               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               October 23, 2012 Session

             KEENAN W. CARROLL v. CHANDRA P. CARROLL

               Appeal from the Circuit Court for Montgomery County
                 No. MCCCCVDV07377           Ross H. Hicks, Judge


               No. M2012-00111-COA-R3-CV - Filed January 30, 2013


This case involves the issue of retroactive child support and whether the trial court
appropriately denied Wife’s request. Husband’s divorce petition was pending for more than
three years before Wife answered. During that time the parties were separated, and Husband
made monthly car payments on Wife’s vehicle in an amount that exceeded what would have
been his child support obligation. We conclude that Husband satisfied his child support
obligations based on the unique facts of this case and affirm the trial court’s judgment.

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

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.

Shannon L. Crutcher, Nashville, Tennessee, for the appellant, Chandra P. Carroll.

Keenan W. Carroll, Mt. Juliet, Tennessee, Pro Se.

                                       OPINION

                                    I. B ACKGROUND

       Keenan W. Carroll (“Husband”) and Chandra P. Carroll (“Wife”) were married in
1995 and had a child together before they decided to separate in 2006. Husband moved out
of the marital home and filed a Complaint for divorce in April 2007. Wife did not answer
the Complaint until June 2010, when she filed an Answer and Counter Complaint for
Divorce. Wife filed a motion seeking temporary support a few months later, in September
2010. Following a hearing on September 30 an Agreed Order was entered whereby Husband
was ordered to pay child support in the amount of $628 each month.1 The Agreed Order
provided that “All issues relating to any retroactive child support owed by Father are reserved
until entry of the Final Decree of Divorce.”

        An evidentiary hearing was held on October 6, 2011, and the only issue litigated that
is relevant to this appeal is whether Husband was responsible for retroactive child support
dating back to February 2006, when the parties separated. The evidence showed that
Husband made monthly payments on a loan for a Chrysler Pacifica automobile that Wife
drove and that he made these payments from the time the parties separated until the loan was
paid off in August 2010. The monthly car payments were $667, and both Wife and Husband
were responsible for this debt. Husband testified that Wife agreed he would make these car
payments in lieu of child support:

       Q:      Now, after your separation, after you and Mrs. Carroll separated, what
               kind of support did you pay or provide for your daughter?

       A:      The - -

       Q:      - - other than what you’ve already testified to?

       A:      The vehicle that her mother drives and has registered in her name in
               Alabama and has had registered in her name since we parted was $667
               a month. And she has another vehicle, but - - as well, but I continued
               to pay the $667. And this was, you know, understood by both of us
               early on that this $667 was in lieu of the child support or was to provide
               income to the household.

                                                .....

       Q:      And since the year that you separated in ‘06, did you pay $667 each and
               every month?

       A:      Yes, ma’am. Until the vehicle was paid off. And once the vehicle was
               paid off, I immediately started child support, $630.

       Wife disputed Husband’s testimony and testified as follows:


       1
         Husband testified he was unaware of a hearing on September 30 and did not know anything about
the Agreed Order until he received a copy of it in the mail. Wife’s attorney signed the Agreed Order on
behalf of Husband’s attorney.

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       Q:     And Mr. Carroll contends that there was an agreement between you
              two. Was there an agreement that he would pay the note in lieu of any
              other type of support?

       A:     No, we did not agree to that. I did speak to him about child support. .
              . . I said, if you give me child support, I can go ahead and make the
              payments myself. And he was determined to do what - - and so I kind
              of settled for that because I couldn’t afford a lawyer. . . .

     In other words, Wife would have made the car payments from any child support
Husband gave her.

        In the Final Decree of Divorce, the trial court made the following relevant findings
of fact:

       2.    The parties have been separated since early 2006. The Complaint for
       Absolute Divorce was filed in 2007. Between 2007 and 2010, when Wife filed
       an Answer and Counter Complaint, nothing happened in this case. The case
       should have been dismissed but slipped through the cracks. This has some
       impact on the Court’s decision.

       3.      With respect to back child support, Wife retained possession of a
       Chrysler Pacifica automobile upon the parties separating. Husband testified
       the parties agreed that he would continue to pay the note on the Chrysler
       Pacifica in lieu of child support. The note was $667 per month. Wife testified
       that Husband proposed to pay the car note and that she did not agree; however,
       he started making the payment and she let it go. As such, the Court finds this
       to be an acquiescence on Wife’s part. In addition, Wife testified that she had
       another vehicle but that it was not operable.

       4.     Further, Wife testified that if she had received child support during the
       parties’ separation, she would have used it to pay the Pacifica payment. As
       such, over the objection of counsel for Wife, the Court finds this to be the
       same thing and does not find an order of retroactive child support to be
       appropriate in this case.

       5.    In addition, an order of retroactive child support is not appropriate
       because no support was sought from the Court until Wife filed her Answer and
       Counter Complaint in June 2010. In October 2010, Husband began paying

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       temporary support in the amount of $628.00 per month as ordered in the
       Temporary Parenting Plan.

       Wife appeals the trial court’s decision to the extent it denied her request for retroactive
child support.

                                         II. A NALYSIS

       This case was tried by the court rather than by a jury, and we therefore review the
court’s findings of fact de novo upon the record, according the court’s factual findings a
presumption of correctness unless the evidence preponderates otherwise. We decide issues
of law de novo, with no deference accorded to the trial court’s conclusions of law. Tenn. R.
App. P. 13(d); Kirkpatrick v. O’Neal, 197 S.W.3d 674, 678 (Tenn. 2006).

        Every parent is obligated to support his or her children until they reach the age of
majority. Kirkpatrick, 197 S.W.3d at 679; Tenn. Code Ann. § 34-1-102. When a marriage
is dissolved, courts are authorized by statute to provide for the future support of the parties’
minor children. Tenn. Code Ann. § 36-5-101(a)(1). See generally Tinsley v. Tinsley, 2002
WL 31443210, at *3 (Tenn. Ct. App. Nov. 1, 2002). Courts are directed to apply the child
support guidelines promulgated by the Department of Human Services as a rebuttable
presumption when determining the amount of child support to award. Tenn. Code Ann. §
36-5-101(e)(1)(A); Tinsley, 2002 WL 31443210, at *3.

        Tennessee’s Child Support Guidelines provide that unless the rebuttable presumption
provisions of section 36-5-101(e) have been established by clear and convincing evidence,
a judgment for initial support must include an amount of monthly support dating back to
when the parties separated. Tenn. Comp. R. & Reg. 1240-2-4-.06(1)(b)(1). The trial court
concluded, and we agree, that Husband satisfied his child support obligations from the date
of the parties’ separation through August 2010 by paying the amount due on the automobile
Wife drove. Husband made the payments directly instead of paying Wife, who would have
used the same money to make the same payments. To hold that these payments did not
constitute child support would be to elevate form over substance.

        The trial court found, and the parties do not dispute, that Husband made monthly car
payments for the vehicle Wife drove from the time the parties separated in February 2006
until the loan was paid off in August 2010. Wife testified she would have used Husband’s
child support checks to make these car payments herself. The court also found that in
October 2010 Husband began paying child support in the amount of $628.00 per month as
set forth in the Temporary Parenting Plan.



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        Husband’s monthly car payments of $667 exceeded Husband’s child support
obligation of $628 by $39. We calculate that by making 54 car payments (March 2006 -
August 2010) in the amount of $667 that exceeded his monthly obligation by $39, Husband
has paid $2,106 more than he was required to pay in child support. We agree with the trial
court that it would have been inappropriate to require Husband to pay an additional $628 per
month in retroactive child support.

       In the Conclusion section of her brief Wife asks this Court to award her attorney’s
fees. That request is denied.

                                     III. C ONCLUSION

        The trial court’s decision denying Wife retroactive child support is affirmed. Costs
of this appeal shall be assessed against the appellant, Chandra P. Carroll, for which execution
shall issue if necessary.




                                                          ____________________________
                                                          PATRICIA J. COTTRELL, JUDGE




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