IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

December 10, 2001 Session

STATE EX REL. MARGARET E. (ELROD) HOLTSINGER 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 were divorced in May 1996. Custody of their children was awarded to Wife. The

oldest child, Catherine, DOB July 14, 1981, was mentally and physically afflicted. Support was

awarded as the Guidelines direct. Father filed a petition to modify the judgment by eliminating the

support requirement for Catherine, who reached her majority. The Chancellor held that the duty of

support of the afflicted child was a continuing one. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM H. INMAN, SR. J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and

D. MICHAEL SWINEY, J.J., joined.

David A. Stuart, Clinton, Tennessee, for the appellant, Jack W. Elrod.

Paul G. Summers, Attorney General & Reporter; Kim Beals, Assistant Attorney General, for the

appellee, Margaret (Elrod) Holtsinger.

OPINION

The divorce judgment awarded custody of the children to Wife. It provided that Father

would provide support pursuant to the Guideline’s “as he agreed.” No monetary amount was

specified. One of the children, Catherine, was severely disabled, a fact not reflected in the judgment.

When Catherine reached her majority in July 1999, the appellant ceased his support of her

and filed a petition to modify the judgment, alleging that a change of circumstances had occurred,

ipso facto. Mother responded that since Catherine was severely incapacitated, the Father’s duty of

support was a continuing one. The Chancellor agreed, and dismissed the petition to modify. Father

appeals and presents for review the issue, essentially, of whether his obligation to support Catherine

is ongoing. Our review is de novo on the record, accompanied by the presumption that the judgment

is correct unless the evidence otherwise preponderates. Rule 13(d) T.R.A.P.
-2-

The thrust of the appellant’s argument is directed to the fact that Catherine was afflicted

before her parents were divorced, and that the judgment should have reflected that fact with an

appropriate finding and provision for support. Since the judgment was silent as to this issue, the

evidence pertaining to modification should have been limited to the question 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 judicata bars the subsequent judgment.

Tenn. Code Ann. § 36-5-101(p)(2) requires (as did the common law) continuing support of

a severely disabled child, subject to findings of the child’s best interest and the obligors 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 judicata is not applicable to the facts of this case. See, Massengill v. Scott, 738

S.W.2d 629 (Tenn. 1987).

Appellant complains of the award of attorney fees, alleging that no evidence was adduced

to justify the award or the amount of it. In Kahn v. Kahn, 756 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 reasonable attorney’s fee the judge asked him to name an amount

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.

Obviously, the trial judge felt that the pendente lite proceedings which had been

heard by him, the pre-trial briefs, depositions and the three day trial had sufficiently

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 was incumbent upon husband’s lawyer to request a hearing if dissatisfied

with the award, or convince the appellate courts that he was denied the opportunity

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