                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                          May 11, 2011 Session

                   VENUS L. LOWERY v. LARRY G. WOMBLE, II

                     Appeal from the Chancery Court for Coffee County
                        No. 01374     Vanessa Jackson, Chancellor


                    No. M2010-01102-COA-R3-CV - Filed June 28, 2011


In this child-support matter, Father appeals the trial court’s determination of his parenting
time and income for the purpose of setting his child support obligation. Finding no error, we
affirm.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and A NDY D. B ENNETT, J., joined.

Larry G. Womble, II, Lynchburg, Tennessee, Pro Se.

Terry D. Gregory, Tullahoma, Tennessee, for the appellee, Venus L. Lowery.

                                   MEMORANDUM OPINION 1

I. Factual and Procedural History

      Venus L. Lowery (“Mother”) and Larry Glen Womble, II (“Father”) were divorced
on April 4, 2002 on the grounds of irreconcilable differences. The Final Decree of Divorce
incorporated a Marital Dissolution Agreement and Permanent Parenting which named
Mother the primary residential parent of the parties’ two children and set Father’s child


       1
           Tenn. R. Ct. App. 10 states:

       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       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited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.
support obligation at $200.00 bi-weekly. The Permanent Parenting Plan set Father’s
parenting time every other weekend from Thursday at 6:00 p.m. until Sunday at 6:00 p.m.
and on the off-weekends on Sunday afternoons at 2:00 p.m. until Monday morning at 8:00
a.m.

        Beginning in 2003 and continuing until October 2009, the parties filed various
petitions requesting modifications to their child support obligations and parenting time. The
case is presently before the Court from the trial court’s April 13, 2010 Order which stated
as follows:

               This matter came before the Court on the 21st day of December, 2009.
       On November 10, 2009, this Court entered an Order denying both parties’
       request to change the residential parenting schedule because neither party had
       proved by a preponderance of the evidence that there was a material change in
       circumstances affecting the children’s best interest which would warrant
       modification of the Court’s prior orders. Subsequently, Larry G. Womble
       filed a pro se request for the Court to reconsider its decision and to modify the
       amount of his child support obligation. At the hearing on December 21, 2009,
       Mr. Womble asserted that he was medically disabled and, therefore, unable to
       work. It was his contention that Assistant Attorney General Tim Reed had
       failed to take into consideration this medical condition and resulting disability
       in calculating the child support obligations of Mr. Womble. Mr. Womble
       further asserted that percentage of time that the children spent with him, as the
       non-custodial parent, had not been correctly calculated, and he should be
       credited with a higher percentage of time.
               At the hearing on December 21, 2009, this Court declined to alter or
       modify it [sic] Order entered on November 10, 2009. However, upon the
       agreement of Mr. Womble to authorize a release of his medical records from
       Dr. Roth and Dr. White to Assistant District Attorney Tim Reed for review, the
       Court requested General Reed to review the medical records as they pertain to
       Mr. Womble’s assertion that he is disabled and unable to maintain gainful
       employment. In addition, the Court stated that it would review the calculation
       of the percentage of time that the children spent with Mr. Womble to
       determine if it was correctly calculated.
               On March 29, 2010, this Court received a copy of the medical records
       of Dr. Roth and Dr. White that were furnished pursuant to Mr. Womble’s
       authorization. These records do not show by a preponderance of the evidence
       that Mr. Womble is disabled and unable to be gainfully employed. After
       reviewing the entire record in this matter and based upon the current parenting



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        plan, the Court finds that the calculation of the percentage of time that the
        children spend with Mr. Womble appears to be correctly calculated.
                Therefore, Mr. Womble’s request to amend or alter the previous Orders
        of this Court as to the amount of Mr. Womble’s child support obligation is
        denied.

        On April 20, 2010, Father filed an appeal of the April 13 order pro se.2

II. Discussion

      After reviewing Father’s brief on appeal, we discern the following issues for our
review:

        1.      Whether the trial court erred in computing the number of days Father
                exercises parenting time for purposes of his child support obligation?

        2.      Whether Father’s income was correctly calculated based on his
                contention that he receives only $800.00 per month due to his
                disability?

       Father contends that the trial court miscalculated the number of days he exercises
parenting time for the purpose of setting child support. Specifically, Father asserts that he
exercises parenting time 132 days per year rather than 114 days per year. In support of his
contention he cites a November 3, 2008, court order which modified his parenting time as
follows:

        . . . the Court finds that the Parenting Plan as originally entered herein should
        be confirmed and remain in full force and effect with the exception that the
        minor children of the parties are to be delivered each morning by 6:45 a.m. to
        the home of [Father] on each day the children are in school and [Mother] is
        working and picked up each afternoon following school’s recess by [Father’s]
        wife . . . . with the minor children being kept in the home of [Father] until
        [Mother] picks the minor children up following the end of her work day . . . .




        2
          Attached to the Notice of Appeal was a hand-written four page statement of Father. According
to Appellee’s brief, Mother objected to this statement and on September 22 the court ordered Mother to
submit her own Statement of Evidence, which she did on October 11. As an appendix to her brief, Mother
included an Order entered November 17 in which the trial court adopted Mother’s statement of the evidence.

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Father argues that pursuant to Tenn. Comp. R. & Regs. 1240-02-04-.04(7)(b)(3), he should
accumulate additional days of parenting time for the hours he cares for the children before
and after school each day. Tenn. Comp. R. & Regs. 1240-02-04-.04(7)(b)(3) states as
follows:

       No more than one (1) day of credit for parenting time can be taken in any
       twenty-four (24) hour period, i.e., only one parent can take credit for parenting
       time in one twenty-four (24) hour period. Except in extraordinary
       circumstances, as determined by the tribunal, partial days of parenting time
       that are not consistent with this definition shall not be considered a “day”
       under these Guidelines. An example of extraordinary circumstances would
       include a parenting situation where the ARP is scheduled to pick up the child
       after school three (3) or more days a week and keep the child until eight (8)
       o'clock p.m. This three (3) day period of routinely incurred parenting time of
       shorter duration may be cumulated as a single day for parenting time purposes.

       Mother argues that Father signed an Agreed Order on February 27, 2009 in which he
agreed that he exercised 114 days of parenting time with the children and that Father’s
parenting time has remained the same since the entry of the Agreed Order. Specifically, the
February 27, 2009 Agreed Order of Modification included a Child Support Worksheet which
indicated that the children spent 251 days per year with Mother and 114 days per year with
Father. With respect to the worksheet, the Agreed Order stated “[t]he parties have
acknowledged that the information contained in Exhibit A is true and correct.”

       At the hearing on December 21, 2009, the trial court heard the testimony of Father,
Mrs. Womble, and Mother regarding the number of hours the children spent at Father’s home
on a daily basis. Father and Mrs. Womble testified that Mother dropped the children off at
Father’s home around 6:30 a.m. each school day and would pick the children up around 8:00
p.m. after school.3 Mother testified that she would drop the children off around 7:00 a.m. and
pick them up around 4:00 p.m. The trial court also heard in camera testimony from the
children, which was not disclosed to either party. In the April 13, 2010 Order, the trial court
held that “the calculation of the percentage of time that the children spend with Mr. Womble
appears to be correctly calculated.”

       We review the trial court's findings of fact de novo with a presumption of correctness
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). Trial courts
see and hear the witnesses as they testify and are in the best position to assess a witness’
demeanor and to make determinations of credibility. See Wells v. Tenn. Bd. Of Regents, 9

       3
           School hours are 8:00 a.m. until 3:00 p.m.

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S.W.3d 779, 783–84 (Tenn. 1999). In this case, the trial court resolved the conflicting
testimony in favor of Mother, as to which we give great deference. After reviewing the
record, we find that the evidence does not preponderate against the trial court’s finding.

        We next turn to issues concerning the calculation of Father’s income. Father contends
that a work-related injury and subsequent back surgery rendered him disabled and unable to
work. As a result of his injury, Father receives $800.00 per month from a private disability
insurance policy; Father alleges that he is unable to earn any additional income and that this
change in income warrants a modification to his child support obligation.

       Tenn. Comp. R. & Regs. 1240-02-04-.05 outlines the circumstances under which a
child support order can be modified:

       (2) Significant Variance Required for Modification of Order.

(a) Unless a significant variance exists, as defined in this section, a child support order is not
eligible for modification . . . .

               (c) For all orders that were established or modified January 18, 2005 or
               after, under the income shares guidelines, 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 or, if the tribunal
               determines that the Adjusted Gross Income of the parent seeking
               modification qualifies that parent as a low-income provider, at least a
               seven and one-half percent (7.5% or 0.075) change between the amount
               of the current support order (not include any deviation amount) and the
               amount of the proposed presumptive support order.

        On February 27, 2009, Father signed an Agreed Order setting his child support at
$52.42 per week and giving him a credit of $1,869.26 in “retro support.” The Child Support
Worksheet, which Father acknowledged was “true and correct” at the time he signed the
Agreed Order, indicated that Father’s monthly income was $1,134.46. In considering this
issue, the trial court reviewed Father’s medical records and determined that they did not show
that Father was unable to be employed.

       A letter from Dr. Michael J. Schlosser, dated June 19, 2009, stated the following
regarding Father’s lumbar surgery:




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       Assessment and Plan: Mr. Womble’s x-rays look fine. There is no evidence
       of any problems postop. He continues to have back pain as well as upper back
       pain and leg pain that is diffuse and does not seem to be isolated to an SI-type
       distribution. I have explained to him that I think some of this may be just
       normal postoperative pain, but certainly it is difficult or me to explain all the
       different areas of pain he is continuing to experience. At this point postop, I
       think that he would be capable of returning to work. However, I would keep
       him on a 25-pound lifting restriction until three-month postoperative period.
       At three months postop, I would expect him to be able to return to activity with
       no restrictions.

       Although Father may have some work restrictions and lifting-limitations, the medical
evidence in the record does not show that Father is unable to be gainfully employed and earn
an income equivalent to that which was recorded on the child support worksheet entered with
the February 27, 2009 Agreed Order. The evidence does not preponderate against the trial
court’s finding, and we affirm the trial court’s findings with respect to Father’s income.

        Finally, Mother requests that she be awarded attorney’s fees incurred in the defense
of this appeal. Tenn. Code Ann. § 27-1-122 allows this Court to make an award of fees upon
a determination that the appeal was “frivolous or taken solely for delay.” In light of the
issues presented and the record, we do not find that this appeal is so devoid of merit as to
warrant its characterization as frivolous within the contemplation of Tenn. Code Ann. § 27-1-
122. See Wakefield v. Longmire, 54 S.W.3d 300, 304 (Tenn. Ct. App. 2001) (citing Bursack
v. Wilson, 982 S.W.2d 341, 345 (Tenn. Ct. App. 1998) (“An appeal is deemed frivolous if
it is devoid of merit or if it has no reasonable chance of success.”). Therefore, we decline
to award attorneys fees.

IV. Conclusion

       For the foregoing reasons, the judgment of the trial court is AFFIRMED. Costs of
this appeal are assessed against Larry Glen Womble, II.




                                           ___________________________________
                                           RICHARD H. DINKINS, JUDGE




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