*1 an unforseeable it does not constitute since a criminal statute.
judicial enlargement of affirm, separate on the we stated, judgment grounds the de- upheld which of Criminal degree mur- conviction of second fendant’s that the defendant appearing der. It paid indigent, costs will be this cause is of Tennessee. the State HOLDER, C.J., BIRCH, ANDERSON, BARKER, JJ., concur. BROOKS, Lorraine
Deborah Plaintiff/Appellant, BROOKS, Rickey Lamar Defendant/Appellee. Tennessee, Supreme Court at Knoxville. 1, 1999. June *2 404
OPINION
BARKER, J. granted this to determine We whether the and the trial court erred in their determinations of the by the paid to be Although both the trial child’s father. court and the Court of determined monthly payment that the total should be hundred dollars increased from four ($400.00) fifty to six hundred dollars ($650.00),each court reached its conclusion upon different reasons. conclude that We both courts erred and that the base amount should have been per month. pay the child’s edu- Brooks shall expenses per parties agreement. cation support, setting the amount volun- we hold: that Mr. Brooks was (2) that he tarily underemployed; private school pay the costs for Ac- tuition under the facts of this case. courts and cordingly, we reverse the lower trial court for remand this case to the with this proceedings further consistent opinion.
STANDARD OF REVIEW this, role, Our in cases such of the trial court de to review the record that the deci presumption novo with the to the respect of the trial court with sion prepon correct the evidence facts is unless factual determina against derates such Farrar, tions. Farrar (Tenn.1977). case, however, In this 743 findings of fact the trial court made no specific despite appellant’s motion of law findings of fact and conclusions R. P. 52.01. The pursuant to Tenn. Civ. conclusions of trial court did issue written motion, but not response law in of fact. Both the memorandum findings Painter, Cleveland, Appel- Barrett T. simply con and order of the trial court lant. clude, that Mrs. explanation, without Cleveland, to an increase Brooks is not entitled Bryant, Appel- D. Michell pay Mr. Brooks shall support, lee. Trust torney Guaranty Compa- total for Title expense child, At ny Chattanooga, minor and that each his or Tennessee. party attorney salary fees. there own her annual hearing, time of may a fact nothing found as which we addition, in 1994 she re- *3 Therefore, presume correct. under these $14,229.00 ceived rental income from the circumstances, we must conduct our own her buddings two office awarded in the of the independent review record to deter divorce. preponderance mine evi where of the divorce, At the of the Mr. Brooks time Patterson, dence Devorak v. 907 lies. agent for employed was as a sales Ben 815, (Tenn.App.1995); S.W.2d 818 Good $21,- earned Company Milan Tire and Comm’n, Memphis man v. Park 851 in In employment. 981.00 1991 from that 165, (Tenn.App.1992); Kelly S.W.2d 166 in he had that same interest 458,
Kelly, (Tenn.App 460 $8,908.00 capital gains of of income and .1984).
$5,529.00. proceeds he With his divorce Benton, in purchased land Tennes- some BACKGROUND 1992, In opened gas see. he a Conoco appellant, The Deborah Lorraine portion on a station and convenience store Brooks, appellee, Rickey and the Lamar adjusted gross in- property. of that Brooks, in were divorced 1990 in the Cir- $60,966.00. in During come 1992 County. cuit Polk Court of The 1993, he Milan Tire resigned Compa- from required order of divorce ny management to concentrate on the of per month as child $400.00 spend and to more the Conoco store time parties’ four-year-old son. Additional- 1993, his total earnings with son. In his ly, required Mr. Brooks was maintain from the store and Milan Tires Conoco hospitalization insurance the benefit of $95,350.00. addition, in that were same the child. The divorce decree awarded and he interest had residence, subject mortgage, to its 1994, $10,293.00. gains totaling buildings and office two Mrs. Brooks. earnings operation of the Conoco from was awarded personal Brooks certain $102,087.00. store rose He also realized account, items, automobiles, his IRA two $297,467.00 from the capital gains sale $175,000.00 and in cash. profit- store and several convenience 1995, In March Mrs. Brooks a peti- filed able real and timber transactions. estate tion in trial court for an increase speculated Mr. Brooks testified that he modify and to Mr. Brooks’ planned activity. land and to continue that response, visitation.1 Brooks filed a counter-petition requesting that Although very the Conoco store suc- require court Mrs. Brooks to pay one-half cessful, voluntarily sold it in Mr. Brooks private schooling the cost of their child’s Thereafter, living began 1994. he off of for an increase his visitation. of interest income from bank account $500,000.00 approximately all devoted at The introduced the eviden- evidence up operation of time to the start of tiary hearing established in 1991 Mrs. 159 approximately cattle farm on acres the residence she had been sold clear. of land which he free and He owned part awarded in the divorce used a 1,000 of land adjoining testified that acres proceeds legal to finance a at education farm and that he had was for sale been Tennessee University College he 1994, advised Bank that could Benton Following graduation Law. $200,000.00 apply borrow cost successfully completed she the bar exami- employment purchase. at- nation and obtained as an appeal. 1. There is no issue visitation in this
According entry to Mr. in the per year first six increase since the months of he original received order. The court intermediate farming interest but had incurred opinion present was of the the amount of Ac- reliably come of Mr. Brooks had been cepting farming expenses those as accu- Concluding per- established. that the ten rate, (10%) his net income was applicable cent annual increase was 1, 1995, January through July to the circumstances of this the in- return, exhibit, His 1995 tax filed as a late appellate termediate court concluded adjusted $25,- listed his income as properly the child set 888.00for that entire month, presuming at that the $645.00 yearly compounded. increases were Rea- *4 Chattanooga Mrs. Brooks moved to that tu- soning private since the school parties agreed the to send their monthly, ition approximately $250.00 School, Boyd private son to Buchanan a Appeals the Court of increased the in Chattanooga. The tuition for the monthly support payment child due from $3,156.00, plus 1995-1996 month, Mr. Brooks to but $650.00 for materials. Mr. Brooks $100.00 gave him credit on that amount for the responsibility to assume the for those ex- required school tuition he was penses. Mr. stated Thus, pay by the trial court. the Court only extended to the first Mrs. Appeals affirmed the trial court’s deci- Brooks testified Mr. Brooks told her monthly regarding sion the total sum long that he would the tuition “as be Mr. Brooks. go wanted to there.” [Eric] Following evidentiary hearing an on 17, 1995, July the trial court held that the DISCUSSION appellant was not entitled to an increase presents unique This ease an set of support, required child but sup factual The record circumstances. full paying continue his son’s tuition to ports implicit findings of the Court of Boyd Buchanan The trial court School.2 Appeals liquidated that Mr. Brooks any attorney’s declined to award fees tax 1994 to during Conoco business
Mrs. Brooks. decrease both his income and his child Appeals The Court of concluded that the support obligation. He derived a substan in deciding trial court had erred that Mrs. capital gain tial from the sale of his Conoco Brooks was not entitled to an increase in an business and did work earn support. child an in 1995. His 1995 employee income as (1) taxable in The Court of found Mr. income was derived from: $38,109.00 voluntarily underemployed (appar Brooks to terest in the amount of be earned, part, from capable earning ently a substantial in- interest at least (2) sale); and calculating proceeds come. what it to consid- of the Conoco income was proper capital gains ered to This $249.00. $12,470.00for a upon by farming due the evidence and offset loss of based $25,888.00 Guidelines, adjusted gross total income of Support the 1994 Child the decrease upon Despite Court of relied Tenn. 1995. 2—4—.03(3)(f) standard Regs. R. ch. Brooks’ actual income Comp. (10%) change in 1995. percent living apparently did not apply a flat ten Although ally signed the trial court several months the record contains a memo dated 14, 1996, later, February signed by judge, following an in-chambers conference containing finding parties "the have judge parties, or- between the trial and the mutually agreed that cost of tuition for the responsible solely dered Mr. Brooks to school shall be minor child to attend expenses. private school equally by party,” order actu- borne each ... capital gain annuities, income, trust is whether before us The issue now self-employment.”). should be support obligation Brooks’ child or, however, is derived Where, capital gain 1995 income of on his based provided underemployed, should be based sale of a business if he is from the indepen- source of earning potential. obligor’s principal Our leads in part the record in this case dent review of business obligor liquidated conclude, Ap- as did the Court of and the obligations, us to to avoid child willfully and Brooks was voluntarily underem- peals, found to be obligor is underemployed at the time calculated as may be ployed, evidentiary hearing July 1995. The deriving an income obligor is still will- obligor “If an provide: Guidelines if the and as from the business voluntarily unemployed or under- fully and gain from the sale never realized calculated employed, shall be of the business. potential a determination of
based on Mr. Brooks is have held that We come, level by educational as evidenced im and have voluntarily underemployed experience.” on puted an income 1240-2-4-.03(3)(d). R. & *5 his prior liquidating he made the income underemployed calculating an impute then Were we to Conoco business. the Court obligor’s potential capital income based on additional obligor’s edu required to consider his Conoco from sale of gains derived Mr. prior experience. cation store, dipped” have “double we would college graduate and has Brooks is Accord imputed income. calculating his of a history proprietor as a successful sole the facts of this ingly, under speculator. a land The business and as from the sale of the gains derived capital store earnings he derived from the Conoco when not be considered Conoco store shall earning ca were the best evidence in support child imputing Mr. Brooks’ petition the time the for pacity at or near come. an increase in was filed. One generated prior hearing, the store Next, upon in this we are called Moreover, $102,087.00. since profits ex educational to address whether case Mr. record in this case contained Brooks’ are considered private schooling for penses 1991, 1992, 1993, years tax returns for expenses.” “extraordinary 1994, 1995, erred Guidelines establish Support The Child that reliable evidence of concluding a minimum presumption rebuttable not in the earning potential Brooks’ Ann. support. Tenn.Code R. & 1240- Comp. Regs. Tenn. record. (1996). gener Obligor parents § 36-5-101 4—.03(3)(f). impute Mr. Accordingly, we minimum child their ally cannot decrease purposes Brooks’ income for child merely by other obligations paying hearing the trial at the time of the before See children. expenditures their at court in this case 945, 950 Dwight, Dwight v. obligor cannot (holding (Tenn.App.1996) also appellant, Mrs. The tu private school payments deduct his trial court and Court of argues that per mandatory twenty-one from his considering ition erred not cent.). expense education calculating private gains income in Whether Brooks’ or a extraordinary expense an education Generally, support obligation. under of the mandatory expense in the definition capital gains are included 1240-2-4-.04(2) it is a or whether R. & Rule income. See ordered 2—4—.03(3)(a) may discretionary expense in (defining Regs. ch. 1240— “appropri in the salaries, apportioned equitably commis “wages, to include come Comp. R. interest, bonuses, case under Tenn. sions, ate” pay pensions, March impres- Court shall be effective as of is an issue of first ch. 1240-2-4-.04 filing petition the date of sion. pay Mr. Brooks shall for modification.3 us, howev this case now before tuition for the private school er, seeking to reduce his Mr. Brooks is not minor child in the total sum of obli twenty-one percent base for the 1995-96 school Brooks gation. The issue is whether Mr. parties. of the' This cause is private pay be ordered to the costs of shall determine remanded to the trial court to twenty-one school tuition addition to tuition to be private the amount of school Mr. and Ms. percent obligation. Both subsequent school paid by Mr. Brooks for at agreed Brooks that their child should attorney’s years and to set reasonable argued private tend school. Mr. Brooks fee to Mr. Brooks. private agreed only pay that he for the first Ms. assessed expenses of this shall be Cost alleged agreed Brooks that Mr. Brooks Mr. Brooks for which execution against responsibility necessary. the full financial may assume issue expenses. private school tuition and implicitly The trial court found ANDERSON, C.J., BIRCH responsibility assume HOLDER, J.J. ordered BIRCH, J., dissenting opinion. Separate The pay expenses. those preponderate against evidence does not DROWOTA, J., participating. We, therefore, judge’s findings. hold that Mr. Brooks shall BIRCH, Jr., Justice, A. ADOLPHO *6 expenses pursuant dissenting. need not address and we has based apparent It that this Court is expenses are ex whether willfully Brooks is and finding its in all traordinary the voluntarily underemployed simply on cases. he, time, lucra- at one was more fact that independent re- Finally, upon based our parent employed. Simply because tively case, in we hold view of the record this during lucratively employed as is not as Lorraine appellant, the Deborah that thereafter, no or for a time marriage, the Brooks, to a reasonable attor- is entitled he or she is will- inference that automatic Rick- ney’s appellee, the fee underemployed voluntarily fully and in to assist her ey Lamar cogni- We must remain should be drawn. nec- attorney’s fees made payment of citizen to the parents right as a zant of in this matter. On essary by freedom to and to the pursuit happiness of remand, determine the the trial court shall decisions, employment reasonable make those fees. proper amount of duty to heeding time while at the same support. CONCLUSION specific of crite- of the absence to Mr. Because imputed will be Child underem- determining just what of ria for earning capacity upon Brooks based sup- ployment purposes is for unique circum- Under in statutes, dissent separately I write case, port not capital gains will stances of this finding of underem- in that a urge income. order compute Mr. Brooks’ be used only after in reached this case be ployment is awarded to the trial scrutinizing the soundness of in amount of Ms. Brooks analysis. courts by ordered this month. The child 36-5-101(a)(5). §Ann. 3. See Tenn.Code (1) underemployed: willfully voluntarily volun- and parent is and
Whether meaning in area tarily underemployed within the rates the local prevailing wage (2) R. & tit. special skills occupations; various 1240-2-4-.03(3)(d)(amended 1994)1 (3) is training by parent; possessed and by court matter to be determined employment which availability the facts and circumstances (4) whether the parent qualified; is Unfortunately, each 1240-2-4- case. Rule a bona underemployment represents fide .03(3)(d), provide specific guidelines fails to outweighs career that adverse change determining voluntary what underem- income; and effect of the diminished ployment merely is. The statute states underemployment whether a is parents this determination evidenced temporary ultimately lead to an and will educational level work ex- increase income. perience. conclusion, In appellate trial and courts Mr. Brooks was will- this found of restraint should exercise a measure fully underemployed due deciding child-support that a part adjusted gross to his annual income willfully voluntarily underemployed. $105,6432 $102,087, 1993 and view, my obligated parent realized respectively. he make have the rea- opportunity same $297,467from the sale of the store Conoco sonable decisions he or employment several transactions real estate and under a she could have made child- timber in 1994. After the sale of any employ- Inherent order. store, Mr. Conoco Brooks worked full-time risk. degree ment decision is a Risk on farming operation. was to goal courts should be reluc- notwithstanding, registered Angus raise beef [a] cattle with parents stifling tant to force to remain genetically superior in hopes bloodline pursuit employment situations or block potentially his farm property w[ould] one advantageous employment, more wheth- day worth millions of dollars. Howev- instantly er the benefit is realized de- er, $18,838.57in he earned interest income Thus, ferred. I would remand this cause incurring a farming while ex- to the trial for reconsideration this court pense. brought his earning This for the *7 with the views herein ex- issue' consistent first of 1995 to six months pressed. tax return reveals a taxable $25,888 for the Assessing willfulness and voluntariness
is essentially question of fact. The trial
court has considerable discretion when de- termining parent whether meets the def- underemployed. inition of But with discretion, there should be guidance some application ques- statute in rationally tion it is I applied. so that propose following fac- additional tors trial helpful would be courts who a parent willfully
must decide whether 1240-2-4-.03(d) earnings 2. This includes the total Rule states: "If an amount willfully unemployed un- and Milan Tires which Conoco store deremployed, $95,350 $10,293 shall be calculat- from interest in- potential ed a determination of based on gains. come and come, as evidenced level experience.”