                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 On Brief September 20, 2005

      STATE OF TENNESSEE ex rel., SHANNON NICOLE FARMER v.
                  RODERICK LAMONT PARSON

                 A Direct Appeal from the Juvenile Court for Shelby County
                 No. N9456   The Honorable Herbert L. Lane, Special Judge


                   No. W2004-02588-COA-R3-JV - Filed November 30, 2005


        This is a Title IV child support case. The State appeals from the trial court’s Order forgiving
Father/Appellee’s child support arrears because Father/Appellee allegedly made support payments
directly to the mother. The trial court made no findings to support a deviation from the child support
guidelines as required by T.C.A. §36-2-311 (Supp. 2004). Consequently, we reverse and remand.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court is Reversed and
                                       Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY M. KIRBY , J., joined.

Paul G. Summers, Attorney General and Reporter; Warren Jasper, Assistant Attorney General, For
Appellant, State of Tennessee ex rel., Shannon Nicole Farmer

No appearance by Appellee.

                                             OPINION

       Shannon Nicole Farmer is the mother of Jeremy Ryan Farmer (d.o.b. 9/29/99) and Roderick
Lamont Farmer (d.o.b. 01/30/01). On December 4, 2002, Ms. Farmer petitioned the Juvenile Court
of Shelby County to establish Roderick Lamont Parson (“Appellee”) as the natural father of the two
children. Paternity tests revealed that Mr. Parson was the biological father of Roderick Lamont
Farmer but excluded him as the father of Jeremy Ryan Farmer. The Referee of the Juvenile Court
(“Referee”) entered his Findings and Recommendations on May 6, 2003. The Findings and
Recommendations read, in relevant part, as follows:

               The defendant, Roderick Lamont Parson, having failed to appear in
               Court after having been properly summoned, and upon motion of the
               petitioner for judgment by default, and upon proof introduced
              including a positive DNA test and the entire record, the Referee finds
              that the defendant is the natural father of said child(ren).

              IT IS THEREFORE RECOMMENDED

              1. That the petition be dismissed with prejudice as [to] Jeremy Ryan
              Farmer, born September 29, 1999 due to the defendant having been
              excluded by DNA tests.

              2. That Roderick Lamont Farmer shall be a legitimate child(ren) of
              the defendant for purpose of inheritance, support, and all other lawful
              purposes and that custody of Ro[derick] Lamont [Farmer] be awarded
              to mother.

              3. That the defendant pay all medical expenses incident to the birth
              of Ro[derick] Lamont Farmer and that he pay $348.00 monthly, to the
              Central Child Support Receipting Unit...toward the support of said
              child(ren) beginning on [] June 1, 2003, and that future payments be
              made by income assignment. Unless specifically ordered by the
              Court, such support shall not be reduced or prorated.

              *                                       *                            *

              6. That the retroactive child support be established at $9,326.00 to be
              repaid at the rate of $50.00 monthly.

These Findings and Recommendations were confirmed as the decree of the Juvenile Court. On May
12, 2003, Mr. Parson requested a hearing before the trial court. A hearing was held on November
6, 2003. At that hearing, the following, relevant testimony, was adduced:

              THE COURT: Were you [Ms. Farmer] receiving benefits for all the
              children during–during this period of time?

              MS. FARMER: Yes.

              THE COURT: Were you receiving any assistance from the fathers of
              those children?

              MS. FARMER: Well, he’s [Mr. Parson] been taking care of both of
              them...from the other father.

              THE COURT: He was taking care of both of the children?



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               MS. FARMER: Yes, sir.

               *                                       *                         *

               THE COURT: All right. Sir, the support that was set in this case,
               $348 a month, seems to be an appropriate amount of support.
               However, based upon her testimony today that you have provided her
               with support during the period of time for the–the date of the birth of
               the child until entry of this order, I will show that it’s retroactive
               support which was established at $9,326. You will receive credit for
               the same amount, leaving an arrearage at zero.

                       However, you are still receiving benefits from the State, which
               means that the State is entitled to some reimbursement for those
               benefits. So you will have to continue to pay this $348 per month
               until such time as you resolve all those issues with the State.

               *                                           *                         *

               MR. MURRELL: Your Honor, on behalf of the State, I would assert
               that the Court’s ruling inhibits the ability of the State to recover
               monies that are owed to it by giving a credit that--

               THE COURT: I understood that, Mr. Murrell. But for two years, this
               man has been supporting not only this woman’s child, but another
               child that she had by another man. So in fairness to him, it would
               seem to me that he should be given some credit for the amount of
               money that he has paid directly to her.

On November 6, 2003, the trial court entered an Order, which reads, in pertinent part, as follows:

               IT IS THEREFORE ORDERED

               1. That the Referee’s ruling of May 6, 2003, be and is hereby
               reconfirmed as the decree of this Court with the exception of the
               amount of retroactive child support.

               2. That the retroactive child support be established at $0.00.

         On November 26, 2003, the State of Tennessee (“State,” or “Appellant”) filed a “Motion to
Alter or Amend,” which was heard by the trial court on September 7, 2004. On September 7, 2004,
the trial court entered its Order dismissing the State’s Motion. The State appeals and raises one issue



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for review as stated in its brief: Whether retroactive child support was unlawfully established at
$0.00 by the Juvenile Court?1

         From our review of the record, it appears that the trial court “forgave” Mr. Parson’s child
support arrears because Mr. Parson allegedly supported both of Ms. Farmer’s children by paying
monies directly to her. In so doing, the trial court effectively condoned an agreement between the
parents of this minor child whereby the father was allowed to circumvent his obligation to pay
retroactive child support. The record, however, is devoid of any evidence to support the trial court’s
decision. In the first instance, it is not clear from the record that Mr. Parson paid any amount of
support to Ms. Farmer. And, even if we assume, arguendo, that he did make such payments, there
is no indication as to the amount(s) of same. Nonetheless, T.C.A. § 36-5-101(a)(4)(E) (Supp. 2004)2
states, in relevant part, that:

                    In all Title IV-D child support cases, child support payments shall be
                    made by the obligor to the clerk of court, or the department.... In
                    Title IV-D child support cases...no credit shall be given to an obligor
                    for any payments made by the obligor or by another person on behalf
                    of the obligor, directly to an obligee or the obligor’s child or children
                    unless the obligee remits the payment to the department or the
                    participating clerk....

        Regardless of whether there was any agreement between Mr. Parson and Ms. Farmer
concerning support for this child, T.C.A. §36-2-311(Supp. 2004) requires the trial court to determine
any retroactive child support according to the guidelines or, if the court deviates from same, to make
written findings to support the deviation, to wit:

                    36-2-311. Order of parentage.– (a) Upon establishing parentage,
                    the court shall make an order declaring the father of the child. This
                    order shall include the following:

                    *                                             *                                 *

                    11(A) Determination of child support pursuant to chapter 5 of this
                    title. When making retroactive support awards pursuant to the child
                    support guidelines established pursuant to 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


         1
             Mr. Parson filed no brief in this appeal.

         2
            W e note that this statute has been modified at T.C.A. §36-5-101(d)(7) (2005). However, the relevant
requirements of the statute are the same since T.C.A. §36-5-101(d)(7), like its 2004 counterpart, states that “[n]o credit
shall be given to an obligor for any payments made by the obligor or by another person on behalf of the obligor, directly
to an obligee or the obligor’s child or children....”

                                                           -4-
               support for the benefit of the child shall be awarded retroactively to
               the date of the child’s birth:

               *                                       *                             *

               (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.

(Emphasis added).

         Here, the trial court deviated from the child support guidelines in setting retroactive child
support at $0.00. However, in so doing, the court made no written findings as to why such deviation
was necessary. Consequently, we reverse the trial court’s order and remand for either a
determination of retroactive child support according to the guidelines or an entry of written findings
to justify a deviation from those guidelines pursuant to the criteria outlined in T.C.A. §36-2-311.

       Accordingly, we reverse the Order of the trial court and remand for such further proceedings
as may be necessary consistent with this Opinion. Costs of this appeal are assessed against the
Appellee, Roderick Lamont Parson.




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




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