                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 December 15, 2005 Session

       TAMMY HOPKINS LINDSAY v. DWIGHT KELLEY LINDSAY

                     Appeal from the Circuit Court for Davidson County
                         No. 00D-1778     Carol L. Soloman, Judge



                   No. M2005-00207-COA-R3-CV - Filed January 25, 2006



Tammy Hopkins Lindsay (“Mother”) and Dwight Kelley Lindsay (“Father”) were divorced in
December of 2000, but have returned to court numerous times since then. Most of the post-divorce
controversy centers around the amount of Father’s child support payment and the arrearages which
have accrued since the divorce. After the most recent hearing, the Trial Court entered a detailed
order resolving competing petitions filed by the parties. The only issue in this appeal concerns that
portion of the Trial Court’s order which requires Father to pay an additional $50 each time he fails
to exercise co-parenting time on a weekend, and an additional $25 for each day that he fails to
exercise co-parenting time on a holiday or during the summer. We vacate only this particular portion
of the Trial Court’s Order, and affirm the order as so modified.


              Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit
             Court Vacated in Part and Affirmed as Modified; Case Remanded.


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, J., joined.


Tracey Robinson-Coffee, Nashville, Tennessee, for the Appellant Dwight Kelley Lindsay.


Mary Arline Evans and Alan D. Johnson, Nashville, Tennessee, for the Appellee Tammy Hopkins
Lindsay.
                                            Background


                The parties were divorced in December of 2000. The parties had a ten year old son
and a six year old daughter at the time of the divorce. The Final Decree of Divorce adopted a
Permanent Parenting Plan previously entered by the Trial Court. The Permanent Parenting Plan
designated Mother as the primary residential parent and required Father to provide health insurance
for the children and to pay child support of $228.70 per week. Father’s co-parenting time also was
set forth. In addition, Father was ordered to pay $3,000 toward Mother’s attorney fees.

               The parties were back in court numerous times over the next few years. For example,
in June of 2001, the Trial Court entered an Order finding Father to be almost $2,200 in arrears on
his child support payments. Father apparently had not paid anything toward the attorney fees he
previously was ordered to pay and, accordingly, the Trial Court also awarded Mother’s attorney a
judgment against Father for $3,000.

               In September of 2002, the parties were back in court concerning a dispute over
Father’s not maintaining a life insurance policy as previously ordered. The Trial Court ordered
Mother to pay the monthly premiums for the life insurance policy, but required Father to reimburse
Mother the same amount as alimony.

                In June of 2004, Father filed a Petition to Modify Child Support. According to the
petition, Father had been laid off from his job where he had been earning approximately $4,000 per
month. Father claimed he was unable to secure alternate employment despite his best efforts. Father
anticipated being eligible for unemployment compensation in the amount of $255 per week. Father
also claimed that he would be unable to pay for health insurance on the children inasmuch as the
COBRA payments would exceed $700 per month.

                Mother responded to Father’s petition by essentially denying that Father was entitled
to a decrease in child support payments. Mother also filed a counter-petition seeking to have Father
held in civil contempt of court. Mother claimed Father was in arrears on his child support payments,
and that he had failed to pay his share of the children’s medical bills not otherwise covered by health
insurance.

               A hearing was held on the competing petitions after which the Trial Court entered an
Order which reduced the weekly amount Father was required to pay, “although the actual amount
owed shall not be reduced.” In other words, Father’s child support obligation remained at $228.70
per week, with $75.00 being due and payable each week and the remaining $153.70 to accrue as an
arrearage. Father was relieved of his obligation to maintain health insurance on the children, but he
was ordered to reimburse Mother $56.75 per week for payments she was making toward health
insurance for the children.




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               In August of 2004, Mother filed a petition seeking to have Father held in criminal
contempt. Among other things, Mother claimed Father yet again was behind on child support
payments and was not reimbursing her for health insurance coverage on the children. On September
16, 2004, the Trial Court entered an Order finding Father in criminal contempt on twelve charges
and ordered Father to serve ten days in jail for each violation, for a total of 120 days.1

               Another hearing was conducted in December of 2004. A comprehensive order
discussing in detail each party’s financial responsibilities regarding the care of their children was
issued following this hearing. In this Order, the Trial Court specifically found that Father was
“grossly underemployed” and that he was “not a truthful or credible witness.” The Trial Court
established how the parties were to communicate with each other as well as Father’s co-parenting
time. The Trial Court also established the amount of Father’s arrearages in child support, health
insurance reimbursement, and unpaid medical bills, all of which totaled $5,031.31. As to Father’s
child support payments, the Trial Court concluded:

                         •       That for a short period of time, until February 4, 2005,
                  Mr. Lindsay should be given an opportunity to correct his
                  underemployment and that commencing immediately and until
                  February 3, 2005, he should pay child support in accordance with the
                  Guidelines based upon his actual, current earnings, plus an additional
                  Ten ($10.00) Dollars per week based upon his non-visitation;

                         •      That commencing Friday December 10, 2004 through
                  Thursday, February 3, 2005, Dwight Lindsay shall pay the sum of
                  Ninety-Six and 98/100 ($96.98) Dollars per week Guidelines child
                  support plus Ten ($10.00) Dollars additional, for a total payment of
                  One Hundred Six and 98/100 ($106.98) Dollars per week;

                                                        ***

                         •      That Mr. Lindsay should pay the aforesaid arrearage
                  judgment of $5,031.31 at the rate of $50.00 per week, commencing
                  December 10, 2004, until the principle (sic) balance and any interest
                  accrued thereon from and after December 6, 2004 have been paid in
                  full;

                                                        ***




         1
            A separate appeal was taken from the order finding Father in criminal contempt. Via a separate opinion filed
contemporaneously herewith, the finding of criminal contempt was vacated by this Court as all parties agreed on appeal
that Father was not properly advised of his constitutional right to counsel prior to being held in criminal contempt.

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                       •      That commencing February 4, 2005, Dwight Lindsay’s
               child support obligation shall return to the amount previously Ordered
               in November 2000, to wit: Two Hundred Twenty-Eight and 70/100
               ($228.70) Dollars per week;

                                                 ***

                        •      That in the event Dwight Lindsay misses a weekend
               visitation with the two (2) minor children, he should within ten (10)
               days, pay Tammy Lindsay the sum of Fifty ($50.00) Dollars;

                      •      That in the event Dwight Lindsay misses a holiday or
               summer visitation, he should, within ten (10) days, pay Tammy
               Lindsay the sum of Twenty-Five ($25.00) Dollars per day for each
               day missed ….

             Father appeals raising only the following issue: “Whether the lower court can order
an upward deviation of a specific amount each time [the] non-custodial parent fails to visit his
child.”

                                             Discussion

                 Our review is de novo upon the record, accompanied by a presumption of correctness
of the findings of fact of the trial court, unless the preponderance of the evidence is otherwise. Tenn.
R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court's conclusions of
law are subject to a de novo review with no presumption of correctness. S. Constructors, Inc. v.
Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). We review child support decisions
for abuse of discretion. State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244 (Tenn. Ct. App. 2000).
However, a trial court’s discretion is limited because such “discretion must be exercised within the
strictures of the Child Support Guidelines.” Berryhill v. Rhodes, 21 S.W.3d 188, 193 (Tenn. 2000);
see also Jones v. Jones, 930 S.W.2d 541, 545 (Tenn. 1996).

               The order at issue was filed on December 14, 2004. Shortly thereafter, on January
18, 2005, the Child Support Guidelines were revised substantially. The version of the Guidelines
in effect when the order was entered provided that the Guidelines were designed to apply to
situations where the non-custodial parent exercised co-parenting time at least every other weekend
from Friday to Sunday, two weeks during the summer, and an additional two weeks during holidays
throughout the year. See Tenn. Comp. R. & Regs. 1240-2-4-.02(6). The Guidelines also provided
that if the non-custodial parent was not exercising the minimum amount of visitation, then an
amount should be added to compensate the “obligee for the cost of providing care for the child(ren)
for the amount of time during the average visitation period that the child(ren) is/are not with the
obligor.” Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(b). Likewise, a court could consider a



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downward deviation if the non-custodial parent was consistently providing more care and
supervision than contemplated in the rule. Id.

                  The new Guidelines likewise presume that the non-custodial parent will exercise co-
parenting time a minimum of every other weekend from Friday to Sunday, two weeks during the
summer, and an additional two weeks during holidays throughout the year, “for a total of eighty (80)
days per year.” Tenn. Comp. R. & Regs. 1240–2-4-.03(6)(e)(1). The new Guidelines specifically
set forth a chart for determining when and how much child support payments should be increased
or decreased based on the non-custodial parent exercising more than or less than the average
visitation contemplated by the rules. See Tenn. Comp. R. & Regs. 1240–2-4-.03(6)(e)(2) and (3).
However, the new Guidelines also require there to be a “significant variance” before a party can have
current child support obligations modified. As of January 1, 2006, a significant variance is defined
as “at least a fifteen percent (15%) change between the amount of the current support order and the
amount of the proposed support order… .”2 Tenn. Comp. R. & Regs. 1240-2-4-.05(7).

                We agree with Father that the Trial Court erred when it set forth a specific dollar
amount Father would be penalized if, in the future, he missed any of his co-parenting time. If Father
does not exercise the amount of co-parenting time contemplated by the Guidelines, and the amount
of Father’s reduced co-parenting time is such that Mother is permitted under the Guidelines to seek
a modification, she will be entitled at that time to seek such a modification. In the meantime, Father
cannot be penalized in the manner set forth in the Trial Court’s order as such a penalty is inconsistent
with the Guidelines. We also note that given these parties’ history of numerous post-divorce
disputes, the procedure created by the Trial Court almost certainly would result in continuous
disagreements between Mother and Father as to whether such a day or days of visitation had been
missed by Father and, therefore, what additional amount Father owed. For example, what happens
if Father misses a weekend visitation day but has the children for an unscheduled weekday visitation
the next month? Compliance with the Guidelines will prevent giving Mother and Father the
additional opportunity to disagree about how much Father’s child support payment should be at any
given time.

                We hereby vacate the portion of the Trial Court’s order which requires Father to pay
an additional $50 each time he fails to exercise co-parenting time on a weekend, and an additional
$25 for each day that he fails to exercise co-parenting time on a holiday or during the summer. In
all other respects, the judgment of the Trial Court is affirmed.




         2
            If the parent seeking a modification in a support order qualifies as a low income provider, then a significant
variance is defined as seven and one-half percent (7.5%). Tenn. Comp. R. & Regs. 1240-2-4-.05(7).

                                                           -5-
                                            Conclusion

                The judgment of the Trial Court is vacated in part, and is affirmed as so modified.
This case is remanded to the Trial Court for collection of the costs below. Exercising our discretion,
costs on appeal are taxed one-half to the Appellant Dwight Kelley Lindsay and his surety, and one-
half to the Appellee Tammy Hopkins Lindsay.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




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