Barnett v. Barnett

• Decision Date: 05 September 2000
• Citation: 27 S.W.3d 904
• Parties: Robert McAlister BARNETT, III v. Paula Lynn BARNETT.
• Court: Tennessee Supreme Court

27 S.W.3d 904

Robert McAlister BARNETT, III v. Paula Lynn BARNETT.

Supreme Court of Tennessee, at Knoxville.

September 5, 2000.

D. Mitchell Bryant, Cleveland, Tennessee, Russell Theodore King, Chattanooga, Tennessee, for appellant, Robert McAlister Barnett, III.

Glenna M. Ramer and Sandra Jean Bott, Chattanooga, Tennessee, for appellee, Paula Lynn Barnett.

OPINION

JANICE M. HOLDER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and FRANK F. DROWOTA, III, ADOLPHO A. BIRCH, Jr., and WILLIAM M. BARKER, JJ., joined.

We granted this appeal to determine: 1) whether private school tuition constitutes an extraordinary educational expense under the Tennessee Child Support Guidelines; and 2) whether the noncustodial parent should be required to pay those expenses in addition to child support based upon the percentage of net income of the noncustodial parent. We hold that pursuant to the Tennessee Child 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 school tuition to be paid by the obligor-father. We hold, however, that in appropriate cases a court may apportion the amount of tuition between the parties.

BACKGROUND

Paula Lynn Barnett (Ms. Barnett) and Robert McAlister Barnett, 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 required 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 income 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 Joshua's tuition at McCallie, a private school, was an extraordinary educational expense. The court, however, ordered the tuition to be paid by Paula Barnett from the $3,000 monthly child support.

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.

ANALYSIS

We granted this appeal to decide the following issues:

Did the Court of Appeals err in finding private school tuition to be an extraordinary educational expense and in further requiring the father to pay those expenses in addition to guidelines child support?

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, 804 (Tenn.1993).

Child support in Tennessee is governed by Tenn.Code Ann. § 36-5-101. "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 Ann. § 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 guidelines carry what amounts to a legislative mandate. 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 support award amount." Tenn. Comp. R. & Regs. ch. 1240-2-4-.03(2). The flat 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 support 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 percentage amounts are minimums, the court "shall increase" the award calculated in Tenn. Comp. R. & Regs. ch. 1240-2-4-.03 for several specified reasons. At issue in this case is the provision requiring that "extraordinary educational expenses and extraordinary medical expenses not covered by insurance shall be added to the percentage calculated in the above rule." Tenn. Comp. R. & Regs. ch. 1240-2-4-.04(1)(c).³

The guidelines appear to equate "extraordinary" with "additional" or "exceeding the usual." For example, the guidelines require the obligor to pay the cost of health care insurance for the children in addition to the computed percentage of child support. See Tenn. Comp. 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 expenses to the obligor's computed percentage. See, e.g., Louisville & Nashville R. Co. v. Hammer, 191 Tenn. 700, 236 S.W.2d 971, 973 (1951) (holding use of "shall" in statute requires mandatory compliance). We conclude that: 1) the guidelines contemplate private school tuition to be an "extraordinary educational expense" because the tuition exceeds or departs from the cost of public schooling; and that 2) the amount of the expense must be added to the obligor's percentage of 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 Dr. 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 agreement. 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 responsibility for the private school expenses).

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 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. Comp. 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 of the child(ren) or the equity between the parties."

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 where 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 where downward deviation is appropriate. Id.

In Jones, however, the trial court attempted to achieve equity by considering the father's misdeeds. We held that downward deviation to achieve equity could not be based upon the fact that the father "may not have been perfectly forthright concerning his finances and child care...