                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                                             April 20, 2004 Session

              CARLA LYNN DOWNING v. JOSEPH WADE DOWNING

                   A Direct Appeal from the Chancery Court for Madison County
                      No. 52528     The Honorable Joe C. Morris, Chancellor



                          No. W2003-00561-COA-R3-CV - Filed May 27, 2004


        This is an appeal from the trial court’s order, which increases Appellant/Father’s child
support obligation to an amount consistent with the Tennessee Child Support Guidelines. Appellant
contends that the trial court erred in failing to consider his extensive visitation with the child in
declining to deviate downward from the guidelines. We affirm.


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

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and H OLLY M. K IRBY ,
J., joined.

David W. Camp of Jackson for Appellant, Joseph Wade Downing

Clayton F. Mayo of Jackson for Appellee, Carla Lynn Downing

                                                        OPINION


        Joseph Wade Downing (“Mr. Downing,” “Defendant,” or “Appellant”) and Carla Lynn
Downing (“Ms. Downing,” “Plaintiff,” or “Appellee”) were married on March 17, 1990. The parties
have one child, G.W.D. (d.o.b. 6/29/93). On November 6, 1996, Ms. Downing filed a Complaint
for divorce against Mr. Downing. Temporary custody of G.W.D. was awarded to Ms. Downing and
both parties filed financial affidavits. On December 11, 1996, a Consent Order was entered, which
reads, in relevant part, as follows:

                   1. Husband, JOSEPH WADE DOWNING, shall pay to the Wife,
                   CARLA LYNN DOWNING, the sum of $800.00 per month child
                   support with the first payment to begin as of Wednesday, December
                   14, 1996. Under Husband’s income, child support would be
                   $1,309.00 per month under the DHS Guidelines. The Court is
                   approving a deviation from the guidelines because Husband is
                   spending more than the guidelines mandated time with the parties’
                   minor child and is paying daycare.
               *                                       *                          *

               3. The Order granting temporary custody to the Plaintiff heretofore
               issued in this cause is modified to grant the parties joint custody with
               the Wife being designated as the primary custodial parent.

On June 27, 1997, the Final Decree of Divorce was entered. The Final Decree incorporated, by
reference, the parties’ Marital Dissolution Agreement (“MDA”). The MDA, entered on June 17,
1997, gives the parties “joint and/or shared” custody of G.W.D, with Ms. Downing being the primary
custodial parent. The MDA outlines a visitation schedule under which Mr. Downing visitation
exceeded the eighty (80) days per year assumed by the Tennessee Child Support Guidelines
(“TCSG”). The child support section of the MDA reads, in pertinent part, as follows:

               The parties agree that the Husband shall pay child support in the
               amount of $450.00 per month for the support and maintenance of the
               parties’ minor child, directly to the Wife, continuing until the child
               attains the age of eighteen (18) years. Husband further agrees to pay
               all tuition/day care expenses for the parties’ minor child at Jackson
               Christian School Preschool Facility as part of the child support, said
               amount not to exceed $350.00. In the event day care of preschool
               expenses exceed $350.00 per month, the Wife agrees to pay the
               additional amount. In the event Husband is not paying day care or
               preschool expenses, Husband agrees to pay the same amount that he
               would pay for private school or daycare expenses to Wife in addition
               to the child support of $450.00

       On March 21, 2001, Ms. Downing filed a “Motion for Civil Contempt and to Increase Child
Support.” This Motion alleged that Mr. Downing was in arrears in the payment of child support in
the amount fo $2,040.00 and prayed, inter alia, that Mr. Downing be ordered to pay all arrearages
and that child support be set according to the TCSG. On July 17, 2001, a Consent Order was
entered, which reads, in relevant part, as follows:

               1. That the Defendant. Joseph Wade Downing [hereinafter referred
               to as “Father”], shall pay as child support the sum of Five Hundred
               Dollars ($500.00) per month while the parties’ minor child is in
               grades three (3) through five (5). Father shall pay as child support the
               sum of Five Hundred Fifty Dollars ($550.00) per month while the
               minor child is in grades six (6) through nine (9). Father shall pay as
               child support the sum of Six Hundred Dollars ($600.00) per month
               while the minor child is in grades ten (10) through twelve (12)....




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                  2. That Father shall pay all costs, including tuition, books and fees
                  associated with the child attending Jackson Christian School through
                  graduation from the twelfth (12th) grade.

                  3. That Father shall pay to Mother the sum of $1,500.00, which
                  represents the child support arrearage as of May 1, 2001. Father shall
                  pay the $1,500.00 to Mother within six (6) months of entry of this
                  Order.

        On September 20, 2001, Ms. Downing filed a “Petition to Modify,” seeking to set Mr.
Downing’s child support in accordance with the TCSG.1 Mr. Downing filed his “Answer to Petition
to Modify and Counter-Petition to Modify Final Decree of Divorce as to Child Support and Tuition”
(the “Answer”) on January 8, 2002. The Counter-Petition section of the Answer reads, in pertinent
part, as follows:

                  5. That since the entry of the Consent Order on July 17, 2001, there
                  has been a substantial material change in circumstances as well as a
                  substantial variance in earnings, making it impossible for the natural
                  father to continue to pay support at the agreed upon amount. The
                  minor children spend an equal amount of time with both parents and
                  therefore a reduction and/or elimination of child support is warranted.
                  That both parties should be responsible for payment of uncovered
                  health insurance and all incidental expenses incurred on behalf of the
                  minor children.

                  6. That the natural father hereby requests this Court reduce the
                  amount of support and require that the parties split tuition rather than
                  ordering the Father to pay the full tuition amount due to Jackson
                  Christian School.

        A “Motion for Contempt” was filed by Ms. Downing on February 21, 2002, alleging that Mr.
Downing had paid only $200.00 in child support since October, 2001. Mr. Downing filed his
“Answer to Motion for Contempt” on March 15, 2002. A hearing was held on March 15, 2002. On
May 22, 2002, an Order was entered, which raised Mr. Downing’s child support payments to
$1,034.00 per month, under the TCSG, and made Ms. Downing responsible for the private school
tuition.2 Mr. Downing filed a Motion to Alter or Amend on June 18, 2002.

         1
           An “Amendment to Petition to Modify” was filed on October 1, 2001. The amendment did not change the
prayer that child support be set consistent with the TCSG.

         2
         In their briefs, both parties assert that Mr. Downing was ordered to pay the private school tuition. However,
the May 22, 2002 Order reads, in relevant part:

                                                                                                        (continued...)

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        On July 1, 2002, Ms. Downing filed a “Motion for Clarification of Order,” asking for the
status of Mr. Downing’s arrearage since such was not addressed by the May 22, 2002 Order. Ms.
Downing also filed another “Motion for Contempt” on July 8, 2002. On October 10, 2002, the trial
court entered an Order, finding that Mr. Downing’s arrearage totaled $6,843.00, ordering him to pay
a $2,500.00 cash bond toward the judgment, and ordering that the remaining $4,343.00 of the
judgment be paid in twelve (12) monthly installments of $361.62 in addition to the monthly child
support obligation of $1,034.00.

        On November 25, 2002, Mr. Downing filed an Amended Motion to Alter or Amend.
Following a hearing on November 26, 2002, the trial court denied Mr. Downing’s Motion by Order
of January 31, 2003. On January 21, 2003, Mr. Downing filed a “Motion to Stop Payments of Child
Support Arrearage and for Full Accounting and for Temporary Restraining Order,” which alleged
that the child support arrearage of $6,843.00 in the October 10, 2002 Order was incorrect. Ms.
Downing filed her Response to this Motion on January 30, 2003. Mr. Downing’s Motion was heard
on March 5, 2003 and an Order was entered on July 8, 2003, which set the arrearage at $3,206.75,
and ordered Mr. Downing to pay the arrearage in twelve (12) monthly installments of $267.23, in
addition to the monthly child support obligation of $1,034.00

         Mr. Downing appeals and raises one issue for review as stated in his brief: Did the trial court
err in failing to grant a downward deviation from the Tennessee Child Support Guidelines when the
record reflects the Appellant was exercising extensive visitation.

       Mr. Downing contends that the trial court erred in failing to deviate downward from the
TCSG based upon Mr. Downing’s exercising more expansive visitation with the child than the eighty
(80) days per year contemplated by the guidelines.

       T.C.A. § 36-5-101(e)(1)(A) (Supp. 2001) states that:

                   In making its determination concerning the amount of support of any
                   minor child or children of the parties, the court shall apply as a
                   rebuttable presumption the child support guidelines as provided in
                   this subsection. If the court finds that evidence is sufficient to rebut
                   this presumption, the court shall make a written finding that the
                   application of the child support guidelines would be unjust or


        2
            (...continued)
                     1. That the Defendant [Mr. Downing] shall pay to the Plaintiff [Ms. Downing] the
                     su[m] of $1,034.00 per month, for the support, education and maintenance of the
                     parties’ minor child.

                   2. That the Plaintiff [Ms. Downing] shall be responsible for the Jackson Christian
                   School tuition.




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               inappropriate in that particular case, in order to provide for the best
               interest of the child(ren) or the equity between the parties....

Id. (emphasis added).

        Although there is a presumption of correctness in calculations of child support consistent
with the TCSG, T.C.A. § 36-5-101(e)(1)(A), Tenn. Comp. R. & Regs. R. 1240-2-4-.02(6) (2003)
states that “[i]n situations where overnight time is divided more equally between the parents, the
courts will have to make a case-by-case determination as to the appropriate amount of support.”
Tenn. Comp. R. & Regs. R. 1240-2-4-.04(1)(b) (2003) states that “[t]he court may consider a
downward deviation from the guidelines if the obligor demonstrates that he/she is consistently
providing more care and supervision for the child than contemplated in the rule.”

        Although the trial court may deviate from the guidelines, the decision to do so is
discretionary. As such, the standard of review in child support matters differs from the standard
Tenn. R. App. Rule 13(d) “presumption of correctness.” This Court has discussed this heightened
standard of review as follows:

               Setting child support is a discretionary matter. See State ex rel.
               Coleman v. Clay, 805 S.W.2d at 755. Accordingly, we review child
               support decisions using the deferential “abuse of discretion” standard
               of review. This standard requires us to consider (1) whether the
               decision has a sufficient evidentiary foundation, (2) whether the court
               correctly identified and properly applied the appropriate legal
               principles, and (3) whether the decision is within the range of
               acceptable alternatives. See BIF v. Service Constr. Co., No. 87-136-
               II, 1988 WL 72409, at *2 (Tenn. Ct. App. July 13, 1988) (No
               TennR.App.P. 11 application filed). While we will set aside a
               discretionary decision if it rests on an inadequate evidentiary
               foundation or if it is contrary to the governing law, we will not
               substitute our judgment for that of the trial court merely because we
               might have chosen another alternative.

State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000).

        In the instant case, there is quite a discrepancy between the monthly incomes of the parties.
Mr. Downing’s gross monthly income in 2002 was approximately $6,946.75, while Ms. Downing’s
gross monthly income in 2001 was $2,044.45. Although Mr. Downing may exercise more visitation
with G.W.D. than is contemplated under the guidelines, there is no mandate that a downward
deviation must be granted in this situation. Based upon the entire record in this case, and particularly
in light of the respective incomes of these parties, we find that the trial court did not abuse its
discretion in declining to deviate from the TCSG.



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       For the foregoing reasons, we affirm the Order of the trial court. Costs of this appeal are
assessed against the Appellant, Joseph Wade Downing, and his surety.



                                             __________________________________________
                                             W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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