             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                        FILED
                                                          July 29, 1999

SHARON ANN SMITH,                        )             Cecil Crowson, Jr.
                                         )            Appellate Court Clerk
       Plaintiff/Appellee,               )
                                         )   Appeal No.
                                         )   01-A-01-9809-CH-00515
VS.                                      )
                                         )   Williamson Chancery
                                         )   No. 22128
ALAN WAYNE SMITH,                        )
                                         )
       Defendant/Appellant.              )


      APPEALED FROM THE CHANCERY COURT OF WILLIAMSON COUNTY
                      AT FRANKLIN, TENNESSEE

              THE HONORABLE HENRY DENMARK BELL, JUDGE




R. E. Lee Davies
HARTZOG, SILVA & DAVIES
123 Fifth Avenue North
P. O. Box 664
Franklin, Tennessee 37065-0664
       Attorney for Plaintiff/Appellee

GREGORY D. SMITH
FARRIS, WARFIELD & KANADAY, PLC
424 Church Street, Suite 1900
Nashville, Tennessee 37219
      Attorney for Defendant/Appellant




                             AFFIRMED AND REMANDED




                                             BEN H. CANTRELL,
                                             PRESIDING JUDGE, M.S.


CONCUR:
KOCH, J.
CAIN, J.
                                      OPINION


                When the parties divorced, the trial court calculated the husband’s net

income for child support purposes by averaging his salary over a three year period.

The wife appealed, arguing that the child support guidelines required that a capital

gain of over $200,000 realized by the husband during the same period also be

included in the calculation. We agreed, but suggested the trial court could prorate the

capital gain over the longer time-frame during which the capital gain income was

apparently earned. Upon remand, the trial court took evidence as to the length of that

period, and made a fresh calculation, which the husband objects to in this appeal. We

affirm the trial court.



                                     I. Prior Proceedings



                Sharon Smith and Alan Smith divorced in 1994. The trial court divided

the marital property and gave the wife custody of the two children of the marriage. Mr.

Smith was ordered to pay child support and alimony. Two years later, Ms. Smith

petitioned the trial court for an increase in child support, claiming that her former

husband’s net income had greatly increased.



                The trial court heard proof that the husband earned an annual salary

that averaged $113,000 as a Vice President of Comdata Corporation during the years

1994-1996. He also earned substantial bonuses and commissions during those

years. In 1995, Mr. Smith exercised stock options he had acquired incident to his

employment, resulting in a capital gain of $221,1801. The court calculated a fixed

amount of monthly child support ($2,086) based upon Mr. Smith’s salary income and



        1
         Mr. Smith calculated the gross amount he realized upon the exer cise of his stock o ptions to
be $217,142. However, for the purposes of this appeal, he has accepted the figure of $221,180, which
was ca lculated by M s. Sm ith and us ed by the trial co urt.

                                                -2-
ordered that he also pay as child support 32% of any future bonuses or commissions

he received. The court did not take the 1995 capital gain into account in any way.

The wife appealed.



              Following oral argument, we filed an opinion in this case (Smith v. Smith,

Appeal No. 01-A-01-9705-CH-00216, filed Nashville, October 29, 1997). We found

that the trial court had exceeded its authority in ordering an automatic adjustment in

child support based upon the husband’s future bonuses and commissions, because

the child support guidelines promulgated by the Legislature require the courts to fix

some definite amount for the obligor to pay, based upon his earning capacity. Tenn.

Code Ann. § 36-5-101(a)(2)(A). We also noted that the definition of gross income

found in the Rules and Regulations of the State of Tennessee defined gross income

broadly as “all income from any source” and that it specifically included capital gains.




              We accordingly remanded this case to the trial court for a fresh

calculation of net income upon which to base Mr. Smith’s child support obligation, with

the following instructions:

                     We therefore hold that in calculating a definite monthly
              amount of child support, the trial court must consider Mr.
              Smith’s 1995 capital gains as well as his commissions,
              bonuses and salary.         Since Mr. Smith apparently
              accumulated his stock options during the entire period of his
              employment at Comdata, and not just during the year in
              which he exercised them, it might be equitable to average his
              capital gains over that entire period, or to prorate them in
              some way, rather than just averaging them over the three
              year period that was used for calculating his average salary,
              commission and bonus. The trial court may take proof on the
              process by which the options were acquired, in order to make
              this determination.




                              II. Current Proceedings




                                         -3-
                Following the remand, Ms. Smith filed a motion to set child support. The

chancellor conducted a hearing in his chambers on May 19, 1998. No court reporter

was present, so there is no transcript of that hearing. The court heard arguments of

counsel and reviewed unsworn documents presented by the parties.



                Ms. Smith presented a letter by Sara Groehler, Stock Option

Administrator at Ceridian Corporation (Ceridian bought Comdata in 1995),

accompanied by an employee stock option summary in the form of a table, which

listed the grant date for Mr. Smith’s stock options as August 3, 1993. Mr. Smith

presented an offer of employment, in the form of a letter to him dated April 17, 1983

from Louis Molettiere, a Senior Vice President of Comdata. The letter outlined the

salary and benefits that were to accompany the offered job, including a grant of

“25,000 shares of the Company’s common stock under the 1987 Non-Statutory Stock

Option Plan.”



                Following the hearing, the trial court issued an order pro-rating Mr.

Smith’s stock options from August 1993. The chancellor’s order referenced the

documents described above, but did not state the reasons for apparently preferring

the evidence presented by Ms. Smith over that of Mr. Smith. The recalculation of Mr.

Smith’s annual income from 1994-1996 resulted in a finding that his average gross

annual income was $206,881, or $17,240 a month. Based upon this amount (or more

precisely, based upon the net income derived from this amount), Mr. Smith’s child

support obligation came to $3,860 per month. The arrearage from the date of the

court’s earlier order came to $28,069 after consideration of the amount of child

support actually paid since that time.



                Mr. Smith’s attorney subsequently filed a motion under Rule 59, Tenn.

R. Civ. P., to Alter or Amend the Judgment, or for New Trial. Attached as an exhibit

to the motion was a ledger containing a listing of stock options that were granted


                                          -4-
between January 1, 1987 and January 27, 1995. The ledger indicated that Mr. Smith

had been granted options for 25,000 shares of Comdata Corporation on October 1,

1991. At the hearing on the motion, Mr. Smith also produced the sworn affidavit of

Michael W. Sheridan, acting Secretary of Comdata, testifying to the regularity and

correctness of both the above-mentioned ledger, and of another document, the

minutes of a regular meeting of the Board of Directors of Comdata Corporation held

on October 1, 1991, which included a resolution approving the aforementioned grant

to Mr. Smith.



                In her response to the Rule 59 motion, Ms. Smith argued that Mr. Smith

was not entitled to have his new evidence considered by the court because he failed

to file an affidavit to meet his burden of proving that the evidence he wished to present

could not have been discovered prior to the original proceeding through the exercise

of due diligence. See Seay v. City of Knoxville, 654 S.W.2d 397, 399 (Tenn. App.

1983).



                At the end of the hearing, the chancellor took the matter under

advisement. On August 26, 1998, he filed an order denying the Rule 59 motion. This

appeal followed.



                          III. A Necessarily Limited Review



                We must note at the outset the irregular nature of the hearing of May 19,

1998. A proceeding in chambers may be useful for some limited purposes, but when

the rights of the parties are to be conclusively determined, it is not an adequate

substitute for a hearing in open court, in accordance with the Rules of Civil Procedure

and the Rules of Evidence.




                                           -5-
              The absence of a transcript of the evidence is particularly damaging to

an appellant’s prospects, for without such a transcript (or in the alternative, a

statement of the evidence filed in accordance with Rule 24(c), Tenn. R. App. Proc.),

the presumption of correctness that normally accompanies findings of fact by the trial

court becomes conclusive. See Rule 13(d), Tenn. R. App. Proc.; Word v. Word, 937

S.W.2d 931 (Tenn. App. 1996); Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. App.

1992).



              It appears to us that both parties submitted without objection to the

procedures whose results are now at issue. Neither party alleges that he or she

objected to the admission of documents submitted by the other that could have been

excluded as inadmissible hearsay by a timely objection. If we are mistaken and

objections were indeed taken, the failure of the parties to preserve those objections

by arranging for the presence of a court reporter prevents us from reviewing the

court’s actions in any meaningful way.



              Relief is not generally available in the appellate courts to a party who

fails to take whatever action is necessary to prevent or nullify the harmful effect of an

error. See Rule 36(a), Tenn. R. App. P. Thus, we cannot consider the appellant’s

argument that the trial court erred in accepting the unsworn, unexplained letter from

Ms. Groehler and its attachments, and in using those documents to determine the

date of the grant of the stock options in question.



              As for the hearing on the Motion to Alter or Amend or for New Trial, we

believe the appellee is correct in stating that when the basis of such a motion is the

existence of newly discovered evidence, the appellant has a duty to furnish the court

with an adequate explanation as to why such evidence could not have been produced

at the trial of the case. The reason is that without such a rule, our courts would have




                                          -6-
a much more difficult time closing the books on many cases, and achieving that

finality of judgment which is one of the primary goals of our judicial system.



               Since the appellant did not even attempt to offer such an explanation,

the trial court did not err in refusing to reverse its earlier ruling, despite the appellant’s

contention that he was in possession of evidence that was better than the evidence

he produced at trial.



                           IV. The Educational Trust Fund



               The Tennessee Child Support Guidelines permits the court to order a

non-custodial parent to pay that portion of child support which is based upon net

income in excess of $6,250 per month into an educational trust fund for the benefit

of the children, rather than going directly to the custodial parent. Tenn. Rules & Regs

1240-2-4-.04(3). The appellant argues that the trial court erred in refusing to order the

creation of such a fund. However the creation of an educational trust fund is not

mandatory, but is within the sound discretion of the trial court. Nash v. Mulle, 846

S.W.2d 803, 804 (Tenn. 1993).



               Since there is no evidence in the record that the appellant asked the

court to create an educational trust fund, we cannot find that the court abused its

discretion in failing to do so. But because of the modifiable nature of child support

orders, we see nothing to prevent the appellant from moving the court for the creation

of such a fund, if he believes it would be to his advantage, or that of the children.



               Ms. Smith has also asked to be awarded her attorney fees on appeal.

We note, as we did in our earlier opinion in this case, supra, that a substantial portion

of the attorney fees she incurred were for the purpose of vindicating her right to




                                            -7-
receive an appropriate amount of support for her children. We therefore direct the

trial court to order the appellant to pay one-half of her attorney fees on this appeal.



                                          V.



              The order of the trial court is affirmed. Remand this cause to the

Chancery Court of Williamson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant.




                                          _________________________________
                                          BEN H. CANTRELL,
                                          PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
WILLIAM B. CAIN, JUDGE




                                         -8-
             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE



SHARON ANN SMITH,                          )
                                           )
       Plaintiff/Appellee,                 )      Appeal No.
                                           )      01-A-01-9809-CH-00515
                                           )
VS.                                        )      Williamson Chancery
                                           )      No. 22128
                                           )
ALAN WAYNE SMITH,                          )      Affirmed and
                                           )      Remanded
       Defendant/Appellant.                )

                                 JUDGMENT

              This cause came on to be heard upon the record on appeal from the

Chancery Court of Williamson County, briefs and argument of counsel; upon

consideration whereof, this Court is of the opinion that in the decree of the Chancellor

there is no reversible error.

              In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and decreed by this Court that the decree is affirmed.           The cause is

remanded to the Chancery Court of Williamson County for the enforcement of the

decree and for the collection of the costs accrued below.

              Costs of this appeal are taxed against Alan W. Smith, Principal, and

Gregory D. Smith, Surety, for which execution may issue if necessary.



                                   ______________________________________
                                   BEN H. CANTRELL, PRESIDING JUDGE, M.S.


                                   ______________________________________
                                   WILLIAM C. KOCH, JR., JUDGE


                                   ______________________________________
                                   WILLIAM B. CAIN, JUDGE
