IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON ______________________________________________________________________________
ZELLA BALENTINE, Hardin Juvenile No. J-8792 C.A. No. 02A01-9508-JV-00190 Plaintiff, Hon. Max Seaton, Judge v.
SIMON WHITE IN RE: PATERNITY OF ASHLEY ARRON BALENTINE, a minor, FILED October 9, 1996 Defendant. Cecil Crowson, Jr. T. VERNER SMITH, Jackson, Attorney for plaintiff. Ap pellate Co urt C lerk
W. LEE LACKEY, Savannah, Attorney for defendant.
REVERSED IN PART AND REMANDED
Opinion filed: ______________________________________________________________________________
TOMLIN, Sr. J.
Zella B alentine (“plaintiff”) filed a petition in the Juvenile Court of Hardin
County seeking to have that court declare Simon W hite (“defendant”) to be the natural
father of the parties’ minor child, Ashley Balentine. The Hardin County General
Sessions Court, in its role as Juvenile Court, found defendant to be the father of the
child and awarded plaintiff retroactive child support dating back to November 1, 1992.
The sole issue on appeal is whether the trial court abused its discretion by not awarding
retroactive child support back to the date of the child’s birth. For the reasons stated, we
find that the trial court did abuse its discretion. Accordingly, we reverse as to this issue
and remand this cause to that court for further proceedings.
The vast majority of the facts in this case are not in dispute. The record is clear
that plaintiff and defendant had ongoing sexual relations from 1965 to 1977. Upon
learning that she was pregnant she advised defendant of her condition and asserted that
he was the child’s father. Plaintiff gave birth to the parties’ son, Ashley, on October
16, 1977. Following the birth of the child there was little contact between the parties
for the next fourteen years. In 1991, plaintiff approached defendant about providing
financial support for Ashley. Defendant indicated that he would like to establish ties
with the child and in the next nine months beginning November 1, 1992 sent a total of nine checks for $100.00 each to plaintiff.
In July, 1993 plaintiff filed her petition seeking to have defendant declared
Ashley’s natural father. A blood test taken by order of the court showed that the
relative chance of defendant being Ashley’s father was 99.99%. The trial court found
defendant to be the natural and biological father of the parties’ child as well as being
obligated to contribute to the support and maintenance of the child. The court found
that defendant was unemployed and at that time had no earned income. The court
ordered defendant to pay m onthly child support in the amount of $130.00 per m onth
based on the Tennessee Child Support Guidelines (“TCSG”) as set out for minimum
wage earnings. The court also ordered defendant to pay a $1,570.00 arrearage, based
upon the findings that defendant had begun making support on November 1, 1992,
giving defendant credit for the payment of $900.00 from November 1992 to July 1993.
Plaintiff filed a post-judgment motion seeking a new trial or a new hearing,
alleging that the court erred in setting child support at only $130.00 a month. After
conducting a hearing, the trial court found that based upon defendant’s tax returns for
the years 1991 to 1993, defendant’s annual gross income for the purposes of the TCSG
was $15,000.00. The court increased defendant’s child support payments from $130.00
to $216.00 per m onth retroactive to M ay 31, 1994, the date of the original paternity
order. The trial court once again denied plaintiff’s request for retroactive child support
back to the date of the child’s birth. This appeal followed.
A father’s responsibility for support of a child of his born out of wedlock is
spelled out in T.C.A. § 36-2-102 (1991). This code section reads as follows:
The father of a child born out of wedlock is liable for the necessary support and education of the child. He is also liable for the child’s funeral expenses. He is liable to pay for the expenses of the m other’s confinement and recovery, and is also liable to pay such expenses, including counsel fees, in connection with her pregnancy as the court in its discretion may deem proper.
T.C.A. § 36-2-108 (Supp. 1995) permits the juvenile court to make a retroactive
award of support prior to the entry of the decree of paternity under appropriate
2 circumstances. It states:
(a) If the finding is against the defendant, the court shall make an order of paternity and support, declaring paternity and for the support and education of the child, and may order a change of name.
(b) The order of paternity and support shall specify who is to have custody of the child, and the sum to be paid monthly or otherwise, through the clerk of the court, until the child reaches the age of majority, and as otherwise provided by statute. In addition to providing for the support and education, the order shall also provide for the payment of the necessary expenses incurred by or for the mother in connection with her confinement and recovery; for the funeral expenses if the child has died; for the support of the child prior to the m aking of the order of paternity and support; and such expenses in connection with the pregnancy of the mother as the court may deem proper. The court shall set a specific amount which is due in each m onth to be paid in one (1) or more paym ents as the court orders. (emphasis added).
In State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn. 1991), the
suprem e court affirmed the judgment of this court in a case presenting similar facts. In
Coleman, following an intimate relationship between the child’s mother and her lover
for a period of some three (3) years, the mother gave birth to a child, which she
contended was the lover’s child as well. The mother’s suit was not brought until some
fourteen (14) years later by the local district attorney’s office. After further delays and
two (2) separate blood tests, both of which showed without question that the mother’s
lover w as the child’s father, the juvenile court entered a decree of paternity in
November, 1988. The judge ordered child support retroactively only to the date that the
results of the first blood test were available establishing the identity of the child’s
father.
This court, interpreting the support provisions of the paternity statute, held to the
contrary, holding that the father was responsible for child support “from and after its
birth.” In affirming this court, the supreme court stated:
The Court of Appeals, relying upon the emphasized language in § 36-3- 108, held correctly the father’s responsibility for support of a child of his born out of wedlock arises at the date of the child’s birth. Because the statute also permits the juvenile court to make a retroactive award for expenses incurred in the support of the child prior to the entry of the paternity decree, such an award can be made back to the date of the child’s birth, under appropriate circumstances. Obviously, the juvenile
3 judge has broad discretion to determine the amount of such a retroactive award, as well as the manner in which it is to be paid.
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IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON ______________________________________________________________________________
ZELLA BALENTINE, Hardin Juvenile No. J-8792 C.A. No. 02A01-9508-JV-00190 Plaintiff, Hon. Max Seaton, Judge v.
SIMON WHITE IN RE: PATERNITY OF ASHLEY ARRON BALENTINE, a minor, FILED October 9, 1996 Defendant. Cecil Crowson, Jr. T. VERNER SMITH, Jackson, Attorney for plaintiff. Ap pellate Co urt C lerk
W. LEE LACKEY, Savannah, Attorney for defendant.
REVERSED IN PART AND REMANDED
Opinion filed: ______________________________________________________________________________
TOMLIN, Sr. J.
Zella B alentine (“plaintiff”) filed a petition in the Juvenile Court of Hardin
County seeking to have that court declare Simon W hite (“defendant”) to be the natural
father of the parties’ minor child, Ashley Balentine. The Hardin County General
Sessions Court, in its role as Juvenile Court, found defendant to be the father of the
child and awarded plaintiff retroactive child support dating back to November 1, 1992.
The sole issue on appeal is whether the trial court abused its discretion by not awarding
retroactive child support back to the date of the child’s birth. For the reasons stated, we
find that the trial court did abuse its discretion. Accordingly, we reverse as to this issue
and remand this cause to that court for further proceedings.
The vast majority of the facts in this case are not in dispute. The record is clear
that plaintiff and defendant had ongoing sexual relations from 1965 to 1977. Upon
learning that she was pregnant she advised defendant of her condition and asserted that
he was the child’s father. Plaintiff gave birth to the parties’ son, Ashley, on October
16, 1977. Following the birth of the child there was little contact between the parties
for the next fourteen years. In 1991, plaintiff approached defendant about providing
financial support for Ashley. Defendant indicated that he would like to establish ties
with the child and in the next nine months beginning November 1, 1992 sent a total of nine checks for $100.00 each to plaintiff.
In July, 1993 plaintiff filed her petition seeking to have defendant declared
Ashley’s natural father. A blood test taken by order of the court showed that the
relative chance of defendant being Ashley’s father was 99.99%. The trial court found
defendant to be the natural and biological father of the parties’ child as well as being
obligated to contribute to the support and maintenance of the child. The court found
that defendant was unemployed and at that time had no earned income. The court
ordered defendant to pay m onthly child support in the amount of $130.00 per m onth
based on the Tennessee Child Support Guidelines (“TCSG”) as set out for minimum
wage earnings. The court also ordered defendant to pay a $1,570.00 arrearage, based
upon the findings that defendant had begun making support on November 1, 1992,
giving defendant credit for the payment of $900.00 from November 1992 to July 1993.
Plaintiff filed a post-judgment motion seeking a new trial or a new hearing,
alleging that the court erred in setting child support at only $130.00 a month. After
conducting a hearing, the trial court found that based upon defendant’s tax returns for
the years 1991 to 1993, defendant’s annual gross income for the purposes of the TCSG
was $15,000.00. The court increased defendant’s child support payments from $130.00
to $216.00 per m onth retroactive to M ay 31, 1994, the date of the original paternity
order. The trial court once again denied plaintiff’s request for retroactive child support
back to the date of the child’s birth. This appeal followed.
A father’s responsibility for support of a child of his born out of wedlock is
spelled out in T.C.A. § 36-2-102 (1991). This code section reads as follows:
The father of a child born out of wedlock is liable for the necessary support and education of the child. He is also liable for the child’s funeral expenses. He is liable to pay for the expenses of the m other’s confinement and recovery, and is also liable to pay such expenses, including counsel fees, in connection with her pregnancy as the court in its discretion may deem proper.
T.C.A. § 36-2-108 (Supp. 1995) permits the juvenile court to make a retroactive
award of support prior to the entry of the decree of paternity under appropriate
2 circumstances. It states:
(a) If the finding is against the defendant, the court shall make an order of paternity and support, declaring paternity and for the support and education of the child, and may order a change of name.
(b) The order of paternity and support shall specify who is to have custody of the child, and the sum to be paid monthly or otherwise, through the clerk of the court, until the child reaches the age of majority, and as otherwise provided by statute. In addition to providing for the support and education, the order shall also provide for the payment of the necessary expenses incurred by or for the mother in connection with her confinement and recovery; for the funeral expenses if the child has died; for the support of the child prior to the m aking of the order of paternity and support; and such expenses in connection with the pregnancy of the mother as the court may deem proper. The court shall set a specific amount which is due in each m onth to be paid in one (1) or more paym ents as the court orders. (emphasis added).
In State ex rel. Coleman v. Clay, 805 S.W.2d 752, 755 (Tenn. 1991), the
suprem e court affirmed the judgment of this court in a case presenting similar facts. In
Coleman, following an intimate relationship between the child’s mother and her lover
for a period of some three (3) years, the mother gave birth to a child, which she
contended was the lover’s child as well. The mother’s suit was not brought until some
fourteen (14) years later by the local district attorney’s office. After further delays and
two (2) separate blood tests, both of which showed without question that the mother’s
lover w as the child’s father, the juvenile court entered a decree of paternity in
November, 1988. The judge ordered child support retroactively only to the date that the
results of the first blood test were available establishing the identity of the child’s
father.
This court, interpreting the support provisions of the paternity statute, held to the
contrary, holding that the father was responsible for child support “from and after its
birth.” In affirming this court, the supreme court stated:
The Court of Appeals, relying upon the emphasized language in § 36-3- 108, held correctly the father’s responsibility for support of a child of his born out of wedlock arises at the date of the child’s birth. Because the statute also permits the juvenile court to make a retroactive award for expenses incurred in the support of the child prior to the entry of the paternity decree, such an award can be made back to the date of the child’s birth, under appropriate circumstances. Obviously, the juvenile
3 judge has broad discretion to determine the amount of such a retroactive award, as well as the manner in which it is to be paid.
What the juvenile judge lacks is discretion to limit the father’s liability for child support in an arbitrary fashion that is not consistent with the provisions in T.C.A. § 36-2-102 and § 36-2-108. For example, nothing in those sections can be interpreted to restrict the father’s liability to the date when he knows for certain that the child in question is his. Such limitation not only amounts to judicial legislation, but also encourages the putative father to avoid legitim ately instituted court proceedings and to delay testing, as did the defendant in this case, in the hope of minimizing the ultimate support award.
In the case under consideration the juvenile court’s only rationale for limiting
defendant’s liability for retroactive child support to November 1, 1992 was that this was
the date upon which defendant began making voluntary payments. As the Coleman
court stated, nothing in T.C.A. § 36-2-102 or § 36-2-108 permits a court to limit a
father’s liability to a date upon which he knows for certain or admits that the child is
his. In our opinion the juvenile court clearly abused its discretion by arbitrarily limiting
the date upon which retroactive child support payment was to begin.
As did the Coleman court, we also reject defendant’s contention that plaintiff
should be denied the recovery of retroactive child support because she was guilty of
laches. In order to establish such a bar, m ore than mere delay must be shown. See
Murphy v. Emery, 629 S.W.2d 895, 897-98 (Tenn. 1982). The key element in
prevailing on the grounds of laches is prejudice to the other party. While defendant
contends that his child support paym ents will thus be greater because of petitioner’s
delay in bringing this paternity action, there has been no show ing of actual prejudice to
defendant. This contention is without m erit.
The judgment of the trial court as to the award of retroactive child support is
reversed. This cause is remanded to the Juvenile Court of Hardin County for a hearing
on the sole issue of the am ount of retroactive child support to be awarded to plaintiff
from the date of Ashley’s birth in accordance with T.C.A. § 36-5-101(e)(1) (Supp.
1995). This court notes that the record in this case presently contains proof of
defendant’s income for the years 1991—1993, based upon his federal income tax
4 returns. Upon remand the trial court should allow the plaintiff to put on proof as to
defendant’s income from 1977 to 1990 thereby ascertaining defendant’s annual gross
income for the purpose of the TCSG for these years. If the parties fail to produce
evidence of incom e for the years as noted, defendant’s incom e for these prior years
should be determ ined by imputing annual incom e under the TCSG (Tenn. C om p. R. &
Regs. tit. X, ch. 1240-2-4-.03(e) (1994)). The amount of the retroactive child support
and the manner in which it is paid is within the discretion of the trial court. We also
find plaintiff has waived recovery for expenses incurred in connection with her
pregnancy because no request for such reimbursement was made by her and in addition
there is no proof in the record to support such an award.
Accordingly, we reverse the judgment of the juvenile court to the extent
hereinabove noted. This cause is remanded to that court for further proceedings not
inconsistent with this opinion. Costs on appeal are taxed to defendant, for which
execution may issue if necessary.
________________________________________ TOMLIN, Sr. J.
________________________________________ HIGHERS, J. (CONCURS)
________________________________________ LILLARD, J. (CONCURS)