                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                        Submitted on Briefs December 18, 2009

 STATE OF TENNESSEE, EX REL. MARKIE JADE LAXTON V. SAMUEL
                  BYRON BIGGERSTAFF

                    Appeal from the Juvenile Court for Scott County
                      No. 10564     James L. Cotton, Jr., Judge


               No. E2009-01707-COA-R3-JV - FILED MARCH 5, 2010


This is an appeal by the father requesting modification of his child support obligation due to
his incarceration. The trial court denied relief. We affirm.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J. and C HARLES D. S USANO, J R., J., joined.

Samuel Byron Biggerstaff, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
and Warren A. Jasper, Senior Counsel, for the appellee, Tennessee Department of Children’s
Services.

                                         OPINION

                                    I. BACKGROUND

       This is a child support matter arising out of a paternity case. Markie Jade Laxton is
the mother of a minor child born January 8, 2004. The State of Tennessee is providing child
support enforcement services to Ms. Laxton (“Mother”) pursuant to Title IV-D of the Social
Security Act, 42 U.S.C. § 651m et seq, and Tenn. Code Ann. § 71-3-124(c) (2004)..

       The State filed a petition to establish paternity against Samuel Byron Biggerstaff
(“Father”) on or about August 23, 2006. The petition attached an administrative order for
parentage tests requiring Father to appear and submit to testing for parentage determination.
A hearing was held on the petition on February 6, 2007. An order of continuance, entered
seven days later, stated the hearing was continued because Father was served by “unclaimed
mail,” did not appear for the paternity testing, and failed to appear for the hearing. The order
also related that paternity would be established without testing if Father did not appear at the
March 13, 2007 hearing.

       On the designated hearing date, Father again did not appear. The referee determined
that Father had been served on November 9, 2006 by “unclaimed mail,” that he failed to
appear for testing, failed to appear twice for hearings, and that he would be established as
father without testing. The amount of retroactive child support was found to be $7,296 and
payments were set at $292 per month ($192 per month and $100 on the arrearage). The
referee’s order was subsequently approved by the trial court.

        The record reveals that Father came into the custody of the Tennessee Department of
Corrections (TDOC) in March 2008. In March 2009, he requested that the trial court order
DNA testing in a pro se petition to determine paternity. The results of the court-ordered
testing showed a 99.99% probability that Father was the biological parent of Mother’s child.

        A hearing was held on July 14, 2009, upon a motion by Father to suspend child
support payments and/or to stop continuous accumulation. The trial court noted that it had
allowed the DNA testing because of the service issues. Jail records were reviewed to
confirm that Father was not in custody when served with the petition to determine paternity.
The original order was found to be valid and reaffirmed based upon proper service and the
fact that the testing showed paternity. The State was awarded a judgment of $11,490 as of
June 30, 2009, and child support was set at $292 per month including $100 for retroactive
support. The referee’s order was confirmed by the trial court and entered on July 27, 2009.
Father thereafter filed a timely notice of appeal.


                                         II. ISSUES

        The first two issues raised by Father address the continuing child support obligation
during his incarceration and the accumulating arrearage. The third issue addresses alleged
errors regarding “affirming” the order establishing paternity upon which the child support
obligation is based.




                              III. STANDARD OF REVIEW

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        Our review of the trial court’s findings of fact is de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates otherwise.
Tenn. R. App. P. 13(d); see Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000); Chaffin
v. Ellis, 211 S.W.3d 264, 285 (Tenn. Ct. App. 2006). A trial court’s conclusions of law are
reviewed de novo with no presumption of correctness. State v. Wilson, 132 S.W.3d 340, 341
(Tenn. 2004).

       Setting child support and determining deviations from the applicable guidelines is in
the sound discretion of the trial court and will not be disturbed on appeal in the absence of
an abuse of discretion. State ex rel. Vaughan v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct.
App. 2000).


                                     IV. DISCUSSION

       The proper inquiry in a petition to modify child support is whether there is a
“significant variance” between the current obligation and the obligation set by the guidelines.
Kaplan v. Bugalla, 188 S.W.3d 632, 637 (Tenn. 2006). An entitlement to a modification
pursuant to the significant variance test may be negated by a finding of voluntary
underemployment. See Kaplan v. Bugalla, No. M2006-02413-COA-R3-CV, 2007 WL
4117787, at *4 (Tenn. Ct. App. M.S., Nov. 16, 2007). The burden is upon the petitioner to
establish proof of the variance. Turner v. Turner, 919 S.W.2d 340, 345 (Tenn. Ct. App.
1995).


                                              A.

      Father contends that he is incarcerated and has insufficient income to meet the
monthly child support payments. He essentially requests that the child support payments be
suspended or reduced until such time that he is released from prison.

       Cases from other jurisdictions dealing with this issue may be divided roughly into
three different approaches:

       The first approach, dubbed the “no justification” rule, generally deems
       criminal incarceration as insufficient to justify elimination or reduction of an
       open obligation to pay child support. The second approach, known as the
       “complete justification” rule, generally deems incarceration for criminal
       conduct as sufficient to justify elimination or reduction of an existing child
       support obligation. Finally, the third approach is the “one factor” rule, which

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       generally requires the trial court to simply consider the fact of criminal
       incarceration along with other factors in determining whether to eliminate or
       reduce an open obligation to pay child support.

Yerkes v. Yerkes, 824 A.2d 1169, 1172 (Pa. 2003) (internal citations omitted).

       Under Tennessee law, there is no presumption that a parent is willfully or voluntarily
underemployed or unemployed. In re K.O., No. M2007-01262-COA-R3-JV, 2008 WL
3069777, at *4 (Tenn. Ct. App. M.S., July 31, 2008). The party alleging that a parent is
willfully or voluntarily underemployed or unemployed carries the burden of proof. Tenn.
Comp. R. & Regs. § 1240-2-4-.04(3)(a)(2)(ii) (2008).

       In State ex rel. C.M. v. L.J., No. M2005-02401-COA-R3-JV, 2007 WL 1585170, at
*2 (Tenn. Ct. App. M.S., May 31, 2007), the sole issue was “whether a parent who is
incarcerated for the commission of a crime is willfully or voluntarily unemployed for
purposes of child support.” This court held:

       Before the 2005 amendments [to the Tennessee Child Support Guidelines], the
       courts declined to hold that the commission of a crime, without more, that
       resulted in the parent’s incarceration, was sufficient to sustain a finding of
       willful or voluntary unemployment. See Pennington v. Pennington, No.
       W2000-00568-COA-R3-CV, 2001 WL 277993, at *4 (Tenn. Ct. App. March
       14, 2001). The Pennington court declined to find Mr. Pennington voluntarily
       unemployed as a result of the act leading to his incarceration, reasoning:

       “Mr. Pennington did not intend to become incarcerated and unemployed when
       he made the choice to use cocaine; thus, the record does not support a finding
       that Mr. Pennington was willfully and voluntarily unemployed.” Pennington,
       2001 WL 277993, at *4; see also Coates v. Coates, No. M2001-01928-COA-
       R3-CV, 2002 WL 31528512 (Tenn. Ct. App. Nov. 15, 2002); Johnson v.
       Johnson, No. M2003-00866-COA-R3-CV, 2004 WL 2218478 (Tenn. Ct. App.
       Oct. 2, 2004). In Coates, this court rejected the proposition that “a parent’s
       dishonest acts which lead to unemployment constitute willful and voluntary
       unemployment.” Coates, 2002 WL 31528512, at *3 (citing Wilson v. Wilson,
       43 S.W.3d 495, 497 (Tenn. Ct. App. 2000)). “[A]s a logical extension of that
       principle, we have also held that unemployment or underemployment resulting
       from incarceration is not willful and voluntary.” Coates, 2002 WL 31528512,
       at *3 (citation omitted); Johnson, 2004 WL 2218478, at *4.

       Pennington and its progeny clearly state that a parent is not willfully or

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       voluntarily unemployed as a result of the act leading to incarceration. Thus,
       the question is whether the 2005 amendments to the regulations supplant
       Pennington and its progeny. We have determined they do not. Our
       determination is based on two factors.

       First, we note the language in the 2005 regulations is merely permissive.
       Instead of using mandatory terminology, the 2005 amendments are based upon
       the permissive phrases “can be” and “is not limited to.” See Tenn. Comp. R.
       & Regs. § 1240-2-4-.04(3)(d)(ii) and 1240-2-4-.04(3)(d)(i). Tenn. Comp. R.
       & Regs. § 1240-2-4-.04(3)(d)(ii) provides that a determination of willful and
       voluntary unemployment or underemployment can be based on any intentional
       choice or act that affects a parent’s income. Such terminology – can be – does
       not, however, mandate that any and all intentional choices that affect a parent’s
       income constitute willful or voluntary unemployment. The same rationale
       applies to Tenn. Comp. R. & Regs. § 1240-2-4-.04(3)(d)(i) which merely
       provides that the determination of willful and voluntary unemployment is not
       limited to occupational choices that are motivated only by an intent to avoid
       or reduce child support obligations.

       The second factor in our determination is that the State has the burden of
       proof. See Demers v. Demers, 149 S.W.3d 61, 69 (Tenn. Ct. App. 2003); see
       also Richardson v. Spanos, 189 S.W.3d 720, 727 (Tenn. Ct. App. 2005).

       Based upon the foregoing analysis, we conclude that without other evidence,
       direct or circumstantial, of willful or voluntary underemployment or
       unemployment, the mere fact a parent is incarcerated for committing a crime
       is insufficient to sustain a finding that the commission of the crime constitutes
       a willful or voluntary attempt to be underemployed or unemployed for
       purposes of child support.

       . . . [W]e find . . . the State failed to carry its burden.

Id. at *2-3.


        Last year, in the context of a termination of parental rights case, another panel of this
court in In re C.T.B., No. M2009-00316-COA-R3-PT, 2009 WL 1939826 (Tenn. Ct. App.
M.S., July 6, 2009), found “the reasoning employed [in Pennington and State ex rel. C.M.
v. L.J.] . . . to be persuasive . . . .” Id. at *5. The court noted:



                                                -5-
       In the context of determining whether a parent’s unemployment or
       underemployment is “willful” under the child support guidelines, we have
       refused to consider incarceration or unemployment as a result of a parent’s
       wrongful behavior to be enough to establish willfulness. For example, in
       Pennington v. Pennington, the father was incarcerated for drug offenses and
       lost his medical license. Pennington, No. W2000-00568-COA-R3-CV, 2001
       WL 277993, *1 (Tenn. Ct. App. Mar. 14, 2001). We declined to find the
       father’s unemployment to be willful, stating that he “did not intend to become
       incarcerated and unemployed when he made the choice to use cocaine.” Id. at
       *4. Similarly, in Wilson v. Wilson, the father’s employment as a car salesman
       was terminated after he was accused of pocketing the proceeds of extended
       warranty sales he made to customers. Wilson, 43 S.W.3d 495, 496 (Tenn. Ct.
       App. 2000). This court rejected the argument that because the father’s
       criminal acts were willful and voluntary, he should be considered willfully and
       voluntarily underemployed. Id. at 497. We concluded that willfulness under
       the guidelines required “an intent on the part of the parent to reduce or
       terminate his or her income.” Id.; see also State ex rel. C.M. v. L.J., No.
       M2005-02401-COA-R3-JV, 2007 WL 1585170, *2 (Tenn. Ct. App. May 31,
       2007); Johnson v. Johnson, No. M2003-00866-COA-R3-CV, 2004 WL
       2218478, *4 (Tenn. Ct. App. Oct. 1, 2004).

       We find the reasoning employed in these cases to be persuasive in the present
       context and, therefore, decline to accept the trial court’s conclusion that Father
       willfully failed to pay child support . . . .

Id. at *5.

        The question of whether incarceration provides grounds for reduction of support was
also raised in Langford v. Langford, No. M2007-01275-COA-R3-CV, 2008 WL 4367576
(Tenn. Ct. App. M.S., Sept. 23, 2008). In Langford, father appealed a default judgment
entered against him for child support while he was imprisoned. Id. at *1. On appeal, father
relied exclusively upon his incarceration as justification for modification of his support
obligation, claiming he could not pay the support ordered as it was based on pre-incarceration
earning levels. Id. We held that “Father’s imprisonment does not automatically work to
terminate his duty to support.” Id. at *2. In the absence of a transcript or statement of
evidence, this court noted that “we must conclusively presume the record and proof support
the trial court’s findings of fact . . . .”

      Child support in this state is governed by Tenn. Code Ann. §36-5-101 (Supp. 2009).
“In making [its] determination concerning the amount of support . . . the court shall apply,

                                              -6-
as a rebuttable presumption, the child support guidelines, as provided in this subsection . .
. .” Tenn. Code Ann. § 36-5-101(e)(1)(A). “Child support guidelines have been promulgated
by the Tennessee Department of Human Services and adopted by the General Assembly. The
purposes, premises, guidelines for compliance, and criteria for deviation from the guidelines
carry what amounts to a legislative mandate.” Barnett v. Barnett, 27 S.W.3d 904, 906 (Tenn.
2000) (citing Nash v. Mulle, 846 S.W.2d 803, 804 (Tenn. 1993)).

       The guidelines have been revised and directly address the question of whether support
should be reduced based upon incarceration. The guidelines provide specifically that

       . . . [c]riminal activity and/or incarceration shall not provide grounds for
       reduction of any child support obligation. Therefore, criminal activity and/or
       incarceration shall result in a finding of voluntary underemployment or
       unemployment under this section, and child support shall be awarded based
       upon this finding of voluntary underemployment or unemployment.

Tenn. Comp. R. & Regs. § 1240-2-4-.04(3)(a)(2)(ii)(I) (2008). The cited section does not
contain permissive language as discussed in our prior opinions on this subject. Rather, the
term “shall” is utilized. In our view, the guidelines’ use of that term leaves the trial court
with no discretion. See, e.g., Barnett, 27 S.W.3d at 906 (citing, e.g., Louisville & Nashville
R. Co. v. Hammer, 236 S.W.2d 971, 973 (Tenn. 1951) (holding use of “shall” in statute
requires mandatory compliance)). Thus, the trial court did not abuse its discretion in
rejecting Father’s petition seeking a reduction of his support payments on the basis of his
incarceration.

                                             B.

      Father also notes that he was a juvenile when his child was born. Father turned 17
only days after the child’s birth. We surmise that he is asserting that he should not be
responsible for child support during the period of time he was a juvenile.

      In In re Parentage of J.S., 550 N.E.2d 257 (Ill. Ct. App. 1990), a case in which a
minor father was ordered to pay child support for his son, the court stated:

       The respondent initially argues that he should not be required to support his
       child, because he was a 15-year-old minor when the child was conceived. He
       contends that Illinois public policy protects minors from the consequences of
       their improvident conduct.

       We note that contrary to the respondent’s position, Illinois public policy has

                                             -7-
        never offered blanket protection to reckless minors. At the same time, Illinois
        public policy has recognized the blanket right of every child to the physical,
        mental, emotional, and monetary support of his or her parents. The public has
        an interest in protecting children from becoming wards of the state.

        In the instant case, we find that the public policy mandating parental support
        of children overrides any policy of protecting a minor from improvident acts.
        We therefore hold that the trial court properly found that the respondent was
        financially responsible for his child.

550 N.E.2d at 258 (internal citations omitted). We concur in the reasoning of the Illinois
court. Having been cited with no authority for the proposition that the minority of a parent
should relieve that parent from the obligation of financially supporting his or her child, we
hold that the minority of Father when his child was born is irrelevant to the matters raised in
this appeal.


                                                    C.

        Father has raised the issue of the validity of the paternity order. The record establishes
that the petition was properly served by mail. Father did not claim the mail. When he failed
to appear at the scheduled hearings, paternity was established by the trial court. Father
finally sought, inter alia, a paternity test. His appearance in this matter at that point
constituted a general appearance1 with respect to the earlier paternity petition. Following his
appearance, his paternity was conclusively established.

        A court’s lack of personal jurisdiction may be waived by making a voluntary “general
appearance” before the court in order to defend the suit on the merits. Dixie Savings Stores,
Inc. v. Turner, 767 S.W.2d 408, 410 (Tenn. Ct. App. 1988); Tennessee Dept. of Human Svcs.
v. Daniel, 659 S.W.2d 625, 626 (Tenn. Ct. App. 1983). We find that Father’s general
appearance to request an order for a paternity test constituted waiver of any issues associated
with alleged failure to properly serve him the previous paternity petition. Id. Nothing in the
record contradicts this finding.




        1
         “General appearances consist of acts from which it can reasonably be inferred that the party
recognizes and submits itself to the jurisdiction of the court.” Patterson v. Rockwell Int’l, 665 S.W.2d 96,
99-100 (Tenn. 1984). All appearances are deemed to be general appearances unless the contrary appears.
Akers v. Gillentine, 231 S.W.2d 372, 376 (Tenn. Ct. App. 1950).

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                                     V. CONCLUSION

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Samuel Byron Biggerstaff. This case is remanded to the trial court, pursuant to applicable
law, for enforcement of the court’s judgment and for the collection of costs assessed below.




                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




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