# FILED
July 1, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN RE: ) JASON RYAN STEPHENS ) ) PAMELA RENEE STEPHENS ) ) Petitioner/Appell

ant, ) Appeal No.

) 01-A-01-9801-JV- 00043 v. ) ) Rutherford Juvenile JAMES CALLAWAY, ) No. 9600 ) Respondent/Appellee. )

COURT OF APPEALS OF TENNESSEE
APPEAL FROM THE JUVENILE COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE
THE HONORABLE DAVID LOUGHRY, JUDGE

PETER V. HALL 8 Lincoln Square 1535 West Northfield Boulevard Murfreesboro, T

ennessee 37129 ATTORNEY FOR PETITIONER/APPELLANT W. KENT COLEMAN 14 Public Square No

rth Murfreesboro, T

ennessee 37130 ATTORNEY FOR RESPONDENT/APPELLEE

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

This appeal involves a biol ogical father's ob

ligation to support his thirteen year old son. Appellant Pamela Rene

e Stephens is th

e moth er of Jason Ryan Stephens age thirteen years and appellee James Callaway

is the natural fathe

r of Jason Ryan Steph

ens.
Atthe time R yan was bo rn Mr. Ca llaway was married to Anita M. Callaway and they had one m inor child. Subseque

nt to the birth of Ry

an, James and Anita Callaway had three additional children and at the time of the trialcourt proceedings which are the subject of this appeal, James and Anita Callaway and their four children wer

e li vin g together at Saint Simons Island, Georgia where Mr. Callaway was employed as H uman Resource Manager f or Rich-Seapak, a manufacturer

of frozen foods. Following a blood test in August of 1987 th e Juvenile Court of Rutherford County, Tennesseeordered Mr. Cal laway to pay

child support to Ms. Stephens in the amount of $60.00 per week plus half of the medical expenses incurred on behalf of Ry an. At th e time of this August 1987 order Mr. Callaway's annual income was appr oximately $35,000.00.

In the ensuing year

s Mr. Callaway

increased his su

pp ort paymen

ts without the necessity of

a court order to the

point that at the tim

e of the hearing in the trial court of October 22, 1997 he was paying $460.00 per month, together with half of Ry

an's medical expenses.
On June 10, 1997, appellant file d apetition seeking an inc rease in child support asserting a change in circumstanc

es. This petition w

as answered by

the appellee on July 21, 1997 and trial of the issues on October 2, 1997 resulted in
a judgment of

the juvenile court

of October 22, 1997

holding, in part, as

follows:

. . . That t

he amount of child s

upport to be paid by

the respondent

should be based upon

the guidelines promulgated-3- by the Depart ment of Human Ser vices, which am

ount this court finds to be

$460.00 per month ; that the respondent f ails to exercise

visitation with the m

inor child thereby j ustifying an upwards deviation

from the child support guidelines in the amount of $40.00 for tot al child support o f $500.00. . .

Thus the trial court setfuture child support at $500.00 per month and awarded $1,200.0

0 in attorney's f

ees to counsel for a

ppellant.

From this judgment

appellant filed her notice of

appeal on October 3 1, 1997.
The proof at trial esta blished the gross in

come fo r Mr. Callaway

in calendar year 1995 to be $64 ,029.44 with his 1996 g ross in come being $62,973.33. His ea

rnings for 1997 through S eptember 21 w ere $50,941.77.
Based upon all of the evidenc e the trial court f

ound Mr. Call a way's annual income to be $67, 680.00 gross and there is lit tle room for se

rious dispute in the record about this amount of gross income.

W hile the final order of October 22, 1997 re cites correctly

that th e Tenne ssee Department of Human Services Child Support Guidelines wer e applicable

the trial judge unde

rtook to take into considerat ion the obligations of Mr. Callaway to his four children living in his household with his wife Anita. In making this det

ermination the trial court observe d: There is a court authority

throughout the State of Tennessee that says I am just supposed to give y ou 21% of his net income, and the

re is an authority

for that. I pers onably don't belie ve in that. He's g

ot a family

to support. Other than this chil d, he 's go t four other childre n; and I think all children are just as important as the other.

This statement by

the trial court is in

conformity

with Ada ms v. Reed , 874 S.W.2d 61 (Tenn.App.1993).

Itis noted that Adams v. Reedwas decided by the Eastern Sec

tion of-4-

the Courtof Appeals on Novem ber 19, 1993, and an application for permission to appeal was denie

d by the suprem

e court on April 4,

1994.
On September 29, 1994, the Department of Human Services Guidelines for Child Support we

re amended w

ith an effective

date of Decem

ber 14, 1994. The effect of this am

endment is discus sed by this court a t length in Kirchner v. Pritchett , 1995 WL 714279 issued December 6, 1995. It is noted that Kirchner
v. Pritchet

talso involved an appeal from the Juvenile Court of Rutherford County.

In construing the Dece mber 14, 1994 am

endment to the guidelines this court said: **5 The recent chang

es in the guidelines af

fect several o

f the issues involved in

this case. The

parties and the juv

enile court should recognize that they will affect the amount of Mr. Pritchett's child sup port obligation in the f ollowing particulars: 1. Mr. Pritchett

has the burden of prov

ing his i ncome and expenses. If the j uveni le court finds that his proof is unreliable, it shall presume that his gross income is $25,76 1 in accordance with Tenn. Comp. R. & Regs. r. 1240-2 -4- .03(3)(e). 2. The guidelines pres ume that the noncustodial parent is paying the required fe deral, state, and local taxes. See Tenn. Comp. R. & Regs. r. 1240-2- 4-.03(4). thus, the amount of Mr. Pritchet

t's child supp ort should be based on the presumption

that he has or will pay the appropriate ta xes, and the fact that he has not paid federal income taxes should not affect the am

ount of his child support o bligation. 3. M r. Pritchett ma

y not deduct pay

ments f or th e support of his other children unles s these paym ents are being made pursuant to a court order. See Tenn. Comp. R. & Regs. r. 1240-2-4-.03(

4). (FN5) 4. Mr. Pritchett canno t request the juven ile court to deviate from the guidel

ines solely beca

use he is supporting otherchildren unless he c a n demon strat e an ex treme economic hardship. See Tenn. Comp. R. & regs. r. 1 240-2-4- .03(4). 5. The amount of Mr. Pritchett's child support should-5- be increased if

he is not providing m

edical insurance f

or his son. See Tenn. Comp. R. & Regs. r. 1240-2-4-.04(1)(a). 6. The amount

of Mr. Pritchett's child support should be increased if

h e is not exercising the visitation con templated

by the guidelines. See Tenn. Comp.R. & Regs. r. 1240-2-4-.04(1)(b). Kirchner v. Pri

tchett , 1995 WL 714279 (Tenn.App.1995).

The trial court thus takes issue with the guidel in es' requirements that Mr. Callawaymay not dedu ct payment

s for the support of his children other than Ryanunless such payments are made unde r a court order and

further can not request deviation from the guidelines solely because he is supporting other children unless he can demonstrate an extreme economic hardship. The s a me trial courtfound in the hearing be low that no such extre

me economi

c hardship existed.
Address ing this same problem in footnote the Kirchner court observed : FN5. A fter

criticizing the Oc

tober 1989 version of th

e guidelines for not recognizing a pare nt's obligation to support chil dren in the absence of a court order, another panel of this cour t held that voluntary child support should be considered in set ting child supp ort. 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 pare nts credit for voluntary child support payments, t he amended guidelines spe cifically

state that voluntary

child support canno

t b e deducted from gross inco

me and cannot

be used as a basis for deviating from the guidelines unless the p ayme nts involve extre me economic hardship. Tenn. C omp. R. & Regs. r. 1240-2-4-.03(4). 1240-2-4-.0-3(4); Kirchner v. Pri tchett , 1995 WL 714279 (Tenn.App.1995).

However stron gly the trial cou rt or an appellate c

ourt may dis agree with the guidelines the

legislative mandate is clear and courts have no choice but to applythe guidelin es when t he court finds no legit

imate basis for

deviating there from.-6- Childsupport in Tennessee is s tatutorily gover ned by T.C.A. § 36-5-101. Section 36-5-101(e)(1) provides that "[i]n making its deter

minati on con cerning the am ount of support of any m

inor child . . . of

the parties, the

court shall applyas a rebuttable presumption the child support guid eline s as provided in this subsection." The General Assembly adopted the child support guidelines promulgated by the Tennessee De

partment of H

uman Service s in order to maintain compliance w

it h the Family Su

pport Act of 1988, codified in various sections of 42 U.S.C. W

hile they add a measureof c onsistency to child support award s statewide, the guidelines provide mor

e than simple percen

tages to be applied against the net incom es of non-custodial pa

rents. They also embody "the rules prom ulgated by the De

partment of Human Services in com

pliance with

[the] requirem

ents [of the Family Su

pport Act of 1988] ." Hence, the p urp oses, premises,guidelin es f

or compliance,

and criteria for deviation from the guidel

ines carry w

hat amounts to a legislative mandate. Nash v. Mulle , 846 S.W.2d 803, 804 (Tenn.1993).

The guidelines providing no e xplicit requirem

ent as to the

amount to be awarded in upward deviation because of the failure o f Mr. Calla way to maintain regular visitation with Ryan this court will not disturb the finding of the trial court in this r

espect.
The judgment of

the trial court is r

eversed and the case remanded to the JuvenileCourt of Rutherfor d County, Tenne ssee with directio ns to fix the child support o bl igation of Mr. Callaway in conformity with the child support guidelines as am

ended on Decem

ber 14, 1994. Costs of this cause are assessed against the appellee.

___________________________ _ __ _ WILLIAM B. CAIN, JUDGE CONCUR:

__________________________________-7-

HENRY F. TODD, PRESIDING JUDGE

__________________________________ BEN H. CANTRELL, JUDGE