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Thompson v. Hulbert, No. W2000-02675-COA-R3-JV (Tenn.App. 08/09/2002)
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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON November 27, 2001 Session
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No. W2000-02675-COA-R3-JV
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2002.TN.0001235 <http://www.versuslaw.com>
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August 9, 2002
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TROY ALLEN THOMPSON
v.
ELISA CONNELL HULBERT
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SYLLABUS BY THE COURT
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This is a constitutional challenge to the Tennessee Child Support
Guidelines, Tenn. Comp. R. & Regs. 1240-2-4. While the mother was married to another
man, she and the father had an extra-marital relationship. The child at issue in this case
was born of that relationship. The father and mother never married each other. Later the
father married a different woman and had two other children. Under the Tennessee Child
Support Guidelines, the father's financial support of the children born of
his marriage could not be considered in determining the amount of court-ordered child
support for his first child. The father argued to the juvenile court that
the Guidelines treated his later-born children less favorably than his first child and,
therefore, violated his children's constitutional rights to equal protection.
The juvenile court rejected this argument and ordered child support
in accordance with the Guidelines. The father now appeals. We reverse, finding that the
Tennessee Child Support Guidelines violate the equal
protection guarantees of the federal and state constitutions.
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Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Juvenile Court Reversed and
Remanded
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Appeal from the Juvenile Court for Shelby County No. L8261 A. V. McDowell, Judge
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David A. McLaughlin and Gail R. Sevier, Memphis, Tennessee, for the Appellant, Troy
Allen Thompson.
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Paul G. Summers, Attorney General and Reporter, and Kim Beals, Assistant Attorney
General, Nashville, Tennessee, for the Attorney General's Office.
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The opinion of the court was delivered by: Holly Kirby Lillard, Judge
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Holly Kirby Lillard, J., delivered the opinion of the court, in which W. Frank
Crawford, P.J., W.S., and David R. Farmer, J., joined.
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OPINION
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In 1993, Petitioner/Appellant Troy Thompson ("Thompson")
fathered a son, Nickalaus, with Respondent/Appellee Elisa Hulbert ("Hulbert").
At the time, Hulbert was married to another man. Nickalaus's true parentage was not
determined until 1996, when a blood test confirmed that Thompson is his
father. Thompson agreed to pay $375 per month for child support.
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In the meantime, Thompson had married Andrea Thompson and
they had two children. In July 2000, for reasons not apparent from the record, Thompson
and Hulbert filed petitions in juvenile court to establish Thompson's
parentage of Nickalaus. In addition, Hulbert requested that the juvenile court set an
appropriate amount of child support for Nickalaus. By order
dated August 1, 2000, the juvenile court legitimated Nickalaus and scheduled a hearing to
determine the amount of Thompson's child support
obligation. At this hearing, Thompson testified regarding his support
obligations for his current household, including the expenses for the two infant sons born
of his marriage to Andrea. Thomson testified that if he were required to pay the
additional $300 per month in child support required under the
Tennessee Child Support Guidelines, the result would be
"a slow death...for my financial situation." The juvenile court was unmoved, and
found that Thompson failed to show the type of extreme financial hardship
that would permit a downward deviation from the Guideline amount. The juvenile court also
found that the Guidelines were "not unconstitutional to the extent
[they fail] to take into account the children of petitioner's present marriage in setting
the appropriate amount of child support." From this
order, Thompson now appeals.
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In this appeal, Thompson argues that Tennessee's Child Support
Guidelines, by prohibiting the trial court from taking into account children who are not
the subject of a child support order, violates the
constitutional rights to equal protection of the children born
of his marriage. The State argues that there is a rational basis for this prohibition in
the Guidelines and that the Guidelines are not unconstitutional. In
addition, the State argues that the children born of Thompson's marriage
have not suffered any concrete injury, that therefore the issue of the constitutionality
of the Guidelines is not properly before the Court. The State also argues that the issue
is not properly before the Court because the children born of Thompson's
marriage are not parties to this case.
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Since this case was tried by the court sitting without a jury, the court's factual
findings are reviewed de novo accompanied by a presumption of correctness unless the
preponderance of the evidence is otherwise. Campbell v. Fla. Steel Corp., 919 S.W.2d 26,
35 (Tenn. 1996); Tennessee R. App. P. 13(d). The trial court's legal conclusions are
reviewed de novo with no presumption of correctness. Campbell, 919 S.W.2d at 35.
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We address first the initial issues raised by the State, namely whether the issue of
the constitutionality of the Guidelines is properly before this Court. Since Thompson
is required to pay more child support for Nickalaus than would be required if the trial
court took into account the support he pays for the children born of his marriage, we find
that he has suffered a concrete injury and that he has standing to raise the issue of the
constitutionality of the Guidelines. Accordingly, we will consider the issue on its
merits.
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The Tennessee Child Support Guidelines, Tenn. Comp. R.
& Regs. 1240-2-4, provide a means of computing child support
based on a percentage of the obligor parent's net income. In calculating net income, the
Guidelines provide:
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Net income is calculated by subtracting from gross income of the obligor FICA..., the
amount of withholding tax deducted for a single wage earner claiming one withholding
allowance..., and the amount of child support ordered pursuant
to a previous order of child support for other
children...Children of the obligor who are not included in a decree of child
support shall not be considered for the purposes of reducing the obligor's
net income or in calculating the guideline amount. In addition, these children should not
be considered by the court as a reason for deviation unless they meet the requirements of
rule 1240-2-4-.04(4) [relating to extreme financial hardship]. Tenn. Comp. R. & Regs.
1240-2-4-.03(4) (emphasis added).
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The obligor parent's net income is then multiplied by a percentage which is based on
the number of children subject to the order, as follows:
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No. of children 1 2 3 4 5 or more
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% of income 21% 32% 41% 46% 50%
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Assuming that there are no circumstances which warrant deviating from the Guidelines,
this is the method used to calculate the amount of the child support
award.
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As noted above, in determining the amount of child support,
the Guidelines prohibit the trial court from considering the parent's support of other
children unless the other children are covered by a previous order of child support.
Thompson argues that this provision in the Guidelines violates the equal
protection guarantees of the 14th Amendment of the U.S. Constitution and
Article XI, Section 8 of the Tennessee Constitution. As stated in his brief, "[t]he
question for the Court is whether the Tennessee Child Support
Guidelines grant a special right to children under a `court order of support' while
simultaneously failing to provide the same right to the children of an obligor parent who
are not subject to an order of support."
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We begin with the presumption that the Guidelines are constitutional. See Town of
Huntsville v. Duncan, 15 S.W.3d 468, 471 (Tenn. Ct. App. 1999). "There is a strong
presumption in favor of the constitutionality of acts passed by the Legislature and its
acts will not be held unconstitutional merely for reasons of policy."
Bozeman v. Barker, 571 S.W.2d 279, 282 (Tenn. 1978). Thompson does not argue
that a fundamental right is involved, nor does he argue that the Guidelines create "a
classification involving a `suspect' or `protected' class, such as race or national
origin." See Town of Huntsville, 15 S.W.3d at 472. Therefore, our review is limited
to whether there is a rational basis for the Guideline's preferential treatment of
children covered by court-ordered child support. Id.
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Prior to their revision in 1994, the Guidelines, while providing a deduction from net
income for a previous order of child support, made no mention
of non-ordered or "voluntary" child support. The
Court in Adams v. Reed questioned the "rationale for excluding other dependent
children which a debtor is actually supporting just because he is not under a `previous
order of child support.'" 874 S.W.2d 61, 63 (Tenn. Ct.
App. 1993). The Court held that evidence that the parent was supporting two other
custodial children was sufficient to overcome the presumption in favor of the Guideline
amount. Id. at 65. In response to the Court's decision in Adams, the Guidelines were
revised to specifically exclude non-ordered support from consideration either in
calculating net income or in deviating from the Guideline amount.
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Recently, the Eastern Section of this Court addressed a similar constitutional
challenge to the Child Support Guidelines. See Gallaher v
Elam, No. E2000-02719-COA-R3-CV, 2002 Tenn. App. LEXIS 94 (Tenn. Ct. App. Jan. 29, 2002).
In that case, the father was married and had three other children at the time he fathered
a fourth child out-of-wedlock. Id. at *3. The Referee ordered child support
in the amount determined by the Guidelines. Id. The juvenile court, however, found that
Regulation 1240-2-4-.03(4) violated the equal protection
guarantees of the state and federal constitutions. Id. The State appealed and this Court
affirmed holding that "[a]ll children of the same parent have the right to share
fairly with their siblings in their common parent's resources." Id. at *7 (quoting
State ex rel. Randolph v. Poteet, No. 01-A-01-9808-JV-00419, 1999 Tenn. App. LEXIS 176, at
*24 (Tenn. Ct. App. Mar. 17, 1999) (Koch, J., concurring)).
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We likewise find no rational basis for flatly prohibiting the trial court from
considering a parent's support of other children, where such support may be legally
mandated, as in Thompson's support of the children born of his marriage,
even though these children are not the subject of an order of child support.
The State argues that children living with a parent may not need the same level of
support. Even if true, this does not justify prohibiting the trial court from considering
such children at all in the calculation of child support. See
State ex rel. Randolph v. Poteet, No. 01-A-01-9808-JV00419, 1999 Tenn. App. LEXIS 176, at
*23 (Tenn. Ct. App. Mar. 17, 1999) (Koch, J., concurring). Therefore, we reverse the
judgment of the juvenile court, and find the Guidelines an unconstitutional
violation of the equal protection guarantees insofar as they
prohibit the trial court from considering Thompson's legally mandated
support of the children born of his marriage. The cause is remanded to the juvenile court
for a redetermination of the amount of child support in light
of this ruling.
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For the foregoing reasons, the decision of the juvenile court is reversed. The cause
is remanded to the juvenile court for further proceedings consistent with this opinion.
Costs are taxed to the appellee, State of Tennessee, for which execution may issue if
necessary.
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20020809
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