COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED April 28, 1998
RAYMOND WARREN SWOFFARD, ) C/A NO. 03A01-9707-CV-00454 Cecil Crowson, Jr. ) Appellate C ourt Clerk Respondent-Appellee, ) ) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) HAMILTON COUNTY CIRCUIT COURT ) ) ) ) JUANITA S. DEL PINO-McCLARTY, ) ) HONORABLE ROBERT M. SUMMITT, Petitioner-Appellant. ) JUDGE
For Appellant For Appellee
MITCHELL A. BYRD PAMELA R. O’DWYER Chattanooga, Tennessee Paty, Rymer & Ulin, P.C. Chattanooga, Tennessee
O P I N IO N
AFFIRMED IN PART REVERSED IN PART REMANDED Susano, J.
1 This appeal was taken from orders entered following two
post-divorce hearings. The parties were divorced in 1985. The
current round of litigation began on October 8, 1996, when
Juanita S. Del Pino-McClarty, the former Mrs. Swoffard,1 filed a
petition for contempt and for modification of the parties’ 1985
divorce judgment. Mr. Swoffard responded with his own
counterclaim for relief. The trial court granted partial relief
to both of the parties. Ms. McClarty appealed, arguing (1) that
the trial court erred in setting child support; (2) that the
trial court erred in awarding Mr. Swoffard a money judgment for
his overpayment of federal income taxes caused by Ms. McClarty’s
failure to sign the necessary tax forms to give him the tax
exemptions for the parties’ two children; (3) that the court
erred in allowing Mr. Swoffard to testify as to the amount of his
overpayment of federal income taxes; and (4) that the trial court
erred in offsetting Mr. Swoffard’s child support arrearage to Ms.
McClarty against the amount she owed him for his overpayment of
federal income taxes.
Following the first hearing on March 4, 1997, the trial
court entered an order on April 15, 1997, decreeing that Mr.
Swoffard would pay Ms. McClarty monthly child support of $858 for
the parties’ one remaining minor child, but only during the
months of September through May, when the child was living with
her mother. That award was made retroactive to October 8, 1996,
the date on which Ms. McClarty filed her petition. In the same
order, the trial court directed Ms. McClarty to pay Mr. Swoffard
$745 per month as support for the child during the months of June
1 We will refer to this party as Ms. McClarty -- the way she was referred to in the lower court.
2 through August, when the child would be living primarily with her
father. Finally, as relevant here, the order provides as
follows:
This cause is reset on the Court’s docket for May 20, 1997, at which time the Court will consider the issue of [Ms. McClarty’s] contempt for her failure and refusal to allow [Mr. Swoffard] to claim the children as deductions on his income tax returns in accordance with the Marital Dissolution Agreement incorporated into the Final Judgment entered on August 26, 1985.
Pursuant to the order of April 15, 1997, a second
hearing was held on May 20, 1997. At the second hearing, the
court focused on the contempt issue and also on the question of
Mr. Swoffard’s child support arrearage that had then accumulated
under the April 15, 1997, order.
A second order was entered on June 27, 1997,
memorializing the hearing of May 20, 1997. In that order, the
trial court found a child support arrearage of $2,322. In the
same order, the trial court also found as follows:
From all of which the Court finds that the original agreement of the parties incorporated into the Final Judgment entered on August 26, 1985, had been violated by the defendant’s failure and refusal to facilitate that order by execution of the appropriate documents required by the Internal Revenue Service. Though defendant’s failure and refusal in that regard was not willful, it did result in a loss to the plaintiff in the amount of $8,182.00.
The second order offsets Mr. Swoffard’s child support arrearage
3 of $2,322 against the $8,182 found to be due Mr. Swoffard from
Ms. McClarty. The second order then decrees a money judgment in
Mr. Swoffard’s favor for the net of $5,860.
By her first issue, Ms. McClarty argues that the trial
court failed to set the parties’ respective child support
obligations in compliance with the Child Support Guidelines
promulgated by the Department of Human Services pursuant to the
provisions of T.C.A. § 36-5-101(e). As previously indicated,
this issue was addressed by the trial court at the first hearing
on March 4, 1997. The record before us does not include a
transcript or statement of the evidence from that first hearing.2
We cannot undertake a de novo review under Rule 13(d), T.R.A.P.,
of a trial court’s decision based on factual findings without a
record of the evidence introduced at that hearing. “[W]e must
assume that the record, had it been preserved, would have
contained sufficient evidence to support the trial court’s
factual findings.” Sherrod v. Wix, 849 S.W.2d 780, 783
(Tenn.App. 1992). Ms. McClarty’s first issue is found adverse to
her.
Ms. McClarty next argues that the trial court erred in
awarding Mr. Swoffard a money judgment against her for $8,182.
We find no error in this award.
The parties’ agreement, which was incorporated into
their divorce judgment, provides as follows:
2 We do have a transcript of the second hearing.
4 Husband shall be entitled to claim the dependency allowance for Rakel Camile Swoffard, female age 7, and Tiffany Brooke Swoffard, female age 4.
5 Husband shall be entitled to the child care tax credit.
The trial court found that Ms. McClarty failed and refused to
sign the necessary IRS forms to enable Mr. Swoffard to take the
exemptions for his then-two minor children for 1986 and for the
years 1988-1993, inclusive. The court determined that her
refusal to sign the necessary forms had resulted in Mr. Swoffard
overpaying his taxes for those six years by a total of $8,182.
Ms. McClarty argues that a change in the Internal
Revenue Code after the parties’ divorce in some way “trumps” the
divorce judgment’s provision with respect to the dependency
exemptions associated with the parties’ two children. She calls
our attention to the printed instructions on an IRS Form 2120 --
a “Multiple Support Declaration” Form -- in the record. We have
carefully read these instructions. There is nothing in the
instructions which would prevent Ms. McClarty from fully
complying with the divorce judgment’s provision with respect to
the children’s dependency exemptions. Furthermore, we do not
agree with her argument that the subject provision does not apply
to the years in question because, so the argument goes, the
provision does not provide for how long it would be in effect.
As we read the provision, it would apply to all years in which
the children’s dependency exemption could be claimed by their
parents. The second issue raised by Ms. McClarty is found to be
without merit.
Ms. McClarty also argues that the trial court erred in
allowing Mr. Swoffard to testify about the overpayment of taxes
6 caused by his former wife’s failure to sign the necessary IRS
form in each of the six relevant years. We find no error in
this. Mr.
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COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED April 28, 1998
RAYMOND WARREN SWOFFARD, ) C/A NO. 03A01-9707-CV-00454 Cecil Crowson, Jr. ) Appellate C ourt Clerk Respondent-Appellee, ) ) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) HAMILTON COUNTY CIRCUIT COURT ) ) ) ) JUANITA S. DEL PINO-McCLARTY, ) ) HONORABLE ROBERT M. SUMMITT, Petitioner-Appellant. ) JUDGE
For Appellant For Appellee
MITCHELL A. BYRD PAMELA R. O’DWYER Chattanooga, Tennessee Paty, Rymer & Ulin, P.C. Chattanooga, Tennessee
O P I N IO N
AFFIRMED IN PART REVERSED IN PART REMANDED Susano, J.
1 This appeal was taken from orders entered following two
post-divorce hearings. The parties were divorced in 1985. The
current round of litigation began on October 8, 1996, when
Juanita S. Del Pino-McClarty, the former Mrs. Swoffard,1 filed a
petition for contempt and for modification of the parties’ 1985
divorce judgment. Mr. Swoffard responded with his own
counterclaim for relief. The trial court granted partial relief
to both of the parties. Ms. McClarty appealed, arguing (1) that
the trial court erred in setting child support; (2) that the
trial court erred in awarding Mr. Swoffard a money judgment for
his overpayment of federal income taxes caused by Ms. McClarty’s
failure to sign the necessary tax forms to give him the tax
exemptions for the parties’ two children; (3) that the court
erred in allowing Mr. Swoffard to testify as to the amount of his
overpayment of federal income taxes; and (4) that the trial court
erred in offsetting Mr. Swoffard’s child support arrearage to Ms.
McClarty against the amount she owed him for his overpayment of
federal income taxes.
Following the first hearing on March 4, 1997, the trial
court entered an order on April 15, 1997, decreeing that Mr.
Swoffard would pay Ms. McClarty monthly child support of $858 for
the parties’ one remaining minor child, but only during the
months of September through May, when the child was living with
her mother. That award was made retroactive to October 8, 1996,
the date on which Ms. McClarty filed her petition. In the same
order, the trial court directed Ms. McClarty to pay Mr. Swoffard
$745 per month as support for the child during the months of June
1 We will refer to this party as Ms. McClarty -- the way she was referred to in the lower court.
2 through August, when the child would be living primarily with her
father. Finally, as relevant here, the order provides as
follows:
This cause is reset on the Court’s docket for May 20, 1997, at which time the Court will consider the issue of [Ms. McClarty’s] contempt for her failure and refusal to allow [Mr. Swoffard] to claim the children as deductions on his income tax returns in accordance with the Marital Dissolution Agreement incorporated into the Final Judgment entered on August 26, 1985.
Pursuant to the order of April 15, 1997, a second
hearing was held on May 20, 1997. At the second hearing, the
court focused on the contempt issue and also on the question of
Mr. Swoffard’s child support arrearage that had then accumulated
under the April 15, 1997, order.
A second order was entered on June 27, 1997,
memorializing the hearing of May 20, 1997. In that order, the
trial court found a child support arrearage of $2,322. In the
same order, the trial court also found as follows:
From all of which the Court finds that the original agreement of the parties incorporated into the Final Judgment entered on August 26, 1985, had been violated by the defendant’s failure and refusal to facilitate that order by execution of the appropriate documents required by the Internal Revenue Service. Though defendant’s failure and refusal in that regard was not willful, it did result in a loss to the plaintiff in the amount of $8,182.00.
The second order offsets Mr. Swoffard’s child support arrearage
3 of $2,322 against the $8,182 found to be due Mr. Swoffard from
Ms. McClarty. The second order then decrees a money judgment in
Mr. Swoffard’s favor for the net of $5,860.
By her first issue, Ms. McClarty argues that the trial
court failed to set the parties’ respective child support
obligations in compliance with the Child Support Guidelines
promulgated by the Department of Human Services pursuant to the
provisions of T.C.A. § 36-5-101(e). As previously indicated,
this issue was addressed by the trial court at the first hearing
on March 4, 1997. The record before us does not include a
transcript or statement of the evidence from that first hearing.2
We cannot undertake a de novo review under Rule 13(d), T.R.A.P.,
of a trial court’s decision based on factual findings without a
record of the evidence introduced at that hearing. “[W]e must
assume that the record, had it been preserved, would have
contained sufficient evidence to support the trial court’s
factual findings.” Sherrod v. Wix, 849 S.W.2d 780, 783
(Tenn.App. 1992). Ms. McClarty’s first issue is found adverse to
her.
Ms. McClarty next argues that the trial court erred in
awarding Mr. Swoffard a money judgment against her for $8,182.
We find no error in this award.
The parties’ agreement, which was incorporated into
their divorce judgment, provides as follows:
2 We do have a transcript of the second hearing.
4 Husband shall be entitled to claim the dependency allowance for Rakel Camile Swoffard, female age 7, and Tiffany Brooke Swoffard, female age 4.
5 Husband shall be entitled to the child care tax credit.
The trial court found that Ms. McClarty failed and refused to
sign the necessary IRS forms to enable Mr. Swoffard to take the
exemptions for his then-two minor children for 1986 and for the
years 1988-1993, inclusive. The court determined that her
refusal to sign the necessary forms had resulted in Mr. Swoffard
overpaying his taxes for those six years by a total of $8,182.
Ms. McClarty argues that a change in the Internal
Revenue Code after the parties’ divorce in some way “trumps” the
divorce judgment’s provision with respect to the dependency
exemptions associated with the parties’ two children. She calls
our attention to the printed instructions on an IRS Form 2120 --
a “Multiple Support Declaration” Form -- in the record. We have
carefully read these instructions. There is nothing in the
instructions which would prevent Ms. McClarty from fully
complying with the divorce judgment’s provision with respect to
the children’s dependency exemptions. Furthermore, we do not
agree with her argument that the subject provision does not apply
to the years in question because, so the argument goes, the
provision does not provide for how long it would be in effect.
As we read the provision, it would apply to all years in which
the children’s dependency exemption could be claimed by their
parents. The second issue raised by Ms. McClarty is found to be
without merit.
Ms. McClarty also argues that the trial court erred in
allowing Mr. Swoffard to testify about the overpayment of taxes
6 caused by his former wife’s failure to sign the necessary IRS
form in each of the six relevant years. We find no error in
this. Mr. Swoffard is a school principal, whose background is in
mathematics. He testified that he made these calculations based
on his mathematical background and his income tax returns in the
relevant years, which returns were initially prepared by him.
The fact that his accountant checked his figures and found them
to be correct does not detract from the fact that Mr. Swoffard
made the overpayment calculations himself. This was his
testimony, and it was admissible. The question of whether he
correctly made these calculations3 went to the weight to be given
his testimony rather than to its admissibility. The accountant’s
involvement does not convert Mr. Swoffard’s testimony into
inadmissible hearsay. The trial court did not abuse its
discretion in receiving Mr. Swoffard’s testimony on this subject.
The trial court offset Ms. McClarty’s judgment for
child support arrearage against what she owed Mr. Swoffard for
the excess federal income taxes paid by him as a result of Ms.
McClarty’s failure and refusal to sign the necessary tax forms.
We find this to be error. See Oliver v. Oczkowicz, 1990 WL 64534
(Court of Appeals at Nashville, May 18, 1990). As we said in
Oliver, “[t]o allow a set-off under these circumstances would
amount to requiring the children to pay the debts of the
custodial parent.” 1990 WL 64534 at *2. While the arrearage is
payable to Ms. McClarty -- the debtor with respect to the
overpayment of federal income tax -- it is for the benefit of the
3 The calculations were simple in nature. Mr. Swoffard knew what he paid without the exemptions. He could calculate what he would have paid with the exemptions by following the relatively simple instructions on the fist two pages of his Form 1040.
7 parties’ minor child. See Rutledge v. Barrett, 802 S.W.2d 604,
607 (Tenn. 1991).
The judgment of the trial court awarding Mr. Swoffard a
judgment against Ms. McClarty for $5,860 is reversed. In all
other respects the judgment of the trial court is affirmed. This
case is remanded to the trial court for the entry of an order
awarding separate money judgments -- one for Mr. Swoffard in the
amount of $8,182, and one in favor of Ms. McClarty for $2,322.
Costs on appeal are taxed one-third to Mr. Swoffard and two-
thirds to Ms. McClarty.
___________________________ Charles D. Susano, Jr., J.
CONCUR:
________________________ Houston M. Goddard, P.J.
________________________ Herschel P. Franks, J.