                 IN THE COURT OF APPEALS OF TENNESSEE
                                                                                   FILED
                                    AT KNOXVILLE                                   June 3, 1999

                                                                             Cecil Crowson, Jr.
                                                                             Appellate C ourt
                                                                                 Clerk




PEGGY ANN BOUCHILLON                         )   C/A NO. 03A01-9804-CH-00144
BRASFIELD,                                   )
                                             )   SULLIVAN CHANCERY
       Plaintiff-A ppellant,                 )
                                             )   HON. JERRY BECK,
v.                                           )   CHANCELLOR
                                             )
JIMMY CARROLL BRASFIELD,                     )   MODIFIED
                                             )   AND
       Defendant-Appellee.                   )   REMANDED




JOHN D. LOCKRIDGE and SCARLETT A. BEATY, LOCKRIDGE, VALONE &
BEA TY, PL LC, Kn oxville, for P laintiff-Ap pellant.

THOMA S C. JESSEE, JESSEE & JESSEE, Johnson City, for Defendant-Appellee.




                                       O P I N IO N


                                                            Franks, J.


               This is a n appe al from a reduc tion in o rdered child su pport.

               Peggy Anne Brasfield and Jimmy Carroll Brasfield were divorced on

June 1 6, 1992 . They w ere aw arded jo int custo dy of the three m inor ch ildren, w ith Ms .

Brasfield receiving physical custody of the two younger sons, Hunter and Tyler, and

Dr. Brasfield receiving physical custody of the older son, Spencer, who was sixteen

years old at the tim e of the div orce. Dr. B rasfield w as award ed liberal visitatio n with

Hunter and T yler.

               Dr. Brasfield was ordered to pay $2,500.00 a month in child support for
the support of the two younger children, which the Court said was based on the

appropriate child supp ort guideline s. Ms. Bra sfield was not required to make c hild

support pa yments for S pencer, be cause the c ourt took tha t factor into ac count in

setting child support to Ms. Brasfield. Dr. Brasfield was also ordered to pay all of the

college educa tion exp enses f or the th ree child ren.

               On M ay 27, 1994, M s. Brasfield f iled a Petition f or an Incre ase in Child

Support, alleging a material change in circumstances because of increased expenses of

rearing middle school aged children and because she no longer had the legal

obligation to support Spencer, who was no longer a minor. The parties entered into an

Agreed Order on September 21, 1994, which set the child support at $3,000.00 per

month, which the order recited was “. . . in keeping with the child support guidelines.”

               On January 27, 1998, Dr. Brasfield filed pleadings with the Court asking

that the Co urt suspend his child sup port obligatio n, due to the children’s en rollment in

a boarding schoo l. Ms. Brasfield respond ed by requesting an increase in c hild support

and a judgment for arrearage. She conceded the children were enrolled in a boarding

school for the 1997-98 school year, but asserted that she had to maintain a home for

them and contribute to their support, and that there was a significant variance between

the guid eline am ount an d the cu rrent sup port be ing paid by Dr. B rasfield .

               Dr. Brasfield is a neurosurgeon whose taxable income for 1996 was

$749,428.00. At trial, the parties stipulated that the husband’s net income after taxes

for 1997 was $37,905.00 per month. Ms. Brasfield is the Choral Music Director at

Sevier Co unty High S chool, wh ere she earn ed a net m onthly incom e of $2,31 5.00 in

1997. At the time of trial in March of 1998, the parties’ children were aged 16 and 14,

and the children have enjoyed a lavish lifestyle with both parents providing expensive

clothing , meals, a nd vac ations.

               Ms. Brasfield testified that she provides the gas and insurance for her

                                               2
car that Tyler driv es, and that sh e has hotel a nd travel ex penses an d purcha ses their

food when she goes to Baylor School in Chattanooga to visit with the children, and

other travel expenses when she picks up the children to go home on weekends during

the school year. She testified that the expenses relating to having the children in her

home have n ot decreased since they bega n attending Baylor. While the c hildren board

at Baylor during the school year, their primary residence is still with her, and the

children live with her during the entire summer. She further testified that expenses

going to su pport the ch ildren have greatly increased since the last o rder on ch ild

support, where the parties agreed to a sum of $3,000.00 per month.

               She testified that, since the d ivorce, she h as incurred expense s in

expanding the number of bedrooms in her home and in adding a study room, play

room, basement, new windows, roof, and jet ski lifts for the children, and that she

used so me of the mo ney from the divo rce settle ment to make the hom e impro veme nts.

She testified that she spends well over 32% of her net income for expenses for the

children an d that she do es not hav e the fund s for mote ls to spend a s many nigh ts in

Chattanooga to be with her children while at Baylor, as she would like.

               Dr. Brasfield testified that he is spending approximately $44,000.00 a

year for the two children’s board and tuition to attend the Baylor School, that he

provides telephone cards for long distance calls, a spending money allotment for

snacks and so forth, while at school, and he also provides an automobile and a gas

card. H e also in curs trav el expe nses to v isit the ch ildren w hile in sc hool.

               The Trial Judge noted that th e guideline s are design ed to apply to situations

“where the children are living primarily with one parent”. Ru le 12-40-2.01(6). Ho wever,

the Court purported to follow the guidelines in setting the child support. In Jones v.

Jones, 930 S.W .2d 541 (T enn. 1996 ), Justice Dro wata set out how child support is

calculated under the guidelines:

                                                3
               [T]he Court calculates the net income of the parent with whom the children
               do not primarily live, called the “obligo r,” and then multiplies that figure
               by the percentage which corresponds to the number of children for whom
               support is being set. That amount is then payable to the “obligee,” the
               parent with whom the children primarily live.

p. 543.

               Under the guidelines, child support is calculated “based upon the

appropriate percentage of all net income of the obligor”. Smith v. Sm ith, 984 S.W.2d 606,

609 (Tenn. A pp. 1997). 1

               While the focus should have been on the reduction of the obligee’s

expenses, if any, the Trial Ju dge und ertook to ca lculate the days the children actually

spent with the mother, i.e., three months in the sum mer and forty days for the mother’s

contact with the children while at Baylor School, and under that calculus, he concluded

that there “shou ld be an upward deviation” in the guidelines support for a period of four

months, i.e., April, May, June and July. He set the child support for those months at

$4,000.00 per month w ithout any consideration given to the m other’s ongoing expenses,

as testified to at trial, inc luding exp enses of m aintaining the home and buying clothing

and other support items for the children . In sum, he concluded that he was reducing the

support below the amounts called for in the guidelines, and gave as the reason the father’s

spend ing $44 ,000.00 a year for the child ren’s atte ndanc e at Baylo r.

               Ms. Brasfield was consulted by the children about attending Baylor,



   1

       Tenn. Comp. R. & Reg. Ch. 1240-2-4-.04(3) provides:

       (3) The court must consider all net income of the obligor as defined according to 1240-2-4-
       .03 of this rule. The court must order child support based upon the appropriate percentage to
       the custodial parent up to a net $10,000 per month of the obligor’s income. When the net
       income of the obligor exceeds $10,000 per month, the court may consider a downward
       deviation from the guidelines if the obligor demonstrates that the percentage applied to the
       excess of the net income about $10,000 a month exceeds a reasonable amount of child
       support based upon the best interest of the child and the circumstance of the parties. The
       court may require that sums paid above the percentage applied to the net income above
       $10,000 be placed in an educational or other trust fund for the benefit of the child.


                                                4
apparently after Dr. Brasfield and the children had agreed that they would attend the

boarding school. Ms. Brasfield then agreed to their attending Baylor School. D r.

Brasfield voluntarily agreed to pay the addition al expense of attendin g Baylor Sch ool.

Under the guidelines, such expense is deemed an extraordinary educational expense, and

ordinarily would be add ed to the percentage calculated under the guidelines. Tenn.

Com p. R. & Regs. C h. 12-4 0-2-4.0 4(c).

              While the children are at boarding school, the Trial Judge observed: “Ms.

Brasfield would not be cooking meals, buying groceries, those type of things”. How ever,

the expense of maintaining a residence for the children, as testified to by Ms. Brasfield,

continues, and while the reduction of cost of groceries, utilities and so forth while the

children are at B aylor is no t in the re cord, M s. Brasfield testified to the significant

additional ex pense of travel, motels a nd visiting w ith the children while at sch ool.

              The burden was on Dr. Brasfield to establish by a preponderance of the

evidence that he w as entitle d to a red uction in child su pport. We find he did not carry

that burden . See Jones. The parties had previously agreed to child support in the amount

of $3,000.00 per mon th, and they agr eed that Dr. Brasfield would assume the

extraordinary expense of sendin g the two c hildren to Baylor School, but they did not

agree that the ordered child support should be reduced.

              Ms. Brasfield, on appeal, seeks continuing child support in the amount of

$3,000.00 per month, as the parties had previously agreed, and since Dr. Brasfield has not

carried the burden to establish a reduction in that amount, we modify the judgment of the

Trial Court and reinstate the prior order of child support in the amount of $3,000.00 per

month.

              The Trial Judge’s Order awarding the wife attorney’s fees is affirmed, and

upon remand, the Trial Judge will establish a reasonable fee for the wife’s attorney for

services rendered in the appeal of this action.

                                             5
           The cost of the appeal is assessed to the appellee.




                                       __________________________
                                       Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
H. David Cate, Sp.J.




                                        6
