State of Tennessee o.b.o., Linda C. Britton v. Robert Eugene Kyer

• Court: Court of Appeals of Tennessee
• Decided: December 1, 1995
• Docket: 01A01-9507-CV-00293
• Status: Published

Opinion

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

2 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

3 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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