                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                             February 15, 2011 Session

IN RE: JAIDEN C.W. And CAIDEN J.W., Children Under the Age of 18
                    years (d.o.b. 7/27/2006)

                  Direct Appeal from the Juvenile Court for Coffee County
                         No. 07J-1623     Timothy R. Brock, Judge


                       No. M2010-01105-COA-R3-JV - Filed June 7, 2011


This is a child support case. The juvenile court found, inter alia, the father owed a child
support arrearage of $21,356.63. We affirm in part, vacate in part, and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
                      part, Vacated in part and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Michelle M. Benjamin, Winchester, Tennessee, for the appellant.

Eric J. Burch, Manchester, Tennessee, for the appellee.

                                   MEMORANDUM OPINION 1

       The plaintiff/appellant, Greg Warren (“Father”), and the defendant/appellee, Jessica
Jones (“Mother”), are the unmarried parents of two minor children.2 The couple dated for

       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
       2
           A June 4, 2009 order named Greg Warren the legal father of the two minor children; however, the
                                                                                             (continued...)
two months in the summer of 2005 and later renewed their relationship after Mother notified
Father she was pregnant. Mother and Father began living together in late 2005 or early 2006,
alternating between their parents’ residences. Mother gave birth to the children in July 2006,
and the parties continued their relationship through October 2007. During this period, Father
provided Mother $400 monthly to cover expenses when he traveled for work. In late October
2007, however, the relationship ended and Mother demanded money to support the children.

       In November 2007, Father petitioned to legitimate the minor children and for
designation as primary residential parent.3 Mother counter-petitioned for child support.
After a lengthy series of hearings, the juvenile court entered an amended final judgment
adjudicating the competing petitions. The court found the parties primarily resided together
from the children’s births until February 1, 2007, and the parties equally supported the
children from February 1, 2007, until October 1, 2007. The court thus concluded no child
support was due prior to October 1, 2007. Father did, however, owe a child support
arrearage of $21,356.63 for the period beginning October 1, 2007, and ending September 28,
2009. The juvenile court in its amended final order entered a judgment in favor of Mother
for $21,356.63, calculated Father’s prospective child support obligation, addressed other
disputed matters not relevant to this appeal, and declined to award attorney’s fees to either
party. Father timely appealed.

       The parties collectively present the following issues, as we perceive them, for
appellate review:

        (1)      whether the evidence preponderates against the juvenile court’s factual
                 finding that Father owed retroactive child support beginning October
                 1, 2007;

        (2)      whether Mother has demonstrated the juvenile court incorrectly
                 imputed income to her at $29,300 per year until August 2008;


        2
          (...continued)
juvenile court subsequently granted a motion for new trial vacating that order. At the resulting trial, the
parties agreed Greg Warren was the legal father of the children at issue, and the juvenile court stated its
intent specifically to include this finding in the resulting order. The judgment appealed from nonetheless does
not expressly find Greg Warren is the legal father of the children, although it does hold the children are “the
parties’ minor children.” We conclude this finding, as well as the adjudication of Father’s support and
parenting obligations, resolves the parentage issue for final judgment purposes. We note, however, the
judgment does not comply with the express mandate of Tennessee Code Annotated section 36-2-311(a).
        3
        We note the Tennessee Rules of Civil Procedure govern paternity and child custody proceedings.
Tenn. R. Juv. P. 1(b).

                                                     -2-
       (3)    whether the juvenile court correctly calculated Father’s child support
              arrearage from August 22, 2008, to September 28, 2009, based upon an
              annual income of $107,000;

       (4)    whether the juvenile court abused its discretion when it required the
              parties to pay their own attorney’s fees; and

       (5)    whether Mother is entitled to an award of attorney’s fees on appeal.

Although the parties’ briefs touch upon additional perceived errors in the juvenile court’s
decision, we limit our review to the issues presented.

       This Court in Richardson v. Spanos, 189 S.W.3d 720 (Tenn. Ct. App. 2005), set forth
the standard of review governing child support cases thus:

               Prior to the adoption of the Child Support Guidelines, trial courts had
       wide discretion in matters relating to child custody and support. Their
       discretion was guided only by broad equitable principles and rules which took
       into consideration the condition and means of each parent. However, the
       adoption of the Child Support Guidelines has limited the courts’ discretion
       substantially, and decisions regarding child support must be made within the
       strictures of the Child Support Guidelines.

              Under current law, the amount of support derived from a proper
       application of the formula in the Child Support Guidelines becomes the
       presumptive amount of child support owed. This amount of support is
       rebuttable. Accordingly, trial courts may, in their discretion, deviate from the
       amount of support required by the Child Support Guidelines, but when they do,
       they must make specific written findings regarding how the application of the
       Child Support Guidelines would be unjust or inappropriate in the case.

              Because child support decisions retain an element of discretion, we
       review them using the deferential “abuse of discretion” standard. This
       standard is a review-constraining standard of review that calls for less intense
       appellate review and, therefore, less likelihood that the trial court’s decision
       will be reversed. Appellate courts do not have the latitude to substitute their
       discretion for that of the trial court. Thus, a trial court’s discretionary decision
       will be upheld as long as it is not clearly unreasonable, and reasonable minds
       can disagree about its correctness. Discretionary decisions must, however,
       take the applicable law and the relevant facts into account. Accordingly, a trial

                                               -3-
        court will be found to have “abused its discretion” when it applies an incorrect
        legal standard, reaches a decision that is illogical, bases its decision on a
        clearly erroneous assessment of the evidence, or employs reasoning that causes
        an injustice to the complaining party.

Spanos, 189 S.W.3d at 725 (internal citations omitted). “When called upon to review a lower
court’s discretionary decision, the reviewing court should review the underlying factual
findings using the preponderance of the evidence standard contained in Tenn. R. App. P.
13(d) and should review the lower court’s legal determinations de novo without any
presumption of correctness.” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 525 (Tenn. 2010)
(citing Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn. Ct. App. 2004); Boyd v.
Comdata Network, Inc., 88 S.W.3d 203, 212 (Tenn. Ct. App. 2002)).

       Our review of the issues presented in this case requires consideration of several
distinct time periods which the juvenile court addressed in its decision. These time periods
include: (1) the period from the children’s birth until February 1, 2007, (2) the period from
February 1, 2007, until October 1, 2007, (3) the period from October 1, 2007, until August
22, 2008, (4) the period from August 22, 2008, until September 28, 2009, (5) the period from
September 28, 2009, until December 17, 2009, and (6) the period beginning December 18,
2009, and continuing forward.4 The parties dispute whether the juvenile court erred in
calculating the child support obligation due during several of these periods, and Mother
submits she is entitled to an award of attorney’s fees. We will address the relevant issues in
turn.

       The first issue before this Court is whether the juvenile court erred when it set October
1, 2007, as the date on which Father’s child support arrearage started to accrue. Father
submits the arrearage should have accrued beginning November 1, 2007, contending the
court erred as a factual matter when it determined he ceased providing equal support for the
children on October 1. Mother argues, on the other hand, Father ceased providing equal
support for the children on February 1, 2007, the date on which the parties stopped living
together. Both parties’ arguments must fail, however, because the evidence does not
preponderate against the court’s finding that the parties ceased providing equal support for
the children on October 1.5




        4
         Neither party challenges the award of support from September 28, 2009, until December 17, 2009,
or the award of support beginning December 18, 2009.
        5
         Neither party challenges the juvenile court’s conclusion that Father did not owe retroactive child
support for the period in which the parties equally supported the children.

                                                   -4-
       In support of his argument, Father points to trial testimony establishing the parties’
relationship continued through the middle or end of October. Father’s contention that the
relationship continued through the end of October is further evidenced by a Termination of
Domestic Partnership form that he filed for insurance purposes stating the relationship ended
on October 25, 2007.6 This evidence, however, does not necessarily establish that Father
continued to provide equal support for the children through the end of October 2007, and
Mother testified that Father was not seeing the children very often from October 2007 to
August 2008. The evidence therefore does not preponderate against the juvenile court’s
conclusion that Father ceased providing equal support for the children on October 1, 2007.

        Mother, on the other hand, argues the juvenile court erred when it concluded the
parties provided equal support for the children from February 1, 2007, to October 1, 2007,
because Father often traveled for work during this period and she resided with her parents.
Ignoring Mother’s failure to cite to the record in support of her argument, she has not
demonstrated the evidence preponderates against the juvenile court’s factual determination.
As Mother acknowledges in her brief, Father visited with Mother and the children five to ten
hours a day when he returned from work, provided Mother with $400 per month to help
support the children in his absence, and purchased a number of items for the children.
Additionally, Father testified he saw the children every day of the week when he was not
working and the parties were splitting time between their parents’ homes during this period.
On the limited record before us, the juvenile court’s factual finding that the parties provided
equal support for the children from February 1, 2007, until October 1, 2007, must stand.

         The next issue before this Court concerns whether the juvenile court correctly imputed
income to Mother in the amount of $29,300 when determining the child support due from
October 1, 2007, to August 22, 2008. Mother submits the juvenile court gave no reasoning
for its imputation but nevertheless argues the court erroneously failed to recognize Mother’s
role as a stay-at-home parent when it concluded she was willfully underemployed. Courts
employ the $29,300 figure, however, to impute income to a parent who fails to provide
reliable evidence of income or income potential, not to provide an upward deviation in
income for a willfully underemployed parent. See Tenn. Comp. R. & Regs. Rule 1240-2-4-
.04(3)(a)(2)(iv) (2008); see also Miller v. Welch, --- S.W.3d ----, No.
E2009–01942–COA–R3–CV, 2010 WL 3984734, at *5 (Tenn. Ct. App. Oct. 12, 2010),
perm. app. denied (Tenn. Mar. 9, 2011). Because Mother does not argue she otherwise
provided reliable evidence of her income or income potential from October 1, 2007, to
August 22, 2008, we decline to overturn the juvenile court’s imputation of income for this
period.


       6
        Father alone completed and signed the Termination of Domestic Partnership form establishing
October 25 as the end of the parties’ relationship.

                                                -5-
        The third issue before this Court is whether the juvenile court correctly determined
Father’s child support obligation from August 22, 2008, to September 28, 2009, using an
income of $107,000. The juvenile court entered an order of temporary child support on
August 18, 2008, setting Father’s child support obligation at $329.56 per week based on a
monthly gross income of $8,917.00.7 The order, effective August 22, 2008, specifically
reserved all remaining issues regarding child support arrearages for trial and did not resolve
the outstanding issue of paternity. The order therefore was not a final judgment. At the final
trial in the matter, the juvenile court nevertheless relied exclusively on the August 18
order—despite the presentation of evidence showing Father ceased making $107,000 in
November 2008—to determine Father owed a child support arrearage of $8,082.12 for the
period of August 22, 2008, to September 28, 2009.

        Father contends the juvenile court’s calculation of his child support arrearage for this
period “causes an injustice.” Father explains the unrefuted testimony at trial established he
lost his job in the first week of November 2008 and, despite his best efforts, did not rejoin
the workforce until July 5, 2009, when he obtained a full-time job earning $900 per week.8
Father concludes the court should have determined any child support arrearage based on his
actual income for the period in question. Mother disagrees, contending Tennessee Code
Annotated section 36-5-101(f)(1) prohibits modification of a child support order for any
period prior to the filing of a petition for modification.9 Because Father did not petition or


        7
          The parties suggest the August 18 order was an “agreed order.” The order, however, states the
juvenile court based its findings on “the pleadings before the Court and arguments of counsel.” Additionally,
the parties did not “affirmatively acknowledge that no action by the parties shall be effective to reduce child
support after the due date of each payment, and that they understand that court approval must be obtained
before child support may be reduced, unless such payments are automatically reduced or terminated under
the terms of the agreement.” Tenn. Code Ann. § 36-5-101(j) (2010). We will therefore treat the order as an
award of temporary child support. See Tenn. Code Ann. § 36-2-310 (2010) (“The court shall, upon motion
of the party, enter a temporary order of child support pending the final determination of paternity upon a
showing of clear and convincing evidence of parentage on the basis of genetic tests.”).
        8
            Father concedes in his brief that he received unemployment compensation during this period.
        9
            Tennessee Code Annotated section 36-5-101(f)(1) provides:

        Any order for child support shall be a judgment entitled to be enforced as any other
        judgment of a court of this state, and shall be entitled to full faith and credit in this state and
        in any other state. Such judgment shall not be subject to modification as to any time period
        or any amounts due prior to the date that an action for modification is filed and notice of the
        action has been mailed to the last known address of the opposing parties. If the full amount
        of child support is not paid by the date when the ordered support is due, the unpaid amount
        is in arrears, shall become a judgment for the unpaid amounts, and shall accrue interest from
                                                                                                      (continued...)

                                                       -6-
move to modify the August 18 order at any point throughout these proceedings, Mother
contends the temporary order controls.10

        We conclude the juvenile court should have determined Father’s child support
obligation for the period in question based on his actual income.11 In this case, Father was
unemployed for a significant period of time pending the first trial. This undisputed fact
appears to have been disregarded by the juvenile court. Because the “fairness of a child
support award depends on an accurate determination of both parents’ gross income or ability
to support,” Massey v. Casals, 315 S.W.3d 788, 795 (Tenn. Ct. App. 2009), we conclude the
juvenile court should have accounted for this period of unemployment when calculating
Father’s child support arrearage. The existence of a temporary order setting child support
pending trial does not bar reexamination and retroactive modification of the award at trial;
rather, a temporary order of child support is an interlocutory order subject to retroactive
modification.12 See State ex rel. Jackson v. Jackson, No. M2006-00598-COA-R3-CV, 2008
WL 820495, at *4–5 (Tenn. Ct. App. Mar. 26, 2008), perm. app. denied (Tenn. Aug. 25,


        9
         (...continued)
        the date of the arrearage, at the rate of twelve percent (12%) per year. All interest that
        accumulates on arrearages shall be considered child support. Computation of interest shall
        not be the responsibility of the clerk.

Tenn. Code Ann. § 36-5-101(f)(1) (2010).
        10
         We note Father did move to alter or amend purported final orders that relied to varying degrees on
the August 18 order.
        11
          Neither party addresses whether the final trial in this matter was a “hearing on retroactive support.”
Tenn. Comp. R. & Regs. Rule 1240-2-4-.06(3). Additionally, neither party addresses whether the juvenile
court should have used Father’s actual income during the period in question for purposes of determining his
“average monthly income” pursuant to Tenn. Comp. R. & Regs. Rule 1240-2-4-.06(3)(a) (2008) instead of,
as Father submits here, for determining a revised amount owed under the retroactively modifiable temporary
order. Indeed, there are several potential issues the parties do not address, which we decline to consider sua
sponte. We have instead attempted to resolve this matter on the limited arguments before us.
        12
           This Court’s opinion in State ex rel. Jackson v. Jackson, No. M2006-00598-COA-R3-CV, 2008
WL 820495, at *4–5 (Tenn. Ct. App. Mar. 26, 2008), perm. app. den. (Tenn. Aug. 25, 2008), although arising
in the context of a divorce, impliedly concludes that a temporary or pendente lite order for child support does
not fall within Tennessee Code Annotated section 36-5-101(f)(1)’s provision regarding “[a]ny order for child
support.” This Court reasoned in Jackson that Rule 54.02 of the Tennessee Rules of Civil Procedure permits
revision of an interlocutory order at any time prior to the entry of a final judgment. Jackson, 2008 WL
820495, at *4. Because the pendente lite order on child support in that case did not resolve all the claims,
rights, and liabilities of the parties, it was a modifiable interlocutory order. Id. at *5. The temporary order
of child support in this case, despite arising in a different factual setting, is equally interlocutory and
therefore subject to retroactive modification.

                                                      -7-
2008) (holding a pendente lite child support order in a divorce case was a retroactively
modifiable interlocutory order); see also Melvin v. Johnson-Melvin, No.
M2004-02106-COA-R3-CV, 2006 WL 1132042, at *8 (Tenn. Ct. App. Apr. 27, 2006), perm.
app. denied (Tenn. Oct. 16, 2006) (citations omitted). If the evidence at trial demonstrates
developments subsequent to the entry of the temporary order undermine its calculation, the
court should modify the award to reflect the parties’ actual circumstances. We must
conclude the juvenile court erred in calculating Father’s child support arrearage from August
22, 2008, to September 28, 2009, without taking into account the approximately nine-month
period of time in which he was unemployed. We accordingly vacate the juvenile court’s
award on this single issue and remand for further consideration.

        The next issue before this Court is whether the juvenile court abused its discretion
when it declined to award attorney’s fees to Mother. Mother cites Tennessee Code
Annotated section 36-2-311(a)(14) in support of her argument that an award of attorney’s
fees was appropriate. Tennessee Code Annotated section 36-2-311(a)(14) provides that an
order establishing parentage shall include a “[d]etermination of the liability for counsel fees
to either or both parties after consideration of all relevant factors.” Tenn. Code Ann. § 36-2-
311(a)(14). Mother, however, has not demonstrated in the limited argument before this
Court that the juvenile court abused its discretion. See Spanos, 189 S.W.3d at 729
(recognizing that appellate courts review an award of attorney’s fees for an abuse of
discretion). Her argument on this issue, which does not contain citations to the record,
primarily points to an asserted disparity between the parties’ incomes and the undue delay
allegedly caused by Father as supporting an award of attorney’s fees.13 Income disparity,


        13
             Rule 27 of the Tennessee Rules of Appellate Procedure requires the brief of an appellant to contain:

               (6) A statement of facts, setting forth the facts relevant to the issues presented for
        review with appropriate references to the record;

                   (7) An argument, which may be preceded by a summary of argument, setting forth:
                              (A) the contentions of the appellant with respect to the issues
                   presented, and the reasons therefor, including the reasons why the
                   contentions require appellate relief, with citations to the authorities and
                   appropriate references to the record (which may be quoted verbatim) relied
                   on . . . .

Tenn. R. App. P. 27(a)(6), (7). The appellee’s brief may exclude a statement of the facts in certain instances.
Tenn. R. App. P. 27(b). The appellee may not, however, forego citations to the record as required in
subsection 7(A) of Rule 27. Tenn. R. App. P. 27(b). The appellant’s brief, in addition to its substantive
flaws, does not adequately cite to the record in the argument section. And the appellee’s brief, which does
not contain a single citation to the record throughout the entire argument section, comes dangerously close
                                                                                                 (continued...)

                                                        -8-
however, is not the only factor a court may consider when allocating attorney’s fees, see
Kurts v. Parrish, No. W2004-00021-COA-R3-CV, 2004 WL 2609195, at *7 (Tenn. Ct. App.
Nov. 17, 2004), and our review of the record suggests each party may have contributed to the
unusual length and high costs of these proceedings. Because Mother does not cite any
factual basis upon which this Court can find an abuse of discretion, we affirm the lower
court’s decision. We likewise decline in our discretion to award Mother attorney’s fees on
appeal, noting Mother has not adequately addressed any factors which might have supported
her request.14

                                               Conclusion

       For the foregoing reasons, we affirm in part and vacate in part in the decision of the
juvenile court and remand this case for further proceedings consistent with our opinion.
Costs of this appeal are taxed to appellee, Jessica Jones, for which execution may issue if
necessary.




                                                          _________________________________
                                                          DAVID R. FARMER, JUDGE




        13
         (...continued)
to waiving argument on the issues presented.
        14
         We express no opinion on whether Tennessee Code Annotated section 36-2-311(a)(14), which
Mother cites as the sole basis for an award of attorney’s fees on appeal, gives this Court authority to grant
her request under the facts.

                                                    -9-
