### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Decemb er 11, 2001 Session
SUSAN KLAMON

WHITON (LEEDOM) v. ALAN LOUIS WHITON
Appeal from the Circuit Court for Sevier County No. 88-109-I Ben W. Hooper, III, Judge

FILED JULY 18, 2002

No. E2000-00467-COA-R3-CV

This is a post-d

ivorce p roceed ing that be gan with th

e Mother 's petition

for an increase

in child support. The Trial Court increased the child support and ordered a trust fund set up for the minor child. The Trial Court held that the child support gu idel ines was constitutional. Father appealed claiming that Tenn. Comp. R & Regs. 1 240-2-4- .03(4), issued pursuant to T.C.A. 36-5-101, was violative of Section 1 of the 14th Amendment to the Constitution of the United States. Mo ther also appealsraising various issues. We reverse theTrial Court in its finding the Regulation in question is constitutional and vacate the judgment as to child

support. We affirm in part the other holdings of the Trial Court as to a part of the issues raised by Mother.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed in Part and Vacated in Part and Remanded

H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which W ILL IAM H. I NMAN , S R

. J., joined. H ERSCHEL P. F RANKS , J., filed a dissenting opinion.

Sarah Yarber

Sheppea rd and Ja son H. Lon g, Knoxville , Tenne ssee, for the Appellant, Alan L. Whiton

Dale Ala n Evere tt, Knoxville, Tenn essee, f or the Ap pellee, Susan K. W

hiton (Le edom)

Paul G. Summers, A

ttorney G eneral & Reporte

r, and Ki m Beals, Assistant Attorney General, Office of the Attorney General, Nashville, Tennessee , for the Intervening Petitioner, State of Tennessee

OPINION

Alan Whiton and Susan Whiton were married October 1985. They are parents of a daughter, Amanda Marie, born on May 7, 1986. They separated in Marc h 1988, when Father

filed a complaint for divorce. They were divorce d by order entered September 5, 1989.-2-

As pertinent here, the Trial Court entered an orde r on February 20, 19 90, settin g child support at $750 pe

r month, wh

ich was le ss than the

amount pr

esumed to be appro priate b y the Child Support Guidelines, finding that the

re buttabl e presumption created by Tennessee Statute and resulting regula tions and/or Department

of Human Services Child Support Guidelines is rebutted and the application of said guidelines would be unjust and inappropriate under

the spec ific circumstances of this particular case.

Father was orde red to pa y for the child's he alth insur

ance, o ne-half

of non-covered medical expense s, and cr

eate

an educational or special trust fund for the education of the minor child and contribu te a minimum of $1,000 .0 0 a year toward said trust fund for the benef it of the child's education or welfare.

At the time of

the d ivorce in 1989, Father had custody of a minor son by a previous marriage, along with

a court o

rdered obligation

to child su

pport for th e m inor child. Mother appealed the decision of the Trial Court and subsequently an agreed orde r was entered amending the judgment and dismissing the appeal. Child support remained at $750 per month.

Both parties remarried. Father had a second child, Alana, who was born in Mar ch of 1993.

The present litigation commenced when Mother filed a petition to modify child support on September

13, 1994, claiming the existence of a substantial change in circu mstance s, an incre ase in Father's income , and a significant variance between the suppor t being paid and the Guidelines support presumpt

ion. Fathe

r filed a response denying a

ny chang e in circumstance s, denying an y significant

varian ce between th e Guidelines pres umption an d the suppo rt payme nt, and af firmativ ely alleging complian ce with e

xisting court orde

rs.
The record

in this cas e is copious with long delays, animosity on Mother’s part and refusal to co-operate with Father, in addition to Mother vacillating between changing attorneys and repres entin g hers elf. Even since oral argument was had in this case Mother has again changed lawyers

. Approxima

tely two and one-half years later, on April 14, 1997, the cour t entered the f

i rst order in the present litigation, setting ch ild support at $1,312 per month, retroactive to September 13, 1994, and ordered an accountant be e mployed to determine the Father's net income in accordance withthe Child Support Guidelines for 1994, 1995 and 1996, and that a further hearing be hel d to determine addi tional child support and contributions to the educational trust fund. Father began paying $1,312 monthly child support in May 1997.1 The Tria l Court was ref erri ng to Lee v. Askew , Court of Appeal No. 02A01-9805-JV-00133, W. S. at Jacks on, 1999 Tenn. App. LEXIS 182, fil ed March 17, 1999.

2 The Trial Court was re ferrin g to th e con curr ing o pinio n of Judg e W illiam C . Ko ch, Jr., in State ex re l. Randolph v. Poteet , Court of Appeal s No. 01- A-01-9808-J V-00419, M. S. at Nas hvil le, 1999 Tenn. App. LEXIS 176, fil ed March 17, 1999.
-3- Numerous ple adings we re filed by the parties. Father filed, inter alia , a motion for a new trial, petition f

or chang e of cust

ody, resp onseto Mother's motion for summary ju dgment, mo tion to withdraw by Attorney S t okes and substitute Attorney Garrison, and a motion seeking to have the court declare t he Child Support Guidelines unconstitutional. Mother filed, inter alia , a several motion for contempt

and revo cation of

Father'slicense s, a motion to increase child support, motion for attorney's fees, motion for summary judgment as to Fathe

r's petiti on to change custody, a trial brief, a supplemental trial brief, a notice of lien by Attorney Ev erett, notice of withdrawing as counsel by Attorney Everett, notice of appeara nce by Attorney Albiston.

An order was entered by the Trial Court on December 8, 1999, in which, inter alia , the Trial Courtoverruled Mother's mot i on for sum mary judg ment conc erning custody of t he minor c

hild finding th at it was n ot a

proper matter for summary judgment. The Trial Court reviewed the joint report submitted b y the par

ties' respec tive acc ountants a nd incre ased the

amount to

be paid into the educational trust fund. In his memorandum opinion, he stated:

Now in this cas e, there

is no questio n, as I've

indicated, that 21 p ercent of these figures that I keep going back to, $6,250 per m onth incom e, $10,00 0 per mont

h income and even hi gher, if, in fact, the law has authorized or mandated that we go higher. Those amo

unts are just litera

lly set in concrete. Obviously, the Courts are going to see that you reach the point of ridiculousness, or absurdity, or whateve r word you might wa

nt to call it, when you begin de aling with some one like a professional basketball pl ayer making $2,000,000 a year. 1 And as was set out by Judge Koch in

his [concurring] opinion 2 . . .. He ha s actual ly begun to talk about the situations that's be

ing crea ted by the present state of the law and that it is getting into the area of affecting the constitutional right s of people, children, obligors for the payment of child support. He spends some time talking about the child of th e first family as opposed to the child of the second family. I am going t o cons ider the secondchild in this matter, which means that we should be dealing with 32 per cent, I believe, isn't it? . . . And applying o ne half o f that amo unt, which is 16 percent, to the excess. I find that to be an equitable resolution of considering the fact that there are two children and that the first child, wh

ich is the f

ocus of this litig ation, will receive into an educational trust fund only 16 percent. And I say only 16 percent to distinguish from the 21 percent of whatever that would compute to be on monthly inc ome in exc ess of those figures. Quite frankly, I've not determined what that might be but I have an idea that is eve

ntually, a nd by the time this child is 18 years of age. . .that it will be-4-

a sum of money far in excess of what would be require d to send her through many many years of a very expensive educa tion. . . I don't hesitate to say, that what I have done today is not fair to Dr. Whiton.

While Mother wa s repre senting he rself at this hearing and complaining about the length of time this case had taken to get to this point, the Trial Court reminded her "let me point out one more time, this Court does not schedule yo ur hear ings for y ou. If you

want to be

heard, y ou have g ot to let me know. . .."
Father filed a Notice of Appeal from the Dec ember order.

A hearing on the motion regarding the constitutionality of the Guidelines, along with other various motions, was held on March 6, 2000. By order entered on September 5, 2000, the Trial Courtfound the guidelines to be constitutional. The court reversed its prior ruling and required that Father pay 21% rath

er than 1 6% of his in

come in excess of $15,000 per month into an educational trust for the minor child . In rea ching this conclusi on, the Cou rt concl uded that its prior consideration of Father's other daughter was prohibited by the Guidelines. In its order, the Trial Court decreed:

1. In reference to Defenda nt's previously pending Motion to Find the Tennesse e Child SupportGuidelines Unconstitutional , the C ourt now rules that said Guidelines are Constitution al. 2. The D efenda

nt will con

tinue to pa

y the minor

child's me dical insu

rance p remiu m s until the child

attains a ge eighteen (18) o

r gradua tes from h igh school , whichever is later; ou t-of-po cket exp enses sha

ll continue

to be borne equall

y by the pa

rties. 3. The purchase of fixed assets by the Defenda ntshall be deducted from the Defendant's gross inc ome in estimating ne t income f

or child s upport pur

poses. 4. The Defend ant's wor king inter ests in oil and ga s, so call ed "passi ve losses ," shall al so be ded uc ted from t

he Defe ndant's gr oss income

in estimat

ing net inc ome for c

hild support purposes whe n th e interest shows a loss; however, when the oil and gas interest s s how a profi t, such profit shall be included in the Defendant's calculation of gross income. 5. The Court lets stand its prior ruling and finds that the Defendant

may deduct the cost of his yearly disability premiums fromh is gross income since, if the Defendant became disabled, that income would be subject to child support and theref ore is an insurance that benefits the minor child. 6. The Court , however, reverses its prior ruling and finds that the Defe ndant's ye arly health insurance premiums o n himself, his spouse and his other minor child shall not be deducte d from the

Defend ant's gro ss income in estimating his net inc ome for c hild support pu

rposes. 7. The Court further reverses its pri or ruling an d finds that the Defendant shall pay Guideline child support directly to the Plai nt iff and shall Order that twenty-one percent (21%) of the excess of Te n Thousand Dollars ($10,000.00) be placed in an-5- Educational Trust

Fund with the residual to revert to the Defendant when the minor child is no longer in school. . .. 8. The Court find s that its prior ruling shall stand concerning the fees of the Plaintiff's previous attorney, Alan Everett, and Plaintiff's expert witness accounta nt, Leroy Bible, such that

said fee s shall be

paid out of the Educational Trust Fund, but since the Defendant's prior Educational Trust holdings were in a mutual fu nd an d the Defend ant paid t

he feesoutright, the issue is now moot. 9. The Cour t s uggest tha t counsel attempt to

agree u pon how the

Educatio nal Trust Fund be set

up, who will administer the Trust, who will be the Trustee, and when any
re maining procee ds will be r eturned to the Def

endant. T

he Court n otes that i f counsel is unable to reach agreement, that this case be set for hearing. 10. The Court notes that counsel for the Plaintiff a nd the Defendant shall meet to set current child support at Twenty-one Hundred Dollar s ($ 2,100.00) per month with Guideline child support

going to the Plaintiff for the benefit of the minor child and twenty-one percent (21%) of the overage going to the EducationalTrust Fund for the minor child. 11. The parties a

gree th at a child support a rrear age for the year s 1994 thro

ugh 1999 is owin g. Th e Defendant has paid Thirty-Four Thousand Seven Hundre d SeventySeven Dollars a

nd Thirty- Two Cents ( $34,777.3 2); the Pla intiff ha s p r esented a document to the Defendant and the Court showing that there is a balance due and owing to the Plaintiff of Four Thousand Nine Hundred Nineteen Dollars and Twe ntyFour Cents ($4,919.24). The Cou rt finds that this is an arrearage and notes that Defend ant's cou

nsel has s aid he would go ove r these n umbers wi

th the Def

endant. 12. Concerning the Educ ational T rust Funds, the inter

est that th e current Educational Trust Fund has been earning shall be credited to the Defe ndant except for the twelve percent (12%) simple

interest arrea rage wh ich shall b e calculated an d presen ted, if possible, in an Order to be presented to this Court. Again, if ag r eement is impossible, the case will be set for a hearing. 13. The Court finds that the Defendant has been in civil contempt of the Court's Order for failure to abide by the prior Order of the Court. The Court imposes a ten (10) day ja il sentenc e, which

is suspend

ed, and im

poses a Fif

ty Dollar ($50.00) fin e, whic h is waived. 14. The Motion for

Attorney 's Fees f

iled by Pla

intiff's p rior cou nsel, Ala n Evere tt, is denied. 15. The Defend ant's Motio n to Stay Ex ecution o f the Ju dgment Pending the Appeal is
reserv ed for si xty (60) d ays.
Moth er then filed another petition for contempt rather than set the ca se for hearing as th e Trial Court ordered. Mother filed a Notice of Appe al on January 31, 2001.

In the Trial Court's final order entered on March 6, 2001, Father, Mother a nd Sevier County Bank were appointed co-trustees of the Alan L. Whiton Trust Agreement and were directed to pay the expenses of all books, tuition, and room and board incurred by the minor child. All arrearage-6-

for child support and the educ ational f und were to bear interest at 12% per annum. The Trial Court denied Mo ther's pe

tition for attorne y's feesand dismiss ed the pe tition for contempt

.
ISSUES
Mother presents the following issues for our consideration:

1. Whether

it is erro r or in other ways , should the Court o f Appea

ls e xercise its supervisory authority over the Trial Cour

t in this ca se to require

that T.C.A . 36-5-40 5(B) (which requires a hearing on petitions to modify child support be heard in 30 days) be complied with? 2. Whether

under the

totality of

the circumstance s of this ca se, the a ppellant /Mo ther ha s receiv ed a just a

nd econo mically r

easonab le ruling f

rom the Tr

ial Court? 3. Whether the Trial Court erred in setting up a trust in this case? 4. Whether the Trial Court erred in ordering the r eturn of moneys in the trust to the obligor? 5. Whether

the amoun

t of suppor

t actuall y flowing to the Mother is correct including, but not limited to, whether the whole or a p ortion of the amoun

t flowing t

o the trus t sh ould go directly to the Mother? 6. Whether

the T rial Court erred in refusing to hold the Father in contempt of court for
numerous contempt actions filed in this case, including, butnot limited to, the contempt filed when Lucinda Albiston was attorney of record? 7. Whether

the Trial Court erred

in the awarding of the amount of attorneys fees in this case? 8. Whether

the Trial Court erred in refusing to award attorneys f ees for the numerous contempt petitions filed in this case? 9. Whetherthe Trial Court erred in failing to force the disclosure of the f irst trust and in not holding the obligor in contempt for not making this disclosure? 10. Whether

the Trial Court erred in allowing passive and other losses to be deducted f

rom income in this case? 11. Whether

the Trial Judge er

r ed in failing to sanction, or in other ways properly deal with, allegations of delay , failure to ask for r

ecords o f insura

nce and college trust funds, requests for attorne y fees a nd all othe

r motions, pleadings, claims, trial and hearing tactics engaged in by the respondent Father. TheMother, Susan Whiton Leedom, alleges that these tactics
are abusive. Should said tactics be dealt with by, and subject to, sanctions and other actions by the court to stop said abuse? 12. Whether

the Trial Court erred by reviewing financial statem ents subpo enaed from a bank that
were examinedby the judge and then sealed and placed in the file without review by either attorney? 13. Whether

the Tria l Court er red in notfinding the respondent in default or otherwise sanction him for not complying with reasonable discovery requests filed on or about June 19, 1996? 14. Whether

the Trial Court erred in not granting the summary judgment filed by the Mother on August 3, 1998, relating to custody of the child.

Father has set forth the following issues for our consideration:3 T.C .A. 3 6-5 -40 5. A ction s for su ppo rt.

(a) . . . (b) When a petiti on is fi led, t he clerk s hall des ignate a hea ring dat e on the noti ce pres cri bed in t his part or, in the alte rnati ve, shal l des ignat e a hear ing dat e on the summons to be s erved by the sheri ff if the peti tioner elect s to proceed by h avin g the sheriff serve pro cess to initiate this p roce edin g. T he h earin g da te shal l be withi n thi rty ( 30) days of t he date the pe ti ti on is f

iled. If proces s is served by cert ifi ed mail , t he cl erk s hall then s end a copy of the c ompleted peti ti on, tes ti mony, and notice t o respondent by cert ifi ed mail, ret urn rec eipt reques ted. The cle rk sha ll give a copy of completed notic e, petitio n, an d testim ony to pe titioner

.

-7- 1. Whether

the 1994 A

mendment

to the chi ld support guidelines regulations, which excludes consideration of support paid on behalf of childre n in the abse nce of a court or der, is bo th facially unconstitutional and unconstitutional as applied to this case. 2. Whether

the Trial Court's non-discretionary, mechanical application of the guide lines in thi s case produces an absurd result abhorrent to the dictates of justice and equity and should be reversed.

The State has intervened

averring that the Tennessee Child Suppor

t Guidelines do not vi olate the Constitutional requirement of equal protection and separation of powers, a nd do provide

ample due proc ess in det

ermining t

he child s upport obl

igation of the non-c ustodial p arent.

DISCUSSION

The Trial Court's findings of fact are subject to a de novo review upon the record, accompanied by a p resumption of correctness, unless the preponderanc e of the evidence is otherw ise

. Tenn

. Rule App. P . 13(d); Alexander v. Inman , 974 S. W. 2d 689, 692 (Tenn. 1998). T he Tria l Court's co nc lusions of law are subject to a de novo review with no pre sumption of correctness. Ganzevo ort

v. Russe ll , 949 S.W.2d 293, 296 (Tenn. 1997). With respect to the Trial Court's finding Father in contempt on one occasion and its refusal to find Father in contempt on other occasions, the Trial Court's finding s regarding the issue of contempt is reviewed using an abuse of disc retion standard. Wright v. Quillen , 909 S.W.2 d 804, 814 (Tenn. Ct. A pp. 1995) ; Qua lity Fi rst Staffing Serv. v. Chase-Caveat

Serv., Inc ., 1999 Tenn. App. LEXIS 293, No. 02 A01-9807-CH-00205, 1999 WL 281312, at * 3 (Tenn. Ct. App. May 7, 1999), no appl. perm. app . fil ed ; Robinson v . Air Draulics Engineering Co. , 214 Tenn. 30, 377 S.W.2d 908, 912 (Tenn. 1964).

1.
First, we will address Mother's issue numbered one as to whether this Court

should exe

rcise its supervisory authority over the TrialCourt in this case to require that the TrialCourt comp ly with T.C.A. 36-5-405(b). 3 Because of various reaso ns, the tr ial judge s grante d continua nces in th

is matter. The "gra

nting or r efusing t o grant a continua nce res ts within the

sound dis cretion o f the Court, and the Trial Cour

t's decis ion will not

be reve rsed in the abse nce of a clear s howing of

abuse of discreti on." Morrow v. Drumwright , 202 Tenn. 307, 304 S.W.2d 313 (1957); Barber & M cMurry-8-

v. Top-Flite Development , 720 S.W.2d 469 (Tenn. Ct. App. 1986). There was no abuse of discretion by the Trial Judge in this action in granting the continuances.

The record

in this c ase is c opious with Mother' s eloquen

ce in expr

essing h er animo sity towardFather and her refusal to co- operate with Father. Moreove r, this matter has a long history of procedu ral inep tness and

delay on t

he part o f Mother , partic ularly because sh e repre sented he

rself pro se eit

her wi th or without an attorney present, and in addition Mother changed attorneys frequently. It is, however, the basic duty of Mother, either pro se , or through l egal c ounsel, to proceed with and prosecute her action; neither the Court nor the def endant has the r esponsibi lity

to preparethe case. See gen erally, M ills v. Bank o

f Roane Cou

nty , 1991 Tenn. App. LEXI S 554 (Tenn. Ct. App. 1991). As the Trial Court reminded Mother "let me point out one more time, this Court does not schedule your hearings for you. If you wa nt to be he ard, you

have got t

o let me know. . .." Moreover, this issue is moot on appeal as to mandat ing that tr ial cler ks be in str

ict compli ance with T.C.A. 36-5-405(b). In the case of Knott v. Ste wart County , 185 Tenn. 623, 626, 207 S.W.2d 337, 339 (Tenn. 1 948), the

Court quote

d with app

roval from State ex rel. v. Wagoner , 88 Tenn. 290, 292, 12 S.W. 721 ( 1889), a s follows:

This court ca

nnot settle

abst ract qu estions, h owever

important , or howe

ver simple they may be, upon the supposition that they may hereafter arise. They may neve r do
so.

It is too well established and settled to requir e furthe r citatio n that in thi s State issu es, which have be come moot , will be di smissed. W e find thisissue to be

without me

rit.

2.
Next, we will examine together Mother's issues numbered 6, 7, 8, 9, 11, and 13, which deal withwhether the Trial Court erred in re fusing to f ind Father

in contem

pt and/or sanction him in various instances, and refusing to award Mother attorney fees on the various contempt petitions filed by Mother.

The power of

courts to punish contempt can be traced back as fa r as twelfth century England. See Ronald L. Goldfarb, The Contempt Power at p. 9 (1963). C ontempt
was firmly es tablished

as a lega l concep t by the fourteent h centur y and it wa s a principle adopted and incorporated into American jurisprudenc e by the colonists. Th e Contempt Pow er at p. 1 9 (1963). Theref ore, the inheren t power o f courts to punish
co ntem ptuous conduct has long been regarded as esse ntial to the protection and existence of the courts. State v. Galloway , 45 Ten n. 326, 331 (1868). Indeed, at
common law, the power of courts to punish con

tempt was

vast and undefined. Id . at 330. Because

unlimited, undefine d discre tionary p ower ca

rried with it the potential for abuse, sp ecific

statutory provision s were a

dopted to limit and define the conduct-9-

punishabl e by contempt. Galloway , 45 Tenn. at 340-344; In Re Hickey , 149 Tenn. 344, 258 S.W. 417 (1924).

Black v. Blount , 938 S.W.2d 394 (Tenn. 1996).

While the powe r to punish

for cont empt may a

nd should b e used in

an appro priate case, it should not be used unless the case clearly calls for its exerc ise. The power should be exercised by the Trial Court only when necessary to prevent actual, direct obstruction of, or interference with, the administration of justice. The matter of determining and dealing with contempt is within the trial court's sound discretion, subject to the absolute provisions of the law and its determination is final unless there is plain abuse of discretion. See Robinson v. Air Draulics Engineering Co. , 214 Tenn. 30, 377 S.W.2d 908 (Tenn. 1964). We should not reverse for "'abuse of discretion a discretionary judgment of

a trial court unless it affirmatively appears that the trial court's decision was agains t logic or reas oning, an d caused an injustic e or injur

y to the pa

rty complain

ing.'" Marcus v. Marcus , 993 S.W.2d 596, 601 (Tenn. 1999) (quoting with appro val Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1 996)); Brooks v. United Uniform Company , 682 S.W.2d 913 (Tenn. 1984).

When we are called upon to review a discr etionary act of

a trial judge, this Court will not disturb that ruling absent an affirmative showing that the trial judge abused his discretion. Hemmer
v. Tennessee Electric Power Co. , 24 Tenn. App. 42, 139 S.W.2d 698 (194 0). The te rm "abuse of discretion" means just what it says. It does not mean that the appellate court must determine whether it wou ld have decided the matter in the same manner if it had been called upon to exe rcise that discretion. Instead, the appellate court must consider whether the lowe r court's exerc ise o f its discretion went

beyond the bounds of a fair exercise of discr etion. 5 Am. Jur. 2d, Appeal And Error, § 774, n.8 (1962). Furthermor e, it i s well settled that a Trial Court is vouchsafed with wide discretion as to the allowance of attorney fees. Threadgill v. Thread gill , 740 S.W.2d 419 (Tenn. Ct

. App. 1987).

The Trial Court found Father in civil contempt only once. The Trial Court imposed a ten day jail sentence, w hic h it suspended, and imposed a $50.00 fine, which it waived. The rest of the contempt petitions were dismissed. Additonally, the Trial Court ordered that certai n fees b e paid from the educational trust fund. However, Father paid them directly, and the Trial Court found the issue to be moot at that point. Furthermore, the Trial Cour t d enied Mr. Everett's motion for attorney's f

ees. We find no abuse of discretion in that regar d because in the record before us it i s difficul tto deter mine just when Mr. E

verett was only in attendance in the Trial Court with Mother while she was representing herself and whe n Mr. Everett was actually her legal counsel.

3.

We next address Mother's issue numbered 12 as to whet herthe Tria

l Court er

red in examining certain financial records, whichMother subpoenaed from the bank and which wer e sealed upon it s finding that the documents shed no new light on the issues before the Trial Court.. F o r some reason about which the record is silent, the bank filed the doc uments directly with the Trial-10-

Court. The cour t reviewed them and then sealed them finding that there wa s nothing in them differen tfrom what was already before the court. We have examined the file which wa s pl ace d under seal by the court

and find nothing contrary to the decision of the Trial Court. In examining the documents which were supposedly sealed by the Trial Court, we f ound them unsealed. Either of the parties' attorneys, while having the record in their possession pre paring their briefs, had

the opportuni ty to examine t he documen ts and bri ng the disc repanc ies, if an

y, to the a ttention of

this Court. They raised nothing contrary to the Trial Court's finding of non-relevancy. Although the Trial Court may have erroneously excluded such evidenc e, it is harmless error and Mother's issue is without merit. S ee Rule 3 6(b); Blaylock and Brown Co nstr uction, Inc. v. AIU Ins. Co., 796 S.W.2d 146 (Tenn. Ct. App. 1990).

4.

The next issue

we will ad

dress is Mother's issue numbered 14 as to whether the Trial Court erred in not granting the motion for summary judgment filed by Mother on August 3, 1998, relating to the custody of the minor child. Father filed a motion seeking a change of custody ba sed upon the minor child's expression of preference for living with Father and other allegations by the mino

r child of happenings in Mother's home. Mother contested the change of custody. At a later date, minor child decided she want ed to stay withher Mother. Father respected the child's decision and did not pursue the cha nge of custod y. He orally removed the issue from the Trial Court's consideration. Moth er had filed a motion for summary judgment and attempted to pursue it. The motion fo r summary judgment was appropriately denied by t he Trial Court as it was not a proper matter for summary ju dgment.

Our Supreme Court, in Byrd v. H

all, 847 S.W.2d 208 (Tenn. 1993) has clarified the proper summary judgme

nt analysis to be

applied in Tennessee. In the opinion authored by

Justice Frank F. Drow ota, I

II , he explai ned Tenn . R. Civ. P. 56 , as follo ws:
Rule 56 comes into play only when there is no genuine issue as to any material fact an d the movin g party is entitle d to a judgment as a matter of law. Thus, the issues that lie a

t the hea rt of eva luating a summary

judgmen t motion ar

e: ( 1 ) whether a factualdispute exists; (2) whether the di sp uted fact is material to the outcom e o f the case; and (3) whether the disputed fa ct creates a genuine issue for trial. (Emphasis in original). First, when the facts material to th e application of a rule of law are undisputed, the application is a matter of law for the court since there is nothing

to submit to the jury

to resolve in favor of one party or the other. In other wor ds, when there is no dispute over

the evidence establishing the facts that control the a pplication of a rule of law, summary judgment is an appropr

iatemeans of deciding that issue. Second, to precl

ude summa

ry judgmen t, a dispute d fact mu st

be "material". A disputed f

act is mat erial if it must be decided in o

rder to r esolve th e substan tiv e claim or defense at which the

motion is direct

ed. Ther efore, when con

fronted with
a disputed fact, the court must examine the elements of the claim or defe nse at issue-11-

in the motion to determine whether the resolut ion of that fact will effect the disposition of any

of those claims or defense s. By

this proc ess, cour

ts and litig ants
can ascertain which issues are dispositive of the case, thus rendering other disputed facts immaterial. Third, when the evidence or proof in support of or in opposition to a summary judgmentm otion establishes a disputed fact, and the fact is material, as we h av e definedthat term, the court must then determine whether the disputed material fact
cr eat es a genuine issue within the meaning of Rule 56.03. Proceeding from the premise t hat Rule 56

is intended to avoid unnecessary trials, the test for a "genuine issue" is whether

a reasonable jury

could legitimately r

esolve that fact

in favor of one side or the other. If the a nswer is yes, summary

judgment is inappro priate; i f the
answer is no, summary judgment is proper because a trial would be pointless as there would be nothing f

or the jur y to do and the

judge need only

apply the law to

resolve the case. In m aking this deter mination, the court is to view the evidence in a light favora ble to the nonmoving party a nd allow all reasonable inferences in his favor

. And, ag ain, "g enuine is sue" asused in Rule 56.03 refers to

disputed, material facts and does not include mere legal conclusions to be dra wn from those facts. Fourth, the part

y seeking su

mmary judgmen t h a s the burden of demonstrating to the court that

there are no disputed, material facts cre ating a genuine issue for tria l,
as we have

defined those ter ms, and that h

e is entitl ed to judgment as a matter of law. A conclu sory

assertio n that the

nonmoving

party has n o evidence is clear ly insuffic ient. When the party seeking summary

judgment makes a properly supported motion, the burde

n then shif

ts to the nonmoving party to se t forth specific facts, not legal conclusi ons, by

using af fidavits o r the disc overy

materia ls listed in Rule 56.03, establishing that there are indeed disputed, material facts creat i ng a genuine issue that needs to be resolved by the trier of fact and that a trial is therefore necessary . The nonmoving party may

no t rely upon

the alleg ations or

denials o f his plea

dings in carry ing ou t t hi s b ur de n a s m an da te d b y Rule 56.05 . The evidence offered by the nonmoving party must be taken a s true. Moreover, the facts on which the nonmovant relies must be admissible at the trial but need not be in ad missible form as presented in the motion (otherwise an affidavit, for example, would be excluded as hearsay ). To permit an opposition to be based on evidence that would not beadmissible at trial would undermine the goal of the summary judgment process to prevent unnecessary trials since inadmissible evidence could not be used to support a jury verdict. In sum, there can be no doubt that summary judgmen t is a helpf

ul device , in appropr iatecases, f

or the jus t, speedy , and inexpe nsive re solutio n o f litigation. Preparing themoving a

nd oppositi on docume

nts will requ ire t he pa rtie s to an alyze the case, de

fine the legal a nd factu al issues with a hig h degre e of precision, and marshal the relevant evidence. However , in order to fulfill i

ts intende d utility , Rule 56 must be properly invoked by the p arties and properl y a pplied by the cour ts. A ppropria

te application of the Rule is more likely to be a chieved if litigants and courts alike keep in mind that the purpose of a summary judgment proceeding is not the finding

of fact s, the resolution of disputed, material facts, or the determination of-12-

conflicting inferences reasonably to be drawn from those

facts. "The pu

rpose is to resolve controlling issues of law, and that alone." Bellamy v. Federal Express Corp. , 749 S. W.2d 31 , 33 (Tenn. 1988) (citing Hamrick v. Spring City Motor Co. , 708 S.W.2d 383, 388 (Tenn. 1986 ) and Evco Corp . v. Ross, 528 S.W.2d 20, 25 (Tenn. 1975)); see also Rollins v. Winn Dixie, 780 S.W.2d 765, 767 (Ten n. App. 198 9) (summary judgment "is an efficient mea n s to dispose

of case s whose ou

tcome depends solely on

the resolution of legalissues." ). When a material fact is in dispute creating a genuine issue, when the credibility of witnesses is an integral part of the factual proof, or when

evidence must be weighed, a trial is necessary

because such issues are not appropriately resolved on the basis of affidavits.
Byrd v. H all , at 214-216.

To determine if summary

judgment was appropriate or in appropriate, we are to consider the evidenc e in a lig

ht favor able toMother a

nd allow a

ll reason able inf

erence s in her fav or. We must also consider whether a factual dispute exists; whether the disputed fact is ma

terial to the outco me of the case; and whether

the disputed fact creates a ge nuine issue for trial. The facts raised in the motion for

chan ge of custody

and Mother's answer, raise substantial fa ctual disputes which are material to th e c ha ng e o f c us to dy. The Tri al Cou rt was correc t in i ts det ermin ation that t he chan ge in custody was not a prope r subject for resolution by summary judgment. Thereis no merit in this issue.

5.

We now come to the constitutional issues pre sented by Father. The briefs submitted by Father'sand the Sta

te's coun sel on the se issues were excellen t.

The pivotal iss ue raise d in this appea l is whether the following rule and regulation promulgated by the Department of Human Services, pursuant to T.C.A. 36-5-101, violates the Equa l Protection Provision contained in Section 1 of Amendment 14 to the United States Constitution: Children of the obl

igor who a

re not inc luded in a

decree of child support shall not be considered

for the purposes of reducing the obligor's net income or

in calculating the guideline amount. Tenn. Comp. R & Regs. 1240-2-4-.03(4).

As to this issue we rely

upon our decision in Gallaher v. Elam, E2000-02 719-COA- R3-CV (January 29, 2002) that the State should not discriminate between children based solely on the fac t of their parents being divorced. There is not legitimate state purpose in allocating more of a parent's income to one child than another. This is unconstitutional and as such is void.-13- 6. Finally, Mother

filed a mo tion to admi

t post judgme

nt facts a long with a motion to d

ismiss due to unclean hands. The motions were deferre d to the panel of judges designated to hear the appeal on the merits. We do not find the motions to be well taken and they are de nied.

7.

We believe

it approp riate to r emand thi s case

to the Tri al Court f

or a dete rmination of child support by calculating:

1. An awar

d under th

e guideli nes for two children and make an award of one-half of that amount to Amanda; or

2. Determine the appropriate amount under the guidelines for one child, deduct that

amount from Father's net monthly income, and make an award to Amanda applying the guideline percentage for one child.
Additionally, the Trial Judge is to use his discretion in setting an appropriate amount for an educational trust fund for Amanda. To have an educati onal trus t

fund that is "a sum of money far in excess of what woul d be required to send her through many many years of a very expensive education" is unjust

and not required under the Guidelines. We agree with the Trial Court that Father should have the residue in the Educational Trust Fundwhen Amanda has completed her educa tion. Furthermore, child support is to support a child, not to give a divorce parent alimony which was not awarded in the original decree. We find that unde r the totality o f the circumstances of this case, Father ha s not rec eived a j ust and ec onomical ly reaso nable ruling from t he Trial Court.

In view of our decis ion on thes e issues, we prete rmit con sideration of Mother's remaining issues.

For

the foregoing reasons the judgment of the Trial Court is affir med in par

t, vacat ed in par t, and the cause remanded for proceedings not inconsistent with this opinion. C osts of appea l are adjudged one-half against the State and one-half a gainst Susan Klamon Whiton (Leedom).

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE