Smith v. Bowman, No. M2005-01384-COA-R3-JV (Tenn. App. 7/23/2007)

• Court: Tennessee Court of Appeals
• Writing for the Court: William C. Koch
• Decision Date: 23 July 2007
• Docket Number: No. M2005-01384-COA-R3-JV.,M2005-01384-COA-R3-JV.
• Citation: Smith v. Bowman, No. M2005-01384-COA-R3-JV (Tenn. App. 7/23/2007), No. M2005-01384-COA-R3-JV. (Tenn. App. Jul 23, 2007)
• Parties: MOZELLE SMITH v. RAYMOND BOWMAN

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MOZELLE SMITH v. RAYMOND BOWMAN

No. M2005-01384-COA-R3-JV.

Court of Appeals of Tennessee, at Nashville.

May 23, 2006 Session.

Filed on July 23, 2007.

Appeal from the Juvenile Court for Davidson County; No. 07-77-76; Betty Adams Green, Judge.

Judgment of the Juvenile Court Affirmed in Part; Vacated in Part; and Remanded.

Charles G. Blackard, III and Barry L. Gardner, Brentwood, Tennessee, for the appellant, Mozelle Smith.

Rosemary E. Phillips, Goodlettsville, Tennessee, for the appellee, Raymond Bowman.

William C. Koch, Jr., P.J., M.S., delivered the opinion of the court, in which William B. Cain and Patricia J. Cottrell, JJ., joined.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S.

This appeal involves a biological father's obligation to pay child support for a non-marital child who has now reached the age of majority. During her youth, the child lived with each parent at different times, and even though the issues of custody and support were before the Davidson County Juvenile Court, they were never fully or finally resolved. Three weeks before the child's eighteenth birthday, the mother filed a petition in the juvenile court seeking to change custody and to recover retroactive child support. A referee granted the mother a $25,200.50 judgment against the father, but the juvenile judge set the judgment aside and dismissed the mother's petition. The mother appealed. We have determined that the father is liable only for the child support that accrued after the mother filed her petition seeking to change custody and to recover child support.

I.

On March 25, 1986, Mozelle Hudson Smith gave birth out-of-wedlock to Celia Bowman. The child's biological father is Raymond Bowman. While the record contains little information regarding the parents or the child, Ms. Smith apparently became the primary custodial parent. Sometime in late 1989 or early 1990, Ms. Smith filed a paternity petition in the Davidson County Juvenile Court seeking to establish Mr. Bowman as the child's father and to require him to pay child support. Mr. Bowman responded by filing a petition to legitimate his daughter. Following a hearing, a juvenile court referee entered an order on March 29, 1990, declaring Mr. Bowman to be Celia Bowman's biological father, ordering him to pay $328.44 per month in child support, and establishing his visitation rights.

In August 1996, Celia Bowman told her father that Ms. Smith had physically abused her as punishment for the fact that Celia Bowman had been baptized in Mr. Bowman's church. On August 7, 1996, Mr. Bowman filed a petition in the juvenile court seeking custody of his daughter. On August 15, 1996, another juvenile court referee entered an order placing Celia Bowman in her father's custody "pending further hearing in this cause." The referee also ordered the parents to participate in "a minimum of six (6) therapy sessions before this matter may be set for trial in an effort to work out the conflicts between them." The order also explicitly "suspended" Mr. Bowman's obligation to pay child support after August 1996.

The record contains little evidence regarding what happened for the next eight years. The parties and the child attended counseling sessions between October 1996 and January 1997, and the counseling service provided an inconclusive and ambivalent report in May 1997. The sketchy information in the various referees' orders indicates that Celia Bowman resided primarily with Mr. Bowman between August 1996 and August 1997, although Ms. Smith asserts that the child spent extended periods with her when Mr. Bowman was traveling on business. The parties apparently divided custody equally between August 1997 and August 1999, and after August 1999, Celia Bowman lived primarily with Ms. Smith.¹

On March 4, 2004, three weeks before Celia Bowman's eighteenth birthday, Ms. Smith filed a petition in the juvenile court requesting a change of custody and an order requiring Mr. Bowman to pay child support in the "amount of accumulated arrears since the time the minor child has been in her physical possession." The referee who heard the matter on April 8, 2004, declined to act on Ms. Smith's petition because she had failed to provide information regarding the residence of the child since 1997 and had failed to present evidence regarding the child's medical bills, insurance costs, and current medical needs.

The referee conducted another hearing on June 15, 2004. On this occasion, the referee dismissed the portion of Ms. Smith's petition seeking a change of custody because Celia Bowman was no longer a minor. The referee also determined the child's residential arrangements between August 1996 and May 2004 and set another hearing to determine the amount of child support to which the mother was entitled. Following a hearing on September 2, 2004, the referee determined that Mr. Bowman was entitled to receive $5,198.00 in child support for the period from August 1996 to August 1997 when Celia Bowman was residing primarily with him. The referee also determined that Mr. Bowman owed Ms. Smith $10,811.50 in support for the four and one-half years after August 1999 that the child was residing with her. After another hearing, the referee entered yet another order on December 28, 2004 granting Ms. Smith a $5,613.50 judgment against Mr. Bowman for retroactive child support.²

Ms. Smith filed a motion to alter or amend the December 28, 2004 order on the ground that Mr. Bowman's testimony regarding his income and his expenditures for the child had not been truthful. Following a hearing on February 3, 2005, the referee entered an order on March 21, 2005, finding that Mr. Bowman had indeed "not provide[ed] accurate income information at prior hearings" and that his actual average monthly income was $3,152 per month. Accordingly, the referee determined that Mr. Bowman's child support obligation was $527 per month. Using these figures, the referee determined that Mr. Bowman owed Ms. Smith fifty-eight months of "total back child support." After deducting the amount of the child support that Ms. Smith owed Mr. Bowman and a small credit for "necessary support" Mr. Bowman had provided, the referee awarded Ms. Smith a judgment against Mr. Bowman for $25,200.50 in child support and $3,092.50 in attorney's fees.

Mr. Bowman requested the juvenile judge to rehear the matter because the referee had overlooked the fact that he had "legal custody" of Celia Bowman since she was in the fifth grade and because the referee had given him no credit for paying the child's expenses. The juvenile judge heard the matter on April 14, 2005. In an order filed on May 19, 2005, the juvenile judge determined that the referee's August 15, 1996³ order was a final order. The juvenile court reasoned that the August 15, 1996 order was not appealed and that "[t]he burden was on the mother to have child support reinstated which she failed to do." Therefore, the court declined to "go behind" the August 15, 1996 order. Accordingly, the juvenile court dismissed the mother's petition for change of custody and to establish a child support arrearage. Ms. Smith has appealed from the juvenile judge's May 19, 2005 order.

II.

Parents have "deeply rooted moral responsibilities" to support their minor children. Boggs v. Boggs, 520 U.S. 833, 847, 117 S. Ct. 1754, 1764 (1997) (quoting Rose v. Rose, 481 U.S. 619, 632, 107 S. Ct. 2029, 2037 (1987)); State Dep't of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594, 600 (Tenn. 1990); Baker v. Baker, 169 Tenn. 589, 592, 89 S.W.2d 763, 764 (1935). In addition to their moral responsibility, Tennessee law imposes a legal obligation on parents to support their children until they reach the age of majority in a manner commensurate with the parents' own means and station in life. Tenn. Code Ann. § 34-1-102(a), (b) (2001); Smith v. Gore, 728 S.W.2d 738, 750 (Tenn. 1987).

Once a court determines that a man is a child's biological father, it must address not only the child's need for future support, but it must also determine whether the father should be required to pay retroactive support from the date of the child's birth. State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn. 1991). Awards for retroactive child support provide reimbursement for a parent's expenditures during the time that he or she alone was fulfilling the joint parental duty to support. State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). In the absence of evidence warranting a deviation, the amount of the retroactive support must be set in accordance with the child support guidelines. Tenn. Code Ann. § 36-2-311(a)(11)(A) (2005).⁴

III.

Ms. Smith takes issue with the juvenile court's conclusion that the referee's August 15, 1996 order was a final order. She asserts that this order did not finally resolve the custody and support disputes that existed between the parents in 1996 and that because no final order was ever entered, the juvenile court should now award her retroactive child support back to the birth of the parties' daughter in 1986. While Ms. Smith is correct that the referee's August 15, 1996 order is not a final order, it does not necessarily follow that she is entitled to child support for the time preceding the filing of her 2004 petition.

This long-simmering dispute can best be resolved by dividing Celia Bowman's childhood into four periods. The first period is from her birth on March 25, 1986 to March 29, 1990, the date of the entry of the order declaring Mr. Bowman to be Celia Bowman's father and directing him to begin paying $344.86 in child support. The second period is from March 29, 1990 to August 15, 1996, the date of the entry of the order placing Celia Bowman in Mr. Bowman's custody and suspending his obligation to pay child support. The third period is from August 15, 1996 to March 4, 2004, the date Ms. Smith filed her petition to change custody and for child support. The fourth period is from March 4,...