                      IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                               Assigned on Briefs November 21, 2005

               ELIZABETH SOWELL NEEDHAM v. CHAD DEARMAN

                          Appeal from the Juvenile Court for Dickson County
                            No. 07-97-005-M    A. Andrew Jackson, Judge



                         No. M2004-02031-COA-R3-JV - Filed January 5, 2006



Plaintiff appeals from failure of the trial court to allow interest on a child support arrearage judgment
pursuant to T.C.A. § 36-5-101(A)(5). The judgment of the trial court is reversed.


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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK
G. CLEMENT , JR., JJ., joined.

Jim Sowell, Dickson, Tennessee, for the appellant, Elizabeth Sowell Needham.

Janet S. Kelley, Dickson, Tennessee, for the appellee, Chad Dearman.


                                        MEMORANDUM OPINION1


       The only issue before the court is the refusal of the trial court to grant interest on a child
support arrearage judgment in the amount of $5,045.49.

        The entire responsive brief of the appellee before this court states:



        1
            Tenn. Ct. App. R. 10 provides:

        The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
        the actions of the trial court by memorandum opinion when a formal opinion would have no
        precedential value. W hen a case is decided by memorandum opinion, it shall be designated
        “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
        reason in any unrelated case.
                                           ARGUMENT

                The Appellant has correctly listed the State of the Case with the exception of
       the Judge’s Order entered July 22, 2004. The Judge allowed the interest as requested
       by the Appellant. However, counsel for the Appellant took issue with the language
       of T.C.A. Section 36-5-101(A)(5) wherein “all interest which accumulates on
       arrearages shall be considered child support.” Defense counsel argued that the statute
       was ambiguous. The Court stated that the statute was clear and unambiguous and
       must be construed in its entirety. Attorney Sowell wrote the Order different than
       what the Court ordered. The Court clearly ordered the interest for the Appellant
       however, the Order would have to indicate the language that the interest was to be
       considered child support.
                Attorney for the Appellant was awarded the arrears but the Court was specific
       in that the language in the Order would reflect that the interest which accumulates on
       the arrears be considered child support.

                                          CONCLUSION

               The Order was not prepared pursuant to the Court’s Orders. The Court stated
       that interest could accumulate, however, the interest would be considered child
       support.


        The assertions of the appellee are meaningless on appeal as the trial court speaks through its
orders and judgments.

               While the trial judge appears to have made statements which were
       contradictory as to the reasons which prompted his action, we must accept as the true
       and determinative reason the one he expressly directed should be made a part of the
       minute entry. There are two reasons which justify this conclusion; (1) the trial judge
       evidently changed his mind when the substance of ground No. 3 was called to his
       attention, as he had a right to do, and (2) we will not presume that he entered upon
       the minutes a judgment which he knew was not subject to review by the appellate
       court, thereby inducing the plaintiff to act to his own injury. Rice-Stix Dry Goods
       Co. v. Self, 20 Tenn. App. 498, 101 S.W.2d 132; Chumley v. Anderton, 20 Tenn. Ap.
       621, 103 S.W.2d 331. The presumption is to the contrary. The judgment derives its
       force from what the trial judge actually did, as shown by the minutes, which was final
       and conclusive as between the parties.

Waller v. Skelton, 211 S.W.2d 445, 448-49 (Tenn. 1948).

       The part of the judgment complained of on appeal recites:




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              This cause was heard on the 16th day of June, 2004, before the Honorable A.
       Andrew Jackson, Juvenile Court Judge, Dickson County, Tennessee. At the call of
       the case the parties announced to the Court that all things in controversy had been
       compromised and settled between the parties with the exception of whether the child
       support arrearage should accrue interest at the rate of twelve percent (12%) per
       annum pursuant to T.C.A. § 36-5-101(A)(5). Upon the consideration of the statute
       which states as follows:

              (5)     Any order for child support shall be a judgment entitled to be
              enforced as any other judgment of a court of this state and shall be
              entitled to full faith and credit in this state and in any other state.
              Such judgment shall not be subject to modification as to any time
              period or any amounts due prior to the date that an action for
              modification is filed and notice of the action has been mailed to the
              last known address of the opposing parties. If full amount of child
              support is not paid by the date upon which the ordered support is
              due, the unpaid amount is in arrears and shall become a judgment for
              the unpaid amounts and shall accrue interest from the date of the
              arrearage at the rate of twelve percent (12%) per annum. All interest
              which accumulates on arrearages shall be considered child support.
              Computation of interest shall not be the responsibility of the clerk.

       and the statements of counsel and the record as a whole, the Court finds that the
       statute should be strictly construed and the request that the arrearage accrue interest
       should be denied.

       Appellant filed a statement of the evidence pursuant to Tenn. R. App. P. 24(c) which met
with no response from the appellee. The statement of the evidence recites in its entirety:

              Pursuant to T.R.A.P. 24(c), the Plaintiff/Appellant presents the following
       statement of evidence and proceedings:

                      At the call of the case by the Court Clerk, counsel for the
              Plaintiff/Appellant announced to the Court that the parties had
              agreed to all things and matters in controversy, with the exception of
              whether the child support arrearage should accrue interest. The
              Court’s immediate response was “No”. At that point, Appellant’s
              counsel presented the Court with T.C.A. 36-5-101(A)(5). The Court
              examined the statute and invited comments from
              Defendant’s/Appellee’s counsel. Defense counsel’s theory was that
              the accrued interest, being considered child support, was to be added
              to the child support arrearage, and since it was to be treated as child
              support, it should then be a credit on the child support arrearage.
              The Court agreed with defense counsel’s theory, stating that the


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               statute was ambiguous and the statute granted the accrued interest
               and took it away. The Court denied the Plaintiff’s request that the
               child support arrearage accrue interest.

              The counsel for the Plaintiff/Appellant, Jim Sowell, certifies that the
       foregoing Statement of Evidence is a true and accurate statement of the evidence or
       proceeding which occurred at the hearing on June 16, 2004, before the Honorable A.
       Andrew Jackson, Juvenile Court Judge for Dickson County, Tennessee.

       The issue presented by the appellant is:

               Whether the trial court erred in denying the Plaintiff/Appellant’s request for
       interest to accrue on the child support arrearage, pursuant to T.C.A. 36-5-101 (A)(5).

        No case authority is cited by either party and the only issue involves the meaning of the
portion of T.C.A. § 36-5-101(A)(5) that provides “if full amount of child support is not paid by the
date upon which the ordered support is due, the unpaid amount is in arrears and shall become a
judgment for the unpaid amounts and shall accrue interest from the date of the arrearage at the rate
of twelve (12%) per annum. All interest which accumulates on arrearages shall be considered child
support.”

        The statute is clear and unambiguous and requires no construction strict or liberal. The child
support arrearage draws 12 percent interest per annum and is declared to become child support. No
provision of the statute provides that such interest shall become a credit upon the child support
arrearage.

      The judgment of the trial court is reversed, and the case remanded to the Juvenile Court of
Dickson County for further proceedings.

       Costs of the appeal are assessed to the appellee.


                                                        ___________________________________
                                                        WILLIAM B. CAIN, J.




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