                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                          Assigned on Briefs August 05, 2014

                                   IN RE JEWEL M.

               Appeal from the Juvenile Court for Montgomery County
                   No. CNRC062453       Kenneth R. Goble, Judge




            No. M2012-02625-COA-R3-JV          - Filed September 10, 2014


Father of Child filed a petition seeking parenting time with Child when she was four years
old. Mother sought retroactive child support from Father dating back to Child’s birth. The
trial court entered an order stating that the child support arrearage would be measured from
the date Father filed his petition. The permanent parenting plan order that was entered the
same day, however, was inconsistent and indicated that the arrearage would be measured
from the date of Child’s birth. Father appealed, arguing that the order measuring the child
support arrearage from the date of the petition should control. The record contains no
transcript or statement of the evidence, and we cannot determine which order contains the
correct date. We vacate the portion of the trial court’s judgments relating to Father’s child
support arrearage and remand the case back to the trial court for further proceedings. Should
the court determine the child support arrearage should date back to the filing of the petition
rather than to Child’s birth, the court will have an opportunity to make findings supporting
such a deviation from the child support guidelines, as required by the applicable statutes and
guidelines.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                           Vacated in Part and Remanded

A NDY D. B ENNETT, J., delivered the opinion of the court, in which R ICHARD H. D INKINS, and
W. N EAL M CB RAYER, JJ., joined.

B. Nathan Hunt and S. Allison Winters, Clarksville, Tennessee, for the appellant, James T.M.

Gregory D. Smith, Clarksville, Tennessee, for the appellee, Tina M.R.
                                               OPINION

        The parties in this case are James T.M. (“Father”) and Tina M.R. (“Mother”), who are
the parents of Jewel M. Father filed a petition in November 2009, when Jewel was four years
old, to establish his paternity and set a schedule for him to spend time with his child. The
trial court scheduled the case for trial in February 2010 and awarded Father pendente lite
parenting time with Jewel in the meantime. The trial date was continued numerous times for
reasons that are not apparent in the record. In April 2011, Mother filed a motion for child
support. She stated in her motion that Father had provided child support sporadically since
Jewel’s birth. Mother asked the court to determine Father’s child support obligation and to
order him to pay retroactive support going back to the date of Jewel’s birth.

        Following additional continuances, the court held a hearing on September 29, 2011,
and entered an Order for Retroactive Child Support. The court found that Father waived any
objection to Mother’s request for retroactive child support dating back to the date of Jewel’s
birth because he failed to file a timely objection. The court reserved the issue of calculating
the full amount of retroactive child support until November 11, 2011, when the final hearing
on child support was scheduled to take place.

        The hearing scheduled for November 11 was continued until December 22, 2011. The
trial court entered an order on October 25, 2012, in which it named Mother the primary
residential parent and set forth a visitation schedule for Father to spend time with Jewel
throughout the year. With respect to Father’s child support arrearage, the court wrote:

                IT IS FURTHER ORDERED that the previous Order from this Court
        determining the amount of arrearage dating back to the birth of the child is
        reversed and the Court orders today that arrearage shall date back to the filing
        of the original petition. That an additional $50.00 a month is ordered in
        addition to the child support determination until the arrearage is satisfied. If
        there is documented support then credit will be given towards the arrearage.1

       The trial court signed a permanent parenting plan order on the same day, October 25,
2012, that is inconsistent with its order. In the section titled “Child Support,” there is a
subsection called “Retroactive Support,” which provides:

        A judgment is hereby awarded in the amount of $39,735.00 to mother against


        1
          The parties agree that the “original petition” the court referenced in its Order refers to Father’s
petition filed in November 2009, in which he sought to establish paternity and set up a visitation schedule.

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       the child support payor representing retroactive support . . . dating from July
       2005 which shall be paid (including pre/post judgment interest) at the rate of
       $50.00 per month until the judgment is paid in full. That father has a
       $3,050.00 credit making the judgment amount $36,685.00.

        On November 5, 2012, Father filed a Motion to Reconsider or in the Alternative,
Application for Appeal to Circuit Court. Then, before the trial court could rule on his
motion, Father filed a notice of appeal with this Court on November 20, 2012. On appeal,
Father argues the permanent parenting plan order dated October 25, 2012, is inconsistent
with the final order, also dated October 25, 2012, and that the final order should be the
determinative document. Father also contends the amount of retroactive support awarded
in the permanent parenting plan order is incorrect.

       As a general rule, our review of the trial court’s decision is de novo upon the record,
accompanied by a presumption of correctness of the trial court’s findings of fact, unless the
preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013); Rigsby v. Edmonds, 395 S.W.3d 728, 734
(Tenn. Ct. App. 2012). We review a trial court’s conclusions of law de novo, according them
no presumption of correctness. Armbrister, 414 S.W.3d at 692; Rigsby, 395 S.W.3d at 734.
The problem we have here, however, is that the record does not contain any findings of fact,
a transcript of the hearing held on December 22 (or any other date), or a statement of the
evidence.

        When the identity of a child’s father is at issue and becomes established, the court is
directed to enter an order determining child support, among other issues. Tenn. Code Ann.
§ 36-2-311(a)(11). The court is to consider the Child Support Guidelines in setting the
amount of retroactive child support that is owed. Tenn. Code Ann. §§ 36-2-311(a)(11)(A),
36-5-101(e)(1)(A) (2011). According to the guidelines, a judgment for retroactive support
“must be entered to include an amount of monthly support due up to the date that an order
for current support is entered from the date of the child’s birth” unless the rebuttal provisions
set forth in Tenn. Code Ann. §§ 36-2-311(a)(11) or 36-5-101(e) have been established by
clear and convincing evidence. T ENN. C OMP. R. & R EGS. 1240-2-4-.06(1)(a) (2008). Both
the guidelines and the statutes require a court to make written findings supporting a deviation
from the presumption that a judgment for retroactive child support shall be awarded back to
the date of the child’s birth. Tenn. Code Ann. § 36-2-311(a)(11)(B), (F); Tenn. Code Ann.
§ 36-5-101(e)(1)(D); T ENN. C OMP. R. & R EGS. 1240-2-4-.06(2).

        The trial court’s order indicating that the child support arrearage “shall date back to
the filing of the original petition” constitutes a deviation from the statutory and regulatory
guidelines, requiring written findings. See T ENN. C OMP. R. & R EGS. 1240-2-4-.06(2)(a)-(c)


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(identification of factors court must include in written findings to support deviation from
presumption that arrearage should be calculated from date of child’s birth). Without a
transcript or findings of fact, we cannot know whether the trial court meant to enter a
judgment for retroactive support dating back to Jewel’s birth or dating back to the date Father
filed his petition.

        The only way to reconcile the inconsistent orders in this case is to remand the case
back to the trial court for further proceedings. If the court determines that Father owes
retroactive child support dating back to Jewel’s birth, the court will have the opportunity to
enter another order making that clear. On the other hand, if the court determines that the
evidence is clear and convincing that a deviation from the guidelines is appropriate in this
case, the court will have an opportunity to make written findings supporting that outcome,
as set forth in the statutes and the guidelines. See In re T.K.Y., 205 S.W.3d 343, 355 (Tenn.
2006) (general discussion of retroactive child support statute and guidelines).

       The portions of the trial court’s judgments addressing Father’s child support arrearage
are vacated and remanded for further proceedings consistent with this opinion. Costs of this
appeal shall be split between the appellant, James T.M., and the appellee, Tina M.R., for
which execution shall issue, if necessary.




                                                              _________________________
                                                              ANDY D. BENNETT, JUDGE




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