Berryhill v. Rhodes, 97-00167

CourtSupreme Court of Tennessee
Citation21 S.W.3d 188
Docket Number97-00167
Decision Date30 May 2000

Appeal from the Juvenile Court for Shelby County No. G8355 Kenneth Turner, Judge

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.

Rule 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed as Modified.

Mitchell D. Moskovitz, Memphis, Tennessee for the Appellant, Betty Berryhill.

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

Holder, J., delivered the opinion of the court, in which Anderson, C.J., and Drowota, J., joined. Birch, J., filed a dissenting and concurring opinion, in which Barker, J., joined.


Betty Berryhill was a patient of Memphis psychiatrist Dr. Charles T. Rhodes in 1975 or 1976. The parties began a sexual relationship that resulted in the birth of a child, Anika L. Berryhill, on September 5, 1977. Dr. Rhodes paid the delivery-related charges not covered by insurance. Dr. Rhodes then began paying Ms. Berryhill $200 per month. Dr. Rhodes increased the payment to $300 per month when the child was approximately six months of age. He continued to make monthly payments until Anika's eighteenth birthday in September 1995. During Anika's minority, Ms. Berryhill requested additional increases in support. Dr. Rhodes, however, refused these requests. In October 1995, Ms. Berryhill filed a petition to establish paternity. In addition, she requested child support from the date of the child's birth through the period of her minority.

At the time of trial, Ms. Berryhill was forty-six years old and had been primarily employed with the State of Tennessee Division of Rehabilitation Services since 1970. From 1985 through the time of trial, she was also employed part-time at Federal Express. Ms. Berryhill testified that she maintained health insurance coverage for Anika through both jobs to ensure that her child had adequate insurance coverage. She also incurred medical and dental expenses not covered by insurance. These amounts were not specified. Dr. Rhodes provided no insurance. He testified that he was never asked to make any contributions to the child's medical care.

Dr. Rhodes did not visit the child. After the child's birth, Ms. Berryhill sent a photograph of the child to Dr. Rhodes and he "became explosive." Dr. Rhodes acknowledged that he asked Ms. Berryhill not to send any more photographs of the child. Dr. Rhodes saw his daughter in person for the first time when blood tests were conducted in December 1995.

Dr. Rhodes graduated from medical school in 1963. The record reflects that Dr. Rhodes' income varied greatly in the years for which financial records were available. In 1988, 1989, and 1990, his income was substantially higher. In those years he reported earning $125,000 annually under a hospital contract in addition to earnings from his private practice. The hospital contract was not renewed. Since 1990, and through the time of trial, Dr. Rhodes maintained a private practice and experienced declining income. In 1990, Dr. Rhodes divorced his wife of twenty-four years. As a result of the divorce, he paid child support for two children during a portion of Anika's minority. At the time of trial, he testified he was working part-time and contemplating retirement.

The juvenile court referee found that Dr. Rhodes was the natural father of Anika L. Berryhill.1 The referee also found that the parties voluntarily entered into an agreement for Dr. Rhodes to pay the expenses incidental to the child's birth and to pay a monthly amount of $2502 and then $300. The payments were made until the child's majority. The referee held that the amount of support agreed to by the parties was "just and reasonable" and it would be "unfair and unreasonable to unjustly enrich the petitioner" by ordering additional support after Anika attained majority. Accordingly, the juvenile court held that "the defendant's payment of support as agreed to by the parties has satisfied his obligations under the law." The trial court awarded attorney's fees to Ms. Berryhill in the amount of $500. The juvenile court judge confirmed the referee's findings.

The Court of Appeals held that the juvenile court failed to comply with the Child Support Guidelines and remanded the case to the juvenile court. Upon remand, the trial court was directed to state the amount that would have been required under the guidelines and to include a justification for deviating from the guidelines.2 In making that determination, the trial court must specifically state that the application of the guidelines would be "unjust or inappropriate" instead of "unfair and unreasonable." Although stating that the discussion was not necessary for its decision, the Court of Appeals held that the evidence did not preponderate against the trial court's finding that there was an implied agreement between the parties.


Ms. Berryhill contends that the lower courts erred in finding either an express or an implied agreement between her and Dr. Rhodes as to the amount of support to be paid. She argues that it was error for the juvenile court to deviate from the Child Support Guidelines and to refuse to award additional support. She also argues that the additional support should be awarded based upon a ten-year average of Dr. Rhodes' income rather than a presumptive two-year average provided under the guidelines. Dr. Rhodes argues that retroactive awards are discretionary with the juvenile court. He also argues that Ms. Berryhill should be estopped from seeking additional support because she accepted his payments under an express or an implied agreement. We review the record of the trial court de novo with the presumption that the decision of the trial court with respect to the facts is correct unless the evidence preponderates against such factual determinations. Farrar v. Farrar, 553 S.W.2d 741, 743 (Tenn. 1977).

Private Agreement for Child Support

Ms. Berryhill contends that both the Court of Appeals and the juvenile court erred in finding that the parent of a child to whom child support is owed may enter into a private agreement3 to accept child support less than that required to be paid under the Child Support Guidelines and Tenn. Code Ann. § 36-5-101 (1995). The Court of Appeals examined the actions of the parties and determined that an "implied agreement" existed between the parties. In part, the court relied upon the language of Tenn. Code Ann. § 36-5-101(h) to hold that informal agreements "between adult parties should be a consideration of the court."

Our paternity and child support statutes and the Child Support Guidelines evince a policy that children should be supported by their fathers. The paternity statutes provide a process by which the putative father can be identified. Once identified, the father is required to furnish support and education for the child.4 Tenn. Code Ann. § 36-2-102 (repealed in 1997; corresponding section now found at Tenn. Code Ann. § 36-2-311); Cline v. Drew, 735 S.W.2d 232, 235 (Tenn. Ct. App. 1987); Frazier v. McFerren, 55 Tenn. App. 431, 438, 402 S.W.2d 467, 471 (1964). The paternity statutes incorporate both the child support provisions pertaining to divorce decrees as well as the Child Support Guidelines. See Tenn. Code Ann. § 36-2-108(d) (repealed in 1997; corresponding section now found at Tenn. Code Ann. § 36-2-311), incorporating Tenn. Code Ann. § 36-5-101. The legal duty of support exists in all cases. Smith v. Puett, 506 F.Supp. 134, 142 (M.D. Tenn. 1980).

Tennessee Code Annotated § 36-5-101(h), incorporated in the paternity statute, states that any agreement reached by parents regarding child support may be affirmed, ratified, and incorporated into a divorce decree.5 This subsection contemplates that the agreement: 1) will be in writing; 2) will be approved by a court; 3) will be incorporated into a court order;6 and 4) will contain the parties' acknowledgment that they may not alter the agreement without court approval. If the parties meet these requirements, they may enter into a valid agreement to set child support. In this case, the parties met none of the requirements of the statute. We fail to see how the enactment of § 36-5-101(h) evinces a legislative intent to uphold private agreements that fail to comply with the statute in any respect.

Although this Court has not specifically addressed the issue of the validity of a private agreement for payment of child support, other states that have considered the issue have found such agreements violate public policy. In Paul M. v. Teresa M., 818 S.W.2d 594 (Ark. Ct. App. 1991), the Arkansas appellate court rejected a father's argument in a paternity action that he was relieved of his support obligation because the child's mother had agreed to take full responsibility for the child....

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