                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   MAY 18, 2004 Session

  RI CKY D. WATKINS, SR. v. STATE OF TENNESSEE, DEPARTMENT
     OF HUMAN SERVICES, ex rel, DOROTHY M. PRATHER, ET AL.

                Direct Appeal from the Juvenile Court for Hardeman County
                Nos. R.D. 3610-1, 97-0012 & 99-0027    Steve Hornsby, Judge



                     No. W2003-02577-COA-R3-JV - Filed July 21, 2004


This case involves an order for child support for three children of three different mothers. The
Juvenile Court of Hardeman County consolidated the three matters into one cause. The trial court
ordered Father to pay the child support amount for three children under the Child Support Guidelines
and divided the amount equally into thirds. The State of Tennessee Department of Human Services
filed this appeal. We reverse and remand for further proceedings consistent with this opinion.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Paul G. Summers, Attorney General & Reporter, Warren A. Jasper, Assistant Attorney General,
Nashville, TN, for Appellant

Nathan B. Pride, Jackson, TN, for Appellee

                                            OPINION

                                 Facts and Procedural History

        Ricky D. Watkins, Sr. (“Watkins” or “Father”) is the father of three children from three
different women: Ricky D. Watkins, Jr. (“Ricky”) was born on February 14, 1990, to Dorothy M.
Brown (“Ms. Brown”); Fankesna L. Coby (“Fankesna”) was born on March 29, 1995, to Tametria
E. Coby (“Ms. Coby”); Jordon M. McNeal (“Jordon”) was born on December 18, 1995, to Mickie
D. McNeal (“Ms. McNeal”).
        By consent order dated September 9, 1992, paternity was established for Ricky and the
Juvenile Court of Hardeman County set Father’s child support payments for Ricky at $203 per
month. By another consent order dated December 1, 1997, paternity was established for Jordon and
the Juvenile Court of Hardeman County set Father’s child support payments for Jordon at $200 per
month plus an additional $50 per month until Father paid off a child support arrearage of $5,900.
Finally, by consent order dated May 13, 1999, paternity was established for Fankesna and the
Juvenile Court of Hardeman County set Father’s child support payments for Fankesna at $233 per
month plus an additional $25 per month until Father paid off a child support arrearage of $5,000.

        In March 2003, an administrative order for the modification of Jordon’s child support
payments was filed with the juvenile court, increasing Father’s child support obligation to $320 per
month. In May 2003, Father petitioned the Juvenile Court of Hardeman County to consolidate all
three cases for child support and set payments such that each child received the same amount of child
support. The trial court granted the motion to consolidate all three matters into one proceeding by
order filed on July 30, 2003. After finding that Father’s earning capacity was $2,280 per month,1
the court modified the previous support orders by determining the amount of support for a person
with such income and three children and dividing that amount equally into thirds. The State of
Tennessee Department of Human Services (“Appellant”) filed its notice of appeal and presents the
following issue2 for our review: whether the trial court erred when it deviated from the Tennessee
Child Support Guidelines without stating factual findings to support such deviation. For the reasons
stated herein, we reverse the decision of the trial court and remand for further proceedings consistent
with this opinion.

                                                Standard of Review

       “[R]eview of findings of fact by the trial court in civil actions shall be de novo upon the
record of the trial court, accompanied by a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d); see also Whitfield v. Whitfield,
No. 03A01-9504-CV-00138, 03A01-9404-CV-00140, 1995 Tenn. App. LEXIS 781, at *4 (Tenn.
Ct. App. Nov. 29, 1995). Our review of all questions of law is de novo with no presumption of
correctness given to the trial court. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993).

                                                 Law and Analysis

       Appellant argues that the trial court erred when it deviated from the Child Support Guidelines
without setting forth the proper factual findings. Specifically, Appellant argues that the trial court’s
order awarding each child $253 per month was error because the court made no findings to justify

         1
                   Though it is unclear from the record and the trial court’s order, we presume that the trial court found
that Father’s gross, as opposed to net, income per month was $2,280.

         2
                  W hile Father presents the issue of “[w]hether there was error in the Court’s decision to treat all of the
children the same,” we perceive that such question is encompassed within the issue as presented by Appellant.

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such a deviation. In this case, the trial court determined that Father’s gross income was $2,280 per
month, applied the percentage for three children (41%) to Father’s net income, and divided that
amount equally between Ricky, Fankesna, and Jordon.

      We begin by noting that Tenn. Comp. R. & Regs. 1240-2-4-.03(4) (1994)3 sets forth the
method for a trial court to determine an obligor’s net income. Specifically, the Guidelines state:

         Net income is calculated by subtracting from gross income of the obligor FICA
         (6.2% Social Security + 1.45% Medicare for regular wage earners and 12.4% Social
         Security + 2.9% Medicare for self-employed, as of 1991, or any amount subsequently
         set by federal law as FICA tax), the amount of withholding tax deducted for a single
         wage earner claiming one withholding allowance (copies of appropriate table will be
         provided to courts with guidelines), and the amount of child support ordered pursuant
         to a previous order of child support for other children.

Tenn. Comp. R. & Regs. 1240-2-4-.03(4) (1994). Next, we note that the Guidelines provide how
they must be applied by a trial court:

         These guidelines shall be applied as a rebuttable presumption in all child support
         cases. If the court finds the evidence is sufficient to rebut the presumption that the
         application of the guidelines is the correct amount to be awarded, then the court must
         make a written or specific finding that the application of the child support guidelines
         would be unjust or inappropriate in that particular case. Findings that rebut these
         guidelines must state the amount that would have been required under the guidelines
         and include a justification for deviation from the guidelines which takes into
         consideration the best interest of the child.

Tenn. Comp. R. & Regs. 1240-2-4-.02(7) (1994). In discussing the effect the Guidelines have on
situations with children born from the same father but different mothers, this Court has stated:

         [T]he Guidelines express a preference for children for whom a child support order
         is established first in time, regardless of whether the child was the product of a valid
         marriage or whether the child ever resided with the obligor. We recognize that this
         preference may work to the detriment of children for whom a subsequent order of
         child support is entered. We believe, however, that this is an argument more
         appropriately addressed to the General Assembly or to the Department of Human
         Services, the entity responsible for promulgating the Child Support Guidelines.



         3
                  W e are mindful that such section of the Guidelines was recently amended. However, because the
hearing on this matter occurred in June 2003, with the final order issued in July 2003, and the effective date for amended
Regulation 1240-2-4-.03 was December 13, 2003, the prior version of such Regulation applies. See Tenn. Comp. R. &
Regs. 1240-2-4-.03(4) (2003).

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State ex rel. Davis v. Matikke, No. 01A01-9702-CV-00090, 1997 Tenn. App. LEXIS 706, at *8
(Tenn. Ct. App. Oct. 17, 1997).

       In this case, the trial court stated the following in its final order:

       With argument of counsel, review of the record and the case as a whole, from all of
       which, this Court did find that the Motion [of Father] was well taken and it should
       be granted accordingly. The Court granted Petitioner’s [Father’s] request to
       consolidate three (3) cases. It then granted his request to set child support of his three
       (3) children, noting that unless the same was set equitably, it would create an
       injustice to the children. The Court then did Order that referral be made to the
       guidelines as promulgated by [the] Supreme Court, for the determination of three (3)
       children and that the amount be divided by three (3) cases and the support set for
       each of the children equally. That the same may continue to be deducted by wage
       assignment but the wage assignment should be modified according to this Order.

The trial court then ordered that Father’s support obligation of $760, representing Father’s child
support obligation for three children under the Guidelines, be divided equally, whereby Ricky,
Fankesna, and Jordon each receive $253 per month in support payments.

         Though the trial court found that application of the Guidelines would result in an injustice,
it made no findings with regard to what the amount of support would have been under the
Guidelines. Specifically, the trial court did not determine the amount of support the Guidelines
would allow, given the preference the Guidelines hold for children with prior orders of child support.
See Matikke, 1997 Tenn. App. LEXIS 706, at *8. In addition, the trial court offered no justification
in its final order for such deviation from the Child Support Guidelines, which is presumed correct
until sufficiently rebutted. Finally, we note that, even though previous orders for child support
existed for all three of Father’s children, the trial court did not address the issue of whether a
significant variance existed between the amount of support required by the Guidelines and the
amount currently ordered. Tenn. Code Ann. § 36-5-101(a)(1) (2001). For these reasons, we reverse
the trial court’s order and remand for further findings and proceedings consistent with this opinion
and the Child Support Guidelines.

                                             Conclusion

       For the foregoing reasons, we reverse the trial court’s order and remand for further findings
and proceedings consistent with this opinion. Costs of this appeal are taxed to Appellee, Ricky D.
Watkins, Sr., for which execution may issue if necessary.



                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE


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