                  IN THE COURT OF APPEALS OF TENNESSEE
                                                                                FILED
                                     AT KNOXVILLE                              June 25, 1999

                                                                             Cecil Crowson, Jr.
                                                                             Appellate C ourt
                                                                                 Clerk



JOH N CL ARE NCE HOW ARD , JR.,
                           ) C/A NO. 03A01-9811-CV-00374
                           )
     Plaintiff-A ppellant, ) HAM ILTON CIRCU IT
                           )
v.                         ) HON. L. MARIE WILLIAMS,
                           ) JUDGE
LINDA JOYCE KEATON HOWARD, )
                           ) AFFIRMED AND
     Defendant-Appellee.   ) REMANDED




ROB ERT P . RAY BUR N, Chatta nooga, fo r Plaintiff-A ppellant.

JOHN M. HIGG ASON, JR., Chattanooga, for Defendant-Appellee.




                                       O P I N IO N


                                                            Franks, J.


               In this ongoing dispute over child support, the father appeals from the

Trial Court’s Order establishing child support at $1,413.02 per month for the

remaining minor child , and questio ns the Co urt’s finding that the fathe r was in

contemp t of court fo r failing to pa y medical bills an d make tim ely support pa yment,

and the award o f attorney’s fees to the mother.

               The parties were divorced on March 22, 1990, and child support was

awarded for the parties’ two minor children. The Trial Court heard matters brought

before the Court by petitio ns on Jun e 8, 1998. A t trial, the father testif ied extensiv ely

about his income. He testified that his adjusted gross income for 1997, as reflected by

his federal income tax return, was $57,304.00. This amount reflected income as an

employee of Allstate Insurance Company in the amount of $89,365.00, taxable interest
of $417.00, rental income of $62.00, and assigned risk income of $222.00, less a

business loss of $32,762.00. The business loss was from his sole proprietorship called

J.C.H. Enterprises, which the father testified was his sports card business. The gross

receipts for that business were $1,140,866, and the cost of goods sold was $1,092.556,

which left a gross profit of $48,310.00. The father then subtracted expenses of

$81,07 2.00 fr om tha t gross in come , leaving a loss of $32,76 2.00.

               The father testified that his wife, Bethany Howard, is an employee of

J.C.H. Enterprises, and that the business expense item of $29,713.00 was a portion of

her salary. He further testified that he runs his sports card business out of the same

office with his insurance business, and that his wife works for both businesses. The

wife did n ot testify, and there was no te stimony abou t the wife’s la bor for the sports

card business. The father testified in detail about what his wife did on his behalf for

Allstate. He testified that he needs a support staff because his office is open from 9

a.m. to 5 p.m., Monday through Friday, and Saturday by appointment. He testified

that he needs someone in the office while he is not, and that his wife has been

fulfilling this ro le for the pa st seven years, alth ough she was not g etting paid u ntil

1997.

               The Trial Judge refused to deduct the business loss from the father’s net

income. The Court ordered child support obligations for the adult child terminated,

and then determined that the guideline amount for the remaining child from the

income as found by the Court would be $1,159.00 per month, but having found

criteria for upward deviation, i.e., the father not exercising standard visitation with the

child, the Court ordered an upward deviation from the child support guidelines in the

amou nt of $2 55.00 p er mon th, for a t otal sup port ob ligation of $1,4 13.02.

               The Co urt then fou nd the fath er in contem pt for failure to pay certain

medical bills and for failure to make timely child support payments, and also ordered


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the father to pay the $3,000.00 a ttorney’s fee incurred by the mother.

               Our standard of review in cases tried by the Court without a jury is de

novo upon the record of the Trial Court, accompanied by a presumption of correctness

of the Trial Court’s findings, unless the evidence preponderates otherwise. T.R.A.P.

Rule 1 3(d). Hass v. Knighton, 676 S.W.2d 55 4, 555 (Tenn. A pp. 1983).

               “Determining the amount of the non-custodial parent’s income is the

most important element of proof in a proceeding to set child support. This is the case

both when setting initial support and when considering requests for modification of an

existing support obligation.” Turner v. Turner, 919 S.W.2d 340, 344 (Tenn. App.

1995). The child support guidelines define gross income as:

               all income from an y source (before taxes and other deductions),
               whether earned or unearned, and includes but is not limited to the
               following: wages, salaries, commissions, bonuses, overtime
               payments, dividends, severance pay, pensions, interest, trust
               income, annuities, capital gains, benefits received from the Social
               Security Administration, i.e., Title II Social Security benefits,
               workers compen sation bene fits whethe r temporary or permane nt,
               judgments recovered for personal injuries, unemployment
               insurance benefits, gifts, prizes, lottery winnings, alimony or
               maintena nce, and in come fro m self-em ployment.

Tenn . Com p. R. & Regs. C h. 1240 -2-4-.03 (3)(a).

               The guid elines then p rovide:

               Income from self-employment includes income from business
               operations and rental properties, etc., less reasonable expenses
               necessary to produce such income. Depreciation, home offices,
               excessive promotional, excessive travel, excessive car expenses,
               or excessive personal expenses, etc., should not be considered
               reasonable expenses.

               Id.

Once gross income is determined, the trial court must then determine net income and

any grou nds fo r deviati on, and set the ch ild supp ort acco rdingly. See Tenn. Comp. R.

& Re gs. Ch . 1240- 2-4-.03 (4), (5) a nd Ch . 1240- 2-4-.04 .

               The Tria l Court dete rmined the father’s gro ss income from A llstate


                                                3
Insurance Company as reflected on his W-2 form to be $94,011.52. This amount

added to the father’s other taxable income, brought the total to $94,717.52. The Trial

Court then found th at the father re alized no in come as a self-emplo yed individua l,

because h is claimed ex penses ex ceeded h is income f rom the bu siness. In reac hing this

result, the Court said “The Court has insufficient proof to determine whether the

various expenses claimed were reasonable or not.” Under the guidelines, where the

obligor has income from self-employment, the burden is upon the obligor to show that

any expens es he ded ucts from that incom e is a reason able expe nse neces sary to

produce the income. We agree with the Trial Judge that the father has not carried that

burden as to the reason ableness of the expe nses claimed. T.R.A .P. Rule 13(d).

              Next, the father insists the Trial Co urt erred in ordering an up ward

deviation in his child sup port obligatio n, because this issue wa s not explicitly raised in

the pleadings.

                 “In determining whether or not a judgment is beyond the scope of the

pleadings, th ese pleadin gs must be given a libe ral constructio n with all rea sonable

intendme nts taken in f avor of the judgmen t. The policy un derlying the rule seems to

be that since the purpose of pleadings is to give notice to all concerned regarding what

may be adjudicated, a judgment beyond the scope of the pleadings is beyond the

notice given the parties and thus should not be enforced.” Brown v. Brown, 281

S.W.2d, 492, 497. In this case the father’s Petition to Modify contained the following

language :
                        The Petitioner avers that since the entry of the Court’s Order
                 dated June 6, 1997, there has been a substantial, significant and material
                 change or variance in the Petitioner’s income of more than fifteen
                 (15%), w hich justifies a decrease in guideline c hild suppo rt pursuant to
                 TCA 36-5-101 . Accordin gly, the Petitioner p rays for an ord er from this
                 Court modifying this obligation for guideline child suppo rt to comport
                 with his present level of income.

                 Based on the father’s pleading, the parties had notice that the amount of

child support was in dispute pursuant to Tenn. Code Ann. § 36-5-101. Tenn. Code

                                              4
Ann. § 3 6-5-101(a )(1) (Supp . 1998) pro vides in relev ant part:

               In ca ses in volv ing c hild supp ort, u pon application o f eith er pa rty,
               the court shall decree an increase or decrease of such allowance
               when there is found to be a significant variance, as defined in the
               child support guidelines . . . , between the guidelines and the
               amount of support currently ordered unless the variance has
               resulted from a previously court-ordered deviation from the
               guidelines and the circumstances which caused the deviation
               have not changed.

               The child support gu idelines then state that they “sha ll be applicab le in

any action brought to establish or modify child support,” and define a significant

variance as a 15% difference betwe en the guideline suppo rt and the current support

order. Tenn. Comp. R. & Regs. Ch. 1240-2-4-.02(3). The guidelines define gross and

net incom e, then give th e percenta ges of ne t income th at should b e paid in ch ild

support, depending on the number of children. Tenn. Comp. R. & Regs. Ch. 1240-2-

4-.03. Afte r listing the perc entages, the guidelines s tate, “After th is calculation is

made, if there are no changes to be made pursuant to paragraph 1240-2-4-.04 below,

then this is the amount of the child support award.” The paragraph referred to states

in relevant p art:

               (1) Since th ese percen tage amo unts are m inimums , the court sha ll
               increase the award calculated in Rule 1240-2-4-.03 for the
               following reasons:
               ...
                       (b) If the child(ren) is/are not staying overnight with the obligor
               for the average visitation period of every other weekend from Friday
               evening to Sunday evening, two weeks during the summer and two
               weeks d uring holida y periods throu ghout the yea r, then an am ount shall
               be added to the perce ntage calcu lated in the ab ove rule to c ompens ate
               the obligee for the cost of providing care for the child(ren) for the
               amount of time during the average visitation period that the child(ren)
               is/are not with the obligor [referen ce 1240-2-4-.02(6)].

               Tenn . Com p. R. & Regs. C h. 1240 -2-4-.04 (1).

               Thus, determining the proper amount of support under the guidelines

requires an examination of the criteria for deviation in Ch. 1240-2-4-.04, which

criteria include less than av erage visitation . The fathe r had aske d the Cou rt to


                                                5
determine the proper amount of support under the guidelines based on his current

income. That request of necessity required the Court to look at the criteria for

deviation to determine that proper amount of support. We find this issue to be without

merit.

               The reco rd establishes that the fathe r has not visite d with his c hildren in

three or fou r years, and w e affirm th e Trial Judg e ordering a deviation to compen sate

for that lack of visitation . See Dwight v. Dwight, 936 S.W.2d 945 (Tenn. Ct. App.

1996).

               The Tria l Judge pro perly found th e husban d in contem pt for failing to

pay medical bills and make timely support payments, which w as in the Trial Court’s

discretio n. See Sherro d v. Wix , 849 S.W.2d 780, 786 (Tenn. App. 1992) We find no

abuse of discretion, and th e evidence does n ot preponderate aga inst the Trial Judge’s

factual findings to supp ort contempt. T.R.A .P. Rule 13(d).

               The Tria l Court in the decree ord ered the fa ther to pay the re asonable

attorney’s fees in curred by the m other, and d irected her atto rney to file an af fidavit

with the Court, which he did, detailing the hours spent on the case. The Trial Judge

then set the fee at $3,000.00 in a subsequent orde r.

               The father contends there is no statutory basis to award these fees, and

that he wa s not affor ded the op portunity to cros s-examin e the other a ttorney, and to

present proof on the issue. We do not find any motion or request in the record that the

Trial Court conducted an evidentiary hearing on the issue of attorney’s fees, and based

upon th is record , the am ount aw arded is reason able.

               Attorney’s fees are approp riate in a case to enforce a ch ild support

decree. We have applied this rule, whether the party requesting such fees is bringing

the action or successfully defending the action. We said in Sherrod, 849 S.W .2d 785:

               [T]rial courts may award attorney’s fees without proof that the
               requesting party is unable to pay them as long as the award is just

                                              6
               and equitable under the facts of the case. The purpose of these
               awards is to protect the children’s, not the custodial parent’s,
               legal remed ies. Accord ingly, requiring p arents wh o precipitate
               custody or sup port procee dings to un derwrite the costs if their
               claims are ultimately found to be unwarranted is appropriate as a
               matt er of policy.

               In this case, the mother su ccessfully def ended the father’s petitio n to

decrea se child suppo rt whic h was the seco nd time the mo ther cam e to cou rt to def end.

She w as also s uccess ful in en forcing the child suppo rt awar d unde r the gu idelines .

We find no abuse of discretion in awarding the mother her reasonable attorney’s fees.

               The cost of the appeal is assessed to the appellant, and the cause

remanded.




                                              __________________________
                                              Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Hon. H. David Cate, Sp.J.




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