                                                      FILED
                                                            July 29, 1998

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
YVETTE PATRICE GARRETT,              )    Sumner Juvenile
                                     )    No. 48-99
      Plaintiff/Appellant,           )
                                     )
VS.                                  )
                                     )
JAMES EDWARD GRAY, JR,               )    Appeal No.
                                     )    01A01-9709-JV-00489
      Defendant/Appellee.            )


                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

        APPEAL FROM THE JUVENILE COURT OF SUMNER COUNTY
                     AT GALLATIN, TENNESSEE

                     HONORABLE BARRY BROWN, JUDGE



James W. Price, Jr.
Suite 1230
First American Center
Nashville, Tennessee 37238-1230
ATTORNEY FOR PLAINTIFF/APPELLANT


James E. Gray, Jr.
6393 Valley Oak Drive
Memphis, Tennessee 38141
PRO-SE FOR DEFENDANT/APPELLEE


                             VACATED AND REMANDED



                                     HENRY F. TODD
                                     PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE




YVETTE PATRICE GARRETT,                      )       Sumner Juvenile
                                             )       No. 48-99
       Plaintiff/Appellant,                  )
                                             )
VS.                                          )
                                             )
JAMES EDWARD GRAY, JR,                       )       Appeal No.
                                             )       01A01-9709-JV-00489
       Defendant/Appellee.                   )



                                    OPINION

       This appeal involves the enforcement of the support provisions of a paternity judgment

of the Juvenile Court.



       On May 19, 1994, the Juvenile Court entered judgment that the captioned defendant was

the natural father of Sheldon Bernard Garrett, born out of wedlock on August 18, 1979, granting

custody to the plaintiff mother and legitimating the child. The expenses of birth were reserved

for future adjudication. The father was ordered to provide health insurance for the child until

October 30, 1994, and to pay to the mother $530.00 per month plus clerks fees of $26.00

beginning May 13, 1994.



       On August 29, 1997, the mother filed a “Petition for Order of Arrearage and Medical

Expenses and to Amend Decree.” The petition alleged that the father had concealed a part of his

earnings resulting in an inadequate award of monthly support, that support has been paid only

since June, 1994, and that the mother was required to pay an unstated amount of birth expenses.

The petition prayed as follows:

                     1.     That at a hearing the court determine the
               amount of reasonable and necessary expenses of the child


                                            -2-
               from its birth until entry of the order of legitimation and enter
               judgment accordingly.

                      2.      That the decree heretofore entered by (sic)
               amended and an order of child support in accordance with the
               guidelines be entered.

                      3.      That petitioner be granted her reasonable
               attorneys-fees and costs.

                       4.      For general relief.


       On November 8, 1995, the father filed an answer and counter petition admitting previous

proceedings and denying all other facts alleged in the petition. Affirmatively, the answer alleged

that the child “may have been adopted by the mother’s husband, that the claim for arrearage and

medical expenses was barred by laches, and that the mother had interfered with visitation by

concealing the identity of the child and parentage of its father until May 12, 1994.



       The counter complaint alleged that the child prefers to reside with his father. The counter

complaint prayed for custody and child support.



       On July 16, 1997, the father filed a petition to terminate child support because the child

had graduated from high school, had lived with his father since July 1996, and his name had been

changed from Garrett to Gray.



       On August 29, 1997, the Juvenile Judge entered an order reading as follows:

                       This cause came on to be heard before the Honorable
               Barry Brown, Judge, upon the Petition of Yvette Garrett
               seeking to have a judgment of arrearage in child support
               adjudicated against the Respondent James Gray. The Court
               declined to conduct an evidentiary hearing and the parties
               stipulated that if called to testify the parties would have
               testified as follows:

                      That the Respondent James Gray had been
               adjudicated the father of the minor child Shelton on the 11th
               day of May, 1994 and was ordered to pay the sum of $530.00
               being 21% of his net salary of $3,466.00 per month in
               accordance with the guidelines. The Court at that time
               reserved the issue of arrearage in child support to a later
               hearing.

                                             -3-
       That prior to filing the original Petition in this case
the mother had filed no Petition for enforcement of child
support.

         That in 1979 the Respondent was on active duty as a
staff sergeant in the U.S. Army. That from 1980 to 1981 the
Respondent was employed full time with the Memphis
Police Department, and from 1981 to present he has been
employed by the Shelby County Sheriffs Department where
he is now an administrative assistant to the Processing
Commissioner.

        That in 1994 the Respondent’s monthly income was
$3,466.00. In 1993 his monthly income was $3,303.42 and
in 1992 his monthly income was $2,845.00. The Respondent
was unable to provide proof of income other than above but
at no time during the life of the child was Respondent not
fully employed at a salary at or above the minimum wage
and that the Respondent had at all times medical insurance
available for the child.

        That the mother has no records to support her claim
for necessities for the child but would have testified that the
cost of the birth of the child was $5,000.00 and that the cost
of necessities for the child from 1979 to 1981 was $175.00
per month, 1982 was $310.00 per month, 1983 to 1994 was
$330.00 per month.

       The Court finds:

         That due to the mother’s failure to seek child support
prior to 1994 the Court should mitigate the arrearage and that
the father should pay to the mother the total sum of $850.00
as child support arrearage. The Court further finds:

        That the child will become 18 on the 18th day of
August, 1997 and has graduated from high school and
therefore the father’s obligation for payment of child support
should terminate.

      It is thereby ORDERED, ADJUDGED AND
DECREED that Petitioner, Yvette Garrett, is awarded
$850.00 for child support arrearage.

      It is further ORDERED, ADJUDGED AND
DECREED that support payments shall terminate as of
August 1, 1997.

        It is further ORDERED, ADJUDGED AND
DECREED that the Respondent is not entitled to any offsets
or credits for said arrearage.

      It is further ORDERED, ADJUDGED AND
DECREED that the cost of this cause is taxed to the
Respondent for which execution may issue.



                             -4-
       The mother appealed and presented the following issues:

                      1.      Whether the Trial Court erred in not granting
               an an evidentiary hearing on the issue of arrearage in child
               support.

                       2.      Whether the court should have awarded the
               child support arrearage based upon the needs of the child and
               the guildlines.


       The mother’s brief concludes that this Court should increase the judgment for arrears

support to $50,272.00.



       The record received by this Court contains no transcript or statement of the evidence.

However, the judgment of the Juvenile Court, quoted above, does contain some findings of facts.



       The appellee father has filed no brief in this Court, and the appeal has been taken under

consideration upon the meager record and the brief of the appellant mother.



                                        FIRST ISSUE:

                            Failure to grant an Evidentiary Hearing



       In response to an order of this Court, the Juvenile Judge has filed the following statement:

                        On this the 25th day of June, 1998, the Court makes
               this statement in this matter as follows:

                        For the purpose of this hearing the Court, to the best
               of its recollection, met with the parties’ attorneys during the
               docket. The docket was extremely heavy and the likelihood
               of having the time to try this case on was very small.

                       The attorneys asked the Court how it usually rules in
               these type of cases. The Court explained to the attorneys
               what the Court customarily follows but because each case is
               individual the ruling can vary but to the Court’s exact
               decision it would be impossible to say without hearing
               testimony.

                       The attorneys agreed to put on proof of what their
               clients would have stated to the Court. Based on their
               evidence presented, the Court made its decision.



                                             -5-
                        At no time did this Court deny the parties the right to
                a full hearing in this case.




        The foregoing statement is treated by this Court as a statement of oral proceedings

leading to the judgment under review.



        Where evidence is excluded by a trial court, it is permissible for counsel to state for the

record the substance of the excluded evidence or include the excluded evidence in the record on

appeal. Farmers-Peoples Bank v. Clemmer, Tenn. 1975, 519 S.W.2d 801, 548 S.W.2d 661;

McLean v. Memphis Union Station Co., 1 Tenn. Civ. App. (1 Higgins) 457.



        Without a transcript or statement of the proceedings, the certificate of the Juvenile Judge

that he did not refuse to hear any evidence disposes of appellants first issue.



                                        SECOND ISSUE:

                                    Child Support Arrearages



        Appellant argues that she is entitled to $50,272.00 arrears child support from the birth

of the child to the date of the order of patenrity and beginning of support payments. The income

of the father during this period was stipulated and counsel stated to the Court that the mother

would testify that the cost of birth was $5,000.00 and that the cost of necessities for the child was

from $175 to $330 per month during this period.



        The order of the Trial Court stated that the award to the mother should be mitigated to

$850.00.



        In State ex rel. Coleman v. Clay, Tenn. 1991, 805 S.W.2d 752, the parties had intimate

relations for two years. When informed of the pregnancy he first denied responsibility, but later

                                                -6-
contributed some support in kind and promised regular support but did not perform. The

paternity suit was filed when the child was 14 years old. The father evaded process for 2 years,

and judgment was not rendered until the child was 16. The Supreme Court remanded to the

Juvenile Court for revision and said:

                       The Court of Appeals, relying upon emphasized
               language in § 36-2-108, held correctly that the father’s
               responsibility for support of a child of his born out of wedlock
               arises at the date of the child’s birth. Because the statute also
               permits the juvenile court to make a retroactive award for
               expenses incurred in the support of the child prior to the entry
               of the paternity decree, such an award can be made back to
               the date of the child’s birth, under appropriate circumstances.
               Obviously, the juvenile judge has broad discretion to
               determine the amount of such a retroactive award, as well as
               the manner in which it is to be paid.
                                              ----
                        What the juvenile judge lacks is discretion to limit the
               father’s liability for child support in an arbitrary fashion that
               is not consistent with the provisions in T.C.A. § 36-2-102 and
                § 36-2-108.
                                              ----
                        We further agree that the statute gives the juvenile
               court the discretion to order a retroactive support award back
               to that date, the amount and method of payment to be
               determined by juvenile judge in light of the circumstances of
               the case and consistent with the standards which normally
               govern the issuance of child support orders.
                                              ----
                        As did the Court of Appeals, we also reject the
               defendant’s argument that Mary Coleman should be denied
               recovery because she is guilty of laches. In order to establish
               such a bar, more than mere delay must be shown. Murphy v.
               Emery, 629 S.W.2d 895, 897-98 (Tenn. 1982). Indeed, the
               touchstone of laches is prejudice to the other party, and here,
               no actual prejudice of the kind contemplated by law has been
               demonstrated by the defendant. We do find, however, that the
               mother has waived recovery for expensese incurred in
               connection with her pregnancy and Kristi’s birth, since no
               request for such reimbursement was made, and there is no
               proof in the record to support such an award.


       The foregoing is controlling upon the facts stated therein. However, in the present

appeal, the record contains no transcript or statement of the evidence from which this Court

could find facts comparable to those recited in the cited opinion. This Court is therefore not in

position to revise or reverse the discretion of the Juvenile Judge which was repeatedly recognized

in the quoted opinion of the Supreme Court.



                                               -7-
       Ordinarily, the failure to provide a transcript or statement of the evidence is conclusive

upon appeal requiring a determination of facts. However, T.C.A. § 27-3-128 provides for

remand to the trial court for further proceedings where justice of the case requires. This appears

to be a suitable case for such a remand.



       Tenn. Code Ann. § 36-2-108(b) requires that paternity orders provide for “the support

of the child prior to the making of the order of paternity and support,” and Tenn. Code Ann.

§ 36-2-108(d) requires that these decisions must be made in accordance with the child support

guidelines. While decisions concerning child support between the time of birth and the time of

filing the paternity petition are discretionary, see State ex rel. Coleman v. Clay, 805 S.W.2d 752,

755 (Tenn. 1991); Barabas v. Rogers, 868 S.W.2d 283, 288 (Tenn. Ct. App. 1993), these

decisions cannot limit the parent’s liability for child support in an arbitrary fashion. See State

ex rel. Coleman v. Clay, 805 S.W.2d at 755.



                       The parent who provides support has the right to
               recover from the non-supporting parent just reimbursement
               for the amount of support supplied in excess of the
               apportioned share of the supporting parent. [citations omitted]
               the right of the supporting parent to reimbursement begins at
               the birth of the child and does not appear to be subject to any
               statute of limitation.


State ex rel. Grant v. Prograis, 1997 WL 536946, at *6.




                                               -8-
       Accordingly, the judgment of the Juvenile Court is vacated and the cause is remanded

to the Juvenile Court for further hearing and consideration of the just amount of recovery due

the appellant. Costs of appeal are taxed against the appellee.



                              VACATED AND REMANDED.



                                                     _________________________________
                                                     HENRY F. TODD
                                                     PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


_____________________________
BEN H. CANTRELL, JUDGE


_____________________________
WILLIAM C. KOCH, JR., JUDGE




                                              -9-
