Larry Aubrey Henson v. Elizabeth Ellen Sorrell

• Court: Court of Appeals of Tennessee
• Decided: February 4, 1999
• Docket: 02A01-9805-JV-00135
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON JANUARY 1999 SESSION FILED -------------------------------------------------------------------------

February 4, 1999

Cecil Crowson, Jr. Appe llate Court C lerk LARRY AUBREY HENSON, ) ) Shelby Juvenile No. H331 Respondent/Appellant ) ) Appeal No. 02A01-9805-JV-00135 v. ) ) ELIZABETH ELLEN SORRELL, ) ) Petitioner/Appellee )

APPEAL FROM THE JUVENILE COURT OF SHELBY COUNTY AT MEMPHIS, TENNESSEE THE HONORABLE HAROLD HORNE, JUDGE

For the Appellant: Larry Henson, Pro Se 5973 Poplar Pike Ext. #8 Memphis, TN 38119

For the Appellee: No appearance.

AFFIRMED

WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

W. FRANK CRAWFORD, JUDGE

DAVID R. FARMER, JUDGE OPINION

The child of these parties, who were never married to each other, was born

March 11, 1996. The paternity issue was determined in June, 1996 by the

Juvenile Court, which also directed the payment of child support. The appellant

questioned his liability for support because the child was conceived without his

consent. He did not prevail.

The matter then progressed to the Circuit Court where the appellant filed an

action for damages against his paramour, alleging promissory fraud, fraudulent

concealment, breach of contract, conversion and intentional infliction of

emotional distress arising from her failure to inform the appellant that she was

no longer practicing birth control. A merit trial resulted in a judgment against

the appellant. That case was also appealed and the judgment was affirmed.

All of which brings us to the instant case, wherein the Juvenile Court

heard the petition of Sorrell for an increase in child support and for termination

of visitation, and the petition of the appellant for an award of custody, or

increased visitation privileges. The Court increased the support from $300.00

monthly, which had previously been agreed upon, to $552.30 [21%] per month,

in accordance with the Guidelines, and modified the existing visitation

schedule.

Our review of the findings of fact made by the trial Court is de novo upon

the record of the trial Court, accompanied by a presumption of the correctness

of the finding, unless the preponderance of the evidence is otherwise. TENN. R.

APP. P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.

1996).

Although the appellant presents for review a number of issues, the thrust

of his argument is directed to the asserted inapplicability of the Guidelines

2 because of the failure of the appellee to prove a change in her circumstances

which would justify the increase. He also argues, in effect, that he was given

short shrift in the trial Court because he was not allowed to present proof.

As to the latter argument, the record reveals that the appellant is

mistaken. The Court pointedly asked the appellant “are you putting on any

proof at this time?” to which he replied, “No, your Honor. I said those things1

and I stand by them. I believe that 21% is nothing but disguised state slavery,

but aside from that we have an agreement and she needs to stick by it. Just to

come in here and say, I changed my mind is not a valid reason.”

The Guidelines are examined closely in Jones v. Jones, 930 S.W.2d 541

(Tenn. 1996), which held that “there can also be no doubt that the General

Assembly intended that these guidelines control the amount awarded as child

support.” The Guidelines are rebuttable, T.C.A. § 36-5-101(e)(1), but if

deviated from the Court is required to make written findings that they would be

unjust or inappropriate in “order to provide for the best interest of the child(ren)

or the equity between the parties.”

The appellant argues that no change in circumstances was shown since

the entry of the agreed judgment. He also argues that the Court erred in holding

that the appellee was not required to prove a change in circumstances as a

condition precedent to modification of the award. The thrust of his argument is

simply that he and the appellee agreed upon $300.00 per month child support,

and there the matter ends unless the appellee can show changed circumstances

which justify an increase. The difficulty with this argument is to be found in

the fact that the initial judgment, entered by consent, provided that the “child

support payments shall be worked out between the parties by agreement.” The

1 The appellee testified that the appellant stated he would leave, etc.

3 parties thereafter negotiated, and agreed upon $300.00, without further

involvement by the Court. Somewhat strangely, the parties, and the trial Court

as well, apparently assumed that the support payment of $300.00 monthly had

been ordered by the Court and thus was subject to modification.

Since the amount of support had never been adjudicated, nor had the

agreement of the parties as to child support been judicially approved, it

necessarily follows that the trial Court properly fixed the amount in accordance

with the Guidelines. There was no evidence formally presented that a deviation

was appropriate, and we find nothing in the record to justify a deviation. The

argument that the Guidelines are “disguised state slavery” is not a sufficient

ground to rebut the presumption of their applicability.

With respect to the visitation schedule, we have examined the record

carefully and cannot find that the evidence preponderates against the judgment.

The remaining issues have been considered, none of which affect the judgment,

which is affirmed at the costs of the appellant.

_______________________________ William H. Inman, Senior Judge

_______________________________ W. Frank Crawford, Judge

_______________________________ David R. Farmer, Judge