                IN THE COURT OF APPEALS OF TENNESSEE




STATE OF TENNESSEE, DHS,        )
                                                       FILED
                                     C/A NO. 03A01-9701-JV-00036
AND/ASSIGNEE OF:                )
WILLIAM RALPH SANDERS and       )                       August 28, 1997
DORIS SANDERS MASTIN,           )
                                )                      Cecil Crowson, Jr.
          Petitioner-Appellee, )                       Appellate C ourt Clerk
                                )
                                )    APPEAL AS OF RIGHT FROM THE
                                )    ANDERSON COUNTY JUVENILE COURT
v.                              )
                                )
                                )
                                )
                                )
JAMES BRADY SPRINGS,            )
                                )    HONORABLE PATRICIA R. HESS,
          Respondent-Appellant. )    JUDGE




For Appellant                         For Appellee

BILLY H. LEFFEW                       JOHN KNOX WALKUP,
Rockwood, Tennessee                   Attorney General and Reporter
                                      Nashville, Tennessee

                                      KIMBERLY M. FRAYN
                                      Assistant Attorney General
                                      Nashville, Tennessee




                            OPINION




AFFIRMED AND REMANDED                                     Susano, J.

                                 1
           This is a paternity case.       When the respondent, James

Brady Springs (Father), demanded a jury trial, this matter was

transferred to the Anderson County Circuit Court.           After DNA

testing indicated a very high probability that he was the father

of William Ralph Sanders, Springs acknowledged his paternity of

the child.     On remand to the Anderson County Juvenile Court, that

court set Father’s past1 support obligation at $88,026 and

decreed that this amount be paid to the petitioner, Doris Sanders

Mastin (Mother), at the rate of $578 per month.           Father appealed,

raising three issues:



             1. Did the trial court err in utilizing the
             Child Support Guidelines (Guidelines) in
             effect at the time of the hearing to compute
             Father’s obligation for the support of the
             child for the period from the date of the
             child’s birth in 1977 to the date of his
             graduation from high school on or about June
             1, 1996?

             2. Did the trial court err in preventing
             respondent from presenting evidence of (a)
             Ms. Mastin’s expenditures for the support of
             the parties’ child from 1977 to 1996; (b) Ms.
             Mastin’s income for the same period; and ( c )
             the amount of support she received for two
             other children following her divorce, when
             the father of those children was earning pay
             comparable to the respondent?

             3. Did the trial court err in refusing to
             allow the respondent a credit against his
             past child support for the cost of a motor
             bike he purchased for the parties’ child?



We affirm.




     1
       While this matter was pending below, the subject child reached his
majority and graduated from high school. As a result, Father’s obligation to
provide prospective child support was extinguished, and hence no award for
future support was set. See T.C.A. § 34-11-102(b).

                                      2
                                  I



            William Ralph Sanders was born to Mother on September

27, 1977.    Mother filed a petition on March 30, 1995, seeking to

establish that respondent James Brady Springs was the father of

her child.    Father did not support the child, directly or

indirectly, prior to the filing of the petition.       The record is

also clear that there was no relationship between Father and his

son prior to this action being filed.



            On March 11, 1996, after the child reached his majority

but before he graduated from high school, Father borrowed $3,300

and purchased him a motor bike.       Father testified that he did

this because the child needed transportation, having wrecked his

automobile.    At the time of the hearing on July 25, 1996, the

child had sold the motor bike.    He apparently retained the

proceeds; father testified at the hearing that he was still

paying off the loan.



            Richard Hill, a paralegal with the Anderson County

Child Support Division, was called as a witness for the

petitioner.    Through him, an exhibit was presented to the court

detailing the child support due for each year, beginning with the

child’s birth on September 27, 1977, and ending with his

graduation from high school on or about June 1, 1996.       Mr. Hill

testified that he computed the child support based upon Father’s

gross monthly income during the years 1977 - 1995 as set forth in

his answers to interrogatories.       He stated that he utilized the

table dated July 8, 1994, developed by the Tennessee Department


                                  3
of Human Services, which reflects numeric child support due for

one or more minor children at various levels of an obligor’s

gross income.       According to his computations, the amount due,

pursuant to the Guidelines, was $90,558.       In awarding past child

support of $88,026, the trial court gave Father a credit for

court-ordered support payments made by him for a child born of

his marriage to another woman.



                                      II



              The legal principles applicable to this child

support/paternity case were recently discussed by this court in

the unreported case of Shell v. Law, C/A No. 03A01-9608-CV-00251

(Court of Appeals at Knoxville, March 18, 1997), application for

permission to appeal pending:



              Paternity proceedings are addressed in
              Chapter 2 of Title 36 of the Code.2 T.C.A. §
              36-2-102 provides that “[t]he father of a
              child born out of wedlock is liable for . . .
              [t]he necessary support and education of the
              child; . . .” T.C.A. § 36-2-108 states,
              among other things, that if the defendant is
              found to be the father of the child, the
              court “shall also provide ... for the support
              of the child prior to the making of the order
              of paternity and support.”

              A trial court’s authority in setting back
              child support is addressed in the leading
              Supreme Court case of State ex rel. Coleman
              v. Clay, 805 S.W.2d 752 (Tenn. 1991), wherein
              Justice Daughtrey, speaking for the court,
              opined as follows:

                    . . . the father’s responsibility
                    for support of a child of his born
                    out of wedlock arises at the date
                    of the child’s birth. Because the


     2
         T.C.A. § 36-2-101, et seq.

                                      4
     statute also permits the [trial
     court] to make a retroactive award
     for expenses incurred in the
     support of the child prior to the
     entry of the paternity decree, such
     an award can be made back to the
     date of the child’s birth, under
     appropriate circumstances.
     Obviously, the [trial court] has
     broad discretion to determine the
     amount of such a retroactive award,
     as well as the manner in which it
     is to be paid.



Id. at 755.

In setting prospective child support in
paternity cases, a trial court is bound to
follow the mandates of T.C.A. § 36-5-101(e),
and the Child Support Guidelines (Guidelines)
promulgated by the Department of Human
Services and adopted by the General Assembly.
See T.C.A. § 36-2-108(d). See also
Tenn.Comp.R. & Regs., ch. 1240-2-4-.02(3).
(“These guidelines shall be applicable in any
action brought to establish or modify child
support, whether temporary or permanent.”)
Cf. Barabas v. Rogers, 868 S.W.2d 283, 288
n.5 (Tenn. App. 1993). The Guidelines have
the force of law. Nash v. Mulle, 846 S.W.2d
803, 804 (Tenn. 1993) (“Hence, the purposes,
premises, guidelines for compliance, and
criteria for deviation from the guidelines
carry what amounts to a legislative
mandate.”)

In the unreported case of Kirchner v.
Pritchett, C/A No. 01A01-9503-JV-00092, 1995
WL 714279 (Court of Appeals at Nashville,
December 6, 1995), perm. app. not requested,
a panel of the Middle Section of this court
differentiated between the setting of
prospective child support and back child
support in paternity cases:

     Child support decisions in
     paternity cases are controlled by
     the same principles governing
     similar decisions in divorce cases.
     Tenn. Code Ann. § 36-2-108(d)
     (Supp. 1995). Since child support
     decisions in divorce cases must be
     made in accordance with the child
     support guidelines, Tenn. Code Ann.
     § 36-5-101(e)(1) (Supp. 1995),
     decisions involving prospective

                      5
              child support in paternity cases
              must also be consistent with the
              guidelines (citations omitted).

                           *    *      *

              Unlike awards for prospective child
              support, awards for expenses
              arising between the child’s birth
              and the filing of a paternity
              petition are discretionary
              decisions based on the facts of the
              particular case (citations
              omitted).

         Id. 1995 WL 714279 at *4-5. We agree with
         our brethren in the Middle Section. The
         “broad discretion” recognized by the Supreme
         Court in State ex rel. Coleman, 805 S.W.2d at
         755, is inconsistent with a requirement that
         the Guidelines be strictly adhered to in
         computing back child support in paternity
         cases. This is not to say that a trial
         court, in the exercise of its broad but sound
         discretion, could not award child support
         back to the date of the child’s birth in an
         amount calculated in strict adherence to the
         formula set forth in Tenn.Comp.R. & Regs.,
         ch. 1240-2-4-.03. Clearly, it could in an
         appropriate case; but it is also just as
         clear that a trial court’s broad discretion
         permits it to award back child support in an
         amount other than the amount calculated in
         strict compliance with the Guidelines. As
         the Supreme Court said in State ex rel.
         Coleman:

               . . . the statute gives the
               juvenile court the discretion to
               order a retroactive support award
               back to . . . [the] date [of the
               child’s birth], the amount and
               method of payment to be determined
               by the [trial judge] in light of
               the circumstances of the case and
               consistent with the standards which
               normally govern the issuance of
               child support orders. (citation
               omitted).

          Id. 805 S.W.2d at 755.



Shell v. Law, at *4-7.   (Emphasis in original).




                                   6
                                     III



            In his first issue, Father contends that the trial

court erred in using Withholding, Social Security, and Medicare

tax deductions based upon the 1994 Internal Revenue Service,

Circular E, Employers’ Tax Guide.3         He argues that the court, in

computing child support for any given year, should have used the

Circular E in effect for that year.         For example, he contends

that the computation of net income for 1977 should have been

based upon the deductions authorized in the 1977 Circular E.



            There was no evidence introduced below that past child

support for the years 1977 - 1996 would have been less if

Father’s net income, as defined in the Guidelines, had been

calculated using the Circular E’s in effect during the various

years in question.      As a part of his argument, counsel for Father

presented to the court seven pieces of yellow paper with his

handwritten computations, which he stated were based upon the

Circular E’s in effect during the years 1977 through 1996.              He

also introduced the Circular E’s for each of the years in

question.    The trial judge marked all of this as an exhibit, but

very clearly stated that she was receiving it as a part of

Father’s argument, and not as evidence.          In refusing to accept

this material (particularly counsel’s seven pieces of yellow

pages with his handwritten computations) as evidence, the court

sustained Mother’s objection that these computations were not

presented under oath and that she was not afforded an opportunity


      3
       The July 8, 1994, table prepared by the Tennessee Department of Human
Services, which was utilized in this case, is based upon the 1994 Internal
Revenue Service Circular E.

                                      7
to test their validity through cross-examination.



          We agree with Mother and the trial court that Father’s

computations were not presented as evidence in this case.    The

Rules of Evidence clearly set forth the procedure to be followed

if a summary is to be offered into evidence.   See Rule 1006,

Tenn.R.Evid.   No attempt was made to satisfy this rule.

Therefore, since there was no evidence supporting Father’s

contention as set forth in his first issue, we do not find it

necessary to address the substance of that argument.

Accordingly, we find that Father’s first issue is without merit.



          Father’s second issue involves three parts.   We will

address each part separately.



          Father first argues that he was prevented from offering

evidence of Mother’s expenditures for the support of the parties’

child during the period from September 27, 1977, to June 1, 1996.

We do not agree with Father’s characterization of what took place

below.



          During her cross-examination, Mother was asked the

following question:



          You say that you are expecting reimbursement,
          but do you have any receipts here to show
          what you have paid in regard to supporting
          this child?



Counsel for Mother objected on the ground of relevancy.     The

trial court sustained the objection, but for another reason:

                                 8
          THE COURT: I’m not going to spend my time
          here. If you wanted that, that should have
          been a matter for Interrogatories, if that
          was to be an issue. As we sit here today,
          it’s using this courtroom for discovery and
          that’s not appropriate. The statutes do say
          that the Guidelines are to be used.



No further effort was made to present evidence of Mother’s

expenditures for the support of the parties’ child during the

period in question.   No offer of proof was made.      See Rule 103,

Tenn.R.Evid.    See also State v. Goad, 707 S.W.2d 846, 852-53

(Tenn. 1986).



          Even if the trial court erred in sustaining Mother’s

objection to this one question, we cannot conclude from this that

Father was prevented from offering evidence of Mother’s support,

as argued in Father’s second issue.   Furthermore, we cannot

evaluate whether such evidence, if available and presented to the

trial court, would have mandated a different result in this case.

This is because we cannot weigh evidence that is not before us.

Even if the trial court committed error in refusing to permit

Mother to answer this one question, we cannot say that this error

“more probably than not affected the judgment or would result in

prejudice to the judicial process.”    See Rule 36(b), T.R.A.P.



          In the second aspect of his second issue, Father

contends that the trial court refused to let him introduce proof

of Mother’s income for the period 1977-1996.   Father does not

indicate in his brief where in the record he attempted to

introduce this proof.    See Rule 27(a)(6), T.R.A.P.    We have

searched the record and cannot find any point in the transcript


                                  9
where Father attempted to get this proof into evidence.   In the

absence of such a tender, we do not find it necessary to reach

the substance of Father’s argument on this point.



          As the last element of Father’s second issue, he

complains that the trial court refused to admit into evidence

proof that for some portion of the relevant time period, Mother

was receiving $40 per week from her former husband for the

support of two other children.   Testimony on this matter was put

in the record as excluded evidence.



          The trial court was correct in excluding this evidence.

What Mother received from another man as support for two other

children is not relevant on the issue of what Father should pay

as back child support.   This is because the evidence in question

does not “hav[e] any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

See Rule 401, Tenn.R.Evid.   The issue before the court was how

much Father should pay for past child support.   What another man

paid to Mother as child support simply was not relevant to what

Father should pay.



          We have considered all aspects of Father’s second

issue.   We are not persuaded that there is any basis in Father’s

arguments to disturb the judgment below.



          In Father’s third and final argument, he contends that

he was due a credit against his back child support for the $3,300


                                 10
he expended in purchasing his son a motor bike.    The trial court

found that the motor bike was a gift to the parties’ child and

that Father was not entitled to a credit.    We agree.    There was

no proof that the motor bike represented a necessity that was not

being furnished by Mother.    This is the test for the allowance of

a credit against child support where the payment or expenditure

is not made pursuant to a court order.    See Oliver v. Oczkowicz,

C/A No. 89-396-II, 1990 WL 64534 (Court of Appeals at Nashville,

May 18, 1990).



          We do not find that the evidence preponderates against

the trial court’s judgment.    See Rule 13(d), T.R.A.P.    It results

that we find no abuse of the trial court’s discretion in setting

back child support.



          The judgment of the trial court is affirmed.      Costs on

appeal are taxed to the appellant and his surety.    This case is

remanded to the trial court for the enforcement of the judgment

and collection of costs assessed below, all pursuant to

applicable law.



                                      __________________________
                                      Charles D. Susano, Jr., J.


CONCUR:



________________________
Herschel P. Franks, J.



________________________
Don T. McMurray, J.


                                 11
