                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 November 27, 2001 Session

         TROY ALLEN THOMPSON v. ELISA CONNELL HULBERT

                      Appeal from the Juvenile Court for Shelby County
                           No. L8261     A. V. McDowell, Judge



                     No. W2000-02675-COA-R3-JV - Filed August 9, 2002


This is a constitutional challenge to the Tennessee Child Support Guidelines, Tenn. Comp. R. &
Regs. 1240-2-4. While the mother was married to another man, she and the father had an extra-
marital relationship. The child at issue in this case was born of that relationship. The father and
mother never married each other. Later the father married a different woman and had two other
children. Under the Tennessee Child Support Guidelines, the father’s financial support of the
children born of his marriage could not be considered in determining the amount of court-ordered
child support for his first child. The father argued to the juvenile court that the Guidelines treated
his later-born children less favorably than his first child and, therefore, violated his children’s
constitutional rights to equal protection. The juvenile court rejected this argument and ordered child
support in accordance with the Guidelines. The father now appeals. We reverse, finding that the
Tennessee Child Support Guidelines violate the equal protection guarantees of the federal and state
constitutions.

   Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Juvenile Court Reversed and
                                        Remanded

HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and DAVID R. FARMER , J., joined.

David A. McLaughlin and Gail R. Sevier, Memphis, Tennessee, for the Appellant, Troy Allen
Thompson.

Paul G. Summers, Attorney General and Reporter, and Kim Beals, Assistant Attorney General,
Nashville, Tennessee, for the Attorney General's Office.
                                              OPINION

       In 1993, Petitioner/Appellant Troy Thompson (“Thompson”) fathered a son, Nickalaus, with
Respondent/Appellee Elisa Hulbert (“Hulbert”). At the time, Hulbert was married to another man.
Nickalaus’s true parentage was not determined until 1996, when a blood test confirmed that
Thompson is his father. Thompson agreed to pay $375 per month for child support.

        In the meantime, Thompson had married Andrea Thompson and they had two children. In
July 2000, for reasons not apparent from the record, Thompson and Hulbert filed petitions in
juvenile court to establish Thompson’s parentage of Nickalaus. In addition, Hulbert requested that
the juvenile court set an appropriate amount of child support for Nickalaus. By order dated August
1, 2000, the juvenile court legitimated Nickalaus and scheduled a hearing to determine the amount
of Thompson’s child support obligation. At this hearing, Thompson testified regarding his support
obligations for his current household, including the expenses for the two infant sons born of his
marriage to Andrea. Thomson testified that if he were required to pay the additional $300 per month
in child support required under the Tennessee Child Support Guidelines, the result would be “a slow
death...for my financial situation.” The juvenile court was unmoved, and found that Thompson
failed to show the type of extreme financial hardship that would permit a downward deviation from
the Guideline amount. The juvenile court also found that the Guidelines were “not unconstitutional
to the extent [they fail] to take into account the children of petitioner’s present marriage in setting
the appropriate amount of child support.” From this order, Thompson now appeals.

        In this appeal, Thompson argues that Tennessee’s Child Support Guidelines, by prohibiting
the trial court from taking into account children who are not the subject of a child support order,
violates the constitutional rights to equal protection of the children born of his marriage. The State
argues that there is a rational basis for this prohibition in the Guidelines and that the Guidelines are
not unconstitutional. In addition, the State argues that the children born of Thompson’s marriage
have not suffered any concrete injury, that therefore the issue of the constitutionality of the
Guidelines is not properly before the Court. The State also argues that the issue is not properly
before the Court because the children born of Thompson’s marriage are not parties to this case.

       Since this case was tried by the court sitting without a jury, the court’s factual findings are
reviewed de novo accompanied by a presumption of correctness unless the preponderance of the
evidence is otherwise. Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Tennessee
R. App. P. 13(d). The trial court’s legal conclusions are reviewed de novo with no presumption of
correctness. Campbell, 919 S.W.2d at 35.

        We address first the initial issues raised by the State, namely whether the issue of the
constitutionality of the Guidelines is properly before this Court. Since Thompson is required to pay
more child support for Nickalaus than would be required if the trial court took into account the
support he pays for the children born of his marriage, we find that he has suffered a concrete injury
and that he has standing to raise the issue of the constitutionality of the Guidelines. Accordingly,
we will consider the issue on its merits.

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        The Tennessee Child Support Guidelines, Tenn. Comp. R. & Regs. 1240-2-4, provide a
means of computing child support based on a percentage of the obligor parent’s net income. In
calculating net income, the Guidelines provide:

       Net income is calculated by subtracting from gross income of the obligor FICA..., the
       amount of withholding tax deducted for a single wage earner claiming one
       withholding allowance..., and the amount of child support ordered pursuant to a
       previous order of child support for other children...Children of the obligor who are
       not included in a decree of child support shall not be considered for the purposes of
       reducing the obligor’s net income or in calculating the guideline amount. In
       addition, these children should not be considered by the court as a reason for
       deviation unless they meet the requirements of rule 1240-2-4-.04(4) [relating to
       extreme financial hardship].

Tenn. Comp. R. & Regs. 1240-2-4-.03(4) (emphasis added). The obligor parent’s net income is then
multiplied by a percentage which is based on the number of children subject to the order, as follows:

       No. of children          1               2               3               4          5 or more
       % of income             21%             32%             41%             46%           50%

Assuming that there are no circumstances which warrant deviating from the Guidelines, this is the
method used to calculate the amount of the child support award.

        As noted above, in determining the amount of child support, the Guidelines prohibit the trial
court from considering the parent’s support of other children unless the other children are covered
by a previous order of child support. Thompson argues that this provision in the Guidelines violates
the equal protection guarantees of the 14th Amendment of the U.S. Constitution and Article XI,
Section 8 of the Tennessee Constitution. As stated in his brief, “[t]he question for the Court is
whether the Tennessee Child Support Guidelines grant a special right to children under a ‘court order
of support’ while simultaneously failing to provide the same right to the children of an obligor parent
who are not subject to an order of support.”

        We begin with the presumption that the Guidelines are constitutional. See Town of
Huntsville v. Duncan, 15 S.W.3d 468, 471 (Tenn. Ct. App. 1999). “There is a strong presumption
in favor of the constitutionality of acts passed by the Legislature and its acts will not be held
unconstitutional merely for reasons of policy.” Bozeman v. Barker, 571 S.W.2d 279, 282 (Tenn.
1978). Thompson does not argue that a fundamental right is involved, nor does he argue that the
Guidelines create “a classification involving a ‘suspect’ or ‘protected’ class, such as race or national
origin.” See Town of Huntsville, 15 S.W.3d at 472. Therefore, our review is limited to whether
there is a rational basis for the Guideline’s preferential treatment of children covered by court-
ordered child support. Id.



                                                  -3-
        Prior to their revision in 1994, the Guidelines, while providing a deduction from net income
for a previous order of child support, made no mention of non-ordered or “voluntary” child support.
The Court in Adams v. Reed questioned the “rationale for excluding other dependent children which
a debtor is actually supporting just because he is not under a ‘previous order of child support.’” 874
S.W.2d 61, 63 (Tenn. Ct. App. 1993). The Court held that evidence that the parent was supporting
two other custodial children was sufficient to overcome the presumption in favor of the Guideline
amount. Id. at 65. In response to the Court’s decision in Adams, the Guidelines were revised to
specifically exclude non-ordered support from consideration either in calculating net income or in
deviating from the Guideline amount.

        Recently, the Eastern Section of this Court addressed a similar constitutional challenge to
the Child Support Guidelines. See Gallaher v Elam, No. E2000-02719-COA-R3-CV, 2002 Tenn.
App. LEXIS 94 (Tenn. Ct. App. Jan. 29, 2002). In that case, the father was married and had three
other children at the time he fathered a fourth child out-of-wedlock. Id. at *3. The Referee ordered
child support in the amount determined by the Guidelines. Id. The juvenile court, however, found
that Regulation 1240-2-4-.03(4) violated the equal protection guarantees of the state and federal
constitutions. Id. The State appealed and this Court affirmed holding that “[a]ll children of the same
parent have the right to share fairly with their siblings in their common parent’s resources.” Id. at
*7 (quoting State ex rel. Randolph v. Poteet, No. 01-A-01-9808-JV-00419, 1999 Tenn. App. LEXIS
176, at *24 (Tenn. Ct. App. Mar. 17, 1999) (Koch, J., concurring)).

         We likewise find no rational basis for flatly prohibiting the trial court from considering a
parent’s support of other children, where such support may be legally mandated, as in Thompson’s
support of the children born of his marriage, even though these children are not the subject of an
order of child support. The State argues that children living with a parent may not need the same
level of support. Even if true, this does not justify prohibiting the trial court from considering such
children at all in the calculation of child support. See State ex rel. Randolph v. Poteet, No. 01-A-
01-9808-JV00419, 1999 Tenn. App. LEXIS 176, at *23 (Tenn. Ct. App. Mar. 17, 1999) (Koch, J.,
concurring). Therefore, we reverse the judgment of the juvenile court, and find the Guidelines an
unconstitutional violation of the equal protection guarantees insofar as they prohibit the trial court
from considering Thompson’s legally mandated support of the children born of his marriage. The
cause is remanded to the juvenile court for a redetermination of the amount of child support in light
of this ruling.

        For the foregoing reasons, the decision of the juvenile court is reversed. The cause is
remanded to the juvenile court for further proceedings consistent with this opinion. Costs are taxed
to the appellee, State of Tennessee, for which execution may issue if necessary.




                                                       ___________________________________
                                                       HOLLY KIRBY LILLARD, JUDGE

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