### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON May 22, 2002 On-Briefs STATE OF TENN ESSEE, ex rel. FR ANKIE DAVIS (GA NT) v. JASON DAVIS A Direct Appeal from the Chancery Court for Gibson County No. 93707 The Honorable George R. Ellis, Judge

No. W2001-01842-COA-R3-CV - Filed July 8, 2002

In this post-divorce proceeding, the State of Tennessee filed a petition against Mr. Jason Davis (hereinafter “Father ”) for cont

empt and s eeking

child supp ort arre ars orde red to be paid to the custodial parent, Ms. Fran kie Davis (Gant) (hereinafter “Mothe r”). The tria

l court g ranted t he State a judgmen t in the a mount of $1,660.00, representing the amount of State assistance paid to the Mother and children, to be liquidated by the Father at the rate of $10.50 p e r week. The State has appealed. We affirm as modified in part, rever se in part, and remand.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed as

Modified in Part, Reversed in Part, and Remanded W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and H OLLY K IRBY L ILLARD , J., joined. Paul G. Summers, Attorney Gen era l & Reporter, Stuart F. Wilson-Patton, Senior Counsel, for Appellan t, State of Tenness ee, ex r

el., Fran kie Davis(Gant) No brief submitted by appellee.

OPINION According to the “Decree Aw arding Ab solute Divorce” filed in the Chancery Court of Gibson County, Tennessee, the par ties were divorced on November 22, 1996, and have two (2) minor children. The trial court awarded custody of the c hildren to Mother

with rea sonable

visitation extended to Father . The cou

rt als o ordere d Father to pay $79.00 per week as child support plus commission by wage assignment. The Father f ailed to p ay the ch

ild suppor t as orde red and, at some-2-

point not clear in the record, the Mother applied for and began receiving public

assistanc e benef

its from the State of Tennessee for herself a nd her two minor children. On Decemb er 18, 20 00, the Sta te filed a “Petition f

or Contemp t and Atta

chment” in the Chancer y Court of G

ibson Count

y, Tenne ssee, wh

ich provi des in per

tinent pa rt: 1. That an Order of

Absolute Divorce Decree was e ntered by the Gibson County Chancery Court in Humboldt, Tennessee on November

15, 1996, w

hereby R esponde nt, Jason D avis, was ordered to pay $79.00 every week for t he suppor t of James D. Davis, born July 25, 1994, Symantha L. Davis born August 7, 1990. 2. That the Respondent is more than thirty days in arrears and pursuant to TCA 36-5-101 (b), the Court has the dis cretion to issue an attachment for the Respondent and set a bond of not less than $250.00 a nd not more

than the a

mount of the arre ars. 3. That said payments have not been made as ordered, as evidenced

by the att

ached “EXHIBIT

A,” and t

hat th e tota l accumulated

arrearage amou nts to $12,824 .90 as of October 16, 2000. 4. That the R

esponde nt is a b le bodied, capable of pursuing gain ful employment, and that failure to make these payments as ordere d constitu

tes a willf ul contem pt of the O

rders of this cour t. 5. That thi s is the fir st citatio n for con tempt of Court in this cause. By order filed on May 21, 2001, the trial court found that the part ies have r econciled and, thereby, terminated the current child support effective De cember 24, 2000. The trialcourt continued the matte r to May 25 , 2001, to d

etermine arrea rs. On May 25, 2001, an evidentiary hearing was conducted a nd the trial court entered and filed its order on June 22 , 2001, wh

ich provi des in per

tinent pa rt: That the State of Tennessee is granted a judgment in th e amount of $1,660.00. The Respondent shall liquidate the judgmen t at the rate of $10.00 per week plus statutory fee of $0.50 for a total of $10.50 per week unt il paid in f

ull. The Court find s that the c ustodial p arent is n ot seeking reimbursement of arrears.-3-

The State has appealed and raises the following three (3) issues as stated in the State’s brief: I. Whether the trial court erred by re troactively terminating the current child support

in the absence of

either a petition or motion for modification. II. Wheth e r the trial court erred by granting the State a judgment against the appellee only in the amount of the public assistance benefits provided to his family. III. Whether

the trial court er red by se tting the a ppellee ’s payme

nts on the State’s child support arrearage judgment at only $ 10.00 per week. Since this case

was tried by the trial court sitting without a jury, we review the case de novo upon the rec ord with a

presumpt ion of cor rectne ss of the findings of fact by the trial cou rt. Unles s the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d). We will no w addre ss the app ellant’sissues. The State first argues that the trial court erred by retroa ctively ter minati ng curre nt child support in the absence of either

a petition or a motion for modification and by forgiving $13,614.90 in child support arrears on grounds that the Mother was not seeking reimbursement of

the arr ears. We agree. Tenn. Code Ann. § 36-5-10 1(a)(5 ) (2001) provides :

Any order f

or child support shall be a judgment entitled to be enforced as any other judgment of a court of this state an d shall be entitled to full fa

ith and cr edit in t his state and in any other state. Such judgment s hall not be subject to

modifica tion as to any time period or any amounts due prior to the date t hat an action for modification is filed and notic e of the a ction has been mai led to the last kno wn addres s of the opposing parties. If the full amount of child support is notpaid by the date upon which the ordered support is due, the unpaid amount is in arrears and shall become a judgment for the unpai d amounts and shall accrue interest from the date of the arrearage at the rate

of twelve percen t (12%) p er annum . All inter est which accumul a tes on arrea rages sh all be co nsidere d child sup port. Computation of interest shall not be the responsibility of the clerk. Furthermore, our Supre

me Court ha s held in Rutledge v . Barrett , 802 S.W.2d 604 (Tenn. 1991) that pursuant to the above statute, a child support order is not subject to retroactive modification. Id . at 605-607; see a lso Alexander v. Alexander , 34 S.W.3d 456, 460 (Tenn. Ct. App. 2000)(providing that “a cour t has no pow er to alter a

child supp ort awar

d as to any

period of time occu

rring pr ior to the date on which [a parent] files his or her pe tition.”).-4-

In the pres ent case , although the part ie s have not formally

filed a p etition or

motion to modify child support as originally ordered by the trial court on November 22 , 1996, the parties informed the trial court of their reconciliation during a hearing on April 27, 2001 upon the State’s petition. This stipulation in op en court is binding o n the par

ties, and the curr ent suppor

t is terminated as of April 27, 2001. It is settled law that trial courts are ves ted with w ide discr etion in ma

tters relating to child custody and support. Campanali v. Camp anali , 695 S.W.2d 193, 196 (Tenn. Ct. App. 1985). According to Tenn. Code Ann. § 36-5-101(a)(1) (2001), a cour t may order

an incre ase or decrease in the amount of child support only upon a showing of substantial and material cha nge of circumst ances. Id . The party seeking modification in alimony or child support has the burden of showing a substantial and material change in circu ms tances. Seal v. Seal , 802 S.W.2d 617, 620 (Tenn. Ct. App. 19 90). Such a chang e in circumstances is not material if it was contemplated by the parties at the time they entered an alimony or support agree ment. Seal , 802 S.W.2d at 620. Therefore, we find that the trial court erred in retroactively terminating and for giving child support prior to A

pril 27, 20 01, when t

he Fa ther and Mother in

formed th

e trial c ourt of their reconciliation. The State also argues that the trial court erred by gra nting the State a judgment against the Father only in the a mount of the public assistanc e benef

its provided to the fa

mily. The St

ate correctly points out that based on the fe deral c hild suppor t distribut ion schem

e and the payments set by the trial c ourt, the Mother will actually receive all of the arre ars paid, and the State will not be paid at all. See 42 U.S.C.A. § 657(a)(2)(B)(i)(I I)(bb) and (ii)(I

I)(bb) (2002). The State concedes th at under the fede ral child support distribution scheme, 42 U.S.C.A. § 657(a)(2)(B)(i)(I

I)(bb) and (ii)(II

)(bb) (2002), the Sta te’s rig ht to reimb ursemen

t is limited t

o $1660.00 in this case, the amount of b enefits paid to the family. Also, ther e is no evidence in the record that the Mother was on public assistance as of April 27, 2001, and the State correc tly p oints out that although the trial court clearly intended for the State to be reimbursed for the $1660 .00 in public assistance benefits, the State will never receive a ny of the money

. Furtherm ore, Te nn. Code A

nn. § 71-3 -124 (200 1) provid es in per tinent pa rt: (a)(1) Each applicant or recipient who receives or authorizes payment of public or tempora ry assista nce purs uant to Tit

le IV-A or IV-E of the Social Security Act or any successor

program providing temporary assistance or foster care or adoption assistance shall be deemed to have assigned

to the stat

e any rights to support from any other person such applicant or recipient may have :-5- (A) In the applicant's own behalf or in behalf of any other family member for

whom the a

pplicant is applying for or receiving aid; and (B) Which have a

ccrued at the time such assignment is executed. According to this stat

ute, whe n Ms. Davi s and her

childre n recei ved the pu

blic assis t anc e benefit s, she automatically assig ned to the State her

rights to receive child support from the Father in the amount of the benefits received. Therefore, under this record in this case, we find that the trial court erred in granting the State a judgment against the Father only in the amount of the public assistance bene fits provided to his family

. Las tl y, the State argues that the trial court erred by

setting the appellee’s pay ments on the State’s child suppo rt arre arage judgment at only $10.00 pe r week. We agree. The transcript of the procee dings pr

ovides in p ertinen

t part: THE COURT: All right. How are y ou going to pay this 1660.00? You’ve got to pay this because this is what the State o f Tennessee – MR. DAVIS: I

don’t mind paying

it. I can pay

$10.00 a week. That’s all I can pay , Your Honor. B ut right now that’s all I ca n afford. THE COURT: Oka y, I ’ll order

that 1660. 00 owed to

the State of Tennessee, be order

ed to pay 10.00 a week until paid in full. And I further find

that the custodial parent is not seeking reimbursement for any a rrears owing. The State correctly

points out that the Father had the abi lity to p ay $79 per w eek as of November

of 199 6 and t he tri al cou rt did not m ake a su ffici ent fac tual i nqui ry to supp ort ar rearage pay ments of only $10.00 per week. As noted above in the transcript of the procee dings, the trial court did not inquire into the Father’s income or expenses, nor did the trial court afford the State any opportuni ty to cross-examine the Father on this issue. In de aling with a similarproblem concerning the reason ablen ess of

the arr earage installment payments, this Court, in Tallent v. Cates , No. E1999- 01168-COA-R3-CV, 2000 WL 823466 at **7 (Tenn. Ct. App. June 27, 2000), stated:

While we do not have before us the kind of "initial supp o rt" order contemplatedby the reg

ulation, we consider

it to be persuasive on (1) the use of the obligor's current income and (2) the goal of repay

ment within a reasonable time. Accordingly , we direct that the Trial Court-6- shallconsider tho se as factor s in setting a pay ment plan

that will cov er the post judgment interest and result in the judgment be in g satisfied within a reasonable period of time. Id .; see State ex rel. Armstrong v. Coleman , No. W2000-01122-COA-R3-CV, 2001 WL 557991 at **6 (Tenn. Ct. App. May 24, 2001)

. Therefore, we fi nd th at th e t ri al co ur t e rr ed in se tt in g t he Fa th er ’s pa ym ents on the State’s child support arrearage judg ment at only $10.00 per week. Ac co rd in gl y, the judgmen t of the trial court is modified to terminate current child support as of April 27, 2001 and as modified t he termination of current child support is affirmed. The judgment in all othe

r respe cts is rev ersed, a nd the ca se is rema

nded to the trial court for determination of child s upport ar reara ges to April 27, 2001. The trial court should also make a determin ation as to

a reaso nable am

ount of ins tallment p ayments for th e arrear age consiste nt with this Opinio n. Costs of t

he appe al are a ssessed a

gainst t he appellee, Jason

Davis.

__________________________________________ W. FRANK CRAWF ORD, PRESIDING JUDGE, W .S

.