### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 11, 2001 Session DEE ANN CURTIS GALLAHER v. CURTIS J. ELAM Appeal from the Juvenile Court for Knox County No. B-3443 Carey Garrett, Judge FILED JANUARY 29, 2002 No. E2000-02719-COA-R3-CV

DISSENTING OP

INION

Tenn essee Comp. R. & Regs. 1240-2-4-.03(4), promulg ated by the Depa rtme nt o f Human Ser

vices pur suant to Te

nn. Code A

nn. §36-5 -101 rea

ds: Children of the obligor who are not included in a decree of child support shall not be considered

for the purposes of reducing the obligor’snet income or in calculating the guideline amount. In addition, these children should not be considered by

the court as a reason for deviation unless they meet the requ irementsof Rule

1240-2-4-.04(4). This Rule was foun d to be unc onstitution al by the major

ity on the grounds that the quoted provision

“discrim inates” agains tother children of obligor, and in this case residing in the household of the obligor.

I dissent fr om the majo

rity ’s h olding for se veral reasons. First, courts are admonished notto decide

constituti onal ques tions unle ss it is “ab solu tely necessa ry”. Strait v. B urdin , 924 S.W.2d 82 (Tenn. 1996).

The majority recog

nize s that the constitutional issue would not call for a strict scrutiny analysis, but rather

that the “reduced scrutiny or rational basis test” is applicable. See Riggs v. Burson , 941 S.W.2d 44 (Tenn. 1997).

This record presents no factual basis for either the Trial Court or this Court to reach the constitutional issue raised. One of appellee’s arg umen t s is that the guidelines treat children differe ntly who are subject to a support or de r, as oppo sed to thos e who ar e not, bec ause the

child who gets a s upport aw ard ge ts a defin ite percen tage of the oblig or’s inc omeand there is no showing that the others will get an equal amount. Appellee, however, has provided no evidence that this was1 Source: IRS data su pplied to Co ngress; 1 999 adjust ed gross i ncome of $293,000. 00 up, puts taxpaye r in the top

1% of inc ome of all filers.

-2- actually the case. The father has ear ned an average of appr

oximately $300,000.00 per y ear for the past five y ears, which puts h

im in the top 1% of income of all income

tax filers

. 1 The three children living with the father enjoy a ver y high standa

rd of living, including private schools at the cost of $3,0 00.00 per month, reside in a home with a monthly mor tgage pay ment of $3,800.00, and hav e accessto expensiv e motor ve hicles, th ereby enjoy ing an u nreason ably

high sta ndard of living, w hile the biological child which is subject to the guidelines must exist on a small fraction of such be nefits. The facts of thi s case d emons trate that t his ch ild, if anythi ng, get s unequal treatment, vis a vis the marital children. Yet the majority addr esses the constitutional issue andholds the above-mentioned regulationunconstit

utional, w ithout citi ng any

case authority for its position, but misguidedly relies on two maudlin dissents from other jurisdictions for its decision.

It is the duty of this Court and all courts to

uphold a st

atute if t he statute is not pure

ly arbitrary

. Epstein v . State , 366 S.W.2d 914 (Tenn. 1963).

The guideli nes state

they were e nacted t o comply with fede ral and s tate req

uiremen ts, and that some of the goals behind the enactment of the same w ere to “decrease the number of impoveris hed childre

n living i n single

parent f amilies” , to “make

child supp ort awar

ds m or e equitabl e by ens uring more consistent treatment” of similarly situated individuals, to provide guidelines to parties and

the courts and to improve the efficiency of the court process, and to “ensure that when parents live separately , the economic impact on the child(ren) is mini mized and to the extent that either parent enjoy s a higher standard of li ving, the child(ren) share(s) in that hig her standard.” Tenn. Comp. R. & Regs. 1240-2-4-.02. The guidelines a lso provide that they are

to be applied as a rebuttabl e presumption, and that if the court finds sufficient evidence to re but the presumption, it can make a different award so long as the court makes specific findings reg arding why the guideline amount is inappropriate, and so long as the c ourt consider the best interests of the child. Tenn. Comp. R. & Regs. 1240-2-4-.02(7).

The dissenting opinions that the majority relies upon asser t that the guidelines are unwise and are inequitable. However, our Supreme Courthas stated that it is not authorized to strike down a statute that the court may consider unwise or

inequita ble, but th

e statute must create a real deprivation of constitutional rights. Baldwin v. Knight , 569 S.W.2d 450 (Tenn. 1978).

These guidelines provide a multitude of valid reasons for their existence, including equity and predictability of c

hild support awards and, more importantly, to ensure childre n are not adverse ly impacted because their parents do not live toge ther. The guidelines ensure that children who do not live

with the pa

rent who makes sub sta ntial sums of money, will ge t the benefit of the parent’s higher

income, j ust as if th

ey li ved in the pare nt’s house hold. While

it is true th at this child’s mother c an pay

for basi c necessities on her income of $36,000.00 per year, it ce

rtainly does not provide a

standard of living any

where near that of the

father’s three other children, who enjoy2 Some individuals only learn through experience the reality of th e ancient Appalachian folklore, that if you dance you have to pay the fiddler.

3 The restric tion in the g

uideline s as to chi ldren not in the dec

ree goe s to esta

blishing the guideline percentage and not whether their support would c reate a hardship on the obligor. -3- the benefits of an income of ten times that amount or more in some y

ears tha n this child’s mother earns. The applica tion of the

guideli nes in this c ase is fair, and does not treat this child any better than the o ther chi ldren. I n fact, i f it were

not for the guide

lines, thischild would certa inly be treated much worse than the other children, as has been aptly demonstrated

by the father ’s vehement resistance to paying c hild suppor t i n this case. 2 Even with the guid eline sup port, this c

hild will likely not have a

ll of the ma

terial th ings enj oye d by

the other childre n. Thus, there is no dispara te treatme nt. Given the circumstances of the case, ther e can be deviations from the guidelines, since they are just a rebuttable presumption. I n this case if the father could show that the child supp ort in accordance

with the g

uideline s would ca

use a neg ative im

pact on hi s o ther chi ldren an d creat e economic hardship, then the court has the authority to order a downward

deviation. The guidelines expressly provide for this in Tenn. Comp. R. & Regs. 1240-2-4-.04(4), and state that the court may consider such an action as necessary to “ach ieve eq uity between the pa rties”. With this “escape valve” provision in place, there can be little argument that

the guid elines create d

isparate treatme nt, since the court has the authority to consider hardships which would affect the other childre n. 3
I would uphold the guidelines as constituti onal and r esolve every

doubt in favor of co ns ti tu ti on al it y. Riggs v. Burson , 941 S.W.2d 44 (Tenn. 1997); In re Adoption of M.J.S. , 44 S.W.3d 41 (Tenn. Ct. App. 2000). Also, as this Court has previously recognized, the guidelines have been before our Supreme Court on many oc casions and no concern has been express ed reg arding

their co ns ti tu ti on al it y. See State ex rel. Arms trong v. Co lema n , 2001 WL 557991 (Tenn. Ct. App. May 24, 2001), citing State, ex rel. Coleman v. Clay , 805 S.W.2d 7 52 (Tenn .1991); Nash v. Mulle , 846 S.W.2d 803 (Ten

n.1993); Jones v. Jones , 930 S.W.2d 5 41 (Tenn .1996); Brooks v. Brooks , 992 S.W.2d 403 (Tenn.1999).

I would reverse the Judgment of the Trial Court and enter Judgment in accordance with the g uideline s.

_________________________ H ERSCHEL P ICKENS F RANKS , J.