                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    JUNE 24, 2009 Session

STATE OF TENNESSEE ex rel SAMELBA P. LEWIS (ROBINSON) v. T. J.
                       ROBINSON, III

              Direct Appeal from the Chancery Court for Montgomery County
                Docket No. MC CH CV CS 02 5775330; Case No. 000128201
                          Laurence M. McMillan, Jr., Chancellor



                      No. M2008-02275-COA-R3-CV - Filed July 30, 2009


In this post-divorce proceeding, the father claims that his child support obligation should have been
reduced due to his health and financial circumstances. The chancellor confirmed the child support
referee’s recommendation to deny the father’s petition, finding that the father failed to file a timely
request for a hearing before the chancellor following the hearing before the referee. We affirm.


    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

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

T. J. Robinson, III, West Palm Beach, FL, pro se

Robert E. Cooper, Jr., Attorney General and Reporter; Warren A. Jasper, Senior Counsel, Nashville,
TN, for Appellee
                                             OPINION

                               I. FACTS & PROCEDURAL HISTORY

       In 1995, T.J. Robinson, III (“Father”) and Samelba Lewis (“Mother”) were divorced by
decree of the Chancery Court of Montgomery County, Tennessee. The divorce decree incorporated
a marital dissolution agreement that required Father to pay Mother $218.40 per month in child
support for the parties’ son.

        In 2001, the State of Tennessee filed a petition on behalf of Mother seeking to modify
Father’s child support obligation. The parties reached an agreement, which the court approved,
requiring Father to pay $355.00 per month in child support and $45.00 per month toward arrears.

        On or around December 9, 2002, Father, acting pro se, filed a “Petition for Visitation
Credits,” seeking a credit against the child support he was required to pay during the summers of
1997, 1999, 2000, and 2002, because the parties’ son was apparently visiting with him during that
time. On January 27, 2003, Father also sent a letter to the trial court clerk requesting that his child
support obligation be reduced or suspended because he was on a temporary unpaid suspension from
his job. He attached a letter from his employer, the State of Michigan Department of Corrections,
which stated that Father was under investigation on a felony charge and therefore on an unpaid
suspension. Father sent an additional letter and a fax to the court stating that he could not afford to
travel to Tennessee for a hearing, but requesting that the court reduce his child support obligation
nevertheless. Following a hearing, the trial court entered an order on March 4, 2003, denying
Father’s request to reduce his child support obligation and his request for “visitation credits.”

        On February 12, 2004, Father re-filed the very same “Petition for Visitation Credits,” again
seeking credit for the child support he paid during the summers of 1997, 1999, 2000, and 2002.
There is nothing in the record to indicate that any action was taken regarding this petition. On
September 23, 2004, Father filed a “Petition for Modification of Support Order and Visitation,”
stating that he could no longer afford to pay the ordered amount of child support due to the fact that
he had enrolled as a full-time college student. Apparently, no action was taken on this petition
either.

        On November 4, 2005, the State of Tennessee filed a petition for modification on behalf of
Mother, alleging that Father was $13,530.56 in arrears on his child support obligation and that a
significant variance existed between Father’s current support obligation and the amount due under
the Tennessee Child Support Guidelines. Again, it appears that no action was taken on this petition.
A nearly identical petition for modification was filed on June 11, 2007, but this petition stated that
it was brought by “Thomas Robinson” rather than Mother. However, the petition was signed by the
same person who filed the 2005 petition on behalf of Mother. In any event, this petition stated that
Father was $20,130.56 in arrears, and it alleged that a significant variance existed between the
current child support obligation and the amount owed under the guidelines.



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        On November 14, 2007, Father, Mother, and an attorney for the State of Tennessee appeared
at a hearing before a child support referee. The record before us does not contain a transcript of this
hearing. However, it does contain an “Affidavit of Income” submitted by Father, indicating that he
was “self employed in lawn services” during 2003, earning $400.00 per month. Father’s affidavit
also stated that he was employed as a drummer at a church in Michigan from July 2004 to January
2006, earning $100.00 per week. The referee entered her “Findings and Recommendations” on
November 14, 2007, concluding that there was no significant variance between the current child
support obligation ($355.00) and that owed under the child support guidelines ($371.00).1
Therefore, the referee recommended denying the petitions to modify and ordering that Father’s child
support remain at the current level.

         Father subsequently filed a “Motion for Re-hearing (Appeal),” seeking a hearing before the
chancellor. Father alleged in this motion that he had evidence from his cardiologist to prove that he
was unable to work, and he claimed that his child support arrears should be retroactively adjusted
beginning on the date that he was diagnosed with a heart condition in 2003. The record contains a
letter from Father’s doctor which states, “Because of his arrhythmias and his defibrillator, [Father]
was encouraged not to drive a motor vehicle. This has affected his ability to sustain regular
employment.” A hearing was held before the chancellor on January 11, 2008, but we do not have
a transcript of the hearing in the record. According to the order subsequently entered by the
chancellor, Father argued at the hearing “that the referee failed to take into consideration the letter
from his physician . . . .” The chancellor found that, “in the event the child support referee failed to
take this letter into account, it was error.” Accordingly, the chancellor remanded the matter to the
referee “to take into account [Father]’s physicians’s letter . . . in calculating his income for child
support purposes . . . .” According to the chancellor’s order, Father also argued at the hearing that
he should be entitled to a recalculation of his arrears to a date prior to the June 2007 petition for
modification, since he had filed, or at least attempted to file, a petition to modify his child support
on February 12, 2004, but the petition was never addressed. The chancellor noted that Father
produced documentation from the clerk’s office proving that he filed “a petition” on February 12,
2004.2 As such, the chancellor found that, “as a matter of equity [Father]’s child support arrearage
should be recalculated to the date of his original petition of February 12, 2004.”

        Another hearing was held before the referee on June 9, 2008, but again, we have no transcript
of the hearing in the record before us. The referee entered her “Findings and Recommendations” on
June 9, 2008, which indicate that Father, Mother, and an attorney for the State of Tennessee were
present. The referee again recommended denying the petitions for modification, finding no
significant variance between the ordered child support obligation and that owed under the guidelines.
The referee found that Father was not disabled because he was driving in spite of his physician’s


         1
          The child support worksheets attached to the referee’s findings list Father’s monthly gross income at
$1,386.66. According to Father’s brief on appeal, the referee “imputed the standard income for males.”

         2
            From our review of the record, the document filed by Father on February 12, 2004, was actually the “Petition
for Visitation Credits” that he had previously filed and the court had denied.


                                                          -3-
letter, he was taking classes at the University of Michigan and expected to graduate in 2009 with a
Bachelor of Science degree, he currently held a dental assistant license, and he was considering
attending dental school.

        On June 16, 2008, the chancellor entered an order confirming the referee’s findings, noting
that no request for a hearing had been made pursuant to Tennessee Code Annotated section 36-5-
405(h).3 Thereafter, on June 23, 2008, Father filed a “Motion for Re-hearing (Appeal),” seeking a
hearing before the chancellor. The chancellor denied Father’s motion as untimely because it was not
filed within five days of the date of the hearing before the referee. Father then filed a motion to
reconsider and sent a letter to the chancellor, claiming that he had originally filed a motion “within
the time lines,” but the clerk’s office allegedly sent it back to him. Following a hearing on
September 5, 2008, the chancellor entered an order which stated, “after hearing proof in the matter
[Father]’s request to reconsider . . . is denied.” Father timely filed a notice of appeal.

                                    II. ISSUES PRESENTED
       Father presents the following issues, as we perceive them, for review:

1.     Whether the trial court erred in finding that Father’s request for a hearing before the
       chancellor was untimely.
2.     Whether the trial court erred in confirming the referee’s findings when the court previously
       ordered the referee to recalculate Father’s arrearage to the date of his original petition filed
       February 12, 2004, and the referee failed to do so.
3.     Whether the referee erred in denying the petition to modify despite Father’s physician’s letter
       and Father’s financial circumstances.

For the following reasons, we affirm the decision of the chancery court.

                                         III. STANDARD OF REVIEW

      We review child support decisions using the deferential “abuse of discretion” standard.
Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005). “[A] trial court will be found


       3
           Tennessee Code Annotated section 36-5-405 provides, in pertinent part:

       (g) Upon the conclusion of the hearing in each case, the referee shall transmit to the judge all papers
       relating to the case, along with the referee’s findings and recommendations in writing. . . .

       (h) Any party may, within five (5) days thereafter, excluding nonjudicial days, file a request for a
       hearing by the judge of the court having jurisdiction. The judge may, on the judge’s own motion, order
       a rehearing of any matter heard before a referee, and shall allow a hearing if a request for such is filed
       as herein prescribed. . . .

       (i) If a hearing before the judge is not requested, the findings and recommendations of the referee
       become the final decree of the court when confirmed by an order of the judge.


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to have ‘abused its discretion’ when it applies an incorrect legal standard, reaches a decision that is
illogical, bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning
that causes an injustice to the complaining party.” Id. (citations omitted). However, we will not
simply substitute our discretion for that of the trial court. Id.

                                          IV. DISCUSSION

         A.    The Timeliness of Father’s Request for a Hearing before the Chancellor

       As previously noted, Tennessee Code Annotated section 36-5-405 provides, in pertinent part:

       (g) Upon the conclusion of the hearing in each case, the referee shall transmit to the
       judge all papers relating to the case, along with the referee’s findings and
       recommendations in writing. . . .
       (h) Any party may, within five (5) days thereafter, excluding nonjudicial days, file
       a request for a hearing by the judge of the court having jurisdiction. The judge may,
       on the judge’s own motion, order a rehearing of any matter heard before a referee,
       and shall allow a hearing if a request for such is filed as herein prescribed. . . .
       (i) If a hearing before the judge is not requested, the findings and recommendations
       of the referee become the final decree of the court when confirmed by an order of the
       judge.

Here, the referee entered her findings and recommendation on June 9, 2008, and the chancellor
confirmed those findings on June 16, 2008. Father filed a request for a hearing on June 23, which
was denied. Father then claimed that he had previously filed a timely request for a hearing, but the
clerk’s office returned it to him. On appeal, Father states in his brief that his original request for a
hearing “was sent on June 11, 2008 from Ohio via U.S. Mail.” The chancellor held a hearing on
Father’s motion to reconsider, and “after hearing proof in the matter,” denied Father’s motion. We
do not have a transcript of the hearing or any other actual evidence in the record to support Father’s
assertion that he filed a timely request for a hearing. Therefore, we find no error in the trial court’s
conclusion that Father’s request was untimely.

                                   B.    Retroactive Modification

         Next, Father argues that the trial court erred in confirming the referee’s recommendation to
deny his petition to modify when, according to Father, the chancellor had previously “deemed this
case to be worthy of modification retroactively.” Again, the chancellor found that the referee erred
if she failed to consider the letter from Father’s physician, and he remanded the matter to the referee
“to take into account [Father]’s physician’s letter . . . in calculating his income for child support
purposes, and to recalculate his arrearage retroactive to February 12, 2004.” Father obviously
interprets the chancellor’s order to mean that the chancellor had already found that he was unable
to work, already found that his petition to modify should be granted, and ordered the referee to
reduce the amount of his arrearage retroactive to 2004. The State, on the other hand, interprets the


                                                  -5-
chancellor’s order as an instruction to the referee to consider the letter from Father’s physician in
determining whether the petition to modify should be granted, and if the referee found that a
decrease in child support was warranted, then requiring the reduction to be retroactive to the date
of Father’s original petition.4 We agree with the State’s position. Again, we have no transcript of
the hearing that gave rise to the chancellor’s order. However, we find it significant that the
chancellor’s order does not instruct the referee to grant Father’s petition to modify, nor does it
include a finding by the chancellor that Father was unable to work due to his physician’s letter. The
chancellor simply found that, “in the event the child support referee failed to take this letter into
account, it was error.” The chancellor then remanded the matter to the referee in order for her “to
take into account [Father]’s physician’s letter . . . in calculating his income for child support
purposes . . . .” Next, the chancellor noted that Father claimed he had filed a petition for
modification on February 12, 2004, and “he was unable to get his petition filed and timely heard”
due to difficulties communicating with the clerk’s office and district attorney’s office. The court
then concluded that, “as a matter of equity, [Father]’s child support arrearage should be recalculated
to the date of his original petition of February 12, 2004.” If we were to read this sentence in
isolation, we might agree with Father’s position that the trial court ordered a modification retroactive
to February 12, 2004. However, based on our reading of the entire order, we conclude that Father
was only entitled to a retroactive modification if the referee first found that the petition to modify
should be granted.

        On remand, the referee considered the letter, in addition to other evidence, yet concluded that
Father was able to work. Therefore, she recommended denying his petition to modify, and
consequently, Father was not entitled to a retroactive modification of his child support to the date
of his original petition. The chancellor confirmed the referee’s recommendation, and we find no
error in the chancellor’s actions.

                                          C.     The Referee’s Findings

        Finally, Father argues that the referee should have modified his child support obligation due
to Father’s health condition and financial circumstances. We have already determined that the
chancellor did not err in confirming the referee’s findings, due to the untimeliness of Father’s request
for a hearing. In addition, we have no transcript of the hearing before the referee at which the parties
presented proof regarding these issues. Father filed a “statement of the evidence” which merely
states the following regarding the hearing before the referee:

         In a hearing on June 6, 2008, the referee made a visual assessment of me and my
         medical condition. She ruled that the defendant was capable to work regardless of
         the doctor’s letter and she increased the amount of child support.



         4
            A trial court may modify a child support obligation back to the date that a petition or motion for modification
is filed and notice is provided to the non-moving party. State ex rel. Hickman v. Dodd, No. W 2008-00534-COA-R3-
CV, 2008 W L 4963508, at *2 (Tenn. Ct. App. Nov. 21, 2008).


                                                           -6-
Father does not describe the parties’ testimony or the evidence submitted at the hearing in any
manner.5 In short, Father’s statement of the evidence fails to “convey a fair, accurate and complete
account of what transpired with respect to those issues that are the bases of appeal.” Tenn. R. App.
P. 24(c). “This Court’s authority to review a trial court’s decision is limited to those issues for which
an adequate legal record has been preserved.” Taylor v. Allstate Ins. Co., 158 S.W.3d 929, 931
(Tenn. Ct. App. 2004). “This court cannot review the facts de novo without an appellate record
containing the facts, and therefore, we must assume that the record, had it been preserved, would
have contained sufficient evidence to support the trial court’s factual findings.” Sherrod v. Wix,
849 S.W.2d 780, 783 (Tenn. Ct. App. 1992).

                                               V. CONCLUSION

       For the aforementioned reasons, we affirm the decision of the chancery court. Costs of this
appeal are taxed to the appellant, T.J. Robinson, III, for which execution may issue if necessary.



                                                               ___________________________________
                                                               ALAN E. HIGHERS, P.J., W.S.




        5
            The State claims that the referee heard testimony from the parties and considered the letter from Father’s
physician, a letter from Father’s church regarding his employment as a drummer, and a letter from the Social Security
Administration finding him ineligible for benefits due to his “ability to perform other types of sit down work.”


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