### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Brief A ugust 6, 2001 STATE OF TENN ESSEE, EX REL. TEWANNA STEWART v. GARY

LOCKETT Appeal from the Juvenile Court for Davidson County No. 99-25061 Betty Adams-Gree n, Judge

No. M2001-00809-COA-R3-JV - Filed January 30, 2002

The juvenile court ordered the father of a minor child to pay retroa

ctive child support for the first ten yearsafter the child’s birth. Becau se the cour t did not wa

nt to cre ate a windfall for the mothe

r, it ordered that only part of the re

troactive support be paid to her, and that the rema inder be placed in an educati onal trus t fund for the child ’s benef

it. The Sta

te argues on appeal

that under the facts of this case, the creation of an educa tional trust fund is not authorized bythe child support statutes and guidelines. We affirm the award of retroactive child support, but we reverse its allocation between the mother and the child.

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

Affirmed in Part; Reversed in Part ; and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R
. and W IL LI AM B. C AIN , JJ., joined. Paul G. Summers, Attorney Gene ral & Reporter; Stuart F. Wilson-Patton, Senior Counsel, for the appella nt, State o f Tenne ssee, ex r el. Tewa nna Stewa

rt. Terry Clay ton, Nash ville, Te nnessee (at tria l) for the appelle e, Gary

Lock ett.
OPINION
I. P ROSPECTIVE C HILD S UPPOR T Gary Lockett and Tewanna

Stewart are the parents of Gary

Jabar Stewart, who was born on April1, 1989. Ms

. Stewart andthe child lived with Ms. Stewart’s mother during the first four y ears of the child’s life. They

then took an apartment of their own. Ms. Stewart apparently received AFDC public assistance for a total of about thirty -six months.
Ms. Stewart and Mr. Lockett neve r lived together, but they maintained a relationship for about six years. During

that time, Ms. Stewart didn’t ask for r egular child supp ort, but sh

e would occasio nally

ask Mr. Lockett for money

to help her

buy necessities like s hoes and clothing for their1 The State apparently has a subrogation ri ght to a portion of t he child support Ms. Ste wart woul d be enti tled to co llect, pur suant to Te nn. Co de. A nn. § 7 1-3-1 24.

2 The order actu all y sa id 153 mont hs, but t his was obv ious ly a ty pograph ical error -2- child. Mr. Lock ett ge neral ly c om pl ie d, an d h e a ls o b ou gh t p re se nt s f or th e b oy o n h is bi rt hd ay, Christmas, and at oth

er times. Legal proceedings began a

fter the child reached t

he age of ten. On October 29, 1999, a petition w as filed a

gainst M r. Lo ckett in th

e name of State of Tennesse e ex rel. Tewanna Stewart 1 to establish paternity and se t child support. During a hearing befor e the Juvenile Court referee, conducted

on January

24, 2000, t

he pare nts waive d their

right to parentage testing, and acknowledged

that Gary L

ockett was the biological and legal father of Gary Jabar Stewa

rt. The court ordered Mr. Locke

tt to pay prospective c

hild support in the amountof $55 per week, ba sed on his monthly income of $1386. A furthe

r heari ng to de

termine t he questi on of chil d suppo rt arre arage was scheduled for March 14.
II. R ETROACTIVE C HILD S UPPOR T During the Marc

h 14 hear ing, the parties p resente d widely

conflic ti ng testimony as to the amount of support Mr. Lockett had provided during the first ten years of

his son’s life. Ms. Stewart declared that she could only give him credit for $500 t o $700, while Mr. Lockett c laimed tha t his contribution was in excess of $10,000. A

lthough t he court did not fin d the testimony of eithe r party to be credible, it also found that “it is not unjust or inappropri ate to apply the guidelines in this matter.”
The referee accordingly calculate d the t otal amount that Mr. Lockett would have bee n responsi ble for in accordance with the child support guidelines if he had paid s upport fr

om the time of his son’s b irth. Fr

om this amo u nt, $32,802, he subtracted $1,900, which he found to be Mr. Lockett’s actual contribution during that time, for a total retroactive obligation of $30,702.
An award for retroactive child support is g enerally c onsidered to have two purposes : to benefit the parties’ child and to reimburse the custodial pa rent for cont

ributing more tha n her fa ir share to the child’s support. See State ex rel Vaughn v. Kaatrude, 21 S.W.3d 244 (Tenn. Ct. App. 2000). The referee stated

that in light of the support Ms. Stewart received from her mother and from AFDC, there was no proof that she contributed more than he r f air share to the child. He declared that awarding the full amount to the mother would constitute a windfall to her, and he accord ingly fashionedan award that he hoped would be fair to the mother, but of maximum benefit to the child.
The court awarded

Ms. Stewart $125 per

month for

133 months, 2 or $16,625, then reduced the payments to $20 per week, premised on future intercepts by the State of Mr. Lockett’s fede ral income tax refunds. See Tenn. Rules & Regs 1240-2-3-.02. The r eferee declare d that the other $14,077 should be placed in trust for the child’s future educational use. To this end, he ordered Mr. Lock ett to continu e pay

ing the r egular child support amount of $55 per week to the Juvenile Court-3-

Clerk for five yea

rs af ter Gary Stewart’s emancipation, with the clerk to hold these monies in an interest-bearing account to be used f or the child’s post-secondary education.
The State pro mptly

appealed the ref

eree’ s order t

o the Juvenile Court Judge. After a hearing conducted on December 7, 2000, the judge affirmed the use of retro active c hild suppor

t pay ments to fund an educational trust. She a pparent ly d id not agr ee, howe ver, tha t Mr. Lockett’ s monthly obligation should be o ffset by anticipa ted inter cepts of tax refun ds, for sh

e incre ased the

weekly pay ments on the $16,625 judgmen t to $40 per

week. Th

e State th en filed this appe al.
III. T HE C HILD S UPPORT G UIDELINES Since Mr. Lockett did not file a response to the State’s brief on appeal, this case is before us solely on the que stions r aised by the State: whether the trial court erred both by dividing the retroactive child support between Ms. Stewart an d her chi l d, and by order ing the creation of an educational trust for the child.

A . T HE D IVISION OF S UPPORT B ETWEEN M OTHER AND C HILD Ch ildsupport awards in this State are governed by guidelines promulgated in ac cordanc e withTenn. Code. Ann. § 36-5-101(e). The guidelines are found in the Rules and Regulations of the Department

of Human Services at Tenn. Comp. R. & Reg. 1240-2-4, and they include tables which set out presumptively correct amounts of

child supp ort, based upon the net income of the obligor, and the number of children to be supported. A trial court may deviate from the a

mount se t out in the tables, but only if the court make s “a written or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular c as e.” Te nn. C omp. R. & Re g. 1240-2-4-.01(2).
Our courts ha ve sugg ested in s everal

cases th at the tri al court

has gre ater disc

retion in s h ap ing a child support award, including the amount and method of pay ment, when retroactive rather than prospective child support is at issue. State ex rel Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000 ); State Dept. of Human Services v. Springs , 976 S. W.2d 654, 6 56 (Tenn. Ct. App. 1997); State ex rel Coleman v. Clay , 805 S.W.2d 752, 755 (Tenn. 1991). However, the trial court must still ta ke the guidelines into account. Tenn. Code. Ann. § 36-2-311 of the paternity statutes declar es, (a) Upon establishing parentag e, the court shall make an order declaring the father of the child . This order s hall i nclud e the fo llow ing: (1) . . .

. . . (11) Determination of child support pursuant to c hapter 5 of t hi s t it le. In determining retroactive support, if any, deviation fr om the guidelines may

occur at the discretion of the court. Thecour t must make a written finding that application and guidelines would be unjust or ina ppropria

te in orde r to provi de for the best interests of the child or the equity between the parties . . . .-4-

The juvenile court referee wasthus correct in looking first to the guidelines to determine the presumpt ively corr ect amount of retroactive support. While he did not find the application of the guideline amoun t unjust or inappr opriate , he devia

ted from t

he statuto ry presumpt

ion that th e ultimate recipient of the award will be the person exercising custody of the child. See Tenn. Code. Ann. § 36- 5-101(a

)(4). Th e refe ree expla ined his r easons a s follows: “By law the r

etroac tive suppo

rt oblig ation is $3 0702.00. T he Court f

inds th a t awarding the full amount to the mother wo

uld amount

to a windf

all for her. There was no proof that she spent an amount equal to this for her child. To now give the mother a judgment for monies she never spent on the child would amount to a windfall for her. The Court finds that a reasonable amount, in this case $125 pe r month for 153 (sic) months or $16,625 should be awarded to the mother to reimbur se her for amounts she spent on the child.
The Court finds that it would be in the bes tinterest of the child to place the remaining retroa

ctive sup port, $14, 077.00 in tr

ust for fu ture edu cationa

l usefor the child. The Court

cannot give the child th ose extra things he would have had if the Respondent

had been providing adequate support since birth but, the Court ca n allot those monies for such extras for future use for the child’s bene fit.”
As this court said in State ex rel Vaughn v. Kaatrude, 21 S.W.3d 244 (Tenn. Ct

. App. 2000), decisions setting child support arewithin the discretion of the trial court, and we must review such decisions using the deferential “abuse of discr etion” standard of review. 21 S.W.3d at 24 8. Any award that deviates from the guidelines or from the mandates of Tenn. Code. Ann. § 36-5-101, and which lacks an adequate evidentiary foundation constitutes an abuse of discretion.
We have said that p art of a retroa ctive sup port awa rd may be paid to the child if the father’s failure to pay support deprived the child of the level of care to which he/she was entitled. State ex rel. Grant v. Prograis , 97 9 S.W.2d 594 (Tenn. Ct. A pp. 1997) ; Tallent v. Cates , 45 S.W.3d 556 (Tenn. Ct . Ap p. 2 000 ). In this case, however, there was a bsolutely no evidence pr

esented as to how much Ms. Stewa

rt spent o n her chi ld from he r own re sources , or whether the y oungster was deprived of any of the material necessities that accompany a normal childhood. The referee purportedly based his findings on the undisputed fact that Ms. Stewart received financial assistance from her mother for four y ears, and AFDC assistance for three years. B utthere was no testimony a s to the amount of assistance she received from either source. There was thus no basis in the record for a determination that she was entit le d to be reimbursedno more than $16,625. It appear s that the referee actual ly a rriv ed at this figure by estimating the amount that Mr. Lockett would be able to pa y on a monthly

basis, and calculating the resulting total from the cumulative monthly pa yme nt s d ur in g t he re ma in de r o f t he ch il d’ s m in or it y.
We acc ordin gl y vaca

te the portion of the trial court’s award that divided the child support betweenmother a

nd child, a

nd make th

e entire amount pa

ya ble to the mother. We reman d this cas e to the trial court so that

it may determine an

appropriate schedule of installment pay ments on its total judgmen t. We note tha

t an awa rd of chi ld support a

rrear age, li ke any other jud gment, m ust be pai d-5-

off in a reasonable time, but that does not necessarily

mean that it has to be paid entirely within the child’s minority. See Tallent v. Cates , 45 S.W.2d 556 (Tenn. Ct. App. 2000).

B . T HE E DUCATIONA L T RUST
The State points out that there is only one provision i n the Child Support Guidelines that m a kes refer

ence to t he crea tion of an educati onal trus t for the b enefit o f the chi ld, Tenn. Rules & Regs 1240-2-4-.04 (f)(3), which only applies to obligors with a net income of over $10,000 per month.
We are not

certain that the trial court is absolutely prohibited from

directing a portion of a child support award to an educational trust where wa rranted by circumstanc es, even if the obligor’s income is less tha

n $10,000 a

month. Bu

t since we have alr eady directe d that the

money be paid to Ms. Stewart, no such trust can be funded, and the question is moot.
But even if w e found it

appropriate to divide the child support between the mother and the child, we would

still have a problem with the lack of any evidentiary

basis for the educ ational tr

ust fund. We note that the referee ordered the funds to be made available to the ch ild for higher education only, and that he stated that the f unds would revert back

to the fa ther if the child chose not to go to college. No doubt the refe ree intended to create a strong motivation for

colleg e. But, w

hile we share the trial court’s appreciation for the value of higher education, it would be error to limit the beneficiary ’s use of the money, in the a bsence of any

evidence as to Gary

Stewart’s school record, or his needs, abilities, or aspirations.
IV.
The order of

the trial court

is affirmed in part and reversed in part. Remand this ca use to the Juvenile Court of Davidson County for fu rt her proceedings consistent with this opinion. Tax the costs on appeal to the State of Tennessee.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.