### IN THE CO URT OF APPEALS OF TE NNE SS EE AT JACKSON Octo be r 14 , 20 09 Ses si on

LANA WALTO N LUSTER v . KENNETH WALT ON

Direc t Appeal from the Circ uit Court for Sh elby County No. 141808 Robert

L. Chil ders, Judge

No. W2008-02167-C OA-R3-C V - F iled Novem ber 19, 2009

This is a post-divorce child support modification case

. The trial court relied upon the parties’ private
ag ree ment to modify child support, but failed to deter mine if the amount ag ree d to be paid complied with the Tenne ssee Child Support Guidelines. Vac ated a nd rema nded.

Tenn. R. App . P . 3. Appeal as of Right; Judgme nt of th e Circ uit Court Vacat ed and Rem anded

J

. S T E V E N S T A F F O R D , J
., delivere d the opinion of the court, in which A L A N E. H I G H E R S , P.J
., W.S
., and D A V I D R. F A R M E R , J ., joined.

Racha el Emily Putnam, Kay Fa rese Turner
, Memphis, TN, for the Appellant, L ana Walton L uster.

Mitchell D. Moskovitz and Ada m N. Cohen, Memphis, TN, for the Appellee , Kenne th Walton.

OP INION

Appellant L ana Wil son-Walton L uster and Appel le e K e nn eth Walton wer e divorce d by Final Dec ree enter ed on or about September 4, 1994 ( nunc pro tunc to J uly 6, 1994). The parties enter ed into a Marital Dissolution Agr eeme nt (“MDA” ), which a g ree ment was approve d by the trial court and incorporated by ref

ere nce into the Final Dec ree of Divorce

. Concerning child support, the MDA
states:

Husband shall pay Wife as child support the sum of $624.54 based

upon his income ear

ned from his curr ent employ ment.... Both parties mutually acknow ledg e that no action betwee n them will be eff ective
to reduc e child s u p p o rt pay ments, and they understand that Court approval m ust be obtained befor e child support can be reduc ed or t erminate d, unless such support pay ments are , by this ag ree men t , automatically

terminated or

reduc ed.Subsequent to the divorce
, Ms. L uster filed a petition for conte m p t ag ainst Mr. Walton.

Pursuant to this petition, Mr. Walton was found in conte m p t for failure to pay child support. I n 1996, Mr. Walton filed a petition for modifica tion of final dec ree of divorce , reque sting that c hild

s upport be reduc ed as he was unemploy ed at that time. Pursuant to that petition, the trial court temporar ily defe rre d a portion of the child support that he owed until he beca me employ ed or until September 1, 1996. On Fe bruar y 6, 1997, the parties settled another petition for contempt by consent order
, wher ein i t was stated that Mr. Walton paid the arre ara g e of c hild support due and ag ree d to pay Ms. Walton’s attorney

fee s incurre d as a r esult of the sec ond petition for contempt.

On Fe bruar

y 24, 1997, Mr. Walton filed a Petition to Modify the Previous Orde r of the Court. By his Petition, Mr. Walton asked the court for a reduc tion in his child support obliga tion based upon his alleg ed inability to find employ ment compar able in pay to the position he held at the time of the entry of the MDA. T he Petition does not address Mr. Walton’s cur rent e mploy

ment or income.

On October 7, 1999, Ms. L uster filed a petition for modification of the final decr ee of divorce and petition for injunction and restraining order

. There in, she avers t hat M r. W alton “is curr ently
pay ing child support in the amount of $411 per m o nth.” Ms. L uster asks the court to modify the visitation schedule and to awa rd child support pursuant to the Tenne ssee Child Support Guidelines.

By Orde r of Fe bruar

y 3, 2006, the trial court dismiss ed Ms. L uster’s October 7, 1999 petition for lack of prosec ution. Significa ntly
, while Ms. L

uster’s petition for modification was dismiss ed, Mr. Walton’s petition, which was filed two y ear s befor e Ms. L uster’s, was not. On Marc h 3, 2006, Ms. L uster filed a motion to set aside the order of dismiss al. I n her motion, Ms. L uster states that, “[p] rior to the peti t i o n b ei ng filed, [Mr. Walton] had obtained a decr ease in his child support obliga tion f

rom $624.54 per month to $411.00 per month.” Howeve r, there is no indication in the

rec ord that Mr. Walton’s child support obliga tion was, in fac t, reduc ed by the trial court. On J anuar y 16, 2008, the trial cour

t denied Ms. L

uster’s motion to set aside the or der of dismiss al.

On J anuary 2 3
, 2008, Ms. L uster filed a thi rd petit ion for civil contempt and modification of child support, whe rein she sta tes, in releva nt part, that:

3. Mother would show unto this Honora b l e C o u rt that Fa ther has knowing ly and willfully violated this Court’s Orde rs and failed to pay Mother the proper amount of child support since October 1999. Mother would show that Fa ther has willfully and knowing ly paid her the sum of $411.00 per month despite having full knowledg e that said

sum wa s n o t the amount which he ag ree d to pay and which he was order ed by

this Court t o pay

....

* * *

5. Mother would further show that s h e i s in need of a modi fica tion of the child support amount which Fa ther is curr ently obliga ted to pay

-2-based upon h is income incre asing to the extent that a signific ant varia nce exis ts in the amount of the incom e wh i ch he is ear ning.... Mother would ask this Ho n o ra ble Court to modify Fa ther’s child support obliga tion from $624.54 to the sum of $948.00 per month to

re fl ect Fa ther’s curr ent child support obliga tion based upon hi s

curr ent income from all sourc es p u rsuant to the Tenne ssee Child Support Guidelines.

On April 15, 2008, Mr. Walton fi l ed a response to the Ms. L uster’s third petition for contempt and modification of child support, along with a counter -petition for contempt, wher ein he states, in rele vant par

t:

3. Fa t h er denies that he has knowing ly or willfully violated this

co u rt ’s order by failure to pay the proper amount of child supp o rt since October of 19 9 9

. The MDA states that the amount of child support obliga tion is $624.55. However
, i n the Petition to Modif y filed by Mother on Octob er 7
, 1 9 99, she stated that the Fa ther was “currently pay ing child support in the amount of $411.00 per month....” Fur

ther more, both parties appar ently had been advised and b oth believed that the orig inal child support order had been previously reduc ed either in J uv en i l e Court or in Circuit Court. Fa ther believes that he was advised by prior counsel that his child support obliga tion had been decr ease d from the $624.54 amount to $411.00. I n addition, s upporting corr espondenc e and pleading s draf ted by Mother/petitioner’s counsel...state specific ally that the child support amount was reduc ed to $411.00 per m o n th. Both parties b el i eved and understood that this was the corr ect amount of child support. Fa ther has detrimentally relied upon the mutual belief of both he and Mo t h er t h at the amount had been in fac t, proper ly reduc ed by consent of the parties. Be cause the parties wer e mutually mistaken, Mother should now be estopped from claiming that Fa ther should have pa id a diffe rent a mount.

(Emphasis in orig inal) (c itations to record omitted).

On J une 11, 2008, Mr. W alton filed a motion for diminution of the re cord a nd/or for e ntry of an order nunc p ro t u n c, wh ere in Mr. Walton ag ain alleg es that the parties ag ree d to reduc e his child support obliga tion to $411.00 per month. Specifically , Mr. Walton states that:

[A] s a result of his Fe bruar y 24, 1997 Petition, Fa ther’s child support

was reduc ed to four hundred and eleve n dollars ($411) per month. Fa t h er has faithfully paid this amount eac h and ever y month since; howeve r, no Orde r ref

lecting same appea

rs in this Honora

ble Court’s

-3-rec ord.

* * *

10. Fa ther respe ctfully submits that either by inadver tence , omission

or mistake of either the prior couns el fo r the parties or the cler k of this Honora

ble Court, the Orde r resulting fr o m Father’s Fe bruar y 1997 reduc tion petition i s missi ng from the r ecor d.

* * *

Fa ther respe ctfully submits that this Honora ble Court should enter an Orde r i n diminuti on of t he record Nunc pro Tunc to 1997 ref lecting the re duction of child support to $411 per month.

13. Alterna tely
, Fa ther respe ctfully submits that h i s Februar y 24, 1997 Petition for a decr ease in child support is still pending
, and that this Honora

ble Court has the authority to reduc e child support retroa ctive to the filing date of same.

On J une 30, 2008, the trial court hear d Ms. L uster’s third petition for contempt and modificatio n

. At this hear ing, the trial court inqui red as to the ex istence of an agr eeme nt betwee n the parties to modify Mr. Walton’s child support obliga tion. The case was continued to Aug ust 15, 2008 in or der to g ive the parties time to inquire with pr ior counsel to deter mine whether any order
was, in fac t, enter ed conce rning the downwar d modification of Mr. Walton’s chil d s u p port obliga tion. No such order was found. On September 12, 2008, the trial cour t e ntere d its Or der on Mr. Walton’s Petition to Modify Final Dec ree of Divorce
, which states, in pertinent part, as follows:

I t appea rs to the Court that the parties, thr o u gh co u n sel in 1997,
ag ree d to re d uce [Mr. Walton’s] child support obliga tion from $624.54 per month to $411.00 per month, to be eff ective as of the date of the filing of the Petition. I T I S, THEREFO RE, ORDERED, ADJUDGED AND DECREED that [Mr. Walton’s] child support obliga tion be
, and the

same is here by
, reduc ed to $411.00 per month, eff ective M ar ch 23, 1997.

This Orde r further st ates that it i s “Nunc Pro Tunc [ to] Marc h 3, 1997.” Ms. L uster appeals from this order a

nd raises thre e issues for

revie w as stated in he r brief :

1. Did the trial court err in finding that the parties had enter ed into a private ag ree ment in 1997 modify ing Mr. Walton’s child support obliga tion?

-4-2. Did the trial court err in aff irming the private ag ree ment of the
p ar t i es which it found to have exis ted absent an analy sis an d calc u la ti o n of what Mr. Walton’s child support obliga tion would have been based u p o n t h e application of the Tenne ssee Child Support Guidelines?

3. Did the trial court err in its application of the doctrine of J udicial Estoppel?

P rivate Agre em ent

Be cause this case was tried by the court, sitti ng without a jury
, we revi ew the question of whether the parties enter ed into a private ag ree ment to modify Mr. Walton’s child support obliga tion de novo upon the rec ord with a presumption of corr ectne ss of the finding s of fac t by the trial court. Unless the evidenc e preponde rate s ag ainst the finding s, we must aff irm, absent err or of l aw. See Tenn. R. App. P. 13(d).

Ms. L uster asser

ts that the trial court err ed in basing its decision to enter an order
, nunc pro tunc to the date of filing of Mr. Walton’s 1997 petition to modify
, upon its finding that the parties had enter ed into a private ag ree ment to modify the order ed support. Specifica lly
, Ms. L uster asser ts that, in so doing, the trial court direc tly violated the holding in Berryhill v. Rhodes
, 21 S.W .3d 188 (Tenn. 2000). Mr. Walton counter s that the trial court did not, in f act, find that there was a private
ag ree ment. Rather, Mr. Walton contends that its decision to enter the nunc pro tunc order was based upon testimony supporting Mr. Walton’s petition and neg otiations between the parties’ respe ctive attorney s; conseque nt l y , Mr. Walton contends that Berryhill was not trig g ere d in this case

. I n support of his arg ument, Mr. Walton relies upon the following portion of the trial court’s statement from the be nch:

THE COURT: So it appea rs to the Court that the ag ree ment o f the parties to reduc e his support to $411–$4 1 1 even was not a private
ag ree ment. I t was done pur suant to the petition filed by the fa ther.

And only beca

use of the inadver

tence of the attorney s, either attorney , to enter an order pursuant to that ag ree ment which t h e mother acknow ledg es i n the M arc h 3
, 2006, motion, al t h o u g h she doesn’t rd call it [an] ag ree ment. She say s that the responde nt had obtained a decr ease in his child support. W el l
, i t appea rs obvious to me from

ever y thing I ’ve hear d in this case that he obtained the decr ease by
ag ree ment based on Mr. McGhe e’s testimony to the C o u rt

. Given that, I think that the fathe r’s motion for diminu t i o n of the rec ord and/or for entry of an or der nunc pro tunc is in order

.

-5-Despite the trial court’s statements, as our Supreme Court has noted: “the court speaks

throug h its order
, not throug h the t ransc ript.” In re A d o ption of E

.N.R.
, 42 S.W .3d 26, 31 (Tenn. 2001). The court’s order states “that the par t i es , throug h counsel in 1997, ag ree d to reduc e [Mr. Walton’s] child support obliga tion from $624.54 per month t o $411.00 per month, to be effec tive

as of the date of the filing of the Petition.” Fr om our rea ding, the order clea rly indicates that the trial

co u rt found a private ag ree ment betwee n these parties to reduc e Mr. Walton’s child su p p o rt obliga tion pursuant to Mr. Wa l t o n ’s P et ition to Modify Final Dec ree of Divorce

. Moreove r, the

rec ord supports this conclusion. At the Aug ust 15, 2008 hear ing, Ms. L uster’s prior counsel, Charles McGhe e, testified that, due to his experiencing a hear t attack at or near the time that Mr. Walton filed his petition for modification in 1997, his law partner, W illiam Monroe, took over the ma tter. Mr. McGhe e produce d a letter authore d by Mr. Monroe reg arding the petition for modification filed by Mr. Walton. The letter state s, in releva nt part, that:

[ W ] e will ag ree that the modification in child support sh al l b e retroa ctive to the date of [Mr. Walton’s] petition. We will also ag ree that y our client will pay 21% of his cur rent g ross income, less taxes and socia l security , plus the arr ear ag es due....

Fur thermore
, Ms. L uster’s 1999 petition for modification, supra , acknow ledg es the fac t that Mr. Walton wa s p ay i ng $411 per month in child support at that time. Although the word “ag ree ment” is not used in the 1999 petition, it is nonetheless appar ent that the parties wer e opera ting under terms differ ent from those order ed by the trial court in the final decr ee of divorce

. Be cause there is no e vidence in the rec ord that the trial cour t ever approve d or, in fac t, even c onsidered the parties’ unilatera l decision to proce ed with Mr. Walton pay in g o n l y $ 4 1 1 of the $624.54 amount order ed, we can only conclude that the parties modified the order ed child support throug h their own, private ag ree ment. There fore
, we must aff irm the trial court’s finding that the parties had ag ree d to reduc e the c hild support as the evidenc e does not pre pondera te ag ainst this finding.

Although the trial court did not err in finding that there was an ag ree ment betwee n the parties
to modify the o rd er ed s u pport, that finding is not dispositi ve. Parties may not enter into private
ag ree ments to avoid comply ing with child support ob l i gat i o n s set forth in statute and in the Tenne ssee Child Support Guidelines. Berryhill v. Rhodes , 21 S.W .3d 188, 191–92 (Tenn. 2000). Whether the parties had an ag ree ment or not, the trial court was require d to look bey ond that
ag ree ment in making its decision to modify the order ed child support. Fr o m o u r re v i ew of the
transcr ipt and the trial court’s order
, it appea rs that the court relied solely upon the parties’ ag ree ment in rea ching its decision to modify support, nunc pro tunc to 1997. I n short, while a trial court may 1

A s d i s c u s s e d i n d e t a i l a b o v e , a t t h e t i m e o f t h e h e a r i n g i n t h i s c a s e , M r

. W a l t o n ’ s 1 9 9 7 p e t i t i o n f o r 1

m o d i f i c a t i o n w a s s t i l l v i a b l e a s i t h a d n o t b e e n d i s m i s s e d f o r l a c k o f p r o s e c u t i o n

. T e n n

. C o d e A n n

. § 3 6

- 5

- 1 0 1 ( f ) ( 1 )
p r o v i d e s a s f

o l l o w s :

A n y o r d e r f

o r c h i l d s u p p o r t s h a l l b e a j u d g m e n t e n t i t l e d t o b e e n f o r c e d a s a n y

o t h e r j u d g m e n t o f a c o u r t o f t h i s s t a t e , a n d s h a l l b e e n t i t l e d t o f u l l f a i t h a n d

c r e d i t i n t h i s s t a t e a n d i n a n y o t h e r s t a t e

. S u c h j u d g m e n t s h a l l n o t b e s u b j e c t t o

-6-consider private ag ree ments to modify child support, in addition, it must apply the applicable

standard f or the modifica tion of child support as provided in the c hild support guidelines.

Appli cable Standard f

or Modifyin g Child Sup port

Tenn. Code Ann. § 36-5-101( e)( 1)(A) i n s t ru ct s t h e t rial court to apply the child support
g uidelin es , as s et forth in the rules and reg ulations of the Depa rtment of Human Service s, as a rebuttable presumption in determining the amount of child support. See Tenn. Comp. R. & Reg

. § 1240-2-4- .01 (2006). Even with the adoption of the 2005 child support g uidelines, trial courts reta in

a cer tain amount of discretion in their decisions reg arding child support, which decisions we revie w under an abuse of discretion standard. Richardson v. Spanos
, 189 S.W .3d 720, 725 (Tenn. Ct. App. 2005). A trial court abuses its discretion when it has applied an incorr ec t l ega l standard or has

rea ched a decision which is ag ainst logic o r re asoni ng that cause d an injusti ce to the party complaining

. Eldridge v. Eldridge , 42 S.W .3d 82, 85 (Tenn. 2001)

.
Upon considering a petition to modify ch ild support, the trial court must first deter mine whether there is a signif

icant varia

nce be tween the obligor ' s curr ent obligation and the amount set by the g uidelines. SeeTenn. Code Ann. § 36- 5-101(g ); Kaplan v. Bugalla , 188 S.W .3d 632, 636 2 (Tenn. 2006). The pare nt seeking to modify a child support obliga tion has the burden of proving that

a signific ant varia

nce exis ts. Wine v. Wi n e , 2 4 5 S.W .3d 389, 394 (Tenn. Ct. App. 2007). “[A] signific ant varia

nce is define d as at least a fiftee n perc ent (15%) chang e betwee n the amount of the

curr ent support order (not includin g any deviation amount) and the amount of the proposed presumptive support order ....” Tenn. Comp. R. & Reg

. § 1240-2-4- .05(2) (c ). Af t er finding a signific ant varia

nce, the trial court must deter mine the amoun t o f chil d support to be paid in

acc ordanc e with the child support g uidelines. The amount of child support order ed may deviate from the g uidelines, but the order must state the rea sons for this deviation. T en n

. C o d e Ann. § 36-5- 101(e) (1)( A) (2008). Parties may ag ree to an amount g rea ter than the g uideline amount or may ag ree to a differe nt method of calculating child support, “as long as the resulting child support meets or exceeds the amount mandated under the Guidelines.” Kesser v. Kesser
, 201 S.W .3d 636, 642 (Tenn.

m o d i f i c a t i o n a s t o a n y t i m e p e r i o d o r a n y a m o u n t s d u e p r i o r t o t h e d a t e t h a t a n

a c t i o n f o r m o d i f i c a t i o n i s f

i l e d a n d n o t i c e o f t h e a c t i o n h a s b e e n m a i l e d t o t h e l a s t k n o w n a d d r e s s o f t h e o p p o s i n g p a r t i e s

. . . .

U n d e r t h i s s t a t u t e , t h e t r i a l c o u r t w a s w i t h i n i t s a u t h o r i t y t o m o d i f y s u p p o r t g o i n g b a c k t o t h e d a t e o f M r

. W a l t o n ’ s 1 9 9 7 p e t i t i o n

.

T e n n

. C o d e A n n

. § 3 6

- 5

- 1 0 1 ( g ) ( 1 ) p r o v i d e s i n p a r t t h a t : 2

U p o n a p p l i c a t i o n o f e i t h e r p a r t y , t h e c o u r t s h a l l d e c r e e a n i n c r e a s e o r d e c r e a s e o f

s u p p o r t w h e n t h e r e i s f o u n d t o b e a s i g n i f

i c a n t v a r i a n c e , a s d e f

i n e d i n t h e c h i l d

s u p p o r t g u i d e l i n e s e s t a b l i s h e d b y s u b s e c t i o n ( e )
, b e t w e e n t h e g u i d e l i n e s a n d t h e

a m o u n t o f s u p p o r t c u r r e n t l y o r d e r e d
, u n l e s s t h e v a r i a n c e h a s r e s u l t e d f r o m a p r e v i o u s l y c o u r t

- o r d e r e d d e v i a t i o n f r o m t h e g u i d e l i n e s a n d t h e c i r c u m s t a n c e s t h a t c a u s e d t h e d e v i a t i o n h a v e n o t c h a n g e d

.
-7-2006)(c iting Tenn. Code Ann. § 36-5-101)

. The trial court must, howeve r, make the finding that the

ag ree ment meets the minimum obli g ation. Id.

This statutory scheme is mandatory
, and a trial court abuses its discretion if it fails to comply with it. As noted above, this re cord is de void of any evidenc e fr om which we c ould conclude tha t the t rial court utiliz ed the child support g uidelines to deter mine the amount of chil d s u p p o rt to be paid by Mr. Walton. I t appea rs that the trial court’s sole basis for modify ing the order ed support in this c ase was the exis tence of the parties’ private ag ree ment. Consequently
, we can only conclude that the trial court failed to apply the corr ect leg al standard in this case , and in so doing err ed in reduc ing Mr. Walton’s child support obliga tion. Be cause o f t h i s err or, all other issues are prete rmitted. Acc ording ly
, we vacate the trial court’s order on Mr. Walton’s petition to modify and

rema nd for pr oper de termination of child support in ac corda nce w ith the child support guide lines.

Conclusion

For the fore g oing rea sons, we vacate the order of the trial court and rema nd for such further
proce eding s as may be nece ssary and consistent with this Opinion. Costs of this appea l are assessed one-ha lf to Appellant L ana Wil son-Walton L uster and her surety and one-ha lf to the Appellee
, Kenne th Walton, for which execution may issue if nec essar

y

.

___________________________________

J . STEVEN STAFF ORD, J

.

-8-