FILED

February 13, 1998

Cecil W. Crowson

Appellate Court 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 Eighteen )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE JUVENILE COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE

JOHN KNOX WALKUP

Attorney General & Reporter

KIMBERLY M. FRAYN

Assistant Attorney General

2nd Floor Cordell Hull Building

425 Fifth Avenue, North

Nashville, Tennessee 37243-0499

Attorney for Petitioner/Appellee

EVALINA C. CHEADLE

129 Second Avenue North

Nashville, Tennessee 37201

Attorney for Respondent/Appellant

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

KOCH, J.

O P I N I O N
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The primary question presented by this appeal is whether a Juvenile

Referee’s decision giving a father credit for social security payments made to his child

could be reversed by the Juvenile Judge after it allegedly had become final. The

State argues that a change in the law makes the issue moot. We reject the mootness

argument and affirm the lower court’s order reversing the Referee’s decision.

I.

This case is before the court on the technical record only, no transcript

of the evidence having been filed. Therefore, the factual basis for the various rulings

is not an issue. The technical record shows that a child was born on May 29, 1981

to Hubert Russell and Cetta Cobble. The parents were not married but they filed a

joint petition to legitimate the child, and the Juvenile Court of Davidson County

granted the petition.

Various issues concerning support were tried at various times, some of

them initiated by the State of Tennessee which was then providing aid to the child.

On June 1, 1995 the Juvenile Court Referee entered an order requiring Mr. Russell

to pay $130.00 per month for child support and to pay $43.33 per month on a

$3,567.00 arrearage. Mr. Russell immediately filed a series of motions seeking to

have his child support reduced because he was disabled and the child would begin

receiving support through Social Security. On October 13, 1995 the Referee ruled

that “as long as Mr. Russell receives disability and Ms. Jackson receives a check for

Timothy’s benefit, the child support obligation is met and no other payments shall be

required.” Neither side appealed the order.

In subsequent proceedings the Referee entered other orders that

reduced Mr. Russell’s arrearage by $1,499.00, the amount Ms. Jackson was

supposed to receive in a lump sum from Social Security. The matter finally came
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before the Juvenile Judge because both sides appealed; Ms. Jackson because she

did not receive the $1,499.00 and Mr. Russell because he thought his arrearage had

been miscalculated.

The Juvenile Judge found that Mr. Russell’s social security benefits were

income for child support purposes and that based on that income the child support

obligation was $200.00 per month. But because of Mr. Russell’s extraordinary

medical expenses the court deviated from the guidelines and ordered Mr. Russell to

pay $84.00 per month. In addition, the court held that the social security payments

to the child could not be considered 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 arrearage 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 the arrearage. We find, however, that the judge was obviously presented

with other questions on which it was necessary to hear proof, and without a transcript

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 Referee’s order relieving him of any

further child support payments as long as the child was receiving payments from

social security had become final and could not be reversed 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. Russell makes this argument in the face of the

provisions of Tenn. Code Ann. § 36-5-101(a)(4)(E)(ii):
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No credit for child support payments shall be given by the

Court for payment by the social security administration to

the obligor’s child pursuant 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 credit. 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. § 37-1-107 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 if 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 rehearing.

(f) In case no hearing before the judge is

requested, or when the right to a hearing is waived, the

findings and recommendations of the referee become the

decree of the court when confirmed by an order of the

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 time limits in the statute within which the judge must act

to review the Referee’s order. But of most significance is the provision that requires

the confirmation by the judge in 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 this 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 Juvenile Judge from reviewing it.

We are aware of Rule 8.02 of the Davidson County Juvenile Court which

provides:

The following language should be inserted in all

referee orders as the concluding portion of the order and

is to be used in lieu of the judge’s confirming order:
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Pursuant to T.C.A. § 37-1-107, this order becomes the

final order of the Juvenile Court if an appeal is not filed

within five days, excluding Saturdays, Sundays and legal

holidays, from the date this order is entered. This order

may be appealed to the Juvenile Court Judge by filing a

request for rehearing with the Juvenile Court Clerk. This

order must be obeyed until the Judge rules otherwise.

ANY FAILURE TO COMPLY WITH THIS REFEREE’S

ORDER IS PUNISHABLE BY CONTEMPT, FOR WHICH

THE PENALTIES MAY INCLUDE A FINE AND/OR

IMPRISONMENT.

However, any part of the rule that conflicts with Tenn. Code Ann. § 37-1-107(f) is null

and void. Brown v. Daly, 884 S.W.2d 121 (Tenn. App. 1994). As we read §37-1-

107(f), it requires confirmation by the Juvenile Judge in order for a Referee’s order to

become final. That requirement cannot be changed by 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 of 1997 (effective July 1, 1997). We fail 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 of

the Juvenile Judge to correct.

III.

We take no position on the effect of the change in the law on July 1,

1997. All matters concerning how that change affects Mr. Russell’s current support

obligation and the amount of his arrearage must be addressed to the Juvenile Court.
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The judgment of the court below is affirmed and the cause is remanded

to the Juvenile Court of Davidson County for further proceedings. Tax the costs on

appeal to the appellant.

________________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_______________________________

WILLIAM C. KOCH, JR., JUDGE