# FILED
Novemb er 5, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

________________________________________________ HELEN BOND SCOFIELD, Plaintiff-Appellee, Dyer Equity No. 93-513 Vs. C.A. No. 02A01-9512-CH-00276 STEPHEN DAVID SCOFIELD, Defend ant-App ellant.

___________________________________________________________________________

FROM THE CH

ANCERY COU

RT AT DYER SBURG THE HONORABLE JOE G. RILEY, JR., JUDGE
L. L. Harrell, Jr., Harrell & Harre ll of Trenton For Plaintiff-Appellee Marianna Williams, Ashley, Ashley & Arnold of Dyersburg

For Defendant-Appellant

REVERSED AND REM ANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.
CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE This case invo lves a petition for increase of child support. Petitioner, Stephen David Scofield (Father), appeals from the trial court’s order de

nying his pe

tition to mod

ify the pa rties’ final decree of divorce

to incre ase chil d support p ayments b y Responde nt, Helen Bond Scofiel d2

(Mother). The parties were divorced by final decr ee entered April 21, 1994. T hey entered into a Marital Dissolution Agreement (MDA) which was approve d and ratified by the trial court in the final decree of divorce. The par ties have two children, a boy age 10, and a girl, age 7. Pursuant to the MDA, t

he trial c ourt awa

rded join t custody t

o the parties. The MDA provided that Father would be the custodial parent, and Mother would have visitation rights. The MDA also provided that Mothe

r would pa

y Father $ 250.00 pe

r month in child suppor

t. Father filed a petition to increase child support onFebruary 1, 1995. The petition alleges that circumstances have materially changed because Father’s income has been reduced by more than 15% and because Mother’s income has incre ased materially. Father also avers that Mother is not providing adequate support and that present circumstances do not justify a deviation from the Child Suppor

t Guidelin es. Father

seeks to increase Mother’s child support payments to an amount that is in compliance with the Child Support Guidelines promulgatedby the Tennessee Department

of Human Service s. Tenn. Co mp. R. & Regs
. tit. 10, ch. 1240-2-4-.01 et seq. (1989, revised 1994) (Guidelines). In her Ans wer a nd Counter-Petition, Mother avers that there has not been a materia l ch ange in circumstances and that Father’s income was reduc ed by his voluntary actions. Sh e also alleges that, pursuant to the MDA, Father owes her $10,000.00. Mother later filed a Supplemental Counter- Petition tha t allegesthat t here ha s been a material change in circumst ances, a nd that she

should now

be design ated as t

he custod ial pare nt. The trial court held a hearing on the petiti on on May 2 6, 1995. Th e pertin ent fac ts developed

at this hearing and from the technical record a re as follow s. Father was employed as
an attorne y by a law

firm. In 1 994, at the

time of the divorce, his income was $60,030.00 per year. Howeve

r, his com

pensatio n packa

ge with the

law firm c

hanged a nd he bec ame dissatisfied. In Februa

ry of 1995 , Father v oluntaril y left the law f irm and no w practi ces law i n
a shared office with another attorney. He made $5,769.24 in ea rly 1995 before

leaving t he firm. At the hearing, Father testified that he was only making approximately $1,000.00 per month, but that he expe cted it to r

ise to $1,300.00 per month. Father testified that the standard of living of the children has not

changed since he left the law firm, and that he a dequately provides and cares3

for them. Mother is employed by the State of Tennessee. In 1994, at the time of the divorce, her income was $33,262.00 p er year. She received a raise and, at the time of the hearing, was making $107.00 more per month. Mother testified that she bought all of the children’s clothing withthe exception of some jeans, that she paid for most of the children’s haircuts, and that she takes the children on vacations and trips. In addition, she testified that she regularly exercises her visita tion rights
. The parties reached an agree ment concerning the $1 0,0 00.00 deb t owed by Fa ther to Mother, and the trial court ruled that custody should not change. The only issue that remained for the trial court wa s the petit

ion for a n increa se in

child support. T

he trial c ourt held

that child support should not be increased. In a Memorandum Opinion filed May 30, 1995, the trial court stated that

circumstances had not changed except f or Father’s voluntary career move, and that it was not a

ppropria te to incr ease Mot h er’s child support obligation because of Father’s voluntary withdraw al from th e law fir m. Further , the tria

l c ourt found that Mother’s salary increa se of ap proximate

ly 3.7% wa s not signif

icant en ough to just

ify an inc

rease i n child support. The trial court also found tha t there was more than a 15% variance between the require ments of the Guidelines and the amount of support currently ordered. H owever, the trial court stated that the variance resulted from a previously ordered deviation from the G

uideline s. The cou rt found that the parties agreed to the original deviation although the final dec ree o f divorce did not expressly provide for it. Father perfected this appeal and prese nts only one issue for our review: Whether the trial court er red in its d

enial of his petitio n for an i ncreas e in child support. Since this case was tried

by the court sitting without a jury, we review the case de novo upon the record with a presumption of correc tness of th e finding s of fac t by the tri al court
. Unless the evidence preponderates aga inst the findings, we must affir m, absent error of law. T.R.A.P. 13(d). Child support in Tennessee is statutorily governed by T.C.A. § 36-5-101 (1996). Section 36-5-101(e)(1) provides that "[i]n making its determination concerning the amount of support of any minor

child . . . of the parties, the court shall app ly as a re

buttable presumpt ion the ch ild1 Mother testified that her income is $1,387.00 per pay period, and that there are 24 pay periods in a year.

2 The Guide

lines esta blish per centage s based on

the numbe

r of child ren. Child support f or 2 child ren req uires 32% of net inc ome . The approximate amou

nt of child 4 support guideli nes as pro vided in this subsection." Modification of an existing child support order is controlled by T.C.A. § 36-5-10 1(a)(1 ) (1996) , which sta tes, in pe rtinent pa rt: In cases in

volving ch

ild support, upon application of either party, the court shall decree an increase or decrease of such allowance when there is found to be a significant variance , as defined in the child support guidelines established b y s ubsection (e), between the guidelines and the amoun t of suppor

t curre ntly orde red unle ss the variance h as res ulted from a previously court-ordered deviation from th e guidelines and the circumstances which caused the deviation have not changed. (emphasis added). Father argues that there has been a materia l change of circ umstance s due to a d ecrea se in his income. This argument is without me

rit, because the “substantial and material change of circumst ances” test

is no longer the proper standard for determining whether an existin g child support order should be modified. Turner v. Turner , 919 S.W.2d 340, 343 (Tenn. App. 1995). In 1994, the General Assembly amended T.C.A. § 36-5-101(a)(1)(1991) thereby re placing the “substantial and material cha nge of ci rcumstan

ces” te st with the

“signific ant vari ance” t

est. T.C.A. § 36-5-101(a)(1)(1994) (amen di ng T.C.A. § 36-5-101(a)(1)(1991)); see Turner , 919 S.W.2d at 343 (discussing the amendment). Father next argues that there is a significant variance be tween the requirements of the Guidelines and the amount currently ordered, and that there has been no specific court ordered deviation from the Guidelines and no written findings justifying deviation as required by T.C.A § 36-5-101(e)(1). Currently, in Tennessee a “significant variance ” is 15%. See Tenn. Comp . R. & Regs. tit. 10, ch. 1240-2-4 -.02(3) ; Turner , 919 S.W.2d at 343. In the case sub judice , the record shows that Mother’ s gross income is $2,774.00 per month. 1 The Guidelines require that the court order child supp ort bas ed upon the approp riate pe rcenta ge of all net

income. The record does not clearly indicate the amount

of Mother’s net income. From her pay stubs, the net pay appear s to be approximately $1,772.00 per month. The appropriate perce ntage in this case is 32 % , manda ting child support in the amount of approximately $567.00. 2 Although w e canno t comput esupport was calculated by multiplying Mother’s approximate net income by 32%. 5 the exact numbers, we believe that the difference between wha t Mother was ordered to pay and the amount required by

the Guide

lines will s till exceed 15% using her net income, and therefore, is a significant variance. When a signific ant vari ance ex ists, the c ourt m

ust set support in accordance with the Guidelines unless application of the Guidelines would be “unjust or inappropriate” in the case. T.C.A. § 36-5-101(e)(1) (1996). If the trial court finds that application of the Guidelines would be unjust or in appropr

iatebased upon the best interest of the children or the “equity between the parties,” the court must make such a finding in writing and such writing sh all “state the amount of support

that would have been ordered under the c hild support guidelines and a justification for the variance from the guidelines.” Id . T.C.A. § 3 6-5-101( e)(1) ( 1996) pro vides:

In making its determination concerning the amount of support of any minor child or children of the parties, the court shall apply as a rebuttable presumption the child support guidelines as provided in this subsection. If the court finds that evidence i s suffici ent to rebut this presumption, the court shall make a written finding that the applica

tion of the child support guidelines would be unjust or inapprop riate in that particular case, in order to provide forthe best interest of the ch ild(ren) or the eq

uit y betwe en the pa

rties. 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 support guide lin es and a justification for the variance from the guidelines. The statu te alsoallows for the parties to reach an agreement concerning the amount of child support. The statute does not require that the parties’ provi s ions for support meet the Guidelines in aMDA, as lo ng as ade quate provision is made for the children. Mother argues that the MDA is a result of

a negotiated settlement between the parties where Father agreed to ac cept a lower a mount of c hild suppor

t. Howeve

r, for the agree

ment to be

effec tive, the

parties m ust adhere to the stat

ute. T.C.A . § 36-5-1 01(h) (1 996) stat es: Nothing in this section shall be co nstrue d to prevent the affirmat ion, r atification and incorporation in a decree of a n agreement

between the parties as to support and maintenance of a party or as to child support. In any such agreement, the parties must affirmatively acknowledge that no action by the part ies will be effective to reduce child s upport after the due date of each payment, and that they understand that court appr oval must be obtained before child support can be reduced, unless such payments are automatically reduced or terminated unde r t he term s6 of the agreement. (emphasis added.) In t he inst ant case, neither the parties’ MDA nor the f inal decree of divorce use the language containe d in T.C.A. § 36-5-10 1(h), asthat statu te requi res. Thu s, the agreement does noteffectively deviate from the Guidelines under T.C.A. § 36- 5-101(h). Th erefor e, the deviation requires that

the trial court make a written finding that the application of the Gu idelines w ould create an unjust or inappropriate resul t. T.C. A. § 36-5- 101(e)( 1); Malone v. M alone , 842 S.W.2d 621, 624-25 (Tenn. App. 1992). No such finding was made at the time the final decree of divorce was entered. The trial court found tha t neither the MDA nor the final decree of divorce provided for the deviation from the Guidelines, but stated that it was appa rent that the parties agreed upon the deviation in light of all the fa

cts and circumstances. However, the General Assembly made exp ress re quireme

nts for an agreement to be valid. T.C.A. § 36-5-101 (h)( 1996). If t here is no agreement, the court is required to make a written findings, and the record is devoid of any written findings that compliance with the Guidelines would be unjust or inappropriate. For the reasons stated

herein, we reverse the order of the trial court and remand this case. Upon rem and, the trial court shall conduct an expedited hearing to dete rmine Mother’s net income and to modify the parties’ final decree of divorc e to compl

y with the G

uideline s, or make
a written explanation for its deviation. T.C.A. § 36-5-101(e)(1). All provisions for child support
curren tly in effect shall remain in effect until the entry of a nother support order. Costs are
assesse d against

the Respo ndent.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

_________________________________ ALAN E. HIGH

ERS, JUDGE

_________________________________ DAVID R.FARMER,

JUDGE