1 The tria l court’scustody decision is not involved in this app eal. 

# FILED Ap ril 7, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ MILDRED LOUISE MCCOLLUM, Appellan t, Lake Chancery No. 3833 Vs. C.A. No. 02A01-9604-CH-00067 KLIFF ANDREW MCCOLLUM, Appellee.

__________________________________________________ __________________________ FROM THE LA KE COUNTY CHANCERY COURT THE HONORABLE JOE G. RILEY, CIRCUIT JUDGE

SITTING BY INTERCHANGE

Marianna Williams of Dyersburg For Appellant Timothy C. N aifeh of

Tiptonville For Appellee

REMANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR:
DAVID R.FARMER,

JUDGE HOLLY KIRBY L ILLARD, JU DGE This case involves a petition to change child custody 1 and modify c h ild suppor t.2 Wife is employed by the State of Tennessee as a sec retary in the District Attorney’s Office and ear ns a grossmonthly sa

lary of $ 1507.00. H

usband is e

mployed by

Electric Motor Ser

vice and earns a gross mont

hly salary of $2,456.84. 2 Responde nt-appe llant, Mildred Lo uise McCollum (Wife), appeals the trial court’s order r educ in g the amount of the future child s upport obligation of petitioner-appellee, Kliff Andrew McCollum (Husband), to reflect the change in the custody of one of the parties’ children. The rec ord in

this case consists of the statement of the evidence, which is very meage r at best, a nd the tec hnical r ecord. T he fact s gleane d from thisrecord are as f ollows. The parties were divorced by a decree entered on September 1, 1993. The y entere d into
a Marital Dissolution Agreement (MDA), which was approved and ratified by the trial court in the final dec ree of

divorce. The parties have three childre n together: Drew McCollum, born August 22, 1979; Zada McCollum, born November 9, 1981; and Rachel Mc Collum, born May 6, 1990. Pursuant to the MDA, the trial court awarded the parties joint legal custody of the three children, with primary physical custody to Wifeand reasonable and liberal v isitation r ights to Husband. The MDA provided that Husband would pay 41% of his net income or $150.00 per week, whichever was greater, as support f or the three children. The MDA further provided that Wife would maintain medical insurance on all three childre n. On June 30, 1995, Husband filed a petition to change child custodyand modif y the chil d support award. He requ ested tha t the cour t grant him

prima ry custo dy of Dre

w McCollum. Husband further requested that the court reduce his child support obligation and set child support
as to both parties according to the Child Support Guide lines pr omulgated by the Tennessee Department

of Human Services. Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.01 et seq. (1989, revised 1994) (Guidelines). After a hearing, the trial court granted Husband’s petition and award ed him physical custody of Drew

McCollum. T

he trial c ourt also

modified Husband’s child support obligation according to the Guide

lines. The

parties a gree tha t the tria l court a pparent ly deter mined th a t Husband should pay

32% of hisnet incom

e to Wife a s support f

or the two childre n living wit

h her and that Wife shou ld pay 21% of h er net in come to Hu sband for the one child living with him. Instead of requiring each party to pay the other , the court ordered Husband to pay Wife the difference between the two amounts, which is $375.00 per month. 23 Wife perfected this appeal and present s the following issue, as stated in her brief, for our review: Whether

the trial court properly a pplied the Child Support Guidelines when the mother has physical custody of two children and the father has physical custody of one child. Since this case was tried by th e court s itting witho

ut a jury, we revie

w the ca se de novo upon the record with a presumption of correctness of the findings of

fact by t he tr ial cour

t. Unless the evide

nce pre pondera tes agai nst the findings, we must a ffirm, absent error of law. T.R.A.P. 13(d). Wife argues t

hat the tr ial cour t erred in apply ing t he Guidelines to the situation in the present case in which she has exclusive physical custody of two children a nd Husband has exclusive physical custody of one child. In support of her a rgument, Wife poi nts out tha t she is receiving less in support payments for the two children living with her than she would be entitled to receive if she had only one child living with her. The Guidelines apply as a rebuttable presumption of the proper amount of

support in

all child support c ases, inc luding ac tions to modify child support. T.C.A. § 36-5-101(e)(1) (1996);
see also Tenn. Co mp. R. & Regs. tit. 10, ch. 1240-2-4-.02(3), (7). If the trial court finds the evidence sufficient to rebut the presumptionbecause the application of the Guidelines would be unjust or inappropriate based upon the best interest of the chi ldren or th e “equity between the parties,” the court must make such a find ing in writing and “state the amount of support that would have been ordered under the c hild support guidelines and a justification for the variance from the guidelines.” T .C.A. § 36- 5-101(e )(1) (1 996); see also Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.02(7). As for the situations to which the Guidelines apply, the Guidelines provide the following: The guidelines are designed to apply to

situations where children are living primarily with one parent but stay overnight with the other parent at least as often as every other weekend from Friday to Sunda y, two weeks in the summer and two weeks during holidays throughou

t the yea r. These guideli nes are designed

to consider the actual physical custody of the child (ren), regard

less of whether custody is awarded to one parent and visitation to the other or such a

n arran geme nt is ordered to be joint custody or split custody. In situations where overnight time is divided more equally betwee n the par ties, the c ourts will

have to make a caseby-case determination as to the appropriate amount of su pport .

. . .4

Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.02(6). It is conceded that the trial court applied the Guidelines to deter mine the r

elative c hild support obligations of the parties and we find no error in this determination. Alternatively, Wife argues that the trial court failed to consider se ver al factor s in its application of the Guidelines. First, she points outthat the trial court failed to consider that she has been pro viding med

ical insur ance on all of the

childre n. Wif e asser ts t hat, under the Guideline s, this is a fa

ctor justi fying an u

pward a djustment in the amou

nt of Husb and’s ch

ild support payments. Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4.-04(1)(a). Wife relies on Carden v. Carden , No. 01-A-01-9502-CH00042, 1996 WL 68972 98 (Tenn
. Ap p. Nov. 22 , 1995), in which the

trial cou rt allowe d a wife w

ho was pa

ying child support to deduct from her support

payments the amount that she was paying for the children’s medical coverage. Id. at

*2. The husband appealed, arguing that this credit was contra ry to the Guidelines. Id. at *4. Af ter reviewing the

Guideline s, this Cour

t stated th e following: The guidelines contemplate that the obligor parent will be responsi ble for providing medical insurance for the m in or children. While the

y do not af

firmativ ely plac e this obligation on the obligor parent, the gui del ines state explicitl y that the courts must in crease the amount of child support required by the guidelines if the custodial parent i s requir ed to main

tainmedical insurance for the children because the obligor parent has not

done so. Tenn. Comp. R. & Regs. r. 1240-2 -4-.02( 5); Tenn. Comp. R. & Regs. r. 1240-2-4-.04(1)(a) (1994). We interpret the guidelines to require the obligor pare nt to pay for t

he childr en’s me dical insuranc e in addit ion to whatever other child support

might be required. The courts have littlediscretion with regard to this obligation and may only depart from the g

uideline s’ requi

rements if they make wri tten, spe cific findings concer

ning why it w ould be un

just or in appropri ate to require a particular obligor pare nt t o pay for the children’s insurance. Id
. Because the trial court in that ca se did not m ake any written f indings tha

t it would be

unjust
or inapprop riate fo r the wif e to pay th e premiu ms for her children’s medical insurance, the Court held that the trial court should not hav e allowe d her to c redit the se amount s against her chil d support obligations. Id. Under the Guidelines, Wife is the obligor parent of Drew McCollum, and Husband is the3 The Guide lines pro vide that

“the par ent with w

hom the ch

ild(ren) live prima

rily will be re ferre d to as the

obligee a nd paren t with whom t

he child( ren) do n ot live primarily will be referred to as the obligor.” Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.03(1).

4 In 1994, Wife filed a Motion to Enforce Decree with Respect to Child Support and a Motion to Modify Decree with Respect to Medical Insurance and Medical Expenses. Husband r

esponde d, asser

ting that th

ere had been no s ubstantia

l or mater ial chan ge in circumstances warranting a modification of the divorc e decree with regard to medical insurance or expenses. After a he aring, the trial court entered an order tha t “modified” Husband’s child support obligations insofar as he was ordered to pay 41% of his income or $150 per week, whichever was gre ater, pursuant to the Child Support Guidelines. The trial court made no mention as to any modification of Wife’s obligation to pay for medical insurance on all of the children. 5 obligor parent o f Zada a

nd Rachel McCollum. 3 In addition to their respective child support obligations under the Guidelines, Wife should be required to pay for medical insurance for one child, and Husba nd should be r equired to pay for medical insurance for two c hildren. The statement of the evidence indicates that Husband “testified that he [wa s] in the process of getting [medica l] insurance on the children.” This, together with the original divorce decree requiring Wife to provide medical insurance on all of the children, leads us to conclude that Wife was, at least at the time of the trial of

this cause, still providing medical insurance on all three children. 4 The trial court did not make written findings that the Guidelines should not apply. Therefore, if they do ap

ply, Husba

nd should b e requir

ed to pay for medical insurance for the two children in Wife’s c

ustody or t

he amount

of his chi ld support

obligation s should be

increa sed to this extent. We note t

hat Wife is still req

uired to p ay for me dical insu rance f or the one child tha t is in Husband’s custody. Second, Wife asserts that the trial court erred in failing to consider Husband’s failure

to exerc ise stand ard visita tion with Rachel, the parties’ youngest child. The Guidelines provide t

hat the pe rcenta ge awar ds in th e Guid elines a

re the min

imum amount s to be awarded and

that the c ourt shall

increa se the ch

ild suppor

t award f or the fo llowing re asons:
If the child(ren) is/are

not staying overnight with the obligor for the averagevisitation period of every other weekend from Friday evening to Sunday e

vening, tw o week s during the summer and two weeks d

uri ng holiday periods throughout the year, then an amount sha

ll be added to the percentage calc ulated in the above rule to compensate the obligee for the cost of

providing care for the child(ren) for the amount of time during the average visitation period that the child(ren) is/are not with the obligor . . . . Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.04(1)(b). The stat ement of the evide nce indic ates tha

t Husband

exerci ses regular visita

tion with6

Zada, but that he sees Rachel “at his c onvenien ce.” Under the G

uideline s, courts must incre ase the child support award if the obligo r parent fails to exercise standard visitation. As stated previously, the trial court did not make any written findings justifyi ng deviation from the Guidelines and if they apply, the amount of Husband’s child support obligation should be increased. Finally, Wife asserts that the trial court erred in failing to consider that Husband’s employer provides him with a company truck. Th e Guidelines requ

ire a court to incl

ude “in kind” remuneration in its determination of the obligor’s gross income. Tenn. Comp. R. & Reg s. tit. 10, ch. 1240-2-4-.03(3)(a). This “in kind” remuneration includes “fringe benefit s such as a company car.” Id. Husband testified before the trial court that he “has the use of the truck at all times” and that “[h]is employer also provides all gasoline, insurance, upkeep, maintenance and repair on the vehicle.” Because

evidence of Husband’s use of the company t

ruck wa s before

the trial court, the trial court should have considered whether the use of the truck constitutes “in kind” remuneration under the Guidelines and added the value o f this remun eration , if any, t o Husband’s gross income. Again, withou t written findings justifying deviation from the Guideline s, the dic tates of the Guideline s should ap ply to the p articula

r circu mstance s of this
case. Although the trial court correctly deter

mined tha t the Child Su

pport Guid

elines a pply to bothobligor parents, the case should be remanded to the trial cour t for further proceedi n gs. Accordingly, the case is re mande d to the trial court to consider Husband’s child support obligation in light of his failur e to pay for medical insurance for the two c hildren in Wife’s custody, his failur

e to exer cise standard visitation with Rachel, and his use of a

company truck. The trial court should follow the dictates of the Guidelines with respect to these issues or make written fin dings sta

ting the jus tificatio n for dev iating fr om the Guid

elines. T he curr ent child support obligation of $375.0 0 per mont h will rema

in in effect until a n

ew suppor

t obligatio n is entered by the trial court. Costs of appea

l are as sessed on

e-half against a ppellant and one- half

against appellee, for which execution may issue, if necessary.

_________________________________7 W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ DAVID R.FARMER,

JUDGE

____________________________________ HOLLY KIRBY L ILLARD, JU DGE