               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                           Assigned on Briefs June 02, 2015


LESTER G. MURPHY, SR. v. STATE OF TENNESSEE CHILD SUPPORT
                          SERVICES

               Appeal from the Juvenile Court for Humphreys County
                No. J851107     Haylee Ann Bradley-Maples, Judge

                         ________________________________

     No. M2014-02182-COA-R3-JV – Filed December 7, 2015
                     ________________________________


A mother and father were divorced in 1993, and the mother was granted custody of the
two children born of the marriage; the father was ordered to pay child support for their
two children in the amount of $50 per week. In 1997 the children came into the custody
of their maternal grandfather, and in 2007, the Tennessee Department of Human Services
Child Support Division filed a petition to set child support against the father. After a
hearing in February 2008 that the father did not attend, the trial court entered an order in
March that increased his monthly support obligation and declared that he owed more than
$31,000 in arrearages. Thereafter the father filed a pro se petition to modify the support
order, asserting that the March 2008 order was defective; his petition was dismissed. On
appeal to this court we held that the father was entitled to relief and vacated the order.
The father thereafter filed a Motion for Further Relief in the trial court seeking
reimbursement of child support payments he made pursuant to the March 2008 order;
after a hearing on the motion, the court entered an order in accordance with the Court of
Appeals‟ opinion and denied father‟s motion for further relief. Father appeals; finding no
error, we affirm the judgment of the juvenile court.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and W. NEAL MCBRAYER, J. joined.

Lester G. Murphy Sr., Clarksville, Tennessee, Pro Se.
Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; Rebekah A. Baker, Senior Counsel, Nashville, Tennessee, for the Tennessee
Department of Human Services, Child Support Division.

                                   MEMORANDUM OPINION1

       This case comes before us for the second time. The salient facts are set forth in
the prior opinion:

          Lester G. Murphy Sr. (Father) and Ellen Baker (Mother) married in 1990.
          They subsequently became the parents of two boys, born in 1991 and 1992.
          Their marriage ended on August 20, 1993, with a divorce decree from the
          Chancery Court of Humphreys County. The divorce decree gave Mother
          “the absolute care, custody and control of the minor children of the parties.”
          Father was granted visitation and was ordered to pay $50 a week in child
          support.

          . . . In September of 1996, the younger child came under the care of
          Mother‟s father Larry Baker (“Mr. Baker”) and Mr. Baker‟s wife. . . .

          On May 8, 1997, Mr. Baker filed an emergency petition in the Humphreys
          County Juvenile Court “for temporary custody of a child.” The following
          day, the court entered an order granting him temporary custody of both
          children. After a subsequent hearing, the court ordered that custody of the
          two children remain with Mr. Baker, and it reserved the question of child
          support. Father stated at oral argument that he was not notified of any of
          these proceedings and that he was not named as a party or even mentioned
          at all in any of the orders filed in 1997 and 1998. He stated at oral
          argument that he was not even aware at the time about the transfer of
          custody to Mr. Baker. The Department does not dispute the lack of notice
          to Father of the change of custody. . . .

          In 2007, Father returned to Tennessee to live. In that same year, a petition
          to set support was filed in the Juvenile Court of Humphreys County by


1
    Tenn. R. Ct. App. 10 states:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated AMEMORANDUM OPINION,@ shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.


                                                   2
          State of Tennessee, Department of Human Service, ex rel. Larry Baker.[2]
          A hearing on the petition was conducted on February 5, 2008, at which
          Father was apparently not present. The court‟s order, entered on March 5,
          2008, announced that its decision was based on “statements of Counsel for
          the State and the entire record in this matter,” and recited that “the petition
          to set support was served upon the Respondent on December 20, 2007.”

          The order also stated that Father had a duty to pay child support for his
          children, and it set Father‟s current support obligation at $333 a month until
          the children emancipate or until further orders of the court. The court also
          found that Father owed “back support” in the amount of $31,635, and
          ordered him to pay that amount off at the rate of $67 per month. There is
          no indication in the order as to how the court arrived at those figures.

          On July 12, 2012, Father filed a pro se Petition to Modify Child Support or
          Arrearages Due to Mistake or Fraud. He asserted that the 2008 support
          order was fatally defective because it did not follow the procedures that are
          required to modify a child support order and, therefore, that the 1993 child
          support order remained the only valid one. The trial court conducted a
          hearing on Father‟s petition, and on October 17, 2012, entered an order
          declaring that the 2008 child support order was valid and dismissing the
          petition.

Murphy v. State Child Support Servs., No. M2012-02514-COA-R3-JV, 2014 WL
1715092, at *1-2 (Tenn. Ct. App. Apr. 29, 2014) (footnotes omitted).

       Mr. Murphy appealed. After addressing a procedural matter, we held that the
court had no authority to set a child support obligation in the March 2008 order in light of
the existing divorce decree that established Mr. Murphy‟s support obligation. Id. at *5.
We proceeded to determine that the trial court erroneously applied the child support
guidelines in modifying his obligation, vacated the judgment, and remanded the case “for
any further proceedings necessary.” Id. at *6.




2
    In the original opinion, Footnote 3 read:

          The State‟s Petition to Set Support is not found in the record. However, Tennessee Code
          Annotated § 71-3-124(c)(2) provides that, when an individual receives assistance under
          Title IV-D, the State may file any legal action to “establish, modify or enforce child or
          spousal support,” and that the State becomes the assignee of any right of support to which
          that individual is entitled. We therefore presume that Mr. Baker received assistance from
          the State for the benefit of his grandchildren.

                                                      3
       On remand, Mr. Murphy filed a Motion for Further Relief, in which he sought to
recover the amounts he had paid pursuant to the March 2008 order,3 to which the
Department responded; a hearing was held on July 24, 2014. Although no order had been
entered by the court, Mr. Murphy filed a Motion to Reconsider on August 5, 2014, which
was heard on September 4.4 The Juvenile Court issued an order on September 25,
holding as follows:

        IT IS THEREFORE ORDERED that the Juvenile Court orders and
        petitions and all other Juvenile Court proceedings are hereby vacated in
        accord with the ruling of the Court of Appeals.
        IT IS FURTHER ORDERED that the State shall not be ordered to repay
        the Respondent the child support paid through the State in the juvenile case
        at bar by this Court based upon Tenn. Code Ann. § 36-5-101(a)(7).
        IT IS FURTHER ORDERED that the remainder of the Respondents
        Motion for reconsideration is dismissed.
        IT IS FURTHER ORDERED that the Respondents Motion for Further
        Relief shall be dismissed.

Mr. Murphy timely appealed and articulates the following issues for our review:

        1) Whether the Juvenile Court erred in its interpretation and application of
           TCA 36-5-101(a)(7).
        2) Whether the Juvenile Court erred in denying Appellant‟s request for
           further relief.
        3) Whether retention of money paid to the State is in violation of
           Appellant‟s Constitutional rights to due process.

3
 The motion Mr. Murphy filed is not included in the record on appeal. In his brief, Mr. Murphy states he
“requested an order for the return of funds he paid to the Child Support Enforcement Agency.” On its
part, the Department of Human Services (“the Department”) states that Mr. Murphy sought
“reimbursement of the payments he had made under the vacated order.”
4
 There is no order in the record specifically reciting the action taken by the court at the July 24 hearing or
a transcript of the hearing. In his brief, Mr. Murphy states that the court:

        . . . sua sponte instructed the State‟s Attorney to recalculate the Chancery Court Support
        Order from its inception until appellant‟s children reached majority. The Juvenile Court
        further instructed the State to incorporate the Humphreys County Clerk‟s payment
        records from the Chancery Court order and mathematically determined, if any, credit was
        due Appellant or arrears were due the State. The State did not object to the possible
        return of overpayments to Appellant.

In its brief, the Department states that the motion was “apparently denied, because Petitioner then filed a
motion to reconsider the denial, asserting that „[n]either the State nor this court have standing to retain
funds paid by Petitioner pursuant to a vacated order.” The September 25 order, which we shall discuss
infra, disposed of all pending matters.
                                                      4
I.        STANDARD OF REVIEW

       Our review of a court‟s findings of fact is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). A trial court‟s conclusions of law are subject to a de novo review with no
presumption of correctness. Southern Constructors, Inc. v. Loudon County Bd. of Educ.,
58 S.W.3d 706, 710 (Tenn. 2001).

II.       APPLICATION OF TENN. CODE ANN. § 36-5-101(a)(7)

        Mr. Murphy seeks a money judgment against the Department for the funds he
paid, contending that, based on the Court of Appeals‟ previous opinion in this case, the
Department “has no standing to retain the funds paid to Child Support Enforcement” and
that “[t]he State has no judgment, order, or warrant to justify retaining the funds paid by
appellant,” thus entitling him to reimbursement of his child support payments.

       In denying Mr. Murphy‟s motion, the trial court held that “the State shall not be
ordered to repay the Respondent the child support through the State in the juvenile case at
bar by this Court based on Tenn. Code Ann. § 36-5-101(a)(7).”5 Mr. Murphy does not
argue or cite any authority contrary to the trial court‟s holding that the statute barred
recovery from the State; in our analysis, the statute is dispositive of his contention that
the court erred. The statute cannot be clearer; the State is not liable to compensate Mr.
Murphy, by reimbursement or otherwise, for the amounts he paid as child support
pursuant to the 2008 order. See White v. State ex rel. Armstrong, No. M1999-00713-
COA-R3-CV, 2001 WL 134601, at *4 (Tenn. Ct. App. Feb. 16, 2001). 6




5
    Tenn. Code Ann. § 36-5-101(a)(7) states:

          The state of Tennessee, its officers, employees, agents or contractors, any counties,
          county officials, the clerks of any court, or any Title IV-D child support enforcement
          agency shall not be liable, in any case, to compensate any person for repayment of child
          support paid or for any other costs, as a result of the rescission pursuant to § 24-7-113 of
          any voluntary acknowledgment [of paternity], or the rescission of any orders of
          legitimation, paternity, or support.
6
  Sovereign immunity is an additional ground for denying Mr. Murphy‟s motion. “The doctrine of
sovereign immunity divests the courts of subject matter jurisdiction over suits against the state for money
damages unless the State has consented to these suits.” White v. State ex rel. Armstrong, No. M1999-
00713-COA-R3-CV, 2001 WL 134601, at *3 (Tenn. Ct. App. Feb. 16, 2001) (citing Shell v. State, 893
S.W.2d 416, 420 (Tenn. 1995); Pool v. State, 987 S.W.2d 566, 568 (Tenn. Ct. App. 1998)). Mr. Murphy
does not rely on, and our research has not revealed, a statute which would authorize suit against the State
for reimbursement of child support payments.


                                                       5
       Our holding that the court properly applied Tenn. Code Ann. § 36-5-101(a)(7)
pretermits our consideration of the second issue raised by Mr. Murphy, i.e., whether the
court erred in denying his motion for further relief.

III.       DUE PROCESS

      Mr. Murphy contends that the retention of his child support payments violates his
“Constitutional rights to due process.” Citing State ex rel. Phillips v. Phillips7 he argues:

           The Juvenile court‟s order to Appellant to pay the funds in question and the
           State‟s ensuing authority to demand those funds were acts done by
           operation of law. Whatever due process Appellant was entitled to
           pertaining to said Order and demand has been vacated by This Court and
           has the first impression appearance of being vacated on due process
           grounds. This leaves the proceedings, which validated said Order and
           demand, absent the necessary due process to which Appellant is entitled
           concerning the taking of his property by operation of law.

           Appellant has paid, under duress, in excess of $17,000 to Child Support
           Enforcement and said agency has no valid judgment, order, or warrant to
           retain said payments. Deliberate retention of Appellant‟s property can
           properly be viewed as a punitive action absent the jurisdiction and due
           process required in rendering a punitive action. There have been no other
           matters before the Juvenile Court to exercise a continuing jurisdiction over
           him.

        The essence of Mr. Murphy‟s argument, as we perceive it, is that the proceedings
in the juvenile court on remand did not afford him due process because the court lacked
jurisdiction and because the court retained his property, i.e. his money paid as child
support, when the court did not order that he be reimbursed.


7
    In State ex rel. Phillips v. Phillips, we stated:

           The Fourteenth Amendment to the United States Constitution provides, in relevant part,
           that “[n]o state shall make or enforce any law which shall abridge the privileges or
           immunities of citizens of the United States; nor shall any state deprive any person of life,
           liberty, or property, without due process of law....” Article I, section 8 of the Tennessee
           Constitution states that “no man shall be ... deprived of his life, liberty or property, but by
           the judgment of his peers or the law of the land.” The phrase “law of the land” is
           synonymous with the phrase “due process of law” found in the Fourteenth Amendment.

E2012-01957-COA-R3-CV, 2013 WL 1803958, at *4 (Tenn. Ct. App. Apr. 30, 2013) (internal citations
omitted) (quoting C.S.C. v. Knox County Bd. of Educ., E2006-00087-COA-R3-CV, 2006 WL 3731304, at
*9 (Tenn. Ct. App. Dec. 19, 2006)).
                                                         6
        As to the jurisdictional issue, Mr. Murphy is mistaken. Tenn. Code Ann. § 37-1-
104(d)(1)(A) states, “The juvenile court has concurrent jurisdiction and statewide
jurisdiction with other courts having the jurisdiction to order support for minor children
and shall have statewide jurisdiction over the parties involved in the case.” This Court
has interpreted the authority of the juvenile courts as follows: “The juvenile courts have
broad statutory authority . . . to issue orders setting, modifying, or even terminating child
support.” White, 2001 WL 134601, at *2 (citing Tenn. Code Ann. §§ 36-5-401, -701, -
2101, 37-1-104(d)). Thus, the juvenile court had subject matter jurisdiction over this
child support case. During the appeal, jurisdiction was vested in this court and, upon our
remand, the juvenile court regained jurisdiction over the case and the parties, and thus
had the authority to rule on Mr. Murphy‟s motions.8

       Mr. Murphy makes no reference to the record, as required by Tenn. R. App. P.
27(a)(7)(A), or to any facts to support his contention that he was deprived of due process.

       “The fundamental requirement of due process is the opportunity to be heard „at a
meaningful time and in a meaningful manner.‟” Heyne v. Metro. Nashville Bd. of Pub.
Educ., 380 S.W.3d 715, 732 (Tenn. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319,
333 (1976)). The record before us shows that, after entry of the March 2008 order, Mr.
Murphy filed a petition for relief and, upon the denial of the same, appealed to this court
and succeeded in having the judgment vacated. When the case returned to the trial court,
he filed a motion seeking reimbursement of amounts he had paid pursuant to the vacated
order. The juvenile court considered his motion and argument and, on the basis of the
applicable statute and law, denied him relief. It is this order which we review in this
opinion.

       Nothing in our earlier opinion, the record before us, or Mr. Murphy‟s brief on
appeal indicates that Mr. Murphy was deprived of his day in court or of an opportunity to
be heard. The fact that the law does not afford him the relief he seeks in the
circumstances presented does not equate to a denial of his right to due process of law.




8
  Mr. Murphy notes in his brief that “The Juvenile Court agreed with Appellant‟s position that it had in
fact lost jurisdiction over Appellant as that jurisdiction was vacated by This Court in the previous appeal.”
Our opinion in the first appeal vacated the judgment of the juvenile court; it did not make a determination
that the court was without jurisdiction.
                                                     7
V.     CONCLUSION

        For the foregoing reasons, the judgment of the juvenile court is affirmed. This
case is remanded to the juvenile court for further proceedings as may be necessary. Costs
on appeal are taxed to Mr. Murphy.



                                               ________________________________
                                               RICHARD H. DINKINS, JUDGE




                                           8
