                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      March 4, 2002 Session

             BETTY BERRYHILL v. CHARLES THOMAS RHODES

                   Direct Appeal from the Juvenile Court for Shelby County
                   No. G8355     Claudia S. Haltom, Juvenile Court Referee



                       No. W2001-00748-COA-R3-JV - Filed May 2, 2002


This is a child support case with significant appellate history. Pursuant to the Tennessee Supreme
Court’s opinion in Berryhill v. Rhodes, 21 S.W.3d 188, 188-89 (Tenn. 2000), this case was before
the trial court in order to determine Dr. Rhode’s retroactive child support obligations. The court
applied the Child Support Guidelines from 1989 until the date the child reached majority, in
September 1995. The court deviated from the guidelines in assessing Dr. Rhodes’s child support
obligation from 1977 to 1989. The court calculated the total arrearage as $180,202.00. In assessing
interest on the judgment, the court determined that interest should accrue from August 21, 1996, the
date of the trial court’s original judgment in this matter. Both parties take issue with the trial court’s
decision. We reverse in part, affirm in part, and remand for proceedings consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed in part;
                            Affirmed in part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and D’ARMY BAILEY, SP. J., joined.

Robert L. Green, Memphis, Tennessee, for the appellant, Charles Thomas Rhodes.

Mitchell D. Moskovitz and Adam N. Cohen, Memphis, Tennessee, for the appellee, Betty Berryhill.

                                               OPINION

         This appeal represents the second time this dispute has been before this Court. In the first
trial, the juvenile court denied Ms. Betty Berryhill’s action for retroactive child support. The court
denied Ms. Berryhill’s request because Ms. Berryhill and Charles Thomas Rhodes had voluntarily
entered into an agreement regarding child support at the child’s birth. The court entered its decision
on August 21, 1996. Ms. Berryhill appealed the court’s decision.

       In the first appeal, this Court determined that an agreement existed between the parties which
governed Dr. Rhodes’s child support obligations. Berryhill v. Rhodes, No. 02A01-9701-JV-00011,
1997 Tenn. App. LEXIS 692, at *12 (Tenn. Ct. App. Oct 14, 1997). Further, we stated that section
36-5-101(e)(1) of the Tennessee Code authorized the court to deviate from the guidelines in certain
circumstances. Id. Based on the facts and equity between the parties in the case, we stated that it
would be “unjust and inappropriate to apply the guidelines retroactively.” Id. Finally, we remanded
the case for a determination of Ms. Berryhill’s attorney’s fees. Id. at *15.

       Ms. Berryhill appealed our decision to the Tennessee Supreme Court. The court heard Ms.
Berryhill’s appeal and provided the following summary of their opinion:

               We granted this appeal to determine: (1) whether parties may enter into a
       private agreement regarding the payment of child support outside the Child Support
       Guidelines; (2) whether the evidence preponderates against an award of retroactive
       child support in excess of the amount agreed upon by the parties; and (3) whether the
       plaintiff rebutted the presumption that a two-year average of income should be used
       to determine the amount of child support due under the guidelines. After careful
       consideration, we hold that a private agreement as to child support payments violates
       public policy, that the trial court failed to properly apply the Child Support
       Guidelines to determine the amount of child support, and that the plaintiff
       successfully rebutted the presumption that a two-year average of income should be
       used to determine the proper amount of child support. We remand the case for an
       application of the Child Support Guidelines to determine the amount of child support
       that would be owed under the guidelines and, if appropriate, for findings of fact
       justifying a conclusion that the application of the guidelines would be unjust or
       inappropriate.

Berryhill v. Rhodes, 21 S.W.3d 188, 188-89 (Tenn. 2000).

       The juvenile court heard the case on remand and conducted two separate hearings. On
January 26, 2001, the court continued the case, providing the following reasons for its decision:

       1. A fact finding hearing with regard to actual medical and dental expenses;

       2. Proof regarding actual costs to support said child prior to implementation of
       guidelines;

       3. Proof regarding deviation from guidelines;

       4. Argument pertaining to whether interest on arrearage should be simple or
       compound.




                                               -2-
        At the second hearing, the court concluded that the application of the guidelines from 19771
to 1989 would be “unjust or inappropriate.”2 The court then calculated the pre-Child Support
Guidelines arrearage. Based on Ms. Berryhill’s proof regarding living expenses and the expenses
of the child, the court determined the pre-guideline arrearage to be $87,720. Next, the court
determined the arrearage for the period of time beginning with the creation of the Child Support
Guidelines. After giving Dr. Rhodes credit for other child support obligations and for amounts
previously paid to Ms. Berryhill during this time, the court concluded that Dr. Rhodes owed $87,324
in back child support. The court also determined that Mr. Rhodes owed Ms. Berryhill $5,158 to
reimburse her for certain medical and insurance expenses she incurred as a result of raising the child
from October 1989 to September 1995. Accordingly, the court added the above totals and calculated
the total arrearage as $180,202.

       The court then assessed interest on the arrearage. The court ruled that interest would be
assessed from August 21, 1996, the date of the original judgment, until the full debt is paid. The
court calculated the interest on the arrearage as follows:

       a.    1996 -         $7,761.03 (131 days)
       b.    1997-          $22,555.56
       c.    1998-          $25,262.23
       d.    1999-          $28,293.70
       e.    2000-          $31,688.94
       f.    2001-          $6,320.42 (65 days)

Thus, the court concluded that the total arrearage, including interest, was $302,083.88. The court
ruled that interest, in the amount of $97.28, would continue to accrue daily until paid for 2001. The
court also stated that interest would continue to accrue at a yearly rate of 12% on any unpaid balance.
Finally, the court ordered that Dr. Rhodes pay Ms. Berryhill’s accountant’s fee, pay Ms. Berryhill’s
attorney’s fee, and pay court costs.

       Dr. Rhodes appeals the trial court’s decision. The issue, as stated by Dr. Rhodes, is the
following:

       Did the trial court commit error by failing to compute [the] interest award from the
       date of a judgment for the appellee as is required by T.C.A. [§] 47-14-122?

Ms. Berryhill raises additional issues for our review. These issues, as stated by Ms. Berryhill are the
following:




       1
           The couple’s child was born on September 5, 1977.

       2
           The Ch ild Supp ort Guid elines beca me effe ctive on O ctober 13 , 1989.

                                                            -3-
       1. Did the trial court err in refusing to apply the Tennessee Department of Human
       Services Child Support Guidelines retroactively to the date of the child’s birth?

       2. Did the trial court err in refusing to assess interest on Father’s child support
       obligation from the date of the child’s birth?

       3. Should Appellee be awarded her reasonable attorney fees and suit expenses
       incurred in defending this appeal?

        To the extent these issues involve questions of fact, our review of the trial court’s ruling is
de novo with a presumption of correctness. Tenn. R. App. P. 13(d); e.g., Berryhill v. Rhodes,
21S.W.3d 188, 190 (Tenn. 2000). We may not reverse the trial court’s factual findings unless they
are contrary to the preponderance of the evidence. Id. With respect to the court’s legal conclusions,
our review is de novo with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916
(Tenn. 2000).

        Dr. Rhodes contends that the trial court erred in computing interest from the date of the
original trial in this matter, August 21, 1996. Instead, Dr. Rhodes argues that the trial court should
have begun computing interest on the arrearage on March 5, 2001, the date the court entered its
judgment upon remand.

        The disposition of this issue requires an examination of the supreme court’s opinion in this
case, viewed in light of relevant case law regarding the effect of appellate court opinions on trial
court judgments. In Gotten v. Gotten, 748 S.W.2d 430, 431 (Tenn. Ct. App. 1987), the trial court
required Wife to make mortgage payments on the divorced couple’s residence. Wife appealed that
decision, and we reversed, requiring Husband to make those payments as rehabilitative alimony. Id.
On remand, Wife filed a motion to compel Husband to reimburse her for the payments she had
previously made pursuant to the trial court’s original order. Id. The trial court denied her motion,
and Wife appealed the court’s decision. On the second appeal before this Court, we stated the
following:

       The appellate court acts only upon the record in the case in the trial court and when
       the appellate court enters an order modifying the trial court order it is doing what
       should have been done in the first instance. The modification of the trial court order
       should be effective as of the date of the trial court order. Therefore, we hold that a
       judgment of the appellate court reversing or modifying the trial court judgment
       providing for periodic payments of alimony or child support is effective as of the date
       of the trial court judgment, unless the appellate court judgment specifies otherwise.
       Therefore, the judgment of the trial court refusing to require Husband to reimburse
       Wife for the ten monthly mortgage payments is reversed.

Id.



                                                 -4-
         This court relied on Gotten in Newton v. Cox, 954 S.W.2d 746, 749 (Tenn. Ct. App. 1997).
In Newton, Plaintiff sued his former attorney, asserting that the attorney’s fifty percent contingency
fee violated applicable statutory law. Id. at 747-48. The trial court upheld the contract, and this
Court affirmed. Id. at 748. The supreme court reversed this Court’s decision, and on remand, the
trial court failed to award Plaintiff the excess funds still held by the attorney. Id. Plaintiff appealed
the trial court’s decision. Id. After awarding Plaintiff the excess fees held by the attorney, we turned
to the question of post-judgment interest. Id. at 749. Citing our decision and reasoning in Gotten,
we held that Plaintiff was entitled to post-judgment interest from the date of the original judgment
in this case. Id. Accordingly, because we were “doing what should have been done in the first
instance,” statutory interest accrued on the full amount of excess fees which should have awarded
to Plaintiff in the original judgment. Id. at 749 n.2. (quoting Gotten, 748 S.W.2d at 431).

        This Court provided additional insight to Mr. Rhodes’s issue in Bunch v. Bunch, No.
03A01-9805-GS-00156, 1999 Tenn. App. LEXIS 202 (Tenn. Ct. App. March 24, 1999) (no perm.
app. filed). In the first appeal of that case, we held that certain marital property was incorrectly
valued by the trial court. Id. at *2. We assigned the appropriate value and remanded the case to the
trial court “for the purpose of redetermining the apportionment of the [parties’] marital assets.” Id.
On remand, the trial court ruled that Wife was entitled to an additional award. Id. at *3. Wife
appealed the trial court’s decision, asserting that the trial court erred by failing to award her interest
on the new award from the date of the original judgment. Id. at *9. Wife cited several cases to
support her contention that she was entitled to interest on the new award which should have accrued
from the date of the original judgment.3 Id. at *10. We distinguished those cases from Wife’s case,
stating that in those cases, “the appellate court modified the lower court’s judgment, i.e., changed
specific monetary awards therein.” Id. In Wife’s case, we required the trial court to take further
action on remand. Id. at *11. We left the actual distribution of the marital property to the trial court.
Id. Therefore, because we could not act upon the record and modify the trial court’s judgment, we
stated that “a final determination regarding the division of property occurred only upon remand of
the case and the trial court’s subsequent judgment.” Id.

        In the present case, the supreme court held that private agreements regarding child support
violate public policy. Berryhill v. Rhodes, 21 S.W.3d 188, 192 (Tenn. 2000). The court remanded
the case in order for the juvenile court to determine the amount of child support Dr. Rhodes would
owe under the guidelines. Id. at 192-93. The court also ruled that the trial court should determine
if an upward or downward deviation from the guidelines would be appropriate in this case. Id. at
193. Further, the court held that Ms. Berryhill should be permitted to offer additional evidence
regarding the child’s medical and dental expenses. Id. at 194. Finally, the court held that Ms.
Berryhill had successfully rebutted the presumption that a two-year average of Dr. Rhodes’s income
should be used to determine the proper amount of child support due under the guidelines. Id. The
court permitted Dr. Rhodes to introduce additional evidence on this issue. Id.



        3
        The cases Wife relied on were Wade v. Wade, 897 S.W.2d 702 (Tenn. Ct. App . 1994), Inman v. Alexander,
871 S.W.2d 153 (Tenn. Ct. App. 1993), and Inman v. Inman, 840 S.W .2d 927 (Tenn. C t. App. 19 92).

                                                     -5-
         We believe this case is analogous to our decision in Bunch. Here, the supreme court did not
remand the case in order for the juvenile court to simply enter a judgment in accordance with its
opinion. The court did not modify the judgment in order for the trial court to “do what should have
been done in the first instance,” as was the case in Gotten and Newton. The supreme court held that
private agreements regarding child support violate public policy, and remanded the case in order for
the trial court to determine the amount Dr. Rhodes would owe pursuant to the guidelines. Similar
to this Court’s opinion in Bunch, the supreme court in the present case did not know what effect its
opinion would have on the pecuniary amount of the trial court’s judgment upon remand. When the
case left the supreme court, the trial court was required to take further action to determine the amount
of Ms. Berryhill’s award.4 The trial court had to determine the proper time frame to calculate Dr.
Rhodes’s average gross income, as Ms. Berryhill rebutted the two-year presumption. Further, and
more importantly, the trial court had to determine if a deviation from the guidelines would be
appropriate under the facts of this case. In short, the trial court had to determine, considering
additional evidence and argument from the parties, the correct amount of child support arrearage
based upon the supreme court’s opinion.

         Section 47-14-122 of the Tennessee Code provides the following:

         Interest shall be computed on every judgment from the day on which the jury or the
         court, sitting without a jury, returned the verdict without regard to a motion for a new
         trial.

Tenn. Code Ann. § 47-14-122 (2001). Because, under the facts of this case, a final determination
regarding the child support arrearage occurred only after the supreme court’s remand of the case and
the trial court’s subsequent judgment, the court erred by computing interest from August 21, 1996.
The date the court “returned the verdict” pursuant to section 47-14-122 of the Tennessee Code was
March 5, 2001, the date the court entered the final judgment as to the child support arrearage.
Therefore, interest on the arrearage should accrue from March 5, 2001, not the date of the trial
court’s original judgment.

        Finally, when the trial court calculated the interest from the date of the original judgment,
the court compounded the interest at the rate of twelve percent annually. While the trial court used
the correct rate of interest,5 the court erred by compounding the interest on the judgment. The
interest on the judgment should have been simple interest, not compound interest as utilized by the


         4
           In contrast, our decisions in Gotten and Newton effectively determined the appropriate judgment to be entered
upon remand. By reviewing the record before us in those cases, we could determine the correct amount of the award.
It follows that the trial court did not have to take further action in order to enter its judgment upon remand in Gotten
and Newton. Based on the rec ord before u s in those cases, we were able to “do what should have been done in the first
instance.” Therefore, it was appropriate to assess interest from the date of the original judgment by the trial court.


         5
           Section 26-5-101(a)(5) states that a judgme nt for child suppo rt arrearage “shall accrue interest from th e date
of the arrea rage at the r ate of twelv e percen t (12%) per ann um.”

                                                            -6-
trial court. Tenn. Code Ann. § 47-14-102(7) (2001); see also Pertew v. Pertew, No. 03A01-9711-
CH-00505, 1999 Tenn. App. LEXIS 445, at *28 & *30 (Tenn. Ct. App. July 13, 1999) (no perm.
app. filed).

        Accordingly, we reverse the trial court’s decision to assess interest from the date of its
original judgment. Further, we hold that the trial court erred in computing the interest on the
judgment. On remand, the trial court must assess simple interest on the judgment from March 5,
2001. The interest must be computed according to the method provided by section 47-14-102(7) of
the Tennessee Code.

        Regarding Ms. Berryhill’s first issue, she contends that the trial court erred by failing to apply
the child support guidelines retroactively to the date of the child’s birth.6 Courts are required to
apply the guidelines as a rebuttable presumption in all child support cases, “even if the order is being
sought for a retroactive period before October 13, 1989.” Berryhill, 21 S.W.3d at 192; Tenn. Comp.
R. & Regs. Ch. 1240-2-4-.01(2). Because there is a rebuttable presumption as to the applicability
of the Child Support Guidelines, the juvenile court retains discretion in making child support awards,
but the discretion must be implemented within the structures of the Child Support Guidelines.
Berryhill, 21 S.W.3d at 193. To deviate from the presumptive amount of child support due under
the guidelines, the trial court must enter the following:

         [A] written or specific finding that the application of the child support guidelines
         would be unjust or inappropriate in that particular case. Findings that rebut these
         guidelines must state the amount that would have been required under the guidelines
         and include a justification for deviation from the guidelines which takes into
         consideration the best interest of the child.

Tenn. Comp. R. & Regs. Ch. 1240-2-4-.02(7); see id.

        When a trial court exercises its discretion to deviate from the Child Support Guidelines, we
review its decision according to the “abuse of discretion” standard of review. Tallent v. Kates, 45
S.W.3d 556, 560 (Tenn. Ct. App. 2000); State ex. rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248
(Tenn. Ct. App. 2000). A discretionary decision will be set aside only when the trial court
misconstrued or misapplied the controlling legal principles or acted contrary to the substantial weight
of the evidence. White v. Vanderbilt University, 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999).
Therefore, an appellate court will review a trial court’s discretionary decision to determine: “(1)
whether the factual basis for the decision is supported by the evidence, (2) whether the trial court
identified and applied the applicable legal principles, and (3) whether the trial court’s decision is
within the range of acceptable alternatives.” Id. at 223; see also Kaatrude, 21 S.W.3d at 248.

         In the present case, the trial court made the following written finding:


         6
           Curiously, Dr. Rhod es did no t file a brief in resp onse to M s. Berryh ill’s three issues. A ccordin gly, M s.
Berryh ill’s issues are be fore us so lely on the question s and arg umen ts raised in he r brief.

                                                           -7-
       [T]he application of the guidelines would be unjust or inappropriate during the
       approximately 12-year period of time prior to the enactment of the guidelines in light
       of the testimony of the petitioner regarding her monthly expenditures and the
       expenditures regarding the child. That if strict application of the Child Support
       Guidelines were applied from birth of the child until October of 1989, it would be
       unjust based on the facts of this case. If the Court took the average income of the
       defendant and applied it to guidelines established in 1989 based upon the proof at
       trial of wages reported to the Internal Revenue Service during the years 1983, 1987,
       1988 and 1989 then the defendant’s income was $164,564 per year. Thus for the 145
       months of this period of time the child support would have been $2,879.87 per month
       or $417,581.15 prior to the enactment of the Child Support Guidelines. After hearing
       the proof and reviewing the facts of the petitioner’s actual expenses from 1977 until
       1989, the Court finds that such retroactive child support would constitute unjust
       enrichment of the petitioner.

         After the court determined that the application of the Child Support Guidelines would be
improper in calculating the pre-1989 arrearage, the court proceeded to illustrate how it arrived at the
amount of arrearage from the time of the child’s birth until the enactment of the guidelines. Based
on Ms. Berryhill’s proof at trial regarding her expenses and the expenses of the child, the court
determined that Ms. Berryhill’s average monthly expenses were $1,932 per month from 1977 until
1983. The court then divided this amount by three, as Ms. Berryhill was providing for an additional
minor child during that time period. The court took this figure, $644.00, and multiplied it by 72
months. The resulting product represented Ms. Berryhill’s expenses in raising Dr. Rhodes’s child.
The court took this product, $46,368, and subtracted the amount Dr. Rhodes contributed during that
time period, which was $21,000. The total arrearage, as determined by the court, was $25,368.00.
The court computed the arrearage from 1983 until 1989 similarly, except it did not account for an
additional minor child during that period. Ms. Berryhill was only caring for Dr. Rhodes’s child at
that time. The arrearage for the time period from 1983 until 1989 was $62,352. Accordingly, the
total, pre-guideline arrearage came to $87,720.

        After carefully reviewing the record and the facts before us, we cannot say that the trial court
abused its discretion by deviating from the presumptive amount of child support due under the
guidelines from 1977 to 1989. The court made a written and specific finding that the guidelines
would be inappropriate in this case. The court illustrated the amount that Dr. Rhodes would owe
under the guidelines. Further, the court determined the expenses that Ms. Berryhill incurred in
raising the child during the years at issue. Based on these figures, the court determined that an
application of the guidelines would “constitute unjust enrichment of [Ms. Berryhill].” The court’s
decision to deviate from the guidelines was supported by the evidence, made pursuant to the
applicable legal principles, and was within the range of acceptable alternatives. Further, the court’s
decision was supported by a written finding as required by the supreme court’s decision in Berryhill
and the Child Support Guidelines.




                                                  -8-
        Finally, we note that the court did not have to consider the best interests of the child, as
mandated by the Department of Human Services Rules and Regulations, when deviating from the
guidelines in this case. Tenn. Comp. R. & Regs. Ch. 1240-2-4-.02(7). Under the particular facts of
this case, the award of retroactive child support was to reimburse Ms. Berryhill, the custodial parent,
for contributing more than her share of the child’s support.7 The best interests of the child, who is
now an adult,8 did not have to be considered by the trial court in making its written finding
supporting its deviation from the guidelines. Accordingly, we hold that the trial court did not err in
deviating from the guidelines when it determined the child support arrearage from 1977 to 1989.

        In Ms. Berryhill’s second issue, she maintains that the trial court erred in denying her request
for prejudgment interest dating back to the birth of her child. Prejudgment interest “may be awarded
by courts or juries in accordance with the principles of equity.” Tenn. Code Ann. § 47-14-123
(2001). An award of prejudgment interest is more likely in accord with the principles of equity if
a “plaintiff’s right to recovery and the amount of such recovery are not disputed on reasonable
grounds.” Alexander v. Inman, 974 S.W.2d 689, 698 (Tenn. 1998) (citing Myint v. Allstate Ins.
Co., 970 S.W.2d 920 (Tenn. 1998). The trial court is vested with a great deal of discretion when
deciding whether to award prejudgment interest. Id. This same standard and scope of review apply
to parties who are seeking prejudgment interest on past child support obligations. See Silverstein
v. Rice, No. W1999-01336-COA-R3-CV, 2000 Tenn. App. LEXIS 714, at *13 (Tenn. Ct. App. Oct.
20, 2000) perm. app. denied (Tenn. Apr. 9, 2001). Accordingly, we must again apply the deferential
“abuse of discretion” standard of review. Alexander, 974 S.W.2d at 698.

         Ms. Berryhill argues that Dr. Rhodes’s child support obligations were readily ascertainable
and equity demands that she should be compensated for the loss of funds throughout the “child’s
entire minority.” We respectfully disagree. It is clear from the significant appellate history of this
case that Dr. Rhode’s obligation was far from certain. Additionally, at the original trial of this
matter, Dr. Rhodes was within reason to dispute Ms. Berryhill’s claims. The trial court did not abuse
its discretion by denying Ms. Berryhill’s request for prejudgment interest. Accordingly, we affirm
the decision of the trial court regarding prejudgment interest.

        Finally, Ms. Berryhill requests that we award her the attorney’s fees and costs she incurred
as a result of this appeal. The determination of whether to award attorney’s fees for an appeal is
within our discretion.9 In light of our disposition of this appeal, we deny Ms. Berryhill’s request.


         7
           “An award for retroa ctive child suppo rt is generally considered to have two p urposes: to benefit the parties’
child and to reimburse the custodial parent for contributing more than [their] fair share to the child’s support.” State
ex rel. Stewart v . Locke tt, No. M2001-00809-COA-R3-JV, 2002 Tenn. App. LEXIS 66, at *4, (Tenn. Ct. App. Jan. 30,
2002) (no perm. app. filed) (citing State ex rel. Vaughn v. Kaatrude, 21 S.W .3d 244 , 248 (T enn. Ct. A pp. 200 0)).

         8
             The ch ild turned 18 in Sep tember , 1995.

         9
           Section 36-5-103(c) of the Tennessee Code states that “[t]he plaintiff spouse may recover from the defendant
spouse . . . reasonable attorney fees incurred in enforcing any decree for . . . child support . . . in the discretion of such
                                                                                                                (continu ed...)

                                                             -9-
       The judgment of the trial court is reversed in part, affirmed in part, and remanded for further
proceedings consistent with this opinion. Costs of this appeal are taxed to the appellee, Ms. Betty
Berryhill, for which execution may issue if necessary.



                                                           ___________________________________
                                                           DAVID R. FARMER, JUDGE




         9
          (...continued)
court.” T enn. Co de Ann . § 36-5-1 03(c)(2 000).

                                                    -10-
