Cook v. Cook, No. M2005-02725-COA-R3-CV (Tenn. App. 2/1/2007), M2005-02725-COA-R3-CV.

• Decision Date: 01 February 2007
• Docket Number: No. M2005-02725-COA-R3-CV.,M2005-02725-COA-R3-CV.
• Parties: THOMAS ALAN COOK v. SHERRI ANNETTE COOK.
• Court: Tennessee Court of Appeals

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THOMAS ALAN COOK v. SHERRI ANNETTE COOK.

No. M2005-02725-COA-R3-CV.

Court of Appeals of Tennessee, at Nashville.

September 14, 2006 Session.

Filed February 1, 2007.

Appeal from the Chancery Court for Robertson County; No. 15890; Laurence M. McMillan, Jr., Chancellor.

Judgment of the Chancery Court Affirmed.

Lee Borthick, Springfield, Tennessee, for the appellant, Sherri Annette Cook.

Christine Brasher, Springfield, Tennessee, for the appellee, Thomas Alan Cook.

Frank G. Clement, Jr., J., delivered the opinion of the court, in which William C. Koch, Jr., P.J., M.S., and Patricia J. Cottrell, J., joined.

OPINION

FRANK G. CLEMENT, JR., JUDGE.

The mother of the parties' only child filed this post-divorce petition seeking to modify the Permanent Parenting Plan and Child Support set forth in the 2001 Final Decree of Divorce. She contends the child support award in the 2001 Final Decree of Divorce is void as against public policy because she was required to pay child support although she was the custodial parent. She requested a modification of the child support retroactive to the date of the divorce and a judgment for the arrearage. The trial court found the child support award in the Final Decree was not void, granted the mother's petition to modify child support prospectively, and ordered the father to pay $474 per month, the presumptive child support pursuant to the guidelines. We affirm.

Thomas Cook and Sherri Cook, the parents of one minor child, were divorced pursuant to a Final Decree of Divorce entered April 10, 2001. Father was represented by counsel at all times leading up to the 2001 divorce. Mother was pro se. The terms and conditions of the parties' Marital Dissolution Agreement and Permanent Parenting Plan, which were incorporated into the Final Decree, were entered into by agreement and neither party appealed. Although the 2001 Final Decree of Divorce is at the center of this controversy, neither the 2001 Final Decree, the Permanent Parenting Plan nor the Marital Dissolution Agreement are in the appellate record. Accordingly, our knowledge of the content of these most relevant documents is limited to the parties' inconsistent, if not contradictory, characterizations thereof and the few exact references thereto in the 2005 proceedings.

It appears from the incomplete record and the briefs of the parties that the parents were awarded "joint residential care of the minor child," and pursuant to the 2001 Permanent Parenting Plan Mother was to have care of the child during the school week and Father had every weekend.¹ It is undisputed that Mother has had primary custody of the child ever since the 2001 divorce and that Father, who had the right to have the child every weekend, only exercised visitation every other weekend. It is also undisputed that the 2001 decree required that Mother pay Father $400 per month in child support and the private school tuition for the child to attend White House Christian Academy.

Within months after the 2001 Final Decree was entered, the parents reached an "agreement" to modify their respective parenting responsibilities. The parents's so-called agreement, however, was never presented for court approval. Accordingly, the 2001 Permanent Parenting Plan, which is not in the appellate record, remained in effect.

Four and one-half years later, in February of 2005, Mother filed the petition at issue, seeking inter alia an award for necessities retroactive to the 2001 divorce, and modification of child support.² In pertinent part, the Amended Petition reads:

The Respondent has a duty to provide for the care of his minor child. This duty has been ignored. The Petitioner should be awarded a judgment of $709 per month, for the time period since April 10, 2001, as a child support arrearage; or in the alternative, an award of $709 per month for necessities provided to the minor child since April 10, 2001. This amount would total $32,614 as of February 10, 2005.

Mother also sought to have the 2001 child support decree and permanent parenting plan declared void as against public policy because Mother "became the primary residential parent by agreement with [Father]." Father filed an Answer denying any financial obligations to Mother, contending "the parties were awarded joint residential care of the minor child" and that she was the one who owed child support pursuant to the 2001 Decree. He also filed a Counter-Petition seeking custody of the child plus an award of a child support arrearage.

Prior to the hearing on Mother's Amended Petition and Father's Counter-Petition, the parties agreed to a new Parenting Plan, pursuant to which Mother would be the primary residential parent and Father would pay Mother child support in the amount of $474 per month. The parties did not agree, however, as to any of the retrospective issues raised in the competing petitions. Therefore, the issues that remained were whether the 2001 Permanent Parenting Plan and the child support award embodied therein were void as against public policy; whether Father or Mother owed an arrearage for child support for "necessities" dating back to the 2001 Final Decree of Divorce; and whether Mother was entitled to recover her attorney's fees.

Following an evidentiary hearing during which both parties testified, the trial court found that few facts were in dispute and that the matters at issue presented questions of law. The trial court found that the April 2001 Decree was not void and, therefore, Mother's remedies were prospective only. The trial court denied Father's Counter-Petition for an arrearage judgment based upon a finding Father was estopped as a consequence of his responses to discovery.³ The trial court approved the parties' proposed parenting plan and Father's child support obligation of $474 per month, which the court found to be in compliance with the child support guidelines. The trial court additionally ordered that the agreed upon child support obligation of Father of $474 per month would be effective February 1, 2005, the month Mother's Petition for modification was filed.⁴

Mother appeals the "retrospective" issues, specifically contending the trial court erred in not determining the April 2001 order was void and that Father is liable for an arrearage dating back to the 2001 decree. She also contends the trial court erred by denying her claim for attorney's fees.

THE 2001 FINAL DECREE OF DIVORCE

This appeal and the challenge to the 2001 Divorce Decree arises from Mother's "Petition for Change in Custody and Award for Necessities Provided in the Absence of Child Support" in which Mother asked the court to find the prior order void as against public policy.

At the center of this controversy is Mother's contention that the 2001 Decree violates the public policy of this state that a parent is under a duty to support his or her child and may not bargain away the duty to support that child. See Witt v. Witt, 929 S.W.2d 360, 362 (Tenn. Ct. App. 1996); Woodard v. Woodard, No.M2004-01981-COA-R3-CV, 2006 WL 1343209, at * 4 (Tenn. Ct. App. May 16, 2006) (citing Berryhill v. Rhodes, 21 S.W.3d 188, 193 (Tenn. 2000)).⁵ As part of her argument, she contends Father unlawfully bargained away his child support obligations. She relies on Witt which held "[A]greements, incorporated in court decrees or otherwise, which relieve a natural or adoptive parent of his or her obligation to provide child support are void as against public policy as established by the General Assembly."⁶ Witt, 929 S.W.2d at 363.

Mother's petition constitutes a collateral attack against the 2001 Decree because this is not a direct appeal of the 2001 Decree.⁷ See Gentry v. Gentry, 924 S.W.2d 678, 679 (Tenn. 1996). The issue for this Court, therefore, is whether the 2001 Final Decree of Divorce, and specifically the child support award therein, was void. Id. Resolution of this issue lies in the distinction between a void judgment, which is subject to collateral attack, and a voidable judgment, which is not subject to collateral attack.⁸ Id. at 680-81.

In Gentry, the Executor of the Estate of Donnie Ray Gentry contested the claim by Lois Hawkins Gentry, his surviving spouse, to an elective share. The Executor contended Mr. Gentry's 1985 divorce from Judy Eades Gentry, his previous spouse and the mother of his children, was void and, therefore, the 1991 marriage to Lois Hawkins was a nullity.⁹ Thus the issue in Gentry was whether the 1985 judgment awarding Donnie Ray Gentry and Judy Eades Gentry a divorce was void, or merely voidable. Id. at 680. The Gentry court found the divorce decree was not a void judgment and, therefore, not subject to collateral attack as being voidable.

Tested by the standard for a void judgment, the divorce decree in this case is not subject to collateral attack. The court obviously had general jurisdiction of the subject matter, a suit for divorce; the decree awarding the divorce was not outside the pleadings, it was the specific relief sought; and, the court had jurisdiction of the parties, both of whom appeared in person and by pleadings. The conclusion that Section 36-4-103(c) mandates that a complaint for divorce be on file 90 days before being heard, does not mean necessarily that a decree entered upon a hearing held less than 90 days subsequent to the filing is void. Failure to comply with the 90 day requirement does not render the decree "wholly outside of the pleadings." Gibson's Suits in Chancery, § 228 at 219. Since the decree is not void, it is either voidable or valid, Gibson's Suits in Chancery § 193, at 194 and, in either event, cannot be reversed through a collateral attack by the children of the parties to the divorce suit.

The few Tennessee cases involving similar attacks on divorce decrees support this conclusion that a divorce decree is void and subject to collateral attack only where the trial court lacks general jurisdiction of the subject matter, rules on an issue wholly...