                       IN THE COURT OF APPEALS OF TENNESSEE
                            WESTERN SECTION AT JACKSON
                    ______________________________________________

JACQUELINE FIELDS,                                     Shelby Juvenile No. E0932
                                                       The Hon. A. V. McDowell,
          Petitioner-Appellant,                Judge

                                                       REMANDED
Vs.

VINCENT SCOTT FIFER,
                          FILED                        C.A. No. 02A01-9804-JV-00118

                                                       Weissman & Associates
                                                       of Memphis, For Appellant
                          August 2, 1999
          Defendant-Appellee.
                                           Charles A. Sevier and Gail
                         Cecil Crowson, Jr.
                                           R. Sevier of Memphis,
                        Appellate Court Clerk
                                           For Appellee
____________________________________________________________________________

                          MEMORANDUM OPINION1
____________________________________________________________________________


          This case, which is before us a second time, involves a child support controversy.

Petitioner-Appellant, Jacqueline B. Fields, appeals the juvenile court’s order modifying the

amount of child support that Respondent-Appellee, Vincent Scott Fifer, was originally ordered

to pay.

          On August 18, 1993, Ms. Fields filed a petition against Mr. Fifer in the Juvenile Court

of Memphis and Shelby County to establish paternity of Brandon Lawrence Fields (now

Brandon Lawrence Fifer), born August 31, 1992, and to set child support. On September 15,

1993, the juvenile court entered a default judgment declaring Mr. Fifer the father of the minor

child and setting monthly child support at $1,155.00. Mr. Fifer’s subsequent motion to set aside

the default judgment as to child support was granted and a hearing was held on September 30,

1993. Following the hearing, the juvenile court reset the monthly child support at $840.00. The

judge deviated downward from the amount required by the Tennessee Child Support Guidelines

finding that application of the guidelines would be unjust and inappropriate.

          Ms. Fields appealed to this Court and on September 20, 1995, the Court filed a

memorandum opinion that vacated the order of the juvenile court and remanded the case for a



          1
            Rule 10 (Court of Appeals). Memorandum Opinion.--(b) The 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
“MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for
any reason in a subsequent unrelated case.
determination of Mr. Fifer’s gross income, a determination of the amount of support applicable

under the guidelines, and written findings as required by T.C.A. § 36-5-101(e)(1). On remand,

the juvenile court, in an order filed on February 13, 1996, found Mr. Fifer’s monthly gross

income to be $7,176.00 and guideline support to be $1,055.00 per month. However, finding

application of the guidelines to be unjust and inappropriate given Mr. Fifer’s monthly income

deficiency due to his many expenses and debts (some of which were court ordered),2 the judge

again set child support at $840.00 per month.

         On March 4, 1996, Ms. Fields filed a “Petition to Modify Order” with regard to the

juvenile court’s order setting child support at $840.00 per month. In the petition, Ms. Fields

requested that the amount of child support be increased due to a change in circumstances in that

the expenses for the minor child had greatly increased, that Mr. Fifer’s salary had increased, and

that Mr. Fifer is capable of paying an increase in child support. Ms. Fields also filed a notice of

appeal to this Court on March 13, 1996.3 On April 3, 1996, Mr. Fifer filed a motion requesting

a stay of the petition to modify which was granted by the juvenile court due to the appeal to this

Court.

         Mr. Fifer filed a motion to dismiss the petition to modify and after this motion was

dismissed, a hearing was held. On March 12, 1998, the juvenile court entered an order styled

“Modification of Order” in which the court increased monthly child support payments to

$1,378.65 and ordered Mr. Fifer to pay $250.00 per month into a trust fund for the minor child.

This appeal ensued.4


         2
          On March 17, 1994, Mr. Fifer and his wife, who was not Ms. Fields, entered into a
marital dissolution agreement which was incorporated into the final decree of divorce. In the
decree, Mr. Fifer was ordered, inter alia, to pay his wife rehabilitative alimony in the amount
of $2,200.00 per month for three years, $1,750.00 per month for the fourth year following the
divorce, $1,500.00 per month for the fifth and sixth years following the divorce, and $1,000.00
per month for the seventh, eighth, ninth and tenth years following the divorce.
         3
          On October 12, 1998, Mr. Fifer filed a motion to dismiss this appeal for Ms. Fields’
failure to file a transcript or statement of the evidence or a statement that there would be no
transcript as required by T.R.A.P. 24. In the alternative, Mr. Fifer sought dismissal for Ms.
Fields’ failure to prosecute the appeal.
        After consideration of the foregoing, this Court entered an order on November 12, 1998,
dismissing the appeal for Ms. Fields’ failure to file a transcript.
         4
           Upon consideration of a petition for rehearing filed by Ms. Fields, this Court, on
January 19, 1999, entered an order finding that all issues raised in the notice of appeal filed on
March 13, 1996 are a part of the current appeal and may be addressed therein. This was
determined to be the case since the earlier notice of appeal was not ripe for appeal because of the
petition to modify filed on March 4, 1996 which this Court considered to be a Tenn. R. Civ. P.

                                                2
       In her initial brief to this Court, Ms. Fields raises the following issue for our review:

               Did the trial court err in setting the required child support below
               the Tennessee guidelines on grounds of the Defendant’s
               obligation of court-ordered alimony?

However, in her supplemental brief, Ms. Fields raises the following additional issues:

               1. Did the Honorable Special Judge of the Juvenile Court of
               Memphis and Shelby County, Tennessee err in setting child
               support for the parties’ minor child in an amount less than the
               Tennessee Child Support Guidelines promulgated by the
               Tennessee Department of Human Services?

               2. Did the Honorable Special Judge err when he failed to include
               as the defendant’s gross income, income received from the sale
               of stock (and from bonuses or commissions) in light of Rule
               1240-2-4.03(3) of the Tennessee Child Support Guidelines, which
               provides that gross income includes income from any source?

               3. Did the Honorable Special Judge err in not considering the
               amount of visitation that the defendant actually spends with the
               minor child when the Tennessee Child Support Guidelines Rule
               1240-2-4.04 states that child support can be increased when the
               child does not stay overnight with the obligor for the average
               amount of visitation as promulgated by the Tennessee Child
               Support Guidelines?

       While Ms. Fields styled her March 1996 pleading as a “Petition to Modify Order” and

included language requesting an increase in child support due to a change in circumstances, we

consider this to be a Tenn. R. Civ. P. 59.04 motion to alter or amend a judgment since it was

filed within thirty days of the order of the juvenile court. For whatever reason, the juvenile court

failed to rule on this motion for approximately two years, and, when it did consider the motion,

the juvenile court treated it as a petition to modify child support due to a change in Mr. Fifer’s

financial situation, thus considering matters improper to a Rule 59.04 motion.

       As we view the record in this case, after the initial remand from this Court, the juvenile

court entered a final judgment on February 13, 1996, again setting the child support at $840.00

per month. On March 4, 1996, Ms. Fields filed a “Petition to Modify Order,” which specifically

sought to increase the amount of support awarded in the February order and which is, in effect,

a 59.04 motion. In January of 1998, the court held a hearing on the March 1996 motion, and on

March 12, 1998, entered an order styled “Modification of Order” setting child support at

$1,378.65 per month, plus ordering Mr. Fifer to pay $250.00 per month into a trust fund. The



59.04 motion to alter or amend a judgment thus tolling the time for filing the notice of appeal
until the trial court disposes of the motion.

                                                 3
order specifically provides that payments are to begin March 15, 1998.

       It is apparent that the trial court failed to consider Ms. Fields’s motion as it related to the

February 13, 1996 final judgment. No provision is made in the order concerning the interim time

between February of 1996 to March of 1998. The record in this case indicates that it is now in

a state approaching a “procedural nightmare.” For that reason, this is an appropriate case for the

application of T.C.A. § 27-3-128 (1990) which provides:

               27-3-128. Remand for correction of record. -- The court shall
               also, in all cases, where, in its opinion, complete justice cannot be
               had by reason of some defect in the record, want of proper parties,
               or oversight without culpable negligence, remand the cause to the
               court below for further proceedings, with proper directions to
               effectuate the objects of the order, and upon such terms as may be
               deemed right.

       On remand, the juvenile court should first consider Ms. Fields’s 59.04 motion relating

to the February 1996 order. After making a determination of the proper amount of support as

of February 1996, the parties can then file appropriate motions to modify and then determine if

there is presently a significant variance between the child support award and the amount

provided for in the guidelines. In considering the motions to modify, the court should give due

regard to the effective date of any order of modification and make a determination concerning

an arrearage or overpayment of support during the time the February 1996 order was in effect.

       Counsel for the parties should cooperate to get the record in proper form and thus insure

prompt payment of the support to which the child is entitled. Pending an order by the court on

remand, the trial court’s order of March 1998 shall remain in full force and effect.

       Costs of the appeal are assessed equally against the parties.

                                                        _________________________________
                                                        W. FRANK CRAWFORD,
                                                        PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




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