                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   May 22, 2002 On-Briefs

    STATE OF TENNESSEE, ex rel. FRANKIE DAVIS (GANT) v. JASON
                              DAVIS

                A Direct Appeal from the Chancery Court for Gibson County
                    No. 93707     The Honorable George R. Ellis, Judge



                      No. W2001-01842-COA-R3-CV - Filed July 8, 2002


       In this post-divorce proceeding, the State of Tennessee filed a petition against Mr. Jason
Davis (hereinafter “Father”) for contempt and seeking child support arrears ordered to be paid to the
custodial parent, Ms. Frankie Davis (Gant) (hereinafter “Mother”). The trial court granted the State
a judgment in the amount of $1,660.00, representing the amount of State assistance paid to the
Mother and children, to be liquidated by the Father at the rate of $10.50 per week. The State has
appealed. We affirm as modified in part, reverse in part, and remand.


   Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed as
                    Modified in Part, Reversed in Part, and Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBYLILLARD, J., joined.

Paul G. Summers, Attorney General & Reporter, Stuart F. Wilson-Patton, Senior Counsel, for
Appellant, State of Tennessee, ex rel., Frankie Davis (Gant)

No brief submitted by appellee.


                                            OPINION

       According to the “Decree Awarding Absolute Divorce” filed in the Chancery Court of
Gibson County, Tennessee, the parties were divorced on November 22, 1996, and have two (2)
minor children. The trial court awarded custody of the children to Mother with reasonable visitation
extended to Father. The court also ordered Father to pay $79.00 per week as child support plus
commission by wage assignment. The Father failed to pay the child support as ordered and, at some
point not clear in the record, the Mother applied for and began receiving public assistance benefits
from the State of Tennessee for herself and her two minor children.
       On December 18, 2000, the State filed a “Petition for Contempt and Attachment” in the
Chancery Court of Gibson County, Tennessee, which provides in pertinent part:

                      1. That an Order of Absolute Divorce Decree was entered by
               the Gibson County Chancery Court in Humboldt, Tennessee on
               November 15, 1996, whereby Respondent, Jason Davis, was ordered
               to pay $79.00 every week for the support of James D. Davis, born
               July 25, 1994, Symantha L. Davis born August 7, 1990.

                       2. That the Respondent is more than thirty days in arrears and
               pursuant to TCA 36-5-101 (b), the Court has the discretion to issue
               an attachment for the Respondent and set a bond of not less than
               $250.00 and not more than the amount of the arrears.

                      3. That said payments have not been made as ordered, as
               evidenced by the attached “EXHIBIT A,” and that the total
               accumulated arrearage amounts to $12,824.90 as of October 16, 2000.

                      4. That the Respondent is able bodied, capable of pursuing
               gainful employment, and that failure to make these payments as
               ordered constitutes a willful contempt of the Orders of this court.

                        5. That this is the first citation for contempt of Court in this
               cause.

       By order filed on May 21, 2001, the trial court found that the parties have reconciled and,
thereby, terminated the current child support effective December 24, 2000. The trial court continued
the matter to May 25, 2001, to determine arrears.

        On May 25, 2001, an evidentiary hearing was conducted and the trial court entered and filed
its order on June 22, 2001, which provides in pertinent part:

                     That the State of Tennessee is granted a judgment in the
               amount of $1,660.00.

                      The Respondent shall liquidate the judgment at the rate of
               $10.00 per week plus statutory fee of $0.50 for a total of $10.50 per
               week until paid in full.

                     The Court finds that the custodial parent is not seeking
               reimbursement of arrears.

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       The State has appealed and raises the following three (3) issues as stated in the State’s brief:
              I. Whether the trial court erred by retroactively terminating the
              current child support in the absence of either a petition or motion for
              modification.

               II. Whether the trial court erred by granting the State a judgment
               against the appellee only in the amount of the public assistance
               benefits provided to his family.

               III. Whether the trial court erred by setting the appellee’s payments
               on the State’s child support arrearage judgment at only $10.00 per
               week.

        Since this case was tried by the trial 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. T.R.A.P. 13(d).

       We will now address the appellant’s issues.

        The State first argues that the trial court erred by retroactively terminating current child
support in the absence of either a petition or a motion for modification and by forgiving $13,614.90
in child support arrears on grounds that the Mother was not seeking reimbursement of the arrears.
We agree. Tenn. Code Ann. § 36-5-101(a)(5) (2001) provides:

                       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 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. If the full amount of
               child support is not paid by the date upon which the ordered support
               is due, the unpaid amount is in arrears and shall become a judgment
               for the unpaid amounts and shall accrue interest from the date of the
               arrearage at the rate of twelve percent (12%) per annum. All interest
               which accumulates on arrearages shall be considered child support.
               Computation of interest shall not be the responsibility of the clerk.

Furthermore, our Supreme Court has held in Rutledge v. Barrett, 802 S.W.2d 604 (Tenn. 1991) that
pursuant to the above statute, a child support order is not subject to retroactive modification. Id. at
605-607; see also Alexander v. Alexander, 34 S.W.3d 456, 460 (Tenn. Ct. App. 2000)(providing
that “a court has no power to alter a child support award as to any period of time occurring prior to
the date on which [a parent] files his or her petition.”).

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        In the present case, although the parties have not formally filed a petition or motion to
modify child support as originally ordered by the trial court on November 22, 1996, the parties
informed the trial court of their reconciliation during a hearing on April 27, 2001 upon the State’s
petition. This stipulation in open court is binding on the parties, and the current support is
terminated as of April 27, 2001.

        It is settled law that trial courts are vested with wide discretion in matters relating to child
custody and support. Campanali v. Campanali, 695 S.W.2d 193, 196 (Tenn. Ct. App. 1985).
According to Tenn. Code Ann. § 36-5-101(a)(1) (2001), a court may order an increase or decrease
in the amount of child support only upon a showing of substantial and material change of
circumstances. Id. The party seeking modification in alimony or child support has the burden of
showing a substantial and material change in circumstances. Seal v. Seal, 802 S.W.2d 617, 620
(Tenn. Ct. App. 1990). Such a change in circumstances is not material if it was contemplated by the
parties at the time they entered an alimony or support agreement. Seal, 802 S.W.2d at 620.

       Therefore, we find that the trial court erred in retroactively terminating and forgiving child
support prior to April 27, 2001, when the Father and Mother informed the trial court of their
reconciliation.

        The State also argues that the trial court erred by granting the State a judgment against the
Father only in the amount of the public assistance benefits provided to the family. The State
correctly points out that based on the federal child support distribution scheme and the payments set
by the trial court, the Mother will actually receive all of the arrears paid, and the State will not be
paid at all. See 42 U.S.C.A. § 657(a)(2)(B)(i)(II)(bb) and (ii)(II)(bb) (2002).

        The State concedes that under the federal child support distribution scheme, 42 U.S.C.A. §
657(a)(2)(B)(i)(II)(bb) and (ii)(II)(bb) (2002), the State’s right to reimbursement is limited to
$1660.00 in this case, the amount of benefits paid to the family. Also, there is no evidence in the
record that the Mother was on public assistance as of April 27, 2001, and the State correctly points
out that although the trial court clearly intended for the State to be reimbursed for the $1660.00 in
public assistance benefits, the State will never receive any of the money.

        Furthermore, Tenn. Code Ann. § 71-3-124 (2001) provides in pertinent part:

                       (a)(1) Each applicant or recipient who receives or authorizes
                payment of public or temporary assistance pursuant to Title IV-A or
                IV-E of the Social Security Act or any successor program providing
                temporary assistance or foster care or adoption assistance shall be
                deemed to have assigned to the state any rights to support from any
                other person such applicant or recipient may have:




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                                (A) In the applicant's own behalf or in behalf
                        of any other family member for whom the applicant is
                        applying for or receiving aid; and

                               (B) Which have accrued at the time
                        such assignment is executed.

        According to this statute, when Ms. Davis and her children received the public assistance
benefits, she automatically assigned to the State her rights to receive child support from the Father
in the amount of the benefits received.

        Therefore, under this record in this case, we find that the trial court erred in granting the State
a judgment against the Father only in the amount of the public assistance benefits provided to his
family.

        Lastly, the State argues that the trial court erred by setting the appellee’s payments on the
State’s child support arrearage judgment at only $10.00 per week. We agree. The transcript of the
proceedings provides in pertinent part:

                        THE COURT: All right. How are you going to pay this
                1660.00? You’ve got to pay this because this is what the State of
                Tennessee –
                        MR. DAVIS: I don’t mind paying it. I can pay $10.00 a week.
                That’s all I can pay, Your Honor. But right now that’s all I can
                afford.

                        THE COURT: Okay, I’ll order that 1660.00 owed to the State
                of Tennessee, be ordered to pay 10.00 a week until paid in full. And
                I further find that the custodial parent is not seeking reimbursement
                for any arrears owing.

        The State correctly points out that the Father had the ability to pay $79 per week as of
November of 1996 and the trial court did not make a sufficient factual inquiry to support arrearage
payments of only $10.00 per week. As noted above in the transcript of the proceedings, the trial
court did not inquire into the Father’s income or expenses, nor did the trial court afford the State any
opportunity to cross-examine the Father on this issue. In dealing with a similar problem concerning
the reasonableness of the arrearage installment payments, this Court, in Tallent v. Cates, No. E1999-
01168-COA-R3-CV, 2000 WL 823466 at **7 (Tenn. Ct. App. June 27, 2000), stated:

                While we do not have before us the kind of "initial support" order
                contemplated by the regulation, we consider it to be persuasive on (1)
                the use of the obligor's current income and (2) the goal of repayment
                within a reasonable time. Accordingly, we direct that the Trial Court

                                                   -5-
               shall consider those as factors in setting a payment plan that will
               cover the post judgment interest and result in the judgment being
               satisfied within a reasonable period of time.

Id.; see State ex rel. Armstrong v. Coleman, No. W2000-01122-COA-R3-CV, 2001 WL 557991
at **6 (Tenn. Ct. App. May 24, 2001).

        Therefore, we find that the trial court erred in setting the Father’s payments on the State’s
child support arrearage judgment at only $10.00 per week.

       Accordingly, the judgment of the trial court is modified to terminate current child support
as of April 27, 2001 and as modified the termination of current child support is affirmed. The
judgment in all other respects is reversed, and the case is remanded to the trial court for
determination of child support arrearages to April 27, 2001. The trial court should also make a
determination as to a reasonable amount of installment payments for the arrearage consistent with
this Opinion. Costs of the appeal are assessed against the appellee, Jason Davis.



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




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