                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 October 1, 2012 Session

           ANNA RUTH COLLINS (EISENBERG) v. THE ESTATE
                      OF HARVEY L. COLLINS

                    Appeal from the Circuit Court for Knox County
                           No. C-5708    Bill Swann, Judge


            No. E2012-00079-COA-R3-CV-FILED-NOVEMBER 19, 2012


This is an action to collect child support ordered in the parties’ 1965 divorce decree. The
Trial Court held that the ten year statute of limitations contained in Tenn. Code Ann. § 28-3-
110(2) acted as a bar to this action and dismissed the case. Anna Ruth Collins (Eisenberg)
appeals to this Court. We affirm.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

Scott B. Hahn and Judith A. DePrisco, Knoxville, Tennessee, for the appellant, Anna Ruth
Collins (Eisenberg).

Larry C. Vaughan, Knoxville, Tennessee, for the appellee, the Estate of Harvey L. Collins.


                                         OPINION

                                        Background

               Anna Ruth Collins (Eisenberg) (“Mother”) and Harvey L. Collins (“Father”)
were divorced by a divorce decree entered in 1965. Pursuant to the divorce decree, Father
was ordered to pay $40 per week in child support. Mother filed an action in 1970 attempting
to collect child support, but the case was dismissed because Father could not be found and
served in Ohio.
               On February 9, 2011 Mother filed this action, a Petition for Child Support
Judgment, against the Estate of Harvey L. Collins (“Father’s Estate”). Mother’s petition
alleged, in part, that Father never paid child support, that the parties’ youngest child finished
high school in 1979, and that Father had died owning real property and a stock account worth
approximately $400,000. Mother’s petition sought a judgment against Father’s Estate for
unpaid child support in the amount of $1,636,469.37. Father’s Estate filed a motion for
summary judgment raising, among other things, a statute of limitations defense.

               After a hearing1 , the Trial Court entered its order on December 13, 2011
granting Father’s Estate summary judgment after finding and holding “that the instant
litigation was barred by the applicable statute of limitations as of 1989.” Mother appeals.

                                             Discussion

               Although not stated exactly as such, Mother raises one issue on appeal: whether
Tenn. Code Ann. § 36-5-103(g) can be applied retroactively so that the ten year statute of
limitations contained in Tenn. Code Ann. § 28-3-110(2) does not apply to the child support
matter involved in this case. Resolution of a statute of limitations issue involves statutory
interpretation. Construction of a statute and its application to the facts is an issue of law and,
therefore, our standard of review is de novo without any presumption of correctness given
to the Trial Court’s conclusions of law. Lavin v. Jordon, 16 S.W.3d 362, 364 (Tenn. 2000).

              Mother argues in her brief on appeal that “[b]ecause the legislature has
systematically amended statutes that foreclosed efforts to collect child support, Appellant
Mother now seeks a ruling from this Court providing that the statute of limitations at Tenn.
Code Ann. § 28-3-110(2), does not apply to case [sic] where judgments for past due child
support are sought, in order to clarify and settle this issue.” In support of this argument,
Mother relies, in part, upon Rutledge v. Barrett, 802 S.W.2d 604 (Tenn. 1991); Jordan v.
Jordan, 147 S.W.3d 255 (Tenn. Ct. App. 2004); Sandidge v. Brown, No. 03A01-9104-CV-
142, 1991 Tenn. App. LEXIS 709 (Tenn. Ct. App. Sept. 3, 1991), no appl. perm. appeal
filed; Attaway v. Attaway, No. E2000-01338-COA-R3-CV, 2001 Tenn. App. LEXIS 253
(Tenn. Ct. App. April 16, 2001), appl. perm. appeal denied Sept. 17, 2001; and Deck v.
Parrish, 1984 Tenn. App. LEXIS 3136 (Tenn. Ct. App. Aug. 29, 1984), no appl. perm.
appeal filed.




       1
         The case was first heard by a Magistrate and a Memorandum Opinion was entered finding that the
ten year statute of limitations did not apply to child support cases. The Magistrate’s opinion then was
appealed to the Circuit Court. The appeal now before us is from the decision of the Circuit Court.

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              These cases relied upon by Mother are distinguishable from the case now
before us on appeal. In the three more recent of the cases upon which Mother relies, i.e.,
Rutledge v. Barrett, Attaway v. Attaway, and Jordan v. Jordan, the courts apparently did not
have before them the specific issue now before us of whether Tenn. Code Ann. § 36-5-103(g)
can be retroactively applied so that the ten year statute of limitations contained in Tenn. Code
Ann. § 28-3-110(2) does not apply. This issue was not directly addressed by the courts in
those cases. As such, these cases are not controlling with regard to the issue now before us.
As for Sandidge v. Brown, and Deck v. Parrish, we disagree with their reasoning and instead
agree with the reasoning in a series of cases relied upon by Father’s Estate, as will be
discussed more fully below. Furthermore, as this Court stated in State of Tennessee ex rel.
Mitchell v. Johnson:

                As an earlier statement implies, there are some cases indicating that
         child support orders are not subject to a statute of limitations.2 However, as
         this court explained in Rodakis v. Byrd, 1992 Tenn. App. LEXIS 876, No.
         03A01-9206-GS-00202, 1992 WL 301312, at *2 (Tenn. Ct. App. Oct. 23,
         1992) (no Tenn. R. App. P. 11 application filed):

                          We have no quarrel with the result reached in the prior
                  cases. We do believe, however, that each of the cases must be
                  limited to its own circumstances. In each of the prior cases, the
                  defaulting parent sought to avoid payment of only that portion
                  of a judgment that accrued more than ten years before the action
                  was brought to enforce the judgment. The distinguishing feature
                  of this case is the failure of the custodial parent to bring an
                  action to enforce the judgment until more than fourteen years
                  had elapsed after the final payment under the judgment was due.
                  We find this difference to be significant.




         2
           A careful review of those cases, see footnote 4, indicates that they stand for the proposition that a defaulting
obligor parent cannot assert the ten year statute of limitations to prevent enforcement of that portion of a child support
obligation that was due more than ten years prior to the petition for enforcement. None involved an attempt to enforce
a child support order more than ten years after the covered child reached the age of majority. See also Basham v.
Basham, 1994 Tenn. App. LEXIS 401, No. 01-A-01-9402-GS-00047, 1994 W L 388281 (Tenn. Ct. App. Jul. 27, 1994)
(no Tenn. R. App. P. 11 application filed) (holding that the reasoning of Rodakis v. Byrd, 1992 Tenn. App. LEXIS 876,
No. 03A01-9206-GS-00202, 1992 W L 301312 (Tenn. Ct. App. Oct. 23, 1992) (no Tenn. R. App. P. 11 application
filed), did not apply because the parent in Basham was not relieved of payments until after the date the petition was
filed).



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State of Tennessee ex rel. Mitchell v. Johnson, No. M2002-00231-COA-R3-CV, 2003 Tenn.
App. LEXIS 711, at **12-13 (Tenn. Ct. App. Oct. 2, 2003), no appl. perm. appeal filed
(footnote in original but renumbered).

                 This Court addressed the same issue now before us in Frye v. Frye wherein we
stated:

                  Tenn. Code Ann. § 28-3-110(2) provides a ten year statute of
          limitations for “[a]ctions on judgments and decrees of courts of record of this
          or any other state or government.” This Court has pointed out that “absent a
          clear legislative mandate, child support judgments are subject to the defense
          of the statute of limitations as is ‘any other judgment’”. In re Estate of
          Meader, 1997 WL 672205 at *2, No. 03A01-9707-CH-00252 (Tenn. Ct. App.
          Oct. 30, 1997). In Anderson v. Harrison, 1999 WL 5057 at *3, No. 02A01-
          9805-GS-00132 (Tenn. Ct. App. Jan. 7, 1999), it was further stated that recent
          decisions have demonstrated a “growing acceptance” that the ten year statute
          of limitations applies to orders for child support. As discussed, infra, effective
          July 1, 1997, the legislature added Tenn. Code Ann. § 36-5-103(g), which
          provides that judgments for child support are enforceable “without limitation
          as to time.” Because the relevant events in the present case occurred prior to
          the effective date of Tenn. Code Ann. § 36-5-103(g), we hold that the ten year
          statute of limitations contained in Tenn. Code. Ann. § 28-3-110(2) applies to
          the present action to enforce these two judgments.

                  When the statute of limitations period begins to run depends on whether
          the child support arrearages have been reduced to judgment for a sum certain.
          If a party is seeking to enforce an ongoing order for child support and the
          arrearages have not been reduced to judgment for a sum certain, then the
          statute begins ro run when the last child support payment is supposed to have
          been made, which typically is when the child reaches the age of majority. See
          In re Estate of Meader, supra. In those cases where the arrearages for child
          support have been reduced to judgment for a sum certain, the custodial parent
          is required to bring the action for enforcement within ten years of obtaining the
          judgment. Anderson v. Harrison, 1999 WL 5057 at *3 (citing Vaughn v.
          Vaughn, 1988 WL 68062 at *4 (Tenn. Ct. App. July 1, 1988)). This distinction
          was recently addressed by the Middle Section of this Court in County of San
          Mateo, California v. Green, 2001 WL 120729, No. M1999-00112-COA-R3-
          CV (Tenn. Ct. App. Feb. 14, 2001). The San Mateo Court held that an action
          to enforce a judgment for public assistance paid by the County of San Mateo
          was not timely filed because it was brought more than ten years after the

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judgment was entered. The Court also discussed the distinction “between
arrearages which had been reduced to a judgment and later failures to pay child
support pursuant to an ongoing obligation.” Id. at *2 (citations omitted).
Since the present case involves Plaintiff’s attempt to enforce two judgments
for a sum certain rather than child support pursuant to an ongoing obligation,
we conclude that the ten year statute of limitations period for each judgment
began to run when the judgments were entered, which was May 20, 1985, and
January 22, 1986. Accordingly, these ten year statute of limitations periods ran
on May 20, 1995, and January 22, 1996, respectively. The present action was
filed on July 14, 1999, and was, therefore, untimely.

       Plaintiff argues that the July 1, 1997, addition of Tenn. Code Ann. § 36-
5-103(g) is applicable to this case and therefore saves his lawsuit. We
disagree. This amendment provides that “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.” Defendant argues that
the statute of limitations expired before this amendment took effect and he,
therefore, had a vested right in the expiration of these claims. This very issue
was discussed by the Court in San Mateo, supra, which concluded that the
passage of Tenn. Code Ann. § 36-5-103(g) cannot be applied retroactively to
revive a claim which expired prior to the effective date of the statutory
amendment. In reaching this conclusion, the San Mateo Court stated:

                San Mateo argues, however, that a 1997 legislative
       amendment to the child support statutes should be applied to this
       case. . . . This statutory amendment was enacted after San Mateo
       had lost its ability to enforce the judgment against Mr. Green
       under either California or Tennessee law. Mr. Green argues that
       it cannot be applied retroactively so as to resuscitate a claim that
       had expired under existing law. We agree that even if Tenn.
       Code Ann. § 36-5-103(g) can be interpreted as an amendment
       to Tenn. Code Ann. § 28-3-110(2), where arrearage on a child
       support obligation has been reduced to a judgment, it cannot be
       applied retroactively to the 1983 judgment.

               Our Supreme Court has discussed the effect of retroactive
       legislation as follows:

                     Article I, section 20 of the Tennessee
              Constitution provides that “no retrospective law,

                                       -5-
       or law impairing the obligations of contracts, shall
       be made.” We have construed this provision as
       prohibiting laws “which take away or impair
       vested rights acquired under existing laws or
       create a new obligation, impose a new duty, or
       attach a new disability in respect of transactions
       or considerations already passed.” A “vested
       right,” although difficult to define with precision,
       is one “which it is proper for the state to
       recognize and protect and of which [an]
       individual could not be deprived arbitrarily
       without injustice.”

                In considering whether a statute impairs a
       vested right under article I, section 20, we
       frequently have observed that statutes which are
       procedural or remedial in nature may be applied
       retrospectively. In general, a statute is procedural
       “if it defines the . . . proceeding by which a legal
       right is enforced, as distinguished from the law
       which gives or defines the right.” A statute is
       remedial if it provides the means by which a
       cause of action may be effectuated, wrongs
       addressed, and relief obtained. We have clarified,
       however, that even a procedural or remedial
       statute may not be applied retrospectively if it
       impairs a vested right or contractual obligation in
       violation of article I, section 20.

Doe v. Sundquist, 2 S.W.3d 919, 923-24 (Tenn. 1999).

        The Tennessee Constitution’s prohibition on
retrospective laws includes enactments which “take away or
impair vested rights acquired under existing laws.” Morris v.
Gross, 572 S.W.2d 902, 907 (Tenn. 1978). A defendant has a
vested right in a statute of limitation once the statutory limitation
period has run without action by the plaintiff. See Ford Motor
Co. v. Moulton, 511 S.W.2d 690, 697 (Tenn. 1974). “[I]n
Tennessee a defendant has a vested right in a statute of
limitations defense if the cause of action has accrued and the

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                time allotted has expired.” Wyatt v. A-Best Products Co., Inc.,
                924 S.W.2d 98, 104 (Tenn. Ct. App. 1995). Thus,

                        when a cause of action is barred by a statute of
                        limitation, in force at the time the right to sue
                        arose, and until the time of limitation expired, . .
                        . the right to rely upon the statute as a defense is
                        a vested right that cannot be disturbed by
                        subsequent legislation.

                Id. at 103 (citations omitted).

      San Mateo, 2001 WL 120729 at *3.

            We agree with the rationale and conclusion reached by this Court in San
      Mateo on this issue, and hold that the enactment of Tenn. Code Ann. § 36-5-
      103(g) cannot operate retroactively to revive Plaintiff’s otherwise expired
      judgment for a sum certain for attorney fees taxed as child support.

Frye v. Frye, E2000-02123-COA-R3-CV, 2001 Tenn. App. LEXIS 529, at **5-12 (Tenn.
Ct. App. July 24, 2001) (footnote omitted), no appl. perm. appeal filed.

                This Court also pointed out in State of Tennessee ex rel. Hadley-Redd v.
Hadley:

      The plain language of the statute3 indicates that the legislature intended, just
      as the Court in [In re: Estate of Meader, No. 03A01-9707-CH-00252, 1997
      Tenn. App. LEXIS 750, at *5 (Tenn. Ct. App. Oct. 30, 1997), no appl. perm
      appeal filed] stated, that child support judgments are subject to the same
      defense of the statute of limitations as any other judgment. We also believe
      that our conclusion is fortified by the legislature’s subsequent action in
      eliminating the statute of limitations for child support obligations. It is
      apparent to this Court that the legislature recognized that its effort, by virtue
      of T.C.A. § 36-5-101 (a)(5) to expedite and improve efforts to assure
      responsibility for child support obligations, could lead to an untoward result;
      therefore, the 1997 legislation resulting in T.C.A. § 36-5-103 (g) was passed.




      3
          The Court was discussing Tenn. Code Ann. § 36-5-101(a)(5).

                                                  -7-
State of Tennessee ex rel. Hadley-Redd v. Hadley, No. W2002-00458-COA-R3-CV, 2004
Tenn. App. LEXIS 123, at *14-15 (Tenn. Ct. App. Feb. 23, 2004), no appl. perm appeal
filed.

              In the case now before us, the last child support payment should have been
made in 1979. Thus, the ten year statute of limitations contained in Tenn. Code Ann. § 28-3-
110(2) would have run by 1989, well before the enactment of Tenn. Code Ann. § 36-5-
103(g) in 1997. As such, Mother’s claim expired in 1989 and could not be retroactively
revived by Tenn. Code Ann. § 36-5-103(g). Given all of the above, we hold that the Trial
Court did not err in granting Father’s Estate summary judgment and dismissing the case.

                                       Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Anna Ruth Collins (Eisenberg), and her surety.




                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




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