# FILED Jan. 22, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) KERYN HICKERSON, ) Shelby Law No.78272 ) Plaintiff/Appellee. ) ) VS. ) C. A. NO. 02A01-9511-JV-00249 ) JERRY FINCHUM, ) ) Defend ant/Appe

llant. ) )

______________________________________________________________________________ From the Juvenile Cou

rt of Shel by C ounty

at Memphis
. Honorable A. V. McDowell, Special Judge

Sheil a D. Br

own , LAW FI RM OF SHEIL

A D. BROWN, Memphis, Tennessee Attorney for Def endant/A ppellant
. David R. Hug gins , ARTHUR RAY LAW OFFI CES, Memphis, Tennessee Attorney for Plaintiff/Appe llee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) TOMLIN, Sr. J. : (Concur s)1 Finchum was served with process through the secretary of state in New Mexico. The record shows that Mother and Father beg an their relationship while in college, with Mother subsequently moving to F ather’s home in Nashville. They then moved to Odessa, Texas, where Mother became pr

egnan t.
2 At this time, Finchum was a resident of Tennessee. This appeal concerns whether the appellant, Jerry Finc

hum (“Finchum” or “Father”) , should be l egally

require d to pay retr

oactive child support for

his child, Elizabeth Jane Hickerson, born February

16, 1983 to the

appelle e, Kare

n Hicker son (“Hic

kerson” or “Mothe

r”). The juvenile court awarded such

support, in the amount of $31,080, and Finchum has appealed. For reasons set forth below, we a

ffirm.

The initial paternity action in this matter was filedby Mother ag ainst Finchum in the Juvenile Court of Memphis a

nd Shelby County on March 25, 1983, but was ultimately dismissed for lack of perso nal jurisd

iction ove

r Finchu m. 1 A ppro ximately eleven y ears later, in August 1994, Mother filed a second petition to establish paternity and set support against Finchum 2 which is the subjec t of this appeal. In it, she soug ht support

and maint

enance for the c hild includ

ing those expenses for which she is entitled under T.C.A. §§ 36-2-102, 108. The matter was heard before the juvenile court referee. Court ordere d blood tests of December 1994 establish

ed a 99.9 4% proba

bility that Finchum i s the child ’s natur al fathe r. On Janua

ry 20, 1995, t

he refe ree fou nd as su ch and recommended, inter alia , the legitimation of th e child; the payment by Finchum of all medical expenses incident to her birth, one-half of the child’s medical expenses not covered by insurance and child support in the amount of $252 monthly beginning January 30, 1995; and the continuation of the case as to further matters including bac k support. The referee’s findings a nd recommendations
were confirmed as the decree of the juvenile c ourt, which thereafter entered a n income assignment order for collection of the child support.

In April 1995, Mother filed the following affidavit stating, as pertinent here:
I was living with Mr. Finchum in Texas in 1982. I inform ed Mr. Finchum in June, 1982, of my preg nancy. . .

. I ca me to Memphis to visit family in November, 1982 an d anticipated, upon my

return to Texas, tha

t e ver ything would be thesame; Mr. Finchum and I had, in fa ct, discussed the idea

of mar riage on at least one occasion. To m y surprise, howe

ver, Mr. Finchum informed me that I should not come b ack to Te

xas, beca use he wa s tr ans ferring

to Albu querque, New Mexico. He further informed me that he had a new girlfriend, . . . . I th er efor e, of

ne ce ss it y, s ta yed in Me mp hi s w it h f am il y. Elizabeth was born in Memphis, on February 16, 1983. Subseq uent ly, I suffered se vere medical problems for approxima

tely one yea r, which were related to the trauma of the birth, and to the circumstances surrounding the birth.

. . . I al so experienced serious emotional and psychological difficulties as a res ult of Mr. F inchum’s conduct as it relat ed to the birth of our child. I endured a lengthy conval escence, including phy sical ther apy , and I was unable to work for nea rly one yea r. I contacted Mr. Finchum and informed

him of the birth, and of the problems related to it, but he w as comple

tely unsy mpathetic . He neit

her offe red nor supplied any help wha

tsoever, despite the fact

that he wa s gainf

ully employed and well able to do so. At no time during this brief period of c ontact , did he deny that he w as Elizabeth’s father, or give any indication that he would ever do so. Des pite my many

physical and emotional proble ms, I brou ght , withthe help of my par

ents, a paternity a

ction ag ainst Mr. F

inchum, in this court, in late 1983. Mr. Finchum avoided his obligations at that time by arguing lack of personal jurisdiction, . . . The case was dismissed. . . . I was unab le emotionally or financia lly to pursue

further legal action at that time. I attempte d to conta

ct Mr . F inchum several times over the course of the next four yea rs, by mailing letter s to the addressof his family in Tennessee, the only

ad dress at which I thought I might be able to contact him . . . . I do not know for certain whether he ever receiv ed these

items. Mr. Finc hum knew or could easily have ascertained where Elizabeth and I lived, as I re

mained in Me mphis , and maintained a listing in the telephone directory the entire time. I conti nued to at

tempt to co ntact Mr. Finchum, through his family , throug

h 1987, but

to no avai l.

. . . . I finally reache d the point in 19 94 where I wa s able bot

h financi ally

and emotionally to undertake what I felt would be a difficult legal proceeding to receive support from Mr. Finchum.

After further hearing, the ref

eree recommended that the prior orde r of the co urt be3 Father also petitioned the court for specific visitation with the child which wa s granted.
4 Mother was not present for this hearing. She was r epresented by

counsel, however. modified to award

child supp ort to Hickerson pr ior to the d ate pate

rnity was esta blish ed. The juvenile court jud ge con firmed th e recom me n dation. Father was ordered to pay back support of $31,080 at a

monthly rate of $271.95 over the next 12 years, in addition to the reg ular child support payments.
At Father’s request, the matter was reheard before the

juvenile court judge. 3 At the rehear ing, in June 199 5, Finch um t estified 4 that during the co uple’s r esidenc y in

Odessa, Texas, another man, empl oye d by

Mother in

her business, lived with them for a time. During this period, Finchum made a tw o week tr

ip to Nashv

ille and u pon his re turn, was informed by Mother of her pr eg na nc y. Mother subsequently re turned to her home in Tennessee. Finchum thereafter received the initial petition for paternity. He aske d that blood tests be taken, but Mother refused, giving him
no reason for doing so. After the petition was dismissed, Finchum neve r heard from Mother
. He stated tha t he has 15 siblings , all of whom liv e in the Nashville area and that “if she wanted to g et
a hold of me, she could have . . . .” Finchum said that he works a 40 hour week, earning $9 per hour
.
On cross-examination , Finchum stated that he was not aware of Hickers o n’s residency in Memphis du

ring the interim between the filing of

the two petitions. He knew, however, that she had family in Memphis, but did not attempt contact with any one there regarding

Hickers o n’s whereabouts. He never rec eived any c orrespondence from Hickerson. He f urther stated:
[Opposing Counsel]: Did youthink it wa s a possibility [the child] was you rs? Mr. Fi nc hu m: I to ld my a tt or ne y I wou ld do any thing if it was my child . . . [Opposing

Counsel]: I

just want to know if you thought there wa s a possibility

she was y

ours? Mr. Finchum: No sir, I didn’t. . . .

. . . . Mr. Finchum: Yes, we slept together, so there was a possibility, . . .

.5 Mother a lso sough t expenses under § 3 6-2-102, which sta tes: Liability of fat

her of child bo rn out of wedlo ck. -- The father of a child born out of wedlock is liable for: (1) The necessary

support and education of the child; (2) The c hild’s fun eral expe nses; (3) The expenses of the mother’s confinement and rec overy; and (4) Such expenses, including counsel fees, in connection with the mother’s pregnancy

as the court in its discretion may deem proper. [Opposing Counsel]: But you didn’t feel it necessa ry over the course of eleven ye ars to ever say

“Hey, I want a blood test” and get a court to order it for you? Mr. Finchum: She denied it once . . . .

The trial court “reconfi rmed ” the referee ’s ruling , award ing the r etroac tive child support in the amount

herein s pecifie d. The mon thly pay ments were set at $147. The court entered
an amend ed inc ome as signm ent or der req uirin g a monthly deduction of $399 from Father’s wages by his employ

er, Pennacle Steel Processing.

Finchum f

rames the issues fo r revie w as follo ws:

I. I s the tria

l judge r equired to award

retroa ctive ch ild support? II. Should retroactive ch ild s upport be waived where the father shows that he cannot afford to pay anything a

t all, no matter how nominal the award?

As heretof

ore note d, Mother

seeks tho se expense s for whic h she is en

titl ed u nder T.C.A. § 36-2-108. 5 This statute governs entry of the paternity decree and clearly provides for the awarding of retroactivechild support. See State ex rel. Coleman v. Clay , 805 S.W.2d 752, 754-55 (Tenn. 1 991). With r

espect t hereto, it states:
(a) If the f

indin g is against the defendant, the cour t shall make an order of paternity a

nd support, declaring paternity and for the support and education of the child, and may order a change of na

me. (b) The order of paternity and support

shall sp ecify . . . the sum to be paid monthly or otherwise, . . . until the child reaches the age of ma jo ri ty, and as otherwise provided by statute. In addition to provi ding for the support and education, the order shall al s o prov ide for t

he payment of the necessary expenses incurred by or for the mother

. . . for the support of t

he child pri

or to the makingof the orde r of pater nity and supp ort; (Emphasis supplied.)

We point out that Finch um d isputes the award o f child su

pport only

as it rela tes to the time prior

to the esta

blishing of pater nity ; he does n ot questio n the awa rd of pro spective

support. Finchu m contends th at the doctrine of laches applies to this case to bar Mother’ s recovery of retroactive child support. He relies on the fact that she waited some eleve n years be

fore pursuing the present

action a nd argues that in

so doing delay ed her pe tition to the point that it would now be inequi table to force him to pay support retroactive to the child’s birth. He further asser ts that Hickerson was negligent in failing to respond to his request for blood tests. As a result, he contends that he has suffered the injury of losing the first eleven y ears of his daughter’s life and has also been prejudiced

by the fact that he now has financial obligations “based on his assumption that he was not the child’s father.” Finchum submits that “[w]hile the courts have been reluctant to re ly on laches in cases such as retroactive child support awa rds, the argument still has some basis under the right set of circumstances.” He alternatively argues that an award of retroactive support is in error due to his financial inability to pay any of the a

mount ordered.

In Coleman v. Clay , 805 S.W.2d at 755, the supreme court spoke to the issue of awarding retr

oactive child supp ort as fo llows:
[T]he father’s responsibility for support of a child of his born out of wedlock ar ises at th e date of

the child ’s birth. B ecause the statut

e [36-2-108] also permits the juveni l e court to make a retroactive awa rd for expenses i ncurre d in the support of the child prior to the entry of the paternity dec

ree, such an award can be made back to the date

of the child’s birth, under appropriate circumstances. Obviously , the juvenile judge has broad discretion to determine the amount

of such a retroactive award, as we ll as the manner in which it is to be paid. What the juven

ile judge lacks is discretion to limit the father’s liability for child support in an arbitrary fashion that

is not consistent withthe provisions in T.C.A. § 36-2-102 and § 36-2 -108. For example , nothing in those se ctions ca n be inter preted t o restrict th e father’s liability

to the dat e when he k

nows for certain that the child in question is his. Such a limitation not only amounts to judicial legislation, but also e

ncourag es th e p utative f ather to avoid legitimately instituted court proc eedings and to delay testing , as did th e d efenda

nt in this ca se, in the

hope of minimizing th

e ultimate support award.

Id
.6 The record reflects that Finchum is marr ied and raising a stepdaughter
. The court in Coleman also addressed the issue of laches as an equitabl e defen se to the recove

ry of retro active s u ppo rt. There, the father had arg ued that mother’s delay

in filing her petition for paternity some fourteen y ears after the c hild’s bir th constitu

ted lach es and ef fective ly denied her recovery
. Id . The court rejected the contention, holding that in order to establish such
a bar to recovery , “more than mere del a y must be shown.” Id
. Coleman reasoned that the “touchstone” of the doctrine is pr ejudice to the othe

r party and that in that case no actual prejudice of the kind contemplated by la w had been demonstrated. Id
.
Cl ea rl y, the awarding of retroac tive child support , under th e approp riate circumst ances, has been both sanctioned by our legislature and enforced by the supreme court

of this state. Though not mandatory , such an award lies within the sound discretionof the juvenile judge. Thus, in t he case

at bar, i n the abse

nce of a proper d efense , the tria

l court wa s well with

in its discretion to make the award at issue here.

Finchum attempts to distinguish Cole ma n by po inting out that there the defendant father was shown to have assisted in delay ing the proceedings by

various means, including refusing to accept service of proce ss, failing

to appea r in cour t and dema

nding mul

tipleblood tests. See Id. at 754. We are not persua ded. Any disti nctions, we believe, are of degr ee only. I

n this case, Finchum obviously

delay ed and tot a lly eva ded, for a time, his legal responsibility , knowing that there
wa s a “p os si bi li ty” he was th is child’s father, by

defending the first paternity action on grounds of lack of personal jurisdiction, a wai vable def ense. He asserts that Mother refused his reque st for blood tests. However, if he had proceeded with the initial action, the tests would most certainly have been court ordered. The rec ord is clear th at he wa s repre sented by counsel a t that time. As held in Coleman , proof of mere delay is insufficient to establish laches. We fi nd t hat Finchum has not shown that he has been prejudiced in the delay of the bringing of this action “of the kind contemplatedby l a w.” Th e fact that he now has financial obligations 6 based on an erroneous assumption that he was not this child’s father is of little significance to this Court in light of t he entire circumstances involved here. We are satisfied that the doctrine of laches does not apply
.Finchum next attempts to challenge the award by arguing his inability

to pay. H e relies upon specific language in Coleman that “[t]he father ’s ability

to pay is releva nt to the amount of the retr oactive order a nd the met

hod of its p ayment in the future, but it should

not be take n to
ex tin guish

his statutory liability

for the child’s support, unless he is able to show that he cannot afford to pay any

thing at all, no matter how nominal the award.” Id . at 754 n.1. The record before
us fails to establish that Finchum lacks the ability to pay the retroactive support in the manner directe d by the trial court. At the time of the hearing, Finchum was ga infully employ

ed, e arnin g approxima

tely $17,000 annually. The r ecord also indicates that he has maintained steady employment in the y

ears prior to this petition.

It re sults that t

he judg ment of the

trial cou rt is affirme d and this c ause re manded to the court for

any further procee dings he

rewith c onsistent. Costs are taxed to the appellant, for which
ex ec ut io n m ay i ss ue if

ne ce ss ar y.

___________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ TOML IN, Sr . J. (Concur s)