                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                              Assigned on Briefs July 23, 2009

   STATE OF TENNESSEE, EX REL., TAMMY LAREE KENNAMORE v.
                  ALBERT THOMPSON ET AL.

                Direct Appeal from the Juvenile Court for Hardeman County
                         No. 05-07-45         Charles Cary, Judge



                    No. W2009-00034-COA-R3-JV - Filed August 27, 2009


This case involves an award of retroactive child support. Following her divorce from the man she
claimed was the minor child’s biological father, Appellant/Mother filed a petition to establish
paternity against the Appellee herein. Genetic testing revealed that the Appellee was the father, and
the court awarded child support retroactive to the date of filing of the Appellant/Mother’s petition,
which award was a deviation from the Child Support Guidelines. Finding that the trial court’s
deviation from the guidelines is supported by the record, we affirm.


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


J. STEVEN STAFFORD , J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.,
and DAVID R. FARMER , J., joined.

Andrew S. Johnston, Somerville, Tennessee, for the Appellant, Tammy Laree Kennamore.

Harriet S. Thompson, Bolivar, Tennessee, for the Appellee, Albert Thompson.

                                            OPINION

       K.R.K.. was born to Appellant Tammy Laree Kennamore on July 25, 2000. At the time of
K.R.K..’s birth, Ms. Kennamore was married to Bobby Ray Kennamore. The Kennamores were
divorced by Final Decree of the Hardeman County Chancery Court, which was entered on March
21, 2005. In its Final Decree, the court found that Bobby Ray Kennamore was not the father of
K.R.K. by virtue of DNA testing (conducted in March, 2005), which excluded Mr. Kennamore as
the possible father.

       On September 21, 2005, Ms. Kennamore filed a Petition for Paternity in the Juvenile Court
of Hardeman County against the Appellee Albert Thompson. According to Ms. Kennamore’s
testimony, she and Mr. Thompson had been engaged in an affair for approximately ten years. The
parties subsequently agreed to submit to genetic testing, which tests were conducted in December
2005. The test results indicate that Mr. Thompson was the child’s biological father.

       In October, 2006, Ms. Kennamore applied to the State of Tennessee for Title IV-D services.
A hearing was conducted on May 3, 2007 to determine the amount of child support to be received.
The court entered its order on July 19, 2007 and determined that Mr. Thompson was the father of
K.R.K., and set child support at $2,100 per month retroactive to March, 2005.

        The State of Tennessee filed a motion to alter or amend the judgment on or about August 8,
2007. Specifically, in its July 19, 2007 order, the court limited retroactive child support to the period
following the DNA test results that excluded Mr. Kennamore as the possible father of K.R.K. The
court opined that Ms. Kennamore was judicially estopped from seeking retroactive support beyond
this date because she had alleged in her petition for divorce that the child was born during the
marriage. In its motion, the State asked the court to review its denial of retroactive child support,
and to set retroactive support from the date of the child’s birth in compliance with the Child Support
Guidelines. The parties agreed to submit this issue on briefs. On November 20, 2008, the trial court
entered an order modifying its previous award of retroactive child support from March 2005, the
date of the initial genetic testing, to September 21, 2005, the date that Ms. Kennamore filed her
petition to establish paternity against Mr. Thompson.1

         Ms. Kennamore appeals and raises two issues for review as stated in her brief:

                  I. Whether the trial court erred by not ordering Respondent, Albert
                  Thompson, to pay child support retroactive to the date of the subject
                  child’s birth where the Court found that the Petitioner was judicially
                  estopped from asserting that the Respondent was the father of the
                  child until such time as she filed her Petition to Establish Paternity
                  based upon an allegation in her Complaint for Divorce that the
                  subject child was born “of” Petitioner’s prior marriage but where
                  subsequent DNA testing proved otherwise?

                  II. Whether the trial court erred by not ordering the Respondent,
                  Albert Thompson, to pay child support retroactive to the date of the
                  subject child’s birth in the absence of clear and convincing evidence
                  that the statutory factors enumerated in T.C.A. § 36-2-



         1
           The trial court’s statement in its November 20, 2008 order on the State’s m otion to alter or amend that it
“previously ordered [in the July 19, 2007 order] that Albert Thompson should pay support retroactive to September 21,
2005" is incorrect. Our review of the July 19, 2007 Order on Paternity indicates that, the trial court ordered child
support retroactive to March 1, 2005 (the date of the genetic testing indicating that M r. K ennamore was not the
biological father), not September 21, 2005 (the date Ms. Kennamore filed her petition to establish paternity against Mr.
Thompson). This confusion seems to be inadvertent on the part of the trial court. For purposes of this appeal, this Court
will rely upon the September 21, 2005 date as set forth in the more recent order of the court.

                                                          -2-
               311(a)(11)(A)(I)-(iii) were present thereby justifying a deviation from
               the Tennessee Child Support Guidelines?

         When called upon to enter an order of parentage, Tenn. Code Ann. § 36-2-311(a)(11)(A)
requires the trial court to establish prospective child support at the time of the entry of that order.
The trial court's decision regarding whether to award retroactive child support is reviewed under an
abuse of discretion standard. State ex rel Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn.1991).
However, the court’s discretion is limited by Tenn. Code Ann. § 36-5-101(e)(1)(A), which requires
the trial court to “apply, as a rebuttable presumption, the child support guidelines.”

       When determining whether retroactive child support should be awarded our legislature has
provided us with the factors to be considered. Tenn. Code Ann. § 36-2-311(1)(11)(A) states that:

               (11) (A) .…When making retroactive support awards pursuant to the
               child support guidelines established pursuant to this subsection (a),
               the court shall consider the following factors as a basis for deviation
               from the presumption in the child support guidelines that child and
               medical support for the benefit of the child shall be awarded
               retroactively to the date of the child's birth:

               (i) The extent to which the father did not know, and could not have
               known, of the existence of the child, the birth of the child, his
               possible parentage of the child or the location of the child;

               (ii) The extent to which the mother intentionally, and without good
               cause, failed or refused to notify the father of the existence of the
               child, the birth of the child, the father's possible parentage of the child
               or the location of the child; and

               (iii) The attempts, if any, by the child's mother or caretaker to notify
               the father of the mother's pregnancy, or the existence of the child, the
               father's possible parentage or the location of the child.


In addition to these factors, the court may also consider the equity between the parties. Tenn. Code
Ann. § 36-5-101(e)(1)(A).

        When an award of retroactive support is deemed appropriate by the court, the applicable
statutes and regulations include a presumption that the retroactive child support will be awarded
from the date of the child's birth in accordance with the child support guidelines. See Tenn. Code




                                                  -3-
Ann. § 36-2-311(a)(11)(A); Tenn. Comp. R. & Regs. 1240-2-4-.06(1) (2008).2 Consequently, if the
trial court deviates from the child support guidelines, the statute and regulations mandate that the
trial court's decision “shall be supported by written findings in the tribunal's order” explaining the
reasons for the deviation and finding specifically that application of the guidelines would be unjust
or inappropriate. See Tenn. Code Ann. §§ 36-2-311(a)(11)(B),3 36-5-101(e)(1)(A);4 Tenn. Comp.
R. & Regs. 1240-2-4-.06(2), - .07(1) (2008).5

       2
           This portion of the rules and regulations provides in pertinent part:

                  (1) Unless the rebuttal provisions of Tennessee Code Annotated §§ 36-2-311(a)(11)
                  or 36-5-101(e) have been established by clear and convincing evidence provided
                  to the tribunal, then, in cases in which initial support is being set, a judgment must
                  be entered to include an amount of monthly support due up to the date that an order
                  for current support is entered:

                  (a) From the date of the child's birth:
                  1. In paternity cases...


       3
           Tenn. Code Ann. § 36-2-311(a)(11)(B) provides:

                  (B) In cases in which the presumption of the application of the guidelines is
                  rebutted by clear and convincing evidence, the court shall deviate from the child
                  support guidelines to reduce, in whole or in part, any retroactive support. The court
                  must make a written finding that application of the guidelines would be unjust or
                  inappropriate in order to provide for the best interests of the child or the equity
                  between the parties.
       4
           Tenn. Code Ann. § 36-5-101(e)(1)(A) provides:

                  In making the court's determination concerning the amount of support of any minor
                  child or children of the parties, the court shall apply, as a rebuttable presumption,
                  the child support guidelines, as provided in this subsection (e). If the court finds
                  that evidence is sufficient to rebut this presumption, the court shall make a written
                  finding that the application of the child support guidelines would be unjust or
                  inappropriate in that particular case, in order to provide for the best interest of the
                  child or children, or the equity between the parties. Findings that the application of
                  the guidelines would be unjust or inappropriate shall state the amount of support
                  that would have been ordered under the child support guidelines and a justification
                  for the variance from the guidelines.
       5
           Tenn Comp. R. & Regs. 1240-2-4-.06(2) provides:

                  (2) Deviations from the presumption that a judgment for retroactive support shall
                  be awarded back to the date of birth of the child, the date of the separation of the
                  parties, or the date of abandonment of the child shall be supported by written
                  findings in the tribunal's order that include:

                           (a) The reasons the tribunal, pursuant to Tennessee Code
                           Annotated §§ 36-2-311(a)(11)(A) or 36-5-101(e)(1)(C), deviated
                                                                                                            (continued...)

                                                            -4-
        The trial court ordered retroactive child support from September 21, 2005, the date that Ms.
Kennamore filed her petition to establish paternity. In deviating from the statutory and guidelines’
presumption that retroactive child support will be awarded from the date of birth, the court stated
in the November 20, 2008 Order, as follows:

                           Tammy Laree Kennamore, from the time she became pregnant
                   until January 19, 2005, told Bobby Ray Kennamore that he was the
                   father and maintained that Bobby Ray Kennamore was the father of
                   the minor child.
                           Ms. Kennamore, in her Complaint for Divorce, alleged that
                   Bobby Ray Kennamore was the father of the minor child. Bobby Ray
                   Kennamore supported the minor child during their marriage and was
                   told that he was the father of the child by Tammy Laree Kennamore.
                           There is no proof that Tammy Laree Kennamore at any time
                   prior to September 21, 2005, alleged that Albert Thompson was the
                   father of the minor child.



       5
           (...continued)
                            from the presumptive amount of child support that would have
                            been paid pursuant to the Guidelines; and
                            (b) The amount of child support that would have been required
                            under the Guidelines if the presumptive amount had not been
                            rebutted; and
                            (c) A written finding by the tribunal that states how, in its
                            determination,
                                     1. Application of the Guidelines would be
                                     unjust or inappropriate in the particular case
                                     before the tribunal; and
                                     2. The best interests of the child or children
                                     who are subject to the support award
                                     determination are served by deviation from
                                     the presumptive guideline amount.

                   Tenn Comp. R. & Regs. 1240-2-4-.07(1)(b) provides:

                   The tribunal may order as a deviation an amount of support different from the
                   amount of the presumptive child support order if the deviation complies with the
                   requirements of this paragraph (1) and with this chapter. The amount or method of
                   such deviation is within the discretion of the tribunal provided, however, the
                   tribunal must state in its order the basis for the deviation and the amount the child
                   support order would have been without the deviation. In deviating from the
                   Guidelines, primary consideration must be given to the best interest of the child for
                   whom support under these Guidelines is being determined.




                                                           -5-
               *                                  *                                *

                        The Court finds that Tammy Laree Kennamore committed
               fraud in telling her husband, Bobby Ray Kennamore, that he was the
               father of the minor child and that she is judicially estopped from
               asserting that Albert Thompson is the father of the child until such
               time as she filed her petition for child support against Albert
               Thompson on September 21, 2005.
                        The Court finds that it was impossible for Albert Thompson
               to know and that he could not have known of the existence of the
               child or his possible parentage of the child while Tammy Laree
               Kennamore was married to Bobby Ray Kennamore. During her
               marriage she contended that Bobby Ray Kennamore was the father of
               the minor child.
                        The Court finds that Tammy Laree Kennamore intentionally
               and without good caused failed or refused to notify Albert Thompson
               until September 21, 2005, that he was the father of her minor child.
                        The Court finds that Tammy Laree Kennamore at no time
               attempted to or notified Albert Thompson of his possible parentage
               of the minor child.
                        The Court finds that there is no contradiction in the proof that
               the first time Tammy Laree Kennamore alleged that Albert Thompson
               was the father of her minor child was after her divorce from Bobby
               Ray Kennamore.
                        The Court finds that Albert Thompson should pay child
               support retroactive to September 21, 2005, the date on which Tammy
               Laree Kennamore filed her petition for paternity.

        In her brief, Ms. Kennamore first asserts that the trial court incorrectly applied the doctrine
of judicial estoppel. The doctrine of judicial estoppel provides a litigant who has deliberately taken
a position in one judicial proceeding will not, as a matter of law, be allowed to advantage his or
herself by taking an inconsistent position in another suit. See, e.g., Melton v. Anderson, 222 S.W.2d
666 (Tenn. Ct. App.1948). In Melton, this Court specifically said:

               A general statement of the doctrine of judicial estoppel is that where
               one states on oath in former litigation, either in a pleading or in a
               deposition or on oral testimony, a given fact as true, he [or she] will
               not be permitted to deny that fact in subsequent litigation, although
               the parties may not be the same.

Id. at 669 (citations omitted).




                                                 -6-
         In Carvell v. Bottoms, 900 S.W.2d 23 (Tenn.1995), the Supreme Court noted that the policy
undergirding judicial estoppel is to prevent a party from gaining an unfair advantage by taking
inconsistent positions on the same issue in different lawsuits. In this record, it is undisputed that,
from the date of K.R.K.’s birth, Ms. Kennamore represented to her then husband, Mr. Kennamore,
that the child was his. Despite the fact that Ms. Kennamore had engaged in a sexual relationship
with Mr. Thompson at the time of the conception, and, by virtue of that relationship, knew (or should
have known) that there was a possibility that Mr. Thompson was the father, Ms. Kennamore took
the position, under oath, in her complaint for divorce, that K.R.K. was born of the marriage to Mr.
Kennamore. Although we concede that Mr. Thompson is not an innocent party, there is no
indication in the record that he acknowledged paternity prior to receiving the test results. In her
testimony, Ms. Kennamore asserts that, privately, Mr. Thompson acknowledged that he was the
father, and that he knew, because of their ongoing affair, that he had fathered the child. However,
she concedes that there was never any formal acknowledgment of paternity on his part. Mr.
Thompson testified that he was not aware of his possible paternity, and in fact, thought that he was
sterile. Because this case was tried by the court sitting without a jury, we review the findings of fact
de novo upon the record with a presumption of correctness. See Tenn. R. App. P. 13(d). Furthermore,
when the resolution of the issues in a case depends upon the truthfulness of witnesses, the trial judge
who has the opportunity to observe the witnesses and their manner and demeanor while testifying
is in a far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910
S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App.1997).
The weight, faith, and credit to be given to any witness' testimony lies, in the first instance with the
trier of fact, and the credibility accorded will be given great weight by the appellate court. See id.;
see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997).

        In Taylor v. Robinson, No. M2006-00109-COA-R3-JV, 2007 WL 1628862 (Tenn. Ct. App.
June 5, 2007), we determined that requiring payment of retroactive child support back to the child’s
birth would be unjust and inappropriate. In holding that support was only retroactive to the filing
of the petition to establish paternity, we reasoned that, because the mother was sexually active with
other men at the time of the conception, and because she failed to clearly notify the father of her
pregnancy, it would be inequitable to charge the biological father with retroactive support back to
the child’s birth. Id.

          In the case of In re T.K.Y., 205 S.W.3d 343 (Tenn.2006), the Tennessee Supreme Court
stated:

                Section 36-2-311(a)(11)(A), governing retroactive child-support
                orders, sets forth only three factors to be considered as a basis for
                awarding less than full retroactive support: the father's lack of
                knowledge of the existence of the child; the mother's intentional
                failure to inform the father of the existence of the child; and the
                mother's attempts to notify the father of the existence of the child.
                Tenn. Code Ann. § 36-2-311(a)(11)(A)(i)-(iii). In other words, the
                statute only contemplates excusing retroactive child support to the


                                                  -7-
                date of birth in circumstances where the father was not aware of the
                existence of the child....

Id. at 355.

         As noted above, the statute further provides that the court may consider “the equity between
the parties.” Tenn. Code Ann. § 36-5-101(e)(1)(A). The statutory scheme requires that, when a
court finds “evidence that is sufficient” to rebut the presumption that the amount of support should
be the amount resulting from application of the guidelines formula, then the court must make a
written finding that “the application of the child support guidelines would be unjust or inappropriate
in that particular case, in order to provide for the best interest of the child or children, or the equity
between the parties.” Tenn. Code Ann. § 36-5-101(e)(1)(A).

        In In re T.K.Y., the Court held that the “equity between the parties” language gives trial
courts discretion to deviate from the guidelines when setting retroactive support for reasons other
than, or in addition to, the situations spelled out in Tenn. Code Ann. § 36-2-311(a)(11)(A), i.e.,
where the father does not know of the child's existence. Rather, the trial court can make use of the
authority granted by Tenn. Code Ann. § 36-5-101(e)(1)(A) to deviate from the guidelines and reduce
retroactive child support “in order to provide for ... the equity between the parties.” Thus, the statute
allows the court to consider the equity between the parties even where the factors described in Tenn.
Code Ann. § 36-2-311(a)(11)(A) do not apply. See also State ex rel. Irwin v. Mabalot,
M2004-00614-COA-R3-CV, 2005 WL 3416293, at *6 (Tenn. Ct. App. Dec. 13, 2005). In In re
T.K.Y., the Supreme Court specifically found that the equity between the parties required it to
suspend the child support obligation during the period when the biological father was denied access
to the child:

                [the biological father] did not have the benefits or responsibilities
                flowing from an adjudication of parenthood, or the rights flowing
                from court-ordered visitation, his ability to form a parental
                relationship was entirely dependent upon the willingness of [the
                custodial parents] to permit him to do so. They vigorously denied him
                that opportunity.

In re T.K.Y., 205 S.W.3d at 356.

        Here, in accordance with the statutory mandates, the trial court correctly recited the statutory
basis for a deviation from the guidelines, and provided written findings concerning its reasons for
the deviation. We have reviewed the record and find that it supports the trial court’s conclusion that
the guidelines’ presumption was rebutted, as well as its conclusion that the equity between the parties
allows for a deviation. The record clearly demonstrates that Ms. Kennamore held Mr. Kennamore
out as the father of K.R.K. until after their divorce. The record also demonstrates that Mr.
Kennamore supported the child until the divorce, and that Mr. Thompson had no basis, other than
the fact of his liaison(s) with Ms. Kennamore, from which to conclude that he was the father of her


                                                   -8-
child. From the record as a whole, and pursuant to the statutory scheme, we find that the trial court
did not abuse its discretion in deviating from the guidelines by awarding child support retroactive
to the date of the filing of the petition to establish paternity.

       For the foregoing reasons, we affirm the order of the trial court. Costs of this appeal are
assessed against the Appellant, Tammy Laree Kennamore, and her surety.




                                                      ___________________________________
                                                      J. STEVEN STAFFORD, J.




                                                -9-
