                  IN THE COURT OF APPEALS OF TENNESSEE

                        EASTERN SECTION AT KNOXVILLE           FILED
                                                                  July 24, 1997

                                                               Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk



JANICE BARTLEY CASTEEL,                   )
                                          )     KNOX CIRCUIT
      Plaintiff/Appellant                 )
                                          )     NO. 03A01-9703-CV-00073
v.                                        )
                                          )
CLIFTON PHILLIP CASTEEL,                  )     HON. BILL SWANN
                                          )     JUDGE
      Defendant/Appellee                  )




William A. Mynatt, Jr. and Jason H. Long, Knoxville, for the Appellant

Douglas J. Toppenberg and J. Elaine Burke, Knoxville, for the Appellee



                                     OPINION

                                                INMAN, Senior Judge



      These parties were divorced on September 16, 1994. By agreement, they

were awarded joint legal custody of three sons, who would reside principally with

their mother, hereafter appellant.

      The father, hereafter appellee, was awarded “co-parenting time” with the two

younger sons1 on alternating weeks from Wednesday at 6:00 p.m. until Sunday at

8:00 p.m. and four (4) full weeks during summer. Holiday times - Easter, Christmas,

and Thanksgiving - were evenly divided.

       Pursuant to the approved plan, appellant has custody 234 days, while

appellee has custody 131 days.

       After extended skirmishing, the appellee’s support obligation for two children

was determined to be $370.00 per month. Appellee’s gross annual income was

$36,696.00. The appellant earned about $43,000.00 annually.


      1
       The oldest boy, then 17, resided as he chose. He is now of age, and we are
concerned only with his two younger brothers.
      The trial judge observed that current law “gives a choice between wide judicial

discretion in the departure [from the Guidelines] and a possible second mathematical

computation carrying a presumption of correctness.” The decree provides:

      “The Court finds that in the present case the primary custodian mother
      has 234 days with the children and the father has 131 days with the
      children. The Court further finds that the Child Support Guidelines are
      based upon the primary custodian having 285 days per year and the
      secondary parent having 80 days per year. The Court finds that in
      situations where the income level of the parents is essentially equal that
      the custodial parent is presumed to support the child from his or her
      income for 182.5 days per year and that the non-custodial parent provides
      support either through child support or in kind for the remaining 182.5
      days per year. Thus in a standard visitation situation where the non-
      custodial parent has the child for 80 days per year the Child Support
      guidelines are presumed to provide support for the remaining 102.5 days
      per year that non-custodian should be supporting the child but during
      which time the child is not in his or her possession.

       The Court finds that it is appropriate in situations of essentially equal
       incomes that child support be reduced by a ratio of the days per year
       assumed by the Guidelines and the number of days the non-custodial
       parent actually keeps the children.

       The Court finds that for parents with equal income, and for parents in
       which the payor of child support earns less than the recipient, a
       mathematical computation should be imposed, carrying a presumption of
       correctness. To wit, a fraction should be created in which the numerator
       would be the non-custodial parent’s actual co-parenting days minus 80
       and the denominator would be the number 102.5. The fraction should be
       multiplied by the child support guidelines dollar amount and that the result
       of that calculation is the amount by which child support should be
       increased or decreased if the payor is exercising more than 80 days per
       year, or increased if less.

       It is therefore ORDERED that by following the above formula in this
       matter, child support should be set at three hundred and seventy dollars
       per month ($370.00/mo.), with said amount to be paid beginning
       September 23, 1996.”

       The dispositive issue is whether the peculiar circumstances of this case

justified a downward deviation from the Guidelines, in light of the instructions of

Jones v. Jones, 930 S.W.2d 541 (Tenn. 1996).

       Any deviation must be clearly articulated. TENN. COMP. R. & REG ., CH . 1240-2-

4.01(3) and 1240-2-4.02(7); Jones, supra. On the face of it, the monthly gross

income of the appellee required that he, as the obligor, pay $740.00 monthly support

for his two sons; does the fact that he has custody for 131 days each year justify the

reduction to $370.00 monthly?




                                            2
        The parties concede that an allowance is factored into the Guidelines for the

80 days residency of the children with their father, and that if the children spend

more time with the obligor than is assumed2 his child support payments should be

reduced. Jones, supra.

        The formula fashioned by the trial judge “in situations of essentially equal

incomes that child support be reduced by a ratio of the days per year assumed by

the Guidelines and the number of days the non-custodial parent actually keeps the

children” is assailed by the appellant for two reasons.

        First, because “the visitation time granted to the appellant [sic: appellee] is of

the type contemplated by the Guidelines and therefore does not provide a valid or

common sense justification for any downward deviation”; second, the trial court

applied an inappropriate formula in its computation.

        The first reason assigned by the appellant is somewhat baffling and we will

not further notice it.

        With respect to the appropriateness of the formula devised by the trial court to

assist him in the computation of a downward deviation both parties ceded was

justified, our concern is not so much with the formulaic method fashioned by the

Court as with its elements. Income of the custodial parent is generally not relevant,

and the reduction extrapolates to 160 days visitation, rather than 131.

        But if the elaborate formula so painstakingly fashioned results in an amount of

support that the circumstances and best interests of the children require we see no

reason to critique the mechanics employed, keeping in mind that TENN. COMP. R. &

REGS. 1240-2-4.02(6) provides that:

        “In situations where overnight time is divided more equally between the
        parents, the courts will have to make a case-by-case determination as to
        the appropriate amount of support.”

        Thus it is that the fashioned formula cannot be applied mechanically, without

more.




        2
            Tenn. Comp. R. & Regs. Ch. 1240-2-4.02(6).

                                             3
       The Guidelines are required to be applied as a rebuttable presumption in all

child support cases. If the evidence is sufficient to rebut the presumption, the trial

court must make a specific finding that the application of the Guidelines would be

unjust or inappropriate. Any such finding must state the amount required by the

Guidelines, and must include a justification for deviation which takes into

consideration the best interests of the children. TENN. COMP. R. & REGS. 1240-2-

4.02(7).

       The appellee has 62.5 percent more visitation [”co-parenting,” according to

the decree] than the Guidelines presume. For reasons not entirely made clear, the

appellant argues that this percentage is insignificant, thus obviating a deviation. We

would be hard-pressed to agree with this argument since a variance of 62.5 percent

is obviously not insignificant. A threshold amount of visitation by the non-custodial

parent required as a condition precedent to a downward deviation has not been

established in Tennessee. Other states have established an amount, from Alaska

where visitation is 30 percent, to Maryland 35 percent, to Oregon 35 percent, to

Virginia 110 days.3

       The appellant argues that she has certain fixed expenses whether the children

are with her or elsewhere. This argument is also applicable to the appellee. One of

the major aims of the Guidelines is “to ensure that when parents live separately, the

economic impact on the children is minimized.”      TENN. COMP. R. & REGS. 1240-2-

4.02(2)(e). The appellee argues that if he is required to pay 32 percent of his net

income as support for the children, as appellant insists, while having their custody

62.5 percent more often than is presumed by the Guidelines, the economic impact

on the children will be substantial, and the appellant will merely have reaped an

unwarranted windfall.

       Our review is de novo on the record accompanied by a presumption that the

judgment is correct unless the evidence otherwise preponderates. RULE 13(d), T. R.

A. P.; Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn. 1996). This




       3
        Alaska Civ. R. 90.3; Maryland Family Code 12-102; Oregon Ad. Reg. 137-50-
450; Virginia Code Ann. 20-108.2.

                                            4
presumption does not apply to questions of law, which are reviewed de novo.

Hillsboro Plaza Enter. v. Moon, 860 S.W. 2d 45 (Tenn. Ct. App. 1993). As

heretofore stated, the award of $370.00 monthly is a 50 percent downward deviation

from the Guidelines, and if a formulaic method is justified, the deviation should not

exceed $126.00.

      We believe that it is necessary to:

       (1)   determine the annual amount of support under the Guidelines:

                    $740.00 per month X 12 months = $8,880.00, or $24.33
                    per day

       (2)   determine what proportion of that annual amount is attributable
             to the increased visitation, any amount over 80 days per year
             being considered excess:

                    51 days excess @ $24.33 per day = $1,240.83 per year,
                    or $103.40 per month

       (3)   reduce the Guideline amount by the amount attributable to
             increased visitation:

                    $740.00 - $103.00 = $637.00


       Therefore, we find that in this case the amount of support due shall be

reduced from $740.00 per month to $637.00 per month.

       The judgment will be modified to award the appellant $637.00 per month child

support effective September 23, 1996. Costs are assessed to the parties evenly,

and the case is remanded.

                                                _____________________________
                                                William H. Inman, Senior Judge

CONCUR:



_____________________________
Herschel P. Franks, Judge



_____________________________
Don T. McMurray, Judge




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