# FILED
October 9, 199 6 Cecil Crowso n, Jr. Ap pellate Co urt C lerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________________________________________ ZELLA BALENTINE, Hardin Juvenile No. J-8792 C.A. No. 02A01-9508-JV-00190 Plaintiff, Hon. Max Seaton, Judge v. SIMON WHITE IN RE: PATERNITY OF ASHLEY ARRON BALENTINE, a minor, Defendant. T. VERNER SMITH, Jackson, Attorney for plaintiff. W. LEE LACKEY, Sav annah, A ttorney f or defe ndant. REVERSED IN PART

AND REMANDE

D Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. Zella B alentin e (“pla intiff”) filed a petition in the Ju venile Co urt of H ardin County seeking t o have thatcourt dec lare Si mon W hite ( “defendant ”) to be the natura l father of the parties ’ minor chil d, Ashley Bal entine . The Hardin County Genera l Sessions Court, i n its role as Juvenil e Court, found defendant to be the father

of the child and aw ard ed p laint iff retr oac tive c hild sup por t dati ng b ack to N ove m ber 1, 19 92. The sole i ssue on appeal is whetherthe trial c ourt abus ed its discr etion by not awarding
re tr oa ct iv e c hi ld su ppo rt ba ck to th e d at e o f the ch il d’ s b irth . F or th e r ea so ns st at ed , w e find that the tri al court

did abuse i ts di scret ion. Accordi ngly, we reve rse as t o this issue and rema nd this cause to that court for further proceedings. The vast majori ty of the fact s in this cas e are notin dis pute. The record i s clear that pl ainti ff and def

endant had ongoi ng sexual r elat ions fr om 1965 to 1977. Upon learni ng that s he was pregnant s he advised de fendant of her condition and ass erted that he was the chi ld’s f

ather. Plaintiff

gave birth to the parti es’ son, Ashley, on October 16, 1977. Fol lowing the bi rth of the chi ld ther e was little c ontactbetween the parties for the next fourteen year s. I n 1991, pla inti ff appr oached defendant about provi ding financi al suppor t for

Ashley. Defendant

indica ted tha t he would li ke to est ablis h ties with the c hild and i n the nextnine months beginni ng Novem ber 1, 1992 s ent a t otal of2

nine chec ks for $10 0.00 each to plaintiff. In July, 1993 plaintiff

fil ed her pet iti on seeking t o have defendant declar ed Ashley’s natural f

ather. A blood testtaken by orde r of t he court s howed that t he relative chance of

defendantbeing Ashley’ s father was 99.99%. The tri al court found defendantto be the naturaland biologi cal fa ther of the parties’ child a s well as being obligat ed to contribut e to the support a nd maintenance of the chil d. The court found that defenda nt was u nem ployed a nd at that tim e had n o earned incom e. The co urt orde red d efend ant to p ay m onth ly child supp ort in the am oun t of $1 30.00 per m onth based on the Tennes see Child Support Guideli nes (“TCSG”) as setout forminimum wage earnings. The court al so ordere d defendantto pay a $1, 570.00 arr earage, based upon the fi ndings that defe ndant had begun making suppor t on November 1, 1992, giving def

endant cr edit f

or the payment of

$900.00 fr om N ovember 1992 to July 1993.
Plaintiff fil ed a post-

judgment motion seeki ng a new tria l or a new hear ing, alle ging that

the court

erred i n sett ing chil d support a t only $130. 00 a month. After conducti ng a heari ng, the tri al court found that

based upon defenda nt’s t ax returns for the y ears 1991 t o 1993, defen dant ’s an nual gros s in come for the pur poses of t he TCSG was $15,000.00. The court i ncreased de fendant’ s chil d support pa yments from $130.00 to $2 16.00 per m onth retroac tive to M ay 31 , 1994 , the da te of the origina l patern ity order. The trial court once ag ain denied plaintiff’s request for retroactive ch ild support back to the date of

the chi ld’s bi rth. This appeal foll owed.
A fa ther’s re spon sibility for s upp ort of a child o f his bo rn ou t of w edloc k is spelled out in T.C.A. § 36-2-102 (1991). This code section reads as foll ows:
The fathe r of a child born out of w edlock is liable for the n ecessary support a nd educati on of the chi ld. He i s also l iable for the chil d’s funer al expen ses. He is liable to pay for the expe nses of the m other’s confinement and recove ry, and is also l iable to pay such expenses, includ ing co unse l fees, in c onn ection with her p regn ancy as the c ourt in its discretion m ay deem proper. T.C.A. § 36-2- 108 (Supp. 1995) permits the juveni le court to make a retr oacti ve
aw ard o f supp ort prio r to the e ntry o f the de cree o f patern ity und er app ropria te3

circumstances. It st ates: (a) I f the f

inding i s agains t the de fendant, the court shall make an order of paterni ty and suppor t, de clari ng paterni ty and forthe suppor t and educati on of the chi ld, a nd may order a change of name. (b) The order

of paternity and s upport sha ll s pecify who is to have cust ody of the chi ld, a nd the sum to be pai d monthly or other wise, through the clerk of the court , unti l the c hild r eaches t he age of majori ty, a nd as oth erw ise p rov ided by s tatut e. In addition to pro viding for the su pport and educati on, the order sha ll al so provide for the payment of the necessar y expenses i ncurred by orfor the mother in connection with her confinement and r ecovery; for t he funeral expenses i f the chi ld has di ed; for the supp ort of th e child prior to the m aking of the o rder o f patern ity and sup port ; and such expe nses in c onnecti on with the pr egnancy of t he m other a s the co urt m ay de em prop er. Th e cou rt shall se t a spec ific am ount w hich is due in e ach m onth to be p aid in one (1 ) or m ore paym ents as the cou rt orders. (em phasis add ed).
In State e x rel. Coleman v. Clay , 805 S.W.2d 752, 755 ( Tenn. 1991), the suprem e court affirm ed the judg m ent of this court in a ca se presenting s imilar facts. In Coleman , fol lowing an intimate rel ations hip between the chil d’s mother and herlover for a per iod of some thr ee (3) yea rs, the mother gave bi rth t o a chil d, which she contended was t he lover’ s chil d as well. The mother’s sui t was not br ought unti l some fourt een (14) yea rs la ter by the local district attorney’s off

ice. After f

urtherdelays and two (2) sep arate blood tests, both of wh ich show ed w ithout question tha t the m other’s lover w as the c hild’s fa ther, the juven ile cou rt entere d a de cree o f patern ity in Novem ber, 1988. The judge order ed chil d support r etroac tivel y only to the date that the results of the first blood test w ere available estab lishing the identity of the ch ild’s fath er.
This court , int erpreting the s upport pr ovisi ons of the paterni ty st atute , hel d to the contra ry, ho lding th at the fa ther w as resp onsib le for ch ild sup port “f rom and a fter its birth.” In af

fir ming this court, the supreme court s tate d:
The Court of Appeals , rel ying upon the e mphasized language i n § 36-3- 108 , held c orrectly the fath er’s resp onsib ility for su ppo rt of a ch ild of his born out of

wedlock ari ses atthe dat e of the c hild’ s birth. Because the statute al so permits the juveni le court to make a retr oacti ve award for expenses i ncurred i n the suppor t of the chil d priorto the e ntry of the paterni ty decre e, such an a ward can be made back to the dat e of the child’s birth, un der ap prop riate circu m stance s. Ob viou sly, the ju venile4 judge has br oad discr etion t o determine the amount of such a ret roacti ve award, as wellas the manner i n which it i s to be pai d. W hat the juvenil e judge l acks is discr etion t o limit the fathe r’s l iabil ity f or child s upport i n an arbit rary f ashion that is not consi stentwith the prov isions in T.C .A. § 3 6-2-1 02 an d § 3 6-2-1 08. F or ex am ple, no thing in those section s can be inte rpreted to restrict th e fathe r’s liability to the da te when he knows for cert ain tha t the c hild i n questi on is hi s. Such limita tion not

only amounts to j udicia l legi slat ion, but also encour ages the putativ e fathe r to avo id legitim ately in stituted c ourt p rocee ding s and to delay t esti ng, as di d the defe ndant in this cas e, i n the hope of mini mizing the ultimate support

award.
In the ca se under cons ideration the j uvenile court’ s only ra tional e for l imiting defendant ’s li abili ty forretr oacti ve chil d support t o Novem ber 1, 1992 was that thi s was the dat e upon which defendant began making voluntary payments. As the Coleman
cour t stated, n othing in T.C .A. § 3 6-2-1 02 o r § 36 -2-10 8 per m its a cou rt to lim it a father’s liability to a date u pon wh ich he kno ws fo r certain or ad m its that the child is his. In our opi nion the j uvenile court cl early abused it s discr etion by arbitrari ly li miting the dat e upon which retroacti ve chil d support pa yment was to begin.

As did the Coleman court, we a lso reject defenda nt’s contention tha t plaintiff should be deni ed the re covery of r etroac tive c hild s upport beca use she was guil ty of lach es. In ord er to esta blish suc h a b ar, m ore than m ere d elay m ust b e sh ow n. See M urphy v . Em ery , 629 S .W .2d 89 5, 897 -98 (T enn. 1 982 ). The key e lem ent in prevail ing on the gr ounds of la ches is prejudi ce to the other pa rty. W hile de fendant contend s that his child supp ort paym ents will thus be greater beca use of petitioner’s delay in bring ing this patern ity action , there h as be en no show ing o f actua l prejud ice to defen dant. T his co ntentio n is w ithout m erit.
The judg m ent of th e trial cou rt as to the aw ard o f retroac tive ch ild sup port is
revers ed. This cause is remanded to the J uvenile Court of Hardi n County for a hea ring on the sole issue of the am ount of retroac tive child suppo rt to be awa rded to plaintiff from the date of Ashley’s birth in accor dance with T.C. A. § 36-5-101(e )(1) ( Supp. 1995). Thi s courtnotes that the record i n this case pres ently c ontains proof of defendant ’s inc ome for the years 1991— 1993, based upon hi s feder al inc ome tax5

return s. Up on re m and th e trial cou rt shou ld allow the pla intiff to pu t on p roof a s to defendant’s income from 1977 to 1990 thereby ascertaining defendant’s annual gross income for the purpose of the TCSG for these year s. I f the parties fail to produce evidence of incom e for the years a s noted, defen dant’s incom e for these prior ye ars sho uld be d eterm ined by i m put ing ann ual in com e un der the T CS G ( Te nn. C om p. R . & Regs. tit. X, ch. 124 0-2-4-.03(e) (19 94)). The a m ount of the retroa ctive child supp ort and the ma nner in which it is paid i s within the discretion of the tri al court. We also find pl ainti ff has wai ved recover y for expens es incurred in conne ction with her pregnancy becaus e no request for such r eimbursement was made by her and in addition ther e is n o pr oof in th e rec ord to su ppo rt suc h an aw ard
. Accordingly, we reverse the judgment of t he juveni le court to the e xtent hereinabove noted. This cause i s remanded to tha t court for further pr oceedings not inconsi stentwith thi s opini on. Costs on appeal ar e taxed t o defendant , forwhich executi on may issue if

necessar y.

________________________________________

TOMLIN, Sr. J.

________________________________________ HIGHERS, J. (CONCURS)

________________________________________ LILLARD , J. (CONCURS)