Pursuant to Rule 59.04, Husband argues that the Court should alter or amend the Final Decree of Divorce concerning the following issues: (1) imputation of income to Husband; and (2) the Permanent Parenting Plan. The Court finds these requests are devoid of merit.
The purpose of a Rule 59.04 motion to alter or amend a judgement is to provide the trial court with an opportunity to correct errors before the judgement becomes final. In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005) (citing Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998) (overruled in part on other grounds by Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000). The motion should be granted in the following circumstances: (1) “to correct a clear error of law or to prevent injustice,” (2) if the law changes before the judgement becomes final, or (3) if additional evidence becomes available that was previously unavailable. Id. (citing Bradley, 984 S.W.2d at 933). Under either Rule 59 or Rule 60.02, the movant must show that the new evidence was not known to the moving party prior to or during trial and that it could not have been known to him through exercise of reasonable diligence. In re I.G., No. M2015-01974-COA-R3-JV, 2017 Tenn. App. LEXIS 50, at *10 (Tenn. Ct. App. Jan. 27, 2017). Here, the Court finds that Husband’s Motion relies on evidence that was previously available or could have been available to Husband during this litigation. Husband was allowed to testify to all the facts he now asks the Court to reconsider. He was allowed to call any witnesses that he believed had relevant information and opted not to do so. Husband’s counsel closed her proof after Husband’s testimony and did not elicit the information from Husband that he now asks the Court to consider despite its availability at the time of the final hearing. Therefore, the Court finds this is not a ground to alter or amend its Order. Husband argues the Court committed a clear error of law by imputing Husband’s income at $12,375.00 per month. …show more content…
The Court finds this argument to be without merit, as the Court in its considerable discretion determined both that Husband was voluntarily underemployed and failed to provide sufficient reliable income information. A Court may impute income to a party if “. . . there is no reliable evidence of income” even if the party is not willfully underemployed. Tenn. Comp. R. Regs. 1240-2-4-.04(3)(d)(2). Husband failed to timely provide his discovery request pursuant to this Court’s Order. Thus, the Court found Husband had not provided sufficiently reliable information about his income for the past two years, so the Court looked at the average of reported income based upon Exhibit 2. A trial Court has considerable discretion in deciding whether a parent is willfully or voluntarily underemployed. Miller v. Welch, 340 S.W.3d 708, 712 (Tenn. Ct. App. 2010). Here, Husband argues his change of employment was in good faith and that the Court committed a clear error of law in finding him to be voluntarily underemployed. The Court finds that Husband left a high paying job while supporting two children and a wife due to alleged stress, and that the Husband is, therefore, voluntarily underemployed. As such, the trial did not commit a clear error of law by imputing income to Husband. Husband testifies Husband requests the Court for a new parenting
The purpose of a Rule 59.04 motion to alter or amend a judgement is to provide the trial court with an opportunity to correct errors before the judgement becomes final. In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005) (citing Bradley v. McLeod, 984 S.W.2d 929, 933 (Tenn. Ct. App. 1998) (overruled in part on other grounds by Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000). The motion should be granted in the following circumstances: (1) “to correct a clear error of law or to prevent injustice,” (2) if the law changes before the judgement becomes final, or (3) if additional evidence becomes available that was previously unavailable. Id. (citing Bradley, 984 S.W.2d at 933). Under either Rule 59 or Rule 60.02, the movant must show that the new evidence was not known to the moving party prior to or during trial and that it could not have been known to him through exercise of reasonable diligence. In re I.G., No. M2015-01974-COA-R3-JV, 2017 Tenn. App. LEXIS 50, at *10 (Tenn. Ct. App. Jan. 27, 2017). Here, the Court finds that Husband’s Motion relies on evidence that was previously available or could have been available to Husband during this litigation. Husband was allowed to testify to all the facts he now asks the Court to reconsider. He was allowed to call any witnesses that he believed had relevant information and opted not to do so. Husband’s counsel closed her proof after Husband’s testimony and did not elicit the information from Husband that he now asks the Court to consider despite its availability at the time of the final hearing. Therefore, the Court finds this is not a ground to alter or amend its Order. Husband argues the Court committed a clear error of law by imputing Husband’s income at $12,375.00 per month. …show more content…
The Court finds this argument to be without merit, as the Court in its considerable discretion determined both that Husband was voluntarily underemployed and failed to provide sufficient reliable income information. A Court may impute income to a party if “. . . there is no reliable evidence of income” even if the party is not willfully underemployed. Tenn. Comp. R. Regs. 1240-2-4-.04(3)(d)(2). Husband failed to timely provide his discovery request pursuant to this Court’s Order. Thus, the Court found Husband had not provided sufficiently reliable information about his income for the past two years, so the Court looked at the average of reported income based upon Exhibit 2. A trial Court has considerable discretion in deciding whether a parent is willfully or voluntarily underemployed. Miller v. Welch, 340 S.W.3d 708, 712 (Tenn. Ct. App. 2010). Here, Husband argues his change of employment was in good faith and that the Court committed a clear error of law in finding him to be voluntarily underemployed. The Court finds that Husband left a high paying job while supporting two children and a wife due to alleged stress, and that the Husband is, therefore, voluntarily underemployed. As such, the trial did not commit a clear error of law by imputing income to Husband. Husband testifies Husband requests the Court for a new parenting