### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
JESSE ROBERTSON MILTIER, III v. REBECCA H. MILTIER (BUHLS)
Direct Appeal from the Chan cery Court for Carter Co unty No. 20525 Hon.

Jean A. Stanley, Cha

ncellor

No. E1999-00887-COA-R3-CV - Decided May 31, 2000

This is an appeal by Father of the Trial Court’s denial of his Petition to reduce child support and the Trial Court’s Order requiring him to turnover to Mother various photographs taken by him of her current residence and enjoining him from displaying the photogr aphs or taking any other photographs of Mother’s home. For the reasons herein stated, we affirm the Judgment of the Trial Courtinsofar as it denies the Petition to reduce child support but reverse the Judgment of the Trial Court as to the photographs and vacate the injunction. Tenn.R.App.P. 3; Judgment of the Chancery Court Affirmed in Part,Reverse d in Part and Remanded. Swiney, J., delivered the opinion of the court, in which G ODDARD , J., and S USANO , J., joined. Jesse Robertson Miltier, III, Pro Se. Robert J. Jessee, Johnson City, for the Appellee, Rebecca H. Miltier (Buhls).

OPINION Background
Jessee Robertson Miltier, III (“Father”) and Rebecca H. Miltier (Buhls) (“Mother”) were married on March 30, 1 985, and have t hree children, a ges 15, 13 and 12. Th

ey divorced in 1993. Father works as a registered nurse at the Veteran’s Administration Medical Center in Johnson City, Tennessee. His a

nnual incom e is $45,020, for a monthly gross income of $3,752.50. He alleges expenses of appr

oximately $2,207 pe

r month exclusive of chil

d support. His monthly

child

### -2-

support is $1,062.97 as ordered by the Trial Court on December 8, 1997, after a hearing on Father’s prior Petition for a downward departure from the Child Support Guidelines, which the Trial Court denied at that time.

Mother remarried in 1996 and

moved from Tenne

ssee to Bristol, Vir

ginia, with

these parties’ three children a

nd her new husban

d. Father alleges

that Mother’s m ove to Virginia has caused him to incur additional e xpense in traveling from Johnson City to Bristol, Virginia, to pick up and return his c hildren for visitation and for long distance telephone calls to the children. He complains of

excessive debt from legal fees, court costs and missed da

ys from work durin

g the past three years owing to

his efforts to resolve “repeated complaints of denied scheduled court ordered visitation.” He also says that, in December 199 8, Mother was considering changing employment to become the school nurse at Virginia Middle School and “requested [Father] to obtain family Blue Cross/Blue Shield Medical coverage on their three (3) children.” Father obtaine d t he coverage at a cost of $34.50 bi-weekly. The record indicates that Mother works as a registered nurse at Johnson City Medical Center

, a job she has held

for over thirtee

n years. On July 28, 1999, Fathe

r filed this Petition t

o Modify Child Support,

requesting that his child support be decreased. He attached an Affida vit a lleging “numerous

” outstanding debts “total approximately $12

0,000.” He alleg

ed personal expe

nses of approxima

tely $2,207 monthly and apparently an a

dditional $500 per m

onth which he spen

ds on the children,

in addition to

his child support payments. Mother filed her response on August 26, 1999. In that response, however, she also alleged, as c

ounter movant: 1. That the counter respondent, without the permission of the counter movant, photographed her home where she currently lives with the parties’ children and her

husband. The counter respondent then had these pictures blown up and placed on display at Wal-Mart and other areas where Dads Against Discrimination were having rallies showing in his opinion where his child support was going.
2. Counter movant avers that this action by the counter respondent is an invasion of her privacy, a trespass, and not in the best interest of the children who a

re required to a

ttend the rallies w

ith him.
3. Counter movant

requests that

a restraining order issue restraining the counter

respondent from further displayof the counter movant’s homeand that he be immediately ordered to return the photographs and negatives to her.

The Trial Court

held a hearing onFather’s Petition on September 27, 1999, at which Father appeared pro se and Mother was represented by counsel. The Trial Court found that Father has had an increase

in income to the amo

unt of $3,752.50 pe

r month since th e last hearing on

### -3-

November

13, 1997. The Court further found that Father “has failed to show a material change of circumstances to justify a reduc tion in child

support.” Accordingly, the Trial Court denied Father’s Petition for reduction in child support. The Trial Court also ordered Fath

er to “immediatel

y return to the Rebecca Buhls any and all photographs of her home alon g with the negatives and shall be restrained in the fut ure from displaying the photos or taking any other photos of Rebecca Buhls’s home.” Father ap

peals. Discussion
As stated, Father filed this appeal pro se. We have rev iewed his“Statement of the Issues,” which w

e can fairly con

dense as follows:
1. The manner in which the Trial Ju dge conducted the

hearing was so biased and prejudicial that no meaningful review of the issues before the C ourt w as obtained, therefore the Trial Judge has committed judicial misconduc

t. 2. The Trial Court erred in denying Petition er’s Motion for Modification to reduce his child support obligation.
3. The Trial Court erred in ordering Petitioner to “return” to Respondent photographs and negatives whi ch were never h

ers, and in enjoin

in g Petitioner from taking any more photographs of Respondent’s home.
Mother has raise

d the issue that Fath

er’s appeal is f

rivolous.
We review the record of t he Trial C ourt de novo with the presumption that the decision of the Trial Court with respect to the facts is c orrect unless the evidence preponderates against such factual det

erminations. T.R.A .P. 13(d); Brooks v. Brooks , 992 S.W. 2d 403,404 (Tenn. 1999). At oral argument before this Court, Father announced that he has filed a complaint withthe Court of the Judiciary concerning the Trial Court’s manner of conducting the hearing of this Petition. Since that is the appropriate venue for any such cla

ims, we decline to a

ddress Father’s f

irst issue here. However, from our review of the record, such as it is, we find that the Trial Court did give Father an opportunity to present proof as to whythe Trial Court shou ld deviate downward from the child support guidlines. We also agree wit h the Trial Judge’s alleged statement to Father that he would be well-served by obtaining counsel to assist him in litigating these matters should the issue of child support arise again in the future.

Father next raises the issue that the Trial Courterred in declini ng to reduce his c

hild support obligation. T.C.A. § 36-5-101(e)(1 ) provides:

In making its determination concerning the amount of support of any minor chi ld or children of the parties, the court shall apply as a

### -4- rebuttable presumption the child support guidel ines as provided in this subsection. If the court finds that evidence is sufficient to rebut this presumption, the court shall make a written finding that the application of the child support guidelines would be unjust or inappropriate

in tha t part icular case, in o rder to provide f

or the best interest of the child(ren) or theequity between the parties. Findings that the application of

the guidelines would be unjust or inappropr iate shallstate the amount of support that would have been ordered under the child support guidelines and a justification for the variance from the guidelines.
The Child Support Guidelines, set out in the Rule s of Tennessee Department of Human Services, T

enn. Comp. R. & Regs. Ch. 1240-2-4, presc ribe, as pertine

nt: (5) After

determining the net income of the obligor, that amount is to be rounded up to the next dollar. That amount is then multiplied by the percentage below that corresponds to the

number of childre

n for whom support i

s being set in the instant case. The percentages are: No. of children 1 2 3 4 5 or more % of income 21% 32% 41% 46% 50% Tenn. Comp. R. & Regs. Ch. 1240-2-4-.03(5).

That Regulation also provides Criteria for Deviation From Guidelines, which permit s a downward deviation “if the obligor demonstrates that he/she is consistently providing more care and supervision for the children than contemplated in the rule.” The Regulation also provides for a deviation “[i]n cases where physical custody of the child(ren) is more equally divided between the parties than occurs in a situation where one party has an average amount of overnight visitation as definedin 1240-2-4.02(6).” Other reasons for downward departure are set forth in 1240-2-4-.04(3), (4), (5): (3) . . . When the net income of the obligor ex ceed s $10,000 per

month, the court may consider a d ownwar d deviation from the guidelines . . . . (4) In instances of extreme economic hardship, such as in cases involving extraordinary medical needs not covered by insurance or other extraordinary special needs for the child(ren) of the ob ligor ’s current family, [child(ren ) liv ing in the home with the obligor for whomthe obligor is lega ll y re sponsible] deviation from the guidelines may be considered in order to achieve equity between the parties when the

court so finds.

### -5- (5) In deviating from the guidelines, primary consideration must be given to the best interes t of th e c hild(ren) for whose support the guidelines are being utilized. In interpreting the Regulations, our Supreme Court has stated: While § 36-5-101( e )(1) does authorize deviation in order to ensure equitybetween the parties, and while downward deviation is clearly notprohibited, the tr

ial court’s autho

rity to do so must be considered in light of the provisions dea

ling with such devia

tion – Rule

1240-2- 4-.04(2) and (4). Although n ot exclusive, those

subsections provide for downward deviationin three instances: (1) where DHS has taken custody of

the child(ren) p

ursuant to a negle

ct, dependency,

or abuse action; (2) where the c hild(ren) spend more visitation time with the obligor than is assumed by the guidelines: and(3) in cases in which the obligor

is subjected to an “extreme economic hardship,” such as w here other children living with the obligor have extraordi nary needs

. Therefore, the guidelines expre ssly provide for downward deviation where the obligee has utt

erly ceased to care for the child(ren); where the obligee clearly has a lower level of child care expense than that assumed in the guidelines; and where the obligor is saddled with an “extreme economic hardship.” Although the rule does not

purport to set forth an exhaustive list

of instances in which downward deviation is allowed, these sp

ecific instance

s neverth e less are a powerful indication as to the ty

pes of situations in which it is contemplated under the guidelin

es. Jones v. Jones, 930 S.W.2d 541, 545 (Tenn. 1996). TheSupreme Court in Jones held that the Trial Court had failed to articulate sufficient grounds to rebut the presumption that the Guidelines were applicable. The Court found tha t the obli gor wa s not under economic hardship, her income had increased, she had no other dependents, and her visitation schedule was less than contemplated by the Guidelines because her work schedule had increased. Accordingly, the Supreme Court reversed the Trial Court’s d

ownward depart

ure from the Guide

lines. The evidence in the record before us does not preponderate against the Trial Court’s finding that Father failed to prove that he meets any of the above-quoted criteria j ustifying a downward

departure from the Child Support Guidelines. The record reflects that Father’s income has increased, and he has, to our knowledge, no other dependents. Finally, the evidence in the record does not preponderat

e against the Tria

l C ourt’s finding that Father failed to prove “

extreme economic hardship” as that phrase is defined by the Regulation and case law. Therefore, we hold the Trial Court did not err in declining to grant Father’s Petition to reduce his child s up port payments. Finally, Fat hercomplains that the Trial Court erred in requiring him to “return”1 There has been no allegationthat Father has committed a criminal intrusion

as defined in T.C.A. § 39-17-315, Stalking. 

### -6- photographs of Mother’s new home to her and to stop taking and displaying such photographs in the future. We agree with Father. The Trial Court provided no legal basis for that part of its Order, and we find none. There is no dispute that Father took the photographs, made one or more posters from the photographs, and perhaps displayed a poster or posters in a public pl ace, all of wh ich is constitutionally

protected under the First Amendment to the U. S. Constitution. 1 Except in limited situations, none of which are applicable here, “[A]bove all else, the First Amendment means that government

has no power to restric

t expression beca

use of its message

, its ideas, its subject matter, or its content.” H & L Messengers, Inc. v. City of Brentwood , 577 S.W. 2d 444,451 (Tenn. 1979), Quoting Police Department of Chicago v. Mosley , 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed. 2d 212, 216 (1972). From the record before us, and statements made by Father at oral argument

, it is clear Father b

elieves that he, a

s h is childr en’s father, has been unfairly treated by the legal system. Father has the right to hold that opinion and the right to express that opinion. Mother makes no contrary argume

nt on appeal. We r

everse the Trial Court’s judgment only insofar as it requires Father to turn over his per

sonal property, th

e posters and phot

ographs, to Mother, and we vacate the Trial Court’s injunction forbidding him to take and publicly display such photographs in the future.

Mother raises the issue that Father’s appeal is frivolous. Since we have granted relief to Father on one of

the issues he has r

aised, we find the

appeal is not friv

olous. Conclusion The judgment of theTrial Court is affirmed in part, reversed in part, and this ca

use remanded to the Trial Court for such further proceedings, if any, as ma y be required, consistent

with this Opinion, and for collection of the costs below. The costs on ap pea l are assessed against the part ies equ all y.