      IN THE COURT OF APPEALS OF TENNESSEE
           MIDDLE SECTION AT NASHVILLE


JERRY DON LUMPKINS,            )
                               )
                                                     FILED
                                                       Oct. 4, 1995
      Plaintiff/Appellant,     )
                               )   Sumner Chancery   Cecil Crowson,
                               )   No. 91D-241             Jr.
VS.                            )                      Appellate Court Clerk
                               )   Appeal No.
                               )   01-A-01-9401-CH-00034
BELINDA BAINES LUMPKINS,       )
                               )
      Defendant/Appellee.      )



   APPEAL FROM THE CHANCERY COURT FOR SUMNER COUNTY
                 AT GALLATIN, TENNESSEE

      THE HONORABLE JANE W. WHEATCRAFT, SPECIAL JUDGE



For the Plaintiff/Appellant:            For the Defendant/Appellee:

John R. Phillips, Jr.                   Bruce N. Oldham
PHILLIPS & INGRUM                       BEATY & OLDHAM
Gallatin, Tennessee                     Gallatin, Tennessee




                  MODIFIED AND REMANDED




                                   WILLIAM C. KOCH, JR., JUDGE
                                OPINION

      This appeal involves a dispute over child support for two pre-teen boys.
Two years after their divorce in the Chancery Court for Sumner County, the
parents returned to court seeking resolution of their disputes concerning the
custody and visitation arrangements and the amount of child support. A special
judge awarded the mother sole custody of the children, modified the father’s
visitation schedule, and directed the father to pay child support in accordance with
the child support guidelines. The father takes issue on this appeal with the amount
of his child support. We have determined that the amount of the father’s child
support should be modified to take all his income into consideration.


                                         I.


      Jerry Don Lumpkins and Belinda Gail Baines Lumpkins were married for
approximately eleven years. They have two sons, Michael who is twelve and
Jonathan who is eight. Jonathan has mild learning disabilities as a result of
contracting meningitis when he was eleven months old. Both Mr. Lumpkins and
Ms. Lumpkins are employed by the Sumner County School System. Mr.
Lumpkins is a teacher and basketball coach, and Ms. Lumpkins is a special
education teacher.


      The marriage foundered in June 1991, and Mr. Lumpkins filed for divorce
in the Chancery Court for Sumner County. On November 20, 1991, the parties
signed a marital dissolution agreement providing for joint custody and for
alternating physical custody on a weekly basis during the school year and on a bi-
weekly basis during the summer. Neither party was required to pay child support
because they were sharing physical custody; however, the trial court directed Ms.
Lumpkins to maintain health insurance coverage for the children and determined
that the parties would share responsibility for the children’s health expenses not
covered by insurance. The trial court entered a final decree on December 4, 1991,


                                        -2-
granting Mr. Lumpkins the divorce and approving the marital dissolution
agreement.


      Ms. Lumpkins sought to modify the divorce decree less than one year later.
The parties compromised their disputes, and on August 12, 1992, the trial court
entered an agreed order modifying the custody, visitation, and support
arrangements. Ms. Lumpkins received primary custody of the boys, and Mr.
Lumpkins received visitation each Wednesday night and a portion of each
weekend. The holiday and birthday visitations remained unchanged, while the
summer visitation schedule was left to the parties. Mr. Lumpkins also agreed to
begin paying $200 in monthly child support because the children were no longer
spending equal amounts of time with each parent.


      Mr. Lumpkins remarried and filed a petition in May 1993 seeking sole
custody because the children had not “thrived and progressed as anticipated by the
parties” while in Ms. Lumpkins’ care. Ms. Lumpkins responded by seeking sole
custody because Mr. Lumpkins was “attempting to undermine the children’s love
and trust toward their mother.” In June 1993, the trial court set Mr. Lumpkins’
summer visitation from June 19 to July 18, 1993 and suspended his obligation to
pay child support for July because the children would be living with him. The
trial court also set rules for daily telephone contact with the children and ordered
the parents to attend a seminar dealing with children coping with divorce.


      A special judge heard the parties’ requests for custody in July 1993. On
August 18, 1993, the special judge granted Ms. Lumpkins sole custody and
changed Mr. Lumpkins’ visitation to each Wednesday night and every other
weekend. The special judge also reaffirmed the holiday, birthday, and summer
visitation arrangements already in place. Finding no reason to depart from the
child support guidelines, the special judge ordered Mr. Lumpkins to pay $568 per
month in child support. Mr. Lumpkins takes issue on this appeal solely with the
amount of the child support award.


                                        II.

                                        -3-
      Child support issues remain entrusted to the discretion of the trial courts.
This discretion is now guided by the child support guidelines promulgated by the
Department of Human Services pursuant to Tenn. Code Ann. § 36-5-101(e)(2)
(Supp. 1994). The guidelines apply to all actions to establish or modify child
support heard after October 13, 1989. Tenn. Code Ann. § 36-5-101(e)(2); Tenn.
Comp. R. & Regs. r. 1240-2-4-.02(3) (1989). We review child support decisions
in accordance with Tenn. R. App. P. 13(d), giving the trial court’s factual findings,
but not its interpretation of the guidelines, a presumption of correctness.


      The child support guidelines are intended to decrease the number of
impoverished children living in single-parent families and to make child support
awards more equitable by ensuring more consistent treatment of persons in similar
circumstances. Tenn. Comp. R. & Regs. r. 1240-2-4-.02(2)(a), -.02(2)(b) (1989).
They establish a rebuttable presumption with regard to the minimum acceptable
level of support. Trial courts may deviate from the guidelines when applying them
strictly would be unjust or inappropriate, but they must state their reasons for
doing so in writing. Tenn. Code Ann. § 36-5-101(e)(1); Tenn. Comp. R. & Regs.
r. 1240-2-4-.02(8) (1989). The guidelines themselves describe some of the
circumstances warranting a deviation. Tenn. Comp. R. & Regs. r. 1240-2-4-.04
(1989).


      The guidelines employ a straightforward mathematical formula for
calculating child support. The presumptive amount of child support the obligor
parent must pay is a “flat percentage of the net income.” Tenn. Comp. R. & Regs.
r. 1240-2-4-.03(2) (1989). For the purpose of the guidelines, “net income”
includes all the obligor parent’s income “from any source,” Tenn. Comp. R. &
Regs. r. 1240-2-4-.03(3)(a) (1989), reduced by deductions for withholding tax,
FICA, and other court- ordered child support actually being paid. Tenn. Comp.
R. & Regs. r. 1240-2-4-.03(4) (1989). The percentage multiplier corresponds to
the number of children for whom support is being set. Tenn. Comp. R. & Regs. r.
1240-2-4-.03(5) (1989).


                                        III.

                                        -4-
       This record reveals five shortcomings with regard to the calculation of Mr.
Lumpkins’ child support obligation between 1992 and 1993. These shortcomings
include: (1) the absence of a clear evidentiary basis for the child support award
in the August 1992 order; (2) the absence of an explanation for the August 1992
order’s departure from the guidelines; (3) the calculation of Mr. Lumpkins’ gross
and net income for the purpose of the August 1993 order; (4) the apparent
oversight concerning the responsibility for providing the children’s health
insurance; and (5) the recognition that Mr. Lumpkins’ visitation exceeded the
guidelines’ average visitation period.


                                              A.
                         THE AUGUST 1992 SUPPORT ORDER


       Neither parent was required to pay child support prior to August 1992
because the children were spending equal amounts of time with each of them.1
The August 1992 order changed this arrangement by awarding Ms. Lumpkins
primary physical custody and by defining Mr. Lumpkins’ visitation rights. As a
result of this order, the children have been spending approximately 65 % of their
time with Ms. Lumpkins and 35% with Mr. Lumpkins. The order also required
Mr. Lumpkins to pay $200 per month in child support.


       The present record does not enable us to determine with certainty how the
trial court arrived at the $200 per month child support award. There are, however,
reliable indications that the trial court simply approved the parents’ agreement
without an independent review contemplated by Tenn. Comp. R. & Regs. r. 1240-
2-4-.02(4) (1989). The guidelines in existence at the time would have required
persons with Mr. Lumpkins’ gross income to pay substantially more child support
than $200 per month.2

       1
        Joint custody arrangements in which the children spend approximately equal amounts
of time with each parent warrant deviating from the child support guidelines. Gray v. Gray, 885
S.W.2d 353, 356 (Tenn. Ct. App. 1994).
       2
        Mr. Lumpkins’ gross income in 1992 was at least $2,000 per month. According to the
May 1991 revised tables prepared by the Department of Human Services to aid in applying the
guidelines, persons with a gross income of $2,000 per month should have been paying $505.92


                                             -5-
       The August 1992 order does not contain a finding required by Tenn. Comp.
R. & Regs. r 1240-2-4-.02(8) (1989) that following the guidelines would have
been unjust or inappropriate. We presume that the trial court required Mr.
Lumpkins to pay approximately one-third of the amount required by the guidelines
because the children’s overnight visitation was divided between the parents more
equally than usual. Whether the amount of Mr. Lumpkins’ additional visitation
warranted such a significant decrease in his child support obligation is not at issue
on this appeal because that order has been supplanted by a new one. It is
sufficient for our purposes to note that the $200 per month child support award
varied significantly from the support contemplated by the guidelines.


                                             B.
                           THE AUGUST 1993 SUPPORT ORDER


       The special judge’s August 1993 support order did not include all of Mr.
Lumpkins’ income.3 According to the Department of Human Services’ May 1991
tables, a monthly child support payment of $568 corresponds to a monthly gross
income of approximately $2,300. At the time of the hearing, however, Mr.
Lumpkins’ gross income from all sources was $32,967.69 per year or $2,748 per
month.4 Considering his gross income from all sources, the guidelines would have
required Mr. Lumpkins to pay $663.36 per month in child support.


       Even though the special judge decided not to deviate from the guidelines,
the record contains proof of two circumstances that could warrant deviations. The
guidelines provide that a child support award should be increased if the obligor
parent is not paying for the children’s health insurance. Tenn. Comp. R. & Regs.

to support two children.
       3
        The guidelines require the courts to consider all income from any source. Tenn. Comp.
R. & Regs. r. 1240-2-4-.03(3)(a) (1989); Stephenson v. Stephenson, App. No. 01-A-01-9212-CH-
00488, slip op. at 8, 18 T.A.M. 35-18, 7 T.F.L.L. 12-7 (Tenn. Ct. App. Aug. 6, 1993) (No Tenn.
R. App. P. 11 application filed).
       4
         Mr. Lumpkins’ Sumner County pay stub states that his annual income from teaching was
$28,176.69. Mr. Lumpkins also testified that he earned $4,800 from waiting on tables. For the
purposes of this opinion, we are assuming that Mr. Lumpkins’ part-time salary was his gross,
rather than net, salary.


                                             -6-
r. 1240-2-4-.04(1)(a) (1989). They also permit adjusting the child support if the
amount of the obligor parent’s overnight visitation varies from the average
visitation period contemplated by the guidelines. Tenn. Comp. R. & Regs. r.
1240-2-4-.04(1)(b) (1989).


       The December 1991 divorce decree required Ms. Lumpkins to maintain
health insurance coverage on her sons, and she has been paying for this coverage
ever since. In accordance with Tenn. Comp. R. & Regs. r. 1240-2-4-.04(1)(a), the
special judge should have increased the amount of Mr. Lumpkins' child support
by an amount equal to the amount necessary for Ms. Lumpkins to obtain this
insurance - the difference between the cost of individual and family coverage.


       The guidelines also contemplate that the non-custodial parent will have the
children on overnight visitation for eighty days per year.5 The current visitation
agreement calls for the children to spend approximately 148 nights each year with
Mr. Lumpkins.6 Thus, Mr. Lumpkins has been exercising almost twice as much
visitation than the average visitation period contemplated by the guidelines.


       Recognizing that Mr. Lumpkins’ summer visitation warranted a reduction
in child support, the special judge excused him from paying child support during
the summer when his sons were visiting with him. Even if Mr. Lumpkins’
summer visitation is not considered, Mr. Lumpkins is still exercising thirty-eight
more days of visitation during the year than the average visitation period. This
additional visitation entitled Mr. Lumpkins to appropriate credit on his child
support payments.


                                             C.



       5
        Tenn. Comp. R. & Regs. r. 1240-2-4-.04(1)(b) (1989) states that an “average visitation
period” under a year includes: two days every other weekend (52 days), summer visitation (14
days), and holiday periods during the year (14 days).
       6
        Mr. Lumpkins’ court-ordered visitation includes: two days every other weekend (52
days), holidays during the year (14 days), summer visitation (30 days), and every Wednesday
night (52 days).


                                             -7-
       Child support awards remain in the trial court’s control and may be
modified when warranted by the circumstances. At the time of the hearing in this
case, Tenn. Code Ann. § 36-5-101(a)(1) permitted the courts to modify child
support “only upon a showing of a substantial and material change of
circumstances." 7 Neither the statute nor the guidelines define “substantial and
material change of circumstances,” but the term generally includes facts and
conditions that have emerged since the entry of the original decree and that were
neither determined nor anticipated in the original decree. Dalton v. Dalton, 858
S.W.2d 324, 326 (Tenn. Ct. App. 1993); Hicks v. Hicks, 26 Tenn. App. 641, 652,
176 S.W.2d 371, 375 (1943).


       The record demonstrates a substantial change in the Lumpkins’
circumstances since their divorce in 1991. The most significant change is the
change in their custody and visitation arrangement. In addition, there appear to
have been changes in the parties’ income. There is also a large, unexplained
variation between the amount of Mr. Lumpkins’ child support in the August 1992
order and the amount of child support contemplated by the guidelines.
Accordingly, the special judge had sufficient grounds to reconsider the amount of
Mr. Lumpkins’ child support.


       Mr. Lumpkins’ present child support obligation is less than one-third of the
amount contemplated by the guidelines as they existed at the time of the hearing.

       7
        Tenn. Code Ann. § 36-5-101(a)(1) was amended in 1994 to authorize the courts to
increase or decrease child support awards

       [W]hen there is found to be a significant variance, as defined by the child support
       guidelines . . . between the guidelines and the amount of support currently
       ordered unless the variance has resulted from a previously court-ordered
       deviation from the guidelines and the circumstances which caused the deviation
       have not changed.

Act of April 21, 1994, ch. 987, § 3, 1994 Tenn. Pub. Acts 1007, 1010. A significant variance
is one that exceeds fifteen percent. Tenn. Comp. R. & Regs. r. 1240-2-4-.02(3) (1994).

       There is a significant variance between the amount of child support Mr. Lumpkins was
required to pay in the August 1992 order and the amount of child support the guidelines would
have required Mr. Lumpkins to pay. Since the 1992 order does not adequately explain the
departure from the guidelines, Mr. Lumpkins’ child support would be equally subject to revision
under the 1994 revisions to the statute and the guidelines.


                                              -8-
A strict application of the guidelines would require him to pay $663.36 per month,
and he is paying only $200 per month. The circumstances of this case, however,
warrant deviating from the guidelines because of Mr. Lumpkins’ expanded
visitation and because of Ms. Lumpkins’ payment of the children’s health
insurance.
        Mr. Lumpkins is already receiving some recognition for his expanded
visitation because he is excused from paying child support during the month that
his sons are visiting him during the summer. His additional visitation should be
recognized but must be offset because Ms. Lumpkins is paying for the childrens’
health insurance. Thus, we have determined that the amount of Mr. Lumpkins’
monthly child support should be 90% of the amount required by the guidelines.
Accordingly, we modify the amount of child support awarded in the August 1993
order from $568 to $597 per month.8 This modification will take effect on the first
day of the month next following the date of the issuance of the mandate in this
case.


                                               IV.


        As a final matter, Ms. Lumpkins requested an additional award for her legal
expenses on this appeal. Tenn. Code Ann. § 36-5-103(c) (Supp. 1993) permits a
custodial spouse to recover reasonable legal expenses incurred in any proceeding
to enforce a child support order. These expenses should be paid without regard
to the custodial spouse’s ability to pay because they were incurred on behalf of the
children, not the parents. Gaddy v. Gaddy, 861 S.W.2d 236, 240-41 (Tenn. Ct.
App. 1992); Ragan v. Ragan, 858 S.W.2d 332, 334 (Tenn. Ct. App. 1993);
Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. Ct. App. 1992).


        Ms. Lumpkins incurred legal expenses on this appeal to preserve and
enforce the orders requiring Mr. Lumpkins to pay child support. She is, therefore,
entitled to an additional award for her attorney’s fees on this appeal. On remand,

        8
            Ninety percent of $663.36 is $597.02.




                                                -9-
the court should permit the parties to present appropriate proof and should then
award Ms. Lumpkins her reasonable legal expenses on this appeal.




                                       V.


      We modify and affirm the order awarding Ms. Lumpkins child support and
remand the case to the trial court for the proceedings required herein and for any
other proceedings that may be required. We tax the costs of this appeal to Jerry
Don Lumpkins and his surety for which execution, if necessary, may issue.


                                       __________________________________
                                       WILLIAM C. KOCH, JR., JUDGE


CONCUR:


__________________________________
SAMUEL L. LEWIS, JUDGE


__________________________________
BEN H. CANTRELL, JUDGE
