                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    April 22, 2004 Session

                              IN THE MATTER OF: T.S.R.

                  Direct Appeal from the Juvenile Court for Shelby County
                          No. G4085    Kenneth A. Turner, Judge



                     No. W2003-01321-COA-R3-JV - Filed June 17, 2004


The juvenile court entered an order declaring Appellant the father of T.S.R. and ordered child
support. Appellant failed to pay child support and incurred an arrearage of $27,051.68. Appellant
petitioned the court for Rule 60.02 relief from the final order and requested a blood paternity test.
The DNA test indicated that Appellant was not the father. The trial court relieved Appellant of his
ongoing child support but required him to pay the child support arrearage. For the following reasons,
we affirm.


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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Lynda F. Teems, Memphis, Tennessee, for the appellant, Marcus W. Reed.

Paul G. Summers, Attorney General and Reporter and Warren A. Jasper, Assistant Attorney General,
for the State of Tennessee, Department of Human Services as Assignee of Laterica R. McKinney.

                                            OPINION

        T.S.R. was born on September 22, 1992 to Laterica R. McKinney (McKinney).
McKinney filed a petition to establish paternity against Marcus W. Reed (Reed) in Madison
County. On October 22, 1993, the Madison County Juvenile Court entered an order declaring
Reed the father of T.S.R. The order stated that Reed had been served and established Reed’s
monthly child support obligation at $364.92 beginning November 1, 1993. It appears from the
record that Reed paid his child support obligation for eleven of the first fourteen months but
made no payments thereafter. The case was transferred to Shelby County pursuant to the
Uniform Reciprocal Enforcement of Support Act, the child support was set at $396.91 and the
arrears in the amount of $2,178.71 were to be repaid at a rate of $52.50 per month. On October
24, 1995, the first income assignment order was entered, using the child support amount of
$364.26 per month. Upon a filed petition for contempt against Reed, the juvenile court entered
an order, in February of 1997, finding Reed in contempt for failure to pay child support. In
March of 1997, another income assignment order was entered for $396.91 with an additional
arrears payment of $42.00. In October of 1999, a third income assignment order was entered for
$364.26 per month along with a monthly $55.74 arrears payment. On October 11, 2002, the
juvenile court entered an order/notice to withhold income for child support showing a child
support obligation of $567.01, and of that amount, $189.00 represented Reed’s monthly
arrearage.

         Pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, Reed filed a petition
for relief from a final judgment, alleging that he was not the father of T.S.R and requesting a
paternity blood test. After a hearing on the petition, the court ordered DNA tests. The results
indicated that Reed was not the father. The juvenile court granted Reed prospective relief from
the child support obligation but ordered him to pay the child support arrearage in the amount of
$27,051.68. Reed timely filed his notice of appeal.

                                         Issues Presented

       Reed raises the following issue, as we restate it, for review by this Court:

              Whether the trial court erred in refusing to discharge Reed of the child
       support arrearage.

       Appellees raise the following additional issue, as we restate it, for our review:

              Whether the trial court erred in discharging Reed of his ongoing child
       support obligation.

                                       Standard of Review

        We review the trial court’s disposition of Reed’s petition for relief, pursuant to Rule
60.02, in accordance with the following standard:

       A petition for relief under Rule 60.02 addresses itself to the sound discretion of
       the trial court. Rogers v. Estate of Russell, 50 S.W.3d 441, 445 (Tenn. Ct. App.
       2001). Accordingly, we review such decisions under an abuse of discretion
       standard. Id. We have addressed this standard of review thusly:

               Discretionary decisions must take applicable law into account and
               must be consistent with the facts before the court. See Ballad v.
               Herzke, 924 S.W.2d 652, 661 (Tenn. 1996) (holding that the trial
               court must give due consideration to the applicable law and facts).


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               Thus, the appellate courts will set aside a trial court’s discretionary
               decision only when the decision is based on a misapplication of the
               controlling legal principles or on a clearly erroneous assessment of
               the evidence.

State ex rel. Phillips v. Phillips, E2001-02081-COA-R3-CV, 2002 WL 31662544, at *2 (Tenn.
Ct. App. Nov. 26, 2002)(no perm. app. filed)(quoting Overstreet v. Shoney’s, Inc., 4 S.W.3d 694,
709 (Tenn. Ct. App. 1999)).

                                    Child Support Arrearage

        Reed argues that the trial court erred in refusing to find the order, declaring him to be the
father and setting the child support obligation, null and void once the DNA results indicated that
he was not the father. In seeking relief from the lower court for prospective and retroactive relief
of the child support obligation, Reed relied upon Tennessee Rule of Civil Procedure 60.02 which
provides in pertinent part:

               On motion and upon such terms as are just, the court may relieve a party or
       the party’s legal representative from a final judgment, order or proceeding for the
       following reasons: . . . (3) the judgment is void; (4) the judgment has been satisfied,
       released or discharged, or a prior judgment upon which it is based has been reversed
       or otherwise vacated, or it is no longer equitable that a judgment should have
       prospective application . . . .

Tenn. R. Civ. P. 60.02. In his brief, Reed states that he could not find any reported cases in
Tennessee declaring child support orders null and void based upon a disestablishment of
paternity. Rather, Reed relies upon cases from other jurisdictions to support his argument.
However, this Court recently addressed this issue in State ex rel. Phillips v. Phillips, E2001-
02081-COA-R3-CV, 2002 WL 31662544, at *1-3 (Tenn. Ct. App. Nov. 26, 2002)(no perm. app.
filed). In Phillips, the Father, like Reed, made the following argument:

       Father asserted that it would be inequitable to require him to pay the arrearage for
       Jack Daniel because a paternity test had revealed that he was not [Jack Daniel’s]
       biological father. Father asked for prospective relief from paying any future child
       support for [Jack Daniel] and retrospective relief from the accumulated arrearage
       with respect to [Jack Daniel]. . . . Father relied upon Tenn. R. Civ. P. 60.02. He
       made specific allegations that seem to bring into play Rule 60.02(3) & (4) . . . .

Phillips, 2002 WL 31662544, at *1. In response to Father’s argument, this Court stated:

       Father contends that since he has shown that he is not the natural father of Jack
       Daniel, he is entitled to have his outstanding child support arrearage forgiven insofar



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        as it relates to Jack Daniel’s support. Unfortunately for Father, there is a statute that
        clearly precludes the relief he seeks:

                Any order for child support shall be a judgment entitled to be
                enforced as any other judgment of a court of this state and shall be
                entitled to full faith and credit in this state and in any other state.
                Such judgment shall not be subject to modification as to any time
                period or any amounts due prior to the date that an action for
                modification is filed . . . .

        Tenn. Code Ann. § 36-5-101(a)(5) (Supp. 2002). The trial court did grant Father
        some relief. It decreed that he would not be responsible for Jack Daniel’s future
        support. However, the above-quoted statutory language explicitly precludes the
        retrospective modification of the child support arrearage. The statute provides no
        exception for a case such as the one now before us on this appeal. The Supreme
        Court stated in Rutledge v. Barrett, 802 S.W.2d 604, 606-07 (Tenn. 1991):

                [The former] § 36-5-101 permitted reduction of arrearages when the
                obligor was “unable to pay through no fault of his own” and when
                retroactive modification was necessary “to meet the ends of justice.”

                Those provisions are conspicuously absent from the provision in §
                36-5-101(a)(5), which now controls this case. The 1987 amendment
                specifically bars retroactive modification and puts the burden on the
                obligor to come into court and seek any current or prospective relief
                to which he may be entitled, by means of a formal court order. To
                permit the interposition of traditional equitable defenses to the
                enforcement of child support orders would obviously defeat the very
                purpose of the amendment, by creating a situation where exceptions
                could easily swallow up the rule.

        The 1987 revision to the statute bars courts from using equity to retrospectively
        modify child support awards. We are without authority to relieve Father of his child
        support arrearage with respect to Jack Daniel.

Id. at *2-3.

        Having determined that Tenn. Code Ann. § 36-5-101 (Supp. 2002) and the Tennessee
Supreme Court’s interpretation of it precludes Reed’s argument that the order should be declared
null and void, this Court will now address Reed’s estoppel argument. Reed argues that even if
this Court is to hold that the order is still valid, principles of estoppel preclude Appellees from
collecting the child support arrearage. Reed argues that after the February 1997 petition for
contempt of court appearance, McKinney told Reed that he was not T.S.R.’s father and she


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would notify the lower court. Reed further argues that it was not until he received the October
11, 2002, order/notice to withhold income for child support did he learn that McKinney had not
corrected the child support proceedings. Reed seeks relief from the child support arrearage that
accrued from the date of the alleged misrepresentation, February of 1997. However, the record
reveals that there were two other income assignment orders entered, one in March of 1997 and
one in October of 1999, between the 1997 contempt proceeding and the 2002 order. If
McKinney told Reed that she would correct the child support information,1 Reed was notified
only one month after the alleged misrepresentation and could have sought relief at that time.
This delay precludes Reed’s estoppel argument. Accordingly, we affirm the trial court’s decision
to require Reed to pay his child support arrearage.

                                           Ongoing Child Support

        In addition to requiring Reed to pay his child support arrearage, Appellees argue that
Reed should not have been given prospective relief of his child support obligation because he did
not timely petition for relief. To support their argument, Appellees rely upon Tennessee Rule of
Civil Procedure 60.02:

                 On motion and upon such terms as are just, the court may relieve a party or
         the party’s legal representative from a final judgment, order or proceeding for the
         following reasons: . . . (3) the judgment is void; (4) the judgment has been satisfied,
         released or discharged, or a prior judgment upon which it is based has been reversed
         or otherwise vacated, or it is no longer equitable that a judgment should have
         prospective application . . . . The motion shall be made within a reasonable time .
         ...

Tenn. R. Civ. P. 60.02. (emphasis added). Appellees contend that Reed’s Rule 60.02 petition for
relief, filed in 2002, was not made within a reasonable time from the 1993 order declaring him to
be the father. However, Reed had no concrete evidence to form a basis for Rule 60.02 relief until
the DNA test indicated that he was not the father. His Rule 60.02 motion predated the DNA test
results. Accordingly, we affirm the decision of the trial court to relieve Reed of the ongoing child
support obligation.




         1
          The record contains no evidence of McKinney’s representations beyond Reed’s allegation contained in his Rule
60.02 Petition for Relief.

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                                           Conclusion

        In light of the foregoing, we affirm the decision of the juvenile court relieving Reed from
the ongoing child support obligation but requiring him to pay the child support arrearage in the
amount of $27,051.68. Costs of this appeal are taxed to the appellant, Marcus W. Reed, and his
surety, for which execution may issue if necessary.



                                                      ___________________________________
                                                      DAVID R. FARMER, JUDGE




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