STATE OF TENNESSEE ex rel.,      )
DONNA RANDOLPH,                  )
                                 )
       Petitioner/Appellant,     )
                                 )
                                       Appeal No.  FILED
                                       01-A-01-9808-JV-00419
v.                               )                   March 17, 1999
                                 )     Putnam Juvenile
JOHN R. POTEET,                  )     No. 83      Cecil Crowson, Jr.
                                 )                Appellate Court Clerk
       Respondent/Appellee.      )
                                 )


                  COURT OF APPEALS OF TENNESSEE


     APPEAL FROM THE JUVENILE COURT FOR PUTNAM COUNTY,

                      AT COOKEVILLE, TENNESSEE


            THE HONORABLE NOLAN R. GOOLSBY, JUDGE




JOHN KNOX WALKUP
Attorney General and Reporter

TAMMY L. KENNEDY
SUE A. SHELDON
Assistant Attorneys General
2nd Floor, Cordell Hull Building
425 Fifth Avenue, North
Nashville, Tennessee 37243
      ATTORNEYS FOR PETITIONER/APPELLANT



RANKIN P. BENNETT
107 South Washington Avenue
Cookeville, Tennessee 38501-3547
     ATTORNEY FOR RESPONDENT/APPELLEE




                       REVERSED AND REMANDED



                                         WILLIAM B. CAIN, JUDGE
                               OPINION
         In this case the mother of a sixteen year old boy appeals the action of
the trial court in applying a downward deviation from child support guidelines.


         John R. Poteet is married and has three children born of the marriage,
such children being ages seven, four and one respectively, and he is the
biological father of Stephen Poteet born to the petitioner, Donna Randolph on
April 16, 1982.


         By paternity order dated February 20, 1991, the legal obligation of
John R. Poteet to support Stephen Poteet was recognized and his support
obligation was set at $200 per month with which obligation John R. Poteet has
faithfully complied.


         On November 26, 1997, Donna Randolph filed a petition to modify
child support for Stephen, alleging a "significant variance" from the Tennessee
Child Support Guidelines. This was a Title IV(d) petition filed with the
assistance of the District Attorney General Child Support Division.


         At the hearing, the court found the gross income of John R. Poteet to
be $2,924.13, yielding a net income of $2,233 per month. Such an income
required a presumptively correct guideline child support figure of $469.


         Mr. Poteet argued for a downward variation from the guidelines
asserting that his oldest child of his marriage was born before the legitimation
or the paternity order of February 20, 1991 and that his three children living in
his household should be considered as a basis for deviating from the guidelines.


         The trial court held:
              The Court in making its decision in this case finds that
         following the decision of Adams v. Reed, the Department of
         Human Services amended the guidelines effective December
         14, 1994 to provide "Rather than giving parents credit for
         voluntary child support payments, the amended guidelines
         specifically state that voluntary child support cannot be
         deducted f[ro]m gross income and cannot be used as a basis
         for deviation from the guidelines unless the payments
         involve extreme economic hardship." Tenn. Comp. R. &
         Regs. R. 1240-2-4-.03(4).

                                       -2-
               Therefore, the Court finds the issue relating to the
         second and third child of the respondent's marriage is
         specifically covered by the current guidelines and cannot be
         considered as a basis for deviation in this modification case
         unless there is a showing of extreme economic hardship. but
         the guidelines do not address the facts surrounding the first
         born child of the respondent's marriage.
               Notwithstanding the above mentioned rule, it is the
         Court's ruling that first born child of the respondent's
         marriage is not covered by the same provision of the
         guidelines for the reason that their was no legal obligation of
         support for the child born out of wedlock until a court order
         was entered first establishing paternity and thus creating the
         legal obligation of support for said child. Prior to the entry
         of such order on February 20, 1991, the respondent had no
         parental rights or obligation to support Stephen Poteet. The
         legal argument that after-born children are a voluntary
         assumed obligation must be based upon an underlying legal
         support obligation. In this case, the Court finds that the
         respondent had no legal obligation to support any child prior
         to the birth of the first child born of his marriage.
                                         * **
               After considering all of the testimony of the parties and
         their witnesses, arguments of counsel and from the entire
         record in this cause, the Court finds in this case that the
         presumptively correct monthly child support amount is
         $469.00 for the minor child, Stephen Poteet, under guidelines
         based upon the respondent's present monthly net income of
         $2,233.00. However, the evidence presented in this case is
         sufficient to rebut this presumption. The Court finds that
         application of the child support guidelines would be unjust
         or inappropriate in order to provide for the best interest of the
         children and to provide equity between the parties based
         upon the above findings and, in particular, considering the
         fact that one child of the respondent's marriage was born
         before the paternity of Stephen Poteet was established. The
         Court further finds that extreme economic hardship would
         result if the guideline amount were not reduced. Based upon
         these findings, the Court orders that the respondent's child
         support obligation shall be set in the sum of $325.00 per
         month beginning January 14, 1998.



         The court further held that because Mr. Poteet had been punctual in his
previous child support payments, that he should be allowed to continue to make
the payments directly to Mrs. Randolph rather than pay them into court as
required by the guidelines.


         With all due respect to the trial court and no small degree of sympathy

                                        -3-
for Mr. Poteet, these adjudications by the trial court simply cannot stand under
the requirements of Jones v. Jones, 930 S.W.2d 541 (Tenn.1996).


         The guidelines are a clear legislative mandate and the courts have no
choice but to follow them absent a legitimate basis for deviating therefrom.


              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 simply 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.1933).



         In specific reference to the authority of the court for downward
deviation from the guidelines, the Supreme Court has said:
         [3] This latter argument construes the trial court's authority
         to deviate downward too broadly. While § 36-5-101(e)(1)
         does authorize deviation in order to ensure equity between
         the parties, and while downward deviation is clearly not
         prohibited, the trial court's authority to do so must be
         considered in light of the provisions dealing with such
         deviation--Rule 1240-2-4-.04(2) and (4). Although not
         exclusive, those subsections provide for downward deviation
         in three instances: (1) where DHS has taken custody of the
         child(ren) pursuant to neglect, dependency, or abuse action;
         (2) where the child(ren) spend more visitation time with the
         obligor than is assumed by the guidelines; and (3) in cases in
         which the obligor is subjected to an "extreme economic
         hardship," such as where other children living with the
         obligor have extraordinary needs. Therefore, the guidelines
         expressly provide for downward deviation where the obligee

                                       -4-
         has utterly ceased to care for the child(ren); where the
         obligee clearly has a lower level of child care expense than
         that assumed in the guidelines; and where the obligor is
         saddled with an "extreme economic hardship." Although the
         rule does not purport to set forth an exhaustive list of
         instances in which downward deviation is allowed, these
         specific instances nevertheless are a powerful indication as
         to the types of situations in which it is contemplated under
         the guidelines.

Jones v. Jones, 930 S.W.2d 541, 545 (Tenn.1996).



         Prior to Jones, efforts were made to take into consideration the plight
of children living with mother and father in the married household. Adams v.
Reed, 874 S.W.2d 61, 63-65 (Tenn.App.1993).


         Said this court after the Adams' decision:
         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).



         The child support order of the trial court will be modified and increased
from the $325 support figure set by the trial court to $469 per month as is
required by the child support guidelines.




         Also, child support will be paid by income assignment as required by
Tennessee Code Annotated section 36-5-501(a)(1)(1997 Supp.) as there is
neither a specific finding that the child's interest would be best served by not


                                       -5-
having an income assignment or a written agreement of the parties approved by
the trial court to forego income assignment entered in this record.


         The judgment of the trial court is reversed and the case is remanded for
proceedings in conformity with this opinion.


         Costs of the appeal are taxed to the appellee.




                                  ______________________________________
                                  WILLIAM B. CAIN, JUDGE


CONCUR:



____________________________________
BEN H. CANTRELL, P.J., M.S.


WILLIAM C. KOCH, JR., JUDGE
CONCURS IN SEPARATE OPINION




                                      -6-
