                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                August 29, 2012 Session


          CHARLES ROBERT BRAUN, JR. v. NITA LYNN BRAUN

              Appeal from the General Sessions Court for Roane County
                    No. 9774A      Dennis W. Humphrey, Judge




              No. E2012-00823-COA-R3-CV-FILED-OCTOBER 2, 2012




C HARLES D. S USANO, JR., J., concurring.

       I do not disagree with the majority opinion’s decision to remand this case to the trial
court so it can consider whether an upward deviation in the child support for Titus Braun is
appropriate. I write separately to point out that the majority opinion should not be read as
carte blanche to transfer automatically – and without legal justification for doing so – the
difference between (a) the support previously ordered for two children and (b) that which
would have been ordered for one child, as the amount of an upward deviation in the support
for Titus. A court cannot do indirectly what it cannot legally do directly. See, e.g.,
Kimberly-Clark Corp. v. Cont’l Cas. Co., No. 3:05-CV-0475, 2006 WL 3436064 at *2 (N.D.
Tex., Nov. 29, 2006).

       Deviations in the amount of child support must be viewed in the context of the child
for whom an obligor parent is responsible – in this case, Titus. “In deviating from the
Guidelines, primary consideration must be given to the best interest of the child for whom
support under these Guidelines is being determined.” Tenn. Comp. R. & Regs. Ch. 1240-2-
4-.07(1)(b) (2006). See also id. at (2)(a):

       In making its determination regarding a request for deviation pursuant to this
       chapter, the tribunal shall consider all available income of the parents as
       defined by this chapter and shall make a written finding that an amount of
       child support other than the amount calculated under the Guidelines is
       reasonably necessary to provide for the needs of the minor child or children for
       whom support is being determined in the case immediately under
       consideration.

(Emphasis added.)
       If an upward deviation is to be ordered in this case, it must be done in strict
compliance with the text of the Child Support Guidelines which, as is well-established, have
the force of law. Jahn v. Jahn, 932 S.W.2d 939, 943 (Tenn. Ct. App. 1996) (citing Nash
v. Mulle, 846 S.W.2d 803, 804 (Tenn. 1993)).

       I concur in the majority opinion.




                                                  _______________________________
                                                  CHARLES D. SUSANO, JR., JUDGE




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