                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                               SEPTEMBER 3, 2008 Session

             MELODY YOUNG v. DONALD GREGORY GODFREY

                  Direct Appeal from the Circuit Court for Marion County
                           No. 16674     Buddy D. Perry, Judge



                  No. M2007-02308-COA-R3-CV - Filed December 19, 2008


This appeal involves an order entered by an Alabama court in 1996 regarding child custody and
support. The trial court modified the order to require the father to pay future and retroactive child
support. We vacate the portion of the order dealing with modification, because the trial court lacked
jurisdiction to modify the order, and remand for further proceedings.


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

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

Melissa Thomas Blevins, Jasper, TN, for Appellant

Jennifer Austin Mitchell, Dunlap, TN, for Appellee
                                              OPINION

                               I. FACTS & PROCEDURAL HISTORY

        Melody Young (“Mother”) and Donald Gregory Godfrey (“Father”) are the parents of Jacob

(“Son”), who was born in 1989. Mother and Father were never married. Mother lives in Tennessee,

and Father lives in Alabama. Son lived in Tennessee with Mother for the first few years of his life,

and Father would keep Son on weekends. In approximately 1996, Mother became involved in an

abusive relationship. According to Mother, she asked Father if Son could live with him because she

feared for Son’s safety. According to Father, he became concerned about Mother’s circumstances

and “took action” himself. In any event, the Juvenile Court of Jackson County, Alabama, held a

hearing on July 11, 1996, and subsequently entered a “Child Custody Order,” which provided, in

part:



                This matter came to be heard on July 11, 1996, on the petition of the father

        for custody of the parties’ minor child. . . . The parties and guardian ad litem engaged

        in settlement negotiations and eventually reached a solution which was acceptable

        to the Court. . . .

                It is, THEREFORE, ORDERED, ADJUDGED and DECREED:

                1. . . . [T]he child’s custody is subject to this Court’s jurisdiction by virtue

        of a consent decree entered on August 9, 1995. The father has subsequently

        petitioned the Court for sole custody of the child . . . .




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              2. The father shall have the primary custody of the parties’ minor child. The

       mother shall have secondary custody of the child. The mother shall have standard

       visitation with the child as set out on the Court’s attached Exhibit “A”.

              ....

              4. The mother will provide a policy of health insurance for the child which

       is equal to or better than the present plan of health insurance provided by the father

       for the child. The father currently provides insurance for the child through his

       employer, the city of Scottsboro, Alabama. Alternatively, the mother shall pay to the

       father child support in the amount of his insurance premium in order that the father

       may continue providing health insurance on the child. That premium is presently

       $202.00 per month. The mother shall pay this amount to the father beginning on

       August 1, 1996 and on the first day of each month thereafter. This child support

       payment shall be delinquent after the fifth day of each month. Each party shall bear

       one-half of the child’s uninsured medical expenses.

       ....

              10. All prior orders of this Court not in conflict herewith shall remain in full

       force and effect.

Son lived with Father in Alabama for the next two years, and Mother paid approximately $235 in

child support per month.



       In 1998, Son returned to Tennessee to live with Mother. Son stayed with Father on weekends

and during the summer. Father began paying Mother between $150 and $200 per month in child


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support. However, the parties did not return to court, so the 1996 Alabama Order remained in effect.



       On March 23, 2006, when Son was seventeen years old, Mother filed a “Petition to Modify

and to Enroll Foreign Decree” in the Circuit Court of Marion County, Tennessee, seeking

enforcement and modification of the 1996 Alabama Order. Specifically, Mother requested that the

court grant her primary custody of Son, order Father to pay child support according to the child

support guidelines, and order Father to pay one-half of Son’s uncovered medical, dental, and vision

expenses. Among other things, Father contended that the trial court lacked jurisdiction to determine

the issues presented by Mother, and he argued that the 1996 Alabama Order should remain “the

prevailing order” in the case.



       The trial court held a hearing on March 27, 2007, and Mother and Father both testified. Son

was eighteen years old at the time of the hearing and a junior in high school. On April 27, 2007, the

trial court entered an order providing that the 1996 Alabama Order “shall be enrolled, pursuant to

T.C.A. § 36-6-229,” and further providing that “the Court accepts jurisdiction, pursuant to T.C.A.

§ 36-6-216 and T.C.A. § 36-6-218, in order to modify the Jackson County, Alabama custody order

entered July 11, 1996.” The trial court did not address issues of custody or visitation, but it ordered

Father to begin paying Mother $732 per month in child support, effective April 1, 2007. The child

support would terminate June 1, 2008, after Son graduated from high school. In addition, the trial

court found that Father “owed a duty to pay child support pursuant to the Guidelines for the ninety-

four (94) months that the minor child resided in the physical custody of [Mother]” and awarded

Mother a judgment against Father for “$53,808.00 for the underpayment of child support.” Mother


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was also awarded a judgment against Father for $791.89 for uncovered medical and dental expenses

incurred on behalf of Son.



       Father filed a motion to alter or amend the judgment, which the trial court granted in part,

reducing Father’s arrearage to $26,465.94. Father timely filed a notice of appeal.



                                     II. ISSUES PRESENTED



       On appeal, Father presents the following issues for review, slightly restated:



1. Whether the trial court erred in finding that it had subject matter jurisdiction;

2. Whether the trial court erred in failing to impute income to Mother for purposes of calculating

child support because she was willfully unemployed;

3. Whether the trial court erred in retroactively modifying the order of the Juvenile Court of Jackson

County, Alabama;

4. Whether the trial court erred in calculating the child support arrearage owed to Mother;

5. Whether the trial court erred in awarding attorney’s fees.



For the following reasons, we vacate a portion of the decision of the circuit court and remand for

further proceedings.



                                   III.   STANDARD OF REVIEW


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         Whether a court has jurisdiction is a question of law, which we review de novo with no

presumption of correctness of the trial court’s ruling. Button v. Waite, 208 S.W.3d 366, 369 (Tenn.

2006) (citing State v. Cawood, 134 S.W.3d 159, 163 (Tenn. 2004)). “The concept of subject matter

jurisdiction implicates a court’s power to adjudicate a particular type of case or controversy.” Staats

v. McKinnon, 206 S.W.3d 532, 541-42 (Tenn. Ct. App. 2006) (citing Osborn v. Marr, 127 S.W.3d

737, 739 (Tenn. 2004); Toms v. Toms, 98 S.W.3d 140, 143 (Tenn. 2003); First Am. Trust Co. v.

Franklin-Murray Dev. Co., 59 S.W.3d 135, 140 (Tenn. Ct. App. 2001)). Parties cannot confer

subject matter jurisdiction on a trial court by appearance, plea, consent, silence, or waiver. Id. at 542

(citing State ex rel. Dep’t of Soc. Servs. v. Wright, 736 S.W.2d 84, 85 n.2 (Tenn. 1987); Team

Design v. Gottlieb, 104 S.W.3d 512, 527 (Tenn. Ct. App. 2002)).



                                                 IV. DISCUSSION



                                       A.     Subject Matter Jurisdiction



         On appeal, Father argues that the trial court lacked jurisdiction to modify the 1996 Alabama

Order as to child support.1 Interstate jurisdictional questions regarding child support and arrearage

matters are governed by the Uniform Interstate Family Support Act (“UIFSA”), Tenn. Code Ann.

§ 36-5-2001, et seq. State ex rel. Strickland v. Copley, No. W2007-01839-COA-R3-CV, 2008 WL


         1
              On appeal, Father does not challenge the registration of the 1996 Alabama Order in Tennessee for
enforcement. He simply challenges the trial court’s jurisdiction to modify the 1996 Alabama Order following
registration. Registration of a foreign decree in Tennessee does not automatically grant to Tennessee courts the authority
to modify the decree. See Tenn. Code Ann. § 36-5-2603(c) (“Except as otherwise provided in this part, a tribunal of this
state shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction.”).


                                                           -6-
3875425, at *4 (Tenn. Ct. App. Aug. 21, 2008) (quoting In re J.B.W., No. M2007-02541-COA-R9-

CV, 2007 WL 4562885, at *1 (Tenn. Ct. App. Dec. 27, 2007), perm. app. denied (Tenn. April 7,

2008)). Before we examine UIFSA, however, we must address Mother’s contention that this case

involves an action to set child support, rather than a modification action.



                                   1. The 1996 Alabama Order



       On appeal, Mother argues that the 1996 Alabama Order did not establish a child support

obligation and, therefore, the trial court’s order did not amount to a modification of child support.

According to Mother, “she was never ordered to pay child support and so there was nothing to

modify.” We disagree.



       As previously mentioned, the 1996 Alabama Order stated, in relevant part:

       The mother will provide a policy of health insurance for the child which is equal to

       or better than the present plan of health insurance provided by the father for the child.

       The father currently provides insurance for the child through his employer, the city

       of Scottsboro, Alabama. Alternatively, the mother shall pay to the father child

       support in the amount of his insurance premium in order that the father may continue

       providing health insurance on the child. That premium is presently $202.00 per

       month. The mother shall pay this amount to the father beginning on August 1, 1996

       and on the first day of each month thereafter. This child support payment shall be




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       delinquent after the fifth day of each month. Each party shall bear one-half of the

       child’s uninsured medical expenses.



At the hearing before the trial court, Mother was asked if she remitted any child support payments

to Father while Son was living in Alabama, to which she responded, “Yes, I did. . . . $235,

somewhere in there, a month.” She also testified that she had always provided health insurance for

Son.



       In Alabama, “[t]he cost of health insurance is factored into the calculation of the total child-

support obligation.” Allegro v. State ex rel. Lett, 747 So.2d 913, 914 (Ala. Civ. App. 1999) (citing

Ala. R. Jud. Admin. 32(B)(7)). Alabama’s child support guidelines provide that the actual cost of

a premium to provide health insurance benefits for a child shall be added to the “basic child support

obligation” and divided between the parents in proportion to their incomes. Ala. R. Jud. Admin.

32(B)(7) (1993). If the obligor is actually paying the premium, the cost of the health insurance is

deducted from the obligor’s share of the “total child support obligation.” Id. In other words, in

Alabama, “a trial court is required to determine if a deduction is to be allowed in a monthly child-

support obligation based on the fact that health-insurance premiums are being paid on behalf of the

child in accordance with Rule 32(B)(7), Ala. R. Jud. Admin.” Volovecky v. Hoffman, 903 So.2d

844, 848 (Ala. Civ. App. 2004); Jackson v. Jackson, 777 So.2d 155, 158 (Ala. Civ. App. 2000).

If a deduction is allowed, the insurance premium that the obligor is required to pay is considered part

of his “overall child-support obligation.” See, e.g., Mills v. Dailey, No. 2060807, --- So.2d ----, 2008

WL 2623930, at *4 (Ala. Civ. App. July 3, 2008).


                                                  -8-
       From our review of the 1996 Alabama Order, it appears that the juvenile court was acting in

compliance with the applicable child support guidelines in ordering Mother to pay child support

directly to Father if she did not pay the health insurance premiums. There is nothing in the record

to explain how the juvenile court calculated the amount of child support Mother owed, but that issue

is not before us. Regardless of whether Mother actually paid Son’s health insurance premium, or

“child support” directly to Father, we conclude that the Alabama court did establish Mother’s child

support obligation, and her argument to the contrary is without merit.



                         2. Modification of Child Support Provisions



       “The Uniform Interstate Family Support Act, Tenn. Code Ann. § 36-5-2201, et seq., controls

the establishment, enforcement, or modification of support orders across state lines.” LeTellier v.

LeTellier, 40 S.W.3d 490, 493 (Tenn. 2001). In 1996, Congress enacted a law requiring all fifty

states to adopt UIFSA by January 1, 1998. Id. (citing 42 U.S.C. § 666(f) (1996)). UIFSA addresses

problems that can arise when a parent and child live in one state, but the obligor parent lives in

another state. State ex rel. La Selva v. Ziomek, No. E2005-00542-COA-R3-CV, 2006 WL 433635,

at *5 (Tenn. Ct. App. Feb. 23, 2006). “The UIFSA is a complex statute, but it is designed to prevent

the occurrence of competing multistate support orders; thus, the ability of one state to modify the

prior order of another is extremely limited.” Strickland, 2008 WL 3875425, at *4. “UIFSA is

intended to recognize that only one valid support order may be effective at any one time.” LeTellier,

40 S.W.3d at 493 (citation omitted). Key to this objective is the concept of “continuing exclusive

jurisdiction.” Id. The state that issues a child support order has continuing, exclusive jurisdiction


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over that order, and no other state may modify the order as long as the issuing state retains

continuing exclusive jurisdiction. Id.; See also Tenn. Code Ann. § 36-5-2205(d) (“A tribunal of this

state shall recognize the continuing, exclusive jurisdiction of a tribunal of another state which has

issued a child-support order pursuant to parts 20-29 or a law substantially similar to parts 20-29.”).



        The issuing tribunal retains continuing, exclusive jurisdiction over a child support order

except in narrowly defined circumstances. Tennessee Code Annotated section 36-5-2205 provides,

in relevant part:



        (a) A tribunal of this state issuing a support order consistent with the law of this state

        has continuing, exclusive jurisdiction over a child-support order:

        (1) As long as this state remains the residence of the obligor, the individual obligee,

        or the child for whose benefit the support order is issued; or

        (2) Until all of the parties who are individuals have filed written consents with the

        tribunal of this state for a tribunal of another state to modify the order and assume

        continuing, exclusive jurisdiction.



Alabama’s version of the statute similarly provides:



        (a) A court of this state issuing a support order consistent with the law of this state

        has continuing, exclusive jurisdiction over a child-support order:




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         (1) as long as this state remains the residence of the obligor, the individual obligee,

         or the child for whose benefit the support order is issued; or

         (2) until all of the parties who are individuals have filed written consents with the

         court of this state for a tribunal of another state to modify the order and assume

         continuing, exclusive jurisdiction.




Ala. Code § 30-3A-205. In sum, “[a] Tennessee court may not modify a child support order from

another state unless that state has lost its continuing, exclusive jurisdiction because neither parent

nor the child still resides in that state or the parties consent in writing for another state to assume

jurisdiction to modify.” Cliburn v. Bergeron, No. M2002-01386-COA-R3-CV, No. M2001-03157-

COA-R3-CV, 2002 WL 31890868, at *11 (Tenn. Ct. App. Dec. 31, 2002). As long as the issuing

state retains its continuing, exclusive jurisdiction over its child support order, a registering sister state

is precluded from modifying that order. Tenn. Code Ann. § 36-5-2611, official comment.2




         Accordingly, Tennessee Code Annotated section 36-5-2611(a) confers subject matter

jurisdiction on a Tennessee court to modify a sister state’s child support order as follows:




         2
             Courts give substantial deference to the “Comments to Official Text” contained throughout UIFSA.
LeTellier, 40 S.W .3d at 493, n.2. Although the comments are not binding, they are “very persuasive in interpreting the
statute to which they apply.” Id. (quoting Smith v. First Union Nat’l Bank, 958 S.W .2d 113, 116 (Tenn. Ct. App. 1997)).


                                                         -11-
        (a) After a child support order issued in another state has been registered in this state,

        the responding tribunal of this state may modify that order only if § 36-5-2613 does

        not apply and after notice and hearing it finds that:

        (1) The following requirements are met:

        (A) The child, the individual obligee, and the obligor do not reside in the issuing

        state;

        (B) A petitioner who is a nonresident of this state seeks modification; and

        (C) The respondent is subject to the personal jurisdiction of the tribunal of this state;

        or




        (2) The child, or a party who is an individual, is subject to the personal jurisdiction

        of the tribunal of this state and all of the parties who are individuals have filed

        written consents in the issuing tribunal for a tribunal of this state to modify the

        support order and assume continuing, exclusive jurisdiction over the order. . . .




(emphasis added). It is undisputed in this case that Father remains a resident of Alabama, and the

petitioner seeking modification is a resident of this state. In addition, there is no indication that the

parties filed written consent in Alabama for the Circuit Court of Marion County, Tennessee, to

modify the 1996 Alabama Order. Therefore, the Alabama court retained continuing, exclusive

jurisdiction over the 1996 Alabama Order, and the trial court was without subject matter jurisdiction



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to modify the Order. Based on the resolution of this jurisdictional issue, it is not necessary for us

to consider Father’s additional issues.




                                          V. CONCLUSION




       For the aforementioned reasons, we vacate the judgment of the circuit court to the extent that

the court modified the child support provisions of the 1996 Alabama Order. We note, however, that

Father did not raise an issue on appeal regarding the registration of the 1996 Alabama Order for

enforcement. The 1996 Alabama Order required Father to pay “one-half of the child’s uninsured

medical expenses,” and Mother’s petition to enroll the decree sought a judgment for Father’s share

of unpaid medical expenses. The trial court initially entered a judgment against Father for $791.89

for uncovered medical and dental expenses incurred by Mother on behalf of Son. This portion of

the judgment would not be disturbed by our ruling regarding the trial court’s lack of jurisdiction to

modify the decree. From our review of the amended order, however, it is not clear whether the trial

court altered or eliminated the portion of the judgment regarding uncovered medical expenses.

Therefore, on remand, the trial court should address this limited enforcement issue. Costs of this



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appeal are taxed to the appellee, Melody Young, for which execution may issue if necessary.




                                                  ___________________________________

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




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