                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                           Assigned on Briefs November 19, 2003


                 STATE OF TENNESSEE, EX REL., VIKKI DAVIS
                                  v.
                             JOHN W. DAVIS

                  An Appeal from the Chancery Court for Haywood County
                         No. 11446    George R. Ellis, Chancellor



                    No. W2001-02565-COA-R3-CV - Filed January 22, 2004


This case involves a judge’s sua sponte decision not to enforce a Tennessee statute. The parties
divorced in 1997, and the mother was awarded custody of the parties’ minor daughter. The father
was required to pay child support. The father failed to pay, and the State filed a petition for contempt
on the mother’s behalf. The father was found in contempt for his failure to pay. Sua sponte, the trial
judge refused to enforce the Tennessee statute requiring the payment of a child support processing
fee, citing a perceived violation of an unspecified federal law. The State appeals. We reverse,
finding that the trial judge erred in refusing to apply the statute.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Reversed

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

Paul G. Summers, Attorney General and Reporter, and Stuart F. Wilson-Patton, Senior Counsel,
Nashville, Tennessee, for the appellant, State of Tennessee ex rel. Vikki Davis.

John W. Davis, pro se.

                                              OPINION

       Petitioner/Appellant Vikki Davis (“Mother”) and Respondent/Appellee John W. Davis
(“Father”) married in 1994 and had one child, born on January 27, 1995. They divorced in 1997, and
custody of the parties’ child was awarded to Mother. Father was ordered to pay child support in the
amount of $51.00 per week, “plus Clerk’s fee.”

       In February 2000, Mother filed a petition to increase child support based on an increase in
Father’s income. On April 19, 2000, the trial court increased Father’s child support obligation to
$274 per month, “plus 5% commission,” for a total of $287.70 per month, in accordance with the
Tennessee Child Support Guidelines. See Tenn. Code Ann. § 8-21-403 (2002) (requiring 5% fee
to be paid to court clerk for processing child support payments). The order required Father to make
his child support payments to the Central Child Support Receipting Unit. See Tenn. Code Ann. §
36-5-116 (2002 & Supp. 2003) (establishing the Tennessee Department of Human Services as
Tennessee’s central collection and disbursement unit, as required by federal statute, receiving the
5% processing fee).

       In May 2001, a petition for contempt was filed against Father by the State of Tennessee on
Mother’s behalf. The petition alleged that Father was in arrears in the amount of $857.40. Father
posted a bond in the amount of the alleged arrears, $857.40. A hearing on the petition was set for
June 28, 2001.

        The hearing was conducted as scheduled on June 28, 2001. All parties were present, and
Father testified on his own behalf, stating that he was looking for a job. On July 11, 2001, the trial
court entered an order concluding that Father was $1,679.40 in arrears as of the date of the hearing.
The trial court held that the full amount of the bond, $857.40, would be applied toward Father’s total
outstanding arrearage. It ordered further that the $42.87 statutory processing fee would be held in
abeyance and not deducted from the $857.40 that was credited to Father. Thus, the net amount of
Father’s outstanding arrearage was determined to be $822.00.

       On July 26, 2001, the trial court conducted another hearing. Father testified that he was still
looking for a job. At that time, his accrued arrearage was “$1,136.83 plus commission.” The matter
was continued until August 2001.

         Another hearing was held on August 23, 2001. Father was found to be in arrears in the
amount of $1,410.83 and was still in contempt. Father was ordered to be held in jail until he purged
his contempt by paying the arrearage of $1,410.83, plus costs. The trial court denied the request to
collect the statutory processing fee. Sua sponte, the trial court stated that it would no longer sign any
orders which deducted the 5% statutory processing fee, in this case and in all other child support
cases within the trial court’s jurisdiction. Another hearing was set for September 13, 2001.

         In response, the State filed a motion to alter or amend the trial court’s order. The State asked
the trial court to amend its order to provide for collection of the 5% statutory fee, noting that the
State was authorized to collect the fee under Tennessee Code Annotated §§ 8-21-403(a) and 36-5-
1116(a). The State, however, also represented to the trial court that it intended to discontinue its
collection of the statutory fee as of November 1, 2001. The State cited an unrelated class action
lawsuit pending before the Circuit Court in Davidson County at that time, in which Davidson County
Circuit Court Judge Walter Kurtz reportedly had entered an interim order stating that the State’s
method of collecting the 5% fee was in violation of unspecified federal regulations. As a result, the
State had determined that, as of November 1, 2001, it would no longer collect the statutory fee, citing
the time needed “to facilitate this tremendous transition.” Based on that information, the State asked
the trial court in this case to amend its previous judgment to allow for the collection of the 5% fee.



                                                  -2-
        A hearing on the State’s motion to alter or amend was held on September 19, 2001. The
attorneys for Mother and Father appeared, but did not argue. The Attorney General argued on behalf
of the Tennessee Department of Human Services. In the hearing, the State asked the trial court to
permit collection of the fee, or at least to delay a decision until November 1, 2001, when the State
would cease collecting the fee. The State argued that no party to the case had raised the issue of
whether the statutory processing fee violated any federal regulations or federal statutes. It noted that
any question regarding the propriety of the fee came from outside the record, namely, from a letter
of an unnamed federal official to DHS expressing an opinion that the fee violated unspecified federal
law, and an interim order by Judge Kurtz in the pending class action lawsuit finding that the fee
violated a federal law. The State made it clear that no issue regarding the constitutionality of the fee
had been raised in any forum.

         The trial judge indicated that he had knowledge outside the record of the class action in
Circuit Court in Davidson County, stating, “Well, I know this order is from the judge that’s hearing
the matter. And I also know what the Federal regulation says. So, this Court has notice. It’s not a
matter of I didn’t know it.” The trial judge added, “And I also know about the notice that the State
of Tennessee got from the Federal Government,” an apparent reference to the letter to DHS from an
unnamed federal official, to which the State referred in the hearing but which was not made part of
the appellate record. Without discussion of the substantive legal issues, the trial court stated, “The
simple issue, I raised my hand to uphold the law. I know this five percent is in violation of the law.”
The trial court concluded, “. . . [T]his Court knows this is a violation of Federal Law. And as I said
earlier, this Court is going to uphold the law and that’s the reason that I’m not signing the orders with
the assigned commission in it now.” On October 9, 2001, the trial court entered an order, denying
the State’s motion to permit collection of the processing fee and stating:

                The Chancellor’s oath of office prohibits him from signing any child
                support order that includes a requirement that the parent ordered to
                pay child support, such as the respondent in this case, pay a 5% child
                support processing fee, because the Davidson County Circuit Court
                entered an order on June 12, 2001, in which it held the manner in
                which the fee was taken off the top of each collection to be a violation
                of federal law, and because in March of 2001, federal officials in
                Atlanta issued a letter to the Tennessee Department of Human
                Services, which expressed the view that the manner in which the fee
                was collected was in violation of federal policy.

The State then filed this appeal. Neither Mother nor Father appeal the trial court’s order.

         On appeal, the State argues that the trial court erred in, sua sponte, raising the issue of the
legality or constitutionality of Tennessee Code Annotated §§ 8-21-403(a) and 36-5-116(a)(2). The
State contends that the trial court was without jurisdiction to rule on the legality of the statutory fee,
where the issue was not raised by either of the parties and the State was given no notice and no
opportunity to defend the Tennessee statutes and address the substantive issue.


                                                   -3-
        In support of its argument, the State cites State ex. rel. Armstrong v. Coleman, No. W2000-
01122-COA-R3-CV, 2001 WL 557991 (Tenn. Ct. App. May 24, 2001), in which the juvenile court
refused to follow the Tennessee Child Support Guidelines, finding that they violated the equal
protection clause of the state and federal constitutions. Id. at *1. In Armstrong, an increase in child
support payments was sought against a payor parent, where the payor parent had also been ordered
to pay child support for additional children born after the subject child. The child support guidelines
did not generally permit credit to a payor parent for obligations imposed by child support orders
concerning children of the payor parent born after the subject child. Id. The parties raised no issue
regarding the legality or constitutionality of the guidelines. Id. at *4. The juvenile court simply
refused to follow the guidelines in this respect and, in response to the State’s motion to alter or
amend, stated that it had concluded that the guidelines violated the equal protection clause of the
state and federal constitutions. Id. at *2-*4. The State appealed, arguing that the constitutionality
of the guidelines was not properly before the juvenile court, because it was not raised by any party
and was raised for the first time in response to a motion to alter or amend. Id. at *4.

         The appellate court likened the posture of the case to the situation in which a constitutional
issue is raised by a party for the first time in a post-trial motion. Id. at *5. It cited a previous case
observing that “there is little difference between an issue improperly raised before the trial court at
the last minute and one that was not raised at all.” Id. (quoting In Re: Adoption of Female Child,
E.N.R., 42 S.W.3d 26, 31(Tenn. 2001)). The appellate court noted the general rule that issues not
raised in the trial court, including issues regarding the constitutionality of a statute, will not be
considered on appeal “unless the statute involved is so obviously unconstitutional on its face as to
obviate the necessity for any discussion.” Id. (quoting Lawrence v. Stanford, 655 S.W.2d 927, 927
(Tenn. 1983)). Finding that the child support guidelines were not patently unconstitutional, the
appellate court stated:

                Therefore, we hold that the trial court improperly adjudicated the issue of the
        constitutionality of the guidelines, because the issue of constitutionality was not
        timely presented in order to properly litigate the issue.

                Moreover, as we noted, the trial court raised the constitutional issue sua
        sponte, and it appears that there was no need to do so. It is the duty of all courts to
        pass on constitutional questions only when it is absolutely necessary for the
        determination of the case and of the rights of the parties to the litigation. See
        Delaney v. Thompson, 982 S.W.2d 857 (Tenn. 1998). . . . Under these
        circumstances, we feel that the trial court acted precipitously in deciding a
        constitutional question.

Id. In light of its holding that the trial court improperly issued a sua sponte ruling on a constitutional
question, the appellate court did not consider on appeal the constitutionality of the guidelines. Id.
at *6.




                                                   -4-
        In this case, as in Armstrong, the trial court, sua sponte, stated its conclusion that the child
support processing fee violated an unspecified federal law, and made a blanket assertion that it would
no longer enforce the statutory fee. No issue regarding the legality of the fee had been raised by any
party, or even by the trial court, prior to this. Scrambling in response, the State filed a motion to alter
or amend the trial court’s order, referring to a class action lawsuit in Davidson County,1 unrelated
to the instant case, and asserting that the State would no longer collect the statutory fee after
November 1, 2001. This was summarily denied, citing the trial judge’s conclusion that his oath of
office2 prohibited him from enforcing a Tennessee statute that conflicted with an unspecified federal
regulation or policy. There was no discussion of the substantive legal issue, or even a reference to
the specific federal regulation, statute, or policy in question. Even assuming that the Tennessee
statutory fee conflicted with a federal law of some sort, there was no discussion of the effect of such
a conflict, whether the federal regulations preempted the Tennessee statute, whether it resulted in
the State’s loss of federal funds, or whether the fee was voided in whole or in part. This is in
contrast to a constitutional issue, in which a Tennessee statute that conflicts with a provision of the
state or federal constitution is generally held void in whole or in part.

        In short, regardless of the merits of the trial court’s legal conclusion, as in Armstrong, the
issue of the legality of the processing fee “was not timely presented in order to properly litigate the
issue,” and the trial court “acted precipitously” in holding that the statutory fee violated federal law
and would therefore not be enforced. Consequently, the trial court’s order denying the State’s
motion to alter or amend must be reversed, and the case remanded for the trial court to proceed in
a manner not inconsistent with this Opinion.

         As in Armstrong, this holding pretermits any issue regarding the legality of the fee.

       The decision of the trial court is reversed, and the cause is remanded for further proceedings
consistent with this Opinion. Costs are taxed to Appellant, State of Tennessee, for which execution
may issue if necessary.



                                                          _________________________________________
                                                          HOLLY M. KIRBY, JUDGE

         1
             In its motion to alter or amend the State cites Harp v. Metcalf, Com m ’r, State of Tenn. Dep’t of Human
Servs., a class action lawsuit pending at that time before Davidson County Circuit Judge W alter Kurtz. In his comments
at the hearing, the trial judge in the instant case seemed to indicate that he had knowledge of this class action lawsuit from
outside the record in this case. No documents from the class action lawsuit were made part of they record. The
resolution of the Davidson County lawsuit and the status of the 5% child support processing fee after November 1, 2001,
are not included in our appellate record.

         2
            Tennessee Code Annotated § 17-1-104 states that every judge in the State must take “an oath or affirmation
to support the constitutions of the United States and that of this state, and to administer justice without respect of persons,
and impartially to discharge all the duties incumbent on a judge or chancellor, to the best of the judge’s or chancellor’s
skill and ability.”

                                                             -5-
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