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

MILDRED LOUISE MCCOLLUM,

      Appellant,
                                                       Lake Chancery No. 3833
Vs.                                                    C.A. No. 02A01-9604-CH-00067

KLIFF ANDREW MCCOLLUM,

      Appellee.
____________________________________________________________________________

                     FROM THE LAKE COUNTY CHANCERY COURT
                    THE HONORABLE JOE G. RILEY, CIRCUIT JUDGE
                            SITTING BY INTERCHANGE

                                                                          FILED
                                                                               April 7, 1997

                                                                          Cecil Crowson, Jr.
                                Marianna Williams of Dyersburg            Appellate C ourt Clerk
                                        For Appellant

                                Timothy C. Naifeh of Tiptonville
                                        For Appellee




                                          REMANDED

                                          Opinion filed:




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




CONCUR:


DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE
    This case involves a petition to change child custody1 and modify child support.



      1
          The trial court’s custody decision is not involved in this appeal.
Respondent-appellant, Mildred Louise McCollum (Wife), appeals the trial court’s order reducing

the amount of the future child support obligation of petitioner-appellee, Kliff Andrew McCollum

(Husband), to reflect the change in the custody of one of the parties’ children.

       The record in this case consists of the statement of the evidence, which is very meager

at best, and the technical record. The facts gleaned from this record are as follows.

       The parties were divorced by a decree entered on September 1, 1993. 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 three children together: Drew McCollum, born

August 22, 1979; Zada McCollum, born November 9, 1981; and Rachel McCollum, born May

6, 1990. Pursuant to the MDA, the trial court awarded the parties joint legal custody of the three

children, with primary physical custody to Wife and reasonable and liberal visitation rights to

Husband. The MDA provided that Husband would pay 41% of his net income or $150.00 per

week, whichever was greater, as support for the three children. The MDA further provided that

Wife would maintain medical insurance on all three children.

       On June 30, 1995, Husband filed a petition to change child custody and modify the child

support award. He requested that the court grant him primary custody of Drew McCollum.

Husband further requested that the court reduce his child support obligation and set child support

as to both parties according to 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).

       After a hearing, the trial court granted Husband’s petition and awarded him physical

custody of Drew McCollum. The trial court also modified Husband’s child support obligation

according to the Guidelines. The parties agree that the trial court apparently determined that

Husband should pay 32% of his net income to Wife as support for the two children living with

her and that Wife should pay 21% of her net income to Husband for the one child living with

him. Instead of requiring each party to pay the other, the court ordered Husband to pay Wife the

difference between the two amounts, which is $375.00 per month.2




       2
         Wife is employed by the State of Tennessee as a secretary in the District Attorney’s
Office and earns a gross monthly salary of $1507.00. Husband is employed by Electric
Motor Service and earns a gross monthly salary of $2,456.84.

                                                2
       Wife perfected this appeal and presents the following issue, as stated in her brief, for our

review:

                 Whether the trial court properly applied the Child Support
                 Guidelines when the mother has physical custody of two children
                 and the father has physical custody of one child.

       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).

       Wife argues that the trial court erred in applying the Guidelines to the situation in the

present case in which she has exclusive physical custody of two children and Husband has

exclusive physical custody of one child. In support of her argument, Wife points out that she is

receiving less in support payments for the two children living with her than she would be entitled

to receive if she had only one child living with her.

       The Guidelines apply as a rebuttable presumption of the proper amount of support in all

child support cases, including actions to modify child support. T.C.A. § 36-5-101(e)(1) (1996);

see also Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.02(3), (7). If the trial court finds the

evidence sufficient to rebut the presumption because the 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 “state the amount of support that

would have been ordered under the child support guidelines and a justification for the variance

from the guidelines.” T.C.A. § 36-5-101(e)(1) (1996); see also Tenn. Comp. R. & Regs. tit. 10,

ch. 1240-2-4-.02(7). As for the situations to which the Guidelines apply, the Guidelines provide

the following:

                 The 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. In situations where overnight time is divided more
                 equally between the parties, the courts will have to make a case-
                 by-case determination as to the appropriate amount of support .
                 ...



                                                 3
Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.02(6).

        It is conceded that the trial court applied the Guidelines to determine the relative child

support obligations of the parties and we find no error in this determination.

        Alternatively, Wife argues that the trial court failed to consider several factors in its

application of the Guidelines. First, she points out that the trial court failed to consider that she

has been providing medical insurance on all of the children. Wife asserts that, under the

Guidelines, this is a factor justifying an upward adjustment in the amount of Husband’s child

support payments. Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4.-04(1)(a).

        Wife relies on Carden v. Carden, No. 01-A-01-9502-CH00042, 1996 WL 6897298

(Tenn. App. Nov. 22, 1995), in which the trial court allowed a wife who was paying child

support to deduct from her support payments the amount that she was paying for the children’s

medical coverage. Id. at *2. The husband appealed, arguing that this credit was contrary to the

Guidelines. Id. at *4. After reviewing the Guidelines, this Court stated the following:

                        The guidelines contemplate that the obligor parent will be
                responsible for providing medical insurance for the minor
                children. While they do not affirmatively place this obligation on
                the obligor parent, the guidelines state explicitly that the courts
                must increase the amount of child support required by the
                guidelines if the custodial parent is required to maintain medical
                insurance for the children because the obligor parent has not done
                so. Tenn. Comp. R. & Regs. r. 1240-2-4-.02(5); Tenn. Comp. R.
                & Regs. r. 1240-2-4-.04(1)(a) (1994).

                          We interpret the guidelines to require the obligor parent
                to pay for the children’s medical insurance in addition to
                whatever other child support might be required. The courts have
                little discretion with regard to this obligation and may only depart
                from the guidelines’ requirements if they make written, specific
                findings concerning why it would be unjust or inappropriate to
                require a particular obligor parent to pay for the children’s
                insurance.

Id. Because the trial court in that case did not make any written findings that it would be unjust

or inappropriate for the wife to pay the premiums for her children’s medical insurance, the Court

held that the trial court should not have allowed her to credit these amounts against her child

support obligations. Id.

        Under the Guidelines, Wife is the obligor parent of Drew McCollum, and Husband is the




                                                 4
obligor parent of Zada and Rachel McCollum.3 In addition to their respective child support

obligations under the Guidelines, Wife should be required to pay for medical insurance for one

child, and Husband should be required to pay for medical insurance for two children. The

statement of the evidence indicates that Husband “testified that he [was] in the process of getting

[medical] insurance on the children.” This, together with the original divorce decree requiring

Wife to provide medical insurance on all of the children, leads us to conclude that Wife was, at

least at the time of the trial of this cause, still providing medical insurance on all three children.4

The trial court did not make written findings that the Guidelines should not apply. Therefore,

if they do apply, Husband should be required to pay for medical insurance for the two children

in Wife’s custody or the amount of his child support obligations should be increased to this

extent. We note that Wife is still required to pay for medical insurance for the one child that is

in Husband’s custody.           Second, Wife asserts that the trial court erred in failing to consider

Husband’s failure to exercise standard visitation with Rachel, the parties’ youngest child. The

Guidelines provide that the percentage awards in the Guidelines are the minimum amounts to

be awarded and that the court shall increase the child support award for the following reasons:



                If the child(ren) is/are not staying overnight with the obligor for
                the average visitation period of every other weekend from Friday
                evening to Sunday evening, two weeks during the summer and
                two weeks during holiday periods throughout the year, then an
                amount shall be added to the percentage calculated in the above
                rule to compensate the obligee for the cost of providing care for
                the child(ren) for the amount of time during the average visitation
                period that the child(ren) is/are not with the obligor . . . .

Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.04(1)(b).

        The statement of the evidence indicates that Husband exercises regular visitation with



        3
          The Guidelines provide that “the parent with whom the child(ren) live primarily
will be referred to as the obligee and parent with whom the child(ren) do not live primarily
will be referred to as the obligor.” Tenn. Comp. R. & Regs. tit. 10, ch. 1240-2-4-.03(1).
        4
         In 1994, Wife filed a Motion to Enforce Decree with Respect to Child Support and
a Motion to Modify Decree with Respect to Medical Insurance and Medical Expenses.
Husband responded, asserting that there had been no substantial or material change in
circumstances warranting a modification of the divorce decree with regard to medical
insurance or expenses. After a hearing, the trial court entered an order that “modified”
Husband’s child support obligations insofar as he was ordered to pay 41% of his income or
$150 per week, whichever was greater, pursuant to the Child Support Guidelines. The trial
court made no mention as to any modification of Wife’s obligation to pay for medical
insurance on all of the children.

                                                  5
Zada, but that he sees Rachel “at his convenience.” Under the Guidelines, courts must increase

the child support award if the obligor parent fails to exercise standard visitation. As stated

previously, the trial court did not make any written findings justifying deviation from the

Guidelines and if they apply, the amount of Husband’s child support obligation should be

increased.

        Finally, Wife asserts that the trial court erred in failing to consider that Husband’s

employer provides him with a company truck. The Guidelines require a court to include “in

kind” remuneration in its determination of the obligor’s gross income. Tenn. Comp. R. & Regs.

tit. 10, ch. 1240-2-4-.03(3)(a). This “in kind” remuneration includes “fringe benefits such as a

company car.” Id.

        Husband testified before the trial court that he “has the use of the truck at all times” and

that “[h]is employer also provides all gasoline, insurance, upkeep, maintenance and repair on the

vehicle.” Because evidence of Husband’s use of the company truck was before the trial court,

the trial court should have considered whether the use of the truck constitutes “in kind”

remuneration under the Guidelines and added the value of this remuneration, if any, to

Husband’s gross income. Again, without written findings justifying deviation from the

Guidelines, the dictates of the Guidelines should apply to the particular circumstances of this

case.

        Although the trial court correctly determined that the Child Support Guidelines apply to

both obligor parents, the case should be remanded to the trial court for further proceedings.

Accordingly, the case is remanded to the trial court to consider Husband’s child support

obligation in light of his failure to pay for medical insurance for the two children in Wife’s

custody, his failure to exercise standard visitation with Rachel, and his use of a company truck.

The trial court should follow the dictates of the Guidelines with respect to these issues or make

written findings stating the justification for deviating from the Guidelines. The current child

support obligation of $375.00 per month will remain in effect until a new support obligation is

entered by the trial court.

        Costs of appeal are assessed one-half against appellant and one-half against appellee, for

which execution may issue, if necessary.

                                                        _________________________________


                                                 6
                                           W. FRANK CRAWFORD,
                                           PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
DAVID R. FARMER, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




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