                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   May 16, 2006 Session

   STATE OF TENNESSEE, ex rel. LATONYA CAMPBELL v. THOMAS
                            CONLEY

                 Direct Appeal from the Juvenile Court for Gibson County
                          No. 8265    Robert W. Newell, Judge



                     No. W2005-01842-COA-R3-JV - Filed May 25, 2006


The trial court granted Respondent Father a downward deviation from the child support guidelines
when setting retroactive child support. We reverse.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Paul G. Summers, Attorney General and Reporter, and Juan Villasenor, Assistant Attorney General,
for the State of Tennessee.

Joesph E. Tubbs, for the appellee, Thomas Conley.

                                           OPINION

      This appeal requires us to determine whether the trial court erred under Tennessee Code
Annotated § 36-2-311(a)(11)(C) when it granted Respondent/Appellee Thomas Conley (“Father”)
a downward deviation from the child support guidelines when determining retroactive child support.

       The facts relevant to our determination of the issue raised on appeal are not disputed.
Although the parties disagree on the date of their first meeting, Petitioner/Appellant Latonya
Campbell (“Mother”) was fifteen years of age when she gave birth to Father’s child in 1988, and
fourteen years of age when she became pregnant. Father was twenty-seven years of age.
Additionally, although the parties dispute the length and frequency of their sexual relationship,
Mother does not contend she was forced to have sexual relations with Father. Mother contends
Father knew she was a minor; Father contends he believed Mother was over eighteen.
         On February 10, 2004, the State filed a petition on Mother’s behalf in the Juvenile Court of
Gibson County seeking to establish paternity against Father. The juvenile court established paternity
on September 1, 2004, and set child support according to the guidelines. The court assessed
retroactive child support for 432 weeks. Father then filed a motion to alter or amend the judgment
to reduce the award of retroactive child support. Following a hearing on July 12, the trial court
granted Father’s motion and assessed retroactive child support dating from February 24, 2004, the
date Father submitted to paternity testing. The trial court entered final judgment on July 18, 2005,
and Mother filed a timely notice of appeal to this Court. We reverse and remand to the trial court
to set retroactive child support at the guideline amount.

                                           Issue Presented

        The issue presented for our review, as we reword it, is whether, under Tennessee Code
Annotated § 36-2-311(a)(11)(C), the trial court erred by granting Father a downward deviation from
the child support guidelines where the child was the product of statutory rape of Mother by Father.

                                         Standard of Review

         A trial court must apply the child support guidelines as set forth in the Rules and Regulations
of the Department of Human Services when determining child support. The guidelines set forth the
presumptively correct amount of child support and are to be applied as a rebuttable presumption.
Tenn. Code Ann. § 36-5-101(e)(1)(A) and (e)(2)(2005). This standard also applies to retroactive
child support. See Tenn. Code. Ann. § 36-2-311(a)(11) (2005). The trial court, in its discretion and
in consideration of factors enumerated in the statute, may deviate from the guidelines in setting an
award of retroactive child support. Tenn. Code Ann. § 36-2-311(a)(11)(A)(2005). However, the
Code provides that the trial court does not have the discretion to deviate from the guidelines when
setting an award of retroactive child support where, based on clear and convincing evidence, the
child is the product of rape or incest of the mother by the father of the child. Tenn. Code Ann. § 36-
2-311(a)(11)(C)(ii). The determination of whether § 36-2-311(a)(11)(C)(ii) requires a prior finding
of culpability in a criminal court and of whether “rape” includes statutory rape for the purposes of
the section are questions of statutory construction. Statutory construction is a matter of law which
we review de novo, with no presumption of correctness afforded to the trial court. Hill v. City of
Germantown, 31 S.W.3d 234, 237 (Tenn. 2000).

                                               Analysis

        Our objective when construing a statute is to effectuate the purposes of the General
Assembly. Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000). Insofar as possible, the intent of
the General Assembly should be determined by the natural and ordinary meaning of the words used
in the statute, and not by a construction that is forced or which limits or extends the meaning. Id.
When the language of a statute is clear, we must utilize the plain, accepted meaning of the words
used by the General Assembly to ascertain the statute’s purpose and application. If the wording is
ambiguous, we must look to the entire statutory scheme and at the legislative history to ascertain the


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General Assembly’s intent and purpose. We must construe statutes in their entirety, neither
constricting nor expanding the General Assembly’s intent. In so doing, we assume that the General
Assembly chose the words of the statute purposely, and that the words chosen “convey some intent
and have a meaning and a purpose” when considered within the context of the entire statute.
Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004) (citations omitted).

        In his brief to this Court, Father asserts “rape” as used in § 36-2-311(a)(11)(C)(ii) is limited
to rape as defined in Tennessee Code Annotated § 39-13-503 and not statutory rape as defined in
Tennessee Code Annotated § 29-13-506. Father argues that to construe rape as used in § 36-2-
311(a)(11)(C)(ii) to include statutory rape would be at odds with the definition of rape at § 39-13-
503. He further asserts that he has not been convicted of statutory rape and that the statute of
limitations has run.

        Chapter 2 of Title 36 of the Code provides for the establishment of paternity and legitimation.
Section 311 of the chapter sets out the requirements of an order of parentage. Under the section, an
order of parentage must include, inter alia, a determination of child support pursuant to chapter 5
of the Title. Tenn. Code Ann. § 36-2-311(2005). Section 36-2-311(a)(11)(C) provides:

                (C) Deviations [from the child support guidelines] shall not be granted in
        circumstances where, based upon clear and convincing evidence:
                (i) The father has a demonstrated history of violence or domestic violence
        toward the mother, the child's caretaker or the child;
                (ii) The child is the product of rape or incest of the mother by the father of the
        child;
                (iii) The mother or caretaker of the child, or the child has a reasonable
        apprehension of harm from the father or those acting on his behalf toward the mother,
        the child's caretaker or the child; or
                (iv) The father or those acting on his behalf, has abused or neglected the
        child.

        Father’s assertions and the trial court’s finding that Father has not been convicted of statutory
rape and that the statute of limitations for rape has run are irrelevant to the applicability of § 36-2-
311(a)(11)(C)(ii) to an order of parentage. Section 36-2-311(a)(11)(C) provides only that a trial
court may not deviate from the child support guidelines when setting retroactive support when clear
and convincing evidence supports a finding of any circumstances enumerated in (C)(i)-(iv). The
section requires neither a criminal conviction nor the beyond a reasonable doubt standard of proof
required for criminal conviction. Thus, the trial court erred in determining that a finding of guilt in
a criminal court is necessary to invoke § 36-2-311(a)(11)(C)(ii).

        Further, the trial court erred in granting a downward deviation where the undisputed proof
demonstrates the child was the product of statutory rape of Mother by Father. There is nothing in
the plain language of § 36-2-311(a)(11)(C) that supports Father’s argument that rape as used in the
section does not encompass statutory rape. Section 36-2-311 permits a downward deviation from


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retroactive child support where the father demonstrates by clear and convincing evidence that
“application of the guidelines would be unjust or inappropriate in order to provide for the interests
of the child or the equity between the parties.” Tennessee Code Annotated § 36-2-311(a)(11)(A) and
(B)(2005). The Code provides that courts must consider, as a basis for deviating from the
guidelines:

                 (i) the extent to which the father did not know, and could not have known, of
         the existence of the child, the birth of the child, his possible parentage of the child
         or the location of the child;
                 (ii) The extent to which the mother intentionally, and without good cause,
         failed or refused to notify the father of the existence of the child, the birth of the
         child, the father's possible parentage of the child or the location of the child; and
                 (iii) The attempts, if any, by the child's mother or caretaker to notify the father
         of the mother's pregnancy, or the existence of the child, the father's possible
         parentage or the location of the child.

Tenn. Code Ann. § 36-2-311(a)(11)(A)(2005). Additionally, the trial court’s determination must be
supported by written findings. Tennessee Code Annotated § 36-2-311(a)(11)(B)(2005).
The trial court’s discretion to deviate from guidelines is removed when clear and convincing
evidence supports a finding of any of the circumstances enumerated in § 36-2-311(a)(11)(C)(i)-(iv).
In such cases, the equities between the parties do not justify a downward deviation.

        The public policy of this State is that parents, including unmarried parents, are required to
support their children. Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). This public policy
is evidenced by the paternity statutes. Id. Downward deviations from the presumptively correct
child support guidelines are permitted in consideration of the best interests of the child and the
equities between the parties. See, e.g., Hill v. Hill, 152 S.W.3d 543, 546-47 (Tenn. Ct. App. 2004);
Tenn. Code Ann. § 36-2-311(2005).

        It is also the public policy of this State that adults will not engage in sexual intercourse,
consensual or otherwise, with minors who are four or more years younger than the adult. Tenn. Code
Ann. § 39-13-506 (2003); State v. Walker, No. 01C01-9409-CC-00325, 1995 WL 548852, at *2
(Tenn. Crim. App. Sept. 15, 1995)(no perm. app. filed)(stating: “We accept as true the prosecutor’s
conclusion that statutory rape is ‘offensive to the public.’”).1 Offending this strong public policy is
a class E felony. Tenn. Code Ann. § 39-13-506. Consent is not a defense to statutory rape. State
v. McKnight, 900 S.W.2d 36, 49 (Tenn. Crim. App. 1994). Moreover, a defendant’s ignorance of
the minority of the victim is not required. State v. Vazquez, No. M1999-00211-CCA-R3-CD, 2000
WL 502826, at *2 n.2 (Tenn. Crim. App. Apr. 27, 2000)(no perm. app. filed).




         1
          W e additionally note the outrage of the trial court at the abusive nature of a sexual relationship between a
twenty-six or twenty-seven year old man and a fourteen year old girl.

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        The General Assembly unambiguously has declared that a downward deviation from the
child support guidelines in an award of retroactive child support is within the discretion of the trial
court when application of the guidelines is unjust or inappropriate in light of the equities between
the parties. Thus, a downward deviation is an equitable consideration. The General Assembly also
unambiguously has declared that, despite other equitable considerations, there shall be no downward
deviation where clear and convincing evidence demonstrates a history of violence, rape, or incest,
or abuse or neglect of the child. In such cases, equity does not demand a downward deviation
regardless of other factors enumerated by the section.

        In light of the entire statutory scheme of title 36, chapter 2, and the strong public policy
discouraging sexual relations between adults and minors as defined in § 39-13-506, we cannot
fathom how removing statutory rape from the definition of rape for the purposes of § 36-2-311
furthers the public policy of Tennessee. On the contrary, including statutory rape within the
definition of rape for the purposes of § 36-2-311 promotes the public policies announced by the
General Assembly in the Code.

        In this case, clear and convincing evidence unequivocally establishes that the child for whom
retroactive support is sought is the product of statutory rape of Mother by Father. It is undisputed
that when Mother became pregnant she was fourteen years of age and Father was twenty-seven years
of age. Section 36-2-311(a)(11)(C) prohibits a downward deviation from the guideline amount in
an award of retroactive child support where a circumstance enumerated in (i)-(iv) of the section is
demonstrated by clear and convincing evidence. Application of the section does not require a
criminal conviction. Neither equity, nor the plain language of Tennessee Code Annotated § 36-2-
311(a)(11)(C), nor the public policy of Tennessee as enunciated by the General Assembly in
Tennessee Code Annotated § 36-2-311(a)(11) and § 39-13-506 countenance a downward deviation
from the presumptively correct child support guidelines where the child is a product of rape,
including statutory rape, of the Mother by the Father.

                                               Holding

        The trial court erred under Tennessee Code Annotated § 36-2-311(a)(11)(C) in granting
Father a downward deviation from the child support guidelines in setting retroactive child support.
 We reverse the judgment of the trial court and remand this action to the trial court with instructions
to set retroactive child support at the guideline amount. Costs of this appeal are taxed to the
Appellee, Thomas Conley.


                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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