                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                        Assigned on Briefs May 19, 2004 Session

               CECIEL ROS HALPERN v. LAURENCE HALPERN

                A Direct Appeal from the Chancery Court for Shelby County
               No. D28893-3   The Honorable D. J. Alissandratos, Chancellor



                   No. W2003-01323-COA-R3-CV - Filed August 31, 2004


        This is an appeal by the appellant-father from an order awarding the appellee-mother child
support arrearage and setting prospective child support obligations. Because the support orders
appear to deviate from the child support guidelines without specific findings by the trial court, we
reverse and remand for further proceedings.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY M. KIRBY , J., joined.

Marc E. Reisman of Memphis For Appellant, Laurence Halpern

Bradley J. Cordts of Memphis For Appellee, Ceciel Ros Halpern

                                            OPINION

        Mr. Laurence Halpern (“Appellant”) and Ms. Ceceil Ros Halpern (“Appellee”) were married
on July 2, 1978, and four children were born of this union. On April 10, 2000, Mr. and Ms. Halpern
were divorced and were awarded joint custody of their then four minor children. Mr. Halpern was
deemed custodial parent of one of the children, and Ms. Halpern was deemed custodial parent of the
other three children. The Final Decree of Divorce also ordered Mr. Halpern to pay to Ms. Halpern
child support in the amount of $1,000 per month, which allowed for an offset of Ms. Halpern’s child
support obligation to him.


       Because of employment changes, Mr. Halpern moved to Jacksonville, Florida in 2000.
Primary custody of the child, who had been living with Mr. Halpern, was transferred to Ms. Halpern.
However, less than two months after this change, custody was again transferred to Mr. Halpern by
court order, and Mr. Halpern continued to have primary custody at the time of the hearing.
        On May 1, 2002, Mr. Halpern lost his job. On May 9, 2002, he filed a “Petition to Modify
Order Changing Custody to Reduce Child Support.” In his Petition, Mr. Halpern states that he has

       . . . faithfully complied with [his child support payments,] never missing a payment
       and never [paid] late. Even when [Mr. Halpern] was temporarily out of work for six
       weeks during November and December of 2000, [he] utilized savings to meet this
       obligation. This is mentioned to demonstrate [Mr. Halpern’s] utmost respect for this
       obligation and sincere desire to meet his obligation to support all of his children.

Based on his lack of employment, Mr. Halpern asked the court to reduce his child support obligation
to comply with the Tennessee Child Support Guidelines (the “Guidelines”).

        On June 7, 2002, the trial court entered a “Consent Order on Petition for Civil and Criminal
Contempt and for Modification of Child Custody and Support” (the “Consent Order”) which, inter
alia, dismissed with prejudice the petition and counter petition for contempt. The Consent Order
also provides, in relevant part, that:

       10. Pending employment of Laurence Halpern neither party will have a child support
       obligation to the other. Laurence Halpern shall, immediately upon becoming
       employed, notify Ceciel Halpern of his income, at which time an order setting child
       support shall be entered in accordance with Laurence Halpern’s earnings at that time
       and the then existing Tenn. Child support guidelines. Laurence Halpern shall on the
       15th of April of each year provide Ceciel Halpern documentation of his annual
       income.

        Mr. Halpern remained unemployed until February, 2003, when he started his own business.
At that time, and pursuant to the Consent Order, Mr. Halpern informed Ms. Halpern in writing that
he was employed at an annual salary of $30,000.

       On March 12, 2003, Ms. Halpern filed a “Petition and Affidavit to Enforce Child Support,”
requesting child support arrearage from the time of Mr. Halpern’s employment in February 2003.
The hearing on that Petition was held on April 21, 2003. There is no transcript of this hearing.
However, the “Amended Statement of Evidence and Proceedings” which was approved by the trial
judge and filed, reads, in relevant part, as follows:

       4. Neither party was represented by counsel at the hearing on April 21, 2003.

       5. The case was before the Court on Ms. Halpern’s Petition and Affidavit to enforce
       child support filed on March 12, 2003.

       6. The Chancellor first addressed Ms. Halpern and asked her how much the child
       support arrearages were. Ms. Halpern replied that she did not have an exact amount.

                                                -2-
      The Chancellor allowed Ms. Halpern to take her time and calculate the exact amount
      of arrearages. Once Chancellor Alissandratos realized that Ms. Halpern had not
      requested arrearages dating back to the Consent Order entered on June 7, 2002,
      which did not require either party to pay child support to the other, Chancellor
      Alissandratos requested that the child support arrearages owed by Mr. Halpern date
      back to [the] Consent Order dated June 7, 2002.

      7. Mr. Halpern attempted to interject the fact that there were no arrearages pursuant
      to the most recent Consent Order which did not require either party to pay child
      support to the other. Chancellor Alissandratos admonished Mr. Halpern for
      interrupting.

      8. Having been instructed by the Court to remain silent, Mr. Halpern stood by while
      the Chancellor and Ms. Halpern discussed child support arrearages and determined
      that Mr. Halpern had a child support arrearage of $10,710.00 from June, 2002,
      through April, 2003.

                                          *        *         *   *

      11. Mr. Halpern then took the stand and testified that the reason he attempted to
      interject earlier was to explain that the latest Consent Order did not require either
      party to pay child support to the other; and, accordingly, there could be no child
      support arrearage at that time. Mr. Halpern drew the Court’s attention to Paragraph
      10 of the Consent Order dated March 7, 2002 . . .1

      12. Mr. Halpern then testified that pursuant to the Consent Order dated June 7, 2002,
      Mr. Halpern mailed a letter to Ms. Halpern on February 27, 2003, informing her that
      he had become employed by starting his own business, Sunrise Imaginations, at a
      salary of $30,000 per year. Ms. Halpern did not dispute that the letter was sent, and
      a copy was provided to the Court for its review.

      13. Chancellor Alissandratos then began questioning Mr. Halpern as to what efforts
      he had made to find employment prior to that letter going out, and Mr. Halper
      testified that he had worked diligently practically every day making contacts and
      networking as much as possible. Mr. Halpern explained to the Court that the job
      market was difficult, especially in Mr. Halpern’s area of expertise. Mr. Halpern gave
      specific names of several individuals and companies he had contacted for
      employment. Mr. Halpern indicated that he had made literally dozens of contacts and
      that he had sent many resumes to prospective employers in an effort to obtain gainful
      employment.

      14. Mr. Halpern testified that as a final option, he decided to start his own business

1
    Paragraph 10 of the Consent Order is set out supra.

                                                       -3-
by taking out a Small Business Administration loan and supplementing that with
money he had withdrawn from his retirement savings. Chancellor Alissandratos
inquired as to how much Mr. Halpern had withdrawn from his retirement savings,
and Mr. Halpern responded that the Small Business Administration required him to
make a contribution of $45,000, and, accordingly, he withdrew $45,000 from his
retirement.

15. Mr. Halpern testified that the start-up business was an option he chose when it
became obvious to him that employment opportunities in data modeling, the field in
which Mr. Halpern had previously been employed, [were] not available to him. Mr.
Halpern testified that he had been living on credit card advances for the past eight
months. Mr. Halpern presented to the Court his most recent credit card statements
documenting approximately $25,000 in loans.

                               *       *         *    *

17. Chancellor Alissandratos then ruled from the bench that Mr. Halpern did indeed
owe child support arrearages in the amount of $10,710 and that he was to pay that
amount either directly to Ms. Halpern or to the Court within seventy-two hours. Mr.
Halpern inquired as to how he should get such a large sum of money, and Chancellor
Alissandratos said that he should withdraw the money from his retirement account
if necessary. Mr. Halpern then explained that withdrawing the money from the
retirement account would incur substantial penalties, and the Chancellor explained
that it was not his concern.

18. Mr. Halpern explained that since he resided in Florida, he would mail the money
to Ms. Halpern or the Court immediately upon receiving the money from his
retirement account.

19. The Court then instructed the Bailiff to take Mr. Halpern into custody where he
would be held until exactly $10,710.00 was placed in Ms. Halpern’s bank account.

20. Mr. Halpern was then escorted from the courtroom in handcuffs to a jail cell in
the basement of the Shelby County Courthouse.

21. While in jail, Mr. Halpern was allowed to make a phone call to arrange for
$10,710 to be wired from his retirement account to satisfy the Court’s ruling from the
bench. Mr. Halpern was released from custody later that day.

22. At the time of the hearing, Ms. Halpern had custody of two of the parties’ minor
children, and Mr. Halpern had custody of one of the parties’ minor children. On
April 23, 2003, the Court entered an Order requiring Mr. Halpern to pay child
support in the amount of $1,020.00 per month.


                                           -4-
       23. The Court based Mr. Halpern’s future child support obligation by utilizing the
       child support obligation set forth in the Order dated October 5, 2000.

       On April 23, 2003, the trial court entered an “Order on Petition to Enforce Child Support”
(the “Order”). The Order provides, in relevant part:

       1. That Respondent, Laurence Halpern, shall pay the child support arrearage in the
       amount of $10,710.00 to bring the child support current through April 2003.

       2. That the child support payments as stated in the Final Decree of Divorce entered
       with the Court on April 10, 2000 be reinstated effective May 1, 2003. Respondent,
       Laurence Halpern, shall pay child support in two monthly installments of $510.00
       each on the 1st and 15th of the month beginning May 1, 2003 and $510.00 each on the
       1st and 15th of each month thereafter until there is no longer a child support
       obligation.

       Mr. Halpern appeals from this Order and raises two issues for review, as stated in his brief:

       1. Did the Trial Court err in finding that Mr. Halpern had a child support arrearage of
       $10,710 from June, 2002, through April, 2003, despite the fact that the previous child
       support Order dated June, 2002, specifically states that neither party would be required to pay
       child support to the other?

       2. Did the Trial Court err in establishing a child support obligation for Mr. Halpern in an
       amount which far exceeded the amount required by the Tennessee Child Support Guidelines
       for a person earning $2,500 per month, where Mr. Halpern did not have an opportunity to be
       heard on the issue, and where Ms. Halpern’s income was not taken into consideration despite
       the fact that Mr. Halpern had primary parenting responsibilities for one of the parties’ three
       minor children?


         While the record in the trial court, including the Statement of the Evidence, reveals several
major problems with the trial court’s decision in this case, we must first consider the main obstacle
to this Court’s present review of these proceedings. The Order appealed, as set out above, is signed
by the trial judge and the date stamped by the clerk is April 23, 2003. However, the Order shows
that it was approved by Ceciel J. Halpern and then there is a certification by Ms. Halpern that she
sent a copy “of the foregoing” to Mr. Halpern at his address in Florida. There is nothing else on the
Order appealed.

       Tenn. R. Civ. P. 58 provides, in pertinent part:

                      Entry of judgment or an order of final disposition is effective
               when a judgment containing one of the following is marked on the
               face by the clerk as filed for entry:

                                                 -5-
                 (1) the signatures of the judge and all parties or counsel, or
                 (2) the signatures of the judge and one party or counsel with a
                 certificate of counsel that a copy of the proposed order has been
                 served on all other parties or counsel, or
                 (3) the signature of the judge and a certificate of the clerk that a copy
                 has been served on all other parties or counsel.

        In the case before us, the Order appealed does not have the signatures of the judge, all parties,
or counsel. It does not have the signatures of the judge and one party or counsel with a certificate
by counsel of service on the other party, nor does it have the signature of the judge and a certificate
of the clerk that a copy has been served on all parties or counsel. Thus, the Order appealed is not
effective for failure to comply with Tenn. R. Civ. P. 58. See Grantham v. Tennessee State Board
of Equalization, 794 S.W.2d 51 (Tenn. Ct. App. 1990); Gordon v. Gordon, 1997 WL 304114 (Tenn.
Ct. App. 1997); Aslinger v. Dunlap, 1987 WL 14624 (Tenn. Ct. App. 1987).

        Although a final appealable order has not been effectively entered under Tenn. R. App. P.
3, the requirements of Tenn. R. App. P. 3 may be suspended in a particular case. See Bayberry
Assoc. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990); Rector v. Halliburton, No. M1999-02802-
COA-R3-CV, 2003 Tenn. App. LEXIS 149 (Tenn. Ct. App. Feb. 26, 2003).

        This Court elects to suspend the Tenn. R. App. P. 3 requirement of a final judgment, because
it is obvious that the trial court signed the Order from which the Appellant appeals, no one is
prejudiced by such a suspension, and as the Rector Court said, “judicial economy must intervene at
some point in the progress of a lawsuit. . . .” Id.

         Before turning to Mr. Halpern’s issues, we note that, since this case was tried by the court
sitting without a jury, we review the case de novo upon the record with a presumption of correctness
of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we
must affirm, absent error of law. See Tenn. R. App. 13(d).

1. Did the trial court err in finding that Mr. Halpern had a child support arrearage of $10,710
from June, 2002, through April, 2003, despite the fact that the previous child support Order
dated June, 2002, specifically states that neither party would be required to pay child support
to the other?


        Mr. Halpern contends that T.C.A. § 36-5-101(a)(5) prohibits any retroactive modification of
the child support obligation set out in the Consent Order. 2 Because the Consent Order clearly states
    2
      T.C.A. § 36-5-101(a)(5) (Supp. 2003) governs modification of child support orders and reads, in
    pertinent part, as follows:

            Any order for child support shall be a judgment entitled to be enforced as any other judgment
            of a court of this state and shall be entitled to full faith and credit in this state and in any other
                                                                                                           (continued...)
                                                             -6-
that Mr. Halpern will have no child support obligation during his unemployment, he contends that
the trial court’s subsequent $10,710 judgment against him is invalid as a later modification of an
existing child support order. It is true that this Court has consistently held that T.C.A. § 36-5-
101(a)(5) specifically bars any retroactive modification of a child support order, and we have made
“no distinction between retroactive increases or decreases.” Brown v. Heggie, 876 S.W.2d 98, 100-
101 (Tenn. Ct. App. 1993).

        The Consent Order at issue here provides that, pending the employment of Mr. Halpern,
neither party will have a child support obligation to the other. The trial court entered this Order
finding that there was no income available for child support to be paid by Mr. Halpern.
Nevertheless, at the latest hearing, the court established an arrearage of $10,710.00, apparently based
on Mr. Halpern's income for the period prior to his unemployment. There was a change of
circumstances justifying the trial court's order because of the drastic drop in Mr. Halpern's income
because of his unemployment. As noted, Ms. Halpern's petition seeks support only from the time
Mr. Halpern became unemployed, but the trial court awarded support arrearage from the June 7,
2002 date of the Consent Order. This was a retroactive modification and is invalid. Accordingly,
the order of the trial court awarding the arrearage is reversed.

2. Did the trial court err in establishing a child support obligation for Mr. Halpern in an
amount which far exceeded the amount required by the Tennessee Child Support Guidelines
for a person earning $2,500 per month, where Mr. Halpern did not have an opportunity to be
heard on the issue, and where Ms. Halpern’s income was not taken into consideration despite
the fact that Mr. Halpern had primary parenting responsibilities for one of the parties’ three
minor children?

        One of the most fundamental liberties we are afforded as citizens of the United States and
of Tennessee is the “notice and opportunity to be heard before [being] deprived of life, liberty, or
property.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). The
Tennessee Supreme Court has noted that “it is elementary and fundamental that every individual is
entitled to his day in court in which to assert his own rights or to defend against their infringement.”
Shelley v. Gipson, 400 S.W.2d 709, 713 (Tenn. 1966).

        Divorce cases involving child support naturally fall within the purview of Due Process
protection because they may involve the deprivation of property of the parties involved. Badged v.
Baggett, 541 S.W.2d 407 (Tenn. 1976); Tenent v. Tenent, No. 02A01-9305-CV-0017, 1994 Tenn.
App. LEXIS 370 (Tenn. Ct. App. July 6, 1994). This Due Process right is guaranteed to perjurers,
Id. at *10, alleged deadbeat dads, and Good Samaritans alike. The present case is no exception.



(...continued)
           state. Such judgment shall not be subject to modification as to any time period or any
           amounts due prior to the date that an action for modification is filed and notice of the action
           has been mailed to the last known address of the opposing parties.



                                                        -7-
        The record indicates that Mr. Halpern was not present, due to his incarceration, during the
hearing setting his prospective child support obligation. Based on the foregoing, we find that the
trial court violated Mr. Halpern’s Due Process rights. This is not a case where one of the parties
refused to attend a child support hearing, and thereby waived his Due Process rights. Mr. Halpern
was not jailed for contempt of court, and the record does not show that he presented a sufficient
disturbance to the proceedings to warrant his removal. Essentially, the record reflects that Mr.
Halpern could not immediately pay the judgment against him for child support arrearage, thereby
somehow waiving his Due Process rights. In the absence of a constitutionally acceptable hearing,
we remand for a hearing to determine prospective child support payments. Mr. Halpern should have
the opportunity to be present to present evidence, examine witnesses, and defend himself, all of
which are guaranteed to him by the 14th Amendment.

        This hearing shall also result in a determination of Mr. Halpern’s prospective child support
obligation under the Guidelines from May 1, 2003. It is uncontested that Mr. Halpern’s income from
his business from May 1, 2003 is $30,000 per year. However, the trial court set Mr. Halpern’s
prospective child support at $1,020 per month. The $1,020 is an upward deviation from the
Guidelines, see Tenn. Comp. R. & Regs. 1240-2-4-.03, and there is no written justification in the
Order for this deviation. Consequently, the award of child support from May 1, 2003 forward is
invalid.

        We remand for a hearing to determine Mr. Halpern’s income according to the Guidelines as
of May 1, 2003. Any deviation from the Guidelines' presumptive amount of support must be
accompanied by a “written or specific finding on the record that the application of the guidelines
would be unjust or inappropriate in [this] particular case.” Tenn. Comp. R. & Regs. 1240-2-4-
.01(2)(2), 1240-2-2-.02(7) (1994); see also T.C.A. § 36-5-101(e)(1).3

        The record shows that Mr. Halpern has already paid $10,710 and is due credit on this amount
on his future child support obligation.

       For the foregoing reasons, we reverse the Order of the trial court awarding Ms. Halpern
$10,710.00 and establishing $1,020.00 per month in prospective child support payments. We
remand the case to the trial court for further proceedings consistent with this Opinion. On remand,
the court shall also determine the amount of child support due from Ms. Halpern.

        Mr. Halpern also requests that we remand the case to "another part of the Shelby County
Chancery Court due to the fact that the chancellor below incarcerated Mr. Halpern despite the fact
that the chancellor below entered an order establishing an enormous amount of child support
arrearage where no such arrearage legally existed." While we agree that incarceration is a
"quintessential deprivation of liberty," Inmates of Orient Correctional Institute v. Ohio State Adult
   3
     Additionally, as guidance, we note that to calculate a child support award based on earning capacity
   rather than actual net income, there must be a threshold finding that Mr. Halpern is willfully and
   voluntarily underemployed or unemployed. Tenn. Comp. R. & Regs. 1240-2-4-.03(d); Marcus v.
   Marcus, No. 02A01-9611-CV-00286, 1998 Tenn. App. LEXIS 55 (Tenn. Ct. App. Jan. 28, 1998).



                                                        -8-
Parole Authority, 929 F.2d 233, 234 (6th Cir. 1991), and therefore a court should carefully examine
whether incarceration is appropriate, we decline at this time to transfer this case to another court.
This does not preclude Mr. Halpern from making a motion to recuse before the remanded hearing.

       Costs of this appeal are assessed one-half to Appellant, Laurence Halpern, and his surety,
and one-half to Appellee, Ceciel Ros Halpern.

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




                                                 -9-
