# FILED

March 17, 1999 Cecil Crowson, Jr. Appellate Court Cle rk STATE OF TENNESSEE ex rel., ) DONNA RANDOLPH, ) ) Petitioner/Appell

ant, ) Appeal No.

) 01-A-01-9808-JV- 00419 v. ) ) Putnam Juvenile JOHN R. POTEET, ) No. 83 ) Respondent/Appellee. ) )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE JUVENILE COURT FOR PUTNAM COUNTY,

AT COOKEVILLE, TENNESSEE

THE HONORABLE NOLAN R. GOOLSBY, JUDGE

JOHN KNOX WALKUP Attorney General and Reporter
TAMMY L. KENNEDY SUE A. SHELDON Assistant Attorneys General 2nd Floor, Cordell H

ull Building 425 Fifth Avenue, N

orth Nashville, Tennessee 37243 ATTORNEYS FOR PETITIONER/APPELLANT

RANKIN P. BENNETT 107 South Washington Av enue Cookeville, Tenne ssee 38501-3547 ATTORNEY FOR RESPONDENT/APPELLEE

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE 

# OPINION-2- In this case

the mother of a sixte

en year old boy appeal s the action of the trial court in applyi

ng a downward deviation from child support guidelines.

John R. Poteet is

married and has three children born of the marriage, such children being ages seven, fo ur and one respectiv ely, and he is the biological father of Stephen Poteet born to the pe

titio ner, Donna

Randolph on April 16, 1982.
By paternity order dat

ed February 20, 1991 , the legal obliga tion of Joh n R. Poteet to support Stephen Poteet wa

s recognized and his s

uppo r t obligation

was set at $200 per m

onth with which obligation John R. Poteet has faithfully complied

.

On Nov ember 26, 1997, Donna Randolph filed a p etition to mod

if y childsupport for Stephen, alleging a "significant variance" from the Tennessee ChildSuppo r t Guidelines. Thi s was a Title IV(d) petition filed w ith the assistance of the D

istrict Attorney G

eneral Child Suppor

t Division.

Atthe hearing, the court found the gross income of John R. Poteet to be $2,924.13, y ielding a net income of $2,233 per month. Such an income required a presump

tively correct guide

line child support figur

e of $469.

Mr. Poteet arg ued for a downward variation from the guidelines assertingthat his oldest child of his marriage was born before the legi timation or the paternity orde

r of February 20,

1991 and that histhree children livi ng in his household should

be considered as a ba

sis for deviating

from the guidelines.

The trial court he

ld: The Court in making its

decision in

this case finds that followingthe decision of Adams v. Reed , the Departmen t of Human Services amended the guidelines effective December 14, 1994 to provide "Rather th an giving parents cre dit for voluntary child support payments , the amended guid eline s specifically

state that voluntary chi ld support cannot be deducted f[ro]m gross income and cannot be used as a basis for deviation from the guidelines unless the payme nts involve extreme econ

omic h ardship." Tenn. Comp. R. & Regs. R. 1240-2-4-.03(4).-3- Ther efo re, the Court finds the is sue relating to the second and third child of the respondent's marr iage is specifically

covered by the curr

ent guidelines and ca

nnot be considered as a basis for deviatio n in this modification case unless there is a

showing of extreme econom ic hardship. but the guidelines do not addre ss the facts surroundingthe first born child of the respondent's marriage. Notwi thstan ding the above mentioned r ule, it is the Court's ruling that first born child of the respondent's m arriage is not covered by the sa me provision of

th e guidelines for the reason that their was no legal obligation of support for the child born out of wedlock until a court order was entered first est

ablishing paternity a

nd thus creatingthe legal obligation of support f or said child. Prior to the

entry of s uch o rder on February 20 , 1991, the responde nt had no parental rights or obligation to support Stephen Poteet. The legal argument that after-b orn children are a voluntary assumed obligation

must be based upon an underlying legal support obligation. In this c ase, the Court f inds that the respondent

had no legal obligation

to support any child pri

or to the birth of the fi rst child born of hi s marriage. * * *

After considering all of the

testimony of the parties and their witnesses, arguments of counsel and from the entire record in this cause, th

e Court finds in this case tha t the presumpti vel y correct monthly chi ld support amount is $4 69.00 for the minor child, Stephen Poteet, under guideline s based upon the respondent's present monthly net income of $2,233.00. However, the e vid ence presented in this case is sufficient to rebut this presumption. The Co urt find s that ap plicati on of the child support gui delines would be unjust or inappropriate in

order to provide for

the best interest of

the children and to provide equity between the parties based upon the above findings and, in particular, co

nsid ering the fact tha t one child of the respondent's marriage was born before the paternity of Stephen Poteet was establish ed. The C ourt further finds that e xtreme economic ha

rdship wou l d result if the guideline amou

nt were not

reduced. Based upon these find ings, the Court orders tha t the respondent's c

hild s upport obligation shall be set in the sum of $3 25.00 pe r month beginning January 14, 1998.

The court further held that because Mr. Poteet had beenpunctual in his previous child support payments , that he should be allowed to continu

e to make the payments directly to Mrs. Randolph rather than pay them into court as required by the guidel

ines.

Withall due respect to th

e trial court and

no small degree of s

ympathy-4-

for Mr. Poteet, these adjudications by the trial court simply cannot stand under the requirements of Jones v. Jones , 930 S.W.2d 541 (Tenn.1996).
The guidelines are

a clear legislati

ve mandate and the cour

ts have no choice but to follow them absent a legitimate basis for deviating therefrom.

Childsupport in Tennessee is sta tutorily governed by T.C.A. § 36-5-101. Section 36-5-101(e)(1) provides that "[i]n making its determ ination concerning the amount of support of any minor child . . . of the parties, the c

ourt shall apply as a rebuttable presumption t he child support guidelines as prov ided in this subsection." The General Assembly

adopted the child support guidelines promulgated by the Tennessee Department of Human Services in order

to maintain compliance with the

Fami ly Support Act of 1988 , codified in various sections of 42 U.S.C. Whi

le they add a measure of consistency to chil d support awards state wide, the guidel ines p rovide more than sim ply percentages to be applied against the net income s of non-custodial parent s. They also embody

"the rules promulgat

ed by the Department of Human Ser vices in compliance with [the] requir

ements [of the Family Support Act of 1988]." Hence, the purposes , premises, guidelines for compl iance, and crite

ria for deviation from the guidelines carry w ha t amounts to a legislative mandate. Nash v. Mulle, 846 S.W.2d 803, 804 (Tenn.1933).

In spec if ic reference to the authority of the court for downward deviation from the gui

delines, the Supre

me Court has said: [3] This latter argum

ent construes the trial

court's authority to deviat e down ward too broadly. W hile § 36-5-101(e)( 1) does authorize deviation in order to ensure equity between th e parties, and whil

e downward deviat

ion is clearly no t prohibited, the tri al court's authority to do so must be considered in light of the provisions dealing with such deviation-- Rule 1240-2-4-.04(2) an d (4). Although not exclusive, those subsecti ons provide for downward devi

ation in three instances: (1) where DHS has taken custody of the child(ren) pursuant to neglect, dependency, or abuse action; (2) where the child(ren) spend more visitation time with the obligor than is assumed by the guidelines; and (3) in cases in which the obligor is subjecte d to an "extreme ec

onomic hardship," such as where other childr en living with the obligor have extraordinary needs. Therefore, the guidelines expressly provide for

downward deviation where the obligee-5- has utterly ceased to care for the child(ren); whe re the obligee clearly has a lowe r leve l of ch ild care expense than that assumed in the guidelines; an d where the obligor is saddled with an "extreme econo mic hardship." Although the rule does not purport to set forth an exhausti ve list of instances in which downward deviation i s allowed, these specificinstances neverthe less are a powe rful indication as to the types of situations in which it is contemplated u

nde r the guidelines.
Jones v. Jones , 930 S.W.2d 541, 545 (Tenn.1996).

Prior to Jones , efforts were

made to take into

consideration the pli

ght of children living wi th mother and father i n the married househ old. Adams v. Reed , 874 S.W.2d 61, 63-65 (Tenn.App.1993).

Said this court after the Adams ' decision: FN 5

. After criticiz

ing the October 1989 ve rsion of the guidel i nes for not recognizing a parent's obligation t

o support children in the absence of a court order, another pan el of this court held tha t voluntary child suppor

t shoul d be considered in sett ing child suppo rt. Adams v. Reed , 874 S.W.2d 61, 63-65(Tenn.Ct.App. 1993). The Depar tment of Human Services amended the guidelines after the Adams v. Reed decision. Rather than giving paren ts credit for voluntary ch ild s upport payments, the amended guidelines specifically

state that voluntary childs upport cannot be deduc ted from gross income a nd cannot be used as a b asis for deviating from the guidelines unless the p aymen ts involve extreme economic hardship. Tenn . Comp . R. & Regs. r. 1240-2-4-.03(4). 1240-2-4-.0-3(4); Kirchner v. Pritc hett , 1995 WL 714279 (Tenn.App.1995).

The child support order of

the trial court will be modified and increased from the $325 support figure set by t he tri al court to $469 per mo nth as is required by the child

support guidelines.

Also, child support will be paid by income assignment as required by Te n nessee Code Annotated sec tion 36-5-501(a)(1) (1997 Supp.) as ther e is neithera specific finding t hat the child's inte

rest wo uld be best served by not-6-

having an income assignment or a wr itten agreement of

the parties approve

d by the trial court to f

orego income assignm

ent entered in this r

ecord.

The judgment of

the trial court is r

eversed and the

case is remanded f

or proceedings in confor

mity with this opinion.
Costs of the appeal are taxed to the appellee.

________________________ ______ _______ _ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ __ BEN H. CANTRELL, P .J., M.S.

WILLIAM C. KOCH, JR., JUDGE CONCURS IN SEPARATE OPINION