Marika Petra Vickers v. Nicholas Scinta

• Court: Court of Appeals of Tennessee
• Decided: November 9, 1995
• Docket: 01A01-9507-CH-00281
• Status: Published

Opinion

MARIKA PETRA VICKERS, ) ) Plaintiff/Appellant, ) ) Montgomery Chancery ) No. 93-74-155 VS. ) ) Appeal No. ) 01-A-01-9507-CH-00281 NICHOLAS SCINTA, ) ) Defendant/Appellee. ) FILED Nov. 9, 1995 IN THE COURT OF APPEALS OF TENNESSEE Cecil Crowson, Jr. MIDDLE SECTION AT NASHVILLE Appellate Court Clerk

APPEAL FROM THE CHANCERY COURT OF MONTGOMERY COUNTY

AT CLARKSVILLE, TENNESSEE

HONORABLE ALEX W. DARNELL, CHANCELLOR

Steven C. Girsky DANIEL, HARVILL, BATSON & NOLAN 121 South Third Street Clarksville, Tennessee 37040 ATTORNEY FOR PLAINTIFF/APPELLANT

COUNSEL FOR DEFENDANT/APPELLEE GRANTED LEAVE TO WITHDRAW BY ORDER OF 10/18/95.

MODIFIED AND REMANDED

HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCUR: SAMUEL L. LEWIS, JUDGE BEN H. CANTRELL, JUDGE MARIKA PETRA VICKERS, ) ) Plaintiff/Appellant, ) ) Montgomery Chancery ) No. 93-74-155 VS. ) ) Appeal No. ) 01-A-01-9507-CH-00281 NICHOLAS SCINTA, ) ) Defendant/Appellee. )

OPINION

This is a suit to register and enforce a foreign divorce decree. The only issue on

appeal is the proper amount of the judgment for delinquent child support.

On May 20, 1986, the parties were divorced by decree of the District Family Court of

Charlottenberg, Berlin, Germany. Two children were committed to the mother (the petitioner

herein), and the respondent herein was ordered to pay $300.00 per month child support.

On December 9, 1993, the present petition for enrollment and enforcement of the

decree was filed in the captioned Trial Court.

The respondent answered on January 25, 1994, admitting the above facts, but denying

liability for child support because of an alleged April 5, 1989 offer of plaintiff to waive

further child support in exchange for consent of respondent for adoption of the children and

the alleged signing of such consent on July 17, 1989. The response admitted that no adoption

took place until August 10, 1993.

The child support which accrued from April 5, 1989, until August 10, 1993,

($15,600) is the subject of this dispute. The existence of a $10,000 delinquency prior to

April 5, 1993, is not disputed.

-2- Petitioner asserts that, in November or December 1989, she learned that a waiver of

child support in consideration of consent for adoption was invalid as against public policy;

that the consent was never utilized and adoption was ultimately obtained without consent.

In October, 1992, respondent learned that the adoption had not taken place and agreed

to pay the undisputed $10,000 and to begin paying the support which accrued after July,

1989, but no payment was made as promised.

No testimony was heard by the Trial Judge except that of petitioner, whose version of

the facts is undisputed.

On March 3, 1995, the Trial Court entered judgment for $10,000 arrears child

support, and petitioner appealed, insisting that the judgment should be in the amount of

$25,200.

Respondent has not filed a brief in this Court.

T.C.A. Section 36-5-229 provides for registration and enforcement of foreign support

orders. Subsection (5) states that a foreign support order as confirmed shall have the same

effect and may be enforced as if originally entered in the Tennessee Court.

T.C.A. Section 36-5-101(5) provides in pertinent part as follows:

Any order for child support shall be a judgment entitled to be enforced as any other judgment of a court of this state and shall be entitled to full faith and credit in this state and in any other state. Such judgment shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed and notice of the action has been mailed to the last known address of the opposing parties.

It is clear that Tennessee Courts have no power to forgive child support which was

payable prior to the application for forgiveness. No application was made for forgiveness

-3- prior to the accrual of the subject child support. The adoption on August 10, 1993,

terminated the obligation of further child support. The only application for relief in this

record is the answer of respondent filed on January 25, 1994, long after the adoption and

cessation of child support accrual.

The Trial Court was without jurisdiction to reduce the child support which accrued

prior to January 25, 1994.

Respondent in his answer relies upon a promise of petitioner to waive part of the

delinquency in consideration of his agreement to an adoption.

It is generally held that the right of support lies in a minor child whose rights may not

be waived. If, however, it be argued that the petitioner could waive her right to recover

delinquent child support, such a waiver would be invalid and unenforceable in the present

case because it was based upon an illegal consideration.

T.C.A. Section 36-1-135 declares that with stated exceptions, it is a Class C felony for

any person to charge or receive any compensation for rendering any service in connection

with placement of a child for adoption or to sell or surrender a child to another. It is clear

that the promise, giving or receipt of any compensation for the consent of a parent to an

adoption is contrary to the public policy of this state. Therefore, a contract to waive

delinquent child support in exchange for consent to adoption is unenforceable in this state.

Mascari v. Raines, 220 Tenn. 234, 415 S.W.2d 874 (1967); Moak v. Continental Casualty

Co., 4 Tenn. App. 287 (1927).

The judgment of the Trial Court is modified to increase its amount to $25,200.00.

Costs of this appeal are taxed against the respondent-appellee. The cause is remanded to the

Trial Court for entry of judgment in accordance herewith and for further proceedings.

-4- Modified and Remanded.

_______________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________ SAMUEL L. LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL, JUDGE

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