                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  On-Brief February 9, 2007

 STATE OF TENNESSEE, ex rel., LAJAUTA McNEIL DAUDA v. CORRY
                       JAMAL HARRIS

                 A Direct Appeal from the Juvenile Court for Shelby County
                No. C8666    The Honorable Harold W. Horne, Special Judge



                    No. W2006-01314-COA-R3-JV - Filed March 26, 2007


        This is a Title IV-D child support case. The Appellant State of Tennessee ex rel. LaJuanta
McNeil Dauda was granted an order legitimizing the minor child and setting Appellee/Father’s child
support obligation going forward. Appellee/Father filed a petition to set aside paternity, which was
denied. Appellee/Father’s child support arrears were determined and, thereafter, the child’s mother
sought to have Appellee/Father’s support obligation suspended and any arrears forgiven. The trial
court granted the motion and the State appeals. We reverse and remand.


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

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

Robert E. Cooper, Jr., Attorney General and Reporter; Warren A. Jasper, Assistant Attorney General
for Appellant, State of Tennessee, ex rel. Lajauta McNeil Dauda

Corry Jamal Harris, Pro Se

                                             OPINION

       On July 17, 1992, the State of Tennessee ex rel. LaJuata McNeil Dauda (“State,” or
“Appellant”), filed a petition against Corry Jamal Harris (“Appellee”) to establish paternity of Ms.
Dauda’s child, A.D.H. (d.o.b. September 26, 1991). On August 14, 1992, the juvenile court found
that Mr. Harris was the father of A.D.H. and set child support at $115.00 per month.

      Twelve years later, on September 21, 2004, Mr. Harris filed a petition to set aside the
judgment of paternity. In his Petition, Mr. Harris states that he obtained a DNA paternity test, which
showed zero percent probability that he is the father of A.D.H. On October 26, 2004, the State filed
its response asserting that Mr. Harris’s Petition is barred by the doctrine of res judicata. The State
also asserted that Mr. Harris had never made a voluntary child support payment and that he owed
$20,674.65 as of October 1, 2005. Along with its response, the State also filed a motion in limine
and/or motion to strike seeking to exclude the results of the privately conducted DNA test. On or
about June 14, 2005, the trial court entered an Order dismissing Mr. Harris’s Petition.

        On June 15, 2005, Ms. Dauda filed a pro se petition to modify the June 14, 2005 Order.
Specifically, Ms. Dauda requested that Mr. Harris’s child support obligation be suspended and that
any arrears be forgiven and terminated. A hearing was held on August 15, 2005. At the hearing, Ms.
Dauda testified that, although the DNA test indicated that Mr. Harris was not A.D.H.’s father, Mr.
Harris continued to take care of the child. Ms. Dauda further testified that, when A.D.H. was born,
both she and Mr. Harris believed that Mr. Harris was the father; however, she conceded that both
she and Mr. Harris knew that there was a possibility that another man was the father. As A.D.H.
grew, Ms. Dauda stated that she realized he looked like the other man but that Mr. Harris was “his
daddy.” Ms. Dauda testified that Mr. Harris owed about $17,000.00 in child support, but that only
$2,016.00 of that sum was owed to the State. Mr. Harris testified that he still loved the child, that
the child spent summers with him and that he would continue to do so. Both Mr. Harris and Ms.
Dauda testified that, whenever A.D.H. needed something, Mr. Harris provided it. Mr. Harris
indicated that he should not have to pay child support because he gave A.D.H. more money per
month than he was required to pay in child support.

       The State indicated that the total arrears were $19,000.00 and that $2,500.00 of that was
owed to the State. Based upon this testimony, the Referee reduced the total arrears to $2,500.00.
On or about August 15, 2005, the Referee entered an Order suspending Mr. Harris’s ongoing child
support obligation, and establishing the total arrears at $2,500.00, which sum was owed to the State.

        On August 18, 2005, the State requested a hearing before the juvenile court judge. The
hearing was held on February 2, 2006. At that hearing, Mr. Harris reiterated his desire to stay in the
child’s life and to treat the child as his own. Ms. Dauda testified that she did not want any support
from Mr. Harris. Following the hearing, the trial court’s entered and Order on February 2, 2006,
which Order reads, in pertinent part, as follows:

               [T]he Court finds:

               *                                  *                       *

               2. That the parties are in agreement that the defendant is not the
               biological father of the minor child legitimated in this cause August
               14, 1992 and base their agreement on the results of DNA testing
               performed by them privately.
               3. That the defendant does not seek to set aside the order of paternity
               as he continues to act as said child’s father out of a sense of love and
               concern for said child’s welfare.


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               4. That at the hearing on August 15, 2005 the parties expressed to the
               Referee their desire to terminate the ongoing obligation to pay child
               support through the Court.

               *                                  *                           *

               6. That the Referee awarded the State a judgment for $2,500.00 it
               claimed it was due and, at the request of the petitioner, terminated the
               continuing obligation to pay child support.
               7. That the defendant thereupon tendered to the State, through the
               Court Clerk’s Office a payment of $2,500.00 to satisfy the judgment
               and marked upon the face of the payment that it was in full payment
               of the above debt.
               8. That the defendant has satisfied his obligation to reimburse the
               State and that the mother should be allowed to dismiss her action.

               IT IS THEREFORE ORDERED

               1. That the Referee’s ruling of August 15, 2005, be and is hereby
               reconfirmed as the decree of this Court.
               2. That the arrears owed by the defendant to the State of Tennessee
               be established at $0.00, due to his having paid $2,500.00 owed to the
               State of Tennessee which satisfies his obligation in full.

        On March 3, 2006, the State filed a “Motion to Alter or Amend Order,” asserting that the trial
court had granted an impermissible, retroactive modification of child support arrears and that the
parties could not circumvent the child support guidelines by private agreement. A hearing was held
on May 18, 2006. At the hearing, the State indicated that it had no new proof and the trial court
denied the State’s motion by Order of May 18, 2006.

       The State appeals and raises two issues for review as stated in its brief:

               1. Whether the father continues to owe court-ordered child support.

               2. Whether the trial court erred when it forgave child support arrears.

       It is undisputed in this record that Mr. Harris remains the legal father of A.D.H. As such, Mr.
Harris has a legal obligation to provide support for A.D.H. as set in the 1992 Order. T.C.A. §
36-5-101(f)(1) (2005) provides:

               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.


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                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.

(Emphasis added).

         Furthermore, our Supreme Court has held in Rutledge v. Barrett, 802 S.W.2d 604
(Tenn.1991) that, pursuant to the above statute, a child support order is not subject to retroactive
modification. Id. at 605-607; see also Alexander v. Alexander, 34 S.W.3d 456, 46
(Tenn.Ct.App.2000) (providing that “a court has no power to alter a child support award as to any
period of time occurring prior to the date on which [a parent] files his or her petition.”). Accordingly,
a trial court may not retroactively forgive a child support arrearage, but may only modify child
support obligations back to the date that a petition or motion for modification is filed and notice is
provided to the non-moving party. Consequently, the trial court in the instant case lacked the
authority to retroactively modify the child support order. In reaching its decision to forgive Mr.
Harris’s child support arrears, the trial court made the following, relevant, statements from the bench
at the close of proof at the February 2, 2006 hearing:

                I’m going to do what y’all [Ms. Dauda and Mr. Harris] asked, but I
                near guaranty [sic] you, they’re [the State] going to appeal it to the
                Court of Appeals and y’all will have another hearing.... Maybe if
                they [this Court] hear you vocally explain to them why you want the
                State out of your business, they’ll do something different than they
                been [sic] doing, but the Court’s going to find number 1, that the
                mother’s petition to terminate this child support order be granted.
                Number 2, that the father has paid in full the $2,500 which was owed
                to the State and awarded to them in the August 15th order and that
                there’s no more money due. I wish y’all luck on the appeal, because
                if the State is so unkind as to pursue this matter, you’d think they’d
                have something better to do with their time, but I don’t know.

        From these statements, it is obvious that the lower court has ignored a crucial point–that
being that the primary beneficiary of child support is the child, not the parents. Hopkins v. Hopkins,
152 S.W.3d 447, 449 (Tenn.2004). A custodial parent's conduct cannot extinguish a non-custodial
parent's responsibility to support his or her children, Rutledge v. Barrett, 802 S.W.2d at 607, and


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the law does not permit parents to waive or circumvent their minor children's right to support.
Berryhill v. Rhodes, 21 S.W.3d 188, 192, 194 (Tenn.2000) (holding that private agreements to
circumvent child support obligations are against public policy); Huntley v. Huntley, 61 S.W.3d 329,
335-36 (Tenn.Ct.App.2001); Witt v. Witt, 929 S.W.2d 360, 363 (Tenn.Ct.App.1996)(“We find and
hold that agreements, incorporated in court decrees or otherwise, which relieve a natural or adoptive
parent of his or her obligation to provide child support are void as against public policy as
established by the General Assembly.”). Accordingly, even when parents undertake to make their
own child support arrangements or to circumvent the obligation all together, the courts have the
power–and are, in fact, legally bound– to set and enforce the parent’s support obligation unless and
until same is modified pursuant to the statutory scheme.

        For the foregoing reasons, we reverse the Order of the trial court, and remand for such further
proceedings as may be necessary consistent with this Opinion. Costs of this appeal are assessed
against the Appellee, Corry Jamal Harris.




                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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