                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  July 24, 2015 Session

STATE OF TENNESSEE EX REL. INGER BROWN v. LARRY W. SHIPE, JR.

                   Appeal from the Juvenile Court for Knox County
                       No. E-6994    Timothy E. Irwin, Judge


             No. E2014-02064-COA-R3-JV-FILED-OCTOBER 29, 2015


The issue presented in this case is whether the trial court erred in its calculation of child
support when it omitted from the calculation support due from Larry W. Shipe, Jr.
(Father) during a period of time when he was incarcerated. We hold that the Child
Support Guidelines, Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii)(I) (2008),
which provide that “incarceration shall not provide grounds for reduction of any child
support obligation,” mandate that incarceration does not absolve an individual from
his/her obligation to pay child support. Accordingly, we vacate the trial court’s judgment
and remand for a recalculation of Father’s child support arrearage.

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

CHARLES D. SUSANO, JR., C.J., delivered the opinion of the court, in which D. MICHAEL
SWINEY and JOHN W. MCCLARTY, JJ., joined.

Inger Brown, Knoxville, Tennessee, appellant, pro se.

Larry W. Shipe, Jr., Knoxville, Tennessee, appellee, pro se.

Herbert H. Slatery III, Attorney General and Reporter, and Rebekah A. Baker, Senior
Counsel, Nashville, Tennessee, for the appellee, State of Tennessee ex rel. Inger Brown.

                                        OPINION

                                             I.

       On April 16, 2014, the State of Tennessee, on behalf of Inger Brown, the
grandmother and legal custodian (Grandmother) of Father’s minor child, filed a petition
to set the child support obligation of Father. The state is providing child support
enforcement services to Grandmother pursuant to Title IV–D of the Social Security Act,
42 U.S.C. § 651 et seq., and Tenn. Code Ann. § 71-3-124(c) (2012). On June 23, 2014, a
hearing was held before the child support magistrate. Both Grandmother and Father were
present at the hearing. The magistrate set Father’s child support obligation at $299 per
month and awarded retroactive support from August 2007 until June 2014, but excluded
from the calculation the time Father was incarcerated, i.e., January 2009 through April
2013. The magistrate held that the total child support arrearage was $8,149 and ordered
Father to pay the arrearage at a rate of $51 per month, for a total prospective child
support payment of $350 per month.

       Grandmother sought a rehearing by the trial court, arguing that the magistrate
erred in excluding, from the calculation of the child support arrearage, the period of time
that Father was incarcerated. The trial court entered an order affirming the magistrate’s
findings and recommendations in all respects. Grandmother timely filed a notice of
appeal.

                                            II.

       Our standard of review is de novo upon the record of the proceedings below;
however, the record comes to us with a presumption of correctness as to the trial court’s
factual determinations, a presumption we must honor unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181
(Tenn. 1995). There is no presumption of correctness as to the trial court’s legal
conclusions. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002); Campbell v.
Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). “Setting child support . . . 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. Laxton v. Biggerstaff, No. E2009-01707-COA-R3-JV,
2010 WL 759842, at *2 (Tenn. Ct. App. E.S., filed Mar. 5, 2010) (citing State ex rel.
Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000)).

                                            III.

       Grandmother argues that the trial court erred by not charging Father with child
support during the approximately fifty-one months he was incarcerated. The state agrees
with Grandmother’s position, asserting in its brief that “[t]he language of Tennessee’s
child support guidelines, Tennessee case law, sound public policy, and persuasive
authority all support a finding that a parent should not be excused from supporting [his or
her] children during a term of incarceration.”

      The Child Support Guidelines, as amended in 2008, provide, in pertinent part, as
follows:

                                             2
             [D]etermination      of     willful     and/or     voluntary
             underemployment or unemployment is not limited to choices
             motivated by an intent to avoid or reduce the payment of
             child support. The determination may be based on any
             intentional choice or act that adversely affects a parent’s
             income. Criminal 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. 1240-02-04-.04(3)(a)(2)(ii)(I) (emphasis added). In Laxton,
this Court, addressing an incarcerated parent’s request “that child support payments be
suspended or reduced until such time that he is released from prison,” reviewed the
history of this issue in Tennessee, stating:

             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–

                                            3
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). . . .

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

The second factor in our determination is that
the State has the burden of proof.

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

                       4
       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. . . .

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 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, . . . . [w]e held
that “Father’s imprisonment does not automatically work to
terminate his duty to support.” Id. at *2. . . .

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, 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

                                5
                    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, 191 Tenn. 700,
             236 S.W.2d 971, 973 (Tenn. 1951) (holding use of “shall” in
             statute requires mandatory compliance)).

State ex rel. Laxton, 2010 WL 759842, at *2-5 (brackets in Laxton; some internal
citations omitted); see also Meeks v. Meeks, No. M2013-01203-COA-R3-CV, 2014 WL
931241, at *4 (Tenn. Ct. App. M.S., filed Mar. 6, 2014) (“The Guidelines squarely
address the question of whether child support should be reduced based upon criminal
activity. . . . [Their] use of the term “shall” requires mandatory compliance.”).

       We continue to adhere to our views expressed in Laxton. The Child Support
Guidelines and applicable precedents are clear and mandatory. Under these authorities,
we must remand this case to the trial court for a determination of the appropriate amount
of Father’s child support arrearage, including the amount due during the period of time
Father was incarcerated.

                                          IV.

       The judgment of the trial court is vacated and the case remanded for a
recalculation of Father’s child support arrearage and payment of same, consistent with
this opinion. Costs on appeal are assessed to the appellee, Larry W. Shipe, Jr.




                                          _____________________________________
                                          CHARLES D. SUSANO, JR., CHIEF JUDGE


                                           6
7
