                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      June 18, 2001 Session

       STATE OF TENNESSEE ex rel. JACQUELINE PATTERSON v.
                       RICHARD FRENCH

                    An Appeal from the Chancery Court for Gibson County
                          No. 9-1158 George R. Ellis, Chancellor



                    No. W2000-02668-COA-R3-CV - Filed February 5, 2002


This is an attempt to collect child support arrearages. In a 1993 order, the father was ordered to pay
current support as well as a lesser amount for an existing arrearage. The father failed to comply with
this order. In 1999, the child reached majority. The State filed an action on the mother’s behalf to
set arrearage payments and hold the father in contempt. The trial court set the arrearage payments
at an amount less than the total support the father had previously been ordered to pay. In addition,
the trial court refused to consider the contempt petition because the child had reached majority.
Finally, the court ordered the father to make payments through the clerk of the court rather than
through the State disbursement unit. The State appeals all three decisions. We reverse, finding that
the trial court was required to set the arrearage payments at the total amount of support previously
ordered, that the child reaching majority is not a basis for refusing to consider the contempt petition,
and that the father is required to make the payments through the State disbursement unit.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is

                                     Reversed and Remanded.

HOLLY K. LILLARD , J., delivered the opinion of the court, in which ALAN E. HIGHERS , J., and DAVID
R. FARMER , J., joined.

Paul G. Summers, Attorney General and Reporter, Kim Beals, Assistant Attorney General, and
Stuart F. Wilson-Patton, Senior Counsel for General Civil Division, for the appellant, State of
Tennessee.

Richard French, Pro se.
                                                       OPINION

       This is an attempt to collect child support arrearages. A court order dated August 10, 1993,
required the father, appellee Richard French (“Father”), to pay $105 per week for the support of his
daughter, Amanda, born on April 22, 1981. Of this total amount, $60 was for current support, $40
was for support arrearages that existed at that time, and $5 for applicable fees. Father did not
comply with the 1993 order. Amanda turned eighteen years old on April 22, 1999.

       On December 2, 1999, the petitioner State of Tennessee Department of Human Services
(“State”), on behalf of Amanda’s mother, Jacqueline Patterson (“Mother”), filed a Petition to
Terminate Current Child Support and Petition for Contempt. Attached to the Petition as Exhibit A
was documentation supporting the State’s contention that Father had not made his child support
payments as ordered and, therefore, owed arrearages of $14,078.59 as of the date of Amanda’s
emancipation.1

        On June 23, 2000, with both Mother and Father present, the trial court held a hearing on the
State’s petition.2 The trial court found that Father owed child support arrearages of $15,458.59 as
of the date of the hearing, and granted Mother a judgment in that amount. The trial court declined
to find Father in contempt for failing or refusing to pay child support as ordered because “the minor
child was emancipated.” The State sought to have the arrearage payment set at $105 per week, the
total amount of support Father had previously been required to pay. However, the trial court ordered
Father to “continue to pay $40.00 per week” until the judgment is paid in full. The State argued that
Father’s arrearage payments were required to be paid through the State disbursement unit established
under 42 U.S.C. § 654b and Tennessee Code Annotated § 36-5-116. The trial court declined, instead
ordering the payments to be made through the Clerk of the Court. On July 5, 2000, the court entered
an order in accordance with his June 23, 2000 decision.

       On July 20, 2000, the State filed a motion to alter or amend the judgment pursuant to Rule
59.04 of the Tennessee Rules of Civil Procedure. On August 11, 2000, the trial court held a hearing
on the motion, and it was denied on September 22, 2000. The State now appeals the orders entered
on July 5 and September 22, 2000.3

       On appeal, the State argues that, under Tennessee statutes, the trial court was required to set
Father’s arrearage payments at $105 per week, rather than the $40 per week ordered by the trial

         1
           For pur pos es of th is appeal, we will assume that Amanda’s date of emancipation was the day she turned
eighteen (18) years old, April 22, 1999.
         2
           The record reflects that the trial court initially entered an order dismissing the State’s petition based on lack
of service of process. Apparently, however, Fren ch w as eventually served with process, an d the court ultim ately
con sidered the State’s p etition. T his appeal does not in volv e any claim ed error regard ing th ose p rocedural issues.
         3
           Father did not file a brief in this appeal, nor did he show cause as to why he did not file such a brief. Father
also failed to appear for oral argument. Therefore, this matter has been decided on the record and on the State’s
arguments made in its brief and at the oral presentation.

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court. The State also argues that the trial court erred in declining to consider the contempt petition
against Father based on the fact that the child had reached majority. Finally, the State contends that,
under applicable federal and State statutes, the trial court was required to order that the arrearage
payments be made through the State disbursement unit, rather than through the clerk of the court.

        We review the Trial Court's findings of fact de novo upon the record of the proceedings
below, with a presumption of correctness “unless the preponderance of the evidence is otherwise.”
Tenn. R. App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 554 (Tenn. 1984). We review questions
of law de novo, with no presumption of correctness. Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct.
App. 1996).
      First, the State argues that the trial court erred by setting the arrearage payments at $40 per
week and by failing to consider the merits of the contempt petition. These issues are governed by
Tennessee Code Annotated § 36-5-101(k), which provides:

       Absent a court order to the contrary, if an arrearage for child support or fees due as
       court costs exist at the time an order for child support would otherwise terminate, the
       order of support or any then existing income withholding arrangement and all
       amounts ordered for payment of current support or arrears, including any arrears due
       for court costs, shall continue in effect in an amount equal to the then existing
       support order or income withholding arrangement until the arrearage and costs due
       are satisfied and the court may enforce all orders for such arrearages by contempt.

Tenn. Code Ann. § 36-5-101(k). Thus, under this statute, an existing court order awarding child
support survives the emancipation of the minor child “if an arrearage for child support . . . exist[s]
at the time” of the emancipation. Id. In this case, at the time the August 10, 1993 order would
otherwise terminate, i.e. when Amanda reached majority, an arrearage existed. Therefore, under the
statute, the 1993 order must continue in effect.

        The statute further provides that the existing order “shall continue in effect in an amount
equal to the then existing support order . . . until the arrearage and costs due are satisfied.” Id.
(emphasis added). The 1993 order in the instant case provides that Father was obligated to pay $105
per week: $60 for current support, $40 for arrearages, and $5 in fees. The trial court below ordered
Father to pay only $40 per week plus $2 in fees, apparently to enforce only the “arrearage”
component of the existing order. Such a reduction in the support obligation is directly at odds with
section 36-5-101(k), which requires the effect of the existing order to continue “in an amount equal
to the then existing support order.” Moreover, the statute specifies that it applies to “all amounts
ordered for payment of current support or arrears.” Id. (emphasis added). In light of this language,
we must reverse the trial court’s order limiting the continued payments to $40 per week and remand
for the implementation of an order in accordance with Tennessee Code Annotated § 36-5-101(k).

       The same statute is pertinent to the trial court’s conclusion that a finding of contempt was
inappropriate in this case based on the fact that “the minor child was emancipated.” Section 36-5-
101(k) states specifically that “the court may enforce all orders for such arrearages by contempt”


                                                 -3-
even after the support order would otherwise terminate, i.e. after the child is emancipated. Tenn.
Code Ann. § 36-5-101(k). The Tennessee Supreme Court recognized this provision in the statute
in Kuykendall v. Wheeler, 890 S.W.2d 785 (Tenn. 1994). In Kuykendall, the State filed a petition
on behalf of the mother to enforce a child support arrearage judgment against the father. In
addressing the effect of section 36-5-101(k), the Court noted that the statute was procedural in
nature, a fact which usually indicates that a statute should be applied retroactively. The Court found,
however, that because the statute “allows for enforcement by contempt,” it “has a decidedly penal
component” and, thus, should not be applied retroactively. Kuykendall, 890 S.W.2d at 787-88.

         In this case, the trial court below refrained from considering the merits of the State’s request
for a finding of contempt based only on the fact that “the minor child was emancipated.” Under the
statute, this is not an appropriate reason for refusing to consider the contempt petition. Therefore,
we remand the issue to the trial court to reconsider whether a finding of contempt would be
appropriate in this case.4

         Finally, the State argues that the trial court erred in ordering Father’s arrearage payments to
be made to the Clerk of the Court rather than to the State’s collection and disbursement unit. The
trial court initially ordered that the continuation of support payments be “made to the Clerk of the
Court.” Upon rehearing this issue, the court adhered to its original decision, stating specifically that
“it is in the best interest of the child that support payments be made to the Clerk of the Court.”

        Under applicable federal statutes, this case would be considered a “Title IV-D case,” referring
to cases brought pursuant to Title IV, chapter D of the Social Security Act, codified at 42 U.S.C. §
654. A Title IV-D case is essentially any cause of action in which the State is providing services on
behalf of a parent relating to paternity or child support establishment or enforcement, either by
request or pursuant to the custodial parent’s receipt of public assistance benefits under Title IV-A.
See 42 U.S.C. § 654(4); Tenn. Code Ann. § 71-3-124(c). Because the State brings this action on
behalf of Mother to enforce Father’s child support obligations, this is deemed to be a Title IV-D
case.

        Title 42 U.S.C. § 654b directs states to “establish and operate a unit [the ‘State disbursement
unit’] for the collection and disbursement of” payments made as ordered in such cases. Pursuant to
this mandate, Tennessee promulgated section 36-5-116, effective October 1, 1999, which provides:

                 [T]he department of human services shall become the central collection and
         disbursement unit for the state as required by 42 U.S.C. § 654b. All order[s] in Title
         IV-D support cases . . . shall be deemed to require that the support be sent to the
         central collection and disbursement unit, any order of the court notwithstanding.




         4
          The State concedes that th e reco rd below is not sufficiently developed for this Court to address the merits of
its contempt arg um ent.

                                                           -4-
Tenn. Code Ann. § 36-5-116(a)(1). The language of the statute is mandatory, directing that all
orders in Title IV-D cases “shall be deemed to require that the support be sent” to the State
disbursement unit.

         The directive that all payments made in Title IV-D cases be sent to the State disbursement
unit does not give the trial court the discretion to order otherwise. Therefore, we must reverse the
trial court’s order in this respect and direct that Father’s continued support payments be made to the
State disbursement unit established according to federal and state statute.

        In sum, we reverse the decision of the trial court and remand with instructions to set Father’s
child support arrearage payments in accordance with section 36-5-101(k) and to consider the merits
of the State’s petition for contempt. Furthermore, the trial court should direct that any arrearage
payments be sent to the State disbursement unit rather than to the Clerk of the Court.

       The decision of the trial court is reversed and remanded for further proceedings consistent
with this Opinion. Costs on appeal are assessed against Appellee, Richard French, for which
execution may issue if necessary.




                                                       ___________________________________
                                                       HOLLY K. LILLARD, JUDGE




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