               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 April 8, 2015 Session

                              IN RE JAIDEN W., ET AL.

                    Appeal from the Juvenile Court for Coffee County
                      No. 07J1623    Timothy R. Brock, Judge


                 No. M2014-00953-COA-R3-JV – Filed April 23, 2015


This is the third appeal of this case, involving the issue of child support and arrears. In
the second appeal, this Court remanded the case to the trial court for a determination of
Appellant Father and Appellee Mother’s respective incomes for the period of August 22,
2008 through September 28, 2009. Based upon Mother’s testimony at the hearing on
remand, the trial court set Mother’s income for the relevant period at $300 per month.
Father appeals, arguing that, based upon the trial court’s previous finding that Mother
was voluntarily unemployed, the trial court should have imputed income to Mother at the
statutory rate. Because the law of the case is that the trial court should determine the
parties’ actual circumstances, we conclude that the court correctly set Mother’s income as
the amount she actually earned. Affirmed and remanded.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court is
                             Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN,
J., and BRANDON O. GIBSON, J., joined.

Greg W., Manchester, Tennessee, Pro Se

Eric J. Burch, Manchester, Tennessee, for the appellee, Jessica J.

                                        OPINION

                                     I. Background

      A full recitation of the relevant facts is set out in this Court’s opinions in In re
Jaiden C.W., No. M2010–01105–COA–R3–JV, 2011 WL 2306057 (Tenn. Ct. App. June
7, 2011) (“Jaiden I”) and In re Jaiden C.W., 420 S.W.3d 13 (Tenn. Ct. App. 2013)
(“Jaiden II”). Appellee Jessica J. (“Mother”) and Appellant Greg W. (“Father”) are the
unmarried parents of two minor children, Jaiden C.W. and Caiden J.W., who were born
in 2006.1 While the parties were together, Father provided Mother $400 per month in
child support. Jaiden I, 2011 WL 2306057, at *1. However, the parties’ relationship
ended in October 2007, after which time Father ceased payment of child support. Id. In
November 2007, Father filed a petition to establish paternity of the children and for
designation of primary residential parent. Id. Mother counter-petitioned for child support.
Id.

        In Jaiden I, this Court vacated the trial court’s determination of Appellant
Father’s child support obligation because the trial court did not base its determination on
Father’s actual income. Upon remand, the trial court interpreted the law of the case to
limit its review only to Father’s income and to negate any consideration of other variables
affecting child support. Because the trial court misinterpreted the law of the case to limit
its review of the parties’ actual circumstances, we vacated the order on child support and
remanded for reconsideration in Jaiden II, to wit:

                The gravamen of our holding in Jaiden I is that the parties’ actual
        circumstances should dictate the calculation of their respective support
        obligations. In the first appeal, we determined, based on the stated issue,
        that Father's actual income was not used to calculate his support obligation
        for the period August 22, 2008 to September 28, 2009. But, contrary to the
        trial court’s interpretation, this Court said nothing about limiting the review
        only to Father's actual income. Rather, we clearly stated that, “[i]f the
        evidence at trial demonstrates developments subsequent to the entry of the
        temporary order undermine its calculation, the court should modify the
        award to reflect the parties’ actual circumstances.” The mandate, then, was
        for the trial court to determine the parties’ actual circumstances, within the
        parameters set in the opinion. For example, in Jaiden I, this Court
        specifically affirmed the imputation of income to Mother from October 1,
        2007 until August 22, 2008. Accordingly, on remand, the trial court, under
        the law of the case doctrine, would be precluded from revisiting that
        specific question. Likewise, under our holding in Jaiden I, the trial court is
        precluded from revisiting the issue of attorney's fees.
                In addition, Jaiden I only addresses child support obligations and
        arrears arising on or after August 22, 2008. In this regard, Jaiden I gave the
        trial court a specific mandate to consider Father’s actual income only from
        August 22, 2008 going forward. However, contrary to the trial court's
        interpretation, this Court did not otherwise limit the trial court’s review on
        remand concerning its consideration of factors and variables that may have
1
  It is the policy of this Court to use only the first name and last initial and, in some cases, just the initials
of the parties involved in juvenile court actions to protect the privacy of the children involved.
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       changed since the August 22, 2008 date. In fact, in Jaiden I, we cited
       extensively from the case of Richardson v. Spanos, 189 S.W.3d 720 (Tenn.
       Ct. App. 2005), for the proposition that the trial court retains discretion in
       determining support obligations. Jaiden I, 2011 WL 2306057, at * 1-*2.
       Again, the gravamen of our holding in Jaiden I is that, in exercising its
       discretion, the trial court should endeavor to ascertain and give effect to the
       parties’ actual circumstances, which will necessarily change over the course
       of time, e.g., people remarry, have more children, insurance premiums rise
       and fall, and child care needs change. Accordingly, it was not this Court’s
       intention to limit the court’s discretion or its ability to review all relevant
       variables that may have arisen or changed from August 22, 2008 until the
       date of the hearing on remand. Rather, our opinion was intended to
       encourage the trial court to ascertain the parties’ actual circumstances and
       to calculate the support obligations in accordance with their respective
       realities. Upon remand, the court should not limit its review, but should
       allow evidence, from both sides, concerning changes in circumstances and
       other relevant variables, from August 22, 2008 until the date of the hearing,
       in an effort to ground its calculation of child support and any arrearage
       thereon on the totality of the actual circumstances that exist, which is the
       only way to reach a just result.

Jaiden II, 420 S.W.3d at 21-22.

        On remand from this Court, on December 9, 2013, the trial court held a hearing on
the question of the respective child support obligations of the parties during the relevant
time period, August 22, 2008 through September 28, 2009.2 At the hearing, Mother
testified that she gave birth to a second set of twins, who are not at issue in this appeal, on
July 21, 2009. She stated that, during the relevant time period, she was a stay-at-home
mom and that her sole income was from selling Avon from her home. As a sales
representative for Avon, Mother testified that she made approximately $300 per month.
At the close of the hearing, the trial court stated that

       based on the proof today, I find that [Mother’s] income for the entire period
       of time is $300. The additional testimony, which was not offered before,
       was that she had a high-risk pregnancy [with the second set of twins] and
       was under work restrictions . . . .

The trial court entered an order on March 6, 2014, in which it held, in relevant part, that:

2
 We note that, although Father was represented by counsel at the December 9, 2013 hearing, he is
proceeding pro se in this appeal.
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       5. From August 22, 2008 until March 12, 2009, [Mother] shall receive
       credit for 259 days with the children and [Father] shall receive credit for
       106 days with the minor children.

       6. From March 13, 2009 until September 28, 2009, [Mother] shall receive
       credit for 209 days with the minor children and [Father] shall receive credit
       for 156 days with the minor children.

       8. [Mother’s] income for the entire period of time shall be set at $300 per
       month.

                                         II. Issues

       Father appeals. The sole issue for review is whether the trial court erred in setting
Mother’s income, for the relevant time period of August 22, 2008 through September 28,
2009, at $300 per month. In the posture of Appellee, Mother requests an award of
attorney’s fees and costs for the appeal.

                                 III. Standard of Review

       The gravamen of Father’s issue is whether the trial court misapplied the law of the
case or otherwise erred in setting Mother’s income at $300 per month. Specifically,
Father contends that, because the trial court previously imputed income to Mother of
$2,450 per month, for the period of October 1, 2007 until August 22, 2008, and because
there was allegedly sufficient evidence at the hearing to conclude that she continued to be
voluntarily unemployed from August 22, 2008 through September 28, 2009, the trial
court should have imputed income to Mother at the statutory rate of $29,300.00 per year.

       As discussed in Jaiden II:

       The law of the case doctrine in Tennessee has been clearly established:

              [U]nder the law of the case doctrine, an appellate court's
              decision on an issue of law is binding in later trials and
              appeals of the same case if the facts on the second trial or
              appeal are substantially the same as the facts in the first trial
              or appeal. The doctrine applies to issues that were actually
              before the appellate court in the first appeal and to issues that
              were necessarily decided by implication. The doctrine does
              not apply to dicta.

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       Creech v. Addington, 281 S.W.3d 363, 383 (Tenn. 2009) (citing Memphis
       Publ'g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975
       S.W.2d 303, 306 (Tenn. 1998)). As explained in Memphis Publishing, the
       doctrine is not constitutionally mandated, nor is it a limitation on the
       court’s power, but “it is a longstanding discretionary rule of judicial
       practice which is based on the common sense recognition that issues
       previously litigated and decided by a court of competent jurisdiction
       ordinarily need not be revisited.” Id. (citing Ladd by Ladd v. Honda Motor
       Co., Ltd., 939 S.W.2d 83, 90 (Tenn. Ct. App. 1996) (citations omitted)).
       The purpose of the rule is to promote “the finality and efficiency of the
       judicial process, avoid [ ] indefinite relitigation of the same issue, foster [ ]
       consistent results in the same litigation, and assure[ ] the obedience of trial
       courts to the decisions of appellate courts.” Id. The exceptions to the law of
       the case doctrine are limited and a reconsideration of an issue is permitted
       only if: (1) the evidence produced on remand is substantially different than
       the evidence produced at the initial proceeding; (2) the earlier findings of
       law are “clearly erroneous and would result in manifest injustice if allowed
       to stand”; (3) the prior ruling is “contrary to a change in controlling law that
       occurred between the first and second appeal.” Memphis Publ'g Co., 975
       S.W.2d at 306.

Jaiden II, 420 S.W.3d at 21.

        In addition to reviewing the question of whether the trial court adhered to the law
of the case, we further note that the issue of Mother’s income was tried by the court,
sitting without a jury. As such, we review the trial court’s findings of fact de novo with a
presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App.
P. 13(d). For the evidence to preponderate against a trial court’s finding of fact, it must
support another finding of fact with greater convincing effect. 4215 Harding Road
Homeowners Ass'n v. Harris, 354 S.W.3d 296, 305 (Tenn. Ct. App. 2011); Walker v.
Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).

                                        IV. Analysis

                    A. Law of the Case and the Trial Court’s Findings

   As set out in full context above, in Jaiden II we reiterated our holding in Jaiden I that
“the mandate . . . was for the trial court to determine the parties’ actual circumstances” in
determining the support obligation for the period of August 22, 2008 to September 28,
2009. Concerning Father’s argument that the trial court should have imputed income to
Mother for the relevant period, in Jaiden II, we noted that “in Jaiden I, this Court
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specifically affirmed the imputation of income to Mother from October 1, 2007 until
August 22, 2008” and that, under the law of the case, the trial court “would be precluded
from revisiting that specific question [i.e., imputation of income to Mother for the period
up to August 22, 2008].” In other words, the fact that the trial court imputed income to
Mother for the period before August 22, 2008 had no bearing on its calculation of her
income during the time period at issue in this appeal, i.e., August 22, 2008 until
September 28, 2009. In Jaiden II, we clearly stated that, in determining the income for
this time period, the court should determine the parties’ “actual circumstances.” This is
the law of the case.

       On remand, it appears that the trial court correctly applied the law of the case by
determining Mother’s actual circumstances. Mother’s testimony that she earned
approximately $300 per month by selling Avon products was not disputed. However, on
cross examination, Father’s lawyer was given the opportunity to establish that Mother
was voluntarily unemployed. To this end, Father’s lawyer asked Mother about previous
employment, skills, and education. The uncontroverted testimony, however, was that,
during the relevant period of time, Mother had a high-risk pregnancy, which necessitated
medical restrictions on her ability to work. After the second set of twins was born on
July 21, 2009, Mother was caring for four children under the age of three. She testified
that her research indicated that child care for the four children would cost more than what
she could earn given her education and experience. From this testimony, the trial court
declined to hold that Mother was voluntarily unemployed during the relevant time period.
From our review, the evidence does not preponderate against this finding, nor does it
preponderate against the trial court’s determination that Mother’s actual income was
$300 per month.

                                    B. Attorney’s Fees

   Mother requests an award of her attorney’s fees and costs incurred in defending this
appeal. In her appellate brief, Mother states that Father’s appeal is frivolous in that he
asserts that “this Court should impute almost $30,000 per year in income to a single
mother raising four children ages three and under.”

    An award of appellate attorney’s fees is a matter within this Court’s sound discretion.
Archer v. Archer, 907 S.W.2d 412, 419 (Tenn. Ct. App. 1995). In considering a request
for attorney’s fees on appeal, we consider the requesting party’s ability to pay such fees,
the requesting party’s success on appeal, whether the appeal was taken in good faith, and
any other equitable factors relevant in a given case. Darvarmanesh v. Gharachoulou,
No. M2004-00262-COA-R3-CV, 2005 WL 1684050, at *16 (Tenn. Ct. App. July 19,
2005). As noted above, the trial court clearly applied the law of the case as set out in
Jaiden II by determining Mother’s actual income for the relevant time period.
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Nonetheless, Father has placed Mother in the position of having to defend a third appeal.
It is also clear that Mother is not in a financial position to bear the burden of these
expenses. In light of the foregoing facts, we conclude that Mother is entitled to her
attorney’s fees and costs in defense of this appeal. Accordingly, we remand the case for
the sole purpose of calculation of the reasonable amount of those fees and entry of
judgment in favor of Mother in that amount.

                                    V. Conclusion

       For the foregoing reasons, we affirm the order of the trial court. The case is
remanded for further proceedings consistent with this opinion and, specifically, for
calculation of Mother’s reasonable attorney’s fees and costs for the appeal. Costs of the
appeal are assessed against Appellant, Greg W. and his surety, for all of which execution
may issue if necessary.




                                               _________________________________
                                               KENNY ARMSTRONG, JUDGE




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