STATE OF TENNESSEE, obo )
LINDA C. BRITTON, )
)
Plaintiff/Appellee, ) Appeal No.
) 01-A-01-9507-CV-00293
v. )
) Coffee Circuit
ROBERT EUGENE KYER, ) No. 1545-D
)
Defendants/Appellant. )
FILED
December 1,
1995
COURT OF APPEALS OF TENNESSEE
Cecil Crowson, Jr.
MIDDLE SECTION AT NASHVILLE Appellate Court Clerk
APPEAL FROM CIRCUIT THE COURT FOR COFFEE COUNTY
AT MANCHESTER, TENNESSEE
THE HONORABLE GERALD L. EWELL, SR., JUDGE
CHARLES W. BURSON
Attorney General & Reporter
JAMES H. TUCKER, JR.
Assistant Attorney General
1501 Parkway Towers
404 James Robertson Parkway, Suite 1510
Nashville, Tennessee 37243-0499
ATTORNEY FOR PLAINTIFF/APPELLEE
CATHY GRADY CONLEY
200 North Washington
Tullahoma, Tennessee 37388
ATTORNEY FOR DEFENDANT/APPELLANT
AFFIRMED AS MODIFIED
AND REMANDED
SAMUEL L. LEWIS, JUDGE
O P I N I O N
This cause commenced when plaintiff Linda Britton filed a
petition to establish paternity and for child support in West
Virginia, pursuant to that state's Uniform Reciprocal Support Act
(URESA). The petition was forwarded to the Circuit Court for
Coffee County, Tennessee for prosecution.
Following blood tests of the parties and the child that
showed the probability of defendant Robert Eugene Kyer being the
father had a probability of 99.99%, an "Agreed Order of Paternity"
was entered.
Thereafter, a hearing was held to determine the amount and
necessity of the support order. The defendant introduced evidence
and a stipulation of the parties regarding the amount of his
income. He introduced evidence for the ten years immediately prior
to the hearing and the parties stipulated the amount of defendant's
earnings for the first eight years of the child's life. The amount
of defendant's income was uncontradicted by any proof in the
record.
The trial court awarded plaintiff judgment in the amount of
$41,940.98 for eighteen years of child support based on 21% of
$199,718.93, which was defendant's total income from September 1,
1975 through December 1994.
After defendant had appealed to this court, the trial court
on 10 April 1995, sua sponte wrote defendant's counsel and the
Assistant District Attorney, in pertinent part, as follows:
Dear Counsel:
It has been pointed out to me recently by Professor
Don Paine that an amendment to the child support
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guidelines effective December 14, 1994 provides in
paragraph (1) chapter 1240-2-4-.04(e) as follows:
"In cases where initial support is being set, a
judgment must be entered to include an amount due
for monthly support from the date of the child's
birth or date of separation or date of abandonment
whichever is appropriate, until the current support
order is entered. This amount must be calculated
based upon the guidelines using the average income
of the obligor over the past two (2) years and is
presumed to be correct unless rebutted by either
party.
The trial court went on to state that the order previously
entered deviated from the guidelines in as much as his order
covered a period of time in excess of two years. The trial court
then asked the Assistant District Attorney to draw an order
amending the judgment, in compliance with the guideline quoted
above.
The trial court then entered a "Amended Supplemental Decree"
in which he found that the amount of defendant's income for the
preceding two years was $22,238.00 or $1,853.00 per month, and
after applying the guidelines to the income, found that the support
of $314.00 per month was justified pursuant to the guidelines. The
trial court further found that the defendant owed for 216 months
and that the judgment should be $67,824.00, and entered a
supplemental decree awarding judgment in the amount of $67,824.00
to the petitioner.
The amendment to chapter 1240-2-4-.04(e) provides that the
child support will be based upon the "average income of the obligor
over the past two years and is presumed to be correct unless
rebutted by either party." (emphasis supplied)
As we have stated, the uncontradicted evidence in this
record shows that the income of the defendant obligor for the
eighteen year period was $199,718.93, for the period September 1975
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through December 1994. Applying the guidelines of 21% this
calculates to $41,940.98.
The trial court erred in applying presumption since there
is uncontradicted proof as to the amount of the defendant's income.
The presumption was rebutted.
On remand, the trial court shall enter judgment for the
plaintiff in the amount of $41,940.98, and shall set a reasonable
payment schedule based upon the ability of the defendant to pay.
We have considered each of the issues presented by the
defendant. We are of the opinion that the preponderance of the
evidence fully supports the findings of the trial court, and the
remaining issues are without merit.
It therefore results that the judgment of the trial court
as modified is affirmed and the cause is remanded to the trial
court for any further necessary proceedings. Costs on appeal are
taxed to the plaintiff/appellee.
__________________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_________________________________
BEN H. CANTRELL, JUDGE
_________________________________
WILLIAM C. KOCH, JR., JUDGE
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