                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                            May 9, 2001 Session

            PATRICIA JANE SADLER v. LAWRENCE DAVID SADLER

                            Appeal from the Circuit Court for Knox County
                                    No. 60167   Bill Swann, Judge

                                              FILED JULY 11, 2001

                                       No. E2000-02110-COA-R3-CV


This is a post-divorce child support dispute with a series of hearings and orders stretching over a 29-
month period. Lawrence David Sadler (“Father”), the obligor parent, appeals the last order entered
below, in which the trial court found him in arrears and awarded Patricia Jane Sadler (“Mother”) her
attorney’s fees of $6,262.50. Because we find that the referee’s action, as approved by the trial court
in the subject order, retroactively modified Father’s child support obligation and erroneously found
Father to be in arrears in his child support obligation, we reverse.

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

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

David L. Valone, Knoxville, Tennessee, for the appellant, Lawrence David Sadler.

No appearance for the appellee, Patricia Jane Sadler.


                                                     OPINION

                                                          I.

        The parties were divorced in 1993.1 Three children were born to their union: Lindsay Ann
Sadler, Cassandra Lee Sadler, and Tracey Marie Sadler. Although the children’s dates of birth are
not reflected in the record, deposition testimony received at the last hearing below, October 6, 1999,
indicates that the children were then approximately 21, 18, and 15 years old, respectively.




       1
           The judgment of divorce and the parties’ marital dissolution agreement are not in the record.
        On August 7, 1997, a post-divorce, agreed order was entered below, finding that Father had
accumulated a child support arrearage of $14,000.2 The agreed order provides that effective August
1, 1997, Father would pay Mother 50% of his monthly benefits received from the Veterans
Administration and the Social Security Administration.3 This payment included the following: $650
was designated as general child support for the parties’ two remaining minor children; $150 was
designated as payment for the children’s health insurance; $125 was for payment of the children’s
automobile insurance; and the remainder was to be applied to Father’s arrearage.4 The agreed order
further provides that Father is to pay Mother $6,000 in attorney’s fees once the arrearage is paid in
full.

        In September and November, 1997, Father filed a motion asking the court to consider Social
Security payments received directly by the children as child support and thus applicable to his
arrearage. Father further sought credit for overpayments on his automobile insurance obligation,
which insurance, according to Father, actually cost less than the $125 he paid per month. Mother
did not file any pleadings in response to Father’s requests.

        On March 20, 1998, a hearing was held on Father’s pending motions. During the course of
argument, Father’s counsel at the time, Marty McDonald, advised the referee that the benefits Father
was receiving had increased since the entry of the agreed order. He argued that Father’s Social
Security income should be treated as gross income, that the VA income should be treated as net pay,
and that Father’s ongoing child support obligation should be set at $1,016 per month. Wife’s
counsel, on the other hand, argued that both the Social Security and VA payments should be treated
as net income, resulting in a child support obligation of $1,049 per month. The referee asked the
parties to consult with a certified public accountant on the taxability of Father’s Social Security
payments. The attorneys were directed by the referee to submit the accountant’s opinion to him in
writing .

       The referee’s findings and recommendations were filed on June 15, 1998, nunc pro tunc
March 20, 1998. The referee found that the Social Security payments received directly by the
children, as well as the overpayment on the automobile insurance, should be credited against Father’s
arrearage. The referee further found Father’s income to be $3,212 per month; however, no finding
was made as to Father’s ongoing child support obligation.


         2
           The agreed order indicates that the arrearage was originally $16,000, consisting of $14,000 in unpaid general
child support an d $2,00 0 in unpaid medical expenses of the children; however, on the day of the hearing, Father tendered
a check to M other in the am ount of $2 ,000. Thus, the balance of the arre arage carried forward as of August 7, 1997, was
$14,000.

         3
         It appears from later statements made by the parties’ counsel that at the time of the entry of the agreed order,
Father was receiving only VA benefits. He began receiving Social Security benefits in September, 1997.

         4
           The record indicates that the parties’ oldest child had reached the age of majority by 1997. However, it appears
from the statements of the parties’ counsel that the marital dissolution agreement required Father to pr ovide for the ir
oldest child’s health and automobile insurance as well as her medical an d educa tional expen ses past the age of majority.

                                                           -2-
         On June 26, 1998, the referee’s findings and recommendations were confirmed by the trial
court. Thereafter, on July 24, 1998, Mother filed a motion requesting the trial court “to clarify,
modify, and or replace” the referee’s findings and recommendations. Specifically, Mother alleged
that the referee had miscalculated Father’s income and that the findings and recommendations failed
to address several issues, including an award of attorney’s fees “as was before the Court,” the present
amount of child support to be paid, Father’s failure to pay outstanding medical bills, and the fact that
the parties’ second child had recently begun driving and was now covered by the automobile
insurance paid by Father. In this motion, Mother also sought an award of attorney’s fees incurred
in filing the motion.

        A hearing was held before the referee on March 24, 1999, on Mother’s motion. At this
hearing, Mother argued that the referee’s order should be modified to include a finding of the amount
of child support owed by Father based upon his increased income. Mother argued that the child
support obligation should be set at $1,049 per month. Father, on the other hand, argued that his
support obligation should be set at $927. After much discussion and calculations by the parties and
the referee, the referee announced that the obligation should be set at $1,000 effective April 1, 1999.
An order was entered on April 5, 1999, to that effect.

        On October 6, 1999, the referee heard argument from the parties regarding the current
balance of Father’s arrearage. In considering the issue of the arrearage, the parties focused upon the
amount of child support owed from the March 20, 1998, hearing until April 1, 1999, the latter date
being the effective date of the new child support obligation of $1,000. Mother contended that Father
owed $1,049 per month for this time period, and her arrearage figures were calculated upon Father
owing this amount for that period of time, despite an existing court order to the contrary. Father,
who was represented by new counsel, argued that the child support obligation did not change as of
the March 20, 1998, hearing, and that Father only owed $650 per month until April 1, 1999, when
the obligation was increased to $1,000 per month. The ongoing child support obligation was also
discussed, as the parties’ second child had reached the age of majority in August, 1999, leaving only
one minor child. The referee set Father’s ongoing child support obligation, effective October 1,
1999, at $685. As to the other issues before the court, the referee instructed the parties to submit
proposed findings and recommendations.

        On December 27, 1999, the referee adopted, in toto, Mother’s proposed findings and
recommendations. The findings are lengthy and somewhat convoluted. What is significant for the
purposes of our analysis, however, are paragraphs 5 and 11, which address Father’s child support
obligation from March 20, 1998, to April 1, 1999. These paragraphs provide as follows:

                It is found that the appropriate amount of child support for two
                children based upon the Child Support Guidelines and the income of
                $3,279.00 per month is $1,049.00 per month, nunc pro tunc March
                20, 1998.

                                        *       *         *


                                                    -3-
               It is found that child support due and owing by [Father] to [Mother]
               from March 20, 1998 to April 1, 1999 is $12,588.00, based upon a net
               income of $3,279.00 per month and appropriate child support thereto
               in the amount of $1,049.00 per month.

Inexplicably, and with no real support in the record, the referee’s decree of December 27, 1999, by
implication, retroactively modified the previous order of the court setting child support at $650 per
month effective August 1, 1997, at least as to the period from March 20, 1998, to April 1, 1999.

        After calculating what was owed by Father from March, 1998, to October, 1999, and what
was paid during that time, the findings conclude (1) that Father is entitled to a credit of $32.42 for
the payment of child support, automobile and health insurance premiums; (2) that Father owes an
arrearage of $3,217.93 for unpaid medical expenses, $3,626.56 for unpaid educational expenses, and
$6,262.50, for attorney’s fees incurred by Mother from March, 1998, to October, 1999.

       Father sought a rehearing with the trial court, which was denied. Thereafter, the trial court
confirmed the referee’s findings. It is from this order that Father appeals, raising four issues:

               1. Did the trial court err in increasing child support payments when
               there was no petition for increase of child support filed?

               2. Did the trial court err in holding that Father owed $13,074 in
               arrearage relative to child support, automobile insurance, medical
               expenses, educational expenses, and attorney’s fees?

               3. Did the trial court err in the award of attorney’s fees to Mother?

               4. Is Father entitled to an award of attorney’s fees?

                                                  II.

        Our review of this non-jury case is de novo; however, the record comes to us accompanied
by a presumption of correctness that we must honor unless the evidence preponderates against the
trial court’s findings. Tenn. R. App. P. 13(d); Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App.
1992). No presumption of correctness attaches to the lower court’s conclusions of law. Jahn v.
Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).

                                                  III.

       Father argues that the trial court erred in increasing his child support obligation to $1,049 per
month for the period of March 20, 1998, to April 1, 1999. First, he contends that such an increase
was in error because Mother had not filed a pleading seeking a modification of his obligation.



                                                  -4-
Second, he argues that the increase constitutes a retroactive modification of child support, in
violation of T.C.A. § 36-5-101(a)(5).5

         The record reflects that Mother never filed a petition affirmatively seeking to modify the
child support after the entry of the judgment of absolute divorce. However, it is clear that with
respect to the agreed order of August 7, 1997; the hearing of March 24, 1999 (which led to the order
of April 5, 1999); and the hearing of October 6, 1999 (the last hearing before the referee, at which
he set child support at $685 per month effective October 1, 1999), the parties either modified the
child support by an agreed order (e.g., the agreed order of August 7, 1997) or presented the issue of
prospective child support to the referee with the implied consent of both parties. “When issues not
raised by the pleadings are tried by express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings.” Tenn. R. Civ. P. 15.02. Accordingly, we
find no basis for disturbing the child support decrees up to and including the referee’s
pronouncement that child support would be $685 per month effective October 1, 1999. It follows
that child support, prior to the last order below, was set and to be calculated thusly:

          Date of           Entry of          Effective                Period                  Monthly
          Hearing            Order             Date                    Covered               Child Support

          7-16-97           8- 7-97            8-1-97             8-1-97 to 4-1-99              $ 650
          3-24-99           4- 5-99            4-1-99             4-1-99 to 10-1-99              1,080
         10- 6-99          12-27-99           10-1-99            10-1-99 forward                   685

        We agree with Father, however, that the referee’s December 27, 1999, findings constitute a
retroactive modification of child support. T.C.A. § 36-5-101(a)(5) prohibits the modification of a
child support order “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.” (Emphasis added). As we have recently stated:

                  This statutory provision is designed to prohibit the retroactive
                  modification of child support. In other words, a court has no power
                  to alter a child support award as to any period of time occurring prior
                  to the date on which an obligee spouse files his or her petition.

Alexander v. Alexander, 34 S.W.3d 456, 460 (Tenn. Ct. App. 2000), perm. app. denied December
18, 2000 (citation omitted). In the instant case, an order was entered on August 7, 1997, which
clearly addresses and sets forth Father’s child support obligation. At no time did Mother file a
petition seeking to modify that order. Nevertheless, the referee substantially modified the child
support due under his prior order of August 7, 1997, going all the way back to March 20, 1998, and


         5
           T.C.A. § 36-5-101(a)(5) (Supp. 2000) provides, in pertinent part, that an “order for child support...shall not
be subject to modification as to any time period or any amounts due prior to the date that an action for m odification is
filed and no tice of the action has been m ailed to the last kn own add ress of the op posing pa rties.”

                                                          -5-
continuing up to April 1, 1999. Thus, the most recent order reached back 21 months (to August 7,
1997) and retroactively modified 12 months plus of child support. Such retroactive modification of
court-ordered child support is precisely what is forbidden by T.C.A. § 36-5-101(a)(5). Accordingly,
we hold that the trial court erred in retroactively modifying Father’s child support obligation for the
period from March 20, 1998, to April 1, 1999.

                                                 IV.

        Our finding that Father’s child support obligation was retroactively modified in violation of
T.C.A. § 36-5-101(a)(5) leads us to conclude that the trial court also erred in determining that Father
was in arrears, since the arrearage calculated by the trial court was based upon its erroneous finding
that Father owed $1,049 per month from March 20, 1998, to April 1, 1999.

        According to the trial court’s decrees prior to the last order – which last order we have found
to be in error – Father was obligated to pay the following amounts of child support:

                       August, 1997 to March, 1999
                        (20 months x $650)                             $13,000
                       April, 1999 to September, 1999
                          (6 months x $1,000)                            6,000
                       October, 1999
                          (1 month x $685)                                 685
                       Total Child Support Obligation                  $19,685

In addition to child support, Father was obligated under the August 7, 1997, agreed order to pay
$20,000 in arrearage, consisting of $14,000 in unpaid child support and $6,000 in attorney’s fees.
The agreed order further requires Father to pay $125 per month in automobile insurance and $150
per month in health insurance. Father was also required under the marital dissolution agreement to
pay medical and educational expenses for the parties’ three children. Adding all of Father’s
obligations together, Father was required to pay a total of $53,954.49 from August 1, 1997, through
October, 1999, calculated as follows:

                       Child Support                               $19,685.00
                       Arrearage                                    20,000.00
                       Auto Insurance
                          (27 months x $125)                         3,375.00
                       Health Insurance
                          (27 months x $150)                         4,050.00
                       Medical Expenses                              3,217.93
                       Educational Expenses                          3,626.56
                       Total Obligations                           $53,954.49




                                                 -6-
According to the referee’s findings entered December 27, 1999, Father paid or received credits for
the following:

                       Child Support Paid
                          July, 1997 – September, 1999               $20,746
                       Lump Sum Payment
                          September, 1997                              12,000
                       Lump Sum Payment
                          Social Security                               9,730
                       Monthly Payments, Social Security
                          October, 1997 – October, 1999
                          (25 months x $518)                          12,950
                       Total Amount Paid                             $55,426

Upon reviewing the evidence, we conclude that Father was obligated to pay $53,954.49 and that he
actually paid a total of $55,426, resulting in an overpayment by Father of $1,471.51. The trial court
therefore erred in finding that Father was in arrears; Father, in fact, has overpaid his obligations.

        Father claims an additional credit of $1,220.68 for “overpayment” of the children’s
automobile insurance. It is not clear from the record if, and to what extent, he is entitled to such a
credit. In the order entered nunc pro tunc March 20, 1998, the referee found that the actual cost of
the automobile insurance – which at that time covered only the parties’ oldest daughter, Lindsay –
was $877.16 annually. The referee decreed that the difference between the actual cost of the
insurance and the amount paid by Father per year ($1,500) should be applied to Father’s child
support arrearage. However, the record reflects that at some point after March 20, 1998, the parties’
second child, Cassandra, began driving and thus required insurance coverage as well. The precise
cost of insuring both daughters is unclear from the record. Accordingly, upon remand, the court
below should have a hearing to determine whether and to what extent Father is entitled to a credit
for overpayment of his automobile insurance obligation. The court below then should credit the total
overpayment to which Father is entitled, including the $1,471.51 found above, against his current
support obligation.

                                                 V.

       Father argues that since he was not in arrears, the trial court erred in awarding Mother her
attorney’s fees of $6,262.50. We agree.

       T.C.A. § 36-5-103(c) (Supp. 2000) provides for the award of attorney’s fees in child support
cases. That statute provides as follows:

               The plaintiff spouse may recover from the defendant spouse, and the
               spouse or other person to whom the custody of the child, or children,
               is awarded may recover from the other spouse reasonable attorney


                                                 -7-
               fees incurred in enforcing any decree for alimony and/or child
               support, or in regard to any suit or action concerning the adjudication
               of the custody or the change of custody of any child, or children, of
               the parties, both upon the original divorce hearing and at any
               subsequent hearing, which fees may be fixed and allowed by the
               court, before whom such action or proceeding is pending, in the
               discretion of such court.

Upon reviewing the record in this case, we find that the trial court’s award of attorney’s fees was in
error. The evidence reflects that Father was not in arrears in his obligations and had in fact paid
more than he was required to pay under the orders of the court. Given these facts, we do not find
that it would be equitable for the award of attorney’s fees to Mother to stand.

        Father argues that he is entitled to his attorney’s fees as “the prevailing party.” We disagree.
Father cites no authority, and we are not aware of any, that stands for the proposition that a non-
custodial parent is entitled to recover his or her attorney’s fees under T.C.A. § 36-5-103(c) by virtue
of being “the prevailing party.” The purpose of an award of attorney’s fees in a support action is not
to benefit the parents but to benefit the children and to facilitate their access to the courts. Sherrod
v. Wix, 849 S.W.2d 780, 784 (Tenn. Ct. App. 1992). Neither the language of the statute nor the
purpose found in Sherrod authorizes an award of fees to a non-custodian such as the father in the
instant case. We therefore decline to make such an award.

                                                  VI.

       The judgment of the trial court is reversed. This case is remanded for the entry of an
appropriate order, consistent with this opinion, and for collection of costs assessed below, all
pursuant to applicable law. Costs on appeal are taxed to the appellee, Patricia Jane Sadler.



                                                        ___________________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




                                                  -8-
