# FILED
February 1, 1999 Cecil W. Crowson Appellate Court Cle rk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, ex rel., ) KIMBERLY NORFLEET, ) ) Davidson Circuit Plaintiff/Appell

ant, ) No. 95D-996

) VS. ) Appeal No. ) 01A01-9805-CV-00228 TOMMY DOBBS, JR., ) ) Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE MURIEL ROBINSON, JUDGE

For Plaintiff/Ap

pellant : For Defendant/Appellee : John Knox Walkup No appearance Attorney General and Reporter Tammy L. Kenne

dy Assistant Attorney General



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 This amount included $55 in child support and $2.75 representing the circuit court clerk’s five percent comm

ission because Ms. Norfleet was required to pay her child support through the clerk’s office in accordance with Tenn. Code Ann. § 36-5-101(a)(4)(A) (Supp. 1998). -2- 

## O P I N I O N
T his appeal involves a par ent’s efforts to av

oid paying child suppo

rt for he r two children. Approximat ely two years after the C ircuit Court for Davidson C

ounty awardedcustody of the partie s’ two children to t heir fa ther, the children’s mother, withthe assistance of a lawy er furnished by the IV- D c ontractor for Da vidson County, filed a petition to eliminate her child support obligation because she was unemploye d and her only income was Supplemental Security Income (“SSI”) payments. Following a bench tr ial, the trial cour

t denied the mother’ s petition on the groundthat she was voluntar ily unemployed. The

mother asserts on this appeal that the trial court’s orde

r conflicts with the child support guidelines because s

he will be required to use her SSI payments to pay her c hild support. We have determined that the evidence does not pre ponderate against the

trial court’s finding that the mother is voluntarily unemployed and that the trial c

ourt’s order is consi stent with the child support guidelines. T

herefore, we a

ffirm the trial c

ourt.

I.
Tommy Dale Dobbs, Jr.and Kimberly Ann Norfleet were married on March 19, 1993. On October 11, 1993, Ms. Norfleet gave birth to Austin Dale Dobbs and Ashley Nicole Dobbs. Mari tal pro blems eventually caused the parties to separate. On June 12, 1995, Mr. Dobbs and Ms. Norfl ee t signed a marital di ssolution agreement

i n whic h they agreed that Mr . Dobbs was entitl

ed to an irreconcil

able differences divorce, that he sho uld have sole custody of

the children, and t

ha t Ms. Norfleet would pay $57.75 per w eek in child support 1 and would also provide medical and hospitalization ins urance for the chi

ldren. Following a

hearing on July 25, 1995, the trial cour

t entered a final j udgment of divorce on A ugust 24, 1995, granting Mr. Dobbs an irreconcilable differences divorce and approving the marital dissolution agreemen

t.

Ms. Norfleet has apparently been unemployed since 1995. In mid-1996, she sought unsuccessfully

to reduce her child

support obligation. I

n October 1996, she applied for SSI benefits under Title XVI of the

Social Security Act and on February2 The nature of Ms. Nor fleet’s disabil

ity is not clear. In response to the trial court’s questioning, she stated that “[i]t’s bipolar, manic, tomonic (phonetic), and hianzitis (phonetic).”

3 The Notice of Award stated: If you work full-time

or part-time and m

ake $65 or less ea

ch month, your SSI wil

l usually not change. As the money you earn from your job goes up, your SSI will go down. However, if you have no other income (money or support), you can earn up to $1,052.99 a month and still get at least $1 in SSI.

4 Mr. Dobbs was represented byan attorney during the original divorce and first modification proceeding. He has, however, been unrepresented ever since the 1997 proc eeding. -3- 10, 1997 received word that she was entitled to receive $322.67 p er month. The letter informingher of her benefits stated that “[t ]he doctors and other trained personnel who decided that you are

disabled believe tha

t your health may improve. 2 Therefore,
we will review your case

in about 3 years.” It also informed her that she could work and still receive SSI

payments. 3 On February 27, 1 997, the Social Se curity Admini strati on informed Ms. Norfleet that her SSI payments were being increased to $484 per month.

Atabout the same time, Ms. Norfleet r

equested the IV-D

contractor for Davidson County for assistance in seeking a reduction of her ch ild su pport obligation. On April 25, 1997,a lawyer furnishe d by the IV-D contracto

r filed a petition on M s. Norfleet’s beha

lf seeking to

decrease her child support “due

to petitioner [sic] only
source of income being social security benefits.” Duri ng a May 22, 1997 hear ing, Ms. Norfleet testif

ie d that sh e was currently li ving with her boyfrie

nd and that she
was borrowing money from her mother to make her child support paym ents. Accordingly, on June 24, 1997 , the trial court e ntered an order dism

issing Ms. Norfleet’s petition and granting M r. Dobbs a $1,515 judgment for the child support arrearage. 4 Following this hearing, Ms. Norfleet was obligated to continue to pay $57.75 per week in child support and $10.50 per week to reduce the arrearage.

On November 3, 1997, Ms. Norfleet, with the assistan ce of thelawyer furnished by the IV-D contractor, filed athird petition to decr

ease her child suppor

t. She again asserted that s he wa s unemploy ed and was receiv ing SSI disability payments and also claimed that sh e was no longer living

with her boyfriend and that her mother had stopped loa ning her money to pay her child support. During a November

20, 1997 hearing, Ms. Norfleet testified that she had recently been arrested-4-

for “pre s cription fraud” and that she had pawned h

er automobile in orde

r to make bail. At the conclusion of the hearing, the trial judge ruled from the bench as follows:

I am not g oing t o grant her petition. I’ve had an opportunityto see Ms. Dobbs, and I think th at she can obtainsome employment. I’m not so sure that this disabilitything is not an error, and I think Social Secur

ity ought to re -thi nk her case and make sure that she’s not drawing it when she shouldn’t be.

* * * So I want the

order to reflect that I’m not going to grant her petition

. I thi nk she’s underemploye d and I think the disability matter – where she’s drawing SSI – needs to be reviewed, and I will so order a review to make

sure that she is drawing under thi s p rogram appropriat ely, so if you’ll put that in the order. The trial court also pro

vided Mr. Dobbs wi

th one of the IV-D cont

ractor’s pamphlet

s in order to enable him to obtain as sistanc e in collecting child support from Ms. Norfl eet. On March 31, 1998, the trial court entered an order finding “that th e Petitioneris receiving SSI be nefits but . . . th

at the Petitioner is

able to work and is not disabled.” The trial court also stated “that the State of Tenness ee should investigate

the Petitioner’s c

laim of disability

to determine whet

her her SSI disabi

lity shouldbe term inate d.” The State, through the Attorney General and Reporter, has perfected this appeal on Ms. Norfleet’s behalf.

II.

This case comes to us in a unique posture. Whil

e it is not unusua

l for th e Attorney General and

Reporter to appear

in this court on

behalf of custodial parents who are seeking assistance in collecting child sup port under the IV-D program, this is the first appeal in

which the Attorney General and Reporter has appeared before us to advocate decreas

ing a noncustodial pare

nt’s child support obliga

tion. Because the father is unrepresented an

d because no party be

fore the court appe

ared to be advocatingthe best interests of the children, we

invited the Attorney

General and Reporter to enlighten us concer

ning his role in thi s proc eeding. The Attorney General and Reporter has pr ovided us w ith a supplemental br ief asserting that h

is conduct, and that of the IV-D cont ractor, is consisten t with the IV-D program. He has also suggested that we sho uld not inquire into these

matters because t

hey are beyond5 See S. Rep. No. 93-1356 (1974), reprinted in 1974 U.S.C.C.A.N. 8133, 8145.

6 See 42 U.S.C.A. § 654(4)(B)(ii) (West Supp. 1998); S. Rep. No. 93-1356, reprinted in 1974 U.S.C.C.A.N. at 8158.

7 See Act of May 4, 1977, ch. 235, 1977 Tenn. Pub. Acts 566.

8 See Act of Apr. 6, 1982, ch. 764, 1982 Tenn. Pub. Acts 372.

9 See Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (1988). -5- t he scope of this appeal. We respectfully disagree. The best intere sts of mino r children whose par

ents are before th

e court are proper

ly our concern.

In 1974 the Congress enac ted the IV-D prog

ram to prov ide the states with financial incentives to improve their laws and programs to collect child suppor t from noncustodial parents. The pro gram’s major

premises were th

at the rapid increase in AFDC spending were, to a great extent,caused by the failur e of noncustodial parents to support their children 5 and th at the rate of grow th of federal spendi

ng could be moderated if the s ta tes collected child support more aggressively. Thus, the IV-D program require d the states to provide custodial parents w ith legal assistance

in collectingchild support from nonc ustodial parents. 6 The General As sembly responded in 1977 7 and again in 1982 8 by enacting statutes e mpowering the Stat

e to providechild support collect ion ass istance not only to custodial par ents receiving AFDC support but also to custodial paren ts who are not. See Tenn. Code Ann. § 71- 3-124 (Supp. 1998); Baker v. State ex rel. Baker , No. 01A01-9509- CV-00428, 1997 WL 749452, at *3 (Tenn.

Ct. App. Dec.5, 1997) (No Tenn. R. App. P. 11 application filed).

When the Congress enacte d the Family Suppo

rt Actof 1988 9 , it included a provision requiring the stat es to enact laws provi ding for two types of review of child support orders being enforced under the IV-D program. The first type of r eview is a periodic review . See 42 U.S.C.A.§ 666(a)(10)(A) (West Supp. 1998). This type of review is automatic and env isions updatin g child support awar ds enforced by the IVD program without requiring pr oof of a substantial ch ange in circumstance s. See 42 U.S.C.A. § 666(a)(10)(A)(iii). The second type of review is a review initiated at the req uest of either parent. See 42 U.S.C.A.§ 666(a)(10)(B). Under this p

rocedure , modificationsto an existing child suppo rt obligation will

not be made if the requesting party fa

ils to demonstrate a substantial change in c ircumstances.-6- The Secretary of Health and Human Services later promulgated regulations to implement

the review procedures required by the Fam ily Support Act of 198 8. These regulations providethat IV-D agenc ies must “[p]eriodi

cally review and a

djust child sup port orders, as appropr iate, in accorda

nce with § 303.8.”

45 C.F.R. § 303. 4 (19 98). They define an “adjustment” as “[a]n upward or downward change in th e amount of child support based upon an application of Stat e guidelines for sett

ing and adjusting child support award s.” 45 C.F.R.§ 303.8(a)(1)(I ). They also defi

ne “review” to include “an object ive evaluation,conducted through a proceeding before
acourt . . . of informa

tio n necessary for app

lication of the Stat

e’s guidelines for support.” 45 C.F.R. § 303.8(a)(3). In addition, the regulations require IV-D agencies to notify obligor parent

s of their right to re

quest a review of their child support order. See 45 C.F.R. § 303.8(c)(2).

One of the original p

remis es of the IV-D pr

ogram was that aggr

essively pursuing child

support from a noncust

odial parent was in a child’s best inter ests. It is for this reason that

the IV-D progra

m requires states t

o provide assistance to custo dial par ents who are attempting to collect child support from noncustodial parents. The Secretary’s re gulations, promulgat

ed in response to the

Family Support Act of 1988, introduce the

s eemingly anomalous not ion that it might also be

in a child’s best interests to decrea se the a mount of support received by a noncustodial parent. While the regulations themselves do not elucidate how the Secretary arrived atthis conclusion, an I

nformation Memora

ndum issued by the Off ice of Child Support Enforcement explains that

In some cases, a downward adjustment may even be advantageous to the child if it res ults in an amount of support which can be paid f ully , regula

rly, and timely by the obligor. An unreal

istic order, whic

h is incons i stent withthe guide lin es and the obligor’s ability to pay, may result in only sporadic payments or none whatsoever. The Role of the IV-D Agency and Its Staff in Delivering Program Services, OCSEIM-93-03 (July 23, 1993).

This pr oceeding does not requ ire us to review or

endorse the Secre

ta ry’ s conclusion

that decreasing the amo

unt of child support may,

in some instances, b

e in the child’s best intere sts . We cite these federal materials only to make clear that federal law does, in fact

, empower lawy

ers furnished by IV

-D agencies or

contractors to assist non-custodial pa rents who are see

king to decrease the

amount of their

child10 Federal law does not requi re IV-D agenc

ies or contracto

rs to provide assis

t ance to al l noncustodial parents s eeking to d ecrease their child support. They are permitted to make an independent

decision that a non

custodial parent

has a merit

orious c laim for reductio n of child support before agreeing to provide assistance.

11 See Smith v. Smith , 188 Tenn. 430, 437-38, 220 S.W.2d 627, 630 (1949); Rubin v. Kirshner , 948 S.W.2d 742, 747 (Tenn. Ct. App. 1997). -7- support obligation. 10 Thus, fo r the purp oses of this case, t he lawyer furnishe

d by Nashville’s IV-D agency could properly appear in the trial co urt to advocate decreasi ng Ms. Norfleet’s child support. Beca

use this lawyer wa

s technically representing

the State, see Tenn. Code Ann. § 71-3-124(d) (Supp. 1998), the Attorney General and Reporter may likewise pursue this appeal by virtue of hi s authority to represent the State in all civil litigated matters. See Tenn. Code Ann. § 8-6-109(b)(1) (1993).
Concluding that lawyers furn ished by a IV-D agency or contractor

may assist noncustodial parents who are seeking to decr

ease their child supp

ort does not

end the mat ter. Serious conflict of interest concerns arise when governm ent-provide d lawyers advocate decreas ing child support. Cour

ts, discharging thei

r parens patriae responsibility

to children of divorc

ed parents, 11 should satisfy themsel ves in these circumstances that the interests of the child are being adequate

ly represented. They may reasonably conclude , in absence of evi dence to the

contrary , that a lawyer advocatinga decrease in the no ncu stodial parent’s chi ld support obligation is no t necessarily represen ting the best inte rests of the child. They may also take steps to satisfy themselves that the custod ial parent is able to represent the chil

d’s best interests.

In circumstances such as this case, where the custodial parent desires, but does not hav e the financial means, to retain counsel to a

ssist in opposing a reque st to decrease child support, the co

urt may appropriate

ly take steps to aid the custodial parent in seeking legal assistance. Under both state and federal law, the custodial parent is entitled to reques

t assistance from t

he IV-D agency o

r contractor. However, when the IV-D agency or contractor is already furnishing legal assistance to th e noncustodial parent, it may be unable or unwilling to

providelegal assistance to the cust odial pa rent. If the IV-D agency or contractor undertakes to provide legal assistance to the custodial parent, t he trial court should satisfy itself that no ethical conflicthas arisen by perm itting lawy ers furnished by the s ame IV-D agenc y or12 The Board of Professional Responsibility has issued a formal ethics opinion co ncluding that

attorne ys furni shed by IV-D age ncies or contrac

tors may appear i

n later proceed

ings to advocate modifying a

child support award even though theyhad previously assisted in establishing the award for the other parent. See Board of Professi onal Re spo nsibility, Formal Op. 90-F-123 (Sept. 14, 1990). This case involves a different circumstance. The question here i s not wh ether a lawyer furnishedby a IV-D agency or contractor can

assert differe

nt interests in

two proceedings, but rather whether a lawyer or lawyers furnished by the same IV-D agency or contractor may assert differ ent interests in the same proceeding. -8- contractor

to assert conflicti

ng positions in

the same proceedin

g. 12 If the IV-D agency
or contractor declines to provide legal assista nce to the custodial parent or if the court determines that the manner in which th e IV-D agency or contractor has chosen to providelegal assistance creat es a conflict of inte

rest, the court ma

y appoint a lawyer to assist the custodial parent and may orde r that the lawyer' s fee be

paid from funds administered by the IV-D agenc y or cont racto r. The court shoul

d not appoint a lawyer to assist the custodial

parent until it

has satisfied itself

that the custodial par

ent has a colorable claim for child support or a colorable defense to the nonc ustodial parent's request for modification of an existing child support order.

As far as this recor

d shows, Mr. Dobb s ha d not, p rior to the Novembe r 20, 1997 hearing , re quested the IV-D contractor to assis

t him in collecting the

child support arrearage owe

d by Ms. Norfleet or

in defending her req

uest for reduction in her child support. Even though the trial co urt provided him wi th info rmation concerning

how to seek this assistance at the conclusion of th

e hearing, Mr. D

obbs did not make an appearance in this court, and the rec ord contains no

indication that he sought assistance for this appeal. Because we have determined that this case may properly be submitted for decisi on under Tenn. R. App. P. 29(c), we need not consider whether M

r. Dobbs is entitle

d to counsel for this ap

peal.

III.

Ms. Norfleet raise s only one issue on t his appeal. She asserts that the trial court’s denial of her

motion to modify her child support obligation is contrary to the childsupport guidelines bec ause she will be required to use her SSI payments to pay her child support. W

e have concluded that

Ms. Norfleet ha

s misconstrued both the trial court’s orde

r and the child support

guidelines.-9- Th e child support guideline s clearly state tha t the courts may not i

nclude i n their calculation of a nonc

ustodial parent’s gr

oss income benefits t

he parent is receiving from “means-tes

ted publ ic assistance programs . . . such as . . . Supplemental Security Income (SSI).” Tenn.Comp. R. & Regs. r. 1240-2-4-.03(3)( c) (1994). However

, the child support gui

delines also state w

ith equal clarity tha

t If an obligor is will fully and voluntarily unemployed or underemployed,child support shall be calculated based on a determinati o n of potential income , as evidenced by educational level and/or previous work experience. Tenn. Comp. R. & Regs. r. 1240-2-4-.03(3)(d). In this case, the

trial court did not use Ms. Norfleet’s SSI payments to calculate the amou nt of her child supp ort. Rather, the trial court sim

ply concluded, based

on the proof and its oppor tunity to view Ms. Norfleet in court, that Ms. Norfleet was willfully unemployed an d t hat she was capable of earning $6 8.25 per week to enable her to pay her child s upport.

The trial court’s conc

lusion that Ms. Norf

leet was able to do s o me wor k and that she was voluntarily u nemployed is not inconsis tent with the Socia

l Security Administration’s decision nine months earlier that Ms. Norfleet was entitled to SSI benefits. The Social Secu rity Administration did not conclude that Ms. Norfleet was unable to perform

any work, and in fa

ct, it specifical

ly informed Ms. No

rfleet that she couldwork either full-

time or part-time

and still receive a

prorated portion of the SSI payments as long as she did not earn more than $1, 052.99 per month. T hus, the mere fact that Ms. Norfleet was receiving SSI pay ments did not prevent t

he trial court from concluding that she wa

s voluntarily unemploye

d.

Atthe November 20, 1997 hearing, Ms. Norfleet had the burden of provi

ng that there had been a

substantial change in her circumstances and that she was unab le to
earn sufficie n t income to enable he r to meet her curr

ent child support obliga

tion. While she may have proved that she was no longer living with her boyfriend and that her m other ha d declined to loan her anymore money, she failed to satisfy the trial courtthat she was so disabled that shewas unable to perform any sort of work. Based
on the record before us, we have no basis to conclude that the evidence preponderates against the trial co

urt’s conclusion that

Ms. Norfleet is voluntarily unemployed

.
IV.-10- We affirm the order denying Ms. Norfleet’s request to modify her child support obligation. We remand the case to the trial court for

further proceedi

ngs consistent withthis opinion and for the entry of an order di

recting the State t

o provide the Nashville District Office of the Social Security Administration with a copy of the trial court’s March 31, 1998 or der. We tax t

he costs of this appea

l to Kimberly Ann Norfleet for which execution, if necessary, may issue.

____________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

_________________________________ PATRICIA J. COTTRELL, JUDGE