                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  July 9, 2012 Session

  STATE OF TENNESSEE ex rel. RONDA M. LETNER v. RAYMOND T.
                         CARRIGER

                  Appeal from the Chancery Court for Meigs County
                   No. 3230    Frank V. Williams, III, Chancellor


              No. E2011-01853-COA-R3-CV-FILED-AUGUST 20, 2012


Raymond T. Carriger (“Carriger”) filed a petition to terminate his child support obligation
in the Chancery Court for Meigs County (“the Trial Court”). The State of Tennessee ex rel.
Ronda M. Letner (“the State”) opposed Carriger’s petition. Carriger argued that he suffered
from a disability and, as a result, was unable ever to pay off the arrearages he had
accumulated. The Trial Court granted Carriger’s petition and absolved him of his child
support arrearages. The State appeals, arguing that such a retroactive modification of child
support is prohibited under Tennessee law. We reverse the judgment of the Trial Court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed;
                                 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.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and, Warren Jasper, Senior Counsel, General Civil Division; for the appellant, State of
Tennessee ex rel. Ronda M. Letner.

Tom McFarland, Kingston, Tennessee, for the appellee, Raymond T. Carriger.
                                         OPINION

                                        Background

              Carriger and Ronda Letner were divorced in 1993, and Carriger was ordered
to pay child support for his children. Carriger successfully sought to overturn the 1993
divorce on the basis of improper service. In a subsequent duly entered 1994 divorce decree,
Carriger again was ordered to pay child support for the parties’ minor children.

               In 1996, Carriger filed a petition to modify his child support obligations. For
the next several years, a number of contempt actions occurred in relation to Carriger’s child
support. During this period and beyond, Carriger contended that his mental disability
prevented him from acquiring regular employment and that he thus was unable to comply
with his child support obligations. In August 2005, as part of a contempt hearing, the
Referee determined that Carriger owed $32,041.32 in child support arrearages as of the
previous month. Following a hearing, the Trial Court, inter alia, affirmed the Referee’s
finding in its October 2005 order:

       1. The Findings and Recommendation of the Referee are hereby modified.
       The Respondent shall receive a suspended sentence to the Meigs County Jail
       pending periodic monthly review by the Court.

       2. The Respondent shall periodically report to the Court. He shall provide
       proof to the Court every month that disability continues. He shall file with the
       Court a copy of the application filed with the Social Security Administration
       and any and all updates of his pursuit of his disability claim.

       3. The accrual of monthly child support payments shall be suspended until the
       Court determines whether the Respondent, Raymond Carriger, is disabled.

       4. All other Findings and Recommendations are hereby confirmed.

              In 2006, Carriger’s children reached the age of emancipation, and, thereafter,
his obligations were restricted to his accumulated arrearages. From 2005 through 2010,
Carriger unsuccessfully attempted to secure disability benefits. In 2010, on judicial review
of the administrative law judge’s denial of Carriger’s claim, the U.S. District Court ruled
against Carriger and granted the Commissioner of Social Security’s motion for summary
judgment. In 2008, the Trial Court appointed a Guardian Ad Litem for Carriger.




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              In February 2011, Carriger filed a motion to terminate his child support
obligations on the basis of his disability. In its June 2011 order, following a hearing, the
Trial Court terminated Carriger’s child support obligations, stating:

              This cause came on to be heard on the 7th day of April, 2011, before the
       Honorable Frank V. Williams, Chancellor of the Chancery Court in Meigs
       County, Tennessee, and upon the periodic monthly review by the Court, the
       testimony of Dr. Peter Young that indicated the Respondent is not capable of
       any substantial gainful employment at present or in the future, and the record
       as a whole, the Court finds that Respondent, RAYMOND T. CARRIGER’s
       PETITION TO TERMINATE CHILD SUPPORT OBLIGATION is well-
       taken, and as such,

              It is ORDERED, ADJUDGED, and DECREED as follows:

              1. That the child support obligation of Respondent, RAYMOND T.
       CARRIGER, is hereby terminated and costs of this matter is assessed to the
       Petitioner, for which execution may issue, if necessary.

               2. That the Respondent, RAYMOND T. CARRIGER, shall pay the
       reasonable and necessary attorney fees to Jennifer Raby, Guardian Ad Litem,
       in the amount of Seven Hundred Fifty Dollars ($750.00).

The State appeals.

                                          Discussion

              Though not stated exactly as such, the State raises one issue on appeal: whether
the Trial Court erred in retroactively terminating Carriger’s child support arrearages.

               According to statute, an order for child support is not subject to modification
as to the period before an action to modify is filed:

              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 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. If the full amount of
       child support is not paid by the date when the ordered support is due, the

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        unpaid amount is in arrears, shall become a judgment for the unpaid amounts,
        and shall accrue interest from the date of the arrearage, at the rate of twelve
        percent (12%) per year. All interest that accumulates on arrearages shall be
        considered child support. Computation of interest shall not be the
        responsibility of the clerk.

Tenn. Code Ann. § 36-5-101 (f)(1) (Supp. 2011).

            With respect to the reduction of child support arrearages, and, observing the
amendment of Tennessee law on this issue, our Supreme Court has instructed:

                The new amendment became effective March 27, 1987. It has since
        been held to prevent the reduction of child support arrearages in several
        unreported decisions of the Tennessee Court of Appeals. We agree with these
        rulings. The language of the 1987 amendment could not be more clear.
        Retroactive modifications are plainly unauthorized; prospective modifications
        can be made, but only after notice as provided in subsection (a)(5). Hence, the
        trial court in this case could not reduce amounts that accrued prior to the filing
        of the father's 1988 cross-petition, even those amounts that became due prior
        to the effective date of the amendment.

Rutledge v. Barrett, 802 S.W.2d 604, 606 (Tenn. 1991).1

               Carriger’s argument that the Trial Court correctly terminated his child support
arrearages is based heavily on his alleged mental disability.2 Carriger argues vigorously that,
in this case, “enforcement of a child support obligation against the Appellee would be an
exercise in futility.” Enforcement may well be an exercise in futility in this case, but this
does not mean that Carriger’s child support arrearages can be forgiven by the Trial Court or
this Court. Indeed, as the Supreme Court held in Rutledge, retroactive modifications to child
support obligations, including child support arrearages, are prohibited by statute. As the
State points out, our Supreme Court also stated that equitable defenses may not be employed
to eliminate child support arrearages. Rutledge, 802 S.W.2d at 607.

              Our General Assembly established the public policy of Tennessee as to this
issue when it enacted Tenn. Code Ann. § 36-5-101(f)(1). We are constrained to adhere to


       1
        In Rutledge, our Supreme Court addressed the history of Tenn. Code Ann. § 36-5-101 (a)(5) (Supp.
1989). This provision is now found at Tenn. Code Ann. § 36-5-101 (f)(1) (Supp. 2011).
       2
           We need not and do not make any finding as to Carriger’s mental or physical health.

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our Supreme Court’s interpretation of the statutory law adopted by our General Assembly.
In this case, the Trial Court affirmed the Referee’s finding of a child support arrearage in
2005. No appeal was taken from that final judgment. Carriger filed his petition to terminate
his child support obligation in February 2011, long after his child support arrearages had
been established through order of the Trial Court. Therefore, the Trial Court was not
permitted under Tennessee law to modify or eliminate Carriger’s duly ordered child support
arrearage obligations. See State ex rel. Whitley v. Lewis, 244 S.W.3d 824, 829-30 (Tenn. Ct.
App. 2007).

             In sum, while Carriger’s mental or physical ailments may preclude him from
being found in contempt or effectively prevent collection of his child support arrearages,
Tennessee law does not allow the outright retroactive termination of child support arrearages
which have accrued as a result of valid court orders. We reverse the judgment of the Trial
Court.

                                        Conclusion

              The judgment of the Trial Court is reversed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellee, Raymond T. Carriger.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




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