IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

On-Brief February 23, 2004

ANNA (RUTHERFORD) PEYCHEK v. DONALD LEWIS RUTHERFORD

A Direct Appeal from the Juvenile Court for Shelby County

No. B1532 The Honorable Kenneth Turner, Judge

No. W2003-01805-COA-R3-JV - Filed June 8, 2004

Appellant filed petition seeking credit against child support arrearage for necessaries

provided to minor children. The trial court granted Appellant $10,236.50 in credit toward his

support arrearage. Appellant appeals asserting that the trial court erred in giving a percentage of

necessaries provided. Finding that the Appellant did not meet his burden of proof in his claim for

necessaries and that the evidence in record preponderates against the trial court’s findings, we

reverse in part, affirm in part and remand.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Reversed in Part,

Affirmed in Part and Remanded

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and DAVID R. FARMER, J., joined.

Jefferson D. Gilder of Southaven, Mississippi for Appellant, Donald Lewis Rutherford

William Neal Small of Memphis for Appellee, Anna (Rutherford) Peychek

OPINION

Anna Rutherford Peychek (“Peychek,” “Plaintiff,” or “Appellee”) and Donald Lewis

Rutherford (“Rutherford,” “Defendant,” or “Appellant”) were divorced on September 17, 1990 by

decree of the circuit court of ShelbyCounty. The Final Decree incorporated, by reference, a marital

dissolution agreement (“MDA”) granting Peychek primary residential custody of the parties’ two

minor children, B.D.R. (d.o.b. 5/30/81) and M.J.R. (d.o.b. 11/12/83). Rutherford was ordered to pay

Peychek $620 per month in child support, and to continue to carry the children on his hospitalization

policy through his employer, Northwest Airlines. On October 19, 1990, the Final Decree of Divorce

was amended to include a provision requiring Rutherford to pay his child support arrearage, which

totaled $4,975.00 at that time, in monthly payroll deductions of $155.
 The Consent Order is not part of the record on appeal. 1

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On January 18, 1991, Rutherford’s employment with Northwest Airlines was terminated, and

he remained unemployed from January 18, 1991 until March 18, 1991. On March 18, 1991, he

secured a job with Memphis Parcel Delivery as a courier.

On or about February 13, 1991, notice was sent to the clerk of the circuit court that the juvenile court

had assumed child support jurisdiction. On February 27, 1991, Peychek filed a “Petition for Child

Support” in the juvenile court. On April 24, 1991, Rutherford filed a “Counterpetition to Modify

Child Support.” These petitions were heard by the juvenile court referee, and his Findings and

Recommendations were signed on May 23, 1991. On May 28, 1991, Peychek requested a hearing

before the juvenile judge. The request was granted and, after an evidentiary hearing, the court

entered an Order on September 19, 1991 which assessed the arrearage at $5,223.36 and required

Rutherford to pay support in the amount of $210.00 monthly.

Subsequently, Peychek filed a “Petition for Citation for Contempt of Court” and, after an

evidentiary hearing on September 3, 1992, the referee sustained the allegations of contempt and

ordered that all future payments, including the arrearage of $4,874.78 at that time, be made by

income assignment. An “Income Assignment Order” was signed on September 23, 1992.

On May 13, 1996, Peychek filed a “Motion to Modify Order,” seeking an upward

modification of child support based upon Rutherford’s income at that time. After an evidentiary

hearing on July 1, 1996, Rutherford’s child support obligation was increased from $210.00 monthly

to $603.75 monthly. 

On October 29, 2002, Rutherford filed a “Petition for Credit Against Child Support

Arrearages,” which reads, in relevant part, as follows:

5. That on the 4 of February, 1998 this court entered a Consent th

Order Modifying Custody. [Peychek] retained custody of [M.J.R.]

and [Rutherford] was granted custody of [B.D.R.].1

6. [Rutherford] would show the parties’ minor children, namely:

[M.J.R.], date of birth November 12, 1983, has resided with

[Rutherford] since October 2001 while continuing to complete her

senior year in high school which was not completed until May 2002.

7. [Rutherford] has paid for all school clothes, supplies, medical

expenses and all other expenses for the aforesaid minor child since

she has resided with him without being reimbursed.

8. That [Rutherford] should receive credit against any child support

arrearage held against him for the following reasons:
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a) [Rutherford] has purchased and paid for a vehicle for the minor

child at the request of and with the consent of [Peychek] so that

[Peychek] would not have to transport [M.J.R.];

b) [Rutherford] should be credited for child support which should

have been paid to him and for providing sole support while the minor

child, [B.D.R.], resided in his household from May, 1997 until May,

1999 when [B.D.R.] turned eighteen years old and graduated from

high school;

c) [Rutherford] should be credited for child support which should

have been paid to him since the minor child, [M.J.R], has resided

with him since October, 2001;

d) [Rutherford] should receive credit for his income tax returns from

tax years 1998 and 1999;

e) [Rutherford] should receive credit for payments for credit cards for

gas, maintenance and repairs for [M.J.R.’s] car, for clothing, etc.

f) [Rutherford] should receive credit for payment of several medical

bills for [M.J.R.].

The matter was heard on May 7, 2003 and Rutherford was given credit against his arrearage

in the amount of $10,236.50. The matter was continued until June 11, 2003 to compute interest on

the arrearage. On June 11, 2003 the trial court found the arrearage amount, as of May 1, 2003, to

be $26,319.71.

Rutherford appeals and raises three issues for review as stated in his brief:

I. Did the trial court err in giving a credit of only 50% of the child

support arrearage for the period of time while [B.D.R.] was living

with him, despite the amount of necessaries provided by Mr.

Rutherford exceeding the $575.00 per month in support ordered for

those months, because one child, [M.J.R.], continued to reside with

Anna Rutherford Peychek?

II. Was it error for the Judge to find that $2,558.00 for school clothes

were not necessaries when there was no argument raised by Mrs.

Rutherford Peychek that she was providing school clothes for

[M.J.R.]?
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III. Was it error for the trial Judge to find that the payments for the

auto and maintenance thereon by Mr. Rutherford for the vehicle used

by his daughter, [M.J.R.], which was titled in the name of Anna

Rutherford Peychek, were not credited against arrearages as

necessities and/or payments of child support?

Peychek raises the following additional issues for review as stated in her brief:

I. Did the unconsciontious [sic] and disrespectful conduct of the

Appellant rise to the level to justify an estoppel to prevent him from

obtaining relief in post-trial proceedings?

II. Can Appellant seek relief where he did not object to the

proceedings and how the court conducted them and where he did not

make efforts to preserve an adequate record?

III. Did the court err in allowing the Appellant to proceed after

emancipation of both children?

IV. Did the trial court err in allowing Appellant to proceed in the

hearing on May 7, 2003 in view of his failure to abide by prior orders

of the court?

V. Did the trial court err in giving credit for alleged payments made

directly to Appellee?

VI. Did the trial court err in granting any credits to Appellant on the

presentation of the cause?

We first address Appellee’s concern that Rutherford’s action/inaction in this case precludes

him from seeking relief. Peychek first asserts that Rutherford’s absence from the June 11, 2003

hearing should estop him from obtaining relief in this matter. Peychek cites to this Court’s opinion

in Couillard v. Couillard, 2002 WL 1446669 (Tenn. Ct. App. July 3, 2002) in support of her

contention. In Couillard, the plaintiff/father, after failing to appear at a hearing concerning his child

support obligation, filed a Tenn. R. Civ. P. 60.02 Motion to Set Aside. In the instant case,

Rutherford is not seeking to set aside the entire Judgment of the trial court; rather, he is seeking

review of the trial court’s findings contained therein. Rutherford’s presence at the hearing is not

germane to a review of the trial court’s decision in this matter.

Peychek also asserts that the trial court erred in allowing Rutherford to proceed after the

emancipation of both children. Rutherford seeks recovery for payment of necessaries provided to

the minor children. Such lawsuits sound in contract and must be commenced within six years after

the necessaries were provided. Foster v. Adcock, 161 Tenn. 217, 220, 30 S.W.2d 239, 240 (Tenn.
 T.C.A. § 36-5-101(a)(5) (Supp. 2001) reads, in relevant part, as follows:

2

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. Such judgment shall not be subject to modification as

to any time period or any amounts due prior to the date that an action for

modification is filed and notice of the action has been mailed to the last known

address of the opposing parties. If the full amount of child support is not paid by

the date upon which the ordered support is due, the unpaid amount is in arrears and

shall become a judgment for the unpaid amounts and shall accrue interest from the

date of the arrearage at the rate of twelve percent (12%) per annum. All interest

which accumulates on arrearages shall be considered child support....

Id. (emphasis added).

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1930); T.C.A. § 28-3-109(a)(3) (2001). B.D.R. lived with Rutherford from May of 1997 until his

emancipation in May 1999; M.J.R. lived with Rutherford from October 2001 until her graduation

in May 2002. Rutherford seeks credit for necessaries purchased during these time periods and his

filing for such credit on October 29, 2002 is within the relevant statute of limitations.

Peychek also cites Rutherford’s failure to abide by prior orders of the court as grounds for

denial of relief. Again, Rutherford is seeking credit against his child support arrearage for

necessaries and not a modification of the support obligation per se. The necessaries rule does not

violate T.C.A. § 36-5-101(a)(5) –the statute that forbids the retroactive modification of child support 2

awards. In Benson v. Benson, 1996 WL 284731, at *2 (Tenn. Ct. App. May 31, 1996), this Court

addressed the issue of the necessaries rule in relation to T.C.A. § 36-5-101(a)(5) as follows:

One objection to this [necessaries] rule is that allowing credits to

parents who have defaulted on their child support obligations violates

Tennessee Code Annotated section 36-5-101(a)(5). Despite this

objection, the courts have held that giving parents a credit against

their child support arrearages does not violate this code section.

Hartley, 1995 WL 296202, at *3; Netherton v. Netherton, No. 01-A01-9208-PB00323, 1993 WL 49556, at *2 (Tenn. App. 26 Feb.

1993); Sutton v. Sutton, No. 180, 1991 WL 16234, at *1 (Tenn. App.

12 Feb. 1991). Specifically, this court has acknowledged that the

statute prohibits retroactive modifications of child support payments.

As for credits, however, this court has held that they are not

modifications. Instead, the credit recognizes that the obligor parent

provided the support the court ordered in the first place. Netherton,

1993 WL 49556, at *2.

Id. (emphasis added).
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Because he seeks credit on and not modification of his support obligation, Rutherford is not

barred from recovery because he fell into arrears on his support since the nature of a credit

“recognizes that the obligor parent provided the support the court ordered in the first place.”

Netherton v. Netherton, 1993 WL 49556 (Tenn. Ct. App. Feb. 26, 1993). We now turn to those

issues concerning whether, and to what extent, Rutherford is entitled to credit for necessaries.

With respect to the “forgiveness of arrearages,” it is well settled that non-custodial parents

may be given credit against their child support obligation for payments made on behalf of their

children if such payments are for necessaries that the custodial parent either failed to provide or

refused to provide. Brownyard v. Brownyard, 1999 WL 418352 (Tenn. Ct. App. June 22, 1999);

Hartley v. Thompson, 1995 WL 296202 (Tenn. Ct. App. May 17, 1995); Oliver v. Oczkowicz, 1990

WL 64534 (Tenn. Ct. App. May 18, 1990). However, the credit for necessaries cannot exceed the

amount of support due for the period during which the necessaries were furnished. W. Walton

Garrett, Divorce, Alimony and Child Custody §14-8(8)(2001). The obligation to provide necessaries

requires the provision of appropriate food, shelter, tuition, medical care, legal services, and funeral

expenses as are needed. What items are appropriate and needed depends on the parent’s ability to

provide and this issue is to be determined by the trier of fact. Id. at §2-3(3). Since this case was tried

by the court sitting without a jury, we review the case de novo upon the record with a presumption

of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the

findings, we must affirm, absent error of law. See Tenn. R. App. P. 13(d).

In order to maintain a successful claim for necessaries, the plaintiff must prove: (1) that the

child needed the particular goods or services that were provided, (2) that the defendant had a legal

obligation to provide the goods or services, (3) that the defendant failed to provide the goods or

services, and (4) the actual cost of these goods or services. Hooper v. Moser, 2003 WL 22401283,

at *3 (Tenn. Ct. App. Oct. 22, 2003).

We have reviewed the entire record in this case and, applying the rules outlined supra, we find

that Rutherford has not met his burden of proof in order to maintain a successful claim for

necessaries. There is not sufficient evidence in the record before us from which we can conclude that

the payments claimed by Rutherford were for necessaries that the custodial parent failed or refused

to furnish. The evidence preponderates against the trial courts award of credit for necessaries.

We reverse the Order of the trial court allowing Rutherford credits on arrearages in the amount

of $10,236.50 for necessaries. The order of the trial court is otherwise affirmed, and the case is

remanded to the trial court for such further proceedings as may be necessary. Costs of the appeal are

assessed against the Appellant, Donald Lewis Rutherford, and his surety.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.