                                                                                               FILED
                          IN THE COURT OF APPEALS OF TENNESSEE                                   March 29, 2000
                                       AT JACKSON
                                                                                              Cecil Crowson, Jr.
                                                                                             Appellate Court Clerk
STATE OF TENNESSEE, ex rel,                          )
TONYA RENEE JACKSON,                                 )        Williamson Circuit No. 93337
                                                     )
                                                     )        Appeal No. M1999-00133-COA-R3-CV
                   Plaintiff/ Respondent/            )
                   Appellee,                         )        AFFIRMED
                                                     )
VS.                                                  )        The Honorable Donald P. Harris, Judge
                                                     )
KEITH GEORGE JACKSON,                                )        Paul G. Summers
                                                     )        Attorney General & Reporter
                                                     )        Douglas Earl Dimond
                   Defendant/Petitioner/             )        Assistant Attorney General
                   Appellant.                        )        Nashville, TN
                                                     )        Attorney for Tonya Renee Jackson
                                                     )
                                                     )        Keith George Jackson, pro se
                                                     )        Murfreesboro, TN



                                        MEMORANDUM OPINION1


        HIGHERS, J.



        This appeal arises from a petition to reduce child support filed in the Circuit Court

of Williamson County. The trial court denied the petition, and for the reasons stated

herein, we affirm that decision.



                                     Facts and Procedural History

        On November 18, 1998, Keith George Jackson (“Appellant”) filed a petition in the

Circuit Court of Williamson County seeking to have his child support payments reduced.2

At that time, Mr. Jackson was obligated to pay eight hundred and two dollars ($802.00) per

month under a prior court order entered on March 3, 1998. The petition alleged that “a

material change of circumstances has occurred as to defendant’s income . . . so as to

justify a reduction in child support payments.                   The State of Tennessee (“Appellee”)



        1
          Rule 10 (Court of Appea ls). Memorandum O pinion. – (b) The Cou rt, with the c onc urre nce of all
judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum
opinion when a formal opinion would have no precedential value. When a case is decided by memorandum
opinion it sha ll be de sign ated “ME MO RAN DU M O PIN ION ,” sha ll not be published, and shall not be cited or
relied on for any reason in a subsequent unrelated case.

        2
            Mr. Jackson proceeded pro se in both the tria l court and before th is court.
responded on behalf of Tonya Jackson Strong and requested that the court review Mr.

Jackson’s income and set his child support obligation pursuant to the Tennessee Child

Support Guidelines (“Guidelines”). 3



        The trial court conducted a hearing on this matter on February 8, 1999. The court

rendered its decision by order entered on February 25, 1999. The trial court determined

Mr. Jackson’s income to have been $54,846.60 in 1998 and $64,975.00 in 1997.

However, the trial court calculated his child support obligation using both the 1997 and

1998 incomes.4 Based upon the percentages contained in the Guidelines, the court

concluded that Mr. Jackson was paying the correct amount of child support and denied the

petition to reduce his payments.



                                            Law and Analysis

        Initially, we must note that the record contains no transcript or statement of the

evidence. The appellant has the duty "to prepare a record which conveys a fair, accurate

and complete account of what transpired in the trial court with respect to the issues which

form the basis of the appeal," Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn. Ct. App.

1997)(citing State v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992)); see also

T.R.A.P. 24(b). Due to the absence of an evidentiary record, we must presume that every

admissible fact should have been found in the appellee’s favor and against Mr. Jackson.

Gotten v. Gotten, 748 S.W.2d 430, 432 (Tenn. Ct. App. 1987); Richmond v. Richmond,

690 S.W.2d 534, 536 (Tenn. Ct. App. 1985); In re Rockwell, 673 S.W.2d 512, 516 (Tenn.

Ct. App. 1983).



        On this appeal, the Appellant presents only one issue. That issue is whether the

trial court erred in “failing to properly apply the ‘significant variance’ test.” Mr. Jackson

argues that his child support obligation should have been modified due to the fact that his


        3
          The State’s standing as appellee derives from state and federal law s which require c ustodial pa rents
of children receiving public assistance to assign their rights to receive support from third parties to the State.
42 U.S .C. § 606 (a)(26); T enn. Co de Ann . § 71-3-1 24(a).

        4
          The exact language used by the trial court was : “Ch ild sup port s hall be computed based on the last
2 years income whe n being calculated for modification.”

                                                        2
income had decreased by more than fifteen percent (15%) from 1997 to 1998, thereby

constituting a significant variance.    In response, the State claims that Mr. Jackson

misapprehends the law regarding “significant variance.”         The State argues that no

modification was warranted since Mr. Jackson does not contend, nor does the record

indicate, that his existing support obligation varies by fifteen percent or more from the

support obligation that he would owe based on his income at the time of the hearing.



       Trial courts are required to modify child support obligations only when there is a

"significant variance" between the amount of support required by the Guidelines and

the amount currently ordered. Tenn.Code Ann. § 36-5-101(a)(1); see also Turner v.

Turner, 919 S.W.2d 340 (Tenn. Ct. App. 1995)(emphasis added). When the child support

obligation exceeds $100 per month, the Guidelines define a "significant variance" as one

of at least fifteen percent. See Tenn. Comp. R. & Regs. r. 1240-2-4-.02(3).



       Determining the amount of the noncustodial parent's income is the most important

element of proof in a proceeding to set child support. Turner, 919 S.W.2d at 344. Since

the Guidelines speak in terms of percentages, the trial court is required to determine the

obligor’s income before it can set a definite amount of support. In the present case, the

trial court ruled that for purposes of modification of Mr. Jackson’s child support obligation,

both his 1997 and 1998 incomes were to be considered. The court then applied the

percentages contained in the Guidelines to determine that Mr. Jackson was not entitled to

a modification.



       Mr. Jackson has not presented a legally cognizable argument regarding “significant

variance.” As the Appellee contends, the fifteen percent significant variance standard does

not apply to income. Rather, the question is whether the obligor’s existing support

obligation varies by fifteen percent or more from the amount that would be required when

applying the obligor’s income at the time of the hearing. Therefore, the real issue in this

case is whether the trial court correctly determined the income upon which Mr. Jackson’s

child support payments should be calculated.


                                              3
       Mr. Jackson does not argue that the trial court abused its discretion in using both

his 1997 and 1998 incomes as the basis for setting his payments. The court took an

average of the 1997 and 1998 income and used that figure as the basis for calculating Mr.

Jackson’s obligation. Mr. Jackson does not challenge that determination.



       In summary, there is no legal basis for the “significant variance” argument advanced

by Mr. Jackson. Additionally, he has not addressed the dispositive issues in this case.

Any latitude that we might have under T.R.A.P. 13(b) to consider issues not presented for

review, such as the trial court’s income determination, is rendered moot by the deficiencies

in the record. We must review the trial court's decision according to the familiar

Tenn.R.App.P. 13(d) standard, and we shall uphold that decision unless it is based on an

improper application of the law or is against the preponderance of the evidence. In the

present case, the lack of an argument by Mr. Jackson, as well as the absence of a

transcript or statement of the evidence, leaves us with no basis on which to question the

trial court decision.




                                       Conclusion

       For the foregoing reasons, the decision of the trial court denying the appellant’s

petition is affirmed. Costs of this appeal are taxed to the Appellant, Keith George

Jackson, for which execution may issue if necessary.


                                             4
                  HIGHERS, J.



CONCUR:




FARMER, J.




LILLARD, J.




              5
