                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                           April 12, 2005 Session

      MELINDA DIANE ANDERSON (BYRD) v. DONALD MATTHEW
                       ANDERSON, SR.

                          Appeal from the Circuit Court for Davidson County
                              No. 93D-822     Muriel Robinson, Judge



                        No. M2004-00078-COA-R3-CV- Filed August 23, 2005


In this extended post-divorce battle over child support, alimony, property division and various other
imaginative issues, the trial court granted summary judgment to the defendant. The judgment of the
trial court is vacated, and the cause is remanded for trial of specific issues.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,
and PATRICIA J. COTTRELL, J., joined.

John Banks Link, Nashville, Tennessee, for the appellant, Melinda Diane Anderson Byrd.

Charles Hill Beaty, Gallatin, Tennessee, for the appellee, Donald Matthew Anderson, Sr.


                                          MEMORANDUM OPINION1

          This runaway train ran through three trial judges, two special masters, a special trial judge
and 10 lawyers before crashing into the docket of the Court of Appeals. The engine started its
arduous journey through the trial court on October 25, 1993, with a Decree of Divorce and ended
its trial court journey a decade later on December 8, 2003. During the interim the children of the
parties reached adulthood, but the parties, apparently fascinated by the courtroom, have continued

       1
           Tenn. R. Ct. App. 10 states:

       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. W hen 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       “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any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.
their unceasing strife wearing out lawyers and judges alike. We will spare the reader the exhaustive
journey through eight volumes of pleadings and orders purporting to dispose of issues which
somehow spring to life again and again.

       Finally, in the tenth year of the journey on June 23, 2003, Judge Muriel Robinson ordered
the former wife, Melinda Diane Anderson (Byrd) to file an amended petition specifically setting
forth:

        A. The exact amount of the “flat” rate child support arrearage.

        B. The exact amount the Respondent allegedly owes for the children’s medical
        expenses.

        C. The exact amount of alimony arrearage.

        D. The exact amount that petitioner claims she is owed for “overtime pay” child
        support.

       The same order gave the former husband, Donald Matthew Anderson, Sr., thirty (30) days
within which to file a responsive pleading.

       In response to this apparent effort by the trial court to zero in on the issues still pending, the
former wife, now rejuvenated by the appearance of yet another attorney on July 29, 2003, filed an
Amended Petition seeking to relitigate everything since October 25, 1993.

         At this point, the trial judge appointed Honorable Jack Norman, Jr. as special master and on
August 22, 2002, referred the matter with instructions: “The Special Master shall do all things as
may be necessary, and conduct all hearings as may be necessary, to enable him to make findings of
fact, recommendations and conclusions of law to the court as to the resolution of all pending issues.”

       On October 9, 2003, the former husband, now reinvigorated by the fresh blood of new
counsel, filed a Motion for Summary Judgment asserting as grounds:

        (1) Child support must be for a specific amount.

        (2) All allegations of contempt are barred by the applicable statute of limitations;

        (3) All allegations are barred by previous decisions of the court that are now the law
            of the land.

        (4) All allegations are barred by previous decisions of the court that are now res
            judicata.



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       (5) All allegations regarding payment of money are barred because of accord and
           satisfaction.

       (6) The request for the Lionel train is between the Defendant and his son and the
           Plaintiff has no standing to bring said action.

       (7) It would be double jeopardy to continue said contempt action in front of Judge
           Robinson after witnesses were called and proof was heard by Judge Gayden.

        This totally unsupported Motion for Summary Judgment asserting six propositions entirely
dependent upon consideration of facts, whether undisputed or not, fails any semblance of compliance
with Tennessee Rule Civil Procedure 56. It is supported by no Statement of Undisputed Material
Facts as required by Rule 56.03.

       At this stage of the case we have an Amended Petition filed July 29, 2003, which is
completely unresponsive to the June 23, 2003, Order of the court. Instead of a Motion to Strike or
Otherwise Limit the Scope of Issues to be drawn under the Amended Petition, we have no responsive
pleading filed by the defendant, but instead, a totally insufficient Motion for Summary Judgment.
The next action is on November 21, 2003, when Substitute Judge Jack Norman, Jr. conducted a
hearing “upon the Amended Petition of former wife for contempt and modification, upon motion of
former husband for summary judgment, and upon the voluminous record in this case.”

         What, if anything, was heard before the special judge on November 21, 2003, we have no
way to know, as such a hearing is mentioned neither in brief nor in the voluminous record. Since
the hearing was on a summary judgment motion, it would seem logical that no proof would have
been heard and the determination of the merits of the Motion would be made by the special judge
from the record made before him. While the decision of the special judge entered December 8, 2003,
and simultaneously approved and concurred in by Judge Robinson may be correct as to a number
of the issues raised by the Amended and Supplemental Petition, such issues are hardly “reachable”
in the absence of a responsive pleading and a properly supported Motion for Summary Judgment.

        Two of the issues are clearly inappropriate for summary judgment under the present record.
The Final Decree of Divorce gave the former wife 40% of former husband’s BellSouth retirement
benefits valued as of October 25, 1993. Subsequently, he withdrew $104,000 from his retirement
accounts without sharing the withdrawal with his former wife. She claims she is entitled to 40% of
this withdrawal. The record before us provides not a clue as to what effect, if any, the $104,000
withdrawal had on the wife’s 40% of value as of October 25, 1993. If it did have an adverse effect
on her 40% interest, she states a claim. If not, she is entitled to no relief. This factual issue has to
be developed by evidence before it can be resolved.

       The Decree of October 25, 1993, set child support according to the Guidelines based upon
former husband’s regular income. It further set an additional amount of “floating” child support
based upon his overtime pay. Such action is clearly not in conformity with the statute, and the


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special judge so held. He determined that this “floating” child support was fatal to the former wife’s
claim for overtime child support. Such is not the case. Overtime and other variable income are not
exempt from child support, but clearly envisioned by the Guidelines. The error made by the trial
court in this case does not inure to the benefit of the former husband in such a manner as to absolve
him of all obligations of child support as to such variable income. This Court has held:

           Finally, Husband argues that the trial court erred when it ordered him to pay a
       percentage of his variable income in the form of bonuses. Specifically, Husband
       contends that such an award is in contravention with the Tennessee Child Support
       Guidelines. The Guidelines define gross income as the following:

           (3) Gross income.

           (a) Calculation of Gross Income.

           1. Gross income shall include all income from any source (before taxes and other
       deductions), whether earned or unearned, and includes but is not limited to, the
       following: wages, salaries, commissions, bonuses, overtime payments, dividends,
       severance pay, pensions, interest, trust income, annuities, capital gains, benefits
       received from the Social Security Administration, i.e., Title II Social Security
       benefits, workers compensation benefits whether temporary or permanent, judgments
       recovered for personal injuries, unemployment insurance benefits, gifts, prizes,
       lottery winnings, alimony or maintenance, and income from self-employment.

       Tenn. Comp. R. & Regs. R. 1240-2-4-.3(3)(a)(1). The rule further states that
       “[v]ariable income such as commissions, bonuses, overtime pay, dividends, etc.,
       shall be averaged and added to the obligor’s fixed salary.” Tenn. Comp. R. & Regs.
       R. 1240-2-4-.03(3)(b). Although the Guidelines do not prescribe how variable
       income should be averaged, the Guidelines, in discussing the initial child support
       award, and Tennessee courts, in discussing averaging variable income, exhibit a
       preference for long-term averaging as the most appropriate method for calculating
       income that is variable in nature. Hanselman, 2001 Tenn. App. LEXIS 166, at *10-
       12 (citing Alexander v. Alexander, 34 S.W.3d 456, 464-65 (Tenn.Ct.App.2000);
       Norton v. Norton, No. W1999-02176-COA-R3-CV, 2000 WL 52819, at *7 n.7
       (Tenn.Ct.App.Jan 10, 2000); Stacey v. Stacey, No. 02 A01-9802-CH-00050, 1999
       WL 1097975, at *4 (Tenn.Ct.App. Oct. 6, 1999); Smith v. Smith, No. 01 A01-9705-
       CH-00216, 1997 WL 672646, at *3 (Tenn.Ct.App. Oct. 29, 1997); Bell v. Bell, No.
       01-A01-9511-CH-00493, 1996 WL 548150, at *1 (Tenn.Ct.App. Sept. 25, 1996)).

           In this case, the trial court ordered Husband to pay child support based upon
       Husband’s base salary of $105,000. The trial court then ordered Husband to pay 41%
       of any bonuses Husband earned within thirty days of receiving such bonus. Such
       “floating” child support awards are inconsistent with Tennessee’s Child Support


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        Guidelines and Tenn.Code Ann. § 36-5-101(a)(2)(A) which requires trial courts to
        fix “some definite amount” for child support payments. Therefore, we reverse the
        child support award and remand for a redetermination of child support based on an
        average of Husband’s gross income over a long term period that includes the bonuses
        Husband has earned in the average.

Schuett v. Schuett, 2004 WL 689917, Tenn.Ct.App.(2004). See also Tenn.Code Ann. § 36-5-101
(Supp. 2004).2

        The proper remedy in the case at bar, as evidenced in Schuett, is to recalculate the husband’s
variable income and apply the appropriate percentage for child support to the resulting average.
Viewing this record in its entirety through the years, one is compelled to observe that the former
husband’s conduct has been egregious in attempting to raise every conceivable obstacle to a proper
judicial resolution of the issues in this case. Not to be outdone, the former wife responds in kind.
However tedious the proceedings on remand must be, the first order of business is for the former
husband to file an appropriate responsive pleading to the Amended Petition of July 29, 2003. Such
a response should narrow the issues made by the Amended Petition, which itself was unresponsive
to the trial court’s Order of June 23, 2003. Thereafter, the trial court can adjudicate such factual
issues as are actually made and summarily dispose of such issues as are not subject to legitimate
factual dispute.

        Tennessee Code Annotated section 27-3-128 provides:

            27-3-128. Remand for correction of record. — The court shall also, in all
        cases, where, in its opinion, complete justice cannot be had by reason of some defect
        in the record, want of proper parties, or oversight without culpable negligence,
        remand the cause to the court below for further proceedings, with proper directions
        to effectuate the objects of the order, and upon such terms as may be deemed right.

        This case is remanded to the trial court with instructions that counsel for the defendant file
a proper responsive pleading to the July 29, 2003 Amended Petition of former wife, rather than a
totally unsupported Motion for Summary Judgment. Thereafter, the issues must be addressed in a
manner that some sense can emerge from this quagmire.

       The judgment of the trial court is vacated, and the case is remanded for further proceedings
consistent with this opinion.

        Costs of this cause are assessed against the appellee, Donald Matthew Anderson.




        2
         Tenn.Code Ann § 36-5-101 has been amended by 2005 Tenn. Pub. Acts ch. 287, eff. July 1, 2005. The
language of Tenn.Code Ann. § 36-5-101(a)(2)(A) is unchanged.

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      ___________________________________
      WILLIAM B. CAIN, JUDGE




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