# FILED
July 18, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
STA TE OF TENN ESSEE ex rel ) SHERRY SHAVER, ) ) Petitioner/Appe llant, ) Dav idson Circu it No. 95R -593 ) VS. ) A ppeal No. 01A 01-9610-CV-004 74 ) RICHARD D. SHAVER, ) ) Respondent/Appell ee. )
APPEAL FROM THE CI RCUI T COURT OF DA VIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE MURIEL RO BINSON, JU DGE

JOHN KNOX WALKUP At torney General and R eporter KIMBERLY M. FRAYN Assi stant A

ttorney General Nashvil le, Tennessee Attorney for Appellant
C. TRACEY

PARKS HA RSH, PA RKS, HA RSH Gallatin, Tenness ee Attorney for Appellee

REVERSED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. HOLLY K IRBY LIL LA RD, J.2

In this enforcement of child support case, the State of Tennessee (“State” ) brings this action on behalf of Sherry Sha ver (“ Mother”) a nd her minor ch ild, Amber Nicol e Shaver (“Amber”), in order to collect ch il d support arrearages from Richard Sha ver (“Father”) based upon a Texas divorce decree. The trial court held tha t Father’s child support obligations

irrevocably and absolutely terminated on August 24, 1987 when Father filed an affidavit relinqui shing his parental rig hts to Amber. The trial cour t further held that Father
was not in arrears for any child support pay ments which accrued from and after August 24, 1987. The State appeals thejudgmentof the trial court arguing that Father’s child support obligation did not terminate upon the filing of his aff idavit which purported to relinquish his parental rightsand thatchild suppor t arrearag es did accrueprior to F ather’s sig ning of the aff idavi t. For the re ason s sta ted h erea fte r, we re verse the j udgm ent o f th e cou rt be low.

FACTS

On October 10, 1982, Father and Mot her had a c hild, Ambe r Nicole Shaver (“Amber”), born during their mar riage in the State of Texas. On April 1 3, 1983, a final de cree of divorce was entered in the State of Texas, dissolving Mother and Father’ s marriage. The Texas div orce decree aw

arded cus tody of Amber to M other and ordered Father to pay chi ld support in the amount of $180.00 per month begi nning on March 15, 1983 and ending w hen Amber reached t he age of eighte en or when a cour

t order directed otherwis e.

On August 24, 1987, Charles Troy Simpson and Tommie Mar ie S impson (the “Simpsons”), Amber’s maternal gr andparents, filed a

petition toadopt Amber in the District Court of Dallas Count

y, Texas. In their peti tion, the Simpsons alle ged that Mot her had l eft Amber wit h them an d had di sappear ed to s ome unknown location and that Fat her had not provided support for Amber and had not req uested to vi sit Amber in over a year. F iled wi th the Simpsons’ peti tion for adoption w as an affidavit si gned by Father which pur ported to relinquish his parental rights to Amber. In his aff idavit, Father stated in part as follows:

I am the father of AMBER NICOLE SHAVER, a female bo rn October 10, 1982.3 I am presently

obligated by

Court Order

to make payments

for the s upp ort o f th e chi ld an d the child owns n o pro pert y. I was fully

informed of my rights, powers duties and pri vilege s as a parent before executing this aff idavi t. I understand that this Affidavit is irrevocable. I understand th at this means that I cannot change my mind not now or at any time in the furture [sic] as for the retur n of my child. I agree that my rig hts as father may be ter minated. I execute this affidavit freely and voluntarily because I deem it to be in the best interest of the c hild. I desig nate M r. and Mrs. Charl es T. S impson as qual ified persons and suita ble, comp eten t adu lts to serve as managing conse rvator

of the child if my

parental ri ghts are ter minate d. I waive the right

to issuance, service and return of ci tation upon me in a suit to terminate the parent -child relationshi p between the child and me and a nyother suit affecti ng the parent-child relationshi p between the c hild and me.
In December 1987, the Simpsons v oluntarily dismissed thei r action toadopt Amber. A court order

terminating the parental r ights of either Father or M other wasnever obtained.

Father executed anothe r affidavit on June 26, 1 996 which w as filed wi th the trial court. In his second aff idavit, Father stated in part as follows:

4. I paid child support for Ambe r Nicole Shaver unti l June 29, 1987. 9. I live d in Texas at the time of the su rrender [Aug ust 24, 1987] and c onti nue d to l ive at the same address and work at the same job for sev

eral year s before movingto Tennessee. 10. I was nev

er informed by Sher ry or her parents, the Simpsons, that theadoption was not finaliz ed. 11. I have had no contact wi th, nor have I been contacted by Sherry or

any member of her family sinc e August 1987. 12. I hav e not had any contact wit h Amber Nicol e Shaver since exec uting the sur render in Aug ust 1987.

On August 25, 1995, the State of Texas filed a Uniform Re ciprocal Enforcement of Support Act (“URESA”) petition on behalf of Mother and Amber. Pursuant to th e URESA petition, Texas req uested that the State of T ennessee enfo rce the existing Texas divorce decree ordering Father to pay child sup port and to collect the arrearag es which had accumulated under the decree. The URESA petitio n seeks s upport from the peri od beginning May 1983 and ending July 1995. In an affidavit filed w ith the trial court, Mother stated that she h as ne ver rec eived child supp ort p aym entsfr om Father pursua nt to the Texas divorce decree.4 LAW

The sole issue before this Cour t is as follow

s: whether

the trial court erred in failing to enforce a Texas divorce decree requiring Father to pay child support payments for his minor child by

holding that

Fath er term inated any ong oing duty of support whe n he executed an affidav it surrender ing his par ental rig hts.

URESA serves to facilit ate th e enforcement and collection of child suppo rt obligations

when the mother

and f athe r live in different state s. T.C.A. § 36-5-201(1996); Hoyle v . Wilson , 746 S.W.2d 665, 668 (Tenn. 1988). The expressed legislative purpose in enacting U RESA was “to improve and extend by reciprocal legislation the enforcement
o f dut ies of support and to make uniform the l aw wi th respect ther eto.” T.C.A. § 36-5- 201(1996). The Tennessee Supreme court has stated that URESA is remedial in nature and should be lib erally construed w ith referen ce to the object sought to be ob tained. Martin v. Martin , 373 S.W.2d 609, 611 (Tenn. 1963).

Under Tennessee’s adoption of URESA, a “duty of sup port” is defin ed as one that “includesany duty of support imposed or imposable by

law, or by any court order, decree
or judgment, whether interlocutory or final, w hether incident al to a proceeding for divorce, legal separ ation , separate maintena nce or otherwise.” T.C.A. § 36-5-202(3)(1996). Simi larly, a “support or der” is de fined as “ any judgment , decree or or der of support, whethe r temporary or final, whether subject to mod ification, revocation or remiss io n regardless of the kind of actio n in which it is entered.” T.C.A. § 36-5-202(14)(1996).

Enforceable dutie s of support under our UR ESA statute are described in T.C.A. § 36-5-207(a)(1996) as follows: What dutiesare enforceable -- Filing of original paternity and support pet itions. -- (a) Dutie s of support appli cable under thi s part are t hos e imposed or imposable under the laws of any st ate where the obl igor was presentduring the p e riod for which support is sought. The obligor is presumed to have been present in the respondingstate duringthe period for which supp ort is soug ht until other wise show n.5

As to the enforceme nt of support orders, T.C.A. § 36-5- 220(1996) reads in part as follows: Orderofsupport -- Enforcement. -- (a) If the cour t of the respondingstate finds a duty of suppor

t, it may or

der the respondent

to furnish suppor

t or reimbursement

therefor and subj ect the propert y ofthe respondent to such order. Arrearages

are included within t he c once pt of "duties of support " that this state may enforce pursuant to a petition filed under URESA. See T.C.A. § 36-5-209(a)(1996).

The existenceof the obligati on of support is pr esumed by UR ESA. Hoyle , 746 S.W.2d at 668; State ex rel . Dep ’t of Soc ial Servs. v. Wright , 736 S.W.2d 84, 86 (Tenn. 1987). The duty to s upport is not a n d cannot be es tablished thr ough a URESA action. Hoyle , 746 S.W.2d at 668.

At some poi nt pr ior

to t he i niti atio n of a

URESA acti on, some state must render an order establish ing a duty of suppor t. Hoyle , 746 S.W.2d at 668. The state in w hich a support ord eris orig inally e ntered is know n as the renderi ng state. T.C .A. § 36-5- 202(11)(1996). The state in w hich a subseq uent URESA p etition is filed is the i nitiating state. T.C.A. § 36-5-202(5)( 1996). The state i n which any proceeding pursuant to the proceeding in the initi ating stateis or may be commenced is theresponding state. T.C.A. § 36-5-202(12)(1996).

The duty of the ini tiating st ate is not to det e rmine th e extent of the obl igation to support but rather to determine wh ether sufficient g rounds exi st to permit t he responding state to determine un der it s own law the ex tent of the support obl igation. Hoyle , 746 S.W.2d at 668. See also Ray v. Pentlicki , 375 So.2d 875, 877 ( Fla. Ct. App. 1979) (stati ng that URESA creat es no duty of supp ort but simply provides

a means of enforcing a duty of support as that du ty may ex ist under the l aw of the respo nding state)

.

Th e Tennessee Supreme Cou rt in Hoyle v . Wilson , 746 S.W.2d 665, 668 (Tenn

. 1988), stated: Gene rally, under

URESA, the s ole issue for det ermination is enforcementof6

the support obli gation prev iously established by an order of

a court i n a rendering State and no other issues can be raised by the respon dent to a URESA petition in t he court of the res ponding state. T.C.A. § 36-5- 227 states that “[p]arti cipation in any proceedings under this part shall not confer upon any court jurisdic tion o f any of the partie s thereto in an y other proceeding.”

The primary focus of URESA is to enf orce child sup port obligations

and not to decide collateral issues suc h as those concerni ng allocation of custody or enf orcement of visitation rights.

As stated in its petition, the State of Texas seeks support payments from Fat her for the period beginning May 1983 and ending July 1995. Because Fat her stat ed in an affidavit that he moved to Tennessee “several years” after the f iling of his August 24, 1987 affidavit wherein he purported to r elinquish his parental rightsto Am ber, Fath er, b y his own admission, has resided i n the State of Tennessee during the period for w hich enforcement is sough t. Thus , Tennes see, as the re spondi ng st ate, may order F ather to pay child support or reimburs ement therefor pursu ant to the Texas divorce d ecree whi ch ordered Father to pay chi ld support in the amount of$180 per month beg inning on March 15, 1983 and ending when Amber reached the age of eighteen or when a court order direct e d otherwis e.

Under the laws of this state, the adoption of a chi ld is governed by st atute. In Re Adoption of Mullins , 412 S.W.2d 896, 900 (Tenn. 1967); Bank of Maryville v. Topping , 393 S.W.2d 280, 282 (Tenn. 1965) ; In re Van Huss , 338 S.W.2d 588, 590-91 (Tenn. 1960); In
re Petition to Ado pt Clements , 296 S.W .2d 875, 879 (Tenn . 1956); Coonradt v. Sailors , 209 S.W.2d 859, 861 (Tenn. 1948); Sc ott v. Pull ey , 705 S.W.2d 666, 670 (Tenn. Ct. App. 1985). In order to effect a legal adopti on, t h e statutes must be f ollowed with strict compliance. Id

.

The supreme court in In re Petiti on to AdoptClements , 296 S.W.2d 875, 879 (Tenn. 1956), stated:

[U]ntil the court has finally adj udicated that thepetitioners for adoption are suitableones and that it is for the best interest of the child to be p lace d with them for adoption that no l egal rightsattach to either

of the parties unt il said adopti ve statutes are carri ed out.

. . . . [T]here is no s tatute in this State whic h authorize s a party or7 parties to a d opt a child by a mere private declarati on or contract, and in the absence of su ch a statute, i t cannot be done, because to allow it would be contrary to public policyof the State. See also Bray v . Gardner , 268 F. Supp. 328, 332 (D.C. Tenn. 1967 ) (s tating that an adoptive relationship cannot be created by private contract or by estoppel).

In Wright v. Holland , No. 01-A-01 -9208-CV00311, 1993 WL 49560 (Tenn. Ct. App. Feb. 26, 1993), this

Court addres sed an issue s imilar to th e one in the case at bar. I n Wright , the issueaddressed was whether a father continues to have a legally enforceable duty to sup por t a minor child after he signs a surrender docu ment which purportedly surrenders the child for ad option but w here no petitio n for adoption was ever filed with the
cour t bec ause the p rosp ecti ve adoptive father decided not to adopt the child. R elying on In Re Petition to Adopt Clements , 296 S.W.2d 875, 879 (Tenn. 1956) for the proposit ion that no legal r ights attac h to either the natural parent or the adopting parent un til a court order adjudicatinga child’s adoption has occurred, this Court held that the natural f ather’s obligation to support his minor child conti nues until theentry of a cou rt order of adopti on. Wright , 1993 WL 49560, at *7.

Furthermore, T.C.A. 36-5-101( a)(5)(1996) states in par t that: Any order for child support shall be a j udgment entitle d to be enforced as any other judgment of a cour

t of this stat e a nd shall be enti tled to full faith a nd credit in this state and in any other state. Such judgment sh all not be subject to modification as t o any time per iod or any amount s due prior to the date that an action for

modi fication is fil ed and notice of the ac tion has been mailed to the last known address of the opposing parties. Thus, it is abundantl y clear from the expres s languageof the s tatute that c ourts are prohibited from retroacti vely modi fying chi ld support or ders. Rutledge v . Barrett , 802 S.W.2d 604, 606 (Tenn. 1991). The statuteremoves al l discreti on from the trial court to for give s upport

arrea rages

whi ch acc rue und er a valid o rder of child suppor t at any time prior to the filing of an action for modification. Id

. Only prospective modifications of child support orders are authorized, and such prospec tive modifications are subj ect to the filing and notification r

equirements of T.C .A. 36-5-101(a )(5).8

Father also argue s that based upon Mothe r’s failure to noti fy him that the ado ption of Amber was not finalized, the equitabl e defenses of estoppe l and lachespreclude the court fr o m o r d e r i n g h i m t o p a ye i t h e r fu t u r e o r p a s t - d u e c h i l d s u p p o rt
. We note, however, that the su preme court has repeatedly st ated thatequitable defense s are not available as a defense to the enforcement of child support orders. Rutledge , 802 S.W.2d at 607.

In the present case, Father signed an af fidavit which purported to relinquish his parental rig hts to Am ber, and F athe r’saffid avi t w as fi led with the Simpsons’ peti tion to adopt Amber. The Simpsons’, however , voluntar ily dis missed their petition to adopt Amber before a final adjudication of the adoption was obtained. Thus, because the Sim psons did not obtain a cour

t order adjudi cating Amber’s adopti on and because the record contains
no evidence th at either part y filed an act ion to modify the ch ild support o rder pursuant to the Texas divorce decree, t he trial cour t erred in forgiving the child support arrearage which had accrued under t he T exas divorce decree s ubsequent to Aug ust 24, 1987, the dat e Father executed the affidavit relinquishi ng his pare ntal righ ts. We, therefore, reverse the judgmentof the trial court which held that Father’s child support obli gationspursuant to the Texas divorce decree were irrev ocably and absolutely

terminated asof August 24, 1987 when Father filed hi s affidavit w hich purported ly reli nquished his parental rights t o Amber.

The judgment of the tr ial court i s hereby reversed. C osts on appeal are taxed to the Appe llee for wh ich e xecut ion m ay issu e if n eces sary.

HIGHERS, J.

CONCUR:
CRAWFORD, P.J., W.S.

LILLARD, J.