State., ex. rel. Sherry Mcallister v. Goode

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

FILED

STATE OF TENNESSEE, ex rel., ) September 17, 1997

SHERRY McALLISTER, )

) Cecil W. Crowson

Plaintiff/Appellee, ) Appellate Court Clerk

) Sumner Circuit

) No. 3846-C

VS. )

) Appeal No.

) 01A01-9510-CV-00452

DANNY GOODE, )

)

Defendant/Appellant. )

APPEAL FROM THE CIRCUIT COURT FOR SUMNER COUNTY

AT GALLATIN, TENNESSEE

THE HONORABLE THOMAS GOODALL, JUDGE

For the Plaintiff/Appellee: For the Defendant/Appellant:

John Knox Walkup Anita M. Holden

Attorney General and Reporter Lebanon, Tennessee

James H. Tucker, Jr.

Assistant Attorney General

AFFIRMED IN PART; REVERSED IN PART

AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal involves a non-custodial parent’s liability for a sizeable child

support arrearage accumulated over eight years. The State of Tennessee

petitioned the Circuit Court for Sumner County to require the non-custodial parent

to pay the arrearage and to find the non-custodial parent in contempt. The non-

custodial parent responded by requesting a reduction in his child support

obligation and by asserting that he was not in arrears because of a side agreement

with the custodial parent to reduce his child support obligation. The trial court

declined to give effect to the side agreement or to reduce the non-custodial

parent’s child support obligation. It determined that the non-custodial parent was

in willful civil contempt and ordered him to pay the $42,700 arrearage to the

custodial parent. The non-custodial parent takes issue on this appeal with the

conclusions that he owed $42,700 in child support, that he was not entitled to a

prospective reduction in his child support obligation, and that he was in willful

civil contempt. We have determined that the judgment for the arrearage should

be affirmed but that the judgment for contempt should be reversed and that the

case should be remanded for the computation of the non-custodial parent’s

prospective child support obligation.

I.

Sherry McAllister (formerly Goode) and Danny Goode married in October

1979. Their marriage foundered six years later. They negotiated the first of two

property settlement agreements in June 1986 in which Mr. Goode agreed to give

custody of the parties’ three children to Ms. McAllister and to pay $250 per week

in child support. On October 21, 1986, the Circuit Court for Sumner County

entered a final divorce decree incorporating the parties’ agreements. Even though

the decree directed Mr. Goode to pay $250 per week in child support, Ms.

McAllister signed a notarized document in October 27, 1986, stating:

I, Sherry Goode have reduced the payment of Child

support, from Danny Goode, to 150.00 dollars per

week, as apposed [sic] to the 250.00 per week, he has

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been paying. This is in effect beginning October 25,

1985.

Neither party sought to modify the final divorce decree to reflect this agreement.

Mr. Goode simply began paying Ms. McAllister $150, instead of $250, per week.

In August 1994 the State of Tennessee, on Ms. McAllister’s relation,1

sought to hold Mr. Goode in contempt for failing to pay the $250 per week child

support required by the October 1986 order. The trial court conducted a hearing

in October 1994 and directed Mr. Goode to continue paying $150 per week in

child support pending another hearing. Following a December 1994 hearing, the

trial court entered an order in January 1995, finding that Mr. Goode owed $42,700

in past due child support and directing him to pay $250 per week in child support

and $50 per week toward the arrearage. The trial court declined to consider

reducing Mr. Goode’s child support because he had not filed a petition seeking a

reduction.

In February 1995, Mr. Goode petitioned for a reduction in child support.

Following a hearing in July 1995, the trial court denied Mr. Goode’s petition to

reduce his child support, reaffirmed its earlier order directing him to pay $250 per

week in child support, and increased Mr. Goode’s arrearage payment to $100 per

week. As a result of this decision, Mr. Goode’s payments for child support and

the arrearage, including the trial court clerk’s five percent commission, amounted

to $367.50 per week. The trial court denied Mr. Goode’s post-trial motion on

September 6, 1995. It also modified its January 1995 order to find specifically

that Mr. Goode was in “willful civil contempt” for failing to pay child support but

declined to incarcerate Mr. Goode.

II.

THE EFFECT OF THE OCTOBER 27, 1986 AGREEMENT

1

The State’s petition does not specifically explain the basis of its standing to seek Ms.

McAllister’s child support; however, state and federal law require custodial parents of children

receiving public support to assign their rights to support from third-parties to the State. See 42

U.S.C. § 602(a)(26) (1988); Tenn. Code Ann. § 71-3-124 (Supp. 1996).

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Mr. Goode first asserts that the trial court should have excused his failure

to pay $250 per week in child support from October 1986 through August 1994

because Ms. McAllister had agreed to accept $150 in weekly child support rather

than the $250 per week ordered by the trial court. This agreement is not legally

enforceable because parties cannot alter or amend a child support order by private

agreement once it has been entered. Conner v. Parrish, No. 89-282-II, 1990 WL

7461, at *2 (Tenn. Ct. App. Feb. 2, 1990) (no Tenn. R. App. P. 11 filed); Rasnic

v. Wynn, 625 S.W.2d 278, 281 (Tenn. Ct. App. 1981).2 Accordingly, the

agreement can only affect Mr. Goode’s court-ordered child support obligation if

it supplies the basis for a recognized equitable defense to the demand for back

child support.

Equitable defenses that would have the effect of retroactively modifying a

child support obligation are no longer available in cases such as this one because

of the Tennessee Supreme Court’s construction of Tenn. Code Ann. § 36-5-

101(a)(5). Rutledge v. Barrett, 802 S.W.2d 604, 607 (Tenn. 1991); see also

Brown v. Heggie, 876 S.W.2d 98, 101 (Tenn. Ct. App. 1993). While refusing to

permit Mr. Goode to raise equitable defenses may seem harsh, the General

Assembly and the Tennessee Supreme Court have decided that the aggregate

public good derived from requiring all obligor parents to comply fully with lawful

child support orders outweighs the seeming harsh results in any particular case.

Accordingly, the trial court correctly declined to recognize the October 27, 1986

agreement as a basis for excusing Mr. Goode from his child support obligation.

III.

THE CONSTITUTIONALITY OF TENN. CODE ANN. § 36-5-101(a)(5)

Tenn. Code Ann. § 36-5-101(a)(5), as construed by the Tennessee Supreme

Court, clearly undermines Mr. Goode’s efforts to avoid paying the $42,700 child

2

Tenn. Code Ann. § 36-5-101(h) (1996) now requires marital dissolution agreements to

“affirmatively acknowledge that no action by the parties will be effective to reduce child support

after the due date of each payment, and that they understand that court approval must be obtained

before child support can be reduced, unless such payments are automatically reduced or

terminated under the terms of the agreement.”

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support arrearage. Accordingly, he asserts that the statute is unconstitutional

because it retroactively impairs both his contractual agreement with Ms.

McAllister and his ability to request a retroactive modification of his child support

obligation. We have determined that Mr. Goode has no constitutionally protected

interest in his agreement with Ms. McAllister or in his unexercised opportunity

to seek a retroactive modification of his child support.

A.

The authority of the courts to make retroactive changes in a non-custodial

parent’s child support obligation changed approximately five months after the

entry of Mr. Goode’s and Ms. McAllister’s final divorce decree. At the time of

the negotiation of the parties’ property settlement agreements and the entry of the

divorce decree, Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 1986) (amended 1987)

permitted trial courts to make retroactive modifications in child support in certain

limited circumstances.3 Accordingly, it was generally understood at that time that

obligor parents could assert equitable defenses to claims for past due child

support. See Smith v. Smith, 643 S.W.2d 320, 323 (Tenn. 1982); Nissen v. Miller,

642 S.W.2d 428, 430-31 (Tenn. Ct. App. 1982).

During its 1987 session, the General Assembly removed Tenn. Code Ann.

§ 36-5-101(a)(1)’s retroactive modification feature in order to avoid losing

millions of dollars in federal welfare funds. Act of March 27, 1987, ch. 39, § 1,

1987 Tenn. Pub. Acts 47; Rutledge v. Barrett, 802 S.W.2d at 606. As a result of

this amendment, Tenn. Code Ann. § 36-5-101(a)(5) specifically provides that a

child support 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.”

3

At the time, Tenn. Code Ann. § 36-5-101(a)(1) provided, in part, that:

Any such modification of an allowance shall be made retroactively only upon a

specific finding that the obligor was unable to pay the full amount of such

allowance through no intentional fault of his or her own and that the facts of the

case require such a modification retroactively in order to meet the ends of justice.

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B.

VIOLATION OF TENN. CONST. ART. I, § 20

Our consideration of Mr. Goode’s attack on the constitutionality of the 1987

amendment to Tenn. Code Ann. § 36-5-101(a)(1) must be guided by the

recognition that the General Assembly has complete control over judicial

remedies subject only to the limitations in the state and federal constitutions.

Alamo Dev. Corp. v. Thomas, 186 Tenn. 631, 640, 212 S.W.2d 606, 610 (1948);

Pacific Eastern Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 955 (Tenn. Ct.

App. 1995). One of these constitutional limitations can be found in Tenn. Const.

art. I, § 20 which states “[t]hat no retrospective law, or law impairing the

obligations of contracts, shall be made.” Rather than proscribing all retrospective

laws, this provision proscribes legislation that impairs contractual or vested legal

rights. Dark Tobacco Growers’ Co-op. Ass’n v. Dunn, 150 Tenn. 614, 632, 266

S.W. 308, 312 (1924); Shields v. Clifton Hill Land Co., 94 Tenn. 123, 148, 28

S.W. 668, 674 (1894). Thus, to be successful with his Tenn. Const. art. I, § 20

claim, Mr. Goode must demonstrate that he possesses an actual contract right or

a vested legal right.

IMPAIRMENT OF CONTRACT

We consider first whether Mr. Goode has demonstrated that the 1987

amendment to Tenn. Code Ann. § 36-5-101(a)(1) interferes with a contract right.

In order to be protected by Tenn. Const. art. I, § 20, a contract right must be

legally enforceable and must not conflict with the constitution, the statutes, or the

common law. Spiegel v. Thomas, Mann & Smith, P.C., 811 S.W.2d 528, 530

(Tenn. 1991); Lazenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 648,

383 S.W.2d 1, 5 (1964) (recognizing that contracts that conflict with constitutions,

statutes, or the common law violate public policy and are unenforceable). The

October 27, 1986 agreement signed by Ms. McAllister contravened positive law

when it was signed because, even then, the parties did not have the authority to

alter the trial court’s child support decree by private agreement. Conner v.

Parrish, supra, 1990 WL 7461, at *2; Rasnic v. Wynn, 925 S.W.2d at 281.

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Accordingly, Mr. Goode never had an enforceable contractual right entitled to

constitutional protection.

IMPAIRMENT OF A VESTED RIGHT

Mr. Goode also asserts that the 1987 amendment to Tenn. Code Ann. § 36-

5-101(a)(1) interfered with his vested legal right to seek a retroactive modification

of his child support obligation. Retroactive modifications of child support

obligations were not commonplace prior to 1987. Obligor parents could obtain

a retroactive modification only by demonstrating that they were unable to pay the

court-ordered child support through no fault of their own and that granting them

retroactive relief was required to meet the ends of justice. Since Mr. Goode had

not requested a modification of his child support before the enactment of the 1987

amendment to Tenn. Code Ann. § 36-5-101(a)(1), he had, at most, only an

expectation that he could seek a retroactive modification if circumstances ever

warranted it.

The right Mr. Goode now claims is a remedial one. A remedial right cannot

be considered vested unless it is something more than an expectation based on the

anticipated continuation of the present law. Landgraf v. USI Film Prods., 511

U.S. 244, 269, 114 S. Ct. 1483, 1499 (1994) (holding that a statute is not

retrospective simply because it upsets expectations based on prior law); Stratton

Claimants v. Morris Claimants, 89 Tenn. 497, 516-17, 15 S.W. 87, 91 (1891); 2

Thomas M. Cooley, A Treatise on Constitutional Limitations 749 (8th ed. 1927).

Thus, for the purpose of constitutional analysis, the Tennessee Supreme Court has

held that a remedial right becomes vested only when a party files a complaint or

petition seeking to invoke it. Dupuis v. Hand, 814 S.W.2d 340, 343 (Tenn. 1991)

(holding that Tenn. Const. art. I, § 20 prohibits retroactively applying a statute to

previously-filed cases); Morris v. Gross, 572 S.W.2d 902, 905-07 (Tenn. 1978).

When the final divorce decree was entered in 1986, Mr. Goode had only an

expectation that he would be able to seek retroactive modifications in his child

support if the need arose. Since he did not seek such a modification prior to 1987,

his expectation never ripened into a vested right prior to the 1987 amendment to

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Tenn. Code Ann. § 36-5-101(a)(1). The courts had already been divested of

authority to modify child support orders retroactively by the time Mr. Goode filed

his petition in February 1995. Thus, as applied to Mr. Goode’s 1995 petition, the

1987 amendment of Tenn. Code Ann. § 36-5-101(a)(1) did not have a prohibited

retrospective effect.

C.

VIOLATION OF TENN. CONST. ART. I, § 8

Mr. Goode’s final constitutional challenge to the 1987 amendment to Tenn.

Code Ann. § 36-5-101(a)(1) is based on the Law of the Land Clause of Tenn.

Const. art. I, § 8 that protects fundamental property and liberty interests from

abridgment under the color of state law. Tenn. Const. art. I, § 8, like its

counterpart in the Fourteenth Amendment to the United States Constitution,4 does

not protect “unilateral expectations” or “abstract needs or desires.” Board of

Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972). Rather, it

protects vested rights, Officer v. Young, 13 Tenn. (5 Yer.) 320, 322-23 (1833), that

are created and defined by existing rules and understandings that stem from an

independent source such as state law. Mid-South Indoor Horse Racing, Inc. v.

Tennessee State Racing Comm’n, 798 S.W.2d 531, 540 (Tenn. Ct. App. 1990).

Since Mr. Goode did not file a petition seeking a retroactive modification

of his child support before the 1987 amendment to Tenn. Code Ann. § 36-5-

101(a)(1), he never acquired a vested right to seek this remedy. By the time he

filed a petition to modify his child support obligation, the opportunity to obtain

retroactive relief had been extinguished for eight years. Accordingly, declining

to permit Mr. Goode to benefit in 1995 from a provision that had been repealed

since 1987 was not contrary to Tenn. Const. art. I, § 8.

IV.

PROSPECTIVE REDUCTION OF MR. GOODE’S CHILD SUPPORT

4

The “law of the land” clause in Tenn. Const. art. I, § 8 is synonymous with the Due

Process Clause of the Fourteenth Amendment. Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn.

1997); State v. Trusty, 919 S.W.2d 305, 309 (Tenn. 1996); Harbison v. Knoxville Iron Co., 103

Tenn. 421, 431, 53 S.W. 955, 957 (1899).

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Mr. Goode also takes issue with the trial court’s denial of his request for a

prospective modification of his child support obligation. The uncontroverted

evidence shows that at the time of the July 1995 hearing, Mr. Goode was earning

a gross income of approximately $3,000 per month as a truck driver for Averitt

Express in Nashville. The current child support guidelines require obligor parents

with three children to pay forty-one percent of the “net income” as defined in the

guidelines for child support. See Tenn. Comp. R. & Regs. r. 1240-2-4-.03(5)

(1994). The net monthly income of a person earning $3,000 per month is

$2,280.96, and thus an obligor parent’s child support obligation for three children

is $935 per month. This amount is less than Mr. Goode’s current child support

obligation of $1,075 per month.5

The mere fact that Mr. Goode’s current child support exceeds the amount

of support required by the guidelines does not necessarily mean that the trial court

should have lowered Mr. Goode’s monthly child support payments. Trial courts

are required to modify child support obligations only when there is a “significant

variance” between the amount of support required by the guidelines and the

amount currently ordered. Tenn. Code Ann. § 36-5-101(a)(1). When the child

support obligation exceeds $100 per month, the guidelines define a “significant

variance” as one of at least fifteen percent. See Tenn. Comp. R. & Regs. r. 1240-

2-4-.02(3).

Mr. Goode’s current $1,075 per month child support obligation is fifteen

percent higher than the amount he is required to pay under the current child

support guidelines.6 He is, therefore, entitled to a prospective reduction in his

child support unless the current variance is the result of Mr. Goode’s voluntary

unemployment or underemployment or is due to a previous decision to deviate

from the guidelines. See Tenn. Comp. R. & Regs. r. 1240-2-4-.02(3). The record

5

$250/week × 4.3/weeks/month = $1,075/month.

6

The calculation concerning whether a significant deviation exists must be based on the

amount of the previously ordered support and the amount currently required by the guidelines.

See Hannah v. Lipps, App. No. 03A01-9504-CV-00114, 1996 WL 10234, at *1 n.1 (Tenn. Ct.

App. Jan. 11, 1996) (No Tenn. R. App. P. 11 application filed). The difference between Mr.

Goode’s current child support and the amount of support required by the guidelines is $140, and

this amount deviates from the amount of support required by the guidelines by 14.97%. When

rounded to next full percent, the amount of deviation is 15%.

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contains no evidence that Mr. Goode is purposely underemployed or that the trial

court ever made specific findings that Mr. Goode’s child support should not be

consistent with the amount required by the guidelines. Accordingly, on remand

the trial court should either set Mr. Goode’s child support in accordance with the

guidelines or set out specifically in writing pursuant to Tenn. Code Ann. § 36-5-

101(e)(1) the reasons why the application of the guidelines would be unjust or

inappropriate in this case.

V.

THE CALCULATION OF THE ARREARAGE

Mr. Goode raises a final issue concerning the amount of his child support

arrearage. He asserts that the trial court erred by including the months of

November and December 1994 in its arrearage calculation because the payments

made during these months were in accordance with the trial court’s November 1,

1994 order directing him to continue paying child support at the rate of $150 per

week pending a hearing on the merits. This argument overlooks the fact that the

November 1, 1994 order was an interim order, not a final judgment.

An interim order is one that adjudicates an issue preliminarily; while a final

order fully and completely defines the parties’ rights with regard to the issue,

leaving nothing else for the trial court to do. Vineyard v. Vineyard, 26 Tenn. App.

232, 241, 170 S.W.2d 917, 920 (1942); Restatement of Judgments § 41, cmt. a

(1942). Until a judgment becomes final, it remains within the court’s control and

may be modified any time prior to the entry of a final judgment. Stidham v. Fickle

Heirs, 643 S.W.2d 324, 328 (Tenn. 1982).

The November 1, 1994 order was intended to preserve the status quo

temporarily until the trial court could conduct a hearing on the merits. It did not

purport to adjudicate Mr. Goode’s child support obligation because at the time it

was entered, the trial court had heard no proof on the issue. In fact, the trial court

could not have altered Mr. Goode’s child support obligation at that time because

Mr. Goode had not yet filed a motion seeking a reduction. Accordingly, the trial

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court did not err by including the months of November and December 1994 in its

final calculation of Mr. Goode’s arrearage.

VI.

THE WILLFUL CIVIL CONTEMPT FINDING

As a final matter, Mr. Goode takes issue with the trial court’s determination

that he had committed “willful civil contempt” by failing to pay the full amount

of his court-ordered child support for almost eight years. He asserts that he did

not willfully disregard the final divorce decree because he believed in good faith

that Ms. McAllister’s October 27, 1986 agreement controlled the amount of his

child support obligation.

A contemptuous act is a willful, purposeful failure or refusal to comply with

a court order. Haynes v. Haynes, 904 S.W.2d 118, 120 (Tenn. Ct. App. 1995)

(holding that a finding of willful conduct must precede a judgment for contempt).

On at least two occasions, this court has held that the existence of a side

agreement between the parties with regard to child support may provide a defense

to a contempt petition, even though the agreement itself is unenforceable. Laird

v. Laird, App. No. 86-212-II, 1986 WL 14042, at *4 (Tenn. Ct. App. Dec. 12,

1986) (No Tenn. R. App. P. 11 application filed) (holding that an agreement

precluded a finding that a father was wilfully refusing to pay child support);

Federico v. Worley, App. No. 87-5-II, 1987 WL 11765, at *3 (Tenn. Ct. App. June

5, 1987), perm. app. denied (Tenn. Aug. 31, 1987) (holding that a finding of

contempt in the face of an agreement “would amount to a gross miscarriage of

justice”).

Mr. Goode and Ms. McAllister entered into a side agreement on October 27,

1986 that Mr. Goode would pay $150 per week in child support despite the

October 21, 1986 order directing him to pay $250 per week. The record contains

no evidence that the parties did not enter into this agreement in good faith and at

arms’ length or that either party knew that the agreement was legally

unenforceable. With the evidence in this posture, the trial court should not have

found that Mr. Goode was in contempt for willfully disregarding the trial court’s

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child support order from October 1986 through August 1994. Accordingly, we

reverse the trial court’s finding that Mr. Goode was in willful civil contempt and,

on remand, direct that the claim for contempt be dismissed.

VII.

We affirm the trial court’s judgment that Mr. Goode owes $42,700 in back

child support and that he should pay $100 per week toward this arrearage. We

reverse the trial court’s finding that Mr. Goode is in willful civil contempt and

remand the case for further proceedings to set Mr. Goode’s prospective child

support in accordance with this opinion. We tax the costs of this appeal in equal

proportions against Danny Goode and his surety and to the State of Tennessee for

which execution, if necessary, may issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

SAMUEL L. LEWIS, JUDGE

________________________________

BEN H. CANTRELL, JUDGE

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