                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs August 6, 2004

   STATE OF TENNESSEE EX REL. DEBRA MARDIS v. DAVID MARDIS

                    Appeal from the Juvenile Court for Davidson County
                No.’s 2019-56299 & 2019-56300    Betty Adams Green, Judge



                     No. M2002-01026-COA-R3-CV - Filed June 20, 2005


The Juvenile Court reduced the monthly amount of child support the father was obligated to pay
from $345 to $130. The State of Tennessee, acting under Title IV-D of the Social Security Act,
appealed the trial court’s determination. The State argues that the court should have either
maintained the father’s support obligation at the presumptive level of $345 or deviated downward
from the guidelines in accordance with the method enunciated by this court in the case of Casteel
v. Casteel. Although the trial court impermissibly used the mother’s income as a factor in
calculating support, father was entitled to a downward deviation, and the amount awarded was
within guiding legal principles. Accordingly, we affirm.

           Tenn. R. App. P. 3 Appeal as of right; Judgment of the Juvenile Court
                                         Affirmed

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
M.S., and FRANK G. CLEMENT , JR., J., joined.

Paul G. Summers, Attorney General and Reporter; Stuart F. Wilson-Patton, Senior Counsel, for the
appellant, State of Tennessee, ex. rel. Debra Mardis.

                                            OPINION

       David and Debra Mardis married and became the parents of two children, Christina (d.o.b.
10/27/83) and Sean (d.o.b. 11/14/85). At some point, the parents separated and the mother assumed
primary custody of the children, while the father exercised regular visitation. The mother
subsequently applied for and received financial assistance from the State for the benefit of her
children.

       Tenn. Code Ann. § 71-3-124 provides that when an individual receives support under Title
IV-D, the State may file any legal action to “establish, modify or enforce child or spousal support”
and that it becomes the assignee of any right of support which that individual is entitled to receive
from another person. Accordingly, on June 26, 2000, the State of Tennessee filed a sworn Petition
in the Juvenile Court of Davidson County to establish the father’s child support obligation by
applying the Tennessee Child Support Guidelines.1

        A hearing was conducted before the Juvenile Court Referee, who ordered the father to pay
$520 per month in weekly installments for the two children.2 A subsequent hearing resulted in a
finding that Mr. Mardis owed $1,300 in retroactive child support, and he was ordered to pay the
obligation off through additional payments amounting to $43.33 per month.

        On February 12, 2002, Mr. Mardis filed a pro se motion in the Juvenile Court for a reduction
in his child support obligation. He noted that his daughter Christina had turned eighteen on October
27, 2001, and had moved out of the mother’s home the previous July. He accordingly asked the
court to terminate his support obligation for her. He also asked for a review of his support obligation
for his son Sean. In view of Christina’s reaching her majority, the Juvenile Court Referee reduced
the father’s child support obligation to $345 per month, which is the presumptively correct amount
for the support of one child under the guidelines for an obligor with the father’s gross income of
$2,000 per month who has standard visitation and where there are no other circumstances justifying
a deviation.

        On March 19, 2002, the referee conducted another hearing to determine the father’s support
obligation for his son. The mother and father both appeared and testified during that hearing. A
“Parenting Plan,” which was signed by both parents and notarized on the date of the hearing, was
discussed at the hearing.3 The document set out a weekly visitation schedule for the parties, which
provided that sixteen-year-old Sean would stay with his mother four days a week and with his father


         1
          The record indicates that the parties were divorced sometime before M arch 19, 2002, the date of the final
hearing before the Juvenile Court Referee. The final decree of divorce is not included in the record, so we have no way
of knowing what child support or custody orders, if any, were made a part of that decree.

         2
          The income tables that are included in the child support guidelines express child support obligations in monthly
terms, but the court in this case ordered that the father make payment on a weekly basis. The orders in the record
therefore express the father’s changing child support obligations in both weekly and monthly terms. For the sake of
simplicity and clarity, we will only use the monthly terms in this opinion.

         3
           The State objects to the Parenting Plan and argues that neither this court nor the trial court should consider it.
The State notes that it does not bear any stamp to show that it was properly filed with the trial court clerk and that there
is no indication that it was ever authenticated by any witness. The State also argues that it appears that the referee
required the parties to enter into the Parenting Plan, and contends that it was inappropriate for the court to do so, as the
parenting plan statutes limit their application to “actions for absolute divorce, legal separation, annulment, or separate
maintenance involving a minor child.” Tenn. Code Ann. §§ 36-6-403 and 36-6-404(a). First, we fail to see how the
State, through its role in child support enforcement, has standing to object to the parents’ agreement on how they will
share residential time with their child and similar parenting responsibilities. Second, the testimony establishes the parties’
agreement, whether or not it was reduced to writing in a parenting plan. It is the actual amount of time the child resides
with each parent that is relevant to a possible deviation from the presumptive support amount. Tenn. Comp. R. & Regs.
1240-2-4-.02(6); Hopkins, 152 S.W .3d at 449. To the extent the trial court’s decision is based on the parties’ testimony
about the actual time the parties’ child spends at each residence, the parenting plan, and any problems with it, are
essentially irrelevant.

                                                             -2-
three days a week. Based on the testimony at the hearing, the residential schedule set out in the plan
was consistent with the parties’ current practice, which had developed based on Sean’s wishes. The
plan also stated that “[t]he father will pay child support, in accordance with the Tennessee Child
Support Guidelines, per the judge’s assessment.” Thus, it was the trial court’s decision, not any
agreement by the parties, that determined the amount of support.

        The father argued that because his son spent more than the standard amount of visitation time
with him, he was entitled to a downward deviation from the presumptive amount established in the
child support guidelines. The testimony showed that each parent provided for Sean while he resided
with him or her, but that the mother had taken primary or sole responsibility for certain of Sean’s
expenses, such as clothing ($500 per year).

        On April 2, 2002, the referee filed an order which reduced the father’s child support
obligation to $130 per month. The order included a detailed explanation of the process by which the
referee reached his conclusion as to the proper amount of child support.

        The State subsequently filed a motion to alter or amend the referee’s order to include specific
findings of fact as to the amount of child support that would be ordered if the guidelines were
applied to the father’s income, pursuant to Tenn. Code Ann. § 36-5-101(e)(1). The State also asked
the referee to declare the amount of child support that would be ordered if the court applied the
formula for downward deviation found in the case of Casteel v. Casteel, No.
03A01-9703-CV-00073, 1997 WL 414401 (Tenn. Ct. App July 24, 1997)(perm. app. denied March
2, 1998), and to explain why he did not apply the Casteel formula.

        The referee partially granted the State’s motion and supplemented his prior order accordingly.
He stated that the presumptive amount under the guidelines for a non-custodial parent of one child
with $2,000 per month in gross income would be $345 per month. He also explained that he did not
include this information in his earlier order because he believed the parties did not meet the guideline
definitions of obligor and obligee. He also declined to apply the Casteel formula, finding it
inapplicable for a number of reasons.

        The State subsequently filed a request for a rehearing before the Juvenile Court Judge, which
was granted. The hearing consisted of legal arguments only; no additional facts or testimony were
introduced. The State argued that the Casteel formula should have been applied to adjust the father’s
child support obligation to account for his additional parenting time, which the State submitted
would have resulted in a child support obligation of $273.18 per month. On October 2, 2003, the
Juvenile Court Judge entered an order affirming the referee’s decision to reduce child support to
$130 per month. This appeal followed.




                                                  -3-
        While the State filed a brief in this appeal, Mr. Mardis did not and has not participated. We
therefore must rely solely on the State’s brief and the record to decide this case.4

                                        I. THE LAW OF CHILD SUPPORT

        We must apply Tennessee law on child support that was in effect at the time of the
proceedings below, and thus any description of applicable law must be read in that context. The
legislature authorized the establishment of the child support guidelines to standardize the method
of calculating child support awards. Jones v. Jones, 930 S.W.3d 541, 543 (Tenn. 1996). The
guidelines were promulgated as rules by the Department of Human Services and carry what amounts
to a legislative mandate. Barnett v. Barnett, 27 S.W.3d 904, 906 (Tenn. 2000); Nash v. Mulle, 846
S.W.2d 803, 804 (Tenn. 1993). They apply to the modification proceeding below.5

        The 1997 guidelines, the version applicable to this dispute, speak in terms of the obligee (the
parent with whom the child primarily resides) and the obligor (the parent with whom the child does
not primarily reside). Tenn. Comp. R. & Regs. 1240-2-4-.03(1). Under the guidelines, an award of
child support is made to the obligee parent based in large part on the income of the obligor parent.
Gray v. Gray, 78 S.W.3d 881, 883 (Tenn. 2002). Accordingly, “only the parent who spends the
greater amount of time with the child should be awarded child support . . .”6 Id. at 884.

        The guidelines involve a series of determinations by the trial court, including calculation of
the obligor parent’s gross and net income, and application of flat percentages to that income based
on the number of children to be supported, e.g., 21% for one child, 32% for two children, etc.
Application of that formula results in a presumptive child support award. The guidelines include
other considerations that may justify a final award that differs from the presumptive amount.




         4
           In the court below, the State filed a “Statement of the Evidence” from the hearing on the modification in
advance of the hearing on its motion to alter or amend before the referee. The Statement consists of an unauthenticated
transcript of the hearing of March 19, 2002. The State explained in its notice of the filing that the transcript was prepared
from tape recordings of the hearings by a court reporter who had since relocated to another state and could not be located
to obtain the usual certification. It was certified as accurate by the attorney who attended the hearing. No objection to
the transcript appears in the record before us. Since the Statement was filed with the trial court, it is considered approved
pursuant to Tenn. R. App. P. 24(b) and (f). W e need not resolve whether the document is correctly characterized as
transcript because it is a “stenographic report or other contemporaneously recorded, substantially verbatim recital of the
evidence,” under Tenn. R. App. P. 24(b), or as a Statement of the Evidence under Tenn. R. App. P. 24(c).

         5
          The guidelines specifically state that they “shall be applicable in any action brought to establish or modify child
support, whether temporary or permanent.” Tenn. Comp. R. & Regs 1240-2-4-.02(3).

         6
           Under the parenting plan legislation, that party is called the primary residential parent, which is statutorily
defined as the parent with whom the child resides more than 50% of the time. Tenn. Code Ann. § 36-4-402(4). As
discussed earlier, the State objects to the use of the parenting plan in the record herein. In the context of the issue before
us, we see no real distinction between the definition of obligor in the guidelines and the definition of primary residential
parent in the parenting plan statutes. See Gray, 78 S.W .3d at 884.

                                                             -4-
       One of the factors to be considered in making a final award other than the formula discussed
above, and the one at issue in this case, involves the amount of time the child lives with each parent.

       These guidelines are designed to apply to situations where children are living
       primarily with one parent but stay overnight with the other parent at least as often as
       every other weekend from Friday to Sunday, two weeks in the summer and two
       weeks during holidays throughout the year. These guidelines are designed to
       consider the actual physical custody of the child(ren), regardless of whether custody
       is awarded to one parent and visitation to the other or such an arrangement is ordered
       to be joint custody or split custody.

Tenn. Comp. R. & Regs. 1240-2-4-.02(6).

         The factual scenario on which the guidelines are based, often called “standard visitation” or
“standard residential schedule,” envisions that the party who is not the custodial or primary
residential parent will have the child eighty (80) days per year. The guidelines recognize that many
parents have arrangements that do not coincide with the standard or average and that applying a
formula based on one factual scenario to a different situation would be inequitable. Consequently,
the guidelines specifically provide for upward as well as downward adjustments when the custody
or residential schedule varies from that set out in Tenn. Comp. R. & Regs. 1240-2-4-.02(6). See
Tenn. Comp. R. & Regs. 1240-2-4-.02(5) and 1240-2-4-.04(1)(b) (providing for an upward
adjustment if the child does not stay overnight with the noncustodial or alternative residential parent
at least as much as the standard visitation).

        In particular, the guidelines recognize the equity in an adjustment where an obligor parent
has physical custody or residential time greater than the eighty days on which the guidelines are
based. “In situations where overnight time is divided more equally between the parents, the courts
will have to make a case-by-case determination as to the appropriate amount of support.” Tenn.
Comp. R. & Regs. 1240-2-4-.04(2)(6). In addition, a downward deviation from the presumptive
amount is specifically authorized in that situation. Tenn. Comp. R. & Regs. 1240-2-4-.04(2)(b)
(stating that deviations may be appropriate where the physical custody or residential time is “more
evenly divided between the parties than occurs in a situation where one party has an average amount
of overnight visitation as defined in 1240-2-4-.02(6)”).

        The Tennessee Supreme Court has addressed this guideline- authorized downward deviation
and stated, “If the child(ren) spend more time with the obligor than is assumed by Tenn. Comp. R.
& Regs. 1240-2-4-.02(6), . . . the obligor’s child support payments should be reduced.” Jones v.
Jones, 930 S.W.2d 541, 545 n. 5 (Tenn. 1996). Additionally, a downward deviation could
conceivably include even a deviation to zero. Gray, 78 S.W.3d at 884. Thus, the Court has
indicated that, where the facts indicate a downward deviation based on greater than average
residential time is authorized, it will generally be granted, with the amount to be determined on a
case-by-case basis. Hopkins v. Hopkins, 152 S.W.3d 447, 450 (Tenn. 2004); Gray, 78 S.W.3d at



                                                 -5-
884; Tenn. Comp. R. & Regs. 1240-2-4-.04(2)(6). The 1997 guidelines specifically avoided
establishing a formula or other rule for setting the deviation.

       Additionally, the legislature has recognized that strict application of the guidelines might not
always lead to an equitable result. While it has specifically provided that courts shall apply the child
support guidelines as a rebuttable presumption, Tenn. Code Ann. § 36-5-101(e)(1)(a), it has also
provided:

       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.

Tenn. Code Ann. § 36-5-101(e)(1)(a).

                                     II. THE DECISION BELOW

        According to the parties’ testimony, Sean lives with his father three days a week, or 156 days
a year, almost twice the 80 days contemplated under the guidelines. We, therefore, do not believe
the referee erred by concluding that the father’s increased residential time justified an award lower
than the presumptive amount arrived at simply by application of the guidelines’ formula. The
difficulty arises, rather, from the method the referee used to calculate the amount of support.

        The referee in this case relied upon the presumption stated in the guidelines that “the formula
presumes that the obligee will be expending at least an equal percentage of net income as that of the
obligor for the support of the children for whom support is sought.” Tenn. Comp. R. & Regs. 1240-
2-4-.02(2). Based on that statement, the referee created a method of calculating child support which
had as its goal the equalization of the financial burden between the mother and the father. The
referee assumed that the mother and father should each spend 37.5 percent of that party’s income
for Sean’s support, and that this percentage would be reached by a combination of direct support
(money each party expends on the child while in that party’s custody) and support payments (money
paid by the father to increase his support to 37.5 percent of his income and to reduce the mother’s
support to that same percentage of her income). The mother’s income was essentially equal to or
slightly greater than the father’s. The result of the referee’s calculations (which we will not attempt
to duplicate here) was the $130 per month child support obligation.

       The State argues the referee committed error in failing to apply the child support guidelines.
The State is correct that the court was required to apply the guidelines. It is not entirely clear
whether the court declined to apply the guidelines at all or simply declined to award the presumptive
amount because a downward deviation was justified. To the extent the referee’s statements indicate


                                                  -6-
he considered the guidelines inapplicable because the parents shared residential time in more equal
proportions than the standard on which the guidelines are based, that conclusion would be in error.
Even where the parents share exactly equal residential time, the guidelines apply to determine the
amount of support a primary residential parent is awarded. Hopkins, 152 S.W.3d at 450.

        Regardless of the referee’s position on the application of the guidelines, however, it is clear
that he used a calculation method that was not authorized under the law in effect at the time. The
1997 guidelines include a prohibition against consideration of the obligee’s income: “. . . the income
of the obligee should not be considered in the calculation of or as a reason for deviation from the
guidelines in determining the support award amount . . .” Tenn. Comp. R. & Regs. 1240-2-4-.02(2).
Our Supreme Court has rejected a comparative analysis of the parties’ earnings as an impermissible
infringement on that prohibition. Gray, 78 S.W.3d at 884 (“[T]he income of the obligee should not
be considered in the calculation of the amount of child support awarded”).7 Therefore, despite the
referee’s meticulous analysis of the relative economic positions of the father and the mother, the
methodology employed did not comply with applicable legal principles.

        Because a downward deviation was justified on the basis of the increased time Sean lived
with the father, the question before us is whether the referee’s modification of support to $130 per
month comports with guiding legal principles and is supported by the facts. As explained above,
where a deviation is authorized due to increased residential time, the court is to determine the
amount of support on an individualized basis. The 1997 guidelines provide no specific criteria or
formula for calculating the effect of a greater than standard residential schedule,8 but, instead,
specifically leaves that determination to the court’s reasonable discretion, with only one overriding
limitation. The guidelines state that “[i]n deviating from the guidelines, primary consideration must
be given to the best interest of the child(ren) for whose support the guidelines are being utilized.”
Tenn. Comp. Rules & Regs. 1240-2-4-.04(5).

        The State argues that the amount awarded by the referee is too low and that any downward
deviation for increased residential time should be calculated in accordance with the method
described by this court in Casteel v. Casteel, supra.

       In that case, like the present one, the trial court created its own formula for calculating the
amount of a downward deviation in child support. As this court indicated, that “elaborate formula,
so painstakingly fashioned” resulted in a determination that the father should pay $370 per month


         7
          As the Court noted in Gray, the new amendments to the guidelines, effective in 2005, allow for such a
comparative analysis. Hopkins, 152 S.W .3d at 459 n.2. They use an “income shares” approach. Consequently, the
income of the primary residential parent has become a factor in calculating support. The amendments, like the referee’s
analysis herein, are based on a presumption that families spend a specified percentage of their income on their children.

         8
          The 2005 amendments to the guidelines provide direction to courts in terms of percentage decreases tied to
specific numbers of days of residential time. Since the basic approach of the amendments includes factors that could
not previously be considered, it would not be appropriate to apply the new directives on deviation to support calculated
under the old methodology.

                                                          -7-
instead of the $740 per month indicated by the guidelines formula. We rejected that result, but noted
that the guidelines required the court to make a case by case determination of the appropriate amount
of support. The court stated that “if the elaborate formula resulted in an amount of support that the
circumstances and best interest of the children require we see no reason to critique the mechanics
employed.” Casteel, 1997 WL 414401, at *2.

        We found that the 50% reduction in child support that resulted from the trial court’s formula
was excessive. The father had custody 131 days per year. This court developed and applied a
different method, calculating the amount per day of support under the guidelines formula and
reducing the presumptive amount by the product of the daily amount times the number of days the
father had the child in excess of the 80 day standard. This resulted in a smaller reduction of child
support, to $637 per month.

        There is no reason to believe that this court’s intention in Casteel was to create an invariable
method to be used in every situation where a significant variation in residential time from the norm
indicates the need for a modification of child support. To the contrary, this court emphasized the
need to make individualized decisions based on the circumstances of each case. And, in any event,
the guidelines provide for that approach. Casteel as well as the guidelines themselves establish that
trial courts are not limited to one formula or method, so long as the final result is in the best interest
of the child involved. Consequently, we decline to presumptively favor the Casteel method for all
such cases.

        Herein, the child lived with the father three days a week and with the mother four days a
week. This schedule gives the father 76 days more than the standard 80 on which the guidelines are
based, almost a 100% increase. However, the mother continues to have the greater amount of
residential time, 52 more days per year than the father. The amount of support awarded by the
referee was a deviation of $215 from the presumptive amount under the guidelines, a decrease of
62%. Whether or not this court would have arrived at a different percentage or amount as more
appropriate, in the absence of specific rules to govern the calculation of a downward deviation, we
are reluctant to substitute our method of calculation for that of the trial court unless that calculation
resulted in an award that is not in the child’s best interest.9

        The referee recognized that each parent had fixed expenditures related to providing Sean a
place to live for the time he stayed with him or her. During those times, each provided for Sean’s
needs, e.g., food, lunch money, activities, etc. Because the mother had Sean one day per week more



         9
          Based on the record, it appears Sean turned 18 on Nov. 14, 2003. The father’s obligation to pay child support
terminated on either that date or the following June, depending on when Sean’s class graduated from high school. Tenn.
Code Ann. § 34-1-102. See also Kuykendall v. Wheeler, 890 S.W .2d 785, 786 (Tenn. 1994); Penland v. Penland, 521
S.W .2d 222, 224 (Tenn. 1975); Clinard v. Clinard, No. 01S01-9502-DV0021, 1995 W L 563858, at *3 (Tenn. Sept. 25,
1995) (rehearing denied Nov. 6, 1995). Both the events preceded submission of this appeal, and we see no beneficial
purpose in requiring these parents to go through another round of hearings and potential continued litigation that would
be involved in a remand.

                                                          -8-
than the father, the referee attempted to calculate an amount that would make up for her increased
costs and equalize the parents’ contributions to Sean’s support.

        At the hearing on the State’s motion to alter or amend, the mother stated she was satisfied
with the court’s award. There was no testimony that the amount was insufficient to meet Sean’s
needs.10 Consequently, there is little basis upon which to determine that the amount awarded was
not in Sean’s best interest.

       Because the referee determined an amount of support taking into consideration the father’s
increased residential time, as prescribed by law, and based on the individualized facts of this case,
we conclude that the award should be affirmed.

                                                        III.

       The Order of the trial court is affirmed. Tax the costs on appeal to the appellant, the State
of Tennessee, ex rel. Debra Mardis.



                                                               ___________________________________
                                                               PATRICIA J. COTTRELL, JUDGE




         10
          In both hearings, the parents displayed a cooperation and willingness to work with each other. This attitude
and approach can only benefit their child and is in marked contrast to many situations we see.

                                                         -9-
