                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  October 10, 2005 Session

 STATE OF TENNESSEE ex rel. WENDY S. RUSHING v. CHRISTOPHER
                            B. SPAIN

                Direct Appeal from the Juvenile Court for Hardeman County
                            No. 04-0159    Charles Cary, Judge



                  No. W2005-00956-COA-R3-JV - Filed November 4, 2005


The trial court denied the State’s petition for child support and retroactive child support for
Respondent/Father’s two minor children. We reverse.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Paul G. Summers, Attorney General and Reporter and Warren Jasper, Assistant Attorney General,
for the appellant, State of Tennessee.

Christopher B. Spain, Pro se.

                                            OPINION

        This is a Title IV-D child support case. Parentage and the facts underlying this action are
undisputed. Wendy S. Rushing (Ms. Rushing) and Christopher B. Spain (Mr. Spain) are the
unmarried parents of two minor children, born November 2002 and March 2004. Ms. Spain receives
State assistance, TennCare and food stamps, in support of the children. Mr. Spain and Ms. Rushing
live together with their two minor children and Ms. Rushing’s child from a previous relationship.
Mr. Spain earns approximately $600 per week. Ms. Rushing does not work outside the parties’
home. The parties have lived together for six years and have lived in the same home for two years,
although they do not have a lease. The parties do not share a checking account, but Mr. Spain pays
their expenses.

        On July 28, 2004, the State petitioned the Juvenile Court of Hardeman County to set child
support for the parties’ two minor children. The juvenile court determined Mr. Spain’s child support
obligation would be $463 based on an average gross monthly income of $1,843. However, the
juvenile court determined that “the application of the [child support] guidelines would be unjust or
inappropriate” in this case. In its December 2004 order, the juvenile court declined to order
retroactive child support. The juvenile court also “deviated downwards” from the guidelines and
declined to set child support. Following the juvenile court’s order denying its motion to alter or
amend to include an order of support, the State filed a timely notice of appeal to this Court.1 We
reverse and remand for the setting of child support consistent with the child support guidelines.

                                                ISSUE PRESENTED

       The issue raised for our review is whether the trial court erred in declining to apply the child
support guidelines to set prospective and retroactive child support in this case.

                                            STANDARD OF REVIEW

        We review the trial court's findings of fact de novo, with a presumption of correctness. Tenn.
R. App. P. 13(d); Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). We will not reverse the
trial court’s factual findings unless they are contrary to the preponderance of the evidence. Id. Our
review of the trial court’s conclusions on matters of law, however, is de novo with no presumption
of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). We likewise review the trial
court’s application of law to the facts de novo, with no presumption of correctness. State v. Thacker,
164 S.W.3d 208, 248 (Tenn. 2005).

                                                       ANALYSIS

        We turn first to the State’s assertion that the juvenile court erred in declining to set
prospective child support according to the child support guidelines. We are not insensitive to the
juvenile court’s opinion that, although Mr. Spain and Ms. Rushing are unmarried, this family
functions as a traditional family and an order of support might disrupt the family’s relationship.
However, unmarried parents may not circumvent the child support guidelines by private agreement.
Berryhill v. Rhodes, 21 S.W.3d 188, 192 (Tenn. 2000). Additionally, the State may seek the
establishment of a child support order when the custodial parent has received public benefit
assistance under Title IV-D, and the State is required to operate a “central collection and
disbursement unit” to process child support payments that meet the criteria established by Title IV-D
of the Social Security Act. Tenn. Code Ann. § 36-5-116 (2005); State ex rel. Mitchell v. Armstrong,
No. W2003-01687-COA-R3-JV, 2004 WL 2039811, at *3-4 (Tenn. Ct. App. Sept. 3, 2004) (no
perm. app. filed). Further, in Title IV-D cases, child support payments must be paid directly to the
Tennessee Department of Human Services. Tenn. Code Ann. § 36-5-116(a)(2005); State ex rel
Mitchell, 2004 WL 2039811, at *4. The trial court must set child support in accordance with the
child support guidelines, but may deviate downwards as prescribed in Casteel v. Casteel, No.
03A01-9703-CV-00073, 1997 WL 414401 (Tenn. Ct. App July 24, 1997), perm. app. denied (Tenn.


         1
             Mr. Spain did not file a brief in this appeal. Therefore, we consider this mater on the record and the State’s
brief.

                                                             -2-
Mar. 2, 1998). State ex rel. Mardis v. Mardis, No. M2002-01026-COA-R3CV, 2005 WL 1467871,
at *1 (Tenn. Ct. App. June 20, 2005) (no perm. app. filed). In this case, the trial court did not have
the discretion to approve the parties’ private arrangement and bypass the child support guidelines
and Tennessee Code Annotated § 36-5-116. See, e.g., State ex rel. Mitchell, 2004 WL 2039811, at
*4.

        The State also contends that the juvenile court erred in not awarding retroactive child support
or, alternatively, in crediting Mr. Spain for support he has provided. It is clear from the juvenile
court’s order that the court did not credit Mr. Spain for amounts spent in support of the children, but
simply did not apply the guidelines to this case. As noted above, the court lacked the discretion to
simply remove this Title IV-D case from the child support statutes and guidelines.

        Parents may be given credits against their child support obligations for voluntary payments
they have made on behalf of their children when the payment is for necessaries which are not being
supplied by the custodial parent. E.g., Peychek v. Rutherford, No. W2003-01805-COA-R3-JV, 2004
WL 1269313, at *3 (Tenn. Ct. App. June 8, 2004) (no perm. app. filed). In this case, it is undisputed
that Mr. Spain had an obligation to support his children and that he voluntarily has provided all of
the financial support, other than that provided by the State through TennCare and food stamps, which
the parties’ children have received. This includes the provision of necessaries for which he may be
credited.

                                             HOLDING

        In light of the foregoing, the judgment of the trial court is reversed. We remand this matter
for a determination of prospective and retroactive child support in accordance with the child support
guidelines, and for a determination of credits due Mr. Spain against the award of retroactive support.
Costs of this appeal are taxed to the Appellee, Christopher B. Spain.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




                                                 -3-
