                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                              NOVEMBER 18, 2003 Session

 MOHAMMAD RAFIEETARY v. MARYAM KHOSHROO RAFIEETARY

                   Direct Appeal from the Circuit Court for Shelby County
                     No. CT-003821-01     John R. McCarroll, Jr., Judge



                    No. W2003-00121-COA-R3-CV - Filed April 29, 2004


This case concerns issues of alimony, child support, and dependency exemptions, arising from the
divorce of Husband and Wife. Following a hearing, the trial court awarded Wife rehabilitative
alimony, ordered Husband to pay 80% of Child’s uninsured medical expenses over $500, awarded
each party the dependency exemption for Child on alternating years, and ordered Husband to pay for
Child’s violin lessons and Boy Scout expenses. For the following reasons, we affirm in part, reverse
in part, and remand for further proceedings consistent with this opinion.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,
                            Reversed in Part, and Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Kathleen D. Norfleet, J. Michael Fletcher, Steven R. Walker, Memphis, TN, for Appellant

Stevan L. Black, John C. Ryland, Vickie Hardy Jones, Memphis, TN, for Appellee

                                            OPINION

                                 Facts and Procedural History

       Mohammad Rafieetary (“Husband”) and Maryam Rafieetary (“Wife”) were both born in Iran,
where they were married in 1985. For approximately eight years prior to the marriage, however,
Husband had been a student in the United States. At the time of the marriage, Husband was in
optometry school at the University of Missouri in St. Louis. Wife moved with Husband to St. Louis,
where the parties resided until Husband graduated from optometry school in 1988. While in St.
Louis, Wife took English and other classes at the University of Missouri in pursuit of an
undergraduate degree, which she did not complete at the time.
         Upon Husband’s graduation in 1988, the parties moved to Memphis so that Husband could
enroll in a post-doctorate residency program at the Southern College of Optometry (“SCO”).
Following completion of his residency program, Husband accepted a job at SCO, where he worked
for six years. Husband then left SCO to work for his current employer, the Charles Retina Institute,
in Memphis. During this time, Wife continued to take classes, first at the University of Memphis
and then at the University of Tennessee in Memphis, where she graduated with a degree in medical
technology. Wife then took a job as a medical technologist at Methodist Hospital in Germantown.

       In August 1990, while still a student, Wife gave birth to the parties’ only child, Salar
(“Child”). Both parents were active in the raising of Child, with Wife assuming many of the day-to-
day responsibilities and Husband engaging in activities with Child such as Boy Scouts. The parties
enrolled Child in private school at Briarcrest Christian School, which he still attends.

        On June 21, 2001, Husband filed for divorce in the Circuit Court of Shelby County, alleging
irreconcilable differences and inappropriate marital conduct. On October 30, 2001, Wife filed her
answer and counter-complaint for divorce, also alleging irreconcilable differences and inappropriate
marital conduct. The parties entered into an agreed Permanent Parenting Plan on December 7, 2001.
Under the terms of the plan, neither parent was designated as the primary residential parent, and
Husband enjoyed substantial residential time with his son. Although not required by the plan,
Husband continued to pay all Child’s expenses during this time, except the cost of food when Child
stayed with Wife. These expenses included the cost of Boy Scout activities and violin lessons for
Child.

        On October 11, 2002 a final decree of divorce was entered, though the lower court reserved
issues regarding custody, child support, and division of marital property for a later date. The trial
court addressed these remaining issues in two hearings that took place on September 12 and
November 6, 2002. Much of the evidence developed at these hearings dealt with the income and
expenses of each party. Specifically, Husband indicated that he earned approximately $16,000 gross
per month, while Wife testified that she grossed approximately $4,000 per month. Wife’s monthly
expenses proved to be a source of contention, with Husband questioning the accuracy of Wife’s
affidavit listing some $8,000 in monthly expenses.

        At these hearings, the parties agreed on, and the court approved: (1) a division of the marital
property awarding Wife 52.5% of the property and Husband 47.5%; (2) Husband paying $25,000
of Wife’s attorney’s fees; (3) Husband paying Wife $1,779 per month in child support; and (4)
Husband paying for Child’s private school expenses. However, several issues remained upon which
the parties could not reach an agreement. The lower court ruled as follows on these issues: (1)
Husband must pay for violin lessons and Boy Scout expenses for Child, in addition to child support;
(2) Husband and Wife will alternate tax years taking the dependency exemption for Child; (3) the
parties will split the first $500 in medical costs for Child in any given year, with the Husband paying
80% of any additional medical expenses; and (4) Husband will pay Wife $1,500 per month in
rehabilitative alimony for a period of five years. On December 16, 2002, the lower court entered an



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amended final decree of divorce reflecting its rulings on the issues listed above. Husband then
timely filed this appeal, raising the following issues for our consideration:

       I.      Whether the trial court erred in awarding rehabilitative alimony.
               A.    Whether the trial court erred by foreclosing Husband from presenting proof
                     that Wife had no need for rehabilitative alimony.
               B.    Whether the trial court erred in determining Wife had a need for
                     rehabilitative alimony.

       II.     Whether the trial court erred in requiring Husband to pay the cost of Boy Scout
               expenses and violin lessons for Child.

       III.    Whether the trial court erred in requiring Husband to pay 80% of Child’s uninsured
               medical expenses over $500.00.

       IV.     Whether the trial court erred in determining that the dependency exemption for
               federal income taxes could only be claimed by Husband in alternate years, rather than
               every year.

Wife, as Appellee, raises one additional issue on appeal:

               V.      Whether Husband should be required to pay Wife’s attorney’s fees incurred
                       in defending the instant appeal.

                                        Standard of Review
        When this Court reviews the findings of fact by a trial court sitting without a jury, such
review is de novo upon the record, with a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); Langschmidt v. Langschmidt, 81 S.W.3d 741,
744-45 (Tenn. 2002); Brown v. Brown, 913 S.W.2d 163, 167 (Tenn. Ct. App. 1994). Further, we
employ an abuse of discretion standard when reviewing a trial court’s award of spousal support.
Walker v. Walker, No. E2001-01759-COA-R3-CV, 2002 WL 1063948, at *2 (Tenn. Ct. App. May
29, 2002) (citing Robertson v. Robertson, No. E200-01698-SC-R11-CV, 2002 Tenn. LEXIS 172,
at *11 (Tenn. Apr. 4, 2002)). Likewise, we will not disturb a trial court’s determination regarding
dependency exemptions absent a showing that the lower court abused its discretion. Barabas v.
Rogers, 868 S.W.2d 283, 289 (Tenn. Ct. App. 1993). Finally, this Court affords the trial court
deference in matters of child support and reviews such issues under an abuse of discretion standard.
Hanselman v. Hanselman, No. M1998-00919-COA-R3-CV, 2001 Tenn. App. LEXIS 166, at *4
(Tenn. Ct. App. Mar. 15, 2001). “This standard requires us to consider (1) whether the decision has
a sufficient evidentiary foundation, (2) whether the trial court correctly identified and properly
applied the appropriate legal principles, and (3) whether the decision is within the range of
acceptable alternatives.” Id. (citing State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn.
Ct. App. 2000)).
                                          Spousal Support


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         In his first issue on appeal, Husband challenges the lower court’s award of rehabilitative
alimony to Wife. He premises his challenge on two different grounds. First, Husband maintains that
the lower court impermissibly foreclosed his cross-examination of Wife, thereby preventing him
from showing that Wife has no need for alimony. Next, he simply argues that the lower court abused
its discretion in awarding Wife $1,500 per month for five years. We will address each argument in
turn.

                               Foreclosure of Cross-Examination

       Husband maintains that the trial court denied him the opportunity to conduct a complete
cross-examination of Wife at the November 6, 2002 hearing and, as a result, he was unable to fully
develop his evidence regarding Wife’s need for alimony. Specifically, Husband argues that he
attempted to question Wife regarding certain bank statements that demonstrated lower monthly
expenses than those Wife provided in her Rule 14(c) affidavit and that the lower court prevented this
questioning. Husband points to the following exchanges in support of his contention:

       HUSBAND’S COUNSEL: . . . So what I’m examining [Wife] on is what her needs
       are, Your Honor. And Your Honor, that’s the only way I know how to get to it [by
       using the bank statements] and to finally let Your Honor go ahead and make your
       decision.

       WIFE’S COUNSEL: . . . I know where counsel is going with this. He is going to try
       to utilize [Wife’s bank statement] to show what her expenses have been -

       THE COURT: I don’t want to get into that. We have 30 minutes left this afternoon,
       you know. I don’t need to get into a discussion about those kinds of things. I do
       need to know what the parties are asking for. What is his position? What is he
       saying he thinks about paying her?
              ....

       THE COURT: Okay. All right. Well, we will go ahead and you put on whatever
       proof you are going to put on. And I don’t know what agreements regarding
       attorney fees are but at the end of the day, Dr. Rafieetary is probably going to end up
       paying more attorney fees than he has agreed to right now.

       HUSBAND’S COUNSEL: Your Honor, that has a rather chilling effect on my cross-
       examination, perhaps.

       THE COURT: I’m just telling you the way the world works.

(emphasis added). Husband maintains that, in this last exchange, the trial court effectively
foreclosed any further cross-examination by telling counsel that additional questions could lead to
a greater award of attorney’s fees for Wife. We disagree. While it is true the trial court raised the


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possibility of additional attorney’s fees as a consequence of continued cross-examination, the lower
court never made any ruling that forbade Husband’s counsel from continuing. Indeed, the lower
court’s ruling, as emphasized above, was that counsel could “put on whatever proof you are going
to put on.” The burden then fell to counsel to conduct the cross-examination and to then appeal any
award of attorney’s fees thought to be excessive. In sum, though the trial court may have seemed
less than enthused regarding the proposed route of cross-examination, it ruled in Husband’s favor
on the issue. Husband cannot thereafter challenge the ruling in his favor simply because he failed
to act upon it.

                                 Award of Rehabilitative Alimony

        We have held that “[t]rial courts have broad discretion to determine whether spousal support
is needed and, if so, its nature, amount, and duration.” Anderton v. Anderton, 988 S.W.2d 675, 682
(Tenn. Ct. App. 1998). “Appellate courts are generally disinclined to second-guess a trial judge’s
spousal support decision unless it is not supported by the evidence or is contrary to the public
policies reflected in the applicable statutes.” Id. As such, we generally decline to alter a trial court’s
determination regarding spousal support unless the lower court abused its discretion. Walker v.
Walker, No. E2001-01759-COA-R3-CV, 2002 WL 1063948, at *2 (Tenn. Ct. App. May 29, 2002)
(citing Robertson v. Robertson, No. E2000-01698-SC-R11-CV, 2002 Tenn. LEXIS 172, at *11
(Tenn. Apr. 4, 2002)).

         Tenn. Code Ann. § 36-5-101(d)(1) (2001) provides the relevant factors to be considered by
a trial court when determining awards of alimony:

        In determining whether the granting of an order for payment of support and
        maintenance to a party is appropriate, and in determining the nature, amount, length
        of term, and manner of payment, the court shall consider all relevant factors,
        including:
          (A) The relative earning capacity, obligations, needs, and financial resources of
          each party, including income from pension, profit sharing or retirement plans and
          all other sources;
          (B) The relative education and training of each party, the ability and opportunity
          of each party to secure such education and training, and the necessity of a party
          to secure further education and training to improve such party’s earning capacity
          to a reasonable level;
          (C) The duration of the marriage;
          (D) The age and mental condition of each party;
          (E) The physical condition of each party, including, but not limited to, physical
          disability or incapacity due to a chronic debilitating disease;
          (F) The extent to which it would be undesirable for a party to seek employment
          outside the home because such party will be custodian of a minor child of the
          marriage;



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          (G) The separate assets of each party, both real and personal, tangible and
          intangible;
          (H) The provisions made with regard to the marital property as defined in § 36-4-
          121;
          (I) The standard of living of the parties established during the marriage;
          (J) The extent to which each party has made such tangible and intangible
          contributions to the marriage as monetary and homemaker contributions, and
          tangible and intangible contributions by a party to the education, training or
          increased earning power of the other party;
          (K) The relative fault of the parties in cases where the court, in its discretion,
          deems it appropriate to do so; and
          (L) Such other factors, including the tax consequences to each party, as are
          necessary to consider the equities between the parties.

While a trial court must consider each of these factors in making its determination, need and the
ability to pay are the critical factors. Anderton v. Anderton, 988 S.W.2d 675, 683 (Tenn. Ct. App.
1998).

        Husband argues that the lower court erred in granting Wife $1,500 per month for five years
in rehabilitative alimony. He claims that Wife has no need for this much support and that she has
no need for rehabilitation. We are not persuaded by Husband’s argument. When we review the
record in light of the relevant statutory factors, we cannot say that the trial court abused its discretion
in either the amount, duration, or type of alimony awarded. Evidence was presented that Husband’s
income is four times that of Wife; that Husband has more education and a greater long-term earning
capacity; that Wife suffers from chronic back pain that sometimes makes working for extended
periods difficult; that Wife is the custodian of the parties’ minor child; that Wife has made
contributions to the seventeen-year marriage as both wage earner and homemaker; and that Wife has
need of support to meet her monthly expenses. Considering this evidence, the trial court was within
its discretion to award Wife $1,500 for five years. Husband argues that Wife is not entitled to
rehabilitative alimony, because there is no indication she intends to seek additional job training or
education, and, thus, there is nothing to rehabilitate. We note, however, that rehabilitative alimony
“may also provide temporary income to support the disadvantaged spouse during the post-divorce
economic adjustment.” Robertson v. Robertson, 76 S.W.3d 337, 341 (Tenn. 2002) (citing Crabtree
v. Crabtree, 16 S.W.3d 356, 360-61 (Tenn. 2000)). Consequently, we do not find that the lower
court erred in classifying Wife’s alimony in this case as “rehabilitative.” In light of the foregoing,
we affirm the lower court’s award of spousal support to Wife.




                              Violin Lessons and Boy Scout Expenses




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        In his next issue on appeal, Husband challenges the lower court’s order obligating Husband
to pay for Child’s violin lessons and Boy Scout expenses, in addition to child support payments of
$1,779 per month. Husband argues that the $1,779 payment reflects the amount mandated by the
Child Support Guidelines and that these miscellaneous expenses constitute an upward deviation.
He maintains that the trial court erred in ordering the upward deviation because it failed to make
written findings rebutting the presumption in favor of the guideline amount, as required by Tenn.
Code Ann. § 36-5-101(e)(1). We agree.

          We previously addressed this issue in High v. High, No. W2001-01558-COA-R3-CV, 2003
WL 21643353, at *1 (Tenn. Ct. App. July 8, 2003). In High, the father was ordered by the trial court
to pay the guideline amount in monthly child support, as well as the costs of summer camp for his
minor children. Id. He challenged his obligation to pay for summer camp, arguing that it constituted
an upward deviation and that the trial court had failed to make a written finding that “application of
the . . . guidelines would be unjust or inappropriate,” as required for an upward deviation. Id. at *7
(quoting Tenn. Code Ann. § 36-5-101(e)(1); Tenn. Comp. R. & Regs. 1240-2-4-.01(3)). As we
conducted our analysis, we noted that the guidelines provide for mandatory upward deviations in the
case of “[e]xtraordinary educational expenses and extraordinary medical expenses not covered by
insurance.” Id. (quoting Tenn. Comp. R. & Regs. 1240-2-4-.04-(1)(c)). We found, however, that
the summer camp expenses did not constitute “extraordinary educational expenses,” and, therefore,
no mandatory upward deviation was appropriate.

        Instead, we found that the summer camp expenses represented another class of expenses
contemplated by the guidelines, “other extraordinary expenses.” Id. at *8. “Other extraordinary
expenses” are not expenses mandated by the guidelines to be borne by the child support obligor,
unlike “extraordinary educational expenses and extraordinary medical expenses not covered by
insurance.” Id. (citing Tenn. Comp. R. & Regs. 1240-2-4-.04(d)). To the contrary, it is assumed
that the obligor will not bear these expenses, unless the trial court finds that “equity requires it.” Id.
(citing Tenn. Comp. R. & Regs. 1240-2-4-.04(d)). Accordingly, we held:

        [W]hen an obligor parent is ordered to pay some or all of such expenses, the result
        is a deviation from the Guidelines. Such a deviation, in turn, triggers the requirement
        of “a written finding that the application of the child support guidelines would be
        unjust or inappropriate in that particular case, in order to provide for the best interest
        of the child or the equity between the parties.”




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Id. (citations omitted).1 In the present case, the violin lessons and Boy Scout expenses each
constitute “other extraordinary expenses.” As such, imposing these expenses on Husband represents
an upward deviation from the presumed guideline award. The lower court, consequently, erred when
it failed to make “a written finding that the application of the child support guidelines would be
unjust or inappropriate in that particular case, in order to provide for the best interest of the child or
the equity between the parties.” We, therefore, reverse and remand on this issue, with instructions
that the lower court quantify these additional expenses and make a determination regarding upward
deviation, supported by written findings where appropriate.

                                       Child’s Uninsured Medical Costs

        In its decree, the trial court ordered Husband to pay 80% of Child’s uninsured medical costs
over $500. Husband contests this ruling, arguing that both parties bear an equal and joint obligation
to support their child. Having reviewed the relevant authority, we cannot find that the trial court
abused its discretion in this matter. As we acknowledged in Rice v. Rice, No. M1998-00973-COA-
R3-CV, 2001 Tenn. App. LEXIS 509, at *9 (Tenn. Ct. App. July 19, 2001), “Tenn Code Ann. § 36-
5-101(f)(1) . . . specifically empowers trial courts to order a parent to be responsible for [up to] all
of a child’s uncovered medical expenses.” In Rice, this Court found that a difference of $25,700 in
the parents’ annual income was sufficient to justify the trial court’s decision to hold the father
responsible for all the child’s uncovered medical expenses. Id. at *9-10. In the present case,
Husband’s annual income exceeds Wife’s by more than $100,000. Accordingly, we find that the
trial court did not err in ordering Husband to cover 80% of Child’s uninsured medical costs.

                                              Dependency Exemption

        In his final issue on appeal, Husband challenges the trial court’s decision to have the parties
alternate years in which they use the dependency tax exemption for Child. Specifically, Husband
maintains that he should have been awarded the exemption outright, as he would reap substantially
more tax benefit than Wife due to his significantly higher income. Husband points our attention to
the case of Travis v. Travis, No. E2000-01043-COA-R3-CV, 2001 Tenn. App. LEXIS 175, at *1
(Tenn. Ct. App. Mar. 16, 2001), in which this Court affirmed the trial court’s award of the
dependency exemption to the father, the non-custodial parent. We affirmed the trial court’s award
on two grounds. Id. at *13-14. First, the father earned approximately $34,000 annually, while the
mother earned less than $4,000 in a year. Id. at *13. We found that the exemption would be of great
benefit to the father and of relatively little use to the mother. Id. Next, we noted that the father was


         1
                   In High, we continue our analysis regarding the relationship of “other extraordinary expenses” to the
presumed guideline award. Our analysis suggests that these expenses do not constitute “child support,” as contemplated
by the child support guidelines, unless the expenses are quantified and added to the periodic “child support” payment
ordered by the trial court. High, 2003 W L 21643353, at *9. If the expenses are not quantified and added to the “child
support” payment, then the expenses do not represent an upward deviation in “child support,” and the trial court is not
obligated to make any specific findings. Id. It is critical to note, however, that this additional analysis is limited to the
circumstances of the case, in which the parties entered into an agreed order regarding child support obligations. Id. at
*9-10. As the parties in the present case did not enter into an agreed order, the additional analysis is inapposite.

                                                            -8-
“responsible for a significant portion of his children’s expenses,” voluntarily assuming other
expenses with regard to his children in addition to his child support payments. Id. at *14.
Consequently, we held that “it seems to us that he should be allowed the dependency exemptions as
a matter of equity.” Id. In the present case, Husband argues that his significantly higher income,
coupled with his assumption of many of Child’s expenses, entitles him to use the dependency
exemption every year.

        As noted earlier, a trial court’s decision regarding the allocation of dependency exemptions
is discretionary and rests on the facts of the particular case. Barabas v. Rogers, 868 S.W.2d 283, 289
(Tenn. Ct. App. 1993). Having reviewed the facts of this case, we cannot say that the trial court
abused its discretion in having the parties alternate use of the dependency exemption. The Travis
decision is only partly instructive in the present case. Husband, like the father in Travis, does,
indeed, bear many of Child’s financial expenses. However, Wife earns a considerably higher income
than the mother in Travis, nearly twelve times as much, and, as such, the dependency exemption is
of much more use to Wife under these circumstances. As such, the lower court acted within its
discretion by awarding each party use of the dependency exemption in alternating years.

                                           Attorney’s Fees

        In her only issue on appeal, Wife asks us to award her attorney’s fees incurred in defending
this appeal. She argues that she is entitled to attorney’s fees on two bases. First, she maintains that
she should be awarded her attorney’s fees incurred on appeal as a form of alimony. She then argues,
in the alternative, that attorney’s fees are appropriate because of the frivolous nature of this appeal.
We disagree with both grounds. Each case cited by Wife, regarding attorney’s fees as a form of
alimony, contemplates an award of attorney’s fees for proceedings at the trial level. See Houghland
v. Houghland, 844 S.W.2d 619 (Tenn. Ct. App. 1992); Raskind v. Raskind, 325 S.W.2d 617 (Tenn.
Ct. App. 1959). In Houghland, after discussing the award of attorney’s fees to wife at the trial level,
we addressed wife’s request for attorney’s fees incurred due to her husband’s appeal. Houghland,
844 S.W.2d at 623. We never considered awarding her fees incurred on appeal as a form of alimony.
Id. Instead, we simply held that an award of attorney’s fees is inappropriate where each party is
partially successful on appeal. Id. We note that, as Husband was successful in one of his issues on
appeal, our holding in Houghland actually disposes of Wife’s second ground for attorney’s fees, as
well. Accordingly, we decline to award Wife her attorney’s fees incurred as a result of this appeal.




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                                            Conclusion

       For the foregoing reasons, we affirm the ruling of the trial court as to the issues of alimony,
uninsured medical costs, and dependency exemptions. We reverse and remand for further
proceedings consistent with this opinion on the issue of Child’s violin lessons and Boy Scout
expenses. Costs of this appeal are taxed equally to Appellant, Mohammad Rafieetary, and his surety,
and to Appellee, Maryam Khoshroo Rafieetary, for which execution may issue if necessary.




                                                   ___________________________________
                                                   ALAN E. HIGHERS, JUDGE




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