       IN THE COURT OF APPEALS OF TENNESSEE
                                                                            FILED
                        AT KNOXVILLE
                                                                            July 28, 1999

                                                                          Cecil Crowson, Jr.
                                                                           Appellate Court
                                                                                 Clerk



PAULA MARIE BROWN,                         ) C/A NO. 03A01-9812-CV-00417
                                           )
       Plaintiff-Appellee,                 ) HAM ILTON CIRCU IT
                                           )
v.                                         ) L. MARIE WILLIAMS,
                                           ) JUDGE
JAMES A. BROWN,                            )
                                           ) AFFIRMED AS
       Defend ant-App ellant.              ) MODIFIED




SANDRA J. BOTT, Chattanooga, for Plaintiff-Appellee.

BRUCE C. BA ILEY, CHAMB LISS, BAHNER & STOPHEL, P.C., Chattanooga, for
Defend ant-App ellant.




                                     O P I N IO N


                                                         Franks, J.


              This is an ap peal by the husband from a div orce decre e, ordering h im to

pay alimony in the amount of $2,000.00 per month. The wife has appealed, raising

issues dealing with the amount of child support and attorney fees.

              The parties were m arried on Novem ber 23, 1975, and tw o children were

born to the marriage. Only one child, Timothy Brown, age 15, was a minor at the

time of the divorce. The parties stipulated that the wife would have custody of the

minor child and stipulated an equal division of certain pe rsonal properties. The cou rt

was then required to distribute the property that was not covered by the stipulation, set
child su pport, a nd ma ke a de termin ation of alimon y.

                The Trial Judge based child support on the amount of $86,788.37, as

husband’s income, or $1,067.00 per month, plus $100.00 upward deviation, due to the

fact that regular visitation had not been occurring between the defendant and the

parties’ minor child. Add itionally, the Court ordered the de fendant to pay the w ife

21% of the net proceeds of any bonuses, distributions, or any income of any other type

receive d from dividen ds, intere st, bonu ses, or o ther bu siness in come .

                The Court also provided the parties were to hold the marital residence as

tenants in common until the minor child reached the age of eighteen or graduates from

high school, whichever is later. At that time, the wife could remain in the home by

paying the husband his share of the equity, or the parties were to sell the home and

divide the equity equally, after the wife receives the first $30,114.64 of the equity as

part of the initial p roperty distrib ution. The wife wa s ordered to pay the m onthly

mortgage payment and to make necessary repairs, though one-half of the cost of the

repairs would be deducted from the husband’s share of the equity when the residence

was sold, and the husband is responsible for one-half of the insurance on the residence

until suc h time a s it is sold.

                At the time of trial, the wife was 52 years of age and the husband was 50

years of age.     The wife has a high school education, while the husband has a degree

in accounting. The wife is a diabetic, controlled by diet, and is currently employed as

a secretary, earning $550.00 a week. The husband is employed as an accountant, and

his federal income tax documents reflect wages, tips, and other compensation in the

amount of $83,456.01 for 1997, $93,395.28 for 1996, $89,510.50 for 1995. They also

reflect incom e from div idends, intere st, capital gains, a nd partners hip distribution s in

the am ount of $85,29 2.00 fo r 1997 , $41,28 5.79 fo r 1996 , and $4 ,180.00 for 199 5.

                The parties subm itted income and ex pense statements. Th e wife’s


                                               2
statement reflects net monthly income from work in the amount of $1,864.41, and

total monthly expenses of $4,463.47. This monthly income statement subtracts a

$100.00 per month contribution to her 401(k) plan, and the amount of her expenses

includes a $300.00 per month contribution to a savings account, $700.00 for birthdays,

Christmas, and vacations, $75.00 for payment on a Discover credit card, and $150.00

per m onth fo r hom e main tenanc e.

               The husband’s statement reflects a gross monthly salary of $7,066.66,

with a net income of $4,692.60.         He claims general expenses of $1,350.00, which

includes $700.00 in rent, $250.00 in utilities, $300.00 for car expenses, and $100.00

for insurance. He also claims expenses in the amount of $1,320.00, which includes

such thing s as food, clo thing, and re creation.   Th ough he claimed g eneral exp enses in

the amo unt of $1,3 50.00, he te stified that these were estim ated expe nses, becau se he is

currently living with his girlfriend and not paying her for any expenses. He said that

he is paying $400.00 a month in rent to a friend, though he is just storing some

belong ings at th e friend ’s hous e.

               After this appeal was perfected, the wife filed a Motion to Consider Post

Judgment F acts, asking the Court con sider the husband’s 19 98 income tax return

which re flects the husb and’s adju sted gross in come a s $234,00 0.00 for 19 98. Prior to

his deduc tion for alim ony, the hu sband’s inc ome w as $251,4 78.00. Th e wife insists

this is relevant to the appeal because at trial, the husband testified his monthly income

was $7,066.66 per month.

               Essentially the issues on appeal are:

               1. Whether the Trial Court erred in ordering periodic alimony as
               opposed to rehabilitative alimony.

               2. Whether the Trial Court erred by awarding the wife alimony
               exceeding her needs and exceeding the husband’s ability to pay.

               3. Whether the Trial Court erred in setting child support in an amount
               that is not in compliance with the child support guidelines.

                                               3
               4. Whe ther the wife should be awarded her attorney ’s fees incurre d in
               this Appe al.

               As a preliminary matter, we are required to determine whether the

Motion to Consid er Post Jud gment F acts should be sustaine d. We co nclude tha t it is

not appropriate to consider this tax return under this Rule. Both parties submitted

affidavits addressing how the document affects the position of the parties. Instead of

demon strating how the docum ent was re levant, the affid avits identify a dispute as to

the source of the husband’s income, and whether the wife actually received a large

part of it.

               We conclude the Trial Court did not err in ordering periodic alimony, as

opposed to rehabilitative alimony. Trial Judges are given broad discretion in awards

of alim ony. Aaron v. Aaron, 909 S.W .2d 408 (T enn. 1995 ). Such a de cision is

factually driven and calls for a careful balancing of numerous factors, including those

listed in T enn. C ode A nn. § 36 -5-101 (d) (Su pp. 198 8).

               Although the Legislature has expressed a preference for rehabilitative

alimony, as opposed to permanent alimony, T.C.A. §36-5-101(d)(1), it has also

declared, “W here there is s uch relative e conom ic disadvan tage and re habilitation is

not feasible in consideratio n of all releva nt factors, inclu ding those set out in this

subsection, then the court may grant an order for payment of support and maintenance

on a long-term basis or until the death or remarriage of the recipient except as

otherwise provided in subdivision (a)(3).” The rec ord reveals that the husban d’s

salary is substantially more than the amount the wife earns, and while both parties

may receive additional income from investments, they are to share that income

equally, so it will not necessarily alter her relative disadv antage. The Trial C ourt

specifically found, “The income disparity listed above is a result of the relative

education and training of the parties and the ability of each party to secure the

necessary education and training. The work experience, work life expectancy, and

                                               4
age of Mrs. Brown make it unlikely she can be rehabilitated to improve her earning

capacity to a level commensurate with that of Mr. Brown.” The evidence does not

preponderate again st this finding. T.R.A.P. Rule 1 3(d).

               Trial court’s are given a great deal of discretion in the amount of

alimon y they a ward. Hall v. Ha ll, 772 S.W .2d 432, 43 9 (Tenn. A pp. 1989 ); Ingram v.

Ingram , 721 S.W.2d 262 (Tenn. App. 1986). “The amount of alimony to be allowed

in any case is a matter fo r the discretion of the particu lar circums tances. Th e appellate

courts are d isinclined to re view suc h discretion e xcept in cas es where it has man ifestly

been abused.” Ingram, at 264.

               In considering wh ether to award alimo ny and the am ount, trial courts are

to consider all relevant factors, set forth in T.C.A . §16-5-101(d). W hile there are

several factors to be taken into account, our courts have emphasized that the most

important factors to consider are the needs of the requesting spouse and the ability of

the oblig or spou se to pa y. See Sm ith v. Smith, 984 S.W.2d 606, 609-610 (Tenn. App.

1997). Fault als o plays an imp ortant ro le, see Long v. Long, 957 S.W.2d 825 (Tenn.

App. 1997); and Ford v. Ford, 952 S .W.2d 824 (T enn. A pp. 199 6).

               The husband argues that the Trial Court looked only at the relative

earning capacities of the parties, and did not look at need and ability to pay. The

substantial difference in income, however, along with the income and exp ense

statemen ts of both pa rties, reflect the ne eds and a bility to pay. T he wife ea rns a yearly

salary of $28,600.00 and reports her net monthly take-home at $1,864.41, and claims

her total expenses for herself and her minor child are $4,463.47. The husband argues

that the wife ’s income is understated because s he deduc ted a $100 per mon th

contribution to her employer’s 401(k) plan, and that her needs are overstated because

her expen ses include $300 pe r month fo r a savings c ontribution, $ 700.00 p er month

for birthday s, Christma s, vacations, a nd misce llaneous item s, and $15 0.00 per m onth


                                              5
for hom e main tenanc e.

               While the husband takes issue with these expenses, prior to the divorce.

the parties together earned over $100,000.00 per year and we cannot say that an

estimated $700.00 per month for birthdays, Christmas, vacations and miscellaneous

expense s is unreaso nable, base d upon th eir living stand ard. She sh ould not h ave to

forego vacatio ns or sto p buyin g her ch ildren p resents b ecause of the d ivorce.

Similarly, the $150.00 for hom e mainten ance is not a n overstated expense . While

one-half of the hom e maintenance e xpenses may be deducted from the husband’s

share of the equity wh en the house is sold, the w ife must still make the hom e repairs

and pa y for the m wh en they are ma de.

               The husband claims a monthly gross salary of $7,066.66, with a net of

$4,692.60, which includes deductions for federal income tax in the amount of

$1,722.00, FICA in the amount of $531.38 and “other” in the amount of $120.68 per

month. The Trial Court found the husband’s gross monthly income to be $7,232.36,

and the husband’s testimony revealed his claims of gross and net income were less

than the true am ount du e to his v oluntar y contr ibution s to his 4 01(k).

               The husband’s gross income from his salary is understated, since the

Trial Cou rt found his g ross incom e to be $20 0.00 mo re than claim ed by him , and his

expenses are overstated, since he admits he is not incurring general living expenses

because he is living with his girlfriend, who pays all the bills. We cannot say the

award o f $2,000.00 per mon th in alimon y under a ll the facts and circumsta nces is

excessive, since he has b een receiving incom e over and abov e his salary. We affirm

the Trial Judge on this issue.

               On the issu e of child su pport, we c onclude th e Trial Judg e did err in

setting the child support in an am ount that is not in comp liance with the child suppo rt

guidelines. In addition to th e set amo unt of child s upport, the h usband w as ordered to


                                               6
pay 21% of any additional income from such things as interest, dividends, and

partnership distributions as child support. T.C.A. §36-5-101(a)(2)(A) provides:

               Courts having jurisdiction o f the subject matter and of the parties are
               hereby expressly authorized to provide for the future support of a spouse
               and of the children, in proper cases, by fixing some definite amount or
               amounts to be paid in monthly, semimonthly, or weekly installments, or
               otherwise, as circumstances may warrant, and such awards, if not paid,
               may be enforced by any appropriate process of the court having
               jurisdiction thereof, including levy of execution.

               The foreg oing prov ision prohib its courts from ordering a v ariable

amount of child su pport based on va riable income, even tho ugh that may b e the more

rational approa ch base d on the circum stances . See Robertson v. Robertson, No.

03A0 1-971 1-CV -0051 1, 1998 Tenn . App. L EXIS 761 (T enn. A pp. No v. 9, 199 8).

Since the L egislature ha s mand ated that cou rts set a definite a mount o f child supp ort,

the issue thus becom es how shou ld that amount be c alculated. The child supp ort

guidelines, which must be applied as a rebuttable presumption of the proper amount of

child support, requires that child support is to be based upon a flat percentage of the

obligor’s net income, depending upon the number of children to be supported. Tenn.

Comp. R. & Regs. tit. 10, ch. 1240-2-4-.03(2). Net income is calculated by

subtracting F ICA an d federal inc ome tax from gro ss incom e, so the first step is

determ ining th e obligo r’s gross incom e. See Tenn. Comp. R. & Regs. tit. 10, ch.

1240- 2-4-.03 (4).

               The guidelines define gross income as

               all income from a ny source (before taxe s and other deduc tions),
               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 compe nsation ben efits wheth er tempo rary or perm anent,
               judgments recovered for personal injuries, unemployment
               insurance benefits, gifts, prizes, lottery winnings, alimony or
               mainte nance , and inc ome f rom se lf-emp loym ent. . . .

Tenn. Com p. R. & Reg s. tit 10, ch. 1240-2-4-.03(3)(a). Acco rdingly, the husband’s

                                              7
income in the form of interest, dividends, and partnership distributions would be

included within the definition of “gross income.” The guidelines further provide that

“[v]aria ble inco me su ch as co mm issions, b onuse s, overtim e pay, d ividend s, etc.,

should be averaged and added to the obligor’s fixed salary.” Tenn. Comp. R. & Regs.

tit. 10, ch. 1240-2-4-.03(3)(b). Therefore, we conclude that the husband’s additional

income must be averaged and added to his salary in order to determine gross income

for child support purposes.

               Several unreported cases have dealt with this issue in various ways. The

unreported case of Mayfield v. Mayfield , No. 01A01-9611-CV-00501, 1997 Tenn.

App. LE XIS 30 4 (Tenn. C t. App. Ap r. 30, 1997) , relied on a p rovision in th e child

support guidelines in holding that the court must average income for the past two

years. This p rovision in th e guideline s provides:

               In cases w here initial sup port is being set, a judgm ent must b e entered to
               include an amo unt due for mo nthly support from the date of the child’s
               birth or date o f separation o r date of aba ndonm ent which ever is
               appropriate, until the current support order is entered. This amount must
               be calculated based upon the guidelines using the average income of the
               obligor over the past two years and is presumed to be correct unless
               rebutted by either party. A n amou nt should b e included in the order to
               reduce the arrears judg ment on a month ly basis with in a reasona ble
               time.

Tenn . Com p. R. & Regs. ti t 10, ch. 1 240-2 -4-.04(1 )(e).

               While this provision d oes not m andate that tria l courts avera ge variable

monthly income from the p ast two ye ars to determ ine gross inc ome for c urrent child

support, it does reflect the legislative intent that when the exact amount of gross

income is not known an average must be taken, and a period of two years is an

appropriate time period to average that income. On this basis, we conclude that the

case should be remanded to the Trial Court for a determination of a definite amount of

child supp ort based o n the husb and’s ave rage incom e for the pas t two years , which is

to include any interest income and partnership distributions that are attributable to the


                                               8
husband.1 This would be the proper amount of child support under the guidelines,

unless r ebutted by eithe r party.

               The wife has also appealed the decision of the Trial Court to increase

the child support by $100.00 a month over the guidelines, and urges us to calculate a

specific number of days that the husband will not be visiting his son. There is no

indication that the father will not visit his son. He has visited his son, though not in the

manner or the amount contemplated by the guidelines. Since there will be visitation,

the Court cannot use a precise mathematical formula to determine the proper amount

of additional child support. Cases of this nature are best determined on a case-by-case

basis, and the evidence d oes not preponde rate against the finding of the Trial C ourt

that increases the ordered child support in the amount of $100.00 per month. T.R.A.P.

Rule 13(d).

               Finally, the wife asserts that this is a frivolous appeal and that she

should be entitled to attorney fees and costs, or that she is entitled to attorney fees for

defending her alim ony award. T he appeal is not frivolous, and we decline to aw ard

the wife her attorney’s fees, and in our discretion we assess one-half of the cost of the

appeal to each party.

               The judgment of the Trial Court is affirmed, except as modified and

remanded.




                                               __________________________
                                               Herschel P. Franks, J.



   1

       Any child support paid under the Trial Court’s order will be credited against the amount set
       upon remand.


                                                9
CONCUR:




___________________________
Houston M. Godd ard, P.J.




                              1 0
            I N      T H E           C O U R T       O F         A P P E A L S         O F     T E N N E S S E E
                                                                                                                                                   FILED
                                                   A T         K N O X V I L L E
                                                                                                                                                    July 28, 1999

                                                                                                                                                  Cecil Crowson, Jr.
                                                                                                                                                   Appellate Court
                                                                                                                                                         Clerk




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                                                     C O N C U R R IN G                          O P IN IO N

                               I     c o n c u r         i n     t h e     m a j o r i t y        o p i n i o n .               I     a g r e e      t h a t   t h e

m a j o r i t y ’ s                a p p r o a c h         t o     d e t e r m i n i n g          g r o s s           i n c o m e       f o r      c u r r e n t

c h i l d         s u p p o r t          i s     c o r r e c t           i n   t h i s        c a s e .           I     w r i t e       s e p a r a t e l y         t o

e x p r e s s            m y       v i e w     t h a t         t h e     t w o - y e a r - a v e r a g e                a p p r o a c h         u t i l i z e d        b y

t h e   m a j o r i t y                i n     t h i s         c a s e     m a y   n o t        b e   a p p r o p r i a t e               i n      a l l   c a s e s .



                                                                                   _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
                                                                                   C h a r l e s D . S u s a n o , J r . , J .



                                                                                       1 1
___________________________
Charles D. Susano, Jr., J.




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