                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                           Assigned on Briefs March 9, 2011

   ROBIN CAMPBELL ARMBRISTER v. EDWIN C. ARMBRISTER, JR.

                   Appeal from the Circuit Court for Sevier County
                    No. 2007-0523-II    Richard R. Vance, Judge




            No. E2010-01561-COA-R3-CV-FILED-NOVEMBER 21, 2011


At issue in this appeal is the amount of income that can be imputed to the father for child
support, as well as whether the mother should be charged with the attorney fees and costs in
regard to an order of protection. The trial court found that the father was voluntarily
underemployed. Finding that the evidence does not preponderate against the trial court’s
finding of voluntary underemployment, we affirm the trial court as to that matter. We reverse
the trial court’s ruling regarding the attorney fees and costs.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
              Affirmed in Part and Reversed in Part; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.


Bruce Hill, Sevierville, Tennessee, for the appellant, Edwin C. Armbrister, Jr.

Kevin W. Shepherd, Maryville, Tennessee, for the appellee, Robin Campbell Armbrister.

                                        OPINION

                                   I. BACKGROUND

        Robin Campbell Armbrister (“Mother”) and Edwin Cleigh Armbrister, Jr. (“Father”)
were married in 1994. Two children, currently minors, were born of the marriage. Mother
filed for divorce on August 13, 2007, at which time she received an ex parte order of
protection against Father. The relationship between the parties was contentious. Numerous
motions and hearings followed the divorce filing. In August 2009, the parties announced a
partial agreement, which included stipulations concerning entry of the divorce, the division
of the marital property and debt, and a portion of pending motions. Issues regarding co-
parenting, an order of protection, and certain contempts remained.

       Mother was employed with the Sevier County Schools as a psychologist. Her income
was $66,000 per year. As for Father’s educational background, he had received an
undergraduate degree in Marketing from Virginia Tech, along with an MBA and JD from the
University of Tennessee. In the late 1990s, Father was offered a full-time, non-tenure track
faculty position with the University of Tennessee. He decided, however, to launch a summer
camp for performing arts named “Camp Curtain Call.” 1

        At the time of the divorce, Father was earning income through the camp, which lasts
9 weeks each summer. Father owns 78% of the shares of the camp corporation, assessed by
Father at $5,000 per share. The property on which the camp is located, a 37-acre piece of
real estate in Virginia, is owned by a business entity known as “Presto Properties, LLC.”
Father owns 80% of Presto Properties, LLC, and Mother owns 20%. Father opined that the
yearly income from Presto Properties, LLC, was around $90,000, of which approximately
$36,000 went to pay a mortgage. He noted that he also works magic shows during the off-
season. Father placed his income at $2,500 per month in his proposed Permanent Parenting
Plan (“Plan”). At trial, he testified that his monthly income was $2,750. He acknowledged
that he could work as a part-time professor, earning $24,000 to $30,000 per year in that
position. He did not include his affidavit of income and expenses in the record.

        A final hearing for co-parenting, child support, alimony, and attorney fees was held
in this matter on November 17, 2009. At the hearing, only Mother and Father testified and
neither party introduced any business documentation concerning Father’s income - i.e., no
tax returns or pay stubs. Father testified at the hearing that he “had to cease paying himself
any salary at all starting in September of 2008.” He noted as follows:

       Q. Have you been able to resume paying yourself $2,500.00?

       A. I ceased in September of ‘08 and I haven’t been able to continue that
       through the camp.

       Q. Where does your income come from now?

       A. Largely -- well, I still do some speaking engagements. I have more
       aggressively re-launched, I guess, my magic business, World of Wonder


       1
        Father testified that in graduate school, he prepared a business plan for the camp that won a
competition.

                                                 -2-
      Productions, in recent months and so forth. I’m a member of a speakers
      bureau with HR Group out of Greensboro, North Carolina. I do get speaking
      engagements that are involved more around business. I have partnered with
      a human resource consulting firm in Virginia called HR Alliance. They
      sponsor a speakers bureau, or we have for the last two years. One of those
      speaker sessions -- it’s a speaker series, is our presentation and then we invite
      three, four, or five other speakers on several dates. But I also, using credit
      card advances, promotional at the time, took cash advances on credit cards and
      loaned Camp Curtain Call money so that the camp could use that as working
      capital. And Camp Curtain Call, as [it’s] been able to, has been making re-
      payments of that loan to me, all properly documented and so forth. So that’s
      been some of the money that I’ve been able to live off of. But I’ve also had
      a small loan from a family member to fund legal expenses. . . .


During closing argument, counsel for Mother asked that the order of protection be extended
and requested attorney fees.

      At the conclusion of the hearing, the trial court ruled as follows:

      THE COURT: . . . These parties were previously divorced and the property
      issues resolved by order entered September 23rd, 2009 in this Court.

                                           ***

      Both these parents are highly intelligent, well-educated, each having the
      equivalent doctoral degrees. The careers of each of them has involved
      professional care, supervision, counseling of children by the mother as a
      school psychologist, by the father as a camp owner/director in which the
      mother also participated. All the more reason why it has disturbed the Court
      to see their behavior with respect to their own children.

                                           ***

      I’m going to extend the current order of protection for a period of one year
      from today. After its expiration, unless further extended, then the terms of that
      order will become a permanent injunction and a restraining order, essentially
      that is to not harass, annoy, threaten Ms. Armbrister.

                                           ***

                                             -3-
       . . . The mother’s income is well established. It’s undisputed that she earns
       $66,000.00 a year as a school psychologist. Father has testified that his
       income is approximately $30,000.00, give or take. He has income, some
       income from speaking, some income from magic shows. There was no
       testimony about any amounts of that income. He has the discretion to pay
       himself a salary from the camp. He’s testified that he has -- he is the principal
       owner of Presto, LLC, which receives as its principal source of income
       $90,000.00 a year from the camp. There’s a $36,000.00 mortgage. But there’s
       no specification of how the remaining funds are spent, other than in general
       terms, maintenance, utilities, and so forth, upkeep of the camp.

       But considering all that, considering the fact that he has a master’s of business
       administration and a law degree from the University of Tennessee, and as he
       testified to, he was very successful in his MBA program, has taught at the
       University of Tennessee, the Court finds that he is substantially under-
       employed below his qualifications and earning potential. His earning potential
       at a minimum, absolute minimum is equivalent to the mother’s. So I would
       find that he is woefully under-employed and voluntarily -- and it’s
       commendable, the camp, the purpose of it is all well and good, but that’s a
       choice and not commensurate with his earning ability. So I must find his
       earning ability is equivalent to Ms. Armbrister’s for computation purposes.

                                            ***

       The Court previously found through previous orders that the mother shall pay
       attorney fees to the father for the actions to enforce the discovery and finds
       that that amount of attorney fees she is ordered to pay $5,349.00. Father is
       ordered to reimburse the mother one-half the cost of Dr. Adlin’s fees of
       $6,875.00. So there’s some offset there. But the mother must pay the
       difference. There are other minor items mentioned that the Court, based upon
       each having their own assets and resources, would find that each would bear
       their own expenses for their attorneys and one-half the court costs.

                                            ***

Thus, the court imputed income to Father at $66,000 per year, or $5,500 per month gross --
the same amount as Mother earns. The trial court ordered that each side pay their own
attorney fees and failed to address the issue of fees and costs in relation to the order of
protection. Father timely filed this appeal.



                                              -4-
                                         II. ISSUES

       On appeal, Father asserts that the trial court’s findings concerning voluntarily
underemployment and income for Father are contrary to statutory and case law. Mother
contends that the trial court erred in failing to award her attorney fees and costs for the order
of protection.


                              III. STANDARD OF REVIEW

        We review the record de novo with a presumption that the court’s factual findings are
correct, absent a showing that the evidence preponderates to the contrary. Tenn. R. App. P.
13(d); In re C.K.G., 173 S.W.3d 714, 732 (Tenn. 2005). The standard of review in the trial
court’s application of law is conducted “under a pure de novo standard of review, according
no deference to the conclusions of law made by the lower courts.” Southern Constructors,
Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).


                                     IV. DISCUSSION

                                               A.

       Father argues that the trial court erred in imputing income to him in the amount of
$66,000 per year. According to Father, he left his employment at the University of
Tennessee many years prior to the parties’ separation with no intent to decrease his income
for child support purposes. He related that it had been his life’s goal to own a performing
arts summer camp and to use the camp facilities for corporate retreats and leadership training
during the fall and spring seasons. Father asserts that the business is still in the infancy
stages and that he hopes to soon be making much more than he did at his prior employment.
He argues that no evidence was presented that his choice of employment was made in bad
faith.

       As we noted in Dilley v. Dilley, No. M2009-02585-COA-R3-CV, 2011 WL 2015395
(Tenn. Ct. App. May 23, 2011),

       Awards of child support are governed by the Child Support Guidelines
       promulgated by the Tennessee Department of Human Services Child Support
       Services Division. See generally Tenn. Comp. R. & Regs. 1240-2-4; Tenn.
       Code Ann. § 36-5-101(e)(2). Child support decisions may require the trial
       court to use its discretion in determining a parent’s income for purposes of

                                               -5-
      applying the guidelines, especially in cases where the court finds a parent is
      underemployed and credibility issues arise. Therefore, appellate courts review
      the trial court’s child support decisions using the deferential abuse of
      discretion standard. Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct.
      App. 2005) (citing State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn.
      Ct. App. 2000) and White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn.
      Ct. App. 1999)). We will not reverse the trial court’s decision unless we
      determine it is clearly unreasonable based on the facts of the case and the
      applicable law. Richardson, 189 S.W.3d at 725.

Dilley, 2011 WL 2015395, at * 6.

      In Miller v. Welch, 340 S.W.3d 708 (Tenn. Ct. App. 2010), we quoted as follows from
Pace v. Pace, No. M2009-01037-COA-R3-CV, 2010 WL 1687740, at *8 (Tenn. Ct. App.
Apr. 26, 2010)(footnote omitted):

      The Guidelines state that imputing additional gross income to a parent is
      appropriate if it is determined that he or she is “willfully and/or voluntarily
      underemployed or unemployed.” Tenn. Comp. R. & Regs. 1240-02-04-
      .04(3)(a)(2)(i)(1). “This is based on the premise that parents may not avoid
      their financial responsibility to their children by unreasonably failing to
      exercise their earning capacity.” Massey v. Casals [315 S.W.3d 788, 795], No.
      W2008-01807-COA-R3-JV, 2009 WL 4017256, at *6 (Tenn. Ct. App. Nov.
      23, 2009). . . . “The Guidelines do not presume that any parent is willfully
      and/or voluntarily under or unemployed.” Tenn. Comp. R. & Regs. 1240-02-
      04-.04(3)(a)(2)(ii). “The purpose of the determination is 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.” Id.

      “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 adversely affects a parent’s income.” Tenn.
      Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii)(I). However, “[i]f a parent’s
      reasons for working in a lower paying job are reasonable and in good faith, the
      court will not find him or her to be willfully and voluntarily underemployed.”
      Owensby v. Davis, No. M2007-01262-COA-R3-JV, 2008 WL 3069777, at *4,
      n. 7 (Tenn. Ct. App. July 31, 2008). Although it is not required that parents
      intend to avoid their child support obligations by their actions, “willful or

                                            -6-
      voluntary unemployment or underemployment must result from an intent on
      the part of the parent to reduce or terminate his or her income.” Wilson v.
      Wilson, 43 S.W.3d 495, 497 (Tenn. Ct. App. 2000). The child support
      guidelines provide the trial court with several factors it may consider in
      making this determination. “‘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.’” Reed v. Steadham, No. E2009-00018-COA-R3-CV, 2009
      WL 3295123, at *2 (Tenn. Ct. App. Oct. 14, 2009) (quoting Owensby [v.
      Davis, No. M2007-01262-COA-R3-JV], 2008 WL 3069777, at *4 [Tenn. Ct.
      App. July 31, 2008)]). The trial court has considerable discretion in its
      determination of whether a parent is willfully or voluntarily underemployed.
      Hommerding v. Hommerding, No. M2008-00672-CO-R3-CV, 2009 WL
      1684681, at *7 (Tenn. Ct. App. June 15, 2009) (citing Eldridge v. Eldridge,
      137 S.W.3d 1, 21 (Tenn. Ct. App. 2002)); see also Willis v. Willis, 62 S.W.3d
      735, 738 (Tenn. Ct. App. 2001). A trial court’s determination regarding
      willful and voluntary underemployment is entitled to a presumption of
      correctness, Johnson v. Johnson, No. M2008-00236-COA-R3-CV, 2009 WL
      890893, at *7 (Tenn. Ct. App. April 2, 2009), and “we accord substantial
      deference to the trial court’s decision, especially when it is premised on the
      trial court’s singular ability to ascertain the credibility of the witnesses.” Reed,
      2009 WL 3295123, at *2.

Miller, 340 S.W.3d at 713. The Dilley opinion further notes that

      The Child Support Guidelines provide that to determine whether a parent is
      voluntarily underemployed, a court can consider the parent’s education,
      training, and ability to work, as well as his past and present employment.
      Tenn. Comp. R & Regs. 1240-2-4-.04(3)(a)2.(iii). A court finding an obligor
      parent willfully and voluntarily underemployed must make a finding as to the
      parent’s potential earnings, taking into consideration the obligor’s educational
      level and/or previous work experience. Garfinkel v. Garfinkel, 945 S.W.2d
      744, 748 (Tenn. Ct. App. 1996); Herrera v. Herrera, 944 S.W.2d 379, 387
      (Tenn. Ct. App. 1996); Eatherly v. Eatherly, No. M2000-00886-COA-R3-CV,
      2001 WL 468665, at *11 (Tenn. Ct. App. May 4, 2001).

      Courts are directed to allocate additional income to an underemployed parent
      to increase the parent’s gross income to an amount that reflects the parent’s
      income potential or earning capacity, and the increased amount is to be used
      for child support calculation purposes. Tenn. Comp. R. & Regs. 1240-2-4-

                                              -7-
       .04(3)(a)2.(ii). The additional income allocated can be based on the parent’s
       past employment. Id. The court has the option of imputing additional gross
       income to an underemployed parent where there is no reliable evidence of
       income. Id. at 1240-2-4-.04(3)(a)2.(i).

Id. at *7-8.

       In Owensby v. Davis, No. M2007-01262-COA-R3-JV, 2008 Tenn. App. LEXIS 456
(Tenn. Ct. App. July 31, 2008), we observed:

       Under Tennessee law, there is no presumption that a parent is willfully or
       voluntarily underemployed or unemployed. To the contrary, the party alleging
       that a parent is willfully or voluntarily underemployed or unemployed carries
       the burden of proof. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(ii) (2008)
       (“The Guidelines do not presume that any parent is willfully and/or voluntarily
       under or unemployed.”); Richardson v. Spanos, 189 S.W.3d 720, 727 (Tenn.
       Ct. App. 2005). Consequently, Mother had the burden of demonstrating that
       Father was willfully or voluntarily underemployed. . . .

Id. at *11-12. The Owensby court continued

       A party’s child support obligation is not measured by his actual income; it is
       measured by his earning capacity as evidenced by his educational level and
       previous work experience. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(ii);
       Watters v. Watters, 22 S.W.3d 817, 820-21 (Tenn. Ct. App. 1999). When
       called upon to determine whether a parent is willfully and voluntarily
       unemployed or underemployed, the courts will consider the factors in Tenn.
       Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(ii), as well as the person’s past and
       present employment and reasons for the party’s change in employment.

Id. at *12 (some citations omitted).

       Upon review of the record, we find that the trial court properly concluded that Father
was underemployed. Regardless of any merit that can be discerned from Father’s work as
the owner and operator of a camp, this voluntary underemployment will not shield him from
his child support obligations. The record clearly supports that Father could have obtained
supplemental employment as a university instructor.

        Once it is determined that Father was voluntarily underemployed, the next matter for
the trial court to address is the proper amount of income to impute. “[A]dditional income can

                                             -8-
be allocated to that parent to increase the parent’s gross income to an amount which reflects
the parent’s income potential or earning capacity, and the increased amount shall be used for
child support calculation purposes.”            Tenn. Comp. R. & Regs. 1240-02-04-
.04(3)(a)(2)(ii)(II). Father argues that there was no evidence of income presented in this
case, other than oral testimony of the parties and their proposed Plans. He notes that Mother
failed to provide any documentary evidence or expert testimony as to what an individual with
a similar education and work history as Father could expect to earn. He contends that the
trial court arbitrarily set his income at $66,000 per year. According to Father, if the trial
court rejected that his income was $2500 per month, absent proof of his actual income or
potential income, the most the court could impute to him was $37,589 per year pursuant to
the guidelines.

        Father relies on Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iv), which provides
as follows:

       (iv) Imputing Income When There is No Reliable Evidence of Income.

       (I) When Establishing an Initial Order.

              I. If a parent fails to produce reliable evidence of income (such
              as tax returns for prior years, check stubs, or other information
              for determining current ability to support or ability to support in
              prior years for calculating retroactive support); and

              II. The tribunal has no reliable evidence of the parent’s income
              or income potential;

              III. Then, in such cases, gross income for the current and prior
              years shall be determined by imputing annual gross income of
              thirty-seven thousand five hundred eight[y]-nine dollars
              ($37,589) for male parents and twenty-nine thousand three
              hundred dollars ($29,300) for female parents. These figures
              represent the full time, year round workers’ median gross
              income, for the Tennessee population only, from the American
              Community Survey of 2006 from the U.S. Census Bureau.

Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iv).

      The parties agreed that Father earned at least $2500 per month ($30,000 per year).
On direct examination, Father claimed monthly income of $2,750 per month. He further

                                              -9-
testified that he could have worked as a part-time professor making approximately $30,000
per year. Additionally, he noted that he derived income from speaking engagements and
magic shows. We find, therefore, that despite the fact the trial court cited Mother’s income
as a benchmark, “[t]he tribunal ha[d] . . . reliable evidence of the parent’s . . . income
potential[.]” See Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(iv)(II). The court
therefore articulated a reasonable amount of income for Father for child support purposes.




                                               B.

        Mother filed a petition for an order of protection against Father on April 22, 2009.
Thereafter, an ex parte order of protection issued, and the parties agreed to consolidate the
order of protection with their pending divorce. At the final hearing, the trial court extended
the order of protection. However, the court did not award attorney fees to Mother on this
issue, even though her attorney asked for fees during his closing argument. Father asserts
that she has raised this issue for the first time in her brief.

        Tenn. Code Ann. § 36-3-617(a) states, in part, “[i]f the court, after the hearing on the
petition, issues or extends an order of protection, all court costs, filing fees, litigation taxes
and attorney fees shall be assessed against the respondent.” (Emphasis added). The
mandatory language of the statute does not allow the trial court any discretion in the matter,
and expressly requires such payment. See Furlong v. Furlong, No. E2010-02456-COA-R3-
CV, 2011 WL 4864344, at *11 (Tenn. Ct. App. Oct. 14, 2011); Lewis v. Rader, No. E2010-
00724-COA-R3-CV, 2010 Tenn. App. LEXIS, at *6 (Tenn. Ct. App. Sept. 30, 2010). Thus,
the trial court erred in failing to award to Mother attorney fees and costs associated with the
order of protection.

                                     V. CONCLUSION

       The judgment of the trial court is affirmed in part and reversed in part. This matter
is remanded to award Mother attorney’s fees and costs for the extension of the order of
protection and with costs of the appeal assessed against the appellant, Edwin C. Armbrister,
Jr.




                                                     _________________________________
                                                     JOHN W. McCLARTY, JUDGE



                                              -10-
