                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 March 10, 2010 Session

    STATE OF TENNESSEE ex rel., CARLA S. (NELSON) RICKARD v.
                  DOUGLAS TAYLOR HOLT

               Direct Appeal from the Circuit Court for Sumner County
                         No. 28874-C     C.L. Rogers, Judge


                No. M2009-01331-COA-R3-CV - Filed March 30, 2010


This is an appeal from the trial court’s finding that good cause existed to exempt
Father/Appellee from a wage assignment to collect child support as required by Tenn. Code.
Ann. 36-5-501(a). Discerning no error, we affirm.

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

J. S TEVEN S TAFFORD, J.,delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S. and D AVID R. F ARMER, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; and Michael E. Moore, Solicitor
General; Warren A. Jasper, Senior Counsel, Nashville, Tennessee, for the appellant, State of
Tennessee ex rel., Carla S. (Nelson) Rickard.

Richard A. Tompkins, Child Support Divison of Sumner County, Office of the District
Attorney General, Gallatin, Tennessee, for the appellant, State of Tennessee ex rel., Carla S.
(Nelson) Rickard.

Joseph Y. Longmire, Jr., Hendersonville, Tennessee, for the appellee, Douglas Taylor Holt.

                                         OPINION

        Mother, Carla S. Rickard (“Ms. Rickard”), and Appellee, Father, Douglas Taylor Holt
(“Mr. Holt”) were divorced on September 18, 2001, by Order entered in the Wilson County
Circuit Court. The case was subsequently transferred to Sumner County. Ms. Rickard filed
a petition to modify the parties’ parenting plan on August 6, 2008. She sought to modify
both the parenting schedule and child support. On February 5, 2009, Appellant, the State of
Tennessee Department of Human Services (“DHS”) intervened in the case for the purpose
of providing child support services. On February 3, 2009, an administrative order was
entered by DHS requiring Mr. Holt to pay all future child support payments directly to the
Central Child Support Receipting Unit. Mr. Holt, on February 25, 2009, filed a motion to set
aside the administrative order.

        A hearing on the petition to modify and the motion to set aside was held on March 12,
2009. According to the Statement of Evidence filed by DHS, both Ms. Rickard and Mr. Holt
were present at this hearing, and both testified. Mr. Holt testified that he was a pilot for a
commercial airline and further testified that he had recently been promoted to captain. In the
training for the promotion, Mr. Holt had been given the impression that his employer would
take “a dim view” of someone in his position of authority and responsibility being subject
to a wage assignment. Mr. Holt testified that he believed that it would not be good for his
job if he were subject to a wage assignment for child support. He further testified that he had
not been late in paying his child support. Ms. Rickard testified that Mr. Holt paid his
monthly child support, but that he had been inconsistent in the manner in which he paid the
support prior to the involvement of DHS. She testified that sometimes Mr. Holt would pay
her directly, sometimes he would put the check in one of the children’s backpack, and other
times he would deposit the money in her bank account.

        The trial court entered an order on March 23, 2009, modifying the parenting plan and
ordering Mr. Holt to pay his child support directly to Ms. Rickard. In this order, the trial
court stated that it was taking the motion to set aside the administrative order under
advisement. On March 30, 2009, DHS filed a memorandum in opposition to the motion to
set aside. The trial court, on April 21, 2009, entered an order setting aside the wage
assignment. The trial court found that, since 2001, Mr. Holt had made timely child support
payments. Further, the trial court found that Mr. Holt maintained regular professional
employment and that the “uncontradicted testimony was [that] the employer views
garnishments and wage assignment as possible pilot fitness issues.” The trial court found
that it was in the best interests of the children,1 Ms. Rickard and Mr. Holt not to cause any
employment problems for Mr. Holt. The trial court, citing Tenn. Code Ann. §36-5-501, held
that “due to the timely payments, and the foregoing good cause, [Mr. Holt’s] payments may
continue to be directly to the Mother.” The trial court noted that it would be illegal for the
employer to take adverse action against Mr. Holt based on the wage assignment, but held that
good cause was served by not providing the employer with any reason to question Mr. Holt’s
fitness. The trial court stated that smooth regular child support payments were better than
the risk of adverse employment action resulting in protracted litigation, which might interrupt
child support payments.


       1
           The trial court’s order uses the term “child.” However, there are two children involved in this case.


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        DHS filed a motion to alter or amend the judgment pursuant to Tenn. R. Civ. P. 59.06
on May 5, 2009. DHS attached to its motion a letter from Mr. Holt’s employer, dated April
27, 2009, which letter was obtained with an administrative subpoena. The letter stated that
the employer complied with all federal and state laws in regard to garnishments. A hearing
was held on DHS’s motion on June 5, 2009. Following argument from counsel, the trial
court denied the motion to alter or amend, declining to order a wage assignment. However,
the trial court did modify its order to require Mr. Holt to make payments directly to the
Central Child Support Receipting Office, as required by statute. An order was entered
reflecting this decision on June 15, 2009. In this order, the trial court specifically noted that
there was no newly discovered evidence, that DHS failed to timely present the letter from the
employer and, therefore, the trial court did not consider the letter.

       DHS timely filed a notice of appeal on June 22, 2009 and raises the following issue
for our review: whether the trial court erred by ordering child support to be paid in a manner
other than wage assignment.

        We review questions of law de novo, with no presumption of correctness. Barge v.
Sadler, 70 S.W.3d 683, 686 (Tenn. 2002). However, we review the trial court’s findings of
fact, de novo with a presumption of correctness, unless the evidence preponderates otherwise.
Tenn. R. App. P. 13(d). We will reverse a trial court’s decision on a motion to alter or
amend only upon a finding of an abuse of discretion. Stovall v. Clarke, 113 S.W.3d 715, 722
(Tenn. 2003).

       Tennessee Code Annotated § 36-5-501(a)(1) provides, in pertinent part:

              For any order of child support issued, modified, or enforced on
              or after July 1, 1994, the court shall order an immediate
              assignment of the obligor's income, including, but not
              necessarily limited to: wages, salaries, commissions, bonuses,
              workers' compensation, disability, payments pursuant to a
              pension or retirement program, profit sharing, interest, annuities,
              and other income due or to become due to the obligor. The order
              of assignment shall issue regardless of whether support
              payments are in arrears on the effective date of the order.

The statute, however, provides two exceptions to the general rule requiring income
assignment:

              (2) Income assignment under this subsection (a) shall not be required:


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              (A) If, in cases involving the modification of support orders,
              upon proof by one party, there is a written finding of fact in the
              order of the court that there is good cause not to require
              immediate income assignment and the proof shows that the
              obligor has made timely payment of previously ordered support.
              "Good cause" shall only be established upon proof that the
              immediate income assignment would not be in the best interests
              of the child. The court shall, in its order, state specifically why
              such assignment will not be in the child's best interests; or

              (B) If there is a written agreement by both parties that provides
              for alternative arrangements. Such agreement must be reviewed
              by the court and entered in the record.

Tenn. Code. Ann. § 36-5-501(a)(2)(2001). This Court has had numerous opportunities
before to review this statute and the exceptions included within it. See, e.g., Butler v. State,
No. W2001-01137-COA-R3-CV, 2002 WL 31845233 (Tenn. Ct. App. December 18, 2002);
Baker v. State, No. 01A1-9509-CV-00428, 1997 WL 749452 (Tenn. Ct. App. Dec. 5, 1997);
and Terrell v. Terrell, No. 02A01-9610-CV-00254, 1997 WL 576536 (Tenn. Ct. App. Sept.
18, 1997). At issue in the case before us, is the first exception, i.e., the “good cause”
exception.

        The good cause exception allows the trial court to exempt a parent from the wage
assignment requirement when it is in the best interest of the child, provided certain other
requirements are met. Tenn. Code. Ann. § 36-5-501(a)(2)(A)(2001); see also Butler, 2002
WL 3184523, at * 7. To apply this exception, the trial court must find that there is good
cause not to require wage assignment and that the obligor has made timely payments of child
support in the past. Tenn. Code Ann. § 36-5-501(a)(2)(A)(2001); see also Butler, 2002 WL
3184523, at * 7. To find good cause, the proof must show that the income assignment would
not be in the best interest of the child at issue. Tenn. Code Ann. § 36-5-501(a)(2)(A)(2001);
see also Butler, 2002 WL 3184523, at * 7. Upon making this decision, the trial court must
make written findings of fact, and also explain why an income assignment would not be in
the child’s best interest. Tenn. Code Ann. § 36-5-501(a)(2)(A)(2001); see also Butler, 2002
WL 3184523, at * 7. This requires more than “a mere conclusory finding that wage
assignment is not in the best interests of the children.” Butler, 2002 WL 3184523, at * 7.

       This Court reviewed the application of the good cause exception in Butler v. State,
No. W2001-01137-COA-R3-CV, 2002 WL 31845233 (Tenn. Ct. App. December 18, 2002).
In Butler, this Court found that the statutory requirements had not been met and, therefore,

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a wage assignment was mandated. Butler, 2002 WL 3184523, at * 7. Specifically, this
Court found that the record in Butler did not contain proof supporting a finding of good
cause not to require a wage assignment, and that the trial court’s order did not state, as
required, why a wage assignment was not in the child’s best interest. Id.

        This Court also had an opportunity to discuss the good cause exception in Terrell v.
Terrell, No. 02A01-9610-CV-00254, 1997 WL 576536 (Tenn. Ct. App. Sept. 18, 1997). In
Terrell, we affirmed the trial court’s order that the father pay child support through an
income assignment. Id. at *6. In that case, we noted that Tenn. Code Ann. § 36-5-501(a)
“presumptively require[s] that all child support orders issued after July 1, 1994, be paid by
income assignment.” Id. at *7. This court recognized that a trial court may waive this
requirement, in accordance with the statute, upon a finding of good cause, or by agreement
of the parties. Id. The father argued that the good cause exception applied as he had never
been late in paying his child support and that the income assignment was not in the best
interest of the child because the court clerk charged a five percent fee for processing the
payment, thus taking money from the family. Id. This Court rejected his argument,
explaining that the statute itself contemplates the clerk’s office charging a fee. Id.

       DHS argues that, based on Butler v. State, No. W2001-01137-COA-R3-CV, 2002 WL
31845233 (Tenn. Ct. App. December 18, 2002), Baker v. State, No. 01A1-9509-CV-00428,
1997 WL 749452 (Tenn. Ct. App. Dec. 5, 1997), and Terrell v. Terrell, No. 02A01-9610-
CV-00254, 1997 WL 576536 (Tenn. Ct. App. Sept. 18, 1997), we should reverse the trial
court and find that a wage assignment is mandatory. Clearly, a wage assignment is
mandatory in all cases where one of the two exceptions provided in the statute are not met.
Tenn. Code. Ann. § 36-5-501(a). However, the cases cited by the DHS are not helpful to this
Court. In Butler, this Court found that a wage assignment was required because there was
no proof in the record of good cause. Butler, 2002 WL 3184523, at * 7. In Terrell, this
Court found that good cause did not exist to exempt the father as his only assertion of good
cause was based on the processing fee authorized by the statute itself. Terrell, 1997 WL
576536 , at *7. Unlike those cases, the record before us contains uncontradicted proof, upon
which the trial court determined that it is in the children’s best interest to except Mr. Holt
from a wage assignment. Further, in Baker, this Court did not address the good cause
exception, but held that the statute required mother to make payments directly to either the
clerk of the trial court or to DHS. Baker, 1997 WL 749452, at *4. In this case, the trial court
recognized this requirement, and subsequently amended its order to require Mr. Holt to make
payments directly to the Central Child Support Receipting Office.

        DHS also cites to Almodovar v. Gonzalez, 573 So. 2d 380 (Fla. Dist. Ct. App. 1991)
to support its contention that we should find that the good cause exception does not apply in
this case. In Almodovar, the court reversed a trial court’s finding of good cause, which was

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based on an attorney’s assertion that his client would exercise good faith in making future
payments and that some employers may not look favorably on a wage assignment. Id. at
381. The client had been found to be in arrears twice before. Id. In reversing the trial court,
the Almodovar court stated that it was an abuse of discretion for the trial court to not require
a wage assignment solely based on counsel’s assurances of good faith, when there had been
noncompliance in the past. Id. at 382. The Almodovar court did not address the effect a
finding of possible adverse employment action could have on a finding of good cause. The
court merely noted that an employer who took retaliatory action would be subject to civil
penalties and that the trial court could issue a show cause order to the employer. Id.
Accordingly, we find that Almodovar is not helpful to our decision on good cause.

        After reviewing the record, we find that the evidence does not preponderate against
the trial court’s factual findings, nor does the evidence preponderate against the trial court’s
determination that good cause existed to exempt Mr. Holt from the wage assignment
requirement. See Dalton v. Dalton, CA No. 28, 1991 Tenn App LEXIS 146 (Tenn. Ct. App.
March 1, 1991). We note that courts should be cautious in making a determination that good
cause exists. See, e.g., Beals v. Beals, 517 N.W.2d 413, 417 (N.D. 1994); State ex rel.
Stutler v. Watt, 424 S.E.2d 771, 775 (W. Va. 1992). Moreover, the trial court should
maintain focus on the best interests of the children involved. The trial court should not find
good cause merely due to inconvenience to the obligor or the employer, nor due to any
embarrassment which the obligor may endure due to a wage assignment. See, e.g., State ex
rel. Stutler v. Watt, 424 S.E.2d 771, 775 (W. Va. 1992).

        In this case, the trial court fully complied with all the statutory requirements for
finding good cause and exempting Mr. Holt. The trial court made factual findings that good
cause exists to exempt Mr. Holt from the wage assignment requirement, and that Mr. Holt
has timely made previously ordered child support payments. In accordance with the statute,
the trial court reduced these findings to writing. The trial court also stated that the proof did
not show that a wage assignment was in the best interest of the child. Moreover, the trial
court fully explained the reasoning behind its best interest determination.

       From our review of the record, the evidence does not preponderate against the trial
court’s factual findings. Mr. Holt testified that he consistently made his child support
payments on time. Ms. Rickard’s testimony did not contradict this assertion. Ms. Rickard
merely testified that Mr. Holt had been inconsistent in the method of his payment, an issue
which should now be resolved by requiring him to make payments directly to the Central
Child Support Receipting Office.

      Also, we find that the evidence does not preponderate against the trial court’s finding
that Mr. Holt’s employer took a “dim view” of wage assignments, posing some risk of

                                               -6-
adverse employment action. At trial, DHS did not attempt to introduce any proof to the
contrary. In its motion to alter or amend, DHS sought to introduce new evidence in the form
of a letter from Mr. Holt’s employer stating that it complied with all state and federal laws
regarding wage assignments. The trial court declined to consider the newly submitted
evidence.

               When additional evidence is presented in support of a [a motion
               to alter or amend pursuant to Tenn. R. Civ. P. 59.04], the trial
               court should consider the factors applicable to a motion . . .
               pursuant to Rule 54.02 of the Tennessee Rules of Civil
               Procedure: the moving party’s effort to obtain the evidence. . .;
               the importance of the new evidence to the moving party’s case;
               the moving party’s explanation for failing to offer the evidence
               in responding...; the unfair prejudice to the nonmoving party;
               and any other relevant consideration.


Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003)(citing Harris v. Chern, 33 S.W.3d 741,
744 (Tenn. 2000)). We review the trial court’s decision on a motion to alter or amend under
an abuse of discretion standard. Id. After reviewing the record, we cannot say that the trial
court abused its discretion in declining to consider the newly submitted evidence. When
asked at the hearing why it did not have the proof at issue at the original hearing, counsel for
DHS responded: “To be honest, Your Honor, no one thought that Mr. Holt opining about
something that might happen, that hasn’t happened, would actually have any weight.” In
other words, as the trial court said, “Counsel’s choice....” No other argument was made, nor
other proof presented on the issue of the newly submitted evidence. Accordingly, we do not
find that the trial court erred in refusing to consider the letter from Mr. Holt’s employer.
Therefore, we do not consider the letter on appeal. In light of this finding, the only proof
presented at trial was that Mr. Holt’s employer took a “dim view” of a wage assignment and
that a wage assignment may adversely affect his employment. Consequently, we find that
the evidence does not preponderate against the trial court’s finding that a wage assignment
poses a risk to father’s employment. Had counsel for DHS taken advantage of its opportunity
at trial to present proof to contradict Mr. Holt’s testimony, the outcome may have been
different. However, counsel chose not to do so, and this Court cannot review the trial court’s
findings based on evidence not introduced at trial and not properly in the record.

       Further, after reviewing the record, we find that the evidence does not preponderate
against the trial court’s finding that it is in the best interest of the children not to require a
wage assignment. The uncontradicted proof at trial showed that Mr. Holt had not been late
or missed any previously ordered child support payments. Also, the uncontradicted proof at

                                               -7-
trial showed that a wage assignment could adversely affect Mr. Holt’s employment. The trial
court recognized that it would be illegal for Mr. Holt’s employer to take disciplinary action
or to discharge him because of the wage assignment. However, the trial court noted that “no
risk was better than the risk of some adverse employment action and protracted litigation,”
which could possibly cause missed child support payments. The trial court further reasoned
that the best interest of the children were served by the regular payment of child support, the
“sizeable amount” of child support based on Mr. Holt’s current high salary, and the
possibility of an increase in child support with the opportunities for promotion that Mr. Holt
had with his employer. Based upon the fact that the appellate record is devoid of evidence
contradicting Mr. Holt’s assertion that a wage assignment could adversely affect his
employment, we cannot find that the trial court erred in finding that it was in the children’s
best interest not to require a wage assignment.

         We affirm the trial court’s finding of good cause to exempt Mr. Holt from the
statutory requirement of a wage assignment. Further, upon finding that the trial court did not
err in finding good cause to exempt Mr. Holt from the wage assignment requirement, we also
find that the trial court did not abuse its discretion in denying DHS’ motion to alter or amend.
Costs of this appeal are taxed to the Appellant, State of Tennessee, ex rel. Carla S. Holt
(Nelson) Rickard.
.


                                                    _________________________________

                                                    J. STEVEN STAFFORD, JUDGE




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