           IN THE COURT OF APPEALS OF TENNESSEE
              AT JACKSON FEBRUARY 1999 SESSION




LINDA JONES LEE,            )
                            )   SHELBY JUVENILE
     Petitioner/Appellant   )
                            )   Appeal No. 02A01-9805-JV-00133
v.                          )
                            )
VINCENT JEROME ASKEW,       )
                            )
                                  FILED
     Respondent/Appellee    )      March 17, 1999

                                 Cecil Crowson, Jr.
                                  Appellate C ourt Clerk




     APPEAL FROM THE JUVENILE COURT OF SHELBY COUNTY
                        AT MEMPHIS
           THE HONORABLE A. V. McDOWELL, JUDGE




For the Appellant:
Edward B. Johnson
Sloan, Rubens & Peeples
P. O. Box 768
West Memphis, AR 72303

For the Appellee:
Daniel Loyd Taylor
John N. Bean
100 North Main
Suite 2400
Memphis, TN 38103



MODIFIED

                            WILLIAM H. INMAN, Senior Judge

CONCUR:

W. FRANK CRAWFORD, JUDGE
DAVID R. FARMER, JUDGE

      The issue in this case is the amount of child support that the acknowledged

father, the appellee, a professional basketball player, should pay for the support of

his son who was born out of wedlock on January 9, 1986.

      We need not recite the proceedings before November 14, 1996, the date of

a hearing before the Referee who found that the financial circumstances of the

appellee had significantly increased.             His gross income with the National

Basketball Association for the 1995 - 96 season was $1,750,000.00, increased to

two million dollars for the 1996 - 97 season. The Referee recommended that the

child support be increased to $1,512.00 monthly, 1 beginning January 15, 1996. It

was further recommended that a

      “guardianship in the Probate Court be opened to receive $118,156.00
      on February 15, 1996 and $138,732.00 on November 1, 1996, . . . to
      be used for the support and maintenance of the child as may be
      necessary from time to time especially in the event that Mr. Askew’s
      future income should diminish.”

Medical insurance was also recommended.

      On April 3, 1997, the case was heard by a special judge of the Juvenile

Court, who found that the appellee had paid $256,888.00 into the Treasury of the

Probate Court as recommended by the Referee and ordered that these funds be

invested as the law requires and made available for the expenses of the child

during his minority and for monthly support in the event the appellee’s income

diminished. It was further ordered that the fund may be used for college expenses,

but in the event the child did not attend college or did not complete his education

within a reasonable time, the balance would be returned to the appellee.

      The monthly support obligation of $1,512.00 was affirmed.



      1
          From $210.00, which was paid irregularly.

                                              2
      Thereafter, on July 2, 1998, the Court approved the reimbursement to the

appellant of $1,958.00 for certain expenses she had incurred, and a further

reimbursement of $3,000.00 for a computer, to be paid from the fund, and awarded

the appellant her attorney fees of $5,428.54 to be paid from the income generated

by the fund, which was to be administered by the Probate Court.

      The plaintiff appeals, and presents for review the issues of (1) whether the

monthly award of support in the amount of $1,512.00 was in conformity with the

support guidelines, (2) whether the agreement of the defendant to pay the expenses

of a private school should have been incorporated in the judgment, (3) whether the

court erred in ordering any undistributed balance in the fund returned to the

defendant, and (4) whether the plaintiff’s attorney fees should have been ordered

paid from the fund.

      The appellee presents for review the issues of (1) whether he was properly

ordered to pay the monthly support retroactive to May 19, 1995, (2) whether the

Court “erred in ordering that the guardianship fund be available to pay the child’s

college tuition when such an order, under the authority of the child support

guidelines, violates Mr. Askew’s constitutional rights, (3) whether the Court erred

in ordering the administration of the guardianship fund by the Probate Court, and

(4) whether the court erred in awarding all attorney fees incurred by the plaintiff

when she was not successful on all issues.

      Our review of the findings of fact made by the trial Court is de novo upon

the record of the trial Court, accompanied by a presumption of the correctness of

the finding, unless the preponderance of the evidence is otherwise. TENN. R. APP.

P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996).

      Once the parent’s income has been determined, the guidelines require the

courts to calculate the required amount of support using the percentages provided

                                         3
in the guidelines. See Tenn. Comp. R. & Regs. r. 1240-2-4-.03(5). In most

circumstances, the result of these calculations becomes the obligor parent’s child

support obligation. However, a court may deviate from the guidelines if it makes

detailed, written findings explaining why the application of the guidelines would

be inappropriate and how deviating from the guidelines would be in the child’s

best interests. See Tenn. Comp. R. & Regs. r.1240-2-4-.02(7) (1994).

      One ground for deviation specifically recognized in the guidelines involves

wealthy parents whose net monthly income exceeds $6,250.00. On the occasions

when the trial court calculated Mr. Askew’s child support obligation, Tenn. Comp.

R. & Regs. r. 1240-2-4-.04(3) provided that in the case of wealthy parents, the

court must order the child support based on the appropriate percentage of all the

obligor parent’s net income but that it may fashion alternative payment

arrangements for the child support derived from the portion of the net income that

exceeds $6,250.00 per month.2 The guidelines, like Nash v. Mulle, 846 S.W.2d

803, 806 (Tenn. 1993), also provide that permissible alternative payment

arrangements may include educational or other trust funds for the benefit of the

children.

      The amount of child support required by the guidelines is presumptively

correct. See Tenn. Comp. R. & Regs. r. 1240-2-4-.02(7) (1994). Mr. Askew’s

support obligation is consistent with the guidelines.

                                               I

      Appellant argues that an upward deviation from the guidelines is justified

because of the high-income status of the appellee, who thereby enjoys a high

standard of living which his child should share, See, Nash, supra, and the custodial



      2
          The DHS increased the $6,250.00 ceiling to $10,000.00 effective October 5, 1997.

                                               4
parent is not required to prove a specific need to justify an award beyond

$1,512.00.00.3 The trial judge, with the aid of counsel, considered the issue of an

upward deviation at length, and concluded that none was justified. We cannot find

that this conclusion was either an abuse of discretion or contrary to the

preponderance of the evidence.4

                                              II

      The appellee is agreeable to the modifications of the judgment requiring him

to pay the private school expenses of his child during enrollment and maintenance

of passing grades.

                                              III

      The issue of the disposition of any remaining trust assets was not addressed

in Nash. The appellant argues that the remainder should be available to the child

for the establishment of an entrepreneurial enterprise upon attainment of majority,

or for those purposes after college. The appellee argues that the trust assets are his

property, and unless expended on behalf of the child, these assets should be

returned to him. We agree. The funds are his, and the Court has no authority to

advance a perceived inheritance to a child or confiscate a parent’s assets on behalf

of a child.

                                              IV

      The appellant’s attorney fees were ordered to be paid from the entrusted

funds, rather than by the defendant personally. It is the appellant who complains

of this action. Considering the peculiar circumstances, and the amount of the

entrusted funds, of which the appellee does not complain, we see no abuse of

discretion.

      3
          Which included the clerk’s commission, plus an amount for non-visitation.
      4
          Appellant is gainfully employed by United Parcel. She has one other child.

                                               5
                                                V

       The modification was ordered retroactively to become effective on May 18,

1995, the date of the filing of the petition. In light of the fact that the defendant’s

income for 1995 was $1,750,000.00, we are unable to find that the judgment

preponderates against this order.

                                                VI

       The appellee argues that the trust fund,5 to pay for the child’s college

education, is violative of his constitutional rights. This issue was addressed in

Nash, which the appellee assails with much vigor. We doubt that the Legislature

was aware of the fact that the support guidelines it adopted would be interpreted

to authorize a court to create a trust fund in the manner explicated in Nash,6 but the

point is wasted here. The holding in Nash is binding until modified by judicial or

legislative action.

       The Supreme Court held in Nash that the creation of a trust to meet the

college needs of children of wealthy noncustodial parents is appropriate under state

law for the protection of illegitimate children, as well as the lawful policy under

the guidelines to place a child born out of wedlock in a status similar to that of

children born in intact families. It was held that the power to create an educational

trust to include college expenses does not intrude significantly upon parental rights

and is justified by the state’s interest in preventing substantial danger of harm to

the welfare of the child:

       We believe that an approach that refuses to recognize the laudable
       goal of post-secondary education and instead provides only for the
       child’s immediate needs, would not be a responsible approach. If the
       most concerned, caring parents do not operate in such a haphazard

       5
           Sometimes referred to by the parties as a guardianship fund.
       6
        A “college education” is not defined. The child may opt for vocation training, or for
an 8-year professional degree. The possibilities are too numerous to speculate about.

                                                 6
       way, surely the courts cannot be expected to award support in such a
       fashion. Thus, we conclude that establishing a program of savings for
       a college education is a proper element of child support when, as in
       this case, the resources of the non-custodial parent can provide the
       necessary funds without hardship to the parent.

       The appellee argues that the support guidelines endanger his fundamental

right to privacy in providing for the post-majority support of his child as he sees

fit, and that Nash goes too far. As we have observed, this question is properly

addressable elsewhere.

                                            VII



       The appellee argues that the Court erred in ordering that the guardianship

fund should be administered by the Probate Court, and that a guardian ad litem

should be appointed to oversee funds disbursements with investments to be

managed by a fund manager. Appellee argues that the ordered arrangement is too

cumbersome and will prove to be too costly, superimposed upon the fact that a

private manager will be able to obtain a greater return.

       While resort to the Probate Court was somewhat unusual, we find nothing

inherently disadvantageous about the order. The corpus will be protected and

invested in accordance with statutory requirements, and will not be invaded

without notice to the appellee, followed by a specific finding of need and

justification. The income will be expended solely for the child’s college expenses,7

and will be subject to close and reasonable scrutiny of the Probate Court, which

should keep the appellee reasonably and timely informed of the amount of and

reason for all disbursements.




       7
        The monthly support allocation ordinarily includes the expenses of a child through
his high school years.

                                              7
      Finally, the appellee argues that the award of attorney fees was excessive in

light of the fact that the appellant was unsuccessful on some issues. We find no

abuse of discretion in the award of these fees. As modified, the judgment is

affirmed with costs assessed to the parties evenly. The case is remanded for all

appropriate purposes.



                                       _______________________________
                                       William H. Inman, Senior Judge


CONCUR:



_______________________________
W. Frank Crawford, Judge



_______________________________
David R. Farmer, Judge




                                        8
