FILED

July 1, 1998

Cecil W. Crowson

Appellate Court Clerk

IN RE: )

JASON RYAN STEPHENS )

)

PAMELA RENEE STEPHENS )

)

Petitioner/Appellant, ) 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, Tennessee 37129

ATTORNEY FOR PETITIONER/APPELLANT

W. KENT COLEMAN

14 Public Square North

Murfreesboro, Tennessee 37130

ATTORNEY FOR RESPONDENT/APPELLEE

REVERSED AND REMANDED

WILLIAM B. CAIN, JUDGE
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OPINION

This appeal involves a biological father's obligation to support his

thirteen year old son. 

Appellant Pamela Renee Stephens is the mother of Jason Ryan

Stephens age thirteen years and appellee James Callaway is the natural father of

Jason Ryan Stephens.

At the time Ryan was born Mr. Callaway was married to Anita M.

Callaway and they had one minor child. Subsequent to the birth of Ryan, James

and Anita Callaway had three additional children and at the time of the trial court

proceedings which are the subject of this appeal, James and Anita Callaway and

their four children were living together at Saint Simons Island, Georgia where

Mr. Callaway was employed as Human Resource Manager for Rich-Seapak, a

manufacturer of frozen foods.

Following a blood test in August of 1987 the Juvenile Court of

Rutherford County, Tennessee ordered Mr. Callaway 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 Ryan. At the time of this August 1987 order Mr.

Callaway's annual income was approximately $35,000.00. 

In the ensuing years Mr. Callaway increased his support payments

without the necessity of a court order to the point that at the time of the hearing

in the trial court of October 22, 1997 he was paying $460.00 per month, together

with half of Ryan's medical expenses.

On June 10, 1997, appellant filed a petition seeking an increase in child

support asserting a change in circumstances. This petition was 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 the amount of child support to be paid by the

respondent should be based upon the guidelines promulgated
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by the Department of Human Services, which amount this

court finds to be $460.00 per month; that the respondent fails

to exercise visitation with the minor child thereby justifying

an upwards deviation from the child support guidelines in the

amount of $40.00 for total child support of $500.00. . .

Thus the trial court set future child support at $500.00 per month and

awarded $1,200.00 in attorney's fees to counsel for appellant.

From this judgment appellant filed her notice of appeal on October 31,

1997.

The proof at trial established the gross income for Mr. Callaway in

calendar year 1995 to be $64,029.44 with his 1996 gross income being

$62,973.33. His earnings for 1997 through September 21 were $50,941.77.

Based upon all of the evidence the trial court found Mr. Callaway's

annual income to be $67,680.00 gross and there is little room for serious dispute

in the record about this amount of gross income.

While the final order of October 22, 1997 recites correctly that the

Tennessee Department of Human Services Child Support Guidelines were

applicable the trial judge undertook to take into consideration the obligations of

Mr. Callaway to his four children living in his household with his wife Anita.

In making this determination the trial court observed:

There is a court authority throughout the State of Tennessee

that says I am just supposed to give you 21% of his net

income, and there is an authority for that.

I personably don't believe in that. He's got a family to

support. Other than this child, he's got four other children;

and I think all children are just as important as the other.

This statement by the trial court is in conformity with Adams v. Reed,

874 S.W.2d 61 (Tenn.App.1993).

It is noted that Adams v. Reed was decided by the Eastern Section of
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the Court of Appeals on November 19, 1993, and an application for permission

to appeal was denied by the supreme court on April 4, 1994.

On September 29, 1994, the Department of HumanServices Guidelines

for Child Support were amended with an effective date of December 14, 1994.

The effect of this amendment is discussed by this court at length in Kirchner v.

Pritchett, 1995 WL 714279 issued December 6, 1995. It is noted that Kirchner

v. Pritchett also involved an appeal from the Juvenile Court of Rutherford

County.

In construing the December 14, 1994 amendment to the guidelines this

court said:

 **5 The recent changes in the guidelines affect several of

the issues involved in this case. The parties and the juvenile

court should recognize that they will affect the amount of Mr.

Pritchett's child support obligation in the following

particulars:

1. Mr. Pritchett has the burden of proving his income

and expenses. If the juvenile court finds that his proof is

unreliable, it shall presume that his gross income is $25,761

in accordance with Tenn. Comp. R. & Regs. r. 1240-2-4-

.03(3)(e).

2. The guidelines presume that the noncustodial

parent is paying the required federal, state, and local taxes.

See Tenn. Comp. R. & Regs. r. 1240-2-4-.03(4). thus, the

amount of Mr. Pritchett's child support should be based on

the presumption that he has or will pay the appropriate taxes,

and the fact that he has not paid federal income taxes should

not affect the amount of his child support obligation.

3. Mr. Pritchett may not deduct payments for the

support of his other children unless these payments are being

made pursuant to a court order. See Tenn. Comp. R. & Regs.

r. 1240-2-4-.03(4). (FN5)

4. Mr. Pritchett cannot request the juvenile court to

deviate from the guidelines solely because he is supporting

other children unless he can demonstrate an extreme

economic hardship. See Tenn. Comp. R. & regs. r. 1240-2-4-

.03(4).

5. The amount of Mr. Pritchett's child support should
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be increased if he is not providing medical insurance for 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 he is not exercising the visitation

contemplated by the guidelines. See Tenn. Comp. R. &

Regs. r. 1240-2-4-.04(1)(b).

Kirchner v. Pritchett, 1995 WL 714279 (Tenn.App.1995).

The trial court thus takes issue with the guidelines' requirements that

Mr. Callaway may not deduct payments for the support of his children other than

Ryan unless such payments are made under 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 same

trial court found in the hearing below that no such extreme economic hardship

existed.

Addressing this same problem in footnote the Kirchner court observed:

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).

Howeverstrongly the trial court or an appellate court may disagree with

the guidelines the legislative mandate is clear and courts have no choice but to

apply the guidelines when the court finds no legitimate basis for deviating

therefrom.
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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 simple 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.1993).

The guidelines providing no explicit requirement as to the amount to

be awarded in upward deviation because of the failure of Mr. Callaway to

maintain regular visitation with Ryan this court will not disturb the finding of the

trial court in this respect.

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

Juvenile Court of Rutherford County, Tennessee with directions to fix the child

support obligation of Mr. Callaway in conformity with the child support

guidelines as amended on December 14, 1994.

Costs of this cause are assessed against the appellee.

_______________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________
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HENRY F. TODD, PRESIDING JUDGE

__________________________________

BEN H. CANTRELL, JUDGE