Session December 5, 2017
from the Juvenile Court for Maury County No. 11-JV-720 Sharon
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
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed in Part and Vacated in Part
Lorraine Bonano, Knoxville, Tennessee, for the appellant,
Keren H. D.
Phyllis Marlene Boshears, Franklin, Tennessee, for the
appellee, Joel R. B.
D. Bennett, J., delivered the opinion of the Court, in which
Frank G. Clement, Jr., P.J., M.S., and W. Neal McBRAYER, J.,
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.
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."
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. This Court filed
an order on January 10, 2018, granting the motion and
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.
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 ...