Ridley v. Ridley

• Court: Court of Appeals of Tennessee
• Decided: January 13, 1998
• Docket: 03A01-9708-GS-00350
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

DOROTHY RIDLEY, ) FILED C/A NO. 03A01-9708-GS-00350 ) January 13, 1998 Plaintiff-Appellant, ) ) Cecil Crowson, Jr. ) Appellate C ourt Clerk ) ) v. ) ) ) ) APPEAL FROM THE BRADLEY BARRY RIDLEY, ) COUNTY GENERAL SESSIONS COURT ) Defendant, ) ) and ) ) ) RODNEY WHEELER and ) SANDRA WHEELER, ) ) Intervening Petitioners ) HONORABLE C. VAN DEACON, -Appellees. ) JUDGE

For Appellant For Appellees Wheelers

DEBRA L. HOUSE NO APPEARANCE Southeast Tennessee Legal Services Cleveland, Tennessee

O P I N IO N

APPEAL DISMISSED REMANDED Susano, J.

1 In this case, we must decide if the order of the trial

court, from which this appeal is being pursued, is properly

before us. Our review of the record persuades us that it is not.

The parties Dorothy Ridley and Barry Ridley were

divorced by judgment entered June 18, 1986. The record reflects

a number of post-judgment filings, most of which are not germane

to this appeal. What is relevant is the fact that the custody of

one of the parties’ children, Wayne Joseph Ridley (DOB: November

5, 1981), was placed with Rodney Wheeler and Sandra Wheeler in

May, 1996. When this occurred, the appellant, Dorothy Buckner,

the former Dorothy Ridley, was ordered to pay the Wheelers child

support of $35 per week.

On May 16, 1996, Dorothy Buckner filed a “Petition to

Modify Child Support.” In the petition, she asserted that her

sole income consisted of $352 per month in the form of

Supplemental Security Income (SSI). She argued in her petition,

and contends here, that SSI cannot be considered in determining

income for the purpose of setting child support under the Child

Support Guidelines promulgated pursuant to T.C.A. § 36-5-

101(e)(2).

The record reflects that the trial court held hearings

regarding the appellant’s petition on May 24, 1996, October 11,

1996, and November 22, 1996. Following each hearing, the trial

court “suspended” the appellant’s child support obligation. The

orders memorializing the first two hearings are each captioned

“Interlocutory Order.” The order entered following the last

2 hearing on November 22, 1996, is captioned “Final Order.” It is

from that order, which was entered February 21, 1997, that Ms.

Buckner is seeking to appeal. The order of February 21, 1997, is

attached as an appendix to this opinion.

In general terms, the Rules of Appellate Procedure

recognize four possible “avenues” of appeal from a trial court’s

judgment: an appeal as of right from a “final” judgment under

Rule 3(a), T.R.A.P.; an appeal as of right from a judgment

designated by the trial court as a final judgment under Rule

54.02, Tenn.R.Civ.P.; an “interlocutory appeal by permission” as

authorized by Rule 9, T.R.A.P.; and an “extraordinary appeal by

permission” under Rule 10, T.R.A.P.

The order of February 21, 1997, is not a final judgment

appealable as of right under Rule 3(a), T.R.A.P., despite the

caption placed on that order by the trial court. While that

order granted the appellant some relief -- that the child support

would “continue to be suspended” -- it clearly held in abeyance

her request that she be extricated from her child support

obligation in toto. It is obvious from the order that something

remains to be done before the trial court will finally act on the

appellant’s petition. This can be seen from paragraph 4 of the

order, which provides that the appellant “needs to provide proof

of the assessment from the Department of Rehabilitation.” The

order, considered as a whole, reflects that the trial court still

has before it the appellant’s request to terminate child support.

It has not yet finally decided the issues raised by the petition.

3 We hold that this order is not appealable as of right under Rule

3(a), T.R.A.P.

The trial court has attempted to make the order of

February 21, 1997, a final order. Paragraph 5 of the order --

“this shall be a Final Order for all purposes under the Tennessee

Rules of Civil Procedure” -- clearly reflects the trial court’s

intention. However, the trial court’s declaration cannot convert

an interlocutory order into a final order unless such a

conversion is authorized by Rule 54.02, Tenn.R.Civ.P. That rule

only applies to cases involving multiple claims and/or multiple

parties. In the instant case, there is one claim against two

individuals -- the Wheelers; but, that one claim pertains to a

single obligation -- child support -- that is payable to those

two individuals as a unit. Since this case involves only one

claim and does not involve claims against multiple parties, Rule

54.02, Tenn.R.Civ.P., does not apply. In view of the fact that

the authority of a trial court to designate an interlocutory

order as a final order is limited to factual scenarios falling

within the language of the rule, the designation by the trial

court in the instant case is not sufficient to make the instant

order appealable as of right under Rule 54.02.

Before an interlocutory order can be appealed under

Rule 9, T.R.A.P., a party seeking such an appeal must timely file

a request in the trial court under the provisions of subsection

(b) of the rule. Only if the trial court acts favorably on that

application, and states “in writing the reasons” for doing so, is

an appellate court authorized under the rule to grant an appeal

4 by permission. The requirements of subsection (b) of the rule

were not complied with in this case. While we are authorized to

suspend the requirements of Rule 9, we are not inclined to do so

in this case. See Rule 2, T.R.A.P.

Rule 10, T.R.A.P., authorizes an appeal by permission

(1) if the lower court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review, or (2) if necessary for complete determination of the action on appeal as otherwise provided in these rules.

We do not find a basis for such an appeal in this case.

When a true final judgment has been entered in this

case, finally disposing of the appellant’s petition, she will

then be in a position to appeal as of right under Rule 3(a)

should she choose to do so. The trial court is encouraged to

expeditiously consider the appellant’s petition so that a final

judgment can be entered as soon as possible. In addressing the

appellant’s petition, the trial court should consider the holding

of this court in the case of State ex rel. Holder v. Holder, C/A

No. 03A01-9105-GS-00156, 1991 WL 195068 (Court of Appeals at

Knoxville, October 3, 1991). (“The court is not at liberty to

consider SSI benefits in determining and setting a parent’s

support obligation.” 1991 WL 195068 at *6.)

This appeal is dismissed at the appellant’s costs.

This case is remanded to the trial court for such further

proceedings as may be necessary, consistent with this opinion.

5 __________________________ Charles D. Susano, Jr., J.

CONCUR:

______________________ Herschel P. Franks, J.

______________________ Don T. McMurray, J.