# FILED
February 4, 1999 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JANUARY 1999 SESSION

----------------------------- ----------------------------- ---------------

LARRY AUBREY HENSON, ) ) Shelby Juvenile No . H331 Respondent/Appella

nt )

) Appeal No. 02A

01-9805-JV-00135 v. ) ) ELIZABETH ELLEN SORRELL, ) ) Petitioner/Appellee )

APPEAL FROM THE JUVENILE COURT OF SHELBY COUNTY

AT MEMPHIS, TENNESSEE THE HONORABLE HAROLD HORNE, JUDGE

For the Appellant: Larry Henson, Pro Se 5973 Poplar Pike Ext . #8 Memphis, TN 38119 For the Appellee: No appearance.

AFFIRMED

WILLIAM H. INMAN, SENIOR JUDGE CONCUR: W. FRANK CRAWFORD, JU DGE DAVID R. FARMER, JUD GE2 

### OPINIO N The child of these parties, who were never married to each other, was born March 11, 1996. T

he paternity issue w

as determined in June , 1996 by the Juvenile Court, wh

ich also directed the

payment of child suppor t. The appellant questioned his liability

for support because

the child was conce

ived without his consent. He did not p revail. The matter then progressed to the Circuit Court where the appellant filed an action for damages

against his paramour

, alleging promissor

y fraud, fraudule

nt concealment, bre

ach of contract,

conversion and intenti

onal infliction of emotional distress arising from her failure to inform the appellant that she was no longer practicing birth control. A m erit trial resulte

d in a judgment against the appellant. Th

at case was also a

ppealed and the judgme

nt was affirmed. All of which brings us to the instant case, wherein the Juvenile Court heard the petition of

Sorrell for an inc

rease in child suppor

t and for terminati

on of visitation, and the

petition of the appell

ant for an award o

f custody, or increased visitatio

n privileges. The

Court increased the

support from $300.00 monthly, which had pr

eviously been agreed

upon, to $552.30 [21%] per month, in accordance wit

h the Guidelines, a

nd modified the existi

ng visitation schedule. Our review of the

findings of fact ma

de by the trial Court

is de novo upon the record of the tr

ial Court, accomp anied by a presumption of the correctnes s of the finding, unless the preponderance of the evidence is otherwise. T ENN . R. A PP . P., R ULE 13(d); Campbell v. Florida S teel Corp., 919 S.W.2d 26 (Te nn. 1996). Although the appellan t presents for revi

ew a number of issue s, the thrust of his argument is directed to the asserted inapplicability of the Guidelines1 The appellee testified that the appellant stated he would leave, etc. 3 because of the failure of the appellee to prove a change in her circumstances which would justify the increase. He also argues, in effect, that he was given short shrift in the trial Court because he was not allowed to present proof. As to the latter ar

gument, the recor

d reveals that the a

ppellant is mistaken. The Cou

rt pointedly asked the appellant “are you p utting on any proof at this time?”

to which he replied , “No, your Honor. I said those things 1 and I stand by them. I

believe that 21% is no

thing but disguised state

slavery, but aside from that w

e have an agreeme

nt and she needs to stic

k by it. Just to come in here and say, I ch anged my mind is no t a valid reason.” The Guidelines ar

e examined closely i

n Jones v. Jones, 930 S.W.2d 541 (Tenn. 1996), which held that “there can also be no doubt that the General Assembly intended tha

t these guidelines cont

rol the amount awar

ded as child support.” The Gui

delines are rebutt

able, T.C.A . § 36-5-101(e)(1) , but if deviated from the C

ourt is required to m

ake written finding s that they would be unjust or inappropriat

e in “order to provide

for the best intere st of the child(ren) or the equity between the parties.” The appellant argues that no change in circumstances was shown since the entry of the agr

eed judgment. He a

lso argues that the Court erred in holding that the appellee w

as not required to pro

ve a change in circ

umstances as a condition precedent t

o modification of the

award. The thr

ust of his argument is simply that he and the a

ppellee agreed upon $ 300.00 per month child support, and there the matter ends unless the appellee can show changed circumstances which justify an incr

ease. The diff

iculty with this argum

ent is to be found in the fact that the ini

tial judgment, ente

red by consent, provi

ded that the “child support payments shall

be worked out betwe

en the parties by agr

eement.” The4

parties thereafter negotiated, and agreed upon $300.00, without further involvement by the Court. Somewhat strangely, the parties, and the trial Court as well, apparently assumed that the support payment of $300.00 monthly had been ordered by the C

ourt and thus was subje

ct to modification. Since the amount of s

upport had never been

adjudicated, nor ha

d the agreement of the pa

rties as to child suppor

t been judicially appr

oved, it necessarily follows that the trial Court properly fixed the amount in accordance with the Guidelines . There was no e vidence formally pr

esented that a devia

tion was appropriate,

and we find nothing in t

he record to justify a deviation. The argument that the G

uidelines are “disgu

ised state slavery”

is not a sufficient ground to rebut the pre sumption of their appli cability. With respect to the visitation schedule, we have examined the record carefully and cannot find that the evide nce preponderates ag ainst the judgmen t. The remaining issue s have been considere d, none of which af

fect the judgment, which is affirme

d at the costs of the a

ppellant.

_______________________________ William H. Inma

n, Senior Judge CONCUR:

_______________________________ W. Frank Craw

ford, Judge

_______________________________ David R. Farme

r, Judge