Chris Hickman v. Misty Willis ( 2003 )


Menu:
  •                  IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs August 11, 2003
    CHRIS HICKMAN v. MISTY WILLIS
    Appeal from the Juvenile Court for Hickman County
    No. 02-1441J, Samuel H. Smith, Judge
    No. M2003-00574-COA-R3-JV - Filed August 27, 2003
    Mother appeals the trial court action of requiring non-custodial obligor father to pay only one-half
    of the premium for medical insurance covering their minor child and further appeals the amount of
    support arrearage. As the child support guidelines are mandatory in requiring that non-custodial
    obligor parent is responsible for the full premium of medical insurance, the action of the trial court
    is modified accordingly and in all other respects affirmed.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
    Modified and Remanded
    WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR . and
    PATRICIA J. COTTRELL, JJ., joined.
    Neal Lovlace, Centerville, Tennessee, for the appellant, Misty Willis.
    Chris Hickman, Duck River, Tennessee, Pro Se.
    OPINION
    Chris Hickman and Misty Willis are parents of a minor child now nine years of age.
    Apparently Hickman had been previously ordered by the Juvenile Court of Hickman County to pay
    child support for the minor child and had failed to do so. He was cited for contempt of court and an
    Order was entered April 24, 2000, finding him guilty of thirteen counts of contempt of court and
    sentencing him to 130 days in the county jail. A judgment in the amount of $1600.02 for child
    support arrearage was entered against him and his sentence to the county jail was stayed conditioned
    upon his compliance with the future child support order. He was then ordered in accordance with
    the Tennessee Child Support Guidelines to pay $87 per week current support and $20 additional per
    week to be applied to the arrearage.
    Mr. Hickman then filed a pro se petition to establish specific visitation rights which was met
    by an Answer and Counter-Petition filed January 2, 2003. The answer denied the right of the
    Petitioner to extended visitation and the Counter-Petition complained that Mr. Hickman was living
    with a woman to whom he was not married, and that both were heavy smokers which aggravated the
    allergy and asthma condition of the child. Prayers for relief included:
    2.     That the Counter-Respondent be required to increase his child support to an
    extent that will pay the additional expense of having C. added to her mother
    and/or stepfather’s health insurance plan;
    3.     That Counter-Respondent be required to reimburse your Counter-Petitioner
    for health expenses incurred on behalf of C.;
    .....
    5.     That a judgment be granted against the Counter-Respondent for the cost of
    this cause, the medical expenses and attorney’s fees of Counter-Petitioner;
    6.     That the Counter-Respondent be required to reimburse Counter-Petitioner for
    any medical, dental or eye glass expenses she incurs on behalf of C. that is
    not otherwise covered by insurance.
    The case was heard on January 15, 2003, with pertinent portions of the court Order
    providing:
    3.     That the minor child is covered under TennCare and the premium for such
    coverage from January 2001 through April 2002 was $150.00 per month and
    the premium from May 2002 to the current date is $100.00 per month;
    4.     That the mother has incurred $1,631.18 in medical expenses actually paid on
    behalf of the parties’ child and father should reimburse mother for one-half
    (½) of that amount, or $815.90;
    5.     That the parties should equally share in the medical insurance premiums and
    uncovered medical expenses;
    ....
    2.     A judgment of $815.90 should be entered against the Father, Chris Hickman,
    for which execution may issue if payments are missed;
    3.     The Respondent, Chris Hickman, shall increase his child support payment by
    $11.54 per week ($50.00 per month) in order to pay on the $815.90 judgment
    and shall increase his child support an additional $11.54 per week ($50.00 per
    month) in order to reimburse Mother for one-half (½) of the TennCare
    -2-
    premium for the minor child. Therefore, Respondent, Chris Hickman, shall
    pay a total of $110.08 per week, same being $98.54 for current support, and
    $11.54 per week for the $815.9 judgment rendered herein, beginning January
    24, 2003 and made payable to:
    Central Child Support Receipting Unit
    P. O. Box 305200
    Nashville, TN 37229
    Case No. 65017
    Misty Willis appeals the decision of the trial court asserting as issues:
    1.     Whether the Trial Court erred in failing to require the non-custodial parent
    to provide health care coverage for the parties’ minor child;
    2.     Whether the Trial Court erred in requiring the parties to divide the premium
    for the TennCare coverage custodial parent had acquired for the parties’
    child;
    3.     Whether the Trial Court erred in failing to require the non-custodial parent
    to reimburse custodial parent for TennCare premiums paid;
    Whatever discretion a trial court may have had in setting child support prior to the
    promulgation of the Child Support Guidelines by the Department of Human Services did not survive
    legislative enactment of Tennessee Code Annotated section 36-5-101(e)(1).
    Child Support Guidelines have the force of law. Jahn v. Jahn, 
    932 S.W.2d 939
    , 943 (Tenn.Ct.App.1996). Any deviation from the guildelines must be explicitly
    stated on the record. Tenn.Code Ann. § 36-5-101(e)(1). If the guidelines are not
    followed, the court must make written specific findings that their application would
    be unjust or inappropriate, stating the amount that should be awarded under the
    guildelines, along with justification for the deviation. Tenn., Comp. R. & Regs. Ch.
    1240-2-4-.02(7).
    State ex rel. Wrzesniewski v. Miller, 
    77 S.W.3d 195
    , 197 (Tenn.Ct.App.2001).
    The Child Support Guidelines promulgated by the Department of Human Services and
    mandated by Tennessee Code Annotated section 36-5-101(e)(1) provide, in pertinent part:
    Rule 1240-2-4-.03
    ....
    -3-
    (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 below, then this is the amount of the child support
    award.
    1240-2-4-.04 CRITERIA FOR DEVIATION FROM GUIDELINES
    (1)     Since these percentage amounts are minimums, the court shall increase the
    award calculated in Rule 1240-2-4-.03 for the following reasons:
    (a)     If the obligor is not providing health insurance for the child(ren), an
    amount equal to the amount necessary for the obligee to obtain such
    insurance shall be added to the percentage calculated in the above
    rule.
    Child Support Guidelines Rules 1240-2-4-.03 and 1240-2-4-.04.
    Appellant asserts that Mr. Hickman was under a decree to pay for health care insurance prior
    to the Order of January 27, 2003, but the record before the Court does not bear this out. The first
    order that is in this record is the Order of April 24, 2002, which is a form order wherein a check
    appears beside number 17. providing “health insurance is ordered as follows:” with a sub-provision
    thereafter reciting under a check mark “as previously ordered on _______________________.” The
    Order further provides:
    11.     The Respondent shall pay child support in accordance with the Tennessee
    Child Support Guidelines, in the amount of $ 107.00 per week , being
    $ 87.00 for current support, $ 20.00 toward the judgment, and $______
    for medical insurance, beginning April 26, 2002 and made payable to:
    Central Child Support Receipting Unit
    P O Box 305200
    Nashville, TN 37229
    -4-
    This failure of the prior Orders to disclose a prior court obligation specifically obligating
    Hickman to pay medical insurance premiums is of no significance in regard to prospective child
    support but is significant in regard to back child support.
    This Court has held:
    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 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 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
    -5-
    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).
    State, Dept. of Human Services v. Springs, 
    976 S.W.2d 654
    , (Tenn.Ct.App.1997).
    Prospectively the trial court must comply with section 1240-2-4-.04 of the Child Support
    Guidelines, and, in addition to the 21% of net income must require Mr. Hickman to pay “an amount
    equal to the amount necessary for the obligee to obtain such insurance,” unless the court makes the
    necessary findings that a deviation is justified.
    As regards the remainder of the trial court Order requiring Appellee to reimburse mother for
    only one-half of the total of $1631.18 in medical expenses incurred, and the action requiring him to
    reimburse mother for only one-half of the TennCare premium previously paid for the child, we are
    not prepared to say that the trial court has abused its discretion. The judgment of the trial court will
    be modified in order to comply from and after the Order of January 27, 2003, with the provisions of
    Child Support Guideline 1240-2-4-.04(1)(a). In all other respects, the judgment of the trial court is
    affirmed.
    The case is remanded to the trial court for further proceedings consistent with this opinion.
    Costs of the appeal are assessed to Chris Hickman.
    ___________________________________
    WILLIAM B. CAIN, JUDGE
    -6-
    

Document Info

Docket Number: M2003-00574-COA-R3-JV

Judges: Judge William B. Cain

Filed Date: 8/11/2003

Precedential Status: Precedential

Modified Date: 4/17/2021