                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  December 5, 2000 Session

     STATE OF TENNESSEE EX REL. ELISA CRIPPEN v. LAWRENCE
                          JOHNSON

                       Appeal from the Juvenile Court for Knox County
                           No. B-1705    Carey E. Garrett, Judge

                                   FILED FEBRUARY 2, 2001

                                  No. E1999-01855-COA-R3-CV


This case concerns the modification of a child support award. In addition to the child for whom
support was set in the instant case, the obligor father had three other children. At one point in the
past, he was required by court order to support these three other children; but, by the time of the
hearing below, his obligation had been terminated except for an arrearage on which he was
continuing to pay. In determining the proper award in the instant case, the trial court considered the
father’s other three children and deviated from the Child Support Guidelines due to the father’s
“hardship.” The State, as assignee of the mother’s right to child support, appeals. We modify the
trial court’s award.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                          Affirmed as Modified; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY , JJ., joined.

Paul G. Summers, Attorney General & Reporter; Stuart F. Wilson-Patton, Assistant Attorney
General, and Kim Beals, Assistant Attorney General, for the appellant, State of Tennessee.

No appearance for the appellee.

                                             OPINION

                                                  I.

       The relator, Elisa Crippen (“Mother”) is the mother of Christopher Devon Johnson (DOB:
March 10, 1992).1 Under the authority of T.C.A. § 71-3-124 (Supp. 2000), Mother, a recipient of
public assistance, had assigned her right to child support to the State of Tennessee.

        On August 16, 1993, the Knox County Juvenile Court entered an order of legitimation
establishing the respondent Lawrence Johnson (“Father”) as Christopher’s father. The court also
ordered Father to pay child support in the amount of $155 per month. Father’s payments were
irregular at best, and an arrearage accrued. Both parties have filed several petitions for modification
and for contempt over the years.

        Father has three children in addition to Christopher. As late as May 3, 1999, Father was
paying, pursuant to a court order in another case, child support in the amount of $370 per month for
these three other children.

        A hearing was held before the Referee on August 13, 1999, on a petition seeking to modify
Father’s support obligation in the instant case. By the date of the hearing, Father had reconciled with
the mother of his other three children, and he was residing with them. His current support obligation
as to these three children had been terminated except for an arrearage upon which he was still
paying. With respect to Christopher, the Referee ordered, as far as pertinent here, that

                  [Father’s] gross income is $1733.00 per month. The Guideline
                  amount for one child would be $295.00 per month. The Court
                  considers the three children in [Father’s] home, and hearby [sic]
                  modifies the child support to $161.13 per month. Said amount is a
                  deviation from the Guidelines due to [Father’s] hardship.

                  The arrearages are $6,326.84 as of July 31, 1999. Said arrearage shall
                  be retired at the rate of $45.00 per month, with the next payment due
                  August 31, 1999.

        The State appealed the Referee’s decision, and the case was heard de novo before the Judge
of the Knox County Juvenile Court on September 13, 1999. That court confirmed the Referee’s
order. The State now appeals to this Court.

                                                        II.

        Our review of this non-jury case is de novo; however, the record comes to us accompanied
by a presumption of correctness that we must honor unless the evidence preponderates against the
trial court’s findings. Tenn. R. App. P. 13(d). No presumption of correctness attaches to the lower
court’s conclusions of law. Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn.Ct.App.1996).



       1
           Mother lives with Christopher and a child by another man.

                                                        -2-
                                                 III.

                                                 A.

        A petition to modify a previous child support award is governed by the Child Support
Guidelines (“Guidelines”). T.C.A. § 36-5-101(a)(1) (Supp. 2000). The Guidelines, promulgated
by the Tennessee Department of Human Services pursuant to T.C.A. § 36-5-101(e)(2), “are designed
to make awards more equitable by providing a standardized method of computation.” Jones v.
Jones, 930 S.W.2d 541, 543 (Tenn.1996). They have the force of law. Jahn, 932 S.W.2d at 943.

        Generally, a support award is determined under the Guidelines by multiplying the net
income of the parent with whom the children do not primarily live (“obligor parent”) by a percentage
corresponding to the number of children for whom support is being calculated. See Tenn. Comp.
R. & Regs. 1240-2-4-.03(5). See also Jones, 930 S.W.2d at 543. The figure so derived is rebuttably
presumed to be correct. T.C.A. § 36-5-101(e)(1) (Supp. 2000). Courts are, however, given limited
discretion to deviate from the Guidelines amount under certain circumstances. See T.C.A. § 36-5-
101(e)(1); see also Tenn. Comp. R. & Regs. 1240-2-4-.04(2) and (4).

                                                 B.

       The State first argues that the trial court erred when it considered Father’s three other
children in setting the amount of Father’s child support obligation.

        The Guidelines are clear concerning the circumstances under which a court may consider an
obligor parent’s other children in determining a child support award. An obligor parent’s “net
income” is derived by deducting from his or her gross income various taxes and “the amount of child
support ordered pursuant to a previous order of child support for other children.” Tenn. Comp. R.
& Regs. 1240-2-4-.03(4). Furthermore, the same section states that “[c]hildren 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.” Id.

         According to the statement of the evidence before us, Father testified at the September 13,
1999, hearing that, though he had previously been ordered to pay child support for his other three
children, that obligation had been terminated except for an arrearage on which he continued to pay.
The trial court obtained the file of that case from the Juvenile Court Clerk’s office and verified
Father’s testimony on this point. Thus, the evidence reflects that Father’s current support of his
other three children is not pursuant to a court order. Such an obligation is not to be considered by
the trial court, either in determining net income or in calculating support under the Guidelines. See
Tenn. Comp. R. & Regs. 1240-2-4-.03(4); see also Tennessee, ex rel. Avery v. Lewis, C/A Nos.
02A01-9805-CV-00123, 02A01-9805-CV-00125, 1998 WL 886733, *4 (Tenn. Ct. App. W.S., filed




                                                 -3-
December 18, 1998) (holding that the obligor parent’s voluntarily assumed support obligation could
not be considered “because such payments are not being made pursuant to a court order.”).2

        With respect to the fact that Father is still paying on an arrearage for his other three children,
we are of the opinion that this obligation does not fall within the type of support obligation referred
to in Tenn. Comp. R. & Regs. 1240-2-4-.03(4). A court-ordered current support obligation is an
amount that is due presently for an existing and ongoing obligation. In contrast, an arrearage is an
amount that is due on a former obligation not yet paid. The two obligations are separate and distinct
from each other, and they should be treated as such. We therefore hold that the trial court erred to
the extent that it considered Father’s other three children in reducing Father’s net income or in
calculating child support under the Guidelines.

                                                             C.

       The State next argues that the trial court erred in deviating from the Guidelines “due to
[Father’s] hardship.” We agree.

        As stated previously, T.C.A. § 36-5-101(e)(1) provides that the amount of support derived
by application of the Guidelines is rebuttably presumed to be proper. The same section also provides
that courts may, in appropriate cases, deviate from the Guidelines “in order to provide for the best
interest of the child(ren) or the equity between the parties.” T.C.A. § 36-5-101(e)(1). A court’s
authority to deviate from the Guidelines, however, is limited, and courts must exercise that discretion
in accordance with Tenn. Comp. R. & Regs. 1240-2-4-.04(2) and (4). Jones, 930 S.W.2d at 545.3
 These sections expressly provide for downward deviation where, inter alia, the obligor is saddled
with an “extreme economic hardship.” Id.

       To determine what constitutes “extreme economic hardship,” we look to the language of
Tenn. Comp. R. & Regs. 1240-2-4-.04(4), which provides that



         2
             In Avery, we noted that

                    [t]here are valid policy reasons for requiring that child support be paid p ursuant to
                    a court order before it can be deducted to calculate an obligor’s net incom e. A
                    prior court order [e]nsures the awarding court that the obligor is legally liable for
                    the amount of child support claimed as a deduction.

Id.

         3
           In addition, Tenn. Comp. R. & Regs. 1240-2-4-.03(4) is pertinent to the instant case in that it provides that
“[[c]hildren of the obligor who are not inc luded in a decree of child support] should not be considered by the court as
a reason for deviation unless they meet the requirements of Rule 1240-2-4-.04(4).” As we have already found, Father
does not have a current support obligation for his other three children. Thus, these children can only be considered as
a justification for deviation if they meet the requirements of Ru le 1240-2-4-.04(4).

                                                             -4-
               [i]n instances of extreme economic hardship, such as in cases
               involving extraordinary medical needs not covered by insurance or
               other extraordinary special needs for the child(ren) of the obligor’s
               current family, [child(ren) living in the home with the obligor for
               whom the obligor is legally responsible] deviation from the
               guidelines may be considered in order to achieve equity between the
               parties when the court so finds.

Tenn. Comp. R. & Regs. 1240-2-4-.04(4) (brackets in original).

       With respect to this issue, the trial court stated the following:

               The Court considers the three children in [Father’s] home, and hearby
               [sic] modifies the child support to $161.13 per month. Said amount
               is a deviation from the Guidelines due to [Father’s] hardship.

           The trial court seems to have read the bracketed language of this rule – “[child(ren) living
in the home with the obligor for whom the obligor is legally responsible]” – as one of the cases
constituting extreme economic hardship. The bracketed language, however, serves not as an
example of such hardship, but rather as clarifying language for the phrase immediately preceding
it, i.e., “extraordinary medical needs not covered by insurance or other extraordinary special needs
for the child(ren) of the obligor’s current family.” The bracketed language clarifies what the author
of the rule meant by “obligor’s current family.” Thus, we are of the opinion that the simple fact that
Father’s three other children reside with him does not, by itself, justify a finding of “extreme
economic hardship.” The rule requires extraordinary circumstances, such as extraordinary medical
needs not covered by insurance or extraordinary special needs of children living with a parent
obligor, needs that are such as to cause “extreme economic hardship.” The record before us does
not indicate any such circumstances. We therefore find and hold that the trial court erred in
deviating from the Guidelines based on a finding of hardship.

                                                  D.

        Finally, the State argues that the trial court erred in deviating from the Guidelines without
making a specific written finding. Because we have already held that the trial court erred simply by
deviating, we do not have to address this issue in detail. We note, however, that if a court determines
deviation is proper, it must make a written finding (1) stating the amount of support that would have
been ordered under the Guidelines; and (2) stating, with justification, that application of the
Guidelines would be unjust or inappropriate in that particular case. See T.C.A. § 36-5-101(e)(1);
see also Jones, 930 S.W.2d at 546; Smith v. Smith, 984 S.W.2d 606, 608 (Tenn. Ct. App. 1999);
Jahn, 932 S.W.2d at 943.




                                                 -5-
                                                IV.

        The judgment of the trial court modifying the child support award is modified so as to set
child support at the Guidelines-mandated amount of $295.00 per month, effective back to the date
of the trial court’s judgment. As modified, the trial court’s judgment is affirmed. This case is
remanded for entry of an order consistent with this opinion, such further proceedings, if any, as may
be necessary, and collection of costs assessed below, all pursuant to applicable law. Costs on appeal
are taxed to the appellee, Lawrence Johnson.




                                                      ___________________________________
                                                      CHARLES D. SUSANO, JR., JUDGE




                                                -6-
