                     IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON
                  ______________________________________________

BETTY BERRYHILL,



Vs.
       Appellant,

                                              C.A. No. 02A01-9701-JV-00011
                                                                              FILED
                                              Shelby Juvenile No. G8355  October 14, 1997
CHARLES THOMAS RHODES,
                                                              Cecil Crowson, Jr.
      Appellee.                                               Appellate C ourt Clerk
____________________________________________________________________________

                    FROM THE SHELBY COUNTY JUVENILE COURT
                     THE HONORABLE KENNETH TURNER, JUDGE




                              Mitchell D. Moskovitz of Memphis
                                        For Appellant

                          Robert L. Green; Neely, Green, Fargarson,
                              Brooke & Summers of Memphis
                                        For Appellee




                               VACATED AND REMANDED

                                        Opinion filed:




                                                              W. FRANK CRAWFORD,
                                                              PRESIDING JUDGE, W.S.


CONCUR:

DAVID R. FARMER, JUDGE

SEPARATE OPINION - CONCURRENCE IN PART
DISSENT IN PART:

HOLLY KIRBY LILLARD, JUDGE
    This is a paternity case. Plaintiff, Betty Berryhill, appeals the trial court’s order denying

retroactive child support and awarding her only $500 of her attorney fees.

       Appellant Betty Berryhill is the natural mother of Anika Berryhill who was born on
September 5, 1977. Ms. Berryhill met the appellee, Dr. Rhodes, while a psychiatric patient of

his in 1975 or 1976. The two began a sexual relationship which resulted in the birth of Anika

in 1977. Dr. Rhodes paid child support in the amount of $250 per month for the first six months

of Anika’s life and then increased this amount to $300 per month. Dr. Rhodes made these

payments regularly until Anika reached the age of eighteen (18) in September 1995. Ms.

Berryhill contends that despite repeated requests, Dr. Rhodes refused to increase the support and

told her to take him to court if she wanted more. Dr. Rhodes was divorced from his wife (not

Berryhill) in 1990 and was ordered to pay $2,000 per month for the support of his two minor

daughters from that marriage. This amount was paid for a period of 23 months, until his

daughters graduated from high school.

       In October 1995, Ms. Berryhill filed a Petition to Establish Paternity in the Juvenile

Court of Shelby County. After an evidentiary hearing, the juvenile court referee made findings

and recommendations which were in part as follows:

               The Referee further finds that the parties voluntarily entered into
               an agreement at the birth of said child for the defendant to assume
               and pay expenses incidental to the birth of said child, and for the
               defendant to pay $250.00 per month as child support. When said
               child reached six (6) months of age petitioner requested an
               increase and the parties settled on child support of $300.00 per
               month. All said agreed upon payments were paid by the
               defendant to the petitioner until said child attained her majority
               and graduated from high school in 1995.

               . . . . The petitioner’s proof indicated that had the present
               “Guidelines” for setting child support been applied prior to 1983
               the amount of support would have been less than the amount
               agreed upon. The proof further indicated that if the “Guidelines”
               had been applied in 1990 the defendant’s income would have
               warranted support above the amount agreed upon by the parties.
               ...

               From all of which the Referee finds that the amount of support
               agreed to by the parties was just and reasonable for the support of
               the minor child, and it would be unfair and unreasonable to
               unjustly enrich the petitioner by ordering additional support
               subsequent to the minor attaining majority.

               IT IS THEREFORE RECOMMENDED

               1. That said child shall be a legitimate child of the defendant for
               purpose of inheritance, support, and all other lawful purposes.

               2. That petitioner’s request for back child support be denied.

               3. That petitioner be awarded attorney fees, to be paid by the
               defendant, in the amount of $500.00.


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                  4. That the defendant shall reimburse the State for blood tests in
                  the amount of $165.00 to be paid to the Clerk of this Court within
                  thirty (30) days.

                  5. That the defendant shall pay the costs for which execution may
                  issue.

Upon confirmation by the juvenile court judge, the findings and recommendations became the

court’s decree.

       Ms. Berryhill appeals the judgment of the juvenile court and presents three issues for

review: 1. Whether the trial court erred in denying her retroactive child support from the date of

Anika’s birth; 2. In calculating the presumptive child support amount, whether it is proper to

average the obligor’s income over ten years instead of two years as provided in the guidelines;

and 3. Whether the trial court erred in awarding Ms. Berryhill only $500 of her approximately

$5,000 in attorney and expert fees.

       We will consider the first two issues together.

       Ms. Berryhill asserts that it was error for the trial court to hold that there was an

agreement between herself and Dr. Rhodes as to the amount of child support to be paid, and thus

it was inappropriate to deviate from the Child Support Guidelines and deny additional support.

Ms. Berryhill contends that if this Court finds that additional support is warranted, a ten year

average of Dr. Rhodes’s income should be used to calculate support rather than the two year

average spelled out in the guidelines.

       Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court.

Unless the evidence preponderates against the findings, we must affirm, absent error of law.

T.R.A.P. 13(d).

       Upon a determination of paternity, the father of the child is, among other things, liable

for the support and education of the child. T.C.A. § 36-2-102(1) (1996). In addition to

providing for the support and education of the child, the order of paternity shall also provide “for

the support of the child prior to the making of the order of paternity and support.” T.C.A. § 36-

2-108(b) (1996). Child support in Tennessee is statutorily governed by T.C.A. § 36-5-101

(1996). Section 36-5-101(e)(1) provides that “[i]n making its determination concerning the

amount of support of any minor child or children of the parties, the court shall apply as a



                                                  3
rebuttable presumption the child support guidelines as provided in this subsection.” The

guidelines referenced are promulgated by the Department of Human Services in chapter 1240-2-

4 of the Official Compilation of the Rules and Regulations of the State of Tennessee. In the past

there have been diverse rulings as to whether the Child Support Guidelines promulgated in 1989

are to be applied retroactively. Compare State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755

(Tenn. 1991); Shell v. Law, No. 03A01-9608-CV-00251, 1997 WL 119581 (Tenn. App. E.S.

March 18, 1997) and Kirchner v. Pritchett, No. 01-A-01-9503-JV-00092, 1995 WL 714279

(Tenn. App. M.S. Dec. 6, 1995) (all stating that awards for expenses arising between the child’s

birth and the adjudication of paternity are within the discretion of the court considering the facts

of the particular case) with Townsend v. Thompson, No. 02A01-9211-JV-00321, 1993 WL

512538 (Tenn. App. W.S. Dec. 10, 1993) (holding that the child support guidelines apply to

retroactive awards of support for periods prior to their 1989 effective date). However, the

guidelines, as amended in 1994, now specifically provide that the “rebuttable presumption must

be applied to all child support awards even if the order is being sought for a retroactive period

before October 13, 1989.” Tenn. Comp. R. & Regs. vol. 19, ch. 1240-2-4-.01(2) (1996).

Although this Court questions the wisdom of applying such a presumption in cases where

retroactive support is sought, the guidelines leave no doubt of their applicability. However, the

guidelines provide only an additional evidentiary tool, and we do not consider the inclusion of

the presumption for retroactive support as abrogation of our Supreme Court’s admonition that

the “juvenile judge has broad discretion to determine the amount of such a retroactive award, as

well as the manner in which it is paid.” Coleman, 805 S.W.2d at 755. Despite this evidentiary

presumption, the trial court retains discretion to deviate from the guidelines in certain situations.

                If the court finds that evidence is sufficient to rebut this
                presumption, the court shall make a written finding that the
                application of the child support guidelines would be unjust or
                inappropriate in that particular case, in order to provide for the
                best interest of the child(ren) or the equity between the parties.
                Findings 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.

T.C.A. § 36-5-101(e)(1) (1996).

        The statute requires that before a judge can deviate from the guidelines, he must first

determine what the presumptive amount of support would be if the guidelines were strictly


                                                 4
applied. The guidelines provide that the amount of support is to be calculated “using the average

income of the obligor over the past two years and is presumed to be correct unless rebutted by

either party.” Tenn. Comp. R. & Regs. vol. 19, ch. 1240-2-4-.04(1)(e) (1996). In this case, both

parties have attempted to rebut this presumption. Dr. Rhodes asserts that the juvenile court

properly found that there was an agreement between the parties as to the amount of child support,

and it was thus appropriate to deviate from the guidelines and honor the parties’ agreement. Ms.

Berryhill asserts that there was no such agreement and that the guidelines should be applied

retroactively. However, she claims that through her expert accountant she has established that

calculating support using a ten-year average of Dr. Rhodes' income would be more “prudent and

accurate” than the two-year average called for in the statute.

        Ms. Berryhill asserts that in establishing an average annual income for eighteen years it

would be more “prudent and accurate” to use ten years of income instead of two years of income

as provided by the guidelines. We need not decide what is more “prudent and accurate,” because

the guidelines provide for establishing the presumptive average annual income for the time

period involved by using the average of the last two years income prior to the adjudication of

paternity. Although this established a presumptive annual income, evidence as to the actual

income for each year in the involved period is admissible to rebut the presumption established

by the guidelines.

        Dr. Rhodes asserts that the guidelines should not apply because he and Ms. Berryhill had

an agreement wherein he would pay her $300 per month in child support. Since this amount was

in fact paid to Ms. Berryhill for eighteen years and there has been no showing that this amount

was inadequate for Anika’s support, Dr. Rhodes argues that his obligation under the law has been

satisfied.

        Tennessee Code Annotated § 36-5-101(h) states that "[n]othing in this section shall be

construed to prevent the affirmation, ratification and incorporation in a decree of an agreement

between the parties as to support and maintenance of a party or as to child support." All cases

we have found construing this subsection involve formal agreements such as Marital Dissolution

Agreements. However, the language of the statute indicates the legislature’s intent that

agreements between adult parties should be a consideration of the court. Moreover, the judge

still has discretion to deviate from the guidelines “if it would be unjust or inappropriate . . . , in


                                                  5
order to provide for the best interest of the child(ren) or the equity between the parties.” T.C.A.

§ 36-5-101 (e)(1).

       Ms. Berryhill objects to the finding that there was an agreement, and contends that the

record is devoid of any evidence of an agreement between herself and Dr. Rhodes. While it is

true that there was no formal written agreement between Ms. Berryhill and Dr. Rhodes regarding

child support, an agreement can be implied by examining the actions of the parties and the

circumstances involved. Although it is unclear from the record whether Dr. Rhodes began

making child support payments of his own volition or at the request of Ms. Berryhill, we think

that even if there were no agreement initially, it is highly unlikely that the amount was increased

from $250 to $300 without there having been a request made. This amount was apparently

satisfactory to Ms. Berryhill for a time; at least until Anika was approximately 5 years old when

a request was made for additional funds to send her to private school. Ms. Berryhill contends

that her repeated requests for additional support demonstrate that she had not reached an

agreement with Dr. Rhodes. It is undisputed that Ms. Berryhill requested more money and that

Dr. Rhodes’s reply was that he could not pay more money and that she would just have to take

him to court. Dr. Rhodes’s is saying, in effect, “if you don’t agree to the amount, you will just

have to take me to court.” For some thirteen years Ms. Berryhill accepted the monthly payment

without going to court which does create at least an inference that she agreed to the amount of

payment. Furthermore, Ms. Berryhill's admission that prior to the time of trial she had not

spoken with Dr. Rhodes for five or six years is evidence of further acquiescence in the amount

of support offered.

       This Court has held that "contracts implied in fact arise under circumstances which,

according to the ordinary course of dealings and common understanding of men, show mutual

intention to contract, and may result as legal inferences from the facts and circumstances of the

case." Mefford v. City of Dupontonia, 49 Tenn.App. 349, 356, 354 S.W.2d 823, 826 (Tenn.

App. 1961) (citing Weatherly v. American Agric. Chem. Co., 16 Tenn. App. 613, 65 S.W.2d

592 (1933)).

               [T]he difference between an express and implied contract lies
               merely in the mode of manifesting assent in that in the former,
               assent is set out in words or other mode of expression, whereas in
               the latter, assent is shown by the conduct of the parties. Thus it
               appears that in order that a contract may be implied in fact, the


                                                6
                facts and circumstances of the case must show assent.

Id. (citing Noone v. Fisher, 45 F. Supp. 653 (E.D. Tenn 1942)). We hold that the evidence does

not preponderate against the finding of the trial court that there was an agreement between Ms.

Berryhill and Dr. Rhodes for the payment of child support.

        Although we feel that the evidence does not preponderate against the trial court’s finding

that there was an implied agreement between the parties, we do not consider this finding

necessary to reach a decision in this case. The court may deviate from the guidelines under the

authority of subsection (e)(1) of T.C.A. § 36-5-101, if the court finds that “the application of the

child support guidelines would be unjust or inappropriate in that particular case, in order to

provide for the best interest of the child(ren) or the equity between the parties.”

        We feel that given the facts of this particular case and considering the equity between the

parties, it would be unjust and inappropriate to apply the guidelines retroactively. In a “normal”

paternity action where retroactive child support is sought, the best interests of the child will play

a predominant role in the analysis. However, in the case before us, the “child” at issue was

eighteen years old when the paternity action was initiated and is now a twenty year old college

student. Ms. Berryhill has presented no evidence that the needs of her daughter have not been

properly met. The only evidence regarding financial expenditures by Ms. Berryhill on behalf

of her daughter relates to the purchase of health insurance. While the guidelines now provide

that the presumptive amount is to apply retroactively, the court still retains discretion to deviate

in the best interest of the child or to provide for the equity between the parties.

        The juvenile court judge found that “the amount of support agreed to by the parties was

just and reasonable for the support of the minor child, and it would be unfair and unreasonable

to unjustly enrich the petitioner by ordering additional support subsequent to the minor attaining

majority.” While we feel that the "unfair and unreasonable" language used by the trial judge is

substantially equivalent to the "unjust or inappropriate" standard spelled out in the guidelines,

we must remand this case because the trial judge did not comply with the guidelines which

require that “[f]indings 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. & Reg. vol 19, ch. 1240-

2-4-.02(7) (1996); see also, T.C.A. § 36-5-101 (e)(1).


                                                 7
       The appellant raises one final issue for review: Whether the juvenile court judge abused

his discretion by ordering the payment of only $500 of appellant’s approximately $5,000 in

attorney and expert fees. Tennessee Code Annotated § 36-2-102 provides that “[t]he father of

a child born out of wedlock is liable for . . . [s]uch expenses, including counsel fees, in

connection with the mother’s pregnancy as the court in its discretion may deem proper.”

       In an affidavit submitted the day of the original hearing on this matter, Ms. Berryhill’s

counsel claimed fees and expenses, exclusive of trial, of $4,153.09. While it is true that setting

a low fee is not necessarily evidence of an abuse of discretion, the trial judge in this case failed

to specify how he arrived at the $500 fee awarded. We feel that since Dr. Rhodes disputed

paternity, Ms. Berryhill is entitled to recover the reasonable expenses and fees she incurred in

establishing paternity. Although the trial judge has broad discretion with respect to the awarding

of attorney fees, it appears that he abused his discretion in this situation. We remand the case for

a determination of the appropriate attorney fee and expenses considering the contested nature of

the paternity petition.

        For the foregoing reasons, the judgment of the juvenile court is vacated and the case is

remanded for further proceedings consistent with this opinion. Costs of the appeal are assessed

equally to the parties.

                                                        _________________________________
                                                        W. FRANK CRAWFORD,
                                                        PRESIDING JUDGE, W.S.


CONCUR:

____________________________________
DAVID R. FARMER, JUDGE

____________________________________
HOLLY KIRBY LILLARD, JUDGE




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