### IN THE COURT OF APPEALS OF TE NNESSEE AT NASHVILLE Su bm itt ed on B ri ef

s, S ep te mb er

19, 200 7

LI NDA L. WEBE R, v. DONALD D. WEB ER, JR.

Direc t Appeal from the Circ uit Court forWilliamson County No. 98023 Hon. Ti mothy L. Easter, Cir cuit Judge

No. M2006- 2311-COA-R 3-CV - Filed November28, 2007

In this dispute over child support owing by the father, the Trial C ourt order ed child support ende d

on the gr ou nd s th e c hil d tu rn e d 1 8 a nd his hig h sc ho ol c la ss ha d gr a du a te d, bu t or de re d p a yme nts of ba c k c hil d s up po rt

arr e ara ge . O n a

pp e a l, w e a ff

ir m.

Te nn. R . A pp. P .3 App e al a s o f R igh t; Judg me nt of th e Ci r c uit

Co ur t A ff

ir me d.

H ER S CHEL P ICK EN S F R ANKS , P.J., delivered the opinion of the court, in which C H A RL ES D. S US ANO , J R ., J., and D. M I CHAEL S W I NEY , J., joined.

Da na C. M c Le nd on , I II , Fr a nk lin , T e nn e sse e , f or Ap pe lla nt.

Dea na C. Hood, Franklin, Tenne ssee, f or Appe llee.

OP IN ION

Pla int if f, L ind a W eber, w a s d ivo rc e d f

ro m de fe nd ant, Do na ld We be r, Jr., on Ap ri l 26, 2006, nunc pro tunc to J anuar y 11, 2000, in the Circuit Court for Will iam s o n C o u nty . The parties ha d ag ree d and the Court orde red that the husband’s c hild supp o rt ar rea rag e would be deter mined in the state of Te nnessee , and not Colorado. The parties f urt her a g ree d and the c ourt order ed that the husba

nd’s motion to dis miss for lack of jurisdiction would be dismiss ed.

On May 8, 2006, the husband filed a Motion to Terminate Child Support, st ating that the par ties’ child, Ry an (the only one that wa s still a minor), would turn 18 on May 19, 2006, and-2-

that his high school c lass would g raduate on May 22, 2006.

Th e State e nte re d a Not ic e of Ap pe ara nc e , a sse rt ingthat it

wa s a pa rt y sin c e thi s is a Title I V-D c ase.

The Court conduc ted a he aringon J une 27, 2006, and found that the child had turne d 18, and that the c lass of which he was a member had g raduated. The Court orde red the husband’s child support obligation termin ated, but that he owed an a rre ara g e of $3,322.00 to the State of Tenne ssee, whic h he could sa tisfy at the rate of $200.00 pe r month.

The State then f

iled a Mot ion to Alter or Amend pursuant to Rule 59.04, and asse rted that the issue of a

rre ara g e owe d to the wife w as not addre ssed. The State a lso asserted that it had

rec eived a dmissibl e evid en ce that Ry an wa s classified a s a junior as of the end of the 2005-2006 school y ear , that he wa s being home schooled, and that his e x pecte d g raduation date was 2007. The Court c on du c te d y e t ano the r h e aring, and fou nd that th e Mo tio n to Al te r o r A me nd wa s n ot w e lltaken, a nd denied the Motion. The w ife ha s appea led.

Th e pa rt ie s fi le d a State me nt of the Ev ide nc e , wh ic h s ta te s th a t a he ari ngwa s h e ld on J une 27, 2006, on the husba nd’s Motion to Terminate Chil d S u p p o rt, and that at that time, the parties a nd the minor child wer e all living in Colorado. The husband testified at the hea ring that the son had ente red hig h school in Colorado in 2002, and offe red a one-pa g e printout of what purpor

ted to be a sc hool rec ord, which w as admitted into evidenc e despite a hear say objection by the wife ’s counsel. The Statement of the Evidenc e provide s that this document was the ba sis of the Tr i al Court’s decision t o terminate the child support obligation, and that the Court found the wife did not produce proof of

compliance with the Colorado statutes on home schooling . The husband de nied that the wife had consulted with him about withdraw ing the son from public school to home school him.

Th e wi fe te sti fi e d th a t th e so n h a s d ia be te s w hic h make s it ha

rd fo r him to c on c e ntr a te and per form in school, and t h at was the r eason she withdrew him fr om public school and beg an home schooling . She testified that the son had one more y ear to g o befor e he w ould gr aduate from high school. She offe red se vera l documents, but the husband’s attorney objected on the g rounds of hear say , and the doc uments were not ad m i t t ed

. (T h ey wer e submitted as an of

fer of proof .) The wife c ontends that these documents demonstrated that Ry an would not g raduate until S pring 2007.

Whe n th e he ari ngon the Mo tio n to Alte r or Am e nd wa s h e ld, the wi fe of

fe re d th e se
same do c ume nts , b ut t

he y ha d sinc e be e n “a

uth e nti c a te d” wi th n ota

ri a l se a ls. Th e Tr ia l Co ur

t a g a in declined to a cce pt these docume nts into evidence, a nd co n cluded that the husband was more

cre dible than the wife , and found a ll disput ed fa cts in his favor.

The issues on appe al ar e:

1. Di d th e Tr ia l Co ur t e rr in a dmi tti nghu sb and ’s he ars ay e xhibi t?-3- 2. Di d th e Tr ia l Co urt e rr in g ra nti nghu sb and ’s mot ion

to t e rm inate c hil d

su pp or t? The wife char g es the Tr ial Court e rre d in a llowing the husband to present a document that pu rp or te d to be a

pr int ou t of R y an’s pu bl ic sch oo l r e c or ds , o n th e g ro un ds the do c ume nt i s hear say . The Statement of the Evidence states that husband “ offe red a one-pa g e printout of what purported to be a school re cord, w hich was a dmitted into evid en ce d es p ite a hea rsay objection by wife’ s counsel.” T he Statement does not re veal upon what basis the Trial Court over ruled the he ars ay ob je c tio n, bu t do e s st a te that th e Tr ia l Co urt rel ie d u po n th is d oc ume nt i n ma kin g its deter mination (along with the t estimony of t he husband and wife, and the wife’ s lack of home school documentation).

Trial cour ts are g iven wide discr etion reg ardingadm i s s i b ility of evide nce, a

nd we will not int erf

ere with their judg ment on same a bsent a c lear

abuse of discretion. TireSh re dd

e rs, Inc. v . ERM

, 15 S.W .3d 849 (Tenn. Ct. App. 1999). The S tatement of the Evi dence provides that th e husband testified that Ry an ente red hig h school in Colorado in 2002, and he introduc ed what purp or ts t o b e a sc ho ol r e c or d s ho wi ngthat Ry an w a s in th e 9 grade w he n h e wa s w ith dr a wn in th 2003. The wife admit ted t hat R y an was withdrawn from school in 2003, when he was in 9 g rade

. th

The Statement of the Evidence is silent reg ardingthe Trial Court’s rea soning be hind allowing this document to be admitted. Wit hout the rec ord showing why the Trial Court admitted thi s doc ume nt, we c ann ot say the Tr ia l Co ur t a bu se d it s d isc re tio n. Mo re ov e r, if it w a s im pr op e rl y admitted, it is harmless error , beca use both parties admitted the fa cts shown by this document (i.e. that Ry an wa s in the 9 g rade for the 2002-2003 school y ear ). Whil e the Trial Court stated that he th relied upon the document, he also stated t hat he relied upon the parties’ testimony , and the lac k of pr oo f r e g ard ingho me sc ho oli ngby the mot he r. Th e Court ma de c le ar that he fo un d th e hu sb a nd to be the mor e c re dib le wi tne ss. Th is i ssu e is w ith ou t me ri t.

Th e wi fe a lso argue s th a t th e Tr ia l Co ur t e rr e d in termi nat ing the hu sb and ’s c hil d support obligation, because the husband fa i l ed t o p rove that Ry an would have g raduated in 2006. The Tr ial Court found t hat t he husband testified t hat R y an entered high school in 2002, which placed him in the gr aduatingclass of 2006. The Trial Court stated that the wife testified that Ry an was now being home schooled a

nd would not gr aduate until 2007, but conceded that Ry an had c ompleted the 9 g rade when he was withdra wn from public sc hoo l in 2003). The dispute be tween the husband th and wife ’s testimony

was re solved it in the husband’s favor, based upon the Court’s finding the hu sb and wa s a mor e c re dib le wi tne ss.
This Court has previously said:
. . . on an issue which hing es on witness cr edibility , [t he trial c ourt] will not be

reve rsed unless, other than the oral testimony of the witnesse s, there is found in the

r e c o r d c l e ar , c o n c r e t e an d

c o n v i n c i n g e v i d e n c e t o t h e c o n t r ar y.

Te nn esse e Va lle

yKao lin Cor

p. v . P e rry , 526 S.W .2d 488, 490 (Tenn. Ct. App.1974) . We affir m the-4-

Trial Court on this issue.

For the forego i n g rea sons, we af firm the Judgment of the T rial Court and re mand, with the cost of the c ause a ssessed to L inda L . Weber.

_________________________ H ER S CHEL P ICK EN S F R ANKS , P.J

.