                                                                                         05/17/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                April 17, 2018 Session

STATE EX REL. JANA RUTH ALFORD NICHOLS v. RANDALL NELSON
                        SONGSTAD

                 Appeal from the Juvenile Court for Shelby County
                 No. Z4904     Nancy Percer Kessler, Special Judge
                      ___________________________________

                           No. W2016-02011-COA-R3-JV
                       ___________________________________


       Father unilaterally modified his child support obligation without submitting a
petition to modify to the trial court because his oldest child emancipated. The trial court
found that Father had impermissibly modified his child support obligation based, inter
alia, on the fact that Father failed to follow the Child Support Guidelines. Discerning no
error, we affirm the trial court’s judgment.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which W. NEAL
MCBRAYER and BRANDON O. GIBSON, JJ., joined.

Daniel Loyd Taylor and John N. Bean, Memphis, Tennessee, for the appellants, Randall
Nelson Songstad.

Herbert H. Slatery, III, Attorney General and Reporter; Brian A. Pierce, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Human Services.

Lee Ann Pafford Dobson, Germantown, Tennessee, for the appellee, Jana Ruth Alford
Nichols.


                                       OPINION

                                          FACTS

      The facts in this case are largely undisputed. Randall Nelson Songstad (“Father”)
and Jana Ruth Alford Nichols (“Mother”) were divorced in the Chancery Court of Shelby
County (“chancery court”) on January 30, 2006. A Permanent Parenting Plan (“the
plan”) was entered on May 17, 2006, which required Father to pay child support for the
parties’ two minor children in the amount of $1,154.00 per month. The plan included the
language “[t]he parents acknowledge that court approval must be obtained before child
support can be reduced or modified.” Father and Mother both signed the plan.

       In 2011, the eldest of the parties’ two children emancipated after she graduated
high school. After her emancipation, Father unilaterally prorated his child support
payments by approximately fifty percent without filing a petition to modify or bringing
his modification request before the court in any way. Mother, however, accepted
Father’s reduced child support payments for the next four years, until the parties’
youngest child also emancipated in 2014.1

       Mother, who became a Texas resident after the parties’ divorce, applied for Title
IV-D assistance2 in Texas in 2014. After receiving little to no assistance in Texas,
Mother filed for contempt in the chancery court. The State of Tennessee (“the state”)
then filed a notice of Title IV-D services and a notice to transfer to the Shelby County
Juvenile Court (“juvenile court”) in the chancery court on July 7, 2015. The matter was
administratively transferred to the juvenile court pursuant to Tennessee Code Annotated
section 36-5-402.3 The state then filed a petition to establish arrears and/or to modify

        1
          Father does not raise any issue concerning waiver on appeal.
        2
           “Title IV of the Social Security Act is a federal-state cooperative venture that provides
assistance to needy families who have been deprived of a parent through death, desertion or disability. 42
U.S.C. § 601–687.” Davis v. McClaran, 909 S.W.2d 412, 414 (Tenn. 1995). “Title IV-D provides a
wide variety of child support services to needy families[.]” Id. at 415. Title IV-D’s authorization of
appropriations section, 42 U.S.C. § 651, states

                “For the purpose of enforcing the support obligations owed by absent parents to
        their children and the spouse (or former spouse) with whom such children are living,
        locating absent parents, establishing paternity, obtaining child and spousal support, and
        assuring that assistance in obtaining support will be available under this part to all
        children (whether or not eligible for aid under part A of this subchapter) for whom such
        assistance is requested, there is hereby authorized to be appropriated for each fiscal year a
        sum sufficient to carry out the purposes of this part.”

Id. (quoting 42 U.S.C. § 651).
        3
          Tennessee Code Annotated section 36-5-402 states:

              In lieu of requesting a magistrate, the presiding judge may, with the agreement of all
     judges having child support jurisdiction in a particular county or counties, enter into
     agreements with juvenile courts to set, enforce, and modify support orders as provided in
     this part. In the event such an agreement is entered into, the juvenile court shall have
     jurisdiction over all support cases in such county, except as may otherwise be provided in
     the agreement, any contrary law notwithstanding[.]

Tenn. Code Ann. § 36-5-402(b)(2).
                                                   -2-
order on September 30, 2015, in the juvenile court. The matter was continued several
times and was finally heard on June 9, 2016, by Magistrate Debra Sanders. The juvenile
magistrate entered her findings and recommendations on June 21, 2016, in which the
magistrate granted, in part, the petition to establish arrears and modify child support, as to
the establishment of arrears only. The Magistrate additionally established arrears in the
amount of $29,994.00 to be paid monthly by Father in the amount of $1,154.00 beginning
July 1, 2016. Father filed a timely motion to rehear requesting a rehearing before the
Presiding Judge.4

    On July 27, 2016, Special Judge Nancy Percer Kessler heard the case.5 The court
entered an order on the same day finding that Father’s request for rehearing was granted
and taken under advisement. The juvenile court entered its final order on August 25,
2016, in which it found that Father was in arrears in the amount of $29,994.00. Father
timely appealed this order.

                                                   ISSUE

        Father presents one issue on appeal, which we have slightly restated: Whether the
trial court erred in not allowing Father to prorate his child support upon his oldest child’s
emancipation without a court order.

                                        STANDARD OF REVIEW

       This Court reviews questions of the law de novo with no presumption of
correctness. Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citing Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013)). When reviewing child support
determinations, however, this Court reviews those decisions “using the deferential ‘abuse
of discretion’ standard.” Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App.

        4
          The Rules of the Juvenile Court of Shelby County, Tennessee, state that “[a]ny party may,
within five (5) days after the hearing before the Magistrate, excluding nonjudicial days, file a request for
and be allowed a hearing before the Presiding Judge.” Shelby County Rule of Juvenile Court 13.
        5
          Ms. Kessler was appointed to hear the case pursuant to Tennessee Code Annotated section 17-2-
122 which states, in relevant part:

              where a judge finds it necessary to be absent from holding court and appoints as a
     substitute judge an officer of the judicial system under the judge's supervision whose duty it
     is to perform judicial functions, such as a juvenile magistrate, a child support magistrate or
     clerk and master, who is a licensed attorney in good standing with the Tennessee supreme
     court. The judicial officer shall only serve as special judge in matters related to their duties
     as judicial officer.

Tenn. Code Ann. § 17-2-122(b). No party raises any issue about this authority of the special judge in this
case.

                                                    -3-
2005). A trial court abuses its discretion when it “applies an incorrect legal standard,
reaches a decision that is illogical, basis its decision on a clearly erroneous assessment of
the evidence, or employs a reasoning that causes an injustice to the complaining party.”
Id. (citing Perry v. Perry, 114 S.W.3d 465, 467 (Tenn. 2003); Clinard v. Blackwood, 46
S.W.3d 177, 182 (Tenn. 2001); Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn.
Ct. App. 1999)).

                                        DISCUSSION


       As a preliminary matter, we must first address Father’s argument that the trial
court violated his constitutional rights by retroactively applying Wunder v. Wunder,
M2014-00008-COA-R3-CV, 2014 WL 7332857 (Tenn. Ct. App. 2014) to his 2011
proration of child support. We are cognizant that the trial court heavily relied on
Wunder, a memorandum opinion, in its order. Indeed, in its conclusions of law, the trial
court specifically states that it “adopts the findings in Wunder v. Wunder, 2014
7332857.” We also recognize the factual similarities between Wunder and the case at
bar; however, “[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.” Tenn. R. Ct. App 10 (emphasis added).
Accordingly, we will not rely on Wunder as the trial court did in this case, and Father’s
argument regarding a violation of his constitutional rights and the retroactive application
of Wunder is pretermitted.

        Father next asserts that a parent may unilaterally prorate child support without
requesting a modification from the court upon emancipation of the child because (1) a
parent has no duty to support a child once he or she has reached the age of majority and
(2) proration of child support is not considered a “modification” of a child support award.
Respectfully, we disagree. The Child Support Guidelines control this case, and they
require Father to seek a modification from the court and establish a significant variance
prior to modifying his child support obligation.

        “[S]ince 1984, the process and criteria for ascertaining a parent’s child support
obligation has been governed by Child Support Guidelines promulgated by the Tennessee
Department of Human Services in accordance with Tenn. Code Ann. § 35-5-101(e).”
Richardson, 189 S.W.3d at 72425. Tennessee Code Annotated section 36-5-101(e)
states: “In making the court’s determination concerning the amount of support of any
minor child or children of the parties, the court shall apply, as a rebuttable presumption,
the child support guidelines, as provided in this subsection . . . .” Tenn. Code Ann. § 36-
5-101(e)(1)(A). “Tennessee’s Child Support Guidelines have the force of law.” State ex
rel. Williams v. Woods, 530 S.W.3d 129, 137 (Tenn. Ct. App. 2017) (citing Jahn v.
Jahn, 932 S.W.2d 939, 943 (Tenn. Ct. App. 1996)). Therefore, courts must use the
“child support guidelines ‘to promote both efficient child support proceedings and
                                            -4-
dependable, consistent child support awards.’” Id. (citing State ex rel. Vaughn v.
Kaatrude, 21 S.W.3d 244, 249 (Tenn. Ct. App. 2000)); see also Tenn. Code Ann. § 36-5-
101(e); Tenn. Comp. R. & Regs. 1240-02-04-.01(3)(b), (c).

      The Tennessee Comp. Rules & Regulations went into effect on January 18, 2005,
and provide that

       Beginning on the effective date of these rules, all modifications shall be
       calculated under the Income Shares Guidelines, whether the action was
       pending before the effective date or filed after the effective date, where a
       hearing which results in an order modifying support is held after the
       effective date of these rules.

Tenn. Comp. R. & Regs. 1240-02-04-.05(1). This Court has explained that “the
Tennessee Child Support Guidelines clearly state that the income shares guidelines can
apply to actions pending before the effective date, provided that the hearing on the
petition to modify is held after the effective date.” Boyd v. Bates, No. M2007-02345-
COA-R3-CV, 2008 WL 3342998, at *5 (Tenn. Ct. App. Aug. 11, 2008) (noting that the
applicability of the income shares guidelines depends on “the date of the hearing that
results in an order modifying support” rather than “the date on which the petition to
modify is filed.”). Therefore, the income shares model may apply to cases pending prior
to January 18, 2005, so long as the hearing occurred after that date. See Tenn. Comp. R.
& Regs. 1240-01-04-.05(1).

       The income shares guidelines require a “significant variance” for a modification of
a child support order. Tenn. Comp. R. & Regs. 1240-02-04-.05(2)(a) (“Unless a
significant variance exists, as defined in this section, a child support order is not eligible
for modification.”). A significant variance, in other words, acts as a condition precedent
for a modification. See id. Because of the change from the flat percentage model to the
income shares model in 2005, the guidelines distinguish between a significant variance
for child support orders that were “established or modified before January 18, 2005” and
requests to modify orders that were established or modified after the effective date of the
guidelines. See id. In relevant part, regarding orders entered prior to January 18, 2005,
the Child Support Guidelines state:

       For all orders that were established or modified before January 18, 2005,
       under the flat percentage guidelines, and are being modified under the
       income shares provisions for the first time, a significant variance is defined
       as:

                                           * * *


                                            -5-
       A change in the number of children for whom the ARP is legally
       responsible and actually supporting

Tenn. Comp. R. & Regs. 1240-02-04-.05(2)(b)(2.). In other words, with regard to orders
that were established or modified before January 18, 2005, a change in the number of
children for whom a parent is legally responsible and actually supporting qualifies as a
significant variance and allows for modification. See id. In orders that were established
or modified after January 18, 2005, however, a significant variance is defined as “at least
a fifteen percent (15%) change between the amount of the current support order (not
including the deviation amount) and the amount of the proposed presumptive support
order[,]” or if the court determines that the parent seeking modification qualifies as a
low-income provider, “at least a seven and one-half percent (7.5% or 0.075) change
between the amount of the current support order (not including any deviation amount)
and the amount of the proposed presumptive order.” Tenn. Comp. R. & Regs. 1240-02-
04-.05(2)(c). Accordingly, in order to receive a modification under the relevant
guidelines, an obligor parent must prove that there is a significant variance under 1240-
02-04-.05(2). See id. at 1240-02-04-.05(2).

        Moreover, the regulations explain that “[a]n order may be modified to reflect a
change in the number of children for whom a parent is legally responsible, . . . only upon
compliance with the significant variance requirement specified in 1240-2-4-.05.” Tenn.
Comp. R. & Regs. 1240-02-04-.05(6) (emphasis added). Thus, the guidelines make clear
that in modifying an order initially entered after January 18, 2005, the requirements of the
Child Support Guidelines, including the significant variance requirement, will apply even
where the modification results from the emancipation of a child, as the emancipation
changes the number of children for whom a parent is legally responsible. The regulations
also address child support modifications absent notice to the court stating

       No ordered child support is 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. Any payment or installment of support under any child
       support order on or after the date it is due is a judgment by operation of law
       with the full force, effect, and attributes of a judgment, including the ability
       to be enforced, and is entitled as a judgment to full faith and credit.

Id. at 1240-02-04-.05(8). Therefore, according to the regulations, a parent cannot modify
child support before a petition for modification is filed in the court and a notice of the
action is mailed to the parties. See id.

       Here, Father relies on several cases that hold that a reduction in child support
based upon the emancipation of a child is not a modification and therefore need not be
precipitated by the filing of a petition, despite the plain language of the Child Support
                                            -6-
Guidelines. We agree that prior to the enactment of these guidelines, courts did not
interpret a unilateral reduction in child support based on a child reaching majority as a
modification of child support. See generally Clinard v. Clinard, No. 01-S-01-9502-
CV00021, 1995 WL 563858, at *2 (Tenn. Sept. 25, 1995) (“Proration, therefore, is not a
retroactive modification of the child support award and its application does not require a
petition to, or an order from, the court.”). Likewise, following the adoption of the income
shares model, some courts have allowed unilateral reductions in child support based upon
emancipation, relying on the authority in Clinard.6 Corder v. Corder, 231 S.W.3d 346,
359 (Tenn. Ct. App. 2006) (“There is authority to support the claim that proration of a
child support obligation without a court order, based on the child’s emancipation, is not a
retroactive modification of the child support award. . . . [A]n obligor parent may, under
appropriate circumstances, prorate his or her child support payments after a child is
emancipated without first obtaining a court order, although it is prudent to request that
the trial court modify the child support obligation.” (citations omitted)); Peterson v.
Peterson, No. M2008-006310-COA-R3-CV, 2009 WL 4041632, at *4 (Tenn. Ct. App.
Nov. 20, 2009) (“[P]roration of the child support based on the emancipation of one of the
children covered under the order does not constitute improper retroactive modification.”)
(citing Clinard, 1995 WL 563858, at *2). These cases either were decided prior to the
implementation of the income shares model, see Clinard, 1995 WL 563858, at *2, or
involve modification of a pre-January 18, 2005 child support order, in which case the
emancipation of a child, alone, was sufficient to show the significant variance necessary
for the modification of child support. See Tenn. Comp. R. & Regs.1240-02-04-.05(2)(b);
Corder, 231 S.W.3d at 349 (involving modification of a 1999 child support order);
Peterson, 2009 WL 4041632, at *1 (involving modification of a 1996 final divorce
decree that ordered father to pay child support).7 As such, these decisions provide little
guidance in this case, where the parties are seeking to modify a child support order
entered well after January 18, 2005.8 Indeed, from our research, no case involving
modification of a child support order entered following January 18, 2005, has relied on
Clinard or its progeny to hold that unilateral proration of a child support order on the
basis of the emancipation of a child was proper. See, e.g., Mitchell v. Hall, No. E2014-
01919-COA-R3-CV, 2016 WL 749560, at *6 (Tenn. Ct. App. Feb. 26, 2016) (citing
Clinard as relevant to modification of a 2008 child support order, but not involving
unilateral modification of child support); Blankenship v. Cox, No. M2013-00807-COA-

        6
           Although Clinard was decided by the Tennessee Supreme Court, it is an unreported case which
“shall be considered persuasive authority[,]” and is “controlling authority between [only] the parties to the
case[.]” Tenn. Sup. Ct. R. 4.
         7
           Although the income shares child support guidelines appear to be applicable in both Corder and
Peterson as both involved post-January 2005 final hearings, the regulation at issue is not specifically
cited in either case. See Corder, 231 S.W.3d at 350 (discussing a June 2005 hearing); Peterson, 2009
WL 4041632, at *2–*3 (involving a 2006 or 2007 special master hearing, as well as an October 2007
hearing on the special master’s report).
         8
           Here, the parties were divorced in January 2006 and a parenting plan establishing child support
was entered in May of that year.
                                                   -7-
R3-CV, 2014 WL 1572706, at *8 (Tenn. Ct. App. Apr. 17, 2014) (holding, in response to
Father’s argument that modification of his child support obligation should begin on the
date of the child’s emancipation, rather than the date the modification petition was filed,
that Father chose to voluntarily support the child following his emancipation); c.f. Devore
v. Devore, No. E2010-02017-COA-R3-CV, 2012 WL 11266, at *5 (Tenn. Ct. App. Jan.
4, 2012) (citing Corder as support for unilateral proration, but holding that once the child
“reached the age of majority and graduated from high school, Husband was entitled to
request a modification of his [1998] child support obligation to reflect payments for one
child instead of two”) (emphasis added).9 Rather, this court has previously held that the
adoption of the income shares model has rendered proration “obsolete.” Brooks v.
Brooks, No. M2007-00351-COA-R3-CV, 2009 WL 928283, at *7 (Tenn. Ct. App. Apr.
6, 2009) (citing Lichtenwalter v. Lichtenwalter, No. M2003-03115-COA-R3-CV, 2006
WL 236945, at *1 (Tenn. Ct. App. Jan. 30, 2006), rev’d on other grounds, 229 S.W.3d
690 (Tenn. 2007)).

        Applying the unambiguous Child Support Guidelines applicable in this case, it is
clear that Father was not entitled to unilaterally modify his child support obligation upon
the emancipation of his eldest child. Rather, the Child Support Guidelines applicable in
this case provide that even where a reduction in child support is based upon the
emancipation of a child, i.e., “a change in the number of children for whom a parent is
legally responsible,” two requirements must be met: (1) the parent seeking the
modification must file a petition and provide notice to the opposing parent; and (2) the
party seeking the reduction must show that a significant variance exists to warrant
modification. Here, Father never requested permission from the court to modify his child
support obligation. See Tenn. Comp. R. & Regs. 1240-02-04-.05(8). To the contrary, the
only pleadings filed by Father were filed in response to Mother’s request for an arrearage
judgment. Consequently, Father failed to file any petition or take any action for
modification in court. See id. Because Father never sought any relief from the court, no
notice was given to Mother. See id. Additionally, because no petition was filed, Father
failed to establish that a significant variance existed to warrant modification of his child
support obligation. See id. at 1240-02-04-.05(2)(c), 1240-02-04-.05(6). In fact, Father
failed to present any evidence that his child support as calculated under the income shares
model would have been reduced in any fashion due to the change in number of children
for whom Father was legally responsible. As a result, Father was not in compliance with
the controlling income shares guidelines and acted without authority in prorating his child
support obligation upon emancipation of his oldest child.

       As a final point, Father argued at oral argument that regardless of whether he
could unilaterally modify his child support obligation without filing a modification
petition, this Court should remand this issue to the trial court to calculate his child

         9
             Devore also involved modification of a 1998 child support order. See Devore, 2012 WL 11266,
at *1.
                                                   -8-
support payment in light of his oldest child emancipating. “Judgments awarded outside
of the scope of the requested relief are typically void.” Long v. Long, No. M2015-
00592-COA-R3-CV, 2015 WL 9584393, at *4 (Tenn. Ct. App. Dec. 29, 2015). Further,
“[a] trial court commits error when it bases a decision, even in part, upon conclusions
concerning an issue that was not raised in the pleadings or tried by consent.” Id. Father
has failed to file a petition to modify his child support obligation at any time during the
pendency of this case and has failed to present evidence of a significant variance, both of
which are required by the income shares guidelines in order to receive a modification.
Because Father has failed to comply with the Child Support Guidelines, which are
mandatory in order to receive a modification, he has failed to properly request any relief
that could result in a court’s modification of his child support obligation. Accordingly,
this Court lacks the authority to remand for a determination of Father’s child support
arrearage. See Tenn. Comp. R. & Regs. 1240-02-04-.05(8) (“Any payment or installment
of support under any child support order on or after the date it is due is a judgment by the
operation of law with the full force, effect, and attributes of a judgment, including the
ability to be enforced, and is entitled as a judgment to full faith and credit.”).

       In conclusion, the current Child Support Guidelines control this case, and Father’s
reliance on the line of cases applying Clinard, rather than the income shares guidelines, is
ultimately misplaced and incorrect. Moreover, Father failed to comply with any of the
modification requirements stated in the income shares guidelines. Therefore, we agree
with the trial court’s reasoning that “[Father] unilaterally and impermissible reduced his
child support obligation by 50% when [his oldest child] emancipated in June 2011,
instead of following the Child Support Guidelines for setting or modifying child
support.” The trial court’s judgment is therefore affirmed.

                                       Conclusion

       The judgment of the Shelby County Juvenile Court is affirmed. The costs of this
appeal are taxed to Appellant, Randall Nelson Songstad, and his surety, for which
execution may issue if necessary.


                                            _____________________________
                                                J. STEVEN STAFFORD, JUDGE




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