                      IN THE SUPREME COURT OF TENNESSEE
                                  AT JACKSON

             BETTY BERRYHILL v. CHARLES THOMAS RHODES

                       Appeal from the Juvenile Court for Shelby County
                            No. G8355 Kenneth Turner, Judge



                    No. W1997-00167-SC-R11-CV - Decided May 30, 2000
                                 FOR PUBLICATION



JUSTICE BIRCH, with whom JUSTICE BARKER joins, concurring and dissenting.

        I fully concur in the majority’s decision to remand this case to determine whether deviation
from the guidelines is appropriate. I cannot, however, accept the majority’s analysis of private
agreements for child support. To the extent that the majority opinion suggests that such agreements
are per se void, and thus never enforceable, I must respectfully dissent.1

         It is my opinion that parents of non-marital children should be permitted, indeed encouraged,
to agree upon child support. The parties must, however, fully realize that any such private agreement
is always subject to modification by the appropriate judicial authority. Viewed in this manner, one
can reasonably predict that private agreements which meet applicable criteria will most likely be
approved when subjected to court scrutiny. Conversely, if the agreement fails in this regard, then
it is unlikely to receive court approval.

       Private agreements for child support have been statutorily encouraged. As the majority notes,
Tenn. Code Ann. § 36-5-101(h) is the statutory provision governing private agreements for child
support. Tennessee Code Annotated § 36-5-101(h) provides that:

                [n]othing in this section shall be construed to prevent affirmation,
                ratification and incorporation in a decree of an agreement between the



        1
         Reading the majority opinion, it is difficult to determine if my colleagues hold that private
agreements for child support are per se void, void on a case by case basis, or voidable. For example,
the majority first insists that “[p]rivate agreements used to circumvent the obligations set forth in the
statutes and guidelines contravene” public policy. This statement implies that in some cases private
agreements for child support are enforceable. Later, however, the majority concludes that “private
agreements for the payment of child support violate public policy,” suggesting that such agreements
are per se void and thus never enforceable.
               parties as to child support and maintenance of a party or as to child
               support.

Tenn. Code Ann. § 36-5-101(h) (Supp. 1998) (emphasis added). In interpreting this statute, I am
reminded that a “basic rule of statutory construction is to ascertain and give effect to the intention
and purpose of the legislature.” Carson Creek Vacation Resorts, Inc. v. State Dep’t. of Revenue, 865
S.W.2d 1, 2 (Tenn. 1993). In so doing, a court must not “unduly restrict[] or expand[] a statute’s
coverage beyond its intended scope.” Worley v. Weigels Inc., 919 S.W.2d 589, 593 (Tenn. 1996)
(quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). Rather, a statute’s purpose must be
ascertained from the plain and ordinary meaning of its language. Westland West Community Ass’n
v. Knox County, 948 S.W.2d 281, 283 (Tenn. 1997). Finally, a court must not question the
“reasonableness of [a] statute or substitut[e] its own policy judgment[s] for those of the legislature.”
BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997). Thus, a court
must “presume that the legislature says in a statute what it means and means in a statute what it says
there.” Id. A statute, therefore, must be construed as it is written. See Jackson v. Jackson, 186
Tenn. 337, 342, 210 S.W.2d 332, 334 (1948).

         Applying these rules of statutory construction to Tenn. Code Ann. § 36-5-101(h), I find the
statute clear and unambiguous. Tennessee Code Annotated § 36-5-101(h) authorizes individuals to
enter into private agreements for child support and places the enforcement of such agreements in the
discretion of the trial court. When “the language contained within the four corners of a statute is
plain, clear and unambiguous, the duty of the courts is simple and obvious, ‘to say sic lex scripta,
and obey it.’” Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn. 1997) (quoting Miller v.
Childress, 21 Tenn. (2 Hum.) 320, 321-22 (1841)). Accordingly, in cases such as this, courts are not
at liberty to depart from the words of the statute. Id. Thus, under Tenn. Code Ann. § 36-5-101(h),
parties are permitted to enter into private agreements for child support, the enforceability of which
remains within the purview of the court. See Tenn. Code Ann. § 36-5-101(h) (1996). An
interpretation to the contrary would unduly restrict the statute’s intended scope. See Worley, 919
S.W.2d at 593.

        Despite our statute’s plain language, the majority contends that private agreements for child
support contravene public policy.2 “[T]he determination of public policy is primarily a function of
the legislature,” and the judiciary determines “public policy in the absence of any constitutional or
statutory declaration.” Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn. 1998). In promulgating Tenn.
Code Ann. § 36-5-101(h), our General Assembly has made clear that private agreements for child
support are consistent with the public policy and ensured that such agreements do not circumvent
the child support guidelines or our statutory provisions relating to child support. See Tenn. Code
Ann. § 36-5-101(h) (Supp. 1998) (“In any such agreement, the parties must affirmatively
acknowledge that no action by the parties will be effective to reduce child support after the due date

       2
         The majority cites several cases from other jurisdictions for the proposition that private
agreements for child support contravene public policy. These cases are distinguishable, both
factually and legally, from this case.

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of each payment, and that they understand that court approval must be obtained before child support
can be reduced, unless such payments are automatically reduced or terminated under the terms of
the agreement.”). Even if we should disagree with such a policy, it is not for this Court to question
the statute’s reasonableness or substitute our own policy judgments for those of the General
Assembly. BellSouth Telecomms., Inc., 972 S.W.2d at 673.

        Additionally, under Tenn. Code Ann. § 36-5-101(h), a court can refuse to enforce a private
agreement for child support. This discretion serves as a check against agreements which circumvent
the obligations set forth in the guidelines or our statutes.

        Indeed, as stated earlier, parents of non-marital children should be encouraged to enter into
private agreements to support their children. I am perturbed by the result created by the majority
opinion. Here, a father who never sought to evade parental responsibility as to paternity or support
agreed with the child’s mother to pay a sum certain every month for the support of the child. This
father faithfully and dutifully made these payments up to the child’s eighteenth birthday. What more
can society rightfully require of him?




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