IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

ASSIGNED ON BRIEFS APRIL 7, 2006

LATREAYL MITCHELL v. MICHAEL GREEN

Direct Appeal from the Juvenile Court for Shelby County

No. L6977 George Blancett, Judge

No. W2005-01057-COA-R3-JV - Filed May 30, 2006

In this appeal, we are asked to determine whether the juvenile court erred when it increased the

amount of child support the father was required to pay the mother for their child born out of

wedlock. The father originally filed a petition to modify child support seeking to decrease his child

support obligation based on the fact that he had another child with another woman that currently

resides with him. The juvenile court increased his child support obligation finding that he failed to

visit his child after the mother moved to Knoxville, Tennessee, including certain periods of time

when the mother brought the child to Memphis, Tennessee to visit the father. The father contends

that it was error for the juvenile court to increase his child support obligation because the mother was

in violation of the parental relocation statute, section 36-6-108 of the Tennessee Code, and that the

father was prevented from visiting his child due to the distance and his medical condition. We

affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed

ALAN E.HIGHERS,J., delivered the opinion of the court, in which DAVID R. FARMER,J., and HOLLY

M. KIRBY, J., joined.

Britton J. Allan, Memphis, TN, for Appellant

Gail W. Horner, Germantown, TN, for Appellee
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OPINION

I. FACTS & PROCEDURAL HISTORY

On November 3, 1999, Michael Green (“Green” or “Appellant”) and Latreayl Mitchell

(“Mitchell” or “Appellee” or collectively with Green, the “Parties”) had a child out of wedlock.

Thereafter, Mitchell filed a petition with the juvenile court to establish parentage. The juvenile court

entered an order finding Green to be the father of the child and requiring Green to pay $322 per

month in child support. On October 4, 2000, Green filed a petition for visitation seeking visitation

“every other weekend, holidays and vacation weeks during summer months” of the Parties’ child.

The juvenile court referee initially granted temporary visitation privileges to Green. Subsequently,

the juvenile court referee dismissed Green’s petition stating that Green failed to appear at the hearing

on Green’s motion. In August of 2003, Mitchell moved to Knoxville, Tennessee with the Parties’

child. On October 13, 2003, the juvenile court entered an administrative order for modification of

current support increasing Green’s child support obligation to $574 per month without fees. 

On October 5, 2004, Green filed a petition to modify child support seeking to decrease his

child support obligation based on the fact that he had another child born on July 7, 2004 with another

woman. After a hearing on Green’s petition, the juvenile court referee recommended that the

juvenile court’s previous child support order should be modified to increase Green’s monthly

obligation to $700 due to Green’s lack of visitation with the Parties’ child. The juvenile court

referee also recommended that Green pay $300 for Mitchell’s attorney’s fees. On December 10,

2004, Green filed a request for hearing before the presiding judge of the juvenile court. On April 14,

2005, the juvenile court entered an order increasing Green’s monthly child support from $574 to

$1078.00 monthly beginning May 1, 2004 due to Green’s lack of visitation with the Parties’ child.

II. ISSUE PRESENTED

Appellant has timely filed his notice of appeal and presents the following issue for review:

1. Whether the juvenile court erred when it increased Appellant’s child support obligations

based on his lack of visitation with his child.

For the following reasons, we affirm the decision of the juvenile court.

III. STANDARD OF REVIEW

This Court reviews findings of fact by a trial court sitting without a jury under a de novo

standard with a presumption of correctness for the trial court’s findings. Tenn. R. App. P. 13(d).

This Court reviews a trial court’s conclusions of law under a de novo standard with no presumption

of correctness for those findings. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.

1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App.

1989)).
 Under the child support guidelines, ARP stands for the Alternate Residential Parent, which is “the parent with 1

whom the child resides less than fifty percent (50%) of the time.” Tenn. Comp. Admin. R. & Regs. 1240-2-4-.02(4)

(2005).

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“We review child support decisions for abuse of discretion.” Lindsay v. Lindsay, No.

M2005-00207-COA-R3-CV, 2006 Tenn. App. LEXIS 51, at *7 (Tenn. Ct. App. Jan. 25, 2006)

(citing State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244 (Tenn. Ct. App. 2000)). “However, a trial

court’s discretion is limited because such ‘discretion must be exercised within the strictures of the

Child Support Guidelines.’” Id. (quoting Berryhill v. Rhodes, 21 S.W.3d 188, 193 (Tenn. 2000)).

Under an abuse of discretion standard, we must consider “(1) whether the decision has a

sufficient evidentiary foundation, (2) whether the court correctly identified and properly applied the

appropriate legal principles, and (3) whether the decision is within the range of acceptable

alternatives.” State v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000) (citations omitted).

Further, “[w]hile we will set aside a discretionary decision if it rests on an inadequate evidentiary

foundation or if it is contrary to the governing law, we will not substitute our judgment for that of

the trial court merely because we might have chosen another alternative.” Id.

IV. DISCUSSION

On appeal, Appellant asserts that the juvenile court erred when it increased his monthly child

support obligations. Pursuant to section 36-5-101(g)(1) of the Tennessee Code, upon a petition for

modification of child support obligations, a trial court

shall decree an increase or decrease of support when there is found to

be a significant variance, as defined in the child support guidelines .

. . , between the guidelines and the amount of support currently

ordered, unless the variance has resulted from a previous courtordered deviation from the guidelines and the circumstances that

caused the deviation have not changed.

Tenn. Code Ann. § 36-5-101(g)(1) (2005). The child support guidelines in effect at the time of the

hearing define a significant variance as 

1. At least a fifteen percent (15%) change in the gross income of the

ARP;[ ] and/or 1

2. A change in the number of children for whom the ARP is legally

responsible and actually supporting; and/or 

3. A child supported by this order becoming disabled; and/or 
 Under the child support guidelines, PRP stands for the Primary Residential Parent, which, generally, is “the 2

parent with whom the child resides more than fifty percent (50%) of the time.” Tenn. Comp. Admin. R. & Regs. 1240-2-

4-.02(19)(a) (2005).

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4. The parties voluntarily entering into an agreed order to modify

support in compliance with these Rules, and submitting completed

worksheets with the agreed order; and

5. At least a fifteen percent (15%) change between the amount of the

current support order and the amount of the proposed support order

if the current support is one hundred dollars ($ 100) or greater per

month and at least fifteen dollars ($ 15) if the current support is less

than one hundred dollars ($ 100) per month; or

6. At least a seven and one-half percent (7.5% or 0.075) change

between the amount of the current support order and the amount of

the proposed support orderif the tribunal determines that the adjusted

gross income of the parent seeking modification qualifies that parent

as a low-income provider.

Tenn. Comp. Admin. R. & Regs. 1240-2-4-.05(2)(b)(1)-(6) (2005). Further, 

[u]pon a demonstration of a significant variance, the tribunal shall

increase or decrease the support order as appropriate in accordance

with these Guidelines unless the significant variance only exists due

to a previous decision of the tribunal to deviate from the Guidelines

and the circumstances that caused the deviation have not changed. If

the circumstances that resulted in the deviation have not changed, but

there exist other circumstances, such as an increase or decrease in

income, that would lead to a significant variance between the amount

of the current order, excluding the deviation, and the amount of the

proposed order, then the order may be modified.

Tenn. Comp. Admin. R. & Regs. 1240-2-4-.05(6) (2005). When determining the amount of child

support a parent is responsible for, the child support guidelines

presume that, in Tennessee, when parents live separately, the children

will typically reside primarily with one parent, the PRP,[ ] and stay 2

overnight with the other parent, the ARP, a minimum of every other

weekend from Friday to Sunday, two (2) weeks in the summer, and

two (2) weeks during holidays throughout the year, for a total of

eighty (80) days per year. The Guidelines also recognize that some

families may have different parenting situations and, thus, allow for

an adjustment in the ARP's child support obligation, as appropriate,
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in compliance with the criteria specified below. The calculations

made for each parenting situation are based on specific factual

information regarding the amount of time each parent has with the

child.

Tenn. Comp. Admin. R. & Regs. 1240-2-4-.03(6)(e)(1) (2005). As such, 

[i]f the ARP spends fifty-three (53) or fewer days per calendar year

with a child, an assumption is made that the primary residential parent

(PRP) is making greater expenditures on the child for items such as

food and baby-sitting associated with the increased parenting time by

the PRP, and an increase in the ARP's child support obligation may

be made to account for these expenses, as set forth in this chapter.

(ii) The ARP's child support obligation may be increased for the

reduction in days of the ARP's parenting time based upon the

following schedule:

53 -- 39 days = 10% increase in support

38 -- 24 days = 20% increase in support

23 -- 9 days = 30% increase in support

8 -- 0 days = 35% increase in support

(iii) The presumption that less parenting time by the ARP should

result in an increase to the ARP’s support obligation may be rebutted

by evidence.

Tenn. Comp. Admin. R. & Regs. 1240-2-4-.03(6)(e)(3) (2005). The purpose behind increasing child

support obligations based on lack of visitation is “not [based on] the reasonableness of the lack of

visitation, but instead aimed at the protection of the best interest of the child . . . .” Smith v. Smith,

No. M2000-02186-COA-R3-CV, 2001 Tenn. App. LEXIS 673, at *25 (Tenn. Ct. App.Sept. 11,

2001). An increase in child support obligations based on a lack of visitation “reflects the economic

realities faced by the obligee/custodial parent who, in addition to having a larger share of custody

than contemplated . . . , also assumes a larger share of the financial burden in caring for the

children.” Kurts v. Parrish, No. W2004-00021-COA-R3-CV, 2004 Tenn. App. LEXIS 771, at *12-

13 (Tenn. Ct. App. Nov. 17, 2004) (citations omitted).

In this case, it is undisputed that Appellant filed a petition to modify his child support

obligations seeking a downward modification because of the birth of his second child. When the

juvenile court calculated Appellant’s proposed support, it was much greater than fifteen percent of
 Appellant’s child support obligation at the time he petitioned the juvenile court for modification was $574. 3

The juvenile court found that his proposed support should be $1078, resulting in an increase of $504. 

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his current support. The increase was in large part due to his lack of visitation with the Parties’ 3

child. 

However, the child support guidelines do allow Appellant, as alternate residential parent, to

present evidence to rebut the increase warranted by a lack of visitation. On appeal, Appellant

contends that the juvenile court erred when it did not credit Appellant for his lack of visitation (1)

because he demonstrated that Appellee undermined Appellant’s ability to visit their child when

Appellee moved more than 100 miles away from Appellant with their child without complying with

the parental relocation statute, section 36-6-108 of the Tennessee Code and (2) because he

demonstrated that his medical condition prevents him from driving to see his child. In essence,

Appellant contends that these hindrances should rebut the presumption that his lack of visitation with

the Parties’ child should warrant an increase in his child support.

First, Appellant argues that because Appellee moved from Memphis, Tennessee to Knoxville,

Tennessee without complying with the parental relocation statute, section 36-6-108 of the Tennessee

Code, Appellee has hindered his ability to visit his child. Appellant argues that this hindrance should

have been taken into consideration by the juvenile court when it modified his child support

obligation.

Section 36-6-108 of the Tennessee Code states in pertinent part:

(a) If a parent who is spending intervals of time with a child desires

to relocate outside the state or more than one hundred (100) miles

from the other parent within the state, the relocating parent shall send

a notice to the other parent at the other parent’s last known address by

registered or certified mail. Unless excused by the court for exigent

circumstances, the notice shall be mailed not later than sixty (60) days

prior to the move. The notice shall contain the following:

 (1) Statement of intent to move;

 (2) Location of proposed new residence;

 (3) Reasons for proposed relocation; and

 (4) Statement that the other parent may file a petition in opposition

to the move within thirty (30) days of receipt of the notice.

(b) Unless the parents can agree on a new visitation schedule, the

relocating parent shall file a petition seeking to alter visitation. The
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court shall consider all relevant factors, including those factors

enumerated within subsection (d). The court shall also consider the

availability of alternative arrangements to foster and continue the

child’s relationship with and access to the other parent. The court

shall assess the costs of transporting the child for visitation and

determine whether a deviation from the child support guidelines

should be considered in light of all factors including, but not limited

to, additional costs incurred for transporting the child for visitation.

Tenn. Code Ann. § 36-6-108(a)-(b) (2005).

 In this case, it is undisputed that Appellee moved with the Parties’ child more than one

hundred miles from Appellant. Although Appellee testified that she informed Appellant that she was

moving to Knoxville, nothing in the record demonstrates that she complied with the notice

requirements of the parental relocation statute. Further, Appellee did not attempt to work out a

visitation schedule with Appellant and did not ask the court to set a proper visitation schedule.

Appellant argues that these failures on Appellee’s part constituted an intentional contribution to his

lack of visitation, and, thus, his lack of visitation should not result in an increase of his child support

obligations. 

However, despite Appellee’s intentional contribution to Appellant’s lack of visitation,

Appellant has not demonstrated how Appellee’s compliance with the parental relocation statute,

including implementing a different visitation schedule, would alleviate his lack of visitation with his

child. At the juvenile court hearing, Appellee testified without rebuttal that she and the Parties’ child

returned to Memphis on six occasions on their own accord and that Appellant would exercise some

visitation time with his child but never had the child stay overnight with him. Appellant even

admitted that Appellee brought their child to visit although he could not remember the exact number

of times Appellant did so. According to Appellee’s unrebutted testimony, Appellant has never asked

Appellee if their child could come to Memphis for an overnight visit. Further, Appellant admitted

at the juvenile court hearing that he has made no attempts to establish visitation with his child. As

such, we find that the juvenile court did not abuse its discretion when determining Appellant’s child

support obligation as it had a sufficient evidentiary foundation for determining Appellant’s child

support without giving him credit for his lack of visitation based on Appellee’s violation of the

parental relocation statute and as it properly applied the governing law.

Likewise, Appellant’s medical condition does not provide an exception for the application

of the child support guidelines in this case. At the hearing, Appellant testified that he cannot drive

to Knoxville because he suffers from post traumatic stress disorder. Appellee contends that

Appellant provided no proof other than his own testimony to prove that he was medically unable to

travel to Knoxville to visit the Parties’ child, and, thus, was insufficient to prove his medical

condition. However, as we have previously stated in Tyner v. Tyner, No. 48, 1985 Tenn. App.

LEXIS 3285 (Tenn. Ct. App. Dec. 5, 1985), “a lay witness may testify to [his or] her own physical
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condition if [he or] she sets forth facts . . . .” Id. at *6 (allowing a wife to testify as to her

deteriorating health condition to determine her ability to earn future income). 

Although in this case, Appellant’s testimony can be sufficient proof to establish his medical

condition, Appellant admitted that his medical condition did not prevent him from taking alternate

modes of transportation to visit his daughter. Additionally, as stated earlier, Appellant has admitted

to taking no steps to establish visitation with his child. Further, according to Appellee’s unrebutted

testimony, Appellantsminimallyvisited with the Parties’ child when Appellee would bring the child

to Memphis to visit Appellant and never kept the Parties’ child overnight. As such, we find that the

juvenile court did not abuse its discretion when determining Appellant’s child support obligation as

it had a sufficient evidentiary foundation for determining Appellant’s child support without giving

him credit for his medical condition and as it properly applied the governing law. Accordingly, we

affirm the decision of the juvenile court increasing Appellant’s child support obligations.

V. CONCLUSION

For the foregoing reasons, we affirm the decision of the juvenile court increasing Appellant’s

child support obligations. Costs of this appeal are taxed to Appellant, Michael Green, and his surety,

for which execution may issue if necessary.

___________________________________ 

ALAN E. HIGHERS, JUDGE