# FILED Oct. 15, 1995 Cecil Crowson, Jr . Appellate Court Clerk PAULA VAN SLYKE (FLEMING), ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9504- CV-00178 VS. ) ) Davidson Circuit ) No. 89D-2133 PHILIP EDWARD FLEMING, ) ) Defendant/Appellee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE APPEALE D FRO M THE C IRCU IT COU RT OF D AVIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE MURIEL RO BINSON, JU DGE

CHARLES PATRICK FLYNN MICHAEL K. RADFORD FLYNN & NEENAN, ATTORNEYS, P.C. 200 Fourth Avenue, North Suite 800, Noel Place Nashvil le, Tennessee 37219 Attorneys for Plaintiff/Appella nt JAMES G. MARTIN, III G. A. PURY EAR, IV FARRIS, WARFIELD & KANAD AY Suite 1900, 424 Chu rch Street Nashvil le, Tennessee 37219 Attorneys for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE
CONCUR: LEW IS, J. KOCH, J.- 2 - 

## O P I N I O N

This case invo lves the q uestion of wheth er a custodial parentmay claim the benefit of changes i n the child su pport guide lines promulgated after trial on her Petition for Increased C hild Support, but before th e trial court filed its Final Order. Because those changes were not rais ed in the proceedings below, we decline to act on them here. Instead, we remand the cause to the trial court for f urther proceedings.
I. Philip Fleming and Paula Van Slyke married in 1977, when he was in medical schoo l and she was i n law sc hool. After gr aduation, a resi dency and a fellowship, the husband began a plastic surgery practice that has proven to be very lucrative. The wife served in two judi cial cler kships after graduation from law school, and is now i n private practice. Two children were born of the marriag e, Sarah Kate Fleming a nd David Sc ott Flem ing.

The parties div

orced in 1990. The divorce decre e recited that irreconcilable diffe rences ex isted betw een the parties, and it incor porated a marital dissolution agreement that they had negotiate d. Among other things, the agreement provided that the wi fe would have custody of Sarah and Dav id, and that the husband would pay

child suppor

t directly to her in the amount of $1,000 per month per child.
The h usband assumed other obligatio ns relative to the childr en, including the payment of tui tion, fees and books foreach c hild's pri vate educati on through the twelfth g rade, and the prov ision of a four year col lege educati on for both.- 3 -

He als o agreed to mai ntain major medical and hospital ization i nsurance for the chil dren, and to pay one half of their medical and dental expense s not covere d b y insurance.
The wife acknowledges that Dr. Fleming has always paid the monthly child support check in a timely way, and she does not deny that he has covered the the children's

expenses at Oak Hill School, whe re they are c urrently enrolled. According to Dr. Fl eming's stat ement of monthly ex penses, tuitio n and otherschoolrelated exp enses paid by him amount to about $700 per month.

II.
On August 24, 1993, Ms. Van Slyke filed a pet ition for an increase in child support. She c laimed t hat the needs of the children had increased s ince the divorce, and that Dr. Flemi ng'sincomehad also substantially increased. Trial on the petition occur red on May 26, 1994 and June 6, 1994.
The w ife testified that as the children have gr

own, they

have begun to participatein more activities, incl uding some that requi re a su bsta ntia l fin anci al ou tlay. Theygolf, play t ennis and sw im. They have taken piano les sons, horseback riding lessons, flute le ssons and Taekwondo lessons. They play socc er, baseball and basketball, and they go on snow-skiing trips. Ms. Van Slyke has also gon e back to work full-time, and as

a result shehas also had to spen d more on after-sc hool and summe r child care and bab ysitting.

The proof also showed that in 1989, the year before the parties ' divorc e, Dr. Fleming's

net income had been $1 78,213. This was the most rece nt financial informati on Ms. Van Slyke ha d to rely on during t he negotiation s for the marital dissolution agreement. In 1990, Dr. Fleming experienced a dra matic increase in his- 4 -

incomeas a result of perform ing a greatly increased number

of breast flap r econstruction procedures. He earned $387, 086 that year. Though it has decl ine d steadily sincethen, D r. Fl eming 's net incomehas remained well above the 1989 level. In 1993, the most rec ent year for w hich the court has figures, it amounted to $269,770.
The trial judg e agree d that the chil dren's increased needs combined with the improvement i n Dr. Flemi ng's means warranted an inc rease in his child suppor

t obligation. On August 11, 1994, she entered an or der increasi ng his monthly payment to $1,500 per

child. The wife appealed the trial court's orde r, arguing that the court should have or

dered a larg er increase.
This court dismi ssed the appeal wi thout prejudice, b ecause the order of the trial court did not specifically disp ose o f c ertain matters raised in t he original petition. Ms. Van Slyke then returned to the tri al c ourt to deal with those matters (which are not re levant to the proc eedings currently before us). On J anuary 26, 1995, she obtained a final order that i s appealable to t his court.
III.
The appellant's pr imary arg ument is that the trial cour t erred in or

dering Dr. Fleming to pay child support in an amount thatwas les s than woul d be required if the percentage mandat ed by the chi ld support g uidelines was applied to th e entire amount of his netincome. To deal with this issue, we must briefly discuss the history and evolutio n of the guideli nes.

In 1989, the Tennessee Leg islature enac ted a statute w hich required th e courts to apply th e child suppor t guidelin es promulgated by the Department of Human Services as a rebuttable presumption when making such awards. The purpose of the- 5 -

statute was to introduce some consistenc y into chi ld support awards, and to meet t he requirements

imposed by t he Congress forreceipt by

the state of federal money for child support

enforcement.
The statute is now

codified at Tenn . Code An n. § 36-5-101(e ). The guide lines referred to est ablished fix ed percentages of a non-custodial parent' s ne t incometo be applied to child support, dependi ng on the number o f children inv olved (21% for one child, 3 2% for two c hi ldren, etc.) . The guideli nes also incl uded rules recogniz ing types of "uniq ue cases" w here stric t application of the m andat ed percentageswould not b e appropriate or equitable, inc l uding those w here "the net incomeof the obligor

exceeds $6,25 0 per month." See Nash v. Mull e , 84 6 S.W.2d 803, 805, foo tnotes 9 and 10, (Ten n. 1993).

After Tenn. Code Ann. § 36- 5-101(e)(2) became effective, but befo re the Supreme Court's opinion in Nash v. Mulle , there was much uncertainty in the courts about the proper way to determi ne support obli gations in situations w here the noncustodial parent had a net i n come above $6,250 p er month. This unc ertainty was exemplified i n the procedural hi story that led to the Nash v. Mulle opinion. The trial court had ordered thefather to pay an amount equal to 21% of his rather larg e inco me forchild support (only o ne child was involv ed). The Court of Appeals rev ersed, holding that the guid el ines could not be appli ed to income that exceeded the max imum provid ed for in the table s, and reduced th e award to 21% of $6,250, or $1,312.
The Tennessee Supreme Cou rt rever sed the Court of Appeals byruling that the trial court could, in its sound discretion, det ermine on a case-by-case basis "the appropriate am ount o f child suppor t to be paid w hen an o blig or's net income exceeds $6,250 per month, bal ancing both th e child's nee ds and the parents' means." The case was remanded to the tri al cour t to gi ve the judge an op portunity to- 6 -

reconsider his opinion in light of the fact th at he was neither bound to award 21% of Mr. Mulle's total net income, nor limited to a ca p defined by the maximum fig ure s found in the tables. Nash v. Mulle at 806. Despite argument to thecontrary by Ms. V an Slyke, our

reading of

the record in the present

case convi nces us that the trial court did not abuse its dis cretion in granting her

a $1,000 per

month increase in child support. T he additional fun ds will enable her to meet the ex penses direct l y attrib utable to the cos t of providi ng the children w i t h t h e a d v a n t a g e s t h a t b o t h p a r e n t s w i s h t h e m t o e n j o y . We find no merit in the appellant's

argument

that in calc ulating the true cost of supporti ng her chil dren, we must include onehalf of her household ex penses, inc luding th e mortgage, appliance and furniture r eplacement, the cos t of repainting her home, and the serv ices of an interior d ecorator.
IV.

Ms. Van Sly ke's second argument relie s upon the amendments to the guidelines

which be c ame effective December 14, 1994. The amended g uidelines omit the previous rule declaring that among the cases fo r which the guidelines were neither appropria te nor equitabl e are those w here the income of the obligor par ent exceeds $6,250. In its plac e, the guidel ines now contain the follow ing:

The court must order child sup port based upon the appropriate percent age of all net incom e of the obligor as defined according to 1240-2-4-. 03 of this rule b ut a ltern ate paymentarrangements may be made for the aw ard from that portion of net

income whi ch exceeds $ 6,250. When the net incomeof the obligor

exceeds $6,25 0 per month , the court mayestablish educational or other trust funds for the be nefit of the child(ren) or make other provisions in the child(r e n)'s best interest; however all of the support award amount based on net income up thr ough $6,250 must be paid to the custodial parent. (empha sis added). Tenn. Comp. R. & Regs. Ch. 1240-2 -4(f)(3).- 7 - The appellant argues that this court should apply the new version of the guidelines

because it beca me effective before the fil ing of th e final ju dgment in this case. However, we n ote that the issue was not presented to the trial court. Ther efore, we decline to consider it here. The determin ation of how to structure payments based on income exc eeding $6,250 per month should be made on a record developed in the trial c ourt wit h this issuein mind.
V.
Ms. Van Slyke makes

one more point that

has some validity, however. She argues that if we affirm the trial court, she wil l simply file a new pe tition for modification of child support and thatthe new guidelines will of necessity applyto the new petition. While we find t hat argument i ns uffic ient to compel us to consider the issue sh e has raised her e, we do thi nk that judici al economy would be served by remanding the cause to the trial court for consi deration under the current regulations. The parties shoul d also be free to pr esent fresh evidence of incom e, expenses, and how the pay ments based on inco me above $6,250 per month should be appl ied.

VI.
We affirm the judgment of thetr ial court . Remand this cause to the Circuit Court of Dav idson County forfurthe r procee dings consistent w ith this opi nion. Tax the costs

on appeal to the appe llant._______________ ______________

_____ BEN H. CAN TRELL, JUDGE
CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE

_______________________________ WILLIAM C. KOCH, JR., J UDGE