# FILED
March 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON FEBRUARY 1999 SESSION

LINDA JONES LEE, ) ) SHELBY JUVENILE Petitioner/Appell

ant )

) Appeal No. 02A01- 9805-JV-00133 v. ) ) VINCENT JEROME ASK EW, ) ) Respondent/Appellee )

APPEAL FROM THE JUVENILE COURT OF SHELBY COUNTY AT MEMPHIS THE HONORABLE A. V. McDOWELL, JUDGE

For the Appellant: Edward B. Johnson Sloan, Rubens & Peeples P. O. Box 768 West Memphi s, AR 72303 For the Appellee: Daniel Loyd T

aylor John N. Bean 100 North Main Suite 2400 Memphis, TN

38103

MODIFIED WILLIAM H. INM AN, Senior Jud

ge CONCUR: W. FRANK CRAWFORD, JU DGE1 From $210.00, which was paid irregularly. 2 DAVID R. FARMER, JUD GE The issue in

this case is the am

ount of child support tha

t the acknowledged father, the appellee, a pr

ofessional basketbal

l player, should pay for the support of his son who was born out of wedlock on Januar

y 9, 1986. We need not recite the proceedings before November 14, 1996, the date of

ahearing before the Re feree who found tha t the financial cir

cumstances of the appellee had significantly increased. His

gr oss income with the National Basketball

Association

for the 1995 - 96 season was $1,750,000.00, inc reased to two million

dollars for the 1996 -

97 season. The Referee r ecommende

d that the childsuppo rt be in creased to $1,5 12.00 mo nthly, 1 beginning January 15, 1996. It was further recommended that a “guardianship

in the Probate Cour

t be opened to

receive $118,156. 00 on February 15,

1996 and $138,732.00 on Novem

ber 1, 1996, . . .

to be used for the support a nd maintenance

of the child

as maybe necessary from time to time es pecially in the event t hat Mr. Aske w’s future income should d iminish.” Medical insurance was also recom mended. On April 3 , 1997, the cas e was hea rd by a special judge of the Juvenile Court, who found that the appellee had paid $256,888.00 into th e Treasury of

the Probate Court as recommended by the Referee and ordered that these f unds be inves ted as the law requires and made available for the expenses of the ch il d during his min ority and fo r mo nthly s uppo rt in t he eve nt th e appe llee’ s inco me diminished. It was further ordered that the fund may be used

for college expenses, but in the event the child did not attend college or

did not complete his education within a reasonable time, the balance would be returned to the appellee. The monthly

support obligation of $1, 512.00 was affirm ed.3 Thereafter, on July 2, 19 98, the Court approved th e reimbursem

ent to the appellan t of $1,958.00 for certain expenses she had incurred, and a further reimbursem

ent of $3,000.00 for a c

omputer, to be paid from the fund, and awarded the appellant her attorney fees of $5,428.54 to be paid from the income generated by the fund, whi

ch was to be adm

inistered by the

Probate Court. The plaintiff appe

als, and presents for revie

w the issues of (1)

whether the monthly award of support in the amount of $1, 512.00 was in confor mity with t

he support guidelines, (2) w

hether the agreem

ent of the defendant

to pay the expenses of a private school

should have

been incorporated i

n the judgment,

(3) whether the courterred in ordering a ny undistributed ba

lance in the fund re

turned to the defendant, and (4) whether th e plaintiff’s atto

rney fees should

have been ordered paid from the f

und. The appellee presents for review the is sues of (1) whether he was properly ordered to pay the m

onthly support r

etroa ctive to May 19,

1995, (2) whether

the Court“erred in ordering that the guardianship fund be available to paythe child’s college tuition when suc h an order, under the authority of the child support guidelines, violates Mr. Askew’s constitutional rights, (3) whether the Court erred in ordering the

administration

of the guardianship f

und by the Probate

Court, and (4) whether the

court erred in aw

arding all attorney

fees incurred by

the plaintiff when she was not suc

cessful on all issues. Our review of the fin

dings of fact made by

the trial Court is de novo upon the record of the

trial Court, acc

ompanied by a presumpt

ion of the correctness of the finding, unless the preponderance of the evidence is otherwise. T ENN . R. A PP . P., R ULE 13(d); Campbell v. Florida S teel Corp., 919 S.W.2d 26 (Tenn. 1996). Once the parent’s income has be en determined, the guidelines requir

e the courts to calculate the required amount of support using thepercentages provided2 The DHS increased the $6,250.00 ceiling to $10,000.00 effective October 5, 1997. 4 in the guidelines. Se

e Tenn. Comp . R. & Regs. r. 1240- 2 -4-.03(5). In m

ost circumstance s, the result of these calculations becom es the obligor parent ’s child support obligation. Howev er, a court m

ay deviate fro

m the guidelines i

f it makes detailed, written findings explaining wh y the applicatio

n of the guidelines wo

uld be inappropriate and how deviating from

the guideline s woul d be in the child’s best interests. See Tenn. Comp. R. & Regs. r.1240-2-4-.02(7) (1994). One ground for deviation sp ecifically recognized in the guidelines involves wealthy parents whose net monthl y income ex

ceeds $6,250.00. On the occasions when the trial court calculated Mr. Askew’s child support obligation , Tenn. Com p. R. & Regs. r. 1240-2-

4-.04(3) provided th

at in the case of

wealthy pare

nts, the courtmust order the child support based on the appropri ate percentage of all the obligor parent ’s net income but that it may

fashion alternative

payment arrangements

for the child support deri

ved from the por

tion of the net income that exceeds $6,2 50 .00 per month. 2 The guidelines, like Nash v. Mulle, 846 S.W.2d 803, 806 (Tenn. 1993), also provide that permissibl e alternative pay ment arrangements

may include

educational or

ot her trust funds for t

he benefit of the children. The amount of child

su pport required by

the guidelines is pres

umptively

corre ct. See Tenn. Comp. R. & R egs. r. 1240 -2-4-.02(7 ) (1994). Mr . Askew’s support obligation is cons istent with the guidel

ines. I Appellant argues that an upward deviation from the guidelines is justified because of the high-incom

e status of the app ellee, who there by enjoys a

high standard of living which his child should share, See, Nash, supra, and the custodial3 Which included the clerk’s commission, plus an amount for non-visitation. 4 Appellant is gainfully employed by United Parcel. She has one other child. 5 parent is not required to prov e a specific need t

o justify an award beyo nd $1,512.00.00. 3 The trial judge, with the aid of counsel, considered the issue of an upward deviation

at length, and concl

uded that none was j ustified. We c annot find that this conclusion w a s either an abuse of discretion or contra

ry to the preponderance of the evidence. 4 II The appellee is agree

able to the modif

ications of the judg

ment requiring him to pay the private school ex penses of his child dur

ing enrollment a

nd maintenance of passing grades. III The issue of the disposition of any rem

aining trust assetswas not addressed in Nash. The appellant arg ues that the rem

ainder should be avail

able to the child for the establishment of an entrepreneurialenterp rise up on atta inment o f majorit y,
or for those purposes after college. The appellee ar gues that the trust as sets are his proper ty, and unless expended on be half of the child, t

hese assets should be returned to him. We agree. The fund s are his, and t

he Co urt has no authority to advance a perceived inher itance toa child or confisca te a parent’s as sets onbehalf of a child. IV The appellant’s attor

ney fees wer

e ordered to be paid

from th e entrusted funds, rather than by the defendant personally. I

t is the appellant who com plains of this action. Considering the pecu lia r circumstanc es, and the am

ount of the entrusted funds, of which the appellee does not complain, w e see no abuse of discretion.5 Sometimes referred to by the parties as a guardianship fund. 6 A “college education” is not defined. The child may opt for vocation training, or for an 8-year prof

essional degree . The possibilities a re too numerous to s

peculate about. 6 V The modification w

as ordered retroa

ctively to becom

e effective on Ma

y 18, 1995, the date of the fili

ng of the petition. I

n light of the fact tha

t the defendant ’s i ncome for 1995 was $1,750, 000.00, we are un able to find that the

judgmen t preponderates against this order. VI The appellee argu

es that the

trust fund, 5 to pay for the c hild’s college educa tion, is violative of his consti tutional rights. Th

is issue was addressed in Nash, which the appellee ass ails with much vigor. We doubt that the Legislature

was aware of the fact that the support guidelines it adopted would be interpreted to authorize a court to create a trust fund in the

manner explic ated in Nash, 6 but the point is wasted here. The holding in Nash is binding until modi fied by judicia

l or legislative action. The Supreme Cour

t held in Nash that the creation of a trust to meet th e college needs of children of wealthy noncustodial parents is appropriate under stat e law for the pro tectio n of ill egitima te chil dren, as well as t he lawfu l polic y u nde r the guideli nes to plac e a child born out of w edlock in a status sim

ilar to that of children born in intact fami lies. It was held

that the power to create an educational trust to include college expenses does not intrude significa ntly upon parenta

l rights and is justifi ed by the sta te’s interest in preventing substantia

l danger of harm

to the welfare of t

he child: We believe that an appr

oach that refuses to recog nize the laudable goal of post-sec ondar y education and instead provides only for the child’s immediate

needs, would not be a

responsible approac

h. If the most concerned, ca

ring pare nts do not operate in such a haphazard7 The monthly support allocation ordinarily includes the expenses of a child through

his high school yea

rs. 7 way, surely

the courts cannot be expected to award support in such a fashion. Thus, we conclude that establishing a program of savings for acolle g e education is a prope r element of c

hild support when, a

s in this cas e, th e resources of the non-custodial parent

can provide the necessary fund

s without hardship to th

e parent. The appellee argues tha

t the support guidelines

endange r his fundamental right to privacy in providing for the post-majori t y support of his child as he sees fit, and that Nash go es too far. As w e have observed, th

is question is properly addressable elsewhere. VII

The app ellee a rgues that the Court erred in ordering t hat the guardianship fundshould be administered by the Probate Court, and that a guardian ad litem shouldbe appointed to ove r see funds disbursem

ents with investm

ents to be managed by a fund manager. Appellee argues that the orde

red arrangem

ent is too cumber some and will pr ove to be too costly , superimposed upon the fact that a private manage

r will be able to obta

in a greater retur

n. While resort

to the Probate Court was somewhat unusua l, we find nothing inherently

disadvantageous about t he order. The co

rpus will be pr

otec ted and invested in accordance wi th statutory req

uir ements, and will not be invaded without notice to the appellee, followe d by a specific f inding of need and justification. The income wil l be expend ed solely fo r the child ’s college expenses,7 and will be subject to

close and reasonabl

e scrutiny of the P robate Court, which shou ld keep the appellee r easonably and tim

ely inform

ed of the amount

of an d reason for all disbur

sements.8 Finall y, the appellee argues thatthe award of attor ney fees was e

xcessive in light of the fact th at the appella nt was unsuccessful

on some issues. We find no

a buse o f discretion in the a ward of these fees. As modifie d, the judgme

nt is

a ff irmed with costs assessed to the parties evenly . The case is re manded for all appropriate purpose s.

_______________________________ William H.

Inman, Senio

r Judge
CONCUR:

_______________________________ W. Frank Cra

wford, Judge

_______________________________ David R. Farm

er, Judge