                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               November 9, 2011 Session

             MARK STEVEN DEVORE v. RHONDA M. DEVORE

               Appeal from the Probate Court for Cumberland County
                    No. 067197 Larry Michael Warner, Judge




              No. E2010-02017-COA-R3-CV-FILED-JANUARY 4, 2012




This is a post-divorce case in which Mark Steven Devore (“Husband”) petitioned for
modification of child support. Rhonda M. Devore (“Wife”) counter-petitioned for contempt.
The trial court held that Husband was no longer liable for child support because the children
had reached the age of majority but that the amount of overpayment was offset by obligations
provided for in the marital dissolution agreement (“MDA”). The court also held that
Husband was liable for future college expenses. Following Wife’s motion to reconsider, the
court held that Husband owed $11,230.43 for past due college expenses. Husband appeals.
We hold that the court erred because it did not use a child support worksheet to calculate the
amount of support owed. We vacate and remand for the court to utilize a worksheet.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court
                            Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., and D. M ICHAEL S WINEY, JJ., joined.

William L. Gribble, II, Maryville, Tennessee, for the appellant, Mark Steven Devore.

Vivian L. Crandall, Oak Ridge, Tennessee, for the appellee, Rhonda M. Devore.

                                         OPINION

                                    I. BACKGROUND

      Husband and Wife were divorced in May 1993 after approximately eight years of
marriage. Pursuant to the MDA, Husband and Wife shared joint legal custody, with Wife
maintaining physical custody, of their son (“Son”), born on March 19, 1987, and their
daughter (“Daughter”), born on May 23, 1989. Husband was given reasonable visitation and
tasked with remitting child support for the two children. The amount of child support was
less than the amount established in the guidelines but was agreed upon because Husband
assumed “responsibility for most debts incurred during the marriage,” agreed to maintain
insurance coverage for the medical and dental expenses of the children, and agreed to pay
“post-expenses” and “post-majority educational expenses for the children.” In 1998, the
court adjusted Husband’s support obligation to reflect the child support guidelines.

        On November 18, 2005, Husband petitioned for modification of his child support
payments. Husband alleged that Son had reached the age of majority, thereby necessitating
a change in his support obligation. Husband opined that Wife should be required to submit
proof of income in order to determine the amount of remaining support owed for Daughter.
Approximately four months later, Wife responded by asserting that Husband should also be
required to submit his proof of income. Wife alleged that Husband was in violation of the
MDA for failing to pay his portion of the children’s medical expenses, for failing to provide
dental coverage for the children, for failing to pay a 2003 judgment against him for an
orthodontic bill, for failing to pay Son’s college expenses, and for failing to provide proof
of life insurance. Approximately ten months later, Wife amended her response to include
further allegations of Husband’s failure to comply with the obligations contained in the
MDA. In support of Wife’s position, she presented a child support worksheet, detailing
Husband’s income and accounting for Husband’s failure to visit with Daughter. Husband
responded to Wife’s computation of support by alleging that when the court adjusted his
support in 1998, his obligation to provide for the additional expenses contained in the MDA
was vacated. Husband submitted his own child support worksheet, arguing that Wife erred
in calculating his income in 2005 and 2006, that Wife erred in calculating her income in
2005, 2006, and 2007, and that Wife prohibited him from visiting Daughter.

       By the time the court ruled upon the matter, both children had reached the age of
majority and graduated from high school. Son graduated from high school in May 2005,
while Daughter graduated from high school in May 2007. At the hearing, the court noted
that Husband owed Wife $4144.29 from an outstanding judgment entered in 2003. The court
ruled that any amount of overpayment should be offset by the 2003 judgment and other
expenses from the MDA. The court stated,

       The children have aged out so [support] has quit now. So let’s go back and
       figure out when they aged out. When we aged out, we take that amount and
       subtract that from $4,144.29. If you add back the $159.00, it came back to
       $721.17. Then when you look at it, she got a check in January for $763.00, so
       I said it was a wash.

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Thus, the court held that Husband’s amount of overpayment in child support was entirely
offset by the 2003 judgment and other expenses. The court then directed Husband to pay 75
percent of the future college expenses pursuant to the MDA and directed the parties to submit
documentation concerning the amount that Wife had already paid toward the college
expenses. The court also awarded Wife $3000 in attorney fees.

       Following the hearing, Husband submitted a final order under the five-day rule. This
order was signed by the trial court and filed on April 1, 2008. Wife also submitted a final
order, which was signed by the trial court and filed on April 11, 2008. These orders differed
in several respects and did not reflect the trial court’s ruling. The April 1 order essentially
awarded Husband $2869.54 and accounted for Mother’s payments toward college expenses,
while the April 11 order awarded Wife $117.17 and reserved the issue of college expenses.
Both orders provided that Husband would be responsible for 75 percent of future college
expenses and awarded Wife $3000 in attorney fees.

       Wife filed a motion to alter or amend the court’s April 1 order, alleging that the court
entered an order without allowing the parties to submit documentation reflecting the amount
owed by Husband for the post-majority educational expenses. Wife also argued that the
proposed April 1 order “varie[d] greatly from the court’s ruling.” The court granted the
motion, and following a hearing, entered another order on May 7, 2010.

        In the second order, the court granted the motion to modify the support but “only in
so far as to render[] any support obligation of [Husband] to [Wife] satisfied.” The court held
that Husband’s payments made through his wage assignment satisfied the obligations for
“past support owed to [Wife], including the adjudicated arrearage [from 2003], the
mandatory statutory interest that would have accrued thereon, and past-due medical
obligations.” The court found that Husband owed a “duty to pay for the college education
of his children as set forth in the [MDA]” and awarded Wife a judgment “for the post-
majority support of the children incurred for their college educations through the fall
semester of 2007.” The court found that the amount owed for the college expense
responsibility was $11,230.43. The court also awarded Wife attorney fees in addition to the
fees that were previously awarded, bringing the total attorney fee award to $6000. The court
found that all previous orders on the case should be “rendered null and void.” The court did
not enter a child support worksheet or account for how it determined that the overpayment
in child support merely satisfied the arrearage, statutory interest, and past-due medical
obligations.

        Husband filed a motion to reconsider, alleging that the final order was not supported
by the facts presented because the court failed to enter the specific amount of child support
it used in its calculations, thereby precluding determination of whether the court complied

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with the statutory guidelines. Husband argued that the court also failed to consider Wife’s
income from the sale of a home. Husband contended that the court’s ruling relative to
college expenses was contrary to the law and should have been considered using contract
law, not divorce law. The trial court denied the motion, finding that the final order was just
and appropriate. Prior to restating that Husband’s obligation of monthly support was
terminated and that Husband owed no further support in that regard, the court found that
“application of the guidelines would be inappropriate, not in the best interest of the children,
and not achieve finality.” This timely appeal followed.

                                         II. ISSUES

       We consolidate and restate Husband’s issues on appeal as follows:

       A. Whether the trial court erred in granting Mother’s motion to reconsider.

       B. Whether the trial court erred in calculating the amount of child support
       owed without utilizing and entering a child support worksheet.

                              III. STANDARD OF REVIEW

       On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review
with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.
2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed
questions of law and fact are reviewed de novo with no presumption of correctness; however,
appellate courts have “great latitude to determine whether findings as to mixed questions of
fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

       In matters of child support, broad discretion is afforded the trial court in its
determinations. We review the trial court’s child support decisions using the deferential
abuse of discretion standard. Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App.
2005). That discretion should not be disturbed on appeal unless the evidence preponderates
against the court’s finding. See Butler v. Butler, 680 S.W.2d 467 (Tenn. Ct. App. 1984).

                                     IV. DISCUSSION

                                              A.



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        Husband argues that the trial court erred in granting Wife’s motion to reconsider
because Wife failed to file a written motion. Wife responds that Husband’s argument is
without merit because the record was supplemented to include the written motion. Husband
agreed at oral arguments that this issue is moot because the record had been supplemented
to include Wife’s written motion. Accordingly, we conclude that this issue is without merit.

                                              B.

       Husband asserts that the court erred in finding that his overpayment in child support
equaled the amount owed on Husband’s MDA obligations. Husband contends that the trial
court should have followed the child support guidelines and used a child support worksheet
when calculating the amount of child support owed for both children. Wife responds that the
court properly found that the child support guidelines were not applicable because the
children had reached the age of majority and that any deviation was beneficial to Husband.

       In this state, child support is governed by Tennessee Code Annotated section 36-5-
101. “In making the court’s 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” that are promulgated by the Tennessee Department of Human Services
Child Support Service Division. Tenn. Code Ann. § 36-5-101(e)(1)(A); see generally Tenn.
Comp. R. & Regs. 1240-02-04. The guidelines “are a minimum base for determining child
support obligations. The presumptive child support order may be increased according to the
best interest of the child for whom support is being considered, the circumstances of the
parties, and the rules of [the] chapter.” Tenn. Comp. R. & Regs. 1240-02-04-.01(4). The
guidelines provide,

       (1) Required Forms

              (a) These rules contain a Child Support Worksheet, a Credit
              Worksheet, Instructions for both Worksheets, and the Child
              Support Schedule which shall be required to implement the child
              support order determination.

              (b) The use of the Worksheets promulgated by the Department
              is mandatory in order to ensure uniformity in the calculation of
              child support awards pursuant to the rules.

              ...




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              (e) The completed Worksheets must be maintained as part of the
              official record either by filing them as exhibits in the tribunal’s
              file or as attachments to the order.

Tenn. Comp. R. & Regs. 1240-02-04-.04(1) (emphasis added). In setting the amount of
support owed, the court may choose to deviate from the guidelines. If the court chooses to
deviate, the court “shall make a written finding that the application of the child support
guidelines would be unjust or inappropriate in that particular case, in order to provide for the
best interest of the child or children, or the equity between the parties.” Tenn. Code Ann. §
36-5-101(e)(1)(A). Additionally, the court “shall state the amount of support that would have
been ordered under the child support guidelines and a justification for the variance from the
guidelines.” Tenn. Code Ann. § 36-5-101(e)(1)(A).

       Regardless of the amount of support imposed by the trial court, a parent is obligated
to support his or her child “until the child reaches eighteen years of age.” Lichtenwalter v.
Lichtenwalter, 229 S.W.3d 690, 692-93 (Tenn. 2007) (citing Tenn. Code Ann. § 34-1-
102(b)). “If the child is in high school when he or she turns eighteen years old, then the child
remains entitled to parental support until the child graduates from high school or the class
of which the child is a member when the child attains eighteen years of age graduates,
whichever occurs first.” Id. (citing Tenn. Code Ann. § 34-1-102(b)). A modification of the
support owed may be requested pursuant to the guidelines when there is a change in the
number of children for whom the obligor parent is legally responsible. Tenn. Comp. R. &
Regs. 1240-02-04-.05(2)(b)(2). “To determine if a modification is possible, a child support
order shall first be calculated on the Child Support Worksheet using current evidence of the
parties’ circumstances.” Tenn. Comp. R. & Regs. 1240-02-04-.05(3) (emphasis added); see
also Tenn. Comp. R. & Regs. 1240-02-04-.06 (outlining a similar procedure used for
determining the amount of retroactive support owed). If a significant variance exists between
the current order and the proposed amount, “such a variance would [generally] justify the
modification of a child support order.” Tenn. Comp. R. & Regs. 1240-02-04-.05(3).

       An obligor parent may, “under appropriate circumstances, prorate his or her child
support payments after a child is emancipated without first obtaining a court order.” Corder
v. Corder, 231 S.W.3d 346, 359 (Tenn. Ct. App. 2006). “[P]roration may not be appropriate
where the support order in effect requires the obligor parent to pay a lump sum for all of the
children, without identifying the amount to which each child is entitled, and the
circumstances justify holding the obligor parent responsible for the original amount of child
support (or at least a disproportionate portion of the original amount) for the remaining minor
children.” Id. at 359-60; see Bell v. Bell, No. 01A01-9511-CH-00493, 1996 WL 548150
(Tenn. Ct. App. Sep. 25, 2006) (“[T]he trial court is not obligated to apply proration where



                                              -6-
circumstances justify the original total amount of support for the remaining minor children.”).

        We agree that once Son reached the age of majority and graduated from high school,
Husband was entitled to request a modification of his child support obligation to reflect
payments for one child instead of two. We recognize that Daughter had also reached the age
of majority once the court ruled upon the matter. However, we believe the trial court should
have considered the child support guidelines and utilized the child support worksheet in
setting the amount of child support owed for Daughter once Son reached the age of majority
and graduated from high school. When Husband petitioned for modification, the income of
the parents had likely changed,1 and Husband had not exercised his visitation with Daughter,
leaving Wife to care for Daughter the entirety of the year.2 These are circumstances that
might have justified holding Husband responsible for a greater portion of the original amount
once Son reached the age of majority. The record reflects that, in part, the court referenced
Husband’s child support worksheet and adopted some of Husband’s calculations. While the
court’s calculations may have been beneficial to Husband, we believe the trial court should
have fully utilized a child support worksheet in calculating the amount owed. Additionally,
the court should have considered the current income for each parent and Husband’s actual
time spent with Daughter. We acknowledge the court’s reference to the guidelines in the
order denying Husband’s motion to reconsider but hold that the court’s glancing reference
to the guidelines was not adequate because it did not state the amount of support that would
have been ordered pursuant to the guidelines. See Tenn. Code Ann. § 36-5-101(e)(1)(A).
Accordingly, we reverse the decision of the trial court and remand the case with instruction
to the trial court to utilize a child support worksheet. If the trial court deviates from the
guidelines, the reason for the deviation must be adequately explained on the record.

                                         V. CONCLUSION

       The judgment of the trial court is reversed, and the case is remanded to the trial court
for further proceedings consistent with this opinion. Costs of the appeal are taxed to the
appellee, Rhonda M. Devore.


                                                 ______________________________________
                                                 JOHN W. McCLARTY, JUDGE




1
    The worksheets submitted by Husband and Wife reflected different incomes for Husband.
2
 Husband claimed that he should be given credit for spending 80 days with Daughter, while Wife contended
that Husband never visited with Daughter.
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