               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                March 8, 2016 Session

GRETCHEN MICHELE BENEDICT v. DONALD LESTER BENEDICT, JR.

               Appeal from the Chancery Court for Hamilton County
                  No. 99-0673    Pamela A. Fleenor, Chancellor


                No. E2015-01427-COA-R3-CV-FILED-MAY 25, 2016


This is the second time this matter has been before us on appeal. The issue is again the
correct amount of Donald Lester Benedict, Jr.’s (Father) income upon which child
support is to be based. Gretchen Michele Benedict (Mother) argues that the trial court
erred when it set Father’s child support based upon an incorrect income figure. We have
determined that the trial court misinterpreted our previous opinion in Benedict v.
Benedict, No. E2013-00978-COA-R3-CV, 2014 WL 2187779 (Tenn. Ct. App., filed May
27, 2014) (Benedict I). The trial court incorrectly held that Father’s income was $75,000
per year for the purpose of setting child support for the period February 2007 to May
2014. The trial court used the $75,000 annual figure even though the evidence showed
that Father’s actual income during the period of 2010-2014 ranged from a low of $60,444
to a high of $199,530. We vacate the trial court’s judgment and remand for a
recalculation of the amount of child support.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                Vacated; Case Remanded for Further Proceedings

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Grace E. Daniell, Chattanooga, Tennessee, for appellant, Gretchen Michele Benedict.

Phillip C. Lawrence, Chattanooga, Tennessee, for appellee, Donald Lester Benedict, Jr.

                                           I.

       The parties have two children, a daughter born on January 11, 1996, and a son
born on September 3, 1998. The parties were divorced on September 6, 2000. Pursuant
to their marital dissolution agreement, Father was ordered to pay child support in the
amount of $3,200 per month. Our Benedict I opinion provides the following pertinent
procedural history:

            In January 2007, Husband filed a petition to modify child
            support. Husband alleged that his income had decreased
            substantially and that Wife now was working. Wife filed an
            answer and counterclaim alleging that Husband had unclean
            hands and had failed to pay child support and alimony as
            ordered. Wife acknowledged that the parties had resumed
            living together for a while and that she was working. In
            November 2007, the Trial Court cut Husband’s child support
            obligation from $3,200 per month to $1,900 per month
            pending trial. For his part, Husband denied being behind on
            child support or alimony. In May 2008, Wife filed a petition
            for contempt alleging that Husband failed to pay fees for one
            of the Children to attend school. Husband filed a response,
            alleging a reduction in income and asking for removal of his
            responsibility to pay tuition.

            In April 2009, the Trial Court entered an order referring
            numerous issues in the case to a Master. The Master heard
            the case on several dates in 2010. . . . Husband’s income in
            2000 was $350,000 per year. Husband at that time worked
            for Adams Lithography. Husband’s work was commission-
            based. In 2002, Husband lost his job at Adams when the
            major client left Adams. Between 2002 and 2009, Husband
            worked in a variety of jobs. Husband opened Five–0–5
            Marketing, LLC, an advertising agency, and Fireball Business
            Services, a printing company. The businesses ultimately did
            not thrive. Husband’s income was as follows: 2005–
            $102,943, 2006–$205,143, 2007–$2,188, 2008–$24,954. By
            2009, Husband returned to Adams and earned $75,000 per
            year. As of 2009, Wife was earning around $17,000 per year.

            In March 2011, the Master entered his order. Husband’s
            child support was set at $1,259 per [month] based on his
            salary at Adams of $75,000 per year. The Master ruled that
            Husband’s obligation for private school tuition, college
            tuition, the second mortgage, and lease payments and
            residuals on the Mercedes were discharged in bankruptcy.
                                         2
            In January 2013, the Trial Court entered its memorandum
            opinion and order resolving Wife’s objections to the Master’s
            findings. The Trial Court held that the Master erred in
            calculating Husband’s income and that Husband was willfully
            or voluntarily underemployed. The Trial Court held, inter
            alia: 1) Husband’s income was his actual $75,000 salary at
            Adams plus an imputed $144,362 for a total of $219,362[.]

2014 WL 2187779, at *1-2. The trial court set Father’s child support at $2,405 per
month, retroactive to February 2007. Father appealed. We reversed the trial court’s
finding of willful underemployment and remanded for recalculation of child support,
stating:

            The record reveals that Husband’s earnings took a major hit
            over the course of the decade after his divorce. Husband
            went from earning $350,000 per year to $75,000 per year at
            Adams. In the interim, his different enterprises eventually
            floundered. The evidence in the record on appeal does not
            support a finding that Husband intentionally torpedoed his
            career prospects. Rather, it appears Husband has tried and
            failed to reestablish some measure of his previous lifestyle.
            Husband filed for bankruptcy a few years after the divorce, as
            well.

                                   *      *      *

            In calculating Husband’s income, the Trial Court added his
            salary of $75,000 to an imputed income of $144,362 to reach
            $219,362. We do not believe this is the correct way to go
            about determining Husband’s income. As noted by Husband,
            he either is earning a salary of $75,000 or is an entrepreneur
            capable of earning $144,362, but not both at the same time.
            The Master found Husband’s income for purposes of child
            support to be $75,000 per year.             We believe the
            preponderance of the evidence supports the Master’s finding,
            and the Trial Court erred in setting aside that finding by the
            Master. This of course does not settle once and for all time
            the issue of Husband’s income. Husband perhaps will earn
            more money in the future. However, under the evidence in
                                          3
               the instant appeal, we find that Husband’s income for child
               support purposes is $75,000 per year.

               We hold that the Trial Court erred in finding that Husband
               was willfully or voluntarily underemployed. Because of the
               close nexus between this issue and Husband’s next two issues
               (whether the Trial Court erred in its modification of
               Husband’s child support and award of child support
               arrearage; and, whether the Trial Court erred in finding that
               Husband was not entitled to a modification of his obligation
               to pay for private school tuition and an arrearage for private
               school tuition), those issues are pretermitted as they are to be
               considered anew by the Trial Court on remand in proceedings
               as necessary consistent with this Opinion.

Id. at *6-7.

       Following our remand, the trial court heard evidence pertaining to Father’s income
for the years 2010 through 2014. In its memorandum opinion and order entered on July
2, 2015, the trial court found that Father’s actual gross income was as follows: 2010‒
$60,444; 2011‒$67,382; 2012‒$140,141; 2013‒$199,530; and 2014‒$186,501. The trial
court held, however, that “the law of the case” as established by Benedict I mandated a
finding that Father’s income for child support purposes was $75,000 per year. Based on
this number, the trial court set Father’s child support at $1,259 per month for the period
between February 2007 and May 2014. Because Father had filed a second petition to
modify child support on May 29, 2014, the court calculated Father’s child support
obligation beginning in June 2014 to be $1,435 based on the parties’ respective incomes.
The trial court held there was no arrearage because Father had overpaid by a total of
$39,745.32 from February 2007 through May 2014, and granted Father a credit in that
amount. The court further stated that “[b]ased on an annual income of $75,000 the Court
finds that Mr. Benedict could not contribute toward private school tuition from 2007-
2014 as such costs were not appropriate to his financial abilities during that time.”
Mother timely filed a notice of appeal.

                                             II.

       Mother raises the following issues, as paraphrased from her brief:

               1. Whether the trial court erred in calculating Father’s child
               support obligation, arrearage, and/or credit owed, if any.
                                              4
              2. Whether the trial court erred in finding no arrearage owed
              by Father for the children’s private school tuition, and
              determining that Father was not obligated to contribute
              toward tuition from 2007 to 2014.

              3. Whether the trial court erred in finding that Father was not
              in contempt for failing to pay the children’s private school
              tuition.

              4. Whether the trial court should have granted Mother’s
              request for attorney’s fees.

                                            III.

        The primary and determinative question is whether the trial court correctly ruled
that Benedict I mandated a finding that Father’s income for child support calculation
purposes from 2009 to 2014 was $75,000. In Benedict I, we held that the Master had
correctly determined that Father’s income for child support purposes was $75,000
through 2009, which was the last year about which the Master heard proof. As Mother
points out, though, we were also careful to state that “[t]his of course does not settle once
and for all time the issue of Husband’s income. Husband perhaps will earn more money
in the future.” (Emphasis added). In our first opinion in this case, we never said that the
trial court, on the first remand, had to use the $75,000 figure in calculating child support
for the period of 2009 to 2014. On the contrary, we said just the opposite.

       This Court was presented with a similar and analogous situation in Smith v.
Smith, No. M2000-01094-COA-R3-CV, 2001 WL 459108 (Tenn. Ct. App., filed May 2,
2001). In Smith, we determined on the first appeal that the trial court had improperly
applied the Child Support Guidelines and remanded for recalculation. Id. at *1. Then,
“almost four years . . . passed between the original order setting child support and the
hearing on remand.” Id. at *2. On the second appeal, the mother argued that “the trial
court should have used the father’s actual income for the years 1996, 1997, 1998, in
determining the father’s obligation for those years.” Id. at *3. The trial court, however,
had taken a different approach:

              [T]he initial award was made at the time of divorce, in April
              1996. However, that award was determined by this court to
              have been incorrectly calculated. On remand, the trial court
              interpreted its duty to establish the support due at the time of
                                             5
             the divorce, based on the father’s income at that time, even
             though four years had passed. The court, placing itself in the
             position it would have been in April 1996, determined the
             father’s then-current income based on information which
             would have been available at that time, the father’s income
             from 1992 through 1995, even though the father’s actual 1996
             income was known at the time of the hearing on remand. The
             court then determined the child support due in each of the
             intervening years on the basis of its estimate of the father’s
             1996 income, although information about the father’s actual
             income for each of those years was available.

Id. at *4. The Smith Court, observing that “[b]ecause child support is based on income,
an award for future support, including a prospective modification, is necessarily based
upon most recent actual income,” further stated,

             For the years between the initial entry of the order obligating
             the father to pay child support until the order on remand, we
             can find no basis for ignoring actual income and establishing
             support on outdated projections of income. The amount of
             the father’s obligation for past years should be determined
             using actual income figures.

                                    *      *      *

             To the extent the father has paid amounts since the date of
             divorce which are substantially less than the amount he
             should have paid, he owes back child support. The way to
             determine the arrearage is to recalculate the correct amount
             for each of the years since the divorce decree and subtract the
             father’s actual payments.

                                    *      *      *

             In the case before us, the obligation to provide support has
             existed since the divorce, but the amount of the obligation has
             not been correctly set, and the amount of back support cannot
             be determined until that is done. The situation is similar
             enough to the cases involving calculation of back support in


                                           6
              late-discovered paternity cases for us to use those cases for
              additional guidance.

              Therefore, we conclude that the amount of back child support
              owed by the father should have been calculated using his
              actual income for each of the years since the divorce, proof of
              which was available at the time of the remand hearing.

Id. at *7-9 (footnote omitted).

       As we did in Smith, we hold that the trial court should use the actual income
numbers for Father and Mother, on a yearly basis, to determine what the child support
obligation should be. In other words, the actual and correct income numbers should be
inputted into the child support calculator for each of the years from 2007 through 2015,
which will result in either a deficiency or overpayment for each year. Father’s income
for 2007 through 2009 is $75,000 for child support calculation purposes, as the
established law of the case determined by Benedict I. For the years 2010 to the date of
the hearing on this remand, the trial court is directed to use actual income figures.
Because the trial court decided the issues related to Father’s payment of the children’s
tuition expenses based on an erroneous premise, i.e., that his income was $75,000, it
should reconsider those issues upon remand.

      Regarding Mother’s request for attorney’s fees, Tenn. Code Ann. § 36-5-103(c)
provides:

              The plaintiff spouse may recover from the defendant spouse,
              and the spouse or other person to whom the custody of the
              child, or children, is awarded may recover from the other
              spouse reasonable attorney fees incurred in enforcing any
              decree for alimony and/or child support, . . . in the discretion
              of such court.

In Brown v. Brown, No. W2005-00811-COA-R3-CV, 2006 WL 784788, at *4 (Tenn. Ct.
App., filed Mar. 29, 2006), we observed:

              There is no question that T.C.A. § 36-5-103(c) empowers the
              courts to award reasonable attorney’s fees incurred by
              persons who are required to return to court to enforce a child
              support order. See, e.g., Huntley v. Huntley, 61 S.W.3d 329,
              341 (Tenn. Ct. App. 2001). In these situations, the attorney’s
                                             7
              fees are allowed as a necessary and, consequently, the fees
              may be couched as additional child support. See W. Walton
              Garrett, Tennessee Divorce, Alimony and Child Custody
              (2002 ed.) § 29-9. The decision of whether to award
              attorney’s fees in these cases falls within the trial court’s
              discretion, Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn.
              1995). Consequently, we review those decisions under the
              less stringent “abuse of discretion” standard of review.
              Accordingly, we will reverse a trial court’s decision with
              regard to awarding attorney’s fees in cases such as this only
              when the trial court 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.

In the present case, the trial court simply held that “[e]ach party [is] to bear its own
attorney’s fees for this action.” Based on our review of the record, we find no abuse of
discretion in this decision. In view of our decision in this case, it is abundantly clear that
Mother’s appeal was not frivolous. Accordingly, we decline to award Father attorney’s
fees for frivolous appeal.

                                             IV.

       The judgment of the trial court is vacated, and the case is remanded for further
action consistent with this opinion. Costs on appeal are assessed to the appellee, Donald
Lester Benedict, Jr.


                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




                                              8
