                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                              SEPTEMBER 18, 2008 Session

 DONNA MICHELE LOCASTRO CORBIN v. RICHARD TODD CORBIN

                 Direct Appeal from the Chancery Court for Shelby County
                         No. D-27409    Arnold Goldin, Chancellor



                  No. W2008-00437-COA-R3-CV - Filed February 24, 2009


This appeal involves retroactive child support. The parties were divorced in 1996 and submitted a
marital dissolution agreement that was approved by the trial court. In 1999, the parties submitted
a consent order modifying the marital dissolution agreement to provide that the father would not pay
child support, but he would be responsible for providing health insurance coverage and paying for
one-half of uncovered medical, dental, orthodontic, and optical expenses. The consent order was
approved by the trial court. In 2006, the mother sought to have the consent order set aside on the
basis that it was void as against public policy, and she sought an award of retroactive child support
to the date of the 1999 consent order. The trial court granted retroactive child support only to the
date of the mother’s petition seeking such support. Mother appeals, claiming that retroactive child
support should be awarded to the date of the 1999 consent order. We affirm.


    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

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

Richard F. Vaughn, Collierville, TN, for Appellant

William Bryan Penn, Memphis, TN, for Appellee




                                            OPINION
                               I. FACTS & PROCEDURAL HISTORY

        Richard Corbin (“Father”) and Donna Corbin (“Mother”) were married in 1986. They had
a son in 1987 and a daughter in 1990. The parties were divorced in October of 1996, and the trial
court approved a marital dissolution agreement (“MDA”) submitted by the parties. The MDA
provided that Father and Mother would have “joint custody” of the parties’ children, but Mother
would be their primary caretaker. Specifically, the children would reside with Mother, but visit with
Father every other weekend, every Wednesday evening, on certain holidays, and for one month
during the summer. The MDA provided that Father would pay $495 per month in child support to
Mother.

        Soon after the divorce, on January 30, 1997, a consent order was entered which modified the
divorce decree and MDA. The consent order provided that the parties would continue to share “joint
custody” of the children, but Father would be the primary custodian of the parties’ son, and Mother
would be the primary custodian of their daughter. Each parent was to have specific visitation
privileges according to the schedule originally set out in the MDA. The consent order further
provided that neither parent would pay child support to the other. Both parties agreed to maintain
medical insurance coverage on both minor children until they reached the age of eighteen, and the
parties agreed that each would pay one-half of the children’s uncovered medical, dental, and
optometric expenses.

       In November of 1997, Mother filed a petition to modify the consent order, seeking an
increase in visitation rights with the parties’ son because Father was allegedly denying her visitation
with the son. On February 23, 1999, a second consent order modifying the final decree and MDA
was entered which provided:

       The custodial parent of Son will hereafter be [Mother], with [Mother] having sole
       custody of both minor children of the parties until they reach majority . . . . [T]he
       visitation of the said minor children with [Father] should be at the discretion of
       [Mother].
                . . . [N]either party will pay child support to the other, but both parents will
       continue to provide health and dental insurance coverage as previously agreed in the
       first consent order, with each parent to pay one-half of all uncovered expenses not
       otherwise covered by said insurance, including orthodontic expense . . . .

               [Mother] and [Father], in order to establish consistency in the life of Son,
       further agree that the matters of custody, visitation and support are hereby irrevocably
       decided as being what the parents agree are in the best interests of their children and
       should not hereafter be the subject of litigation.
The consent order was signed by both parties, their respective attorneys, and Chancellor Floyd Peete,
Jr.




                                                 -2-
        Nearly seven years later, on December 2, 2005, Father filed a petition to modify the consent
order, seeking custody of the parties’ then fifteen-year-old daughter. The parties’ son had turned
eighteen earlier that year. Father claimed that the daughter wanted to live with him, but Mother was
denying him visitation. Father described several recent arguments between Mother and the daughter
regarding visitation with Father over Thanksgiving, and he said that a few days later, the daughter
showed up at his house with suitcases full of her belongings. He said the police arrived thereafter
and returned the daughter to Mother’s house. Father claimed that the daughter was depressed and
doing poorly in school. He alleged that Mother often left the daughter at home alone and without
food. He also claimed that Mother physically hit the daughter in the chest on at least one occasion,
and he described various incidents involving verbal abuse of the daughter by Mother.

        Mother filed an answer claiming that the second consent order had irrevocably decided the
issues of custody, visitation, and support. However, on April 25, 2006, Mother filed a counter-
petition seeking to have the second consent order set aside on the basis that it was void as against
public policy. Mother sought an order requiring Father to pay retroactive child support for both
children from the date of the second consent order in 1999.

        On February 23, 2007, a third consent order was entered, granting temporary custody of the
daughter to Father. A hearing was held on the issue of child support on June 19, 2007, before
Chancellor Arnold Goldin. Relying on Cook v. Cook, No. M2005-02725-COA-R3-CV, 2007 WL
295238 (Tenn. Ct. App. Feb. 1, 2007), Chancellor Goldin concluded that the 1999 consent order was
not void. Accordingly, he concluded that Father should pay retroactive child support only to the date
of Mother’s counter-petition seeking child support on April 25, 2006. Chancellor Goldin also
concluded that Mother should pay child support to Father from the date of the third consent order
granting custody of the daughter to Father.

        The trial court entered an order referring the matter to a divorce referee for specific
calculations regarding (1) the amount of child support owed by Father from April 25, 2006, the date
of Mother’s counter-petition seeking child support, to February 23, 2007, the date of the third
consent order granting temporary custody to Father; (2) the amount of child support owed by Mother
from February 23, 2007, when the third consent order was entered, until the daughter turned
eighteen; and (3) the amount of child support Father would have owed from the date of the second
consent order, February 23, 1999, to the date of the third consent order, February 23, 2007. An order
was subsequently entered providing that Father owed $6,238 from the date of Mother’s counter-
petition seeking support until Father obtained temporary custody of the daughter; Mother owed
$1,007 per month after Father obtained custody; and Father would have owed $85,406 in child
support from the date of the second consent order in 1999 until Father obtained custody of the
daughter in 2007.1


         1
             The calculations used to produce this figure are not in the record before us, and the parties do not mention
whether any deviation was applied to the presumptive amount. The record does not include any information regarding
the parties’ jobs or income levels, and it is not clear how much visitation Father actually had with the children following
the entry of the second consent order. It is undisputed that the children did continue to visit with Father.


                                                           -3-
       The trial court entered its final order on January 17, 2008, finding that the second consent
order entered in 1999 was not void. The court further found that it would be “unjust and
inappropriate” to require Father to pay retroactive child support to the date of the second consent
order. Father was ordered to pay Mother $6,238 for child support from the date that Mother sought
such support until the date that Father obtained custody of the daughter. Mother was ordered to pay
Father $1,007 per month from the date that Father obtained custody of the daughter until the
daughter turned eighteen. Mother timely filed her notice of appeal.

                                      II. ISSUE PRESENTED
       Mother presents the following issue for review, slightly restated:
       Was the second consent order void as against public policy because neither party was
       ordered to pay child support, and if so, did the trial court err in failing to award
       retroactive child support to the date of said consent order.

For the following reasons, we affirm the decision of the chancery court.
                                   III. STANDARD OF REVIEW
        We review a trial court’s conclusions of law under a de novo standard upon the record with
no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App.
1989)).

                                        IV. DISCUSSION

         In Tennessee, parents are legally obligated to support their minor children in a manner
commensurate with their own means and station in life. Richardson v. Spanos, 189 S.W.3d 720,
724 (Tenn. Ct. App. 2005) (citing Tenn. Code Ann. § 34-1-102(a); Wade v. Wade, 115 S.W.3d 917,
920 (Tenn. Ct. App. 2002)). Since 1984, “the process and criteria for ascertaining a parent’s child
support obligation has been governed by Child Support Guidelines promulgated by the Tennessee
Department of Human Services” in accordance with Tennessee Code Annotated section 36-5-101.
Id. at 724-25. The Child Support Guidelines, when properly applied, create a rebuttable presumption
of the proper award of child support. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005). Tenn.
Code Ann. § 36-5-101(e)(1)(A). A trial court may deviate from the presumptive amount of child
support, but when it does, it must “make a written finding that the application of the child support
guidelines would be unjust or inappropriate in that particular case, in order to provide for the best
interest of the child or children, or the equity between the parties.” Tenn. Code Ann. §
36-5-101(e)(1)(A). In addition, the court’s findings must state the amount of support that would
have been ordered under the child support guidelines and a justification for the variance from the
guidelines. Id.

        Tennessee Code Annotated section 36-5-101(j) provides that an agreement between parents
as to child support may be affirmed, ratified, and incorporated into the court’s decree. “This
subsection contemplates that the agreement: 1) will be in writing; 2) will be approved by a court; 3)
will be incorporated into a court order; and 4) will contain the parties’ acknowledgment that they


                                                -4-
may not alter the agreement without court approval.” Berryhill v. Rhodes, 21 S.W.3d 188, 191
(Tenn. 2000) (footnote omitted). Before approving a stipulation regarding child support, the trial
court must use the guidelines to review the adequacy of the parties’ stipulation. Tenn. Comp. R. &
Regs. 1240-2-4-.01(2)(b)(1)(i)-(ii) (2006).2 The stipulation must provide a justification for
deviation if it does not meet the guidelines. Id.

         The Middle Section of this Court recently noted the problems that may arise when parties
attempt to resolve issues of child support by agreement, and the Court explained the importance of
the trial court’s role when approving such agreements:

                 But for a few exceptions parenting plans are drafted by the parties and
        submitted to the trial court for approval. Thus, the fault, at least at first, for deficient
        parenting plans usually lies with the parties. Although the parties are usually authors
        of their own misfortune, it is a misfortune that also befalls the courts when one of the
        parties subsequently complains and we attempt to remedy the parties’ mess. It is for
        this and other reasons the trial courts must be vigilant gate-keepers to assure
        compliance with the applicable child support laws so the parties do not enter into
        invalid agreements which may pose a threat to the welfare of children or perpetuate
        a fraud upon others.

State ex rel. Woodard v. Woodard, No. M2004-01981-COA-R3-CV, 2006 WL 1343209, at *4
(Tenn. Ct. App. May 16, 2006). Once a child support order is entered, it is “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.” Tenn. Code Ann. § 36-5-101(f)(1). A child support order is not
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.” Id. In other words, a child support order is not retroactively modifiable; it may
be modified only as of the date a petition for modification is filed. Buettner v. Buettner, 183
S.W.3d 354, 358 (Tenn. Ct. App. 2005) (citing Tenn. Code Ann. § 36-5-101(a)(5)(2001); Rutledge
v. Barrett, 802 S.W.2d 604, 606 (Tenn. 1991)).

        On the other hand, “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.” Witt v. Witt, 929 S.W.2d 360, 363 (Tenn.
Ct. App. 1996). In Witt, the parties stipulated in their marital dissolution agreement that the child
born during their marriage was not fathered by the husband, and the MDA stated that the wife
“hereby waives any and all child support payments which would be due and owing” by the husband.
Id. at 361. The parties later discovered that the husband was the child’s father, and the trial court
set aside the MDA provisions relating to paternity. Id. The Court of Appeals affirmed, holding that
“the original provisions of the marital dissolution agreement relating to paternity and child support



        2
            These requirements were previously located at Tenn. Comp. R. & Regs. 1240-2-4-.02(4) (1994).


                                                       -5-
are void as against the public policy of this state and [] the court may, sua sponte, set aside a void
order or a void agreement incorporated within an order or decree.” Id. at 362.

         In Witt, the Court did not discuss the issue of retroactive child support. However, in other
cases where an order has been declared void for failure to require the payment of child support,
courts have awarded retroactive support to the date of the void order. For example, in State ex rel.
Wrzesniewski v. Miller, 77 S.W.3d 195, 196 (Tenn. Ct. App. 2001), the parties had submitted an
agreed order after their divorce which stated, “Due to the parties current economic situation, child
support shall not be ordered and the state guidelines shall not apply.” The agreed order also provided
that it was “final and binding” as to custody and child support. Id. Approximately one year later,
the father filed, through the state, a petition seeking current and retroactive child support. Id. The
Court of Appeals affirmed the trial court’s decision to award retroactive child support, stating, “The
duty of support cannot be permanently bargained away; agreements not to seek future increases in
child support are likewise void as against public policy.” Id. (citing Berryhill, 21 S.W.3d at 193).3

        In State ex rel. Flatt v. Flatt, No. W2007-01376-COA-R3-CV, 2008 WL 794521, at *2
(Tenn. Ct. App. Mar. 27, 2008), the parties’ marital dissolution agreement provided that the father
would not have to pay child support until the parties sold one of their real properties. Six weeks after
the divorce, the mother filed a petition to set aside the final decree because the father was not paying
child support. Id. at *3. However, the trial court refused to require the father to pay child support
until the house sold. Id. at *4. On appeal, we held that the provision of the decree allowing the
father to avoid paying child support indefinitely was void, and we remanded the case for a
determination of retroactive child support from the date of the divorce decree. Id; see also Curry
v. Curry, No. M2007-02446-COA-R3-CV, 2008 WL 4426895, at *12 (Tenn. Ct. App. W.S. Sept.
18, 2008) (“Mr. Curry is obligated to support the minor child and any agreement between the parties
to relieve that obligation (even short-term) is void, ab initio, as it usurps the child’s right to the
support.”).

         In Smith v. Smith, No. M2000-02186-COA-R3-CV, 2001 WL 1035174, at *11 (Tenn. Ct.
App. W.S. Sept. 11, 2001), however, retroactive support was only ordered from the date when the
petition seeking such support was filed. Following the parties’ divorce, an agreed order was entered
providing that the mother would have sole custody of the parties’ child. Id. at *1-2. The agreed
order did not address child support, but it did provide that the father would pay $35,000 into a
college fund for the child. Id. at *2. Twenty months later, the mother filed a petition to modify
regarding child support. Id. The trial court found that the agreed order was void as against public
policy and ordered the husband to pay child support, but the court refused to order retroactive child
support. Id. On appeal, we affirmed the trial court’s finding that the agreed order was void. Id. at
*6. We concluded that the trial court should have awarded retroactive child support but instructed
the trial court on remand to award such support only retroactive to the date of the mother’s filing of


         3
           In the case before us, neither party on appeal seeks to enforce the provision of the consent decree stating that
custody and visitation issues were “irrevocably decided.” This provision is clearly void and unenforceable, and the trial
court correctly proceeded to consider the parties’ petitions to modify the decree.


                                                           -6-
the petition to modify. Id. at *11; see also Chadwell v. Chadwell, No. M1999-00675-COA-R3-CV,
2000 WL 688715, at *3 (Tenn. Ct. App. 2000) (awarding retroactive child support on appeal, but
only from the date of the final hearing in the trial court).

         The trial court in this case relied on Cook v. Cook, No. M2005-02725-COA-R3-CV, 2007
WL 295238 (Tenn. Ct. App. Feb. 1, 2007), when holding that retroactive child support should only
be awarded to the date of Mother’s counter-petition seeking child support. In Cook, the parties’
marital dissolution agreement, entered in 2001, provided that the parties’ children would reside with
the mother during the week and with the father on weekends. Id. at *1. However, it also provided
that the mother would pay the father $400 per month in child support. Id. In 2005, the mother filed
a petition seeking to have the previous order declared void as against public policy because it
required the primary residential parent to pay child support to the non-custodial parent. Id. at *2.
The mother sought child support retroactive to the date of the 2001 decree. Id. The trial court held
that the 2001 order was not void, and it awarded the mother child support only retroactive to the date
of her petition seeking child support. Id. On appeal, the Court began by noting that the mother’s
petition to modify the 2001 divorce decree constituted a collateral attack against the decree rather
than a direct appeal of the decree. Id. at *3. The Court then framed the issue before it as “whether
the 2001 Final Decree of Divorce, and specifically the child support award therein, was void.” Id.
The Court explained that there is a “distinction between a void judgment, which is subject to
collateral attack, and a voidable judgment, which is not subject to collateral attack.” Id. “[A] divorce
decree is void and subject to collateral attack only where the trial court lacks general jurisdiction of
the subject matter, rules on an issue wholly outside of the pleadings, or lacks jurisdiction over the
party complaining.” Id. at *3 (quoting Gentry v. Gentry, 924 S.W.2d 678, 680-81 (Tenn. 1996)).
Because the trial court in Cook had subject matter and personal jurisdiction, and did not rule on an
issue outside the pleadings, the 2001 decree was not void. Id. at *4. In addition, the fact that the
decree required the primary residential parent to pay child support did not render it void ab initio.
Id. at *4, n.10. The Court further noted that a trial court’s failure to provide a written explanation
for a deviation from the guidelines “will not operate to void a final order.” Id. Thus, the Court of
Appeals affirmed the trial court’s award of retroactive child support only from the date of the
mother’s petition seeking such support. Id. at *5.

         The same approach was utilized by the Court in State ex rel. Woodard v. Woodard, No.
M2004-01981-COA-R3-CV, 2006 WL 1343209 (Tenn. Ct. App. May 16, 2006). Pursuant to the
parenting plan entered in the parties’ divorce proceedings, the mother and father would share
parenting time. Id. at *1. The parenting plan provided that neither party would pay child support
to the other, but the father would pay for the children’s health insurance and one-half of the
uncovered medical, dental, and orthodontic costs. Id. Approximately a year after the divorce, the
State filed a petition on behalf of the mother seeking retroactive child support. Id. at *2. The State
contended that the parenting plan was void as a matter of law because it did not set child support or
comply with the requirements for deviation. Id. at *3. The Court of Appeals rejected this argument,
stating that the father was not effectively relieved of his duty to pay child support because he was
required to provide medical insurance and to reimburse the mother for half the uncovered medical
and dental expenses. Id. Again, the Court emphasized that it was “important to understand the


                                                  -7-
procedural posture of this appeal. This appeal is not a direct appeal of the 2001 Parenting Plan[.]”
Id. The Court described the threshold for setting aside the “now final 2001 Parenting Plan” as “very
high.” Id. at *4. Because the father was not effectively relieved of his child support obligation, the
Court found “no justification to declare the 2001 Parenting Plan void, as we did in Witt, 929 S.W.2d
360[.]” Id. In addition, the Court found it “immaterial that the record [did] not provide a
satisfactory explanation justifying a deviation from the Guidelines to the extent Father’s child
support obligation is limited to insurance and reimbursement of medical and dental expenses, while
his income is triple that of Mother.” Id. Therefore, the Court affirmed the trial court’s decision to
dismiss the State’s petition for retroactive child support. Id; see also Frazier v. Frazier, 72 S.W.3d
333, 336-37 (Tenn. Ct. App. 2001) (discussing the difference between void and voidable judgments
when asked to set aside a divorce decree’s provision regarding child support).

        Applying all these principles to the case at bar, we conclude that the trial court did not err in
awarding retroactive child support only from the date of Mother’s counter-petition to modify the
consent order. The second consent order entered by the parties in 1999 was not void for lack of
jurisdiction or for ruling on an issue outside the pleadings. Furthermore, the consent order was not
void based on the fact that it only required Father to pay health insurance, dental, orthodontic, and
optical expenses. See Woodard, 2006 WL 1343209, at *3. This is not a case where a parent was
completely relieved of responsibility toward the child, as in Witt and Wrzesniewski. See Cook,
2007 WL 295238, at *2, n.6 (explaining the Court’s previous opinion in Witt).

       Father argued on appeal that if this Court ruled in his favor, he should be awarded his
attorney’s fees on appeal pursuant to the following provision in the MDA:

        [I]n the event that any litigation ensues concerning any of the terms of this
        Agreement at any time, then the prevailing party shall have the attorney fees incurred
        by said prevailing party in said litigation paid by the losing party[.]

Both consent orders modifying the MDA provided that any provisions of the MDA that were not
modified or amended by the consent order were affirmed. Therefore, we award Father his attorney’s
fees on appeal as provided by the MDA and remand for determination of an appropriate fee.




                                          V. CONCLUSION




                                                  -8-
       For the aforementioned reasons, we affirm the decision of the chancery court. Costs of this
appeal are taxed to the appellant, Donna Michele Locastro Corbin, and her surety, for which
execution may issue if necessary.



                                                     ___________________________________
                                                     ALAN E. HIGHERS, P.J., W.S.




                                               -9-
