### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE OCTOBER 5,2

000 Session STATE OF TENNESSEE, EX REL 

### ., TAMMY L. DAVENPORT v. GERALD LAMONT PARTRIDGE Direct Appeal from the Juvenile Court for Hamilton County

No. 12195 Suzanne Bailey, Judge FILED DECEMBER 27, 2000

No. E1999-02779-COA-R3-CV

This appeal from the Hamilton County Juvenile Court concerns w

hether the Juvenile

Court erred in determining the child support obligation of the

Appellant, Gera

ld Lamont Partr

idge. We vacate

the order of the Juveni

le Court and reman

d for further fin

dings of fact. Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Juvenile Cour

t Vacated; Cause Remanded

H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., and D.M ICHAEL S WINEY , JJ., joined. Arvin H. Reingold, Chattanooga, Tennessee, for the appellant, Gerald L amont Partridge. Paul G. Summers, Stuart F. Wilson-Patton and Kim Beals, Nashville, Tennessee for the appellee, State of Tennessee, ex rel., Tammy L. Davenport.

OPINION

In this appea

l from the Juvenile Co

urt of Hamilton Coun

ty, the Respo

ndent/Appellant, Gerald Lamont Partridge, contests the Juvenile Court’s order which increases his child support obligation to $300.00 per month. On August 10, 1993, Tammy Ly nn Davenport, the custodial parent whose interests are represented by the State of Tennessee as Appellee in this case , gave birth to Thomas Tyler Partridge. On April 21, 1993, after appropriate genetic testing, the Appellant and nonc ustodial parent in this case, Gerald Lamont Partridge, was declared to be the legal father of Thomas Tyler Partridge and was ordered to pay child support in the amount of $60.00 per month. Since that-2-

time, the Juvenile Court has, on occasion, entered orders increasing Mr. Partridge’s child support obligation. The most recent such order, entered on November 12, 1999, sets Mr. Partridge’s child support obligation at $300.00 per month. The order shows that the Juvenile Court calculated this amount, in part, on the basis of Mr. Partridge’s gross pay of $240.00 per week and, in part, on the basis of income imputed to Mr. Partridge as a result of food, lodging and vehicle use prov

ided to Mr. Partrid

ge by his pa

rents. The record shows that Mr. Partridge is employed on a full time basis at his father’s hotel/restaurant business for which he receives gross wages in the amount of $240.00 per we ek. Mr. Partridge’s father testified at trial that he suffers from congestive hear t failure and, therefore, requires Mr. Partridge’s assistance in operating the business, although there is also testimony from Mr. Partridge which reveals that Mr.Partridge has six siblings who have sufficient knowledge to perform the same job. Although Mr. Partridge holds an Associates Degree, he ceased a ttempts to secure employment in his field of study once he beg an working for his father. Mr. Partridge resides with his parents and they also furnish him with meals and the use of a vehicle. Mr. Partridge pays his parents $25.00 per wee k for the food and lodging which he receives from th

em. The following iss

ues ,which we re

state, are pres

ented for appea

l: I. Whether the Juvenile Court erred in it's calculation of Mr. Partridge’s child support obligation by basing such calculation, in part, on income imputed to Mr. Partridge as a result of food, lodging a

nd vehicle use pr

ovided by his

parents. II. Whether the Juvenile Court erred in it’s calculation of Mr. Partridge’ s child support obligation by

failing to deter

mine whether Mr. P

artridge is willf

ully and volun

tarily underemployed. III. Whether the Juvenile Court erred in taking judicial notice of the monthly cost of food, lodging, and ve

hicle use provide

d to Mr. Partridge

by his paren

ts.

As mandated by Rule 13(d) of the Tennessee Rules of Appellate Procedure , the standard of review in this non-jury case is de novo upon the Trial Court record with a presumption of correctness as to findi ngs of fact by the Trial Cour t. There is n o such presu mption as t o findings of law. Campbell v. Florida Steel Corporation, 919 S.W.2d 26, (Tenn. 1996). T.C.A.36-5-101(

e)(1) provides a

s follows with respe

ct to the setting o

f child support:-3-

(1) In making its determination concerning the amount of support of any minor child or children

, the court shall a

pply as a re

buttable presumpt

ion the child support guidelines as provided in this subsection. The Guidelines, referenced at T.C.A.36-5-101(e)(1), are promulga ted by the Department of Human Services in chapter 1240-2-4 of the Official Compilation of the Rules and Regulations of the State of Tennessee. Under the Guidelines, child support is calculated on the basis of the noncustodial parent’s net income as derived, in turn, from a determination of such parent’s gross income. The Guidelines further state that in kind remuneration must be imputed as gross income. See Tenn. Comp. R. & Reg.s, ch.1240-2-4-.03(3)(a). The first issue pr

esented in this app

eal is whether the

re is sufficient e

vidence in this ca

se to support the conclusion that the benefits of food, lodging and vehicle use received by Mr. Partridge from his parents constitute in kind remuneration imputable as income under the Guidelines. We do not believe that there is sufficient evidence to support this conclusion.

The mere fact th

at Mr. Partridge

receives bene

fits from his family

while working fo

r his family is not, in itself, enough to qualify those benefits as in kind remune ration. Absent evidence that the benefits received amount to payment for services rende red, such benefits cannot be imputed to Mr. Partridge’s income under the Guidelines. See State of Tennessee ex rel. Rion v. Rion , 1997 WL 796212 (Tenn. Ct. App. 1997). We find no reason to believe that Mr. Partridge would not receive meals, lodging and vehicle use from his parents even were he not employed by his family. Should it be shown that Mr. Partridge did not receive these benefits prior to employment by his family this would lend support to a finding that he would not receive such benefits but for his employment. There is, however, no evid

ence in the reco

rd as to when Mr. Pa

rtridge’s fami

ly began p

roviding him with these benefits. From our review of this case, we believe that the Juvenile Court’s conclusion that the benefits received by Mr. Partridge constitute in kind remuneration der ives from the perception that the $240.00 per week which Mr. Partridge makes working for his family is less than he would receive were he working elsewhere and that the food, lodging and vehicle use are, therefore, intended to supplement his salary and, thereby , deter him from seeking more lucrative employment. However, there is no proof offered that the salar y which Mr. Partridge receives from his father is below the average rate of pay received by persons similarly employ ed at comparable businesses.1 The record does n ot discl ose the s pecifi c degree re

ceived. -4- As to the proposition that Mr. Partridge would be making more money if he were employed in a job which utilizes his Associates Degree 1 , we find no evidence, other than speculation by the State, as to what Mr. Partridge's earning potential would be were he employed within his field of study. In fact, other than the State's asser tion that "although it is not clear from the record, it seems that his training is in computers", we find no evidence as to exactly w hat particular job, o

r jobs, Mr. Partrid

ge's Associa

tes Degree qua

lifies him for. And

, although it is also asserted that Mr. Partridge has had two job interviews, there is no evidence that Mr. Partridge has had any job offers, nor is there any other evidence presented regarding the marketability of Mr. Partridge's Associates Deg ree. Absent findings of fact, with respect to Mr. Partridge's earning potential and the marketability of his Associates Degree, and adequate underlying evidence to warrant such findings, we do not believe that Juvenile Court's conclusion that the benefits provided to Mr. Partridge constitute in kind remuneration is sufficiently supported. The marketability

of Mr. Partridge

's Associates De

gree and his ea

rning potential a

re also directly re

lated to the secon

d issue in this appea

l which is whether

the Juvenile Court er

red in failing to consider the matter of willful and voluntary underemploy ment when setting Mr. Partridge's child support obligation. In our view, adherence to the Child Support Guidelines does necessitate a determination by the Juvenile

Court as to whether

or not Mr. Partridg

e is willfully

and voluntarily underemploy

ed. As set forth a

t Tenn. Comp. R. & Re

gs., ch. 1240-2-

4-.03(d) : (d) If an obligor is willfully and voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, as evidenced by educational level and/or previous work experience

. We believe that a determination of underemployment in this case requires findings of f act with respect to the marketability of Mr. Partridge's deg ree and his earning potential and, for the reasons hitherto

stated, we find the

record to be def

icient in such find

ings. Under T.C.A. 36-5-101(e)(1), the presumption that the Child Support Guidelines are applicable in determining the amount of the child support obligation may be rebutted if the c ourt finds sufficient evidence to do so and if the court makes a written finding that applying the Guidelines would be unjust or inappropriate. See Hoffman v. Hoffman , 1998 WL 205707 (Tenn. Ct. App.). In the case before us, it appears that the Juvenile Court failed to apply the Guidelines and also failed to make a written finding as to why the Guidelines should not be applied.-5-

The final issue pr

esented in this app

eal concerns wh

ether the Juvenile

Court erred in taking judicial notice of the monthly cost of the food, lodging and vehicle use pr ovided to Mr. Partridge. Alth

ough we believe

that it is, perhaps,

preferable tha

t proof be requir

ed as to the cost of these items, we find it unnecessary to address this issue by reason of the fact that the order of the Juvenile Court is to be vacated on other grounds heretofore stated. For the foregoing reasons, we vacate the Juvenile Court's order of N ovember 12, 1999 and remand this case for further findings of fact consistent with this opinion. Costs are adjudged one-half against Mr. Partridge and one-half against the State of Tenne ssee.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE