                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                           Assigned on Briefs August 8, 2012

                JAMES TODD HARRIS v. AMY PRICE HARRIS

                    Appeal from the Circuit Court for Sevier County
                     No. 2011-0457-II    Richard R. Vance, Judge


             No. E2012-00300-COA-R3-CV-FILED-OCTOBER 31, 2012


This appeal arises from a dispute over the trial court’s jurisdiction to hear an appeal from a
magistrate’s order on child support. Amy Price Harris (“Mother”) filed a petition to increase
child support from her former husband, James Todd Harris (“Father”), for their minor child.
Two hearings were held before a magistrate, resulting in, among other things, an increase of
child support. The trial judge did not confirm the magistrate’s order. This case later was
transferred from the Fourth Circuit Court for Knox County to the Circuit Court for Sevier
County (“the Trial Court”). Several months later, Father filed a motion to correct the
magistrate’s order concerning child support. The Trial Court held that it lacked jurisdiction
at that point to change the prior child support arrearage judgment or hold a rehearing on that
issue. Father appeals. We vacate the judgment of the Trial Court and remand for further
proceedings.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated;
                                  Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,
J R., and J OHN W. M CC LARTY, JJ., joined.

Rebecca D. Slone, Dandridge, Tennessee, for the appellant, James Todd Harris.

Felisha B. White, Seymour, Tennessee, for the appellee, Amy Price Harris.
                                                OPINION

                                               Background

                Father and Mother divorced in 1995, and subsequently shared joint custody of
their minor child. Father was ordered to pay child support for the parties’ minor child in the
amount of $80.00 per week. This amount later was increased to $110.54 per week. The
parties’ relations apparently grew increasingly antagonistic. In 2003, both parties signed a
document that purported to terminate Father’s parental rights to the child.1 Father stopped
making child support payments. In 2009, Mother filed her Petition to Modify and for Civil
Contempt, alleging that Father had not fulfilled his obligations. Father filed an answer in
opposition to Mother’s petition, alleging that Mother had attempted to bar him from the
child’s life.

              The first hearing on this petition was conducted before the Referee for the
Fourth Circuit Court for Knox County. As a result of that hearing, the Referee, in June 2010,
entered an order increasing Father’s child support obligation to $758.00 per month and
finding Father to be in arrears of $41,273.63 for child support and $1,153.05 in
reimbursements for health insurance premiums. An additional hearing took place in October
2010.2 As a result of that hearing, the Magistrate of the Fourth Circuit Court for Knox
County, among other things, increased Father’s child support to $968.00 per month and child
support arrears to $45,142.26. Attorney’s fees also were awarded to Mother. Neither order
was confirmed by the Judge for the Fourth Circuit Court for Knox County.

              In March 2011, Father, with new counsel, filed a motion to transfer venue to
the Trial Court. The case subsequently was transferred out of Knox County to the Trial
Court. In September 2011, Father filed his Petition for Correction of Judgment and
Modification of Child Support and Parenting. In his petition, Father alleged, with respect to
the most recent order of the Magistrate, that, among other things: no confirmation order ever
was entered; the child support calculations had a faulty basis; Father was entitled to a set off
credit based on his being entitled to claim the child as a dependent for tax purposes; and, that
Mother had defrauded Father in 2003 by representing that his parental rights were
terminated.




       1
           This rather dubious document did not terminate Father’s parental rights.
       2
          At the second hearing, the same presiding individual, formerly referred to as Referee, now was
referred to as Magistrate. This distinction is not relevant in this appeal.

                                                     -2-
               A hearing, for which the record contains a transcript, was conducted on
Father’s petition in December 2011. The Trial Court stated that review of the Referee’s
decision required a request for hearing within 10 days, which did not happen in this case.
In January 2012, the Trial Court entered its order denying Father’s petition on jurisdictional
grounds. The Trial Court stated in relevant part: “Upon arguments of counsel and entire
record as a whole, this Court finds that it does not have jurisdiction to change or modify the
prior arrearage judgment amount or to have a rehearing regarding those issues.” The Trial
Court thus denied Father’s request for correction. Father appeals to this Court.

                                          Discussion

              Though not stated exactly as such, Father raises one issue on appeal: whether
the Trial Court erred in holding that it lacked jurisdiction to hear Father’s petition. Mother
requests her attorney’s fees on appeal.

               Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the evidence
is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).
A trial court's conclusions of law are subject to a de novo review with no presumption of
correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.
2001).

             Regarding appeals of magistrate’s decisions in child support matters,
Tennessee law provides in relevant part:

       (g) Upon the conclusion of the hearing in each case, the magistrate shall
       transmit to the judge all papers relating to the case, along with the magistrate's
       findings and recommendations in writing. A magistrate's decision on a
       preliminary matter, not dispositive of the ultimate issue in the case, shall be
       final and not reviewable by the judge.

       (h) Any party may, within five (5) days thereafter, excluding nonjudicial days,
       file a request for a hearing by the judge of the court having jurisdiction. The
       judge may, on the judge's own motion, order a rehearing of any matter heard
       before a magistrate, and shall allow a hearing if a request for such is filed as
       herein prescribed. Unless the judge orders otherwise, any recommendation of
       the magistrate shall be in effect pending rehearing or approval by the court.




                                              -3-
       (I) If a hearing before the judge is not requested, the findings and
       recommendations of the magistrate become the final decree of the court when
       confirmed by an order of the judge.

Tenn. Code Ann. § 36-5-405 (g) - (i) (2010).

               Father relies on State. Dept. of Children’s Services v. S.A.M.H., No.
E2004-02543-COA-R3-PT, 2005 WL 850356 (Tenn. Ct. App. April 13, 2005), no appl.
perm. appeal filed. In S.A.M.H., the referee concluded that mother’s parental rights to her
children should be terminated. Id. at *2. The referee failed to notify mother that she had five
judicial days in which to request a rehearing before the juvenile court judge, and mother filed
her petition late. Id. The juvenile court judge declined to hear mother’s appeal, holding that
the appeal was not filed timely. Id. We reversed, holding that, as the referee’s order had not
yet been confirmed, the juvenile court judge retained jurisdiction. Id. at *6. We stated:

               After reading the transcript from the hearing on whether Mother was
       entitled to a de novo hearing before the Juvenile Court Judge, it appears to this
       Court that the Juvenile Court Judge certainly wanted to correct any potentially
       negative effects flowing from the Referee's inadvertent noncompliance with
       Tenn. R. Juv. P. 4(c)(2). However, the Juvenile Court Judge believed he was
       without any jurisdiction to do so. This belief was mistaken because at that
       particular point in time the Referee's order had yet to be confirmed by the
       Juvenile Court Judge. Therefore, the Referee's order was not final even though
       the time for Mother to perfect an appeal may have passed. Absent a final order
       of confirmation, the Juvenile Court Judge had the authority under Tenn. Code
       Ann. 37-1-107(e) and Tenn. R. Juv. P. 4(c)(1) to order a full evidentiary
       rehearing regardless of whether Mother had filed a timely appeal. After
       considering all relevant factors, including the Referee's failure to comply with
       Tenn. R. Juv. P. 4(c)(2) as well as Mother's constitutionally protected rights,
       we hold that under these circumstances the Juvenile Court Judge erred by not
       granting Mother a rehearing on his own motion.

S.A.M.H., 2005 WL 850356, at *6.




                                              -4-
               Mother disputes the relevance of S.A.M.H., noting that the rule and statute
involved there, Tenn. R. Juv. P. (4)(c)(2) and Tenn. Code Ann. § 37-1-107 (e), are not
applicable in this case. However, the language of Tenn. Code Ann. § 37-1-107 (e) is
virtually identical to the language of Tenn. Code Ann. § 36-5-405 (h), the section Mother
argues is relevant and applicable.3

                We believe the fundamental rationale supporting our opinion in S.A.M.H.
applies equally as well to this case. The record does not contain an order from either the
Fourth Circuit Court for Knox County or the Trial Court confirming the order of the
Magistrate. Therefore, the Magistrate’s order was not final. The Trial Court had the
discretion whether to hear Father’s untimely filed petition, and then, if it decided to hear the
petition, whether to grant or deny the petition. Here, the Trial Court never exercised its
discretion, instead denying Father’s requested relief on jurisdictional grounds. Respectfully,
this was in error. We vacate the judgment of the Trial Court and remand the case for the
Trial Court to exercise its discretion whether to hear Father’s petition, and, if so, whether to
grant or deny the petition. If the Trial Court, in its discretion, declines to hear Father’s
petition, it then should enter an order confirming the Magistrate’s order.

               Next, we address whether Mother should be awarded her attorney’s fees on
appeal. Mother cites to language from an opinion of this Court in which we awarded the
custodial mother attorney’s fees when she defended the father’s appeal of an increase in child
support, to wit: “The allowance of attorney's fees for appealing this case is for the benefit of
the child, and the custodial spouse should not have to bear the expense incurred on the child's
behalf.” Ragan v. Ragan, 858 S.W.2d 332, 334 (Tenn. Ct. App. 1993). However, in Ragan,
we also stated that the father’s appeal rested on a contention “without merit.” Id. In the
instant case, on the other hand, Father prevails on appeal. This is a significant distinction.
We decline to award Mother her attorney’s fees on appeal.




       3
           Tenn. Code Ann. § 37-1-107 (e) (2010) provides:

       (e) Any party may, within five (5) days thereafter, excluding nonjudicial days, file a request
       with the court for a hearing by the judge of the juvenile court. The judge may, on the judge's
       own motion, order a rehearing of any matter heard before a magistrate, and shall allow a
       hearing if a request for such hearing is filed as herein prescribed. Unless the judge orders
       otherwise, the recommendation of the magistrate shall be the decree of the court pending a
       rehearing.

                                                    -5-
                                       Conclusion

              The judgment of the Trial Court is vacated, and this cause is remanded to the
Trial Court for further proceeding as necessary and as consistent with this Opinion. The
costs on appeal are assessed against the Appellee, Amy Harris Price.


                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE




                                            -6-
