               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 May 3, 2016 Session

 TONYA HALLEEN BLACKWELL v. CHRISTOPHER S. BLACKWELL

              Appeal from the Circuit Court for Montgomery County
       No. MC CC CV DV 13-239     Laurence M. McMillan, Jr., Chancellor



                No. M2015-01624-COA-R3-CV – Filed June 29, 2016



In this post-divorce action, the mother sought modification of the father’s child support
obligation due to a material change of circumstances. The trial court increased the
father’s child support obligation but declined to order such modification effective as of
the date the mother filed her petition to modify. The mother has appealed. Having
determined that the trial court erred in failing to modify the father’s child support
obligation effective as of the date of the petition’s filing, we reverse the trial court’s
judgment in that regard and remand for entry of a modified judgment retroactive to the
date the mother filed the petition. We affirm the trial court’s judgment in all other
respects.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Christopher J. Pittman, Clarksville, Tennessee, for the appellant, Tonya Halleen
Blackwell.

Steven C. Girsky, Clarksville, Tennessee, for the appellee, Christopher S. Blackwell.

                                       OPINION

                         I. Factual and Procedural Background

      This action originated in 2013 when the petitioner, Tonya Halleen Blackwell
(“Mother”), filed a complaint for divorce against the respondent, Christopher S.
Blackwell (“Father”), in the Montgomery County Circuit Court (“trial court”). Mother
stated that the parties had two minor children, a son and a daughter, who were ages
thirteen and nine respectively at the time of the complaint’s filing. The parties
subsequently reached a co-parenting agreement in which Mother exercised co-parenting
time with the parties’ daughter 285 days per year and Father exercised co-parenting time
with the parties’ daughter 80 days per year. By contrast, Father was to exercise co-
parenting time with the parties’ son 285 days per year with Mother exercising co-
parenting time with the parties’ son 80 days per year. Due to the disparity in the parties’
incomes, Father agreed to pay child support in the amount of $2,100 per month pursuant
to Tennessee’s Child Support Guidelines. The trial court entered a permanent parenting
plan on December 3, 2013, effectuating the parties’ agreement.

       Mother subsequently filed a petition on July 11, 2014, seeking to increase Father’s
child support obligation and modify the permanent parenting plan because the parties’
son had begun residing with Mother full time. Mother asserted that this change occurred
shortly after entry of the final decree and constituted a material change in circumstances.
Mother filed a proposed permanent parenting plan, which provided that both children
would reside with her 285 days per year. Mother also filed a child support worksheet
demonstrating that Father’s child support obligation should be increased to $3,200 per
month. Father filed a response to Mother’s petition, stating that Mother had coerced the
son to live with her. Father asserted that the son was planning to resume residing with
Father in the fall.

         The trial court conducted a hearing on June 2, 2015, regarding Mother’s petition.
The parties were the only witnesses who testified. Mother stated that the parties’ son
came to reside with her in February 2014, and had only spent two weekends with Father
since that time. Mother further testified that the parties’ daughter had also spent very
little time with Father. Mother denied interfering with Father’s co-parenting time.

       As Mother explained, Father earned $50,000 per month and had continued to pay
her only $2,100 per month in child support even though both children were residing with
her. Mother admitted that the parties lived in close proximity to one another and had
fashioned a co-parenting schedule that would allow for some flexibility in co-parenting
time. According to Mother, Father had not sought to exercise his allotted co-parenting
time with the children.

       Mother testified that Father had recently purchased a racecar and a boat, such that
he clearly had the ability to pay additional child support. Mother acknowledged that the
racecar was a hobby that Father and the children had enjoyed together for two weekends.
She also acknowledged that Father sometimes paid for the children’s school lunches and
“other functions.”
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       Father testified that although he had tried to be flexible with the co-parenting
schedule, he would insist upon receiving his co-parenting time in the future. According
to Father, Mother scheduled activities for the children that interfered with his co-
parenting time. Father further explained that he had recently purchased a racecar as a
way to bond with his children. Father asserted that he did not think the co-parenting
schedule should be changed. He admitted, however, that the parties’ son had only spent
two weekends with him since the son began residing with Mother.

       Following the hearing, the trial court entered an order on July 13, 2015, granting
Mother’s petition in part and denying it in part. The court determined that there had been
a material change in circumstances since entry of the divorce decree because the parties’
son was primarily residing with Mother and had spent only two weekends with Father
since the filing of Mother’s petition. Also determining Mother’s proposed parenting plan
to be in the best interest of the children, the court adopted her plan, which provided that
Mother would enjoy co-parenting time with the children 285 days per year while Father
would enjoy co-parenting time 80 days per year.

       The trial court increased Father’s child support obligation to $3,200 per month
pursuant to the applicable Guidelines. The court ruled, however, that such increase in
child support would only be retroactive to June 1, 2015, rather than July 11, 2014, the
date Mother filed her petition seeking modification. In pertinent part, the court stated:
“The Court finds that, even though the Mother filed a petition in July 2014, the Court is
exercising its discretion to not award any arrearage payments prior to June 1, 2015
because the testimony suggests the Father has spent additional funds on the children.”
Mother timely appealed.

                                   II. Issue Presented

      Mother presents one issue for our review:

      Whether the trial court abused its discretion in declining to make the
      modified child support amount effective from the date the petition to
      modify was filed.

                                 III. Standard of Review

       We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). We review questions of law, including those of statutory construction, de novo
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with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate
Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins, 224
S.W.3d 675, 678 (Tenn. Ct. App. 2006). The trial court’s determinations regarding
witness credibility are entitled to great weight on appeal and shall not be disturbed absent
clear and convincing evidence to the contrary. See Morrison v. Allen, 338 S.W.3d 417,
426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

      This Court has described the proper standard of review for child support
determinations as follows:

              Prior to the adoption of the Child Support Guidelines, trial courts
       had wide discretion in matters relating to child custody and support.
       Hopkins v. Hopkins, 152 S.W.3d 447, 452 (Tenn. 2004) (Barker, J.,
       dissenting). Their discretion was guided only by broad equitable principles
       and rules which took into consideration the condition and means of each
       parent. Brooks v. Brooks, 166 Tenn. 255, 257, 61 S.W.2d 654, 654 (1933).
       However, the adoption of the Child Support Guidelines has limited the
       courts’ discretion substantially, and decisions regarding child support must
       be made within the strictures of the Child Support Guidelines. Berryhill v.
       Rhodes, 21 S.W.3d 188, 193 (Tenn. 2000); Jones v. Jones, 930 S.W.2d 541,
       545 (Tenn. 1996); Smith v. Smith, 165 S.W.3d 279, 282 (Tenn. Ct. App.
       2004).

       ***

              Because child support decisions retain an element of discretion, we
       review them using the deferential “abuse of discretion” standard. This
       standard is a review-constraining standard of review that calls for less
       intense appellate review and, therefore, less likelihood that the trial court’s
       decision will be reversed. State ex rel. Jones v. Looper, 86 S.W.3d 189,
       193 (Tenn. Ct. App. 2000); White v. Vanderbilt Univ., 21 S.W.3d 215, 222-
       23 (Tenn. Ct. App. 1999). Appellate courts do not have the latitude to
       substitute their discretion for that of the trial court. Henry v. Goins, 104
       S.W.3d 475, 479 (Tenn. 2003); State ex rel. Vaughn v. Kaatrude, 21
       S.W.3d 244, 248 (Tenn. Ct. App. 2000). Thus, a trial court’s discretionary
       decision will be upheld as long as it is not clearly unreasonable, Bogan v.
       Bogan, 60 S.W.3d 721, 733 (Tenn. 2001), and reasonable minds can
       disagree about its correctness. Eldridge v. Eldridge, 42 S.W.3d 82, 85
       (Tenn. 2001); State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000).
       Discretionary decisions must, however, take the applicable law and the


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       relevant facts into account. Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn.
       1996).

Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005).

                    IV. Effective Date of Child Support Modification

      Mother argues that the trial court abused its discretion in denying her request to
modify Father’s child support obligation as of the date of her filing the petition to modify.
Although Mother admits that the trial court has discretion in this regard, she contends that
the court did not make adequate factual findings in support of its determination that a
modification effective from the date of the petition’s filing was inappropriate.

        Tennessee Code Annotated § 36-5-101(f)(1) (Supp. 2015) provides: “[A]
judgment [for child support] 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.” See also Tenn.
Comp. R. & Regs. 1240-02-04-.05 (“No ordered child support is 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.”). As this Court explained in McCosh v. McCosh, No. E2014-01702-COA-R3-
CV, 2015 WL 5121077 at *8 (Tenn. Ct. App. Aug. 31, 2015):

       The statute permits the modification of child support retroactively to the
       time the action for modification was filed. This provision makes sense in
       that it removes any incentive an obligor parent might otherwise have in
       delaying litigation and resolution, in an attempt to keep his or her child
       support payment lower for as long as possible.

        In the case at bar, Mother contends that the trial court abused its discretion in
refusing to increase Father’s child support obligation retroactive to the date of filing of
Mother’s petition because, according to Mother, the trial court applied an incorrect legal
standard or its decision was based on a clearly erroneous assessment of the evidence.
Our Supreme Court has thoroughly explained the abuse of discretion standard of review
as follows:

              The abuse of discretion standard of review envisions a less rigorous
       review of the lower court’s decision and a decreased likelihood that the
       decision will be reversed on appeal. It reflects an awareness that the
       decision being reviewed involved a choice among several acceptable
       alternatives. Thus, it does not permit reviewing courts to second-guess the
       court below, or to substitute their discretion for the lower court’s. The
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      abuse of discretion standard of review does not, however, immunize a
      lower court’s decision from any meaningful appellate scrutiny.

             Discretionary decisions must take the applicable law and the relevant
      facts into account. An abuse of discretion occurs when a court strays
      beyond the applicable legal standards or when it fails to properly consider
      the factors customarily used to guide the particular discretionary decision.
      A court abuses its discretion when it causes an injustice to the party
      challenging the decision by (1) applying an incorrect legal standard, (2)
      reaching an illogical or unreasonable decision, or (3) basing its decision on
      a clearly erroneous assessment of the evidence.

             To avoid result-oriented decisions or seemingly irreconcilable
      precedents, reviewing courts should review a lower court’s discretionary
      decision to determine (1) whether the factual basis for the decision is
      properly supported by evidence in the record, (2) whether the lower court
      properly identified and applied the most appropriate legal principles
      applicable to the decision, and (3) whether the lower court’s decision was
      within the range of acceptable alternative dispositions. When called upon
      to review a lower court’s discretionary decision, the reviewing court should
      review the underlying factual findings using the preponderance of the
      evidence standard contained in Tenn. R. App. P. 13(d) and should review
      the lower court’s legal determinations de novo without any presumption of
      correctness.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010) (internal citations
omitted).

       As this Court has recognized, however, when the trial court has failed to make
adequate factual findings such that this Court “cannot determine whether the trial court
applied an incorrect legal standard or relied on reasoning that caused an injustice because
we do not know what legal standard the court applied, or what reasoning it employed,”
deference to the trial court’s decision is abated. See Gooding v. Gooding, 477 S.W.3d
774, 783 (Tenn. Ct. App. 2015) (quoting In re Noah J., No. W2014-01778-COA-R3-JV,
2015 WL 1332665 at *5 (Tenn. Ct. App. Mar. 23, 2015)). This Court further explained:

             When the trial court fails to explain the factual basis for its
      decisions, we may conduct a de novo review of the record to determine
      where the preponderance of the evidence lies or remand the case with
      instructions to make the requisite findings of fact and conclusions of law
      and enter judgment accordingly.
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       ***

              As our courts have repeatedly acknowledged, considerable deference
       must be accorded to the trial court’s factual findings; however, such
       deference abates when the trial court fails to make specific findings of the
       material facts.

Gooding, 477 S.W.3d at 783-84 (internal citations omitted).

       In this matter, the trial court refused to modify Father’s child support obligation
retroactive to the date Mother filed her petition seeking an increase, stating as the basis
for such refusal only that “the testimony suggests the Father has spent additional funds on
the children.” The trial court did not make specific factual findings regarding these
“additional funds” or identify the legal standard applied by the court. Because we have
been provided with a transcript of the hearing, this Court may conduct a de novo review
of the evidence to determine where the preponderance of the evidence lies. See Gooding,
477 S.W.3d at 783.

       At the June 2, 2015 hearing, Father explained that he had recently purchased a
racecar as a way to bond with his son and that he had spent time with the children
working on the car. The only other testimony regarding “additional funds [spent] on the
children” was as follows:

       Question (by Father’s counsel): All right. He pays for their school lunches
       and a bunch of other functions in addition to child support, does he not?

       Answer (by Mother): Yes, some.

Following our thorough review of the record, we find no other evidence regarding
“additional funds” spent by Father. We conclude that the above evidence is insufficient
to support the trial court’s decision to refuse to modify Father’s child support obligation
retroactive to the date Mother filed her petition.

       In a previous case involving an issue of whether modification retroactive to the
date of the petition’s filing should have been granted, this Court explained:

              With regard to the date to which modification in child support was
       made retroactive, the trial court gave no reason for making the modification
       retroactive to December 10, 2007, the date on which Wife filed her petition
       to modify parenting time, rather than to June 7, 2007, the date on which
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        Wife filed her petition to modify child support. We recognize that the
        decision as to the date on which modification is made effective is within the
        trial court’s discretion. See Huntley v. Huntley, 61 S.W.3d 329, 339 (Tenn.
        Ct. App. 2001) (quoting Bjork v. Bjork, No. 01A01-9702-CV-00087, 1997
        WL 653917, at *8 (Tenn. Ct. App. Oct. 22, 1997)). However, in this case,
        Husband’s income increased dramatically well before Wife filed her
        petition to modify child support. Under these circumstances, we must
        conclude that the trial court abused its discretion by not making the
        modification retroactive to the date of Wife’s petition, June 7, 2007.

Wiser v. Wiser, 339 S.W.3d 1, 20 (Tenn. Ct. App. 2010). Simiarly, here, we conclude
that the trial court erred by failing to modify Father’s child support obligation retroactive
to the date of Mother’s filing the petition to modify. The parties’ son had been residing
with Mother for approximately five months before she filed her petition. Furthermore,
Father admitted at trial that he had exercised minimal co-parenting time. The trial court
provided no adequate factual or legal basis for allowing Father to avoid the payment of
his child support obligation, pursuant to the Child Support Guidelines, for eleven months.
See Wiser, 339 S.W.3d at 20.

       Moreover, if the trial court’s intent in refusing to modify Father’s child support as
of the date of the petition’s filing was to award Father a credit against any arrearage for
monies Father expended on the children over and above his child support obligation, such
an offset would be inappropriate based upon this record.1 Such credit is typically allowed
only when the obligor parent has provided “necessaries” for the children that were not
supplied by the residential parent, such as shelter, food, tuition, and medical care. See
Peychek v. Rutherford, No. W2003-01805-COA-R3-JV, 2004 WL 1269313 at *4 (Tenn.
Ct. App. June 8, 2004). As this Court explained regarding a credit for necessaries:

               In order to maintain a successful claim for necessaries, the [obligor]
        must prove: (1) that the child needed the particular goods or services that
        were provided, (2) that the [residential parent] had a legal obligation to
        provide the goods or services, (3) that the [residential parent] failed to
        provide the goods or services, and (4) the actual cost of these goods or
        services.

Id. In this action, Father failed to establish the above requirements regarding a claim of
offset for necessaries.



1
  The trial court’s failure to state the precise factual or legal basis for its ruling hampers this Court’s
ability to review the trial court’s decision. See Gooding, 477 S.W.3d at 783.
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       We conclude that the trial court’s determination that Father’s child support should
not be modified as of the date Mother filed the petition was without factual or legal basis.
As such, the trial court either applied an incorrect legal standard or based its decision on a
clearly erroneous assessment of the evidence, resulting in an abuse of discretion. We
therefore reverse the trial court’s determination that Father’s child support obligation
should be modified retroactive only to June 1, 2015. We instead modify Father’s child
support obligation to be retroactive to July 11, 2014, the date Mother filed the petition
seeking modification. Accordingly, we remand this matter for modification of the
judgment to include the additional $1,100 per month of child support due Mother for the
time period from July 11, 2014, to June 1, 2015.

                                       V. Conclusion

        For the foregoing reasons, we reverse the trial court’s determination that Father’s
child support obligation should be modified retroactive only to June 1, 2015, and modify
Father’s child support obligation retroactive to July 11, 2014, the date of filing of
Mother’s petition seeking modification. We remand this matter for modification of the
judgment to include the additional $1,100 per month of child support due Mother for the
time period from July 11, 2014, to June 1, 2015. The trial court’s judgment is affirmed in
all other respects. Costs on appeal are taxed to the appellee, Christopher S. Blackwell.




                                                  _________________________________
                                                  THOMAS R. FRIERSON, II, JUDGE




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