                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                                                         FILED
STATE OF TENNESSEE ex rel.,            )                            December 18, 1998
LEANNA AVERY,                          )
                                       )                             Cecil Crowson, Jr.
            Petitioner/Appellant ,     ) Obion Circuit No. 7780      Appellate C ourt Clerk
                                       )
VS.                                    ) Appeal No. 02A01-9805-CV-00123
                                       )
ROGER LEWIS                            )
                                       )
            Respondent/Appellee.       )

STATE OF TENNESSEE ex rel.,            )
NATALIE THOMAS,                        )
                                       )
            Petitioner/Appellant,      ) Obion Circuit No. 5518
                                       )
VS.                                    ) Appeal No. 02A01-9805-CV-00125
                                       )
ROGER LEWIS,                           )
                                       )
            Respondent/Appellee.       )

            APPEAL FROM THE CIRCUIT COURT OF OBION COUNTY
                      AT UNION CITY, TENNESSEE
              THE HONORABLE WILLIAM B. ACREE, JR., JUDGE


JOHN KNOX WALKUP
Attorney General and Reporter
SUE A. SHELDON
Assistant Attorney General
Nashville, Tennessee
Attorney for Appellants

ROGER LEWIS, pro se
Union City, Tennessee




REVERSED




                                                           ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.

      This case stems from the consolidation of two separate appeals from two separate
actions against Roger Lewis (Lewis). Each case involved a modification in child support

obligations, from which the State of Tennessee (the State) appeals. The first case pertains

to the support of Kendall Thomas (Kendall), who is the minor child of Lewis and Natalie

Thomas. The second case pertains to the support of Victoria Avery (Victoria), who is the

minor child of Lewis and Leanna Avery. For the reasons stated hereafter, we reverse the

trial court’s modification of child support to the amount of $40.00 per week each for Kendall

and Victoria and establish such support at $79.82 per week for Kendall and at $77.73 per

week for Victoria.



                                 Facts and Procedural History



       Both cases from which Lewis has appealed were originally commenced pursuant

to Uniform Reciprocal Enforcement of Support Act transmittal orders. 1 In the Thomas

case, the trial court entered a consent order on April 29, 1986, establishing that Lewis

owes a duty of support to Kendall and requiring Lewis to pay $10.00 per week as child

support for Kendall. In the Avery case, the trial court entered an order on February 20,

1991, establishing Lewis’s paternity of Victoria and requiring Lewis to pay $25.00 per week

as child support for Victoria. On March 14, 1997, the State filed petitions in both cases,

seeking to modify and increase the amount of child support that Lewis was paying for each

child. In both cases, the State asserted that a significant variance existed between

Tennessee’s child support guidelines and the amount of child support that was previously

ordered.



        The trial court heard arguments on both petitions to modify on July 25, 1997, during

which evidence was presented establishing the following:

       1. The Respondent’s income is $2354.00 gross per month, or $543.27 per
       week.
       2. The Respondent pays support on one prior court ordered obligation in the
       amount of $54.00 per week through Madison County, TN, and should be
       given credit for this obligation.


1. The Uniform Reciprocal Enforcement of Support Act, which was formerly codified as Tennessee Code
Annotated sections 36-5-201 through 36-5-229, has since been repealed and substantially replaced by the
Uniform Interstate Family Support Act, which is codified as sections 36-5-2001 through 36-5-2902 and
became effective on June 23, 1997.

                                                  2
        3. The Respondent pays support through court order on [two] other separate
        cases: Mattie Pirtle v. Roger Lewis, Juvenile Obion Docket No. 1419, [and]
        Martha McCampbell v. Roger Lewis, Juvenile Obion Docket No. 2209 . . . .

At the July 1997 hearing, the trial court orally stated “[t]hat it would be unjust or

inappropriate to strictly apply the guidelines in this matter to require the Respondent to pay

more than one-half of his weekly income on his court ordered support obligations as he

has other non-court ordered obligations that place him in extreme economic hardship.”

The trial court then directed the parties to meet on July 28, 1997 to attempt to reach a

consent order based upon this finding and the above facts. After Lewis failed to appear

for the meeting, the matter again was brought before the trial court on September 26, 1997

and on February 27, 1998 for further argument. At the final hearing on February 27, 1998,

the following transpired:

        [Lewis] produced a paycheck stub and asked the Court to consider all of his
        children, including the one in Madison county and one he was paying support
        on without a court order directing him to do so, in setting the new amount of
        his child support obligations. He stated only that he was unable to pay more
        than one-half of his income, without getting specific as to the reasons why
        he would be unable to pay more than this amount.

          The State responded by stating that the non-court ordered support
        obligation was not entitled to recognition by the court when setting support
        on the two cases currently before the court. The State also stated that
        support should be set according to the Tennessee Child Support Guidelines,
        and that Mr. Lewis had not proved extreme economic hardship as stated in
        the Guidelines.

On March 12, 1998, the trial court entered an order in each case, both of which provide the

following:

         The Court finds that all of Respondent’s child support obligations, including
        the case in Madison County, TN and the non-court ordered support
        obligation, are entitled to equal treatment and the obligation for each should
        be the same. Therefore, the Court finds that one-half of Respondent’s
        income shall be taken and divided equally among the 6 child support
        obligations. Based upon his paycheck stub for pay period ending 2-8-98,
        one-half of his income is $238.94, or $239.00 (rounded). Therefore, each
        child support obligation is set at $40.00 per week (39.83, rounded).

         On April 9, 1998, the State appealed both cases.
        The State presents to this Court the following issues on appeal:
        1. Did the trial court err by considering Lewis’s non-court ordered support obligation
        and Lewis’s subsequently ordered support obligations?

        2. Did the trial court err in deviating from the child support guidelines2 based upon
        the proof presented at the February 27, 1998 hearing, with regards to Lewis’s
        economic circumstances?


2. Tennessee’s child support guidelines are set forth in the Official Compilation Rules & Regulations of the
State of Tennessee in chapter 1240-2-4.

                                                     3
         3. Did the trial court err in limiting the income that could be used to calculate
         Lewis’s child support obligation to one-half of his net monthly income?


                                                       Analysis



         Tennessee Code Annotated section 36-5-101(a)(1) establishes, “In cases involving

child support, upon application of either party, the court shall decree an increase or

decrease in such allowance when there is found to be a significant variance, as defined

in the child support guidelines . . . , between the guidelines and the amount of support

currently ordered . . . .”3 Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 1998). In the cases

before this Court, however, no issues have been raised regarding whether the trial court

could modify child support (i.e., whether a “significant variance” existed 4). Instead, the

only issues before this Court relate to the amount to which child support should be

modified.



                         I. Calculation of Child Support Under the Guidelines



          Tennessee Code Annotated sections 36-5-101(e)(1) and (2) require courts to apply

Tennessee’s child support guidelines as a rebuttable presumption in determining the

amount of support of any minor child. Tenn. Code Ann. § 36-5-101(e)(1) (Supp. 1998).

See also Tenn. Comp. R. & Regs. 1240-2-4-.02(7) (1994). Moreover, even if a court

deviates from the guidelines, it must still make a written finding stating the amount of

support that would have been ordered under the guidelines. Tenn. Code Ann. § 36-5-

101(e)(1). Therefore, in the cases before this Court, the trial court was required to



3. Section 36-5-101(a)(1)’s mandate for modifying child support awards, which is quoted in the text above,
is conditioned by further language in the statute that states, “unless the variance has resulted from a
prev ious ly court-ordered deviation from the guidelines and the circum stances which caus ed the deviation have
not changed.” There exists nothing in the records before this Court, however, that establishes that the prior
awards for ch ild support in thes e cas es w ere d eviatio ns fr om the g uidelin es. T here fore , the lim itation to ch ild
support modifications that is established within section 36-5-101(a)(1) is inapplicable to the instant cases.

4. The guide lines d efine a “sig nifica nt var ianc e” as being “at lea st 15 % if the current support is one hundred
dollars ($100.00) or greater per month and at least fifteen dollars ($15.00) if the current support is less than
$100.00 per m onth.” Te nn. Com p. R. & R egs. 12 40-2-4- .02(3) (19 94). In the cases before this Court, the
amount of support previously ordered for Kendall was $10.00, and the amount of support previously ordered
for Victo ria wa s $25 .00. B eca use the a mo unt o f child supp ort tha t was prev ious ly ordered in each of the
cases before this Court was less than $100.00 per month, the plain language of section 36-5-101(a)(1)
required the tria l cour t to m odify c hild suppo rt if the amounts that would be established under the guidelines
varied fro m the amo unts of s upport p reviously ord ered by at lea st $15.00 .

                                                             4
calculate the amount of support pursuant to the guidelines, regardless of whether it

adhered to and ordered such an amount.



      Under the guidelines, the amount established for child support is based on flat

percentages of the obligor parent’s (Lewis’s) net income. Tenn. Comp. R. & Regs. 1240-2-

4-.03(2). These flat percentages are determined by the number of children for whom

support is being set. Id. The guidelines establish:

      (4) Net income is calculated by subtracting from gross income of the obligor
      FICA . . . , the amount of withholding tax deducted for a single wage earner
      claiming one withholding allowance . . . , and the amount of child support
      ordered pursuant to a previous order of child support for other children. . .
      . . Children 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. In addition, these children should not
      be considered by the court as a reason for deviation unless they meet the
      requirements of Rule 1240-2-4-.04(4).

      (5) After determining the net income of the obligor, that amount is to be
      rounded up to the next dollar. That amount is then multiplied by the
      percentage below that corresponds to the number of children for whom
      support is being set in the instant case. The percentages are:

             No. of children       1   2   3   4  5 or more
             % of income          21% 32% 41% 46%  50%

      After this calculation is made, if there are no changes to be made pursuant
      to paragraph 1240-2-4-.04 . . . , then this is the amount of the child support
      award.

Tenn. Comp. R. & Regs. 1240-2-4-.03.


      In the instant cases, calculation of net income required the trial court to consider

Lewis’s gross income, from which net income could then be derived. As a preliminary

matter, we note that the trial court apparently did not consider gross income in any child

support calculations. Instead, it apparently utilized the actual net amount that appeared

on one of Lewis’s paycheck stubs. While the net amount appearing on a paycheck stub

may, in some instances, be substantially equivalent to the amount that would be calculated

by subtracting FICA and the single wage earner with one allowance withholding tax from

gross income, such a result cannot simply be inferred or presumed, because, among other

reasons, taxpayers can claim additional withholding allowances or can have additional

amounts withheld from their paycheck. Nothing in the records before this Court establishes

that the net amount appearing on Lewis’s paycheck stub in these cases was equal to gross


                                            5
income minus FICA and the single wage earner with one allowance withholding tax.

Therefore, the court’s utilization of this amount was improper. The only evidence in the

records before this Court establishing Lewis’s gross income is set forth in the statements

of the evidence, which establish that Lewis’s gross income was $2,354 per month or

$543.27 per week at the time of the original July 25, 1997 hearing. Therefore, calculation

of child support under the guidelines must be based on these gross income amounts.



        Calculation of net income for each of the instant cases next required subtracting

from gross income FICA, the single wage earner with one allowance withholding tax, and

any amounts of child support ordered pursuant to a previous order of child support for

other children. Tenn. Comp. R. & Regs. 1240-2-4-.03(4). Subtracting FICA and the single

wage earner with one allowance withholding tax from Lewis’s gross income yields an

amount of $1880.60 per month. Therefore, net income under the guidelines for each of

these cases is equal to $1880.60 minus any child support amounts from previous orders

of child support for other children. The evidence presented in the records before this Court

establishes that there exists one order of child support in the amount of $54 per week

($234 per month) that was entered prior to the original orders of support for Kendall and/or

Victoria, that there exist two other orders of child support that were entered subsequent to

the original orders of support for Kendall and/or Victoria,5 and that there exists a voluntarily

assumed support obligation that has not been ordered by a court.



        First, we note that Lewis’s voluntarily assumed support obligation cannot be

considered in calculating child support under the guidelines because such payments are

not being made pursuant to a court order. See Tenn. Comp. R. & Regs. 1240-2-4-.03(4).

In a prior case, this Court has stated the following regarding this issue:

         The guidelines are unequivocal. There are valid policy reasons for requiring
        that child support be paid pursuant to a court order before it can be deducted
        to calculate an obligor’s net income. 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.


5. Though nothing in the records on appeal establishes the dates upon which these two orders of support
were entered, the fact that they were subsequent to the support orders for Kendall and Victoria is evident from
the statement of evidence, which lists only the $54 per week obligation as being a prior order, and which refers
to the se tw o oth er ord ers s epa rately.

                                                       6
Tower v. Tower, No. 02A01-9407-CV-00170, 1995 WL 650131 at *9 (Tenn. App. Nov. 3,

1995). See also Kirchner v. Pritchett, No. 01-A-01-9503-JV00092, 1995 WL 714279 at *5

(Tenn. App. Dec. 6, 1995). 6



        Second, we note that the two orders that were entered subsequent to the support

orders for Kendall and/or Victoria cannot be deducted to calculate Lewis’s net income

because they are not “previous” orders of child support as contemplated by the child

support guidelines. We recognize that the term “previous order” could be construed so as

to utilize the time at which the calculation is being made (the time at which the matter is

being considered or reconsidered by the court) as the point of reference for determining

“previous” orders. This Court, however, has previously concluded, in Tennessee v.

Matikke, No. 01A01-9702-CV-00090, 1997 WL 638273 (Tenn. App. Oct. 17, 1997), that

the term “previous order” refers to an order entered prior to an original order of support in

any given case. The term does not refer to an order entered subsequent to the original

order of support, but prior to modification of support in a given case. In Matikke, we noted

the following:

        [T]he Guidelines express a preference for children for whom a child support
        order is established first in time, regardless of whether the child was the
        product of a valid marriage or whether the child ever resided with the obligor.
        We recognize that this preference may work to the detriment of children for
        whom a subsequent order of child support is entered. We believe, however,
        that this is an argument more appropriately addressed to the General
        Assembly . . . .

Id. at *3. We adhere to Matikke’s construction of the term “previous order” and, therefore,

find that the two orders that were entered subsequent to the support orders for Kendall

and/or Victoria cannot be deducted to calculate Lewis’s net income. Moreover, even if

these orders had been “previous” orders, we would be unable to deduct any amounts to

reduce Lewis’s net income because there exists a complete failure of proof within the


6. The eastern section of this Court once he ld, in Adams v. Reed, 874 S.W.2d 61 (Tenn. App. 1993), that
voluntary child supp ort sho uld be considered in setting child support. In Kirchner v. Pritchett , however, the
middle section of this Court subsequently observed in a footnote the following:

        The Department of Human Services amended the guidelines after the Adams v. Reed
        decision. Rather than giving parents credit for voluntary child support payments, the
        amended guide lines s pec ifically state that voluntary child support cannot be deducted from
        gross income and cannot be used as a basis for deviating from the guidelines unless the
        payments involve extreme economic hardship.

Kirchner, 1995 WL 714279 at *6 n.5.

                                                       7
record regarding the amounts of the subsequent court-ordered support obligations.



        The only evidence in the records before this Court that establishes an amount from

a “previous order” of child support for another child is the order of child support in the

amount of $54 per week ($234 per month). This amount must be deducted from Lewis’s

gross income in order to calculate his net income. As explained earlier, subtracting FICA

and the single wage earner with one allowance withholding tax from Lewis’s gross income

yields an amount of $1880.60 per month. The additional deduction of $234 per month

from Lewis’s gross income yields an amount of $1,646.60 per month.



        Because the two cases before this Court involve children from separate cases, and

because the original order of child support for Kendall was entered earlier in time than the

original order of child support for Victoria, child support for each child must be calculated

separately.     Lewis’s net income for calculating the child support for Kendall is the

$1,646.60 amount set forth above. As the guidelines require, this amount must be rounded

up to the next dollar ($1,647), and then child support is based upon 21% of this amount.

Accordingly, the guidelines establish child support for Kendall at $345.87 per month

($79.82 per week).7 Lewis’s net income for calculating the child support for Victoria is the

$1,646.60 amount set forth above minus the amount of child support ordered pursuant to

Kendall’s previous order of child support. This amount was $10 per week, or $43.33 per

month, which reduces Lewis’s net income to $1603.27 for the purpose of calculating child

support for Victoria. Under the guidelines, such a net income would yield a child support

obligation of $336.84 per month ($77.73 per week).



                        II. Deviation from the Child Support Guidelines



        As stated earlier, Tennessee Code Annotated sections 36-5-101(e)(1) and (2)

require courts to apply Tennessee’s child support guidelines as a rebuttable presumption



7. As reflected in rule 1240-2-4-.03(5), which was quoted earlier in the text above, further changes may be
made pursuant to rule 1240-2-4-.04. Aside from 1240-2-4-.04(4), which pertains to deviation based on
extrem e econ omic hardsh ip, howev er, no su ch issue s have b een raise d before this Cou rt.

                                                    8
in determining the amount of support of any minor child. Tenn. Code Ann. § 36-5-

101(e)(1). See also Tenn. Comp. R. & Regs. 1240-2-4-.02(7). These guidelines “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).

         Although § 36-5-101(e)(1) and the [child support guidelines] clearly embody
        the legislature’s intention that the guidelines govern the amount of child
        support awarded, the fact that the presumption is rebuttable implies that the
        trial courts have limited discretion to deviate from the guidelines.
                                              ....
        While § 36-5-101(e)(1) does authorize deviation in order to ensure equity
        between the parties, and while downward deviation is clearly not prohibited,
        the trial court’s authority to do so must be considered in light of the
        provisions dealing with such deviation--Rule 1240-2-4-.04(2) and (4).
        Although not exclusive, those subsections provide for downward deviation
        in three instances . . . . [Essentially], the guidelines expressly provide for
        downward deviation where the obligee has utterly ceased to care for the
        child(ren);8 where the obligee clearly has a lower level of child care expense
        than that assumed in the guidelines; 9 and where the obligor is saddled with
        an “extreme economic hardship.”

Jones, 930 S.W.2d at 544. In the instant cases, the first two instances quoted above

(where the obligee has ceased to care for the child(ren) and where the obligee has a lower

level of child care expense) are inapplicable, as these issues have not been raised before

this Court. Moreover, there exists no proof in the records that would support any such

findings. Therefore, the issue before this Court is whether the trial court erred in deviating

from the guidelines based upon “extreme economic hardship.”



        First, we note that the trial court was required to make a written finding that the

application of the guidelines would be unjust or inappropriate if it found that the evidence

was sufficient to rebut the presumption that the guidelines should apply. See Tenn. Code

Ann. § 36-5-101(e)(1). See also Tenn. Comp. R. & Regs. 1240-2-4-.02(7). Though the

trial court did state its reason for deviation from the guidelines by stating that all of Lewis’s

child support obligations are entitled to equal treatment, the trial court did not make any

written finding that the application of the guidelines would be unjust or inappropriate.



8. Rule 12 40-2-4- .04(2)(a ) establish es that de viation from the guide lines m ay be app ropriate “In cases where
the Department of Human Services has taken custody of the child(ren) pursuant to a neglect, dependant, or
abuse action and where the parent(s) is/are making reasonable efforts to secure the return of the child(ren)
to the family.” See Tenn. Com p. R. & Regs. 1240-2-4-.04(2) (19 97).

9. Rule 12 40-2-4- .04(2)(a ) establish es that de viation from the guide lines m ay be app ropriate “In cases where
physical custody of the child(ren) is more equally divided between the parties than occ urs in a situation where
one party has an average am ount of overnight visitation . . . .” Tenn. Comp. R . & Regs. 1240-2-4-.04(2).

                                                         9
Accordingly, its deviation from the guidelines was improper. See Tenn. Code Ann. § 36-5-

101(e)(1). See also Tenn. Comp. R. & Regs. 1240-2-4-.02(7).



          Furthermore, the reason stated for the trial court’s deviation was insufficient to

support deviation from the guidelines. As we noted in Tennessee v. Matikke, which was

discussed above, “the Guidelines express a preference for children for whom a child

support order is established first in time.” An obligor’s support obligations relating to

various children are only entitled to “equal” treatment under Tennessee law if those various

children are all considered within the same case. See Tenn. Comp. R. & Regs. 1240-2-4-

.03(5).



          Lastly, we note that there exists no proof within the records sufficient to support a

finding of extreme economic hardship. While it was established that Lewis was under a

total of five orders of child support, and that he had voluntarily assumed one additional

support obligation, no proof exists within the records that establishes any amounts of any

financial obligations, aside from the one prior $54 per week order of child support. The

only thing found in the records that relates to a finding of extreme economic hardship is

Lewis’s own conclusion “that he was unable to pay more than one-half of his income” for

his various child support obligations. Even assuming this conclusion was correct, we would

be unable to calculate the actual total of Lewis’s various child support obligations due to

a failure of proof. Accordingly, deviation from the guidelines in the instant cases was

improper.



                                      III. Lewis’s Income



          The State’s final issue is whether the trial court erred in limiting the income that

could be used to calculate Lewis’s child support obligation to one-half of his net monthly

income. Based upon our analysis and resolution of the above two issues, however, we find

it unnecessary to further address this issue, and, therefore, pretermit further analysis of the

same.



                                               10
                                      Conclusion



      Based upon the foregoing, the trial court’s modification of child support to the

amount of $40.00 per week for both Kendall and Victoria is hereby reversed, and such

support is hereby set at $79.82 per week for Kendall and at $77.73 per week for Victoria.

Costs of these consolidated appeals are taxed to Lewis, for which execution may issue if

necessary.




                                                             HIGHERS, J.
CONCUR:




FARMER, J.




LILLARD, J.




                                           11
