                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    January 21, 2003 Session

            BYRD D. EARTHMAN v. BECKY (EARTHMAN) McRAE

                       Appeal from the Chancery Court for Dyer County
                        No. 97C345     J. Steven Stafford, Chancellor



                      No. W2002-00564-COA-R3-CV - Filed April 1, 2003


This is a child support case involving the allocation of private school tuition. In the parties’ divorce,
the father was granted sole custody of their three minor children. At the time of the divorce, the
mother worked part time and, upon agreement of the parties, did not pay child support. The mother
began working full time and so began paying child support. The father earns substantially more
income than the mother. The father decided to send the parties’ oldest child to boarding school. The
mother objected to assisting in paying for the child’s tuition. The trial court determined that the
mother should pay a portion of the tuition in addition to child support. The mother appeals. The
mother argues that the trial court erroneously considered her new spouse’s income, and erred in
requiring her to pay a portion of the tuition in addition to child support. We affirm.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and
DAVID R. FARMER , J., joined.

Charles A. Sevier, Memphis, Tennessee, for appellant, Becky (Earthman) McRae.

Mark L. Hayes, W. Lewis Jenkins, Jr., Dyersburg, Tennessee, for appellee, Byrd D. Earthman

                                              OPINION

        Byrd D. Earthman (“Father”) and Becky (Earthman) McRae (“Mother”) were married on July
13, 1985. Three children were born of the marriage, all of whom were minors during the pertinent
time period. The parties were divorced on September 5, 1997. Father was granted custody of the
children. At the time of the divorce, Mother was working part time. Because Mother worked part
time, and because she agreed to provide regular transportation for the children, Father agreed that
Mother would not pay child support.

       Mother later began working full time, at which time Father sought child support. Prior to the
hearing on Father’s petition for child support, the parties announced that Mother had agreed to pay
$1,219 per month in child support plus $207.97 per month towards the children’s health care. In
light of the partial settlement, the issues left to be determined at the hearing were Mother’s
contribution towards the children’s uncovered medical, dental, orthodontic, optical, and prescription
drug expenses, and Mother’s contribution towards the private school tuition of the parties’ oldest
child, Ellen.

        The hearing was held on November 13, 2001. At the time of the hearing, Father earned
$140,000 per year and Mother earned $49,000 per year. Father testified about his decision to enroll
Ellen in a boarding school. He testified that Ellen was not performing satisfactorily, and her grades
were not high enough for her to remain in the optional program at her public school. Consequently,
Father decided to enroll her at The Webb School, a private boarding school. Tuition and expenses
at The Webb School, minus applicable scholarships, amounted to $16,650 per year.

        Mother testified that she opposed Ellen’s enrollment at The Webb School, although she
admitted that her daughter had issues that needed to be addressed.1 Mother testified that she felt that
the parties’ daughter should be at home where she could see her parents, and said that she was
financially unable to contribute to the boarding school tuition. Counsel for Father asked Mother
about the income of her present husband. Mother’s counsel objected, but this objection was
overruled. Mother then testified that her husband, Reverend Frank McRae, earned approximately
$65,000 per year. After the trial court overruled Mother’s objection to the testimony on her
husband’s income, Mother’s counsel called Reverend McRae as a witness to clarify his sources of
income from retirement, Social Security, and a part-time job.

        At the conclusion of the hearing, the trial court determined that the parties should equally
divide the children’s uncovered medical, dental, orthodontic, optical, and prescription drug expenses.
The trial court also ordered Mother to contribute $6,000 towards the daughter’s private school
tuition. The order of the trial court states:

               After considering the testimony of the parties and applicable statutory and
       case law, including the case of Barnett v. Barnett, 27 S.W.3d 904 (Tenn. 2000), as
       well as the Tennessee Child Support Guidelines, and upon the consideration of the
       individual incomes of the parties and the total household income of the [Mother], the
       Court finds and concludes that the [Mother] should contribute $6,000 per school year
       to Ellen’s private school tuition and expenses. [Mother] made a timely objection to
       the testimony of [Mother] when she was asked by [Father’s] counsel the amount of
       income of her present husband Frank McRae, the court overruled the objection and
       required an answer. . . .

From this order, Mother appeals.




       1
           The trial court did not address the pro priety of Father’s decisio n to send Ellen to T he W ebb Scho ol.

                                                            -2-
        On appeal Mother asserts that the trial court erred in considering her current spouse’s income
in determining her obligation to assist in paying the boarding school tuition, and in ordering her to
pay $6,000 towards her daughter’s private school education. Father argues that the trial court should
have required Mother to pay half of the private school tuition.

       On appeal, questions of law are reviewed de novo without a presumption of correctness.
Burlew v. Burlew, 40 S.W.3d 465, 470 (Tenn. 2001) (citation omitted). A trial court’s
determination of child support is reviewed under an “abuse of discretion” standard. Kreuser v.
Smith, No. W2001-03135-COA-R3-CV, 2003 Tenn. App. LEXIS 32, at *4 (Tenn. Ct. App. Jan. 16,
2003) (citation omitted).

         Mother argues that the trial court abused its discretion in ordering her to pay $6,000 towards
her daughter’s private school tuition. She notes that her net monthly income is $3,060.58 per month.
When this net income is reduced by her statutory child support obligation of $1,219, by her court-
ordered health care contributions for the children of $207.97, by the children’s estimated uncovered
medical expenses of $100, and finally by $500 for Ellen’s private school tuition, Mother is left with
only $1033.61 per month, or thirty-four percent of her income. In contrast, Father asserts that the
law requires Mother to pay all of the private school tuition in addition to child support, and argues
that the trial court abused its discretion in reducing Mother’s obligation to less than half of the
tuition.

        This issue was discussed at length in Barnett v. Barnett, 27 S.W.3d 904 (Tenn. 2000). In
Barnett, the Tennessee Supreme Court held that private school tuition is considered an extraordinary
expense under the child support guidelines. Thus, under the guidelines, this expense must be added
to the obligor parent’s child support obligation. Barnett, 27 S.W.3d at 907.2 In Barnett, the obligor
parent, the father, had an income of $209,000 per year, while the obligee parent, the mother, earned
$28,000 per year. The father was required to pay the entire private school tuition for the parties’ son,
in addition to his monthly child support.

         The Barnett court noted that the child support guidelines “are based on a flat percentage of
the obligor’s net income.” Id. at 906. The obligee’s income is not considered in calculating the
amount of child support, nor is it justification for deviating from the guidelines in determining the
amount. Id. at 907. Since private school tuition is an extraordinary expense, under the guidelines,
the full amount of this expense would ordinarily be added to the obligor’s basic child support
obligation. Id. at 907. If strict application of the guidelines would be “unjust or inappropriate,”
however, a downward deviation may be considered. Id. at 907, 909 n. 4. The supreme court noted
that, in some cases, the obligor parent has substantially less income that the obligee parent. In such
instances, the Barnett court said it is appropriate to consider the obligee parent’s income in order


        2
         In addition to any base child support award, Rule 1240 -2-4-.04 of the Child Suppo rt Guidelines of the
Tennessee D epartment of Human Services provides: “Extraordinary educational expenses and extraordinary medical
expenses not covered by insurance shall be added to the percentage calculated in the above rule.” T enn. C omp . R. &
Regs. 1240-2-4-.04(1)(c) (1997 ).

                                                        -3-
to determine whether to make a downward deviation from the total support award, that is, the
combined award of base child support and extraordinary expenses. In sum, the supreme court stated:

                 We hold that wholesale imposition of private school tuition on a noncustodial
         parent may, in some instances, constitute just such an “unjust or inappropriate”
         application of the guidelines that would warrant downward deviation. Downward
         deviation in this context would spread the cost of tuition equitably among the parties.
         Our holding is consistent with our long-established common law rule requiring a
         parent to provide support “in a manner commensurate with his means and station in
         life.”

Id. at 909 (citations omitted). Thus, in order to achieve equity, when extraordinary expenses are
involved, a trial court may take into account the obligee parent’s income when considering a
downward deviation from the total child support award.

        In this case, the trial court appropriately followed the mandate in Barnett.3 Its decision was
based on a comparison of the parties’ respective incomes. The trial court ordered Mother to pay
$6,000, or approximately thirty-five percent, of the $16,650 private school tuition. Considering the
parties’ respective incomes as set forth in Barnett, the trial court did not abuse its discretion in
ordering Mother to pay this portion of the daughter’s private school education.4

        Mother also asserts that the trial court erred in considering her current spouse’s income in
determining her contribution toward Ellen’s private school tuition. Father argues that the trial court
correctly considered the income of Mother’s current spouse in determining Mother’s contribution.
Father cites Campanali v. Campanali, 695 S.W.2d 193, 197 (Tenn. Ct. App. 1985), to support his
argument; however, the facts of Campanali are not applicable to this case.5 Clearly, the trial court
erred in considering the income of Mother’s current spouse. The amount of Mother’s child support
obligation, however, including the $6,000 payment toward the boarding school tuition, is in line with
the reasoning in Barnett, without regard to the income of Mother’s current spouse. Therefore, this
error must be deemed harmless error.




         3
          W e note that the trial court departed from the guidelines in not requiring Mo ther to pay the full amount of the
tuition. Barnett obse rves that such a d eparture must be justified by specific findings that strict application of the
guidelines would be unjust or inapp ropriate. See Barnett, 27 S.W .3d at 909 n.4. In this case, however, Father did not
seek to have M other pay the full amount.

         4
          If Mother’s portion of the private school tuition were allocated in strict proportion to the parties relative
income, the amount of the award would be reduced, since Mother’s income is approximately 26% of the total of her
income plus Father’s inc ome . This would make Mother’s portio n of the tuition approximately $4,300 rather than $6,000.
Regardless, however, we cannot conclude that the award of $6,000 is an abuse of discretion.

         5
          In Cam pan ali, the obligor parent voluntarily included his girlfriend’s income as his for purposes of calculating
his own financial ability to pay child supp ort. Cam pan ali, 695 S.W .2d at 197 n.7.

                                                            -4-
      The judgment of the trial court is affirmed. Costs are taxed to appellant, Becky (Earthman)
McRae, for which execution may issue, if necessary.




                                                     ___________________________________
                                                     HOLLY KIRBY LILLARD, JUDGE




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