State ex rel. Price v. Childers

• Court: Tennessee Court of Appeals
• Writing for the Court: HERSCHEL PICKENS FRANKS
• Decision Date: 05 January 2012
• Docket Number: No. E2011-00457-COA-R3-JV,E2011-00457-COA-R3-JV
• Citation: State ex rel. Price v. Childers, No. E2011-00457-COA-R3-JV (Tenn. App. Jan 05, 2012)
• Parties: STATE OF TENNESSEE, ex rel. ALEXANDRIA PRICE, v. CHRISTOPHER CHILDERS

STATE OF TENNESSEE, ex rel. ALEXANDRIA PRICE, v. CHRISTOPHER CHILDERS

No. E2011-00457-COA-R3-JV

COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

FILED JANUARY 5, 2012

Submitted on Briefs, November 8, 2010

Appeal from the Juvenile Court for Hamilton County

No. 38241 Hon. Suzanne Bailey, Judge

The State brought this action against the defendant to establish paternity and require support for the dependent child. A default judgment was taken against defendant, which determined that he was the father of the child and he was ordered to pay child support, and it was ordered that the child support be withheld from his paycheck. During these proceedings the defendant was a member of the United States military, and he subsequently filed a pro se motion for DNA testing. The DNA test established that he was not the biological father of the child, and the support withheld from his paycheck was ordered reimbursed to defendant. The State appealed, and we hold that the Juvenile Court did not have subject matter jurisdiction to require the State to reimburse defendant for the child support withheld from his paycheck.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Reversed.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO, JR., J., and JOHN W. MCCLARTY, J., joined.

Robert E. Cooper, Jr., Attorney General and Reporter, and Marcie E. Greene, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee.

OPINION

Background

This appeal was filed by the Tennessee Attorney General and Reporter on behalf of Alexandria Price, pursuant to Tenn. R. Civ. P. 27(b). The State is providing child support enforcement services to Alexandria Price, pursuant to Title IV-D of the Social Security Act, 42 U.S.C. Sections 651, et seq. and Tenn. Code Ann. § 71-3-124©.

The State of Tennessee, ex rel. Alexandria Price filed a petition to establish paternity against Christopher Childers on August 8, 2008, in the Juvenile Court. The State filed a motion for default judgment against Childers on December 16, 2008. The motion was heard on March 30, 2009 at which time the Juvenile Court Referee entered an order finding Mr. Childers the biological father of Ms. Price's child by default. The order also granted the State a judgment for child support arrears against Mr. Childers and set his child support at $126.23 a week.¹ There is no transcript of that hearing, and according to a later order in the case, the Tennessee Department of Human Services, pursuant to its enforcement powers, caused the child support amount to be withheld from Childer's paycheck from the United States of America.

On June 8, 2009, Childers filed a pro se motion for DNA testing. The motion states: "I was deployed in Baghdad, Iraq from 11/27/07 until January 5, 2009. I never recieved [sic] a letter ordering me to report for a DNA test. Therefore I was ordered the father by default." A hearing on Childers' motion was held on October 7, 2009 and DNA testing was ordered by the Referee. Childers' child support obligation was suspended pending another hearing after the DNA testing was completed. On October 13, 2009 a DNA test report established that Childers was not the biological father of the minor child.

A hearing was held on February 2, 2010 before the Juvenile Court Magistrate who found that Mr. Childers was not the biological father of Ms. Price's child. The March 30, 2009 judgment for child support and arrearage was set aside. The magistrate ordered the State of Tennessee to "reimburse" Mr. Childers $2,735.00, the amount of child support he had paid through the State to Ms. Price. The order states that the State may seek reimbursement from Ms. Price. The Magistrate's order also states that the record reflects that at the time of the March 30, 2009 order finding Mr. Childers to be the biological father of the child and ordering child support "the State was aware that the respondent was in themilitary."

The State then moved for rehearing before the Juvenile Court Judge based on the argument that "the State shall not be liable in any case to compensate any person for repayment of child support as a result of the rescission of any orders of legitimation, paternity or support" pursuant to Tenn. Code Ann. § 36-5-101(a)(7).

A hearing was held on May 4, 2010 before the Juvenile Court Judge, and on June 22, 2010, the Juvenile Judge affirmed the Magistrate's order requiring the State to reimburse Mr. Childers based on the decision that the March 30, 2009 order was void ab initio.

The State then filed a Notice of Appeal, and we note that the appellant did not address the fact that the Juvenile Court Judge based her decision that the State should reimburse Childers the amount of child support garnished from his wages, because of a violation of the Soldiers' and Sailors' Civil Relief Act of 1940 (now the Servicemembers' Civil Relief Act), U.S.C.A. App. § 501 et seq., nor did appellant address the Act in its brief filed with this Court.

The issues presented on appeal are:

A. Whether the Juvenile Court lacked subject matter jurisdiction to award damages based on the statutory limitations on the jurisdiction of juvenile courts?

B. Whether sovereign immunity barred the Juvenile Court from ordering the State to reimburse Mr. Childers for the child support that was garnished?

Appellee Childers did not file a brief with this Court or otherwise make an appearance.

The following facts are pertinent to this appeal. The record shows that Childers was served with the petition on September 4, 2008. However, Childers testified that the Jasper, Tennessee address to which the petition was mailed was his parents' home and that service had been refused on September 4, 2008, and he was deployed in Iraq from November 27, 2007 until January 5, 2009.

A trial court's findings of fact in a non-jury trial are reviewed de novo upon the record. The trial court is afforded a presumption of correctness unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13 (d). The trial court's conclusions of law are reviewed under a purely de novo standard with no presumption of correctness. Taylor v.Fezell, 158 S.W.3d 352, 357 (Tenn. 2005), Union Carbide Corp. v. Huddleston 854 S.W.2d 87, 91 (Tenn. 1993).

The determinative issue on appeal is whether the Juvenile Court erred when it ordered the State to reimburse Mr. Childers for the child support that it had collected through garnishment once it was established that Mr. Childers was not the biological father of Ms. Price's child. The Juvenile Court, in its order, found that because the State had chosen to proceed with its suit against Childers without following the procedures set forth in the Soldiers and Sailors Civil Relief Act of 1940 (now the Servicemembers Civil Relief Act), 50 App. USCA § 501 et seq., the Juvenile Court Referee's order finding Childers the biological father of Ms. Price's child by default and the judgment for child support against Childers were void ab initio. Based on this conclusion, the Juvenile Court ordered "there is not and have not been a valid Order of Support against Mr. Childers . . . the State improperly took money from him", and the Court ordered the State to refund the moneys it had taken from him through garnishment.

50 App. USCA § 502 sets forth the purpose of the Servicemembers Civil Relief Act as follows:

(1) to provide for, strengthen, and expedite the national defense through protection extended by this Act [said sections] to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and

(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.

50 App. USCA § 502.

Thus, the Act was enacted to protect "those who have been obliged to drop their own affairs to take up the burdens of the nation" from exposure to personal liability without an opportunity to appear and defend in person or through counsel. Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223, 1231, 87 L.Ed. 1587 (1943)). 50 App. USCA § 521 provides protection to servicemembers against default judgments. The applicable parts of Section 521 are as follows:

(a) Plaintiff to file affidavit.

This section applies to any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance.

(b) Affidavit requirement

(1) In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit--

(A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or

(B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.

(2) Appointment of attorney to represent defendant in military service If in an action covered by this section it appears that the defendant is in military service, the court may not enter a judgment until after the court appoints an attorney to represent the defendant. If an attorney appointed under this section to represent a servicemember cannot locate the servicemember, actions by the attorney in the case shall not waive any defense of the servicemember or otherwise bind the servicemember.

(3) Defendant's military status not ascertained by affidavit If based upon the affidavits filed in such an action, the court is unable to determine whether the defendant is in military service, the court, before entering judgment, may require the plaintiff to file a bond in an amount approved by the court. If the defendant is later found to be in military service, the bond shall be available to indemnify the defendant against any loss or damage the defendant may suffer by

...