1 Rul e 10 (Court of Appea ls). Memorandum O pinion . – (b) The Cou rt, with the c onc urre nce of all

judges partici pating i n the case, may aff irm, reverse or modify t he actions of the trial court by memorandum opinion when a formal opini on would have no pr ecedential

value. When a case is deci ded by memorandum opinion it sha ll be de sign ated “ME MO RAN DU M O PIN ION ,” sha ll not be publi shed, and shall not be cited or reliedon for any r

eason in a subsequent unrelatedcase.
2 Mr. Jackson proceeded pro sein both the tria l court and before th is court. 

# FILED
March 29, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
STATE OF TENN ESSEE, ex rel , ) TONYA RENEE JACKSON, ) Williamson Circuit No. 93337 ) ) Appeal No. M1999-00133-COA-R3-CV Plaintiff/ Respondent/ ) Appellee, ) AFFIRMED ) VS. ) The Honorable Donald P. Harris, Ju dge ) KEITH GEORGE JACKSON, ) Paul G. Summers ) Attorney General & Repor ter ) Douglas Earl Dimond Defendant/Petitioner/ ) Assistant Attorney Gener al Appellant. ) Nashvill e, TN ) Attorney for Tonya Renee Jackson ) ) Keith George Jackson, pro se ) Murfreesbor

o, TN

MEMORANDU M OPINION 1 HIGHERS, J.
This appeal arises from a petition to reduce child support filed in the Circuit Court of Williamson County. The tria l court deni ed the petition, and for the reasons stated herein, we affirm that decisi on.

Facts and Procedural His tory On November 18, 1998, Keith Geor ge Jackson (“Appellant” ) filed a petition in the Circuit Court of Williamson County seeking to have his child support

payments reduced. 2 At that time, Mr. Jackson was obligated to pay eight hundred and two dol lars ($802.00) per month under a prior court ord er entered o n March 3, 1998. The petition alleged that “a material change of circumstances has occurred as to defenda nt’s inco me . . . so as to justify a reduction in child suppor t payments
. Th e State of Tennessee (“Appellee”)3 The State’s standing as appel lee deri ves from state and federal law s which require c ustodial pa rents

of childr en receiving public assistance to assign their rights to receive support from third parties t o the State. 42 U.S .C. § 606 (a)(26); T enn. Co de Ann . § 71-3-1 24(a).

4 The exact language used by the trial court was : “Ch ild sup port s hall be computed based on the l ast 2 years income whe n being calculated for modification.” 2 responded on behalf of Tonya Jackson Strong and reques ted that the court review Mr. Jacks on’s income and set his child support obligation pursuant to the Ten nesse e Chil d Support Guidelines (“Guidelines”). 3

The trial court conducted a hearing on this matter on February 8, 1999. The court rendered its decision by order entered on February 25, 1999. The trial court determined Mr. Jackson’s income to have been $54,846.60 in 1998 and $64,975.00 in 1997. However, the trial court calcul ated his child support obli gation using both the 1997 an d 1998 incomes. 4 Based upon the percentages contained in the Guidelines, the court concluded that Mr. Jackson was paying the correct amount of child support and denied the petition to reduce his pay ments.
Law and Analy sis Initiall y, we must note t hat the reco rd contains no transcript or statement of the evidence. The appellant hasthe duty "to prepare a reco rd which convey s a fair, accurate and complete account of what transpired in the trial court with respect to the issues which form the basis of the appeal," Nickas v. Capadalis , 954 S.W.2d 735, 742 (Tenn. Ct. App. 1 997)(citing State v. Boling , 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992)); see also T.R.A.P. 24(b). Dueto the absence of an evidentiary record, we must presume that every admissible fact should ha ve been found in the appellee’s favor and against Mr. Jackson. Gotten v. Gotten , 748 S.W.2d 430, 432 (Tenn. Ct. App. 1987); Richmond v. Richmond , 690 S.W.2d 534, 536 (Tenn. Ct. App. 1985); In re Rockwell , 673 S.W.2d 512, 516 (Tenn. Ct. App. 1983).

On this appeal, the Appellan t presents only one iss ue. That issue is whether the trial court erred in “failing to properly apply the ‘significant variance’ test.” Mr. Jackso n argues that his child support obligation should have been modified due to the fact that his3

income had decreased by more than fifteen per cent (15%) from 1997 to 19 98, thereby constituting a si gnificantvariance. In response, the State claims that Mr. J ackson misapprehends the law regarding “significant variance.” T he Sta te argues that no modification was warr anted si nce Mr. Jackson does not contend, nor does the record indicate, that his

exist ing sup port obl igatio n vari es by fifteen per cent or more fr

om th e support obligat ion that he would owe based on his in come at the tim e of the hearin g.

Trial courts are required t o modify chi ld support o bligations only when there is a "significant

variance" between the amount of support required by the Guidelines and the amount currently ordered . Tenn.Code Ann. § 36-5-101(a)( 1); see also Turner v. Turner , 919 S.W.2d 340 (Tenn. Ct. App. 1995)(emphasis added). When the child support obligation exceeds $100 per month, the Guidelines define a "significant varian ce" as one of at least fifteen percent. See Tenn. Comp. R. & Regs. r. 1 240-2-4-.02(3).
Determining the amount of the noncustodial parent 's income is the most important element of proof in a proceeding to set child support. Turner , 919 S.W.2d at 344. Since the Guidelines speak in ter ms of percentages, the trial court is required to determi ne the
o blig or’s income before it can set a definite a mount of support. In the present case,the trial court ruled that for

purposes of modification of Mr. Jackson’s child support obligation, both his 19 97 and 1998 i ncomes were to be consider ed. The court then applied the percentagescontained in the Guidelines t o determine that Mr. Jackson was not entitled to a modification.

Mr. Jackson has notpresented a legally cognizable argument r egarding “signific

ant variance.”

As the Appellee contends, the fifteen percent significant variance standard does not apply to income. Rather, the question is whether the obligor’s existing support obligation variesby fifteen percent or more from the amoun t that would be required when applying the

obligor’s income at

the time of the hearing. Therefore, the real issue in this
case is whether the

trial court correctly determined the income upon which Mr. Jackson’s child support payments shoul d be calculated.4

Mr. Jackson does not argue that the trial court abus ed its discretion in usi ng both his 1997 and 1998 incomes as the bas is for setting his pay ments. The court took an average of the 1997 and 1998 income and used thatfigure as the basis for calculating Mr. Jackson’s obligation. Mr. Jackson does not chal lenge that determination.

In summary, there is no legal basis for the “significant var

iance” argument advanced by Mr . Jackson. Additionally , he has not addressed the dispos itive issues in thi s case. Any latitude that we might have under T.R.A.P. 13(b) to consi der issues not presented for review, such as the trial court’s income determination, is rend ered moot by the deficiencies in the record. We must review the tr ial court's decision ac cording to the familiar Tenn.R.App.P. 13(d) standard, and we s hall uphold that decision unless it is based on an improper application of the law or is a gainst the preponderance of the evidence. In the pre sent case , the lac

k of an ar

gument b

y Mr. J ackson, as wel l as the absence

of a transcript or statement of the ev idence, leaves us wi

th no basis on which to question the trial court decision.

Conclusion For the foregoing reasons, the decision of the trial court denying the appellant ’s petition is af firmed. Costs o f this appeal a re taxed to the Ap pellant, Keith George Jackson, for which e xecution may issue i f necess ary.5 HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.