                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     May 22, 2006 Session

                 TRACYE JENAE SIMPSON (BROGDEN), et al. v.
                        RALPH EDWARD SIMPSON

                     Appeal from the Circuit Court for Hamilton County
                        No. D-55387     W. Neil Thomas, III, Judge



                   No. E2005-01725-COA-R3-CV - FILED JUNE 26, 2006



This appeal involves child support arrearages incurred by Ralph Edward Simpson (“Father”) over
the course of many years. Following a trial, the Trial Court concluded that certain payments made
directly to the child were gratuitous and should not count as a credit against Father’s child support
obligation. The Trial Court also concluded that various payments made by Father to third parties
for expenses incurred on the child’s behalf and which were made as expressly directed by Tracye
Jenae Simpson (“Mother”) also should not count as credits against Father’s child support obligation.
We affirm the Trial Court’s conclusion with respect to the money sent directly to the child.
However, we conclude that the Trial Court erred in its conclusion that Father should not be given
a credit for payments made to third parties for expenses related to the child and which were made
by Father in accordance with the express directives of Mother. The judgment of the Trial Court is,
therefore, affirmed in part, reversed in part, and remanded for further proceedings consistent with
this Opinion.


               Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit
               Court Affirmed in Part and Reversed in Part; Case Remanded.


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which SHARON G. LEE , J., joined.
CHARLES D. SUSANO , JR., J., filed a separate opinion concurring in part and dissenting in part.


John P. Konvalinka, Jim K. Petty, and Jillyn M. Pullara, Chattanooga, Tennessee, for the Appellant
Ralph Edward Simpson.


Tracye Jenae Simpson (Brogden) and Sydney Jenae Simpson, pro se Appellees.
                                                    OPINION

                                                   Background

                This appeal involves, among other things, claims by Father that he was not given
proper credit against his child support obligation for certain payments he claims he made as
expressly directed by Mother. Following the parties’ divorce in October of 1985, Father’s original
child support obligation was set at $100 per week. In July of 1988, Father’s child support obligation
was reduced to $60 per week and Father was ordered to pay the child support directly into court. The
next document in the record was entered almost twelve years later on April 3, 2000, and is an
Amended and Restated Final Decree which established Father’s child support payment at “$1,665.00
per month, [payable] directly to the plaintiff without wage assignment until the minor child of the
parties attains age 18.” (emphasis added). Although the Amended and Restated Final Decree
purportedly was signed by Mother, approximately 3½ years after this document was entered by the
Trial Court, Mother filed a Motion to Set Aside that decree alleging that her signature was a forgery.
Mother also filed a petition for contempt claiming Father was behind in his child support payments.
In January of 2004, the Trial Court entered an agreed order which stated that the “parties have
announced that the amended and restated final decree filed with the clerk on April 3, 2000 should
be stricken and considered null and void ….” Thus, Father’s child support obligation of $60 per
week as established in July of 1988 once again became effective.1

                On January 16, 2004, Father made an Offer of Judgment in the amount of $60,000
pursuant to Tenn. R. Civ. P. 68. The Offer of Judgment apparently was rejected by Mother and the
trial took place on January 27, 2004, after which the Trial Court instructed the parties to respond to
a series of questions. One of the questions posed to the parties was whether the Trial Court could
give “credit for the payment by the Respondent of the child’s car insurance or for monies paid
directly to the child?” After the parties filed briefs providing their respective responses to the
various questions, the Trial Court answered the above question as follows:

                          Court’s ruling: According to the order entered July 18,
                  1988, payments should have been made directly to the Court. Unless
                  proof is brought forward, any payments made to the Plaintiff are
                  presumed to have been for child support. Payments made on behalf
                  of … [the child] are presumed to be gratuitous and not in payment of
                  child support.



         1
           W e are at a total loss as to why Father would allegedly forge M other’s signature to a document which
increased his annual child support obligation from $3,120 to $19,980, or roughly 640%. W e are at an even greater loss
at to why Mother would file a motion to set aside that order and effectively return Father’s annual child support
obligation to $3,120. But Mother did file such a motion and she obtained the exact relief she requested when seeking
to have the Amended and Restated Final Decree set aside. As such, the Trial Court used the lower amount of $60 per
week to calculate Father’s arrearages. The Trial Court’s reliance on the lower amount is not challenged on appeal, and
we will, therefore, presume that amount is correct.

                                                         -2-
               The Trial Court then entered its Final Judgment after calculating the total amount of
arrearages plus accrued interest. According to the Trial Court, from July of 1988 through May of
20022, Father was in arrears a total of $8,350. However, the interest owed by Father through
February of 2005 was $43,040.76, thereby resulting in a total judgment of $51,390.76. The
accumulated interest was so high because Father had not sent any child support payments directly
to the court and he was unable to prove with documentary evidence that he had made any child
support payments to Mother from July of 1988 until August of 1997, at which time Father paid $650
directly to Mother. The Trial Court refused to allow Father to testify about child support payments
he claimed to have made for which he could not back up that claim with documentary evidence such
as a cancelled check or the like. In any event, it was not until after the parties’ child became
emancipated that Father paid Mother $33,800 toward arrearages, and Father was given credit for this
amount when his arrearages were calculated. Following entry of the judgment, Mother filed a
motion requesting that she be awarded attorney fees. The Trial Court granted the motion and
awarded Mother $1,500 in attorney fees.

                 Father appeals raising several issues. Father claims the Trial Court erred in not giving
him a credit against his child support obligation for payments he made on the child’s behalf directly
to the child or to third parties for tuition, car payments, and car insurance, all of which Father claims
he made as expressly directed by Mother. Father also claims the Trial Court erred in refusing to
allow Father to testify about payments he made before 1995 for which he was unable to locate
cancelled checks or other documentary proof of payment. Finally, Father claims the Trial Court
erred when it awarded Mother $1,500 in attorney fees. Although Mother has requested this Court
to affirm the decision of the Trial Court, no brief was filed on Mother’s behalf.

                                                  Discussion

                The factual findings of the Trial Court are accorded a presumption of correctness, and
we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

                We have not been provided with a transcript from the trial on January 27, 2004.
However, we have been provided with a Tenn. R. App. P. 24(c) Statement of the Evidence
specifically approved by the Trial Court. Excluding the introductory paragraph, the Statement of the
Evidence provides, in its entirety, as follows:

                        On January 27, 2004 a hearing was held before the Honorable
                 Neil Thomas, III upon the Petition to Show Cause on Contempt filed


        2
          The child was eighteen years old when she graduated from high school in May of 2002. Thus, Father’s child
support obligation ceased at that time, although he obviously still was responsible for any arrearages.

                                                       -3-
by the Petitioners/Appellees. Those testifying were Tracye Jenae
Simpson, Sydney Jenae Simpson and Ralph Edward Simpson.
Tracye Jenae Simpson stated that Ralph Edward Simpson was
delinquent in the payment of his child support obligations in excess
of $101,000.00 (claimed interest included) because he did not pay, in
accordance with the order of the Court, the amounts through the court
clerk.

        Ralph Edward Simpson testified that he was in
communications with his daughter Sydney Jenae Simpson and the
Petitioner, Tracye Jenae Simpson on a regular basis and made
arrangements with them for the payment of support to be agreed upon
from time to time. Mr. Simpson conceded that he could not make the
payments in accordance with the order of the Court but stated that he
made payments for support and other necessary expenses at the
direction of the Petitioner, Tracy (sic) Jenae Simpson, in excess of
those required by the Court order. He further stated that he was
unable to obtain and/or locate copies of his checks prior to October
of 1995, but that he had made such substantial payments as agreed
and at the direction of the Petitioner, Tracye Jenae Simpson both
before that date and subsequent to October of 1995 in excess of the
amounts that were due pursuant to the Court order. The checks which
Mr. Simpson had been able to locate representing the payments he
made that he was able to locate were attached as exhibits at trial, a
copy of which are attached hereto.

         Subsequent to the January 27, 2004 hearing, the parties
executed a stipulation of questions that needed to be addressed by the
Court by brief which were filed on or about March 26, 2004 with the
Clerk of the Court. On or about September 23, 2004 the Court
entered a Memorandum Opinion answering the questions propounded
by stipulation stating that any payments made on behalf of Sydney
Jenae Simpson were presumed to be “gratuitous and not a payment
of child support”. Subsequently, an Order was entered by the Court
allowing credit for those checks/payments that were made directly to
Petitioner Tracye Jenae Simpson only and not for any
checks/payments made directly to the daughter or on her behalf for
tuition, car payments/insurance and/or other expenses incurred on her
behalf that the Petitioner, Tracye Jenae Simpson would have
otherwise been required to pay, all of which are reflected in the




                                 -4-
                  attached collective exhibit which total $9,392.703 for which Ralph
                  Edward Simpson received no credit.

                          As required by Rule 24(c) of the Tennessee Rules of
                  Appellate Procedure, the Respondent/Appellant hereby submits and
                  provides notice that the issue before the Court on appeal is whether
                  Ralph Edward Simpson should have received credit for these
                  documented payments that were made and/or should have been
                  allowed to testify with regard to any payments made prior to October,
                  1995 since he had no record of such payments available to him at the
                  time of trial.

              In addressing the merits of Father’s issues, we need to keep in mind the importance
of the Statement of the Evidence. In relevant part, Tenn. R. App. P. 24 (c) and (f) provide as
follows:

                           (c) Statement of the Evidence When No Report, Recital, or
                  Transcript Is Available. – If no stenographic report, substantially
                  verbatim recital or transcript of the evidence or proceedings is
                  available, the appellant shall prepare a statement of the evidence or
                  proceedings from the best available means, including the appellant's
                  recollection. The statement should convey a fair, accurate and
                  complete account of what transpired with respect to those issues that
                  are the bases of appeal. The statement, certified by the appellant or
                  the appellant's counsel as an accurate account of the proceedings,
                  shall be filed with the clerk of the trial court within 90 days after
                  filing the notice of appeal. Upon filing the statement, the appellant
                  shall simultaneously serve notice of the filing on the appellee,
                  accompanied by a short and plain declaration of the issues the
                  appellant intends to present on appeal. Proof of service shall be filed
                  with the clerk of the trial court with the filing of the statement. If the
                  appellee has objections to the statement as filed, the appellee shall file
                  objections thereto with the clerk of the trial court within fifteen days
                  after service of the declaration and notice of the filing of the
                  statement. Any differences regarding the statement shall be settled as
                  set forth in subdivision (e) of this rule.

                                                       ****

                         (f) Approval of the Record by Trial Judge or Chancellor. –
                  The trial judge shall approve the transcript or statement of the


       3
           The correct amount reflected in the exhibit is actually $10,032.70.

                                                         -5-
               evidence and shall authenticate the exhibits as soon as practicable
               after the filing thereof or after the expiration of the 15-day period for
               objections by appellee, as the case may be, but in all events within 30
               days after the expiration of said period for filing objections.
               Otherwise the transcript or statement of the evidence and the exhibits
               shall be deemed to have been approved and shall be so considered by
               the appellate court ….

               Although the Statement of the Evidence is limited, it was approved by the Trial Court
and Mother never filed any objections claiming that it was inaccurate or incomplete, etc. Therefore,
for our purposes on appeal, the Statement of the Evidence conveys “a fair, accurate and complete
account of what transpired with respect to those issues that are the bases of appeal.” Tenn. R. App.
P. 24(c).

                As noted, the primary issues surround Father’s position that he was not given proper
credit for various payments he claimed he made as directed by Mother. These payments total
$10,032.70 and can be grouped into two categories, i.e., payments made directly to the child, and
payments made to third parties for tuition, car payments and automobile insurance.

               The first category involves five separate payments made directly to the child totaling
$2,740. The payments are comprised of $1,000 in October of 1995, $190 in October of 1998, $700
in October of 2000, $350 in June of 2001, and $500 in August of 2003. As noted by this Court in
Brownyard v. Brownyard, No. 02A01-9803-CH-00063, 1999 WL 418352 (Tenn. Ct. App. June 22,
1999), perm. app. denied Nov. 29, 1999, simply because a payment is made directly to the child does
not automatically mean that the payment does not count as child support. We stated:

                       Child support is usually paid to the clerk of the court or to the
               custodial parent. See Tenn. Code Ann. § 36-5-101(a)(4) (Supp.
               1998); State ex rel. Cope v. Cope, No. 03A01-9404-CV-00119, 1994
               WL 579976, at *2 (Tenn. App. Oct. 24, 1994) (Susano, J., dissenting
               opinion). Tennessee Code Annotated provides that “[t]he order or
               decree of the court may provide that the payments for the support of
               such child or children shall be paid either to the clerk of the court or
               directly to the spouse.” Tenn. Code Ann. § 36-5-101(a)(4) (Supp.
               1998). Tennessee courts allow a credit for payments made directly to
               a child “‘for the children's necessaries which are not being supplied
               by the custodial parent.’” State ex rel. Cope, 1994 WL 579976, at
               *2 ….

Brownyard, 1999 WL 418352, at *15.

             The Statement of the Evidence is altogether unclear regarding the intended use of the
money that was sent directly to the child. However, Father wrote on the “memo” portion of the


                                                 -6-
October 1995 check for $1,000 that the money was to go into the child’s savings account. On the
check for $350 dated June of 2001, Father made a notation that the check was compensation for
“casual labor.” The other three checks contain no notation regarding the intended purpose of the
money. Money paid to the child as compensation for “casual labor” can in no manner be considered
child support. Likewise, money given to the child to be placed into a savings account would
properly be considered as a gift to the child. Although three of the five checks made payable directly
to the child contain no notation regarding the reason the money was being sent to the child, the
Statement of the Evidence contains nothing to indicate to this Court that these three checks should
be treated any differently than the other two which clearly were not child support. Accordingly, we
affirm the judgment of the Trial Court insofar as it concluded that the five payments made directly
to the child totaling $2,740 were gratuitous or otherwise should not be considered as a credit against
Father’s child support obligation.

                Father’s next issue is his claim that he should be given credit for various payments
made directly to third parties. These payment total $7,292.70 and are comprised of $1,000 for
tuition, $1,633.60 in car payments, and $4,659.10 for automobile insurance.

                 We note that there is nothing in the record indicating that after the parties were
divorced that Mother ever filed a petition seeking to have the amount of child support increased.
Because the Amended and Restated Final Decree which increased Father’s child support obligation
was rendered null and void by the Trial Court at Mother’s request, at all relevant times Father’s child
support obligation remained at $60 per week. Whether that amount was appropriate or sufficient is
not at issue in this appeal.

                The Statement of the Evidence, as approved by the Trial Court, provides that Father
testified he was in communication with Mother “on a regular basis” and that Father made
“arrangements” with Mother “for the payment of support to be agreed upon from time to time.” The
Statement of the Evidence further provides that Father made these payments “at the direction of
[Mother].” We see no practical distinction between Father sending child support payments directly
to Mother, who in turn uses that money to pay the child’s car payment and/or car insurance, and the
situation here where Mother instead directs Father to make those payments for her, thereby
eliminating the middle step. These payments clearly would be child support if Mother directed
Father to pay the money directly into her checking account and he did so. We do not believe these
same payments lose their character as child support simply because Mother, instead of directing the
payments to go into her checking account, directed the payments to go to third parties in payment
of expenses incurred by Mother for the child. The question is not whether Father should be given
credit for these payments because they should be deemed for necessities under the law. Rather, the
key factual point is that Mother specifically directed Father to make these payments for her. It would
be inequitable for Mother to specifically direct Father to make these payments for her on the child’s
behalf, which Father did, and then for Mother to turn around and claim they were gifts. We arrive
at this conclusion keeping in mind that the Statement of the Evidence as approved by the Trial Court
contains no testimony or other proof whatsoever from Mother indicting that these payments were
not made at her specific direction or that they actually were intended by either party to be gratuitous.


                                                  -7-
There likewise is no proof in the record that Mother was doing anything less than directing Father
where to send the child support payments. The preponderance of the evidence weighs against the
Trial Court’s conclusion that the payments totaling $7,292.70 were intended as gratuitous payments.4

                The next issue is whether the Trial Court erred when it prevented Father from
testifying to child support payments that he claims to have made when he had no documentary
evidence supporting the amount of those payments. Based on the record before us, all we are able
to determine is that the Trial Court prevented Father from testifying to any child support payments
he allegedly made wherein he had no documentary evidence supporting said payments. Father made
no offer of proof once this testimony was excluded regarding the amount of these payments, to
whom they were made, etc.

            In the recent case of Thompson v. City of LaVergne, No. M2003-02924-COA-R3-CV,
2005 WL 3076887 (Tenn. Ct. App. Nov. 16, 2005), perm. app. denied April 24, 2006, we stated:

                           An erroneous exclusion of evidence requires reversal only if
                   the evidence would have affected the outcome of the trial had it been
                   admitted. Pankow v. Mitchell, 737 S.W.2d 293, 298 (Tenn. Ct. App.
                   1987). Reviewing courts cannot make this determination without
                   knowing what the excluded evidence would have been. Stacker v.
                   Louisville & N. R.R. Co., 106 Tenn. 450, 452, 61 S.W. 766 (1901);
                   Davis v. Hall, 920 S.W.2d 213, 218 (Tenn. Ct. App. 1995); State v.
                   Pendergrass, 795 S.W.2d 150, 156 (Tenn. Crim. App. 1989).
                   Accordingly, the party challenging the exclusion of evidence must
                   make an offer of proof to enable the reviewing court to determine
                   whether the trial court's exclusion of proffered evidence was
                   reversible error. Tenn. R. Evid. 103(a)(2); State v. Goad, 707 S.W.2d
                   846, 853 (Tenn. 1986); Harwell v. Walton, 820 S.W.2d 116, 118
                   (Tenn. Ct. App. 1991). Appellate courts will not consider issues
                   relating to the exclusion of evidence when this tender of proof has not
                   been made. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App.
                   2001); Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn. Ct.
                   App. 1997); Shepherd v. Perkins Builders, 968 S.W.2d 832, 833-34
                   (Tenn. Ct. App. 1997).




         4
            Father correctly notes that tuition can be deemed a necessary. See Peychek v. Rutherford, No. W 2003-01805-
COA-R3-CV, 2004 W L 1269313, at *4 (Tenn. Ct. App. June 8, 2004), no appl. perm. appeal filed (“The obligation to
provide necessaries requires the provision of appropriate food, shelter, tuition, medical care, legal services, and funeral
expenses as are needed.”). W e note that Father fails, however, to cite any authority to the effect that car payments and
car insurance can be considered a necessity. In light of our holding that Father is entitled to a credit for payments totaling
$7,292.70 because he was directed by Mother where to make those payments, we need not decide whether Father is
entitled to credit for the same payments because they were necessaries.

                                                             -8-
                       As stated, an offer of proof must contain the substance of the
               evidence and the specific evidentiary basis supporting the admission
               of the evidence. Tenn. R. Evid. 103(a)(2). These requirements may
               be satisfied by presenting the actual testimony, by stipulating to the
               content of the excluded evidence, or by presenting an oral or written
               summary of the excluded evidence. Neil P. Cohen, et al. Tennessee
               Law of Evidence § 103.4, at 20 (3d ed. 1995). Since we are unable to
               determine the substance of … [the excluded] testimony and whether
               that testimony would have affected the outcome of the trial, the
               failure of the defendant to make an offer of proof constitutes a waiver
               of the right to challenge the exclusion of this testimony. Hatton v.
               CSX Transportation, Inc., 2004 Tenn App LEXIS 412, Tenn. App.
               No. E2003-01831-COA-R3-CV, 2004 WL 1459391 (Tenn. Ct. App.
               June 29, 2004).

Thompson, 2005 WL 3076887, at *9. Since Father made no offer of proof concerning the excluded
evidence, we consider this issue waived.

                The final issues involve Father’s claim that the Trial Court erred in awarding Mother
$1,500 in attorney fees. Father’s argument on this issue is twofold. First, Father claims he would
not be in arrears if given a proper credit in the amount of $10,032.70. Because we conclude Father
was entitled to a credit of only $7,292.70, he still is in arrears. But even if we concluded that Father
was not in arrears for any principal payments, his argument overlooks the substantial interest that
accrued because the payments were not made timely.

                Father’s second argument is that the Trial Court erred in awarding any attorney fees
because he made an offer of judgment which was rejected by Mother and which ended up being
greater than the amount of the total judgment as awarded by the Trial Court. Father correctly notes
in general terms that when an offer of judgment is rejected and the final judgment is less than the
amount offered, this has the effect of shifting costs which accrued after the offer of judgment was
made. See Tenn. R. Civ. P. 68 (“If the judgment finally obtained by the offeree is not more favorable
than the offer, the offeree shall pay all costs accruing after the making of the offer.”). However,
Father cites no authority for the proposition that an offer of judgment affects an award of attorney
fees incurred both before and after the offer of judgment is made. Father also overlooks Albright
v. Mercer, 945 S.W.2d 749 (Tenn. Ct. App. 1996) wherein we stated:

                       Finally, Mercer argues that this court should consider the fact
               that Mercer made an offer of judgment for $750.00 early in the case
               and that Albright only recovered $500.00. It is the opinion of this
               court that evidence of the offer of judgment is not admissible as
               evidence of the reasonableness of attorney's fees. Mercer made the
               offer of judgment pursuant to Rule 68 of the Tennessee Rules of Civil
               Procedure. This rule provides: “An offer not accepted shall be


                                                  -9-
               deemed withdrawn and evidence thereof is not admissible except in
               a proceeding to determine costs.” Tenn. R. Civ. P. 68 (West 1996).
               The term “costs” as used in this rule does not include attorney's fees.
               Person v. Fletcher, 582 S.W.2d 765, 766-67 (Tenn. App. 1979).
               Thus, evidence of the offer of judgment is inadmissible.

Albright, 945 S.W.2d at 751.

              We reject both of Father’s arguments challenging the Trial Court’s award of attorney
fees. Accordingly, the Trial Court’s award of $1,500 in attorney fees to Mother is affirmed.

                In summary, we affirm the Trial Court insofar as it held that Father’s payments
totaling $2,740.00 which were made directly to the parties’ child are not to be considered as credits
against Father’s child support obligation. We also affirm the Trial Court’s award to Mother of
attorney fees in the amount of $1,500. We reverse the Trial Court’s conclusion that $7,292.70 in
payments made by Father for expenses incurred by Mother and related to the child and which were
made at the express direction of Mother are not to be considered as credits against Father’s child
support obligation. This case is remanded to the Trial Court for the sole purpose of recalculating
Father’s arrearages, including interest, after crediting Father with the $7,292.70.

                                             Conclusion

                The judgment of the Trial Court is affirmed in part and reversed in part, and this cause
is remanded to the Trial Court for further proceedings consistent with this Opinion and for collection
of the costs below. Costs on appeal are assessed one-half to the Appellant Ralph Edward Simpson,
and his surety, and one-half to the Appellee Tracye Jenae Simpson (Brogden).




                                                        ___________________________________
                                                        D. MICHAEL SWINEY, JUDGE




                                                 -10-
