IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

August 16, 2016 Session

STATE EX REL. MELODY KAY ROGERS V. DONNIE O’KEITH LEWIS

Appeal from the Juvenile Court for Shelby County

No. K2627 Dan H. Michael, Judge

No. W2015-01882-COA-R3-JV – Filed October 21, 2016

This appeal involves a mother’s petition to set child support. The father objected to the 

petition, citing a prior order in which the parties agreed that no child support would be 

ordered but that he would remit payment for medical insurance or medical expenses as 

needed. The trial court granted the petition, set a current support obligation, and awarded 

retroactive child support and attorney fees, finding that the prior order was void as 

against public policy. The father appeals. We reverse the award of retroactive child 

support, vacate the attorney’s fees awarded and remand to the trial court for further 

proceedings consistent with this opinion.

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

Reversed in Part, Affirmed in Part; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which ARNOLD B. GOLDIN

and BRANDON O. GIBSON, JJ., joined.

Chasity Sharp Grice, Memphis, Tennessee, for the appellant, Donnie O’Keith Lewis.

Lucie K. Brackin and Carrie E. Kerley, Memphis, Tennessee, for the appellee, Melody 

Kay Rogers.

Herbert H. Slatery, III, Attorney General and Reporter, and M. Cameron Hines, Assistant 

Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, General 

Civil Division.
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OPINION

I. BACKGROUND

Melody Rogers (“Mother”) and Donnie Lewis (“Father”) are the unmarried 

parents of the Child, born in July 1997.

1

 In February 1999, Mother filed a petition to 

establish parentage and to set child support. Mother and Father (collectively “the 

Parties”) entered into an agreement in which Father was required to remit payment for the 

Child’s medical expenses incident to her birth and to provide medical insurance or to 

remit payment for future medical expenses. The agreement did not require the payment 

of monthly child support. In deference to the agreement, the court entered an order, dated 

March 5, 1999, that provided, in pertinent part, as follows:

1. That [the Child] shall be a legitimate [child] of [Father] for purposes 

of inheritance, support, and other lawful purposes and that custody of [the 

Child] be awarded to [Mother].

2. That [Father] pay all medical expenses incident to the birth of [the 

Child] and that no support be ordered by agreement of the [P]arties.

3. That [Father] shall provide medical insurance for [the Child], or in 

the alternative, that he be responsible for [the Child’s] medical expenses.

Despite the agreement and the March 1999 order, Father remitted monthly payments to 

Mother, totaling $61,555, for approximately 13 years. 

On July 31, 2012, Mother filed a new petition for child support, in which she 

requested an order establishing the support and maintenance of the Child, awarding child 

support retroactive to the date of the Child’s birth, and requiring Father to provide health 

insurance for the Child. Father sought dismissal of the petition, citing the original 

agreement and the 1999 order. 

The Juvenile Court Magistrate (“the Magistrate”) initially heard the matter and 

entered findings and recommendations on March 4, 2013, and again on July 8, 2013, 

requiring Father to remit payment for child support and the Parties to provide medical 

insurance and to share the cost of medical expenses not covered by insurance. The 

Magistrate did not address the issue of retroactive child support at that time. These

findings and recommendations were confirmed by the Juvenile Court Judge. A final 

 

1

The Child has since attained the age of majority.
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hearing was later held before the Magistrate, who entered the following findings and 

recommendations pertinent to this appeal: 

1. On March 5, 1999, this Court entered an order in this cause stating 

that, “[Father] pay all medical expenses incident to the birth of [the Child] 

and that no support be ordered by agreement of the [P]arties” and “that 

[Father] shall provide medical insurance for the [Child], or in the 

alternative, that he be responsible for the [Child’s] medical expenses”; 

2. Said order entered on March 5, 1999 is a valid and enforceable order 

of this Court;

3. [Father’s] Motion to Dismiss be granted in part and denied in part;

4. No child support arrearage shall be ordered as such would be a 

retroactive modification of child support pursuant to Tennessee Code 

Annotated [section] 36-5-101(f)(1);

5. [Father] shall be ordered to pay [Mother’s] attorney fees for 

reasonable costs and fees associated with prosecuting this action[.]

Mother filed a request for a hearing before the Juvenile Court Judge. Her request

was granted by Special Judge Nancy Kessler (“the Special Judge”). Following a hearing, 

the Special Judge found that the 1999 order was void and ordered Father to remit 

payment to Mother for retroactive child support in the amount of $105,359 and attorney 

fees in the amount of $16,982.56. The order at issue, signed by the Special Judge, 

provided, in pertinent part, as follows:

The Judge finds it necessary to be absent from holding Court, and pursuant 

to [Tennessee Code Annotated section] 17-2-122(b) appoints as substitute 

judge, Nancy Percer Kessler who is a licensed attorney in good standing 

with the Tennessee Supreme Court and a Magistrate appointed by him to 

serve as special judge in matters related to duties as a judicial officer. 

This appeal followed.

During the pendency of the appeal, this court issued an order questioning whether 

the Special Judge possessed the requisite authority to adjudicate the matter because the 

record did not contain a separate appointment order signed by the Juvenile Court Judge. 

We directed additional briefing addressing “whether the [S]pecial [J]udge was validly 
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appointed to hear this matter and if not, then addressing the effect on the validity and 

finality of the judgment appealed.”

Thereafter, the Juvenile Court Judge entered five orders, nunc pro tunc to each of 

the dates the Special Judge presided over the matter – November 14, 2014; December 19, 

2014; February 27, 2015; April 17, 2015; and July 22, 2015. The orders provide, 

The Honorable Dan H. Michael, Judge of the Juvenile Court of Memphis 

and Shelby County, Tennessee finds it necessary to be absent from holding 

Court, and pursuant to [Tennessee Code Annotated section] 17-2-122(b) 

appoints as substitute Judge, Nancy Percer Kessler, who is a licensed 

attorney in good standing with the Tennessee Supreme Court and a 

Magistrate appointed by him to serve as Special Judge in matters related to 

duties as a judicial officer. 

II. ISSUES

We consolidate and restate the issues raised on appeal as follows:

A. Whether the trial court possessed the requisite subject matter

jurisdiction to adjudicate the matter. 

B. Whether the trial court’s award of child support was an 

impermissible retroactive modification of child support. 

C. Whether the trial court erred in crediting Father with 35 days of coparenting time in calculating his support obligation. 

D. Whether the trial court abused its discretion in awarding attorney 

fees to Mother.

E. Whether either party is entitled to attorney fees on appeal.

III. DISCUSSION

A.

As a threshold issue, we must first address the question of the court’s subject 

matter jurisdiction. See Tenn. R. App. P. 13(b) (providing this court with the authority to 

consider the trial court’s subject matter jurisdiction whether or not the issue is raised on 

appeal). “The concept of subject matter jurisdiction involves a court’s power to 
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adjudicate a particular type of controversy.” Dishmon v. Shelby State Cmty. Coll., 15 

S.W.3d 477, 480 (Tenn. Ct. App. 1999) (citing Meighan v. U.S. Sprint Commc’ns Co.,

924 S.W.2d 632, 639 (Tenn. 1996); Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 

296, 297 (Tenn. 1988)). “Judgments or orders entered by courts without subject matter 

jurisdiction are void.” Id. (citations omitted). Moreover, a trial court’s lack of subject 

matter jurisdiction requires an appellate court to vacate the judgment and dismiss the 

action without reaching the merits of the appeal. Id.

Father argues that we must vacate the judgment because the Special Judge 

presided over the matter without a valid appointment order signed by the Juvenile Court 

Judge. Tennessee Code Annotated section 17-2-122 provides as follows:

(a) Notwithstanding § 16-15-209 or § 17-2-109 or any other relevant 

provision to the contrary, a judge shall have the authority to appoint a 

special judge as provided in this section.

(b) Sections 16-15-209 and 17-2-109 and any other relevant provision 

shall not apply where a judge finds it necessary to be absent from holding 

court and appoints as a substitute judge an officer of the judicial system 

under the judge’s supervision whose duty it is to perform judicial functions, 

such as a juvenile magistrate, a child support magistrate or clerk and 

master, who is a licensed attorney in good standing with the Tennessee 

supreme court. The judicial officer shall only serve as special judge in 

matters related to their duties as judicial officer.

(Emphasis added). Likewise, a substitute judge may be appointed pursuant to section 17-

2-118 for good cause or when a judge finds it necessary to be absent from holding court. 

Tenn. Code Ann. § 17-2-118(a), (f). Neither provision requires a written appointment 

order from the Juvenile Court Judge. 

However, our Supreme Court has held “that a trial judge should appoint a clerk 

and master to act as a special/substitute judge in his or her absence only if the trial judge 

determines it is not possible either to interchange pursuant to [section] 17-2-202 or to 

obtain assistance from another presiding judge or from this Court pursuant to section 16-

2-509(e).” Ferrell v. Cigna Property & Cas. Ins. Co., 33 S.W.3d 731, 738 (Tenn. 2000) 

(emphasis added). The Court further provided:

If a trial judge is unable to interchange or obtain assistance from another 

presiding judge or this Court and therefore appoints the clerk and master or 

another judicial officer, the order of appointment should be either for a 

definite period of time or for a specific case. A standing order appointing a 
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clerk and master as special/substitute judge to hear an entire class of cases 

is not appropriate.

Id. at 739 (emphasis added). The Supreme Court later confirmed that its pronouncement 

in Ferrell imposed a burden upon special judges to “confirm that their authority to 

preside is contained in the record.” In re Valentine, 79 S.W.3d 539, 545 n. 5 (Tenn. 

2002).2 

Here, a valid appointment order signed by someone other than the Special Judge 

was not contained in the record prior to this appeal. Mother agrees that the proper 

procedure was not followed but responds that the court’s lack of subject matter

jurisdiction was cured by the Juvenile Court Judge’s entry of the nunc pro tunc orders. 

We disagree. This court addressed the use of nunc pro tunc orders as follows:

A nunc pro tunc entry is an entry made now, of something which was 

actually previously done, to have effect as of the former date. Its office is 

not to supply omitted action by the court, but to supply an omission in the 

record of action really had where entry thereof was omitted through 

inadvertence or mistake.

Cook v. Alley, 419 S.W.3d 256, 261 (Tenn. Ct. App. 2013) (internal citation and 

quotation omitted). Accepting the nunc pro tunc orders under the circumstances 

presented in this case would allow the trial court to supply an omitted action.

Lastly, Mother and the State respond that we need not vacate the judgment and 

dismiss the action when the Special Judge acted under color of right as a de facto judge. 

In Ferrell, the Court held that the failure to follow the proper procedure did not require 

reversal when the clerk and master acted under color of right pursuant to its prior 

decision in State ex rel Newson v. Biggers, 911 S.W.2d 715, 718 (Tenn. 1995). In 

Biggers, the Court explained, 

A judge de jure is one who is exercising the office of a judge as a matter of 

right: that is, one legally appointed and qualified to exercise the office. A 

judge de facto is one acting with color of right and who is regarded as, and 

has the reputation of, exercising the judicial function he assumes. An 

unconstitutional statute is sufficient to give color of right or authority to 

elect or appoint a judicial officer, and a person elected or appointed by 

authority of such a statute is a de facto judge. A judge who actively 

assumes the duties of his office after he has been appointed by the governor 

 

2

The Special Judge, Nancy Percer Kessler, represented the appellant in In re Valentine. 
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of the state, or has been elected by the people, is at least a de facto judge 

even though facts aliunde might disclose irregularities in the appointment 

or the election. A judge de facto is a judge de jure as to all parties except 

the state, and his official acts are binding on third persons and the public.

* * * *

The judicial acts of one in possession of a judicial office created and in 

existence by law, under color of right, assuming and exercising the 

functions of such office with a good faith belief in his right to exercise such 

authority, involved and acquiesced in by the parties, the bar, court officials 

and the public, are those of a de facto officer.

911 S.W.2d at 718 (internal citations and quotations omitted). Here, we conclude that the 

Special Judge acted with a good faith belief in her right to exercise authority. Each order 

contained an explanation of her authority to preside, and neither party objected to her 

authority prior to this appeal. Accordingly, we must consider the merits of the appeal. 

B.

Father argues that the court’s recent order is a retroactive modification of the 1999 

order. He asserts that the 1999 order is valid because it did not relieve him of his support 

obligation when he was tasked with remitting medical expenses incident to the Child’s 

birth and health insurance or medical expenses throughout her minority. Both Mother 

and the State respond that the court’s award of retroactive child support is not an 

impermissible modification of the 1999 order. They claim that the 1999 order is void as 

against public policy because it purported to relieve him of his child support obligation. 

They note that the duty to maintain medical insurance is separate from the duty to 

provide child support. They further claim that the 1999 order does not contain specific 

findings supporting the court’s deviation as required by the child support guidelines. 

A child support order is a judgment, enforceable in the same manner as any other 

judgment issued by a court of law. See Tenn. Code Ann. § 36-5-101(f)(1); Nash v. 

Mulle, 846 S.W.2d 803, 804 (Tenn. 1993). As relevant to this issue, the Tennessee Code 

provides, in pertinent part, as follows: 

Any order for child support shall be a judgment entitled to be enforced as 

any other judgment of a court of this state, and shall be entitled to full faith 

and credit in this state and in any other state. Except as provided in 

subdivision (f)(6), such judgment shall not be subject to modification as to 
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any time period or any amounts due prior to the date that an action for 

modification is filed[.]

Tenn. Code Ann. § 36-5-101(f)(1). However, “agreements, incorporated in court decrees 

or otherwise, which relieve a natural or adoptive parent of his or her obligation to provide 

child support are void as against public policy[.]” Witt v. Witt, 929 S.W.2d 360, 363 

(Tenn. Ct. App. 1996). 

Nevertheless, parents may enter into an agreement to set child support pursuant to 

Tennessee Code Annotated section 36-5-101(j), which provides as follows:

Nothing in this section shall be construed to prevent the affirmation, 

ratification and incorporation in a decree of an agreement between the 

parties as to child support. In any such agreement, the parties must 

affirmatively acknowledge that no action by the parties shall be effective to 

reduce child support after the due date of each payment, and that they 

understand that court approval must be obtained before child support may 

be reduced, unless such payments are automatically reduced or terminated 

under the terms of the agreement.

“This subsection contemplates that the agreement: 1) will be in writing; 2) will be 

approved by a court; 3) will be incorporated into a court order; and 4) will contain the 

parties’ acknowledgment that they may not alter the agreement without court approval.” 

Berryhill v. Rhodes, 21 S.W.3d 188, 191 (Tenn. 2000) (footnote omitted).

While the 1999 order is deficient in some respects, it did not entirely relieve 

Father of his obligation to remit support when he retained the responsibility to maintain 

the cost of medical insurance or to remit payment for future medical expenses. See

Pennington v. Hennessee, No. M2010-01873-COA-R3-CV, 2011 WL 2267478, at *2-3 

(Tenn. Ct. App. June 8, 2011) (upholding a private agreement incorporated into a court 

order in which the father was required to remit payment for certain expenses in lieu of 

child support); Woodard v. Woodard, No. M2004-01981-COA-R3-CV, 2006 WL 

1343209, at *4 (Tenn. Ct. App. May 16, 2006) (upholding a parenting plan in which the 

father was required to provide medical insurance and to reimburse the mother for half of 

the medical and dental costs in lieu of child support). There is also no evidence of an 

agreement not to seek support in the future should a substantial and material change in 

circumstances occur. To the contrary, the evidence reflects that Father remitted monthly 

payments to Mother until she filed a new petition to set child support. Additionally, the 

court’s failure to issue a factual finding justifying the deviation from the child support 

guidelines does not render the 1999 order subject to attack when the time for direct 

appeal of the order passed. With these considerations in mind, we hold that the 1999 
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order was final and not void on its face and that the trial court’s setting of retroactive 

child support was an impermissible modification of the 1999 order. 

C.

In light of this court’s decision, any issues pertaining to the court’s calculation of 

the amount of retroactive support owed are pretermitted.

D. & E.

Father argues that the court abused its discretion in awarding attorney fees when 

he had a good faith basis to challenge the petition and when the fees were unreasonable. 

Mother and the State respond that the court did not abuse its discretion in awarding her 

attorney fees when such fees were reasonable and necessary to prosecute the action.

Tennessee follows the American Rule which provides that “litigants pay their own 

attorney’s fees absent a statute or an agreement providing otherwise.” State v. Brown & 

Williamson Tobacco Corp., 18 S.W.3d 186, 194 (Tenn. 2000); accord Taylor v. Fezell, 

158 S.W.3d 352, 359 (Tenn. 2005). “Under the American [R]ule, a party in a civil action 

may recover attorney fees only if: (1) a contractual or statutory provision creates a right 

to recover attorney fees; or (2) some other recognized exception to the American [R]ule 

applies, allowing for recovery of such fees in a particular case.” Cracker Barrel Old 

Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (citations omitted). 

“[A]s a general principle, the American [R]ule reflects the idea that public policy is best 

served by litigants bearing their own legal fees regardless of the outcome of the case.” 

House v. Estate of Edmondson, 245 S.W.3d 372, 377 (Tenn. 2008).

A right to recover attorney fees in child support disputes was created in Tennessee 

Code Annotated 36-5-101(l), which provides,

The court may, in its discretion, at any time pending the suit, upon motion 

and after notice and hearing, make any order that may be proper to compel 

a spouse to pay any sums necessary to enable the other spouse to prosecute 

or defend the suit and to provide for the custody and support of the minor 

children of the parties during the pendency of the suit, and to make other 

orders as it deems appropriate. In making any order under this subsection 

(l), the court shall consider the financial needs of each spouse and the 

children, and the financial ability of each spouse to meet those needs and to 

prosecute or defend the suit.
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(Emphasis added). Under the abuse of discretion standard, this court is bound by the 

principle that the trial court “will be upheld so long as reasonable minds can disagree as 

to propriety of the decision made.” Deakins v. Deakins, E2008-00074-COA-R3-CV,

2009 WL 3126245, at *7 (Tenn. Ct. App. Sept. 30, 2009) (quoting Eldridge v. Eldridge, 

42 S.W.3d 82, 85 (Tenn. 2001)). A trial court abuses its discretion when it “applie[s] an 

incorrect legal standard, or reache[s] a decision which is against logic or reasoning that 

cause[s] an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 

(Tenn. 1999) (citation omitted). An appellate court cannot substitute its judgment for that 

of the trial court. See Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). 

With that principle in mind, since the trial court did not consider the factors provided in 

the statute, we are vacating the award of attorney’s fees and remanding this case to the 

trial court to consider the factors provided by this statute. Exercising our discretion in 

such matters, we deny the competing requests for attorney fees on appeal.

IV. CONCLUSION

The judgment of the trial court is reversed, as to the award of retroactive child 

support and vacated as to the award of attorney’s fees. The judgment of the trial court is 

affirmed in all other respects. The case is remanded for further proceedings consistent 

with this opinion. Costs of the appeal are taxed one-half to the appellee, Melody Kay 

Rogers, and one-half to the appellant, Donnie O’Keith Lewis. 

_________________________________ 

JOHN W. McCLARTY, JUDGE