1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the

concurrence of all judges participating in the case, may affirm, reverse or modify the ac tions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ GRETCHEN BROOKE KAEMME R THE HONORABLE FLOYD SMITH, PEETE, JR., CHANCELLOR Petitioner-Appel

lant, REVERSED AND REMANDED Shelby Chancery No. D14503-2 Vs. C.A. No. 02A01-9705-CH-00099 KENNETH LEE SMITH, Robert F. Miller, Je ri T. Moskovitz of Wolff Ardis of

Memphis Respondent-Appellee For Appellant Nili Sauer of Memphis, For Appellee

_____________________ ______________________________________________________ _ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J. This appeal concer

ns a post-divorce

proceeding invol

ving child support a

nd alim on y arrearages.

The parties, Gretchen Brooke Kaemmer Smith (Wife), and Kenne th Lee Smith (Husband), were divorced by decree entered October 5, 1987. The parties had six children, and the decree incorporated a child custody, support and property s ettlement agreement. As pertinent to the issues before

us on appeal, Wif

e was awarded c

ustody of th

e ch ildren, child suppo

rt, alimony in solido , payable in monthly installments, and alimony in futuro , payable in monthly installments. In part of 1995 and 1996, Husbandhad employment problems and failed to pay all of the monthly installment obligations provided for in the decree. On May 9, 1996, Wife filed a “Petition for Scire Facias and Contempt” seeking to hold Husband in contempt for his failure to comply with the final decree and for recover y o f arrearages for the past due child support, alimony in solido , and alimony in futuro
. Husband’s
answer admitted that beca

u se of his unemployment he was unable to meet the required installment payments, but ave rred that he was

entitled to various

credits against his obligations because of othe

r monies Wife con

trolled pursuant to

their separation

agreement.2 After an evidentiary hearing on June 19, 1996, the cour

t entered its

order on October 29, 1996, which provid

ed, as pertinent t

o the issues on appe

al. 3. Pur suant t o the agreement, Respondent agreed to pay 7/8 of his net income minus alimony and insurance obligations required by the Agreement; th

at Respondent h

a s paid to the very best of his ability; that Respondent is not guilty of cont emp t; that the petition for

Scire Facias and Contempt is hereby denied; and said arrearages are hereby forgiven. Wife has appealed

only from that part of the order which forgives arrearages for past due child support and alimony in solido . The only issue on appeal is whether the trial court erre

d in forgiving these arreara

ges. Husband’s brief

asserts that the c

ourt did not forgive

past due child support and alimony in solido but merely allowe d Husband credit

on these obligations b

ecause of various other sums of

money that

Wife appropria

ted and used. We m

ust disagree with t

his assertion. The order of the trial court is quite

explicit that the arrearages for which the petition
was filed are forgiv

en. The court spe

aks through its

orders and decrees entered upon the minutes of the court. Palmer v. Palmer , 562 S.W.2d 833 (Tenn. App. 1977), and the court’s order unambiguously

states that the arrearages sought by Wife are forgiven. To forgive arrea rages the trial court must have found there to be arrearages, and that brings us to the issue presented for review as to whet

her the trial cou

rt erred in forg

iving the arrear

ages. Wife first asserts that

the trial court erred in forgiving the arrearages in child support for any period of time prior to the filing of a proceeding to modify the final decree. The record is silent on the filing of a petition to modify the final de c ree as to child support, but Husband’s brief states that a petition to modify the final decree was filed on June 14, 1996. In any event, there can be no modification of a judgment for child support as to “any time period or any amounts due prior to the date that a n action for modification is filed and notice of the action has beenmailed to the last known address of the opposing parties.” T.C.A. § 36-5-101(a)(5 ) (1996). The tria l court erred in forgiving any arrearages in child support covered by the statute. Wife also asserts that the trial court erre d in forgiving arrearages in installments of alimony in solido . We agree. The award of alimony in solido becomes final 30 days after the entry of the final decree containingthe alimony award and is not subsequently modifiable. Day3

v. Day , 931 S.W.2d 936 (Tenn. App. 1996). The order of the trial court is reversed, and the case is remanded to the trial court for a determination of

the amount of arrearages of child support as allowed by T.C.A. § 36-5- 101(a)(5) and for a determination of the amount of arrearages of alimony in solido . The court shallalso determine what credits, if any, Husband is lawfully entitled to which will reduce or elim inate the amount of the a

rrearages. Cos

ts of the appeal a

re assessed equ

ally against

th e parties.

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

CONCUR:

____________________________________ DAVID R. FARMER,

JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE