                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 October 4, 2010 Session

         JENNIFER (PITTS) BRADFORD, v. DAVID WILSON PITTS

              Appeal from the Chancery Court for Cumberland County
                No. 8973-8-03   Hon. Ronald Thurman, Chancellor


            No. E2009-02206-COA-R3-CV - FILED NOVEMBER 5, 2010




The father was paying child support, became disabled and filed a Petition to suspend child
support payments until his disability insurance began paying. By the time of the hearing on
his Petition, his disability insurance began paying a monthly amount. The Trial Judge
ultimately refused to lower the child support payments, finding that the father established no
variance between his income before and after his disability. The father tendered his income
tax return for the year when the child support obligation was set, but the Trial Court refused
to consider this evidence. On appeal, we vacate and remand.


  Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Vacated
                                 and Remanded.


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and D. M ICHAEL S WINEY, J., joined.


Eric J. Morrison and Douglas L. Rose, Knoxville, Tennessee, for the appellant, David Wilson
Pitts.

Connie Reguli, Brentwood, Tennessee, for the appellee, Jennifer (Pitts) Bradford.


                                          OPINION


       In this post-divorce action involving plaintiff, Jennifer Pitts Bradford ( “mother”), and
defendant, David Wilson Pitts, (“father”), the record reveals that the parties engaged a
mediator to facilitate the settlement of their divorce action. The Final Decree in the divorce
incorporated their Marital Dissolution Agreement and PPP. The divorce Decree was
finalized in August of 2004, and provides that the parties have four minor children and the
mother was given primary custody, with the father having alternate weekend visitation. The
father was ordered to pay support of $4,600.00 per month in accordance with the child
support guidelines.

       In August of 2007, the father filed a Petition to Suspend or Terminate Child Support,
and gave as the reason that he had a medical condition that had affected his ability to
continue his work as a physician, and that he needed to have his child support payments
terminated until he could return to work or until he could collect from his disability insurance
policy. In response, the mother demanded strict proof of these allegations.

       In response to a Request for Production of Documents, the father filed his 2004
income tax return showing that he earned a gross income of $226,247.00 in his medical
practice for that year.

       At a hearing on the issues, the Trial Court found the father was totally disabled, and
received $9,876.00 per month from his disability insurance policy. The Court found that the
wife earned $14,000.00 per year or $1,167.00 per month. The Court ordered the father’s
child support stayed from the time of the filing of his Petition to December 2007, during
which time he had no income. The Court held that, beginning in December 2007, the father’s
child support obligation should be modified downward to $1,596.00 based on his disability
income of $9,876.00, which started in December 2007, based on the income shares
worksheet.

        The mother, acting pro se, filed a Motion to Alter or Amend and for Costs, seeking
arrearages, fees, etc. The Court entered another Order, stating that a hearing would be held
on the mother’s Motion. The mother then filed a Supplement to her Motion, asserting that
the Court could not modify child support when the father had not asked for a modification
in his Petition, and that the father had not shown a significant variance in his income. She
stated that the $4,600.00 child support amount was based on the father earning a net income
of $10,000.00, based on the flat percentage of 46% for four children, which was the guideline
amount of support at that time, and that this did not demonstrate the requisite 15% variance
in support modification.

       At the later hearing, the Court entered an Order, and held that it could modify the
father’s child support because the Court’s equitable powers allowed it to award a less drastic
remedy, i.e. modification rather than termination of the support. The Court held that the

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father’s 2004 tax return was entered as evidence at the August 2009 hearing, and the Court
found that at the time of the parties’ divorce, father was earning more than $10,000.00 per
month in net income. The Court found that there was nothing in the record, however, to
show how the parties arrived at the $4,600.00 in child support or what they agreed to, and
that it would appear that the $4,600.00 number was based on father earning a net income of
$10,000.00 per month. The Court recognized that, at the time, $10,000.00 per month in net
income was the “end” of the child support guideline amount, but that it could not “look
behind” the 2004 decree to find anything other than the father’s net income being
$10,000.00. The Court stated that if it could “look behind” the 2004 decree, it would find
a significant variance, but could not do so, and found that there was not the requisite 15%
variance to support a modification between $10,000.00 and $9,876.00. The Court then
reinstated father’s child support to the original amount of $4,600.00 per month. The father
has appealed and these issues are raised.

       1.     Whether the Trial Court erred in failing to consider the father’s actual income
              as evidenced by his tax return?

       2.     Whether the Trial Court erred in finding that father had an income of
              $10,000.00 per month in 2004 based solely on the parties’ mediated agreement
              which provided that he would pay $4,600.00 per month in child support?

       3.     Whether the Trial Court failed to consider the father’s period of unemployment
              from August 2007 to December 2007 as a significant variance in his income
              under the guidelines?

       4.     Does the lack of a statement of evidence from the October 27, 2008 hearing
              limit this Court’s ability to amend the findings of fact in that order?

       5.     Could the Trial Court modify the father’s child support when his Petition
              prayed for suspension or termination?

       6.     Should the mother be awarded her attorney’s fees?

        The Trial Court found that, based on the flat percentage guidelines which were in
effect at the time of the parties’ divorce, the father’s child support obligation of $4,600.00
per month was based on the father having a net income of $10,000.00, and held it could not
“look behind” the record in the original divorce case. The father insists that this was error,
and that the Court should have considered the tax returns as the best evidence of the father’s
income at the time.



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        At the time of the parties’ divorce, the guidelines provided that “[i]f the net income
of the obligor . . . exceeds Ten Thousand Dollars ($10,000.00) per month, then the custodial
parent must prove by a preponderance of the evidence that child support in excess of the
amount, [calculated by multiplying the appropriate percentage . . . by a net income of ten
thousand dollars ($10,000.00) per month], is reasonably necessary to provide for the needs
of the minor child or children for whom support is being determined in the case specifically
under consideration.” Tenn. Comp. R. & Reg. 1240-2-4-.04(3)(c) (Dec. 2003). Accordingly,
the amount of child support agreed upon at the time of the divorce did not establish that the
father’s net income was no more than $10,000.00 per month. Since the record does not
establish his actual net income at the time of the divorce, the only way to determine what the
father’s net income was, would be to admit evidence on his actual income at the time of the
divorce.

       We were confronted with a similar dilemma in Hill v. Hill, 2007 WL 4404097 (Tenn.
Ct. App. Dec. 17, 2007), wherein the parties were divorced in 2004 and agreed that the father
would pay a certain amount of child support in accordance with the guidelines that were in
effect at that time. The father later petitioned for a modification (after the income shares
formula took effect), and had to thus show a significant variance of 15% in his income. Id.
The Trial Court record did not, however, state what the father’s income was at the time of
the divorce nor show how the child support amount was calculated. At the hearing on the
father’s petition, he submitted his tax returns, which the Trial Court considered to determine
his income level at the time of the divorce vis a vis at the time of the hearing. Id. The Trial
Court found there was not the requisite variance between his income at the time of the
divorce and at the time he sought modification, and denied his petition. Id.

       The father appealed, arguing that the Trial Court should not have used his tax returns
as proof of his income at the time of the divorce, but rather should have used the child
support amount set in the PPP and applied the flat percentage in the guidelines to extrapolate
the amount of his net income. Id. This Court disagreed, however, finding the father’s tax
returns were the best evidence of his income for the applicable time period. Id.

        Here, the father’s tax returns is the best evidence of the father's actual income at the
time of the parties’ divorce. While it is true that the calculation required in Hill would have
been much more involved, this does not change the fact that we have recognized that the
obligor’s tax returns are the best evidence of his earnings at the relevant time period, and that
it is proper to look at the returns to determine the obligor’s actual income. The Trial Court
erred in failing to consider this evidence.

      Accordingly, we vacate the Trial Court's Judgment and remand for a hearing to
determine the father's actual income at the time of the divorce in 2004 and determine whether

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there is a necessary variance in the father's income to modify the child support obligation.

       The mother argues that the lack of a Statement of Evidence from the October 2008
hearing limits this Court’s ability to amend the findings made in that Order. What is under
consideration, however, is the Trial Court’s decision to reinstate the father’s monthly child
support obligation of $4,600.00, which was made in its Order of September 25, 2009, and
timely appealed. This issue is moot.

       The mother also argues that the Trial Court had no authority to modify the father’s
child support obligation since his petition merely asked for child support to be suspended or
terminated. The Court held, however, that it could modify the father’s support obligation
based on its equitable powers to award a less drastic remedy than that which was sought, i.e.
termination. We have previously recognized that trial courts have the ability to treat any
pleading according to the type of relief sought, regardless of its title. Estate of Doyle v. Hunt,
60 S.W.3d 838 (Tenn. Ct. App. 2001). The father sought relief from his child support
obligation based on his diminished income in his petition, without regard to its title. The
mother's reliance on Everett v. Morgan, 2009 WL 113262 (Tenn. Ct. App. Jan. 16, 2009),
is misplaced, since the court in Everett sua sponte modified the father’s child support amount
at a hearing regarding the amount of arrearage he owed, when no modification had been
sought. In this case, the father sought to suspend or terminate his child support, arguing that
his income had reduced significantly, and thus a modification was obviously a contemplated
and less drastic remedy. This issue is also without merit.

       Finally, the mother argues that she should be awarded her attorney’s fees in this child
support matter. No basis for such an award has been shown, and this issue is also without
merit.

       The Judgment of the Trial Court is vacated and the cause remanded, with the cost of
the appeal assessed one-half to David Wilson Pitts and one-half to Jennifer (Pitts) Bradford.




                                                     _________________________________
                                                     HERSCHEL PICKENS FRANKS, P.J.




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