                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE



ROBERT PERRY SANDY                          )
                                                                  FILED
AUSBROOKS, JR.,                             )
                                            )                           May 21, 1999
       Petitioner/Counter-Respondent/       )    Williamson Chancery No. 20223
       Appellee,                            )                    Cecil Crowson, Jr.
v.                                          )                  Appellate Court Clerk
                                            )    Appeal No. 01A01-9803-CH-00114
BONITA LYN (AUSBROOKS)                      )
MOORE,                                      )
                                            )
       Respondent/Counter-Petitioner/       )
       Appellant.                           )



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


              THE HONORABLE HENRY DENMARK BELL, CHANCELLOR


For the Petitioner/Counter-Respondent/           For the Respondent/Counter-Petitioner/
Appellee:                                        Appellant:

Robert Perry Sandy Ausbrooks, Jr., Pro Se        Sidney S. F. Bennett
Baton Rouge, Louisiana                           Nashville, Tennessee




                                            AFFIRMED


                                            HOLLY KIRBY LILLARD, J.



CONCURS:

BEN H. CANTRELL, P.J., M.S.

WILLIAM BRYAN CAIN, J.
                                             OPINION

        This case involves a post-divorce proceeding to modify child support. The husband lost his

job and filed a petition to reduce child support. The trial court held the husband’s petition in

abeyance for a period of time and later reduced the husband’s child support obligation retroactive

to the filing of the petition. The wife appeals, arguing that the trial court improperly made a

retroactive modification of child support. We affirm.

       Respondent/Appellant Bonita Lyn Moore (“Wife”) and Petitioner/Appellee Robert Perry

Sandy Ausbrooks, Jr. (“Husband”) were divorced, and on March 30, 1994 Husband was ordered to

pay $1,600 per month child support for the parties’ three children. At that time, Husband was a

regional manager with Allstate Insurance Company (“Allstate”) and child support was based upon

his income of $6,600 per month. On March 20, 1996, Husband filed a petition to reduce his child

support obligation, based on the emancipation of one of the children and a decrease in his income.

       The parties dispute the facts regarding Husband’s decrease in income. At a hearing on June

18, 1996, Husband testified he was involuntarily laid off from his position at Allstate in July 1995,

and that he subsequently formed an independent insurance agency. Wife argued that Husband

voluntarily left his position with Allstate to form the independent agency. In an order entered on

August 23, 1996, the trial court found that the oldest child had reached the age of majority and set

child support at $1,481 per month for the parties’ two remaining minor children. The child support

award was based on Husband’s “prior ability to earn” $6,600 per month. In addition, the trial court

held that the issue of reducing child support based on a decrease in Husband’s income was “reserved

as [it is] considered premature.” The trial court noted that “[t]hese items may be addressed in the

future by the filing of an amended and supplemental petition, which would relate back to the original

petition for possible retroactive application.” The trial court declined to award Wife attorney’s fees.

       On November 25, 1997, Husband filed an amended and supplemental petition to modify

child support, alleging a decrease in monthly income greater than fifteen percent. At a hearing on

January 14, 1998, Husband again testified that he was involuntarily laid off from his position at

Allstate. The record reflects that he received severance benefits from Allstate of $5,794.47 per

month until March 1996. The record also indicates that in September 1995, Husband started an

independent insurance agency and represented American National Insurance Company (“American

National”) as an independent agent. Beginning in October 1995, Husband received a monthly

advance on commissions of $2,765 from American National; this continued for four months. For
the next two months, Husband received $2,262 per month from American National as a draw against

commissions. Subsequently, in March 1996, American National suspended Husband’s advances

against his commissions. During the period of time in which Husband was receiving from American

National advances against commissions, his earned commissions were not sufficient to cover the

advances. Consequently, by March 1996, Husband owed American National $13,152.74. At the

November hearing, Wife again contended that Husband voluntarily left his position at Allstate and

submitted into evidence Husband’s contract with American National, dated June 15, 1995. Husband

testified that he interviewed with American National in May or June 1995, but did not sign the

contract at that time. He testified that he did not put the June 15 date on the contract. At the end of

July 1995, he received verbal notice that Allstate would eliminate his job position as part of its

reduction in force.

       In an order entered February 12, 1998, the trial court held that Father “through no fault of

his own” lost his employment in July 1995. In addition, the trial court found, in part:

       [T]hat for the period of time from March 20, 1996, through January, 1998, Father had
       suffered a significant variance in his income sufficient to warrant a reduction in his
       child support to $823.00 per month based upon his average earnings of $3,418.00 per
       month. Accordingly, from the period of March, 1996, through January, 1998,
       Father’s child support shall be retroactively reduced from $1,481.00 per month to
       $823.00 per month. Said retroactive reduction results in a $658.00 per month credit
       to Father for 22 months which totals $14,476.00. Father shall receive said credit in
       the form of a reduction in his current child support in the amount of $658.00 per
       month for the next 22 months.

From this decision, Wife now appeals.

       On appeal, Wife argues that Husband voluntarily left Allstate, resulting in underemployment

in contravention of the child support guidelines. Wife contends that the trial court erred in

continuing Husband’s original petition to reduce child support, erroneously allowed Husband to file

a supplemental petition, and improperly ordered a retroactive reduction in child support. Wife also

argues that the trial court erred in declining to grant her request for attorney’s fees incurred as a

result of the petitions and hearings. In addition, Wife seeks attorney’s fees for this appeal.

       Our review is de novo upon the record of the trial court, accompanied by a presumption of

correctness of the findings of fact unless the preponderance of the evidence is otherwise. See Tenn.

R. Civ. P. 13(d). Questions of law are reviewed de novo with no presumption of correctness. See

Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).




                                                  2
        Wife argues first that the evidence preponderates against the trial court’s finding that

Husband lost his job with Allstate “through no fault of his own.” She maintains that Husband quit

his job at Allstate in order to start his own independent insurance agency. In support of her

contention, Wife relies on Husband’s contract with American National, dated June 15, 1995, over

a month before Husband was informed by Allstate that he would be laid off. Husband testified that

he interviewed with American National in May or June but that he did not sign the contract at that

time. Husband testified that he did not date the contract. He noted that the contract with American

National was not effective until September 1, 1995, and that he was not notified of his termination

by Allstate until the end of July 1995. In addition, it is undisputed that Husband received a

severance package from Allstate. We recognize “the well-established principle that the trial court

is in the best position to assess the credibility of the witnesses; accordingly, such determinations are

entitled to great weight on appeal.” Quarles v. Shoemaker, 978 S.W.2d 551, 553 (Tenn. App. 1998)

(citing Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. App. 1995); Bowman v. Bowman,

836 S.W.2d 563, 566 (Tenn. App. 1991)). Viewing the record as a whole, the evidence does not

preponderate against the trial court’s finding that Husband lost his job through no fault of his own.

The evidence supports the trial court’s conclusion that Husband’s job change created a significant

variance in his income and warranted a modification in child support.

        Wife also argues that the trial court erred in holding open Husband’s first petition to modify

child support, and, after a second petition was filed, reducing Husband’s child support obligation

retroactive to the date of the filing of the first petition. Wife maintains that retroactive modification

of child support is prohibited, citing Rutledge v. Barrett, 802 S.W.2d 604 (Tenn. 1991).

        In Rutledge, the Court observed that “[r]etroactive modifications are plainly unauthorized;

prospective modifications can be made, but only after notice as provided in [Tennessee Code

Annotated 36-5-101] subsection (a)(5). Hence, the trial court in this case could not reduce amounts

that accrued prior to the filing of the father's 1988 cross-petition . . . .” Id. at 606 (emphasis added);

see also Pera v. Peterson, No. 72, 1990 WL 200582, at *2 (Tenn. App. Dec. 14, 1990); State v.

Morris, 1990 WL 2867 (Tenn. App. Jan. 19, 1990) (citing 87-162 Tenn. Op. Atty. Gen. 3823

(1987)). Tennessee Code Annotated § 36-5-101(a)(5) states in pertinent part:

        Any judgment for child support shall be a judgment entitled to be enforced as any
        other judgment of a court of this state . . . . Such judgment shall not be subject to



                                                    3
        modification as to any time period or any amounts due prior to the date that an action
        for modification is filed . . . .

Tenn. Code Ann. § 36-5-101(a)(5) (Supp. 1998) (emphasis added). Thus, under the statute, a

modification of child support is prohibited if it pertains to a time period prior to the filing of the

petition to modify.

        In this case, Husband’s first petition to modify was filed on March 20, 1996. The trial court’s

August 23, 1996 order on the first petition left open the issue of modification of child support

because the trial court found that the issue was “premature.” The trial court’s action in holding open

this issue was sua sponte. It should be noted that the record does not indicate that Husband filed a

“prophylactic” petition to modify, that is, a petition filed as a precautionary measure, with the intent

that the trial court hear the petition only if and when Husband’s income decreased substantially. In

March 1996, when the first petition was filed, Husband’s severance pay from Allstate and the

advancements from American National were scheduled to terminate. Husband owed American

National over $13,000 for advances paid in excess of earned commissions. Husband’s attorney did

not ask the trial court to hold open the issue of modification of child support; the record indicates

that both parties expected the issue to be determined at that time. However, at that time, the trial

court found that it was unable to determine Husband’s future income. Under these circumstances,

the trial court’s action in holding open Husband’s petition to modify child support and later ordering

a modification retroactive to the filing of the first petition, while not customary, did not amount to

a retroactive modification prohibited by Tennessee Code Annotated § 36-5-101. The decision of the

trial court is affirmed.

        Wife also appeals the trial court’s denial of her request for attorney’s fees for the trial. After

review of the record, we find that the trial court did not abuse its discretion in declining to award

Wife attorney’s fees. See Threadgill v. Threadgill, 740 S.W.2d 419, 426 (Tenn. App. 1987); Wright

v. Wright, No. 01A01-9001-CV-00019, 1990 WL 84032, at *5 (Tenn. App. 1990). In addition,

pursuant to Tennessee Code Annotated § 36-5-103(c), Wife’s request for attorney’s fees for this

appeal is denied.

        The decision of the trial court is affirmed. Costs are assessed against the Appellant, for

which execution may issue if necessary.




                                                    4
                              HOLLY KIRBY LILLARD, J.


CONCUR:




BEN H. CANTRELL, P.J., M.S.




WILLIAM BRYAN CAIN, J.




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