                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  June 11, 2013 Session

      STATE OF TENNESSEE, EX REL., VALERIE ARLENE LAW v.
                   MICHAEL LEE FERRELL

              Direct Appeal from the Juvenile Court for Sumner County
                      No. 2011-JV-719     Barry Brown, Judge


                No. M2012-01749-COA-R3-JV - Filed August 20, 2013


This case involves an award of retroactive child support. Approximately seventeen years
after the child's birth, the Tennessee Department of Human Services, acting on behalf of the
child's Mother, filed a petition in the Sumner County Juvenile Court seeking to establish
paternity and to obtain past and future child support from the Father. Genetic testing
confirmed that Father was the child’s biological father. Thereafter, the juvenile court entered
an order establishing paternity and ordering Father to pay $574.00 per month in child
support. The juvenile court also awarded Mother seven years of retroactive child support
totaling $48,216.00. On appeal, both Mother and Father take issue with the amount of the
award of retroactive child support. Upon thorough examination, we conclude that the record
does not support the amount of the award of retroactive child support. Accordingly, we
vacate and remand the case to the juvenile court for further proceedings.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Patti B. Garner, Gallatin, Tennessee, for the appellant, Valerie Arlene Law.

John R. Phillips, Jr., Gallatin, Tennessee, and Jerry V. Smith, Dickson, Tennessee, for the
appellee, Michael Lee Ferrell.
                                   MEMORANDUM OPINION 1

                                              Background

       Valerie Arlene Law (“Mother”) and Michael Lee Ferrell (“Father”) began a
relationship in 1990. Father resided with Mother in her home throughout the relationship,
however, the parties never married. A few years into their relationship, Mother became
pregnant, and on April 21, 1994, she gave birth to a child. Father attended the baby shower
and was with Mother at the hospital on the day of the child’s birth. Despite being with
Mother at the hospital on the day of the child’s birth, Father’s name was not included on the
child’s birth certificate.

        Following the birth of the child, Father continued living with Mother. According to
Father, however, Mother would not let him take part in caring for the child. Father further
testified that Mother told him and his mother that he was not the child’s father.
Approximately two years later, in March 1996, Mother and Father’s relationship ended, and
Father moved out of Mother’s home. Despite ending their relationship, Father continued to
visit Mother at her home on multiple occasions. In May 1996, Father obtained a life
insurance policy designating Mother and the child as beneficiaries. In the section of the
application for the policy regarding his beneficiary designations, Father listed his relationship
to the child as “natural son.” Subsequently, according to Father, in December 1996, Mother
called and left him a message on his answering machine telling him that he was not the
child’s father. From that point on, Father stated that his doubts about the child were
confirmed and he no longer believed that he was the child’s father. Mother denied leaving
the message and further denied ever telling Father that he was not the child’s father.

        On September 2, 2011, the Tennessee Department of Human Services, acting on
behalf of Mother, filed a petition to establish paternity alleging that Father was the biological
father of the child and further sought an award of current and retroactive child support. After
DNA tests confirmed paternity, Father admitted that he was the child’s biological father.
Thereafter, on December 19, 2011, the trial court entered an agreed order of paternity and
support which granted Father reasonable visitation with the child and established Father’s
initial child support obligation at $330.00 per month effective January 1, 2012.

       1
           Rule 10 of the Court of Appeals of Tennessee provides:

       This 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 “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.

                                                    -2-
        On May 1, 2012, after conducting a hearing, the trial court issued a memorandum
detailing its findings in this matter. The trial court’s memorandum provides as follows:

      This case came to be heard on 4-16-2012 in which the State of Tennessee and
      Petitioner are asking for back child support.

      The facts of the case are:

      The child was born on April 21, 1994, is now 18 years of age and will graduate
      in May of 2013[.]

      The parties lived together September of 1990 through March of 1996. The
      State and Petitioner are asking for child support in the amount of $148,000.

      Petitioner, Valerie Law, testified that Respondent, Michael Ferrell, never
      wanted to be a father, he had another child who was 18 years of age and did
      not want another child to raise[.]

      She testified that the Respondent did attend the baby shower and was present
      for the birth of the child[.]

      It was quite obvious, through the testimony of the Petitioner that she has
      animosity for the Respondent and she was upset with him before the birth, at
      the birth and since the birth of the child[.]

      She told the nurse at the time of the birth while Respondent was in the room
      that that [sic] the father of the child was unknown[.]

      She testified that the only reason she is bring [sic] action now is that the child
      needs financial aide [sic] to go to college. She testified that when the child
      was around two years of age that during a conversation with the Respondent
      she told him not to worry about the child because he legally belongs to
      someone else[.]

      Respondent testified that Plaintiff did not allow him to interact with the child
      such as when the child began to walk she would not allow him to hold the
      child’s hand and would not allow him to participate in pre-school activities[.]

      Respondent testified that because of these actions he started to doubt whether
      he was the father of the child[.]

                                             -3-
Conclusion:

The Court puts the responsibility and blame on both parties in this case[.]

The Petitioner obviously did not want the Respondent to participate in the
child’s life[.]

After the child was two years of age there were no actions file [sic] in this
matter until a few months before his 18th birthday in which the Plaintiff asked
for child support[.]

Both parties always knew the location/residence of each other[.]

Petitioner’s actions were enough to put some doubt in the Respondent’s mind
that he might not be the father[.]

That being said, Respondent lived with Petitioner for five or six years and
there was no testimony that she saw anyone else or had a relationship with
anyone else during that time[.]

The Respondent attended baby showers, was present for the birth of the child
and the Petitioner and Respondent lived together for 2 years after the birth of
the child[.]

The fact is that the Petitioner waited almost 16 years to bring an action for
back child support and should or could have brought an action many years
prior to this action[.]

Also, Respondent had to realize that he was or could have been the father and
he also should have brought this action many years ago[.]

There has been no proof of income of the parties except for the period of the
last two years[.]

There has been no proof of any income of the parties from the time they
separated when the child was two until the child is almost 18[.]

Both are negligent for waiting so long for this action to be initiated[.]

There has been no proof that Respondent has the ability to pay $148,000[.]

                                      -4-
        The Respondent started to pay $330 per month in January of 2012[.]

        Court finds it is unjust, inequitable to order retro active [sic] child support
        from the birth of the child[.]

        The Court deviates from the DA’s request and the application of the guidelines
        is rebutted[.]

        The Court, as stated above, finds that both parties are at fault and it is
        inequitable to go back to the birth of the child[.]

        Child support should be $574 per month based on the income of both parties
        during the last two years[.]

        The Court orders child support to be $574 from January 1, 2012, not the $330
        the Respondent has been paying[.]

        The Court orders a judgment to the Petitioner in the amount of $48,216 being,
        seven years of back child support at $574 per month[.]

        The Court will allow the Respondent to pay monthly at $574 per month
        beginning when child graduates from high school but he may pay sooner if he
        so desires[.]

        That is the Order of the Court[.]2

        Thereafter, on July 19, 2012, the trial court entered its final order in which it
designated the memorandum as its findings of fact and conclusions of law. Mother timely
filed a notice of appeal to this Court.

                                              Issue Presented

        On appeal, Mother argues that the trial court erred in declining to award her child
support retroactively to the date of the child’s birth. On the other hand, Father argues that
the trial court erred by awarding Mother seven years of retroactive child support. Instead,
Father asks this Court to vacate the trial court’s award of $48,216.00, and award Mother


        2
          Notably absent from the trial court’s findings is the fact that Father obtained a life insurance policy
months after he and Mother separated, designating Mother and the child as beneficiaries. As noted, Father
listed his relationship to the child as “natural son” on the application.

                                                      -5-
child support retroactively to the date of the filing of the petition to establish paternity.

                                          Discussion

      As this Court recently explained in Burnine v. Dauterive, No. W2010-02611-COA-
R3-JV, 2011 WL 3115967 (Tenn. Ct. App. July 27, 2011):

               “In this state, it is a well-settled principle that biological parents must,
       as a general rule, support their children until they reach the age of majority.”
       K.A.G. v. B.L.I., No. M2008-02484-COA-R3-JV, 2009 WL 4175861, at *3
       (Tenn. Ct. App. E.S. Nov. 25, 2009) (citing Tenn. Code Ann. § 34–1–102(a),
       (b) (2001); Smith v. Gore, 728 S.W.2d 738, 750 (Tenn. 1987)). A parent's
       obligation to support exists regardless of whether there is a court order and
       regardless of whether the parents were ever married. Id. “When paternity of a
       child born out of wedlock is established, the trial court is required to address
       not only the child's need for future support, but also the father's obligation to
       pay past support.” Id. (quoting State ex rel. Hayes v. Carter, W2005-02136-
       COA-R3-JV, 2006 WL 2002577 at *2 (Tenn. Ct. App. July 6, 2006)). “The
       trial court's decision regarding whether to award retroactive child support is
       reviewed under an abuse of discretion standard.” State ex rel. Kennamore v.
       Thompson, No. W2009-00034-COA-R3-JV, 2009 WL 2632759, at *2 (Tenn.
       Ct. App. Aug. 27, 2009) (citing State ex rel Coleman v. Clay, 805 S.W.2d 752,
       755 (Tenn. 1991)). However, the trial court must exercise its discretion within
       the strictures of the Child Support Guidelines and the applicable statutes.
       Berryhill v. Rhodes, 21 S.W.3d 188, 193 (Tenn. 2000). A trial court abuses its
       discretion when it applies an incorrect legal standard or reaches a decision
       which is against logic or reasoning that causes an injustice to the party
       complaining. Williams v. Baptist Mem'l Hosp., 193 S.W.3d 545, 551 (Tenn.
       2006) (citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

              The Guidelines provide a presumption that child support will be
       awarded retroactively to the date of the child's birth in paternity cases. Tenn.
       Comp. R. & Regs. 1240–2–4–.06(1)(a). However, “[o]ur legislature has
       recognized that under certain circumstances it would be inequitable to order
       a father to pay child support retroactive to the child's birth.” Taylor v.
       Robinson, No. M2006-00109-COA-R3-JV, 2007 WL 1628862, at *5 (Tenn.
       Ct. App. Jun. 5, 2007). Accordingly, Tennessee Code Annotated section
       36–2–311(a)(11)(A) provides, in relevant part, that when making an award of
       retroactive child support,



                                               -6-
           . . . the court shall consider the following factors as a basis for deviation
           from the presumption in the child support guidelines that child and
           medical support for the benefit of the child shall be awarded
           retroactively to the date of the child's birth:

           (i) The extent to which the father did not know, and could not have
           known, of the existence of the child, the birth of the child, his possible
           parentage of the child or the location of the child;

           (ii) The extent to which the mother intentionally, and without good
           cause, failed or refused to notify the father of the existence of the child,
           the birth of the child, the father's possible parentage of the child or the
           location of the child; and

           (iii) The attempts, if any, by the child's mother or caretaker to notify the
           father of the mother's pregnancy, or the existence of the child, the
           father's possible parentage or the location of the child[.]

       In addition, when considering the issue of retroactive child support, “the court
       may consider ‘the equity between the parties.’” In re T.K.Y., 205 S.W.3d 343,
       355 (Tenn. 2006) (quoting Tenn. Code Ann. § 36–5–101(e)(1)(A)). “In cases
       in which the presumption of the application of the guidelines is rebutted by
       clear and convincing evidence, the court shall deviate from the child support
       guidelines to reduce, in whole or in part, any retroactive support.” Tenn. Code
       Ann. § 36–2–311(a)(11)(B). In such cases, the court must make a written
       finding “that application of the guidelines would be unjust or inappropriate in
       order to provide for the best interests of the child or the equity between the
       parties.” Id.

Id. at * 4-5.

        Although the trial court found that an award of child support retroactively to the date
of the child’s birth would be unjust and inequitable, and that the presumption of the
application of the Guidelines had been rebutted, it failed to provide the requisite findings to
support its conclusion. If the trial court deviates from the Guidelines, the statutes and
regulations mandate that the trial court's decision must be supported by written findings in
the order explaining the reasons for the deviation. See State ex rel. Kennamore v. Thompson,
No. W2009-00034-COA-R3-JV, 2009 WL 2632759, at *2 (Tenn. Ct. App. Aug. 27, 2009)
(citing Tenn. Code Ann. §§ 36-2-311(a)(11)(B), 36-5-101(e)(1)(A); Tenn. Comp. R. & Regs.
1240-2-4-.06(2),-.07(1) (2008)) (footnotes omitted). Pursuant to Tennessee Code Annotated

                                                -7-
section 36-2-311(a)(11)(F):

       In making any deviations from awarding retroactive support, the court shall
       make written findings of fact and conclusions of law to support the basis for
       the deviation, and shall include in the order the total amount of retroactive
       support that would have been paid retroactively to the birth of the child, had
       a deviation not been made by the court.

Tenn. Code Ann. § 36-2-311(a)(11)(F). Also, “[f]indings that the application of the
guidelines would be unjust or inappropriate shall state the amount of support that would have
been ordered under the child support guidelines and a justification for the variance from the
guidelines.” Tenn. Code Ann. § 36-5-101(e)(1)(A). The regulations further provide that:

       Deviations from the presumption that a judgment for retroactive support shall
       be awarded back to the date of birth of the child, the date of the separation of
       the parties, or the date of abandonment of the child shall be supported by
       written findings in the tribunal's order that include:

       (a) The reasons the tribunal, pursuant to Tennessee Code Annotated §§
       36-2-311(a)(11)(A) or 36-5-101(e)(1)(C), deviated from the presumptive
       amount of child support that would have been paid pursuant to the Guidelines;
       and

       (b) The amount of child support that would have been required under the
       Guidelines if the presumptive amount had not been rebutted; and

       (c) A written finding by the tribunal that states how, in its determination,

       1. Application of the Guidelines would be unjust or inappropriate in the
       particular case before the tribunal; and

       2. The best interests of the child or children who are subject to the support
       award determination are served by deviation from the presumptive guideline
       amount.

Tenn. Comp. R. & Regs. 1240-2-4-.06(2). While “[t]he amount or method of such deviation
is within the discretion of the tribunal,” the trial court “must state in its order the basis for the
deviation and the amount the child support order would have been without the deviation. In
deviating from the Guidelines, primary consideration must be given to the best interest of the
child for whom support under these Guidelines is being determined.” Tenn Comp. R. &

                                                 -8-
Regs. 1240-2-4-.07(1)(b).

        In this case, the trial court refused to award retroactive child support to the date of the
child’s birth. Instead, the trial court awarded Mother seven years of retroactive child support,
at a monthly rate of $574.00, for a total amount of $48,216.00. Presumably, based on the
trial court’s finding that both parties were “negligent for waiting so long for this action to be
initiated,” the trial court chose seven years as somewhat of a compromise given that the
parties separated roughly fifteen years before this action was commenced. Unfortunately,
the trial court failed to explain how the amounts were determined, and we are unable to
discern from the record the origin of these figures. Moreover, the trial court’s order fails to
provide any method of calculation as to how it reached the stated amounts. In the absence
of evidence or the requisite findings to support a deviation from the Guidelines, we are
unable to evaluate the propriety of the trial court’s decision. Under these circumstances, we
must vacate the trial court’s award and remand to the trial court to make sufficient findings
of fact and conclusions of law. On remand, the trial court is directed to either apply the
Guidelines and award support retroactively to the date of the child’s birth, or make sufficient
findings to support a deviation from the Guidelines in accordance with the applicable statutes
and regulations.

                                           Conclusion

        For the foregoing reasons, we vacate the trial court’s award of retroactive child
support and remand the case for further proceedings consistent with this Opinion. Costs
of this appeal are taxed to the Appellee, Michael Lee Ferrell, for which execution may
issue if necessary.




                                                      _________________________________
                                                      DAVID R. FARMER, JUDGE




                                                -9-
