               CIN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                  July 18, 2014 Session

    CHRIS ERIC STRICKLAND v. PENNYE DANIELLE STRICKLAND

                  Appeal from the Circuit Court for Putnam County
                        No. 08N0199     Amy Hollars, Judge




               No. M2013-02657-COA-R3-CV - Filed September 9, 2014


In the first appeal in this divorce action, the case was remanded for the trial court to adopt
a parenting plan that increased Mother’s parenting time and to adjust her child support
obligation accordingly. Mother appeals the order entered on remand, contending that the trial
court failed to give her meaningful parenting time as directed and by imputing income to her
based on a finding that she is voluntarily underemployed. Finding no error, we affirm the
trial court’s judgment.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which A NDY D. B ENNETT
and W. N EAL M CB RAYER, JJ., joined.

Pennye D. Weston, Cookeville, Tennessee, Pro Se.

Charlene Robin Vance, Watertown, Tennessee, for the appellee, Chris Eric Strickland.

                                         OPINION

       This divorce action is before the court for a second time; the facts and procedural
history of the case are set forth at Strickland v. Strickland, No. M2012-00603-COA-R3-CV,
2012 WL 6697296 (Tenn. Ct. App. Dec. 21, 2012). In the first appeal, Mother appealed the
Final Order and Permanent Parenting Plan entered February 14, 2012; we affirmed the trial
court’s classification and division of the martial estate and the designation of Father as
primary residential parent, but reversed the court’s decision regarding the parenting plan.
The case was remanded for the court to adopt a parenting schedule giving Mother more
parenting time and to modify Mother’s child support obligation accordingly.
        On July 23, 2012, while the first appeal was pending, Mother filed a petition seeking
to modify the parenting schedule; she alleged that a substantial and material change in
circumstances within the meaning of Tenn. Code Ann. § 36-6-101 had occurred as a result
of Father’s move from Cookeville to Lebanon, Tennessee. A hearing was held on July 31
and the court entered an order on August 3 denying the motion (“the August 3, 2012 order”).
The court held that Father’s move was not a material change in circumstance, would not
meaningfully affect the child’s well-being, and that it would not interfere with Mother’s
visitation. The court further held that it was in the child’s best interest to remain in the
primary care of Father.

       Pursuant to the order of remand, the court conducted a hearing on May 13, 2013, and
entered a Final Order on Remanded Issues on May 31; a revised permanent parenting plan
and a child support worksheet were attached to the order (“the May 31 order”). Of
pertinence to this appeal, the order set Mother’s parenting time at 145 days and Father’s at
220 days, found that Mother was voluntarily underemployed and imputed monthly income
of $1,733.33 to her.1

        Mother moved to alter or amend the May 31 order, or in the alternative, to grant her
a new trial pursuant to Tenn. R. Civ. P. 59. Mother asserted that the trial court did not
comply with the Court of Appeals order to give her more meaningful parenting time; that the
court should have considered Father’s move to Lebanon and its effect on the child; and that
the court erred by imputing income to her. A hearing on the motion was held on September
6, at the conclusion of which the court took the matter under advisement; the court held a
follow up conference call with counsel on September 11 and on September 19 entered an
order setting an evidentiary hearing for September 24 in order to “allow the parties the
opportunity to put on proof as to the factors that affect the crafting of a permanent parenting
plan order.” The order also stated:

        4. That this Court is not contemplating full litigation of this matter in any sense
        but rather finds it necessary to conduct a hearing concentrating on what has
        occurred since Father’s move out of Putnam County and targeting on these
        issues which go into a best interest analysis for the sake of the child;

        5. That this Court finds it necessary to make the record clear about what the
        circumstances are for this child now in his current situation and with the travel
        that is involved in getting this child back and forth between these parents;


        1
           At the time of trial Mother had three children. Mother’s and Father’s child – her second child –
was born May 2004. While the divorce was pending, Mother had another child, who was two years old at
the time of trial; Mother subsequently married the father of her third child. In this case, we consider the issue
of voluntary underemployment only with respect to the second child.

                                                       2
        6. That the Court is interested in looking at whether the Thursday overnights
        are giving meaningful time to Mother, what is the effect on the child of the
        Sunday overnights with delivery to school on Monday mornings and any
        alternative ways to provide adequate parenting time for Ms. Weston if these
        times are not in the best interest of the child;

       On September 17, Mother filed a motion pursuant to Tenn. R. Civ. P. 60.02 (4) asking
the court for relief from the August 3, 2012 order on the ground that the order was based on
a February 2012 order that was later reversed on appeal and that “as a result the trial court
applied an erroneous standard.”

       A hearing on the Rule 60 motion took place at the evidentiary hearing on September
24. At the conclusion of the hearing, the court made certain findings and orally approved the
parenting plan proposed by Father; the court modified its ruling the next day in a letter to
counsel. The court entered a Final Order on November 8: denying Mother’s Rule 60 motion;
denying Mother’s request to change the ruling that she was voluntarily underemployed;
modifying the parenting plan in the May 31 order by setting Father’s parenting time at 242.5
days and Mother’s parenting time at 122.5 days; and setting the parties’ child support
obligations.2 Mother appeals.

                                            DISCUSSION

I. P ARENTING P LAN

       Trial courts are vested with broad discretion in fashioning permanent parenting plans
and in doing so, must consider the unique circumstances of each case. Burton v. Burton, No.
E2007-02904-COA-R3-CV, 2009 WL 302301, at *2 (Tenn. Ct. App. Feb. 9, 2009). A trial
court’s parenting plan will not be disturbed on appeal unless there is evidence that the court
abused its discretion in fashioning the plan. A court abuses its discretion if it “applie[s] an
incorrect legal standard, or reache[s] a decision which is against logic or reasoning that
cause[s] an injustice to the party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85
(Tenn. 2001) (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

       In remanding the case for the court to adopt a schedule that afforded Mother more
parenting time, we stated that:

        The evidence in this case does not preponderate against the trial court’s finding
        that Father should be the primary residential parent and it does not


        2
          The letter modifying the September 24 oral ruling, the parenting plan modifying the May 31 order,
and the revised child support worksheet were attached to the November 8 order.

                                                    3
       preponderate against the finding that Father should have more parenting time
       than Mother; however, the evidence does preponderate against restricting
       Mother’s parenting time to 120 days a year. This is especially true realizing
       the close proximity of the parent’s respective homes. . . .

Strickland, 2012 WL 6697296 at *14.

       Mother contends that the parenting plan adopted in the November 8 Final Order does
not comply with the Court of Appeals’ instruction to adopt a parenting plan that would
provide her with more parenting time; she further contends that the plan adopted is not in the
child’s best interest. We respectfully disagree.

        At the September 24 hearing, the court heard testimony from Mother, Mother’s
husband Michael Weston, Father, and Father’s neighbor Jason Harrison. At the conclusion
of the hearing, the court made certain findings of fact and approved Father’s proposed plan;
the oral ruling was modified and supplemented in a letter to counsel of September 25. The
November 8 order memorialized the oral ruling and letter, and the court made the following
findings of fact:

       3. That in addition to the ruling made by this Court in open court on September
       24, 2013, this Court made additional findings as set forth in its letter
       memorandum dated September 25, 2013 . . . ;

       4. That having heard the additional proof and having considered the arguments
       of counsel, and upon the entire record in this cause the Court finds that the
       Thursday overnight visitations which were provided in the original parenting
       plan and which were also maintained in the plan that was entered after a
       remand hearing, should be eliminated;

       5. That the proof shows that the Thursday overnights are difficult for [child]
       and they are also difficult for Mother;

       6. That the early morning travel is not beneficial and also that the additional
       parenting time that was attempted to be provided to Mother has not been
       utilized by Mother. Therefore, the Court finds that the Thursday overnights
       should be eliminated.

       ***

       8. That Mother’s suggested alternation of two (2) weekends for Mother
       followed by one weekend for Father is hereby adopted. That this plan has the

                                              4
       virtue of allowing more meaningful time for [child] with his mother and will
       also allow him to spend important time with his half-sibling [ ];

       9. The court finds that in all other respects, the parenting plan proposed by
       Father will remain unchanged and is hereby adopted as it is in [child’s] best
       interests. While the Court acknowledges a certain validity in Father’s
       argument that the “2 to 1” alternation of weekends accords greater “hard
       parenting” time to him and more “fun” time to Mother, this Court has
       entrusted Father as the primary residential parent with the important day-to-day
       parenting time with [child]. In any event, the desires of the parents must be
       secondary to the best interests, given the fact that the parties live fifty miles
       apart and [child] is attending school in Lebanon (Wilson County).

       ***

       11. The Court of Appeals on remand instructed that Mother’s parenting time
       should not be limited to the 120 days provided in the parenting plan
       considering the close proximity of the homes of Mother and Father;

       12. The parties now live an appreciable distance part; this is a fact with which
       the court must now deal, and yet, the Court is still trying to follow the Court
       of Appeals directive and provide Mother with more parenting time; the Court
       finds that Father’s parenting plan does that in a way that is in the best interests
       of [child], and the Court approves that parenting plan.

       We have reviewed the testimony and evidence from the September 24 hearing, and
upon our review, the evidence does not preponderate against the trial court’s findings set
forth above. We also find that the court did not abuse its discretion by adopting the plan in
the November 8 order, which, in light of all relevant factors, complied with the order of
remand.

       In the earlier appeal, we acknowledged that the close proximity of the parent’s homes
was a substantial factor against limiting Mother’s residential parenting time to 120 days per
year. While the case was on appeal for the first time, the court heard Mother’s motion to
modify the plan based on Father’s move; the court determined that his move did not
constitute a substantial and material change of circumstance within the meaning of Tenn.
Code Ann. § 36-6-101. The May 31, 2013 order raised Mother’s parenting time to 145 days;
on Mother’s motion to alter or amend, the court held an evidentiary hearing and determined,
for various reasons which we have found supported by the evidence, that the May 31, 2013
plan was not in the child’s best interest and that the November 8 plan, which sets Mother’s
residential parenting time at 122.5 days, was in the child’s best interest. The November 8

                                               5
order was entered in accordance with the order of remand, properly applied the law, and was
supported by the evidence.

II. I MPUTING I NCOME TO M OTHER

       The case was also remanded for the court to “make a new determination of Mother’s
current income or ability to earn income and set the child support obligation in accordance
with the Child Support Regulations.” Strickland, 2012 WL 6697296 at 15.3 In the May 31
order the court determined that Mother was voluntarily underemployed and imputed monthly
income of $1,733.33 to her; Mother contends that the trial court erred in holding that she was
willfully underemployed and imputing income to her.

        “Determining whether a parent is willfully and voluntarily underemployed and what
a parent’s potential income would be are questions of fact that require careful consideration
of all the attendant circumstances.” Richardson v. Spanos, 189 S.W.3d 720, 726 (Tenn. Ct.
App. 2005). Accordingly, we review the trial court’s determination in accordance with Tenn.
R. App. P. 13(d), presuming the correctness of the trial court’s factual findings unless the
evidence preponderates otherwise. Id.

      Based on the testimony at trial, the court made the following findings of fact in the
May 31 order pertinent to its determination that Mother was voluntarily underemployed,
which Mother does not contest:

        17) That on the matter on remand as to recalculating the child support and
        determining Mother’s income, this Court finds that at trial Mother testified at
        trial that she had a history of working and making in excess of $30,000.00 per
        year;

        18) Mother has insurance licensure which remains current as a sales agent and
        she testified that because following the birth of her youngest child Mother no
        longer had the need for additional income and she chose to spend that



        3
         In the first appeal, we reversed the determination which based Mother’s child support obligation
on a monthly income of $2,600.00; we noted:

        There is no evidence in the record that Mother’s current income is $2,600 a month and the
        trial court made no finding that Mother was intentionally underemployed and the court made
        no imputed income finding. We have concluded that the evidence preponderates against
        the setting of Mother’s child support obligation based upon a current income of $2,600.

Strickland, 2012 WL 6697296 at 15.

                                                    6
additional time with her children Mother elected to cut her hours back to a
part-time schedule after her youngest child was born;

19) This Court finds that the proof at trial further showed that between 2002
when Mother obtained that licensure and 2008, Mother’s employment
remained essentially the same from 2002 through 2008;

20) This Court finds additionally that Mother indicated in her testimony when
asked when she planned on going back to work on a full time basis to help
support her family, Mother indicated that she would if necessary but she, at
that time, had no plans to return to full time employment;

21) The Court finds that Mother currently works two (2) days per week at an
insurance office for 14 hours a week at $10.00 per hour filling an
administrative position rather than as a sales agent resulting in her income
being quite distinctly less;

***

23) The Court does not find that a determination may be based on any
intentional choice or act that adversely affects a parent’s income. In this case,
Mother has training and certification to work as a sales agent and certainly has
proven capacity to earn more than she currently elects to earn;

24) The Court finds that Mother has however been out of the workplace in that
type of work as a sales agent for almost four years now;

25) The proof shows that at times before the divorce Mother was working 40
to 50 hours per week according to her testimony . . . ;

***

27) This Court finds that Mother is currently working at a position earning
$10.00 per hour part-time but this Court finds it is by Mother’s choice that she
works part-time and not because she is not able to be employed full-time.




                                       7
At the September 24 hearing, Mother testified that her decision to work part time was
voluntary and made because she wanted to spend time with her children and to “have her
own spending money and not rely on [her husband] to pay for everything.” 4

       Mother asserts that Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(iii)(III) supports
her contention that she was not voluntarily underemployed. In so arguing, however, Mother
focuses on only one of seven factors; the regulation governing imputing income and,
specifically, the determination of underemployment requires the court to consider more.

       Pursuant to Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(i)(I), a court may impute
income “[i]f a parent has been determined by a tribunal to be willfully and/or voluntarily
underemployed or unemployed.” The Guidelines do not presume that a parent is willfully
underemployed; rather, courts are directed to “ascertain the reasons for the parent’s
occupational choices, and to assess the reasonableness of these choices in light of the
parent’s obligation to support his or her child(ren) and to determine whether such choices
benefit the children.” Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(ii). “A determination
of willful and/or voluntary underemployment or unemployment is not limited to choices
motivated by an intent to avoid or reduce the payment of child support. The determination
may be based on any intentional choice or act that affects a parent’s income.” Tenn. Comp.
R. & Regs. 1240-02-04-.04(3)(a)2(ii)(I). Thus, courts should increase an underemployed
parent’s gross income to an amount that reflects the parent’s income potential or earning
capacity based upon his or her educational level and previous work experience. See Dilley
v. Dilley, No. M2009-02585-COA-R3CV, 2011 WL 2015395 (Tenn. Ct. App. May 23,
2011), at *7– 8; see also Tenn. Comp. R. & Regs. 1240-02-04-.02(3)(a)2(ii)(II).

       Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(iii) provides that the court may
consider seven factors when making a determination of whether a parent is willfully and
voluntarily underemployed.5 The court’s findings in this case focused largely on Mother’s

        4
           In the November 8 order the court stated that it “decline[d] once again to change its ruling
regarding its finding expressed in the [May 31 order] that [Mother] is voluntarily underemployed and that
income should be imputed to her as the court had previously ordered.”
        5
            Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(iii) provides:

        Factors to be Considered When Determining Willful and Voluntary Unemployment or
        Underemployment.

        The following factors may be considered by a tribunal when making a determination of
        willful and voluntary underemployment or unemployment:

        (I) The parent’s past and present employment;


                                                    8
past and present employment, Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(iii)(I); her
education, training, and ability to work, 1240-02-04-.04(3)(a)2(iii)(II); and her role as a stay-
at-home parent, Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(iii)(III).

        We have reviewed Mother’s testimony from the divorce trial, as well as the transcripts
of the May 13 and September 24, 2013, hearings; the evidence does not preponderate against
the ruling that Mother was voluntarily underemployed. Further, the court considered the
appropriate factors at Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(iii) shown by the
evidence, including the factor relied upon by Mother, in making the determination to impute
income to her.




       (II) The parent’s education, training, and ability to work;

       (III) The State of Tennessee recognizes the role of a stay-at-home parent as an important and
       valuable factor in a child’s life. In considering whether there should be any imputation of
       income to a stay-at-home parent, the tribunal shall consider:

       I. Whether the parent acted in the role of full-time caretaker while the parents were living
       in the same household;

       II. The length of time the parent staying at home has remained out of the workforce for this
       purpose; and

       III. The age of the minor children.

       (IV) A parent’s extravagant lifestyle, including ownership of valuable assets and resources
       (such as an expensive home or automobile), that appears inappropriate or unreasonable for
       the income claimed by the parent;

       (V) The parent’s role as caretaker of a handicapped or seriously ill child of that parent, or
       any other handicapped or seriously ill relative for whom that parent has assumed the role of
       caretaker which eliminates or substantially reduces the parent’s ability to work outside the
       home, and the need of that parent to continue in that role in the future;

       (VI) Whether unemployment or underemployment for the purpose of pursuing additional
       training or education is reasonable in light of the parent’s obligation to support his/her
       children and, to this end, whether the training or education will ultimately benefit the child
       in the case immediately under consideration by increasing the parent’s level of support for
       that child in the future;

       (VII) Any additional factors deemed relevant to the particular circumstances of the case.

                                                     9
III. C ALCULATION OF D AYS

        Mother contends that the trial court erred in calculating the number of days that she
exercises parenting time; she asserts that she exercises 118 days of parenting time rather than
122.5 as found by the trial court. Mother does not explain the manner in which she alleges
the court erred in calculating the number of days or how she arrived at the figure of 118 days
for her parenting time and any asserted discrepancy is not apparent in the record.6 In the
absence of such explanation or appropriate citation to the record, we are unable to address
this issue. See Tenn. R. App. P. 27(a)(7)(A).

IV. A TTORNEY F EES

       Father requests an award for the attorney fees he has incurred in this appeal. Whether
to award attorney’s fees on appeal is within this Court’s sole discretion. Archer v. Archer,
907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). In considering a request for attorney’s fees, we
look at “the ability of the requesting party to pay the accrued fees, the requesting party’s
success in the appeal, whether the requesting party sought the appeal in good faith, and any
other equitable factor that need be considered.” Hill v. Hill, No. M2006-02753-COA-R3-CV,
2007 WL 4404097, at *6 (Tenn. Ct. App. Dec. 17, 2007) (citing Dulin v. Dulin, No. W2001-
02969-COA-R3-CV, 2003 WL 22071454, at *10 (Tenn. Ct. App. Sept. 3, 2003)).

        After weighing these considerations, we decline to award Father fees.

                                            CONCLUSION

        For the foregoing reasons, the judgment of the trial court is affirmed.




                                                           _________________________________
                                                           RICHARD H. DINKINS, JUDGE




        6
           In her brief on appeal, Mother argues that the 145 days parenting time she was granted in the May
2013 order was, according to her calculation, actually 131 days. At the September 24 hearing, Mother
testified and introduced exhibits relative to her calculations of days under the May 2013 order, based on what
she characterized as the “Head In Bed” test and the “Midnight to Midnight” test. The order we are reviewing
however, is the November 8 order which granted Mother 122.5 days, and the evidence introduced at the
September 24 hearing does not explain Mother’s calculation of the days awarded in the November 8 order.

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