Kimberly K. Carr v. Floyd K. Sutton ( 2017 )

06/26/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 11, 2017 Session
KIMBERLY K. CARR v. FLOYD K. SUTTON
Appeal from the Juvenile Court for Sumner County
No. 2013JV771 Barry R. Brown, Judge
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No. M2015-01568-COA-R3-JV
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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
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.
Kimberly K. Carr, Goodlettsville, Tennessee, for the appellant, Pro Se.
Margaret A. Brooke, Hendersonville, Tennessee, for the appellee, Floyd Ken Sutton.
OPINION
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
1
It is not clear from the record before us why the State is no longer involved.
2
The March 10, 2014 order does not appear in the record on appeal; these facts are taken from the
magistrate’s report entered on October 14, 2014, and neither party disputed the history of the case as
reflected in the various orders.
2
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 at Home Safe, a domestic violence services
provider. The juvenile court entered an order on July 10, 2015:
The Court understands the argument of Plaintiff, however, there is
simply not sufficient evidence to render a judgment in favor of Plaintiff for
support back to birth of the child.
The ruling of Magistrate Howard is upheld based on evidence
presented in this Court and brought out in Magistrate Howard’s Finding
and Recommendations. The Filing and Recommendation is made a part of
this ruling.
3
The court ordered Father to pay for the new Birth Certificate; to maintain insurance on
child as ordered by the magistrate; to pay support in the amount of $549.00 a month
“beginning at time of filing of October 2013, 3 months in 2013, 12 months in 2014 and 7
months in 2015 for a total to date of $12,078.00 for current support payable thru Central
Child Support Receipting Unit,” to be paid within 90 days along with August and
September 2015 support; and to pay the back child support obligation of $7,137.00 at a
rate of $100.00 monthly. By order entered August 28, the court amended the July 10
order to require Father to pay interest in the amount of $1,388.97 on the child support
obligation. Mother appealed the judgment to this court, and filed a Motion to Amend or
Make Additional Findings of Fact, as well as a Motion for a New Trial in the trial court;
both motions were denied due to the fact that the order was being appealed.3
Mother represents herself on appeal and her brief is not in compliance with Rule
27 of the Tennessee Rule of Appellate Procedure in many respects. Many of her
contentions focus on evidence that she believes the court should not have excluded or
should have referred to in its order. However, her brief contains no statement of facts or
argument discussing any of the issues she raises or the relief she seeks. We have
considered the statements and contentions in her brief mindful of the grace we extend to
self-represented litigants and address the issues of retroactivity of the child support award
and the admission of certain evidence, which we discern to form the basis of her appeal.
The statement of the evidence in this case was prepared by Mother and approved
by the court; it is of little assistance to this court. The statement is a three-page narrative
summary of testimony given, according to the preamble, on “October 3, 2014 and other
hearings.” Under Tennessee Rule of Appellate Procedure 24, the appellate record must
contain, inter alia, “the transcript or statement of the evidence or proceedings, which
shall clearly indicate and identify any exhibits offered in evidence and whether received
or rejected,” among other things. Tenn. R. App. P. 24(a). The statement of evidence does
not comply with this rule. Further, it does not detail any of the testimony of Dr. Linda
Leftwich or Adriana Gonzales, evidence of Father’s criminal record and income, or other
evidence that Mother references in her statement of the issues; moreover, it does not
distinguish the testimony heard by the magistrate from that heard by the juvenile judge.
The Findings and Recommendations prepared by the magistrate, which were adopted by
the court in the July 10 order, contains a summary of the testimony of each witness
covering seven pages, as well as a discussion of the documentary evidence of Father’s
income. The July 10 order also summarizes the testimony of Sgt. Morrow of the
Goodlettsville Police Department, as well as of Dr. Leftwich and Ms. Gonzales.
3
The order acknowledged that Mother requested to take testimony of Jerry Horner, a witness whose
identity and relevance to the issues presented in this appeal is not explained or apparent from the record,
and to introduce the files of Dr. Leftwich, who testified at the hearing; the court also denied these requests
“due to the fact the case had already been decided.”
4
Accordingly, these documents form the evidentiary basis for our consideration of this
appeal.4
The core issue stated by Mother in her brief is “whether the Trial Court erred by
not awarding retroactive child support to the date of birth [of the child] when the
Appellee had been convicted of domestic assault against the Appellant and sentenced to
probation with Gary Tessar, Sumner County Probation Officer in April 1995 before the
Appellant got pregnant in the winter of 1995.”
Title 36, Chapter 2, Part 3 of the Tennessee Code governs parentage and
legitimation proceedings for children born out of wedlock; section 36-2-311(a)(11)
requires that the order of legitimation include a determination of the amount of child
support. Pertinent to this case, that section provides:
(A) Determination of child support pursuant to chapter 5 of this title. When
making retroactive support awards pursuant to the child support guidelines
established pursuant to this subsection (a), the court shall consider the
following factors as a basis for deviation from the presumption in the child
support guidelines that child and medical support for the benefit of the child
shall be awarded retroactively to the date of the child’s birth:
(i) The extent to which the father did not know, and could not
have known, of the existence of the child, the birth of the
child, his possible parentage of the child or the location of the
child;
(ii) The extent to which the mother intentionally, and without
good cause, failed or refused to notify the father of the
existence of the child, the birth of the child, the father’s
possible parentage of the child or the location of the child;
and
(iii) The attempts, if any, by the child’s mother or caretaker to
notify the father of the mother’s pregnancy, or the existence
of the child, the father’s possible parentage or the location of
the child;
(B) In cases in which the presumption of the application of the guidelines is
rebutted by clear and convincing evidence, the court shall deviate from the
child support guidelines to reduce, in whole or in part, any retroactive
support. The court must make a written finding that application of the
4
The record on appeal also includes eight exhibits, six of which are in a volume prepared by the clerk; of
the remaining exhibits, one is a binder, identified in the index as exhibit 6, containing an assortment of
documents and photographs. Exhibit 6 was originally retained in the trial court pursuant to Tenn. R. App.
P. 25(b), but was transmitted to this court on Mother’s motion.
5
guidelines would be unjust or inappropriate in order to provide for the best
interests of the child or the equity between the parties;
(C) Deviations shall not be granted in circumstances where, based upon
clear and convincing evidence:
(i) The father has a demonstrated history of violence or
domestic violence toward the mother, the child’s caretaker or
the child;
(ii) The child is the product of rape or incest of the mother by
the father of the child;
(iii) The mother or caretaker of the child, or the child has a
reasonable apprehension of harm from the father or those
acting on his behalf toward the mother, the child’s caretaker
or the child; or
(iv) The father or those acting on his behalf, have abused or
neglected the child;
***
(F) In making any deviations from awarding retroactive support, the court
shall make written findings of fact and conclusions of law to support the
basis for the deviation, and shall include in the order the total amount of
retroactive support that would have been paid retroactively to the birth of
the child, had a deviation not been made by the court[.]
Tenn. Code Ann. § 36-2-311(a)(11) (2014).
The Tennessee Supreme Court discussed deviations from the presumption that
child support orders should be retroactive in the case of In re T.K.Y, observing:
The decision to award retroactive child support lies within the discretion of
the juvenile court. State ex rel Coleman v. Clay, 805 S.W.2d 752, 755
(Tenn.1991). However, the trial court’s discretion is cabined by the
statutory requirement that it must presumptively apply the Child Support
Guidelines. Tenn. Code Ann. § 36–5–101(e)(1)(A) (2005).[5] The trial
5
Tennessee Code Annotated section 36-5-101(e)(1)(A) reads as follows:
In making the court’s determination concerning the amount of support of any minor child
or children of the parties, the court shall apply, as a rebuttable presumption, the child
support guidelines, as provided in this subsection (e). If the court finds that evidence is
sufficient to rebut this presumption, the court shall make a written finding that the
application of the child support guidelines would be unjust or inappropriate in that
particular case, in order to provide for the best interest of the child or children, or the
equity between the parties. Findings that the application of the guidelines would be unjust
6
court’s discretion is further limited by Tennessee Code Annotated section
36-2-311(a)(11)(A) (2005), which states a presumption that child support
“shall be awarded retroactively to the date of the child’s birth.” See also
Child Support Guidelines, Tenn. Comp. R. & Regs. 1240-2-4-.06
Section 36-2-311(a)(11)(A), governing retroactive child-support orders,
sets forth only three factors to be considered as a basis for awarding less
than full retroactive support: the father's lack of knowledge of the existence
of the child; the mother's intentional failure to inform the father of the
existence of the child; and the mother's attempts to notify the father of the
existence of the child. Tenn. Code Ann. § 36-2-311(a)(11)(A)(i)–(iii).
In re T.K.Y., 205 S.W.3d 343, 355 (Tenn. 2006); see also Taylor v. Robinson, M2006-
00109-COA-R3-JV, 2007 WL 1628862, at *5 (Tenn. Ct. App., June 5, 2007).
In the Findings and Recommendations, in addition to the matters quoted supra,
pages 2-3, the magistrate reported:
The Father denied that he was aware of the Mother’s pregnancy and
that the first he had learned that he had a potential child was when he was
summoned to provide genetic testing. He did indicate, however, that the
Mother had called him in June 2013 to say that she needed money, but she
never disclosed to him that he was the father of her child; prior to this
phone call, the Father said it had been “years and years” since he had
spoken with the Mother. He also indicated that, despite the fact that the
parties have had mutual friends and that he has generally lived in the same
home, none of them had ever said anything to him about the Mother or the
child, nor has she ever been to his home to inform him of his parentage. He
never saw the Mother during her pregnancy, testifying that the parties’
relationship ended in 1995. He was unaware that he had a child and, had he
known, he would have wanted a “relationship” with the child but that no
one had ever said anything to him that he had a child, much less a child
“needing help.”
Mother does not cite evidence and, in our review of the record, we discern no proof that
preponderates against the finding that Father did not know of his son prior to the
paternity test in 2013. Consequently, we procced to consider whether a deviation from
the presumption of retroactivity of Father’s support order is not warranted because Father
had a history of violence toward her. See Tenn. Code Ann. § 36-2-311(a)(11)(C)(i).
or inappropriate shall state the amount of support that would have been ordered under the
child support guidelines and a justification for the variance from the guidelines.
7
By its terms, the statute requires that the evidence which would not allow the
deviation—here, that Father has a demonstrated history of domestic violence toward
her—be clear and convincing, defined as “evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence” and
which “produces a firm belief or conviction in the fact-finder’s mind regarding the truth
of the facts sought to be established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct.
App. 2014) (internal citations omitted).
Mother states in her brief that Father “had been convicted of domestic assault
against the Appellant”; the record, however, does not contain evidence of a conviction.
While Mother does not cite to evidence supporting this statement, in exhibit 6 there is a
photocopy of a portion of an “affidavit of complaint” made in April 1995 as part of an
application for an arrest warrant, wherein Mother swore that Father came to her home,
where they “had some words” and he grabbed her by the arms and shoved her down on
the couch, and that when Mother told Father he needed to leave, he did. In the Findings
and Recommendations, the magistrate noted that Father “flatly denied any violence or
threats of violence towards the Mother” and testified that “Mother demonstrated violence
toward him, though he never had her arrested.” The magistrate concluded:
The Court finds that the 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. The use of a clear and
convincing evidence standard presents a high standard of reliability which
then results in a high probability of the truth of the ultimate fact in
controversy. Black’s Law Dictionary, 6 Ed. While the accusations flew,
there was little in the way of evidence to support them. The Mother
provided no testimony (other than her own) and no judgments or proof of
any convictions that the Father had engaged in domestic violence against
her, much less the child. In fact, all other witnesses, including her own,
testified that they were unaware of any domestic violence because they
never saw it or even heard about it. Her own Mother testified that she was
only aware of injuries and destruction because her daughter told her, not
because of specific first-hand knowledge. Couple the witnesses with the
Mother’s testimony that the alleged domestic abuse occurred between
eighteen and twenty years ago and it is impossible for this Court to declare
by clear and convincing evidence that domestic violence or a demonstrated
history of violence occurred. As such, the Mother’s reliance on the
provisions of Tenn. Code Ann. 36-2-311(a)(11)(C)(i) is without merit and
must be denied.
The court examined the evidence and concluded that there was not clear and
convincing evidence of domestic violence so as to preclude the deviation in child support.
We have reviewed the record, including the statement of evidence, and have found no
8
proof that clearly and convincingly establishes a demonstrated history of violence or
domestic abuse of Father toward Mother or the child or that Mother or the child has a
reasonable apprehension of harm from Father. The holding that deviation from the
guidelines was appropriate is supported by the evidence and not contrary to law.
Mother also raises a broad range of issues primarily pertaining to evidentiary
rulings and matters she contends the court should have considered. She fails to make
citations to the record or to articulate a cogent argument relative to these issues or why
they require relief. “It is not the role of the courts, trial or appellate, to research or
construct a litigant’s case or arguments for him or her, and where a party fails to develop
an argument in support of his or her contention or merely constructs a skeletal argument,
the issue is waived.” Sneed v. Bd. of Prof’l Responsibility of Sup.Ct., 301 S.W.3d 603,
615 (Tenn. 2010). “An issue may be deemed waived, even when it has been specifically
raised as an issue, when the brief fails to include an argument satisfying the requirements
of Tenn. R. App. P. 27(a)(7).” Hodge v. Craig, 382 S.W.3d 325, 335 (Tenn. 2012) (citing
Baugh v. Novak, 340 S.W.3d 372, 381 (Tenn. 2011); Sneed, 301 S.W.3d at 615). While
we have attempted to give Mother the benefit of the doubt when possible, we cannot
create arguments for her where her brief fails to contain an argument on the issues raised
in her statement of the issues. Upon our review of the record, it is clear that both the
magistrate and the juvenile judge considered the evidence presented and assigned
appropriate weight to it; much of the evidence Mother contends should have been
considered was not relevant to the issues before the court or constituted inadmissible
hearsay.
We discern no basis for concluding that the court abused its discretion in deviating
from the presumption that child support would be retroactive to the birth of the child and,
accordingly, affirm the court in all respects.
RICHARD H. DINKINS, JUDGE
9