Bondy v. Martin

• Court: Court of Appeals of Tennessee
• Decided: April 25, 1997
• Docket: 03A01-9609-JV-00310
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

BRENDA BONDY, FILED )C/A NO. 03A01-9609-JV-00310 ) Petitioner-Appellant, ) April 25, 1997 ) ) Cecil Crowson, Jr. ) Appellate C ourt Clerk ) APPEAL AS OF RIGHT FROM THE ) MONROE COUNTY JUVENILE COURT v. ) ) ) ) ARNOLD WAYNE MARTIN, ) ) HONORABLE EDWIN C. HARRIS, Respondent-Appellee. ) JUDGE

For Appellant For Appellee

CHARLES E. RIDENOUR RANDY G. ROGERS Sweetwater, Tennessee Athens, Tennessee

OPINION

VACATED IN PART AFFIRMED IN PART REMANDED Susano, J.

1 This is a paternity case. After blood tests showed a

99.999% probability of paternity, the defendant Arnold Wayne

Martin (Father) acknowledged that he is the father of Melissa

Gail Dixon, age 16. Based upon Father’s acknowledgment, the

trial court entered a judgment of paternity. As pertinent to

this appeal, the trial court also ordered Father to pay the

plaintiff Brenda Bondy (Mother) child support of $63 per week,

effective November 21, 1995, the date on which the petition in

this case was filed. Mother appealed, arguing that the trial

court should have awarded her support back to August 3, 1979, the

child’s date of birth. She also argues that the trial court’s

award of fees for her counsel is inadequate. Finally, she seeks

fees for services rendered by her attorney on this appeal.

In a paternity case, a trial court “has broad

discretion to determine the amount of . . . a retroactive award

of [child support], as well as the manner in which it is to be

paid.” State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn.

1991).

In the instant case, it appears that the trial court

did not properly exercise its discretion. Mother’s petition that

Father be ordered to “pay child support, beginning August 3,

1979" was met by the following finding and decree in the trial

court’s judgment:

That there has, prior to the date of this hearing, been no Order of support placed against the respondent and that no arrearage of support exists because no Order has ever been entered establishing paternity or obligation of support and that, therefore,

2 the Court finds that no arrearage exists, none is owed and therefore, none is forgiven or reduced.

The trial court, instead of exercising its discretion and

determining whether child support back to the date of birth was

or was not appropriate and, if so, in what amount, instead

refused to order any back child support simply because “no Order

[had] ever been entered establishing paternity or obligation of

support.” This was not the appropriate criteria upon which the

trial court should have made this discretionary determination.

The appropriate standard is set forth in the State ex rel.

Coleman case:

. . . the statute gives the juvenile court the discretion to order a retroactive support award back to . . . [the] date [of the child’s birth], the amount and method of payment to be determined by the [trial judge] in light of the circumstances of the case and consistent with the standards which normally govern the issuance of child support orders. (citation omitted).

805 S.W.2d at 755.

Since the trial court failed to exercise its discretion

pursuant to the appropriate standard, we find an abuse of that

discretion and conclude that it is necessary to vacate so much of

its judgment as provides that Mother is not entitled to any

support prior to the date of filing of the petition. We express

no opinion as to whether retroactive child support is appropriate

in this case. Our holding in this case is a limited one: a trial

court cannot refuse to award retroactive child support simply

3 because an order was not entered covering the period for which

back support is requested.

As to the second issue raised by Mother, we do not find

that the evidence preponderates against the trial court’s award

of attorney’s fees of $1,000 for services rendered prior to the

filing of the notice of appeal. See Rule 13(d), T.R.A.P. There

is nothing in the record reflecting the nature and extent of the

services rendered by plaintiff’s counsel.

Mother’s petition for attorney’s fees for services

rendered on this appeal is remanded to the trial court for its

consideration. See Folk v. Folk, 357 S.W.2d 828 (Tenn. 1962).

Except as vacated herein, the trial court’s judgment is

affirmed. On remand, the trial court is directed to exercise its

discretion with respect to the issue of back child support,

pursuant to the holding in State ex rel. Coleman v. Clay, 805

S.W.2d 752 (Tenn. 1991). It is also directed to consider

Mother’s application for fees for her counsel for services

rendered on this appeal. Costs on appeal are assessed against

the appellee.

_________________________________ Charles D. Susano, Jr., J.

4 CONCUR:

________________________________ Houston M. Goddard, P.J.

________________________________ Don T. McMurray, J.