Leanna Avery v. Roger Lewis ( 1998 )

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