### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 10, 2002 Se ssion STATE OF TENNESSEE EX REL. MARY E. CLARK

v. VERNON A. WILSON Appeal from the Circuit Court for Davidson County No. 95D-2682 Carol L. Soloman, Judge

No. M2001-01626-COA-R3-CV - Filed December 23, 2002

The Sta te of Tennessee, ex rel. Mary E. Clark appeals the final order of the trial court a wardin g retroactive child support from the date DNA test results established the appellee as the f ather of the child in question, instead of from the date of the parties’ separation by

divorce decree entered

almost six years e arlier. We find that the trial court incorrectly ordered retroactive child support from a da te other than the date of the parties’ separa ti on and fa

iled to mak

e the re quired w

ritten fi ndings to support a deviation from the guideline amount in its award of retroa ctive child support. Therefore, we vacate the trial court’s decision and remand f or further proc eeding s consiste nt with this opinion. Tenn R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Vacated and Remanded P AT RICIA J. C OTT RELL , J., del ivered the o pinion of the court, in which W IL LI AM B. C AIN , J., and J OHN A. T URNBU LL , SP. J., joined. Paul G. Summers, Attorney Gene ral and Repor

ter; Stuar t F. Wilson- Patton, Sen

ior Counse

l; Pamela Finch, for the appellant, Mary E. Clark. Mark Walker, Goodlettsville, Tennessee, for the appellee, V ernon A. Wilson. OPINION I. F acts Mary E. Clark and Vernon A. Wilson were married on April 1, 1993, when Ms. Clark was eight months pregnant. On May 16, 1993, slightly over one month into the marriage, the child was born. Before their marriag e the parties had dated for approximately ten months to one year. However, Ms. Clark a

dmitted to h aving h ad inter course with anothe

r man dur

in g th e period of conception. Ms. Clark testified she told Mr. Wilson he could be the father of her child. Mr. Wilson was listed as the child’s father on her birth certificate. Ms. Clark also testified she always told Mr.1 Mr. Wi l son’s brief states t hat the amount of chil d support in the Order was for $229.00 p er month, but acco rding to the re cord the am ount M r. W ilson wa s ord ered to pay was $290.00 per month. The order explai ned that Mr. W ilson would pay $66.92 plus the $3.35 fee per week for a total of $70.27 per week.

2 The trial cou rt ord ered M r. W ilson to pay $ 870 .00 a s bac k child supp ort from the da te of the DN A test results. Accordi ng t o the Stat ement of the Ev idenc e, the am ount o f child sup por t that wou ld hav e acc rued from th e date of the divor ce unt

il the date suppor t was fi rst set , bas ed upon Mr. Wilson’ s i ncome dur ing tha t t ime, was $16, 787.00.

-2- Wilson he was the ch ild’s father , but also t estified that he a lway s denied h

e was the father . Ms. Clark and Mr. Wilson were divorced by decree entered on November 7, 1995. No child support was set in the divorce decree or subsequent to the divorce bec ause Ms. Clark stated in documents to the court that there were no children born of the mar riage. Mr. Wilson did not challen ge or c orrect Ms. Clark’s representations to the court that there were no children of the marriage. Four and a h alf yea

rs after the divorce, a Petition to Modify the divorce decree was filed, alleging that Mr. Wilson was the father of the child, and, thu s, was responsible for child support retroactive to the final divorce decree. Mr. Wilson disputed paternity of

the child and filed a Motion for DNA testing to Determine Parentage . An Agreed Order for DNA Test ing to Determine Paren tage was entered. DNA test results received on September 18, 2000, confirmed Mr. Wilson as the father of Ms. Clark’s child. An Agreed Order of Support wa s entered on January 10, 2001, ordering Mr. Wilson to pay child support in the amount of $290.00 1 per month in accor dance w ith the Tennessee Child Support Guidelines commencing December 22, 2000. The Ag reed Order reserved the matter of retroactive c hild su pport to a hearing set for Febr uary 8, 2001. B y order ent ered on June 19, 2001, the Trial Judge awarded retroactive child support from the da t e of th e results of the DNA t est, Septem ber 18, 2000. 2 The tria l court fo und that Ms . Clark wa s not a credibl e witness, and that it would be inequitable to require Mr. Wilson t o pay support befor e the time h e had re ason to be lieve the child washis. The Sta

te of Ten nessee, ex rel. Ma

ry E. Cla r k appealed.
II . Child Support It i s well settled under Tennessee law that every parent is obligated to support his or her children during their minority. Te nn. Code Ann. § 34-1-102 ; State ex rel. Vaughn v. Kaatrude , 21 S.W.3d 244, 247 (Tenn. Ct

. App. 2000). This obligation to provide support exists without a court order. The obligations of parents to support, care for, a nd nurture their chi ldren are joint, and the extent of their duty to support depends on their ability to provide that support. State ex rel. Grant v. Progra is , 979 S.W.2d 594, 600-01 (Tenn. Ct. App. 1997). The parent’ s obliga

tion to support, as well a s the child ’s conco mitant rig ht to suppor

t, exist whether the parents are married, divorced, or have never been married. When married parents divorce, the court is authorized to provide for support of the minor children. Tenn. Code Ann. §§ 36-5 -1 01(a)(1) and (a)(2)(A). When paternity of a child born out of wedlock is established, the father is required to provide support, as set by the court, for the child’s benefit. Tenn. Code Ann.-3-

§ 36-2-311 ; Berryhill v. Rhodes , 21 S.W.3d 18 8, 190 (Te nn. 2000) . The leg al duty

of suppor t exists in all cases. Id . 21 S .W.3 d at 19 1 (cit ing Smith v. P uett , 506 F. Supp. 134, 142 (M.D. Tenn. 1980)). The trial court based its determination on its finding that the father “had r eason to believe he was not the father” and, therefore, r equirin g support for the time before his paternity was conclusi vely

establish ed would b e inequit

able. This reasoning is in error for two reasons: (1) a biological father’s belief as to the paternity of the child, e ven the bi olo gical father’s lack of knowl edge of the existence of the child, cannot act to automatically deprive a child of support; and (2) the parties were

married when the child was born, making Mr. Wilson the child’s presumptive father unless or until that pre sump tion was rebutted. We note the presumption herein was not rebuttedbut, instead, was confirmed by scientifi c testing . Thus, Mr. Wilson has always been the child’s le gal as w ell as biol ogical father and has h ad a con

tinuing o bligatio n to provid

e support

. II I. Support for Children Born Out of Wedlock The fact situation where a putative father is unsure of the paternity or una

ware of existence of a child mo

re commo nly

arises w hen the pa

rents have never been married to ea ch other. In that situation, the law does not presume fatherho od. H owever, statutory procedures exist for acknowledgingand establishing paternity . Tenn. Code Ann. § 36-2-305. As our Supreme Court has explained: Our paternity a

nd child support

statutes and the Child Support Guidelines evince a policy t hat ch ildren should be supported by their f athers. The paternity

statutes provide a process by

which the putative father

can be identified. Once identified, the father is required to furnish support and education for the c hil d. The pa ternity statutes incorporate both the child support provisions pertaining to divorce decr ees as well a s the Child Su

pport Guid

elines. Berryhill , 21 S.W.3d at 190-91 (citations omitted). Once paternity is establishe d, the cou rts are to set prospective child support as well as retroactive support. Tenn. Code Ann. § 36- 2-311(a

)(11); Berryhill , 21 S.W.3d at 192; Kaatrude , 21 S.W.3d at 248. In that situation, a father’s re sponsibility for support for a child of h

is born out of wedlock arises at the date of the child’s birth. State ex rel. Coleman v. Clay , 805 S.W.2d 752, 755 (Tenn. 1991).
In Coleman , the Supreme Court interpreted the then-existing paternity statutes to authori ze a retroa ctive aw ard for

support in

conjunct ion with an order of paternity

but also to give the courts broad discretion to determine the amount of such a retroa ctive award. The court further stated: Whatthe juvenile judge lacks is discretion to limit the father’ s li ability for child support in an arbitrary

fashion that

is not consistent with the provisions in [the paternity statutes]. For examp le, nothin g in those sections can be in

te rpreted t o-4-

restrict the father’s lia

bil ity t o th e date when he kn ows for c ertain th at the ch ild in question is his. Such a limitation not only amounts to judicial legislation, but also encourages the putative father to avoid legitimately instituted court proceedings and to delay testing . . . in the hope of minimizing the ultimate support award. Coleman , 805 S.W.2d at 755.
In Coleman , paternity proc eedings were not instituted until the child was fourteen years old. Alth ough the father initially denie d paternity, he oc casion ally visited the

child. B lood tests confirmed that the defendant was the child’s father. The trial court entered a paternity

decree and set prospec tiv e support. The court also awarded retroa ctive support only back to the da te when blood test results were available which established the defe ndant was actually the

child’s father. Id

. 805 S.W.2d at 754. The Supreme Court found that “upon determination of paternity , the father of a child born out of wedlock is statutorily liable for support from and after the child’s birth.” Id . 805 S.W.2d at 755. The court explicitly rejecte d the trial court’s implicit holding that the father’s liability is retroactive only to the date on which he knows for certain that he is the child’s fa ther. Coleman was decided in 1991, and the General Assembly made subsequent

changes in the statutory procedures regarding

the establishment of paternity othe r than by adoption. See Tenn. C ode Ann. §§ 36-2-301 to -322. However, these chang es did not affect the substance o f the provisions relied upon in Coleman . Tenn. Co de Ann. § 3 6-2-311; Berryhill , 21 S.W.3d at 190-92. Thus, the obligation to support a child exists from the child’s birth, and u pon entry of a n order establishing paternity , the father is liable for support back to that

date. Coleman , 805 S.W.2d at 754-55. A father’s beliefs concerning his responsibility for a

child are irrelevant in cases of this sort. It is neither uncommon nor unexpected for a f ather to be disinc lined to support a child he believe s is not his. However, once paternity is established, the obligation to provide support exists notwithstanding the father ’s belief that the child is not his or the fact that, either by choice or circumstance, he has not bee n a part of the child’s life. Kaatrude , 21 S.W.3d at 248.

IV. Supp ort fo r Chi ldren Born Du ring Ma rriage Under Tennessee law, a man is presumed to be the fathe r of a child, when, as in this ca se, “the man andthe child’s mother are married or have bee n married to each other and the child is born during the marr

iage or within thr

ee hundr ed (300) day s after t

he marr iage isterminat

e d by death, annulmen t, declar ation of in

validity , or divor

ce. . . .”Tenn. Cod

e Ann. § 36 -2-304( a)(1). This pre sumption may be re

butted “in an appropriate action,” Tenn Code Ann. § 36-2- 304(b)(1) , b y a preponderance of the evidence . Tenn. Code Ann. § 36-2-304(b)(3).-5-

In the situation of married parents, the amount of child support is to be set at the time of divorce. Tenn. Code Ann. § 36-5-101(a)(1). Courts are authorized to provide for the future support of childre n by fixing a d

efinite a mount to be

paid in re gular installmen ts or otherwise, as circumstances may warr

ant. Tenn. Code Ann. § 36-5-101(a)(2)(A). Further, courts must apply the child su pp or t g ui de li ne s d ev el op ed by th e Department of Human Services in determining the amount of such support. Tenn. Co de Ann. § 36-5-101(e)(1)(A). The g uidelines require a noncustodial parent to pay support which is “a f lat percentage of the oblig or’s net income,” Te nn. Comp. R. & Regs ., ch. 1240-2-4-.03(2), depending on the number of c hildren to be supported. The amount dictatedby t

he guid elines is to b e applied as a rebuttable presumption of the correct amount of support. Tenn. Code Ann. § 36-5-101(e)(1)(A). Child support is established prospectively at the time of divorce. In that situation, however, an initial order of support must include an amount due for monthly support from the date of the parties’ separation. Tenn. Comp. R. & Regs., ch. 1240-2- 4-.04(1)(e). Ob vi ou sl y, a court can enter an approp riateorder for support upon divorce of the child’s parents only if the

court is a ware tha t a minor child is involved. Divo rcing p arents cannot deprive a child of support by ag

reeing that the husband

is not the father of

the child and agreeing to re lieve that party from a

ny sup por t obligation. Witt v . Witt, 929 S.W.2d 360, 363 (Tenn. Ct. App. 1996). Further,

a child or children born to a marriag e cannot be rendered illegitimate, directly or in di re ct ly, in any divorce a ction or other proceeding unless the child and or c hildren are made parties to the action, afforded the protection of a guardian ad litem, and co un se l, if

ne ce ss ar y. Id

. In Witt , the parents signed a marital dissolution agreement stipulating that a child was born during the m a rriage but that the husband was not the father of the child and that the wife was not living with the husband when the child w as conceived. A divorce was gr anted on the grounds of irreco ncilable

differences, and the decree approved the marital dissolution agreement. Almost two yearslater the State, whichhad bee n providin g AFDC

benefit s to the moth

er, soug ht to impose ch

ild support obligations on the former husband and to establish paternity. Blood testing revealed that the former husband was the child’s biological fathe r.3 In 2000, the legislat ure adopted a similar resul t by providing: No provision, fin ding of fact or conclus ion of l aw in afi nal decree of di vorce or ann ulmen t or other decla rat ion of i nval idi ty of a marriage which provides that the husband is not t

he father of a chi ld born to the wif

e duri ng t he mar ria ge or w it hin thr ee hun dred (300) days of the ent ry of

the fi nal decree , or which names anot her person as the father of such child sh all be giv en pr eclusive effect unle ss scientific tests to determine parentage are first performed an d the results of the test which exclude the husband from parentage of the child or children or which estab lish paternity in another person are adm itted into evide nce. . . . 2000 Tenn. Pub. Act s, ch. 922 § 9, now cod ified at T enn. C ode Ann. § 36-5 -101 (t). See al so 2000 T enn. Pub. Acts, ch. 922 § 4 , now codified at Tenn. Code Ann. § 36 -2-304(b)(4). -6- This c ou rt upheld the trial court’s judgment setting aside, pursuant to Tenn. R. Civ. P. 60, that portion of the divorce decree dealing with pate rnity and child support because

those provisions were void as against public policy

. Id . 929 S.W.2d at 362. 3 The parties herein did not enter into the same agreement in their marital d issolution agreement

as the parties in Witt . However, the effect was the sa me: the child born during the marri age was deprived

of support by his or her le gal and biological father. This was accomplished withoutthe protections guaranteed in Witt or in the statute quoted above because of omissions in the divorce papers. The record herein includes the complaint for divorce , citing groun ds of irreco ncilable differe nces, filed by the wife , now Ms. Clark. The form complaint includes a space for the complainant

to identify “minor

children born of

this marriage and their dates of birth.” The word “None” is enter e d in that space. Although Mr. Wilson did not sign the complaint, he did sign the marital dissolution

agree ment which was file d with the court and

which did not mention the child. A divorce on the ground of irreconc ilable differen ce s requires that the parties make an agreement reg arding support of minor children and that the court find such agreement reasonable, Tenn. Co de Ann. § 36-4-103(b), reaffirming the legislature’s intent that children born during a marri age be provided support upon divorce . Beca use the di vorce de

cree he rein did not address the issue of support, there is no provision which must be set aside. However, because the dec ree did not make provision for support of the child, it should b e modifie d to reflect custody and support decisions related to the child. The trial court herein found Ms. Clark was not a credible witness bec ause in h er di vorce complaint she did not list any

children b orn to the

marriag e. This finding le d the tria l court to discountMs. Clark’s testimony that she told Mr. Wilson he was the father. Because the c hild was born during t

he ma rriage , the husba

nd’s beli ef as to th

e pater nity of the ch ild was not

releva nt. Co ns eq ue nt ly, the credibility deter mination has no effect on the legal issues to be decided. Further, while Ms. Clark failed to disclose, or intentionally made an inaccura te statem

ent, Mr. Wil son did not correct the error. I

n any event, neither one parent, nor both parents by agreement, can deprive a child of support. Berryhill , 21 S.W.3d a t 191-92; Witt , 929 S.W.2d at 363.-7-

Hadthe compl aint or ma

rital diss o lu tion agreement disclosed to the court that a child was born during the marriage, the c ourt could have taken appropriate action to deter mine the parent age and to protect the child’s right to support. Regardless of which parent may

bear more re sponsibilit

y for the o mission, it isthe child whose inte

rests ar e param ount. Becau se the child was born during the marriage, Mr. Wilson was the presumptive father, and support should have been set

at the time

of the pa rties’ divorce . Beca

use the pa rties fa iled to disc lose to the cour

t the fac t that a child had been born during the marriag e, there was no judicial determination of the child’s paternity. The pr esumption thatthe husband was the child’s father was notrebutted. The only evidenc e ever introduced in court was at the modification hea ring involved in this appeal, and that evidence proved, rather than rebutted, that Mr. Wilson was the child’s father. V. Duration and Calculation of Retroactive Support The goal of statutes and regulations governing child support is to assure that children receive support reasonably

consistent with their parent’s or parents’ financial re sources. Kaatrude , 21 S.W.3d at 248- 49. The Child Support Guidelines state one of their goals is to “ensure that when parentslive separately , the economic impact onthe child(ren) is minimized . . . .” Tenn. Comp. R. & Regs., ch. 1240-2-4-.02(2)(e ). It is only beca

use of the unique facts of this case and the trial court’ s emphasis on the reasona bleness of Mr. Wilso n’s belie f that he was not the

child’s f ather that we have discussed retroa ctive sup port in two

contexts: di vorce a

nd establ ishment of

paternity. The child

involved in this appeal was born during the marriage, a nd support should have been set at the time of the divorce. As more fully explained below, howe ver, there is now little difference in how courts are to award or calculate retroactive support bet ween or ders f or suppor t as part o f a divor

ce and those resulting from the establishment of paternity of a

child born to parents who were not married to each other at the time of the birth. The child support

guidelines apply

to support ordered as part of a divorce dec ree as well as support ordered upon the establishment of paternity of a child born to parents who are not married to each other. Berryhill , 21 S.W.3d at 190-91; Kaatrude , 21 S.W.3d a t 249. The

guidelines apply in all actions brought

to establi sh support

. Tenn. Comp. R. & Regs., ch. 1240-2-4-.02(3). Under the guidelines: In cases where initial suppo rt is being set, a judgme

nt must be e

ntered t o include an amount due for m

onthly support f

rom the date of the child’s birth or date of separation or date o f abando nment whic hever isappropriate, until the current support order is entered. Tenn. Comp. R. & Regs., ch. 1240-2-4-.04(1)(e)

.-8-

Becau se support sho uld have been set at the time of divorce, the appropr iate date for determining retroactive support is the date of the parties’ separation. According to the Stateme nt of the Evidence, Ms. Clark moved out of the marital home in March of 1994. The r ecord is silent as to whether any

support was provided after that time. Alth ough this case presents an unusual situationin that neither prospective nor retroactive support was awarded at the t

ime of divorce , we are

not without

guidance as to how to calc ulate retroactive support. First, this court has considered situations where initial chi ld support was improper ly calculated at the time of the divorce. I n that situation, the support is to be recalculated, applying the guidelines to the obligor parent’s actual income, and any

amounts which should have been paid but

were not are arrear

ages. Anderton v. Anderton , 988 S.W.2d 67 5, 681-82 (Tenn. Ct

. App. 1998); Smith v. S

mith , No. M2000-01094-COA-R3-CV, 2001 Tenn. App. LEXI S 320, at *23- *24 (Tenn. Ct. App. May 2, 2001) ( no Tenn. R. App. P. 11 application filed). Second, t he chil d support guidelines now provide direction. Berryhill , 21 S.W.3d at 192. The guidelines “carry

what amounts to a legislative mandate.” Id . 21 S .W.3 d at 19 2 (quo ting Nash v. Mulle , 846 S.W.2d 803, 804 (Tenn. 1993)). Under the guidelines, when the court determines the am ount of retroactive

support du e when e

ntering the initia l order f or suppor t, the amount of pas t support:
must be calculated based upon the guidelines using the average income of the oblig or over the past two year s and is presumedto be correct unless rebutted by either pa rt y. An amount should be included in the order to reduce the arrea rs judgment on a monthly basis within a reasonable time. Tenn. Comp. R. & Regs., ch 1240-2-4-.04(1)(e)

. The Tennessee Supreme Court has determined that the 1994 inclusion in the guidelines of provisions regar

ding re troactiv e support

has limite d the cour

ts’ discr etion in ma

king such award s in orders establishing paternity

. Berryhill , 21 S.W.3d at 193. Although courts continue to have discret ion, the “broad discretion” to determine the amount of retroa ctive awards described i n Coleman , 805 S.W.2d at 755, has been narrowed, and any discretion “must be exercised within the strictures of the Child Support Guidelines.” Berryhill , 21 S.W.3d at 193. Thus, the guidelines must be applied. The record here in includes Mr. Wilson’s tax returns for the year s from 1995 through 2000. However, these exhibits areunaccompanied and unexplained by testimony . Conseque

ntly , upon re

mand, the

trial cou rt should a

pply the guid elines by , first, determining Mr. Wilson’s average income over the past two y ears and, then, after giving the parties the opportuni

ty to present additiona

l evidenc e, deter

mi ning wh ether either party has rebutted the presum ption t hat this average amount is the correct amount. See Ber ryhill , 21 S.W.3d at 193-94 (findi ng that proof of actual income rebutted the presumption). Then, using the instructions and4 The parti es have s tipulated this amo unt to b e $1 6,78 7. W e note that st ipulati on must be approved by the court before usi ng the guideli nes to review the adequacy of t he stipulat

ion. Tenn. Comp. R. & Regs., ch. 1240-2-4-.02(4). W e also note the st

ipulati on covers the period back to the date of divorce, not t o the date of separation. -9- formula in the guidelines, the court should determine the amount of child support which would have been owed under th

e guide lines. 4 VI. Deviation from Guidelines Having determined the amount of retroactive supp ort that would be owed under the guidelines, the trial court has the discretion to determine whether fa cts exist to justify a deviation from the g

uideline s. Tenn. Co de Ann. § 3 6-5-101( e)(1)(A) provid es that:
In making its determination concerning the amount of support a ny minor child or ch ildr en of the pa

rties, the court sha ll apply as a rebuttable p

resumptio n the chil d support gui del in es a s pr ovi ded in th is sub sec ti on. If the court finds tha t evidenc e is sufficient to rebut this presumption, the court shall make a written finding that the application of the child support guidelines would be u njust or inappropriate in that particular case, in order to provide for the best interest of the child(ren) or the equit y betweenthe part

ies. Find ings tha t the application o f the gu idelines w ould be un

just or inappropriate shall state the amount of support that would have been ordered under the child support guidelines and a justification for the variance

. In a ddition, Te

nn. Comp. R. & Regs ., ch. 124 0-2-4-. 01(2) pr ovides tha

t: T.C.A. 36-5-101 requires that there must be a rebutta ble pres umption in a

ll child support cases that the amount

of child s upport de

termined by a n applica tion of the se guidelines is the correct amount to be award ed unless the court makes a written or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case. Such a f inding would s ufficien tly rebut the presumption in that case. The rebuttable presumption must be applied to all chi ld support awards even if the order is being sought for a retro active period before October 13, 1989. Tenn. Comp . R. & Reg s., ch. 12 40-2-4- .02(7) pr

ovides tha

t: These guidelines shall

be applie d as a re

buttable presumpt

ion in all child supp ort cases. If th

e court f inds that th

e eviden ce is sufficient to rebut the presumption that the application of the guidelines is the correct amount to beawarded then the court must make a w

ritten or specific finding that the a

ppli catio n of the child support guidelines would be u

njust or in appropr

ia te in that particular case. Findings that rebut these g uideline s must state

the amount

that would have been required under the5 We have hel d tha t “ an awa rd f or ret roactive chil d suppor t i s gen eral ly consi dered t o have t wo purpos es: (1) to benefit t

he parties’ child; and (2) to r eimburse the cus todial parent for contributing more than [thei r] fair share to the child support. ” Berryhil l v. Rhodes , No . W 200 1-00 748 -CO A-R 3-JV , 200 2 T enn. A pp. L EX IS 33 1, at *22 (Te nn. Ct. App. May 2, 200 2) (no Tenn. Ap p. P. 11 application fil ed) (citing State ex rel. S tewa rt v. Lo ckett , No. M2001-00809- COA- R3- JV, 200 2 T enn. A pp. L EX IS 66 , at *4 (T enn. C t. App . Jan. 3 0, 2002) (no Tenn. R. App. P. 11 appl icat ion fil ed) (citing Kaatrude , 21 S.W .3d at 248)). -10- guidelines and include a justification for deviation from the guidelines which

takes into consideration the best interest of the child. The Supreme Court

has spec ifically

directed application of these provisions to a retroactive support award. Berryhill , 21 S.W.3d a t 193. The

court fu rther explained: The guidelines provi de a ge neral f ormula fo r calculating th

e approp riate amount of child support based on an obligor’s income and include a procedu re which permits limited deviation downward from the genera l formula. The guidelines also m andate a deviatio n upward

under ce rtain circumstances. The guidelines are a min imum base for determin ing chil d suppor t obligations. “The guidelines expressly provide for downward

deviation where the obligee has utterly ceased to care

for the child(ren); where the obligee clearly

has a lower level of child care expense than that assumed in the guid

elines; a nd where the oblig or is sadd

led with ‘ extreme e conomic hardship.’” Jones v. Jones , 930 S.W.2d 541, 545 (Tenn. 1996). “Althoug h the rule does not purpor

t to set for

th an exhau stive li st of i nstances in which downward deviation is allowed, these specific instances nevertheless are a powerful indication as to the ty

pes of situ ations in

which it is contemplated under the guidelines.” Jones , 930 S.W.2d at 545. The guidelines indicate that the cour t “shall”increa se the award if the oblig or is not pr

oviding h ealth insu rance, if the obli gor is exercising less than average visitation, if extraordinary medical and educational expenses exist, or if the court finds that eq

uity require s it. Id . (some citations omitted). Thus, on remand, the trial court may conside r whether a deviation from the amount of retroactive support di ctated b y the guide lines’ fo rmula is justified, under appropriate standards. The guidelines provide that in deviating from the guidelines “primar y considera

tion must be given to the best interest of

the child (ren) f

or whose support th

e guide lines are being u tilized.” Tenn. Comp. R. & Regs., ch. 1240-2-4-.04(5). 5 The trial court is required to first determine the amount due under the guidelines and then make specific finding s justifying any deviation. VII . Conclusion Th e trial cou

rt incorr ectly limited re

troactiv e support

to the dat

e of DNA

test result s establishing paternity in stead of the date of the parties’ separation. To the extent the court’s ruling can be considered a decision to deviate from the child support guidelines, the deviation is not-11-

supported by the required findings of fact. F o r those reasons, we vacate the judgment. We have determinedthat the c aseshould be remanded for proceeding s in which the parties shall be given the opportuni ty to present additional evidencerelevant to the appropriate standards and for the trial court to make the requisite determinations and findings. Costs of thi s appeal are taxed to the appellee, Vernon Wilson.

___________________________________ PATRICIA J. COTTREL L, JUDGE