Jackson v. Jackson

FILED
IN THE COURT OF APPEALS OF TENNESSEE March 29, 2000
AT JACKSON
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ex rel, )
TONYA RENEE JACKSON, ) Williamson Circuit No. 93337
)
) Appeal No. M1999-00133-COA-R3-CV
Plaintiff/ Respondent/ )
Appellee, ) AFFIRMED
)
VS. ) The Honorable Donald P. Harris, Judge
)
KEITH GEORGE JACKSON, ) Paul G. Summers
) Attorney General & Reporter
) Douglas Earl Dimond
Defendant/Petitioner/ ) Assistant Attorney General
Appellant. ) Nashville, TN
) Attorney for Tonya Renee Jackson
)
) Keith George Jackson, pro se
) Murfreesboro, TN
MEMORANDUM OPINION1
HIGHERS, J.
This appeal arises from a petition to reduce child support filed in the Circuit Court
of Williamson County. The trial court denied the petition, and for the reasons stated
herein, we affirm that decision.
Facts and Procedural History
On November 18, 1998, Keith George Jackson (“Appellant”) filed a petition in the
Circuit Court of Williamson County seeking to have his child support payments reduced.2
At that time, Mr. Jackson was obligated to pay eight hundred and two dollars ($802.00) per
month under a prior court order entered on March 3, 1998. The petition alleged that “a
material change of circumstances has occurred as to defendant’s income . . . so as to
justify a reduction in child support payments. The State of Tennessee (“Appellee”)
1
Rule 10 (Court of Appea ls). Memorandum O pinion. – (b) The Cou rt, with the c onc urre nce of all
judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum
opinion when a formal opinion would have no precedential value. When a case is decided by memorandum
opinion it sha ll be de sign ated “ME MO RAN DU M O PIN ION ,” sha ll not be published, and shall not be cited or
relied on for any reason in a subsequent unrelated case.
2
Mr. Jackson proceeded pro se in both the tria l court and before th is court.
responded on behalf of Tonya Jackson Strong and requested that the court review Mr.
Jackson’s income and set his child support obligation pursuant to the Tennessee Child
Support Guidelines (“Guidelines”). 3
The trial court conducted a hearing on this matter on February 8, 1999. The court
rendered its decision by order entered on February 25, 1999. The trial court determined
Mr. Jackson’s income to have been $54,846.60 in 1998 and $64,975.00 in 1997.
However, the trial court calculated his child support obligation using both the 1997 and
1998 incomes.4 Based upon the percentages contained in the Guidelines, the court
concluded that Mr. Jackson was paying the correct amount of child support and denied the
petition to reduce his payments.
Law and Analysis
Initially, we must note that the record contains no transcript or statement of the
evidence. The appellant has the duty "to prepare a record which conveys a fair, accurate
and complete account of what transpired in the trial court with respect to the issues which
form the basis of the appeal," Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn. Ct. App.
1997)(citing State v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992)); see also
T.R.A.P. 24(b). Due to the absence of an evidentiary record, we must presume that every
admissible fact should have been found in the appellee’s favor and against Mr. Jackson.
Gotten v. Gotten, 748 S.W.2d 430, 432 (Tenn. Ct. App. 1987); Richmond v. Richmond,
690 S.W.2d 534, 536 (Tenn. Ct. App. 1985); In re Rockwell, 673 S.W.2d 512, 516 (Tenn.
Ct. App. 1983).
On this appeal, the Appellant presents only one issue. That issue is whether the
trial court erred in “failing to properly apply the ‘significant variance’ test.” Mr. Jackson
argues that his child support obligation should have been modified due to the fact that his
3
The State’s standing as appellee derives from state and federal law s which require c ustodial pa rents
of children receiving public assistance to assign their rights to receive support from third parties to the State.
42 U.S .C. § 606 (a)(26); T enn. Co de Ann . § 71-3-1 24(a).
4
The exact language used by the trial court was : “Ch ild sup port s hall be computed based on the last
2 years income whe n being calculated for modification.”
2
income had decreased by more than fifteen percent (15%) from 1997 to 1998, thereby
constituting a significant variance. In response, the State claims that Mr. Jackson
misapprehends the law regarding “significant variance.” The State argues that no
modification was warranted since Mr. Jackson does not contend, nor does the record
indicate, that his existing support obligation varies by fifteen percent or more from the
support obligation that he would owe based on his income at the time of the hearing.
Trial courts are required to modify child support obligations only when there is a
"significant variance" between the amount of support required by the Guidelines and
the amount currently ordered. Tenn.Code Ann. § 36-5-101(a)(1); see also Turner v.
Turner, 919 S.W.2d 340 (Tenn. Ct. App. 1995)(emphasis added). When the child support
obligation exceeds $100 per month, the Guidelines define a "significant variance" as one
of at least fifteen percent. See Tenn. Comp. R. & Regs. r. 1240-2-4-.02(3).
Determining the amount of the noncustodial parent's income is the most important
element of proof in a proceeding to set child support. Turner, 919 S.W.2d at 344. Since
the Guidelines speak in terms of percentages, the trial court is required to determine the
obligor’s income before it can set a definite amount of support. In the present case, the
trial court ruled that for purposes of modification of Mr. Jackson’s child support obligation,
both his 1997 and 1998 incomes were to be considered. The court then applied the
percentages contained in the Guidelines to determine that Mr. Jackson was not entitled to
a modification.
Mr. Jackson has not presented a legally cognizable argument regarding “significant
variance.” As the Appellee contends, the fifteen percent significant variance standard does
not apply to income. Rather, the question is whether the obligor’s existing support
obligation varies by fifteen percent or more from the amount that would be required when
applying the obligor’s income at the time of the hearing. Therefore, the real issue in this
case is whether the trial court correctly determined the income upon which Mr. Jackson’s
child support payments should be calculated.
3
Mr. Jackson does not argue that the trial court abused its discretion in using both
his 1997 and 1998 incomes as the basis for setting his payments. The court took an
average of the 1997 and 1998 income and used that figure as the basis for calculating Mr.
Jackson’s obligation. Mr. Jackson does not challenge that determination.
In summary, there is no legal basis for the “significant variance” argument advanced
by Mr. Jackson. Additionally, he has not addressed the dispositive issues in this case.
Any latitude that we might have under T.R.A.P. 13(b) to consider issues not presented for
review, such as the trial court’s income determination, is rendered moot by the deficiencies
in the record. We must review the trial court's decision according to the familiar
Tenn.R.App.P. 13(d) standard, and we shall uphold that decision unless it is based on an
improper application of the law or is against the preponderance of the evidence. In the
present case, the lack of an argument by Mr. Jackson, as well as the absence of a
transcript or statement of the evidence, leaves us with no basis on which to question the
trial court decision.
Conclusion
For the foregoing reasons, the decision of the trial court denying the appellant’s
petition is affirmed. Costs of this appeal are taxed to the Appellant, Keith George
Jackson, for which execution may issue if necessary.
4
HIGHERS, J.
CONCUR:
FARMER, J.
LILLARD, J.
5