IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 1, 2012 Session

ANNA RUTH COLLINS (EISENBERG) v. THE ESTATE

OF HARVEY L. COLLINS

Appeal from the Circuit Court for Knox County

No. C-5708 Bill Swann, Judge

No. E2012-00079-COA-R3-CV-FILED-NOVEMBER 19, 2012

This is an action to collect child support ordered in the parties’ 1965 divorce decree. The

Trial Court held that the ten year statute of limitations contained in Tenn. Code Ann. § 28-3-

110(2) acted as a bar to this action and dismissed the case. Anna Ruth Collins (Eisenberg)

appeals to this Court. We affirm.

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

Case Remanded

D. MICHAEL SWINEY,J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P.J., and CHARLES D. SUSANO, JR., J., joined.

Scott B. Hahn and Judith A. DePrisco, Knoxville, Tennessee, for the appellant, Anna Ruth

Collins (Eisenberg).

Larry C. Vaughan, Knoxville, Tennessee, for the appellee, the Estate of Harvey L. Collins.

OPINION

Background

Anna Ruth Collins (Eisenberg) (“Mother”) and Harvey L. Collins (“Father”)

were divorced by a divorce decree entered in 1965. Pursuant to the divorce decree, Father

was ordered to pay $40 per week in child support. Mother filed an action in 1970 attempting

to collect child support, but the case was dismissed because Father could not be found and

served in Ohio.
On February 9, 2011 Mother filed this action, a Petition for Child Support

Judgment, against the Estate of Harvey L. Collins (“Father’s Estate”). Mother’s petition

alleged, in part, that Father never paid child support, that the parties’ youngest child finished

high school in 1979, and that Father had died owning real property and a stock account worth

approximately $400,000. Mother’s petition sought a judgment against Father’s Estate for

unpaid child support in the amount of $1,636,469.37. Father’s Estate filed a motion for

summary judgment raising, among other things, a statute of limitations defense.

After a hearing , the Trial Court entered its order on December 13, 2011

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granting Father’s Estate summary judgment after finding and holding “that the instant

litigation was barred by the applicable statute of limitations as of 1989.” Mother appeals.

Discussion

Although notstated exactly assuch, Mother raises one issue on appeal: whether

Tenn. Code Ann. § 36-5-103(g) can be applied retroactively so that the ten year statute of

limitations contained in Tenn. Code Ann. § 28-3-110(2) does not apply to the child support

matter involved in this case. Resolution of a statute of limitations issue involves statutory

interpretation. Construction of a statute and its application to the facts is an issue of law and,

therefore, our standard of review is de novo without any presumption of correctness given

to the Trial Court’s conclusions of law. Lavin v. Jordon, 16 S.W.3d 362, 364 (Tenn. 2000).

Mother argues in her brief on appeal that “[b]ecause the legislature has

systematically amended statutes that foreclosed efforts to collect child support, Appellant

Mother now seeks a ruling from this Court providing that the statute of limitations at Tenn.

Code Ann. § 28-3-110(2), does not apply to case [sic] where judgments for past due child

support are sought, in order to clarify and settle this issue.” In support of this argument,

Mother relies, in part, upon Rutledge v. Barrett, 802 S.W.2d 604 (Tenn. 1991); Jordan v.

Jordan, 147 S.W.3d 255 (Tenn. Ct. App. 2004); Sandidge v. Brown, No. 03A01-9104-CV142, 1991 Tenn. App. LEXIS 709 (Tenn. Ct. App. Sept. 3, 1991), no appl. perm. appeal

filed; Attaway v. Attaway, No. E2000-01338-COA-R3-CV, 2001 Tenn. App. LEXIS 253

(Tenn. Ct. App. April 16, 2001), appl. perm. appeal denied Sept. 17, 2001; and Deck v.

Parrish, 1984 Tenn. App. LEXIS 3136 (Tenn. Ct. App. Aug. 29, 1984), no appl. perm.

appeal filed.

The case was first heard by a Magistrate and a Memorandum Opinion was entered finding that the 1

ten year statute of limitations did not apply to child support cases. The Magistrate’s opinion then was

appealed to the Circuit Court. The appeal now before us is from the decision of the Circuit Court.

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These cases relied upon by Mother are distinguishable from the case now

before us on appeal. In the three more recent of the cases upon which Mother relies, i.e.,

Rutledge v. Barrett, Attaway v. Attaway, and Jordan v. Jordan, the courts apparently did not

have before them the specific issue now before us of whether Tenn. Code Ann. § 36-5-103(g)

can be retroactively applied so that the ten year statute of limitations contained in Tenn. Code

Ann. § 28-3-110(2) does not apply. This issue was not directly addressed by the courts in

those cases. As such, these cases are not controlling with regard to the issue now before us.

As for Sandidge v. Brown, and Deck v. Parrish, we disagree with their reasoning and instead

agree with the reasoning in a series of cases relied upon by Father’s Estate, as will be

discussed more fully below. Furthermore, as this Court stated in State of Tennessee ex rel.

Mitchell v. Johnson:

As an earlier statement implies, there are some cases indicating that

child support orders are not subject to a statute of limitations. However, as

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this court explained in Rodakis v. Byrd, 1992 Tenn. App. LEXIS 876, No.

03A01-9206-GS-00202, 1992 WL 301312, at *2 (Tenn. Ct. App. Oct. 23,

1992) (no Tenn. R. App. P. 11 application filed):

We have no quarrel with the result reached in the prior

cases. We do believe, however, that each of the cases must be

limited to its own circumstances. In each of the prior cases, the

defaulting parent sought to avoid payment of only that portion

of a judgment that accrued more than ten years before the action

was brought to enforce the judgment. The distinguishing feature

of this case is the failure of the custodial parent to bring an

action to enforce the judgment until more than fourteen years

had elapsed after the final payment under the judgment was due.

We find this difference to be significant.

A careful review of those cases, see footnote 4, indicates that they stand for the proposition that a defaulting

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obligor parent cannot assert the ten year statute of limitations to prevent enforcement of that portion of a child support

obligation that was due more than ten years prior to the petition for enforcement. None involved an attempt to enforce

a child support order more than ten years after the covered child reached the age of majority. See also Basham v.

Basham, 1994 Tenn. App. LEXIS 401, No. 01-A-01-9402-GS-00047, 1994 WL 388281 (Tenn. Ct. App. Jul. 27, 1994)

(no Tenn. R. App. P. 11 application filed) (holding that the reasoning of Rodakis v. Byrd, 1992 Tenn. App. LEXIS 876,

No. 03A01-9206-GS-00202, 1992 WL 301312 (Tenn. Ct. App. Oct. 23, 1992) (no Tenn. R. App. P. 11 application

filed), did not apply because the parent in Basham was not relieved of payments until after the date the petition was

filed).

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State of Tennessee ex rel. Mitchell v. Johnson, No. M2002-00231-COA-R3-CV, 2003 Tenn.

App. LEXIS 711, at **12-13 (Tenn. Ct. App. Oct. 2, 2003), no appl. perm. appeal filed

(footnote in original but renumbered).

This Court addressed the same issue now before us in Frye v. Frye wherein we

stated:

Tenn. Code Ann. § 28-3-110(2) provides a ten year statute of

limitations for “[a]ctions on judgments and decrees of courts of record of this

or any other state or government.” This Court has pointed out that “absent a

clear legislative mandate, child support judgments are subject to the defense

of the statute of limitations as is ‘any other judgment’”. In re Estate of

Meader, 1997 WL 672205 at *2, No. 03A01-9707-CH-00252 (Tenn. Ct. App.

Oct. 30, 1997). In Anderson v. Harrison, 1999 WL 5057 at *3, No. 02A01-

9805-GS-00132 (Tenn. Ct. App. Jan. 7, 1999), it was further stated that recent

decisions have demonstrated a “growing acceptance” that the ten year statute

of limitations applies to orders for child support. As discussed, infra, effective

July 1, 1997, the legislature added Tenn. Code Ann. § 36-5-103(g), which

provides that judgments for child support are enforceable “without limitation

as to time.” Because the relevant events in the present case occurred prior to

the effective date of Tenn. Code Ann. § 36-5-103(g), we hold that the ten year

statute of limitations contained in Tenn. Code. Ann. § 28-3-110(2) applies to

the present action to enforce these two judgments.

When the statute of limitations period beginsto run depends on whether

the child support arrearages have been reduced to judgment for a sum certain.

If a party is seeking to enforce an ongoing order for child support and the

arrearages have not been reduced to judgment for a sum certain, then the

statute begins ro run when the last child support payment is supposed to have

been made, which typically is when the child reaches the age of majority. See

In re Estate of Meader, supra. In those cases where the arrearages for child

support have been reduced to judgment for a sum certain, the custodial parent

is required to bring the action for enforcement within ten years of obtaining the

judgment. Anderson v. Harrison, 1999 WL 5057 at *3 (citing Vaughn v.

Vaughn, 1988 WL 68062 at *4 (Tenn. Ct. App. July 1, 1988)). This distinction

was recently addressed by the Middle Section of this Court in County of San

Mateo, California v. Green, 2001 WL 120729, No. M1999-00112-COA-R3-

CV (Tenn. Ct. App. Feb. 14, 2001). The San Mateo Court held that an action

to enforce a judgment for public assistance paid by the County of San Mateo

was not timely filed because it was brought more than ten years after the

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judgment was entered. The Court also discussed the distinction “between

arrearages which had been reduced to a judgment and later failures to pay child

support pursuant to an ongoing obligation.” Id. at *2 (citations omitted).

Since the present case involves Plaintiff’s attempt to enforce two judgments

for a sum certain rather than child support pursuant to an ongoing obligation,

we conclude that the ten year statute of limitations period for each judgment

began to run when the judgments were entered, which was May 20, 1985, and

January 22, 1986. Accordingly, these ten yearstatute of limitations periods ran

on May 20, 1995, and January 22, 1996, respectively. The present action was

filed on July 14, 1999, and was, therefore, untimely.

Plaintiff argues that the July 1, 1997, addition of Tenn. Code Ann. § 36-

5-103(g) is applicable to this case and therefore saves his lawsuit. We

disagree. This amendment provides that “Judgments for child support

payments for each child subject to the order for child support pursuant to this

part shall be enforceable without limitation as to time.” Defendant argues that

the statute of limitations expired before this amendment took effect and he,

therefore, had a vested right in the expiration of these claims. This very issue

was discussed by the Court in San Mateo, supra, which concluded that the

passage of Tenn. Code Ann. § 36-5-103(g) cannot be applied retroactively to

revive a claim which expired prior to the effective date of the statutory

amendment. In reaching this conclusion, the San Mateo Court stated:

San Mateo argues, however, that a 1997 legislative

amendment to the child supportstatutes should be applied to this

case. . . . This statutory amendment was enacted after San Mateo

had lost its ability to enforce the judgment against Mr. Green

under either California or Tennessee law. Mr. Green argues that

it cannot be applied retroactively so as to resuscitate a claim that

had expired under existing law. We agree that even if Tenn.

Code Ann. § 36-5-103(g) can be interpreted as an amendment

to Tenn. Code Ann. § 28-3-110(2), where arrearage on a child

support obligation has been reduced to a judgment, it cannot be

applied retroactively to the 1983 judgment.

Our Supreme Court has discussed the effect of retroactive

legislation as follows:

Article I, section 20 of the Tennessee

Constitution provides that “no retrospective law,

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or law impairing the obligations of contracts,shall

be made.” We have construed this provision as

prohibiting laws “which take away or impair

vested rights acquired under existing laws or

create a new obligation, impose a new duty, or

attach a new disability in respect of transactions

or considerations already passed.” A “vested

right,” although difficult to define with precision,

is one “which it is proper for the state to

recognize and protect and of which [an]

individual could not be deprived arbitrarily

without injustice.”

In considering whether a statute impairs a

vested right under article I, section 20, we

frequently have observed that statutes which are

procedural or remedial in nature may be applied

retrospectively. In general, a statute is procedural

“if it defines the . . . proceeding by which a legal

right is enforced, as distinguished from the law

which gives or defines the right.” A statute is

remedial if it provides the means by which a

cause of action may be effectuated, wrongs

addressed, and relief obtained. We have clarified,

however, that even a procedural or remedial

statute may not be applied retrospectively if it

impairs a vested right or contractual obligation in

violation of article I, section 20.

Doe v. Sundquist, 2 S.W.3d 919, 923-24 (Tenn. 1999).

The Tennessee Constitution’s prohibition on

retrospective laws includes enactments which “take away or

impair vested rights acquired under existing laws.” Morris v.

Gross, 572 S.W.2d 902, 907 (Tenn. 1978). A defendant has a

vested right in a statute of limitation once the statutory limitation

period has run without action by the plaintiff. See Ford Motor

Co. v. Moulton, 511 S.W.2d 690, 697 (Tenn. 1974). “[I]n

Tennessee a defendant has a vested right in a statute of

limitations defense if the cause of action has accrued and the

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time allotted has expired.” Wyatt v. A-Best Products Co., Inc.,

924 S.W.2d 98, 104 (Tenn. Ct. App. 1995). Thus,

when a cause of action is barred by a statute of

limitation, in force at the time the right to sue

arose, and until the time of limitation expired, . .

. the right to rely upon the statute as a defense is

a vested right that cannot be disturbed by

subsequent legislation.

Id. at 103 (citations omitted).

San Mateo, 2001 WL 120729 at *3.

We agree with the rationale and conclusion reached by this Court in San

Mateo on this issue, and hold that the enactment of Tenn. Code Ann. § 36-5-

103(g) cannot operate retroactively to revive Plaintiff’s otherwise expired

judgment for a sum certain for attorney fees taxed as child support.

Frye v. Frye, E2000-02123-COA-R3-CV, 2001 Tenn. App. LEXIS 529, at **5-12 (Tenn.

Ct. App. July 24, 2001) (footnote omitted), no appl. perm. appeal filed.

This Court also pointed out in State of Tennessee ex rel. Hadley-Redd v.

Hadley:

The plain language of the statute indicates that the legislature intended, just

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as the Court in [In re: Estate of Meader, No. 03A01-9707-CH-00252, 1997

Tenn. App. LEXIS 750, at *5 (Tenn. Ct. App. Oct. 30, 1997), no appl. perm

appeal filed] stated, that child support judgments are subject to the same

defense of the statute of limitations as any other judgment. We also believe

that our conclusion is fortified by the legislature’s subsequent action in

eliminating the statute of limitations for child support obligations. It is

apparent to this Court that the legislature recognized that its effort, by virtue

of T.C.A. § 36-5-101 (a)(5) to expedite and improve efforts to assure

responsibility for child support obligations, could lead to an untoward result;

therefore, the 1997 legislation resulting in T.C.A. § 36-5-103 (g) was passed.

The Court was discussing Tenn. Code Ann. § 36-5-101(a)(5).

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State of Tennessee ex rel. Hadley-Redd v. Hadley, No. W2002-00458-COA-R3-CV, 2004

Tenn. App. LEXIS 123, at *14-15 (Tenn. Ct. App. Feb. 23, 2004), no appl. perm appeal

filed.

In the case now before us, the last child support payment should have been

made in 1979. Thus, the ten year statute of limitations contained in Tenn. Code Ann. § 28-3-

110(2) would have run by 1989, well before the enactment of Tenn. Code Ann. § 36-5-

103(g) in 1997. As such, Mother’s claim expired in 1989 and could not be retroactively

revived by Tenn. Code Ann. § 36-5-103(g). Given all of the above, we hold that the Trial

Court did not err in granting Father’s Estate summary judgment and dismissing the case.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

appellant, Anna Ruth Collins (Eisenberg), and her surety.

_________________________________

D. MICHAEL SWINEY, JUDGE

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