                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 MAY 26, 2010 Session

          STATE OF TENNESSEE, ex rel DONNA J. COTTINGHAM
                    v. WILLIAM B. COTTINGHAM

           Direct Appeal from the Chancery Court for Williamson County
                     No. 22772     Robbie T. Beal, Chancellor


                  No. M2008-02381-COA-R3-CV - Filed July 27, 2010


This appeal involves a father’s child support and alimony arrearages. The trial court found
the father in contempt and sentenced him to ten days in jail, with three days suspended. The
court also awarded interest on the alimony and child support arrearages. We affirm in part
and reverse and vacate in part.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and H OLLY M. K IRBY, J., joined.

Lauren W. Moss, Franklin, Tennessee, for the appellant, William B. Cottingham

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Amy T. McConnell, Assistant Attorney General, Nashville, Tennessee, for the appellee, State
of Tennessee ex rel Donna J. Cottingham
                                         OPINION

                           I.   F ACTS & P ROCEDURAL H ISTORY

        William Cottingham (“Father”) and Donna Cottingham (“Mother”) have one daughter,
who was born in 1983. When Father and Mother divorced in 1996, Father was ordered to
pay $1,150 per month in child support and $600 per month in rehabilitative alimony for five
years. The parties’ daughter turned eighteen in 2001. On December 11, 2002, a judgment
was entered against Father for $73,117.69 in alimony and child support arrearages. The
judgment included a $36,000 alimony arrearage, as the court found that he had “never made
a payment,” and a child support arrearage of $37,117.69. On October 6, 2004, another
judgment was entered against Father after the court determined that he still owed $30,500.58
on his child support arrearage. Father was ordered to pay $300 per month toward the child
support arrearage. An agreed order was entered in 2005 whereby Father agreed to increase
his child support arrearage payment to $600 per month.

       Father consistently made his child support arrearage payments until he lost his job in
February 2008. He contacted Child Support Services to request a temporary reduction in his
arrearage payment until he could find another job, but he was told that he would have to
petition the court for relief. On May 6, 2008, the State of Tennessee, on behalf of Mother,
filed a “Motion to Determine Child Support and Alimony Arrearage,” seeking an order
reducing Father’s arrearage to judgment and further requesting that statutory interest be set
on the judgment. The State claimed that Father still owed $12,096.88 on his child support
arrearage. Thereafter, the State filed a petition to show cause seeking to have Father held in
contempt for failing to make payments toward his child support arrearage since February 22,
2008.

        At a hearing on July 14, 2008, Father testified that he was laid off from his job as a
traffic reporter due to lack of work after his employer lost some of its contracts. He
introduced a letter from his former employer corroborating his testimony. Father testified
that he had submitted approximately fifty to seventy-five job applications on the Internet and
that he was also attending a class “for networking and finding jobs.” He named numerous
companies to which he had applied unsuccessfully and said he had even applied for positions
earning eight and ten dollars an hour. Father testified that his “take-home” amount of
unemployment compensation was less than $800 per month.

       Mother testified that Father had only paid about $225 toward his child support
arrearage since he lost his job in February. She testified that Father worked in television
production during the parties’ marriage and that she had no personal knowledge about why
he could not work.

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        The trial court entered an order on September 22, 2008, finding that Father was
$1,200 delinquent in his arrearage payments, despite “a good history of paying.” The court
further found that Father “made good faith attempts to reconcile his current inability to pay
with the Child Support offices,” but nevertheless, the court found Father in contempt and
sentenced him to ten days in jail, with three days suspended. The court instructed counsel
for the parties to submit written memoranda on the issue of imposing interest on the prior
judgments. Regarding the interest calculations, the State argued that interest should be
imposed beginning in 1996 when Father was originally ordered to pay alimony and child
support. Father, however, argued that the doctrine of res judicata prohibited the court from
“going behind” the 2002 and 2004 orders, claiming that those orders conclusively established
his total arrearages as of their respective dates of entry.

        On October 2, 2008, the trial court entered an order finding that “it would be improper
to assess interest prior to the [2002 and 2004] court dates under the theory of res judicata.”
However, the court awarded ten percent interest on the alimony arrearage judgment of
$36,000 since its date of entry on December 11, 2002, and it awarded twelve percent interest
on the most recent child support arrearage judgment since its date of entry on October 6,
2004. The total interest due on the alimony judgment was calculated to be $20,893.55. The
remaining balance owed on Father’s child support judgment was determined to be
$10,175.72, and the interest due on that amount was calculated at $8,735.40. Father timely
filed a notice of appeal.

                                       II.   D ISCUSSION

                                        A.    Contempt

       Father’s first issue on appeal challenged the trial court’s decision to hold him in
contempt. However, the State’s brief on appeal states that it “will not pursue the contempt
finding on appeal” because there was no finding by the trial court that Father’s actions were
willful, and the State “concedes that the evidence at trial failed to establish [Father’s] ability
to pay.” One of the essential elements of a civil contempt claim based upon alleged
disobedience of a court order is that “the person’s violation of the order must be ‘willful.’”
Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 355 (Tenn.
2008) (citing Tenn. Code Ann. § 29-2-102(3)). In order to find that failure to pay alimony
and child support was contemptuous, “the court first must determine that [the obligor] had
the ability to pay at the time the support was due and then determine that the failure to pay
was wilful.” Ahern v. Ahern, 15 S.W.3d 73, 78-79 (Tenn. 2000). The trial court failed to
make such findings in this case, and the evidence would not support such findings.
Therefore, the trial court’s finding of contempt is reversed and the sentence is vacated.



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                                       B.    Standing

       Next, Father raises various arguments regarding whether the State of Tennessee and/or
Policy Studies, Inc. d/b/a Child Support Services of Tennessee (“PSI”) had standing to
petition the court on Mother’s behalf. At the hearing before the trial court, Father’s attorney
argued that “the state by way of the Child Support Office lacked any standing” to represent
Mother in her attempt to enforce the alimony obligation because the child was no longer a
minor and no longer lived with Mother. He went on to quote a provision of a contract that
allegedly exists between the State of Tennessee and PSI, authorizing PSI to enforce “all
orders of support,” which “shall include, but are not limited to, the enforcement of spousal
support when it is contained in the same order with child support . . . and when the child who
is due the child support continues to reside with the parent due the spousal support.”
(emphasis added).

        Father previously appealed to this Court after the arrearage judgments were entered
in 2002, see State ex rel. Cottingham v. Cottingham, No. M2003-00535-COA-R3-CV, 2004
WL 2387563, at *2 (Tenn. Ct. App. W.S. Oct. 26, 2004) rev’d on other grounds, 193 S.W.3d
531 (Tenn. 2006), and he raised this same argument. He contended that “the attorney under
contract with the State of Tennessee to enforce child and spousal support orders does not
have the standing, under the contract, . . . to assist clients with alimony issues after the
emancipation of the children for whom support was ordered.” We noted that the contract
upon which Father relied was not in the record before us but went on to reject his argument
as follows:

       However, it is plain that Mr. Cottingham’s argument is without merit. Mr.
       Cottingham is not a party to the contract in question. Nor is Mr. Cottingham
       a third-party beneficiary of the contract. He cannot be heard to assert rights
       based on a contract to which he is neither a party nor a third-party beneficiary.
       As the appellee correctly points out in its appeal brief:

              [Mr. Cottingham] has no say in what attorney represents his
              ex-wife. Nor does he have any say in the terms of the
              representation, such as whether she has to pay for such legal
              services or how much the fee will be. Nor does the Appellant
              have any say in the scope of the representation. Those are
              matters between DHS, its contractor and Ms. Cottingham. The
              Appellant is not even a third party beneficiary of the contract
              between DHS and its child support contractor. Thus, the
              Appellant has no legal right to raise the issue at all.



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        We agree with the appellees’ analysis in concluding that Mr. Cottingham has
        no standing to contest the scope of representation provided to Donna
        Cottingham by her counsel. Therefore, this assignment of error is without
        merit.

Id. at *2. We note that our opinion in the first appeal of Cottingham was designated a
memorandum opinion, which “shall not be published, and shall not be cited or relied on for
any reason in any unrelated case.” (emphasis added). However, this case is clearly related,
and Father cannot raise the same argument now that we rejected in the previous appeal.

        Father’s initial brief on appeal also questions “[w]hether the State of Tennessee and/or
Policy Studies, Inc. had standing to pursue the collection of alimony” under various federal
statutes found in Title IV-D of the Social Security Act. Father’s reply brief further contended
that the State and/or PSI lacked standing to pursue the collection of child support in this case
under Title IV-D. When addressing standing before the trial court, Father’s counsel did not
discuss the federal statutes and only mentioned the alleged contractual limitation. Thus, we
deem Father’s arguments based on his interpretation of the federal statutes waived because
“[i]ssues not raised in the trial court cannot be raised for the first time on appeal.” Barnes
v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006). In addition, we will not consider an issue
raised for the first time in a reply brief as properly raised on appeal. Castle v. State, Dep’t
of Corr., No. E2005-00874-COA-R3-CV, 2005 WL 2372762, at *4 (Tenn. Ct. App. Sept.
27, 2005).

                                                C.     Interest

       Finally, Father contends that the trial court erred in imposing interest on the child
support arrearage and the alimony arrearage. The State’s brief on appeal states that it “will
not seek to have the interest that was applied to [Father’s] child support payments affirmed”
because the State “concedes that calculating interest on the arrearages now would be an
impermissible retroactive modification of child support and in part is res judicata based on
the court’s prior orders.” Thus, we reverse and vacate the trial court’s award of interest on
Father’s child support arrearage. However, we express no opinion as to the merit, or lack
thereof, in the State’s reasoning.

      The State does ask this Court to affirm the trial court’s award of interest on the
alimony arrearage, and Father seeks to have the award reversed.1 “Interest on judgments in
Tennessee is statutorily mandated, and ‘shall be computed at the effective rate of ten percent


        1
          We note that the State does not argue that the trial court erred in refusing to calculate interest prior
to the 2002 judgment.

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per annum.’” Tallent v. Cates, 45 S.W.3d 556, 563 (Tenn. Ct. App. 2000) (citing Tenn.
Code Ann. § 47- 14-121). The failure of a court to expressly provide for such postjudgment
interest in the judgment does not abrogate the statute. Id. (citing Inman v. Inman, 840
S.W.2d 927, 932 (Tenn. Ct. App. 1992)). “[W]e have concluded on many occasions that
post-judgment interest is mandatory.” Hommerding v. Hommerding, No. M2008-00672-
COA-R3-CV, 2009 WL 1684681, at *10 (Tenn. Ct. App. W.S. June 15, 2009) (citing State
v. Thompson, 197 S.W.3d 685,693 (Tenn. 2006); Vooys v. Turner, 49 S.W.3d 318, 322
(Tenn. Ct. App. 2001)). “Post-judgment interest compensates the party who was entitled to
money but deprived of its use by requiring an additional payment by one who benefitted from
retaining the money.” Lucius v. City of Memphis, 925 S.W.2d 522, 526 (Tenn. 1996).

        Father argues that the facts of this case “exactly match” the circumstances considered
in State ex rel. Jones v. May, 2008 WL 2557374, at *2 (Tenn. Ct. App. 2008), and that the
State is therefore barred from seeking interest on the arrearages. In Jones, an order had been
entered in 2005 holding that a father’s child support arrearage from May 2004 until
December 31,2004, equaled $7,777. Id. at *1. DHS subsequently terminated the father’s
wage assignment and informed credit agencies that his child support debt had been
discharged. Id. Thereafter, DHS asserted that the father was in arrears on the interest he
owed on child support in the amount of nearly $30,000, and the trial court entered an order
finding that Father owed interest back to 1992. Id. On appeal, the Eastern Section of this
Court reversed, stating:

       The doctrine of res judicata prevents a re-examination of “all matters material
       to the decision of the case which the parties exercising reasonable diligence
       might have brought forward at the [earlier] time.” Collins v. Greene County
       Bank, 916 S.W.2d 941, 946 (Tenn. Ct. App. 1995). The doctrine is implicated
       when (1) a court of competent jurisdiction rendered the prior judgment, (2) the
       prior judgment was final and on the merits, (3) the same parties or their privies
       were involved in both proceedings, and (4) both proceedings involved the
       same cause of action. See Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App.
       1990). In the case before us, no one questions the jurisdiction of the trial court;
       the order of March 14, 2005, was on the merits, was not appealed from, and,
       with the passage of time, became final; the parties have been the same
       throughout this case; and the issue is and always has been that of child support.
       We hold that the March 2005 order covered the subject matter of the arrearage
       and is conclusive as to the total amount of Father's obligation as of the date of
       the order's entry, i.e., March 14, 2005. Accordingly, the March 2005 order is
       res judicata as to the arrearage issue. The court cannot go behind that order.
       Father’s total obligation as of March 14, 2005, is as stated in the order of that
       date. It is clear from the record, that this obligation has been paid in full. On

                                               -6-
       the subject of periodic child support, Father has no further obligation to
       Mother or the State. Therefore, the “interest” determination by the trial court
       was erroneous and must be reversed.

Id. at *2. In sum, Jones held that the previous order was “conclusive as to the total amount
of Father’s obligation as of the date of the order’s entry.” (emphasis ours). In this case,
however, the trial court did not “go behind” the most recent order establishing Father’s
alimony arrearage. It simply calculated the interest owed since the 2002 judgment was
entered. Thus, Jones does not require that we vacate the interest award, and it is hereby
affirmed.

                                    III.   C ONCLUSION

       For the aforementioned reasons, we affirm the decision of the chancery court
awarding interest on Father’s alimony arrearage. We reverse and vacate the trial court’s
finding of contempt, Father’s jail sentence, and the award of interest on Father’s child
support arrearage. Costs of this appeal are taxed equally to the appellant, William B.
Cottingham, and the appellee, State of Tennessee, ex rel Donna J. Cottingham, for which
execution may issue if necessary.




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




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