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Carr v. Sutton

Court of Appeals of Tennessee, Nashville

June 26, 2017

KIMBERLY K. CARR
v.
FLOYD K. SUTTON

          Session April 11, 2017

         Appeal from the Juvenile Court for Sumner County No. 2013JV771 Barry R. Brown, Judge

         The State of Tennessee filed a petition in 2013 on behalf of the mother of a child who was born in 1996 to legitimate the child and to require the father to provide health insurance for the child; the requested relief was granted. In 2014, the mother filed a petition to set child support and, following a hearing before a juvenile court magistrate, the father was ordered to pay child support; the magistrate determined that child support should not be made retroactive to the birth of the child but, rather, to the date that the petition to have the child legitimated was filed. Mother appealed the decision to the juvenile judge; after a de novo hearing, the juvenile judge adopted the findings of the magistrate and ordered Father to pay support of $549.00 per month from the date the petition to legitimate was filed. Mother appeals the ruling, contending that the obligation to pay support should be retroactive to the date of the child's birth. Concluding that the trial court did not abuse its discretion, we affirm the judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

          Kimberly K. Carr, Goodlettsville, Tennessee, for the appellant, Pro Se.

          Margaret A. Brooke, Hendersonville, Tennessee, for the appellee, Floyd Ken Sutton.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         This appeal arises out of a petition to set child support, filed on June 16, 2014, by Kimberly Carr ("Mother"), the mother of a child born in August 1996. No father was listed on the child's birth certificate. The State of Tennessee had filed a petition on Mother's behalf to legitimate the child and to require the father to provide health insurance in 2013.[1] After paternity testing confirmed that Floyd Sutton ("Father") was the child's father, an order was entered on March 10, 2014, which declared Father the biological and legal father of the child; changed the child's legal name; established parenting arrangements; ordered Father to obtain health insurance for the child and to pay for the amended birth certificate. The order noted that "Child Support was not at issue in this cause and is reserved for further actions, if at all."[2]

         A hearing was held on Mother's petition to set support before a magistrate on October 3, 2014, at which Mother, Father, the paternal and maternal grandmothers, the child, and two other witnesses, Allen Maggart and Sammy Phelin, testified. The magistrate entered Findings and Recommendations on October 14, 2014, in which it detailed the testimony it heard, imputed income to Mother and Father and determined Mother and Father's gross monthly incomes, and set Father's child support obligation at $549.00 per month. The magistrate determined that the amount of support award, retroactive to the birth of the child, would be $132, 309.00, without interest; the magistrate considered Tennessee Code Annotated sections 36-2-311, 36-5-101, and Rule 1240-02-04-.06 of the Tennessee Rules and Regulations, and determined that the evidence supported a deviation from the child support guidelines which required that the award be made retroactive to the birth of the child, stating the following:

Mother has not shown by clear and convincing evidence that the Father had a demonstrated history of violence or domestic violence toward her or the child. . . . It is impossible for this Court to declare by clear and convincing evidence that domestic violence or a demonstrated history of violence occurred.
Father had no knowledge of his parentage until proceedings began in 2013 and the Mother, for reasons of her own, made a conscious effort to keep the child to herself. Ultimately, the Mother chose not to take any steps to establish a legal relationship between the child and the father and specifically went out of her way to avoid establishing parentage. She testified that she had never indicated on any documents, including the child's original birth certificate, that Mr. Sutton was the child's father. She testified that she essentially maintained silence about Mr. Sutton's parentage because she did not want to "rock the boat" in that she did not want the Father to have contact or visitation with the child and that she did not want her son at the Father's home or involved in the Father's lifestyle. She testified that she did these things because she feared the Father and what he might do to her and the child but she finally needed support enough to "list his name." Because of the Mother's conduct the Father did not have the opportunity to bond with the child or establish a relationship with him. Additionally, the child's own testimony indicates his own unwillingness to have contact or relationship with his father because the Father is perceived as being "the Bad Guy." The Mother has purposefully acted in a manner to prevent the formation of a father-son relationship. It would, therefore, be inequitable for the Court to reward her for such conduct.

         The magistrate then held, in pertinent part:

While it may be certainly inequitable for the Father to pay retroactive child support to make up for the eighteen years which the Mother made no attempt to establish his paternity and thus his obligation of support, the Father has or should have known about his parentage since October 2013. It is then only equitable that the deviation of the Father's retroactive child support obligation is made to begin in October 2013; therefore, the Father has a retroactive child support obligation, without the application of statutory interest, of $7, 137.00. . . . Said retroactive child support shall be paid at a rate of One Hundred Dollars ($100.00) per month until the arrears are satisfied.

         The order also required the Father to cover the child by a private health insurance policy. The magistrate's recommendation was adopted and made the order of the court on October 27.

         Mother appealed the magistrate's order, and the juvenile judge heard the case de novo over four days in the months of January, March, April, and June 2015. The same witnesses, with the exception of Mr. Maggart, testified, as well as Sergeant Morrow of the Goodlettsville Police Department, Dr. Linda Leftwich, psychological counselor for Mother, and Adriana Gonzales, who works ...


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