Alfonzo Silvestre Arze v. Mary Anne Bracken Arze - Dissenting

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 18, 2005 Session

ALFONZO SILVESTRE ARZE v. MARY ANNE BRACKEN ARZE

Appeal from the Chancery Court for Washington County

No. 33035 G. Richard Johnson, Chancellor

No. E2004-01325-COA-R3-CV - FILED MAY 23, 2005

PATRICIA J. COTTRELL, J., dissenting.

In Tennessee, a determination of child support is statutory. Jones v. Jones, 870 S.W.2d 281

(Tenn. 1994).1 Accordingly, I would approach resolution of this appeal by resort to the applicable

statutes.

When the parties were divorced and the decree incorporating their MDA was entered, the

parenting plan legislation was not in effect statewide. However, in October of 2002, when the

mother sought a modification of that decree with regard to child support (seeking an increase in the

father’s obligation) and visitation (or, more properly, establishment of a modified residential

schedule for the youngest child),2 the applicable statute provided that any “decree of modification

in an action for absolute divorce . . . involving a minor child shall incorporate a permanent parenting

plan.”3 Tenn. Code Ann. § 36-6-404(a). By its own terms, this provision applies to this case because

the trial court herein entered an order modifying the earlier order, and both involved a minor child.

In Jones, 870 S.W.2d at 282, the Tennessee Supreme Court determined that a similar

statutory provision requiring the application of the child support guidelines to any action brought to

modify child support applied to the proceeding before it, which had been brought after adoption of

the statute and sought to modify an order entered before the statutory change. The same reasoning

1

The view that child support is based in statute has been established for a long time. See, e.g., Rose Funeral

Home v. Julian, 176 Tenn. 534, 144 S.W .2d 755 (Tenn. 1940). See also Tennessee Dep’t. of Children’s Services v.

Wilson, 132 S.W .3d 340, 343 (Tenn. 2004); Smith v. Gore, 728 S.W .2d 738, 750-51 (Tenn. 1987).

2

In an action to modify an existing parenting plan, a proposed parenting plan must be filed by the party seeking

modification, unless the requested modification affects only child support. Tenn. Code Ann. § 36-6-405. This provision

does not apply to the case before us since there was no existing parenting plan.

3

This provision expressly does not apply to parties divorced before July 1, 1997, who return to court to enter

an agreed order modifying the previous order. Tenn. Code Ann. § 36-6-404(a). This exception became effective April

24, 2002. The main provisions of subsection (a), including the requirement of a plan upon modification, took effect

January 1, 2001.

applies here because of the similar wording of the statutory provisions. Consequently, a permanent

parenting plan that was consistent with the statutory requirements should have been entered. If the

parents could not agree on the terms of a plan, the court was required to fashion one. See Tenn.

Code Ann. §§ 36-6-405 and 36-6-404(b).

Under applicable statutes, a permanent parenting plan must include both a residential

schedule, see Tenn. Code Ann. § 36-6-404(b), and the designation of a primary residential parent,

see Tenn. Code Ann. § 36-6-402(5). Hopkins v. Hopkins, 152 S.W.3d 447, 450 (Tenn. 2004). The

primary residential parent is the parent with whom the child resides more than fifty percent (50%)

of the time. Tenn. Code Ann. § 36-4-402(4). Herein, that is the father. At the time of the

proceeding below, child support could not be awarded to the parent who is not the primary

residential parent.4 Gray v. Gray, 78 S.W.3d 881, 884 (Tenn. 2002). “In sum, only the parent who

spends the greater amount of time with the child should be awarded child support, and that parent,

by statutory definition, will always be the primary residential parent.” Id.

The fact that no permanent parenting plan was entered herein does not make the legal

requirements of such a plan inapplicable to the modification. Accordingly, I would hold that a

permanent parenting plan was required to be entered in this modification proceeding. Since the

parents did not agree on a plan, the trial court was required to enter one that met applicable legal

requirements. Such a plan could not have awarded child support to the mother. Consequently, the

trial court’s holding that the father’s support payment was to be recalculated, but still imposed, was

in error and must be reversed.

Despite the statutory provisions set out above, the majority holds that neither the father nor

the mother is entitled to a modification of the prior order or decree,5 because they agreed in their

MDA that the father would pay support in a specified amount. I disagree with this holding because

I believe that the earlier agreement on the subject of child support was incorporated into the final

decree and remained subject to modification by the court.

In the context of child support, the general rule or principle regarding the extent to which a

divorcing couple’s agreement is merged into the divorce decree was set out in Penland v. Penland,

521 S.W.2d 222 (Tenn. 1975). That case involved a parent’s agreement to pay for all future

educational expenses of the parties’ two children beyond the high school level.6 In the portion of

the opinion most pertinent to the issue before us, the Tennessee Supreme Court held:

4

The new child support guidelines, effective in 2005, use an income shares approach.

5

Except that, on the basis of the majority’s interpretation of the parties’ agreement, the father is entitled to

decrease his payments.

6

At the time of the agreement, the age of majority was 21. By statutory amendment, the age of majority was

later reduced to 18.

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The authority of the courts to order child support and, if necessary, to enforce same

by the process of contempt, is statutory, and generally exists only during minority.

When the husband and wife contract with respect to the legal duty of child

support, upon approval of that contract, the agreement of the parties becomes

merged into the decree and loses its contractual nature.

. . . the reason for stripping the agreement of the parties of its contractual nature is the

continuing power of the Court to modify its terms when changed circumstances

justify. It follows, and we so hold, that only that portion of a property settlement

agreement between husband and wife dealing with the legal duty of child support,

or alimony over which the court has continuing statutory power to modify, loses its

contractual nature when merged into a decree for divorce.

Id., 521 S.W.2d at 224 (citations omitted) (emphasis added).

The court concluded that the provision of the parties’ agreement obligating the father to pay

college expenses “is a contractual obligation outside the scope of the legal duty of support during

minority, and retained its contractual nature, although incorporated in the final decree of divorce.”

Id. at 224-25 (emphasis added).

As the Court made clear in Penland, the parties’ agreement “with respect to,” “dealing with”

or within “the scope of” the legal duty to support during minority was merged into the decree and

remained subject to modification. In the case before us, the provision of the parties’ agreement at

issue dealt with the subject of support for the minor children. Consequently, it was merged into the

decree and was subject to modification. Wade v. Wade, 115 S.W.3d 917, 921 n. 2 (Tenn. Ct. App.

2002) (stating that notwithstanding the language of the MDA, the agreement regarding child support

was merged into the decree). See also Cox v. Cox, No. E2002-02034-COA-R3-CV, 2003 WL

1797944, at *2 (Tenn. Ct. App. March 31, 2003) (holding that while divorcing parents may agree

to child support payments higher than those mandated by the guidelines, such agreement is still about

child support and, consequently, is merged into the decree approving it.)

The majority opinion herein,7 and to a greater extent the cases relied on in that opinion,

apparently define the scope of the legal obligation of support during minority as the amount that

would be required under the child support guidelines.8 In my view, that reading confuses the scope

7

The holding in Gray that a court can make an award of child support only to the primary residential parent was

based on the Court’s interpretation of the guidelines.

8

The opinions relied on by the majority illustrate the problems and potential inconsistencies presented by

retreating from the Penland holding that any agreement respecting child support during minority loses its contractual

nature. Several of those opinions appear to be based on the proposition that any amount agreed to that exceeds the

amount that would be paid under the child support guidelines is outside the scope of the legal duty to support. That

position presumes that the court has or will establish the amount that would have been due under the guidelines or, more

(continued...)

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of the obligation, which is imposed on every parent to support his or her children during their

minority, with the measure or determination of how that obligation is fulfilled by both parents in a

particular factual situation. See Hopkins, 152 S.W.3d at 449 (stating that both parents have an

obligation to support their minor children); Gallaher v. Elam, 104 S.W.3d 455, 461 (Tenn. 2003).

The father in this case has a legal obligation to support his children. “[U]nder Tennessee law . . .

every parent is obligated to support his or her child during minority. No court order need be entered

for this obligation to exist.” Wilson, 132 S.W.3d at 343 (citation omitted). The fact that currently

he cannot be ordered to pay the mother a specified amount for support of the children does not

eliminate his legal obligation. Consequently, any agreement about payment of child support is

within the legal obligation to support.

The position that any amount above the guidelines amount exceeds the legal duty to support

also ignores the other language in Penland that agreements “with respect to” or “dealing with”

support during minority are merged into the court’s decree. The other type of agreement that is

always merged is one that deals with “alimony over which the court has continuing statutory

authority to modify.” Penland, 521 S.W.2d at 224. Thus, where the issue is modification of an

MDA provision on payments to the former spouse, the determinative question is whether those

payments constitute alimony in futuro or something else, such as alimony in solido or a division of

property. Towner v. Towner, 858 S.W.2d 888, 890 (Tenn. 1993). The same analysis applies to child

support: are the payments agreed to actually child support or are they something else? See Ellis v.

Ellis, 212 Tenn. 116, 368 S.W.2d 292, 295 (1963) (holding that a car was not child support under

the statute authorizing a court to modify a previous child support order). That is because the critical

element is the court’s authority to modify.

The result in Penland was dictated by the long-standing statutory provision giving courts the

continuing authority to modify child support during a child’s minority. Penland, 521 S.W.2d at 224

(“the reason for stripping the agreement of the parties of its contractual nature is the continuing

8

(...continued)

accurately, what a court applying the guidelines would have determined was due. That is not always as simple as

multiplying the applicable percentage by the obligor’s net income, since questions sometimes arise regarding calculation

of income and the effect of guideline-authorized or court-ordered deviations. Nonetheless, it seems such a calculation

would be necessary, but the cases cited do not always indicate that the reviewing court made that determination.

Additionally, the current system of statutes and guidelines presumes that support will increase as the obligor

parent’s income increases enough to create a significant variance. Regarding an agreed upon amount of child support

as contractual in nature would preclude the modification the law envisions and would deprive children of the benefits

of their parent’s increased income. The test seemingly applied in the cases is whether the parent agreed to pay more than

the guidelines at the time of the agreement, not whether it continues to be more than the guidelines amount.

Finally, the opinions do not distinguish between that portion of the agreed-to payment that would have been

required under the guidelines and that portion that the court considers “beyond” the legal obligation of support. Surely,

there can be no dispute that any amount required by the proper application of the guidelines and the law remains

modifiable by the courts. However, the opinions cited do not make this distinction and appear to consider the total

amount agreed to as retaining its contractual nature. This treatment raises questions about what part, if any, is

enforceable through contempt.

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power of the Court to modify its terms when change circumstances justify”); Blackburn v.

Blackburn, 526 S.W.2d 463, 465 (Tenn. 1975) (explaining that otherwise, a subsequent modification

by the trial court would violate the Constitutional provision against impairment of contracts); Brown

v. Brown, 198 Tenn. 600, 281 S.W.2d 492, 503 (1955) (holding that the effect of the legislation was

to retain decrees for alimony and support within the control of the court entering them to make such

modifications “as changed conditions and circumstances may require”). In fact, the intent of the

statutory provision regarding modification was

to incorporate in every divorce decree, without express recitation therein, a retention

of control over the decree by the Court as to all questions involving the custody or

support of the minor children of the parent parties, with power to make all ‘such

changes or modification’ in the decree ‘as the exigencies of the case may require.’

Ellis, 212 Tenn. at 121, 368 S.W.2d at 295 (emphasis in original), quoting Davenport v. Davenport,

178 Tenn. 517, 160 S.W.2d 406, 407 (1942).9 Accordingly, courts retain their jurisdiction and

authority to make subsequent orders regarding support for a minor child as the circumstances require,

regardless of the parents’ agreement at the time of divorce.10 State ex rel. Wrzesniewski v. Miller,

77 S.W.3d 195, 197 (Tenn. Ct. App. 2001) (involving an agreed order that included language that

the parties agreed that the order is “final and binding from this day forward”).

Parties to a divorce cannot by contract deprive the courts of their statutory authority over

matters such as child custody and support. “Courts derive their powers to adjudicate not from the

parties, but from the law.” Brown, 281 S.W.2d at 501. I believe that the statutory scheme makes

it clear that courts are to retain authority over both the custody and support of children during their

minority so that adjustments in both areas can be made that reflect the current situation, meet the

interests of the children, and are consistent with each other. As I read the majority opinion, it holds

9

The majority would attribute knowledge of certain legal principles to the parties at the time of their agreement.

The law attributes to them knowledge that any agreement on child support during minority was subject to later judicial

modification.

10

Because all kinds of changes can occur that affect the interests of minor children, the General Assembly

determined long ago that courts must retain the authority to modify orders affecting those children. The wording of the

description of the circumstances in which such modification is appropriate has changed over the years. W hen Penland

was written, the applicable statute provided that the trial court could modify certain kinds of alimony and child support

when there was a material change of circumstances. Later, the legislature amended the statute to distinguish between

alimony and child support and provided a different standard for modification of child support. That standard, which was

in effect at all times relevant herein, is whether there is “a significant variance, as defined in the child support guidelines

. . . between the guidelines and the amount of support currently ordered,” unless the variance results from a previously

ordered deviation and no circumstances have changed. Tenn. Code Ann. § 36-5-101(a)(1)(A). This dissent is not the

appropriate vehicle to discuss or attempt to resolve the question of the appropriate standard for a modification of child

support caused by the interplay between material change of circumstances and significant variance, the effect of res

judicata, and recent statutory amendments that appear to reintroduce “material change of circumstances” language into

the child support modification context.

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that because the parties agreed, the court lost its power to modify. I think that is a reversal of the

principle that because the court continues to have authority over child support, the parties’ agreement

is always subject to future modification in appropriate circumstances. Consequently, I must

respectfully dissent.

____________________________________

PATRICIA J. COTTRELL, JUDGE

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