                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                    FEBRUARY 20, 2002 Session

   STATE OF TENNESSEE, EX REL MAE CLARK v. CHARLES CLARK

                    Direct Appeal from the Circuit Court for Haywood County
                       No. 2566; The Honorable Clayburn S. Peeples, Judge



                        No. W2001-01896-COA-R3-CV - Filed May 13, 2002


This appeal involves an obligor parent’s failure to comply with court ordered child support
obligations. The State of Tennessee, on behalf of a custodial parent, sought to reduce arrearage in
the obligations to judgment. The State was successful and the custodial parent was awarded
$14,000.00 in arrearage. The obligor parent appealed and, for the following reasons, we affirm the
lower court’s decision.

       Tenn. r. App. P. 3; appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and WILLIAM B. ACREE, JR., S.J., joined.

Marcus M. Reaves, Jackson, TN, for Appellant

Paul G. Summers, Attorney General & Reporter; Stuart F. Wilson-Patton, Senior Counsel, Nashville,
TN, for Appellee

                                       MEMORANDUM OPINION1


       Charles Clark (Appellant) and Mae Clark (Ms. Clark) were granted a divorce on August 25,
1972. Ms. Clark was granted custody of the parties’ four minor children and Appellant was ordered
to pay $25.00 per week in child support. Appellant, however, failed to remit any child support
payments to the Circuit Court Clerk’s office as required by the court’s order.



        1
           Rule 10 (Court of Ap peals). Mm eorandum Opinion. – (b) The Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a
formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be
designated “MEM ORAN DUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in
a subsequent unrelated case.
        On September 5, 2000, the State of Tennessee (Appellee), on behalf of Ms. Clark, petitioned
the court to have $14,000.00 in child support arrearage reduced to a judgment against Appellant.
Hearings were held on September 5, 2000, November 6, 2000, and February 12, 2001. At the
hearings, Appellant alleged that he had paid at least $25.00 per week to Mulligan’s Store for food
and groceries for the minor children instead of paying money to the clerk’s office. The parties
stipulated that Appellant did indeed pay this money to Mulligan’s until some time in 1976.
Appellant also alleged that he continued to reside with Ms. Clark after the divorce and offered
sufficient financial support for the children. Finally, Appellant claimed that he was not the
biological father of the children and demanded that a paternity test be given. His request was
denied.

       Appellant filed a Motion to Set Aside Order and Declare All Arrearage Paid. The court,
however, refused to grant the motion. On May 3, 2001, the court entered a judgment against
Appellant in the amount of $14,000 for the child support arrearage.

        Appellant filed this appeal and now raises two issues, as we perceive them, for our review.
First, Appellant asserts that the trial court should not have reduced to judgment Appellant’s alleged
arrearage in child support obligations. Second, Appellant asserts that the trial court should have
granted his Motion to Set Aside Order and Declare All Arrearage Paid.

        When a civil action is heard by a trial judge sitting without a jury, our review of the matter
is de novo on the record, accompanied by a presumption of correctness of the findings below. Foster
v. Bue, 749 S.W.2d 736, 741 (Tenn. 1988); TENN. R. APP . P. 13(d). We may not reverse the findings
of fact made by the trial judge unless they are contrary to the preponderance of the evidence. Jahn
v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). In the case sub judice, however, Appellant has
failed to file a transcript of the proceedings or a sufficient statement of the evidence2 as required
under Tennessee Rule of Appellate Procedure 24. Without a transcript or sufficient statement of
the evidence, “we must conclusively presume that every fact admissible under the pleadings was
found or should have been found favorably to the appellee.” King v. King, 986 S.W.2d 216, 220
(Tenn. Ct. App. 1998) (quoting Leek v. Powell, 884 S.W.2d 118, 121 (Tenn. App. 1994)).

        Instead of setting out distinct arguments for each of his issues, Appellant has made several
general arguments with regard to both issues in his brief. Appellant first argues that he should be
given credit for the payments he made to Mulligan’s Store from 1972 to 1976. In support of this
argument, Appellant cites Acree v. Acree, 462 S.W.2d 870 (Tenn. 1971). In Acree, our supreme
court reviewed a chancery court’s refusal to modify an order that directed the obligor spouse to make
child support payments to the court clerk along with a $50.00 monthly commission for the clerk’s
services. Id. at 871. Even though both the father and mother had requested the modification, the
chancery court had denied their request. Id. Apparently, the parties wanted the payments to be made


         2
            App ellant’s statemen t of the evide nce m erely states, “Comes the Defend ant, Charles Clark , and hereby state
[sic] the following: 1. That there is not a Transcript of the hearing to be filed. 2. That no Technical Record is to be filed
with the Court of Appeals.” A brief technical record, however, was filed.

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directly to the mother to avoid the clerk’s fee. The Acree court held that the chancery court’s
decision was unreasonable given that the statutes governing child support obligations did not require
payments to be set up through the court clerk. Id. at 871-72.

        Here, however, we have a very different situation. Appellant never attempted to alter the
court’s order that required him to pay $25.00 each week to the court clerk. Instead, Appellant
ignored this requirement and allegedly paid Mulligan’s Store on a weekly basis. As correctly pointed
out by Appellee, child support orders are judgments entitled to be enforced as any other judgment.
TENN. CODE ANN . § 36-5-101(a)(5) (2001). Further, no credit should be given to an obligor spouse
for payments that were not made in accordance with the support order. Id. at § 36-5-101(a)(4)(A)(ii).
Because Appellant failed to comply with the order, he should be held liable for the arrearage.
Accordingly, we find Appellant’s argument to be unpersuasive.

         We further find that the “necessaries rule” as espoused by Tennessee courts also fails to apply
in this case. Under the necessaries rule, courts have held that “non-custodial parents may be given
credit against their child support obligation for payments made on behalf of their children if such
payments are for necessaries that the custodial parent either failed to provide or refused to provide.”
Castle v. Baker, No. E2000-02772-COA-R3-CV, 2001 Tenn. App. LEXIS 709, at *9 (Tenn. Ct. App.
August 2, 2001) (citations omitted). Here, even if we were to assume that Appellant’s payments to
Mulligan’s store were used for the purchase of necessaries, Appellant has not contended that Ms.
Clark ever failed or refused to provide for the minor children. Accordingly, this argument is without
merit.

         Finally, Appellant argues that his child support obligations should have been considered
tolled from 1972 to 1976 because he continued to reside with Ms. Clark and the children. Appellant
makes this broad assertion with no citation to any precedent in support thereof. Our review finds
no relevant case law supporting Appellant’s position either. Accordingly, we also find this argument
to be without merit.

         Based on the foregoing conclusions, we hereby affirm the decision of the trial court. Costs
on appeal are assessed against the Appellant Charles Clark and his surety for which execution may
issue if necessary.




                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE



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