### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Novem ber 7, 2002

Session
STATE OF TENNESSEE, DEPARTMENT OF HUMA N SERVICES, E X REL., TENNE SSEE D EPART MENT O F CHILD REN’S SERVIC ES v.

DEBRA WILSON, ET AL 

### . Direct Appeal from the Juvenile Court for Warren County

Nos. 1827 & 1828 Larry Ross, Judge

No. M2002-00233-COA-R3-JV - Filed Mar ch 27, 2003

This case involves the State ’s reque st that the parentsof a minor

child taken into the State’s custody pay child supp ort retr

oactive to the dat e the child was taken into custody. The State did n ot reque st such support until almost two years after the child was taken into custody. The trial court refused to grant the State support beyond the date of the filing of the petition requesting support. We affir m, as modified. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed as modified; and Remanded

D AV ID R. F ARMER , J., delivered the opinion of the court, in whichW. F RANK C RAWFORD , P.J., W.S., joined and P ATRIC IA J. C OTT RELL , J., dissents.
Paul G. Summers , Attorne y General & Reporter, and Stuart F. Wilson-Patton, Senior Counsel, for the appellant, State of Tennessee Department of Human Services ex rel., Tennessee Department of Children’ s Service s. Debra Wilson, Pro se

. Woodrow Wilson, Pro se.
OPINION
The Wilsons voluntarily placed their minor child in the ph ysical custody of the Tennessee Department

of Children’s Services (DCS) onSeptembe r 10, 1999. On June 12, 2001, DCS filed petitions to set support for a child in State custody a g ains t the Wilsonsin the Warr en County1 W hen ques tioned by the trial c ourt as to why the State ha d take n so lo ng to request child su pport from the

W ilsons, the State’ s counsel responded with the followin g: “I wish I k new, yo ur H ono r. I do n’t know

. It appear s that there is , or has be en, some s ort of admin ist

rat ive gli tch in t

he pas t i n getti ng us noti fi ed when a child go es into S tate custo dy.” W e note that the S tate’s co unsel o n app eal differ s from coun sel at the trial le vel.
-2- Juvenile Court. 1 The State sought a child support arrearage ju dgment against Mr. Wilson in the amount of $14,23 0 and ag ainst Mr s. Wilson for $4,728. These amounts reflected the amount of child support due from the date the child was placed in the S tate’ s cust ody to th e date o f the h earing, in accordance with the Tennessee Child Support Guidelines. The trial court inquired as to whether it had discretion to decline to set support back to the date of th e c ha ng e i n c us to dy. Not surprisingly, c ounsel for the parties disagreed on the ans wer to this query. The

trial court subsequently ruled that, because of the delay in filing the petition to set support, back support would only be se t from the date of the filing of the petition forward.
The State, not

being sa tisfied w ith this re sult, subsequently filed motions to alter or amend the judgments to reflect retroactive child support to the date the child was ta ke n i nt o S ta te cu st od y. A hearing was held at whi ch the State contended that an award of re troactive support was proper, citing Tenn. Code Ann. § 37-1-151 as authority . Both parties agreed that the child was volun

tarily placed into DCS’s custody. The trial cour t denied the State’s motion, stating that it considered such matters on a case -by -case b asis and that, due to the delay f rom the change in custody until the filing of the petiti o ns to set support, an award of retroactive support was not wa rranted. This appeal followed. Standard of Review
Resolution of this issue involves statutory interpretation. I t is well settled that statutory interpretation is a quest

ion of law. Winter v. Smith , 914 S.W.2d 527, 538 (Tenn. Ct. App. 1995)(citations omitted). We review questions of law de novo with no presumpt ion of cor rectne ss afforded the lower

court's judgment. Nelson v. Wal-Mart Stores, Inc. , 8 S.W.3d 625, 629 (Tenn. 1999).

Issue
The State present s the issue

as follow s:
Whether the tria

l court erred by

refusing to award retroactive child support back to the date that

the child first went into the physical custody of the Tenne ssee Departm ent of Chil dren’s Se

rvices.-3- The Partie

s’ Arguments
The Wilsons maintain in their brief that they were not informed that they

were required to pay child support prior to the filing of the petitions. They further maintain that

they questioned the DCS case wo

rkers a bout their responsibility for such support and were told by the w orkers that they did not think they had such an obliga tion.
The State maintains that the tr ial court was “required . . . to award bac k support from September

10, 1999, t

he date the c hild first came into the physical c ustody of the Tennessee Department of Children’s Services, rather than fr om June 12, 2001, the date of filing the petitions to set suppo rt.” As support for this contention, the State cites the following provisions of Te nn
. Code Ann. § 37-1-151:

(b) (1) Notw ithstanding the pr ovisions of

subsecti o n (a ), placement of a child in the custody of an agency of the state shall make the parents of that child liable for support

from the eff

ective date of the court's order

. The court's placement of the ch ild's cu stody

with the st

ateshall be deemed as an automatic application by the state, as custodian of the child, for child support services from the department of human services Title IV-D child support program. (2) In all cases in which the court places phy sical custody of any child with
an agency

of the state, and if no prior orders fo rthe support of the child by ea ch parent exist, the court sha ll immediately o rder child support or sha ll set a hearing, which hearing shall

be held withi

n forty-f ive (45) days of thedate the child's custody is placed with the state, for the purpose of establishing

child suppor

t and the provision of medi cal care , to be paid

by each p

arent to the state for t

he child placed in the state'

s cust o dy by the court

. Such h earing m ay be set on the co urt's next regular child support docket within the forty-f ive-day pe

riod in accor

dance with the provisions of subdivision (b)(3). (3) (A) The

parents and th e Title IV-D office which is enfor

cing ch il d support un de r T it le IV- D o f t he So ci al Se cu ri ty A ct fo r t he co un ty fr om which the child is place d shall receive a

t least te n (10) ca lendar d ay s' notice of the child support hearing date unless child support was ordered at the custody hea ring. (B) The notic e to the parents shall be in writing and may be given a t the time of the hear ing at which the c

hild is plac ed in the c

ustody of the stat e, and sh all include a subpoe

na to each pa

rent to br ing tocourt any doc

uments showing evidence of income, including, but not limited to, pay stubs, W-2 forms, or income taxreturns

. If not give n to the parents at the hearing at which c ustody is placed with the state, the notice and subpoena shal l be sent b y mail to the parents or se rved upon them pe r sonally

within fiv e (5) wo

rking da ys o f the dat

e of the c ustody hearing , unless child support is ordered at the custody hearing. (C ) Unless ch

ild suppor

t is ordered at

the custody hear

ing, within five (5) working days of the da

te of the c ustody he aring at which the child is placed in the custody of the state, the clerk shall by mail, per sonal delivery, or by electronic means-4-

if the clerk participates in the statewide child support enforc ement computer system pursuant to title 36, notify the

office w hich is en

forcing child supp ort under

Title IV-D of the Social Security Act for the county from whic

h the child is placed of the date of the child support

hearin g, the names, addresses, and social security numbers of the pare nts and chi ld . If

support was ordered at the time of the custody hearing, the clerk shall notify the Title I

V-D Office of

the amount of support which was ordered. (4) (A) At any hearing at which support is or dered, thecourt

shall set ch ild support as the evi

dence de monstrates is a

ppropriateand in accordance with the child support guidelines established pursuant to § 36-5-101(e) , andthe cour t shall
or derthe paren ts to pay the premium for he alth insurance for the child if the insurance is availa

ble at a reasonable cost, or the court shall order the parents to pay a reasonab le portion of the child's medical costs. The order for support and for medical care shall

be retroactive to t

he date that

custo dy of the c hi ld was placed with the stateby any ord er of the c ourt

. Tenn. Code Ann. § 37-1-151 b(1)-(4)(A) (Supp. 2002) ( emphasis added).

We cannot agree with the State’s asser tion that these statutory provisions mandate an a ward of retroactive child support relating back to the time the c hild was initially pl aced in the care and custody of the State where, as here, there ha s not been a hearing to set support within forty -five (45) da ys of the child being p laced in

to the cus tody

of the Sta

te, in ac cordanc e with

Tenn. Code Ann. § 37-1-151(b)(2). The statute provides that “[t]he order for support . . . shall be retroa ctive to th e date that custody of the child was placed with the state by any order of the court.” Tenn. Code Ann. § 37-1- 151(b)(4)(A) (2001). The statute also provides, however, that “the c ourt sh all immediately order child support or

shall set a hearing, which

hearing shall be held within

forty -five (4 5) day s of the da te the child's custody is plac ed with the state, for the purpose of establishing child support. . . .” Id. § 37-1-151 (b)(2). This was not done in this case. “In interpre

ting statutes, we are required to construe themas a whole, r ead them in conjunction with their

surround ing par ts, and vie

w them con sistently withthe legislative purpose.” State v. Turner , 913 S.W.2d 158, 160 (Tenn. 1995). We believe that section 37-1-151 (b)(2) of the sta tute, whe n read in conjunct ion with section 37-1-151(b)(4)(A), circumscribes the extent to which a parent may be held re sponsible for retroactive support. Reading these two statut

ory provision s in conce

rt it is clear that, if the strictures of section 37-1-151 (b)(2)
are followed, the maximum amount of retroactive child support for which the parents of a child taken into custody of the state could be r esponsible for is forty- five (45) day s. “[T]he polestar of statutory interpre tation has alwa

ys been the intent of the legislature.” Heirs of Ell

is v. Estateof Ellis , 71 S.W.3d 70 5, 712 (Te nn. 2002) . Withthis guid ing principle in mind, and considering the legislative mandate tha ta hearing to set

support shall be he ld wi th in fo rt yfive (45) days of

the date that

a child is p laced in

the custo dy o f the State , we do not believe that it
wa s t he in te nt of

th at sa me le gi sl at ur e t ha t a re tr oa ct iv e a wa rd of su pp or t w ou ld ex ce ed th is fo rt yfive (45) day time fr

ame. We hold, therefore, that where the statutory provisions of

section 37-1-1512 The right t o retroactive supp ort is limited , howe ver. T enn. C ode Ann. § 36-2- 306 provi des that “[a] n act ion

to establis h the parentage of a chil d may be instit uted . . . until three (3) years beyond the child’s age of majority.” Tenn. Code Ann. § 36-2 -306 (a) (2 001 ). Acc ord ingly, the T enne ssee S upre me C ourt ha s held that “[r]etroacti ve child support is availab le wheth er the c hild is a minor or whether t he child has reached the age of majorit y and brings the claim w ithin ti me perm itted by th e statute.” Berryhil l v. Rhodes , 21 S.W.3d 188, 192 (Tenn. 2000). According ly, if an indi vidual waits until after t

he child’s twenty-f

irst birthday to r equest s uch support , th e obligor will not be l egall y obli gated t o pay such suppo rt, notwithstanding the fact that parents a re obliga ted to supp ort their c hildren during the child ’s mino rity. See Tenn. Cod e Ann. § 34-1-102 (20 01).

3 The majority can conceive of no other reason f or the inclusi on of this 45 day provision. Adopting the dissen t’s posit ion that retr oactiv e support ca n be ord ered in exce ss of this limit makes the 45 da y time limit in which the parents’ child su ppo rt oblig ation m ust be e stablishe d, me aningle ss.

4 The Janua ry 28, 2000, order of the juven ile cou rt stated th at the co urt foun d the p arents to be ind igent. In the ir brie f, as we ll as at

oral argu ment, the paren ts take is sue w it h havi ng been so l abele d.
-5- (b)(2) are not followed, and an order of support is not obtained within forty -five (45) day s of the date that a child is ordered into State custody , that any awa rd of retroactive child suppor t is statutor

ily limited to f

orty -five (4 5) day s.
The majority is cognizant of Te nn. Code Ann. § 34-1-102, cited by the dissent, which requires parents to support their minor children, as well as the statute imposing a like requirement upon parties to a divorce or an action to establish paternity . However, these statutes must be construed in pari materia with Tenn. Code Ann. § 37-1-151. We note that none of these statutes contain a provision, limiting the time in which the action must be brought, similar to that contained in § 37-1-151. 2

The parents were presumably supporting their child until, pursuant to court order, custody was changed form the pare nts to the State. Becau se the dictates of § 37-1-151 were not followed, the court did

not “immed

iately order child suppor

t” nor “s et a

hearing, which

hearing shall be held within forty-five (45)days of the date the child’s custody

is place d with

the state, for the purposes of establishing child support. . . .” Tenn. Code Ann. § 37-1-151(b)(2) (Supp. 2002). We believe that
a reasonable interpretation of this statute is to prevent a situation such as exists in the present case. Application of the sta

tutelimits an a ssessmen

t of retr oactive child supp ort to 45 da

ys. 3 Adherence to the statute prevents a situation such as has occurred in the pre sent case where, almost two y ears after custody is placed with the State, the State seeks to recover several thousand dollars from the parents

. 4 The parents in this case were give n no guidance by

the cou rt as to the

amount of

their support obligation or to whom it was to be paid. The major ity believe s it would be

manifest ly u njust to grant the relief sought by the State where there has been a f ailure to comply with Tenn. Code Ann. § 37-1-151(b)(2) (Supp. 2002).

Ac co rd in gl y, it is the majority’s belief that the leg islature intended to prevent the unjust r esult of a child being placed in the

cu st od y of

th e S ta te , n o h ea ri ng be in g h el d w it hi n f or ty- fi ve (4 5) da ys to establish

support, a

nd months, or years, passing before the State petitions the court to set support
re tr oa ct iv e t o t he da te th e c hi ld wa s p la ce d i nt o c us to dy.-6- Conclusion Based on the foregoing , we affirm the decision of the trial court deny

ing the State retroactive child su pp or t t o t he da te th e c hi ld wa s p la ce d i n t he cu st od y of the S tate, but modify the awa rd to include support, not only from the date of the filing of the petition, but to include an additional 45 days of support, re

troactive from the date the petition was filed by the State.

___________________________________ DAVID R. FARMER, JUDGE