                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               November 8, 2012 Session

                  IN RE ESTATE OF JAMES EDGAR MILLER

                  Appeal from the Probate Court for Monroe County
                     No. 2010117     Hon. J. Reed Dixon, Judge




             No. E2012-00648-COA-R3-CV-FILED-JANUARY 22, 2013


Many years prior to the decedent’s death, he was ordered to pay child support. Upon his
death, the decedent’s ex-wife filed a claim against his estate seeking recovery of child
support arrearages. The personal representative filed an exception, and the trial court denied
the claim. The ex-wife appeals. We reverse.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J. and D. M ICHAEL S WINEY, J., joined.

Matthew C. Haralson, Melanie E. Davis, and Andrew S. Trundle, Maryville, Tennessee, for
the appellant, Norma Jean Wallace.

Ashley Harrison Shudan, Loudon, Tennessee, for the appellee, Estate of James Edgar Miller.

                                         OPINION

                                    I. BACKGROUND

      Norma Jean Wallace (“Ex-Wife”) and James Edgar Miller (“Decedent”) divorced in
1975. As part of the final decree, Ex-Wife was awarded custody of the couple’s daughter
(“Daughter”) (D.O.B. July 1, 1972), and Decedent was ordered to pay $90 per month in child
support to Ex-Wife.

       Decedent died on or about July 17, 2010. On March 14, 2011, Ex-Wife filed a claim
against Decedent’s estate (“the Estate”) for unpaid child support and interest in the amount
of $68,145.24, along with additional post-judgment interest and a $200 attorney’s fee.

       Decedent’s widow, the personal representative of the Estate (“Personal
Representative”), responded with an exception to Ex-Wife’s claim, asserting that the child
support obligation had been satisfied either in full or in part, the calculated amount due was
incorrect, and the claim was barred by the statute of limitations, the doctrine of laches, and
principles of equity. Personal Representative later conceded that the claim was not barred
by the statute of limitations and dropped the challenge to the calculated amount of the
arrearage.

       At an initial hearing held on June 1, 2011, Ex-Wife testified that she had never
received any child support from Decedent. She acknowledged that she had not attempted to
recover the arrearage during Decedent’s lifetime. Personal Representative related her belief
that Decedent had assisted Daughter financially. She testified that Decedent had provided
spending money and helped pay for Daughter’s education and other expenses. However,
Personal Representative admitted having no knowledge regarding Decedent’s child support
payments to Ex-Wife or how much child support, if any, had been paid to Ex-Wife. She
presented no documentation to evidence satisfaction of the child support obligation.

       Daughter testified that Decedent had given her financial assistance over the years, but
she admitted having no knowledge regarding any child support payments made by Decedent
to Ex-Wife. No further testimony was given at the initial hearing, and the proof was closed
by the trial court.

        On September 23, 2011, the trial court informed the parties by letter that he had
requested and received the original divorce file and would be considering information in the
file to decide the instant case. The trial court informed counsel for the parties that he felt
driven

       to do what I think both of you all should have done . . . is to actually look at
       the divorce record and see what was there, and neither of you did. And the
       absence of that record is what compelled me to look and see what’s in that
       divorce file, because I felt that was a real hole in the proof that I felt shouldn’t
       exist.

       At the beginning of a second hearing, held on December 7, 2011, Ex-Wife’s counsel
made two oral motions: one for recusal and one to keep the divorce file out of the evidence.
After a discussion of the trial judge’s relationships with Decedent and all parties involved,




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the motion to recuse was denied.1 Over Ex-Wife’s objections, the trial court resolved to
consider the divorce file.2

        The original divorce file contained a petition for attachment in contempt and for a
restraining order filed by Ex-Wife against Decedent on June 2, 1978, along with a letter to
the county clerk from Decedent’s attorney, and Decedent’s answer. In the petition, Ex-Wife
stated that Decedent was required to pay her $90 per month in child support and that he “has
quit making his child support payments and is more than four (4) months behind.” In the
answer, Decedent denied that he willfully refused and neglected to make the payments but
admitted he was four months delinquent. Both the letter from Decedent’s attorney and the
answer make reference to a check allegedly included with the answer to cover four months
of past-due child support. The record, however, contains no copy of the check, no other
evidence that payment was received or processed by the clerk, and no evidence that the
money was sent to Ex-Wife. The file also includes no final resolution of the 1978 matter.

       At the second hearing, addressing the 1978 petition’s reference that Decedent “has
quit making his child support payments and is more than four (4) months behind,” Ex-Wife
explained the wording was chosen by her attorney over her objections. She stated, “I didn’t
agree with it but my lawyer suggested that it be done and me to sign it, to bring it to court.”
Ex-Wife reasserted that she had received no child support payments from Decedent. She
observed that the money allegedly sent to the clerk with the answer was not passed along to
her.3 Ex-Wife testified that she was not informed about the hearing set in response to her
petition, and the case was never reset.4 She further stated that her contention nothing had
been done to collect past-due child support was because no success resulted from the 1978


        1
        The trial judge stated: “I have never been to [Decedent]’s house, he’s never been to mine, we’ve
never been involved in any kind of social activities together other than attending the same political rallies.”
           2
               The trial judge responded to the motion as follows:

           It concerns me a little that I sought out and discovered this information to the extent that I
           contacted the [A]OC myself, and, actually the board [of the] judiciary, and asked if I could
           consider information contained in another file that was not presented in open court but
           rather was found through my own efforts, and they indicated that yes, I could, and since it
           was public record, but that I needed to provide you an opportunity to provide additional
           information, and I am then acting exactly on their instructions to me on how this matter got
           to this point.
        3
               Ex-Wife admitted that Decedent once gave her $20, but the payment was not intending to be child
support.
        4
               Ex-Wife missed the hearing date and claimed that she never received an order from the trial court.

                                                         -3-
petition.

       On March 6, 2012, the trial court denied Ex-Wife’s claim, providing as follows:

       [Ex-Wife] is unreliable and is not able to offer competent testimony on
       whether, when, or how much child support was paid. She has contra[di]cted
       herself both in court and in her pleadings on those issues.

                                            ***

       Child support was paid by [Decedent] to [Ex-Wife] in some amount.

       The court would be required to speculate regarding how much child support
       was or was not paid.

       There is no reliable proof that child support was not paid after 1978.

                                            ***

(Lettering in original omitted.). Ex-Wife filed a timely appeal from the order denying her
claim.


                                        II. ISSUES

       Ex-Wife raises the following issues:

       1. Whether the trial court committed reversible error by taking judicial notice
       of the court file from the original divorce case upon the court’s own initiative
       after the close of evidence.

       2. Whether the trial court committed reversible error by taking judicial notice
       of disputed facts contained in the court file from the original divorce action.

       3. Whether the trial court committed reversible error by relying upon
       inadmissible evidence to determine witness credibility.

       4. Whether the trial court applied the incorrect burden in assessing Ex-Wife’s
       claim.



                                              -4-
       5. Whether the evidence was sufficient to deny Ex-Wife’s claim.


                               III. STANDARD OF REVIEW

        To the extent the issues raised in this appeal involve questions of fact, our review of
the trial court’s judgment is de novo with a presumption of correctness as to the court’s
factual findings, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d);
Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With regard to the trial court’s legal
conclusions, our review is de novo with no presumption of correctness. Bowden v. Ward,
27 S.W.3d 913, 916 (Tenn. 2000).

        The credibility of witnesses is peculiarly within the province of the trier of fact.
Where the trial court has seen and heard the witnesses, especially if issues of credibility and
weight to be given oral testimony are involved, considerable deference must be accorded to
the trial court on review. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995).

        A trial court abuses its discretion if it (1) applies an incorrect legal standard, (2)
reaches an illogical or unreasonable decision, or (3) bases its decision on a clearly erroneous
evaluation of the evidence. Elliott v. Cobb, 320 S.W.3d 246, 249-50 (Tenn. 2010). A trial
court also abuses its discretion if it strays beyond the applicable legal standards or when it
fails to properly consider the factors that customarily guide a discretionary decision. Lee
Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).


                                      IV. DISCUSSION

        Tennessee Code Annotated section 34-1-102(b) obligates parents to support a child
until the child reaches 18 years of age. Daughter turned 18 on July 1, 1990. The fact that
a child has reached the age of majority, however, does not relieve a obligor parent from
liability for unpaid child support. Kuykendall v. Wheeler, 890 S.W.2d 785, 786 (Tenn. 1994).

       Tennessee Code Annotated section 36-5-101(f)(1) states:

       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. . . . If the full amount of child support
       is not paid by the date when the ordered support is due, the unpaid amount is
       in arrears, shall become a judgment for the unpaid amounts, and shall accrue
       interest from the date of the arrearage . . . . All interest that accumulates on

                                                -5-
       arrearages shall be considered child support.

Tenn. Code Ann. § 36-5-101(f)(1) (2012). Section 36-5-101(f)(3) provides that a child
support arrearage in existence at the time an order for child support would otherwise
terminate continues in effect until the unpaid arrearage and costs are satisfied. A court may
enforce such orders for arrearage under its power to punish for contempt. Id. Section 36-5-
103(g) states: “Judgments for child support payments for each child subject to the order for
child support pursuant to this part shall be enforceable without limitation as to time.” See
also Lichtenwalter v. Lichtenwalter, 229 S.W.3d 690, 693 (Tenn. 2007) (noting “portions of
Tennessee Code Annotated section 36-5-101(f) support the conclusion that the parent to
whom child support is owed is entitled to seek reimbursement for a child support arrearage
even if the child has reached majority by the time the suit is filed.”).

        The party seeking a judgment for delinquent child support has the burden of proving
the amount due. See Pirrie v. Pirrie, 831 S.W. 2d 296, 298 (Tenn. Ct. App. 1992); Lowe v.
Lowe, No. 03A01-9607-CV-00233, 1996 WL 671344, at *2 (Tenn. Ct. App. Nov. 21, 1996)
(citing Woodard v. Woodard, 783 S.W.2d 188, 191 (Tenn. Ct. App. 1989)). “[T]he burden
may be met by showing the order to pay and the fact of nonpayment.” Pirrie, 831 S.W.2d
at 298 (citing Woodard; Chappell v. Chappell, 261 S.W.2d 824 (Tenn. Ct. App. 1952);
Bradshaw v. Bradshaw, 133 S.W.2d 617 (Tenn. Ct. App. 1939)). Once this burden is met,
the burden shifts to the defendant. A petition to recover unpaid child support, “is essentially
a proceeding to collect a judgment. In such cases, the plaintiff has the burden of proving the
judgment and its validity, but the defendant has the burden of proving affirmative defenses,
including payment.” Cagle v. Davis, 1989 WL 44921, at *5 (Tenn. Ct. App. May 5, 1989)
(citing 50 C.J.S. Judgments § 863 at 439).

       After the trial court reviewed the original divorce file, the following exchange
occurred at the second hearing:

       THE COURT: . . . [T]he record clearly shows that child support was paid.
       Your argument from the beginning has been zero child support was paid.
       Your client testified under oath that zero child support was paid. The court
       record demonstrates that simply isn’t true. Am I to ignore what is clearly a
       matter of public record, that child support, in fact, was paid, and it’s a matter
       of record that it was, that there was a proceeding to attempt to collect a small
       amount of past due child support which is still open and never resolved? Am
       I to ignore the fact that either your client has an extremely poor memory or that
       she perjured herself in this court? You know, one of the two.

       MR. HARALSON: I would submit the pleading indicates that the decedent

                                              -6-
        was at least four months behind. It doesn’t say whether that was limited to
        four months or whether that was two years behind, Your Honor . . . .

                                                  ***

        . . . Paragraph 2 of the petition said, “Petitioner further avers the defendant has
        quit making his child support payments, is more than four months behind.”

                                                  ***

        . . . I think if there had been findings of fact and an order entered on those
        pleadings we’d certainly agree [that the trial court could take judicial notice],
        but I think they were mere allegations made by one side and the other in a
        disputed, contested divorce.

        THE COURT: Well, there’s somewhat more than that. There is a letter from
        counsel with a check.

        MR. HARALSON: Payable to the court. Your Honor, we contacted the court.
        We were advised the court didn’t keep records back then so we can’t prove
        one way or another what happened to that money. The clerk’s office advised
        that they can’t show and there was no order ordering the clerk of the court to
        disperse the money back to [Decedent] or to [Ex-Wife]. Again, if it had been
        findings that can’t be reasonably disputed. If the court had entered an order
        I think [Personal Representative’s counsel] would be spot on, but I think in the
        event that there are these allegations back and forth, she alleges one thing, that
        he’s more than four month’s behind, he denies it, that’s the end of it, there is
        no further action taken, I don’t know that that’s something that we should be
        able to consider . . . because it is still reasonably subject to dispute.


       Rule 201 of the Tennessee Rules of Evidence provides that a court may take judicial
notice of any adjudicative fact “not subject to reasonable dispute” and “capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” Tenn. R. Evid. 201(b).5 “This limitation means, ‘almost by definition, if a party
offers anything other than dilatory or pretextual reasons for opposing the taking of judicial


        5
          The court may take judicial notice “whether requested or not” and may do so at any stage of the
proceedings. Tenn. R. Evid. 201(c) & (f). A party has the right to be heard “as to the propriety of taking
judicial notice and the tenor of the matter to be noticed.” Tenn. R. Evid. 201(e).

                                                   -7-
notice, the court should view the fact as subject to reasonable dispute and decline to take
judicial notice of it.”’ State v. Nunley, 22 S.W.3d 282, 288 (Tenn. Crim. App. 1999) (quoting
Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine, Tennessee Law of Evidence 44 (3d
ed. 1995). In State v. Lawson, 291 S.W.3d 864 (Tenn. 2009), our Supreme Court recognized
that “the federal courts have approved the taking of judicial notice of filed documents so long
as the purpose was ‘to establish the fact of such litigation and related filings,’ rather than to
establish the truth of the matters asserted in the other litigation.” Lawson, 291 S.W.3d at 870
(quoting Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir.
1992) (emphasis added).

       In Caldwell v. State, 48 S.W.2d 1087, 1089 (Tenn. 1932), a matter in which the trial
court indicated that its ruling was “based both on the record . . . and the private
investigation,” the Supreme Court overturned the ruling by the court, noting that, “[t]he trial
judge erred in accepting and considering evidence privately acquired by him or evidence
beyond the record.” 48 S.W.2d at 1090 (citing 1 Chamberlayne Modern Law on Evidence,
574). The Court reasoned that the result could not be upheld, “because it is impossible to
know whether the legal evidence or his private investigation moved him to the conclusion
reached.” Caldwell, 48 S.W.2d at 1090. A comment to Canon 3 of Supreme Court Rule 10
similarly acknowledges that “[a] judge must not independently investigate facts in a case and
must consider only the evidence presented.” Tenn. S. Ct. R. 10.

       In this action, it appears that the trial court took judicial notice from the original
divorce file the fact that child support payments allegedly had been made, as asserted in the
answer and letter to clerk, because there is no other direct evidence in the record
demonstrating that child support payments had been made. Taking judicial notice of these
disputed allegations from a prior, unresolved proceeding was improper. Ex-Wife offered
more than “dilatory or pretextual reasons for opposing the taking of judicial notice.” Nunley,
22 S.W.3d at 288. The trial court abused its discretion when it took judicial notice of the
disputed facts.

      Subsequently, after reviewing the divorce file, the trial court determined that Ex-Wife
was not a credible witness. The trial court made these assessments of Ex-Wife’s credibility
based upon improper judicial notice. This was error.

        In this case, the probate court judge, with the best of motives, erroneously took
judicial notice of a file in a court other than the one involved in the instant proceeding.
Based upon the judicial notice, the trial judge made credibility determinations and decided
the claim on its merits. Because he has made these finding and rulings, we believe it would




                                               -8-
be appropriate for another judge to hear this matter on remand. Accordingly, Judge Dixon
is directed to take the appropriate steps to have a new judge assigned to hear this matter on
remand.


                                   V. CONCLUSION

        The judgment of the trial court is reversed. This matter is remanded to another trial
court judge for further proceedings consistent with this opinion to determine Ex-Wife’s claim
against Decedent’s Estate. Costs on appeal are taxed to the appellee, Estate of James Edgar
Miller.

                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE




                                             -9-
