### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Decemb er 10, 2001 Session STATE EX REL. 

### MARGA RET E. (ELROD ) HOLTS INGER v . JACK W. ELROD Appeal from the Chancery Court for Anderson County No. 94CH2475 William E. Lantrip, Chancellor

FILED JANUARY 17, 2002 No. E2001-00257-COA-R3-CV

These parties w ere div orced in May 1996. Custody of their children was awarded to W ife. The oldest child, Catherine, DOB July 14, 1981, was mentally and physically afflicted. Support was awarded as the Guidelines direct. Father filed a p etition to

modify the judgment by eliminating the support requirement for Catherine, who reac hed her majority. The Chancellor held that the duty of support of

the aff licted ch ild was a c ontinuing o ne. We a ffirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W ILL IAM H. I NMAN , S R
. J., delivered the opinion of the cour t, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , J.J., joined. David A. Stuart, Clinton, Tennessee, for the appellant, Jack W. Elrod. Paul G . Summers, Attorney General & Reporter; Kim Beals, Assistant Attorney Genera l, for th e appellee, Margaret (Elrod) Holtsinger. OPINION The divorce judgment awarded cu stody of the children to Wife. It provided that Father would provide s upport pur suant to th e Guideli ne’s “ as he ag reed.” No monetary amount was specified. One of the childre n, Cather ine, was severely disable d, a fac t not refl ected in the judgme

nt. When Catherine reached

her majority in July 1999, the appellant ceased his support of her and filed a petition to modify the judgment, alleging thata change of circumstances had oc curred, ipso facto . Mother responded that since Catherine was severely incapacitated, the Father’ s duty of support was a continuing one. The Chancellor agreed, a nd dismissed the petiti on to modify. Father appeals and presents for reviewthe issue, essentially, of whether his obligation to support Catherine is ongoing. Our

review i s de novo on the record, accompanied by the presumption that the judgment is corre ct unless the evide nce othe rwise pr eponder ates. Rule

13(d) T. R.A.P.-2-

The thrust of the app e llant’s argument is directed to the fact that Catherine was af flicted before her parents were divorced, and tha t the judgment should have reflected that fact with an appropr iate finding and provision for suppor t. Since the j udgment was silent as to this issue, the evidence pertaining to modification should have been limited to t he quest ion of emancipation. Appellant insists that the issue of his continuing obligation to support an afflicted child should have been litigated at

the divorce trial, and that the doctrine of res judic ata bars the

subseque nt judgmen

t. Tenn. Code Ann. § 36-5-101(p)(2) requires (as did the common law) continuing support of a severe ly disable d child, su

bject to f indings of

the child ’s best i n terest a nd the obli gors ability to pay. There is no serious contention that the child’s best interest is not served by the requirement of financial support, and no issue is made of the ability of the appellant to provide such support. The doctrine of res judic

ata is not applicable to

the fac ts o f this c ase. See, Massengill v . Scott , 738 S.W.2d 629 (Tenn. 1987). Appellant complains of the aw a rd of attorney fees, alleging that no evidence wa s adduced to justify the award or the amount of it. In K ahn v. Kahn , 7 56 S.W.2d 685 (Tenn. 1988) the Supreme Court held:
No proof was presented with respect to the value of the services rendered wife in the instant case. During oral argument in the trial court, when wife’s lawyer urged the court to award a rea sonable attorney’s fee the judge asked him to name an a mount and his response was $20,000 . During husband’s lawyer’s argument, which followed, no mention was made of the fee issue. At no time in the trial court, nor in this Court, has husband insisted that wife adduce proof on this issue. Obviousl y, the trial judge felt that the pendente lite proceedings which had been heard by him, the pre-trial briefs, depositions and the three day tria l had suff iciently acquainted

him with the factors we delineated in Connors to make a proper award of an attorney’s fee without proof or opinions of other lawyers. When the trial judge did so, it wa s incumbe

nt upon hus band’s la

wyer to r equest a hearing if dissatisfied withthe award, or convince the appellate c ourts that he was denied the opportuni ty to do so through no fault of his own. The reasoning of the Supreme Court in Kahn applies with equal force in the case at Bar. The judgment is affirmed at the costs of the appellant, Jack W. Elrod.

___________________________________ WILLIAM H. INMAN, SENIOR JUDGE