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State ex rel. Smith v. Thorne

Court of Appeals of Tennessee, Nashville

May 8, 2017

STATE OF TENNESSEE EX REL. KANDI L. SMITH
v.
BRITANI N. THORNE

          Assigned on Briefs April 3, 2017

         Appeal from the Juvenile Court for Montgomery County No. MCJVCSCV11-1874 Kenneth R. Goble, Jr., Judge

         This appeal involves child support for two minor children, H.T. and C.B. ("the Children"). Upon a prior dependency and neglect petition, the Montgomery County Juvenile Court ("trial court") had awarded custody of the Children to their grandmother in an order entered December 29, 2010. The court had also granted the Children's mother weekly visitation and ordered the mother to pay $410.00 monthly in child support. In April 2011, the State of Tennessee ("the State"), acting on behalf of the grandmother, filed a petition to set child support, which the trial court dismissed upon finding that support previously had been set. In December 2011, the State issued an administrative order, finding that the mother owed an arrearage of $4, 510.00 and ordering her to pay an additional $205.00 per month. The mother subsequently filed a petition seeking custody of the Children and naming the grandmother as the respondent. Without notice to the State, the mother and the grandmother announced agreements to the trial court, which the court memorialized in two agreed orders: (1) a March 13, 2015 order returning custody of the Children to the mother and granting reasonable visitation to the grandmother and (2) a May 28, 2015 order waiving all child support arrearages owed to the grandmother, directing the mother to pay a $1, 488.00 child support arrearage to the State at a rate of $50.00 per month, and reinstating the mother's driver's license. In September 2015, the State filed a petition for criminal contempt against the mother for failure to pay child support. The State subsequently filed a "motion to reconsider or set aside" the May 2015 agreed order, citing Tennessee Rule of Civil Procedure 60.02. Following a hearing, the trial court entered an order denying the State's motion, directing the mother to pay the $1, 488.00 arrearage to the State she previously had agreed to pay, and issuing an attachment for the mother's failure to appear and failure to pay support. The State has appealed. Having determined that, pursuant to Tennessee Code Annotated § 37-1-159(a), the circuit court has sole jurisdiction to consider this appeal flowing from a dependency and neglect action, we transfer this appeal to the Montgomery County Circuit Court.

         Tenn. R. App. P. 3 Appeal as of Right; Appeal Transferred to Circuit Court

          Herbert H. Slatery, III, Attorney General and Reporter; Andreé S. Blumstein, Solicitor General; and Ellison M. Berryhill, Assistant Attorney General, for the appellant, State of Tennessee ex rel. Kandi L. Smith. [1]

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Richard H. Dinkins, J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         In the order from which the State appeals, the trial court appears to have consolidated, sua sponte, various petitions involving the Children, including one initiated by the State on behalf of the Children's grandmother, Kandi L. Smith ("Grandmother"), and one intiated by the Children's mother, Britani N. Thorne ("Mother"). Prior to the filing of these petitions, the trial court had entered an order on December 9, 2010, adjudicating a previous dependency and neglect petition filed by Grandmother in which Mother was named as a respondent.[2] At the time, the Children were six and four years old respectively. Approving an agreement announced by the parties as in the best interest of the Children, the trial court in the adjudicatory order transferred custody of the Children to Grandmother, granted to Mother seven hours of unsupervised visitation each Sunday, and set Mother's child support obligation at $410.00 per month. The trial court made no specific finding as to whether the Children were dependent and neglected.

         The State, acting on behalf of Grandmother, initially filed a petition to set child support on April 13, 2011, upon receiving a referral from the Tennessee Department of Human Services. The State provided child support enforcement services to Grandmother pursuant to Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq., opening an ongoing case number with Tennessee Child Support Enforcement Services. However, the trial court entered an order dismissing the State's initial petition on August 1, 2011, because child support previously had been set in the December 2010 adjudicatory order. On December 15, 2011, the Department of Human Services issued an administrative order, finding Mother to have an arrearage in the amount of $4, 510.00 and ordering her to pay $205.00 per month toward the arrearage in addition to her $410.00 monthly obligation for current support. The State filed the administrative order with the trial court.

         At some point following entry of the adjudicatory order, Mother filed a petition seeking custody of the Children and naming Grandmother as the respondent. Mother's petition is not in the record on appeal. The record does contain, as attachments to pleadings filed by the State, copies of the two agreed orders entered by the trial court upon Mother's petition. In the first agreed order, entered March 13, 2015, the trial court transferred custody of the Children from Grandmother to Mother, granted Grandmother "reasonable visitation with the children as agreed upon by the parties, " and relieved a guardian ad litem, Christopher J. Pittman, of his responsibilities in the case. The court noted in the order that "[a]ll parties acknowledge that [Mother] is returning to the state of Arizona." Child support was not mentioned in the March 2015 order, and the State was not joined as a party. The order does not specify any notice given to the State.

         The second agreed order was entered by the trial court on May 28, 2015. The style of the case, as in the earlier agreed order, listed Mother as the petitioner and Grandmother as the respondent with no mention of the State. Upon agreement of the parties as to the best interest of the Children, the trial court ordered that "all arrearages owed to [Grandmother] [are] hereby waived, arrearages in the approximate amount of $1, 488.00, owed to the State of Tennessee, shall be paid at the rate of $50.00 per month until paid in full . . . [and] the driver's license and driving privileges of [Mother] are hereby reinstated, effective immediately." Mother was represented during entry of the agreed orders by attorney Sharon T. Massey. Grandmother was not represented by counsel.

         On September 28, 2015, the State, utilizing the docket number previously attached to the dismissed petition to set support, filed a petition for criminal contempt against Mother, alleging failure to pay child support and an arrearage calculated in the amount of $20, 617.54. Citing alleged violation of the March 13, 2015 agreed order, which had not addressed child support, the State requested that the trial court find Mother to be in willful contempt, sentence her to ten days in jail and a fine of $50.00 plus costs, enter a judgment against her for the full arrearage amount plus twelve-percent interest, and enter an income assignment against her. The trial court subsequently issued a criminal attachment, by which authority Mother was arrested on March 16, 2016. Upon finding that Mother was indigent, the court appointed counsel, attorney Julie Dyess, to represent Mother on the contempt charge. The court released Mother on a $5, 000.00 bond in an order entered March 24, 2016. The May 28, 2015 agreed order, reflecting Mother's agreement to pay $50.00 per month to the State toward a $1, 488.00 child support arrearage, appears for the first time in the record before us as an apparent attachment to the March 24, 2016 order releasing Mother on bond.

         On August 25, 2016, the trial court conducted a hearing on the petition for contempt and the State's "Motion to Reconsider" the May 28, 2015 agreed order. The State requested in its motion that the trial court set aside the May 2015 agreed order pursuant to Tennessee Rule of Civil Procedure 60.02.[3] In a "Statement of the Evidence" filed in lieu of a transcript, pursuant to Tennessee Rule of Appellate Procedure 24(c), the State proffers the filing date of its motion to reconsider as April 29, 2016, the date the motion was signed by the assistant district attorney. However, the trial court clerk's date stamp on the motion indicates a filing date of September 20, 2016.[4]

         The State argued in its motion, inter alia, that, pursuant to Tennessee Code Annotated § 36-5-101(f)(1), the trial court did not have authority to grant forgiveness of a child support arrearage at the time of the May 28, 2015 agreed order's entry. As the State pointed out, effective July 1, 2015, the General Assembly amended Tennessee Code Annotated § 36-5-101(f) to add subsection (6), providing that "the obligor and obligee shall have the right to compromise and settle a child support arrearage balance owed directly to the obligee, " upon meeting certain requirements and upon the trial court's approval of the settlement as in the best interest of the children. See 2015 Pub. Acts, Ch. 200 § 1 (S.B. 101). The State argued that even assuming, arguendo, that the newly enacted subsection could have been applied in this case, Mother and Grandmother ...


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