### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Februar y 10, 2 003 Session

RONNIE R. CO X v. AMY R. COX Appeal from the Probate and Fam ily Court for Cumberland County No. 7040 Steven C. Douglas, Judge

FILED MARCH 31, 2003
No. E2002-02034-COA-R3-CV

Ronnie R . Cox (“ Husband”) and Amy R. Cox (“Wife”) were divorced in 1993. At that time, the parties had two minor children. They subsequently had anothe

r child. In 1998, the parties enter ed into an agr

eed orde r that pro vided for

joint phy sical an d legal

custody witheach parent having equal time with the children. The agreed order also required Husband to pay $200 per month to Wife for chil d-care e xpenses. In 2002, Husband filed a Petition for Modification seeking to be relieved of the $200 per month obligation because Wife’s income had increa sed substa

ntially and was equal to, or greater than, Husband’s. The Trial Court found, inter alia , the $200 payments wer e contractual in nature and denied the Petition for Modification. Husband appeals. We reve rse. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate and Family Court Revers ed; Case

Remande

d.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., and C HARLES D. S USANO , J R ., J., joined.

Bre tt A. Y ork a

nd Ke vin R. Bryant, Cross ville , Ten ness ee, f or the Appe llant , Ronn

ie R. C ox.
Tom B eesl ey , Cros svill e, Te nnes see, for t

he Ap pellee, Am

y R . Cox.-2- OPINION Background
Husband and Wife w ere divo rced in A ugust of 1993. At that time, the parties had two minor children. The Marital D issolution Agreem ent ente red into by the parties de signated Wife as the primary custodian

of the ch ildren, g ranted H usband lib eral visi

tation, a nd requir ed Husba nd to pay child support of

$400 per month as pe

r the the n curre nt child su

pport gu idelines. At some point after the divorce, the parties resumed c ohabitation and had another child in 1996.

In August of 1997, the parties were no longe r together. They enter

ed an agreement wherein Husband acknowledged paternity of the child born in 1996 and the parties agreed to share joint legal custody

with primary custody

being vested

in both parents as to all three children. Even thou gh the parties agreed to spend equa l time with the children, Husband agreed to continue to pay $400 per month to Wife as set out in the Marital Dissolution Agreement.

In August o f 1998, Hu sband fil ed a mo tion to terminate child support that was denied. Then in November of 1998, the part ies ente red into an agreed order that pr

ovided for joint physical and legal custody

with each parent having equal time with the children. This agreed order f urther required Husband t

o pay Wife $200 p er month

for child-care expenses. I n addition, the agreed order provided that if Hu sband be came mor e than thi rty days delinquent in his child-car e obligation, Wife could seek and obtain a wage assig nment.
In April of 2002, Husbandfiled a Petition for Modification asking to be relieved of his obligation to pay $200 pe r month to Wife based upon his belief that Wife’s income had increased substantially and was equa l to, or greater than, Husband’s income.
In July o f 2002, a

hearing was held

on Husband’s Petiti on for Modi fication. Testimony

at the hearing showed that at the time of the entry of the 1998 agreed order , Wi fe was earning approximately $14,500 per y ear and Husband was earning approximately $28,000 per yea

r. Wife denied the $200 pay ments called for

in the 1998 agreed order a re child support. Rather, Wife asserted the obligation

is a contractual one. Husband argued the $200 pay

ments are child support and, thus, modifiable. Testimony also showed Wife currently e arns approximately $36,000 per y ear and Husband currently

earns approximately $32,000 per year. Both parties testified the children are healthy, happy

and doing well.
The Trial Court

found Husband’s obligat

ion to pay $200 per month was “

bey ond his legal duty to pay

child support and was contractual in nature. . . .” The order further found the payment amount had not been determined based upon the parties’ income, the agreement di d not specify the payments would stop upon the occ urrence of some contingency , and there had been no material change in Husband’s income. The Trial Court denied the Petition for Modification. Husband appeals.-3- Discussion
Alth ough not stated exactly as such, Husband r aises one issue on review: whether the Trial Court erred in deny

ing the Petition for Modification.
The record o n appea

l contains only Husband’s Petition for Modifica tion, Wife’s Answer to the Petition for Mo dification, an Amendment to Wife’s Answer to the Petition for Modification, the Tria

l Court’s O

rder on t he Petitio n fo r Modification, and an extremely brief Statement of the Evidence. While the record does not contain a copy of the 1998 a

greed order that Husband seeks to have modified, the Statement of the Evidence and the Trial Court’s Or der denying the Petition for Modification disclose the relevant provisions of the 1998 agreed order.

Our review i s de novo upon the record , accomp anied by a presum ption of c orrect

ness of the findings of

fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).

The Trial Cour

t based itsruling, in part, u pon the fa ct the 199 8 agre ed order

didnot specify th e p aym en ts wo ul d s to p u po n t he oc cu rr en ce of so me co nt in ge nc y. Tenn. Code Ann. § 34- 1-102, however, provides “[t]he duty of support shall continue until the child graduat es from high school or the class of which thechild is a me mber w hen th e chil d atta ins ei ghteen (18) years of age gradu ates, whichever occurs first.” Tenn. Code Ann. § 34-1-102(b) (2002). A s the term ination da te of child supp ort pay

ments is pro vided by

statute, t here wa s no need

for the p arties to

specific ally provide for a termination date. Thus, the fact that the agreement does not provide for ter mination upon the occu

rrence of some c ontinge

ncy has no be aring u

pon the iss ue of whe

ther the pay ments were child support.

Our Supre

me Court ha s held:
When the husba

nd and wif

e contra ct with respect to the legal duty

of child supp ort, upon approval of that contract, the agr eement of the pa rties bec omes merg ed into the decreeand loses its contractual nature. . . . [T]he reason for stripping the agreement of the parties of its contractual nature is thecontinuing statutory powe r of the Court to mo di fy i ts te rm s w he n c ha ng ed ci rc um st an ce s j us ti fy.
Penland v. Penland , 521 S.W.2d 222, 224 (Tenn. 1975).

Husband and Wife contr

acted w ith re sp ec t t o t he le ga l d ut y of ch il d s up po rt . In it ia ll y, Husband paid $400 per month to Wife per the thencurrent guidelines. Several y ears later, the parties agreed to split their time with the children equally. Subsequently , the parties agreed to reduc e Husband’s child support payments to $200 per month. At that time, the parties weremodifying the child support pa

yme nts initiated in the Marital Dissolution Agreement per the child support guideli nes. The parties were contracting a bout payments for the support of the minor children. The-4-

designation of the $200 per month pay ment in the 1998 agreed order asbeing for child-care expenses do e s not mean t

hat those pay ments wer

e not chil d support. These pa yme nts are f or the ultimate benefit of the child ren rat her than Wife. Mothe

rs and fa thers ce rtainly are fr ee to ag ree tha t child support payments will be highe

r than mandated by

the guidelines, and a trial court may approve

such an agreement. That is what happened here. As such, u pon appr oval by the Tria l Court, the

parties’ agreement

merged into the Trial Court’s 1998 agreed order and lost its contractual nature. We hold the $200 per month payments a re child support and are modifiable.
We next consider whether m odificat ion is proper. The “Child Support Guidelines indicate that an award of child support is made to the parent with whom

the child primarily lives.” Gray v. Gray , 78 S.W.3d 881, 884 (Tenn. 2002 ). However, as our Sup reme Cour

t explained

in Gray , the support guidelines state where overnight parenting time is divided more equally be

tween the parents, the courts will need to make a case-by -case determination of the appropriate a mount of support. Id

. “‘If the child(re n) spend more time with the obligor than is assumed by Tenn. Comp. R

. & Regs., ch. 1240-2-4-.02(6), . . . the oblig or’s child support payments should be r educed.’ Downward

deviation could conceivably include even a downward deviation to zero child support.” Id

. (quot ing Jones v. Jones , 930 S.W.2d 541, 545 n.5 (Tenn. 1996) (alteration in original). “[O]nly the parent who spends the great er amoun t of time with the child should

be awar ded child support, and that parent, by

statutory definition, will alway s be the primary r esidential parent.” Id

. We co ntinue our analysis by noting neither parent in this case is designated a s the primary residential parent. See Te nn. C ode Ann. §§ 36-6-402(5) (2002) and 36-6-404 (2002) (requiring a permanent parenting plan with one parent designated as the primary residential parent). The part ies were

divorce d in 1993, a

nd Tenn. C ode Ann. § 36-6-404 specific ally

states it is “inappli cable

to parties who were divorced prior to July 1, 1997. . . .” Tenn. Code Ann. § 36-6- 404(a) (2002). Thus, in this case thereis no primary residential pa rent. Neither

is there one parent “with whom the child resides more than fifty perc ent (50%) of the time.” Tenn. Code Ann. § 36-6- 402(4) (2002).

When the parties were

divorced, in 1993, Wife was the primary custodian. Several yearslater, Husband and Wife agreed to split their time with the children equally. Thus, the childre n, at a minimum, a

re spend ing more time with H

usband tha

n contemp lated by

the suppor

t guidel ines. Therefore, if Wife is entitled to any child support, a downward deviation is proper. I n addition, as bothparents have the children an equa l amount of

time and th

ere being no pr

imary residen tial pare nt, we find it proper to consider the income of both parties in determining whe ther m odifica

ti on is proper.
The evidence shows Wife’s income has increased significantly from approxima

tely $14,500 to approxima

tely $36,000 per yea

r. Although Husband’s income also has increased, f rom approxima

tely $28,000 to

approximately $32,000 per y ear, this increase is much smaller. When the parties first agreed for Husba nd to pay child support

to Wife, Husband’s income greatly exceeded Wife’s. Additionally, as our Supreme Court has stat ed, “only the pare

nt who spends the greater amount of time with the child should be awarded child support. . . .” Gray , 78 S.W.3d at 88 4. We-5-

are aware that

“the use of a comp arative

analy sis of the p arties’ earning s is imprope r under t he Child SupportGuidelines.” Id . Howev er, we believ e this spe cific ho lding of our Supre

me Court is predicated

upon there being a “parent who spe nds the greater amount

of time with the child . . .”, and while that was so when these parties divorced, it is not so now. Id

.

The situation has chang ed drama tically and now Wif

e’s inco me excee ds Husband’s. More importantly, neither pare nt spends the greater amount of time with the children, and, the refore, neither pa rt y i s entitled to child support. Given the material change in circumstanc es, we find modification of Husband’s child support is proper. After considering the entire r ecord, i n cluding the fact tha

t neither parent s pends the

great er amoun t of time wi

th the chi ldren, w e hold tha t it is appropr iatefor Husband to be relieved of his $200 per month child support obligation whether that decrea se be characterized as a downwar d deviation to zero or a decrease due to the fac t that neither party is the “parent who spends the greater amount of time with the child . . . .” Id . We, therefore, hold Husband is relieved of his obligation to pay Wife $200 per month child support.
Conclusion
The judgmen

t of the Tr ial Court isrevers ed, Husba nd is relieved

of the obl igation to pay Wife child

support, and this cause is remanded to theTrial Court for su ch furt her pro ceedin gs as may be requi red, if any , consiste

nt with this Opinion and for collection of the costs below. The costs on appeal are assessed ag ainst the Appellee, Amy R. Cox.

___________________________________ D. MICHAEL

SWINEY, JUDGE