IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

September 22, 2004 Session

TIERANY REDMOND v. CLETIDUS MARQUELL HUNT

Direct Appeal from the Juvenile Court for Shelby County

No. N6957 Kenneth Turner, Judge

No. W2004-00127-COA-R3-JV - Filed December 10, 2004

This is a child support action. The trial court awarded Mother retroactive child support, set base

child support, and ordered Father to make monthly payments into educational and future child

support trust funds. The trial court also ordered father to pay private elementary and high school

tuition, provide health insurance, and maintain life insurance. The trial court awarded Mother’s

reasonable attorney’s fees. We affirm as modified and remand.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed as

Modified and Remanded

DAVID R.FARMER,J., delivered the opinion of the court, in which W.FRANK CRAWFORD,P.J.,W.S.,

joined. HOLLY M. KIRBY, J., filed a dissenting opinion.

Robert F. Miller and Paul C. Peel, Memphis, Tennessee for the Appellant, Cletidus Marquell Hunt.

Aubrey L. Brown, Jr., Memphis, Tennessee, for the Appellee, Tierany Redmond.

OPINION

The underlying facts of this child support action are undisputed. Tierany Redmond

(“Mother”) and Cletidus Marquell Hunt (“Father”) are the unmarried parents of a minor child, T.L.,

born March 1998. Father and Mother had a brief sexual relationship while Father was in college.

Mother testified that she and Father did not “date,” and that she was also having a sexual relationship

with another man. She testified that, at the time of T.L.’s birth, she did not know who T.L.’s father

was. 

In 1999, Father completed college and entered into a six-year, multi-million dollar contract

to play professional football for the Green Bay Packers. Mother works part-time at a salary of

approximately $14,000 per year and has another minor child from another relationship. She receives

no child support from this child’s Father, nor has she sought support. T.L. has been in Mother’s
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exclusive custody since birth. They have resided in the homes of relatives and have received welfare

benefits and food stamps.

Mother testified that Father contacted her upon learning of T.L.’s birth from friends. In 2000,

the parties voluntarily participated in DNA testing which confirmed parentage. Father has no

additional children.

Mother filed a petition for support in the Juvenile Court for Shelby County in March 2003.

In her petition, Mother sought prospective child support and support retroactive to 1998; health

insurance for T.L. and payment of one-half of medical expenses not reimbursed by insurance; and

attorney’s fees. In his answer, Father asserted he did not know of T.L.’s birth until early 2000.

Father admitted a duty of support and proposed child support of $2,100 per month. Father agreed

to provide health insurance for T.L. or to reimburse Mother for the cost of health insurance.

The trial court heard the matter on July 9, 2003. By order of October 21, 2003, the trial court

confirmed and adopted the recommendations of the Referee as the decree of the court. It awarded

Mother back child support based on 21% of Father’s net income for March 1998 to July 2002, and

based on 21% of Father’s net income up to $10,000 per month for July 2002 through August 2003.

The court set prospective base child support at $2,100 per month. The trial court further ordered

Father to pay $5,000 per month into a future child support trust fund and $5,000 per month into an

educational trust fund; ordered Father to pay for private elementary and high school expenses;

ordered Father to provide health insurance and pay one-half of expenses not covered by insurance;

and ordered Father to maintain life insurance for the duration of his child support obligation. The

trial court also awarded Mother attorney’s fees of $15,000. Father filed a timely notice of appeal to

this Court.

Issues Presented 

Father presents the following issues, as we re-state them, for review by this Court:

(1) Whether the trial court erred in determining the amount of retroactive child

support;

(2) Whether the trial court erred in awarding and determining the amount of

educational trust fund payments and future child support trust fund payments;

(3) Whether the trial court erred in ordering Father to provide private grade and

high school education for the minor child.

Mother presents the following additional issues:

(1) Whether the trial court erred in setting prospective child support;
It is unclear how the trial court determined this sum. However, Father does not dispute the trial court’s 1

mathematical calculation. Rather, Father asserts the trial court erred by applying the child support guidelines in effect

prior to 2002 to determine the amount of Father’s retroactive child support obligation. 

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(2) Whether the trial court erred in failing to award interest on the award of

retroactive child support;

(3) Whether the trial court erred in failing to award all of Mother’s attorney’s

fees and costs;

(4) Whether Mother is entitled to attorney’s fees on appeal.

Standard of Review 

Our standard of review of a trial court sitting without a jury is de novo upon the record.

Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). We presume the trial court’s

findings on questions of fact to be correct, unless the evidence preponderates otherwise. Tenn. R.

App. P. 13(d). We review the trial court’s conclusions on matters of law, however, with no

presumption of correctness. Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.

2000). 

Retroactive Child Support 

The trial court awarded Mother child support retroactive to March 1998. The trial court held

that Father’s child support obligation should be 21% of Father’s net income from March 1998 to July

2002, and 21% of Father’s income up to $10,000 per month from July 2002 to August 2003. The

trial court determined that Father’s income during the related period was: $0 in 1998; $492,946 in

1999; $321,965 in 2000; $264,689 in 2001; $721,818 in 2002; and approximately $3.2 million in

2003. After applying credits for amounts previously paid, the trial court ordered Father to pay a total

of $219,670.50 to Mother in retroactive child support. It ordered Father to pay $165,000 directly 1

to Mother within 30 days, and the remaining $54,670.59 into a trust. 

We begin our analysis with the rebuttable presumption that the child support guidelines set

forth the correct amount of child support. This presumption applies to awards of retroactive child

support as well as to prospective child support awards. State ex rel. Anderson v. Taylor, No. M2001-

02193-COA-R3-CV, 2003 WL 21480087, at *4 (Tenn. Ct. App. June 27, 2003) (no perm. app.

filed). Tennessee Code Annotated § 36-5-101 

requires that there must be a rebuttable presumption in all child support cases that the

amount of child support determined by an application of these guidelines is the

correct amount to be awarded unless the court makes a written or specific finding on

the record that the application of the guidelines would be unjust or inappropriate in

a particular case. . . . The rubuttable presumption must be applied to all child support
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awards even if the order is being sought for a retroactive period before October 13,

1989.

Tenn. Comp. R. & Regs. 1240-2-4-.01(2)(emphasis added). Thus, although the trial court may, in

its discretion, deviate from the guidelines when determining retroactive child support, this discretion

is narrow and must be exercised within the constraints and limitations of the guidelines. State ex rel.

Anderson v. Taylor, 2003 WL 21480087, at *5 (citing State ex rel. Stewart v. Lockett, No. M2001-

00809-COA-R3-DC, 2002 Tenn. App. LEXIS 66, at *8 (Tenn. Ct. App. Jan. 30, 2000)(no perm.

app. filed); Berryhill v. Rhodes, 21 S.W.3d 188, 193 (Tenn. 2000)); but see Hickman v. Willis, No.

M2003-00574-COA-R3-JV, 2003 WL 22019110, at * 4 (Tenn. Ct. App. Aug. 27, 2003)(no perm.

app. filed). Further, if the court determines a deviation from the guidelines is warranted in

consideration of the best interests of the child(ren) or the equity between the parties, it must make

“a written finding that the application of the child support guidelines would be unjust or

inappropriate[.]” Tenn. Comp. R. & Regs. 1240-2-4-.01(3). The court abuses its discretion when

it deviates from the guidelines without making written findings based on the evidence. Taylor, 2003

WL 21480087, at *4.

The provisions of the child support guidelines specifically applicable to high-income obligors

were amended between the time T.L. was born in 1998 and the date of the July 2003 hearing. Prior

to July 2002, in situations where the net income of the obligor parent exceeded $10,000 per month,

the court had the discretion to consider a downward deviation from the guidelines if the obligor

parent demonstrated a deviation was reasonable and in the best interest of the child in light of the

circumstances. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(1997). Thus, had Father been ordered to

pay child support at the time of T.L.’s birth in 1998, child support would have been set at 21% of

Father’s net income unless Father had carried the burden of demonstrating that a downward

deviation from the guidelines was reasonable in light of the circumstances. The child support

guidelines were amended in 2001, however, and the guidelines in effect since July 2002 provide that,

where the net income of the obligor parent exceeds $10,000 per month, the custodial parent must

prove by a preponderance of the evidence that child support based on income amounts in excess of

$10,000 per month is reasonably necessary to provide for the needs of the minor child(ren). Tenn.

Code Ann. § 36-5-101(e)(1)(B)(2001); Tenn. Comp. R. & Regs. 1240-2-4-.04(3). Thus, prior to

2002, the presumptive child support amount was calculated as a percentage of the obligor’s net

income unless the obligor demonstrated a downward deviation was warranted. Subsequent to July

2002, however, the presumptive amount in cases of high-income obligors has been the appropriate

percentage of $10,000 unless the custodial parent demonstrates an upward deviation is warranted.

The burden of proof falls upon the parent seeking a deviation from the guidelines. The

determinative question here is whether the pre-July 2002 guidelines or the post-July 2002 are

applicable. Father does not argue that the trial court erred by awarding retroactive child support or

that the trial court should not have awarded retroactive child support based on the child support

guidelines. Rather, Father asserts that the trial court should have applied the guidelines in effect at

the time of the July 2003 hearing, and that Mother failed to demonstrate that amounts in excess of

$2,100 per month were necessary to support T.L. from the time of her birth in 1998. Mother, on the
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other hand, argues that to apply the amended guidelines, which became effective in July 2002, would

amount to a retroactive application of law.

The trial court generally will apply the statute in effect at the time of the hearing. Connell

v. Connell, No. 03A01-9808-CV-00282, 2000 WL 122204, at *3 (Tenn. Ct. App. Jan. 25, 2000)(no.

perm. app. filed)(holding: trial court properly applied provisions of TennesseeCode Annotated § 36-

6-108 which went into effect one day before hearing). Further, the question of who bears the burden

of proof is primarily determined by procedural rules. Thus, it is primarily a procedural matter. See

Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn. 1993); Pulaski Highway Exp., Inc. v. Terminal

Transp. Co., 493 S.W.2d 103, 108 (Tenn. Ct. App. 1972). 

In light of the foregoing, the trial court properly should have applied the provisions of

Tennessee Code Annotated § 36-5-101(e)(1)(B) and Tennessee Rules & Regulations 1240-2-4-

.04(3) which were in effect at the time of the July 2003 hearing. Thus, the burden of proof was on

Mother to demonstrate that support in excess of the percentage based on a net income of $10,000

per month was reasonably necessary to provide for the needs of T.L. The trial court made no

findings concerning this matter and there is nothing in the record to demonstrate that an upward

deviation from the guidelines was warranted for base child support. Accordingly, we affirm the

award of retroactive child support, but modify the award to $2,100 per month for the period

commencing with T.L.’s birth through August 2003, less credits for amounts previously paid by

Father. This amount is to be paid directly to Mother. 

Prospective Child Support 

The trial court determined Mother failed to establish that child support in excess of the

guideline amount was reasonably necessary to provide for the needs of T.L. Accordingly, it set

prospective base child support at 21% of $10,000 per month, or $2,100 per month, as provided by

the guidelines. On appeal, Mother asserts that Father is more than able to provide child support well

above the guideline amounts and that T.L. should enjoy a standard of living commensurate to

Father’s.

We are not insensitive to the considerable income disparity between these parents, or to the

fact that Father enjoys a life style considerably more comfortable than that of Mother or T.L.

However, the trial court made no written findings establishing that child support in excess of $2,100

per month is reasonably necessary to provide for the needs of T.L. and, having reviewed the record,

we find no evidentiary basis which would support an upward deviation from the guidelines. Mother

has failed to carry her burden of demonstrating that an upward deviation from the guidelines is

warranted for the purposes of base child support in this case. We affirm. 

Educational Trust Fund 

The trial court ordered Father to pay $5,000 per month into an educational trust for T.L. We

note, as an initial matter, that Mother did not request an educational trust in her petition for support
This reversion provision was proposed by Mother at trial. 2

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or during the hearing of this matter. However, Father does not assert the trial court erred by

establishing an educational trust fund for T.L., and has voluntarily agreed to provide a University

of Tennessee education for T.L. At oral argument before this Court, Father stated that he would be

willing to purchase a University of Tennessee education for T.L. “today.” Father contends, however,

that the trial court erred by ordering him to pay $5,000 per month into an educational trust until T.L.

reaches the age of majority, or 150 months, which would result in an educational trust of $750,000,

plus interest. We agree.

When determining whether to grant a request for a deviation, the trial court shall make a

written finding that child support in excess of the amount based on income in excess of $10,000 per

month is or is not reasonably necessary to provide for the needs of child(ren). Tenn. Code Ann. §

36-5-101(e)(1)(B)(2001); Tenn. Comp. R. & Regs. 1240-2-4-.04(3). The court may require that

sums paid above the percentage applied to income in excess of $10,000 per month be placed in an

educational or other trust fund and must make a written finding in the order supporting the basis for

such an order. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(f). 

Because Father has voluntarily agreed to provide a college education for T.L., it is not

necessary for this Court to address the propriety of the establishment of the trust itself. Parents may

agree to provide for their children above amounts required by law. See, e.g., Penland v. Penland,

521 S.W.2d 222, 224 (Tenn.1975); Hawkins v. Hawkins, 797 S.W.2d 897, 898 (Tenn. Ct.

App.1990). However, we agree with Father that the court has failed to provide any basis for the

amount of the trust. 

In light of Father’s voluntary agreement to provide T.L. with a University of Tennessee

education, we affirm the creation of an educational trust. We modify, however, the trial court’s order

that Father pay $5,000 per month into the trust for the duration of his child support obligation. An

educational trust far in excess of what would be necessary to fund even an expensive education is

neither just nor required by the guidelines. Whiton v. Whiton, No. E2000-00467-COA-R3-CV, 2002

WL 1585630, at * 11 (Tenn. Ct. App. July 18, 2002) rev’d on other grounds (Tenn. 2003). In

consideration of Father’s voluntary offer to immediately purchase a University of Tennessee

education for T.L., Father shall immediately fund the trust with an amount equal to the projected cost

of a University of Tennessee undergraduate education, including tuition and fees, books and

supplies, room and board, living expenses and incidentals, for the period when T.L. is expected to

be of college age. This will provide a post-high school education for T.L. while not limiting her to

the University of Tennessee. If T.L. fails to enroll in college or a technical/vocational school by the

time she is 21-years of age, or if she ceases to attend class for a period of over one year, any unused

portion of the fund will revert to Father. We remand for determination of this amount. 2
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Private School Education 

At the hearing of this matter, Mother indicated that she would prefer a private school

education for T.L. Father asserts there is no evidence in the record to demonstrate that a private

school is warranted for T.L. Mother argues that an upward deviation to pay for private school is

supported by the guidelines and case law. 

The guidelines provide, as a criteria for deviation from the guidelines, that “[e]xtraordinary

educational expenses and extraordinary medical expenses not covered by insurance shall be added

to the percentage[.]” Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(c). Certainly, Tennessee case law

supports an upward deviation to pay for private education where the obligor parent has the means

to provide such and it is warranted under the circumstances. See, e.g., Barnett v. Barnett, 27 S.W.3d

904 (Tenn. 2000). Father’s argument in this case, frankly summarized, is that if public school

education was good enough for him, it is good enough for T.L. 

It might be said that few children need private school education in the absence of a disability

or a special need, particularlywhere the child historically has not attended private school. However,

the guidelines clearly state that the “percentage amounts are minimums” and that “the court shall

increase the award” to provide for “extraordinary educational expenses.” Tenn. Comp. R. & Regs.

1240-2-4-.04(1)(c). The guidelines further provide that in deviating from the minimums required

by the guidelines, “primary consideration must be given to the best interest of the child(ren) for

whom support under these guidelines are being utilized in the case before the court.” Tenn. Comp.

R. & Regs. 1240-2-4-.04(5).

The trial court determined that T.L. should be afforded the opportunity to attend a private

school. In light of the equities in this case, we cannot say the court abused its discretion when it

ordered Father to provide private school education for T.L. Certainly, this deviation is within the

constraints of the guidelines and supported by case law. Additionally, in light of the equities

between the parties, it works no hardship on Father. We affirm on this issue.

Future Child Support Trust Fund 

In addition to requiring Father to purchase life insurance to secure his child support

obligation, the trial court ordered Father to pay $5,000 per month into a trust fund to secure his child

support obligation at the present amount in the event Father is injured, retires, or is otherwise unable

to meet his child support obligation. Father argues that this trust fund, which, if paid until T.L.

reaches the age of majority, will amount to approximately twice his entire child support obligation,

is not supported by the guidelines. He further argues that his situation is not different than that of

any obligor parent - all of whom may lose a job, become injured, or face changed circumstance.

Mother argues that the trust fund is supported by Tenn. Comp. R. & Regs. 1240-2-4-.04(3), Nash

v. Mulle, 846 S.W.2d 803 (Tenn. 1993), and Lee v. Askew, No 02A01-9805-JV-00133, 1999 WL

142389 (Tenn. Ct. App. 1999) perm. app. denied (Tenn. 1999).
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We being our analysis of this issue by noting that the trust funds at issue in the cases cited

by Mother were established to provide for the children’s college educations. In Lee v. Askew, the

trial court’s original order provided that the trust would be “available for extraordinary expenses of

the minor child during his minority, and for college expenses if necessary thereafter. Furthermore,

these funds would be available for use as monthly child support in the event that the respondent’s

future income should diminish to a point that it is necessary to invade this fund.” Lee v. Askew, No

02A01-9805-JV-00133, 1999 Tenn. App. LEXIS 290, at *2 (Tenn. Ct. App. Apr. 30, 1999). On

appeal, in our order on the appellant’s petition to rehear, however, this Court held:

The income will be expended solely for the child’s college expenses and will be

subject to close and reasonable scrutiny . . . . We concur with the express intent of

the trial court, that the funds in the trust be maintained for the purpose of providing

for the child’s college education. Should exigencies occur which might require an

invasion of the fund, such as extraordinary expenses of the minor child or a decrease

in the appellee’s income, the appellee may petition the . . . court for a specific finding

of need and justification for any invasion of the corpus.

Id. at *3-4. Thus, the trust fund established in Lee v. Askew was expressly intended to be an

educational trust. However, we did not rule out invasion of the trust for extraordinary exigencies

or upon a decrease in the obligor’s income where such invasion was justified by specific findings

of the court.

In the case now before us, an educational trust fund has been separately established and the

trust at issue has been established for the sole purpose of securing Father’s future child support

obligation. Additionally, the trust is not necessary to secure Father’s obligation in case of Father’s

death - the trial court ordered Father to maintain of life insurance policy for this purpose (which

Father does not appeal). Rather, it anticipates only Father’s inability to pay child support at the

current amount in case of a decrease in income.

In Huntley v. Huntley, this Court affirmed the trial court’s determination that a portion of the

obligor’s child support obligation should be placed in a non-educational trust. Huntley v. Huntley,

61 S.W.3d 329, 338 (Tenn. Ct. App. 2001). In Huntley, however, the sums directed into trust were

not funds above the guideline amounts (then 21% of obligor’s net income for one child). Rather,

the Huntley court determined that the obligor had not carried his burden of proving a downward

deviation from the guidelines was necessary, but ordered that his child support obligation be split

between direct payments to the custodial parent and into a non-educational trust. Id. The Huntley

court opined:

We agree that the duration and purpose of the Trust is atypical but also find that there

is no prohibition against this type of Trust. When the obligor has a net monthly

income in excess of $10,000, as Defendant does, the Guidelines allow funds to be

placed “in an educational or other trust fund for the benefit of the child.”
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Id. (citing Tenn. Comp. R. & Regs. 1240-2-4-.04(3))(emphasis in the original). Thus, the Huntley

court ordered payments exceeding those based on an income of $10,000 per month to be paid into

trust. 

The present case is distinguishable from Huntley, which was decided before the amendment

to the guidelines with respect to high-income obligors become effective. In Huntley, the court did

not deviate from the guidelines, but simplyplaced a portion of obligor’s child support obligation into

a trust fund. In the present case, the trial court implicitly has deviated from the guidelines, imposing

on Father a $5,000 per month child support obligation in excess of the guideline amount, to provide

for T.L.’s needs in the case of Father’s potential income reduction.

The regulations provide:

The court may require that sums paid above the percentage applied to the net income

above Ten Thousand Dollars ($10,000) per month be placed in and educational or

other trust fund for the benefit of the child and shall make a written finding in the

order supporting the basis for such an order.

Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(f)(emphasis added). Clearly, the regulations permit

trusts other than educational trusts in situations where the obligor is a high-income obligor and the

trial court has made findings supporting the need for such a trust. Although the regulations do not

specifically provide that a trust may be established solely to secure future child support payments,

neither do they proscribe such trusts where they are supported by the circumstances. Additionally,

Lee and Huntley support the proposition that trusts may be established for non-educational purposes,

and Lee supports the proposition that trusts may, upon specific findings of the court, be utilized to

provide child support upon a decrease in the obligor’s income.

In this case, as in Lee, where the obligor parent was a professional basketball player, both

Father’s income and risk of loss of employment through injury or “early retirement” may be

described as ultra-high. We recognize that, as Father asserts, it is possible that any high-income

obligor, indeed, any obligor, will suffer an injury or income reduction. However, under the facts of

this case, we believe the establishment of a future child support trust is warranted. Father’s standard

of living likely will remain high in light of his substantial current income notwithstanding a decrease

in future income; Father’s profession as a professional football player unquestionably presents a high

risk of injury; such injury likely would result in an end to Father’s current career and in a loss of

future income; and T.L. unquestionably will need future child support to meet even basic needs.

Moreover, the trust presents no financial burden to Father, and any amounts remaining in the trust

will revert to Father upon T.L.’s reaching the age of majority. 

We agree with Father, however, that the trial court’s order that Father pay $5,000 per month

into a future child support trust for an unspecified length of time (presumably for the duration of

Father’s child support obligation) is not appropriate. Such payment would result in a trust that far
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exceeds Father’s total child support obligation. We accordingly modify the trial court’s order and

order Father to pay $5,000 per month into the future child support trust until such time as the amount

in the trust equals the amount of Father’s remaining child support obligation. We remand for a

determination of this payment period. Additionally, in light of the trial court’s order that Father

maintain life insurance to secure his child support obligation in the case of his death, we order that

any amounts remaining in the trust in the event of Father’s death before T.L. reaches the age of

majority will revert to Father’s estate upon receipt of life insurance benefits by Mother. 

Interest 

Mother asserts the trial court erred by failing to award interest on the award of retroactive

child support. The code provides, in pertinent part:

If the full amount of child support is not paid by the date upon which the ordered

support is due, the unpaid amount is in arrears and shall become a judgment for the

unpaid amounts and shall accrue interest from the date of the arrearage at the rate of

twelve percent (12%) per annum. All interest which accumulates on arrearages shall

be considered child support.

Tenn. Code Ann. § 36-5-101(a)(5)(2001). Mother’s argument, as we perceive it, is that, upon the

trial court’s award of retroactive child support, she become entitled to 12% interest per annum on

the child support amounts payable for each year. 

In his reply brief, Father asserts Mother waived this issue by failing to raise it in the trial

court. A party may not raise an issue for the first time upon appeal. Cantrell v. Walker Die Casting,

Inc., 121 S.W.3d 391, 396 (Tenn. Ct. App. 2003). Upon review of the record, we find the issue of

interest was not raised in the trial court and, therefore, has been waived. We accordingly decline to

address the merits of this issue.

Attorney’s Fees and Costs

Mother contends the trial erred by failing to award her all of her attorney’s fees and litigation

expenses incurred in preparing and prosecuting her child support petition. She asserts these costs

amounted to $24,575.05, and that Father did not object to the reasonableness of this sum. The trial

court awarded Mother $15,000 “as that just portion of Petitioner’s (Mother’s) attorney fees and

litigation expenses.” Father does not argue that the trial court erred in awarding Mother’s attorney’s

fees. Father asserts the amount of attorney’s fees requested by Mother is unreasonable and that the

trial court did not abuse its discretion in determining the amount of Mother’s reasonable attorney’s

fees. 

An award of reasonable attorney’s fees is appropriate when the services of a parent's attorney

inures to the benefit of a minor child. Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. Ct. App. 1993).

We review an award of attorney’s fees under an abuse of discretion standard. Id. Upon review of
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the record, we note that as of July 7, 2003, Mother’s attorney’s fees and expenses were $12,155.59.

Additionally fees of $1,973.50 were incurred on July 8 and 9 in conjunction with the hearing of this

matter on July 9. The remainder of the $24,575.05 submitted by Mother’s counsel was incurred

post-trial. We cannot say the trial court abused its discretion in awarding Mother attorney’s fees of

$15,000. 

Attorney’s Fees on Appeal 

Mother requests attorneys fees on appeal. This court repeatedly has recognized that when

the obligor parent appeals an award of child support, “[t]he allowance of attorney’s fees for [an

appeal] is for the benefit of the child, and the custodial spouse should not have to bear the expense

incurred on the child’s behalf.” Huntley v. Huntley, 61 S.W.3d 329, 341 (Tenn. Ct. App.

2001)(quoting Ragan v. Ragan, 858 S.W.2d 332, 334 (Tenn. Ct. App. 1993)). We award Mother

reasonable attorney’s fees incurred on appeal. We remand to the trial court for determination of the

amount of such reasonable fees.

Conclusion 

The dissent would hold that an upward deviation from the child support guidelines is

warranted in this case for both retroactive and prospective child support. Like the dissent, we are

not insensitive to the disparate financial circumstances of the parties in this case. Clearly, Father

enjoys a life-style far more lavish than that of Mother. However, the trial court’s award of

retroactive child support was based on an erroneous application of law and not a finding of need in

excess of the guideline amounts. Retroactive child support awards recognize that a parent’s duty of

support begins with the birth of the child, and the child support guidelines provide a presumptive

measure of the award amount. Berryhill v. Rhodes, 21 S.W.3d 188, 193 (Tenn. 2000). Mother failed

to demonstrate expenses exceeding the amount of child support required by the guidelines, and no

amount of retroactive support can alter the conditions under which T.L. previously lived. The award

of retroactive child support mandated by this Opinion is the statutory amount; it will enable Mother

to achieve her stated goal of purchasing a home in a more affluent area; and it will compensate her

for expenses incurred on T.L.’s behalf. 

The dissent further points to Father’s lack of visitation as warranting an upward deviation

from the guidelines. In providing criteria for deviation, the guidelines state,

(b) If the child(ren) is/are not staying overnight with the obligor for the average

visitation period of every other weekend from Friday evening to Sunday evening, two

weeks during the summer and two weeks during holiday periods throughout the year,

then an amount shall be added to the percentage calculated 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 [reference 1240-2-4-.02(6)]. The court may consider a downward
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deviation from the guidelines if the obligor demonstrates that he/she is consistently

providing more care and supervision for the children than contemplated in the rule.

Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(b). It is not disputed that, in this case, Father has spent

very little visitation time with T.L. However, the issue here becomes how this provision is to be

applied in light of section 36-5-101(e)(1)(B)(2001) and Tenn. Comp. R. & Regs. 1240-2-4-.04(3).

In resolving apparent conflicts between the statutes, the courts must seek to provide for “a

harmonious operation of the laws." Holder v. Tennessee Judicial Selection Comm'n, 937 S.W.2d

877, 883 (Tenn.1996) (quoting Boone v. Sundquist, 884 S.W.2d 438, 444 (Tenn. 1994)). In this

case, although the guidelines clearly permit and provide the basis for an upward deviation based on

reduced visitation, the trial court found that base child support in excess of the guideline presumptive

amount of $2100 per month was not necessary despite the undisputed fact ofreduced visitation. The

trial court determined, however, that a deviation was warranted insofar as necessary to provide for

private school education, an educational trust, and a future support trust. The evidence does not

preponderate against the trial court’s findings.

 

In light of the foregoing, this matter is affirmed as modified. We remand to the trial court

for modifications consistent with this Opinion. Costs of this appeal are taxed one-half to Tierany

Redmond, Appellee and one-half to Cletidus Marquell Hunt, Appellant, and his surety, for which

execution may issue if necessary.

___________________________________ 

DAVID R. FARMER, JUDGE