IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 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-divorce proceeding that began with the 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 guidelines was constitutional. Father appealed

claiming that Tenn. Comp. R & Regs. 1240-2-4-.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. Mother also

appeals raising various issues. We reverse the Trial 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

HOUSTON M. GODDARD, P.J., delivered the opinion of the court, in which WILLIAM H. INMAN, SR.

J., joined. HERSCHEL P. FRANKS, J., filed a dissenting opinion.

Sarah Yarber Sheppeard and Jason H. Long, Knoxville, Tennessee, for the Appellant, Alan L.

Whiton

Dale Alan Everett, Knoxville, Tennessee, for the Appellee, Susan K. Whiton (Leedom)

Paul G. Summers, Attorney General & Reporter, and Kim 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 March 1988, when Father filed a complaint

for divorce. They were divorced by order entered September 5, 1989. 
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As pertinent here, the Trial Court entered an order on February 20, 1990, setting child

support at $750 per month, which was less than the amount presumed to be appropriate by the Child

Support Guidelines, finding that the 

rebuttable presumption created by Tennessee Statute and resulting regulations and/or

Department of Human Services Child Support Guidelines is rebutted and the

application of said guidelines would be unjust and inappropriate under the specific

circumstances of this particular case.

Father was ordered to pay for the child's health insurance, one-half of non-covered medical

expenses, and create

an educational or special trust fund for the education of the minor child and

contribute a minimum of $1,000.00 a year toward said trust fund for the benefit of

the child's education or welfare.

At the time of the divorce in 1989, Father had custody of a minor son by a previous

marriage, along with a court ordered obligation to child support for the minor child. Mother

appealed the decision of the Trial Court and subsequently an agreed order 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 March 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 circumstances, an increase in

Father's income, and a significant variance between the support being paid and the Guidelines

support presumption. Father filed a response denying any change in circumstances, denying any

significant variance between the Guidelines presumption and the support payment, and affirmatively

alleging compliance with existing court orders.

The record in this case 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

representing herself. Even since oral argument was had in this case Mother has again changed

lawyers.

Approximately two and one-half years later, on April 14, 1997, the court entered the first

order in the present litigation, setting child support at $1,312 per month, retroactive to September

13, 1994, and ordered an accountant be employed to determine the Father's net income in accordance

with the Child Support Guidelines for 1994, 1995 and 1996, and that a further hearing be held to

determine additional child support and contributions to the educational trust fund. Father began

paying $1,312 monthly child support in May 1997.
1

The Trial Court was referring to Lee v. Askew, Court of Appeal No. 02A01-9805-JV-00133, W. S. at Jackson,

1999 Tenn. App. LEXIS 182, filed March 17, 1999.

2

The Trial Court was referring to the concurring opinion of Judge William C. Koch, Jr., in State ex rel.

Randolph v. Poteet, Court of Appeals No. 01-A-01-9808-JV-00419, M. S. at Nashville, 1999 Tenn. App. LEXIS 176,

filed March 17, 1999.

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Numerous pleadings were filed by the parties. Father filed, inter alia, a motion for a new

trial, petition for change of custody, response to Mother's motion for summary judgment, motion to

withdraw by Attorney Stokes and substitute Attorney Garrison, and a motion seeking to have the

court declare the Child Support Guidelines unconstitutional. Mother filed, inter alia, a several

motion for contempt and revocation of Father's licenses, a motion to increase child support, motion

for attorney's fees, motion for summary judgment as to Father's petition to change custody, a trial

brief, a supplemental trial brief, a notice of lien by Attorney Everett, notice of withdrawing as

counsel by Attorney Everett, notice of appearance by Attorney Albiston.

An order was entered by the Trial Court on December 8, 1999, in which, inter alia, the Trial

Court overruled Mother's motion for summary judgment concerning custody of the minor child

finding that it was not a proper matter for summary judgment. The Trial Court reviewed the joint

report submitted by the parties' respective accountants and increased the amount to be paid into the

educational trust fund. In his memorandum opinion, he stated:

Now in this case, there is no question, as I've indicated, that 21 percent of these

figures that I keep going back to, $6,250 per month income, $10,000 per month

income and even higher, if, in fact, the law has authorized or mandated that we go

higher. Those amounts are just literally set in concrete. Obviously, the Courts are

going to see that you reach the point of ridiculousness, or absurdity, or whatever

word you might want to call it, when you begin dealing with someone like a

professional basketball player making $2,000,000 a year.1 And as was set out by

Judge Koch in his [concurring] opinion2. . .. He has actually begun to talk about the

situations that's being created by the present state of the law and that it is getting into

the area of affecting the constitutional rights of people, children, obligors for the

payment of child support. He spends some time talking about the child of the first

family as opposed to the child of the second family. I am going to consider the

second child in this matter, which means that we should be dealing with 32 percent,

I believe, isn't it? . . .

And applying one half of that amount, 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, which is the focus of this litigation, 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 income in excess

of those figures. Quite frankly, I've not determined what that might be but I have an

idea that is eventually, and by the time this child is 18 years of age. . .that it will be
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a sum of money far in excess of what would be required to send her through many

many years of a very expensive education. . . I don't hesitate to say, that what I have

done today is not fair to Dr. Whiton.

While Mother was representing herself 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 your hearings for you. If you want to be heard, you have got to

let me know. . .."

Father filed a Notice of Appeal from the December 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

Court found the guidelines to be constitutional. The court reversed its prior ruling and required that

Father pay 21% rather than 16% of his income in excess of $15,000 per month into an educational

trust for the minor child. In reaching this conclusion, the Court concluded 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 Defendant's previously pending Motion to Find the Tennessee Child

Support Guidelines Unconstitutional, the Court now rules that said Guidelines are

Constitutional.

2. The Defendant will continue to pay the minor child's medical insurance premiums

until the child attains age eighteen (18) or graduates from high school, whichever is

later; out-of-pocket expenses shall continue to be borne equally by the parties.

3. The purchase of fixed assets by the Defendant shall be deducted from the Defendant's

gross income in estimating net income for child support purposes.

4. The Defendant's working interests in oil and gas, so called "passive losses," shall also

be deducted from the Defendant's gross income in estimating net income for child

support purposes when the interest shows a loss; however, when the oil and gas

interests show a profit, 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 from his gross income since, if the Defendant

became disabled, that income would be subject to child support and therefore is an

insurance that benefits the minor child.

6. The Court, however, reverses its prior ruling and finds that the Defendant's yearly

health insurance premiums on himself, his spouse and his other minor child shall not

be deducted from the Defendant's gross income in estimating his net income for child

support purposes.

7. The Court further reverses its prior ruling and finds that the Defendant shall pay

Guideline child support directly to the Plaintiff and shall Order that twenty-one

percent (21%) of the excess of Ten Thousand Dollars ($10,000.00) be placed in an
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Educational Trust Fund with the residual to revert to the Defendant when the minor

child is no longer in school. . ..

8. The Court finds that its prior ruling shall stand concerning the fees of the Plaintiff's

previous attorney, Alan Everett, and Plaintiff's expert witness accountant, Leroy

Bible, such that said fees shall be paid out of the Educational Trust Fund, but since

the Defendant's prior Educational Trust holdings were in a mutual fund and the

Defendant paid the fees outright, the issue is now moot.

9. The Court suggest that counsel attempt to agree upon how the Educational Trust

Fund be set up, who will administer the Trust, who will be the Trustee, and when any

remaining proceeds will be returned to the Defendant. The Court notes that if

counsel is unable to reach agreement, that this case be set for hearing.

10. The Court notes that counsel for the Plaintiff and the Defendant shall meet to set

current child support at Twenty-one Hundred Dollars ($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 Educational Trust Fund for the

minor child.

11. The parties agree that a child support arrearage for the years 1994 through 1999 is

owing. The Defendant has paid Thirty-Four Thousand Seven Hundred SeventySeven Dollars and Thirty-Two Cents ($34,777.32); the Plaintiff has presented 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 TwentyFour Cents ($4,919.24). The Court finds that this is an arrearage and notes that

Defendant's counsel has said he would go over these numbers with the Defendant.

12. Concerning the Educational Trust Funds, the interest that the current Educational

Trust Fund has been earning shall be credited to the Defendant except for the twelve

percent (12%) simple interest arrearage which shall be calculated and presented, if

possible, in an Order to be presented to this Court. Again, if agreement 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

jail sentence, which is suspended, and imposes a Fifty Dollar ($50.00) fine, which

is waived.

14. The Motion for Attorney's Fees filed by Plaintiff's prior counsel, Alan Everett, is

denied.

15. The Defendant's Motion to Stay Execution of the Judgment Pending the Appeal is

reserved for sixty (60) days.

Mother then filed another petition for contempt rather than set the case for hearing as the

Trial Court ordered. Mother filed a Notice of Appeal on January 31, 2001.

In the Trial Court's final order entered on March 6, 2001, Father, Mother and 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
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for child support and the educational fund were to bear interest at 12% per annum. The Trial Court

denied Mother's petition for attorney's fees and dismissed the petition for contempt.

ISSUES

Mother presents the following issues for our consideration:

1. Whether it is error or in other ways, should the Court of Appeals exercise its supervisory

authority over the Trial Court in this case to require that T.C.A. 36-5-405(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 circumstances of this case, the appellant/Mother has

received a just and economically reasonable ruling from the Trial Court?

3. Whether the Trial Court erred in setting up a trust in this case?

4. Whether the Trial Court erred in ordering the return of moneys in the trust to the obligor?

5. Whether the amount of support actually flowing to the Mother is correct including, but not

limited to, whether the whole or a portion of the amount flowing to the trust should go

directly to the Mother?

6. Whether the Trial Court erred in refusing to hold the Father in contempt of court for

numerous contempt actions filed in this case, including, but not 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 fees for the numerous contempt

petitions filed in this case?

9. Whether the Trial Court erred in failing to force the disclosure of the first 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 from

income in this case?

11. Whether the Trial Judge erred in failing to sanction, or in other ways properly deal with,

allegations of delay, failure to ask for records of insurance and college trust funds, requests

for attorney fees and all other motions, pleadings, claims, trial and hearing tactics engaged

in by the respondent Father. The Mother, 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 statementssubpoenaed from a bank that

were examined by the judge and then sealed and placed in the file without review by either

attorney?

13. Whether the Trial Court erred in not finding 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. 36-5-405. Actions for support.

(a) . . .

(b) When a petition is filed, the clerk shall designate a hearing date on the notice prescribed in this part or, in the

alternative, shall designate a hearing date on the summons to be served by the sheriff if the petitioner elects to proceed

by having the sheriff serve process to initiate this proceeding. The hearing date shall be within thirty (30) days of the

date the petition is filed. If process is served by certified mail, the clerk shall then send a copy of the completed petition,

testimony, and notice to respondent by certified mail, return receipt requested. The clerk shall give a copy of completed

notice, petition, and testimony to petitioner. 

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1. Whether the 1994 Amendment to the child support guidelines regulations, which excludes

consideration of support paid on behalf of children in the absence of a court order, is both

facially unconstitutional and unconstitutional as applied to this case.

2. Whether the Trial Court's non-discretionary, mechanical application of the guidelines in this

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 Support Guidelines do not violate

the Constitutional requirement of equal protection and separation of powers, and do provide ample

due process in determining the child support obligation of the non-custodial parent.

DISCUSSION

The Trial Court's findings of fact are subject to a de novo review upon the record,

accompaniedby a presumption of correctness, unless the preponderance of the evidence is otherwise.

Tenn. Rule App. P. 13(d); Alexander v. Inman, 974 S. W. 2d 689, 692 (Tenn. 1998). The Trial

Court's conclusions of law are subject to a de novo review with no presumption of correctness.

Ganzevoort v. Russell, 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 findings regarding the issue of contempt is reviewed using an abuse of discretion

standard. Wright v. Quillen, 909 S.W.2d 804, 814 (Tenn. Ct. App. 1995); Quality First 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. filed; 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 exercise

its supervisory authority over the Trial Court in this case to require that the Trial Court comply with

T.C.A. 36-5-405(b).3

 Because of various reasons, the trial judges granted continuances in this

matter. The "granting or refusing to grant a continuance rests within the sound discretion of the

Court, and the Trial Court's decision will not be reversed in the absence of a clear showing of abuse

of discretion." Morrow v. Drumwright, 202 Tenn. 307, 304 S.W.2d 313 (1957); Barber & McMurry
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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 case is copious with Mother's eloquence in expressing her animosity

toward Father and her refusal to co-operate with Father. Moreover, this matter has a long history of

procedural ineptness and delay on the part of Mother, particularly because she represented herself

pro se either with 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 legal counsel, to

proceed with and prosecute her action; neither the Court nor the defendant has the responsibility to

prepare the case. See generally, Mills v. Bank of Roane County, 1991 Tenn. App. LEXIS 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 want to be heard, you have got to let me know. . .."

Moreover, this issue is moot on appeal as to mandating that trial clerks be in strict compliance with

T.C.A. 36-5-405(b). In the case of Knott v. Stewart County, 185 Tenn. 623, 626, 207 S.W.2d 337,

339 (Tenn. 1948), the Court quoted with approval from State ex rel. v. Wagoner, 88 Tenn. 290, 292,

12 S.W. 721 (1889), as follows:

This court cannot settle abstract questions, however important, or however simple

they may be, upon the supposition that they may hereafter arise. They may never do

so.

It is too well established and settled to require further citation that in this State issues, which

have become moot, will be dismissed. We find this issue to be without merit.

2.

Next, we will examine together Mother's issues numbered 6, 7, 8, 9, 11, and 13, which deal

with whether the Trial Court erred in refusing to find Father in contempt 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 far as twelfth century

England. See Ronald L. Goldfarb, The Contempt Power at p. 9 (1963). Contempt

was firmly established as a legal concept by the fourteenth century and it was a

principle adopted and incorporated into American jurisprudence by the colonists.The

Contempt Power at p. 19 (1963). Therefore, the inherent power of courts to punish

contemptuous conduct has long been regarded as essential to the protection and

existence of the courts. State v. Galloway, 45 Tenn. 326, 331 (1868). Indeed, at

common law, the power of courts to punish contempt was vast and undefined. Id. at

330. Because unlimited, undefined discretionary power carried with it the potential

for abuse, specific statutory provisions were adopted to limit and define the conduct
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punishable 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 power to punish for contempt may and should be used in an appropriate case, it

should not be used unless the case clearly calls for its exercise. 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 against

logic or reasoning, and caused an injustice or injury to the party complaining.'" Marcus v. Marcus,

993 S.W.2d 596, 601 (Tenn. 1999) (quoting with approval Ballard v. Herzke, 924 S.W.2d 652, 661

(Tenn. 1996)); Brooks v. United Uniform Company, 682 S.W.2d 913 (Tenn. 1984).

When we are called upon to review a discretionary 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 (1940). The term "abuse of

discretion" means just what it says. It does not mean that the appellate court must determine whether

it would have decided the matter in the same manner if it had been called upon to exercise that

discretion. Instead, the appellate court must consider whether the lower court's exercise of its

discretion went beyond the bounds of a fair exercise of discretion. 5 Am. Jur. 2d, Appeal And Error,

§ 774, n.8 (1962). Furthermore, it is well settled that a Trial Court is vouchsafed with wide

discretion as to the allowance of attorney fees. Threadgill v. Threadgill, 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, which 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 certain fees be 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 Court denied Mr. Everett's motion for

attorney's fees. We find no abuse of discretion in that regard because in the record before us it is

difficult to determine just when Mr. Everett was only in attendance in the Trial Court with Mother

while she was representing herself and when Mr. Everett was actually her legal counsel. 

3.

We next address Mother's issue numbered 12 as to whether the Trial Court erred in

examining certain financial records, which Mother subpoenaed from the bank and which were sealed

upon its finding that the documents shed no new light on the issues before the Trial Court.. For

some reason about which the record is silent, the bank filed the documents directly with the Trial
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Court. The court reviewed them and then sealed them finding that there was nothing in them

different from what was already before the court. We have examined the file which was placed

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 found them unsealed. Either

of the parties' attorneys, while having the record in their possession preparing their briefs, had the

opportunity to examine the documents and bring the discrepancies, if any, to the attention 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 evidence, it is harmless error and Mother's issue

is without merit. See Rule 36(b); Blaylock and Brown Construction, Inc. v. AIU Ins. Co., 796

S.W.2d 146 (Tenn. Ct. App. 1990). 

4.

The next issue we will address 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 based upon the

minor child's expression of preference for living with Father and other allegations by the minor child

of happenings in Mother's home. Mother contested the change of custody. At a later date, minor

child decided she wanted to stay with her Mother. Father respected the child's decision and did not

pursue the change of custody. He orally removed the issue from the Trial Court's consideration.

Mother had filed a motion for summary judgment and attempted to pursue it. The motion for

summary judgment was appropriately denied by the Trial Court as it was not a proper matter for

summary judgment.

Our Supreme Court, in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993) has clarified the proper

summary judgment analysis to be applied in Tennessee. In the opinion authored by Justice Frank

F. Drowota, III, he explained Tenn. R. Civ. P. 56, as follows:

Rule 56 comes into play only when there is no genuine issue as to any

material fact and the moving party is entitled to a judgment as a matter of law. Thus,

the issues that lie at the heart of evaluating a summary judgment motion are: (1)

whether a factual dispute exists; (2) whether the disputed fact is material to the

outcome of the case; and (3) whether the disputed fact creates a genuine issue for

trial. (Emphasis in original).

First, when the facts material to the 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 words, when

there is no dispute over the evidence establishing the facts that control the application

of a rule of law, summary judgment is an appropriate means of deciding that issue.

Second, to preclude summary judgment, a disputed fact must be "material".

A disputed fact is material if it must be decided in order to resolve the substantive

claim or defense at which the motion is directed. Therefore, when confronted with

a disputed fact, the court must examine the elements of the claim or defense at issue
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in the motion to determine whether the resolution of that fact will effect the

disposition of any of those claims or defenses. By this process, courts and litigants

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

judgment motion establishes a disputed fact, and the fact is material, as we have

defined that term, the court must then determine whether the disputed material fact

creates a genuine issue within the meaning of Rule 56.03. Proceeding from the

premise that Rule 56 is intended to avoid unnecessary trials, the test for a "genuine

issue" is whether a reasonable jury could legitimately resolve that fact in favor of one

side or the other. If the answer is yes, summary judgment is inappropriate; if the

answer is no, summary judgment is proper because a trial would be pointless as there

would be nothing for the jury to do and the judge need only apply the law to resolve

the case. In making this determination, the court is to view the evidence in a light

favorable to the nonmoving party and allow all reasonable inferences in his favor.

And, again, "genuine issue" as used in Rule 56.03 refers to disputed, material facts

and does not include mere legal conclusions to be drawn from those facts. 

Fourth, the party seeking summary judgment has the burden of demonstrating

to the court that there are no disputed, material facts creating a genuine issue for trial,

as we have defined those terms, and that he is entitled to judgment as a matter of law.

 A conclusory assertion that the nonmoving party has no evidence is clearly

insufficient. When the party seeking summary judgment makes a properly supported

motion, the burden then shifts to the nonmoving party to set forth specific facts, not

legal conclusions, by using affidavits or the discovery materials listed in Rule 56.03,

establishing that there are indeed disputed, material facts creating a genuine issue that

needs to be resolved by the trier of fact and that a trial is therefore necessary. The

nonmoving party may not rely upon the allegations or denials of his pleadings in

carrying out this burden as mandated by Rule 56.05. The evidence offered by the

nonmoving party must be taken as true. Moreover, the facts on which the nonmovant

relies must be admissible at the trial but need not be in admissible 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 be admissible 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 judgment is a helpful device, in

appropriate cases, for the just, speedy, and inexpensive resolution of litigation.

Preparing the moving and opposition documents will require the parties to analyze

the case, define the legal and factual issues with a high degree of precision, and

marshal the relevant evidence. However, in order to fulfill its intended utility, Rule

56 must be properly invoked by the parties and properly applied by the courts.

Appropriate application of the Rule is more likely to be achieved if litigants and

courts alike keep in mind that the purpose of a summary judgment proceeding is not

the finding of facts, the resolution of disputed, material facts, or the determination of
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conflicting inferences reasonably to be drawn from those facts. "The purpose 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 (Tenn. App. 1989)

(summary judgment "is an efficient means to dispose of cases whose outcome

depends solely on the resolution of legal issues."). 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. Hall, at 214-216.

To determine if summary judgment was appropriate or in appropriate, we are to consider the

evidence in a light favorable to Mother and allow all reasonable inferences in her favor. We must

also consider whether a factual dispute exists; whether the disputed fact is material to the outcome

of the case; and whether the disputed fact creates a genuine issue for trial. The facts raised in the

motion for change of custody and Mother's answer, raise substantial factual disputes which are

material to the change of custody. The Trial Court was correct in its determination that the change

in custody was not a proper subject for resolution by summary judgment. There is no merit in this

issue.

5.

We now come to the constitutional issues presented by Father. The briefs submitted by

Father's and the State's counsel on these issues were excellent.

The pivotal issue raised in this appeal is whether the following rule and regulation

promulgated by the Department of Human Services, pursuant to T.C.A. 36-5-101, violates the Equal

Protection Provision contained in Section 1 of Amendment 14 to the United States Constitution:

Children of the obligor who are not included 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, E2000-02719-COA-R3-CV

(January 29, 2002) that the State should not discriminate between children based solely on the fact

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 motion to admit post judgment facts along with a motion to dismiss

due to unclean hands. The motions were deferred 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 denied. 

7.

We believe it appropriate to remand this case to the Trial Court for a determination of child

support by calculating:

1. An award under the guidelines 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 educational trust fund that is "a sum of money far

in excess of what would 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 Fund when Amanda has completed her education.

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 under the totality of the circumstances of this case,

Father has not received a just and economically reasonable ruling from the Trial Court.

In view of our decision on these issues, we pretermit consideration of Mother's remaining

issues. 

For the foregoing reasons the judgment of the Trial Court is affirmed in part, vacated in part,

and the cause remanded for proceedings not inconsistent with this opinion. Costs of appeal are

adjudged one-half against the State and one-half against Susan Klamon Whiton (Leedom).

_________________________________________

HOUSTON M. GODDARD, PRESIDING JUDGE