      IN THE COURT OF APPEALS OF TENNESSEE
                  AT NASHVILLE                   FILED
                                                 October 21, 1998

BETTILYNN GAY FORD,                 )           Cecil W. Crowson
                                    )          Appellate Court Clerk
      Plaintiff/Appellee,           )     Davidson Circuit
                                    )     No. 86D-1742
VS.                                 )
                                    )     Appeal No.
BRION LEONARD FABIAN FORD,          )     01A01-9611-CV-00536
                                    )
      Defendant/Appellant.          )



                   APPEAL FROM THE CIRCUIT COURT
                       FOR DAVIDSON COUNTY
                      AT NASHVILLE, TENNESSEE

             THE HONORABLE MURIEL ROBINSON, JUDGE




For the Plaintiff/Appellee:         For the Defendant/Appellant:

Kathryn G. Brinton                  G. Kline Preston, IV
Nashville, Tennessee                Nashville, Tennessee




      AFFIRMED AS MODIFIED AND REMANDED




                                WILLIAM C. KOCH, JR., JUDGE
                                 OPINION

      This appeal involves a dispute over the calculation of child support. Seven
years after the divorce, the custodial parent petitioned the Circuit Court for Davidson
County for increased child support for the parties’ teenage son in light of funds the
noncustodial parent was receiving from his mother’s estate. The trial court heard the
evidence without a jury and increased the noncustodial parent’s child support
obligation from $50 per week to $750 per month. On this appeal, the noncustodial
parent asserts that the trial court erred by increasing his child support and by
requiring him to pay the custodial parent’s legal expenses. We affirm the trial court’s
decision to increase the noncustodial parent’s child support and to require him to pay
a portion of the custodial parent’s legal expenses. However, we modify the amount
of the noncustodial parent’s monthly child support obligation and remand the case
to the trial court to recalculate the amount of child support arrearage in a manner
consistent with this opinion.


                                          I.


      Brion Leonard Fabian Ford and Bettilynn Gay Ford were divorced in Davidson
County Circuit Court in February 1988 on irreconcilable differences grounds. Their
marital dissolution agreement provided that Ms. Ford would have sole custody of
their nine-year-old son, Jarrod Michael Ford, and that Mr. Ford would have visitation.
The agreement also required Mr. Ford to pay Ms. Ford child support of $50 per week
until the boy became eighteen or finished high school, whichever occurred later.


      The original child support award rested on Mr. Ford’s ability to pay child
support at the time of the divorce. When the parties divorced, Mr. Ford, the son of
nationally-known entertainer Tennessee Ernie Ford, was attempting without much
success, to make his living as an actor and singer. Although he continued to pursue
an entertainment career after the divorce, Mr. Ford also worked in 1990 and 1991 as
a motel desk clerk, earning $11,000 in 1990 and $8,700 in 1991. Since early 1992,
Mr. Ford has lived on an inheritance from his mother consisting of distributions from
a trust fund set up under his mother’s will.


      When Betty Jean Ford died in 1989, her estate established the Betty J. Ford
Testamentary Trust for the benefit of Mr. Ford and his brother. The trust was funded

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with a one-half interest in the artistic properties (royalty rights in audio and video
recordings and sheet music) of Tennessee Ernie Ford.1 The trust is managed by
trustees who are empowered to make investments and to make monthly distributions
of income to both Mr. Ford and his brother. The trustees may also, in their discretion,
make additional “hardship” distributions to Mr. Ford from the trust principal in order
to provide either for Mr. Ford’s reasonable support or for the reasonable support and
education of his son.


       Ultimately all the trust’s principal is to be paid to Mr. Ford and his brother.
According to the trust instrument, the principal is to be paid out on the following
schedule: one-half of Mr. Ford’s share after Mr. Ford reached thirty-five, one-half of
the remainder of his share after he reached forty, with the balance of his share payable
after Mr. Ford reaches fifty, if at that time Jarrod Ford is neither in college nor in
graduate school.


       From February 1992 through June 1996, Mr. Ford received $277,610 in
income and principal distributions from the trust, including a one-time distribution
of $70,125 in life insurance proceeds. The payments may be broken down as follows:
                                                      Trust           Hardship        Ernest & Betty
                                      Principal       Income          Principal       Ford Life Ins.
                                      Inheritance     Distributions   Distributions   Trust

Feb. 20, through Dec. 31, 1992       178,850
Year ended Dec. 31, 1993             (15,700)
Year ended Dec. 31, 1994                              9,072                           70,125
Year ended Dec. 31, 1995
       To equalize ‘92 / ‘93
       inheritance payments
       other ½ principal beneficiary 10,000                           14,863
Six months ended June 30, 1996                        4,900            5,500          ______

                                      173,150         13,972          20,363          70,125

       After Mr. Ford began receiving distributions from the trust, Ms. Ford filed a
petition in the Davidson County Fourth Circuit Court in August 1995, requesting
increased child support. Mr. Ford opposed the petition. Following a hearing in July
1996, the trial court granted Ms. Ford an increase in child support. The trial court
opined that Mr. Ford was underemployed and that Mr. Ford “ha[d] borrowing power
and that he ha[d] converted his cash inheritance to the payment of his own expenses.”
Accordingly, the trial court increased Mr. Ford’s child support obligation to $750 per


       1
         Tennessee Ernie Ford followed his wife in death on October 17, 1991. The evidence at trial
did not show that Brion Ford receives any income directly through his father’s estate.

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month and ordered him to pay Ms. Ford $5,333.30 retroactive to September 1, 1995.
The court also imposed a lien for child support on both Mr. Ford’s income from his
late mother’s trust and his real property.


                                             II.


      Mr. Ford mounts a multi-faceted attack on the trial court’s decision to increase
his child support obligation. He asserts (1) that the trial court erred in determining
that he was underemployed, (2) that the trial court miscalculated his income for
purposes of setting child support and (3) that the trial court incorrectly applied the
Tennessee child support guidelines. We review child support decisions using the
standard contained in Tenn. R. App. P. 13(d), affording the trial court’s factual
findings a presumption of correctness but without extending that presumption to the
trial court’s legal construction of the guidelines. See Haynes v. Haynes, 904 S.W.2d
118, 122 (Tenn. Ct. App. 1995); Seal v. Seal, 802 S.W.2d 617, 619 (Tenn. Ct. App.
1990).


                                             A.
                        MR. FORD’S UNDEREMPLOYMENT

      Tennessee’s child support guidelines establish a rebuttable presumption of a
minimum acceptable amount of support based on the noncustodial parent’s ability to
pay. The guidelines use a straightforward mathematical formula for calculating child
support. The presumptive amount of support for the obligor parent is a “flat
percentage of the obligor’s net income.” Tenn. Comp. R. & Regs. r. 1240-2-4-.03(2)
(1994). “Net income” ordinarily includes all the obligor parent’s income “from any
source,” Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(a), reduced by deductions for
withholding tax, FICA, and any other court-ordered child support the obligor is
paying.


      If the obligor parent is voluntarily unemployed or underemployed, Tenn.
Comp. R. & Regs. r. 1240-2-4-.03(3)(d) instructs the courts to calculate child support
based on evidenced earning capacity rather than on actual earnings. See Rust v.
Gerbman, No. 01A01-9608-CH-00361, 1997 WL 266844, at *3 (Tenn. Ct. App. May
21, 1997) (No Tenn. R. App. P. 11 application filed); Herrera v. Herrera, 944 S.W.2d
379, 387 (Tenn. Ct. App. 1996). Both Mr. and Ms. Ford argue at length about


                                             -4-
whether the trial court correctly found Mr. Ford to be underemployed and, if so,
whether his earning capacity for child support purposes should be based on his past
demonstrable work experience as a motel desk clerk and would-be entertainer.


      The evidence at trial showed that Mr. Ford is forty-six years old and that for
the last eighteen years he has pursued a career as an entertainer. He described show
business this way: “It’s my chosen profession. It’s what I know. It’s what I grew up
with. I have been around it all of my life. It’s what I am capable more of making a
decent living at more than anything else. I have no trade besides that.”


      Just how much of a “decent living” show business has provided for Mr. Ford
and his dependents is questionable. Before the divorce, Mr. Ford worked for two
years in one of the shows at Opryland. After the divorce, he made some radio
commercials, sang for eight months in a gospel singing group, and sang in hotel bars
as a duet partner with his uncle. He appeared on a TNN show once with his father
and one time later to promote the re-issuance of one of his father’s recordings. When
asked at trial what he had done recently in the entertainment field, Mr. Ford replied,
“It’s been very slow for the past several years.” When later asked why he kept trying,
he told the court, “It’s what I believe in. I know there is a golden check out there for
me somewhere and I will not give up my dream.”


      Notwithstanding Mr. Ford’s hope for a “golden check out there,” his tax
returns show that as an entertainer Mr. Ford lost $3,013 in 1992; lost $1,899 in 1993;
and lost $1,565 in 1994. Given Mr. Ford’s long history of marginality as a
commercial performer, there is little likelihood that Mr. Ford will ever be a successful
entertainer. Any reasonable person who recognizes that he or she has little future in
the entertainment business would realistically pursue something else. Mr. Ford seems
to be squandering his inheritance on a vain hope that he will one day be a successful
entertainer. On the evidence in the record, this court understands why the trial court
characterized Mr. Ford as underemployed.


      The trial court did not make a factual determination of Mr. Ford’s potential
income as contemplated by Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(d). Thus, we
conclude that the trial court’s decision was not driven by its belief that Mr. Ford was
voluntarily underemployed but rather by the income that Mr. Ford had actually
received from the Betty J. Ford Testamentary Trust. Because the trial court looked

                                          -5-
to income Mr. Ford actually received, not his potential income if he pursued other
employment, all the argument concerning whether Mr. Ford is voluntarily
underemployed is a legal non-issue on this appeal.


                                          B.
        MR. FORD’S INHERITANCE AND LIFE INSURANCE DISTRIBUTIONS

      While the trial court’s order does not expressly explain how it calculated Mr.
Ford’s revised child support obligation, both parties concede that the trial court must
have based its decision on the income Mr. Ford had been receiving from the Betty J.
Ford Testamentary Trust. Mr. Ford contends that inheritance, in general, should not
be considered gross income for child support purposes and, that if inheritance can be
considered in setting child support, only distributions made of trust income, not
distributions made of trust principal, should be considered.


      Determining the obligor parent’s income is an indispensable part of every child
support proceeding. See Turner v. Turner, 919 S.W.2d 340, 344 (Tenn. Ct. App.
1995). Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(a) defines “gross income” to
include “all income from any source . . . whether earned or unearned.” Thus, money
received by inheritance can be considered as income under the guidelines. See
Lescher v. Lescher, 679 S.W.2d 463, 465-66 (Tenn. Ct. App. 1984); see also In re
Marriage of Armstrong, 831 P.2d 501, 503 (Colo. Ct. App. 1992); Connell v.
Connell, 712 A.2d 1266, 1269 (N.J. Super. Ct. App. Div. 1998). Accordingly, we
hold that the trial court correctly considered all the funds Mr. Ford received from the
Betty J. Ford Testamentary Trust in determining Mr. Ford’s child support obligation.


      However, inheritance, like other income, can sometimes come to a recipient
over a span of time. That matters, because courts setting child support ordinarily look
not so much to the source of the income — whether inheritance, wages, or lottery
winnings — as they look to the dependability of its continued receipt. See, e.g.
Crayton v. Crayton, 944 P.2d 487, 490 (Alaska 1997) (ordering a trial court in setting
child support to consider as income money given by a father to his obligor daughter
where it was undisputed that the cash gifts would continue through time).


      Courts should be wary of increasing child support based on possible income
that is merely speculative. See Whisenhurst v. Whisenhurst, No. 02A01-9506-CV-


                                          -6-
00126, 1997 WL 305296, at *3 (Tenn. Ct. App. June 9, 1997) (No Tenn. R. App. P.
11 application filed). Instead, they should focus on “income regularly received by
the obligor.” See Whisenhurst v. Whisenhurst, 1997 WL 305296, at *3; see, e.g.,
Smith v. Smith, No. 01A01-9705-CH-00216, 1997 WL 672646, at *3 (Tenn. Ct. App.
Oct. 29, 1997) (No Tenn. R. App. P. 11 application filed) (allowing courts to consider
capital gains from exercised stock options where there is no indication that such stock
options to the obligor will cease); Moore v. Youngquist, No. 01A01-9012-CH-00433,
1991 WL 57982, at *1 (Tenn Ct. App. April 19, 1991) (No Tenn. R. App. P. 11
application filed) (holding that lottery winnings paid to the lottery winner regularly
over time should be considered income for purposes of determining child support).


      As far as this record shows, the Betty J. Ford Testamentary Trust will continue
to be a source of income to Mr. Ford for as long as he will be required to pay child
support. Even though the size of the corpus of the trust was diminished by litigation
with Tennessee Ernie Ford’s second wife, the trust contains sufficient assets and
received sufficient income to pay Mr. Ford the $20,000 corpus distribution due in
1992 and an estimated $77,000 corpus distribution in 2002. In addition to these
distributions, a co-trustee testified that Mr. Ford would receive between $14,000 and
$15,000 per year in income distributions.


      The trial court correctly considered the ongoing distributions from the Betty
J. Ford Testamentary Trust as income to Mr. Ford for child support purposes. And
it mattered not whether that income stream came from regular inheritance
distributions of trust principal, from allowable hardship distributions of trust
principal, or from income coming into the trust, as long as funds remain in the trust.


      The trial court should not, however, have included the one-time distribution of
the $70,125 in life insurance proceeds in its calculation of Mr. Ford’s income. Mr.
Ford’s parents set up the Ernest and Betty Ford Life Insurance Trust before their
deaths. The sole purpose of this trust was to receive and distribute the proceeds of
his parents’ life insurance policies, and the trust was designed to terminate after the
one-time distribution of proceeds was made. This distribution occurred one year
before Ms. Ford filed her petition, and “there is . . . nothing in the record to suggest
that [Mr. Ford] will . . . be the beneficiary of additional [life insurance proceeds] in
the future.” See Smith v. Smith, 1997 WL 672646, at *3. Accordingly, the trial court



                                          -7-
should not have included the $70,125 in life insurance proceeds in arriving at Mr.
Ford’s average annual income for child support purposes.


                                           C.
                    MR. FORD’S CHILD SUPPORT OBLIGATION


      After ascertaining the obligor parent’s income, the guidelines require the court
to calculate the obligor parent’s monthly child support obligation using set
percentages. See Tenn. Comp. R. & Regs. r. 124-2-4.03(5) (1997). That amount of
support is then presumptively correct. See Tenn. Comp. R. & Regs. r. 1240-2-4-
.02(7) (1994).


      Mr. Ford has no fixed wages or salary, and his inheritance income has varied
through the four years immediately preceding trial. All evidence indicates that the
inheritance income will continue to vary up until Mr. Ford receives the last of the
trust principal in 2002. The guidelines provide that variable income should be
averaged. See Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(b); Smith v. Smith, 1997
WL 672646, at *3; Anderton v. Anderton, No. 01A01-9701-CH-00013, 1998 WL
289338, at *4 (Tenn. Ct. App. June 5, 1998) (Tenn. R. App. P. 11 application
pending). Averaging is appropriate in this case because Mr. Ford received $207,485
from the Betty J. Ford Testamentary Trust between February 1992 and June 1996.


      We compute Mr. Ford’s modified child support thusly:
      Total incom e to Ford fro m trust,
      excluding life insurance proceeds,
      from February 1992 to June 1996 (53 m onths)              $207,485

      Average gross monthly income
      from trust for the 53 month period                        $3,914.81

      Amoun t of monthly child sup port
      for one child under the guidelines                        $602

      We concur with the trial court’s conclusion that the modifications to Mr. Ford’s
child support obligation should be made retroactive to September 1, 1995. See Tenn.
Code Ann. § 36-5-101(a)(5) (Supp. 1998). We also agree that Mr. Ford should
receive credit for all child support payments he has made during this period and while
this case has been on appeal. Accordingly, on remand, the trial court should
recalculate the amount of Mr. Ford’s lump sum child support obligation in
accordance with this opinion.

                                           -8-
                                         III.
                        THE AWARD OF ATTORNEY’S FEES


      As is common in child support modification appeals, Mr. Ford takes issue with
the trial court’s order directing him to pay the legal fees Ms. Ford incurred in the
proceedings in the trial court. Decisions to award attorney’s fees in child support
cases are discretionary with the trial court. See Tenn. Code Ann. § 36-5-103(c)
(Supp. 1998). As a general matter, the courts allow custodial parents to recover their
legal expenses in successful child support modification proceedings when these
expenses are reasonable and appropriate. See Deas v. Deas, 774 S.W.2d 167, 169
(Tenn. 1989); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. Ct. App. 1993). Our
court will not interfere with these decisions absent a showing of an abuse of
discretion. See McCarty v. McCarty, 863 S.W.2d 716, 722 (Tenn. Ct. App. 1992).
      Mr. Ford has the burden of proving that the evidence does not support the trial
court’s award of attorney’s fees to Ms. Ford. See Threadgill v. Threadgill, 740
S.W.2d 419, 426 (Tenn. Ct. App. 1987). He has failed to carry that burden. His
argument that Ms. Ford can pay her legal expenses from the lump-sum award of child
support he has been ordered to pay overlooks the fact that child support awards are
intended to benefit the child, not the parent. The record contains no evidence of
either Ms. Ford or Jarrod Ford’s financial condition. Accordingly, there is no
evidence to support Mr. Ford’s contention that the lump sum support award is
sufficient to meet the child’s needs and to pay Ms. Ford’s attorney’s fees.


      Ms. Ford also requests an additional award to defray her legal expenses on this
appeal. As to that request, we disagree with her assertion that Mr. Ford has pursued
an unnecessary appeal. In light of our conclusion that the trial court should not have
considered the one-time distribution from the Ernest and Betty Ford Life Insurance
Trust, we conclude that this appeal has involved more than Ms. Ford merely
“vindicating [a] right” to an increase in child support. Cf. Richardson v. Richardson,
969 S.W.2d 931, 936 (Tenn. Ct. App. 1997). Mr. Ford’s appeal was “partially
successful,” see Young v. Young, 971 S.W.2d 386, 393 (Tenn. Ct. App. 1997), and,
therefore, we deny Ms. Ford’s request for an award of her attorney’s fees and costs
on appeal.


                                         IV.



                                         -9-
      We affirm the judgment as modified herein and remand the case to the trial
court for the entry of an order setting out Mr. Ford’s monthly child support obligation
and calculating his lump-sum child support obligation in accordance with this
opinion. We tax the costs of the appeal to Brion Leonard Fabian Ford and his surety
for which execution, if necessary, may issue.



                                        ____________________________
                                        WILLIAM C. KOCH, JR., JUDGE


CONCUR:



______________________________________
HENRY F. TODD, PRESIDING JUDGE, M.S.



______________________________________
SAMUEL L. LEWIS, JUDGE




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