Barnett vs. Barnett

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IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE May 2000 Session ROBERT McALISTER BARNETT, III v. PAULA LYNN BARNETT Appeal by Permission from the Court of Appeals, Eastern Section Chancery C ourt for Ham ilton County No. 63302 L. Marie Williams, Judge (by interchange) FOR PUBLICATION No. E1997-00010-SC-R11-CV - Filed September 5, 2000 We granted this appeal to determ ine: 1) whether private scho ol tuition constitutes an ex traordinary educational expense under the Tennessee Child Support Guidelines; and 2) whether the noncustodial parent should be required to pay those exp enses in ad dition to ch ild suppo rt based up on the perc entage of net income of the noncustodial parent. We hold that pursuant to the Tennessee Ch ild Support Guidelines private school tuition is an extraordinary educational expense. We affirm the decision of the Court of Appeals requiring the total amount of private sch ool tuition to be paid by the ob ligorfather. We hold, howeve r, that in appropriate cases a court ma y apportion the amoun t of tuition between the parties. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed JANICE M. HOLDER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and F RANK F. DROWOTA , III, ADOLPHO A. BIRCH, JR ., and WILLIAM M. BARKER, JJ., joined. D. Mitchell Bryant, Cleveland, Tenn essee, and Russell Theodore King, Chattanooga, Tennessee, for appellant, Robert McAlister Barnett, III. Glenna M. Ramer and S andra Jean Bott, Chattanoo ga, Tennessee, for appe llee, Paula Lynn Barnett. OPINION BACKGROUND Paula Lynn Barnett (Ms. Barnett) and R obert McAli ster Bar nett, III (Dr. Barnett) were divorced in 1986 after a fourteen-year marriage. At the time of the divorce, the parties son, Joshua, was three years old and their daughter, Katie, was an infant. The final decree of divorce req uired Dr. Barnett to pay $500 per week ($2,167 per month) in child support and $300 per week ($1,300 per month) in periodic alimony. In March, 1996, Ms. Barnett filed a petition to modify the child support award.1 The trial court found Dr. Barnett s gross inco me to be $209 ,206 and set child support in the amount of $3,700 per month. It ordered $700 of that amount to be paid into an educational trust for Katie, with the remaining $3,000 to be paid directly to Ms. Barnett. The trial court found that Jo shua s tuition at McCallie, a private school, was an ex traordinary educational exp ense. The court, however, ordered the tuition to be p aid by Paula Barnett from the $3 ,000 monthly child su pport. The Court of Appeals reversed the trial court s ruling. It held that extraordinary education expenses must be added to the percentage of net income required by the guidelines to be paid by the obligor2 parent. The Court of Appeals remanded to the trial court for an award of additional child support to be paid by Dr. Barnett based upon Joshua s extraordinary educational expenses. For the reasons set forth below, we affirm the Court of Appeals. ANA LYSIS We granted this appeal to decide the following issues: Did the Court [of Appeals] err in finding private school tuition to b e an extraordinary educational expense and in further requiring the father to pay those expenses in addition to guidelines child supp ort? As these issues raise questions of law only, our review is de novo with no presumption of correctness. See Nash v. Mulle, 846 S.W.2d 803, 80 4 (Tenn. 1993). Child support in Tennesse e is governed by Tenn. Co de Ann. § 36-5-10 1. In making its determination concerning the amount of support . . . the court shall apply as a rebuttable presumption the child support guidelines as provided in this subsection. Tenn. Code A nn. § 36-5-101 (e)(1). Child support guidelines have been promulgated by the Tennessee Department of Human Services and adopted by the General Assembly. The purposes, premises, guidelines for compliance, and criteria for deviation from the guidelin es carry what amounts to a legislative m andate. See Nash, 846 S.W.2d at 804. The guidelines are based upon a flat percentage of the obligor s net income. The income of the obligee may not be considered in the calculation of or as a reason for deviation from the guidelines in determining the supp ort award amoun t. Tenn. Comp. R. & Regs. ch. 1240 2 4 .03(2). The flat 1 Dr. Barnett filed a counterpetition for a reduction in ch ild suppo rt and alim ony an d for an in crease in visitation. We affirm the Court of Ap peals disposition of these issu es. 2 [T]he parent with whom the child(ren) live primarily will be referred to as the obligee and the p arent with whom the child(ren) do not p rimarily live will be referred to as the obligor. Tenn. Comp. R. & Regs. ch. 1240 2 4 .03(1). -2- percentage imposed presumes that the obligee will be expending at least an equal percentage of net income as that of the obligor for the support of the children for whom support is sought. Id. After computing the percentage amount of child supp ort to be paid , a trial court must consider the criteria for deviation from guidelines set forth in Tenn. Comp. R. & Regs. ch. 1240 2 4 .04. Since the guidelines provide that the p ercentage amounts are min imums, the court shall increase the award calculated in Tenn. Comp. R. & Regs. ch. 1240 2 4 .03 for seve ral specified reasons. At issue in this case is the provision requiring that [e]xtraordinary educational expenses and extraordinary medical expenses not covered by insurance shall be added to the percentage calculated in the above rule. Tenn. Comp. R. & R egs. ch. 1240 2 4 .04(1)(c). 3 The guidelines ap pear to equ ate extraord inary with ad ditional o r exceedin g the usual. For example, the guidelines require the obligor to pay the cost of health care insurance for the children in addition to the comp uted perce ntage of child support. See Tenn. Co mp. R. & Regs. ch. 1240 2 4 .04(1)(a). The guidelines then state that extraordinary medical expenses not covered by insurance must also be added to the percentage calculated. It does not appear that the guidelines contemplate a category of ordinary medical expense that is not covered by insurance. The guidelines use of the word shall leaves a trial court no discretion in adding extraordinary educational exp enses to the obligor s compute d percenta ge. See, e.g., Louisville & Nashville R. Co. v. Hammer, 236 S.W.2d 971, 973 (Tenn. 1951) (holding use of shall in statute requires man datory compliance). We conclude that: 1) the guidelines contemplate private school tuition to be an extraordinary educational expense because the tuition exceeds o r departs from the cost of pub lic schoolin g; and that 2) the amount of the ex pense must be ad ded to the obligor s percentage o f child support computed under the guidelines. Application of the guidelines to this case would therefore result in the full amount of private school tuition being added to D r. Barnett s child support percentage. Moreover, Ms. Barnett suggests that Dr. Barnett agreed to Joshua s attendance at McCallie by signing a preliminary application for Joshua to attend McCallie when Joshua was in the fourth grade. At the time of the trial court s decision, however, it is clear from the record that Dr. Barnett did not approve of the enrollment and stated that he would not assist with the tuition. The trial court did not make an explicit finding that the parties had agreed to send Joshua to McCallie, nor does the record reveal such an agree ment. Cf. Brooks v. Brooks, 992 S.W.2d 403, 408 (Tenn. 1999) (holding that the trial court had implicitly found that Mr. Brooks had agreed to assume respon sibility for the private school expen ses). Although addition of the private school expenses is mandated, the guidelines do permit deviations. The guidelines provide that there is a rebuttable presumption in all child support cases that 3 Other reasons re quiring a n upw ard dev iation inclu de situation s in which the paren t paying support is not providing health insurance for the children; if the children are not staying overnight with the parent paying support for the average visitation period set forth in Tenn. Comp. R. & Regs. ch. 1240 2 4 .02(6); any other extraordinary expenses for the children if the court finds that equity re quires it. Tenn. Co mp. R. & Regs. ch. 1240 2 4 .04(1) (a), (b) & (d). -3- the amount of child support determined by an application of these guidelines is the correct amount to be awarded unless . . . the application of the guidelines would be unjust or inappropriate in a particular case. Tenn. Co mp. R. & Regs. ch. 1240 2 4 .01(2). Tennessee Code Ann. § 36-5-101(e)(1) also provides that the court awarding support may deviate from the guidelines in order to provide for the best interest o f the child(ren ) or the equity be tween the p arties. In Jones v. Jones, 930 S.W.2d 541 (Tenn. 1996), this Court addressed instances in which downward deviation to achieve equity would be appropriate. We noted that the guidelines expressly state three instances in which downward deviation might be necessary to provide for equity between the parties: (1) where DHS has taken custody of the child(ren) pursuant to a neglect, dependency, or abuse action; (2) where the child(ren) spend more visitation time with the obligor than is assumed by the guidelines; and (3) in cases in which the obligor is subjected to an extreme economic hardship, such as w here other children living with the obligor have extraordinary needs. Id. at 545. We found that this list, while not exhaustive, is a powerful indication of the types of situations w here dow nward de viation is ap propriate. Id. In Jones, however, the trial court attempted to achieve equity by considering the father s misdeeds. We held that downw ard deviation to achieve equity could not be based upon the fact that the father may not have been pe rfectly forthright concerning his finances and child care expenses, and [that] his spendin g habits [were not] a model of restraint. Id. We also emphasize that the issu e in Jones involved the prop riety of a downward deviation from the base child support percentage, and not from amo unts man datorily award ed for extrao rdinary expe nses. See id. at 542, 545. For purposes of determining the base child support percentage or a deviation therefrom, the guidelines state that the o bligee s inco me shou ld not be co nsidered. See Tenn. Co mp. R. & Regs. ch. 1240 2 4 .03(2). It is assumed under the guidelines that the obligee will be expending at least an equal percentage of net income for the support o f the children as the obligo r is expend ing. See Tenn. Comp. R. & Regs. ch. 1240 2 4 .03(2). The ration ale for giving trial courts less discretion in deviating downwardly from baseline child support has little application to downward deviation from a mandatory imposition of extraordinary educational expenses. The equity to be done in cases involving extraordinary educational expe nses is more closely linked to the guidelines assumption that the child supp ort award refle cts the respec tive financia l abilities of bo th parents. See Tenn. Comp. R. & Regs. ch. 1240 2 4 .03 (assumin g that the custodial parent will be expending at least an equal percentage of net income as the obligor-parent). This assumption do es not apply and wou ld necessarily fail if extraordinary expenses were to be tacked on arbitrarily under Tenn. Comp. R. & Regs. ch. 1240 2 4 .04(c). A parent who is paying increased support in the form of private school tuition is paying sums in addition to those of the -4- custodial parent. While the parent required to pay child support may be the person better able to bear the expense, this assumption will not be true in every case. Some obligor parents may have substantially less income than the custodial parent. The wholesale imposition of private school tuition on the obligor in these cas es could result in a tremendous disparity in the obligor s relative percentage of income contributed as child support even to the extent of absorbing every penny of the ob ligor s income. Strict application of the guidelines in this context could impoverish one parent. We are bound to refrain from an interpretation of the guidelines that would lead to an ab surd result. See Busines s Brokerage Ctr. v. Dixon, 874 S.W.2d 1, 5 (Tenn. 1994) (holding that when the [statutory] language produces an absurd or incongruous result when applied in specific factual situations, the intent of the Legislature will prevail over the literal language of the statute ). We conclude that it is appropriate to consider the income of the custodial parent in considering whether a downward deviation4 from the total child support award (percentage plus extraordinary educational expense) wou ld achieve equity. Consideratio n of both parents income recognizes the intent of the guidelines to ensure that, when parents live separately, the economic impact on the children is minimized and to the extent that either parent enjoys a higher standard of living, the child(ren) share(s) in that h igher standar d. Tenn. C omp. R. & Regs. ch. 124 0 2 4 .02(2)(e). Acco rdingly, if the equivalence or disparity in net incomes of the parties would make the allocation of all of the extraordinary expen se to the obligor unjust or inappropriate in a particular case, the presumption of correctness of the amount of sup port required by the application of the guidelines may be rebutted. We hold that w holesale im position o f priva te sch ool tu ition on a n oncu stodial par ent may, in some instances, constitute just such an unjust or inappropriate application of the guidelines that would warrant downward deviation. Downward deviation in this context would spread the cost of tuition equitably among the parties. Our holding is consistent with our long-established common law rule requiring a pa rent to prov ide supp ort in a manner commensu rate with his means and station in life. Nash, 846 S.W.2d at 805 (qu oting Evans v. Evans, 125 Tenn. 113, 119, 140 S.W. 745, 747 (1911) (internal quotatio ns omitted)). Applying these principles to this case, we hold that it would not be unjust or inappropriate to require the en tire amoun t of the private school tuiti on to be p aid by Dr. Barn ett. As stated above, Dr. Barnett s income was determined to be $209,000 per year. Ms. Barnett earns $28,000 per year and is dependent upon child support and alimony to meet the remainder of her needs and those of her children. The presu mption th at the percen tage amount of child su pport plus extraord inary educational expense is the correct amount of child su pport has not been rebutted. We therefore affirm the Cou rt of Appeals and rem and the case to the trial court for further proceedings consistent with this opinion. Costs of the appeal in th is Court are assessed against A ppellant, Robert Mc Alister Barnett. 4 Any departure from the guidelines m ust be justified by specific, preferably written, findings by the trial court that strict application of the gu idelines w ould be unju st or inapp ropriate. See Tenn. Code Ann. § 36-5-101(e)(1); Tenn. Comp. R. & R egs. ch. 1240 2 4 .02 (7). -5- ____________________________________ JANICE M. HOLDER, JUSTICE -6-

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