IN RE:                     )
     JASON RYAN STEPHENS )
                           )
PAMELA RENEE STEPHENS      )
                           )
     Petitioner/Appellant, )       Appeal No.
                           )       01-A-01-9801-JV-00043
v.                         )
                           )       Rutherford Juvenile
JAMES CALLAWAY,            )       No. 9600
                           )
     Respondent/Appellee.  )
                                              FILED
                                                 July 1, 1998

             COURT OF APPEALS OF TENNESSEECecil W. Crowson
                                            Appellate Court Clerk


APPEAL FROM THE JUVENILE COURT FOR RUTHERFORD COUNTY

              AT MURFREESBORO, TENNESSEE


          THE HONORABLE DAVID LOUGHRY, JUDGE




PETER V. HALL
8 Lincoln Square
1535 West Northfield Boulevard
Murfreesboro, Tennessee 37129
      ATTORNEY FOR PETITIONER/APPELLANT

W. KENT COLEMAN
14 Public Square North
Murfreesboro, Tennessee 37130
     ATTORNEY FOR RESPONDENT/APPELLEE




                REVERSED AND REMANDED




                                    WILLIAM B. CAIN, JUDGE
                                OPINION
          This appeal involves a biological father's obligation to support his
thirteen year old son.


          Appellant Pamela Renee Stephens is the mother of Jason Ryan
Stephens age thirteen years and appellee James Callaway is the natural father of
Jason Ryan Stephens.


          At the time Ryan was born Mr. Callaway was married to Anita M.
Callaway and they had one minor child. Subsequent to the birth of Ryan, James
and Anita Callaway had three additional children and at the time of the trial court
proceedings which are the subject of this appeal, James and Anita Callaway and
their four children were living together at Saint Simons Island, Georgia where
Mr. Callaway was employed as Human Resource Manager for Rich-Seapak, a
manufacturer of frozen foods.


          Following a blood test in August of 1987 the Juvenile Court of
Rutherford County, Tennessee ordered Mr. Callaway to pay child support to Ms.
Stephens in the amount of $60.00 per week plus half of the medical expenses
incurred on behalf of Ryan. At the time of this August 1987 order Mr.
Callaway's annual income was approximately $35,000.00.


          In the ensuing years Mr. Callaway increased his support payments
without the necessity of a court order to the point that at the time of the hearing
in the trial court of October 22, 1997 he was paying $460.00 per month, together
with half of Ryan's medical expenses.


          On June 10, 1997, appellant filed a petition seeking an increase in child
support asserting a change in circumstances. This petition was answered by the
appellee on July 21, 1997 and trial of the issues on October 2, 1997 resulted in
a judgment of the juvenile court of October 22, 1997 holding, in part, as follows:
          . . . That the amount of child support to be paid by the
          respondent should be based upon the guidelines promulgated

                                        -2-
         by the Department of Human Services, which amount this
         court finds to be $460.00 per month; that the respondent fails
         to exercise visitation with the minor child thereby justifying
         an upwards deviation from the child support guidelines in the
         amount of $40.00 for total child support of $500.00. . .



         Thus the trial court set future child support at $500.00 per month and
awarded $1,200.00 in attorney's fees to counsel for appellant.


         From this judgment appellant filed her notice of appeal on October 31,
1997.


         The proof at trial established the gross income for Mr. Callaway in
calendar year 1995 to be $64,029.44 with his 1996 gross income being
$62,973.33. His earnings for 1997 through September 21 were $50,941.77.


         Based upon all of the evidence the trial court found Mr. Callaway's
annual income to be $67,680.00 gross and there is little room for serious dispute
in the record about this amount of gross income.


         While the final order of October 22, 1997 recites correctly that the
Tennessee Department of Human Services Child Support Guidelines were
applicable the trial judge undertook to take into consideration the obligations of
Mr. Callaway to his four children living in his household with his wife Anita.
In making this determination the trial court observed:
         There is a court authority throughout the State of Tennessee
         that says I am just supposed to give you 21% of his net
         income, and there is an authority for that.
         I personably don't believe in that. He's got a family to
         support. Other than this child, he's got four other children;
         and I think all children are just as important as the other.



          This statement by the trial court is in conformity with Adams v. Reed,
874 S.W.2d 61 (Tenn.App.1993).


          It is noted that Adams v. Reed was decided by the Eastern Section of


                                       -3-
the Court of Appeals on November 19, 1993, and an application for permission
to appeal was denied by the supreme court on April 4, 1994.


          On September 29, 1994, the Department of Human Services Guidelines
for Child Support were amended with an effective date of December 14, 1994.
The effect of this amendment is discussed by this court at length in Kirchner v.
Pritchett, 1995 WL 714279 issued December 6, 1995. It is noted that Kirchner
v. Pritchett also involved an appeal from the Juvenile Court of Rutherford
County.


          In construing the December 14, 1994 amendment to the guidelines this
court said:
           **5 The recent changes in the guidelines affect several of
          the issues involved in this case. The parties and the juvenile
          court should recognize that they will affect the amount of Mr.
          Pritchett's child support obligation in the following
          particulars:

               1. Mr. Pritchett has the burden of proving his income
          and expenses. If the juvenile court finds that his proof is
          unreliable, it shall presume that his gross income is $25,761
          in accordance with Tenn. Comp. R. & Regs. r. 1240-2-4-
          .03(3)(e).

               2. The guidelines presume that the noncustodial
          parent is paying the required federal, state, and local taxes.
          See Tenn. Comp. R. & Regs. r. 1240-2-4-.03(4). thus, the
          amount of Mr. Pritchett's child support should be based on
          the presumption that he has or will pay the appropriate taxes,
          and the fact that he has not paid federal income taxes should
          not affect the amount of his child support obligation.

               3. Mr. Pritchett may not deduct payments for the
          support of his other children unless these payments are being
          made pursuant to a court order. See Tenn. Comp. R. & Regs.
          r. 1240-2-4-.03(4). (FN5)

               4. Mr. Pritchett cannot request the juvenile court to
          deviate from the guidelines solely because he is supporting
          other children unless he can demonstrate an extreme
          economic hardship. See Tenn. Comp. R. & regs. r. 1240-2-4-
          .03(4).

               5.   The amount of Mr. Pritchett's child support should


                                       -4-
           be increased if he is not providing medical insurance for his
           son. See Tenn. Comp. R. & Regs. r. 1240-2-4-.04(1)(a).

                6. The amount of Mr. Pritchett's child support should
           be increased if he is not exercising the visitation
           contemplated by the guidelines. See Tenn. Comp. R. &
           Regs. r. 1240-2-4-.04(1)(b).

Kirchner v. Pritchett, 1995 WL 714279 (Tenn.App.1995).



           The trial court thus takes issue with the guidelines' requirements that
Mr. Callaway may not deduct payments for the support of his children other than
Ryan unless such payments are made under a court order and further can not
request deviation from the guidelines solely because he is supporting other
children unless he can demonstrate an extreme economic hardship. The same
trial court found in the hearing below that no such extreme economic hardship
existed.


           Addressing this same problem in footnote the Kirchner court observed:
           FN5.      After criticizing the October 1989 version of the
           guidelines for not recognizing a parent's obligation to
           support children in the absence of a court order, another
           panel of this court held that voluntary child support should
           be considered in setting child support. Adams v. Reed, 874
           S.W.2d 61, 63-65 (Tenn.Ct.App.1993). The Department of
           Human Services amended the guidelines after the Adams v.
           Reed decision. Rather than giving parents credit for
           voluntary child support payments, the amended guidelines
           specifically state that voluntary child support cannot be
           deducted from gross income and cannot be used as a basis for
           deviating from the guidelines unless the payments involve
           extreme economic hardship. Tenn. Comp. R. & Regs. r.
           1240-2-4-.03(4).

1240-2-4-.0-3(4); Kirchner v. Pritchett, 1995 WL 714279 (Tenn.App.1995).



           However strongly the trial court or an appellate court may disagree with
the guidelines the legislative mandate is clear and courts have no choice but to
apply the guidelines when the court finds no legitimate basis for deviating
therefrom.



                                        -5-
                Child support in Tennessee is statutorily governed by
          T.C.A. § 36-5-101. Section 36-5-101(e)(1) provides that
          "[i]n making its determination concerning the amount of
          support of any minor child . . . of the parties, the court shall
          apply as a rebuttable presumption the child support
          guidelines as provided in this subsection." The General
          Assembly adopted the child support guidelines promulgated
          by the Tennessee Department of Human Services in order to
          maintain compliance with the Family Support Act of 1988,
          codified in various sections of 42 U.S.C. While they add a
          measure of consistency to child support awards statewide, the
          guidelines provide more than simple percentages to be
          applied against the net incomes of non-custodial parents.
          They also embody "the rules promulgated by the Department
          of Human Services in compliance with [the] requirements [of
          the Family Support Act of 1988]." Hence, the purposes,
          premises, guidelines for compliance, and criteria for
          deviation from the guidelines carry what amounts to a
          legislative mandate.

Nash v. Mulle, 846 S.W.2d 803, 804 (Tenn.1993).



          The guidelines providing no explicit requirement as to the amount to
be awarded in upward deviation because of the failure of Mr. Callaway to
maintain regular visitation with Ryan this court will not disturb the finding of the
trial court in this respect.


          The judgment of the trial court is reversed and the case remanded to the
Juvenile Court of Rutherford County, Tennessee with directions to fix the child
support obligation of Mr. Callaway in conformity with the child support
guidelines as amended on December 14, 1994.


          Costs of this cause are assessed against the appellee.




                                              _______________________________
                                              WILLIAM B. CAIN, JUDGE

CONCUR:


__________________________________


                                        -6-
HENRY F. TODD, PRESIDING JUDGE



__________________________________
BEN H. CANTRELL, JUDGE




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