                     IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON
                 ________________________________________________

HELEN BOND SCOFIELD,

       Plaintiff-Appellee,
                                                       Dyer Equity No. 93-513

Vs.                                                    C.A. No. 02A01-9512-CH-00276

STEPHEN DAVID SCOFIELD,

      Defendant-Appellant.
___________________________________________________________________________
                                                                              FILED
                                                            November 5, 1996
                FROM THE CHANCERY COURT AT DYERSBURG
                  THE HONORABLE JOE G. RILEY, JR., JUDGE Cecil Crowson, Jr.
                                                                              Appellate C ourt Clerk



                         L. L. Harrell, Jr., Harrell & Harrell of Trenton
                                     For Plaintiff-Appellee

                 Marianna Williams, Ashley, Ashley & Arnold of Dyersburg
                                 For Defendant-Appellant




                               REVERSED AND REMANDED

                                          Opinion filed:




                                                               W. FRANK CRAWFORD,
                                                               PRESIDING JUDGE, W.S.


CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE

       This case involves a petition for increase of child support. Petitioner, Stephen David

Scofield (Father), appeals from the trial court’s order denying his petition to modify the parties’

final decree of divorce to increase child support payments by Respondent, Helen Bond Scofield
(Mother).

        The parties were divorced by final decree entered April 21, 1994. They entered into a

Marital Dissolution Agreement (MDA) which was approved and ratified by the trial court in the

final decree of divorce. The parties have two children, a boy age 10, and a girl, age 7. Pursuant

to the MDA, the trial court awarded joint custody to the parties. The MDA provided that Father

would be the custodial parent, and Mother would have visitation rights. The MDA also provided

that Mother would pay Father $250.00 per month in child support.

        Father filed a petition to increase child support on February 1, 1995. The petition alleges

that circumstances have materially changed because Father’s income has been reduced by more

than 15% and because Mother’s income has increased materially. Father also avers that Mother

is not providing adequate support and that present circumstances do not justify a deviation from

the Child Support Guidelines. Father seeks to increase Mother’s child support payments to an

amount that is in compliance with the Child Support Guidelines promulgated by the Tennessee

Department of Human Services. Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.01 et seq. (1989,

revised 1994) (Guidelines).

        In her Answer and Counter-Petition, Mother avers that there has not been a material

change in circumstances and that Father’s income was reduced by his voluntary actions. She

also alleges that, pursuant to the MDA, Father owes her $10,000.00. Mother later filed a

Supplemental Counter-Petition that alleges that there has been a material change in

circumstances, and that she should now be designated as the custodial parent.

        The trial court held a hearing on the petition on May 26, 1995. The pertinent facts

developed at this hearing and from the technical record are as follows. Father was employed as

an attorney by a law firm. In 1994, at the time of the divorce, his income was $60,030.00 per

year.   However, his compensation package with the law firm changed and he became

dissatisfied. In February of 1995, Father voluntarily left the law firm and now practices law in

a shared office with another attorney. He made $5,769.24 in early 1995 before leaving the firm.

At the hearing, Father testified that he was only making approximately $1,000.00 per month, but

that he expected it to rise to $1,300.00 per month. Father testified that the standard of living of

the children has not changed since he left the law firm, and that he adequately provides and cares

                                                2
for them.

        Mother is employed by the State of Tennessee. In 1994, at the time of the divorce, her

income was $33,262.00 per year. She received a raise and, at the time of the hearing, was

making $107.00 more per month. Mother testified that she bought all of the children’s clothing

with the exception of some jeans, that she paid for most of the children’s haircuts, and that she

takes the children on vacations and trips. In addition, she testified that she regularly exercises

her visitation rights.

        The parties reached an agreement concerning the $10,000.00 debt owed by Father to

Mother, and the trial court ruled that custody should not change. The only issue that remained

for the trial court was the petition for an increase in child support. The trial court held that child

support should not be increased. In a Memorandum Opinion filed May 30, 1995, the trial court

stated that circumstances had not changed except for Father’s voluntary career move, and that

it was not appropriate to increase Mother’s child support obligation because of Father’s

voluntary withdrawal from the law firm. Further, the trial court found that Mother’s salary

increase of approximately 3.7% was not significant enough to justify an increase in child

support. The trial court also found that there was more than a 15% variance between the

requirements of the Guidelines and the amount of support currently ordered. However, the trial

court stated that the variance resulted from a previously ordered deviation from the Guidelines.

The court found that the parties agreed to the original deviation although the final decree of

divorce did not expressly provide for it.

        Father perfected this appeal and presents only one issue for our review:

Whether the trial court erred in its denial of his petition for an increase in child support.

        Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court.

Unless the evidence preponderates against the findings, we must affirm, absent error of law.

T.R.A.P. 13(d).

        Child support in Tennessee is statutorily governed by T.C.A. § 36-5-101 (1996). Section

36-5-101(e)(1) provides that "[i]n making its determination concerning the amount of support

of any minor child . . . of the parties, the court shall apply as a rebuttable presumption the child

                                                  3
support guidelines as provided in this subsection." Modification of an existing child support

order is controlled by T.C.A. § 36-5-101(a)(1) (1996), which states, in pertinent part:

               In cases involving child support, upon application of either party,
               the court shall decree an increase or decrease of such allowance
               when there is found to be a significant variance, as defined in the
               child support guidelines established by subsection (e), between
               the guidelines and the amount of support currently ordered unless
               the variance has resulted from a previously court-ordered
               deviation from the guidelines and the circumstances which caused
               the deviation have not changed. (emphasis added).

       Father argues that there has been a material change of circumstances due to a decrease

in his income. This argument is without merit, because the “substantial and material change of

circumstances” test is no longer the proper standard for determining whether an existing child

support order should be modified. Turner v. Turner, 919 S.W.2d 340, 343 (Tenn. App. 1995).

In 1994, the General Assembly amended T.C.A. § 36-5-101(a)(1)(1991) thereby replacing the

“substantial and material change of circumstances” test with the “significant variance” test.

T.C.A. § 36-5-101(a)(1)(1994) (amending T.C.A. § 36-5-101(a)(1)(1991)); see Turner, 919

S.W.2d at 343 (discussing the amendment).

       Father next argues that there is a significant variance between the requirements of the

Guidelines and the amount currently ordered, and that there has been no specific court ordered

deviation from the Guidelines and no written findings justifying deviation as required by T.C.A

§ 36-5-101(e)(1).

       Currently, in Tennessee a “significant variance” is 15%. See Tenn. Comp. R. & Regs.

tit. 10, ch. 1240-2-4-.02(3); Turner, 919 S.W.2d at 343. In the case sub judice, the record shows

that Mother’s gross income is $2,774.00 per month.1 The Guidelines require that the court order

child support based upon the appropriate percentage of all net income. The record does not

clearly indicate the amount of Mother’s net income. From her pay stubs, the net pay appears to

be approximately $1,772.00 per month. The appropriate percentage in this case is 32%,

mandating child support in the amount of approximately $567.00.2 Although we cannot compute


       1
         Mother testified that her income is $1,387.00 per pay period, and that there are 24
pay periods in a year.
       2
         The Guidelines establish percentages based on the number of children. Child
support for 2 children requires 32% of net income . The approximate amount of child

                                               4
the exact numbers, we believe that the difference between what Mother was ordered to pay and

the amount required by the Guidelines will still exceed 15% using her net income, and therefore,

is a significant variance.

        When a significant variance exists, the court must set support in accordance with the

Guidelines unless application of the Guidelines would be “unjust or inappropriate” in the case.

T.C.A. § 36-5-101(e)(1) (1996). If the trial court finds that application of the Guidelines would

be unjust or inappropriate based upon the best interest of the children or the “equity between the

parties,” the court must make such a finding in writing and such writing shall “state the amount

of support that would have been ordered under the child support guidelines and a justification

for the variance from the guidelines.” Id. T.C.A. § 36-5-101(e)(1) (1996) provides:

                In making its determination concerning the amount of support of
                any minor child or children of the parties, the court shall apply as
                a rebuttable presumption the child support guidelines as provided
                in this subsection. If the court finds that evidence is sufficient to
                rebut this presumption, the court shall make a written finding that
                the application of the child support guidelines would be unjust or
                inappropriate in that particular case, in order to provide for the
                best interest of the child(ren) or the equity between the parties.
                Findings that the application of the guidelines would be unjust or
                inappropriate shall state the amount of support that would have
                been ordered under the child support guidelines and a justification
                for the variance from the guidelines.

        The statute also allows for the parties to reach an agreement concerning the amount of

child support. The statute does not require that the parties’ provisions for support meet the

Guidelines in a MDA, as long as adequate provision is made for the children. Mother argues that

the MDA is a result of a negotiated settlement between the parties where Father agreed to accept

a lower amount of child support. However, for the agreement to be effective, the parties must

adhere to the statute. T.C.A. § 36-5-101(h) (1996) states:

                Nothing in this section shall be construed to prevent the
                affirmation, ratification and incorporation in a decree of an
                agreement between the parties as to support and maintenance of
                a party or as to child support. In any such agreement, the parties
                must affirmatively acknowledge that no action by the parties will
                be effective to reduce child support after the due date of each
                payment, and that they understand that court approval must be
                obtained before child support can be reduced, unless such
                payments are automatically reduced or terminated under the terms


support was calculated by multiplying Mother’s approximate net income by 32%.

                                                 5
                 of the agreement. (emphasis added.)

       In the instant case, neither the parties’ MDA nor the final decree of divorce use the

language contained in T.C.A. § 36-5-101(h), as that statute requires. Thus, the agreement does

not effectively deviate from the Guidelines under T.C.A. § 36-5-101(h). Therefore, the deviation

requires that the trial court make a written finding that the application of the Guidelines would

create an unjust or inappropriate result. T.C.A. § 36-5-101(e)(1); Malone v. Malone, 842

S.W.2d 621, 624-25 (Tenn. App. 1992). No such finding was made at the time the final decree

of divorce was entered. The trial court found that neither the MDA nor the final decree of

divorce provided for the deviation from the Guidelines, but stated that it was apparent that the

parties agreed upon the deviation in light of all the facts and circumstances. However, the

General Assembly made express requirements for an agreement to be valid. T.C.A. § 36-5-101

(h)(1996). If there is no agreement, the court is required to make a written findings, and the

record is devoid of any written findings that compliance with the Guidelines would be unjust or

inappropriate.

       For the reasons stated herein, we reverse the order of the trial court and remand this case.

Upon remand, the trial court shall conduct an expedited hearing to determine Mother’s net

income and to modify the parties’ final decree of divorce to comply with the Guidelines, or make

a written explanation for its deviation. T.C.A. § 36-5-101(e)(1). All provisions for child support

currently in effect shall remain in effect until the entry of another support order. Costs are

assessed against the Respondent.

                                                       _________________________________
                                                       W. FRANK CRAWFORD,
                                                       PRESIDING JUDGE, W.S.

CONCUR:

_________________________________
ALAN E. HIGHERS, JUDGE

_________________________________
DAVID R. FARMER, JUDGE




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