# FILED
February 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk STATE OF TENNESSEE, CHILD ) SUPPORT SERVICES OF ) DAVIDSON COUNTY, EX REL. ) CETTA COBBLE JACKSON, ) ) Petitioner/Appellee, ) Appeal No. ) 01-A-01-9706-JV-00267 VS. ) ) Davidson Juvenile HUBERT RUSSELL, ) No. 185-447-84 ) Respondent/Appellant. ) ) IN THE MATTER OF: ) TIMOTHY BRYANT DEWAN COBBLE ) A Child Under the Age of Eig hteen )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE JUVEN ILE COURT OF DAVIDSON C

OUNTY AT NASHVILLE, TENNESSEE THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE

JOHN KNOX WALKUP Attorney General & Repor ter KIMBERLY M. FRAYN Assistant Attorney Gener al 2nd Floor Cordell Hull

Building 425 Fifth Avenue, North Nashville, Tennessee 37243-0499 Attorney for Petitioner/Appe llee EVALINA C. CHEADLE 129 Second Avenue North Nashville, Tennessee 37201 Attorney for Respondent/Appell ant

AFFIRMED AND REMAN DED

BEN H. CANTRELL, JUDGE CONCUR: TODD, P.J., M.S. KOCH, J. 

## O P I N I O N- 2 - The primar

y q uestion presented by this appeal is whether a Juvenile Referee’s decision giving a father credit for social s ecurity payments made to his child could be reversed by the Ju venile Judge after it al legedly had b e come final. The State argues that a

change in the law makes the issue moot. We reject the mo otness argument and affirm the lower c ourt’s order revers ing the Referee’s decisio n.

I.

This case is before the court on the t echnical record only,no transcript of the evidence having been filed. Therefore, the fact ual basis forthe various rulings is not an issue. The technical r ecord shows that a chil d was born on May 29, 1 981 to Hubert Russell and Cetta Cobble. The parents were not mar ried but they filed a jointpetition to leg itim ate the child, and the Juveni le Court of Davidson Count y granted the petition.

Various issues concerning support were tried at v arious time

s, someof them ini tiated by the State of Tennessee w hich was then provi ding aid to the c hild

. On June 1, 1995 the Juvenile Court Referee entered an order requiring Mr. Russell to pay $130.00 per month for chi ld support and to pay $43.33 per month on a $3,567.00 arrea rag e. Mr. Russell immediat ely filed a series of motions seeking to have his child support reduced becau se he was disabled and the child would begi n receivingsupport through Social Security. On October 13,1995 th e Refe ree ruled that “as long as Mr. Russell receives disability and Ms. Jackson receives a checkfor Timothy’s benefit, the child support obligati on is met and no other payments shall be required.” Neither side appealed the order.

I n sub sequent proceedings the R eferee entered other orders that reduced Mr. Russell’s arr earage b y $1,4 99.00, the amount Ms. Jackson w as supp osed to receive in a lump sum fr om Social Security. The matt er finally cam e- 3 -

before the Juvenile Judge because both sides appealed; Ms. Jackson because she did not recei ve the $1,499.0 0 and Mr. Russell be cause he though t his arrearage had been miscalculated.

The Juvenile Judge found t hat Mr. Russell’s soc ial security benefits were incomefor child support purposes and that based on that income the child support obligation was $200.00per mo nth. But because of Mr. Russell’s extraordinary medical expensesthe court deviated from the guidelines and ordered Mr. Russell to pay $84.00 pe r month. In addition, the court hel d that the social security payments to t he child could not be consider ed to satisfy either Mr . Russell’s current support obligation or the arrearage. Finally, the court found that the arrearage was $4,196.00 and ordered Mr. Russell to pay $36.00 per month on the arrearag e in addition to his $84.00 per month current support obligation.

II.

First, Mr. Russell argues that the Juvenile Judge did not have before him
a question of

current support since the only appeals were from the Referee’s orders dealing with thear re ar

ag e. We find, however, that the j udge was obviously presented with other

questions on which i

t was necessary to hear proof, and without a trans cript of the evidence, we do not know what issues may have come before the court or were tried by consent.

Next, Mr. Russell argues that the Refer ee’s orde r relieving him of any further child support payments as long as the child w

as rece iving payments from social securit y had become final and could not be rev ersed by the Juvenile

Judge. See Tenn. Code Ann. § 37-1-107, Rule 4( d), Tenn. R. Juv. Proc ., and Rule 8.02, Rules of Dav. Co. Juv. Ct. Mr. Russel l makes this argume nt in t he face of the provisions of Tenn. Code Ann. § 36-5-101(a)(4)(E)(ii):- 4 - No credit for child support payments shall be g iven by the Court for payment by the social security admi nistration to the obligor’s child pur

suant to a claim based on the workrelated disability of the obligor.

It could be argued that the Referee’ s order was void because the statute removed the court’s subject matter jurisdiction to order the cre dit. But beyond that,
we think the Juvenile Judge had the power, on his own motion, to rehear the matters decided by the Referee. Tenn. Code Ann. § 37-1-10 7 provides:

(e) Any party may, within five (5) days thereafter, excluding nonjudicial days, file a request with the court for a hearing

by the judge of the

juvenile court. The judge may, on the judge’s own motion, order a rehearing of any matter heard before a referee, and shall allow a hearing i f a request for such hearing is filed as herein prescribed. Unless the judge orders otherwise, the recommendation of the referee shall be the decree of the court pending a re hearing. (f) In case no hearing before the judge is requested, or when the right to a hearing is waiv ed, the findings and recommendationsof the referee become the decre e of the court when confirmed by an order of

th e judge. The final order of the court is, in any event, proof of such confirmation, and also of the fact that the matter was duly referred to the referee.

There are no t ime limi ts in the statute within which the judge must act to review the

Referee’s order. But

of most significance is the pr ovision that requir

es the confirmation by the judge i n order for the Referee’s findings and recommendations to become final. See Chapman v. Malone, 874 S.W.2d 66 (Tenn. App. 1993). There is nothing in t h is record showing that the Juvenile Judge confirmed the Referee’s order of October 13, 1995; therefore, the order did not reach that stage of finality that would prevent the Juv

enile Judge from review ing it.

We are aware of Rule 8.02 of the Davidson County Juvenile Court which provides: The following languag e s hould be inserted in all

referee orders as the concludingportion of the order and is to be used in lieu of the judge’s confirming order:- 5 - Pursuantto T.C.A. § 37-1-107, this or der bec omes th e final order o f the Juv enile Court if an appeal is not filed within five days, excluding Saturdays, Sundays and legal h olidays, from the date this order is entered. This ord e r maybe appealed to the Juvenile Court Judge by filin g a request for rehearing with the Juvenile Court Clerk. This order must be obe yed until the Judge rul es otherwise. ANYFAILURE TO COMPLY WITH THIS REFER EE ’S ORDER IS PUNISHA BLE BY CONTE MPT, FOR WHICH T HE PENALTIES MAY INCLUDE A FINE AND/OR IMPRISONM ENT.

However, any part of therule that conflicts wi th Tenn. Code Ann. § 37-1-107(f) is null and void. Brown v. Daly , 884 S.W.2d 121 (Tenn. A pp. 1994). As we read §37-1- 107(f), it requires confir mation by the Juve nile Judge in order for a Referee’s order t o become final. That requirement cannot be c hanged b y a local rule. The Referee’s order is, however, binding until the Judge rules otherwise. That part of Rule 8.02 is consistent with Tenn. Code Ann. § 37-1-107(e).

The state has argued that this issue is moot since the prohibition against granting offsetting credits for social security benefits was repealed by Chapter 551 of the Public Acts of1997 (effective July 1, 1997). We f ail to grasp, however, the state’s mootness argument. Repeal of the statute did not affect the controversy over whether the Referee’s order of October 13, 1995 had become final and beyond the power o f the Juvenile Judge to co rrect.

III.

We tak e no position on the effect of the change in the law on July 1, 1997. All matters concernin g how that change affectsMr. Russell’s current support obligation and the amount of his arrearage must be addressed to the Juvenil e Court.- 6 - The judgment of the court below is affirmed and the cause is remanded to the Juvenile Court of Dav idson County

for further proceedings. Tax the costs on appeal to the appellant.

________________________________ BEN H. CANTRELL, JUDGE CONCUR:

_______________________________ HENRY F. TODD, PRESI DING JUDGE MIDDLE SECTION

_______________________________ WILLIAM C. KOCH, JR., JUDGE