author: ALOK AHUJA, Judge.

text:
    STATE of Missouri, Respondent, v. Clarence Arthur TREMAINE, Appellant.
    No. WD 70670.
    Missouri Court of Appeals, Western District.
    July 27, 2010.

      Emmett D. Queener, Esq., Columbia, MO, for appellant.
    Shaun J. Mackelprang, Esq., and Jayne T. Woods, Esq., Jefferson City, MO, for respondent.
    Before: LISA WHITE HARDWICK, P. J., and JAMES M. SMART, JR. and ALOKAHUJA, JJ.
   ALOK AHUJA, Judge.

Appellant Clarence Tremaine was convicted in the Boone County Circuit Court of two offenses: possession of child pornography under § 573.037, RSMo, and promoting child pornography in the first degree by offering to disseminate it, § 573.025, RSMo. Tremaine makes two arguments on appeal. First, he claims the jury lacked sufficient evidence to conclude that he offered to disseminate child pornography. Second, he argues that the trial court plainly erred in simultaneously convicting him of both possession of, and promoting, child pornography, because the possession of child pornography is a lesser included offense of promotion of child pornography by offering to disseminate it. Tremaine accordingly argues that his conviction of both offenses violates his right to be free from double jeopardy as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. Finding neither of Tremaine’s arguments persuasive, we affirm.

Factual Background

This case arose out of a search warrant executed at the Tremaine residence by Detectives Andy Anderson and Tracy Perkins of the Boone County Sheriffs Department, and Detective Michael Lederle of the Columbia Police Department. The detectives had received information from other law enforcement agencies that an Internet Protocol (or “IP”) address associated with Tremaine’s residence had transferred computer files containing known child pornography. Detectives visited the residence and spoke with Tremaine on his front porch. The detectives identified themselves and told Tremaine that they were investigating the possession and distribution of child pornography. Tremaine admitted that he had a computer in his home that was connected to the internet, and invited the detectives inside.

Once inside, Tremaine admitted that he had downloaded files containing child pornography using software known as Lime-Wire. Tremaine said “that he first found child pornography through the system quite some time ago,” “he guessed a little bit less than a year, and demonstrated that he knew how this (LimeWire) program worked.” Tremaine signed a consent form to search his computer. Detectives then presented Tremaine with the search warrant and began their search.

During the search, the detectives confiscated Tremaine’s computer. They later conducted a forensic examination of the computer’s hard drive at their headquarters. The forensic search of Tremaine’s computer revealed the existence of the LimeWire program. It also revealed the presence of numerous files containing child pornography, all of which were located in a folder labeled “Incomplete.” Tremaine’s computer was set to permit the sharing of files located in his Incomplete folder with other users on the LimeWire network.

The jury found Tremaine guilty of both counts with which he was charged: promoting child pornography by offering to disseminate it; and possession of child pornography. The circuit court sentenced him to four years on the possession count, and five years for promotion, with the sentences to run concurrently. This appeal follows.

Analysis

If the evidence was insufficient to convict Tremaine of promoting child pornography, this would moot his double jeopardy claim, which attacks his simultaneous conviction of both possession and promotion offenses. We accordingly address his sufficiency-of-the-evidence claim first.

I.

“Where the appellant challenges the sufficiency of the evidence supporting a conviction, ‘[ajppellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror could find the defendant guilty beyond a reasonable doubt.’ ” State v. Donahue, 280 S.W.3d 700, 701 (Mo.App. W.D. 2009) (en banc) (citation omitted). In resolving a sufficieney-of-the-evidence claim, we review the evidence in the light most favorable to the State. State v. O’Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993). “Thus, evidence that supports a finding of guilt is taken as true and all logical inferences that support a finding of guilt and that may reasonably be drawn from the evidence are indulged.” Id. at 216. “Conversely, the evidence and any inferences to be drawn therefrom that do not support a finding of guilt are ignored.” Id. In conducting our review, we are mindful that “[t]he appellate court must not act as a ‘super juror’ exercising veto power, but, rather, must give great deference to the trier of fact.” Donahue, 280 S.W.3d at 701.

As it existed at the time of Tremaine’s alleged offense, § 573.025.1, RSMo 2000 provided:

A person commits the crime of promoting child pornography in the first degree if, knowing of its content and character, such person possesses with the intent to promote or promotes obscene material that has a child as one of its participants or portrays what appears to be a child as a participant or observer of sexual conduct.

“Promote” is defined by statute to mean “to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same, by any means including a computer.” § 573.010(15), RSMo Cum. Supp.2009.

In this case, the State charged Tremaine with violating § 573.025.1 based on the allegation that, “knowing its content and character[,] he offered to disseminate obscene material consisting of videos that portray what appears to be a child as a participant in sexual conduct.”

The terms “offer” and “disseminate” are not defined by statute. Absent a statutory definition, words are given their plain and ordinary meaning derived from the dictionary. State v. Eisenhouer, 40 S.W.3d 916, 919-20 (Mo. banc 2001). “Offer” is defined to mean “to present for acceptance or rejection,” “hold out,” “to bring or put forward for action or consideration,” or “to make available or accessible.” Webster’s Third New International Dictionary Unabridged 1566 (1993). “The term disseminate is defined as ‘to scatter far and wide’ or ‘promulgate widely.’ ” State v. Kamaka, 277 S.W.3d 807, 815 (Mo.App. W.D.2009).

Reviewing the evidence in the light most favorable to the jury’s verdict, and ignoring contrary evidence and inferences, we conclude that the evidence was sufficient for the jury to find that Tremaine offered to disseminate child pornography in the sense that he presented for acceptance or rejection, held out, and made available, such materials for widespread sharing via the LimeWire network. More specifically, Tremaine allowed other LimeWire users access to the child pornography files on his computer, and invited them to take, or download, those items from him.

The State argues at the outset that it is unnecessary for it to prove that Tre-maine knew that he was offering the child pornography files on his computer to other internet users. The State notes that § 573.025.1, as it existed in 2007, specified that an individual must “know[] of [the child pornography’s] content and character” to be guilty of promotion of child pornography, but does not otherwise specify a required mental state. Under § 562.021.2, RSMo 2000, “[i]f the definition of an offense prescribes a culpable mental state with regard to a particular element or elements of that offense, the prescribed culpable mental state shall be required only as to specified element or elements, and a culpable mental state shall not be required as to any other element of the offense.” According to the State, § 562.021.2 prevents this Court from reading § 573.025.1 to require that the State prove that Tremaine knowingly offered to disseminate child pornography. We need not resolve this issue, however. As we explain below, the evidence here was sufficient for the jury to find that Tremaine was aware that he was operating his computer in a way that made files containing child pornography available to other users, even if such awareness were necessary to sustain a conviction.

We begin with a brief description of the LimeWire software. LimeWire is a peer-to-peer (“P2P”) computer application that allows users to trade computer files (generally audio and video files) over the Internet. LimeWire connects users to the Gnutella and Bit Torrent P2P networks, providing users access to files which other users choose to share over the networks. Users begin at LimeWire’s website. There, they download to their computer the software necessary for file sharing by activating an installation “wizard” that walks the user through a step-by-step setup process. Once LimeWire is installed, the user can manually change default settings which are pre-set in the software to whatever particular settings the user wants for his or her computer.

To search for available files, LimeWire users enter a search term into a dialogue box, and the LimeWire network, in conjunction with Gnutella or similar software, assembles a list of files fitting the search terms which are available for download from other users’ computers. The user then double clicks on a particular file to download it from another computer which is set to permit the sharing of such files. LimeWire assembles complete files for the requesting user by collecting pieces of the selected file, potentially collecting individual pieces from the computers of many different users which have the requested file. LimeWire verifies that it is accessing pieces of the correct file by means of a Secure Hash Algorithm (or “SHA 1”) value which uniquely corresponds to an individual computer file. By default, pieces of computer files are initially downloaded into the “Incomplete” folder on the requesting user’s computer; once a complete file is assembled, it is automatically transferred into another default folder called “Shared.” However, LimeWire users determine whether the files in these folders are shared and actually available to other users. Thus, a user can select an option that precludes other users from downloading materials from his computer.

The evidence would permit the jury to have found that Tremaine was aware that the child pornography files he downloaded had come from the computers of other individual LimeWire users. Detective Anderson testified that the Gnutella network, which performs a search function in conjunction with LimeWire, “will point to a bunch of computers and say, ‘Here’s a list of the files that we found.’ “ The fact that Tremaine knew he downloaded files from individual users would support the inference that he also knew the files which he possessed would be available for sharing with others.

The evidence also indicates that the Li-meWire software on Tremaines computer was set to allow sharing of files both from the Shared folder on his computer, and from the Incomplete folder in which the files containing child pornography were found. Detective Anderson testified that LimeWire users possess the specific option to either share or keep private completed and/or partially downloaded files. Thus, Tremaine had the option to keep partial and complete downloads private. Yet, the screenshots from Tremaines computer which were admitted into evidence reveal that the following options were enabled: Share finished downloads and Allow partial sharing. The end result is that the partially downloaded files on Tremaines computer which contained child pornography were available to other users on the LimeWire network.

Indeed, the evidence indicated that other LimeWire users were actually accessing files in the “Incomplete” folder of Tre-maine’s computer — the same folder which contained the child pornography files — at the time the detectives seized his computer. Tremaine’s own expert testified that “37 of the files that were being accessed [at the time of the seizure of Tremaine’s computer] were found in the Incomplete folder.” The screenshots taken from Tre-maine’s computer which were admitted into evidence show that the LimeWire interface reports the status of ongoing uploads and downloads, including the speed (in kilobytes of data per second) at which uploading or downloading is occurring.

Detective Anderson testified that, during their first encounter, Tremaine indicated a working knowledge of the LimeWire software:

Q. And did he tell you how he used his LimeWire program?
A. He used it to download files.
Q. Did he indicate to you that he knew what it was for, what LimeWire was for?
A. Yes. Yes.
Q. Okay. And how did he do that?
A. Well, he just had a knowledge of— he indicated that he had downloaded files for quite some time. He had indicated that he first found child pornography through the system quite some time ago, he guessed a little bit less than a year, and demonstrated that he knew how this program worked.

The testimony would permit the jury to draw the inference that Tremaine had actively enabled the sharing of the files in his “Incomplete” folder. As discussed above, Tremaine’s LimeWire program was set to permit the sharing of incomplete files. While Detective Anderson testified that “there’s also a setting on LimeWire that I believe is by default, on the newer versions, that will allow you to share partial files,” this statement did not establish that the LimeWire program had set Tremaine’s computer to share files in the “Incomplete” folder automatically and without his knowledge. Indeed, the testimony of defense expert Greg Chatten suggests Tre-maine’s active involvement in determining which (if any) of his files would be shared. Chatten testified that, “[j]rom whatever setting you’ve put in LimeWire is to where your — what folder or folders you wish to share, yes.” Hence, the jury could reasonably conclude that Tremaine voluntarily enabled the sharing of files in his “Incomplete” folder, which constituted the offer to disseminate child pornography.

The jury’s verdict is also supported by the inconsistent statements Tremaine made prior to and at trial concerning his level of familiarity with the LimeWire program, and as to how that program, and the child pornography files, ended up on his computer. Detective Anderson testified that, during their initial encounter, Tre-maine specifically admitted that he had used LimeWire to download files, including files containing child pornography, and that he had located child pornography using the search terms “7yo” and “llyo” (which refer to seven- and eleven-year-old participants). Detective Anderson testified that the forensic examination of Tre-maine’s computer reflected that his Windows Media Player program had been used recently to view at least certain of the child pornography files.

Detective Anderson also testified that Tremaine “specifically said that no one had unmonitored access to his computer.” Tremaine explained to the detective “that one time he allowed a friend to download on his computer, but he was there and watched it and knew that he did not download child pornography. He also said that he allowed his children to play games on his computer, but he was always present.” Detective Anderson testified that, during their meeting at Tremaine’s home, Tre-maine made no claim that his home had been burglarized, and did not show the detective any damaged exterior door, or claim that anyone had broken into his house through an exterior door.

Tremaine’s testimony at trial was importantly different. He testified that a person he met at a bar, whom he knew only as “Gary,” set up the computer for him. Tre-maine also testified that Gary came to his house “a couple times” to assist Tremaine with computer problems. Tremaine testified that, “quite a few times,” he invited people he met at a bar over to his home, and implied that he often left these visitors unsupervised in his home while he went to purchase alcohol. Tremaine also claimed that he had told Detective Anderson that intruders had been entering his home while Tremaine was at work, and that he had showed the detective marks on a back door consistent with unlawful entry. Tre-maine testified at trial that he “didn’t, really” download audio files onto his computer; instead, “[a] lot of my friends and stuff did that.” Tremaine claimed further that he “always had help” downloading videos. When asked if he had downloaded child pornography, Tremaine responded vaguely that “I don’t think I did,” and insisted that he had never viewed child pornography on his computer.

During his trial testimony Tremaine also sought to explain away the incriminating statements he had made to Detective Anderson. When asked if he had admitted to the detective that he had downloaded child pornography, Tremaine claimed that “I wasn’t paying attention to what he was saying, because I was trying to keep a[n] eye on my kids.” While he ultimately may have agreed with Detective Anderson’s assertions that he searched for child pornography using terms like “7yo” and “llyo,” Tremaine testified that he did so only because the detective “brought it up five million times”; according to Tremaine, Detective Anderson “wouldn’t listen to me, and he just kept going over the same questions.”

Of course, the jury was entitled to believe Detective Anderson’s testimony as to Tremaine’s incriminating statements, and completely disregard Tremaine’s contrary trial testimony. State v. Hobbs, 106 5.W.3d 498, 509 (Mo.App. W.D.2003). But more than this, if the jury disbelieved Tre-maine’s efforts at trial to minimize his own familiarity with LimeWire, and his involvement in downloading child pornography, its rejection of Tremaine’s trial testimony provides important additional evidence supporting the guilty verdicts. See, e.g., State v. Speaks, 298 S.W.3d 70, 83 (Mo. App. E.D.2009) (“[Ejxculpatory statements, when proven false, demonstrate consciousness of guilt.”); Jones v. State, 197 S.W.3d 227, 233 (Mo.App. W.D.2006).

Based on the evidence described above, we believe a rational fact-finder could find that Tremaine set up the LimeWire software on his computer and was familiar with its operation, knew that he was downloading child pornography files from other individual computer users, enabled the sharing of files in the “Incomplete” folder of his computer, and was aware that by doing so other users would become aware of, and have access to, those files. This evidence is sufficient to support Tre-maine’s conviction for promoting child pornography by offering to disseminate it.

At points in its briefing and argument the State suggests that Tremaine’s use of the LimeWire file-sharing program, standing alone, would be sufficient to establish his guilt for promotion of child pornography. As discussed above, the evidence in this case does not require us to go so far. We note that in federal cases involving similar issues, including one on which the State relies, the evidence has disclosed far more than the mere use of a file-sharing program to establish the defendant’s guilt for distribution or transfer of child pornography. See, e.g., United States v. Dyer, 589 F.3d 520, 522, 531 (1st Cir.2009) (emphasizing that defendant admitted he knew that other users were accessing his files, and knew how to disable other users’ access to such files; specifically stating that the outcome of each case depends upon the particular facts and not on a per se rule); United States v. Sewell, 513 F.3d 820, 822 (8th Cir.2008) (defendant conceded “that he distributed child pornography using Kazaa”); United States v. Shaffer, 472 F.3d 1219, 1222 (10th Cir.2007) (defendant admitted in pretrial interview that he knowingly downloaded child pornography using Kazaa software, “knew that other people had downloaded child pornography from him” and sometimes left his computer running to enable such sharing, and “admitted that he stored images of child pornography in his Kazaa shared folder” because “Ka-zaa gave him ‘user points’ and various incentive rewards corresponding to how many images other users downloaded from his computer”).

II.

Tremaine also argues that the circuit court violated his right to be free from double jeopardy by accepting verdicts for both possession of, and offering to disseminate, child pornography, because the former is a lesser included offense of the latter. We disagree.

Protections against double jeopardy arise from the Fifth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, which provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” This provision protects defendants against (1) successive prosecutions for the same offense after either an acquittal or a conviction, and (2) multiple punishments for the same offense. State v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998). “Multiple convictions are permissible if the defendant has in law and in fact committed separate crimes.” Id.

In resolving a multiple-punishment double jeopardy claim, Missouri courts apply the “same-element” test, asking “whether each offense contains an element not contained in the other; if not, the Double Jeopardy Clause bars a successive prosecution.” State v. Bums, 877 S.W.2d 111, 112 (Mo. banc 1994). Therefore, “we simply determine the elements of the offenses at issue and compare them.... If both offenses have elements that the other lacks, then the guarantee does not bar the subsequent prosecution.” State v. Ramalea, 277 S.W.3d 807, 813 (Mo.App. W.D. 2009) (citations and internal quotation marks omitted). “Additionally, this test requires that the court ‘focus on the statutory elements, rather than on the evidence adduced at trial.’ ” Id. (citation omitted); see also State v. Daws, 311 S.W.3d 806, 808 (Mo. banc 2010) (“The focus is on the elements of the offenses at issue, not the underlying conduct that resulted in the defendant being charged.”).

Tremaine argues he could not be convicted of both crimes because possession of child pornography is a lesser included offense of promotion of child pornography by offering to disseminate it. He relies heavily on Ramalea, in which we found that possessing child pornography was a lesser included offense of promoting child pornography by disseminating computer video files, because it was impossible for a defendant to disseminate the files without first possessing them. 277 S.W.3d at 815. Thus, we held that the State’s attempted prosecution of both possession and promotion charges involving the same computer files subjected the defendant to double jeopardy. Id.

However, Ramalea specifically noted “that our holding refers only to a charge of promotion by dissemination and expressed] no opinion on whether possession is a lesser included offense when the promotion charge is based on any of the other methods of promotion provided by section 573.010(15).” Id. at 815 n. 5 (emphasis added). Here, the State charged Tre-maine with promotion by offering to disseminate child pornography, a different method of promotion than that involved in Ramalea. As a result, while Ramalea is instructive, it is not controlling.

A lesser included offense is defined as an offense “that is ‘established by proof of the same or less than all the facts required to establish the commission of the offense charged.’” State v. Angle, 146 S.W.3d 4, 11 (Mo.App. W.D.2004) (quoting § 556.046, RSMo). Put simply, “a ‘lesser offense is not included in a greater unless it is impossible to commit the greater offense without first committing the lesser.’ ” State v. Thompson, 147 S.W.3d 150, 159 n. 3 (Mo.App. S.D.2004) (quoting State v. Rirleland, 684 S.W.2d 402, 406 (Mo.App. W.D.1984)); see also State v. Derenzy, 89 S.W.3d 472, 474 (Mo. banc 2002).

Ramalea focused on the specific method of “promotion” at issue in that case — “dissemination” — and held that “the term ‘disseminate’ necessarily involves some form of possession prior to or during the act of dissemination.” 277 S.W.3d at 815. Ra.- malea relied on State v. Derenzy, 89 S.W.3d 472 (Mo. banc 2002), which found possession of marijuana to be a lesser included offense of delivery of a controlled substance within 2,000 feet of a school. In Derenzy, the relevant statute defined “delivery” to require a “transfer” of the contraband. The Court concluded:

Regardless of the method of transfer, one cannot deliver a substance without the power and intention to exercise dominion or control over the substance, necessitating some form of possession. Anyone who has delivered a controlled substance has necessarily possessed that substance. Therefore, the offense of possession of marijuana is a lesser included offense of delivery of a controlled substance within 2,000 feet of a school.

Id. at 474.

Applying the same analysis as Ka-maka and Derenzy, the relevant issue here is whether one can promote child pornography by offering to disseminate it (the specific offense charged against Tre-maine) without actually possessing it. We conclude that it is entirely possible to hold child pornography out, put it forward for consideration by others, or make it accessible without actually possessing the child pornography oneself. For example, a person could post internet links to websites containing downloadable child pornography, and offer to facilitate the acquisition of that material, without possessing the illicit material himself. Similarly, a person could offer to provide child pornography meeting requesters’ particular specifications, even though completing the transaction would require the offeror to first acquire, or create, materials meeting requesters’ demands. Thus unlike in Ka-maka, making an offer to disseminate child pornography does not “necessarily involve! ] some form of possession prior to or during the act of’ offering. 277 S.W.3d at 815.

Kamaka itself recognized a similar possibility. In Kamaka, the State argued that “a person could theoretically run an advertising campaign extolling the virtues of child pornography yet never possess any videos or images himself.” 277 S.W.3d at 814. The Court responded by stating that, “[wjhile the State’s example may support an argument that possession is not a lesser included offense of a promotion charge based on ‘advertising,’ the promotion charge against Kamaka specifically used the term ‘disseminate.’ ” Id. “Because Platte County charged Kamaka with promoting child pornography by disseminating it,” the Court was not required to decide “whether possession is a prerequisite for all of the terms included in the definition of ‘promote.’ ” Id.

Like Kamaka, we focus on the actual method by which the State charged Tre-maine with promoting child pornography: by offering to disseminate it. Because it is possible to offer to disseminate child pornography without first possessing it, possession of child pornography is not a lesser included offense of promotion of child pornography by offering to disseminate it. Therefore, given the specific offenses with which Tremaine was charged, the circuit court did not violate his right to be free from double jeopardy by entering a judgment convicting him of both possession and promotion of child pornography.

Conclusion

The judgment is affirmed.

All concur.

      . The facts are described in the light most favorable to the jury's verdict, consistent with the governing standard of review. Additional facts are detailed in our discussion of Tre-maine's sufficiency-of-the-evidence claim.

      . The State offered into evidence seven different computer files, each of which was found in the ''Incomplete” folder on Tremaine's computer. Tremaine stipulated at trial that the files contained child pornography, and from the graphic names of the files, as well as the evidence that at least some of the files had been viewed using the computer's media player, the jury could reasonably find that he knew that the files contained child pornography.

      . The quoted language was deleted from § 573.025.1 in 2009. See H.B. 62, 2009 Mo. Laws 237, 269.

      . As LimeWires website explains: LimeWire is the world's most popular peer-to-peer file sharing program. With over 50 million unique monthly users, the software is downloaded hundreds of thousands of times every day and boasts millions of active users at any given moment.” http://www.LimeWire.com/ about (last visited July 15, 2010).

      . An SHA 1 value is an alphanumeric signature which identifies an individual computer file, regardless of how the file is named on an individual computer. Besides being used by the search function of the Gnutella network, and by LimeWire, law enforcement agencies track the distribution of files containing known child pornography using the files' SHA 1 value, and can identify the Internet Protocol (or ''IP”) address downloading particular files by the same means.

      . Despite statements in numerous prior cases that a double jeopardy claim resolvable on the face of the record is not waivable, e.g., State v. Johnson, 245 S.W.3d 288, 293 (Mo.App. W.D. 2008), the State argues that we should hold to the contrary, and find that Tremaine waived his double jeopardy claim by failing to raise it below. Because the State concedes that Tre-maine would at a minimum be entitled to plain-error review under Rule 30.20, and our conclusion that Tremaine’s double jeopardy claim does not justify reversal, we need not further address the State's waiver argument.


source: Caselaw Access Project

author: CYNTHIA L. MARTIN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Anthony D. SIMPSON, Appellant.
    No. WD 70208.
    Missouri Court of Appeals, Western District.
    July 27, 2010.

      Ruth Sanders, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Robert J. (Jeff) Bartholomew, Jefferson City, MO, for respondent.
    Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Anthony Simpson appeals from the trial court’s judgment finding him guilty of voluntary manslaughter and armed criminal action after a jury trial. Simpson alleges that the trial court erred in denying- his motion for judgment of acquittal at the close of all the evidence. Simpson alleges there was insufficient evidence from which a reasonable jury could have found Simpson guilty of voluntary manslaughter in that a reasonable jury could not have found that Simpson acted under the influence of sudden passion arising from adequate cause. Since the jury acquitted Simpson of murder in the second degree, and since, according to Simpson, the evidence could not have supported a finding of sudden passion arising from adequate cause, Simpson argues that the only supportable verdict was acceptance of his defense of self-defense. Simpson thus argues that his conviction must be vacated. We affirm.

Factual and Procedural History

Although we consider the evidence and inferences in the light most favorable to the verdict disregarding all contrary evidence and inferences, the jury’s verdict could be supported by alternative views of the conflicting evidence that was presented. As such, we provide a summary of the testimony regarding the events leading up to Marcus Henson being shot and killed by Simpson on July 24, 2006.

Vincent Gipson, Simpson’s cousin, testified that he received a phone call from Simpson on July 24, 2006. Simpson told Gipson that he and a friend, Alicia Adams, had been robbed the night before. Simpson wanted a ride to go pick up Adams’s car which was taken during the robbery. Following the robbery, Simpson and Adams had seen Adams’s car, and thus knew where it was located. Gipson picked up Simpson and Adams and took them to Adams’s car. Both Simpson and Gipson were carrying guns.

Gipson testified that they saw Henson, Edward Green, and Tyree Winters walking away from Adams’s car. Adams identified one of the three men as the person who had taken her car keys during the robbery the night before. Gipson testified that as they were exiting his vehicle to approach the men, one of the men, Henson, pulled out a gun. Simpson and Gip-son demanded the keys from the three men. Simpson and Gipson “jumped” Henson. Simpson had a gun in his hand at this time. Henson dropped his gun. Simpson and Gipson proceeded to beat up Henson. Henson fought back by kicking and punching.

Gipson testified that when the fight started, Winters ran off down the street. Green stood back and watched the fight. During the fight, Green told Simpson and Gipson that Winters (not Henson) had Adams’s keys. Gipson and Green left to find Winters while Simpson and Henson kept fighting.

Gipson testified that while they were looking for Winters, he heard gunshots, so he ran around the corner back toward his vehicle. He saw Simpson running to the car. He saw Henson running in the opposite direction. Gipson got in his car and drove off with Simpson and Adams.

Green testified that when Simpson and Gipson pulled up, Green had been heading to Marquan Wilson’s house. Green stated that he was standing on the sidewalk when Simpson and Gipson got out of their vehicle carrying handguns. Green testified that he stood back as Gipson and Simpson fought with Henson. Green testified that he and Gipson then went looking for Winters and the keys. Green stated that he and Gipson soon returned to the scene of the fight and that Simpson then let Henson go. Green and Henson met up in the middle of the street and started running down the street away from Simpson. Green heard two gunshots. ■ Green heard Henson exclaim that he was hit. Green testified that he turned and saw Simpson with his gun pointed at them. Green and Henson separated, running in different directions.

When Green heard Gipson’s car leave the scene, he went to Wilson’s house. Green testified that Wilson came outside with his own gun and threw it in the yard because the police had arrived. On direct examination, Green testified that he believed that Henson did not have a gun during the fight with Simpson. On cross-examination, however, Green testified that he had gone to McDonald’s with Henson right before this incident and that Henson had a gun on his lap at the time.

Wilson’s stepson, Marcus Heard, testified that he was inside his home when he looked out the window and saw a car pull up. Heard saw Simpson exit the passenger side of the vehicle and saw Simpson begin arguing with Henson. Heard stated that Simpson held a gun to Henson’s head and ordered him to the ground and that Henson then ran. Heard said Henson tried to run across the street when Simpson fired shots toward Henson’s back. Heard testified that he did not see Green, Winters, or anyone else at the scene. Heard stated he never saw Simpson and Henson fighting.

The defense called Winters who testified that on the evening of July 23, 2006, he was at the Welcome Inn with Henson, Green, and some other people. At some point, Henson left their first floor room. While Henson was gone, Winters heard screaming from the second floor. Henson returned and, without explanation, Winters, Green, and Henson got into a car that Winters knew was stolen. Henson had money and car keys that he did not have earlier in the evening. The three then went to McDonald’s. Winters saw Henson with a gun during this time. At some point, Henson gave Winters the keys to the stolen car. Winters stated that when Gipson, Simpson, and Adams drove up, Henson had his gun out before Gipson and Simpson got out of Gipson’s vehicle. When Gipson and Simpson emerged from Gipson’s vehicle, Winters ran off.

Simpson testified that on July 24, 2006, at approximately 3:00 a.m., Simpson and Adams were in a second floor room at the Welcome Inn when Henson knocked on the door. When Simpson opened the door, Henson rushed in, along with Green and several others. Henson smacked Simpson in the face with a gun and demanded money. Simpson fell to the floor, and the others started beating him up. While being robbed, Henson held Simpson down on the ground, hitting him in the head with his gun. The group took Adams’s car keys and Simpson’s clothes, phone, and money.

Simpson and Adams got a ride home from a friend. On their way home, they spotted Adams’s vehicle exiting a McDonald’s. They trailed the car to 28th Street before proceeding home. Later that morning, Gipson gave Simpson and Adams a ride to retrieve Adams’s vehicle. They saw three men near Adams’s vehicle. Simpson recognized Henson, who already has his gun out, as the one who had robbed him. Gip-son exited his vehicle with his gun drawn, yelling at the three men to drop their guns. Simpson also exited Gipson’s vehicle with his gun. According to Simpson, Henson immediately dropped his gun, and Simpson put his own gun into his pocket. Simpson ran over to Henson, demanding the property that had been stolen, including the car keys. A fight began. Both Henson and Green start yelling that Winters had the stolen keys. Green and Gip-son ran off to look for Winters.

Simpson testified that he eventually stopped fighting with Henson and let Henson go because he realized that Henson did not have the ear keys. Simpson stated that as Henson was walking off, Simpson told him not to pick up his gun. Henson picked up his gun, pointed it at Simpson, and said, “Fuck you, you ain’t getting your shit.” Simpson stated that he shot Henson twice because he thought Henson was going to shoot him. Simpson stated that it happened so fast that he did not even aim. Simpson got back in the passenger seat of Gipson’s car and saw Henson running down the street. Simpson did not know if he had shot Henson. Simpson testified that he had no intention of shooting Henson when he, Gipson, and Adams set out to retrieve Adams’s car.

Henson’s body was found by police in the backyard of a nearby house. Dr. Miguel Laboy testified that Henson died from a bullet wound that entered the left side of his back and exited the right side of his chest. He had also been shot in his left leg and had several abrasions on his lip, face, and knee.

Simpson was charged with murder in the second degree and armed criminal action. During the instruction conference at the jury trial, the State proposed instructions and verdict directors for both murder in the second degree and voluntary manslaughter. Simpson did not object to the voluntary manslaughter instruction. The jury was also instructed on self-defense. Neither the State nor Simpson argued for voluntary manslaughter during closing argument. The State argued that the evidence supported a conviction for second degree murder. Simpson argued that the evidenced supported an acquittal based on self-defense.

During deliberations, the jury asked several questions, including whether they could convict of armed criminal action without convicting of either second degree murder or voluntary manslaughter. The jury questioned what would happen if they could not reach a verdict, and twice reported they were hung at 7-5. Continued deliberations were encouraged, and the jury ultimately found Simpson guilty of voluntary manslaughter and armed criminal action. Simpson was sentenced to concurrent terms of twenty years imprisonment for each count. Simpson appeals.

Standard of Review

Our role is limited to determining whether the State presented substantial evidence from which a trier of fact could have reasonably found Simpson guilty of voluntary manslaughter beyond a reasonable doubt. State v. Duff, 281 S.W.3d 320, 325 (Mo.App. W.D.2009). “We consider the evidence and inferences in the light most favorable to the verdict, disregarding all contrary evidence and inferences.” Id. Circumstantial evidence by itself can be sufficient to support a conviction. State v. Robertson, 262 S.W.3d 285, 288 (Mo.App. W.D.2008). “‘Substantial evidence is evidence from which a juror could reasonably find the issue in harmony with the verdict.’” State v. Bruce, 53 S.W.3d 195, 198 (Mo.App. W.D.2001) (citation omitted). “‘Where different inferences are reasonably deducible from the facts and circumstances of the case, it is for the triers of fact to determine which inference shall be drawn and [this court] may not cast aside their inferences for another of its own choice.’ ” State v. Butler, 24 S.W.3d 21, 27 (Mo.App. W.D.2000) (citation omitted). This court “does not determine credibility of witnesses, resolve conflicts in testimony, or weigh evidence, as these tasks are quite properly left to the jury.” Id.

Analysis

For his sole point on appeal, Simpson alleges that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence because there was insufficient evidence to support a conviction of voluntary manslaughter in that a reasonable jury could not have found beyond a reasonable doubt that Simpson acted under the influence of sudden passion arising from adequate cause. Simpson contends that the evidence established that either he was guilty of murder in the second degree or that he acted in self-defense and was guilty of nothing at all. Since the jury acquitted Simpson of murder in the second degree, and since (according to Simpson), the jury could not have found him guilty of voluntary manslaughter, Simpson argues that the evidence could only be viewed to support that he acted in self-defense. Simpson thus argues that his convictions must be vacated. We disagree.

“A person commits the crime of murder in the second degree if he knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person[.]” Section 565.021.1(1). Section 565.023(1) provides that “[a] person commits the crime of voluntary manslaughter if he [cjauses the death of another person under circumstances that would constitute murder in the second degree ... except that he caused the death under the influence of sudden passion arising from adequate cause.”

Sudden passion is defined as “passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation.” Section 565.002(7). Adequate cause is “cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person’s capacity for self-control.” Section 565.002(1). Adequate cause requires a showing of “a sudden, unexpected encounter or provocation tending to excite the passion beyond control such that it renders a person of ordinary temperament incapable of reflection, or such passion as to obscure reason.” State v. Price, 928 S.W.2d 429, 431 (Mo.App. W.D.1996). Passion, whether rage, anger, or terror, must be so extreme that for the moment, the conduct is driven by passion, not reason. Id. It is not sudden passion where there has been time for the passion to cool. Id.

Simpson argues that the testimony presented to the jury simply could not have supported a finding of sudden passion arising from adequate cause. Simpson argues that he and Henson had stopped fighting and that Henson was leaving the scene, such that any passion that existed during the fight had “cooled.” Though, according to Simpson, Henson did yell back at him while leaving the scene, Simpson points out that words alone cannot support a finding of “sudden passion.” State v. Redmond, 937 S.W.2d 205, 208 (Mo. banc 1996). Simpson then argues that since the jury acquitted him of second degree murder, the jury must have believed that Henson pulled a gun on him when leaving the scene. Otherwise, according to Simpson, the jury would have found him guilty of second degree murder for shooting an unarmed man. Finally, Simpson argues that as the jury “must have believed” that Henson pulled a gun on him, the evidence could only have supported a finding of self-defense. Simpson’s logic, albeit creative, is flawed.

Simpson’s logic relies heavily on the fact that the jury acquitted him of second degree murder but ignores that the jury also expressly rejected his defense of self-defense. The verdict director for voluntary manslaughter included the standard “affirmative defense tail,” advising the jury it had to conclude, in order to convict Simpson of voluntary manslaughter, that “defendant did not act in lawful self-defense as submitted in instruction No. 9.” If, as Simpson requests, we are to afford inscrutable respect to the jury’s determination that Simpson was not guilty of second degree murder, we must afford the same respect to the jury’s express rejection of Simpson’s defense of self-defense. Thus, the sole and only question before us is whether, notwithstanding Simpson’s contention to the contrary, the evidence, and the inferences drawn from the evidence, support a conclusion that Simpson shot Henson under the influence of sudden passion arising from adequate cause. We conclude that the evidence, viewed in the light most favorable to the verdict, does support this conclusion.

The Supreme Court addressed a similar situation in State v. Fears, 803 S.W.2d 605 (Mo. banc 1991). Fears engaged in a heated argument with the victim resulting in Fears hitting the victim, the victim hitting his head on the ground, and the victim dying as a result of a fracture to the back of his skull. Id. at 607. Fears was charged with second degree murder but convicted of voluntary manslaughter. Id,. at 606. Fears claimed that there was insufficient evidence to support the verdict. Id. at 608. The Supreme Court found that the record refuted Fears’s claim, noting the escalation included waving fingers at each other, calling Fears’s children liars, calling the victim a liar, the victim swinging at Fears, and then Fears counter punching the victim. Id. at 608-09. The court noted that although the record supported that Fears possessed a prior intent to cause injury to the victim, the record also supported that the victim’s provocation of Fears resulted in Fears’s reactional striking of the victim. Id. at 609. The Supreme Court concluded that there was sufficient evidence to acquit Fears of murder in the second degree and to convict him of voluntary manslaughter based on the aggregate of insulting words, offensive gestures, and physical contacts that were sufficient to put Fears in fear of serious bodily harm, within a time span insufficient for Fears’s anger to cool, and sufficient for reasonable persons to find that Fears acted out of sudden passion. Id.

Similarly, the jury heard evidence of the escalating activity that led to Simpson shooting Henson. Simpson testified about being attacked by an armed Henson at the motel and the theft of Adams’s vehicle. Simpson testified regarding the confrontation during efforts to recover the stolen vehicle including: Henson pulling a gun, the physical fight between Henson and Simpson, his letting Henson go, Henson starting to walk away, Simpson telling Henson not to pick up his gun, Henson picking up his gun and pointing it at Simpson, and Henson’s statement “Fuck you, you ain’t getting your shit.” Simpson testified that he then shot Henson, clearly a reactional decision.

Notwithstanding Simpson’s characterization to the contrary, these facts aggregate to show more than just an exchange of words. As in Fears, the aggregate of the prior assault, the insulting words, the offensive gestures, and the physical fight were sufficient for a reasonable person to have concluded that Simpson shot Henson under sudden passion from adequate cause with insufficient time for his anger to cool. As in Fears, it is immaterial that the evidence in this case may have supported a different determination if the evidence, when viewed in the light most favorable to the verdict, supports that Simpson acted with sudden passion.

The fact that the jury heard testimony which conflicted with Simpson’s testimony does not affect our analysis. The jury was free to accept or reject any of the testimony it heard. Redmond, 937 S.W.2d at 209. Specifically, the jury did not have to believe that the end of the fight and Simpson’s “release” of Henson supported the conclusion that Simpson’s sudden passion had cooled. Moreover, Simpson’s assertion that his acquittal on the charge of second degree murder necessarily meant the jury believed that Henson pulled a gun on Simpson is without merit. The jury could just as easily have concluded that Simpson saw, or thought he saw, Henson pull a gun but that Simpson did not act in a manner consistent with the legal standard sufficient to support a conclusion of self-defense. Or the jury could have believed that Henson did not have a gun and that the aggregate of the circumstances still warranted a conclusion that Simpson shot Henson out of sudden passion, even though the physical fight between the men had just ended.

In the end, notwithstanding Simpson’s attempt to distinguish his case given his assertion of the defense of self-defense, Simpson’s position on appeal falls squarely ■within the scope of section 545.030.1(17), which provides that no judgment shall be affected “[bjecause the evidence shows or tends to show [a defendant] guilty of a higher degree of the offense than that of which he is convicted.” Simpson’s case is not distinguishable from State v. Cox, 508 S.W.2d 716, 724 n. 4 (Mo.App.1974), or State v. Lewis, 955 S.W.2d 563, 565-66 (Mo.App. W.D.1997), both of which conclude that section 545.030.1(17) validates a conviction for voluntary manslaughter even though the evidence may have supported conviction for a higher degree of homicide.

Sufficient evidence was presented from which the jury could find Simpson acted under the influence of sudden passion arising from adequate cause to support his conviction of voluntary manslaughter. The trial • court did not err in denying Simpson’s motion for acquittal at the close of all the evidence.

Conclusion

We affirm the trial court’s judgment.

All concur.

      . State v. Duff, 281 S.W.3d 320, 325 (Mo.App. W.D.2009).

      . All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

      . Notably, Simpson ignores in his brief any discussion of the elements of the lawful defense of self-defense as instructed in Instruction No. 9, and he improvidently presumes that the mere fact that Simpson thought he saw Henson with a gun would have required the jury to acquit Simpson as a matter of law. A defendant is only entitled to acquittal as a matter of law when the evidence establishing self-defense is undisputed and uncontradict-ed. State v. Christie, 604 S.W.2d 806, 808 (Mo.App. W.D.1980). "Where there is conflicting evidence, or when different inferences can reasonably be drawn from the evidence, it is a question of fact for the jury whether the defendant acted in self-defense.” State v. Allison, 845 S.W.2d 642, 646 (Mo.App. W.D.1992). Whether or not the jury believed Henson had a gun, the jury was not obliged to conclude on this contradictory record that Simpson, the initial aggressor, withdrew from the encounter with Henson, and it was not obliged to conclude that Simpson reasonably believed he was in imminent danger of harm from Henson. Redmond, 937 S.W.2d at 209. Nor was the jury obliged to conclude, even if Simpson reasonably believed he was in imminent danger, that Simpson used force neces-saiy to protect himself.


author: PER CURIAM:

text:
    Shauna M. SLOAN, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. WD 71484.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2010.
    Michael W. Walker, Esq., Kansas City, MO, for appellant.
    Jonathan H. Hale, Esq., for respondent.
    Before: JOSEPH M. ELLIS, P.J. and ALOK AHUJA and CYNTHIA L. MARTIN, JJ.
   ORDER

PER CURIAM:

Shauna Marie Sloan was arrested for driving while intoxicated on June 28, 2008. On September 5, she was notified that her driving privileges would be suspended following an administrative hearing. Sloan then petitioned for and received a trial de novo in the Clay County Circuit Court. The circuit court upheld the suspension of Sloan’s driving privileges.

Sloan appeals. In her sole Point Relied On, she contends that the Director of Revenue failed to establish a prima facie case for suspension of her driving privileges because the Director did not admit into evidence a narrative statement of the arresting officer’s grounds for believing that Sloan had been driving while intoxicated, which she contends was required by § 302.510.1, RSMo. We affirm. Because a published opinion would have no prece-dential value, a memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


text:
    Larry FRYE, Respondent, v. SPEEDWAY CHEVROLET CADILLAC, et al., Appellants.
    No. WD 71756.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2010.

      Charles K. Baldwin, Liberty, MO, for respondent.
    Kevin D. Case and David J. Roberts, Kansas City, MO, for appellants.
    Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Speedway Chevrolet Cadillac, Inc. (“Speedway”), Daniel F. Ladd (“Ladd”), the President of Speedway, and Brice Ack-erman (“Ackerman”), the General Sales Manager of Speedway, (collectively the “Defendants”) appeal from the trial court’s order denying Defendants’ motion to compel arbitration of Larry Frye’s employment related claims. The Defendants contend that a program adopted by Speedway after Larry Frye began employment with Speedway and is a legally enforceable contract. We affirm the trial court’s denial of Defendants’ motion to compel arbitration. 84.16(b).

      . This Order has been issued contemporaneously with this Court’s Opinion in Kimberly Frye v. Speedway Chevrolet Cadillac, WD 71757. Mr. Frye’s motion for consolidation of this case with the aforesaid case was taken with the case and is denied.


author: HOLLY M. KIRBY, J.,

text:
    Patricia Anne Gho MASSEY v. Gregory Joel CASALS.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    May 19, 2009 Session.
    Nov. 23, 2009.
    Permission to Appeal Denied by Supreme Court May 17, 2010.

      Wendy S. Dabbous and Jessica May Thomas, Memphis, Tennessee, for Respondent/Appellant Gregory Joel Casals.
    Robert E. Cooper, Jr., Attorney General and Reporter, and Warren A. Jasper, Nashville, Tennessee, for the Tennessee Department of Human Services, on behalf of Petitioner/Appellee Patricia Anne Gho Massey.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which DAVID R. FARMER, J. and J. STEVEN STAFFORD, J., joined.

This is a child support case. The mother filed a petition to increase the father’s child support obligation, alleging that he had misrepresented his gross ineome. After an evidentiary hearing, the juvenile court judge entered an order finding that the father’s testimony was not credible and that he earned significantly more income than he previously represented. The order increased the father’s monthly child support obligation, retroactive to the date of the filing of the mother’s petition. It also required the father to pay for the child’s private school tuition, and awarded the mother her attorney’s fees. The father appeals, arguing inter alia that the trial court erred in not using evidence such as his tax returns to determine his income, in not finding the mother voluntarily underemployed because she worked part-time, and in requiring him to pay private school tuition. We affirm.

Facts and Procedural History

This appeal is the latest installment in an ongoing dispute between Petitioner/Ap-pellee Patricia Anne Gho Massey (“Mother”) and Respondent/Appellant Gregory Joel Casals (“Father”) over support for their child, born May 10, 1994. As background, the parties were never married to one another, but lived together when the child was born. An order of legitimation was entered within a year after the child’s birth. After they separated, Father’s child support obligation was set by consent in August 1997.

Mother is a college graduate. After Mother and Father separated, Mother married. At the time of the proceedings below, she had two small children, not yet school age. After her youngest children were born, Mother reduced her employment from full-time to part-time.

Father is a college graduate as well, and has worked for many years as a financial analyst. He also married, and the record indicates that at the time of the proceedings below, his wife was a student in law school in Memphis. They also had two children; both attended private schools in Memphis.

The parties’ disputes began in late 1997 and early 1998. Although the parties’ disagreements included the designation of primary residential parent and the allocation of residential parenting time, this appeal involves only issues surrounding child support, so we will limit our discussion to the facts pertinent to the subject of this appeal.

In August 1997, the parties agreed to an order reducing Father’s child support obligation from $1,365 per monthly to $1,300 per month. By February 1998, Father had moved from Tennessee and had obtained employment in New York. In light of this change, Father filed a petition to reduce his child support obligation. In May 1998, the trial court reduced Father’s child support obligation to $982.80 per month. At some point thereafter, Father relocated to California, and, subsequently, Father was involuntarily laid off from his employment. As a result, in October 2002, he filed another petition to reduce his child support obligation. In December 2002,

Father’s child support obligation was temporarily reduced to $250 per month, and in June 2003, it was increased to $369 per month. Finally, in an order entered January 12, 2004, the trial court modified Father’s child support obligation to $763 per month and ordered him to make the payments via income assignment. On March 30, 2004, in a separate order, the trial court affirmed its January 2004 modification. In the January 2004 proceeding, to set the level of child support, the trial court relied in part on a letter dated December 2003 from Harmonic Capital Partners, LLC, offering Father employment in Tennessee at a salary of $70,000 per year.

On August 24, 2005, Mother filed a petition to increase Father’s child support obligation. The petition also sought to have Father held in criminal and civil contempt, alleging that Father had willfully and purposefully misrepresented his income to the trial court in the hearing that resulted in the January and March 2004 orders. In support of her allegation, Mother claimed that the December 2003 letter offering Father employment was inconsistent with a mortgage application Father signed in March 2004. In the mortgage application, Father asserted that his compensation was derived as the sole owner of Harmonic Capital Partners, LLC, at a level of $20,000 per month, or $240,000 per year, far in excess of the $70,000 per year salary recited in the December 2003 letter. On January 31, 2006, Father filed a petition to reduce his child support, asserting that his employment with Harmonic Capital Partners, LLC was terminated in December 2005. Discovery, and discovery disputes, ensued.

On December 5 and 11, 2006, Juvenile Court Referee Claudia Haltom conducted a hearing on both parties’ petitions to modify Father’s child support obligation. After the hearing, Referee Haltom entered detailed findings of fact and conclusions of law that reflected the Referee’s perception that Father was repeatedly untruthful in his testimony concerning his income:

The court finds that Mr. Casals has not been forthcoming or credible with proof of his income at any time during these proceedings. Mr. Casals has intentionally and purposely misrepresented his income to the court. Mr. Casals’ testimony regarding his income has consistently been evasive and unresponsive. He has not submitted adequate or credible proof of income nor has he addressed his own personal internet trading or personal investments satisfactorily to the court. His personal expenses are totally inconsistent with his testimony.
... As proof of his income Mr. Casals submitted a letter dated December 20, 2003 wherein he represents that he was offered employment with Harmonic Capital Partners LLC with an annual salary of $70,000.... At no point is there any indication that Mr. Casals was in fact a majority owner with Harmonic Partners LLC_ In court, Mr. Casals testified that this letter was solicited in anticipation of the child support hearings.
Mr. Casals received a reduction in his child support in 2004 based on this letter.... During this time period his lifestyle continued to reflect income significantly higher than $70,000.
On March 2, 2004, Mr. Casals filed a Uniform Residential Loan Application ... for the purchase of a house ... for a total home loan of $539,800. In this application he represents to the lending institution ... that his monthly income was $20,000.00, or $240,000 per year. He represents that he is the owner of Harmonic Capitol Partners, not a mere employee. He represents that he has total assets of $435,000 with liquid assets from his E Trade account of $400,000. He represents that he pays $659.00 per month for his Mercedes automobile. He represents that he has no child support obligation.
Either Mr. Casals committed perjury or bank fraud or both. His testimony was that the loan was based on his wife’s income and the E Trade account has been handled by his wife. Neither the mortgage application nor the E Trade account include his wife’s name. The home is solely owned by Gregory J. Casals, with no co-borrower.
For the year 2004, Mr. Casals[’] .... [t] otal annual credit card payments ... were $141,930.60 in the year he claims to have made only $70,000.00.
Mr. Casals’ justification for this inconsistency is that he alleges he had business expenses. The court saw no receipts, no documents, no reimbursements and no proof of such business expenses.
For the year 2006 Mr. Casals .... alleges that on December 16, 2005 he was terminated from his employment with Harmonic Partners LLC and his child support should be further reduced from $763.00 per month. The same month he claims to have lost his job, he hired a contractor to continue the renovation on his home [in] Memphis, Tennessee. He testified that he has been renovating the home for the past two years and is now renovating the kitchen. He stated under oath that the money to pay for the home renovations is coming from his wife’s student loans for law school....
Mr. Casals stated that his wife has worked part-time for West Publishing Co. in 2006 while she is in law school, but he has no idea how much she makes. He stated that in 2004 and 2005 she did not work and earned no income. He has two in home children, one of which attends the same private school as this child [with Mother],

After finding that Father had been neither forthcoming nor credible regarding his income, and in light of proof submitted at the hearing of Father’s high standard of living, Referee Haltom found Father’s income to be the amount claimed in his March 2004 mortgage application, $20,000 per month. Father’s child support obligation was increased accordingly. Father then requested a hearing by the juvenile court judge.

After Father’s request for a hearing, the juvenile court judge recused himself, and a special judge, Judge William A. Peeler, was assigned to hear the case. Subsequently, Father lodged a challenge to the constitutionality of Tennessee Code Annotated section 71-3-124(c), at which time the Attorney General’s Office intervened to address the constitutionality issue.

At the outset of the hearing, Judge Peeler dismissed Father’s challenge to the constitutionality of the statute. He then heard testimony from Mother, Father, Mother’s employer, Mother’s father, and Father’s wife. Additionally, some twenty-seven exhibits were submitted into evidence; these outlined various expenses expected to be incurred for the child, and the financial circumstances of Mother, Father, and Father’s wife. At the conclusion of the hearing, Judge Peeler took the matter under advisement.

On July 30, 2008, Judge Peeler entered an order detailing his findings. Similar to Referee Haltom, Judge Peeler’s findings emphasized Father’s evasiveness and prevarication:

Mr. Casals is a financially sophisticated individual.... He owns or has owned part or all of several investment companies. His tax returns reflect he traded stock and stock options in 2004 valued at $1,920,809 and in 2005, $11,837,355. In 2004, he purchased a home for $568,000 and in late 2005 and early 2006, he undertook additions and renovations to that home costing in excess of $22,000. His two in home children both attend private school. He spends many thousands of dollars on his credit cards. There is no proof that he has ever been delinquent on the house note or any of his debts. Notwithstanding all this, in March 2004, Mr. Casals petitioned the Courts and was granted a reduction in his child support, apparently based upon testimony and proof submitted that his yearly income was only $70,000.00.
... At the present hearing, the Court has found Mr. Casals vague, uncooperative and evasive of the truth. Although he is very financially savvy, trades in millions of dollars of stock, and advises others on their finances, he knows little of his own finances. He did not know how much money his wife makes, which bills she pays and which he pays, and from which or whose account various family expenses are paid. The tax returns provided the Court by Mr. Casals are unsigned, incomplete, ambiguous, and contradictory of his testimony. There was no reliable evidence presented of exactly what Ms. Casals’ income is and no reliable evidence that explains how he sustains his lifestyle on his stated income.
In Trial Exhibit 20, Uniform Residential Loan Application, which Mr. Casals signed March 29, 2004, almost contemporaneously with the 2004 Court proceeding where his child support was reduced, Mr. Casals made application ... to purchase a house costing $568,300. In that application, he stated that his monthly income was $20,000 per month and that he was 100% owner of Harmonic Capital Partners, both of which are contrary to what he represented to the Court. Mr. Casals tries to explain that his stated $20,000 per month income includes Mrs. Casals’ income, but the loan application nowhere indicates that as is clearly required, nor do the Casals’ tax returns or any other i’eliable evidence corroborate same. After careful consideration of the record, testimony, and all trial exhibits, the Court has concluded that the most reliable proof of Mr. Casals[’] income is the amount which he acknowledged as true and correct on his Residential Loan Application, that being $20,000 per month and further that he misrepresented his income in obtaining the 2004 reduction in child support....

Thus, Judge Peeler characterized the financial documents provided by Father as untrustworthy, found that the most reliable proof of Father’s income was the March 2004 mortgage application, and so held Father’s income to be the $20,000 per month income figure on the application. Accordingly, Father’s child support obligation was increased, retroactive to the date of filing Mother’s petition, with credit for amounts paid during this time. Judge Peeler noted that Father’s other two children attended private school, and found that it was appropriate to deviate from the Guidelines to provide this benefit to the child at issue; thus Father was ordered to pay the child’s private school tuition as well. Father’s petition to reduce his child support obligation was dismissed. Finally, Mother was awarded her attorney’s fees. From this order, Father now appeals.

Issues on Appeal and StandaRD of Review

Slightly restated, Father raises the following issues on appeal:

1.Whether the trial court erred in failing to properly determine Father’s income under the Tennessee Child Support Guidelines.
2. Whether the trial court erred in failing to find Mother voluntarily underemployed and failing to impute income to Mother.
3. Whether the trial court erred in including private school tuition as a deviation.
4. Whether the trial court erred in implicitly finding Father’s child support to be in arrears, prior to applying the retroactive modification, by failing to give Father credit for child support paid directly to Mother.
5. Whether the trial court erred in its calculation of retroactive child support by applying the determined income figure to the entire time period at issue, by failing to use actual parenting time, by failing to use the correct number of months, by failing to use the correct amounts for insurance, by including tuition for past years, and by including expenses for the child’s extracurricular activities.
6. Whether the trial court erred in failing to conduct a de novo hearing as defined by Tennessee law.
7. Whether the trial court erred in awarding attorney’s fees to Mother.

In a child support modification case, the trial court’s findings of fact are reviewed de novo with a presumption of correctness. See Lacey v. Lacey, No. W2002-02813-COA-R3-CV, 2003 WL 23206069, at *2 (Tenn.Ct.App. Oct. 31, 2003), no perm. app. (citing Huntley v. Huntley, 61 S.W.3d 329, 334 (Tenn.Ct.App.2001)). On appeal, considerable deference is given to the trial court’s determinations of the credibility and weight to be given to witness testimony because “the trial court [had] the opportunity to observe the witnesses’ demeanor and hear the in-court testimony.” Interstate Meek Contractors, Inc. v. McIntosh, 229 S.W.3d 674, 678 (Tenn.2007) (citing Tobitt v. Bridge-stone/Firestone, Inc., 59 S.W.3d 57, 61 (Tenn.2001); McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.Workers Comp.Panel 1995)). “The trial court’s conclusions of law are reviewed de novo, with no presumption of correctness.” Lacey, 2003 WL 23206069, at *2 (citing Huntley, 61 S.W.3d at 334).

Analysis Father’s Income

Father first argues that the trial court erred in determining his gross income under the Tennessee Child Support Guidelines (“Guidelines”) by using the substantially larger income figure in his 2004 mortgage application instead of the income figures in his W-2s, federal income tax returns, and 2008 pay stub. In support of this assertion, Father relies on the Guidelines provisions on imputing income. These provisions refer to “reliable evidence of income” to be used in imputing income, stating parenthetically that such reliable evidence of income can include “tax returns for prior years, check stubs, or other information for determining current ability to support.” Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(iv)(II)I (2009). Father argues that, because mortgage applications are not included in the list of “reliable evidence of income” in this Guideline provision, and tax returns and check stubs are included in the list, the trial court erred by not using his tax returns and current pay stub to determine his income. In support of the assertion, he cites Brewer v. Brewer, No. M2005-02844-COA-R3-CV, 2007 WL 3005346, at *10 (Tenn.Ct.App. Oct. 15, 2007), no pern, app. (citing Tenn. Comp. R. & Regs. 1240-02-04-.04(3) (a)(2) (iv)(I)(I.) (2007)).

The Guidelines provisions relied upon by Father state:

(3) Gross Income
(a) Determination of Gross Income.
2. Imputed Income.
(i) Imputing additional gross income to a parent is appropriate in the following situations:
(I) If a parent has been determined by a tribunal to be willfully and/or voluntarily underemployed or unemployed; or
(II) When there is no reliable evidence of income; or
(III) When the parent owns substantial non-income producing assets, the court may impute income based upon a reasonable rate of return upon the assets.
(iv) Imputing Income When There is No Reliable Evidence of Income
(II) When modifying an Existing Order
1. If a parent fails to produce reliable evidence of income (such as tax returns for prior years, check stubs, or other information for determining current ability to support)

Tenn. Comp. R. & Regs. 1240-02-04-,04(3)(a)2(i) and (iv) (2009) (emphasis added).

The fairness of a child support award depends on an accurate determination of both parents’ gross income or ability to support. Thus, the Guidelines set forth the method to be used by courts in determining the gross income of each parent. Tenn. Comp. R. & Regs. 1240-02-04-.04(S)(a) (2009). In most situations, the parent’s gross income is equivalent to his earning capacity or ability to support.

In certain limited situations, however, the Guidelines provide that a court may “impute” income to a parent, that is, assign or attribute an income level to the parent that may not reflect the parent’s actual gross income. This is based on the premise that parents may not avoid their financial responsibility to their children by unreasonably failing to exercise their earning capacity. Thus, the Guidelines state that income may be imputed to a parent who is willfully or voluntarily underemployed. Id. at 1240 — 02—04—.04(3) (a)2 (i) (I). Income may also be imputed to a parent where the court has been provided no reliable evidence of the parent’s income. Id. at 1240-02-04-.04(3)(a)2(i)(II).

For example, in Brewer v. Brewer, cited by Father, the appellate court reversed the trial court’s finding that the retired obligor parent was willfully or voluntarily unemployed. Brewer, 2007 WL 3005346, at *10. The appellate court also found that the obligor parent’s retirement account statement was reliable evidence of his actual income. Id. Therefore, it was not appropriate to impute income to the obligor parent, and the support obligation was set in accordance with the retirement account statement. Id.

In this case, there was no allegation that Father was willfully or voluntarily underemployed. Instead, the trial court was presented with the issue of whether Father actually made more income than he claimed in the January 2004 hearing. The trial court specifically found that the evidence of income submitted by Father was not reliable, describing Father’s tax returns as “unsigned, incomplete, ambiguous, and contradictory of his testimony.” From our review, the record supports this finding. The trial court did not, however, “impute” income to Father, because it found that the 2004 mortgage application constituted reliable evidence of his income. It found that Father’s actual income was the income claimed in the 2004 mortgage application, $20,000 per month or $240,000 per year. From our review of the record, including the evidence of Father’s expenses and lifestyle, this finding is likewise supported by the record.

Father seems to assert that the trial court was obliged to find that his income was the amount indicated on the tax returns and check stubs he proffered to the court, simply because the Guidelines cite the tax returns and check stubs as examples of usually reliable evidence of income. This argument is without merit. In light of the trial court’s finding that the tax returns and check stubs are unreliable, we would be ill-advised to require the trial court to utilize them to determine Father’s income. Therefore, we affirm the trial court’s determination of Father’s income for purposes of setting his child support obligation.

Voluntary Underemployment of Mother

Father next asserts that the trial court erred in failing to find Mother is voluntarily underemployed and in declining to impute income to her. As noted above, the Guidelines provide that a court may impute income “[i]f a parent has been determined by a tribunal to be willfully and/or voluntarily underemployed.” Tenn. Comp. R. & Regs. 1240-02-04-,04(3)(a)2(i)(I) (2009). The burden was on Father to prove that Mother is willfully underemployed. The Guidelines do not presume that a parent is willfully underemployed; rather “[t]he purpose of the determination is to ascertain the reasons for the parent’s occupational choices, and to assess the reasonableness of these choices in light of the parent’s obligation to support his or her child(ren) and to determine whether such choices benefit the children.” Tenn. Comp. R. & Regs. 1240-02-04 — .04(3)(a)2(ii) (2009).

In the hearing before the trial court, Mother testified that she went from being a full-time worker to a part-time worker after the birth of her second child. Testimony from both Mother and her employer indicated that the birth coincided with a personnel restructuring by her employer. After that, Mother gave birth to her third child. Both Mother and her employer testified that, after the third child was born, there was no longer a full-time position available for Mother. Mother also testified that working part-time better enabled her to care for her young children. The trial court made no express finding on Father’s assertion that Mother was underemployed, but dismissed his petition, thus implicitly determining that Mother’s decision to work part-time was reasonable and did not constitute willful or voluntary underemployment under the circumstances.

Father acknowledges that Mother’s choice to work part-time may benefit her two youngest children, not school-age at the time of the hearing, but argues that her working part-time does not benefit the child at issue, who was fourteen years old at the time of the hearing. Thus, Father argues, as to the fourteen-year-old, Mother must be deemed voluntarily underemployed and the trial court erred in declining to impute full-time earnings to her.

The Guidelines do not support the myopic view advocated by Father. We are not willing to assume that Mother’s decision to work part-time instead of full-time does not also benefit the parties’ fourteen-year-old, but even if this were true, it would not necessarily mean that Mother’s occupational choice was unreasonable. Indeed, the Guidelines clearly reflect State policy supporting a parent’s reasonable decision to stay at home full-time to care for children:

The following factors may be considered by a tribunal when making a determination of willful and voluntary underemployment or unemployment:
(III) The State of Tennessee recognizes the role of a stay-at-home parent as an important and valuable factor in a child’s life.

Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)2(iii)(III) (2009). Notably, this recognition in the Guidelines of the role of the stay-at-home parent is not limited to children who are not yet school age. Under these overall circumstances, where Mother was charged with caring for two very young children in addition to the parties’ child, and where Mother’s long-time employer no longer had a full-time position available to her, we find no error in the trial court’s implicit conclusion that Father did not carry his burden of proving that Mother was voluntarily underemployed.

Private School Tuition

Father next asserts that the trial court erred by ordering an upward deviation from the Guidelines to require Father to pay private school tuition. Father states that he did not receive notice that tuition would be an issue at the hearing, as Mother did not plead for it in her petition to modify.

Under the Guidelines, a court may grant an upward deviation to award tuition as an extraordinary educational expense, in addition to the obligor parent’s basic child support obligation. Tenn. Comp. R. & Regs. 1240-02-04-.07(2)(d)l(i) (2009); see Kaplan v. Bugalla, 188 S.W.3d 632, 635-36 (Tenn.2006). The award of “such deviation is within the discretion of the tribunal.” Tenn. Comp. R. & Regs. 1240-02-04-.07(l)(b) (2009).

We note that Mother testified that, in advance of the hearing, she emailed Father to request that he pay half of the child’s tuition; his response was that if Mother had “any questions or problems with tuition ... to get the matter settled before the Court.” The trial court could reasonably find from this that Father in fact had notice that the issue would be considered in the hearing. Moreover, the trial court heard extensive testimony on the issue of private school tuition. In his brief on appeal, Father points to no place in the record in which he objected to the trial court’s consideration of the issue based on lack of notice. We will not consider on appeal an issue that was not raised to the trial court. See Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn.2006) (citing Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 153 (Tenn.1991)).

The evidence at the hearing showed that the child at issue had attended private school since kindergarten, and had recently changed to a new private school that was more expensive. Heretofore, Father had not been required to pay for the child’s private school tuition. Considering the record as a whole, we find no abuse of discretion in the trial court’s decision to grant an upward deviation from the Guidelines to require Father to pay for private school tuition in addition to his basic monthly child support obligation.

Support Paid Directly to Mother

Father asserts that the trial court erred by failing to give him credit for child support payments made directly to Mother during 2005 and 2006.

In the July 2008 order, the trial court retroactively modified Father’s monthly child support obligation from September 1, 2005 to July 30, 2008, from $763 to $1987. It ordered that Father be given credit for child support payments made during this time. As an exhibit, the trial court attached a CSES-NCP Payment Summary that showed Father only made payments for 2007 and 2008, with no child support payments in 2005 and 2006. The sum of this calculation resulted in a $57,426 ar-rearage.

We note that the January 2004 child support order clearly required Father to make his child support' payments through the Central Child Support Receipting Unit via income assignment, not directly to Mother. Generally, “an obligor parent is not given credit for child support payments made in a manner other than that specified in the operative child support order.” Smith v. Smith, 255 S.W.3d 77, 83 (Tenn.Ct.App.2007). See also Tenn. Code Ann. § 36-5-101 (c)(2)(A)(ii) (2005) (providing that, in certain instances, courts are prohibited from giving credit to payments made through means other than the central collection and disbursement unit). The record shows Father failed to make any payments in 2005 and 2006 through the Central Child Support Receipting Unit as ordered by the trial court. Under the circumstances, we must conclude that the trial court did not err in not giving Father credit for any such payments.

Various Alleged Errors in Calculation

Father asserts on appeal that the trial court made several errors in calculating his alleged arrearage in child support. Specifically, Father contends that the trial court erred by (1) applying the $20,000 monthly income figure to the entire time period at issue, back to the filing of Mother’s August 2005 petition to modify; (2) by failing to credit Father for child support purposes with his actual parenting time of 157 days per year; (3) by adding an extra month in its child support calculation; (4) by failing to use the correct amounts for health insurance premiums; (5) by including payments for private school tuition for past years, back to the date of Mother’s August 2005 petition; and (6) by including expenses for the child’s extracurricular activities.

We note that determinations of child support lie within the discretion of the trial court. See State ex rel. Moore v. Moore, No. W2007-01519-COA-R3-JV, 2008 WL 2687672, at *3 (Tenn.Ct.App. July 3, 2008), no perm. app. (citing State, ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn.Ct.App.2000)). In considering these alleged errors, this Court on appeal has reviewed the transcript of the testimony, the exhibits, the trial court’s order and its worksheet, and the appellate record as a whole. Having reviewed the record and considered the errors alleged by Father, we cannot conclude that the evidence preponderates against the trial court’s calculation of Father’s child support obligation or the arrearage in child support.

De Novo Hearing

Father next asserts that the trial court erred in failing to conduct a de novo hearing as defined by Tennessee law. More particularly, Father points to the child support worksheet attached to Judge Peeler’s July 2008 order and asserts that it is a photocopy of the child support worksheet attached to the order of Juvenile Court Referee Haltom. On this basis, Father argues that he was denied a de novo hearing pursuant to Tennessee Code Annotated § 37-l-107(e). In support of this assertion, Father cites Kissick v. Kallaher, No. W2004-02983-COA-R3-CV, 2006 WL 1350999 (Tenn.Ct.App. May 18, 2006), no perm, app., and Kelly v. Evans, 43 S.W.3d 514 (Tenn.Ct.App.2000), both of which hold that a de novo review of the record is not equivalent to a de novo hearing. Kissick, 2006 WL 1350999, at *2-3; Kelly, 43 S.W.3d at 515-16.

Special Juvenile Court Judge Peeler’s hearing on this matter was held for most of the day on May 19, 2008. Five witnesses were called to testify and twenty-seven exhibits were entered into evidence. The record includes a 286-page transcript of the hearing. Even assuming that Judge Peeler ended up choosing to use the same worksheet used by Referee Haltom, he did so after hearing all of the evidence proffered by both Father and Mother. Clearly, Father had a fresh opportunity to persuade Judge Peeler that his testimony and documentary evidence were truthful and straightforward; he simply failed to do so. After reviewing the record as a whole, we find that Father was given a de novo hearing, consistent with section 37-l-107(e).

Attorney’s Fees

Finally, Father asserts that the trial court erred in awarding attorney’s fees to Mother. Father argues that this award was in error because the trial court lacked statutory authority to make the award; because the award was based solely on the affidavit of Mother’s previous counsel; and because attorney’s fees cannot be awarded as child support.

Under Tennessee Code Annotated § 36-5-103(c), a parent may recover “reasonable attorney fees incurred in enforcing any decree for ... child support.” T.C.A. § 36 — 1—103(c) (2005). Father asserts that the trial court erred by awarding attorney’s fees, because this matter is not an enforcement of a child support decree. This Court has held otherwise. “In child support modification cases, Tenn.Code Ann. § 36 — 5—103(c), gives trial courts the power to award ‘reasonable attorney fees....’” Huntley v. Huntley, 61 5.W.3d 329, 341 (Tenn.Ct.App.2001).

Father also asserts that the trial court erred in awarding attorney’s fees based solely upon the affidavit of Mother’s counsel, noting that the same attorney represented Mother in the actions pending between the parties in other courts. The sworn affidavit of Mother’s counsel, submitted to the trial court, states that the fees contained in it were incurred with respect to the subject child support proceedings in the juvenile court. Father points to no place in the record in which he objected to the trial court’s consideration of the affidavit. We find no error in the trial court’s reliance on this affidavit.

Finally, Father points to the language of the trial court’s order and asserts that it was error under Tennessee Attorney General Opinion 08-47 to award attorney’s fees “as a child support judgment.” Our review of the record indicates that the trial court’s award of attorney’s fee was separate from the award of child support. This issue is without merit.

An “award of attorneys’ fees is within the trial court’s discretion.” Id. (citing Richardson v. Richardson, 969 S.W.2d 931, 936 (Tenn.Ct.App.1997)). After reviewing the record as a whole, we find no error in the trial court’s award of attorney’s fees to Mother in this cause.

Conclusion

The decision of the trial court is affirmed. The costs of this appeal are taxed to the Appellant Gregory Joel Casals and his surety, for which execution may issue if necessary.

      . Both parties have been represented by many different attorneys throughout the course of their legal disputes. None of the attorneys who represented them in the trial court represent them on appeal.

      . Eight days prior to oral argument on appeal, Father filed an amended motion to consider post-judgment facts, seeking to have the Court consider an amended tax return. We took the motion under advisement. "Consideration of [post-judgment] facts lies in the discretion of the appellate court.” Tenn. R.App. P. 14(a). Because the motion was unopposed, we grant Father's motion.

      . Father argues that there was no “significant variance” under the Guidelines to justify modifying an existing child support order. See Tenn. Comp. R. & Regs. 1240-02-04-.05(2) (2009). This is inapplicable where, as here, the trial court finds that the prior child support was established based on misrepresentation by the obligor parent regarding his income.

      . The statute provides:
      Any party may, within five (5) days thereafter, excluding nonjudicial days, file a request with the court for a hearing by the judge of the juvenile court. The judge may, on the judge’s own motion, order a rehearing of any matter heard before a referee, and shall allow a hearing if a request for such hearing is filed as herein prescribed. Unless the judge orders otherwise, the recommendation of the referee shall be the decree of the court pending a rehearing. T.C.A. § 37-1-107(e) (2008 Supp.).

      . The transcript of the hearing indicates the hearing occurred on May 19, 2008; however, the record contains an order of continuance, dated May 19, 2008, indicating that the matter was continued to June 23, 2008.

      . The statute provides:
      The plaintiff spouse may recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recover from the other spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child support, or in regard to any suit or action concerning the adjudication of the custody or the change of custody of any child, or children, of the parties, both upon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allowed by the court, before whom such action or proceeding is pending, in the discretion of such court.
      T.C.A. § 36-5-103(c) (2005).

      . "A judge may assess attorney fees in divorce and paternity matters. However, attorney fees may not be ‘attached’ to a parent's child support obligation because such fees are not child support.” Tenn. Op. Atty. Gen. No. OS-47 (March 10, 2008).