Martella v. Martella, No. M2003-03105-COA-R3-CV (TN 1/5/2006)

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Unpublished Opinion

ELIZABETH S. F. MARTELLA v. DAVID R. MARTELLA.

No. M2003-03105-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

February 11, 2005 Session.

Filed January 5, 2006.

Appeal from the Circuit Court for Franklin County; No. CV-11644; Buddy D. Perry, Judge.

Judgment of the Circuit Court Affirmed.

Robert B. Pyle, Chattanooga, Tennessee, for the appellant, Elizabeth S. F. Martella.

Timothy S. Priest, Winchester, Tennessee, for the appellee, David R. Martella.

William C. Koch, Jr., P.J., M.S., delivered the opinion of the court, in which William B. Cain and Frank G. Clement, Jr., JJ., joined.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S.

This appeal involves a parental dispute over the payment of child support for a fifteen-year-old child. One year following the divorce, the child's father filed a petition in the Circuit Court for Franklin County seeking to modify his $2,100 per month child support obligation because his visitation with his daughter had increased and because his daughter was receiving Social Security benefits as a result of his retirement. Following a bench trial, the trial court determined that the father was willfully unemployed and declined to lower his child support obligation. However, the court determined that the father was entitled to an offset in the amount of the Social Security benefits that the child was receiving as his dependent. Both the mother and the father take issue with the judgment. The father asserts that the trial court erred by refusing to lower his child support obligation. The mother insists that the court erred by giving the father credit for the Social Security benefits the child was receiving. We affirm the judgment.

I.

Elizabeth S. F. Martella and David R. Martella were married and lived in Sewanee, Tennessee. Their only child, Catherine J. Martella, was born in September 1987. Mr. Martella worked in many countries as an agricultural economist. In addition to his income from these projects, Mr. Martella received substantial passive income from two family trusts. Ms. Martella had been employed by the United States Information Agency but had been forced to retire because of chronic depression. Catherine Martella grew to be a bright and precocious child and was attending St. Andrew's School in Sewanee when her parents separated.

After the marriage foundered, Mr. Martella moved to New Hampshire, and Ms. Martella and Catherine Martella continued to live in Sewanee. Mr. Martella did not visit with his daughter regularly but agreed to pay $1,580 per month in child support pending the divorce hearing. Following a hearing in March 2001, the Circuit Court for Franklin County entered an order on May 18, 2001 declaring the parties divorced and addressing other issues that attend the dissolution of a marriage.

The only portions of the May 18, 2001 order that are relevant to this appeal are the provisions for custody, visitation, and child support. The trial court approved the parties' parenting plan that designated Ms. Martella as the primary residential parent and provided for substantially more visitation by Mr. Martella than he had exercised prior to the divorce. Even though Mr. Martella had requested a reduction in the amount of child support he had been paying, the court ordered him to pay $2,100 per month in child support. The court based its decision on three factors: (1) Mr. Martella's ability to earn $420 per day, (2) Mr. Martella's infrequent visitation with his daughter, and (3) Mr. Martella's trust income. Neither party appealed the final divorce decree.

On July 10, 2002, Mr. Martella filed a petition to modify his child support obligation. Two weeks later, on July 22, 2002, he filed an amended petition asserting two grounds justifying his request for a modification. First, he insisted that he was spending much more visitation time with his daughter than had been the case when the parties divorced. Second, he stated that he was sixty-three years old and that he had elected to "retire" and begin drawing Social Security retirement benefits. He informed the court that he was now receiving Social Security benefits in the amount of $ 1,223 per month and that Catherine Martella was receiving $ 714 per month as his dependent. Based on his assertion that his monthly income was now only $10,219, Mr. Martella asked the court to reduce his child support obligation to $1,500 per month.¹

Ms. Martella opposed Mr. Martella's request for a reduction in his child support obligation.² She argued that Mr. Martella had stated during the 2001 divorce proceedings that he did not intend to begin drawing Social Security until he was sixty-five years old and that Mr. Martella was willfully unemployed. She also insisted that Mr. Martella should not be entitled to benefit in any way from the $714 in Social Security benefits that Catherine Martella was receiving because these funds had simply replaced the $645 in Social Security disability benefits Catherine Martella had been receiving because of Ms. Martella's disability.

After an unsuccessful attempt at mediation, the trial court conducted a hearing on December 3, 2002. Mr. Martella confirmed that he was receiving Social Security retirement benefits and explained that he had elected to begin drawing Social Security benefits earlier than he had planned because the overseas employment opportunities available to him had changed following the catastrophe in New York on September 11, 2001. He stated that his former work assignments had been of relatively short duration and that the only offers he was now receiving required significantly longer stays in underdeveloped countries. He asserted that these work assignments would interfere with his ability to maintain visitation with his daughter and that they could impair his ability to control his diabetes and high blood pressure.

Ms. Martella testified regarding the new home she had purchased and the five trips, including four international trips, that she and her daughter had taken since the divorce. She explained how federal policy had resulted in the cessation of the $645 in Social Security disability payments that Catherine Martella had been receiving. As Ms. Martella understood it, federal policy would not permit her daughter to receive two Social Security benefits, and a dependent eligible for two types of benefits was entitled to receive only the higher of the two.³ Because Catherine Martella was receiving $ 714 per month as Mr. Martella's dependent, the $645 per month she had been receiving as Ms. Martella's dependent had been discontinued. In light of this circumstance, Ms. Martella insisted that Mr. Martella was entitled, if anything, to only a $69 per month credit — the difference between the retirement benefits her daughter was now receiving and the disability benefits she had been receiving previously.

On March 5, 2003, the trial court filed a final order denying Mr. Martella's request to reduce his child support obligation. The court determined that, beginning in December 2002, Mr. Martella was entitled to offset his child support payments by $724⁴ per month based on the dependent retirement benefits that Catherine Martella was receiving. The court also determined that there was no basis for Ms. Martella's "equitable argument" that this offset to Mr. Martella's child support should be reduced because of the cessation of Catherine Martella's disability dependent benefits. Ms. Martella perfected this appeal to take issue with the trial court's decision to give Mr. Martella full credit against his child support obligation for the Social Security retirement benefits Catherine Martella has been receiving. For his part, Mr. Martella asserts that the trial court erred by denying his petition to reduce his child support.

II. THE DENIAL OF MR. MARTELLA'S PETITION TO REDUCE HIS CHILD SUPPORT OBLIGATION

Mr. Martella takes issue with the trial court's denial of his petition to reduce his child support obligation. He insists that the court erroneously employed the "substantial and material change of circumstances" test rather than the "significant variance" test to determine whether his child support should be reduced and that the record does not support the trial court's apparent conclusion that he is willfully underemployed. We have determined that the trial court properly declined to reduce the amount of Mr. Martella's child support obligation because it was based on a "previously court-ordered deviation from the guidelines" and because all the circumstances warranting this deviation have not changed.

A.

Prior to 1994, the courts used the same test to determine whether they should modify an award of child support that they used to determine whether they should modify an award of long-term spousal support. Following the statutory mandate, the courts declined to consider modifying alimony or child support awards without a showing that a "substantial and material change of circumstances" had occurred. Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 1993). In 1994, the Tennessee General Assembly adopted a new test for determining whether a child support award should be modified.⁵ The new test permitted modifications in child support awards only "when there is found to be a significant variance . . . between the guidelines and the amount of support currently ordered." Tenn. Code Ann. § 36-5-101(g)(1).

The General Assembly purposely did not define "significant variance" but rather left this definition to the drafters of the Child Support Guidelines. The Child Support Guidelines applicable to this case⁶ define a "significant variance between the guideline amount and the current support order" as "at least 15% if the current support is one hundred dollars ($100.00) or greater per month and at least fifteen dollars ($15.00) if the current support is less than $100.00 per month." Tenn. Comp. R. & Regs. 1240-2-4-.02(3) (2003).

However, the "significant variance" test...