                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                    April 19, 2004 Session

 STATE OF TENNESSEE, EX REL., ASHLEY MITCHELL v. PATRICK D.
                        ARMSTRONG

                      Appeal from the Juvenile Court for Shelby County
                           No. J8823     Herbert J. Lane, Judge



                   No. W2003-01687-COA-R3-JV - Filed September 3, 2004


This is a Title IV child support case. The mother established paternity against the father in juvenile
court, and the father was ordered to pay child support. Prior to establishing the father’s paternity,
the mother had intermittently received public assistance. Consequently, the father was to send the
child support payments to the State’s collection and disbursement unit, pursuant to Title IV, chapter
D of the Social Security Act. The father failed to pay the required child support. The State then
intervened by filing a petition for contempt against the father. In the contempt hearing, the mother
asked that the father’s child support obligation be terminated. The trial court suspended the father’s
obligation to pay current child support in a set amount through the State disbursement unit, with the
understanding that the father would pay child support in an undetermined amount directly to the
mother, pursuant to an unwritten private agreement between the mother and the father. The father
was required to make payments to the State on his past arrearages. The State appealed. We reverse
and remand, holding that the trial court was required to have the child support payments, in a set
amount that comports with the child support guidelines, sent to the State collection and disbursement
unit, and remand for modification of the amount paid on the father’s arrearages.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., and DAVID
R. FARMER , J., joined.

Paul G. Summers, Attorney General and Reporter, and Stuart F. Wilson-Patton, Senior Counsel for
the Office of the Attorney General, for the appellant State of Tennessee.

Patrick D. Armstrong, pro se.
                                                   OPINION

        Ashley Mitchell (“Mother”) gave birth to a son, Collin Mitchell (“Collin”), on June 11, 1996.
Mother and Collin received public assistance benefits from the State intermittently for approximately
three to four years. On October 23, 1998, Mother filed a petition against Defendant/Appellee Patrick
D. Armstrong (“Father”) in Juvenile Court to establish his parentage and to require him to pay child
support. Father had not previously claimed parentage or paid any child support.

        On March 12, 1999, after genetic testing established Father’s parentage with 99.99%
probability, the Juvenile Court referee found that Father was Collin’s biological father. The referee
required Father to pay the medical expenses incident to Collin’s birth, $8,194 total in past child
support, retroactive to the date Collin was born, $241 per month in current child support, the Clerk’s
fee, and the cost of the parentage testing. Father’s child support payments were directed to go to the
Tennessee Department of Human Services through income assignment, pursuant to Title IV, chapter
D of the Social Security Act (“Title IV-D”) requiring that child support payments be so directed
when the obligee parent has received public assistance.1 The Juvenile Court referee’s findings and
recommendations were confirmed by the Juvenile Court judge later that day.

        Father failed to pay the required child support. Consequently, the Plaintiff/Appellant State
of Tennessee ex rel., Ashley Mitchell (“the State”) filed a petition for contempt, alleging that Father
had willfully violated the trial court’s March 12, 1999 order by failing to pay child support. The
State also requested that the trial court determine Father’s total child support arrearages and set a
monthly payment amount.

        The parties appeared before Juvenile Court Referee Felicia Hogan on November 15, 2002.
Father’s child support arrearage at that time was $13,157.15. Father was not represented by counsel.
Father told the Referee that he wanted to hire an attorney rather than accept a court-appointed
attorney. The Referee then indicated that she was prepared to continue the proceedings. Before the
parties were dismissed, however, Mother requested that Father’s child support obligation be
terminated. The Referee said she would consider Mother’s request, but told Mother that she was not
permitted to completely absolve Father of his financial responsibilities:

        [Y]ou can’t walk away and say, ‘[W]ell, I don’t want to be bothering him anymore.
        I don’t need anything. I’ll take care of the child myself.’ He still has to help you



        1
          The record reflects that child support payments were to be made to the Clerk of Court. However, section
36-5-116 of the Tennessee Code Annotated provides that “[a]ll order[s] in Title IV-D support cases, and all orders
for income assignments which have directed support be paid to the clerk of any court, and which are subject to the
provisions of 42 U.S.C. § 654b, shall be deemed to require that the support be sent to the central collection and
disbursement unit.” Tenn. Code Ann. § 36-5-116(a)(1) (2001 & Supp. 2003)) (emphasis added). By statute, the
Tennessee Department of Human Services is the “central collection and disbursement unit” for the State of
Tennessee. Id.



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       outside of court. And the amount that he pays you outside of court still has to
       conform to the guidelines.

The Referee initially told Mother that Father was still obligated to pay her the original amount of
child support, $241 a month, and told her “any agreement you have outside of Court, does have to
conform to whatever the guidelines says he should be paying.” However, when counsel for the State
asked for clarification, Referee Hogan changed her ruling, stating that she was in fact approving an
unwritten, undetermined private agreement between Mother and Father that Father would pay child
support in an undetermined amount directly to Mother, and finding that the unwritten private
agreement conformed with the guidelines and setting child support at whatever amount Mother and
Father deemed appropriate:

               MR. MCCALL: Well, just to make sure I get the Order correct as far as for
       the current support obligation, the Court’s finding that the mother is requesting that
       she no longer wants IV-D services. And upon private agreement, is approved by the
       Court for him to pay $241 directly to the mother. Would that be appropriate, Your
       Honor?

               THE COURT: No. That is their remake conforms to the guidelines. I’m not
       putting a figure in there. I don’t know what he’s making now. I’m not going to even
       get—go into that.

               MR. MCCALL: Well, I don’t think we can—how can the Court make the
       determination in accordance to the guidelines, unless we know what the income is
       unless it’s this amount?

              THE COURT: Because I’m leaving it up to these two adults who have these
       children—child or children, to make that determination themselves.
              ....

               I find that their private agreement is in conformance to the guidelines.

Thus, Referee Hogan found that Mother and Father’s unwritten private agreement, the terms of
which were not disclosed, conformed to the guidelines, in the absence of any indication of how much
the monthly child support obligation would be, how much Father earned, or whether Father was
subject to other child support orders. Referee Hogan also found that Father owed $13,157.15 in
arrearages and required Father to pay the State $175 per month until the arrearages were paid. The
State’s objection that $175 per month “barely pays the interest” on Father’s arrearage was ignored.
Referee Hogan signed the order on November 15, 2002. Even though the record contained no
evidence of Father’s income, his employment, his assets, his earning capacity, or whether he was
subject to other child support orders, the order found Father had the ability to pay only $300 of the
arrearage and required him to be confined to jail until he paid the $300. Father’s child support
obligation to Mother was suspended as of December 1, 2002, and Father was required to pay $175


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per month to the State on his outstanding arrearage. The Juvenile Court judge confirmed the
findings and recommendations of Referee Hogan the same day.
        On November 21, 2002, the State filed a request for a hearing before the Juvenile Court
judge. On March 20, 2003, the State and Mother appeared before Juvenile Court Referee Herbert
Lane, who was appointed a Special Judge to hear this matter. The State argued that Referee Hogan
erred in suspending Father’s child support obligation in favor of the private agreement, first because
the private agreement was not in accordance with the guidelines or incorporated into the final order,
and second because the matter involved Title IV-D, which requires child support to be paid directly
to the State. Special Judge Lane addressed Mother:

               THE COURT: Did you ask that the support be suspended, ma’am?

               MS. MITCHELL: Yes.

               THE COURT: Are you still of that opinion?

               MS. MITCHELL: Yes.

               THE COURT: And why are you asking that the support be suspended?

               MS. MITCHELL: Because I—he—I’m getting help. He’s helping me with
       the child.

               ***

               THE COURT: Are you asking for the State to assist you anymore, ma’am?

               MS. MITCHELL: No, I’m not.

               ***

              THE COURT: You want the matter suspended? You don’t want any IV-D
       services?

               MS. MITCHELL: Correct.

               THE COURT: All right. Referee’s ruling will be affirmed.

Thus, Special Judge Lane reconfirmed Referee Hogan’s November 15 ruling, apparently because
Mother requested the suspension of child support and because Mother was no longer receiving Title
IV-D assistance from the State. The order was signed on March 20, 2003. The State filed a “Motion
to Alter or Amend” on April 17, 2003, which was heard very briefly and summarily denied by



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Referee Lane on May 15, 2003. The written order was signed the same day. From that order, the
State now appeals.2

       On appeal, the State argues that the Juvenile Court erred in suspending the child support
payments in favor of a private agreement, because the trial court did not set an amount for child
support in accordance with the child support guidelines. The State also maintains that, although
Mother was no longer receiving Title IV-D benefits, this remained a Title IV-D case, and
consequently payments of current child support are required to be made to the State for
disbursement. Finally, the State seeks to have the amount of monthly arrearages paid to the State
increased to an amount that will permit the arrearages to be paid off within ten years.

        Our review of a trial court’s decision regarding child support modifications is de novo upon
the record with a presumption of correctness of all findings of fact, unless the evidence
preponderates against the findings. Tenn. R. App. P. 13(d); Leach v. Leach, No. W2000-00935-
COA-R3-CV, 2001 WL 720635, at *3 (Tenn. Ct. App. June 25, 2001). Because there is no dispute
regarding the trial court’s factual findings, and involves only questions of law, our review in this
appeal is de novo, upon the record. Id.

         We first address the State’s assertion that the trial court erred in suspending child support
payments in favor of an unwritten private agreement between Mother and Father that Father would
pay child support in an undetermined amount directly to Mother. Under federal and state law, the
State is required to operate a “central collection and disbursement unit” in order to process all child
support payments in cases meeting the criteria of Title IV-D. Tenn. Code Ann. § 36-5-116(a)(1)
(2001 & Supp. 2003); see also 42 U.S.C. §§ 654; 654b. This essentially includes cases “in which
the State is providing services on behalf of a parent relating to paternity or child support
establishment or enforcement, either by request or pursuant to the custodial parent’s receipt of public
assistance benefits under Title IV-A.” State ex rel. Jacqueline Patterson v. French, No. W2000-
02668-COA-R3-CV, 2002 WL 1349498, at *3 (Tenn. Ct. App. Feb. 5, 2002) (citing 42 U.S.C. §
654(4); Tenn. Code Ann. § 71-3-124(c)). The Tennessee General Assembly assigned the role of
“central collections and disbursement unit” to the Tennessee Department of Human Services. Tenn.
Code Ann. § 36-5-116(a)(1) (2001 & Supp. 2003). Thus, in Title IV-D cases, the trial court does
not have the discretion to permit child support payments in such cases to be made directly to the
obligee parent instead of to the Tennessee Department of Human Services. See French, 2002 WL
1349498, at *4.

        Further, when a parent receives public benefits from the State, federal and state law both
provide that the parent has assigned his or her right to support from any other source to the State, 42
U.S.C. § 608(a)(3); Tenn. Code Ann. § 71-3-124(a)(1) (Supp. 2003), and payment of all support
must be made to the State. See 45 C.F.R.§ 302.32(a). Under federal law, a request by the recipient
parent to end Title IV-D services may be honored only if the recipient meets at least one of the


         2
          Father did not file a brief in this appeal. Thus, this matter is considered on the record, the State’s brief, and
the State’s oral argument.

                                                            -5-
criteria set forth in the regulation. 45 C.F.R. § 303.11. Since Father’s arrearage had not yet been
paid, Mother did not meet any of the criteria listed and thus could not end Title IV-D services. 45
C.F.R. § 303.11. Thus, the trial court did not have the discretion to honor Mother’s request to end
or suspend Father’s child support obligation or to end the Title IV-D services provided to her.

        In the present case, it was clearly error for the trial court to permit Mother and Father to
bypass the Tennessee Department of Human Services, and to approve an arrangement whereby
Father supposedly paid child support in an unspecified amount directly to Mother. Mother received
public assistance benefits prior to the establishment of Father’s paternity. The contempt proceedings
initiated by the State were brought on Mother’s behalf, in order to compel the payment of current
child support and arrearages by Father. Thus, this is clearly a Title IV-D case, and the trial court did
not have discretion to direct payments away from the Tennessee Department of Human Services.
See French, 2002 WL 1349498, at *4. Additionally, it was error for the trial court to give effect to
Mother’s request to end Father’s child support obligation and Title IV-D services, because she had
not yet been paid the arrearages owed her by Father, and the State had not yet been paid its assigned
arrearage. See 42 U.S.C. §§ 608(a)(3), 657; 45 C.F.R.§§ 302.32(a), 303.11; Tenn. Code Ann. § 71-
3-124(a)(1) (Supp. 2003). Therefore, we reverse the trial court’s suspension of Father’s current child
support obligation. In the proceedings below, there was no request for modification of the amount
of Father’s child support obligation. Accordingly, on remand, Father shall be required to pay to the
Tennessee Department of Human Services the $241 per month previously ordered in the paternity
proceedings.

        We next address the State’s request to modify Father’s monthly arrearage payments to an
amount that will pay off his $13,157.15 in arrearages within ten years. Tennessee law requires that
child support arrearages be paid off in reasonable amounts within a reasonable amount of time. Tenn.
Code Ann. § 36-5-804(a) (2001). Here the applicable statute of limitations is the ten-year statute for
actions on judgments and decrees of courts. See Tenn. Code Ann. § 28-3-110 (2000).
Consequently, to ensure that the statute of limitations does not run on Father’s obligation, the
payment schedule should be structured to provide for payment within ten years from accrual.
Utilizing this standard, the trial court’s award of $175 per month for payment of Father’s arrearage
is insufficient and must be reversed, and the trial court is directed on remand to set a payment
amount and schedule which permits payment of the arrearage within ten (10) years from accrual.

        The decision of the trial court is reversed and the cause is remanded for further proceedings
not inconsistent with this Opinion. Costs are taxed against the Appellee Patrick D. Armstrong, for
which execution may issue, if necessary.



                                                        ___________________________________
                                                        HOLLY M. KIRBY, JUDGE




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