# FILED
October 14, 19 97 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ BETTY BERRYHILL, Appellan t, Vs. C.A. No. 02A01-9701-JV-00011 Shelby Juvenile No. G8355 CHARLES THOMAS RHODES, Appellee.

__________________________________________________ __________________________ FROM THE SHE

LBY COUNTY JUVENI LE COURT THE HONORABLE KENNETH TURNER, JUDGE

Mitchell D . Moskovitz

of Memphi s For Appellant Robert L. Green; Neely, Green, Farga rson, Brooke & Su

mmers of M emphis For Appellee

VACATED AND RE

MANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.
CONCUR: DAVID R.FARMER,

JUDGE SEPARATE OPINION - CONCURRENCE IN PART DISSENT IN PA RT: HOLLY KIRBY L ILLARD, JU DGE This is a paternity case. Plaintiff, Betty Berryhill, appeals the trial court’s order denying retroactive child support and awarding her only $500 of he r attorney fees. Appel la ntBetty Berryhill is the natural mother of Anika Berryhill who was born on2

Septembe r 5, 1977. Ms. Berry

hill met the appellee, Dr. Rhodes, while a psychiatric patient of his in 1975 o

r 1976. Th

e two beg an a sexu al relat ionship which resulted in the birth of Anika in 1977. Dr. Rhodes paid child support in the amount of $250 per month for the first six months of Anika’s l

ife and t hen incr eased th is amount to

$300 per month. Dr. Rhodes ma de these payments regular ly until Ani ka reac hed the a ge of eighteen (1 8) in Septe mber 1995 . Ms. Berryhill contendsthat desp ite repe ated re quests, D r. Rhodes refuse d to increase thesupport and told her to take him to court if she wanted more. Dr. Rhodes was divorced from his wife (not Berryhill) in 1990 and was ordered to pay $2,000per mont h for the support of his two minor daughters from that

marriag e. This am

ount was p aid for a

period of

23 months, u

ntil his daughters graduated from high school. In October

1995, Ms. Be

rryhill f iled a Pet ition to Esta

blish Pate

rnity in the

Juvenile Courtof Shelby County. After an evidentiary hearing, the juvenile court

referee made findings and rec ommendat

ions which

were in p art as fo llows: The Refere e furthe

r finds tha t the par ties volun tarily en tered in to an agreement at

the birth o f said ch

ild for the d

efenda nt to assume and pay expenses incidental to the birth of said child, and for

the defendant to pay $25 0.00 per

month as c hild suppor

t. When sa

id child reache d six (6) mo nths of ag e petit i oner requested an incre ase and the parties settled on child support of $300.00 p e r mont h. All said a

greed up on paymen

ts were p aid by th e defendant to the petitioner until said child attai ned her majo rity and graduated from high school in 1995.

. . . . The peti tioner’s proof indicated that had the present “Guidelines” for setting child support been applied p rior to 1983 the amount of support would h ave b een less than the amount agreed upon. The

proof fu rther ind icated th at if

the “Guid

elines” had been applied in 1990 the de fen dant’s income would have warranted support above the amount agreed upon by the parties.

. . . From all of which the Referee finds that the am o unt of support agreed to by the parties was just and reasonable for the support of the minor chil d, and it w ould be unfai r and unr easonab le to unjustly enric h the petitioner by ordering additional support subsequent to the minor attaining majority. IT IS THEREFORE RECOMMENDED 1. That said

child sha ll be a legitimate ch

ild of the defendant for purpose o f inherit

ance, su pport, and all othe

r lawful purposes . 2. That petitioner’s request for back child support be denied. 3. That pe titi oner be awarded attorney fe es, to be paid by the defendant, in the amount of $500.00.3 4. That the d

efenda nt shall re imburse th

e State for blood tests in the amount of $165.00 to be paid to the Cler

k of this Court withi

n thirty (30 ) days. 5. That the defendant shall pay the costs for which exec ution may issue. Upon confirmation by the juven ile court judge, the findings and recommendations became the court’s decree. Ms. Berryhill appeal s the judgm ent of the ju ven ile court and presents three issues for review: 1. Whether the trial court erred in denying her retroactive child support

from the date of Anika’s birth; 2. In calculating the presumptive child suppo rt amo unt, whet her it is pr

oper to averagethe obligor’s income over ten years instead of two years as provided in the guideline s; and 3. Whether the trial court erred in aw arding Ms. Berry hill only $5 00 of her

approximately $5,000 in attorney and expert fees. We will consider the first two issues together. Ms. Berryhill a ss erts that it was error for the trial court to hold that there wa s an agreement

between herself and Dr. Rhodes as to the a mount of c hild

support to be paid, and thus it was inappropriate to deviate from the Child Support Guidelines and deny additiona l support. Ms. Berryhill contends that if this Court finds that additional support is warranted, a ten year
a verage of Dr. Rhodes’s income should be used to calculate support rather than the two yea r average spelled out in the guidelines. Since this case was tried by the court sitting without a jury, we review the case de novo upon the rec ord with

a presumption of corr

ectness of the findings of f act by the

trial cou rt. Unless the evide

nce pre pondera tes agai nst th e findings , we must affirm, absent error of law. T.R.A.P. 13(d). Upon a determination of paternity, the father of the child is, a

mong other

things, lia

ble for the support and education of the child. T.C.A. § 36-2-102( 1) (199 6). In ad dition to providing for the s upport and educa tion of the child, the order of paternity shall also provide “for the support of

the child prior to th

e making o f the ord

er of pa ternity and support.” T.C.A. § 36- 2-108(b) (1996). C hild suppor t in Tenne ssee is sta

tu tori ly governed by T.C.A. § 36-5-101 (1996). Section 36-5- 101(e)( 1) provides that “[i]n making its determination concerning the amount of support of any minor child or children of the parties, the court shall app ly as a4

r ebuttabl e presumption the child support guidelines as provided in this subsection .” Th e guidelines referenced are pr omulgated by the Departm ent of Human Servi ces in

chapter 1240-2- 4 of the Official Compilation of the Rules and Regulations of the State of Tennessee . In the pa st there have been diverse rulings as to whether the Child Support Guidelines promulgated in 1989 are to be applied

retroactively. Compare State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn. 1991); Shell v. Law , No. 03A01-9608-CV-00251, 1997 WL 119581 (Tenn. Ap p. E .S. March 18, 1997) and Kirchner v . Pritchet t , No. 01-A-01-9503 -JV- 00092, 1995 WL 714279 (Tenn. App. M.S. Dec. 6, 1995) (all stating that awards for expenses arisingbetween the child’s birth and the adjudication of pater nity are within the

discreti on of the c ourt cons idering th e facts of the particular case) with Townsend v. Thompson , No. 0 2A01-9211-JV-00321, 1993 WL 512538 (Tenn. A

pp. W.S. D ec. 10, 1 993) (hol ding that th e child su pport guideline s apply to retroactive awards of support for p eriods prior to their 1989 effective date). Howe ver, the guideline s, as amend

ed in 1994 , now spec ifically provide that the “rebuttable presumption must be applied to all child support awards even if the order is being sought for a retroactive period before October 13, 1989.” Tenn. Comp. R. & Regs. vol. 19, ch. 1240 -2-4-.01(2) (1996). Although this Court questions the wisdom of applying such a presumption in cases where retroactive support is sought, the guidelines leave no doubt of their applicability. However, the guidelines provide only an additional evidentiary tool, and we do not consider the inclusion of the presumption for retroactive support as abrogation of our Supre me Court’s admonition that the “juvenile judge has broad discretion to determine the amount of such a r etroactive award, as well as the manner in which it is paid.” Coleman , 805 S.W.2d at 755. Despite this evidentiary presumption, the trial court retains discretion to deviate from the guideline s in certa in situatio ns. If the court finds that evidenc e is suffi cient to r ebut this presumption, the court shall make a written finding that the application o f t he child support guidelines would be unjust or inapprop riate in that particular case, in order to provide for the best interest of the ch ild(ren ) or the equity betw een the p arties. Findings that the application of the guidelines would be unjust or inapprop riate shall state the amount of supp o rt that would have been ordered under the child support guidelines and a j ust ification for the v arianc e from the

guideline s. T.C.A. § 36-5-101(e)(1) (1996). The statute requires that before a judge can de viate fro m the gui delines, he must fir st determine what the pre sumptive a mount of su

pport would be if the

guideline s were st

rictly5

applied. The guidelines provide that the amount of support is to be calculated “using the aver age income of

the obligo

r over the past two

years a nd is presumed to be correct unless rebutted by either party.” Tenn. Comp. R. & Regs. vol. 19, ch. 12 40-2-4- .04(1)( e) (1996 ). In this case, bo th parties have att

empted to

rebut thispresumpt

ion. Dr. Rhodes ass erts t hat the juvenile court properl y found that there was an agre ement be tween the parties a s to the amo

unt of chi ld support , and it was thus appropriate to deviate from the guidelines and honor the part ies’ agreem

ent. Ms. Berryhill asserts that there was no such agreement a nd that the guidelines should be applied retroactively. However, she claims that through her expert accountant she has established that calculating support us ing a ten- year av erage o f Dr. Rhod es' incom e would be more “prudent and accurate” than the two-year average called for in the statute. Ms. Berryhill asserts t

hat in esta blishing a n avera ge annua l income for eigh teen yea rs it would be more “prudent and

accura te” to use ten year s of incom

e instea d of two ye ars of in come
as provided by the guidelines. We need not decide what is mor

e “prude nt and ac curate ,” beca

use the guidelines provide for establishing the pre sumptive averag e annua l income f

or the time period involved b y using the averag e of the l ast two ye ars inco me prior t o th e adjudic ati on of paternity. Although th

is establi shed a pr

esu mp tive annual income, evidence as to the actual income for each year

in the involved period is admissible to rebut the presumption established by the guid

elines. Dr. Rhodes as serts tha

t the guide

lines should not apply because he and Ms. Berryhill had
an agreement wherein he would pay her $300 per month in ch

ild suppor t. Since th

is amount was in fact pa id to Ms. Berryhill for eighteen years and there has bee n no showing that this amount
was inadequate for Anika’s support, Dr. Rhodes argues that his obligation under the law has been satisfied. Tennessee Code Annotated § 36-5-101(h) states that "[n]othing in this section shall be construedto prevent the affirmation, ratification and incorpora tion in a decree of an

agreement between the parties as to support and maintenance of a party or as to child support." All cases
we have found construing this subsection involve formal agreements such as Marital Dissolution Agr eements . However, the language of the statute indicates the le gislature’s int ent tha t agreem ents between adult parties should be a consideration of the court. Moreover, the judge still has discretion to deviate from the g

uideline s “if it would be unju st or inap propria te . . . , in6

order to provide for the best interest of the child(ren) or the equity between the parties.” T.C.A. § 36-5-101 (e)(1). Ms. Berryhill objects to the finding that ther e was an agreem ent, and contends that the record is devoid of any evidence of an agree ment between herself and Dr. Rhodes. W hile it is true that ther

e was no f ormal wr itten agr eement b etween

Ms. Berry

hill and Dr. Rhodes regarding child support, a

n agree ment can be implied

by examin

ing the actio ns o f the parties and the circums ta nces involved. Although it is unclear from the record whether Dr. Rhodes be gan making child

support pa

yments of his own volition or at

the requ est

of Ms. Berryhill, we think that even if there we re no agr eement in itially, it i s highly unl

ikely that the amount was increased from $250 to $300 without there having been a r equest made. Th

is amount w as appar

ently satisfactory to Ms. Berryhill for a time; at least u ntil Anika was appr oximately 5 years o ld when
a request was made for

additional funds to send her to private school. Ms. Berryhill contends that her rep eated r

equests f or additio nal s upport demonstrate that she had not reached an agreement

with Dr. Rh

odes. It is undisputed thatMs. Berryhill requested more money and that Dr. Rhodes’s reply wa s that he c ould not pay more money and that she would just have to take him to court. Dr. Rhodes’s is saying, in effect, “if you don’t agree to the amount, you wi ll just have to take me

to court. ” For some

thirteen years Ms
. Berryhill accepted the monthly payment without going to court

which doe s creat

e at lea st an infe

rence t hat she a greed to the amount of payment. Furtherm

ore, Ms. B erryhill 's a dmission that prior to the time of trial she had not spoken with Dr. Rhodes for five or s ix years is evidence of further acquiesce nce in the amount of support offered. This Court has h

eld that "c ontract s impli ed in fact arise under circumstances which, according to the ordinary course of dealings and common understanding of men, show mutual intention to contra

ct, and may result as legal inferences from the facts and circumstances of the case." Mefford

v. City of

Dupontonia , 49 Tenn.App. 349, 356, 354 S.W.2d 823, 826 (Tenn. App. 1961) (citing Weatherly v. Americ an Agric. Ch em. Co . , 16 Tenn. App. 613, 65 S.W.2d 592 (1933)). [T]he difference between an e xpress and impl ied contract lies merely i n the mode of manifesting assent in that in the former , assent is set out in words or other mode of expression, whereas in the latter, assent is shown by the conduct of theparties. Thus it appears tha t in order that a contract may be implied in fact, the7 facts and circumstances of the case must show assent. Id
. (citing Noone v. Fisher , 45 F. Supp. 653 (E.D. Tenn 1942)). We hold that the evidence does notpreponderate against the finding of the trial court that there was an agreement betwee n Ms. Berryhill and Dr. Rhodes for the payment of child support. Although we feel that the e vidence does not pr

eponder ate aga inst the trial court’s finding that there wa s an implie d agree ment b etween the parties, we do not consider this finding necessary to reach a

decision in this case. The court may deviate from the guidelines under the authority of subsection (e)(1) of T.C.A. § 36-5-101, if the court finds that “the a pplication of

the child support guidelines would be unjust or inappropriate in that particular case, i n order t o provide for the best interest of the child(ren) or the e quity between the parties.” We feel tha

t given the

facts of this particular case and considering the equity between the parties, it would be

unjust and

inapprop riate to apply the guidelines retroactively. In a “normal ” paternity action wh

ere re troactiv e child

support is sought, the best interests of the child will play
a predominant role in the analysis. However, in the case be fore us, the “child” at is sue was eighteen years old when the paternity action was initiated and is now a twenty yea r old college student. Ms. Berryhill has presented no evidence that the needs of her daughter have not been pro perly me t. The only

evidenc e regar

ding fina ncial ex penditur es by Ms. Be

rryhill on behalf of her daughter relates to the purchase of health insurance. While the guidelines now provide that the presumptive amount is to apply retroactively, the court still retains discreti on to devia te in the bes t interes t of the c hild or to p rovide f or the eq uity between the pa

rties. The juvenile court judge found that “the amount

of support agreed to by the parties was just and reasonable for the support of the minor child, and it would be unfair a nd unrea sonable to unjustly enrich the petitioner by ordering additional support subsequent to the minor attaining majority.” While we feel that the "unfair and unrea sonable" language used by thetrial judg e is substantially equivalent to the "unjust or inappropriate" standard spelled out in the guideline s,
we must rema

nd this ca se beca

use the tr ial judge did not c omply with t

h e guidelines which require that “[f

]indings th at rebut

these gui delines mu st

state the amount

that would have been required under the guidelines and

include a justification for deviationfrom the guidelines which takes into consideration the best interest of the child.” Tenn. Comp. R. & Reg. vol 19, ch. 1240- 2-4-.02(7) (1996); see also, T.C.A. § 36-5-101 (e)( 1).8 The appellant raises one final issue for review: Whe ther the juvenile court judge abused his discreti on by orde

ring th e payme nt of only $ 500 of ap pellant’ s approximately $5 ,000 in attorney and expert fees. Tennessee Code Annotated § 36-2-102 provides that “[t]he father of
a child bor

n out of we dlock is lia

ble for . . . [s]uch expens es, inclu ding coun sel fee s, in connection with the mother’s pregnancy as the court in its discretion may dee m proper.” In an affidavit submitted the day of the original hearing on this matter, Ms. Berryhill’s counsel claimed f

ees and e xpenses, exclusiv e of tria l, of $4,153 .09. While

it is true that setting
a low fee is not necessarily evidence of an a buse of discretion, the trial judge in this case failed t o specify how he ar

rived at the $500 f

ee awa rded. We feel tha t since Dr . Rhodes di sp ute d paternity, Ms. Ber

ryhill is e ntitled to recover the reasonable expe nses and fees she incurred in establishing paternity. Although the trial judge has broad dis cretion withrespect to the awarding of attorne y fees, itappears that he abused his discretion in this situation. We remand the case for
a determination of the appropriate attorney fee and expenses considering the contested nature of the paternity petition. For the foregoing reasons, the judgment of the juvenile court is vacated and the c ase is remanded for further proceedings consiste nt with this opinion. Costs of the appeal are assessed equally t o the par ties.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S.
CONCUR:

____________________________________ DAVID R.FARMER,

JUDGE

____________________________________ HOLLY KIRBY L ILLARD, JU DGE