1 The oldest boy, then 17, reside d as he chose. He is now of age, and we are

concerned only with his two younger brothers. 

# FILED
July 24, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

JANICE BARTLEY

CASTEEL, )

) KNOX CIR CUIT Plaintiff/Appellant ) ) NO. 03A01-9703- CV-00073 v. ) ) CLIFTON PHILLI P CASTEEL, ) HON. BILL SW ANN ) JUDGE Defendant/Appellee )

William A. Mynatt, Jr . and Jason H. L ong, Knoxv ille, for the A ppellant Douglas J. Toppenberg and J. Elaine Burke , Knoxvi lle, for the Appel lee

O P I N I O N

INMAN, Se nior Jud ge
These parties were divorced on September 16, 1994. By ag reement, they
were awarded joint l egal custody of three sons, w ho would reside princi pally w ith their mother, h ereafter appellant

. The fat her, here aft er ap pell ee, wa s award ed “c o-pa rent ing ti me” wit h the two younger s ons 1 on alternatingweeks from Wednesday at 6:00 p.m. until Sunday at 8:00 p.m. and f our (4) full weeks during summer. Holiday times - Easter, Christmas, and Thanksgiv ing - were evenly divided. Pursuant to the approved plan , appellant has custody 234 days, while appellee has custody 131 days. After extended s kirmishing , the appellee’s support obli gation for tw o children was determi ned to be $370.00 per month. Appellee’s gross annual income was $36 ,696 .00. The a ppe llan t ear ned abou t $43 ,000 .00 a nnu ally.2 The trial judg e observed t hat current l aw “gi ves a choi ce between w ide judicial discretion in the departure [from the Guideli nes] and a possi ble second mathemati cal computation carrying a presumption of correctness.” The decree provides: “The Court finds that

in the present

case t he primary c ustodian mother has 234 days w ith t he children and the father has 131 day s with t he child ren. Th e Court further finds tha t the Child Support Guidelines are bas ed upon the primary custodian hav ing 285 days per year and the seconda rypare nt having 80 days per year. The Court finds that in situations where the income level of the parents is e ssentially equal that the custodial par

ent is presum ed to s upport the chil d from his or her incomefor 182.5 days per year a nd that the non-custodial parent prov ides support either throug h c hild support or i n kind for the r emaining 182.5 days per year. Thus in a standard visitation si tuation w here the noncustodi al parent h as the child for 80 days per year the Child Support guidelines

are presumed to provide s upport for the remai ning 102.5 days per year that non-custodian sh ou ld be supporti ng the chil d but during which ti me the child is

not in his or

her possessi on. The Court finds that

it is appr

opriate in si tuations of essenti ally eq ual incomes that chil d support be red uced by a ratio of the days per year assumed by the Guidelines and the numb er of days t h e non-custodial parent actuall y keeps the children. The Court finds that for pare nts with eq ual income, and for paren ts in whic h the payor of child support earns less than the recip ient, a mathematical computation should be imposed, carryi ng a presumpti on of correctness. To wit, a fra ction should be created in whic h the numerator would be the non-custo dial parent’s actual co-par

enting days minus 80 and the denominator w ould be the number 102 .5. The fraction should be multiplied by the chi ld support g uidelines dol lar amountand that the result of that calc ul ation is the amount by whi ch child suppo rt should be increased or

decreased if the p ayor is exercis ing more than 80 da ys per year, or increased if less. It is therefore ORD ERED thatby following the above formula in this matter, child suppor

t should be set atthree hundred and seventy dollars p er month ($370.00/mo.), with sai d amount to be paid b eginnin g September 23, 1996.” The dispositive issue is whether the peculiar circumstance s of this case justified a dow nward dev iation from the Gui delines, in l ight of the instructions of Jones v. Jones, 930 S.W .2d 541 (Tenn. 199 6). Any devi ation must be cl early ar ticulated. T ENN . C OMP
. R. & R EG ., C H . 1240-2- 4.01(3) and 1240- 2-4.02(7); Jones, supra. On the face of it, the monthly gross income of the ap pellee required that he, as the obligor, pay $740. 00 monthly support for his two

sons; does the fact

that he has cust ody for 131 days each year justify the redu ctio n to $ 370 .00 m onth ly?2 Tenn. Comp. R. & Regs. Ch. 1240-2 -4.02(6). 3 The parties conc ede that an allow ance is factored into the Guidel ines for the 80 days res idency of the c hildren w ith their father , and that if the chi ldren spend more time wi th the oblig or than is as sumed 2 his child support payment s should be reduced. Jones, supra. The formula fashioned by the trial j udge “in si tuations of essenti ally eq ual incomes that chi ld support be r educed by a r

atio of the days

per year assumed by the Guidelines

and the number of days the non-custo dial parent ac tually keeps the children” is assailed by the appellant for two reasons. First, because “the v isitation ti me granted to th e appellant [si c: appellee] i s of the type conte mplated by the Guidelines and therefore does not pr ovide a valid or common sense justif ication for any downward deviation”; second, the trial court applied an inappr

opriate formula i n its computati on. The first reason assigned by the app ellant is somewhat baff ling and we will not further notic e it. With respect to the appropri ateness of the formula dev ised by the trial cour t to assist him i n the computation of a dow nward dev iation both par ties ceded was justified, our concern is not so much wi th the formulaic meth od fashioned by th e Court as w ith its element s. Income of the cus todial parent i s generall y not rel evant, and the reduction extrapolat es to 160 days visitat ion, rather t han 131. But if the elaborat e formula so painst akingly fashioned result s in an amount of support that the circumstances and best interests of the chil dren requi re we see no reason to cri tique the mechani cs employed, keeping in mi nd that T ENN . C OMP
. R. & R EGS . 1240-2-4.02(6 ) provi des that: “I n situations w here overni ght time is divided more equally

between t h e parents, the courts w ill haveto make a case-by- case determinati on as to the appropriate amount of support.” Thus it is that

the fashioned formula cannot be applied mech anically , without
more.3 Alaska Civ . R. 90.3; Mar yland Famil y Code 12-1 02; Oregon Ad. Reg. 137-50- 450; Virgi nia Code Ann. 20- 108.2. 4 The Guidelines are required to be ap plied as a rebuttable presum ption in all child support

cases. If the ev idence is suffici ent to rebut the pr esumption, the tr ial court must make a specific finding that the application of the Guideli nes would be unjust or ina ppropriate. A ny such findi ng must state t he amount requir ed by the Guidelines, an d must include a justification for deviation which tak es into consideration the best interests of the chil dren. T ENN . C OMP
. R. & R EGS . 1240-2- 4.02(7). The appellee has 62.5 percent more v isitation [” co-parenting ,” accordi ng to the decree] than t he Guidelines presume. For reasons not enti rely made c lear, the
a p p e l l a n t a r g u e s t h a t t h i s p e r c e n t a g e i s i n s i g n i fi c a n t , t h u s o b v i a t i n g a d e v i a t i o n . We would be har

d-pressed to a gree wi th this arg ument since a variance of 62.5 percent is obvious ly not ins ignificant. A threshold amount of visitati on by the non- custodial parent requi red as a condit ion precedent to a downwa rd deviati on has not been established in Tenne ssee. Other states have established an amount, from Ala ska where v isitation i s 30 percent, t o Maryl and 35 percent, to Oregon 35 percent, to Virginia 110 days. 3 The appellant arg ues that she has certain fixed expenses w hether the chil dren are with her or elsew here. This arg ument is also app licable to t he appellee. One of the major aims of theGuidelines i s “to ensure that when parents live separately , the economic impact on the children is minimized.” T ENN . C OMP
. R. & R EGS . 1240-2- 4.02(2)(e). The appellee arg ues that if he is required t o pay 32 perc ent of his net income as suppor

t for the childr

en, as appellant insists, w hile havi ng their c ustody 62.5 percent more of ten than is presumed by the Guide lines, the economic impact on the children will be substantial , and the appellant will merely have reaped an unwarranted windfall. Our review is de novo

on the record accompanied by a presumption that the judgment is correct unles s the eviden ce otherwi se preponderates . R ULE 13(d) , T. R. A. P.; Ridings v. Ralph M. Par sons Co., 914 S.W .2d 79 (Tenn. 1996 ). This5

presumption does n ot apply to questions of l aw, wh ich are rev iewed de novo. Hillsbor o Plaz a Enter. v. M

oon, 860 S.W. 2d 45 (Tenn. Ct. App. 1993). As heretofore stated, t he award of $370.00monthly is a 50 percent dow nward dev iation from the Guidelines , and if a formulaic method is justi fied, the deviat ion should not exceed $126.00. We believe that it is nec essary to : (1) determine the annual amount of support under the Guidelines : $740.00 per m onth X 12 mont hs = $8,880.00, or

$24.33 per day (2) determine what proportion of that annual amoun t is attributable to the increas ed visit ation, any amount over 80 day

s per year being consi dered exces s: 51 days excess @ $24.33 per day = $1,240.8 3 per year, or $103.40 per m onth (3) reduce the Guidel ine amount by t he amount attributab le to increased v isitation: $740.00 - $103.00 =

$637.00 Therefore, we find that in this case the amount of support due shall be reduced from $740.00 per month to $637.00 per month. The judgment will be modified to award the appellant $637.0 0 per month child supp ort e ff ecti ve Sep tem ber 2 3, 19 96. C osts are a sses sed t o the part ies e venly, and the case is remanded.

_____________________________ W illiam H. I nman, Senior Ju dge CONCUR:

_____________________________ Hersche l P. Franks , Judge

_____________________________ Don T. Mc Murray, Jud ge