                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 August 29, 2012 Session

           CHARLES ROBERT BRAUN, JR. v. NITA LYNN BRAUN

              Appeal from the General Sessions Court for Roane County
                  No. 9774A Hon. Dennis W. Humphrey, Judge




              No. E2012-00823-COA-R3-CV-FILED-OCTOBER 2, 2012


This is a post-divorce appeal. Stepfather assumed a parental role over Mother’s child from
a previous relationship even though only one child was born of the relationship between the
Parties. Following an agreed divorce, the court ordered Stepfather to submit child support
for both children. The court reasoned that as a result of Stepfather’s participation in a
petition to terminate the biological father’s parental rights to Mother’s child, the Child lost
any right to support from his biological father. Stepfather appeals. We reverse the decision
of the trial court but remand the case for proceedings consistent with this opinion.

                      Tenn. R. App. P. 3 Appeal as of Right;
         Judgment of the General Sessions Court Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, J. joined and CHARLES D. SUSANO, JR., concurred filing a separate concurring
opinion.


Robert W. Wilkinson, Oak Ridge, Tennessee, for the appellant, Charles Robert Braun, Jr.

Lisa A. White, Knoxville, Tennessee, for the appellee, Nita Lynn Braun.

                                         OPINION

                                    I. BACKGROUND

      The facts of this case are not in dispute. The Child at issue was born to Nita Lynn
Braun (“Mother”) and Paul I. McFayden (“Father”) on August 1, 2000. At some point,
Mother and Father separated, and Father did not maintain a relationship with the Child.
Mother became romantically involved with Charles Robert Braun, Jr. (“Stepfather”), who,
with Mother’s permission, allowed the Child to believe that he was the Child’s father.
Thereafter, a child (“Titus”) was born to Mother and Stepfather. Titus was Stepfather’s first
biological child. Approximately one and a half years later, Mother and Stepfather (“the
Parties”) married. In February 2008, the Parties filed a joint petition to terminate Father’s
parental rights to the Child. They alleged that Stepfather sought to adopt the Child and asked
that the Child’s last name be changed as evidence of that intent. Upon his receipt of the
petition, Father did not object to the termination of his parental rights and an order was
entered terminating Father’s parental rights and awarding custody of the Child to the Parties.
However, Stepfather never proceeded with his requested adoption of the Child. Instead, the
Parties separated in September 2009.

       One month later, Stepfather filed a complaint for divorce. Mother stipulated that a
ground existed for divorce and following mediation, agreed to a division of the marital
property and debt. The Parties disagreed as to child support and custody issues relating to
the Child and Titus. Stepfather sought primary residential custody of Titus but refused any
involvement with or responsibility for the Child that he once sought to adopt. Stepfather
even refused to visit the Child and informed the Child that he was not the Child’s father
during his last scheduled visit with the Child. Mother sought primary residential custody of
both children and alleged that Stepfather should be required to submit child support for both
children even though Stepfather had not proceeded with his intended adoption of the Child.
Stepfather asserted that he should not be required to submit child support for the maintenance
and support of the Child because he was neither the biological nor adoptive father of the
Child.

       A hearing was held at which issues relating to the custody and support of the children
were discussed. Relative to this appeal, the court found that Stepfather was “in a position
in loco parentis with the [C]hild and should be required to pay child support.” The court
reasoned,

       Because [Stepfather assisted] in causing [Father’s] parental rights to be
       terminated and held himself out as the father, he is more than a step-father. He
       has assumed the position as a father, having caused that vacancy. The law
       does not favor causing a bastardy situation. And, the law is clear that the best
       interest[] of a child is paramount in divorce and parenting litigation. To rule
       otherwise would be a disservice to the [C]hild.

The court continued that while Stepfather would be required to submit child support, he
would not be permitted to exercise any parenting time with the Child because of the heartless
manner in which he informed the Child that he was not the Child’s father. The court

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questioned Stepfather’s motive for his decision to reveal the truth to the Child and concluded
that Stepfather was simply attempting to avoid the hardship of paying additional child
support on the Child’s behalf. The court also directed Stepfather to fund the Child’s
participation in a counseling program and in an effort to facilitate future visitation with the
Child, ruled that Stepfather would be required to attend the counseling sessions when deemed
appropriate by the counselor. This timely appeal followed.

                                         II. ISSUES

       We consolidate and restate the issue raised on appeal by Stepfather as follows:

       A. Whether the trial court erred in requiring Stepfather to submit child support
       for the maintenance and support of the Child, Mother’s child from a previous
       relationship.

Mother also raised an issue for our consideration that we restate as follows:

       B. Whether Mother is entitled to attorney fees on appeal.

                             III. STANDARD OF REVIEW

       On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review
with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.
2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed
questions of law and fact are reviewed de novo with no presumption of correctness; however,
appellate courts have “great latitude to determine whether findings as to mixed questions of
fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

                                     IV. DISCUSSION

                                              A.

       This case presents a novel issue. Stepfather does not take issue with the amount of
the child support obligation imposed upon him. Instead, he asserts that he should not be
required to submit child support for the Child when he is not the biological or adoptive father
of the Child. He alleges that in Tennessee, only biological or adoptive parents may be
required to submit child support. Mother responds that the trial court did not err in ordering

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Stepfather to submit child support. Mother alternatively responds that if this court were to
reverse the court’s support order, then Stepfather should be required to submit spousal
support to offset the Child’s loss of support. Mother notes that Father’s parental rights could
not have been terminated without Stepfather’s participation in the petition.

       “Tennessee does not provide for the imposition of a child support obligation upon an
individual unless that person has a duty to support his or her natural or adopted child.”
Harmon v. Harmon, No. 02A01-9709-CH-00212, 1998 WL 835563, at *5 (Tenn. Ct. App.
Dec. 3, 1998). In a divorce proceeding, the trial court may impose an obligation of child
support upon “the natural parents or those who stand in the place of the natural parents by
adoption.” Tenn. Code Ann. § 36-6-101(a)(1) (emphasis added). “In the absence of a formal
adoption, a man is not obligated to provide support for a child when it is shown by clear,
strong, and convincing evidence that he is not the natural parent of the child.” Harmon, 1998
WL 835563, at *5.

       In this case, there is no question that Stepfather is neither the biological nor the
adoptive father of the Child. There is also no question that the termination of Father’s
parental rights severed Father’s rights, responsibilities, and obligations to the Child. Indeed,
Tennessee Code Annotated section 36-1-113(l) provides,

       (1) An order terminating parental rights shall have the effect of severing
       forever all legal rights and obligations of the parent or guardian of the child
       against whom the order of termination is entered and of the child who is the
       subject of the petition to that parent or guardian. The parent or guardian shall
       have no further right to notice of proceedings for the adoption of that child by
       other persons and shall have no right to object to the child’s adoption or
       thereafter to have any relationship, legal or otherwise, with the child. It shall
       terminate the responsibilities of that parent or guardian under this section for
       future child support or other future financial responsibilities even if the child
       is not ultimately adopted; provided, that the entry of an order terminating the
       parental rights shall not eliminate the responsibility of such parent or guardian
       for past child support arrearages or other financial obligations incurred for the
       care of such child prior to the entry of the order terminating parental rights.

       (2) Notwithstanding the provisions of subdivision (l)(1), a child who is the
       subject of the order for termination shall be entitled to inherit from a parent
       whose rights are terminated until the final order of adoption is entered.

(Emphasis added). Mother alleges that because Stepfather intended to adopt the Child and
sought termination of Father’s parental rights to the Child, he cannot deny responsibility for

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the Child, who, as a result of Stepfather’s actions, is no longer entitled to continued support
from his natural father. Without Stepfather’s assistance, Mother could not have sought
termination of Father’s parental rights. See Tenn. Code Ann. §§ 36-1-113(b), -117(f). We
agree with Mother that as a result of Stepfather’s refusal to proceed with the adoption, the
Child was left without a natural or adoptive father.

        We are sympathetic to the Child’s plight, and we acknowledge that the best interest
of the child is always paramount in a divorce proceeding. See generally Tenn. Code Ann.
§ 36-6-401(a). However, the legislature has made it clear that this court may only impose
a child support obligation on a child’s natural or adoptive parent. Tenn. Code Ann. § 36-6-
101(a)(1). Additionally, the legislature has provided a very specific framework regarding
the adoption of children and the subsequent establishment of the parental relationship. See
Tenn. Code Ann. § 36-1-121(a) (providing that the final order of adoption establishes the
parental relationship between the adoptive parent and the adopted child). Here, the adoption
process, while started, was never completed. See Bank of Maryville v. Topping, 393 S.W.2d
280, 282 (Tenn. 1965) (“Adoption is a creature of statute and not of the common law, and
to create the contemplated relation the defined statutory procedures must be substantially
followed.”). Accordingly, we conclude that the trial court erred in imposing a statutory
obligation upon Stepfather to submit child support for the care and maintenance of the Child
when he was neither the biological nor adoptive parent of the Child. In so concluding, we
must express our regret in reaching this decision. We cannot imagine a more sympathetic
exception to the statutory rule regarding the imposition of child support. While we
disapprove of the heartless manner in which Stepfather informed the Child that he was not
the Child’s father and of his refusal to support a child that he once sought to adopt, this court
cannot condone the imposition of a legal obligation to submit child support when such an
obligation does not exist.

        Having concluded that Stepfather is not legally obligated to submit child support for
the maintenance and support of the Child, we must address Mother’s assertion that this court
should replace the child support obligation that cannot be statutorily imposed with a spousal
support obligation. The record reflects that Mother filed a motion for alimony pendente lite
following Stepfather’s request for divorce but that Mother never requested any other type of
spousal support. Thus, Mother asks this court to impose a support obligation that was not
considered by the trial court. Appellate courts “cannot exercise original jurisdiction” and act
as the “trier-of-fact.” Peck v. Tanner, 181 S.W.3d 262, 265 (Tenn. 2005) (citations omitted);
see also Pierce v. Tharp, 461 S.W.2d 950, 954 (Tenn. 1970) (rejecting appellants’ “novel”
request to adduce proof in support of their motion). Additionally, a party may not offer a
new issue for the first time on appeal. See Lane v. Becker, 334 S.W.3d 756, 764 (Tenn. Ct.
App. 2010) (citing Campbell Cnty. Bd. of Educ. v. Brownlee-Kesterson, Inc., 677 S.W.2d
457, 466-67 (Tenn. Ct. App. 1984)). “The jurisprudential restriction against permitting

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parties to raise issues on appeal that were not first raised in the trial court is premised on the
doctrine of waiver.” Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (citations
omitted). If Mother had requested spousal support at trial, the court could have addressed
the highly fact-intensive issue and provided a record for this court’s review. Accordingly,
we must conclude that this issue is waived.

        While we refuse to replace the child support obligation that cannot be statutorily
imposed with a spousal support obligation, an upward deviation of Stepfather’s child support
obligation relating to Titus might be warranted in light of the Parties’ changed circumstances
as a result of this opinion. We remand this case to the trial court with direction to complete
a new child support worksheet and consider whether an upward deviation from the child
support guidelines is appropriate in setting Stepfather’s remaining child support obligation.

                                               B.

        Mother requests attorney fees on appeal. Tennessee Code Annotated section 27-1-122
provides for an award of sanctions in the form of attorney fees when an appeal is determined
to be frivolous. To find an appeal frivolous, the appeal must be wholly without merit and
lacking in justiciable issues. See Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn.
1977); Indus. Dev. Bd. of Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App.
1995). Having concluded that the trial court erred in ordering Stepfather to submit child
support for the maintenance and support of the Child, we respectfully deny Mother’s request
to award attorney fees on appeal in this case. Indeed, this appeal is not wholly without merit
and lacking in justiciable issues.

                                     V. CONCLUSION

       The judgment of the trial court directing Stepfather to submit child support for the
maintenance and support of the Child is reversed. The case is remanded for the trial court
to reconsider Stepfather’s child support obligation relating to his biological child. Costs of
the appeal are taxed to the appellee, Nita Lynn Braun.




                                             ______________________________________
                                             JOHN W. McCLARTY, JUDGE




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