IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 12, 2008

STATE OF TENNESSEE ex rel. MARY LOTT

v. 

ERNEST LOTT, III

 Appeal from the Chancery Court for Haywood County

No. 11742 George R. Ellis, Chancellor

No. W2007-02443-COA-R3-CV - Filed October 6, 2008

This appeal involves the payment of child support in a Title IV-D proceeding. The parents of the

minor child were divorced, and the father was ordered to pay child support. In a contempt hearing,

the father was found to have a substantial arrearage on his support obligation. Two years later, the

State filed a petition on behalf of the mother for contempt and for modification of the child support

order. The petition alleged that the father’s arrearage was unchanged. A child support worksheet

submitted at the hearing showed the father’s child support obligation. The mother testified,

however, that the father had been paying money directly to her for the benefit of the child. Based

on the mother’s testimony, the trial court reduced the father’s monthly child support obligation to

zero. Both of the parents testified that the father had paid a significant portion of the arrearage

directly to the mother. The trial court credited the father for the amount that he had purportedly paid

directly to the mother and reduced the remaining arrearage to a judgment. The State appeals, arguing

that the trial court was required by statute to have the father pay his current support obligation

through the Department of Human Services, ratherthan directly to the mother, and that the trial court

was prohibited from crediting the father for payments on the arrearage made directly to the mother,

rather than through DHS. We agree, and reverse the trial court’s order in part and remand the case

for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed in

Part, Reversed in Part, and Remanded.

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S.,

joined; W. FRANK CRAWFORD, J., not participating.

Robert E. Cooper, Jr., Attorney General and Reporter, and Warren Jasper, Assistant Attorney

General, Nashville, Tennessee, for the appellant, State of Tennessee ex rel. Mary Lott

Ernest Lott, III, appellee, pro se (no brief filed)
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

1

This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify

the actions 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 any unrelated case.

Section 71-3-124 provides:

2

The [Department of Human Services] or any entity, public or private, that contracts with the

department to . . . modify or enforce child or spousal support pursuant to the provisions of Title IV-D

of the Social Security Act shall have authority and standing to file any legal actions to . . . modify or

enforce child or spousal support in any judicial or administrative proceeding on behalf of the

department and the state for persons who have assigned rights of support to the department pursuant

to this section, or who have otherwise applied for child or spousal support services pursuant to the

provisions of subdivision (c)(1) or Title IV-D of the Social Security Act.

T.C.A. § 71-3-124(c)(2) (2004).

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MEMORANDUM OPINION1

Mary Lott (“Mother”) and Ernest Lott, III (“Father”) were divorced in October 1998 in the

Haywood County Chancery Court. Under the divorce decree, Father was ordered to pay child

support. Father failed to meet his child support obligation, and on December 8, 2005, he went before

the Chancery Court on a petition for contempt. During that hearing, he was given a credit for

$4,396.00 in payments made directly to Mother. Even with this credit, Father was found to be in

arrears for a total of $19,115.68. At some point thereafter, Mother apparently either began receiving

public assistance or applied for Title IV-D assistance.

On August 27, 2007, proceeding under the authority granted pursuant to Tennessee Code

Annotated § 71-3-124(c)(2), Maximus, Inc., ex rel. Mother filed a petition in the Haywood County 2

Chancery Court against Father. The petition alleged that Father was in contempt for failing to pay

either his ongoing child support obligation or the arrearage. The petition noted that Father had

previously been ordered to pay $342.00 per month in child support, and that he was in arrears for

$19,549.91 as of July 31, 2007. It further asserted that Father was able-bodied, capable of pursuing

employment, and capable of making the required payments; because he failed to do so, he should

be found in contempt of the court’s orders. The petition also sought an increase in Father’s child

support obligation, asserting that there was a significant variance between the amount of child

support Father would be required to pay under the Child Support Guidelines and the amount of

support Father had been ordered to pay. 

A hearing on the Maximus petition was held on September 27, 2007. During the hearing,

both Father and Mother testified that, at some point, they entered into a private agreement under

which the parties’ child would spend one year with Mother and one year with Father. Their private

agreement was not submitted to or approved by the court at the time it was made. A child support

worksheet was entered into evidence; it reflected the parties’ private agreement to allocate equal
For a valuable discussion of child support proceedings as related to Title IV-D of the Social Security Act,

3

see Baker v. State ex rel. Baker, No. 01A01-9509-CV-00428, 1997 WL 749452, at *2-4 (Tenn. Ct. App. Dec. 5, 1997).

See also Social Security Act §§ 403, 408(a)(3)(A), 454(5), 42 U.S.C.A. §§ 603, 608(a)(3)(A), 654(5) (West, Westlaw

through 2008 session ).

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parenting time to both parents, and based on that premise indicated that Father would have a monthly

child support obligation of $78.00. Mother testified, however, that Father had been paying more

than $78.00 per month to her directly. Based on this evidence, the trial court reduced Father’s child

support obligation to zero.

As to Father’s past-due child support, both Father and Mother testified that Father had paid

directly to Mother all but $12,000 of the arrearage. The trial court credited Father with the amounts

paid directly to Mother, and ordered the remainder reduced to judgment, liquidated, and paid off at

the rate of $100 per month, with each installment to be paid through DHS. Pursuant to Tennessee

Code Annotated § 71-3-124, Mother assigned $8,810.83 of the remaining $12,000 arrearage to the

State of Tennessee. The request that Father be held in contempt was dismissed. From this order,

the State appeals. 

On appeal, the State raises two issues. It asserts that the trial court erred by crediting Father

for child support payments made directly to Mother, and by declining to order Father to pay the full

amount of the arrearage. Our review of the trial court’sfactual findings on the modification of child

support is de novo on the record with a presumption of correctness unless the evidence preponderates

otherwise. Tenn. R. App. P. 13(d); Dwight v. Dwight, 936 S.W.2d 945, 947-48 (Tenn. Ct. App.

1996). We review legal conclusions de novo with no presumption of correctness. Campbell v. Fla.

Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).

We first address whether the trial court erred in reducing Father’s child support obligation

to zero based on testimony that he was making child support payments directly to Mother.

Tennessee Code Annotated §§ 36-5-101 through 36-5-3111 govern the establishment and

modification of alimony and child support obligations. In general, the trial court has discretion over

the manner in which child support payments are to be made. See T.C.A. § 36-5-101(c)(2)(A) (2005

& Supp. 2007). It can order the payments to be made directly to the obligee spouse or via the clerk

of the court. Id.

There are limits, however, to the trial court’s discretion. In cases within the ambit of Title

IV-D, Tennessee Code Annotated § 36-5-101 abrogates this discretion. In a Title IV-D case, the 3

court ordering payment of child support must order payments to be made through the Department

of Human Services (“DHS”). The statute provides:

No agreement by the parties . . . or order of the court . . . shall alter the requirements

for payment to the central collection and disbursement unit as required by § 36-5-

116, and any provision of any . . . agreement or court order providing for any other
Under Tennessee Code Annotated § 36-5-116, the Tennessee Department of Human Services was established 4

as the “central collection and disbursement unit.” T.C.A. § 36-5-116(a)(1) (2005).

Section 36-5-101(f)(1) states, in part:

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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.

T.C.A. § 36-5-101(f)(1) (2005 & Supp. 2007) (emphasis added).

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payment procedure contrary to the requirements of § 36-5-116, . . . whether or not

approved by the court, shall be void and of no effect.

4

Id. § 36-5-101(c)(2)(A)(ii) (emphasis added). Furthermore, “[n]o credit shall be given by the court,

the court clerk or the department of human services, for child support payments” made in a manner

not consonant with that requirement. Id.

In addition, retroactive modification of an obligor’s child support obligation is prohibited by

Tennessee Code Annotated § 36-5-101(f)(1). See Rutledge v. Barrett, 802 S.W.2d 604 (Tenn. 5

1991). Generally, credit may not be given to the obligor parent for child support payments that are

not made in accordance with the child support order because, among other reasons, the court’s

crediting of such payments could be viewed as retroactively modifying the original order. See Smith

v. Smith, 255 S.W.3d 77, 83 (Tenn. Ct. App. 2007) (citing Alice Wright Cain, Annotation, Right to

Credit on Child-Support Arrearages for Money Given Directly to Child, 119 A.L.R. 5th 445 (2004)).

Such modification is prohibited in Tennessee and many other jurisdictions. See id.

The record on appeal does not include the order from the December 8, 2005 hearing in which

Father was found to be in arrears $19,115.68. We note that the 2005 hearing was apparently not a

Title IV-D proceeding, and we do not know whether Father was required under that order to make

his child support payments and arrearage payments through DHS or directly to Mother.

By 2007, however, when the petition was filed by the State in the trial court below, the

proceedings were clearly within the ambit of Title IV-D. At that point, the trial court’s discretion

was limited under the statutes noted above. The parents testified that Father had made payments on

his child support arrearage to Mother directly. The trial court credited Father with these payments,

in contravention of the above statutes. In addition, despite receiving a child support worksheet

indicating that Father’s child support obligation should be $78.00 per month, after hearing testimony

from Mother that Father was paying her that amount directly, the trial court set Father’s courtordered child support at zero. This, likewise, was in contravention of the above statutes. Therefore,

the trial court’s order must be reversed insofar as it violates the clear statutory directives.

The trial court’s order is affirmed insofar as it requires Father to make payments on his

arrearage to the Central Child Support Receipting Unit until the arrearage is paid in full. The order
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is reversed insofar as it sets the amount of the arrearage at $12,000, and the cause is remanded for

the trial court to enter an order reflecting the arrearage without consideration for payments made

directly to Mother, and setting Father’s monthly payment on the arrearage at an amount that reflects

the higher total outstanding arrearage. The trial court’s order is also reversed insofar as it deviates

from the child support guidelines to set Father’s monthly obligation at zero. On remand, the trial

court is directed to enter an order setting Father’s monthly child support obligation in accordance

with the child support guidelines, without regard to any payments made directly to Mother, and

requiring that the payment of such monthly child support be made through the above Central Child

Support Receipting Unit.

The decision of the trial court is affirmed in part, reversed in part, and the cause is remanded

for further proceedings consistent with the Opinion. Costs on appeal are taxed to the Appellee,

Ernest Lott, III, for which execution may issue if necessary.

___________________________________ 

HOLLY M. KIRBY, JUDGE