                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                            April 5, 2005 Session

    STATE OF TENNESSEE, EX. REL. DEBRA L. OGELSBY v. MARK D.
                           BRIDGES

                            Appeal from the Juvenile Court for Knox County
                              No. 0100039638    Carey E. Garrett, Judge



                       No. E2004-01675-COA-R3-CV - FILED MAY 17, 2005


Debra L. Ogelsby (“Mother”) and Mark D. Bridges (“Father”) are the natural parents1 of Holly
Bridges (“the child”). By an order entered in 1986, Mother was awarded custody of the child and
Father was charged with a duty of support but with no amount being set. In 1998, the child started
living with Father. At that time, Father, motivated by the fact the child was now living with him,
filed a petition to terminate his support obligation. His petition was granted. In 1999, the child left
Father and again took up residence with Mother. The child was emancipated by marriage in 2000.
In 2002, the State of Tennessee (“the State”), on behalf of Mother, brought this action seeking
retroactive child support for the period from 1999 through 2000. Father argues that the trial court
was prohibited from awarding retroactive child support prior to June 11, 2002, the date upon which
the State filed its petition. The trial court held that Mother was entitled to retroactive child support
since there was no active order for child support in place at the time the petition was filed. Father
appeals. We affirm.

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

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and SHARON G. LEE, J., joined.

Ricky A.W. Curtis, Knoxville, Tennessee, for the appellant, Mark D. Bridges.

Paul G. Summers, Attorney General and Reporter, and Warren A. Jasper, Assistant Attorney
General, Nashville, Tennessee, for the appellee, State of Tennessee, ex. rel. Debra L. Ogelsby.




       1
           The parties were never married to each other.
                                                      OPINION

                                                            I.

        Mother and Father are the natural parents of the child (DOB: 02/24/1985). Pursuant to
Mother’s legitimation petition, an order was entered on June 23, 1986. That order provided, among
other things, that custody of the child was awarded to Mother, and that Father owed a duty of support
to the child until she graduated from high school. At that time, the court set the amount of support
at zero, but ordered Father to pay an arrearage to the State of Tennessee in the amount of $450.2

        In October, 1987, the State filed a petition on Mother’s behalf seeking an order setting a
specific amount of child support. The court entered an order setting Father’s support obligation at
$104 per month. Over the years that followed, the amount of Father’s child support obligation was
modified several times. In August, 1998, the child left Mother and moved in with Father. On
August 14, 1998, Father filed a motion asking the court to terminate his child support obligation
based upon the fact the child was now living with him. The court granted Father’s motion. It
appointed him guardian of the child. By order entered September 29, 1998, the trial court terminated
Father’s obligation to pay child support effective August 14, 1998.

        On January 11, 1999, the child returned to live with Mother. Mother requested that the court
terminate Father’s guardianship and vest guardianship in her as the custodial parent. The trial court
entered an order granting Mother’s motion; the order fails to address Father’s child support
obligation. The child was emancipated by marriage on June 21, 2000.

         On June 11, 2002, the State, on Mother’s behalf, filed a petition to set support. In its petition,
the State averred that Mother was the custodian of the child, and that the child had resided with
Mother from January 11, 1999, through June 21, 2000, the date of the child’s marriage. The petition,
among other things, asked the court to decree that Father owed child support for the period from
January, 1999, through June, 2000. Father responded by filing a motion to dismiss, in which he
argued that his child support obligation was terminated by the court on September 29, 1998, and that
no subsequent decision modifying that order had been entered. Consequently, according to Father,
the trial court was prohibited, pursuant to Tenn. Code Ann. § 36-5-101(a)(5) (Supp. 2004), from
awarding support for the period from January, 1999, to June, 2000, because such an award would
constitute a retroactive modification of the order for “zero” child support entered on September 29,
1998.

        On March 26, 2003, the parties appeared before a referee of the juvenile court. The referee
held that “[t]he Petition to Establish Support is denied in as much as the [c]ourt declines to establish
a monthly support amount payable from [Father] to [Mother] in accordance with the Tennessee Child
Support Guidelines for the period of time that the minor child lived with the Mother in the absence


         2
          The order does not reflect why support was set at “zero . . . [d]ollars,” nor does the order recite the basis for
the arrearage.

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of a child support order.” The referee further found, however, that Mother was entitled to a portion
of the necessaries incurred by her on behalf of the child. The referee therefore deemed the petition
to set support as a petition to require Father to pay a portion of the necessaries incurred on the child’s
behalf.

        The State appealed the referee’s decision to the trial court. That court reversed the referee,
deciding that since there was no active order of support in place at the time of the last custody
change, the court was not prohibited from granting retroactive support. Consequently, the court held
that Father owed a duty of support to Mother from January 11, 1999, through June 21, 2000, in an
amount to be calculated based upon the gross income earned by him during that period of time.
Father appeals from that judgment.

                                                    II.

        Father challenges the judgment of the trial court, arguing that, under Tenn. Code Ann. § 36-
5-101(a)(5), a court cannot order retroactive child support for a period of time prior to the date of
filing of the petition to modify. Since the State’s petition was filed on June 11, 2002, so the
argument goes, Mother is not entitled to any child support for any period prior to that date. Hence,
Father argues that no support is due. The State responds by categorizing its petition as one asking
to “set” support, not to modify an existing order. It contends that Tenn. Code Ann. § 36-5-101(a)(5)
is not an impediment to the granting of the relief it seeks.

        The relevant statute in this case provides as follows:

                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 and notice of the action has been mailed to the last known
                address of the opposing parties. If the full amount of child support is
                not paid by the date upon which the ordered support is due, the
                unpaid amount is in arrears and shall become a judgment for the
                unpaid amounts and shall accrue interest from the date of the
                arrearage at the rate of twelve percent (12%) per annum. All interest
                which accumulates on arrearages shall be considered child support.
                Computation of interest shall not be the responsibility of the clerk.




                                                    -3-
Tenn. Code Ann. § 36-5-101(a)(5). Therefore, the critical question before us is whether the
September 29, 1998, order terminating Father’s obligation to pay child support is an “order for child
support” as contemplated by Tenn. Code Ann. § 36-5-101(a)(5).3

                                                           III.

        We review the trial court’s factual findings de novo, according those findings a presumption
of correctness unless the evidence preponderates against them. Tenn. R. App. P. 13(d); Bogan v.
Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). As to the trial court’s legal conclusions, we conduct our
review under “a pure de novo standard of review, according no deference to the conclusions of law
made by the lower courts.” S. Constructors, Inc. v. Loudon County. Bd. of Educ., 58 S.W.3d 706,
710 (Tenn. 2001).


                                                           IV.


         Before the General Assembly enacted the provision currently codified at Tenn. Code Ann.
§ 39-5-101(a)(5), a court was permitted to modify child support “upon a specific written finding that
the obligor was unable to pay the full amount of such allowance through no intentional fault of his
or her own and that the facts of the case require such a modification retroactively in order to meet
the ends of justice.” Rutledge v. Barrett, 802 S.W.2d 604, 605-06 (Tenn. 1991) (quoting Tenn.
Code Ann. § 36-5-101 (Supp. 1986)). The Tennessee legislature amended the statute in order to
comply with the federal mandate that certain federal assistance to the states was contingent upon a
state putting in place procedures which “guarantee that a child support payment is . . . not subject
to retroactive modification by such State or by any other State.” Id. (quoting 42 U.S.C. § 666(a)(9)
(Supp. 1990)). The legislative history reflects the General Assembly’s clear intent that “the courts
of this state would lose their ability to forgive past arrearages in child support cases.” Id. (citation
omitted).


         In applying the statute to the instant case, the trial court held as follows:


                  After entering an order terminating child support upon a change of
                  custody, the [c]ourt is not prohibited from later entering an order of
                  support for that child after custody reverts back to the original
                  custodian. Given that there was no active order of support in place at
                  the last custody change, the granting of retroactive support in this
                  case is clearly not a modification of a pre-existing order. To find


         3
          The State also argues, in the alternative, that Mother is entitled to an award for necessaries purchased for the
child during the relevant time period. However, in view of our disposition of this case, we do not reach the “necessaries”
issue.

                                                           -4-
                   otherwise would indicate that children are not entitled to support from
                   both parents if ever there is a change in custody until the custodial
                   parent actually files a petition seeking such support. To the contrary,
                   [Tenn. Code Ann.] § 34-1-1024 clearly provides that children are
                   entitled to support from both parents during their minority.


(Emphasis in original).


        Father argues that the trial court’s judgment is in error based upon the following facts: (1)
an order terminating Father’s child support was entered in 1998; (2) the child was emancipated in
2000; and (3) the State’s petition seeking to modify the order was not filed until 2002. Father
contends that the trial court was without authority to order child support for any period of time prior
to the date when the subject petition was filed. In support of his argument, he relies upon our
decision in Johnson v. Johnson, No. E2003-00130-COA-R3-CV, 2003 WL 22258180 (Tenn. Ct.
App. E.S., filed August 21, 2003), which he contends is analogous to the case at bar. The divorce
decree in Johnson granted custody of three children to the mother, and ordered father to pay child
support of $1,500 per month. Id., at *1. However, in the 1994/1995 time frame, one of the children
started spending the majority of his time at his father’s residence. Id. In 1999, the father filed a
petition in which he asserted that since 1994/1995, he had been, in effect, the “primary residential
parent” and that, as a consequence of this fact, he was entitled to a reduction in his support obligation
going back to the time that the child started living with him. Id. The court held, however, that
“[t]his type of retroactive modification of child support is prohibited by statute.” Id., at *3. In
Johnson, we went on to say, citing Tenn. Code Ann. § 36-5-101(a)(5), that “[i]t is well-settled that
child support payments cannot be altered, reduced or forgiven by the court once they become due.”
Id. (emphasis added). In the instant case, no support ever “bec[ame] due” as a result of the trial


        4
            Tenn. Code Ann. § 34-1-102 (2001) provides, in relevant part, as follows:

                   (a) Parents are the joint natural guardians of their minor children, and are equally
                   and jointly charged with their care, nurture, welfare, education and support and also
                   with the care, management and expenditure of their estates. Each parent has equal
                   powers, rights and duties with respect to the custody of each of their minor children
                   and the control of the services and earnings of each minor child; provided, that so
                   much of the net income of each minor child as may be necessary may be expended
                   by a parent (without the necessity of court authorization) for the child's care,
                   maintenance and education. Funds of a minor held by a guardian shall not be
                   expended to relieve or minimize the obligation of the parent or parents to support
                   the minor.

                   (b) Parents shall continue to be responsible for the support of each child for whom
                   they are responsible after the child reaches eighteen (18) years of age if the child is
                   in high school. The duty of support shall continue until the child graduates from
                   high school or the class of which the child is a member when the child attains
                   eighteen (18) years of age graduates, whichever occurs first.

                                                            -5-
court’s order of September 29, 1998. This is not a case where an order for support was still in effect
at the time the petition was filed. The order entered on September 29, 1998, terminated Father’s
child support obligation “due to the child living with the Father.” From that date forward, no order
requiring the payment of support was in place. While the order of September 29, 1998, certainly
addresses the subject of child support, it is not an “order for child support.”5 See Tenn. Code Ann.
§ 36-5-101(a)(5) (emphasis added).


        We agree with the trial court that the State’s petition on Mother’s behalf should be treated
as a petition to set child support rather than as one seeking to modify an existing order, as Father
argues. By way of an additional argument, Father contends that the State’s petition cannot be
classified as one to “set” support because the record contains numerous orders setting support. He
also argues that the current judgment increases his child support obligation to a level above that
existing just prior to the order of September 29, 1998, terminating his support obligation. Therefore,
he argues, the increase constitutes a modification. We find, however, that the presence of multiple
orders modifying Father’s obligation to pay child support prior to the time he obtained custody of
the child and prior to the entry of the order terminating his child support obligation is immaterial to
the issue now before us.


        Since we hold that the State’s petition does not seek to modify an existing order for child
support, it was proper for the trial court to order Father to pay support retroactive to the date on
which Mother obtained custody – January 11, 1999 – to the date of the child’s emancipation by
marriage – June 21, 2000. The scenario presented here is analogous to the one before us in Varney
v. Louise, No. M2000-03234-COA-R3-CV, 2001 WL 1480524 (Tenn. Ct. App. M.S., filed
November 21, 2001). After the parties in Varney divorced, the trial court awarded custody to the
mother. Id., at *1. Several years later, the trial court, acting upon the father’s motion, awarded
temporary custody of the children to the father, but failed to order mother to pay child support. Id.,
at *2. The father subsequently sought child support from the mother. Id. Following a hearing, the
court entered an order returning custody to the mother. Id., at *3-*4. The trial court failed, however,
to address father’s request for back child support and expenses for the time period in which he had
custody of the children. Id., at *7. Treating the trial court’s silence as a denial of the father’s
request, we remanded the matter for a determination of the extent, if any, of the mother’s obligation
to pay back child support. Id., at *8. In support of our decision to remand, we cited the proposition
that every parent is obligated to support his or her children during their minority. Id., at *7 (citing
Tenn. Code Ann. § 34-11-1026). The obligation to support, care for, and nurture their children is


         5
           This case does not present a factual scenario where a trial court enters an order setting an obligor parent’s child
support obligation at zero because the court finds a legally-justifiable basis for deviating from the amount of support
dictated by the strict application of the Child Support Guidelines. Therefore, whether such an order would be considered
an “order for child support” under Tenn. Code Ann. § 36-5-101(a)(5), is not before us and does not need to be decided
in this case.

         6
             This statute has since been transferred to Tenn. Code Ann. § 34-1-101, et seq.

                                                             -6-
imposed upon both parents, and the extent of their duty to support depends upon their ability to
provide that support. Id. (citing State ex rel. Grant v. Prograis, 979 S.W.2d 594, 600-01 (Tenn. Ct.
App. 1997)). This obligation exists even in the absence of a court order. Id. In Varney, however,
we did not indicate the date to which the award of support should be retroactive. We subsequently
clarified our holding in Varney, stating that “the [Varney court’s] recognition of every parent’s
obligation to support his or her child from minority even without a court order clearly indicates the
propriety of awarding support retroactive to the time the father was granted custody.” State v.
Harrell, No. E2001-01710-COA-R3-CV, 2002 WL 31011260, at *1 (Tenn. Ct. App. E.S., filed
September 3, 2002).


        We hold that Father had a statutory obligation to support the child during the period of time
for which the trial court’s order decreed support, i.e., from January 11, 1999, through June 21, 2000.
We further hold that the decree does not offend Tenn. Code Ann. § 36-5-101(a)(5) because the
current judgment does not modify an existing “order for child support.”


                                                 V.


       The judgment of the trial court is affirmed. This matter is hereby remanded to the court
below for enforcement of that court’s judgment and for collection of costs assessed below, all
pursuant to applicable law. Costs on appeal are taxed to the appellant, Mark D. Bridges.



                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




                                                 -7-
