                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
______________________________________________________________________________

ZELLA BALENTINE,                                 Hardin Juvenile No. J-8792
                                                 C.A. No. 02A01-9508-JV-00190
       Plaintiff,
                                                 Hon. Max Seaton, Judge
v.

SIMON WHITE
IN RE: PATERNITY OF ASHLEY
ARRON BALENTINE, a minor,
                                                                FILED
                                                                 October 9, 1996
       Defendant.
                                                                Cecil Crowson, Jr.
T. VERNER SMITH, Jackson, Attorney for plaintiff.               Ap pellate Co urt C lerk

W. LEE LACKEY, Savannah, Attorney for defendant.

REVERSED IN PART AND REMANDED

Opinion filed:
______________________________________________________________________________

TOMLIN, Sr. J.

       Zella B alentine (“plaintiff”) filed a petition in the Juvenile Court of Hardin

County seeking to have that court declare Simon W hite (“defendant”) to be the natural

father of the parties’ minor child, Ashley Balentine. The Hardin County General

Sessions Court, in its role as Juvenile Court, found defendant to be the father of the

child and awarded plaintiff retroactive child support dating back to November 1, 1992.

The sole issue on appeal is whether the trial court abused its discretion by not awarding

retroactive child support back to the date of the child’s birth. For the reasons stated, we

find that the trial court did abuse its discretion. Accordingly, we reverse as to this issue

and remand this cause to that court for further proceedings.


       The vast majority of the facts in this case are not in dispute. The record is clear

that plaintiff and defendant had ongoing sexual relations from 1965 to 1977. Upon

learning that she was pregnant she advised defendant of her condition and asserted that

he was the child’s father. Plaintiff gave birth to the parties’ son, Ashley, on October

16, 1977. Following the birth of the child there was little contact between the parties

for the next fourteen years. In 1991, plaintiff approached defendant about providing

financial support for Ashley. Defendant indicated that he would like to establish ties

with the child and in the next nine months beginning November 1, 1992 sent a total of
nine checks for $100.00 each to plaintiff.


       In July, 1993 plaintiff filed her petition seeking to have defendant declared

Ashley’s natural father. A blood test taken by order of the court showed that the

relative chance of defendant being Ashley’s father was 99.99%. The trial court found

defendant to be the natural and biological father of the parties’ child as well as being

obligated to contribute to the support and maintenance of the child. The court found

that defendant was unemployed and at that time had no earned income. The court

ordered defendant to pay m onthly child support in the amount of $130.00 per m onth

based on the Tennessee Child Support Guidelines (“TCSG”) as set out for minimum

wage earnings. The court also ordered defendant to pay a $1,570.00 arrearage, based

upon the findings that defendant had begun making support on November 1, 1992,

giving defendant credit for the payment of $900.00 from November 1992 to July 1993.


       Plaintiff filed a post-judgment motion seeking a new trial or a new hearing,

alleging that the court erred in setting child support at only $130.00 a month. After

conducting a hearing, the trial court found that based upon defendant’s tax returns for

the years 1991 to 1993, defendant’s annual gross income for the purposes of the TCSG

was $15,000.00. The court increased defendant’s child support payments from $130.00

to $216.00 per m onth retroactive to M ay 31, 1994, the date of the original paternity

order. The trial court once again denied plaintiff’s request for retroactive child support

back to the date of the child’s birth. This appeal followed.


       A father’s responsibility for support of a child of his born out of wedlock is

spelled out in T.C.A. § 36-2-102 (1991). This code section reads as follows:


       The father of a child born out of wedlock is liable for the necessary
       support and education of the child. He is also liable for the child’s funeral
       expenses. He is liable to pay for the expenses of the m other’s
       confinement and recovery, and is also liable to pay such expenses,
       including counsel fees, in connection with her pregnancy as the court in
       its discretion may deem proper.


       T.C.A. § 36-2-108 (Supp. 1995) permits the juvenile court to make a retroactive

award of support prior to the entry of the decree of paternity under appropriate


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circumstances. It states:


          (a) If the finding is against the defendant, the court shall make an order of
          paternity and support, declaring paternity and for the support and
          education of the child, and may order a change of name.

          (b) The order of paternity and support shall specify who is to have custody
          of the child, and the sum to be paid monthly or otherwise, through the
          clerk of the court, until the child reaches the age of majority, and as
          otherwise provided by statute. In addition to providing for the support
          and education, the order shall also provide for the payment of the
          necessary expenses incurred by or for the mother in connection with her
          confinement and recovery; for the funeral expenses if the child has died;
          for the support of the child prior to the m aking of the order of paternity
          and support; and such expenses in connection with the pregnancy of the
          mother as the court may deem proper. The court shall set a specific
          amount which is due in each m onth to be paid in one (1) or more
          paym ents as the court orders. (emphasis added).


          In State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn. 1991), the

suprem e court affirmed the judgment of this court in a case presenting similar facts. In

Coleman, following an intimate relationship between the child’s mother and her lover

for a period of some three (3) years, the mother gave birth to a child, which she

contended was the lover’s child as well. The mother’s suit was not brought until some

fourteen (14) years later by the local district attorney’s office. After further delays and

two (2) separate blood tests, both of which showed without question that the mother’s

lover w as the child’s father, the juvenile court entered a decree of paternity in

November, 1988. The judge ordered child support retroactively only to the date that the

results of the first blood test were available establishing the identity of the child’s

father.


          This court, interpreting the support provisions of the paternity statute, held to the

contrary, holding that the father was responsible for child support “from and after its

birth.” In affirming this court, the supreme court stated:



          The Court of Appeals, relying upon the emphasized language in § 36-3-
          108, held correctly the father’s responsibility for support of a child of his
          born out of wedlock arises at the date of the child’s birth. Because the
          statute also permits the juvenile court to make a retroactive award for
          expenses incurred in the support of the child prior to the entry of the
          paternity decree, such an award can be made back to the date of the
          child’s birth, under appropriate circumstances. Obviously, the juvenile

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       judge has broad discretion to determine the amount of such a retroactive
       award, as well as the manner in which it is to be paid.

       What the juvenile judge lacks is discretion to limit the father’s liability for
       child support in an arbitrary fashion that is not consistent with the
       provisions in T.C.A. § 36-2-102 and § 36-2-108. For example, nothing in
       those sections can be interpreted to restrict the father’s liability to the date
       when he knows for certain that the child in question is his. Such
       limitation not only amounts to judicial legislation, but also encourages the
       putative father to avoid legitim ately instituted court proceedings and to
       delay testing, as did the defendant in this case, in the hope of minimizing
       the ultimate support award.


       In the case under consideration the juvenile court’s only rationale for limiting

defendant’s liability for retroactive child support to November 1, 1992 was that this was

the date upon which defendant began making voluntary payments. As the Coleman

court stated, nothing in T.C.A. § 36-2-102 or § 36-2-108 permits a court to limit a

father’s liability to a date upon which he knows for certain or admits that the child is

his. In our opinion the juvenile court clearly abused its discretion by arbitrarily limiting

the date upon which retroactive child support payment was to begin.



       As did the Coleman court, we also reject defendant’s contention that plaintiff

should be denied the recovery of retroactive child support because she was guilty of

laches. In order to establish such a bar, m ore than mere delay must be shown. See

Murphy v. Emery, 629 S.W.2d 895, 897-98 (Tenn. 1982). The key element in

prevailing on the grounds of laches is prejudice to the other party. While defendant

contends that his child support paym ents will thus be greater because of petitioner’s

delay in bringing this paternity action, there has been no show ing of actual prejudice to

defendant. This contention is without m erit.


       The judgment of the trial court as to the award of retroactive child support is

reversed. This cause is remanded to the Juvenile Court of Hardin County for a hearing

on the sole issue of the am ount of retroactive child support to be awarded to plaintiff

from the date of Ashley’s birth in accordance with T.C.A. § 36-5-101(e)(1) (Supp.

1995). This court notes that the record in this case presently contains proof of

defendant’s income for the years 1991—1993, based upon his federal income tax



                                              4
returns. Upon remand the trial court should allow the plaintiff to put on proof as to

defendant’s income from 1977 to 1990 thereby ascertaining defendant’s annual gross

income for the purpose of the TCSG for these years. If the parties fail to produce

evidence of incom e for the years as noted, defendant’s incom e for these prior years

should be determ ined by imputing annual incom e under the TCSG (Tenn. C om p. R. &

Regs. tit. X, ch. 1240-2-4-.03(e) (1994)). The amount of the retroactive child support

and the manner in which it is paid is within the discretion of the trial court. We also

find plaintiff has waived recovery for expenses incurred in connection with her

pregnancy because no request for such reimbursement was made by her and in addition

there is no proof in the record to support such an award.


       Accordingly, we reverse the judgment of the juvenile court to the extent

hereinabove noted. This cause is remanded to that court for further proceedings not

inconsistent with this opinion. Costs on appeal are taxed to defendant, for which

execution may issue if necessary.



                                          ________________________________________
                                          TOMLIN, Sr. J.



                                          ________________________________________
                                          HIGHERS, J.             (CONCURS)



                                          ________________________________________
                                          LILLARD, J.             (CONCURS)




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