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In re Joel B.

Court of Appeals of Tennessee, Nashville

January 29, 2018

IN RE JOEL B.

          Session December 5, 2017

         Appeal from the Juvenile Court for Maury County No. 11-JV-720 Sharon Guffee, Judge

         A trial court designated the father of a child born out of wedlock as the primary residential parent and imputed additional income to the mother for purposes of child support after determining she was underemployed. The mother appealed the trial court's judgment. During the pendency of the appeal, dependency and neglect proceedings in the trial court resulted in the child's removal from the father's residence and his placement with the mother in California. The dependency and neglect proceedings rendered moot the mother's challenge of the trial court's designation of the father as the primary residential parent, leaving the imputation of additional income to the mother as the only issue on appeal. Concluding the trial court did not abuse its discretion in allocating additional income to the mother for child support purposes, we affirm that aspect of the trial court's judgment.

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

          Rachel Lorraine Bonano, Knoxville, Tennessee, for the appellant, Keren H. D.

          Phyllis Marlene Boshears, Franklin, Tennessee, for the appellee, Joel R. B.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and W. Neal McBRAYER, J., joined.

          MEMORANDUM OPINION[1]

          ANDY. BENNETT, JUDGE

         Keren H. D. ("Mother") and Joel R. B. ("Father") are the parents of Joel B. ("the Child"), who was born out of wedlock in July 2011. Mother left Tennessee and went to live in California with the child in December 2011. Father filed a petition in December 2011 to establish his paternity and put into place a parenting plan. Both Mother and Father wanted to be designated the primary residential parent. The trial court entered an order on February 3, 2012, establishing Father as the Child's legal and biological Father and adopting a permanent parenting plan in which Father was named the primary residential parent and Mother was awarded eighty days of residential parenting time. Mother was ordered to pay child support to Father in the amount of $200 each month.

         The parenting plan was modified over the following few years, and on December 31, 2015, Father filed another petition for a parenting plan to be adopted as well as an order for child support in an effort to collect the support Mother had been ordered to pay but had not, in fact, paid. The trial court held an evidentiary hearing on May 20 and 23, 2016, and entered an order designating Father as the primary residential parent while Mother continued residing in California. The court indicated that if Mother relocated to Tennessee, the parties would be awarded equal parenting time with the Child. Finding Mother was underemployed, the court allocated additional income to Mother and determined that her monthly child support obligation would be $895 per month. The court found this amount "shall be retroactive to the December 31, 2015 filing by Father for a judgment in the amount of $4475.00 payable at $100.00 per month beginning June 1, 2016."

         Mother appealed the trial court's judgment. She argued that the trial court erred in designating Father as the primary residential parent and in imputing additional income to her for purposes of calculating her child support obligation. Then, after the parties filed their appellate briefs, but before oral argument took place, Mother filed a motion asking this Court to consider post-judgment facts.[2] This Court filed an order on January 10, 2018, granting the motion and stating:

          The appellant has filed a motion to consider post-judgment facts. .We grant the motion, that being that an order has gone down in a recent dependent and neglect action in which the child was found to be dependent and neglected in Father's custody. We reserve judgment on how this fact may or may not, and to what extent it will, affect the pending appeal.

         The post-judgment facts Mother has asked this Court to consider concern dependency and neglect proceedings in the trial court that culminated in a final order entered on November 15, 2017, placing the Child with Mother. These dependency and neglect proceedings began after entry of the order Mother appealed and were based on two incidents in which Father was arrested for driving under the influence in February and May 2017. The final order states:

This matter was previously adjudicated on July 19, 2017. At that time, the parties entered an agreement regarding an interim custody order pending the final outcome of the dispositional hearing. Specifically, the parties agreed that the child would be placed in the interim custody of the mother and the father would be allowed supervised visitation and telephone communication through either skype or the phone. Based upon the announcement made in open court, the parties are in agreement that the previous custody order shall become a final order. The parties are in further agreement that should either party wish to modify this Order, they must show a material change of circumstances. ... Finally, the parties are ...

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