                                                                                          06/24/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                        Assigned on Briefs November 1, 2019

JENNIFER BLAIR DEMATTEO TURK v. MICHAEL JOSEPH TURK, JR.

                Appeal from the Circuit Court for Rutherford County
                         No. 73613 J. Mark Rogers, Judge
                     ___________________________________

                           No. M2019-00869-COA-R3-CV
                       ___________________________________


This divorce action concerns the trial court’s setting of the residential schedule and
calculation of child support. We affirm the trial court’s judgment on both issues and also
deny the competing requests for attorney fees on appeal.


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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and ARNOLD B. GOLDIN, JJ., joined.

Charles G. Ward, Murfreesboro, Tennessee, for the appellant, Michael Joseph Turk, Jr.

Daryl M. South and David O. Haley, Murfreesboro, Tennessee, for the appellee, Jennifer
Blair Dematteo Turk.

                                        OPINION

                                 I.     BACKGROUND

      Michael Joseph Turk, Jr. (“Father”) and Jennifer Blair Dematteo Turk (“Mother”)
married in October 1999. This was the first marriage for both parties. Three children
were born of the marriage, namely Michael, Zachary, and August (collectively “the
Children”), born in 2002, 2004, and 2011, respectively. The parties worked outside of
the home for the majority of the marriage, each earning a substantial amount of money.
The parties lived an extravagant lifestyle that ultimately led to their filing of bankruptcy
when Mother was no longer able to maintain steady employment.
       Mother filed a complaint for divorce on October 23, 2017, alleging irreconcilable
differences and inappropriate marital conduct, to which Father responded with a counter-
complaint for divorce, alleging adultery, inappropriate marital conduct, and irreconcilable
differences. The divorce itself was not particularly contentious as evidenced by the
parties’ agreement on the division of marital property and Father’s designation as the
primary residential parent of the Children to allow for their continued placement in the
desired school district. The parties also adhered to a temporary 50/50 split of co-
parenting time, with each party exercising two days of co-parenting time per week and
alternating weekends. A typical week allowed for Father to exercise co-parenting time
on Monday/Tuesday, Mother to exercise co-parenting time on Wednesday/Thursday, and
one party cared for the Children from Friday through Sunday on an alternating basis.

       However, the relationship between the parties was contentious, at best. Mother
characterized Father as verbally abusive, angry, and demeaning toward herself and the
Children, while Father criticized Mother’s drinking habits, lack of involvement with the
Children, and inability to maintain employment. During the pendency of the divorce,
Mother began a romantic relationship with another man. Father, on at least three
occasions, appeared at Mother’s residence unannounced to find Mother with this other
man. One such occasion led to a physical altercation between Father and the man in front
of two of the Children.

        The case proceeded to a hearing on December 18, 2018, on the issues of the
division of marital debt, spousal support, child support, and the setting of the residential
schedule. The case was heard over the course of several days over the next few months,
finally concluding on February 25, 2019. A number of witnesses testified concerning the
contentious relationship between the parties, each party’s fault in the demise of the
marriage, and each party’s inadequacies in raising the Children.

        Several witnesses also testified concerning each party’s propensity to drink
alcohol. Notably, Mother also admitted to drinking alcohol and taking six Xanax pills,
resulting in her hospitalization. She claimed rehabilitation and stated that she is receiving
counseling to manage her anxiety.

       Mother presented recordings of Father in which he berated her and referred to her
in a derogatory manner and another recording of him berating one of the Children for
burning oatmeal. Father, in turn, presented a video of Mother referring to the Children in
a derogatory manner.

       Relative to income and future earning potential, Mother, who was 45 years old at
the time of the hearing, has a Bachelor’s Degree and has earned a significant amount of
money in pharmaceutical sales throughout the marriage. She worked for one company
for approximately ten years, at one time earning in excess of $100,000 per year. Her
employment was terminated in October 2010. She decided to stay home to care for the
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youngest child, August, once he arrived. She returned to work in June 2012 with another
pharmaceutical sales company, earning from $60,000 to $80,000 per year. She switched
companies again in 2015, resulting in her receiving a base salary of $70,000, plus
bonuses, per year. Her employment was terminated in August 2016. Since that time, she
has been unable to maintain steady employment in her field and has become reliant upon
her mother and stepfather, who contribute approximately $2,500 per month.1 She now
works at a pet store, earning $11 per hour.

      Meanwhile, Father, who was 49 years old at the time of the hearing, has
maintained steady employment, earning in excess of $10,000 per month. He was tasked
with maintaining the parties’ monthly bills during the pendency of the hearing as spousal
support and has also paid for the Children’s activities and health insurance. He
maintained that Mother was voluntarily underemployed. Accordingly, he sought an
imputation of income commensurate with her work history.

        Relative to the residential schedule, Father requested the majority of co-parenting
time, leaving Mother with alternating weekends with the Children. Michael and Zachary
testified concerning their preference, both stating that they wished to spend the majority
of their time with their father and visit their mother on alternating weekends. They
described their father’s house as more “home-like” and claimed that he provided a better
environment for them and August.

       Following the hearing, the trial court found fault on both sides and declared the
parties divorced pursuant to Tennessee Code Annotated section 36-4-129(b).2 The court
then divided the marital debt and ordered Father to pay Mother’s portion of the marital
debt as a form of alimony in solido. The court denied all other forms of spousal support.
While acknowledging Michael and Zachary’s preference testimony, the court determined
that a residential schedule providing for a 50/50 split of co-parenting time was
appropriate to “maximize parenting time with both parents, encourage a continued
relationship with both parents, and keep the [C]hildren together as siblings.” The court
then calculated Father’s child support obligation using Mother’s claimed income of
$2,063 per month, thereby denying Father’s claim of voluntary underemployment and
ordering him to remit payment of $1,271 per month in child support. This appeal
followed.




1
  Mother claims, and her relatives confirmed, that she is expected to return their payments when
financially able.
2
    “The court may . . . declare the parties to be divorced, rather than awarding a divorce to either party.”
                                                      -3-
                                       II.    ISSUES

       We consolidate and restate the issues on appeal as follows:

       (A)    Whether the court erred in its setting of the residential schedule.

       (B)    Whether the court erred in its calculation of child support.

       (C)    Whether either party is entitled to attorney fees on appeal.


                            III.   STANDARD OF REVIEW

       This case was tried by the court without a jury. The review of the trial court’s
findings of fact is de novo with a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d
685, 692 (Tenn. 2013). Our review of a trial court’s conclusions of law is de novo upon
the record with no presumption of correctness. Tyron v. Saturn Corp., 254 S.W.3d 321,
327 (Tenn. 2008).

       Our Supreme Court has explained:

       Because decisions regarding parenting arrangements are factually driven
       and require careful consideration of numerous factors, trial judges, who
       have the opportunity to observe the witnesses and make credibility
       determinations, are better positioned to evaluate the facts than appellate
       judges. Thus, determining the details of parenting plans is peculiarly
       within the broad discretion of the trial judge. It is not the function of
       appellate courts to tweak a [residential parenting schedule] in the hopes of
       achieving a more reasonable result than the trial court. A trial court’s
       decision regarding the details of a residential parenting schedule should not
       be reversed absent an abuse of discretion.

Armbrister, 414 S.W.3d at 693 (internal citations and quotations omitted). Likewise, the
setting of child support is also a discretionary matter. State ex rel. Vaughn v. Kaatrude,
21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). The abuse of discretion standard “does not
permit an appellate court to substitute its judgment for that of the trial court, but ‘reflects
an awareness that the decision being reviewed involved a choice among several
acceptable alternatives.’” Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011)
(citations omitted).



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                                    IV.    ANALYSIS

                                             A.

       Pursuant to Tennessee Code Annotated section 36-6-404(a), any final decree in an
action for separate maintenance involving a minor child shall incorporate a permanent
parenting plan, defined in Tennessee Code Annotated section 36-6-402(3) as “a written
plan for the parenting and best interests of the child, including the allocation of parenting
responsibilities and the establishment of a residential schedule, as well as an award of
child support[.]” The trial court is charged with determining a residential schedule,
which defines one party as the primary residential parent and designates in which
parent’s home the child will reside on given days during the year. Tenn. Code Ann. § 36-
6-402(5). Additionally, Tennessee Code Annotated section 36-6-401(a) provides, in
pertinent part:

       The general assembly recognizes the fundamental importance of the parent-
       child relationship to the welfare of the child, and the relationship between
       the child and each parent should be fostered unless inconsistent with the
       child’s best interests. The best interests of the child are served by a
       parenting arrangement that best maintains a child’s emotional growth,
       health and stability, and physical care.

When developing a parenting plan, the court should consider the factors set forth in
Tennessee Code Annotated section 36-6-106(a). These factors are as follows:

       (1)    The strength, nature, and stability of the child’s relationship with
       each parent, including whether one (1) parent has performed the majority of
       parenting responsibilities relating to the daily needs of the child;

       (2)     Each parent’s [ ] past and potential for future performance of
       parenting responsibilities, including the willingness and ability of each of
       the parents [ ] to facilitate and encourage a close and continuing parent-
       child relationship between the child and both of the child’s parents,
       consistent with the best interest of the child. In determining the willingness
       of each of the parents [ ] to facilitate and encourage a close and continuing
       parent-child relationship between the child and both of the child’s parents,
       the court shall consider the likelihood of each parent [ ] to honor and
       facilitate court ordered parenting arrangements and rights, and the court
       shall further consider any history of either parent [ ] denying parenting time
       to either parent in violation of a court order;

       (3)   Refusal to attend a court ordered parent education seminar may be
       considered by the court as a lack of good faith effort in these proceedings;
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      (4)    The disposition of each parent to provide the child with food,
      clothing, medical care, education and other necessary care;

      (5)    The degree to which a parent has been the primary caregiver,
      defined as the parent who has taken the greater responsibility for
      performing parental responsibilities;

      (6)    The love, affection, and emotional ties existing between each parent
      and the child;

      (7)    The emotional needs and developmental level of the child;

      (8)     The moral, physical, mental and emotional fitness of each parent as
      it relates to their ability to parent the child[;]

      (9)     The child’s interaction and interrelationships with siblings, other
      relatives and step-relatives, and mentors, as well as the child’s involvement
      with the child’s physical surroundings, school, or other significant
      activities;

      (10) The importance of continuity in the child’s life and the length of
      time the child has lived in a stable, satisfactory environment;

      (11) Evidence of physical or emotional abuse to the child, to the other
      parent or to any other person. The court shall, where appropriate, refer any
      issues of abuse to juvenile court for further proceedings;

      (12) The character and behavior of any other person who resides in or
      frequents the home of a parent and such person’s interactions with the
      child;

      (13) The reasonable preference of the child if twelve (12) years of age or
      older[;]

      (14) Each parent’s employment schedule, and the court may make
      accommodations consistent with those schedules; and

      (15)   Any other factors deemed relevant by the court.

Tenn. Code Ann. § 36-6-106(a)(1)-(15). Although the court is obligated to consider the
applicable statutory factors, “the statute does not require a trial court, when issuing a
memorandum opinion or final judgment, to list every applicable factor along with its
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conclusion as to how that particular factor impacted the overall custody determination.”
Burnette v. Burnette, No. E2002-01614-COA-R3-CV, 2003 WL 21782290, at *6 (Tenn.
Ct. App. July 23, 2003).

       Despite Father’s claim to the contrary, the record reflects that the trial court
considered the relevant factors before crafting a residential schedule to accommodate the
unique circumstances of this case. While each parent exhibited concerning behavior and
would likely benefit from regular counseling, each parent enjoyed a loving relationship
with the Children. The parties also evidenced his or her capability of adequately caring
for them on a regular basis. We, like the trial court, acknowledge that the residential
schedule was not in keeping with the reasonable preference of the Children, namely
Michael and Zachary. However, to limit Mother’s parenting time in the manner
suggested by them and Father would not allow her the maximum participation possible in
the lives of the Children, all three of which will benefit from a relationship with their
mother. See Tenn. Code Ann. § 36-6-106(a) (“In taking into account the child’s best
interest, the court shall order a custody arrangement that permits both parents to enjoy the
maximum participation possible in the life of the child[.]”). With all of the above
considerations in mind, we conclude that the trial court did not abuse its discretion in
setting the residential schedule.


                                              B.

       Father first claims that the court erred in calculating Mother’s gross monthly
income and erroneously declined to issue a finding of voluntary underemployment and to
impute a reasonable income given her work history. “In making the court’s
determination concerning the amount of support of any minor child or children of the
parties, the court shall apply, as a rebuttable presumption, the child support guidelines”
that are promulgated by the Tennessee Department of Human Services Child Support
Service Division. Tenn. Code Ann. § 36-5-101(e)(1)(A).

      The Guidelines provide that a court may impute income “[i]f a parent has been
determined by a tribunal to be willfully and/or voluntarily underemployed or
unemployed.” Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2). The court found as
follows concerning Mother’s income and future earning potential:3

       [Mother is] capable of being a high wage earner. [She] was terminated
       from her job at Lodan Vision due to no fault of her own. The court finds
       that there was nothing that she did that was inappropriate, it was simply that

3
  The court provided this analysis in support of its decision to deny rehabilitative alimony but
then accepted Mother’s income information for child support purposes in deference to the
entirety of the evidence presented.
                                             -7-
      the position got eliminated. [Mother] has tried to get back into the
      pharmaceutical sales world without success at this point. She has tried to
      network and do other things to keep her employment up, but has not yet
      been successful in doing so at this point. She is ultimately working a
      position which is not financially rewarding, but the court is confident that
      she will be able to continue in her efforts to secure a better employment
      position than what she has now, if not surpassing the income she earned in
      the past. The court would consider this to be only a temporary hiccup in
      [Mother’s] employment and believes she will return to the relative earnings
      she has had in the past.

We agree with the court’s assessment and corresponding denial of Father’s claim of
voluntary underemployment. We, like the trial court, are confident that Mother will
return to the workforce in a position commensurate with her experience given the court’s
denial of any additional spousal support. Further, Father’s child support obligation will
decrease as each child attains the age of majority, leaving Mother unable to enjoy the
standard of living she was once accustomed to unless she obtains suitable employment.

       Father next claims that the court erroneously failed to count Mother’s receipt of
$2,500 per month from her mother and stepfather as gross income for child support
purposes. He believes the payments should be characterized as a gift. The Guidelines
define gross income as follows:

      [A]ll income from any source (before deductions for taxes and other
      deductions such as credits for other qualified children), whether earned or
      unearned, and includes but is not limited to, the following: . . . Gifts that
      consist of cash or other liquid instruments, or which can be converted to
      cash.

Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(1)(xviii). Mother testified, and her
relatives confirmed, that the support she received was not a gift and that the eventual
return of the amount provided was expected. With all of the above considerations in
mind, we affirm the court’s child support determination.


                                            C.

      Each party requests attorney fees on appeal. As we have stated:

      [I]t is in the sole discretion of this court whether to award [attorney] fees on
      appeal. As such, when this court considers whether to award [attorney] fees
      on appeal, we must be mindful of “the ability of the requesting party to pay
      the accrued fees, the requesting party’s success in the appeal, whether the
                                              -8-
      requesting party sought the appeal in good faith, and any other equitable
      factor that need be considered.”

Parris v. Parris, No. M2006-02068-COA-R3-CV, 2007 WL 2713723, at *13 (Tenn. Ct.
App. Sept. 18, 2007) (quoting Dulin v. Dulin, No. W2001-02969-COA-R3-CV, 2003 WL
22071454 (Tenn. Ct. App. Sept. 3, 2003)) (other internal citations omitted). Taking these
factors into account, we respectfully deny the competing requests for attorney fees on
appeal.


                                V.     CONCLUSION

      We affirm the judgment of the trial court. The case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Michael
Joseph Turk, Jr.


                                                _________________________________
                                                JOHN W. MCCLARTY, JUDGE




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