# FILED
March 31, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) LOIS DIANNE WINBUSH , ) Chester County Chancery Court ) No. 7797 Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 02A01-9809-CH-00248 ) THOMAS DALE WINBUSH , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Chancery Court of Chester County a t Henderson. Honorable Joe C. Morris, Chancellor
Angela R. Scott , BISHOP, SCOTT & BISHOP, Henderson, Tennessee Attorney fo

r Plaintiff/Appell

ant.
David Hardee , HARDEE, MARTIN, JAYNES & IVY, P.A., Jackson, Tennessee Attorney for Defendant/Appellee.

OPINION FIL

ED: AFFIRMED IN P

ART, REVERSED IN PA RT AND REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)Lois Dianne Winbush (Wife) andThomas Dale Winbush (Husband) were divorced

in 1990. The parties entered into a marital dissolution agreement (MDA) which was incorporated into the final decree. As pertinent to this appeal, the

parties agree

d that Husband woul

d pay child support in the amount o f $200 per month for the parties’ one minor child. The MDA further provided that
[t]h e a mount to be paid by the Husband to the Wife for the support

andmainten ance of the minor child of the parties is based upon the Wife’s employment at Grinnell an d the Husband’s present employ ment a s a Supervisor with the Markham Company. Also, there is taken into consideration that the Wife is to be the own er of the former home

of the parties and

entitled to possession thereof, and the Husband’s present physical condition.

Wife was awarded the marital home but, in the event she remarried, decided

to reside elsewhereor sold the property, she agreed to pay Husband the sum of $10,000, repres ent ing his equity in the property as of the

date of the execution of the agreement. Subsequent to executing the MDA, Wife executed a deed of trust to secure Husband for this indebtedness.

In April 1998 Wife filed a petition for contempt and modification of the final decree of divorce. Prior to filing the petition, Wife had attempted to refinance the loan on the residence but
was unable to do so bec

ause of the deed of tru

st held by Hus

band. According

to Wif e’s tes tim ony, Husbandrefused to rele

ase or subordina

te the deed of tru

st. Husband testified that he was not aware of the deed of trust until it was presented at trial. Wife identified the deed of trust at trial, but it was not made an exhibit.

The pet iti on sought to have H usband held in cont

empt for failure

to make timely

child support payments and asked the trial court to modify the decree by

increasing ch

ildsupport pay

ments to conform with the child support guidelines. Wife further requested

that the court issue an order di recting Husband to immediately remove his lien on the former marital home. The t rial cour t denied the relief sought therein, and this appeal resulted.

The issues as pre

sented by Wif

e on appeal are

as follows:I. The trial court erred in failing to adjust the c hild support obligation of appellee. II. The t rial c ourt erred in fa iling to order ap

pellee to release the deed of trust filed against proper ty awarded to appellant in original divorce action.
Addressing the second issue f irst, it appears to this court that, if Wife has a cause of action for removal of th

e deed of trust, it

would be the subject of an action separate and apart from the present action, such as a bill to rescind or to quiet title. As stated, Wife executed the deed of trust subsequent

to the divorce, and she was not required to d o so by the MDA or the divorce decree. Inasmuch as the final divorcedecree neither imposed a lien on the former marital home nor required Wife to execute a deed

of trust, we do not v

iew the relief sou ght by Wife on this issue to be the proper subject of a modification or enforcement action.

The burden of proof i

s upon the party

seeking a modifi

cation of child sup

port to show such change as warrants a modification of the prior decree. S ea l v. Seal , 802 S.W.2d 617, 620 ( Tenn. App. 1990); Azbill v. Azbill , 661 S.W.2d 682 (Tenn. App. 1983). The only evidenc e presented by Wife was elicited through cross-examination of Husband and es

tablished that his

wage is $12.50 per hour. The record does not contain the number of hours he works.

Husband also testified that he has a second job cutting grass which nets about $350. It was not established whether this was a wee kly, mon thl y, or yearly amount. Husband testified that he is making less now than he was at the time of the divorce. However, Husband’s attorn ey stated in

his opening state

ment that, at the time of the divorce, Husband was making $725 per week and is now making under $600. He didnot specify

whether these f

igures were ne

t or gross. An adm

issi on made b y an attorney concerning factual statements is binding on the client. Garland v. Seaboard Coastline RR Co. , 658 S.W.2d 528, 531 (Tenn . 1983); Pewitt v. Pewitt , 240 S.W.2d 521, 527 (T enn. 1951); Pankow v. Mitchell , 737 S.W.2d 293, 296 (Tenn. App. 1987).

A divorce decre

e is res judicata . On application of a party, however, the court may decreean increase or decrease of support only upon a showing of

a substant ial and mat erial change
o f c ircumstances. I

n cases involving

child support, the c

ourt shall decre

e an increase o

r decrease when there isfound to be a significant variance, as defined by the c hild support guidelines, betweenthe guidelines and the amount of support currently ordered, unless the variance has resulted from a previously

court-ordered

deviation from th

e guidelin

es and the circumstances which caused the deviation have not chang ed. T.C.A. § 36-5- 101(a)(1) (Su pp. 1998). A “significant v ariance” is fifteen percent (15%). See Tenn. Comp. R. & Regs. 1240-2-4-.02(3) (as revised in Dec. 1994).

Husband relies up

on T.C.A. § 36-5-10 1(h), which state s:
Nothing in this section shall be constr

u ed to prevent the affirmation, ratification and incorporation i n a decree of an agreement betweenthe parties as to support and maintenance of a party or as to child support. In an

y such agr

eement, the part

ies must affirmatively acknowledge that no action by the parties will be effective to reduce child support after the due date of each payment, and that they understandthat court approval must be obtained before child support can be reduced, u nle ss such payments are automatically re duced or terminated under

the terms of the ag

reement.
T.C.A. § 36-5-101(h) (Supp. 1998) (emphasis added).

This court addr essed this issue in Dwight v. Dwight, 936 S.W.2d 945 (Tenn. App. 1996). There the cou rt noted that neither the parties’ marital dissolution agreement nor the final decreeused the language contained in the above section of the statute. In the case before us, neither the MDA nor the final d

ecree used the

language co

ntained in the statu

te. This court in Dwight

held that

the agreement doe s not effectively

deviate from the Guidelines under T.C.A. § 36-5-101(h). Therefore, deviation requires the trial court make a written finding that the Guidelines would create an unjust or inappropriate

result. T.C.A. § 36-5-101(e)(1). No such finding was made at the time th

e fi nal decr ee of div orce was ent ered . Fi nal ly, there is a rebuttable presumption in this state t hat the amount of suppor testablished by

the Guidelines is pr

oper; there is n o requirement

that the obligee spouse prove that the children’s needs are equal to the amount

provided for in

the Guidelines. T.C.A. § 36- 5-101(e)(1).

Id
. at 948. Again like Dwight , the final decre e of divorce ente

red in this case made no s

uch findings, andit is apparent that Husband’s income at that time, regardless of whether the $725 per week was net or gross, would constitute a deviation from the guidelines. Furthermore, assuming that hi spresent

income of $600 is ne

t, there still would b

e a significant

variance betwe

en th e amount providedin the guidelines and the $200 per month child support ordered to be paid at the time of the divorce.

We reverse the ord er of the trial co

urt denying

Wif e’s petition to increa

se child support and remand this case t o th e trial court to conduct an expedited hearing and modify the parties’ final decree to comply with the guidelines, or

to make a written explanation for its deviation. The trial court’s judg

ment is otherwise

affirmed. Costs of this appeal are taxed to Mr. Winbush, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LILL ARD, J. (Concurs)