                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                           April 1, 2003 Session

                            IN RE:     CRYSTAL MICHELLE MOATS

                          Appeal from the Juvenile Court for Blount County
                           No. 11335-37 William T. Denton, Jr., Judge

                                           FILED APRIL 29, 2003

                                       No. E2002-01635-COA-R3-JV


This is a paternity case. Following DNA testing, the parties agreed that Randy L. Garner (“Father”)
is the biological father of Crystal Michelle Moats (DOB: August 13, 1985) (“the child”). The issues
remaining before the trial court were “current support, past due support, and medical payments.”
Following a bench trial, the court addressed these issues. As pertinent to this appeal, the trial court
awarded Mother $1,000 as support for the child from her date of birth to the date of filing of the
paternity petition, i.e., September 18, 2000. Mother appeals, contending that the trial court erred in
setting the amount of retroactive support for the period prior to the filing of the petition. We vacate
the trial court’s award of $1,000 and remand for further proceedings.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.

R. D. Hash, Maryville, Tennessee, for the appellant, Teresa E. Headrick.

H. Allen Bray, Maryville, Tennessee, for the appellee, Randy L. Garner.

                                                    OPINION

                                                          I.

       The parties were never married to each other. Father testified that he was not aware of the
child until she was ten years old.1 He did not say how he first learned that she was allegedly his
daughter.


         1
           See State ex rel. Clark v. Wilson, C/A No. M 2001-01 626-CO A-R3-CV , 2002 W L 3186 3296, at *2 (Tenn.
Ct. App . M.S., filed December 23, 2002) (holding that a father’s lack of knowledge of the existence of a child “cannot
act to automatically deprive a child of support”).
         In 1994, Mother, through the Tennessee Department of Human Services,2 filed a petition
against Father to establish paternity of the child. That petition was subsequently nonsuited. Mother
testified that she terminated that proceeding because of threats from Father’s family.

       The current petition was filed on September 18, 2000. Father’s federal income tax returns
for 1995, 1996, 1997, and 1998 were filed as exhibits at the hearing below. Husband testified that
he had submitted a request with the IRS for copies of his tax returns for the pertinent years prior to
1995, but had been unable to obtain them.

        Father attempted to show that the child had been in the custody of Mother’s grandmother for
a period of time prior to 1996. There is no evidence in the record that custody of the child was ever
granted to the grandmother. The record reflects that Oleana Teffeteller was designated as the child’s
guardian in an order entered in the trial court on May 20, 1987. That guardianship was terminated
by an order entered October 31, 1995. Mother testified, without contradiction, that the guardianship
was established solely for the purpose of giving her grandmother authority to obtain medical
treatment for the child while Mother was working two jobs. Mother stated that the guardian did not
receive any support for the child from any source, other than from Mother, and that she and the child
lived with the guardian, first in the guardian’s home and later in Mother’s residence.

                                                           II.

        In awarding Mother $1,000 in support for the period from the date of the child’s birth to the
date of filing of the petition, the trial court stated the following:

                  Even if we go back and use imputed income, the Court still is within
                  the Court’s discretion on an award of arrearages. The testimony was
                  [that it was] ten years before he knew he had a daughter, it was fifteen
                  years before this lady filed and brought this action today. A previous
                  action had been brought, but dismissed. The arrearages, as far as the
                  Court will award, from the date of birth until the filing of this action
                  will be a total sum of $1,000.00.

The court did not indicate (1) how it arrived at the $1,000 figure; (2) whether that award was
computed pursuant to the Child Support Guidelines (“the Guidelines”); (3) if not, how much was
due under the Guidelines; and (4) why the court was deviating from the Guidelines-mandated
amount. We do not believe the trial court followed the proper steps in determining the appropriate
amount of retroactive support in this case.




         2
         The petition is an exhibit in the record. It reflects that Mother “ha[d] been a recipient of an Aid for Families
with Dependent Child ren G rant from the State of T ennessee [for the child ] since O ctober, 19 93.”

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                                                    III.

        In Berryhill v. Rhodes, 21 S.W.3d 188 (Tenn. 2000), the Supreme Court was faced with a
petition for paternity filed after the subject child had attained the age of 18. Id. at 189. In that case,
shortly after the child’s birth, the putative father and the child’s mother reached a private agreement
for the support of the child. Id. The father made support payments during the entire period of the
child’s minority. Id. In her petition, the mother “requested child support from the date of the child’s
birth through the period of her minority.” Id. She took the position that the private agreement
between the parties was void as against public policy. The Supreme Court held, in a 3-2 decision,
that private agreements to pay child support “used to circumvent the obligations set forth in the
statutes and guidelines contravene [public] policy.” Id. at 192.

       As pertinent to the issue before us, the Supreme Court in Berryhill opined as to how a court
should go about resolving the issue of retroactive child support. We quote extensively from that case
because we believe it sets forth the applicable principles and a “roadmap” for courts to follow when
presented with this particular issue:

                Our paternity and child support statutes and the Child Support
                Guidelines evince a policy that children should be supported by their
                fathers. The paternity statutes provide a process by which the
                putative father can be identified. Once identified, the father is
                required to furnish support and education for the child. The paternity
                statutes incorporate both the child support provisions pertaining to
                divorce decrees as well as the Child Support Guidelines. The legal
                duty of support exists in all cases.

                                                *    *     *

                The legislature has provided for retroactive awards by statute and by
                the incorporation of the Child Support Guidelines promulgated by the
                Tennessee Department of Human Services, Child Support Services
                Division. Retroactive child support is available whether the child is
                a minor or whether the child has reached the age of majority and
                brings the claim within time permitted by the statute. Furthermore,
                courts are required to apply the Child Support Guidelines as a
                rebuttable presumption in determining support, and the 1994
                guidelines explicitly provide “that the rebuttable presumption must
                be applied to all child support awards even if the order is being
                sought for a retroactive period before October 13, 1989.” This Court
                has held that the guidelines “carry what amounts to a legislative
                mandate.” Accordingly, the mere action of seeking an award of
                retroactive child support within the time frame permitted by statute



                                                    -3-
cannot render a request for child support either “unjust” or
“inappropriate.”

                               *   *     *

The Child Support Guidelines, however, were silent as to retroactive
awards when this Court decided Coleman [v. Clay, 805 S.W.2d 752
(Tenn. 1991)]. Subsequent to the decision in Coleman, retroactivity
provisions were added to the Child Support Guidelines. The specific
inclusion of these provisions in 1994 limited the courts’ discretion in
setting amounts of child support. While the juvenile court continues
to have discretion in making awards of child support, that discretion
must be exercised within the strictures of the Child Support
Guidelines.

                               *   *     *

The guidelines provide a general formula for calculating the
appropriate amount of child support based on an obligor’s income
and include a procedure which permits limited deviation downward
from the general formula. The guidelines also mandate a deviation
upward under certain circumstances. The guidelines “are a minimum
base for determining child support obligations.”

“[T]he guidelines expressly provide for downward deviation where
the obligee has utterly ceased to care for the child(ren); where the
obligee clearly has a lower level of child care expense than that
assumed in the guidelines; and where the obligor is saddled with
‘extreme economic hardship.’” “Although the rule does not purport
to set forth an exhaustive list of instances in which downward
deviation is allowed, these specific instances nevertheless are a
powerful indication as to the types of situations in which it is
contemplated under the guidelines.” The guidelines indicate that the
court “shall” increase the award if the obligor is not providing health
insurance, if the obligor is exercising less than average visitation, if
extraordinary medical and educational expenses exist, or if the court
finds that equity requires it.

After determining the amount of child support under the guidelines,
the trial court may then consider whether the evidence is sufficient to
rebut the presumption. To deviate from the presumptive amount, a
court must enter:



                                   -4-
                            a written or specific finding on the record that the
                            application of the guidelines would be unjust or
                            inappropriate in a particular case . . . in order to
                            provide for the best interest of the child or the equity
                            between the parties and the court must show what the
                            child support award would have been without the
                            deviation.

Id. at 190-91, 192, 193 (footnote and citations omitted) (emphasis in original). For further guidance
on the issue of a downward deviation, see Jones v. Jones, 930 S.W.2d 541 (Tenn. 1996).

         As noted by the Supreme Court, “retroactivity provisions were added to the Child Support
Guidelines” in 1994 and these provisions now “limit[] the courts’ discretion in setting amounts of
child support.” Berryhill, 21 S.W.3d at 193. The discretion that remains “must be exercised within
the strictures of the Child Support Guidelines.”3 Id. It is also clear under Berryhill that “the mere
action of seeking an award of retroactive child support within the time frame permitted by statute
cannot render a request for child support either ‘unjust’ or ‘inappropriate.’” Id. at 192 (emphasis
added). See Tenn. Comp. R. & Regs. ch. 1240-2-4-.01(2)(3), ch. 1240-2-4-.02(7) (1994). Since the
petition in the instant case was timely filed, its filing, some 15 years after the birth of the child,
cannot be a basis for finding that an award of support under the Guidelines would be unjust or
inappropriate.

      The retroactivity provisions alluded to in Berryhill are found at Tenn. Comp. R. & Regs. ch.
1240-2-4-.04(1)(e) (1994):

                   In cases where initial support is being set, a judgment must be entered
                   to include an amount due for monthly support from the date of the
                   child’s birth or date of separation or date of abandonment whichever
                   is appropriate, until the current support order is entered. This amount
                   must be calculated based upon the guidelines using the average
                   income of the obligor over the past two years and is presumed to be
                   correct unless rebutted by either party. An amount should be
                   included in the order to reduce the arrears judgment on a monthly
                   basis within a reasonable time.

                                                           IV.

         In the instant case, the trial court failed to make the findings required by the Guidelines. In
the trial court’s defense, it should be noted that there was a paucity of evidence regarding Father’s
pre-1995 income; however, the Guidelines clearly set forth the approach a trial court should take


         3
          In State ex rel. Cla rk, 2002 W L 3186 3296, at *7, we noted that the “broad discretion” to determine retroactive
awards alluded to in Coleman “has been narrowed” by the holding in Berryhill.

                                                           -5-
when addressing retroactive child support. Such support “must be calculated based upon the
guidelines using the average income of the obligor over the past two years and is presumed to be
correct unless rebutted by either party.” Id. (emphasis added). It is not clear whether the trial court
found that this presumption had been rebutted. If it reached such a conclusion, it failed to state its
rationale for that determination.

        We have determined that this matter should be remanded to the trial court for a further
hearing. The court should receive such additional relevant evidence as the parties may wish to
present on the issue of retroactive child support for the period from the child’s birth to the filing of
the current petition. In resolving this issue, the trial court should follow the step-by-step procedure
set forth in the Guidelines as explained in Berryhill. Written findings on the various sub-issues to
be addressed on remand should accompany the trial court’s decision.

                                                  V.

        So much of the trial court’s judgment as awards Mother $1,000 for retroactive child support
is vacated. This case is remanded to the trial court for further proceedings, consistent with this
opinion. Costs on appeal are taxed to the appellee, Randy L. Garner.



                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




                                                  -6-
