1 Rule 10 (Court of Appeals). Memor a ndum Opinion .--(b) The Court, with the concurrence

of all judges part

icipating in

the case, may af

firm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum op inion it shall be designated “MEMORANDUM OPINION,” shall n ot be published, an

d shall not b e cited or relied on for any reason in a subsequent unrelated case. 

# FILED August 2, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ JACQUELINE FIELDS, Shelby Juvenile No. E0932 The Hon. A. V. McD

owell, Petitioner-Appel

lant, Judge REMANDED Vs. C.A. No. 02A01-9804-JV-00118 VINCENT SCOTT FIFER, Weissman & Associates of Memphis, For Appellant Defendant-Appellee. Charles A. Sevier and Gail R. Sevier of Memphi

s, For Appellee

________________________________________________________________ ____________ MEMORANDUM OPINION 1

____________________________________ _______________________________________ _ This case, which is befo re us a seco nd time, involves a child support controversy. Petitioner-App ellant, Jacqueline B. Fields, appeals the juvenile court’s order modifying the amount of child support that

Respondent-Appellee, Vincent Scott Fifer, was originally ordered to pay. On August 18, 1993, M s. Fields filed a petition against Mr. Fifer in the Juvenile Court of Memphis and Shelby County to establish paternity of Brandon Lawr ence Fields (now Brandon Lawrence Fifer), born August 31, 1992, and to set child support. On September 15, 1993, the juvenile

court entered a default judgment declaring Mr. Fifer the father of the minor child and setting monthly child support at $1,155.00. Mr. Fifer’s subsequent motion to set aside the default judgment

as to child support was granted and a hearing was held on September 30, 1993. Following the hearing, the juvenile cour t reset the monthly c

hild support at $840.00. The judge deviated downward from the amount requir

ed by the Tennesse

e Child Support Guidelines finding that application of the guidelines would be unjust and inappropriate. Ms. Fields appealed to this Court and on September 20, 1995, the Court filed a memorandum opinion that vacated the order of the juvenile court and remanded the case for a2 On March 17 , 1994, Mr. Fifer and his wife, who was not Ms. Fields, entered into a

marital dissolution agreement whi ch was incorporated into the final decree of divorce. In the decree, Mr. Fifer was ordered, inter alia , to pay his wife re habilit ativ e alimony in the amount of $2,200.00 per

month for three years, $1,750.00 per month for the fourth year following the divorce, $1,500.00 per month for the fifth and sixth years following the divorce, and $1,000.00 per month for the seventh, eighth, ninth and tenth years following the divorce.

3 On October 12, 199 8, Mr. Fifer filed a motion to dismi ss this appeal for Ms . Fields’ failure to file a transcript or statement of the evidence or a statement that there woul d b e no transcriptas required by T. R.A.P. 24. In the alt ernative, Mr. Fif

er sought dismissal f

or Ms
. Fields’ failure to

prosecute the ap

peal. After consideration of

the foregoing, this Court

entered an order on November 12, 1998, dismissing the appe

al for Ms. Fields’ f

ailure to file a tr

anscript.
4 Upon c onsideration of a petition for rehearing filed by Ms. Fields, this Court, on January 19, 1999, entered an order finding that all issues raised in the notice of appeal filed on March 13, 1996 are a pa rt of the curren

t appeal a

nd may be addr essed therein. This was determinedto be the case since the earlier notice of appeal was not ripe for appeal because of the petition to modify filed on Mar ch 4, 1996 which thi

s Court considere

d to be a Tenn. R. Civ. P. 2 determination of Mr. Fifer’s gross income, a determination of the amount of support applica

ble under the guidelines, and written findings as required by T.C.A. § 36-5-101(e)(1). On remand, the juvenile court, in

an order filed on

February 13, 1996 , found Mr. Fifer’ s monthly gross income to be $7,176.00 and guideline support to be $1,055.00 per month. Ho wever, finding application of the guidelines to be unjust and inappropriate givenMr. Fifer’s monthly income deficiency due to his many expenses and debts (some of which were court ordered), 2 the judge again set child support at $840.00 per month. On March 4, 1996, Ms. Fields filed a “Pet ition to Modify Order” with regard to the juvenile court’s order setting child support at $840.00 per month. In the petition, Ms. Fields requested that the amount of child

support be increased due to a change in circumstances in that the expenses for the

minor child

had greatly increased, that Mr. Fifer’s salary had increased, and that Mr. Fifer is capa

ble of paying an in

crease in child support. Ms. Fields also filed a notice of appeal to this Court on March 13, 1996. 3 On April 3, 1996, Mr. Fifer filed a motion requesting
a stay of the petition to modify which was granted by the juvenile court due

to the appeal to thi

s Court. Mr. Fifer filed a motion to dismiss the petition to modify and af ter this motion was dismissed, a hearing was held. On Mar ch 12, 1998, the juvenile court entered an order styled “Modification of Order” in whic h the court incre

ased monthly child s

u p port payments to $1,378.65 and ordered Mr. Fifer to pay $250.0

0 per month into

a trust fund for the minor child. This appeal ensued. 459.04 motion to alter or amend a judgment thus tolling the time for filing the no tice of appeal

until the trial court disposes of the motion. 3 In her initial brief to this Court, Ms. Fields raises the following issue for our review: Did the trial court

err in setting the required child support below the Tenn essee guidelines on grounds of the Defendant’s obligation of court-ordered alimony? However, in her

supplemental brie

f, Ms. Fields raise

s the following add

itional issues: 1. Did the Honorable

Special Judge of the Juvenile Court of Memphis and Shelby County, Te nnessee err in se

tting child support for the parties’ m inor c hild in an amount less than the Tennessee Child Support Guidelines pr omu lgated by the Tennessee Depa

rtment of Human Ser

vices? 2. Did the Honorable Special Judge err when he failed to include as the defendant’s gross income, income rece ived from the sale of stock (and from bo

nuses or commission

s) in light of Rule 1240-2-4.03(3) of the Tenn essee Child Support Guidelines, which provides that gross income includes income from any source? 3. Did the Honorable Special Judge err in not considering the amount of visitation that th

e defendant ac

tu ally sp ends with the minor child

when the Tenness

ee Child Support Guidelines

Rule 1240-2-4.04 states that child suppo rt can be increased when the child does not stay over

night with the obli

gor for t he average amount of visita ti on as promulgated b

y the Tennessee C

hild Support Guidelines ? While Ms. Fields styled her March 1996 pleading as a “Petition to Modify Order” and included language requesting an increase in chil

d support due to

a change in circumstances, we consider this to be a Tenn. R. C

iv. P. 59.04 motion to alter or amend a judgment since it was filed within thirty

days of the order of the juvenile court. For whatever reason,the juvenile court failedto rule on this motion forapproximately two years, and, when it did consider the motion, the juvenile court tre

ated it as a petitio

n to modify child support due to a change in Mr. Fifer’s financial situation, thus considering matters improper to a Rule 59.04 motion. As we view the record

in this case, afte

r the initial reman

d from this Court, the juvenile court entered a finaljudgment on February 13, 1996, again setting the child support at $840.00 per month. On March 4, 1996, Ms. Fields filed a “Petition to Modify

Order,” which s

pecifically sought to increase the amount of support awarded in the February order and which is, in ef

fect,
a 59.04 motion. In January of 1998, the court held a hearing on the March 1996 motion, and on March 12, 1998, entered an ord er styled “Modification of Order” setting child support at $1,378.65 per month, plus ordering Mr. Fifer to pay $250.00 per month into a trust fund. The4

order specifically provides that payments are to begin March 15, 1998. It is apparent that th

e trial court fai

led to consider Ms.

Fields’s motion as it r

elated to the February 13, 1996 final judgment . No provision is mad

e in the order con

cerning the inter

imtime between February of 1996 to March of 1998. The recor

d in this case indic

ates that it is

now in
a state approaching a

“procedural nightmare.” For that reason, this is an appropriate case for the application of T.C .A. § 27-3-128 (19 90) which provide

s: 27-3-128. Remand for correction of record. -- The court shall also, in all cases, whe

re, in its opinion, complete justice cannot be had by reason of some

defect in the record, want of proper pa rties, or oversight without culpable negligence, remand the cause to the court below for further proceedings, w i th proper direct ions to effectuate the objects of the

order, and upon su

ch terms as may be deemed right. On remand, the juven

ile court should

first consider Ms. Fields’s 59.04 motion relating to the February 1996 order. After making a determination of the proper amount of support as of February 1996, the

parties can then

file appropriate

motions to modify and then de termine if there is presently a sign ificant varianc

e between the ch

ild su pport award and the amount provided for in the guidelines. In considering the motions to modify, the courtshould give due regard to the effective date of any order of modification and make a determination concerning
an arrearage or overpayment of support during the time the February 1996 order was in effect. Counsel for the parties should cooperate to get the record in proper form and thus insure promptpayment of the supp ort to which the ch

ild is entitled. Pending an order by the court on remand, the tria

l court’s order o

f March 1998 shal

l remain in full for

ce and effect. Costs of the appea

l are assessed e

qually against the

parties.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE