                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                   October 14, 2009 Session

                LANA WALTON LUSTER v. KENNETH WALTON

                   Direct Appeal from the Circuit Court for Shelby County
                          No. 141808     Robert L. Childers, Judge



                  No. W2008-02167-COA-R3-CV - Filed November 19, 2009


This is a post-divorce child support modification case. The trial court relied upon the parties’ private
agreement to modify child support, but failed to determine if the amount agreed to be paid complied
with the Tennessee Child Support Guidelines. Vacated and remanded.

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

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

Rachael Emily Putnam, Kay Farese Turner, Memphis, TN, for the Appellant, Lana Walton Luster.

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, TN, for the Appellee, Kenneth Walton.

                                              OPINION

        Appellant Lana Wilson-Walton Luster and Appellee Kenneth Walton were divorced by Final
Decree entered on or about September 4, 1994 (nunc pro tunc to July 6, 1994). The parties entered
into a Marital Dissolution Agreement (“MDA”), which agreement was approved by the trial court
and incorporated by reference into the Final Decree of Divorce. Concerning child support, the MDA
states:

               Husband shall pay Wife as child support the sum of $624.54 based
               upon his income earned from his current employment.... Both parties
               mutually acknowledge that no action between them will be effective
               to reduce child support payments, and they understand that Court
               approval must be obtained before child support can be reduced or
               terminated, unless such support payments are, by this agreement,
               automatically terminated or reduced.
        Subsequent to the divorce, Ms. Luster filed a petition for contempt against Mr. Walton.
Pursuant to this petition, Mr. Walton was found in contempt for failure to pay child support. In
1996, Mr. Walton filed a petition for modification of final decree of divorce, requesting that child
support be reduced as he was unemployed at that time. Pursuant to that petition, the trial court
temporarily deferred a portion of the child support that he owed until he became employed or until
September 1, 1996. On February 6, 1997, the parties settled another petition for contempt by consent
order, wherein it was stated that Mr. Walton paid the arrearage of child support due and agreed to
pay Ms. Walton’s attorney fees incurred as a result of the second petition for contempt.

        On February 24, 1997, Mr. Walton filed a Petition to Modify the Previous Order of the Court.
By his Petition, Mr. Walton asked the court for a reduction in his child support obligation based upon
his alleged inability to find employment comparable in pay to the position he held at the time of the
entry of the MDA. The Petition does not address Mr. Walton’s current employment or income.

         On October 7, 1999, Ms. Luster filed a petition for modification of the final decree of divorce
and petition for injunction and restraining order. Therein, she avers that Mr. Walton “is currently
paying child support in the amount of $411 per month.” Ms. Luster asks the court to modify the
visitation schedule and to award child support pursuant to the Tennessee Child Support Guidelines.

        By Order of February 3, 2006, the trial court dismissed Ms. Luster’s October 7, 1999 petition
for lack of prosecution. Significantly, while Ms. Luster’s petition for modification was dismissed,
Mr. Walton’s petition, which was filed two years before Ms. Luster’s, was not. On March 3, 2006,
Ms. Luster filed a motion to set aside the order of dismissal. In her motion, Ms. Luster states that,
“[p]rior to the petition being filed, [Mr. Walton] had obtained a decrease in his child support
obligation from $624.54 per month to $411.00 per month.” However, there is no indication in the
record that Mr. Walton’s child support obligation was, in fact, reduced by the trial court. On January
16, 2008, the trial court denied Ms. Luster’s motion to set aside the order of dismissal.

        On January 23, 2008, Ms. Luster filed a third petition for civil contempt and modification
of child support, wherein she states, in relevant part, that:

               3. Mother would show unto this Honorable Court that Father has
               knowingly and willfully violated this Court’s Orders and failed to pay
               Mother the proper amount of child support since October 1999.
               Mother would show that Father has willfully and knowingly paid her
               the sum of $411.00 per month despite having full knowledge that said
               sum was not the amount which he agreed to pay and which he was
               ordered by this Court to pay....

               *                                    *                             *

               5. Mother would further show that she is in need of a modification
               of the child support amount which Father is currently obligated to pay


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               based upon his income increasing to the extent that a significant
               variance exists in the amount of the income which he is earning....
               Mother would ask this Honorable Court to modify Father’s child
               support obligation from $624.54 to the sum of $948.00 per month to
               reflect Father’s current child support obligation based upon his
               current income from all sources pursuant to the Tennessee Child
               Support Guidelines.

         On April 15, 2008, Mr. Walton filed a response to the Ms. Luster’s third petition for
contempt and modification of child support, along with a counter-petition for contempt, wherein he
states, in relevant part:

               3. Father denies that he has knowingly or willfully violated this
               court’s order by failure to pay the proper amount of child support
               since October of 1999. The MDA states that the amount of child
               support obligation is $624.55. However, in the Petition to Modify
               filed by Mother on October 7, 1999, she stated that the Father was
               “currently paying child support in the amount of $411.00 per
               month....” Furthermore, both parties apparently had been advised and
               both believed that the original child support order had been
               previously reduced either in Juvenile Court or in Circuit Court.
               Father believes that he was advised by prior counsel that his child
               support obligation had been decreased from the $624.54 amount to
               $411.00. In addition, supporting correspondence and pleadings
               drafted by Mother/petitioner’s counsel...state specifically that the
               child support amount was reduced to $411.00 per month. Both
               parties believed and understood that this was the correct amount of
               child support. Father has detrimentally relied upon the mutual belief
               of both he and Mother that the amount had been in fact, properly
               reduced by consent of the parties. Because the parties were mutually
               mistaken, Mother should now be estopped from claiming that Father
               should have paid a different amount.

(Emphasis in original) (citations to record omitted).

        On June 11, 2008, Mr. Walton filed a motion for diminution of the record and/or for entry
of an order nunc pro tunc, wherein Mr. Walton again alleges that the parties agreed to reduce his
child support obligation to $411.00 per month. Specifically, Mr. Walton states that:

               [A]s a result of his February 24, 1997 Petition, Father’s child support
               was reduced to four hundred and eleven dollars ($411) per month.
               Father has faithfully paid this amount each and every month since;
               however, no Order reflecting same appears in this Honorable Court’s


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               record.

               *                                    *                             *

               10. Father respectfully submits that either by inadvertence, omission
               or mistake of either the prior counsel for the parties or the clerk of
               this Honorable Court, the Order resulting from Father’s February
               1997 reduction petition is missing from the record.

               *                                    *                              *

               Father respectfully submits that this Honorable Court should enter an
               Order in diminution of the record Nunc pro Tunc to 1997 reflecting
               the reduction of child support to $411 per month.

               13. Alternately, Father respectfully submits that his February 24,
               1997 Petition for a decrease in child support is still pending, and that
               this Honorable Court has the authority to reduce child support
               retroactive to the filing date of same.

        On June 30, 2008, the trial court heard Ms. Luster’s third petition for contempt and
modification. At this hearing, the trial court inquired as to the existence of an agreement between
the parties to modify Mr. Walton’s child support obligation. The case was continued to August 15,
2008 in order to give the parties time to inquire with prior counsel to determine whether any order
was, in fact, entered concerning the downward modification of Mr. Walton’s child support
obligation. No such order was found. On September 12, 2008, the trial court entered its Order on
Mr. Walton’s Petition to Modify Final Decree of Divorce, which states, in pertinent part, as follows:

               It appears to the Court that the parties, through counsel in 1997,
               agreed to reduce [Mr. Walton’s] child support obligation from
               $624.54 per month to $411.00 per month, to be effective as of the
               date of the filing of the Petition.
                       IT IS, THEREFORE, ORDERED, ADJUDGED AND
               DECREED that [Mr. Walton’s] child support obligation be, and the
               same is hereby, reduced to $411.00 per month, effective March 23,
               1997.

This Order further states that it is “Nunc Pro Tunc [to] March 3, 1997.” Ms. Luster appeals from
this order and raises three issues for review as stated in her brief:

               1. Did the trial court err in finding that the parties had entered into a
               private agreement in 1997 modifying Mr. Walton’s child support
               obligation?


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                2. Did the trial court err in affirming the private agreement of the
                parties which it found to have existed absent an analysis and
                calculation of what Mr. Walton’s child support obligation would have
                been based upon the application of the Tennessee Child Support
                Guidelines?

                3. Did the trial court err in its application of the doctrine of Judicial
                Estoppel?

                                         Private Agreement

       Because this case was tried by the court, sitting without a jury, we review the question of
whether the parties entered into a private agreement to modify Mr. Walton’s child support obligation
de novo upon the record with a presumption of correctness of the findings of fact by the trial court.
Unless the evidence preponderates against the findings, we must affirm, absent error of law. See
Tenn. R. App. P. 13(d).

         Ms. Luster asserts that the trial court erred in basing its decision to enter an order, nunc pro
tunc to the date of filing of Mr. Walton’s 1997 petition to modify, upon its finding that the parties
had entered into a private agreement to modify the ordered support. Specifically, Ms. Luster asserts
that, in so doing, the trial court directly violated the holding in Berryhill v. Rhodes, 21 S.W.3d 188
(Tenn. 2000). Mr. Walton counters that the trial court did not, in fact, find that there was a private
agreement. Rather, Mr. Walton contends that its decision to enter the nunc pro tunc order was based
upon testimony supporting Mr. Walton’s petition and negotiations between the parties’ respective
attorneys; consequently, Mr. Walton contends that Berryhill was not triggered in this case. In
support of his argument, Mr. Walton relies upon the following portion of the trial court’s statement
from the bench:

                THE COURT: So it appears to the Court that the agreement of the
                parties to reduce his support to $411–$411 even was not a private
                agreement. It was done pursuant to the petition filed by the father.

                And only because of the inadvertence of the attorneys, either attorney,
                to enter an order pursuant to that agreement which the mother
                acknowledges in the March 3rd, 2006, motion, although she doesn’t
                call it [an] agreement. She says that the respondent had obtained a
                decrease in his child support. Well, it appears obvious to me from
                everything I’ve heard in this case that he obtained the decrease by
                agreement based on Mr. McGhee’s testimony to the Court. Given
                that, I think that the father’s motion for diminution of the record
                and/or for entry of an order nunc pro tunc is in order.



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        Despite the trial court’s statements, as our Supreme Court has noted: “the court speaks
through its order, not through the transcript.” In re Adoption of E.N.R., 42 S.W.3d 26, 31 (Tenn.
2001). The court’s order states “that the parties, through counsel in 1997, agreed to reduce [Mr.
Walton’s] child support obligation from $624.54 per month to $411.00 per month, to be effective
as of the date of the filing of the Petition.” From our reading, the order clearly indicates that the trial
court found a private agreement between these parties to reduce Mr. Walton’s child support
obligation pursuant to Mr. Walton’s Petition to Modify Final Decree of Divorce. Moreover, the
record supports this conclusion. At the August 15, 2008 hearing, Ms. Luster’s prior counsel, Charles
McGhee, testified that, due to his experiencing a heart attack at or near the time that Mr. Walton filed
his petition for modification in 1997, his law partner, William Monroe, took over the matter. Mr.
McGhee produced a letter authored by Mr. Monroe regarding the petition for modification filed by
Mr. Walton. The letter states, in relevant part, that:

                  [W]e will agree that the modification in child support shall be
                  retroactive to the date of [Mr. Walton’s] petition. We will also agree
                  that your client will pay 21% of his current gross income, less taxes
                  and social security, plus the arrearages due....

        Furthermore, Ms. Luster’s 1999 petition for modification, supra, acknowledges the fact that
Mr. Walton was paying $411 per month in child support at that time. Although the word
“agreement” is not used in the 1999 petition, it is nonetheless apparent that the parties were operating
under terms different from those ordered by the trial court in the final decree of divorce. Because
there is no evidence in the record that the trial court ever approved or, in fact, even considered the
parties’ unilateral decision to proceed with Mr. Walton paying only $411 of the $624.54 amount
ordered, we can only conclude that the parties modified the ordered child support through their own,
private agreement. Therefore, we must affirm the trial court’s finding that the parties had agreed to
reduce the child support as the evidence does not preponderate against this finding.

        Although the trial court did not err in finding that there was an agreement between the parties
to modify the ordered support, that finding is not dispositive. Parties may not enter into private
agreements to avoid complying with child support obligations set forth in statute and in the
Tennessee Child Support Guidelines. Berryhill v. Rhodes, 21 S.W.3d 188, 191–92 (Tenn. 2000).
Whether the parties had an agreement or not, the trial court was required to look beyond that
agreement in making its decision to modify the ordered child support. From our review of the
transcript and the trial court’s order, it appears that the court relied solely upon the parties’ agreement
in reaching its decision to modify support, nunc pro tunc to 1997.1 In short, while a trial court may


        1
            As discussed in detail above, at the time of the hearing in this case, Mr. W alton’s 1997 petition for
modification was still viable as it had not been dismissed for lack of prosecution. Tenn. Code Ann. § 36-5-101(f)(1)
provides as follows:

                  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. Such judgment shall not be subject to

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consider private agreements to modify child support, in addition, it must apply the applicable
standard for the modification of child support as provided in the child support guidelines.

                            Applicable Standard for Modifying Child Support

        Tenn. Code Ann. § 36-5-101(e)(1)(A) instructs the trial court to apply the child support
guidelines, as set forth in the rules and regulations of the Department of Human Services, as a
rebuttable presumption in determining the amount of child support. See Tenn. Comp. R. & Reg. §
1240-2-4-.01 (2006). Even with the adoption of the 2005 child support guidelines, trial courts retain
a certain amount of discretion in their decisions regarding child support, which decisions we review
under an abuse of discretion standard. Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App.
2005). A trial court abuses its discretion when it has applied an incorrect legal standard or has
reached a decision which is against logic or reasoning that caused an injustice to the party
complaining. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

        Upon considering a petition to modify child support, the trial court must first determine
whether there is a significant variance between the obligor's current obligation and the amount set
by the guidelines. See Tenn. Code Ann. § 36-5-101(g);2 Kaplan v. Bugalla, 188 S.W.3d 632, 636
(Tenn. 2006). The parent seeking to modify a child support obligation has the burden of proving that
a significant variance exists. Wine v. Wine, 245 S.W.3d 389, 394 (Tenn. Ct. App. 2007). “[A]
significant variance is defined as at least a fifteen percent (15%) change between the amount of the
current support order (not including any deviation amount) and the amount of the proposed
presumptive support order....” Tenn. Comp. R. & Reg. § 1240-2-4-.05(2)(c). After finding a
significant variance, the trial court must determine the amount of child support to be paid in
accordance with the child support guidelines. The amount of child support ordered may deviate from
the guidelines, but the order must state the reasons for this deviation. Tenn. Code Ann. § 36-5-
101(e)(1)(A) (2008). Parties may agree to an amount greater than the guideline amount or may agree
to a different method of calculating child support, “as long as the resulting child support meets or
exceeds the amount mandated under the Guidelines.” Kesser v. Kesser, 201 S.W.3d 636, 642 (Tenn.


                    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....

         Under this statute, the trial court was within its authority to modify support going back to the date of Mr.
W alton’s 1997 petition.

         2
             Tenn. Code Ann. § 36-5-101(g)(1) provides in part that:

                    Upon application of either party, the court shall decree an increase or decrease of
                    support when there is found to be a significant variance, as defined in the child
                    support guidelines established by subsection (e), between the guidelines and the
                    amount of support currently ordered, unless the variance has resulted from a
                    previously court-ordered deviation from the guidelines and the circumstances
                    that caused the deviation have not changed.

                                                           -7-
2006)(citing Tenn. Code Ann. § 36-5-101). The trial court must, however, make the finding that the
agreement meets the minimum obligation. Id.

         This statutory scheme is mandatory, and a trial court abuses its discretion if it fails to comply
with it. As noted above, this record is devoid of any evidence from which we could conclude that
the trial court utilized the child support guidelines to determine the amount of child support to be
paid by Mr. Walton. It appears that the trial court’s sole basis for modifying the ordered support in
this case was the existence of the parties’ private agreement. Consequently, we can only conclude
that the trial court failed to apply the correct legal standard in this case, and in so doing erred in
reducing Mr. Walton’s child support obligation. Because of this error, all other issues are
pretermitted. Accordingly, we vacate the trial court’s order on Mr. Walton’s petition to modify and
remand for proper determination of child support in accordance with the child support guidelines.

                                              Conclusion

       For the foregoing reasons, we vacate the order of the trial court and remand for such further
proceedings as may be necessary and consistent with this Opinion. Costs of this appeal are assessed
one-half to Appellant Lana Wilson-Walton Luster and her surety and one-half to the Appellee,
Kenneth Walton, for which execution may issue if necessary.




                                                         ___________________________________

                                                         J. STEVEN STAFFORD, J.




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