1 Rule 10 (C ourt o f App eals). Memorandum Opin ion . – (b) The Court , wit h the conc urrence a ll a ll j duges participati ng in t

he c as e, may affi rm, reverse or modify the act ions of the t

rial court by memorand um opinion when a formal opinion woul d hav e no preceden ti al v alue . When a ca se i s deci ded by memor andum opi nion it shal l be designn ated “M EM OR AN DU M OP INI ON ,” shall not be published, and shall not be cited or relied on for any reasons in a s ubsequent unrela ted case.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON OCTOB ER 14, 20 02 Session JEREMIE CHURCHILL SPARROW v. JOHN

GREGORY SPA RROW Direct Appeal from the Chancery Court for Madison County No. 56930; The Honorable Joe C. Morris, Chancellor

No. W2001-01290-COA-R3-CV - Filed Dec ember 23, 2002

This is a child support case. Although Mother received $4000 a month in rehabilitative alimony, the trial court set her

child suppo rt obl igati on at n othi ng. Becau se the tri al court did not fully s et out its reasoning for this deviation from the Child Support Guidelines as required by statute, we reverse and remand. Tenn. R. App.P. 3; Ap peal as of Rig ht; Judgment of the C hancery C ourt Reversed and Remanded A LAN E. H IGHERS , J., de liver ed th e opi nion o f the

cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and F RANKL IN M URCHI SON , S. J., joined. Larry Rice, Laura D. Rog ers, Memphis, TN; James F. Butler, Jackson, TN, for Appellant C. Timothy Crocker, Michae l A. Carter, Milan, TN, for Appellee MEMORAN

DUM OP

INION 1 Facts and Procedural History On January 18, 2000, Jeremie C. Sparrow (Mother) filed

for an absolute divorce from John G. Sparrow

(Fathe r). A Fi nal Decree of A bsolute Di vorce w as enter ed on Nove

mb er 15, 2 000 grantin g Father

an absolu

te divorc e on the g

rounds of adulter y a nd inappr opriate marital c onduct. This Decree ga ve cust ody of the couple’s min or child to Father and orde red Mothe

r to pay child support acco rd ing to the Child Support Guidelines with the amount of Mother’s income to be-2-

determinedla te r. Fa th er wa s o rd er ed to pa y al im on y in solido of $4000 a month pay

ments for thirt

y months. After a March 30, 2001 hearing on the child support issue, the cour t set the amount of

child support to be paid by Mother to nothing “because of the hardship that [Mother] is unemploy ed.” The court also stated that it intended for the alimony to be rehabilitative alimony and modified the nature of the alimony

from in solido to rehabilitative alimony. Fa ther filed a timely a

ppeal to this Court and presents one issue for our review: I. Whether the trial court erred in its fa il ure to order Mother to pay child support for the minor child from her alimony income

. Standard of Review The findings of fact made by a trial c ourt are

given a presumpt ion of cor rectne ss that will

not be overturned unless the evidence preponderates against those finding s. See Tenn. R. App. P. 13(d); see also Bank/Firs t

Citizens v. Citizens and Assoc. , 82 S .W.3 d 259, 262 (T enn. 2 002) ( citi ng Bogan v. Bogan , 60 S.W.3d 72 1, 727 (Te nn. 2001) ). A tria

l court’sruling o n a matter of law, h owever , will be reviewed “‘under a pure de novo standard . . . according no deferenc e to the conclusions of law made by the lower c ourt[].’” Bank/First Citizens , 82 S .W.3 d at 72 7 (quo ting Southern C onstructo rs, Inc. v. Loudon County Bd. of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001)). When reviewing a trial court’s decision

to deviat e from the C hild

Support Guidelines, we apply the “ abuse of discretion” standard. Tallent v. Cates , 45 S.W.3d 556, 560 (Tenn. Ct. App. 2000). Law and Analysis The Child Support Guidelines of our state “have the force of law.” State ex rel. Wrzesniewski v. Miller , 77 S. W.3d 195, 197 (Tenn. Ct. App. 2001). These guidelines direct that alimony be included in the calculation of a child support obligor’s gross income. T ENN . C OMP . R. & R EGS . R. 1240-2-4 -.03. The

statute th at furthe

r contro ls this cas e reads

as follow s: In making its determination concerning the amount of support of any minor chil d or children of the parties, the court shall apply as a rebuttable presumption thechi ld support guidelines as pro vi ded in th is sub sec ti on. If the cour t finds tha t evidenc e is sufficient to rebut this presumption, the court shall make a written finding that the application of the child support guidelines would be unjust or inappropriate in that particular case, in order to provide for the best interest of the child(ren) or the equity betweenthe parties. Findings that the application of the guidelines would

be unjust or inapprop riate shall state the amount of support that would have been ordered under the child supp ort guid

elines a nd a justif ication f or the va riance from the g

uideline s. T ENN . C ODE A NN . § 36-5-101(e)(1)(A).-3-

We have only

the tech nical re cord bef

ore us. T his record shows tha

t a hear ing on the parties’ divorce was held over several day s and that in the Final Decree of Divorce , the lower court determinedthat Mothe

r would be

require d to pay

child support according to the Guid elines a t a rate depending on her inc ome which would be determined at a later

date. Father moved the court to set the amount of

child support and a hearing was held. We hav e no tr anscri pt of t his h earing, altho ugh counsel for

Father did provide a narrative in which he states that no evidence was presented at the hearing and that the lower court’s decision was based on the representation of Mother’s counsel that she is unemplo ye d and is using the $4,000 she receiv ed in alimo ny e ach month to rehab ilitate he

rself throu gh education. The lower court issued a written order that denied Father’s Motion to Set Child Support“becau se of the

hardship that [Mother] is unemployed.” This statement is the entirety of the lower court’s ruling on the issue of setting a c hild support amount. As stated in t

he statute above, a court may

deviate from

the Child Support Guidelines when evidence is prese

nted to ove

rcome the presumptions they cre ate. The statute further states that when such a deviat

ion is appr

opriate , “the co

urt sh allm ake a written finding that the application of the child support guidelines would be unjust or inappropriate in that particular case, in order to provide for the best in

terest of the child(ren) or the equity between the parties” and that the written finding

“ shall state the amount of support that would have been ordered unde r the child support guidelines and a justification for the varian ce from the guidelines.” T ENN . C ODE A NN . § 36-5-101(e)(1)(A) (emphas is added). The written findings of the lower court in this case does not mee t this statutory standard. Thus, we must reverse and remand f or proceedings consistent with this opinion. Conclusion For the foregoing reasons, we re verseand remand this case to the trial court for further procee dings consistent

withthis opinion. Costs are taxed to Mother, Jeremie Churchill Sparrow, for wh ic h e xe cu ti on ma y is su e n ec es sa ry.

___________________________________ ALAN E. HI

GHERS, JUDGE