FILED

March 17, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

STATE OF TENNESSEE ex rel., )

DONNA RANDOLPH, )

)

Petitioner/Appellant, ) 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 Hull Building

425 Fifth Avenue, North

Nashville, Tennessee 37243

ATTORNEYS FOR PETITIONER/APPELLANT

RANKIN P. BENNETT

107 South Washington Avenue

Cookeville, Tennessee 38501-3547

ATTORNEY FOR RESPONDENT/APPELLEE

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE

OPINION
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In this case the mother of a sixteen year old boy appeals the action of

the trial court in applying 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, four and one respectively, and he is the

biological father of Stephen Poteet born to the petitioner, Donna Randolph on

April 16, 1982. 

By paternity order dated February 20, 1991, the legal obligation of

John R. Poteet to support Stephen Poteet was recognized and his support

obligation was set at $200 per month with which obligation John R. Poteet has

faithfully complied.

On November 26, 1997, Donna Randolph filed a petition to modify

child support for Stephen, alleging a "significant variance" from the Tennessee

Child Support Guidelines. This was a Title IV(d) petition filed with the

assistance of the District Attorney General Child Support Division.

At the hearing, the court found the gross income of John R. Poteet to

be $2,924.13, yielding a net income of $2,233 per month. Such an income

required a presumptively correct guideline child support figure of $469.

Mr. Poteet argued for a downward variation from the guidelines

asserting that his oldest child of his marriage was born before the legitimation

or the paternity order of February 20, 1991 and that his three children living in

his household should be considered as a basis for deviating from the guidelines.

The trial court held:

The Court in making its decision in this case finds that

following the decision of Adams v. Reed, the Department of

Human Services amended the guidelines effective December

14, 1994 to provide "Rather than giving parents credit for

voluntary child support payments, the amended guidelines

specifically state that voluntary child support cannot be

deducted f[ro]m gross income and cannot be used as a basis

for deviation from the guidelines unless the payments

involve extreme economic hardship." Tenn. Comp. R. &

Regs. R. 1240-2-4-.03(4).
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Therefore, the Court finds the issue relating to the

second and third child of the respondent's marriage is

specifically covered by the current guidelines and cannot be

considered as a basis for deviation in this modification case

unless there is a showing of extreme economic hardship. but

the guidelines do not address the facts surrounding the first

born child of the respondent's marriage.

Notwithstanding the above mentioned rule, it is the

Court's ruling that first born child of the respondent's

marriage is not covered by the same provision of the

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 establishing paternity and thus creating the

legal obligation of support for said child. Prior to the entry

of such order on February 20, 1991, the respondent had no

parental rights or obligation to support Stephen Poteet. The

legal argument that after-born children are a voluntary

assumed obligation must be based upon an underlying legal

support obligation. In this case, the Court finds that the

respondent had no legal obligation to support any child prior

to the birth of the first child born of his marriage. 

 * * *

After considering all of the testimony of the parties and

their witnesses, arguments of counsel and from the entire

record in this cause, the Court finds in this case that the

presumptively correct monthly child support amount is

$469.00 for the minor child, Stephen Poteet, under guidelines

based upon the respondent's present monthly net income of

$2,233.00. However, the evidence presented in this case is

sufficient to rebut this presumption. The Court finds that

application of the child support guidelines 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, considering the

fact that one child of the respondent's marriage was born

before the paternity of Stephen Poteet was established. The

Court further finds that extreme economic hardship would

result if the guideline amount were not reduced. Based upon

these findings, the Court orders that the respondent's child

support obligation shall be set in the sum of $325.00 per

month beginning January 14, 1998.

The court further held that because Mr. Poteet had been punctual in his

previous child support payments, that he should be allowed to continue to make

the payments directly to Mrs. Randolph rather than pay them into court as

required by the guidelines.

With all due respect to the trial court and no small degree of sympathy
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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 legislative mandate and the courts have no

choice but to follow them absent a legitimate basis for deviating therefrom.

Child support in Tennessee is statutorily governed by

T.C.A. § 36-5-101. Section 36-5-101(e)(1) provides that

"[i]n making its determination concerning the amount of

support of any minor child . . . of the parties, the court shall

apply as a rebuttable presumption the child support

guidelines as provided 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 Family Support Act of 1988,

codified in various sections of 42 U.S.C. While they add a

measure of consistency to child support awards statewide,

the guidelines provide more than simply percentages to be

applied against the net incomes of non-custodial parents.

They also embody "the rules promulgated by the Department

of Human Services in compliance with [the] requirements [of

the Family Support Act of 1988]." Hence, the purposes,

premises, guidelines for compliance, and criteria for

deviation from the guidelines carry what amounts to a

legislative mandate.

Nash v. Mulle, 846 S.W.2d 803, 804 (Tenn.1933).

In specific reference to the authority of the court for downward

deviation from the guidelines, the Supreme Court has said:

[3] This latter argument construes the trial court's authority

to deviate downward too broadly. While § 36-5-101(e)(1)

does authorize deviation in order to ensure equity between

the parties, and while downward deviation is clearly not

prohibited, the trial court's authority to do so must be

considered in light of the provisions dealing with such

deviation--Rule 1240-2-4-.04(2) and (4). Although not

exclusive, those subsections provide for downward deviation

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 subjected to an "extreme economic

hardship," such as where other children living with the

obligor have extraordinary needs. Therefore, the guidelines

expressly provide for downward deviation where the obligee
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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 guidelines; and where the obligor is

saddled with an "extreme economic hardship." Although the

rule does not purport to set forth an exhaustive list of

instances in which downward deviation is allowed, these

specific instances nevertheless are a powerful indication as

to the types of situations in which it is contemplated under

the guidelines.

Jones v. Jones, 930 S.W.2d 541, 545 (Tenn.1996).

Prior to Jones, efforts were made to take into consideration the plight

of children living with mother and father in the married household. Adams v.

Reed, 874 S.W.2d 61, 63-65 (Tenn.App.1993).

Said this court after the Adams' decision:

FN5. After criticizing the October 1989 version of the

guidelines for not recognizing a parent's obligation to

support children in the absence of a court order, another

panel of this court held that voluntary child support should

be considered in setting child support. Adams v. Reed, 874

S.W.2d 61, 63-65 (Tenn.Ct.App.1993). The Department of

Human Services amended the guidelines after the Adams v.

Reed decision. Rather than giving parents credit for

voluntary child support payments, the amended guidelines

specifically state that voluntary child support cannot be

deducted from gross income and cannot be used as a basis

for deviating from the guidelines unless the payments

involve extreme economic hardship. Tenn. Comp. R. &

Regs. r. 1240-2-4-.03(4).

1240-2-4-.0-3(4); Kirchner v. Pritchett, 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 the trial court to $469 per month as is

required by the child support guidelines.

Also, child support will be paid by income assignment as required by

Tennessee Code Annotated section 36-5-501(a)(1)(1997 Supp.) as there is

neither a specific finding that the child's interest would be best served by not
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having an income assignment or a written agreement of the parties approved by

the trial court to forego income assignment entered in this record.

The judgment of the trial court is reversed and the case is remanded for

proceedings in conformity 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