Ct. App. 2005).
                                          -5-
       The first step in determining child support is setting the parties’ gross income.
Tenn. Comp. R. & Regs. 1240-02-04(3); see also Milam v. Milam, No. M2011-00715-
COA-R3-CV, 2012 WL 1799029, at *3 (Tenn. Ct. App. May 17, 2012) (“The integrity of
a child support award is dependent upon the trial court’s accurate determination of both
parents’ gross income.”)

        “[T]he amount of support derived from a proper application of the formula in the
Child Support Guidelines becomes the presumptive amount of child support owed.”
Richardson, 189 S.W.3d at 725. This presumptive amount is rebuttable, however, and
trial courts may, in their discretion, deviate from the amount of support required by the
child support guidelines. Atkins, 2008 WL 4831314, at *6. If a trial court elects to
deviate from the child support guidelines, the court must “specifically state in written
findings why the application of the Child Support Guidelines would be unjust or
inappropriate.” Id. (citing Tenn. Code Ann. § 36-5-101(e)(1)(A) and Tenn. Comp. R. &
Regs. 1240-2-4-.07(1)(b) ). We review a trial court’s decision regarding deviations from
the child support guidelines pursuant to the abuse of discretion standard of review. Id.

       Modification of a child support obligation is governed by Tennessee Code
Annotated section 36-5-101(g); a court cannot modify child support unless the party
moving to modify the obligation proves that there is a “significant variance ... between
the guidelines and the amount of support currently ordered.” A significant variance is
defined as “at least a fifteen percent (15%) change between the amount of the current
support order (not including any deviation amount) and the amount of the proposed
presumptive support order.” Tenn. Comp. R. & Regs. 1240-2-4-.05(2)(c). In other
words, “a parent must prove (1) the amount of his or her current net income and (2) the
existence of a ‘significant variance’ between his or her current child support obligation
and the obligation that would be required by the Child Support Guidelines based on his or
her current income.” Chorost v. Chorost, No. M2000-00251-COA-R3-CV, 2003 WL
21392065, at *6 (Tenn. Ct. App. June 17, 2003) (footnotes omitted).

       Father contends that the income was reduced according to reasonable expenses.
He further asserts that the Clerk and Master’s report from the 2012, 2013, 2014, and 2015
tax returns went unopposed for almost two years during a period of time that Mother was
represented by experienced trial counsel. Father notes that no motion for forensic
accounting was ever filed and that Mother’s counsel agreed if the 2017 numbers gave a
15% change, another petition could be filed. According to Father, the January 26, 2018,
order was an agreed order with the guidance of the trial court.

      Mother argues that the child support worksheets were not filled out using gross
income. According to Mother, adjusted gross income was used, without putting back in
depreciation and other factors. She states that the calculations result in a much lower
income level, leading to a lower child support level. She contends that it is unclear what
                                          -6-
was used for the determination of child support, noting that the last tax return in the file
was for 2015. The order was entered in 2018, yet no up-to-date income information was
used in the determination of the 2016 and 2017 child support.

       Mother further observes that the downward deviation of the child support
obligation was “without making specific written finding regarding how the application of
the Child Support Guidelines would be unjust or inappropriate in the case” per Tennessee
Code Annotated section 36-5-101(e)(1)(A); Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(b).
Additionally, Mother contends that the court did not follow Rule 9.04 of the State of
Tennessee First Judicial District Local Rules for Circuit, Chancery and Criminal Courts:

              Any order establishing or modifying child support tendered to
              the court for approval should either state that the support
              agreed upon is in compliance with the child support
              guidelines, or if not in compliance, the reason(s) for any
              deviation from the guidelines. The order must also state that
              the attorneys have counseled with their clients concerning
              their rights and obligations under the guidelines and that any
              deviation is an informed and considered decision on the part
              of the parties.

       Although Mother admits that the trial court found there had been a material
change in circumstances with Father moving closer, the court failed to then remove the
deviation that was in the original child support order of November 7, 2008, i.e., the travel
expense deviation. Per Rule & Regulation 1240-2-4.07(2)(a)(2): “If the circumstances
that supported the deviation cease to exist, the child support order may be modified to
eliminate the deviation irrespective of compliance with the significant variance
requirement of 1230-2-4-.05.” According to Mother, this was never considered when the
court deviated the child support for “credit for overpayment.” The court further failed to
explain: “How, in its determination, (i) Application of the Guidelines would be unjust or
inappropriate in the particular case before the tribunal; and (ii) The best interests of the
child for whom support is being determined will be served by deviation from the
presumptive guideline amount.” Tenn. Comp. R. & Regs. 1240-2-4-.07(1)(c)(3).

       Mother further argues that the court failed to give her credit for the health
insurance premiums that she has been paying for the Child. According to Mother, the
court instructed the Clerk and Master to give her credit. Father contends that it was
brought to the attention of the trial court that because Mother pays for a family policy, it
costs nothing more to carry the Child along with the other child included on the family
policy. He noted that Mother presented no evidence to counter this conclusion.

       “We have repeatedly emphasized the importance of providing findings of fact and
conclusions of law in accordance with Rule 52.01 of the Tennessee Rules of Civil
                                       -7-
Procedure.” Brainerd v. Brainerd, No. M2015-00362-COA-R3-CV, 2016 WL 6996365,
at *5 (Tenn. Ct. App. Nov. 30, 2016) (citing Burnett v. Burnett, No. M2014-00833-COA-
R3-CV, 2015 WL 5157489, at *4-5 (Tenn. Ct. App. Aug. 31, 2015)). This is “not a mere
technicality,” and “‘[s]imply stating the trial court’s decision, without more, does not
fulfill this mandate.’” Brainerd, 2016 WL 6996365, at *5 (quoting Barnes v. Barnes, No.
M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 (Tenn. Ct. App. Oct. 24, 2012)).

       “When confronted with insufficient findings of fact,” an appellate court may
“vacate the decision and remand so that the trial court can make specific findings of fact
and conclusions of law” or “conduct a de novo review of the record to determine where
the preponderance of the evidence lies.” Brainerd, 2016 WL 6996365, at *5. In this
matter, we vacate the trial court order and remand the case for further hearing for the
court to receive evidence and to make findings of fact and conclusions of law in
compliance with Rule 52.01.

                                  V. CONCLUSION

        We vacate the order of the trial court and remand the case for further hearing for
the trial court to receive evidence and to make findings of fact and conclusions of law in
compliance with Rule 52.01. Costs of this appeal are assessed to the appellee, Scott D.
Paterson.


                                                _________________________________
                                                JOHN W. MCCLARTY, JUDGE




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