# FILED Oct. 4, 1995 Cecil Crow son, Jr. Appellate Court Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

JERRY DON L

UMPKINS, )

) Plaintiff /Appella nt, )

) Sumner Chancery ) No. 91D -241 VS. ) ) Appeal N o. ) 01-A-01- 9401-CH- 00034 BELINDA BA

INES LUMPK

INS, ) ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE THE HONORABLE JANE W. WHEATCRAFT, SPECIAL JUDGE

For the Plaintiff/

Appellant : For the Defendant/Appellee : John R. Phillips, Jr. Bruce N. Oldham PHILLIPS & INGRUM BEATY & OLDHAM Gallatin, Tennessee Gallatin, Tennessee



## MODIFIED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This appeal inv olves a dispute over child su pport for two pre- teen boy s. Two year s after t

heir divor

ce in t he Chanc ery C ourt for S umner County , the parents returned to court seeking resolution of their disp utes conce rning the custody and visitation a

rrangem ents and the amount of child support. A special judgeawarded the mother sole custody of the c hildren , modifi ed th e fath er’s visitation schedule, and direc ted thefather to pay child support in accord ance wit

h the child support guide lines. T

he father takes issue

on this appe al with the

amount of his child supp ort. We have det ermi ned that the

amount of the fathe

r’s chi ld support should

be mod ified to ta ke all his i ncome

into conside

ration.
I. Jerry Don Lum

pkins and Be linda Gai l Baines L umpkins were m

arried f or approximately

eleven years. They have t wo sons, Mi chael wh o is twelve and Jonathan who is eigh

t. Jonatha

n has m ild learni ng disabiliti es as a result of contract ing meningitis wh en he was elev en months old
. Both Mr. Lu mpkins and Ms. Lumpkins are em

ployed by the Sum

ner County School System. Mr. L umpkins is a teacher and basketball coach, and Ms. Lum pkins is a special education teacher.
The mar riage fou ndered in June 1991, and Mr. Lum pkins filed for

divorce in the Chancer y Court for Sumner Cou nty. On November 20, 1 99 1, the parties signed a ma

rital disso lution agre emen t providing f

or joint cus tod y a nd for alternat ing physic al custody

on a weekly basis during the school yearand on a biweekly basis durin g the summe

r. Neither party was requiredto pay child support because they w ere shar

ing physical custody; however, the trial court dire cted Ms. Lump kins to maint ain health insurance

coverage for the children and determined that theparties w ould share re sponsibility for the c hildren’ s health ex penses not covered by insurance. The trial court entered a final decree on December 4, 1991,-3-

granting Mr. Lumpkins the divorce and approving the mar ital dissolution agreem ent.
Ms. Lum pkins sought to modify the divorce decree less than one y ear later. The parties c ompro mised their dispu tes, and o n August 12, 1992, the trial court entered an agree d order m odifyi ng the custod

y, vis itatio n, and support arrangem ents. Ms. Lumpkins received prim ary custody of the boy s, and Mr
. Lu mpkins r eceived visitation each Wednesday night and a portion of each weekend. The holida

y and birthday

visitations rem ained unc hang ed, whil e the summer visitation s chedule w as left tothe partie s. Mr. Lum pkins also ag reed to begin paying$200 in monthly c hild support b ecause th e children were no longer spending equa

l amou nts of tim

e with ea ch parent
.
Mr. Lum pki ns remar

ried and f

iled a peti tion in May

1993 seeking sole custody because the children had not “thrived and progressed as anticipat ed by th e parties” while in Ms. Lumpkins’ c are. Ms. Lum pkins respon ded by s eeking sole custody because Mr. Lum

pkins was “ attem

pting to underm

ine the childr

en’s love and trust toward their mother.” In June 1993, the t rial cour t set Mr. Lump kins’ summer visitation f

rom Ju ne 19 to July

18, 1993 and

suspended hi s obligation to pay child suppor

t for July because t

he children would be l iving with hi m. T he trial court alsoset rules for daily telephone contact with the children and ordered the parent s to atten d a seminar deali ng with chi ldren cop ing with d ivorce.
A special j udge heard

the partie s’ requ ests for c ustody i n Ju ly 1993. On Au gust 18, 1993, t

he specia l judge granted Ms. Lum pkins sole cu stod y an d changed Mr. Lu mpkins’ visitation t o each Wednesday

night and ev ery other weekend. The spec ial judge also reaffirmed the holiday , birthday, and sum mer visitation arrangements already

in plac e. Findin g no reason to depart f rom t he childsupport guidelines, the special judge ordered Mr. Lum pkins to pay $568 per month in child s upport. Mr. Lu mpkins takes issue on this appeal sol ely w ith the amount of the ch ild supp ort award.
II.-4- Childsuppo rt is sues rem ain entrus ted to the di scretion o f the tria l courts. This discretion is now guided by the child support guidelines promulgated by the Departm ent of Human Services pursuant to Tenn. C ode A nn. § 36-5-101( e)(2) (Supp
. 1994). The guide lines apply to all act ions to esta

blish or m

odify c hild support heard after O ctober 13, 1989. Tenn. C ode Ann. § 36-5-101( e)(2); T enn. Comp. R. & Regs. r. 1240-2 -4-.02( 3) (1989). We re view chil d support dec isions in accorda

nce with Tenn. R. App. P. 13(d), giving the trial court’s factual findings, but not i ts interp retation o f the guid elines, a pre sumption of c orrectness
. The child suppor

t guidelines are inte nded to decr ease the number o f impoverishedchildren l iving insingle-pa rent families and to m ake child support awards more

equitable by ensu ring moreconsistent treatment of persons in similar circum stances. Tenn. Comp. R. & Regs. r . 1240-2-4 -.02(2) (a), - .02(2)(b) (1989). They establish a rebuttable presumption with regard to the m inimum accepta ble level of support. Trial c ourts m ay dev iate fro m the guidelines when applying them strictly would be unj ust or inappr opriate , but they m

ust state th eir rea sons for doing so in writ

ing. Te nn. Code A

nn. § 36-5-101( e)(1); T enn. Com p. R. & Regs. r. 12 40-2-4-.02(8) (1989). The guidelines themselves describe som e of t h e circum stances w arrantin g adeviatio n. Tenn. Comp. R. & Regs. r . 1240-2-4 -.04 (1989).
The gu id eli nes empl oy a s tra ig ht for war d mat hema ti cal for mu la for calculat ing child suppor

t. The p resum

ptive am ount of chil d support the

obligor parent must pay is a “flatpercenta ge of the net incom

e.” Tenn. Com

p. R. & Regs. r. 1240-2-4-. 03( 2) (1989 ). For the purpose of the guidelines, “net incom e” includes all the obligor parent’s income “ from any sourc e,” Tenn. Comp. R. & Regs
. r. 1240-2-4-. 03(3)(a) (1989), r educed by

deductions f

or withhol ding tax, FICA, and other c ourt- orde red child s upport actu allybei ng paid. T enn. Com p. R. & Regs. r . 1240-2-4 -.03(4) (1989). T he perce ntage m

ultiplier c orresponds to the numbe

r of childr en for w hom supp ort is beingset. Tenn. Comp. R. & Regs. r. 1240-2-4-.03(5) (1989).
III.1 Joint custody arrang ements in which the childrenspend ap proximatel

y equal amou

nts of time with each parent warrant deviating from the child support

guidelines. Gray v. Gray , 885 S.W.2d 353, 356 (Tenn. Ct. App. 1994).

2 Mr. Lumpk

ins’ gross income in 1992 was at least $2,000 per month. According to the May 1991 revised tables prepared by the Department of Human Services to aid in applying the guidelines, persons with a gross income of $2,000 per month should have been pay ing $505.92 -5- This record r

eveals fi ve shortcom

ings with r

egard to th e calcula

tion of Mr. Lump kins’ child

support obligation between 1992 and 1993. These shortcom ings include: (1) the a

bsence of a clear

evidentia ry bas is for the childsupport award in the August 1992 order; (2) the absence of an explanati on for the A ugust 1992 order ’s departur

e from the guideli nes; (3) the c alculatio n of Mr. L umpkins ’ gross and net inco me for the pur pose of the

August 1993 o rder; (4) the appar ent oversight concerni ng the resp onsibility for provid

ing the chil dren’ s health insurance; and (5) the

recogniti on that Mr. L umpkins ’ visita tion excee ded the guidelines’ average

visitation p eriod.
A. T HE A UGUST 1992 S UPPORT O RDER
Neither parent wa s required to pay child suppor t prior to A

ugust 1992 bec ause the ch il dre n we re s pen di ng equ al a mou nt s o f ti me wi th eac h o f th em. 1 The August 1992 order cha nged this ar

rangem ent by a warding M s. Lum

pkins primary physic al custody

and by defining Mr. Lumpkins’ visi tation ri ghts. As a result of this order, the children h ave been s pending appr oxima tely 65 % of their ti me with Ms. Lum

pkins and 35% with Mr. Lum pkins. Th e orde r also r equired Mr. Lum pkins to pay

$200 per m

onth in child s upport.
The present r

ecord does not enable

us to determ

ine with c ertainty

how the trial court arrived at

the $200 per month chil d suppo rt award. There are, however, reliable i ndications t

hat the tri al court si mply approved th e parents ’ agre emen t without an independent review contem plated by Tenn. C omp. R. & Re gs. r. 1240- 2-4-.02( 4) (1989). T

he gu id elines in existence at the time would have required persons with Mr. Lum

pkins’ gr oss incom e to pay substantial ly m

ore child support than $200 per

month. 2to support two children.
3 The guidelines requ

ire the c ourts toconsider

all income

from any sourc e. Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(a) (1989); Stephenso n v. Stephenson , App. No. 01-A-01-9212-CH00488, slip op. at 8, 18 T.A.M. 35-18, 7 T.F.L.L . 12-7 (Tenn. Ct. App. Aug. 6, 1993) (No Tenn. R. App. P. 11 application filed).

4 Mr. Lumpkins’ Sumner Count y pay stub states that his annual income from teaching was $28,176.69. Mr. Lumpkins also testified that he earned $4,800 from waiting on tables. For the purposes of this opinion, we are assuming that Mr. L umpkins ’ part-tim

e salar y w as his gr

oss, rather than net, salary
. -6- The August 1992order doe s not contai n afinding re quired by Tenn. C omp. R. & Regs. r

1240-2-4-. 02(8) (1989 ) that fol lowing the guideline s wo uld have been un just or inappropriate. We presum e that the trial court require d Mr
. Lump kins to pay approximately one-third of the am ount r equired by the guidelines because the children’ s overnight v isitation w as divided between the parents more equally than usual. Whethe

r the am ount of Mr. Lum

pkins’ additional v isitation warrantedsuch asignifica nt decrea se in his chi ld support obl igation is not at issue on this appea

l beca use that or

der has be en supplante d by a ne w one. I t is suffic ientfor our

purposes to note that the $200 per month child support award varied sig nificantl y fro m the support cont empla ted by t he guideline s.
B. T HE A UGUST 1993 S UPPORT O RDER
The special j udge’s A

ugust 1993 support order did not include all of Mr. Lump kins’ income. 3 Accordi ng to the Departm ent of Hum

an Servic es’ Ma

y 1991 tables, a mont

hly chi ld support pa

ym ent of $568 cor

responds to a

monthl y gross incom e of approximately $2,300. At the time of the hearing, however , Mr
. Lump kins’ gross income from all sources was $32,967.69 per year or $2,748 per month. 4 Consideri ng his gross inc ome f rom a ll sources , the guidelines would have required Mr . Lumpkins to pa y $663.36 per mont h in child support
. Even though

the special judge decided not to devia te from the guideli nes, the record c ontains proo f of two c ircum stances th at could warra ntdeviations. The guidelines provide tha

t a child sup port awa

rd should b e increase d if the obli gor parent is not paying for the

children’ s health ins urance. Tenn. C omp. R. & Re gs.5 Tenn. Comp. R. & Regs. r. 1240-2-4-.04(1)(b) (1989) state s that an “ave rage visitation

period” under a year includes: two day s every other weekend (52 day s), summer visitation (14 days), and holiday

periods during the year (14 day s).
6 Mr. Lumpkins’ court-ordered visitation includes: two day s every othe r weekend (52 days), holidays during the year ( 14 days), summer visitation (30 day s), and every Wednesday night (52 day s).
-7- r. 1240-2-4-. 04(1)(a) (1989). T hey al so perm

it adjust ing the child su

pport if the amount of the oblig or parent ’s over night visitat

ion varies from

the avera

ge visitation period cont

empla ted by t he guid elines. Tenn. Comp. R. & Regs. r. 1240-2-4 -.04(1)(b) (1 989).
The December 1 991 divorce de cree re quired Ms. Lum pkins to m aintain health insurance

coverage on hersons, and s he has bee n payin g for this c overage ever since. In accordance with Tenn. Com p. R. & Regs. r. 1240-2-4-.04(1)(a) , the special judge should have increased the amount of Mr. Lum pkins' child support by an amount equal tothe am ount necess ary f

or Ms. L umpk ins to obtain this insurance - the difference between the cost of individual and family coverage.
The guidelines also conte mplat e that the non-custodi al parent

will have the children on

overnight

visitation for eighty days per y ear. 5 The cur rent visita

tion agreem ent calls for the children to spend appr oxima tely 14 8 nights each y ear wit h Mr. Lum pkins. 6 Thus, Mr . Lum

pkins has been exercising almost twice as much visitation t

han the ave

rage visit ation peri od contem plated by the guideli nes. Recognizi ng that Mr. Lum pkins’ sum

mer visitation

warra nted a red uction in child suppor

t, the spe cial jud ge excused him from pay ing child support during the summ

er when his sons wer

e visiting w ith him . Even if Mr. L umpkins ’ summer visitation i s not conside

red, Mr . Lum

pkins is still

exercisi ng thirty -eight moredays of

visitation d

uring the y ear than t

he average visitati on period. This additional visitatio n entitled Mr. Lum pkins to appr

opriate c redit on his child support pay

ments
. C.7 Tenn. C ode Ann. § 36-5-101(a)(1) was amended in 1994 to authorize the court s t o

increase or decrease c

hild support awards [W]hen there isfound to be a significant variance, as defined by the child support guidelines . . . between the guidelines and th e amount o f support

curren tly ordered unless th e variance has resulted from a pre viously court-order

ed deviation from the guidelines and the circumstances which caused the deviation have not changed. Act of April 21, 1 9 94, ch. 987, § 3, 1994 Tenn. Pub. Acts 1007, 1010. A significant variance is one that exceeds fifteen percent. Tenn. Comp. R. & Reg s. r. 1240-2-4-.02(3) (1994). There is a significant variance betwee n the amount of child support Mr. Lumpkins was required to pay in the Aug

ust 1992 order and

the amount

of child s upport the

guidelines would have required Mr. Lumpkins to pay . Sinc e the 1992 ord er does not adequately explain the departurefrom the guidelines, Mr. Lumpkins’ c hild support would be equally subject to re vision under the 1994 revisions to the

statute a nd the guideline s.
-8- Childsupport awa rds rema in in the tr ial court’ s control a

nd may be modified when warra

nted by the circum stances. At the tim e of the he aring in thi s c ase, Tenn . Cod e Ann . § 36 -5-1 01( a)(1 ) per mitt ed t he c our ts t o mod ify chil d suppo rt“only upon a showing of a substantial and ma terial chan ge o f circumstances." 7 Nei ther the statute nor the guid elines def

ine “ substantial

and materialchange of

circum stances, ” but the te rm gene rally

includes f

acts and conditions that have

eme rged since

the entry of the ori ginal decr

ee and that were neitherdetermined nor anticipated in the original decree. Dalton v. Dalton , 858 S.W. 2d 324, 326 (Tenn . Ct. A pp. 1993); Hicks v. Hicks , 26 Tenn
. App. 641, 652, 176 S.W.2d 371, 375 (1943).
The record demonst rates a sub stantial change in the Lu mpkins ’ circumstances since thei r divorce in 1991. T

he mos t significa

nt change i s the changein their c ustody a nd visitation

arrange ment. In additi on, there appear to have been chang e s in the par ties’ income. T here is also a large, unexplained variation between the am ount of Mr. Lum

pkins’ child support in

the August

1992 order and the amount of child su pport conte mplat

ed by th e guideline s. Acco rdi ngl y, the specia

l judge had suffic ient

grounds to r

econsider the am ount of Mr. Lum pkins’ child support.
Mr. Lum pkins’ pr esent chil d support oblig ation is less than on e-third of the amount contem plated by the guidelines as they

existed at

the tim e of the hearing.8 Ninety perc ent of $663.36 is $597.02.

-9- A strictapplicati on of theguidelines would requ ire him to pay $663.36 per

month, and he is paying only

$200 per m

onth. The

circum stances of

this case, however, warran tdeviating f

rom t he guideline s be cause of Mr. Lumpkins’ expanded visita tion and becaus e of Ms. L umpkins ’ payment o f the child ren’s h ealt

h insuranc e. Mr. Lumpkins is already r eceiving some r ecognition for his expanded visitation because he is excused from payingchild suppor

t during the

month that his sons are vi siting him

during the s umm

er. Hi s additional visitation s houldbe recognized but mus t be offset because Ms. Lum pkins is pay ing for the

childrens ’ health insurance. Thus, we have det ermi ne d that the a mount of Mr. Lu mpkins’ monthly child suppor

t should be 90% of th e amount re quired by the guideli nes. Acco rdi ngl y, we modify t he amount

of child sup port awa

rded in the

August 1993 order from $568 to $597 per m

onth. 8 This m

odificati on willtake eff

ect on the f

irst day of th e mont h next follo wing the da

te of the i ssuance of

the m andate in t

his case.
IV.
As a final m

atter, Ms. Lumpkins requested an additional award for her legal expenses on this appe al. Te nn. Code Ann. § 36- 5-103(c) (Supp. 1993) perm its a custodial spouse to recoverreasonab le legal e xpenses inc urred in a ny proc eeding to enforce

a child supp ort order . These expenses sh ould be paid w ithout re gard to the custodial spouse’s ability to pay because they were incurred

on behalf of the children, not the p are nts. Gaddy v. Gaddy , 861 S.W .2d 236, 24 0-41 (Te nn. Ct. App. 1992); Ragan v. Ragan , 858 S.W .2d 332 , 334 (Tenn. Ct. App. 1993); Sherrod v. Wix , 849 S.W.2d 780 , 785 (Tenn. Ct . App. 1992).
Ms. Lu mpki ns incurre d legal exp enses on this appeal to p reserve and enforce the order s requirin g Mr. L umpkins to pay childsupport. She is, therefore, entitled to an additional award for her attorney’s fees on this app eal. On rem and,the courtsh ould permit the parties to present appropriate proof and should then

award M s. Lum

pkins her r

easonable legal expenses on this a

ppeal.

V.
We modif y and affirm the order awardin g Ms. Lum

pkins child su

pport and rema nd the case to the trial court for the pr oceedings required

herein an d for any otherproceedin gs that may be requi red. We tax the costs of this appeal to Jerry Don Lumpkins and his surety for which execution, if necessary, m ay issue.

_________________

___ __________

___ _ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

_________________

_________________ SAMUEL L. LEWIS, JUDGE

_________________

_________________ BEN H. CANTRELL, JUDGE