State of Tennessee Ex Rel. Inger Brown v. Larry W. Shipe, Jr.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 24, 2015 Session

STATE OF TENNESSEE EX REL. INGER BROWN v. LARRY W. SHIPE, JR.

Appeal from the Juvenile Court for Knox County

No. E-6994 Timothy E. Irwin, Judge

No. E2014-02064-COA-R3-JV-FILED-OCTOBER 29, 2015

The issue presented in this case is whether the trial court erred in its calculation of child

support when it omitted from the calculation support due from Larry W. Shipe, Jr.

(Father) during a period of time when he was incarcerated. We hold that the Child

Support Guidelines, Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii)(I) (2008),

which provide that “incarceration shall not provide grounds for reduction of any child

support obligation,” mandate that incarceration does not absolve an individual from

his/her obligation to pay child support. Accordingly, we vacate the trial court’s judgment

and remand for a recalculation of Father’s child support arrearage.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court

Vacated; Case Remanded

CHARLES D. SUSANO, JR., C.J., delivered the opinion of the court, in which D. MICHAEL

SWINEY and JOHN W. MCCLARTY, JJ., joined.

Inger Brown, Knoxville, Tennessee, appellant, pro se.

Larry W. Shipe, Jr., Knoxville, Tennessee, appellee, pro se.

Herbert H. Slatery III, Attorney General and Reporter, and Rebekah A. Baker, Senior

Counsel, Nashville, Tennessee, for the appellee, State of Tennessee ex rel. Inger Brown.

OPINION

I.

On April 16, 2014, the State of Tennessee, on behalf of Inger Brown, the

grandmother and legal custodian (Grandmother) of Father’s minor child, filed a petition

to set the child support obligation of Father. The state is providing child support

enforcement services to Grandmother pursuant to Title IV–D of the Social Security Act,

42 U.S.C. § 651 et seq., and Tenn. Code Ann. § 71-3-124(c) (2012). On June 23, 2014, a

hearing was held before the child support magistrate. Both Grandmother and Father were

present at the hearing. The magistrate set Father’s child support obligation at $299 per

month and awarded retroactive support from August 2007 until June 2014, but excluded

from the calculation the time Father was incarcerated, i.e., January 2009 through April

2013. The magistrate held that the total child support arrearage was $8,149 and ordered

Father to pay the arrearage at a rate of $51 per month, for a total prospective child

support payment of $350 per month.

Grandmother sought a rehearing by the trial court, arguing that the magistrate

erred in excluding, from the calculation of the child support arrearage, the period of time

that Father was incarcerated. The trial court entered an order affirming the magistrate’s

findings and recommendations in all respects. Grandmother timely filed a notice of

appeal.

II.

Our standard of review is de novo upon the record of the proceedings below;

however, the record comes to us with a presumption of correctness as to the trial court’s

factual determinations, a presumption we must honor unless the evidence preponderates

otherwise. Tenn. R. App. P. 13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181

(Tenn. 1995). There is no presumption of correctness as to the trial court’s legal

conclusions. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002); Campbell v.

Fla. Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). “Setting child support . . . is in the

sound discretion of the trial court and will not be disturbed on appeal in the absence of an

abuse of discretion.” State ex rel. Laxton v. Biggerstaff, No. E2009-01707-COA-R3-JV,

2010 WL 759842, at *2 (Tenn. Ct. App. E.S., filed Mar. 5, 2010) (citing State ex rel.

Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000)).

III.

Grandmother argues that the trial court erred by not charging Father with child

support during the approximately fifty-one months he was incarcerated. The state agrees

with Grandmother’s position, asserting in its brief that “[t]he language of Tennessee’s

child support guidelines, Tennessee case law, sound public policy, and persuasive

authority all support a finding that a parent should not be excused from supporting [his or

her] children during a term of incarceration.”

The Child Support Guidelines, as amended in 2008, provide, in pertinent part, as

follows:

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[D]etermination of willful and/or voluntary

underemployment or unemployment is not limited to choices

motivated by an intent to avoid or reduce the payment of

child support. The determination may be based on any

intentional choice or act that adversely affects a parent’s

income. Criminal activity and/or incarceration shall not

provide grounds for reduction of any child support

obligation. Therefore, criminal activity and/or incarceration

shall result in a finding of voluntary underemployment or

unemployment under this section, and child support shall be

awarded based upon this finding of voluntary

underemployment or unemployment.

Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(2)(ii)(I) (emphasis added). In Laxton,

this Court, addressing an incarcerated parent’s request “that child support payments be

suspended or reduced until such time that he is released from prison,” reviewed the

history of this issue in Tennessee, stating:

Under Tennessee law, there is no presumption that a parent is

willfully or voluntarily underemployed or unemployed. In re

K.O., No. M2007–01262–COA–R3–JV, 2008 WL 3069777,

at *4 (Tenn. Ct. App. M.S., July 31, 2008). The party

alleging that a parent is willfully or voluntarily

underemployed or unemployed carries the burden of proof.

Tenn. Comp. R. & Regs. § 1240–2–4–.04(3)(a)(2)(ii) (2008).

In State ex rel. C.M. v. L.J., No. M2005–02401–COA–R3–

JV, 2007 WL 1585170, at *2 (Tenn. Ct. App. M.S., May 31,

2007), the sole issue was “whether a parent who is

incarcerated for the commission of a crime is willfully or

voluntarily unemployed for purposes of child support.” This

court held:

Before the 2005 amendments [to the Tennessee

Child Support Guidelines], the courts declined

to hold that the commission of a crime, without

more, that resulted in the parent’s incarceration,

was sufficient to sustain a finding of willful or

voluntary unemployment. See Pennington v.

Pennington, No. W2000–00568–COA–R3–

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CV, 2001 WL 277993, at *4 (Tenn. Ct. App.

March 14, 2001). The Pennington court

declined to find Mr. Pennington voluntarily

unemployed as a result of the act leading to his

incarceration, reasoning:

“Mr. Pennington did not intend to become

incarcerated and unemployed when he made the

choice to use cocaine; thus, the record does not

support a finding that Mr. Pennington was

willfully and voluntarily unemployed.”

Pennington, 2001 WL 277993, at *4; see also

Coates v. Coates, No. M2001–01928–COA–

R3–CV, 2002 WL 31528512 (Tenn. Ct. App.

Nov. 15, 2002); Johnson v. Johnson, No.

M2003–00866–COA–R3–CV, 2004 WL

2218478 (Tenn. Ct. App. Oct. 2, 2004). . . .

Pennington and its progeny clearly state that a

parent is not willfully or voluntarily

unemployed as a result of the act leading to

incarceration. Thus, the question is whether the

2005 amendments to the regulations supplant

Pennington and its progeny. We have

determined they do not. Our determination is

based on two factors.

First, we note the language in the 2005

regulations is merely permissive. Instead of

using mandatory terminology, the 2005

amendments are based upon the permissive

phrases “can be” and “is not limited to.” . . .

The second factor in our determination is that

the State has the burden of proof.

Based upon the foregoing analysis, we conclude

that without other evidence, direct or

circumstantial, of willful or voluntary

underemployment or unemployment, the mere

fact a parent is incarcerated for committing a

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crime is insufficient to sustain a finding that the

commission of the crime constitutes a willful or

voluntary attempt to be underemployed or

unemployed for purposes of child support. . . .

Last year, in the context of a termination of parental rights

case, another panel of this court in In re C.T.B., No. M2009–

00316–COA–R3–PT, 2009 WL 1939826 (Tenn. Ct. App.

M.S., July 6, 2009), found “the reasoning employed [in

Pennington and State ex rel. C.M. v. L.J.] . . . to be

persuasive. . . .” Id. at *5.

* * *

The question of whether incarceration provides grounds for

reduction of support was also raised in Langford v. Langford,

No. M2007–01275–COA–R3–CV, 2008 WL 4367576 (Tenn.

Ct. App. M.S., Sept. 23, 2008). In Langford, . . . . [w]e held

that “Father’s imprisonment does not automatically work to

terminate his duty to support.” Id. at *2. . . .

Child support in this state is governed by Tenn. Code Ann. §

36–5–101 (Supp. 2009). “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)(A). “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.” Barnett v. Barnett, 27 S.W.3d 904, 906

(Tenn. 2000) (citing Nash v. Mulle, 846 S.W.2d 803, 804

(Tenn. 1993)).

The guidelines have been revised and directly address the

question of whether support should be reduced based upon

incarceration. The guidelines provide specifically that

. . . [c]riminal activity and/or incarceration shall

not provide grounds for reduction of any child

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support obligation. Therefore, criminal activity

and/or incarceration shall result in a finding of

voluntary underemployment or unemployment

under this section, and child support shall be

awarded based upon this finding of voluntary

underemployment or unemployment.

Tenn. Comp. R. & Regs. § 1240–2–4–.04(3)(a)(2)(ii)(I)

(2008). The cited section does not contain permissive

language as discussed in our prior opinions on this subject.

Rather, the term “shall” is utilized. In our view, the

guidelines’ use of that term leaves the trial court with no

discretion. See, e.g., Barnett, 27 S.W.3d at 906 (citing, e.g.,

Louisville & Nashville R. Co. v. Hammer, 191 Tenn. 700,

236 S.W.2d 971, 973 (Tenn. 1951) (holding use of “shall” in

statute requires mandatory compliance)).

State ex rel. Laxton, 2010 WL 759842, at *2-5 (brackets in Laxton; some internal

citations omitted); see also Meeks v. Meeks, No. M2013-01203-COA-R3-CV, 2014 WL

931241, at *4 (Tenn. Ct. App. M.S., filed Mar. 6, 2014) (“The Guidelines squarely

address the question of whether child support should be reduced based upon criminal

activity. . . . [Their] use of the term “shall” requires mandatory compliance.”).

We continue to adhere to our views expressed in Laxton. The Child Support

Guidelines and applicable precedents are clear and mandatory. Under these authorities,

we must remand this case to the trial court for a determination of the appropriate amount

of Father’s child support arrearage, including the amount due during the period of time

Father was incarcerated.

IV.

The judgment of the trial court is vacated and the case remanded for a

recalculation of Father’s child support arrearage and payment of same, consistent with

this opinion. Costs on appeal are assessed to the appellee, Larry W. Shipe, Jr.

_____________________________________

CHARLES D. SUSANO, JR., CHIEF JUDGE

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