Opinion
No. W2000-00935-COA-R3-CV
Filed June 25, 2001 January 23, 2001 Session
An Appeal from the Circuit Court for Shelby County, No. 152811 R.D. John R. McCarroll, Judge
Affirmed in Part and Modified in Part.
Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellant Jack Gerald Leach.
S. Denise McCrary and Stephanie M. Micheel, Memphis, Tennessee, for the appellee Denise LaForce Leach.
OPINION
This is a post-divorce dispute over the mother's desire to relocate with the parties' two minor children. Denise LaForce Leach ("Mother") and Jack Gerald Leach ("Father") were divorced in November 1997. They have two minor children: Aaron, born in 1988, and Alexis, born in 1992. The parties' marital dissolution agreement provided, inter alia, that Mother would have sole custody of Aaron and Alexis with Father having liberal and reasonable visitation, including alternate weekends and Jewish holidays. The MDA also provided that Father would pay sixteen hundred dollars ($1600) per month in child support and $10,000 in private school tuition fees per year. Since the divorce, the relationship between the parties has been acrimonious, with many petitions and counter petitions filed since the final divorce decree.
In February 1999, Father filed a petition to reduce his child support payments. In March 1999, Father filed a petition for attorney's fees regarding a prior tax issue heard by the trial court. No action on either petition was taken at that time.
In a letter dated October 18, 1999, Mother notified Father of her intent to move with Aaron and Alexis to Hilton Head, South Carolina. The letter stated that the purpose of the relocation was career advancement and the acceptance of new employment. Father filed a petition with the trial court in opposition to Mother removing the children from Tennessee. Father alleged that the proposed relocation was not in the children's best interest and, in the alternative, that the purpose for the relocation was not reasonable and Mother's motives for moving were vindictive, intended to defeat or deter his visitation rights. In light of Mother's proposed relocation, the trial court deferred a hearing on Father's petition to reduce child support until after the relocation issue was resolved.
Prior to the hearing on Father's petition, the parties stipulated that they do not spend substantially equal intervals of time with the children. At the hearing in January 2000, Mother testified that she is a licensed aesthetician, performing facials and skin care procedures. For the last five years, she had owned and operated an aesthetician business. Mother acknowledged in her testimony that she had an established clientele in Memphis and her revenues had steadily increased over the last three years. Nevertheless, she asserted that the job in Hilton Head would be a career advancement because it offered opportunities not available in Memphis or the surrounding areas. She said that the spa at which she would be employed in Hilton Head was a fully staffed facility renowned for its anti-aging techniques. Mother testified that she had reached her maximum earning capacity in Memphis, and accepting the position in Hilton Head would result in increased income because she would have less competition and could charge more per treatment, sell more skin care products, and decrease her overhead expenses. She testified that, in Hilton Head, she was guaranteed an existing client base, could perform consultations with the doctors at the spa, could conduct workshops, and would benefit from the spa's advertising. Mother acknowledged that she had not been guaranteed a specific amount of money from the spa, nor had she signed a contract.
Mother testified that, if she were allowed to relocate, she was willing to give Father more visitation with Aaron and Alexis than that which was set forth in the MDA. She said that she would allow the children to be in Memphis for longer periods, such as long weekends during the school year, the three weeks between school grading periods, all Jewish holidays, during the summer, and any other time recommended by the guardian ad litem. Mother asserted that Father would get reasonable telephone visitation with the children and that she would permit the children to visit Father's extended family in Memphis whenever his family wanted to see them. Mother acknowledged that she believed that life would be easier if Father were not around, but denied that the purpose for the move was to deter or interfere with Father's visitation.
At the conclusion of the hearing, the trial court denied Father's petition and found that Mother should be allowed to move with the parties' children to South Carolina. The trial court found that Mother's motive for the proposed relocation was not vindictive and there was no attempt to defeat or deter Father's visitation rights, as evidenced by Mother's proposal to modify visitation to give Father more access to the children. The trial court determined that the Mother's purpose for relocation was career advancement, a reasonable purpose. In light of this holding, the trial court modified the visitation agreement set forth in the MDA. Father appealed this order.
After resolving the issue of Mother's proposed relocation, the trial court held a hearing on Father's petition to reduce child support. At the hearing on Father's petition to reduce child support, Father asserted that the amount of the child support he agreed to pay at the time of the divorce should be reduced because there was a significant variance between the amount of child support he was paying and the amount he would be required to pay under the child support guidelines. Under the parties' final divorce decree, Father was required to pay $1,600 per month in child support. Father testified that he had been employed by City Leasing since March 1995, but had never earned significantly more than$10,000 per year. At the time of the divorce, he owned three parcels of revenue-producing commercial real estate. However, by the time he filed the petition to modify, he had sold two of the parcels and the remaining parcel was no longer being rented. Father ultimately sold the last parcel for a net profit of $455, 600. Father's remaining assets at the time of the hearing included a Merrill Lynch CMA account worth $347, 785, and a Merrill Lynch IRA account worth $ 257,278. Father testified that, for more than a year prior to the hearing, he had to deplete his accounts to satisfy his child support obligation.
The trial court instructed both parties to prepare a statement calculating Father's child support obligation, using Father's $10,000 income from City Leasing, imputing a reasonable rate of return to Father's assets, including the profit from the sale of the last remaining parcel of real property, and taking into account Father's reasonable travel costs resulting from Mother's relocation with the children. In his calculation, Father determined that, under the child support guidelines, based on his annual income and when given credit for travel costs, he would have a monthly obligation of $66 — $266. However, Father proposed that he should pay $350 per month in child support and be responsible for the children's travel expenses. In her calculation, Mother determined that pursuant to the guidelines Father would have a monthly support obligation of $1664. Mother argued that there was no significant variance between the guideline amount and Father's support obligation under the MDA. Mother asserted that Father's obligation since the divorce had actually been reduced, because he was no longer required to pay the $10,000 private school tuition because the children would not attend private school in South Carolina. In light of this, Mother proposed that Father be responsible for the children's transportation costs up to $10,000, after which the parties would split the children's transportation cost.
In an order dated June 23, 2000, the trial court denied Father's petition to reduce his child support obligation, finding that Father was not entitled to a reduction. The trial court ordered the parties to equally divide the children's travel expenses, and ordered Father to pay his own travel expenses relating to the children's relocation up to $10,000, after which the parties should divide Father's further travel expenses.
Both parties requested attorney's fees in relation to the relocation and child support issues. Both parties' requests for attorney's fees were heard in conjunction with the final arguments on the petition to modify Father's child support obligation. In its June 23, 2000 Order Regarding Child Support and Attorney's Fees, the trial court ordered Father to pay $10,000 in Mother's attorney's fees related to the litigation over the child support modification. The amount awarded included an offset for Father's attorney's fees on the previously heard tax issue. From this order, Father also appealed. On August 11, 2000, the trial court entered an order consolidating Father's appeals.
On appeal, Father argues that the trial court erred in permitting Mother to relocate with the children because her relocation did not have a reasonable purpose. He contends that, contrary to her stated motive of career advancement, Mother's real reason for relocating was vindictive and intended to deter or defeat his visitation rights. Father also argues that the trial court erred in denying his petition to modify the amount of his child support obligation. He asserts that there is a significant variance between the amount he currently pays and the amount he would be required to pay under the child support guidelines based on his income. He also asserts that he was entitled to a reduction in child support based upon the travel expenses he will incur incident to Mother's relocation. In addition, Father argues that the trial court erred in ordering him to pay $10,000 towards Mother's attorney's fees.
Our review of the trial court's ruling on the relocation and modification of child support issues is de novo with a presumption of correctness in the trial court's findings of fact unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Connell v. Connell , No. 03A01-9808-CV-00282, 2000 WL 122204 (Tenn.Ct.App. Jan. 25, 2000); Dwight v. Dwight , 936 S.W.2d 945 (Tenn.Ct.App. 1996). The trial court is afforded discretion concerning whether to award attorney's fees in a divorce case. See Long v. Long , 957 S.W.2d 825, 827 (Tenn.App. 1997). On appeal, an appellate court shall not interfere with the trial court's decision except upon a showing of an abuse of that discretion. Id .
Father argues first that the trial court erred in permitting Mother to relocate with the children. Parental relocation in child custody cases is governed by Tennessee Code Annotated § 36-6-108. See Tenn. Code Ann. § 36-6-108 (Supp. 2000). Subsection (d) of this statute states that when the parties are not spending substantially equal intervals of time with the children, the parent spending more time with the children will be permitted to relocate with them unless the court finds one of the following:
(1) The relocation does not have a reasonable purpose;
(2) The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of a change of custody; or
(3) The parent's motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.
Id .
Father maintains that Mother's relocation does not have a reasonable purpose. He contends that Mother's new employment in Hilton Head does not constitute career advancement because Mother is abandoning a successful, secure, and growing business in Memphis for new employment with an unknown client base and no guarantee as to the amount of compensation. He argues that she would essentially being doing the same type of work in Hilton Head as she does in Memphis.
In Connell v. Connell , No. 03A01-9808-CV-00282, 2000 WL122204 (Tenn.Ct.App. Jan. 25, 2000), the Court held that the acceptance of a job which would provide an opportunity for career advancement was a reasonable purpose for relocation under the statute. Id . at *4. In Connell , the mother had reached her maximum earning potential in her position at Kinko's Copy Service in Chattanooga, unless she accepted a position as a regional sale manager, which would require three weeks of travel each month. Id . at *1. The mother was offered a position at Kinko's in California, where she could earn a greater income based on higher commission and did not have to travel. In addition, the job at Kinko's in California was within three hours of the mother's immediate family. Id . The court found that the mother's acceptance of a job which provided for advancement within the corporation as well as greater income potential was clearly a reasonable purpose. Id . at *4.
In this case, Mother testified that the position in South Carolina, though similar to her current job, would offer career opportunities not currently available to her, as well as the potential for greater income. Mother's testimony was unrebutted that, in her new employment, she would have less competition, and would be working at a facility which was renowned in her field, and could offer services not available in Memphis. She would eliminate most of her overhead, increase her client base, have a full-time receptionist paid by the spa to assist in scheduling appointments and selling products, and would benefit from advertising provided by the spa. Mother testified that she could charge a higher rate for her services in Hilton Head. Under all of these circumstances, the evidence does not preponderate against the trial court's finding that Mother's relocation to South Carolina had a reasonable purpose.
Father next argues that, contrary to Mother's stated purpose of career advancement, the true motive for Mother's relocation was vindictive, intended to defeat or deter his visitation rights. In support of his argument, Father points to Mother's acknowledgment that life would be easier in South Carolina without Father around. He asserts that this statement, in conjunction with Mother's disregard to certain conditions in the parties' marital dissolution agreement regarding the children's education and her unilateral decision making regarding the children's medical treatment, evidence that the true motive for her relocation is vindictive. Father contends that, because Mother's reason for relocating was vindictive, the trial court should have determined whether Mother's proposed relocation was in the best interest of the children
In Caudill v. Foley , No. 01A01-9903-CH-00187, 1999 WL 976597 (Tenn.Ct.App. Oct 28, 1999) ( perm. to appeal den. Apr. 17, 2000), this Court found that the trial court erred in finding that the mother's motive for relocating was vindictive, based on the mother's dislike of the father's new wife. Id . at *8. The appellate court held that, under section 36-6-108(d), a parent's motive for relocating is vindictive "if it is intended to defeat or deter the visitation rights of the other parent." Id . The appellate court found that the mother's motive for relocation was not vindictive, based on the fact that the mother had offered the father a revised visitation schedule allowing him to spend substantially the same amount of time with the children and the mother's testimony that she would do "whatever it took" to ensure that the children maintained a good relationship with their father. Id .
The evidence in this case is similar. Mother acknowledged that she believed that life would be easier without Father around. However, she proposed a revised visitation schedule which would allow Father to spend more time with the children than the visitation schedule prior to the move. In addition, Mother testified that Father's extended family could visit the children anytime they wanted to see them, and that the children could have reasonable telephone visitation with Father. In light of this evidence, the trial court found that the purpose of the proposed relocation was not vindictive. The evidence does not preponderate against this finding. Consequently, the trial court did not err in not reaching the issue of whether the relocation was in the children's best interest.
Father also argues that the trial court erred in refusing to reduce his child support obligation. He contends that there is a significant variance between the amount of support he currently pays and the amount of child support he would be required to pay, based on his income, under the child support guidelines. See Turner v. Turner , 919 S.W.2d 340, 344 (Tenn.Ct.App. 1995). The trial court found that there was no basis for reducing Father's child support obligation, based on Father's earning capacity and the earning capacity of his assets. From our review of the record, the evidence supports this finding.
Father also contends that the trial court erred in refusing to reduce his child support based on the travel expenses he will incur incident to Mother's relocation. He argues that either the amount of his child support obligation should be reduced in light of the travel expenses he will incur, or that Mother should be required to reimburse him for the entire cost of transporting the children to and from Tennessee for visitation. Mother appeals the trial court's ruling regarding payment of the children's travel expenses as well. She argues that the trial court erred in requiring her to pay half of the children's travel expenses and half of Father's travel expenses which exceed $10,000. She contends that Father has in essence already received a $10,000 reduction in his financial obligation, since the children will attend public school in Hilton Head and Father will not have to pay for private school tuition. In light of this, Mother maintains that Father should pay all of the children's travel expenses up to $10,000 annually.
The amount of transportation costs for child visitation may, in some circumstances, warrant a deviation from the child support guidelines. See Tenn. Code Ann. § 36-6-108(e) (11) (2000); see also Jones v. Jones , 930 S.W.2d 541, 545 (Tenn. 1996) (examples of the types of situations in which downward deviation is contemplated by the guidelines). In deciding whether a deviation should be ordered, numerous factors should be taken into account, including, but not limited to, additional costs incurred for transporting a child for visitation. Id . The allocation of travel expenses for visitation may also be affected by the relative financial resources of the parties. Bowers v. Bowers , 956 S.W.2d 496, 499-500 (Tenn.Ct.App. 1997), perm. to appeal den., Nov. 24, 1997. A significant financial disparity between the parties may affect the assignment of transportation costs or may result in one party being required to reimburse the other for the children's travel expenses. Id .
In this case, the trial court determined that downward deviation of the child support obligation would not be appropriate. There is no significant disparity in the parties' incomes; Father earns slightly more than Mother, when all his income sources are taken into account. Father's monetary obligation to the children has been reduced in that he need no longer pay private school tuition. Mother, on the other hand, is likely to experience an increase in income upon relocation; indeed, that was significant incentive to relocate. Based on the relative financial status of the parties and the other circumstances surrounding Mother's relocation, we agree with the trial court's order that Mother and Father should equally split the children's travel costs. However, Father is likely to incur substantial travel expenses to see the children in South Carolina. We see no justification for Father being required to pay his own travel expenses up to $10,000, since Mother has chosen to relocate and is likely to increase her income as a result. Consequently, we modify the trial court's order to require both parties to pay half of Father's reasonable travel expenses.
Last, Father argues that the trial court erred in ordering him to pay a portion of Wife's attorney's fees. Mother asserts that the trial court erred in not ordering Father to pay all of her attorney's fees. The trial court is afforded discretion concerning whether to award attorney's fees. See Long v. Long , 957 S.W.2d 825, 827 (Tenn.App. 1997). The trial court's decision is usually not reversed except on a showing of an abuse of discretion. Id . We find no abuse of discretion in the trial court's award of attorney's fees in this case.
The judgment of the trial court is affirmed in part and modified in part as set forth above. Costs are taxed equally to the appellant, Jack Gerald Leach and his surety, and the appellee Denise LaForce Leach, and her surety, for which execution may issue if necessary.